1. Definitions and Interpretation

1.1 “Manufacturer” shall mean The Rubber Company Technologies Pty Ltd T/A A1 Rubber [ABN 85 663 589 062] and its successors, assigns or related entities or any person or distributor acting on behalf of and with the authority of The Rubber Company Technologies Pty Ltd T/A A1 Rubber.

1.2 “Consumer” has the meaning defined in Section 3 of the Competition and Consumer Act 2010.

1.3 “Customer” shall mean the entity that orders Goods from the Manufacturer for purchase by that entity and/or any person acting on behalf of and with the authority of the Customer.

1.4 “Goods” shall mean Goods supplied by the Manufacturer to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Manufacturer to the Customer.

1.5 “Services” shall mean all services supplied by the Manufacturer to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.6 The headings used in these Terms and Conditions do not form part of these Terms and Conditions and are for convenience only.

1.7 As the context requires, reference to the singular includes the plural and vice versa, reference to a gender denotes the relevant gender, and reference to a person denotes an individual or corporation or other legal entity as applicable.

2. Acceptance

2.1 Any instructions (including orders for Goods) received by the Manufacturer from or on behalf of the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Manufacturer shall constitute acceptance of these Terms and Conditions.

2.2 Any variation or amendment to these Terms and Conditions requested by the Customer will not be effective unless agreed to in writing by the Manufacturer.

3 General – Enforceability, Severance and Jurisdiction

3.1 These Terms and Conditions and all obligations hereunder shall be binding on the Customer’s personal representatives, successors and permitted assigns and shall be for the benefit of the Manufacturer’s successors and assigns.

3.2 A failure by the Manufacturer to exercise any right under these Terms and Conditions or failure to insist on strict performance of any part of these Terms and Conditions does not operate as a waiver and the Manufacturer is entitled to require strict compliance with these Terms and Conditions at any time and a partial exercise of a right does not preclude any further exercise of the right.

3.3 In the event that the whole or any part or parts of any clause in these Terms and Conditions are found to be unenforceable by a Court then such clause or part thereof shall be to that extent severed from these Terms and Conditions without affecting the validity and enforceability of the remainder of these Terms and Conditions.

3.4 If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining Terms and Conditions shall not be affected, prejudiced or impaired.

3.5 These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Queensland. The parties submit to the non-exclusive jurisdiction of the Courts in Brisbane.

3.6 The parties agree that proceedings may be commenced in any court in Brisbane and consent to that court having jurisdiction by virtue of this Clause notwithstanding that the court would not have such jurisdiction without this consent.

3.7 The Manufacturer may license, sub-contract or assign all or any part of its rights and obligations under these Terms and Conditions without the Customer’s consent.

3.8 The Manufacturer shall not be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party, and events beyond the reasonable control of the Manufacturer includes machinery breakdown or supply chain issues that delay or prevent the manufacture of products.

4. Price and Payment

4.1 If the Customer has submitted an order to the Manufacturer for the supply of Goods and Services ("Order"):

(a) the Order is subject to acceptance in writing by the Manufacturer; and
(b) the price actually payable for the Goods and Services is the Manufacturer’s current price as at the date of the Manufacturer’s acceptance of the Order; and

4.2 Payment for the Goods the subject of the Order must be received by the Manufacturer before the Goods will be dispatched unless otherwise agreed in writing.

5. Delivery of Goods

5.1 Any delivery dates communicated in any way by the Manufacturer to the Customer are estimates only and the Manufacturer endeavours to complete the manufacture and dispatch of the Goods within 10 days of the Manufacturer’s receipt of payment in respect of an Order. The Manufacturer will notify the Customer when the Goods are available for collection or delivery.

5.2 Delivery of the Goods (and risk in respect of the Goods passes to the Customer) is taken to take place when;

(a) the Customer takes possession of the Goods at the Manufacturer’s address; or
(b) the Goods are dispatched from the Manufacturer’s premises (and the carrier of the Goods is deemed to be the agent of the Customer); or
(c) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.

5.3 The Customer will be charged for all costs related to delivery and handling and such costs will be detailed on a tax invoice provided to the Customer.

