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1. APPLICATION OF THESE TERMS AND CONDITIONS
For the purpose of this agreement “QMW” is QMW Industries Pty Ltd ABN 12 011 047 760 and the “Buyer” is the business named on the quotation and /or credit account or work authorisation; “Goods” means steel fabrication, Material Handling, and associated engineering services including but not limited to installation, maintenance, design and site management, as specified in the Purchase Order; “Purchase Order” means the document issued by the Buyer to QMW for the order of Goods and includes any specifications, drawings or other documents. “Contract” means QMW accepted quotation or work authorisation.

2. QUOTATIONS
A quotation shall remain in force as a basis for placing orders with QMW for thirty (30) days from the date of the Quotation, unless otherwise stated on the Quotation.

3. CONTRACT
3.1 Acceptance

QMW will not be obligated to proceed until an official purchase order is issued by the Buyer and all details pertaining to the Contract have been received by QMW.

3.2 Price

Material used and labour content of this Quotation is based on present day ruling rates and therefore subject to variation, whether up or down, in accordance with Award or Material price changes

3.3 Sales Tax/GST

Neither Sales Tax nor GST is included in the quoted price. Any such tax that is applicable will be added to the quoted price.

3.4 Liquidated Damages

No liquidated damages will be accepted.

4. DESCRIPTIVE DATA

All illustrations, drawings, catalogues, advertisements etc. accompanying QMW’s quotation or work authorisation must be regarded as informative only and are not part of the Contract unless otherwise stipulated in the quotation or work authorisation. All weights, measurement, powers, capacities and other particulars specified in these illustrations and drawings etc. are stated in good faith but inaccuracies shall not vitiate the Contract or be made the basis of any claim against QMW nor justify rejection.

5. BUYER’S SPECIFICATIONS

5.1 The Buyer shall furnish free of charge to QMW two (2) copies of all specifications, drawings and other information specified to be supplied by the Buyer or which may be reasonably required for the execution of the Contract.

5.2 The Buyer shall be responsible for, and shall pay the costs of all alterations to the work or delays in execution of the work arising from discrepancies, errors or omissions or delay in providing such specifications, drawing and other information.

6. INSTRUCTIONS

Insofar as these conditions require that instructions be given in writing or that information be provided, the Buyer and QMW agree that minutes certified by QMW of meetings between authorised representatives of the Buyer and QMW shall be deemed to be written instructions of information provided. The Buyer acknowledges that all the terms and conditions of the Contract are set out herein and that QMW shall not be bound to carry out any oral instructions given or alleged to have been given to any agent or representative of QMW.

7. COPYRIGHT AND MANUFACTURING DATA

The proprietary products sold by QMW are covered by various patents, design copyright and licensing agreements. In order to protect QMW’s intellectual property, QMW will not release to the Buyer any details which may be used to copy QMW’s products. Information relating to geometric proportions, material specifications, manufacturing drawings, check sheets that include dimensional tolerances, calculations, formulae and QMW’s proprietary software will not provided. All of the above restricted information is available for the Buyer’s inspection in QMW’s Acacia Ridge or Welshpool office. Copies of this information will not be provided. Ownership of Copyright will at all times remain exclusively with QMW.

8. CONFIDENTIALITY

QMW’s Quotation/Work Authorisation will contain information and concepts which are proprietary and confidential to QMW. The information contained in any Quotation/Work Authorisation must be kept strictly confidential and used only for the purpose of evaluating QMW’s proposal. Disclosure of any proprietary and confidential information to any third party or other use of such information without QMW’s written permission is strictly prohibited.

9. PAYMENT
9.1 Time for Payment

Payment terms apply strictly from date of QMW’s invoice unless otherwise agreed to in writing and all invoices shall be payable not more than thirty (30) days from the date thereof without deduction. Unless otherwise stated in writing.

