TERMS AND CONDITIONS OF SUPPLY

1. DEFINITIONS AND INTERPRETATION

1.1 DEFINITIONS

In these Terms, unless expressly stated otherwise or implied to the contrary the following words which begin with capitalised letters have the following meanings:-

(a) Additional Charges means all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the purchase price, payable by the Customer to the Secured Party arising out of the sale or supply of the goods or services.

(b) Application means the document titled “Customer Account Form” or similar, submitted by the Customer to the Secured Party.

(d) Corporations Act means the Corporations Act 2001 (Cth).

(c) Credit Limit means the maximum amount of credit the Secured Party has agreed to provide to the Customer for the provision of the Goods.

(d) Customer means the customer, Customer or any person acting on behalf of and with the authority of the Customer as described on any Application, or any person held out to be an authorised officer of the Customer from time to time and unless the context specifies otherwise also means any related entities of the Customer from time to time.

(e) Event of Default means any of the default events as specified in clause 9.1 of the Terms.

(f) Government Agency means any government or any governmental or semi-governmental or judicial entity or authority and includes any self-regulatory organisation established under any applicable laws.

(g) GST Act means A New Tax Systems (Goods and Services Tax) Act 1999.

(h) Insolvency Event means

(i) a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;

(ii) a liquidator or provisional liquidator is appointed in respect of a person;

(iii) any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph (i) or (ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;

(iv) any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;

(v) any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or

(vi) a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.

(i) Invoice means any invoice as generated by or on behalf of the Secured Party and issued to the Customer for payment of goods and services, including all and any amounts as provided by way of financial accommodation provided by the Secured Party to the Customer for the acquisition of any goods and for any services as provided by the Secured Party to the Customer from time to time as detailed in any such invoice.

(j) PMSI has the meaning provided for “purchase money security interest” in the PPSA.

(k) PPSA means the Personal Property Securities Act 2009 (Cth) and its associated regulations as varied from time to time.

(l) PPSR means the Personal Property Security Register.

(m) Proceeds have the same meaning given to the term under section 31 of the PPSA.

(n) Relevant Jurisdiction means Victoria, Australia.

(o) Security Interest has the same meaning given to the term under section 12 of the PPSA.

(p) Secured Party means Delecca’s Pty Ltd ACN 072 649 051.

1.2 INTERPRETATION

In these Terms, unless expressly specified to the contrary:

(a) the Application, any schedules, the annexures (if any) and any documents or forms as referred to are each incorporated in and form part of these Terms;

(b) a reference to the singular includes the plural and vice versa;

(d) use of the word including and similar expressions are not, nor are they to be interpreted as, words of limitation;

(e) a reference to a person includes a natural person, a company or other entities recognised by law;

(f) a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;

(g) a reference to writing includes any mode of reproducing words, figures or symbols in tangible and permanently visible form and includes email transmission;

(h) a reference to Australia dollars, dollars $, A$, $A or AUD is a reference to the lawful currency of the Commonwealth of Australia;

(i) a party includes the successors and permitted transferees and assigns and if a party is a natural person, includes executors and personal legal representatives;

(j) where any obligation is imposed on, or any benefit ensures for, two or more persons, the obligation binds or ensures for the benefit of (as the case may be) those persons jointly and each of them severally;

(k) a reference to time is to local time in the capital city of the state of the Relevant Jurisdiction;

(l) if the time for performing an obligation under these Terms expires on a day which is not a Business Day, then time is extended until the next Business Day;

(m) a reference to State means the state of the Relevant Jurisdiction;

(n) words or expression used in these Terms (but not otherwise defined in these Terms) and defined in the Corporations Act have the meaning given to those terms in the Corporations Act;

(o) words or expression used in these Terms (but not otherwise defined in these Terms) and defined in the PPSA have the meaning given to those terms in the PPSA;

(p) time is of the essence of the parties obligations set out in these Terms;

(q) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislation or legislative provision substituted for, that legislation or legislative provision;

(r) No provision of these Terms will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms;

(s) a reference to any governmental or statutory body includes anybody which replaces, succeeds to the relevant powers and functions of, or which serves substantially the same purposes or objects as such body; and

(t) if the Customer is the trustee of a trust then the Customer is bound both personally and in its capacity as trustee.