5.4 Delivery of the Goods to a third party as directed by the Customer is deemed to be delivery to the Customer.

5.5 The Manufacturer may deliver Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these Terms and Conditions.

6. Force Majeure

The Manufacturer shall not be liable for any delay or for the consequences of any delay in performing or failure to perform any of its obligations under these Terms and Conditions if such delay or failure is due in full or in part to any cause whatsoever beyond its reasonable control. Such delay or failure shall not constitute a breach of these Terms and Conditions and the Manufacturer shall be entitled at its option to either extend the time for delivery or performance for a reasonable period or to notify that Goods the subject of an Order cannot be supplied without any recourse by the Customer to any claim for damages, including for consequential loss.

7. Client Specification/Special Orders/Intellectual Property

If any Goods are manufactured by the Manufacturer to the design or specification of the Customer, the Customer warrants to the Manufacturer that any drawings, plans, specifications and other design information provided to the Manufacturer for the manufacture of such Goods are accurate and correct in all respects and do not infringe upon the intellectual property rights of any third party including any copyright, patents, designs or trademarks of the third party and the Customer indemnifies the Manufacturer against any and all loss and damage incurred or suffered by the Manufacturer as a result of any claims by any such third parties of infringement of the third parties’ claimed intellectual property rights.

8. Customer’s Disclaimer

The Customer warrants and acknowledges that all Goods are bought relying solely upon the Customer’s own skill, judgement and enquiries as being suitable for the Customer’s requirements.

9. Defects

9.1 The Customer shall inspect the Goods as soon as practicable on receipt of delivery and shall within fourteen (14) days notify the Manufacturer of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote by giving written notice in accordance with clause13.1 of these Terms and Conditions and in addition providing the Manufacturer with photographic evidence of any such allegation.

9.2 The Customer agrees to keep the Goods referred to in any notice given under this clause and clause 16.1 of these Terms and Conditions (and in the case of shortages the remainder of the Goods delivered), in the condition in which they are delivered and will not install the Goods until the Manufacturer has had the reasonable opportunity to inspect them.

9.3 The Customer shall afford the Manufacturer a reasonable opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way.

9.4 If the Customer should fail to comply with the provisions in this clause, the Goods shall be prima facie presumed to be free from any defect or damage.

9.5 Subject to clause 11 of these Terms and Conditions, for defective Goods, which the Manufacturer has agreed in writing that the Customer is entitled to reject following the Manufacturer’s inspection of the Goods or having had the reasonable opportunity to inspect them, the Manufacturer’s liability is limited to either (in the Manufacturer’s absolute discretion) replacing the Goods or repairing the Goods.

9.6 Goods are deemed to be as ordered and without defect if:-

(a) the Customer does not comply with this clause including inspecting the Goods in a timely manner and providing written notice of any alleged defects; or
(b) the Goods referred to in any notice given under clause 9.1 are used or damaged after delivery, including by being used by being installed with adhesive.

9.7 If the Manufacturer delivers less than the full quantity of Goods ordered the Customer may not reject those Goods delivered unless the Manufacturer is not able to cause Goods to be delivered to make up the shortfall within a reasonable time.

9.8 If the Manufacturer delivers extra or different Goods the Customer may reject only the extra or different Goods.

10. Returns

10.1 Returns will only be accepted provided that:

(a) the Customer has complied with the provisions of clauses 9.1, 9.2 and 9.3; and
(b) the Manufacturer has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within fourteen (14) days of receipt of the Manufacturer’s agreement to accept the return of the Goods given under Clause 10.1(b); and
(d) the Manufacturer will not be lunder any obligation to accept the return of the Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

10.2 The Manufacturer is under no obligation but may (in its absolute discretion) accept the return of non-defective Goods for credit, however such return of Goods will be subject to the Customer paying for and/or reimbursing the Manufacturer for all costs associated with the return of the Goods to the Manufacturer and a handling/re-stocking fee.

10.3 The following Goods cannot be returned to the Manufacturer by the Customer for credit:

(a) Goods which are specifically made, modified or imported by the Manufacturer for the Customer; and/or
(b) Goods altered or damaged by the Customer.

