Conditions of Sale

Lexim International Pty Ltd (ACN 649 890 933) / Conditions of Sale (Effective 9 March 2022)

  1. Definition In these terms and conditions:

    1. “Goods” means all equipment, products and services agreed to be supplied by the Seller and the Buyer (including pursuant to a quotation or email or letter of offer accepted by the Buyer); “GST” means Goods and Services Tax or other tax that is substituted or replaces the GST tax; “Buyer” means the person to whom any quotation is made, any person offering to contract with the Seller on these Conditions of Sale and any person who purchases Goods from the Seller; “Seller” means Lexim International Pty Ltd (CAN 649 890 933); “Supplier” means the Seller; “Contract” means the Seller’s pricing email or letter of offer to which the supply of Goods relates, as updated in writing by mutual agreement of the parties, the attachments (if any) to that letter and these Conditions of Sale; “PPS Act” means the Personal Property Securities Act 2009 (Cth).
  2. Entire Agreement

    1. Unless the Seller otherwise agrees in writing, the Contract contains the only terms and conditions of sale to which the Seller will be bound in connection with the supply of Goods to the Buyer.
    2. The Buyer agrees that the Conditions of Sale contained in this Contract will in all circumstances prevail over the Buyer’s terms and conditions of purchase or supply (if any).
    3. These Conditions of Sale supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods including, but not limited to, those relating to the performance of the Goods or the results that ought to be expected from using the Goods. 
    4. Without limiting any other mode of acceptance of this Contract exercised by the Buyer, the Buyer acknowledges that by accepting the delivery of Goods and/or the credit terms offered by the Seller, the Buyer by such conduct agrees to be bound by the Conditions of Sale of this Contract. 
    5. The Seller may change these Conditions of Sale from time to time. These Conditions of Sale and any changes to the Conditions of Sale will be shown on the website, together with the date upon which the new conditions become effective. It is the Buyer’s obligation to check the Seller’s website or ask the Seller to provide the most up to date Conditions of Sale at the time the Buyer enters into a Contract. By entering into a Contract after the date upon which new Conditions of Sale become effective the Buyer accepts and is bound by the changed Conditions of Sale for that Contract and future Contracts. If the Buyer does not accept the changes to the Conditions of Sale, it may notify the Seller to close its account. No amendment or variation of the Contract, other than amendment or variation to the Conditions of Sale as set out in clause 2, is valid or binding on a party unless made in writing and executed by both parties.
  3. Inspection & Acceptance of Goods

    1. It is Buyer’s responsibility when accepting this Contract or ordering to ensure the Goods ordered conform the Buyer’s requirements and are suitable and sufficient for Buyer’s purpose.
    2. The Buyer must inspect the Goods on delivery or collection.
    3. If the Buyer identifies any damages or shortages, the Buyer must inform the Seller in writing within 7 days of delivery, providing details.
    4. Other than by agreement, the Seller will only accept returned Goods if the Seller is satisfied that those Goods are defective and if required, have carried out an inspection.
    5. Subject to the Buyer’s compliance with this clause and/or the Seller’s agreement, the Buyer may return the Goods and the Seller will, as appropriate, repair, or replace, or refund the Goods or part of them.
    6. The Seller will be under no liability or further obligation in relation to the Goods if:
      1. The Buyer fails to provide notice as set above; and/or 
      2. The Buyer makes any further use of the Goods after giving such notice under the clause above relating to damages and shortages; and/or
      3. The defect arises because the Buyer did not follow the Seller’s oral or written communications about the storage, handling and usage of the Goods; and/or
      4. The defect arises from normal wear and tear of the Goods; and/or
      5. The defect arises from misuse or alteration of the Goods, negligence, wilful damage or any other act by the Buyer, Buyer’s employees or agents or any other third parties. 
      6. The Buyer bears the risk and cost of returning the Goods. 
      7. Acceptance of the Goods will be deemed to be upon inspection of them by the Buyer and in any event within 1 day after delivery.
      8. To the extent permitted by law and not withstanding anything else in the Contract, the Seller excludes all liability whatsoever to the Buyer arising out or in any way connected with a Contract for any loss of profits, loss of good will, loss of reputation, loss of value in any intellectual property, damages or liquidated sums payable pursuant to other agreements, other economic losses, or any consequential or indirect losses of any kind howsoever arising and caused by breach of statute, breach of contract, negligence or other tort.
  4. Delivery & Responsibility to Purchase

