Terms and Conditions of Sale
General Terms and Conditions of the Elexis Pty Ltd - As of: July 2020 -
1. Application 1.1 These General Terms and Conditions (hereinafter "Conditions") constitute an exclusive statement of the agreement between Elexis Pty Ltd (hereinafter "Elexis") and the customer with respect to the sale of Elexis’ goods and services, despite any provisions to a contrary effect in any of the customer's order forms or other documents and even if they are not referred to in subsequent contracts. Any terms and conditions of the customer that conflict with, supplement, or deviate from these Conditions shall not become part of the contract unless their application is expressly approved by Elexis in writing. These Conditions shall apply even if Elexis accepts a delivery or service from the customer without reservations whilst being aware of the customer's conflicting or deviating terms and conditions.
1.2 Agreements which supplement or deviate from these Conditions and which are made between the customer and Elexis for the performance of a contract must be set out in writing in the contract. This also applies to the cancellation of this requirement of the written form.
1.3 Any rights beyond these Conditions to which Elexis is entitled by law shall remain unaffected.
1.4 The following definitions apply unless the context requires otherwise: (a) "Australian Consumer Law" means the Competition and Consumer Act 2010 (Cth), Schedule 2. (b) "customer" means the person or company that purchases goods or services from Elexis under a contract arising in accordance with clause 2 of these Conditions. (c) "GST Law" has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and terms used which are not defined in these Conditions, but which are defined in the GST Law, have the meanings given in the GST Law.
2. Offer and formation of contract 2.1 Offers from Elexis shall be subject to change and non-binding, unless they are expressly stated to be binding.
2.2 Pictures, drawings, information as to weight, measurement, performance and consumption as well as other descriptions of the goods in the documentation pertaining to the offer shall be approximations only, unless they are expressly stated to be binding. Subject to Elexis’ obligations under the Australian Consumer Law, they do not constitute an agreement on, or guarantee of, the corresponding quality of the goods and Elexis is not bound as to these details or their accuracy.
2.3 Elexis reserves all proprietary rights and copyrights in any offer documents. Such documents may not be made available to any third party.
2.4 Orders from the customer shall be binding. A contract for sale will arise upon Elexis’ acceptance of the customer's orders by sending a written order confirmation, by Elexis making delivery of the goods or providing the services ordered.
2.5 Executing orders according to the documents to be provided by the customer shall require written approval by Elexis.
2.6 Contracts that are concluded shall oblige the customer to accept and pay for the goods or services ordered.
3. Prices, payment, set-off
3.1 Subject to clause 3.2, the agreed price shall prevail. Unless stated otherwise, the price quoted to customers is exclusive of GST. Also not included in the price shall be the costs for packaging, freight, insurance, customs and public levies. These costs as well as any other ancillary costs shall be invoiced to and paid for separately by the customer.
3.2 For goods and services that shall not be performed within a period of four months after entering into a contract for sale, Elexis shall be entitled to adjust the price in line with any increases in wages and in the cost of materials that may have occurred during that period. The same shall apply for services that are to be provided as part of continuous obligations. If Elexis has agreed with the customer that the prices shall depend on specific price factors, for example, raw material prices, changes in the price factors can lead to price adjustments, irrespective of the performance period. 3.3. Unless otherwise agreed, payment must be made within 30 days after the date of the invoice. Elexis shall, however, be entitled to make the delivery of outstanding deliveries or the provision of services contingent upon pre-payment or the provision of security if no previous business relationship exists with the customer, deliveries are to be made abroad, the customer's registered office is abroad or if there are any other reasons that give Elexis reason to doubt that payment will be made promptly after delivery or provision of the services.
3.4 If after the contract has been entered into Elexis becomes aware of circumstances that could considerably reduce the customer's creditworthiness and which could endanger the payment of outstanding receivables of Elexis by the customer under the individual contract, Elexis shall be entitled to refuse to continue to perform the contract until the customer makes payment or provides security for such. If the customer is in default of payment, all the receivables of Elexis that are outstanding with the customer shall become due immediately.