9.2 Progress Payments

During the progress of the Contract QMW shall submit from time to time to the Buyer a statement showing the value of work done and/or materials purchased for the Contract and the Buyer shall make a progress payment to QMW not more than thirty (30) days of the date of each such statement.

9.3 Cancellation

QMW’s acceptance at the Buyer’s request of the cancellation of any order or part thereof implies the Buyer’s agreement to the payment of a cancellation charge covering all material purchased for and all work whether productive or nonproductive on the product or tools for it, carried out in connection with the order plus an amount for indirect costs and profit. QMW’s account shall be conclusive as to the amount payable. Payment must be made within seven (7) days of receipt of QMW’s invoice.

9.4 Interest

QMW may charge interest at the overdraft rate of their bank (calculated on a daily basis) on amounts not paid within the time specified on QMW’s invoice to the Buyer.

9.5 Damages

The Buyer must pay QMW any costs, expenses or losses incurred by QMW as a result of the Buyer’s failure to pay QMW all sums outstanding as owed by the Buyer to QMW including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.

10. IMPORT LICENSE

If an Import License is necessary to obtain admission into the country of destination of the Goods quoted the procurement shall be arranged by and at the cost of the Buyer who will also make the necessary arrangements for remission of funds to Australia.

11. SUSPENSION OF WORK

In the event of the suspension of work on the Buyer’s instructions or lack of instructions, the Contract price may be increased by QMW to cover any extra expense thereby incurred and QMW’s calculation of such increase shall be conclusive.

12. PROLONGATION

12.1 In the event that QMW is prevented from performing its obligations under the Contract within the terms and conditions herein due to any act or omission by any person, body or thing whatsoever, including strike action or act of God, then QMW has the right to extend the time to perform its obligations for a similar period to that for which it was unable to work.

12.2 If the prolongation is due to the Buyer or its agents failing to supply material, site access or facilities, information, drawings or do anything whatsoever that the Buyer or its agents should have done under its contractual obligations then the Buyer must pay prolongation costs as determined by QMW.

13. ACCEPTANCE INSPECTION

13.1 Unless stated in writing in the Contract, testing and inspection by the Buyer shall be at QMW’s workshop and shall be final.

13.2 All costs and fees incurred in connection with testing and inspection other than those specifically included in the Contract will be payable by the Buyer.

13.3 No claim for defective Goods shall be made by the Buyer after such testing and inspection by or on behalf of the Buyer.

14. STORAGE OF GOODS

QMW takes no responsibility for the storage and handling of the Buyer’s Goods whilst in QMW’s possession. Every care will be taken to ensure the safe handling of the Goods as per the manufacture’s recommendations but QMW is not responsible for any damage sustained. Charges are payable on all customer supplied goods left undelivered after seven (7) days from the date of completion of works. Failure to pick-up goods within this time may result in a Storage and Handling fee being chargeable @ Aud$100.00 per day.

15. INSURANCE

Unless otherwise stipulated herein in the Contract QMW shall not be responsible for loss or damage occasioned by burglary, fire, water accident or any other cause to the Buyer’s property when left in QMW custody and it shall not be obligatory on the part of QMW to insure or exercise special case with the Buyer’s property. If so directed by the Buyer, QMW will take out suitable insurance at the cost of the Buyer.

16. DELIVERY

16.1 Delivery of the Goods “Ex Works”, to a third party and/or site nominated by the Buyer is deemed to be delivery to the Buyer for the purpose of this agreement.

16.2 Any time or date for delivery is given and intended as an estimate only and QMW shall not be responsible for the consequences of delayed delivery howsoever arising. The Buyer shall accept delivery of the Goods ordered upon completion of manufacture by QMW but not earlier than the specified delivery time.

16.3 Packing and freight will be charged to and payable by the Buyer unless otherwise stated in the Contract. In the case of sales on an F.O.B or similar basis any risk for which QMW might otherwise be liable shall cease after the Goods have been put on the wharf, rail, ship or other vehicles at place of delivery whether or not freight may be arranged or carrier engaged by QMW for Buyer’s benefit or convenience.