    1. The Seller will make all reasonable efforts to have the Goods delivered to the Buyer on or about the date or within the time frame forming the Contract.
    2. The seller shall not be liable for any failure to deliver or delay in delivery for
      any reason.
    3. The Buyer will be contractually obliged to take delivery of and pay for all
      Goods ordered by it from the Seller, and which the Seller supplies or makes
      available to the Buyer in accordance with the Contract. Any order placed by
      the Buyer with the Seller is irrevocable.
    4. Where the Buyer does not take delivery of or collect Goods from the Seller
      upon such Goods becoming available to the Buyer at the agreed delivery
      point, the Buyer will pay the Seller for additional storage costs and
      reimburse the Seller any demurrage, transport or futile delivery costs
      incurred by the Seller, subject to any contrary written agreement contained
      elsewhere in the Contract.
  5. Risk

    1. Unless otherwise agreed in writing, all risk in and to the Goods purchased shall pass to the Buyer upon the unloading of the Goods at the Buyer’s or such other delivery point agreed in writing by the parties.
    2. Without in anyway limiting the operation of the foregoing, upon delivery of the Goods to the Buyer or their agent or a carrier commissioned by the Buyer, the Buyer covenants and warrants to the Seller that, in the storage and handling of the Goods, the Buyer and his agents and carriers shall comply with all relevant environmental laws and regulations, and comply
      with all necessary and/or relevant permits or licences pertaining to the storage and handling of the Goods, and the Buyer shall ensure where the Goods comprised of bulk chemicals, its storage tanks and vessels, and the hoses, pipes, valves and other components used for the storage or transfer of those Goods are properly installed and maintained so as to prevent any death, injury or loss of containment during the processes of unloading the Goods into and storing those Goods in those tanks and vessels.
    3. If the Seller does not receive forwarding instructions sufficient to enable it to dispatch the Goods within 14 days of notification to the Buyer that they are ready, the Buyer shall be deemed of taken the delivery of the Goods from such date. The Buyer shall thereafter be liable for reasonable storage charges paid monthly on demand.
    4. Where the Buyer resells or distributes the Goods to any third parties, it shall be responsible for ensuring that it provides detailed instructions to those third parties regarding the safe storage, handling and use of those Goods and any cylinders, drums, or other packaging in which those Goods are stored.
  6. Title

    1. Title in and to the Goods shall not pass on to the Buyer until payment in full for all Goods supplied is received in full and in cleared funds.
    2. The Buyer acknowledges that until the title in and to the Goods passes to the Buyer in accordance with this clause, the Buyer holds the Goods as bailed of the Seller and that a fiduciary relationship exists between the Buyer and the Seller. Until the Buyer as paid the Seller in full for the Goods supplied, the Seller remains the owner of such Goods.
    3. Until title in and to the Goods passes to the Buyer in accordance with this clause the Buyer shall store the Goods separately and in such manner that they are clearly identified as the property of the Seller. In addition to any rights the Seller may have under Chapter 4 of the PPS Act, the Seller shall be entitled at any time until title in and to the Goods passes to the Buyer to demand the return of the Goods, and except where the Buyer is an individual, shall be entitled to without notice to the Buyer and without liability to the Buyer to enter (or have its representatives enter) any premises occupied by the Buyer and its representatives for this purpose. If there is any inconsistency between the Seller’s rights under this clause 6.3 and its rights under Chapter 4 of the PPS Act this clause 6.3 prevails.
    4. The Buyer acknowledges that if it sells, leases or otherwise deals with Goods or products incorporating the Goods before title in and to the Goods is passed to the Buyer in accordance with this clause, it shall hold the proceeds of sale, lease or any such dealing on trust for the Seller in a separate account up to the amount owed by the Buyer to the Seller in relation to such Goods.
    5. If title in and to the Goods has not passed to the Buyer in accordance with this clause, the Buyer’s implied rights to sell, use or consume the Goods in its operations shall immediately terminate upon the happening of any of the events stipulated in clause 9.2.
    6. The Buyer acknowledges that it hereby grants to the Seller a security interest (for the purposes of the PPS Act) in the Goods as supplied by the Seller hereunder and proceeds described in subclause 6.4 until title passes to the Buyer in accordance with this clause 6, and in all returnable containers, cylinders, drums, packaging and storage vessels in which the Goods are made available such security interest to apply until such storage
      items are returned to the Seller in good condition and proper working order. This security interest secures all moneys owing by the Buyer to the Seller under any contract or otherwise. The Buyer acknowledges that each security interest over Goods (or their proceeds) arising under this clause 6 is a “purchase money security interest” under the PPS Act to the extent that it
      secures payment of the amounts owing in relation to those particular Goods. The Buyer will do anything reasonably required by the Seller to enable the Seller to register these security interests, with the priority the Seller requires, and to maintain those registrations.
    7. The security interests arising under this clause 6 attach to the Goods and storage items when the Buyer obtains possession of the Goods and the storage items and the parties confirm that they have not agreed that any security interest arising under this clause 6 attaches at any later time. Each security interest arising hereunder is a continuing security interest is not
      extinguished or in any way diminished even if the Goods or any part of them are processed or comingled with or become part of another product. Such security interests secure the due and punctual payment of all moneys payable to the Seller by the Buyer under the Contract and, in respect of the storage items, the prompt return of those items in good condition and in proper working order and in accordance with the Contract.
  7. Price