3.5 Payment shall be deemed made on the date on which Elexis receives the amount owed in cleared funds. When paying by cheque, payment shall only be deemed made after the cheque has been presented and Elexis has received the amount in cleared funds. Discount charges and other cheque costs shall be borne by the customer. In the event of default of payment, Elexis is entitled to charge interest from the payment due date to the date of payment (calculated on a daily basis) at the per annum percentage rate charged by Elexis’ [Australian bankers for overdraft facilities above $100,000 plus 2%.] The right to assert a further claim for damages is not excluded.
3.6 Elexis shall be entitled to credit payments made by the customer towards the customer's oldest debt first. If costs and interest have already accrued, Elexis shall be entitled to credit the payment towards the costs first, then towards interest, and finally towards the principal claim.
3.7 Counterclaims of the customer may only be set off or used to assert a right of retention by the customer if they have become final by virtue of a judgment or if they are undisputed. A right to retain may be asserted by the customer only if the customer’s counterclaim is based on the same contractual relationship.
3.8 Unless stated otherwise, all consideration provided under these Conditions and any contract for sale formed in accordance with clause 2 is exclusive of GST. If GST is payable by the party making the supply (supplier), the recipient must, upon receipt of a tax invoice from the supplier, pay the supplier an amount equal to the GST payable on that supply.
4. Deliveries 4.1 Delivery periods and dates shall only be binding for Elexis if Elexis explicitly states or confirms that they are binding. Agreed delivery periods shall be deemed met if the goods have been handed over to the person in charge of the transport at Elexis’ registered office or at one of Elexis’ warehouses before this period has expired or if Elexis has provided notification that they are ready for dispatch but have not left the registered office or warehouse because the customer has declared that it will not accept the goods.
4.2 If making the agreed deliveries or providing the services of Elexis requires the cooperation of the customer, the customer shall ensure that Elexis is provided with all the necessary and appropriate information and data within good time and that such is of the required quality. If programming is required, the customer shall provide Elexis with the necessary computer processing power, test data and data inputting capacities within good time and to a sufficient extent.
4.3 The delivery period shall not start before all the documents, information, approvals and permits that are to be provided by the customer have been provided in full and any technical issues have been clarified and any agreed down-payment has been received. As a prerequisite for compliance with the delivery period or the delivery date, the customer must perform its other obligations properly and in due time. Compliance with the agreed delivery deadlines and delivery dates is subject to the condition that Elexis is supplied by its own suppliers in due time and properly. Any changes or amendments that are subsequently agreed with Elexis may result in a reasonable extension of the agreed delivery dates.
4.4 Elexis shall be entitled to make reasonable part deliveries and provide partial services. Unless otherwise expressly agreed, deliveries and services ahead of schedule shall be allowed.
4.5 If the customer is in default of acceptance or violates other duties to cooperate, Elexis can claim compensation for the damage caused including any additional expenditure and storage costs. Any other claims remain unaffected. Elexis shall be entitled, after setting a reasonable subsequent deadline, to otherwise dispose of the goods and to supply the customer with new goods within a reasonable extended deadline.
5. Passing of risk/dispatch 5.1 The risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the latest when the goods are handed over to the customer or, if it is agreed that the goods will be shipped, upon the handing over of the goods to the shipping company, freight carrier or to any other person instructed to carry out the dispatch. This shall also apply to part deliveries or if it has been agreed that the dispatch is “freight paid” or free of charge. In the absence of written instructions from the customer, Elexis shall be entitled to choose the carrier and the itinerary at its own discretion and after a due assessment of the circumstances. At the request and expense of the customer, Elexis shall take out transport insurance to insure the goods against the risks specified by the customer.
5.2 If there is a delay in handing over or dispatch for reasons for which the customer is responsible, the risk shall pass to the customer on the day the goods are ready to be dispatched and Elexis informs the customer of such. 5.3 If Elexis chooses the type of dispatch, the dispatch route and/or the person to carry out the dispatch, Elexis shall only be liable for wilful misconduct or gross negligence resulting from this choice.
