1.1. These Terms of Trade apply to all transactions relating to the provision of Goods and Services between the Customer (‘You’) and Protonautics Pty ltd (‘Protonautics’).
1.2. These Terms of Trade prevail over terms contained in any other documents, and all communications and negotiations by or on behalf of either party, to the extent of any inconsistency.
1.3. By entering these Terms of Trade, you acknowledge that you have not relied on any warranty, representation or statement, whether oral or in writing, made by Protonautics or any of its employees or agents, relating to or in connection with the subject matter of these Terms of Trade.
1.4. If any provision of these Terms of Trade at any time is or becomes void, voidable or unenforceable, the remaining provisions continue to have full force and effect.
1.5. You warrant that you have the power to enter, perform and comply with your obligations under these Terms of Trade.
1.6. A party’s failure or delay to exercise a power or right under these Terms of Trade does not operate as a waiver of that power or right, unless otherwise specified in this agreement.
2. Applicable law
2.1. This agreement is governed by and construed in accordance with the laws in force in the State of Queensland, and each party agrees to irrevocably submit to this non-exclusive jurisdiction.
3.1. Protonautics may provide you with a Quote, which is valid for 30 days unless otherwise stated.
3.2. Quotes are based on the cost of materials available at the time the quote is prepared and assume that you will promptly provide all necessary material and instructions to Protonautics.
3.3. If a Quote is provided to you, Protonautics is not obliged to commence work until the quote has been accepted.
3.4. Acceptance of a Quote occurs when you complete an order form and return the order form to Protonautics.
3.5. Protonautics may amend any details in a Quote by giving you notice in writing, and any amended details supersede the relevant prior details.
3.6. An indication in a Quote of a time frame for the provision of Goods is an estimate only and is not binding on Protonautics.
4.1. Every Order placed by you for the provision of Goods must be submitted in writing, unless otherwise agreed in writing between the parties.
4.2. Placement of an Order by you signifies your acceptance of these Terms of Trade and the most recent Quote provided by Protonautics relating to that Order.
4.3. Protonautics may in its absolute discretion refuse to provide Goods or Services where:
- a. Materials are unavailable for any reason;
- b. Services are unable to be provided for any reason;
- c. Credit limits cannot be agreed upon or have been exceeded; or
- d. Payment for Goods and Services previously provided to you or any related corporation or other party who is, in the reasonable opinion of Protonautics, associated with you under the same or another supply contract, has not been received by Protonautics.
4.4. An Order cannot be cancelled without the prior written consent of Protonautics. Where an Order is cancelled by you, you indemnify Protonautics against any losses incurred by Protonautics because of the cancellation, including but not limited to any loss of profit from other orders foregone because of the scheduling of the Order which is subsequently cancelled.
5.1. You may request that your Order be varied by providing a request in writing to Protonautics, which must be agreed to in writing by Protonautics to have effect.
5.2. If you request a variation after a Quote has been prepared or after the placement of an Order, Protonautics reserves the right to vary the Quote to include any Additional Charge in respect of any costs incurred or additional work carried out due to the variation, in accordance with current charge rates. A revised Quote issued by Protonautics in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote.
5.3. In the event of a variation, Protonautics will be given an extension of time to provide the Goods and Services that is equal to the delay caused by the variation.
6.1. Delivery times are estimates only and Protonautics is not liable for late delivery or non-delivery of Goods.
6.2. Protonautics will not be liable for any loss, damage or delay occasioned to you or your customers arising from late or non-delivery, or late installation, of the Goods.
6.3. Protonautics may, at its option, deliver the Goods to you in any number of instalments unless there is an endorsement made by you to the effect that you will not take the delivery by instalments.
6.4. If Protonautics delivers any of the Goods by instalments, and any one of those instalments is defective for any reason, this does not constitute a repudiation of the contract of sale formed by these Terms of Trade.
7. Returned Goods
7.1. Protonautics is not under any duty to accept Goods returned by you (‘Returned Goods’) unless otherwise specified in these Terms of Trade.
7.2. Protonautics will only accept Returned Goods on terms to be agreed in writing in each individual case.
7.3. If Protonautics agrees to accept Returned Goods from you, you must return the Goods to Protonautics at Protonautics’ place of business or another place agreed to in writing by Protonautics.