2. APPLICATION

The Customer represents and warrants to the Secured Party that all information in the Application is true, complete and correct and in the event that any information as supplied is no longer true and correct then the Customer must immediately notify the Secured Party.

3. INVOICING

3.1 The Secured Party will Invoice the Customer for any goods and services supplied to the Customer. The amount payable by the Customer will be as set out in the Invoice issued by the Secured Party to the Customer or as set out in any other Transaction Document. For the avoidance of doubt, a Transaction Document may specify that a deposit is payable by the Customer.

3.2 On receipt of an Invoice, the Customer agrees that:

(a) if the Customer receives an Invoice which is under $1,000.00, it will pay the Invoice within 30 days of receipt of the Invoice or on such other date as agreed by the parties in writing (including in any other Transaction Document);

(b) if the Customer receives an Invoice which is over $1,000.00, it will pay the Invoice within 14 days of receipt of the Invoice or on such other date as agreed by the parties in writing (including in any other Transaction Document);

(c) if the Customer fails to pay the Invoice within the required timeframe as referenced in clause 3.2(a) or 3.2(b) (as the case may be), interest will be charged at a rate of 1.5% per month until payment of the Invoice is received by the Secured Party;

(d) if the Customer pays an Invoice over $1,000.00 via credit card, that an additional charge of 1.6% of the Invoice will apply;

(e) the Customer is not entitled to withhold payment or make any deduction from the Invoice amount in respect of any set-off or counterclaim; and

(f) payment is deemed to be received by the Secured Party when the cash is received or when the proceeds or other methods of payment are credited and cleared to the Secured Party’s bank account.

3.3 The debit balance of the Customer’s account with the Secured Party shall not exceed the credit limit approved by the Secured Party (which may be varied at any time at the Secured Party’s discretion), unless the Secured Party provides their prior written consent, which is offered or withheld at the Secured Party’s discretion.

3.4 The purchase price inclusive of GST for all goods and services supplied to the Customer by the Secured Party will be debited to the account of the Customer on the date of supply or as otherwise set out in any Transaction Document.

4. ORDER FOR GOODS OR SERVICES

4.1 An order given by the Customer to the Secured Party is binding on both parties, if:

(a) a written acceptance is signed for or on behalf of the Secured Party; or

(b) the goods are supplied by the Secured Party in accordance with the order.

4.2 An acceptance of the order by the Secured Party is considered an acceptance of these Terms by the Secured Party and the Customer and these Terms will override any conditions contained in the Customer’s order. The Secured Party reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the goods to the Customer. No order is binding on the Secured Party until accepted by it.

4.3 An order which has been accepted in whole or in part by the Secured Party cannot be cancelled by the Customer without obtaining the prior written approval of the Secured Party, which it may refuse in its absolute discretion.

5. DELIVERY

5.1 The times quoted for delivery by the Secured Party are estimates only and the Secured Party accepts no liability for failure or delay in delivery of goods. The Customer is not relieved of any obligation to accept or pay for goods by reason of any delay in delivery. The goods may be delivered by instalments at the discretion of the Secured Party.

5.2 All costs associated with delivery and freight are payable by the Customer.

5.3 Risk in accepting the goods passes on delivery to the Customer.

5.4 All Additional Charges are payable by the Customer in addition to the purchase price of the goods.

5.5 Return of goods will not be accepted by the Secured Party except by prior agreement in writing with the Secured Party. Any goods returned will be subject to a restocking charge of 10% of the purchase price of those goods.