6. Retention of title 6.1 The goods supplied remain the property of Elexis until all amounts owed to Elexis by the customer as a result of the business relationship has been fully paid. If Elexis’ obligations to be performed include delivering software, up until payment in full has been made of any amounts owed, the customer shall in any case only be granted a revocable usage right. Amounts owing also include claims under cheques and bills of exchange, as well as current-account claims. The customer shall be obliged to handle all goods to which title is retained, and as long as title is retained, with due care. In particular, the customer is obliged to sufficiently insure the goods at the customer’s own expense against damage by fire, water, and theft at their replacement value. The customer hereby assigns to Elexis all claims for compensation arising from such insurance. Elexis hereby accepts the assignment. If an assignment is not allowed, the customer hereby irrevocably instructs its insurer to make payments, if any, only to Elexis. This does not affect any further claims of Elexis. Upon request, the customer must provide Elexis with evidence of the currency of the insurance policy.
6.2 The customer shall only be allowed to sell the goods which are subject to retention of title in the ordinary course of business. The customer shall not be entitled to pledge the goods which are subject to retention of title, to transfer them by way of security or to make any other dispositions which may jeopardize Elexis’ ownership. In the event of any attempted or actual enforcement of security interests or attempt to levy execution against the goods by third parties, the customer must notify Elexis without undue delay in writing and provide all the information required, advise the third party of Elexis’ property rights and assist with the measures taken by Elexis to protect the goods which are subject to retention of title. The customer shall bear any costs for which it is responsible and which are necessary for the removal of the security interest and the recovery of the goods, if and to the extent that these costs cannot be obtained from the third party.
6.3 The customer hereby assigns to Elexis all receivables and other proceeds arising from the resale of the goods, including all ancillary rights, irrespective of whether the goods which are subject to retention of title are resold without or after further processing. Elexis hereby accepts this assignment. In the event that such assignment is not allowed, the customer hereby irrevocably instructs the thirdparty debtor to make payments, if any, only to Elexis. The customer has the authority, which may be revoked at any time, to collect the receivables assigned to Elexis as a trustee on behalf of Elexis. All amounts collected must be remitted to Elexis immediately. Elexis may revoke the customer’s authority to collect receivables and its right to resell the goods if the customer fails to properly perform its payment obligations to Elexis, if the customer is in default of payment or stops payment, or if a petition is filed for the institution of insolvency proceedings against the assets of the customer. Any resale of these receivables is subject to prior approval by Elexis. The customer’s authority to collect shall expire with the notification of the assignment to the third-party debtor. In the event of a revocation of the authority to collect, Elexis may request that the customer disclose all receivables assigned, as well as the respective debtors' names, provide all information necessary for collection, provide the related documents and inform the debtors of the assignment.
6.4 In the event of default of payment on the part of the customer, Elexis shall be entitled to rescind the contract without prejudice to its other rights. The customer must immediately grant Elexis, or any third party commissioned by Elexis, access to the goods that are subject to retention of title, surrender such goods and inform Elexis where these goods are located. After a timely warning to such effect, Elexis may otherwise dispose of the goods that are subject to retention of title for the purpose of satisfying its due claims against the customer.
6.5 Any processing or alterations made by the customer to the goods which are subject to retention of title shall always be deemed made on behalf of Elexis. The customer’s right to acquire ownership of the goods which are subject to retention of title continues to exist as a right to acquire ownership of the processed or altered item. If the goods are processed, combined or mixed with other goods that are not owned by Elexis, Elexis shall acquire a co-ownership interest in the new item that is equal to the ratio of the value of the goods supplied to the value of the other items processed at the time of processing. The customer shall store the new items on behalf of Elexis. In all other respects, the item created through processing or alteration shall be governed by the same provisions as the goods that are subject to retention of title.
6.6 The customer grants Elexis a security interest for the purposes of the Personal Property Securities Act 2009 (Cth) Australia ('PPSA') in all goods which are subject to retention of title under these Conditions, being a purchase money security interest in the goods and their proceeds.
6.7 The customer must: (i) promptly sign any documents and provide all information reasonably required by Elexis to register a financing statement or financing change statement on the PPSR or that Elexis may require in connection with such registrations; (ii) notify Elexis in writing of any proposed change to its name or address at least 7 days before the changes takes effect; (iii) indemnify, and upon demand reimburse, Elexis for all expenses incurred in registering a financing statement or financing change statement on the PPSR, releasing any goods from a security interest perfected by such registration or any other action taken by Elexis to comply with the PPSA (including complying with a demand given under section 178 of the PPSA) or to protect its position under the PPSA.
