Terms & Conditions of Trade

Choice Seedlings Pty Ltd ACN 110 252 741 and each related body corporate from time to time (as defined in the Corporations Act 2001) of 35 Sylvan Road, Werombi NSW 2570 (Choice).

1. Application of Terms. These terms and conditions of trade (Terms), as amended from time to time, apply in every case where Choice provides goods or services of any kind (Goods) to the customer (as referred to in the Credit Application (Application) or if there is no Application, the customer placing an order, or on whose behalf the order is placed) (Customer). Acceptance of Goods by the Customer is conclusive evidence that the Terms apply and are binding on it and the guarantors (as referred to in the Application) (Guarantors). The Terms prevail over any other inconsistent terms in relation to the supply of Goods and supersede all prior terms, written or otherwise in relation to the supply of the Goods.

2. Purchase Orders and Sales Order Confirmations. Purchase orders received by Choice are only binding on Choice if and when they are accepted by Choice in writing, or, when Choice issues a sales order, being a confirmation of receipt of the purchase order. The Customer must notify Choice in writing of any errors in the sales order issued by Choice within 24 hours from the issue of the sales order. Sales orders cannot be varied or cancelled by the Customer after they have been accepted by Choice, unless such cancellation or variation has been approved by Choice in writing. Choice reserves the right, at their sole discretions, to vary or cancel any accepted purchase order, or its own sales order, by notice in writing to the Customer if Choice is unable to deliver the Goods within a reasonable time, or at all. The Customer cannot seek damages, losses or other remedies from Choice for any such cancelled purchase and or sales orders.

3. Delivery of Goods. Choice will deliver the Goods to the address nominated in the Application or the purchase order or the sales order, whichever is the latter. Choice will advise the Customer an estimated time for delivery in their sales order or upon acceptance of the purchase order. Delivery is deemed to occur at the time that the Goods are delivered to the Customer or the time that the Customer collects the Goods from Choice. Choice is not liable for any late delivery of the Goods. The Customer must inspect the Goods delivered within 24 hours of the delivery to ensure that the Goods are not damaged and are delivered as ordered. If the Goods delivered are damaged or are not the Goods ordered, the Customer must notify Choice in writing within 24 hours from the time of delivery as to any discrepancies in the Goods. Unless notified by the Customer during 24 hours after the delivery of the Goods otherwise, the Goods are deemed to be delivered in good state and as ordered. The Customer cannot refuse delivery of the Goods.

4. Liability. If Choice is notified by the Customer during the 24 hours of delivery of the Goods that the Goods are defective, Choice may seek for the Goods to be returned to Choice (at Customer’s cost) for inspection, and at its sole discretion, either replace the Goods or credit the Customer the amount paid for the returned Goods. Other than any remedies the Customer may have pursuant to the Competition and Consumer Act 2010 (Act), the only remedy the Customer available to the Customer under these Terms, be that in contract or tort, statute or otherwise, is as specified in these Terms. All conditions and warranties relating to the condition and quality of the Goods, to the extent permitted by law, are excluded from these Terms. The Customer must not claim or demand or take any action against Choice, its employees, contractors or agents for any loss of profits or revenue or loss of contract or opportunity, including indirect and consequential loss, arising out of, or in any way related to, these Terms. The Customer releases and discharges Choice, its employees, contractors or agents from all claims under or in relation to these Terms and indemnifies Choice its employees, contractors or agents in respect of all loss, damage and expenses relating to or arising out of any such claim. To the extent permitted by law, total liability of Choice for any claim in relation to these Terms is limited to the price paid by the Customer for the Goods subject to the claim.

5. Payment Terms. The price for the Goods is as stated in the price list for the Goods at the time of order. Choice reserves the right to vary the price for the Goods. The Customer must pay for the Goods at the time of order and prior to delivery, unless Choice has offered the Customer any other terms. If the Customer is offered the credit facility, the Customer must, without demand from Choice, pay the whole amount due on or before the due date shown on Customer’s invoice (which unless is otherwise stated is thirty (30) days from the date of the invoice). Choice may demand immediate payment of all amounts outstanding (whether or not due) if the Customer breaches these Terms or the Customer’s credit facility with Choice is terminated by Choice, or the Customer becomes insolvent within the meaning of the Corporations Act 2001, or commits and act of bankruptcy within the meaning of section 40 of the Bankruptcy Act 1966, or in the case of a company, a receiver liquidator or official manager is appointed to manage the Customer’s affairs, or the Customer enters into an arrangement or scheme for the benefit of creditors. Amounts payable by the Customer to Choice under these Terms must be paid without deduction, retention or set-off.

6. Credit. Choice may, in its absolute discretion, if Choice is satisfied upon receipt of the Application and making all necessary and relevant enquiries as to the Customer’s creditworthiness, grant and supply the Goods under these Terms to the Customer on credit. If Choice agrees to grant and supply the Goods on credit, it will notify the Customer in writing and will provide the monetary limit of the approved credit limit for the Customer. Choice reserves the right, at its sole discretion, without notice, at any time, to change, set or limit credit amount or terminate the credit facility of the Customer. If any amount payable is not paid by the Customer on the due date for payment, an interest rate of twelve (12) per centum per annum applies to any overdue amount not paid calculated daily and compounded monthly from the date the unpaid amount first becomes due and payable The Customer agrees that it is liable to pay all costs and expenses incurred by Choice in the recovery or attempted recovery of the overdue amounts, including legal and debt collection fees from the Customer.

7. GST. Unless GST (GST means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended (GST Act) is expressly included, the consideration to be paid or provided for any supply under these Terms does not include GST. To the extent that any supply made under these Terms of is a taxable supply, the GST exclusive consideration otherwise to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is otherwise paid or to be provided. A party’s right to payment under this clause is subject to a valid tax invoice being delivered to the recipient of the taxable supply.