6. OWNERSHIP OF SECURED PROPERTY

6.1 The Secured Party and the Customer agree that the legal and equitable ownership of the Secured Property shall remain with the Secured Party and will not pass until:-

(a) the Customer has paid the Secured Party all amounts owing for the Secured Property together with all other Secured Money in accordance with clause 3; and

(b) the Customer has met all other obligations owed to Secured Party in respect of all Secured Property as supplied by the Secured Party to the Customer.

6.2 Risk in the Secured Property passes to the Customer upon the Secured Property being supplied to, or coming into the possession of, the Customer. Until title to the Secured Property passes to the Customer, the Customer will have possession of any goods as a bailee.

6.3 Until payment for the Secured Property has been discharged, the Secured Party’s ownership or rights in respect of the Secured Property shall continue.

6.4 The Customer shall not grant or allow for any other Security Interest to be granted over the Secured Property in any way or otherwise grant any interest over the Secured Property whilst they remain the property of the Secured Party.

7. SECURITY

The parties acknowledge and agree that:

7.1 the Secured Property must be used by the Customer only for commercial purposes and are not used by the Customer for personal, domestic or household purposes;

7.2 the Customer grants the Secured Party a Security Interest over the Secured Property to secure the Secured Money;

7.3 the Secured Party has a PMSI in those items referred to in clause 1.1(i) of these Terms (together with their Proceeds) to secure the purchase price for such Secured Property;

7.4 the Secured Party’s Security Interest in the Secured Property covered by these Terms may be registered on the PPSR and the Customer agrees to do all things necessary and required by the Secured Party to effect registration of the Secured Party’s Security Interest on the PPSR in order to give the Secured Party’s Security Interest the best priority possible and anything else the Secured Party requests the Customer to do in connection with the PPSA without delay;

7.5 the Customer must not change its entity structure, ownership, name, address or other details set out in the Application without providing the Secured Party with at least 20 Business Days prior written notice;

7.6 the Secured Party’s Security Interest in the Secured Property extends to any Proceeds in all present and after acquired property including without limitation book debts and accounts receivable arising from the selling or hiring of the Secured Property;

7.7 any supply of Secured Property of any kind by the Secured Party to the Customer which is not specifically set out in any Transaction Documents but for which the Secured Party has or later issues an Invoice or any other documentation to the Customer is deemed to form part of and is covered by these Terms; and

7.8 the Customer irrevocably nominates constitutes and appoints the Secured Party and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Customer on behalf of and in the name of the Customer to do all things necessary and sign all such documents as may be necessary to deal with the Secured Property in accordance with the enforcement provisions of these Terms, the PPSA or otherwise, if the Customer is in default of these Terms or any Transaction Document.

7.9 ATTACHMENT

The Customer acknowledges and confirms that:

(a) the Secured Party has given value for the Secured Party’s Security Interest in the Secured Property, including by its promises under any Transaction Document or by providing or continuing to make available any financial accommodation to the Customer in accordance with these Terms or under any Transaction Document;

(b) nothing in these Terms is intended as an agreement that a Security Interest under this document attaches at a later time specified in section 19(2) of the PPSA; and

7.10 NO SUBORDINATION

The Customer acknowledges that nothing as contained in these Terms is intended as an agreement to subordinate any Security Interest that the Secured Party has in the Secured Property in favour of any person.

7.11 SECURITY INTEREST CONTINUES

If the Customer disposes of or otherwise deals or agrees to deal with any Secured Property, the Customer acknowledges that:

(a) the Secured Party has not:

(i) authorised any disposal or dealing or agreement to deal; or

(ii) agreed that any disposal or dealing or agreement to deal will extinguish any Security Interest held by the Secured Party; and

(b) the Secured Party’s Security Interest continues in the Secured Property despite the disposal or dealing or agreement to deal.