6.8 The customer waives its rights to receive a verification statement in accordance with section 157 of the PPSA.
6.9 Elexis is not obliged to give and the customer waives its rights to receive notices or statements under sections 95 (notice of removal of accession), 121(4) (enforcement of liquid assets – notice to grantor), 130 (notice of disposal), 132(3)(d) (contents of statement of account after disposal) and 132(4) (statement of account if no disposal) of the PPSA.
6.10 Sections 125, 142 and 143 of the PPSA do not apply to the enforcement of any security interest arising out of these Conditions or any contract of sale.
6.11 Where Elexis has rights in addition to those in chapter 4 of the PPSA, those rights will continue to apply and, in particular, will not be limited by section 123 of the PPSA.
7. Claims for quality defects and liability 7.1 Elexis shall manufacture its products according to the state of the art in technology applicable at time of entering into the contract. Any intended usage that goes beyond the customary usage of the products or that requires a quality that deviates from the norm, in particular, any usage that is relevant for safety purposes, for example, aerospace or automobile usage, must be agreed in advance in writing.
7.2 All implied or imposed guarantees, conditions and warranties are excluded to the maximum extent permitted by law. Elexis will compensate the customer for loss suffered by it as a result of being supplied with goods by Elexis that have a Safety Defect, in accordance with Part 3-5 of the Australian Consumer Law.
7.3 The customer must check the delivered goods upon receipt and notify Elexis without undue delay and in writing upon receipt of the goods of any obvious defects and defects that could be identified during such inspection. The customer shall inform Elexis in writing of any hidden defects without undue delay after they have been discovered. The notification shall be deemed without undue delay if made within two weeks after delivery for obvious defects and defects that could be identified during a proper inspection or after discovery in the event of hidden defects; to meet the deadline, the dispatch of the notification or complaint shall suffice. Subject only to any guarantee or warranty imposed or implied by the Australian Consumer Law or any legislation which confers a right which cannot be modified or excluded by agreement, if the customer fails to carry out a proper inspection and/or notification of the defects, Elexis shall not be liable for the defect. When reporting defects to Elexis, the customer must supply a detailed written description of the defects.
7.4 Unless otherwise agreed, the customer shall be obliged to initially deliver the goods at its own expense to Elexis so that the defects can be examined. The expenses that are required for the inspection and subsequent remedy, in particular transportation, travel, labour and material costs shall only be borne by Elexis if it is determined during the inspection that a defect actually exists and provided these expenses are not increased due to the fact that the customer took the goods to a different location than the original delivery address. Personnel and material costs claimed by the customer in this connection shall be charged on the basis of net costs.
7.5 Subject to this clause 7 and to the extent permitted by law, the liability of Elexis for any defect in goods or services or for any failure to comply with a consumer guarantee is limited, at Elexis option, for goods, to the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired and, for services, to the supplying of the services again or the payment of the cost of having the services supplied again. Further, to the maximum extent permitted by law, Elexis is not liable for any special, indirect, incidental, punitive, exemplary or other consequential loss, including any loss of revenue, loss of data or lost opportunity incurred by the customer in connection with the supply of goods or services under a contract or in tort (including negligence) where such loss is not reasonably foreseeable and does not arise naturally or in the usual course.
7.6 Claims for defects shall not exist with respect to defects that are due to natural wear and tear, to improper handling by the customer or a third party, or to changes or repairs to the goods that have been carried out by the customer or a third party in an improper manner. The same shall apply to defects which can be attributed to the customer or which arise as a result of technical reasons other than the original defect. The customer shall, in particular, comply with the operational, storage and/or maintenance recommendations provided by Elexis or the manufacturer.
7.7 Elexis shall not be liable for loss or damage for which it is not responsible nor for any loss or damage resulting from any act or omission on the part of the customer, or the employees, contractors or agents of the customer, in particular, it shall not be liable for damage that is caused by improper usage or handling of the products. The customer is obliged to comply with the operational, storage and/or maintenance recommendations provided by Elexis or the manufacturer, to only make authorised changes, replace spare parts professionally and use the consumables that have the necessary specifications. Where applicable the customer shall, both before and also regularly after the deliveries have been made or the services have been provided by Elexis, perform backups to its computer systems at sufficiently regular intervals. Elexis shall assume no liability for damage which is caused by or can be attributed to a breach of the aforesaid obligations of the customer.
