Terms and conditions

INTERPRETATION
1.1 The expression “the Company” shall mean Process Rubber and Plastics Pty Ltd ABN 57 050 724 699 (trading as Protectore), the term “the goods” shall mean any die, tool or processed goods manufactured or sold by the Company but shall specifically exclude any software, CAD file, drawings, plans and samples used in the manufacturing process.
1.2 The expression “the Buyer” shall mean the person or company to whom the quotation is addressed on the face hereof of any person who accepts it.
1.3 The expression “the Deposit” shall mean the deposit sum (if any) shown on the face hereof and being a guarantee for the due performance of the Buyer’s obligation.
1.4 The expression “the Order” shall mean the acceptance of this quotation in whole or in part by the Buyer.
1.5 All quotations, offers, sales and contracts are subject to the following Terms and Conditions unless duly varied in writing as per Section 4 herein. These Terms and Conditions form part of and should be read in conjunction with each and every quotation, offer, sale or contract.
1.6 No quotation or offer or acceptance or buyer’s order or variation of these Terms and Conditions or the specification of acceptance of buyer’s cancellation will be binding on the Company or on any validity whatsoever unless it is in writing on the Company’s stationery and duly signed by an authorised officer of the Company.

PRICE
2.1 Quotations remain firm for thirty (30) days only. The price is firm except for a variation in award wages or conditions, governmental indexed increases & generally accepted price sources. The quoted price would be variable according to the % of variation change.
2.2 Prices remain firm for sixty (60) days from the date of acceptance of quotation, unless costs change and in those circumstances prices are subject to review by the Company and may rise or fall.
2.3 Should Order details vary from those shown in the quotation the Company reserves the right to vary the price.
2.4 GST, cartage and insurance are not included in the quotation unless specifically mentioned in the quotation.
2.5 Should delivery of the goods by the Company be interrupted or delayed by failure of the Buyer to adhere to any manufacturing schedule agreed to between the Buyer and the Company and such interruption causes additional costs to the Company then the Company shall be entitled to add to the Contract sum the amount of such additional costs including any reasonable storage handling or demurrage costs which may have been incurred in consequence of the Company procuring materials and/or proceeding with manufacture in conformity with such schedule.

TERMS OF PAYMENT
3.1 This quotation is subject to terms of payment being arranged between the Company and the Buyer and if no other arrangements are made then the terms of payment for goods shall be to 100% of the value of the goods paid up front. For accounts that are established and approved, payments will be as Clause 3.2.
3.2 The following payment structure will be followed for all new established accounts unless other arrangements are made and agreed upon in writing between the Company and the Buyer.
For the first month, payment terms shall be either pre-paid or paid up front (COD) by either cash, electronic funds transfer (EFT) or cheque. Following the one-month probation period, payment shall comply as per 30-day trading terms, with the Company’s discretion to suspend an account for any late payment beyond the allocated time frame.
3.3 If credit terms are agreed between the Company and the Buyer and more than one delivery is requested by the Buyer then the Company may submit progress invoices during the currency of the works to which the goods relate which invoices will be paid by the Buyer within thirty (30) days of receipt. All payments other than the final payment shall be deemed to be on account only.
3.4 The Buyer shall not be entitled to deduct retentions from payments.
3.5 Notwithstanding any delays in the Buyer’s manufacturing schedule as agreed between the Buyer and the Company the Buyer shall not be entitled to defer payment for goods manufactured by the Company in conformity with the schedule so agreed.
3.6 The Company shall be at liberty at its discretion to charge interest on all overdue accounts at the rate of two percent (2%) per month calculated on daily rests.
3.7 Ownership of and title to the goods shall not pass to the Buyer until the price has been paid in full.

SUPPLY
4.1 Any statement or agreement by the Company is subject to its abilities to secure labour, materials and other services for the manufacture and supply of goods. The Buyer can make no claim against the Company and no responsibility is accepted by the Company for delays or failure to deliver caused to the Company or its sub-contractors or suppliers by reason of war, Act of God, strike, lockout, shortened hours of labour, transport delays, accidents, destruction of or damage to offices or factories, interference by any Government organisation thereof, or by reason of any other unexpected or exceptional cause or by any cause beyond the Company’s control.