7.12 CUSTOMER TO PAY SECURED MONEY

The Customer must pay the Secured Money to the Secured Party:

(a) in accordance with these Terms as well as in accordance with any Invoice or other Transaction Document that obliges the Customer to pay the Secured Money; or

(b) if there is no agreement or no Event of Default has occurred (whether continuing or not):

(i) on demand, at a place and in a manner, reasonably required by the Secured Party; and

(ii) in immediately available funds and without set off, counter claims, conditions or deductions or withholdings unless required by any applicable law.

8. UNDERTAKINGS

8.1 UNDERTAKINGS REMAIN IN FULL FORCE

The obligations and undertakings in this clause 8 remain in full force from the date of these Terms for so long as the Secured Money or any other amounts are outstanding pursuant to these Terms or under any Transaction Document.

8.2 CUSTOMER’S UNDERTAKINGS

The Customer must:

(a) Proceeds

Ensure that any products are identifiable and traceable as products of the Secured Party.

(b) Accounts

Prepare and keep books and accounts in accordance with Australian approved accounting standards; and on demand, at the discretion of the Secured Party, make available for inspection and copying by the Secured Party, its books and accounts.

(i) Give to the Secured Party all details and information necessary to enable the Secured Party to make an effective registration to perfect its Security Interest and ensure that it continues to remain effective; and

(ii) at its own cost immediately register these Terms or any other Transaction Document with any Government Agency if that registration is necessary to perfect the Security Interests granted in clause 7 or protect the rights and priority of the Secured Party.

(d) Information

Give to the Secured Party promptly on demand:

(i) full particulars of all bank accounts it maintains;

(ii) any other information in the possession or under the control of the Customer that in the Secured Party’s reasonable opinion is relevant to the Secured Property or this document; and

(iii) a certificate signed on behalf of the Customer of the Customer certifying whether or not an Event of Default has occurred and, if one has occurred, full written particulars of the action taken or proposed to be taken by the Customer to remedy it.

(e) Further Information

Promptly on becoming aware of it, provide the Secured Party with full particulars of:

(i) any person taking steps to register or registering a financing statement in relation to the Secured Property; and

(ii) any steps being taken to move any Secured Property out of Australia; and

(iii) promptly, any other information about the Customer or its financial condition or business or operations that the Secured Party reasonably requests and in a form acceptable to the Secured Party.

(f) Insurance proceeds

Any money paid by an insurer under any Insurance towards the replacement, reconstruction or reinstatement of the Secured Property in respect of which the money is paid except to the extent to which the Secured Party may require it to be applied in payment or satisfaction of any part of the Secured Money whether or not it is due for payment.

(g) Financing Statements

Not without the prior written consent of the Secured Party permit any financing statement, other than in relation to the Secured Party, to be registered in respect of the Secured Property.

(h) Default

Not cause or permit any Event of Default to occur.

(i) Compliance with Laws and Regulations

Comply with its obligations in relation to the Secured Property, including:

(i) under any Security Interest over the Secured Property;

(ii) any law binding on it or affecting it;

(iii) all and any regulations, standards and requirements of any Government Agency binding on it or its business, that, if it failed to comply, will or may materially impair its ability to perform its obligations under these Terms; and

(iv) institute or defend any legal proceedings that the Secured Party may reasonably require to protect the Secured Property.

(j) Conduct of Business

Conduct its business in a proper and efficient manner and do everything to maintain its corporate or business existence in good standing.