7.8 Subject to Elexis’ obligations under the Australian Consumer Law, the limitation period for claims for defects of the customer shall be one year, unless the defective good has been used in its customary manner for a building and this has caused a defect to the building. The limitation period shall also apply to claims resulting from a tortious act that are based on a defect of the goods. The limitation period shall start with the delivery of the goods. This shall not affect the liability of Elexis for Safety Defects pursuant to clause 7.2. If Elexis makes a statement with regard to a claim for defects asserted by the customer, this shall not be deemed as the start of negotiations with regard to the claim or the circumstances on which the claim is based, provided the claim for defects is fully rejected by Elexis.
7.9 Notwithstanding any provision of these Conditions to the contrary, Elexis goods come with guarantees that cannot be excluded under the Australian Consumer Law. The costumer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Any benefits to the customer given by the warranties set out in clause 7 of these Conditions are in addition to the other rights and remedies of the customer under the Australian Consumer Law and nothing in these Conditions operates to exclude, modify or limit these guarantees.
8. Intellectual property and usage rights relating to software and other protected products, information and co-operation duties
8.1 Unless otherwise provided in the contract or by law, any rights relating to software or other protected products which are delivered to the customer or which are produced for the customer, in particular, copyrights, industrial property rights such as, patents, trademarks and registered designs, shall remain the property of Elexis or the individual proprietor of the rights. This shall also apply if the software or any other protected products are produced according to the specifications of or in co-operation with the customer.
8.2 If Elexis uses the customer's software, Elexis shall only use such software for the contractually agreed purpose. If Elexis requires the source codes for the software to make contractually agreed changes or remedy defects, the customer shall provide Elexis with such free of charge for use.
8.3 The customer shall only receive a simple right of use to the software and other protected products to such extent as is required for the purpose of the contract, unless otherwise provided in the contract, in particular, the applicable licencing terms of the software or an individual licence agreement, or by mandatory statutory law. With regard to software provided by Elexis, unless expressly permitted under the contract or by law, the customer shall in particular be forbidden from reproducing, distributing, disclosing, changing, translating, extending, making other modifications to and/or decompiling such.
8.4 For backup purposes, the customer may create the necessary backup copies of the software, provided the individual licence agreement does not contain provisions to the contrary. Backup copies on moveable data carriers shall be marked as such and shall be endorsed with the copyright notice of the original data carrier.
8.5 In the event of unlawful use Elexis and/or third parties, in particular, the manufacturer of the software or other protected products, reserve the right to assert claims for compensation.
8.6 In the event that a third party alleges it has a claim which conflicts with the right of use granted to the customer, the customer shall inform Elexis without undue delay in writing. The notification shall also include information as to whether the customer has changed the software or the product or combined such with other software and whether this, from the customer's perspective, could justify the third party's claim. If so requested by Elexis, the customer shall allow Elexis to handle the defence against these claims and, to the extent permissible and possible, shall allow Elexis to represent the customer or shall conduct the defence itself as instructed by Elexis. Up until receiving notification as to whether Elexis will deal with the defence, the customer shall not acknowledge or enter into a settlement agreement regarding the alleged claims of the third party without the express approval of Elexis. If Elexis deals with the defence, this obligation shall continue to apply. In addition, the customer shall support Elexis in its defence, if this is required for an appropriate defence. In return, Elexis shall indemnify and hold the customer harmless against any necessary external costs and any third party compensation claims and claims for reimbursement of expenses resulting from the defence, provided these can be attributed to the fault of Elexis. In the event that Elexis does not deal with the defence, the customer shall be entitled to defend itself at its own discretion. If existing third party claims cannot be attributed to the fault of Elexis, the customer shall not be entitled to assert claims against Elexis.
8.7 Elexis shall also be entitled with regard to title defects relating to software to attempt remedy, if Elexis so chooses. In all other respects, the statutory provisions for consumer guarantees for title defects with regard to software shall apply irrespective of whether Elexis is dealing with the defence against third party claims under clause 8.6 of these Conditions, however, with the following exceptions: (i) for the recovery of data, Elexis shall only be liable insofar as the loss of data would also have occurred if the customer had carried out the usual backups; (ii) clause 7.4 of these Conditions applies accordingly.