ADVICE
5.1 Any advice, recommendation, information, assistance or service provided by the Company in relation to goods sold or manufactured by it or their use or application is given in good faith and is believed by the Company to be appropriate and reliable. However, any advice, recommendation, information assistance or service provided by the Company in relation to any goods supplied by the Company is provided without liability to responsibility on the part of the Company either contractual or tortuous. The assessment of the suitability of the goods offered by the Company for use by the Buyer is the sole responsibility of the Buyer, irrespective of any information, verbal or written given to the Buyer by the Company. The Buyer assumes all risks and liabilities for consequences arising from the use of goods whether singularly or in combination with other products and indemnifies the Company in respect of any such use.

DEVELOPMENT
6.1 Any work of a Product Development nature that involves the Company incurring costs on behalf of a third party in such endeavours, as Product Design or Redesign, Tooling Design and/or Redesign, Process Development, Material Development, Prototyping, Product Trials, Tooling Trials Product Testing, etc will be charged at the Company’s standard machine and labour utilisation rates unless otherwise agreed in writing between the Company and the Buyer.
6.2 The format of these charges will be applied, but will take the form of one of the following examples:
6.2.1 A Development Agreement to be signed where costs will be invoiced to the client on a monthly basis until the work is complete.
6.2.2 An estimate of the development costs will be presented to the client and an up front payment for that amount paid to the Company prior to commencement of any work. When these funds are exhausted a further payment will be required before further work is completed on the project. Any residual funds will be refunded at the end of the development work.
6.2.3 When the Company is then asked to manufacture the part a Scheme of Arrangement will be entered into whereby an amount of up to 50% of the development costs will be refunded over the following 12 months from monthly Production Invoices where a discount of 5% per month will be applied to the total value of the invoice until the 50% is reached or the 12 months has expired.
6.2.4 If the Company is not asked to manufacture the part, the development charges will not be reclaimable.

DELIVERY
7.1 Unless otherwise agreed prior to delivery the Buyer will inspect and approve the goods at the Company’s premises.
7.2 Delivery of the goods shall be deemed to be effected when the same is handed to the Buyer or his representative or is delivered to the premises or carrier nominated by the Buyer. It is the Buyer’s responsibility to insure the goods upon their dispatch or departure from the Company’s premises and notwithstanding the provisions of Clause 3.6 the goods shall thereafter be at the Buyer’s risk.
7.3 Upon the signing of a delivery docket unless the contrary is noted in that docket the goods shall be deemed to have been delivered in good order and condition and if no person is present to sign the delivery docket then the goods will be deemed to have been delivered in good order and condition unless shortage, damage or other fault at the time of delivery is reported by the Buyer to the Company within twenty-four (24) hours of the delivery being effected and confirmed in writing within seven (7) days of such delivery.
7.4 The Buyer agrees to accept delivery of the goods or to make satisfactory arrangements to accept the delivery of the goods within seven (7) days of the Company notifying the Buyer that the goods are available for delivery.
7.5 Should the Buyer not accept or be able to accept the delivery of the goods or any part thereof within seven (7) days of being so notified by the Company then it will indemnify the Company for any charge for storage, handling and demurrage for which the Company may be responsible and will further pay to the Company a reasonable cost for the storage, handling and demurrage of the goods if they are stored on any premises owned or occupied by the Company or elsewhere.
7.6 If the Buyer fails to accept any part of the works which the Company has dispatched in conformity with the Agreement between the Company and the Buyer and such part of the goods is returned to the Company and redispatched subsequently, then a charge equal to double the current delivery charge will be paid by the Buyer to the Company forthwith.
7.7 The Company shall not be liable in any way for failure to deliver goods within the time stated and the Buyer shall accept and pay for goods notwithstanding any such failure to deliver within the stated time or if goods damaged in transit irrespective of whether the Company or the purchaser pays freight charges. Insurance is Buyer’s responsibility.