(k) Trusts

If the Customer is a trustee of a trust then this clause 8.2(k) applies. The Customer shall not:

(i) default in the performance of its obligations as trustee of the trust;

(ii) release, dispose of or otherwise prejudice:

(A) The Customer’s right of indemnity in relation to the Secured Money against the property of the trust or beneficiaries; or

(B) Its equitable lien over the Secured Property;
and shall at the Secured Party’s request:

a. exercise its indemnity against an equitable lien over the property of the trust, and its indemnity against the beneficiaries (if any), in relation to the Secured Money; and

b. assign to the Secured Party those indemnities and that equitable lien and otherwise facilitate the subrogation of the Secured Party to those indemnities and that equitable lien in relation to the Secured Money;

(iii) cause or permit:

(A) any other trustee of the trust to be appointed;

(B) the trust to be terminated or its terms to be varied;

(D) the property of the trust to be resettled;

(E) the capital of the property of the trust to be distributed at any time or the income of the property of the trust to be distributed after an Event of Default has occurred;

(F) any property of the trust to be mixed with any other property.

9. DEFAULT

9.1 EVENTS OF DEFAULT

Each of the following events listed in this clause 9 is an Event of Default (whether or not it is in the control of the Customer):

(a) Obligations to Make Payment: the Customer fails to:

(i) pay or repay in accordance with its obligations under these Terms or any Transaction Documents any part of the Secured Money when due; or

(ii) comply with any of its obligations under these Terms or with any condition of any waiver or consent by the Secured Party under or in connection with these Terms.

(b) Misrepresentation: a representation, warranty or statement by or on behalf of the Customer in these Terms, or in a document provided under or in connection with these Terms, is not true in a material respect or is misleading in a material respect when made or repeated.

(d) Priority and Attachment

Other than by any act of the Secured Party, any Security Interest created by these Terms:

(i) ceases to have the priority that it purports to have under these Terms; or

(ii) ceases to secure the payment of the money or the performance of the obligations that it purports to secure.

(e) Compulsory Acquisition

(i) All or any material part of the Secured Property is compulsorily acquired by or by order of a Government Agency or under a law;

(ii) a Government Agency orders the sale, vesting or divesting of all or any material part of the Secured Property; or

(iii) a Government Agency takes a step for the purpose of any of the above or proposes or threatens to do any of the above and the relevant Customer fails to take or diligently pursue steps necessary or reasonably requested by the Secured Party for the purpose of preventing the occurrence of any of the events referred to in clauses 9.1(e)(i) or 9.1(e)(ii).

(f) Transaction Documents: any event of default (as that expression, or any equivalent expression, is defined in any Transaction Document) occurs;

(g) Natural Persons: if the Customer is a natural person and they die, they no longer have full legal capacity or they become incapable of managing their own affairs;

(h) Partnerships: if the Customer is a partnership and without the prior written consent of the Secured Party, the partnership is dissolved.

(i) Breach of Warranty: if the Customer breaks any terms, warranty, representation or covenant set out in these Terms.

10. ENFORCEMENT (RIGHTS OF SECURED PARTY FOLLOWING DEFAULT)

In addition to any other rights provided by law or under any other Transaction Document, at any time after an Event of Default has occurred:

(a) each Security Interest arising under these Terms becomes immediately enforceable;

(b) the Secured Party may at any time, by notice to the Customer, declare all or any part of the Secured Money to be due and payable immediately, on demand or at a later date as the Secured Party may specify in the notice; and

(i) may, in the name of the Customer or otherwise, at any time, do anything that the Customer, or if the Customer is a corporation or a trust, its directors or trustee (as the case may be), could do in relation to the Secured Property; and

(ii) has all other rights conferred by law in relation to the Secured Property.

11. EXCLUSION OF NOTICE OR TIME PERIOD

11.1 WHERE NOTICE OR TIME PERIOD IS NOT REQUIRED

Unless required by an applicable law that cannot be excluded:

(a) the Secured Party may exercise any right under these Terms or conferred by law without first giving any notice to the Customer or allowing the lapse of any period of time; and

(b) the parties expressly agree to dispense with any requirement under any law that notice be given or that the lapse of any period of time be allowed before any rights are exercised.

11.2 PPSA NOTICES

(a) Without limiting clause 11.1 the Secured Party is not obliged to give any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

(b) The Customer consents to the waiver of the requirement for notice under this clause 11.2 and waives any rights it has to receive a notice under sections 95, 118, 121(4), 130 and 157 of the PPSA.