8. Acceptance of Goods
8.1. If you fail to advise Protonautics in writing of any fault in the Goods or failure of Goods to accord with your Order within 7 days of delivery, you are deemed to have accepted the Goods and to have accepted that the Goods are not faulty and that they accord with your Order.
8.2. You waive any claim for shortage of any Goods delivered if you do not tell Protonautics of the shortage within 7 days from the receipt of the Goods by you.
9. Invoicing, Prices and Payment
9.1. Unless otherwise stated, all prices quoted are exclusive of Goods and Services Tax (‘GST’).
9.2. Quoted prices are calculated at the date of issue of a relevant quotation and include rates provided by third-party suppliers, which may include cost of freight, insurance, customers duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges that affect the cost of production (‘Third Party Rates’).
9.3. Third Party Rates may vary slightly from the date of the quotation to the time of the delivery of the goods, and you will be liable for any increase in the Third-Party Rates.
9.4. Unless otherwise agreed in writing, and in the absence of an approved credit application, you must pay to Protonautics:
- a. 30% of the quoted price upon acceptance by Protonautics of the Order;
- b. 70% upon notification by Protonautics that the Goods are ready to be shipped to you;
9.5. An invoice may be issued for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges, and any amount not previously invoiced, or if no Quote was provided, for an amount representing Protonautics’ charge for the work performed in completing the Order and for any Additional Charges.
9.6. If any invoice is due but unpaid, Protonautics may withhold the provision of any further Goods and Services until overdue amounts are paid in full.
9.7. Protonautics may, at its complete discretion, apply any payment received from you to any amount owed by you to Protonautics.
9.8. You are not entitled to retain any money owing to Protonautics notwithstanding any default or alleged default by Protonautics of these Terms of Trade, including but not limited to, the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or delay in the provision of Goods.
9.9. You are to pay Protonautics on demand interest at the rate of 2% per month on all overdue amounts owed by you to Protonautics, which is calculated daily.
9.10. All costs and expenses associated with collecting overdue amounts, including but not limited to, legal fees, and internal costs and expenses of Protonautics, are to be paid by you on demand as a debt due and payable under these Terms of Trade.
10. Additional charges
10.1. Protonautics may require you to pay Additional Charges in respect of Costs incurred by Protonautics because of:
- a. Protonautics’ reliance on inadequate or incorrect information or material provided by you;
- b. Information or material supplied later than required by Protonautics for it to provide the Goods within the specified time frame (if any);
- c. Cancellation by you of an Order where cancellation results in loss to Protonautics;
- d. Storage costs for Goods not collected from Protonautics within 7 days of the date on which the Goods are manufactured, fabricated, created or formed;
- e. Photocopying, courier, packing or handling charges not included in the Quote;
- f. Government or council taxes or charges not included in the Quote; or
- g. Additional work required by you or any other occurrence which causes Protonautics to incur costs in respect of your Order additional to the quoted cost.
11. Title and Risk
11.1. Risk in the Goods passes to you immediately upon delivery.
11.2. Property and Title in Goods supplied to you under these Terms of Trade does not pass to you until all money due and payable to Protonautics by you, including money owed in respect of other transactions between Protonautics and you, has been fully paid.
11.3. Where goods are supplied by Protonautics to you without payment in full, you;
- a. Are a Bailee of the Goods until property in them passes to you;
- b. Irrevocably appoint Protonautics to be your attorney to do all acts and things necessary to ensure the retention of title to Goods, including registration of any security interest in favour of Protonautics with respect to the Goods under applicable law;
- c. Must be able upon demand by Protonautics to separate and identify as belonging to Protonautics Goods supplied by Protonautics to you from other goods which are held by you;
- d. Must not allow any person to have or acquire any security interest in the Goods;
- e. Agree that Protonautics may repossess the Goods if payment is not made within 28 days, or another time approved by Protonautics in writing, of the supply of the Goods; and
- f. Grant an irrevocable license to Protonautics or its agent to enter your premises to recover possession of Goods and indemnify Protonautics for any damage to property or personal injury which occurs because of Protonautics entering your premises.
11.4. Where Goods are supplied by Protonautics to you without payment in full of all moneys payable in respect of the Goods and Services provided by Protonautics in respect of those Goods, and:
- a. You make a new object from the Goods, whether finished or not;
- b. You mix the Goods with other goods; or
- c. The Goods become part of other goods (in each case, ‘New Goods’), ownership of the New Goods immediately passes to Protonautics, and you hold the New Goods on trust for Protonautics until payment of in full of all amounts still owing to Protonautics, whether under these terms of trade or any other contract, are made.