11. Warranty

11.1 The Manufacturer, The Rubber Company Technologies Pty Ltd T/A A1 Rubber of PO Box 6278, Yatala QLD 4207, telephone 07 3807 3666 and fax 07 3807 2344 warrants the quality of the Goods subject to the following conditions:

(a) Such warranty shall be to repair or replace all Goods or part of Goods which shall have been manufactured by the Manufacturer and shall within twelve (12) months after the date of delivery be defective either because of faulty manufacturing, workmanship or the use of defective material on the Manufacturer’s part.
(b) No liability on the Manufacturer’s part shall arise hereunder unless within ten (10) working days after discovery of the defect, the Customer submits to the Manufacturer written notice in accordance with clause 13.1 of these Terms and Conditions, which includes pictures identifying the alleged defect and a detailed description of the alleged defect and such notice is received by the Manufacturer within twleve (12) months after the date of delivery. A defect in workmanship or material of any part or portion of the Goods shall not alone be sufficient for the Customer to seek a refund or replacement for the entire Goods supplied or installed.
(c) The Manufacturer shall be entitled by its employees, servants or agents to enter on the Customers’ premises to inspect the alleged defective Goods.
(d) Any liability on the Manufacturer’s part shall be conditional on the Goods having been installed strictly in accordance with the Manufacturer’s specified binders, sealers and adhesives and as per the Manufacturer’s Installation Guide for both the Goods and the binder, sealer and adhesive application by competent experienced trades people and having since the date of delivery/installation been properly used, maintained and serviced in accordance with the Manufacturer’s care and maintenance manual and properly used for the purpose intended and no repairs, alterations thereon having been carried out without the Manufacturer’s written consent.
(e) The weathering and U.V. resistance of CSBR™ and EPDM are warrantable only if the performance is outside of the weathering and U.V. resistance tables and documents published at the time of sale.
(f) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

(i) normal wear and tear (more than 2mm consumed per year) during the warranty period; or,
(ii) compressive loads or shear loads in excess of the Goods’ maximum load capacity; or,
(iii) adhesive failure due to unsuitable sub-surfaces or deteriorating sub- surfaces or sub-surfaces that have not been prepared in accordance with the Manufacturer’s Installation Guide or in good tradesman-like or common surface preparation manner or with the required application skills; or,
(iv) product that has been installed by un-tradesman-like installers or persons unskilled in the installation of the Manufacturer’s Goods; or,
(v) natural disasters including but not limited to fire, floods, lightning, earthquakes, hail or hurricane; or,
(vi) acts of negligence, accidents or misuse, including but not limited to, vandalism, civil disobedience, or acts of war; or,
(vii) acids or harmful chemicals and the like being brought into contact with the Goods; or,
(viii) discolouration, yellowing, whitening or fading due to natural or extreme or manmade conditions and the limitations of the pigments including but not limited to ultraviolet damage and normal abrasion from pedestrian and other traffic; or,
(ix) any rubber tile or roll product that contracts or expands in size due to temperature variations that differ from the installation temperature or from the Goods not being given enough time to settle, relax or acclimatise after unpacking, rolling out and shipping in accordance with the Manufacturer’s Installation Guide; or,
(x) degradation through ozone, mould or U.V. exposure causing carbon black to be exposed on the surface which rubs off with skin contact; or
(xi) failure to properly maintain the Goods, as evidenced by factors including, but not limited to: detrital material such as loose sand, bark, builders dust, and the like being found on and/or in the Goods, and additionally Goods installed in and around pools and splash parks, residues such as pool scum, discolouration or surface delamination from water logged and/or spongy rubber or hydrolysis of the binder due to water chemical imbalances.
(xii) in respect of any commercial flooring products supplied by the Manufacturer:

(A) any minor flaw or chatter mark;
(B) any batch colour variation or distribution of colour.

(xiii) in respect of CSBR™ and EPDM Goods any wear and tear, discolouration, yellowing, whitening or fading;
(xiv) any discoloration of flooring sealers.

(g) This warranty is in addition to other rights and remedies under Australian Consumer Law that are not able to be excluded.