(c) To the extent that Chapter 4 of the PPSA would otherwise apply to enforcement by the Secured Party of any Security Interest in the Secured Property, the parties agree that the following provisions of the PPSA are excluded:

(i) to the extent permitted by section 115(1) of the PPSA: sections 125, 132(3)(d), 132(4), 142 and 143 of the PPSA; and

(ii) to the extent permitted by section 115(7) of the PPSA: sections 132 and 137.

(d) The Customer consents to the waiver of the requirement for notice under any other provision of the PPSA that the Secured Party may notify to the Customer after the date of these Terms and waives any rights it has to receive that notice.

12. EXERCISE OF DEFAULT RIGHTS

12.1 NO HINDRANCE

The Customer must not cause or permit the Secured Party to be prevented or hindered from exercising its rights under these Terms.

12.2 PERFORMANCE OF OBLIGATIONS

The Secured Party or any person authorised by it may at the cost of the Customer do anything that the Secured Party determines is necessary or expedient to make good or remedy any breach by the Customer of any of the provisions of these Terms.

12.3 APPLICATION

The Secured Party may determine the order of application of the remedy proceeds received under or arising out of these Terms in its absolute discretion.

13. COSTS AND EXPENSES

13.1 TRANSACTION AND OTHER EXPENSES

The Customer must within five (5) Business Days pay or reimburse the Secured Party the amount of all costs and expenses incurred by the Secured Party for anything that must be done in connection to these Terms and whether or not at the request of the Secured Party.

14. INDEMNITIES

14.1 INDEMNIFY SECURED PARTY

The Customer must, within three (3) Business Days of demand, indemnify the Secured Party against any liability, loss, cost or expense incurred by the Secured Party (including legal costs on a solicitor owner Customer basis) as a result of:

(a) the occurrence of any Event of Default;

(b) any enquiry, investigation, subpoena (or similar order) or litigation with respect to the Customer or the transactions contemplated or financed under these Terms; or

14.2 SURVIVAL OF OBLIGATIONS

Each indemnity in this document is a continuing obligation, separate and independent from the other obligations of the Customer and survives the termination of these Terms.

15. ASSIGNMENTS AND TRANSFERS

15.1 ASSIGNMENTS AND TRANSFERS BY THE SECURED PARTY

The Secured Party may in its discretion and without notice or the Customer’s consent:

(a) assign any of its rights; or

(b) transfer by novation any of its rights or obligations, under these Terms to any other entity and the Customer irrevocably authorises the Secured Party to execute any document effecting a transfer by novation under 18.1(b) on its behalf, without any consultation with the Customer.

15.2 ASSIGNMENT AND TRANSFER BY THE CUSTOMER

The Customer must not assign or transfer any of its rights under these Terms without the prior written consent of the Secured Party.

16. REMEDIES

16.1 No failure to exercise, nor any delay in exercising, on the part of the Secured Party, any right or remedy under these Terms operates as a waiver, nor any single or partial exercise of any right or remedy prevents any further or other exercise or the exercise of any other right or remedy.

16.2 The rights and remedies provided in this document are cumulative and not exclusive of any rights or remedies provided by applicable law.

17. AMENDMENTS AND WAIVERS

Any provision of these Terms may be amended or waived only in writing with the consent of the Secured Party and any amendment or waiver is binding on all parties.

18. RELEASES

At the request in writing of the Customer and at the cost of the Customer, the Secured Party will release the Secured Property from the Security Interest created by these Terms if the Customer’s obligation to pay the Secured Money and perform all of the Customer’s other obligations to the Secured Party are satisfied and in the Secured Party’s reasonable opinion:

(a) there is no prospect that money or damages will become owing (whether actually or contingently) by the Customer to the Secured Party; and

(b) no payment towards the satisfaction of the Customer’s obligation to pay the Secured Money is likely to be void, voidable or refundable under any applicable law including any law relating to insolvency.