11.5. Protonautics may require you to store the New Goods in a manner that clearly shows that Protonautics has ownership of them.
11.6. Ownership of the New Goods passes to Protonautics at the beginning of the operation or event by which the Goods are converted, mixed with, or become part of other goods.
11.7. You may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business, provided that:
- a. Where you are paid by a third party in respect of Goods or New Goods, you hold the whole of the proceeds of sale, less any GST, on trust for Protonautics in a separate account, until all amounts owned by you to Protonautics are paid in full; or
- b. Where you are not paid by a third party, you agree to assign all rights against the third party to Protonautics, and upon Protonautics giving you notice in writing that they mean to take that assignment, you irrevocably appoint Protonautics as your attorney in respect of those rights.
11.8. Protonautics has the right to register and perfect a security interest in Goods, where the Goods and any Services have been supplied to you without payment in full of all moneys due in respect to the provision of those Goods and Services.
11.9. If any relevant personal property securities law (‘PPS Law’) applies to these Terms of Trade or any transaction contemplated by them, or Protonautics determines that this is the case, and in Protonautics’ opinion the PPS Law:
- a. Does or will adversely affect Protonautics’ security position or obligations; or
- b. Enables or would enable Protonautics’ security position to be improved without adversely affecting you, Protonautics may give notice to you requiring you to do anything that in Protonautics’ opinion is necessary to overcome any adverse effects to or improve Protonautics’ security position, and you must comply with the requirements of that notice within a time to be specified.
12. Intellectual Property
12.1. You warrant that you own all Intellectual Property Rights pertaining to your Order for Goods, or have a licence to authorise Protonautics to reproduce or use all copyright works or other materials supplied by you to Protonautics.
12.2. You indemnify and agree to keep Protonautics indemnified against all losses incurred in relation to, or in any way directly or indirectly connected with, any breach of Intellectual Property Rights in relation to any material supplied by you.
12.3. Unless specifically agreed in writing between the parties, all Intellectual Property Rights in any works created by Protonautics on behalf of you vest in and remain the property of Protonautics.
12.4. Subject to payment of all invoices due in respect of the Goods, Protonautics grants to you a perpetual, non-exclusive licence to use the works created or produced by Protonautics in connection with the provision of Goods under these Terms of Trade for the purposes contemplated by the Order.
13. Agency and Assignment
13.1. You agree that Protonautics can appoint or engage an agent to perform any obligation arising out of these Terms of Trade at any time.
13.2. Protonautics can assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from, these terms of trade, if the assignee agrees to assume any duties and obligations of Protonautics owed to you under these terms of trade.
13.3. You cannot assign, or purport to assign, any of your obligations or rights under these Terms of Trade without the prior written consent of Protonautics.
14.1. Each of the following occurrences constitutes an Event of Default:
- a. You breach or are alleged to have breached these Terms of Trade for any reason, and fail to remedy that breach within 14 days of being given notice by Protonautics to do so;
- b. If you are a natural person, you become bankrupt;
- c. If you are a corporation, you become subject to:
- i. a petition being presented, an order being made, or a meeting being called to consider a resolution for you to be wound up, deregistered or dissolved;
- ii. a receiver, receiver and manager, or an administrator under Part 5.3A of the Corporations Act 2001 (Cth) appointed to all or any part of your property and undertaking;
- iii. the entering of a scheme of arrangement (other than for restructuring); and
- iv. any assignment for the benefit of creditors;
14.2. You assign or purport to assign your rights under these terms of trade without Protonautics’ prior written consent; or
14.3. You cease or threaten to cease conduct of your business in the normal manner.
14.4. Where an Event of Default occurs, all invoices will become immediately due and payable to Protonautics.
14.5. Where an Event of Default occurs, except where payment in full has been received by Protonautics, Protonautics may:
- a. terminate these Terms of Trade;
- b. terminate any or all Orders and credit arrangements (if any) with your;
- c. refuse to deliver Goods or provide further Services;
- d. repossess and re-sell any Goods delivered to you; or
- e. retain all money paid by you for Goods or otherwise.