8. Customer Acknowledgement. The Customer acknowledges and agrees that the Goods include a supply of seedlings and agrees that Choice is not liable for the performance of such Goods. The Customer warrants that the Customer relies on its own judgement and not any representation, description or statement by Choice in deciding to purchase the Goods. Choice does not guarantee the survival of the Goods as that is subject to factors beyond control of Choice Choice’s. To the extent permitted by law, Choice has not provided any express or implied warranties, indemnities or undertakings in relation to the performance or survivals of the Goods supplied. All trays, frames or other apparatus used to store the Goods for supply (Property) remains the property of Choice and must not be used by the Customer for any other purpose other than the fact that the Property was used to supply the Goods and it must be made available for collection by Choice when requested. The Customer is liable and must compensate Choice for any damage to the Property.

9. Retention of Title. Risk in the Goods passes to the Customer on delivery of the Goods. Title to the Goods purchased by the Customer, until they are paid in full (Bailed Goods), remains with Choice. The Customer must hold Bailed Goods as fiduciary and bailee for Choice. The Customer must not use the Goods for any personal, household or domestic purpose. The Customer grantsto Choice a purchase money security interest, as defined in the Personal Properties Securities Act 2009 (PPSA) in the Bailed Goods and any proceeds of sale of the Bailed Goods (PMSI) to secure the purchase price of the Bailed Goods. The Customer is liable for the costs of registering the financing statement. The customer agrees to comply with requests by Choice to take such further steps as may be required by Choice to better or maintain the priority of any security under the PPSA in respect of the Bailed Goods and proceeds of sale of the Bailed Goods. The Customer authorises Choice to enter Customer’s premises where the Goods are held if Choice becomes entitled to remove the Goods from the Customer.

10. PPSA. The Customer grants a security interest in all of its present and after-acquired property and in all of its present and future rights in relation to any personal property (as defined in the PPSA) (Personal Property) to Choice and charges all of its rights, property and undertaking of whatever kind and wherever situated, whether present or future including, without limitation, its capital and any interest in real property (both legal and beneficial (other than any Personal Property to which he PPSA applies) to Choice as security for the performance of its obligations under these Terms including payment of any amounts payable. The Customer must, when requested, execute such documents as Choice requires to perfect the security interest or charge. The Customer acknowledges that Choice, by virtue of the charge, has a caveatable interest in any real property of the Customer which is or becomes subject to the charge and may lodge a caveat over that property. To the extent permitted by law, the Customer waives its right to receive from Choice any notice required to be provided under the PPSA and agrees that sections 142 and 143 of the PPSA do not apply to these terms of trade and that Choice need not comply with sections 95, 118, 121(4), 123, 125, 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.

11. Guarantee and Indemnity. In consideration of Choice, at the request of the Guarantor, granting and supplying the Goods on credit to the Customer, the Guarantor covenants and agrees with Choice that the Guarantor irrevocably guarantees to Choice the due performance by the Customer of its obligations under these Terms including payment of the amounts payable. The Guarantor separately and independently indemnifies Choice, and will at all times keep Choice indemnified, from and against all losses and expenses which Choice may suffer or incur in consequence of any breach by the Customer of any of the terms of these Terms (including enforcement expenses and legal costs on a full indemnity basis) or any part of these Terms being void or unenforceable. The Guarantor acknowledges that Choice does not have to provide notice to the Customer to rectify a breach of these Terms prior to the Guarantor being required to fulfill its obligations under these Terms. This is a continuing guarantee and liability and it is not affected by any other guarantee given to Choice, the winding up, deregistration, insolvency or liquidation of the Customer, the granting of waiver or any other concession to the Customer by Choice or any variation of these Terms.

12. General. Should any provision of these Terms be illegal, void or unenforceable, that provision shall be of no effect and it is to be severed from these Terms to the extent that it is illegal, void or unenforceable. These Terms are enforceable against each of the Customer and the Guarantor and if more than one, them jointly and each of them severally The Customer must not assign its benefits or novate its obligations under these Terms without our prior written consent. We may assign our rights and novate our obligations under these Terms without the Customer’s consent. These Terms bind the Customer and each Guarantor personally and as trustee of any trust for which it is a trustee. The Customer warrants and represents that the Customer is authorised to enter into these Terms and is able to perform Customer’s obligations imposed by these Terms. Choice has a right to vary these Terms by providing the Customer with a notice in writing. The Customer continuing to purchase from Choice subsequent to the date of such variation constitutes Customer’s acceptance of these Terms as varied or replaced. These Terms are governed by and the Customer and the Guarantor submit to the laws of the State of New South Wales and the courts having jurisdiction in the State of New South Wales. In these Terms the words or terms incorporating the singular or the plural shall include the plural and the singular respectively. References to “include “and “including” are to be construed without limitation. Any waiver of rights by Choice is only valid if it is in writing. A waiver of a right under these Terms on any occasion does not prevent further exercise of that right or of any other right and a waiver of that right on any particular occasion does not operate as a waiver of that right in the future. If there is a change in control event or change of directorship of the Customer, the Customer must notify Choice immediately of such change. These Terms, the Application, if applicable, and any relevant purchase and or sales order, when taken together, constitute the entire agreement between the Customer and Choice and supersede all prior agreements, of any kind, between the parties. Choice collects, holds and uses personal information of the Customer and the Guarantor for the purpose of supplying Goods to the Customer in accordance with these Terms. Choice adheres to and complies with the Privacy Act 1998 (Cth) in relation to the collection, storage, use and disclosure of the personal information as defined in the Privacy Act 1998 (Cth).