9. Product liability 9.1 The customer shall not modify the goods; in particular, the customer shall not modify or remove existing warnings relating to risks by improperly using the goods. If this duty is violated, the customer must inter partes indemnify and hold Elexis harmless from and against any product liability claims of third parties to the extent that the customer is responsible for the defect giving rise to liability.
9.2 If Elexis has to carry out a product recall or issue a product warning because of a product defect to the goods, the customer shall assist Elexis and take all measures ordered by Elexis, provided that these do not pose an unreasonable burden to the customer. Elexis will be responsible for the costs of transport, repairs or replacement for the goods recalled. However, the customer shall be obliged to bear the costs of the product recall or product warning if the customer is responsible for the product defect and the damage sustained. This does not affect any further claims of Elexis.
9.3 The customer shall inform Elexis without undue delay in writing of any risks in the use of the goods and any possible product defects of which the customer becomes aware.
10. Force majeure 10.1 If Elexis is prevented by a force majeure event from performing its contractual obligations, in particular from delivering the goods, Elexis shall be released from its obligation to perform for the duration of the impediment and for a reasonable start-up period without being liable to the customer for damages. . A force majeure event includes any cause beyond the control of Elexis, including strike, industrial action, war, sabotage, terrorist activity, national emergency, blockade or governmental action, inaction or request, and act of God. The same shall apply if the performance of its obligations by Elexis becomes unreasonably complicated or temporarily impossible because of unforeseeable circumstances for which Elexis is not responsible, in particular, because of industrial action, official acts, energy shortages, delivery problems on the part of suppliers, or major disruptions of operations.
10.2 Elexis shall have the right to rescind the contract if such an impediment continues for more than three months and if, as a result of such impediment, the performance of the contract is no longer of interest to Elexis. At the request of the customer, Elexis shall declare after the expiry of the aforesaid three-month period whether it intends to make use of its right to rescind the contract or whether it intends to deliver the goods within a reasonable period of time.
11. Data protection and confidentiality 11.1 The customer is instructed by Elexis that the data recorded during the course of entering into the contract may be collected, processed and used by Elexis in accordance with the provisions of the Privacy Act 1988 (Cth) for the purpose of fulfilling its obligations under the contracts entered into with the customer. Such data may also be transmitted to affiliated companies of Elexis or vicarious agents for the purposes of fulfilling the contract and for credit investigations.
11.2 The customer shall be obliged for an unlimited period of time to maintain the confidentiality of any and all information received through Elexis which is stated to be confidential or which due to other circumstances can be identified as a trade or business secret; the customer may neither record nor disclose or use any such information. The customer must ensure by means of suitable contractual agreements with its employees and those agents working on its behalf that such persons also refrain for an unlimited period of time from any use, disclosure and unauthorised recording of such trade and business secrets for their own purposes.
12. Final provisions 12.1 Any rights and obligations of the customer may only be assigned or transferred to a third party with the written consent of Elexis.
12.2 The legal relations between the customer and Elexis shall be governed by the laws of Queensland, without regard to the United Nations Convention on Contracts for the International Sale of Goods (CISG).
12.3 Exclusive place of jurisdiction for all disputes arising from the business relationship between Elexis and the customer shall be the registered office of Elexis. Elexis may in addition sue the customer at the latter’s registered office, as well as at any other permissible place of jurisdiction.
12.4 The place of performance for any and all obligations to be performed by the customer and by Elexis shall be the registered office of Elexis.
12.5 If a provision of this agreement is or becomes invalid or unenforceable in whole or in part, it is to be read down or severed to the extent of the invalidity or unenforceability and it does not affect the validity or enforceability of the remaining provisions. Environmental declaration Elexis is committed to people and the environment. Therefore, we undertake to manufacture our products in a manner that conserves resources and to systematically realise any potential for saving energy in manufacturing processes and in transportation. We pay close attention to ecological alternatives as concerns the selection of sources of energy and raw materials and pursue a consistent policy of waste reduction and product recycling.