    1. Unless otherwise agreed in writing, the price charged for the Goods shall be determined and adjusted in accordance with the Seller’s final pricing letter / email or offer forming part of the Contract. Without limiting its rights in clause 9, the Seller may in its sole discretion charge interest on overdue amounts at the rate of 1.5% per calendar month (pro-rated to part of a month), compounding monthly and commencing from the date on which invoiced amount becomes overdue.
  8. Force Majeure

    1. Deliveries may be totally or partially suspended by the Seller during any period in which the Seller may be prevented or hindered from manufacture, delivery or supply through any circumstances outside the Seller’s reasonable control or where such manufacture, delivery or supply is rendered materially more expensive by such circumstances. Circumstances beyond the Seller’s reasonable control shall include, without limitation, strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, inputs, equipment, facilities or services on usual terms, power or
      water shortage, accidents or breakdowns of plant or machinery, delays, congestion, blockages at any sea ports or transport depots, software, hardware or communication network. The Seller shall not incur any liability to the Buyer in respect of such suspension.
  9. Payment and Default

    1. Subject to sub-clause 9.2 hereof, and unless otherwise agreed in writing all accounts shall be payable within 7 days of delivery, or otherwise as identified on any statement of account issued by the Seller.
    2. If any of the events set out in 9.2.1 to 9.2.5 occur, the Seller may at its option and absolute discretion withhold further deliveries or cancel the Contract, without notice to the Buyer and without prejudice to any other action or remedy which the Seller has or might otherwise have had, and/or open a new trading account for the Buyer with cash in advance terms.
      1. The Buyer makes default in any payments or is unable or states that it is unable to pay its debts as and when they fall due.
      2. The Buyer being an individual commits an act of bankruptcy or has a controller or trustee appointed in respect of the Buyer’s estate or any part of the Buyer’s property or assets.
      3. The Buyer being a company passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it.
      4. A receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Buyer.
      5. The Buyer experiences an analogous event having substantially similar effect to any of the events specified above. In such circumstances all moneys owing and outstanding to the Seller on any account whatsoever and irrespective of whether the due date on any statement of account has occurred or passed shall become immediately due
        and payable. The Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing payment of any overdue debt by the Buyer to the Seller (including enforcing any security
        interest under this Contract), including without limitation legal costs on a solicitor and own client basis and the costs charged to the Seller by a debt
        collection agency and/or bailiff.
    3. Not withstanding sub-clause 9.1 hereof the Seller may at all times in its sole and unfettered discretion and without being under any duty or obligation to assign reasons therefore review, alter or terminate the Buyer’s credit limit or payment terms without notice. Without limiting the generality of the
      foregoing, the decision of the Seller shall be final and the Seller accepts no liability or responsibility for any loss howsoever arising, incurred by the Buyer due to the operation of this condition.
  10. General Lien

    1. In addition to any right of lien to which the Seller may be entitled under the common law, the Seller shall be entitled to exercise a general lien over all items in its possession belonging to the Buyer until the Buyer has paid in full for all Goods supplied by the Seller to the Buyer. The Seller may in its sole discretion sell any item that is subject to the said lien, provided that the Seller shall pay to the Buyer any surplus proceeds that are realised by it from a sale of some such items after discharging in full all moneys outstanding to the Seller. The Buyer acknowledges that the Seller has a security interest (for the purposes of the PPS Act) in these items, and the proceeds of these items, until the Buyer has paid in full for all Goods supplied by the Seller in accordance with this clause 10. The Buyer will do anything required by the Seller to enable the Seller to register this security interest, with the priority the Seller requires, and to maintain that registration. Despite this requirement for registration of this security interest, and regardless of whether or not it is actually registered, the Seller may perfect this security interest by possession of the relevant items.
  11. Waiver