11.2 If the Customer is a Consumer the Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are 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.

11.3 In the case of Goods not manufactured by the Manufacturer its warranty to the Customer hereunder shall be the same as any warranty given to the Manufacturer by the manufacturer to it of such Goods provided always that the Manufacturer shall not be liable for any greater expense than the amount which it shall actually recover from the manufacturer under any warranty given by it and the Manufacturer shall be under no liability other than the foregoing in respect of Goods not manufactured by it.

11.4 This warranty clause is in substitution for and excludes all expressed or implied (whether by statute or otherwise) conditions, warranties or obligations or liabilities of any kind that may in any way have any application to these Terms and Conditions or to Goods supplied under these Terms and Conditions, including in relation to fitness for purpose or quality of workmanship, material or design, save to the extent that any statute prevents such exclusion.

12. Privacy

12.1 The Customer acknowledges and agrees and consents that by ordering and purchasing Goods from the Manufacturer on these Terms and Conditions:

(a) The Manufacturer abides by the Privacy Act 1988 (“the Privacy Act”), including the Australian Privacy Principles. The Manufacturer’s Privacy Policies are available on its website at: www.a1rubber.com and the Customer has had the opportunity to read the Manufacturer’s Privacy Policies.
(b) The Manufacturer collects personal information about individuals if it is necessary for one or more of the Manufacturer’s functions or activities. In the Manufacturer’s activities as a manufacturer and supplier of Goods the Manufacturer collects personal information including credit information about individuals.
(c) A detailed summary of the kinds of personal and credit information that the Manufacturer collects about individuals is set out in the Manufacturer’s Privacy Policies. However, in short, personal and credit information about an individual includes personal information about the individual’s identity, contact details and information necessary to assess whether to accept an Order and to process payments.
(d) If such personal and credit information about individuals was not collected by the Manufacturer then the Manufacturer would not be able to operate its business as a manufacturer and supplier of Goods.
(e) The Manufacturer’s Privacy Policies contain information about the following:

(i) How an individual may access personal and credit information about the individual held by the Manufacturer;
(ii) How an individual may seek the correction of personal or credit information about the individual that is held by the Manufacturer;
(iii) How an individual may complain about a failure of the Manufacturer to comply with its obligations under the Privacy Act and how the Manufacturer will deal with such a complaint;
(iv) The Manufacturer is not likely to disclose credit information or credit eligibility information to any overseas entities that do not have an Australian link.

13. Notices and Manufacturer’s invoices

13.1 Notices required to be given by the Customer to the Manufacturer pursuant to these Terms and Conditions may be by the following means:

(a) delivered personally to the Manufacturer at 34 Binary Street, Yatala, Queensland 4207;
(b) or sent by post to the credit manager of the Manufacturer at the Manufacturer’s postal address at PO Box 6278, Yatala, Queensland 4207;
(c) or via email transmission to admin@a1rubber.com
(d) or by fax to 07 3807 2344 and unless the contrary is proved notice shall be taken as delivered when received by the Manufacturer.

13.2 If required in these Terms and Conditions notices are to be given by the Manufacturer to the Customer by delivering personally, sending by post, by facsimile transmission or email transmission to the Customer’s last known address or contact details and notice shall be taken, if sent by ordinary post, as delivered on the second business day following posting. If notice is sent to a customer by personal delivery or by facsimile or email transmission notice shall be taken as delivered on the date of such personal delivery or date of facsimile or email transmission.

14. Unpaid Manufacturer’s Rights

14.1 Where the Customer has left any item with Manufacturer for repair, modification, exchange or for the Manufacturer to perform any other Service in relation to the Goods and the Manufacturer has not received or been tendered the whole of the amounts invoiced for Services rendered by the Manufacturer is respect of the item, or the payment has been dishonoured, the Manufacturer shall have:

(a) a lien on the Goods;
(b) the right to retain the item until all amounts invoiced for the Services are paid while the Manufacturer is in possession of the Goods;
(c) a right to sell the Goods,

14.2 The lien of the Manufacturer shall continue despite the commencement of proceedings, or judgment for the amount invoiced for the Services having been obtained.