19. NO GUARANTEE AND NO LIABILITY

19.1 The Customer acknowledges and agrees that no promise, representation, guarantee, warranty or express or implied undertaking has been given or made by the Secured Party or any authorised person of the Secured Party in respect of the suitability of the goods and services provided to the Customer, and the Customer is aware and accepts those goods and services as provided.

19.2 The Secured Party provides no guarantee in respect of the delivery of the goods or services to the Customer, and the Secured Party will in no way be responsible for any direct or indirect loss incurred by the Customer in respect of a delay in delivery.

20. FURTHER ASSURANCES

The Customer must do all things (including completing and signing all documents) reasonably requested by the Secured Party that are necessary to give full effect to these Terms and the transactions contemplated by these Terms.

21. SEVERABILITY

Any provision of these Terms that is prohibited or unenforceable in any jurisdiction is ineffective to the extent of that prohibition or unenforceability. This does not invalidate or affect the validity and enforceability of that provision in any other jurisdiction nor the validity and enforceability of the remaining provisions of these Terms.

22. WAIVER AND EXERCISE OF RIGHTS

22.1 WAIVER

A right in favour of the Secured Party under these Terms, a breach of an obligation of the Customer under these Terms or the occurrence of an Event of Default can only be waived by a written instrument signed by the Secured Party. No other act, omission or delay of the Secured Party will constitute a waiver.

22.2 EXERCISE OF RIGHTS

A single or partial exercise or waiver by the Secured Party of a right relating to these Terms will not prevent any other exercise of that right or the exercise of any other right.

23. NOTICES

23.1 All notices authorised or required under these Terms to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party’s Address for Service or as the case may be at such other address as a party may from time to time notify to the other.

23.2 The following shall constitute proof of receipt:

(a) proof by posting by registered post; or

(b) proof of dispatch by email.

23.3 Receipt of a notice given under these Terms will be deemed to occur:

(a) in the case of a communication sent by pre-paid registered post, on the third Business Day after posting;

(b) in the case of an email, on the Business Day immediately following the day of dispatch.

23.4 If a notice is sent via post, it must also be sent via email.

23.5 Despite anything in this clause the Customer agrees to send any Notice in connection with a PPSA registration to the address for service specified in the registration.

24. FORCE MAJEURE

In the event the Secured Party is delayed in or prevented, in whole or in part from:

(a) performing any obligation or condition;

(b) exercising its rights, under these Terms, by reason of, or as a result of, any events outside the Secured Party’s control, then the Secured Party will be excused from performing such obligations or conditions and not be liable for any loss or damage suffered by the Customer during such period in which the Secured Party is so delayed or prevented and for a period of thirty (30) Business Days thereafter.

25. CREDIT LIMIT

25.1 For the avoidance of doubt, any credit limit of the Customer is to be determined at the sole discretion of the secured party and may be varied at any time at the Secured Party’s discretion.

25.2 The Customer agrees that the debit balance of its account shall not exceed the Credit Limit unless the Secured Party provides its prior written consent, which is offered or withheld at the Secured Party’s discretion.

25.3 If the Customer exceeds the Credit Limit the Secured Party reserves the right to suspend the provision of any further credit and the Customer will be in default under clause 9 of the Terms.

25.4 In determining the Credit Limit, the Secured Party may consider various factors such as the Customer’s credit history, financial statements and previous payment history. To assist in determining the Credit Limit, the Customer agrees to provide any and all reasonable documentation and information to the Secured Party as required.

26. GOVERNING LAW AND JURISDICTION

26.1 Relevant Jurisdiction

The law of the Relevant Jurisdiction governs this document.

26.2 Non-exclusive jurisdiction

The parties submit to the non-exclusive jurisdiction of the courts of the Relevant Jurisdiction and Australia.

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