GUARANTEE
8.1 The whole of the workmanship and materials for the goods offered or supplied is of the highest quality, but the Company’s liability is limited to its replacement without charge to the Buyer of any part of the goods. The goods produced to the Company pursuant to the quotation is guaranteed under normal working conditions if within twelve (12) months from the date of delivery, requires replacement in consequence of any original defect of workmanship or materials, but not otherwise. In no case shall the Company be liable for consequential losses of any kind whatsoever and we make no warranty as specialists. Notwithstanding anything herein contained, where goods not of the Company’s manufacture are supplied through the Company then the Buyer will only be entitled to such protection as the Company may receive under any guarantee given to it by the manufacturer of such goods. This quotation is based on the information supplied by the Buyer and all calculations are determined on these details. It is the Buyer’s responsibility to notify us in writing immediately on receipt of this quotation and/or drawings if they are not in accord. No claims can be recognised once manufacture has commenced.

CANCELLATION
9.1 Any Order may be cancelled by the Buyer only with the written consent of the Company recompense and upon payment of reasonable cancellation charges. Such charges shall take into account expenses incurred by the Company to the date of cancellation, including recompense for any commitments made by the Company in consequence of the order and all other losses both actual and prospective, incurred as a result of such cancellation.

AGREEMENT
10.1 (To the full extent permitted by law) the Company shall not be liable in any way for consequential loss or damage of any nature whatsoever.
10.2 Subject to this Clause 9, the Order, any written variation thereto and these terms and conditions shall be deemed to embody the whole agreement between the parties and conditions and warranties written or implied and whether arising under statute or otherwise any or all agreements not contained therein are expressly excluded.
10.3 Subject to Clause 9.4 hereof these terms and conditions shall be construed subject to and nothing shall exclude, restrict or modify or have the effect of excluding, restricting or modifying:
10.3.1 Any terms herein under Division 2.2A and 3 of part V of the Trade Practices Act, 1974 (as amended), or
10.3.2 Any term implied hereunder by the provisions of any legislation of any State of the Commonwealth of Australia which cannot be excluded from here from by virtue of any provision of such legislation; or
10.3.3 Except for any such term all conditions and warranties which would or might otherwise be implied herein are expressly excluded.
10.4 Should it be established that the Company is liable under a term of the Contract implied by Division 2 of Part V of the Trade Practices Act, 1974 as amended then the Company’s liability shall be limited to:
10.4.1. In the case of the goods any one or more of the following as determined by the Company in its absolute discretion:
10.4.1.1 the replacement of the goods or the supply of equivalent goods; 10.4.1.2 the repair of the goods;
10.4.1.3 the payment of the cost of replacing the goods or at acquiring equivalent goods;
10.4.1.4 the payment of the cost of having the goods repaired; or
10.4.2 In the case of services either of the following as determined by the Company in its absolute discretion.
10.4.2.1 the supplying of the services again, or
10.4.2.2 the payment of the cost of having the services supplied again.
10.5 Each of the provisions contained in these terms and conditions shall be several and if any of such provisions should be found to be invalid, illegal or unenforceable, the remaining provisions shall nevertheless have full force and effect.

INDEMNITY
11.1 The Buyer will indemnify the Company against all claims arising from the Buyer’s purchase and use of the goods for loss, damage or injury of any kind suffered by the Buyer, its servants or agents or any other person by reason or any defect in design, material, manufacture or workmanship of the goods and whether caused by the Company’s negligence or otherwise.

DEFAULT
12.1 The Company shall be entitled to suspend delivery of the goods or any part thereof, and/or terminate the Contract, if the Buyer either fails to perform or observe any condition of the Contract arising from this invoice including the terms of payment and/or delivery arranged between the Company and the Buyer, or if the Buyer is made bankrupt, has a liquidator, receiver or official manager appointed for all or any part of his assets, or has a winding up order made against him, or enters into any agreement with creditors. Such suspension, and/or termination shall be without prejudice to and shall not affect any rights of the Company against the Buyer.
12.2 Upon termination of the Contract by the Company the Deposit (if any) paid by the Buyer shall be forfeited to the Company who shall thereafter be entitled to either sue the Buyer for breach of contract or resell the goods and any deficiency (if any) arising on such resale and all expenses of and incidental to such resale to attempted resale and the Buyer’s default shall be recoverable by the Company from the Buyer as liquidated damages. The Company may retain any moneys paid to the Buyer on account of the Contract Sum other than the Deposit forfeited as security for any damages awarded to the Company for the Buyer’s default.

APPLICABLE LAW
13.1 Any agreement or contract made with the Company by the Buyer pursuant to this quotation shall in all respects be construed in accordance with the laws of the State of South Australia.