17. FREIGHT

The Buyer agrees that as QMW has no control over the carrier’s conditions the Buyer accepts and abides by the conditions and stipulations on bills of loading and similar documents.

18. FORCE MAJEURE

QMW will have no liability to the Buyer in relation to any loss, damage or expense caused by QMW’s failure to delivery the Goods or delay in delivering the Goods as a result of fire, flood, strike, accident, lock-out, hindrance, riot, civil commotion, war, inability to produce or obtain raw materials or component parts or import or other licenses or any other occurrence beyond QMW’s control but any such delay shall not exempt the Buyer from the obligation to accept or take delivery of and pay for the said Goods.

19. WARRANTY

19.1 The Trade Practices Act 1974 and similar state laws in certain circumstances imply mandatory conditions and warranties (the “consumer warranties”). In such circumstances the Buyer has the benefit of both the consumer warranties and the warranties herein contained and in the event of any inconsistency the consumer warranties shall prevail. All other express or implied conditions or warranties in respect of the Goods are hereby excluded from the Contract.

19.2 Goods are hereby sold and warranted against any defect in workmanship appearing under proper usage within twelve (12) months from date of delivery.

19.3 No express warranty is given as to fitness or suitability of the Goods for any specific application or use unless expressly endorsed by QMW. To the extent permitted by the Trade Practices Act and like provisions in similar state laws the liability of QMW shall in any case be limited to the repair or replacement at the option of QMW of the defective material at the workshops of QMW.

19.4 The Buyer acknowledges that no person representing or purporting to represent QMW has authority to make any representations or warranties on behalf of QMW other than those set out expressly in the Contract and to the extent permitted by the Trade Practices Act and similar state laws, and any further express or implied representations and warranties are expressly void.

19.5 QMW reserves the right to make null and void the warranty should the Goods be modified, altered, damaged or put to any undue stress other than in the way the Goods were designed to perform. Work and/or service carried out on the Goods by anyone other than QMW and/or their nominated agents shall make the warranty null and void unless the Buyer obtains written approval from QMW before any remedial work is carried out.

20. CLAIMS

The Buyer must within thirty (30) days of the date of delivery of the Goods notify QMW in writing of any matter or thing by reason whereof the Buyer alleges that the Goods are not in accordance with Contract. Otherwise the Goods shall be deemed to be in all respects in accordance with the Contract and the Buyer shall be bound to accept and pay for the same accordingly.

21. RETURNS

21.1 Subject at all times to the provisions of the Trade Practices Act and like provisions in similar state laws, Goods returned to and accepted by QMW as defective will be dealt with in accordance with these conditions but shall not give rise to any claim on account of any loss, damage, expense or otherwise whatsoever.

21.2 Returns for credit will not be accepted except by authorised written agreement. The Buyer shall be solely liable for all freight costs of any return.

22. CONSEQUENTIAL LOSS

To the extent permitted by the Trade Practices Act and like provisions in similar state laws, QMW shall not be subject to, nor incur, and the Buyer hereby releases QMW from any claim, action or liability for consequential loss or damage to persons or property including loss of use of the Goods or of profits arising by reason of delays, non-delivery, defective materials or workmanship, negligence or any matter, conduct or thing done or omitted by QMW.

23. DEFAULT IN PAYMENT

Should the Buyer make default in payment or fail to carry out the terms of the Contract or fail to duly make payment under any contract with QMW or become insolvent or bankrupt or call a meeting of creditors or go into liquidation, voluntary or otherwise QMW may, not withstanding any waiver of any such default or failure, and without prejudice to its other rights under the Contract, suspend delivery or cancel the Contract or require payment in cash before or on delivery of the Goods, notwithstanding the terms of payment specified. QMW may exercise such rights either as to the whole or part of the contracted Goods. All Goods supplied by QMW remain the property of QMW until all monies outstanding to QMW in connection with the Contract (other than agreed retention monies if any) have been paid.