15. Limitation of Liability
15.1. Protonautics is obliged under these Terms of Trade to use its best endeavours to provide to you Goods and Services, and to repair and replace (at Protonautics’ discretion) any part of the Goods that are found to be defective within 7 days of Supply, and limited to the original scope of works ordered, as per the Australia Consumer Law (‘ACL’) and relevant state legislation.
15.2. You agree that use of the Goods and Services is at your risk, and to the full extent allowed by law, Protonautics’ liability for breach of any term implied into these Terms of Trade is excluded and Protonautics will not be liable for any claims or damages.
15.3. Nothing in these Terms of Trade excludes, restricts or modifies any condition, warranty, right or remedy owed to you pursuant to the ACL or similar legislation.
15.4. You acknowledge that the Goods are not for personal, domestic or household purposes.
15.5. Where an ACL guarantee applies and liability for breach of any such guarantee can be limited, Protonautics’ liability (if any) arising from any breach of the guarantee is limited to the replacement or repair of Goods, or the cost of resupply or replacement of the Goods, or to the re-supply or cost of re-supply of Services (whatever the lesser amount).
15.6. Subject to the ACL, small deviations or variations which do not substantially affect your use of the Goods will not entitle you to reject the Goods upon delivery, or to make any claim against Protonautics.
15.7. Protonautics gives no warranty in relation to the Services provided or supplied, and under no circumstances is Protonautics or any of its suppliers liable or responsible in any way to you or any other person for any loss, damages, costs, expenses or other claims, directly or indirectly caused by any defect, deficiency or discrepancy in the Goods and their delivery.
15.8. Any advice, recommendation, information, assistance or service given by Protonautics is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability, and Protonautics does not accept any liability or responsibility for any Loss suffered because of your reliance on such advice, recommendation, information, assistance or service.
15.9. Protonautics is not liable for any damages whatsoever arising out of or in any way connected with the provision of or failure to provide Goods or Services, whether based negligence, strict liability or otherwise, even if Protonautics has been advised of the possibility of damages.
16.1. You indemnify Protonautics, its servants and agents, in respect of any claim, demand made, or action commenced, by any person for which Protonautics is liable, in connection with any loss arising from or incidental to the provision of Goods, Services or anything connected to these terms of trade including;
- a. any legal costs incurred by Protonautics in relation to meeting any claim or demand; or
- b. any legal costs Protonautics becomes liable for in connection with any claim or demand.
16.2. This indemnity remains in force after the termination of these terms of trade.
17.1. In addition to any express rights of termination provided in these Terms of Trade, a party may terminate these Terms of Trade by giving 7days written notice to the other party.
17.2. These Terms of Trade automatically terminate if a party enters into any arrangement with a creditor, has a receiver appointed over any of its assets, or is subject to a resolution or petition for winding up or judicial management (other than for amalgamation or reconstruction).
17.3. Either party may terminate these Terms of Trade if the other party is in material breach of any of its obligations and fails to remedy the breach for a period of 7 days after receipt of a written notice by the other party requiring rectification of the breach.
17.4. Exercise of the right of termination under paragraph 17 will not prejudice any legal rights or remedies that either party may have against the other in respect of a breach of any term, condition or warranty of these Terms of Trade.
17.5. Obligations of the parties that can be reasonably construed as being intended to continue beyond the termination of this agreement will continue to apply.
17.6. All monies are immediately payable by you upon termination.
18. Force majeure
18.1. If circumstances beyond Protonautics’ control prevent or hinder its provision of any Goods or Services, Protonautics is free from any obligation to provide the Goods or Services while those circumstances continue.
18.2. Protonautics may elect to terminate or keep on foot these Terms of Trade until such circumstances have ceased.
18.3. Circumstances beyond Protonautics’ control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
19. Dispute resolution
19.1. If a dispute arises between you and Protonautics, the dispute must be dealt with in accordance with the following procedure:
- i) A party must give notice of the dispute to the other party;
- ii) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph;
- iii) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph;
- iv) If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management who must endeavour to resolve the dispute as soon as possible and, in any event, within 14 Business Days or other period as agreed; and
- v) The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution.
19.2. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties, and no party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
20.1. A notice or other communication required or permitted to be given must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally or be sent by pre-paid mail to the address of the addressee, or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
20.2. A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by email before 5 pm 1 Business Day from the day it is sent and otherwise on the next Business Day at the place of receipt.
20.3. A party may only change its postal or email address for service by giving notice of that change in writing to the other party.