    1. No failure to exercise nor any delay or omission in exercising any right, power or remedy by the Seller operates as or constitutes a waiver. A single or partial exercise by the Seller of any right, power or remedy does not preclude any other or further exercise by it of that or any other right, power or remedy. A waiver is not valid or binding on the Seller unless made in writing. No failure by the Seller to exercise, nor any delay or omission by the Seller in exercising, any right, power or remedy, nor any representation
      made or conduct carried out by the Seller under the Contract or in
      connection with the supply of the Goods or any of them shall constitute or provide grounds for common law or equitable estoppels. 
  12. Severance

    1. If any provision of this Conditions of Sale or its application to any person or circumstance is or becomes invalid, illegal or unenforceable provision shall so far as possible be read down to such extent as may be necessary to
      ensure that it is not valid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these Conditions of Sale shall not in any way be affected or impaired.
  13. Governing Law

    1. The supply of Goods under these Conditions of Sale is governed by the law of the State of Victoria (Australia) and the Seller and the Buyer submit to the non-exclusive jurisdiction of the courts of the State of Victoria (Australia).
  14. Transaction Tax

    1. Where a transaction tax, including a goods and services tax (“GST”) and any transaction taxes that come into existence after the date of these Conditions of Sale, applies to any supply made under these Conditions of Sale, the Seller may recover from the Buyer an additional amount on account of that transaction in accordance with clause 9.
  15. Change of Laws

    1. Without limiting clause 14, if any of the Seller’s costs of:
    2. Manufacturing, importing, supplying or transporting the Goods; or
    3. Procuring raw materials, services or inputs directly related to the activities in clause 15.2, increase as a result of compliance by the Seller, the Seller’s affiliates, and related bodies or corporate, or third parties, with:
    4. The introduction of or any change (including a change in interpretation) in any federal, state, local or other law or regulation or order, including any introduction of or a change in a tax; or
    5. Any introduction of or change in of a scheme for management or reduction of greenhouse gas emissions or concentrations, or water use conversation or management, Then the Seller may, by notice to the Buyer, increase the Price for the Goods to the extent required to pass through such increased costs (which may include, without limitation costs of acquiring permits or credits or costs of required plant modifications or additions). Such cost increase shall take
      effect immediately from the date such notice is provided.
  16. Miscellaneous

    1. Addition terms relating price, delivery date / time frame, place(s) of
      delivery, delivery quantities, purchasing deadlines, INCO terms, documents and Goods specifications and other commercial matters are as indicated in the pricing letter / email or letter of offer to which the supply of Goods relates, as updated in writing by the mutual agreement of the parties.
  17. Confidentiality

    1. The Buyer and the Seller agree that neither of us will disclose to an
      “interested person” (as defined in section 275(9) of the PPS Act), or any other person, any information of the kind described in section 275(1) of the PPS Act.
  18. Enforcement of Security Interests

    1. If Chapter 4 of the PPS Act would otherwise apply to the enforcement of the security interests created under the Contract, the Buyer agrees that the provisions referred to in section 115(1) of the PPS Act are hereby contracted out by the parties and will not apply.
  19. Notices under PPS Act

    1. The Seller does not need to give the Buyer any notice under the PPS Act (including a notice of a verification of statement) unless a notice is required by the PPS Act and that requirement cannot be excluded or contracted out of.
  20. Hardship

    1. For the purposes of this clause 20, “Hardship Event” means:
      1. Any changes in raw material inputs outside of the manufacturer’s control which leads to increased costs to the Seller in sourcing the Goods from a manufacturer in a country outside Australia, including but not restricted to increases in fuel prices, energy costs, raw material cost or freight and transport costs; and/or
      2. Any changes to or introduction of new national, central or regional laws, regulations or policies in a country outside Australia which lead to increased costs to the Seller in sourcing the Goods from a manufacturer or supplier in
        that country, including but not restricted to increase in government charges, taxes, excises, or any other duties or charges, or any change or revaluation in the medium or long term exchange rate between the local currency in the relevant country and the Australian dollar (“AUD”) or United Stated dollar (“USD”).
    2. If, at any time during the supply period to which the Contract relates, a Hardship Event occurs, the Seller may notify the Buyer of such occurrence and request a meeting to discuss appropriate changes to the terms of the Contract (including pricing terms or delivery dates) or adjustments to the supply price in light of such Hardship Event (such notice, a Hardship Notice).
    3. The Buyer is not obliged to agree to any change to the terms of the Contract as a result of Hardship Event, however, if the parties are unable to reach agreement on appropriate changes to the Contract price or other terms of the Contract within 14 days of the date of the Hardship Notice from the Seller, and the Seller is not prepared to continue supplying the Goods, then the Seller may suspend supply of the Goods for the balance of the term of this Contract.