24. RETENTION OF TITLE
24.1 Title

Notwithstanding the delivery of the Goods or their installation, title in any particular Goods shall remain with QMW regardless of whether the Goods are onsold by the Buyer until the Buyer has paid and discharged any and all monies owing pursuant to any invoice issued by QMW for the Goods, including all applicable GST and other taxes, levies and duties. Should the Goods be installed into another piece of equipment to form part of that equipment, the Buyer shall ensure that the Goods remain separate, distinct and identifiable and shall be severable from the equipment into which it is installed. Goods belonging to QMW whether they are installed or in storage shall be marked permanently so they are identifiable as such. Any payment made by or on behalf of the Buyer which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge QMW’s title in the Goods nor the Buyer’s indebtedness to QMW and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.

24.2 Bailment

The Buyer acknowledges that it is in possession of the Goods solely as Bailee until payment of all invoices for the Goods is made pursuant to clause 24.1 and until that time:
(a) The Buyer is not entitled to sell the Goods but only in the ordinary course of business; and
(b) The Buyer shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery or installation of the Goods to the Buyer.

24.3 Repossession

The Buyer hereby irrevocably grants to QMW the right, at its sole discretion, to remove or repossess any Goods from the Buyer and sell or dispose of them, and QMW shall not be liable to the Buyer or any person claiming through the Buyer and QMW shall be entitled to retain the proceeds of any Goods sold and apply same towards the Buyer’s indebtedness to QMW. If the Buyer commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then QMW may, without prejudice to any other remedies it may have, repossess any Goods delivered to the Buyer on any account which has not been paid in accordance with the terms and conditions herein and commence proceedings to recover the balance of any monies owing QMW by the Buyer.

25. PRIVACY

25.1 The Buyer hereby authorises QMW to collect, retain, record, use and disclose consumer and/or commercial information about the Buyer in accordance with the Privacy Act 1988, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by QMW, a Debt Collector, Credit Reference Organisation and/or any other individual or organisation which maintains credit references and/or default listings.

25.2, The Buyer also authorises QMW to make enquiries with respect to the Buyer’s consumer and commercial credit worthiness; to exchange information with other Credit Providers in respect to previous consumer and commercial defaults of the Buyer and to notify other Credit Providers of a consumer and/or commercial default by the Buyer.

26. SECURITY AND CHARGE

The Buyer hereby charges all property, both equitable and legal present or future of the Buyer in respect of any monies that may be owing the Buyer to QMW under the terms and conditions or otherwise and hereby authorises QMW or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Buyer at any time or to register this charge over assets of the Buyer with the Australian Securities and Investments Commission.

27. SEVERABILITY

27.1 The Contract is to be regarded as severable in the event of the Goods being of different kinds or the Contract providing for delivery by installments and the separate items of the Contract shall be regarded as separately contracted for and each and every delivery under the Contract shall be regarded as a separate contract and damages arising from any alleged break of Contract by QMW shall be limited accordingly.

27.2 Any provision in these terms and conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms and conditions or affecting the validity or enforceability of that provision in any other jurisdiction.

28. GOVERNING LAW AND JURISDICTION

These terms and conditions are governed by the laws of the State of Queensland and all disputes arising between the Buyer and QMW will be submitted to the Brisbane Registry of any Court as is competent to hear the matter.

ADDITIONAL CONDITIONS
APPLICABLE TO CONTRACTS FOR
MAINTENANCE OR SUPPLY AND INSTALLATION OF GOODS.

29. MAINTENANCE

Maintenance services shall be charged at rates specified in QMW’s Contract or where no contract exists then at QMW’s current charges. Travel time from QMW’s workshop to the Buyer’s site and site to workshop will be charged on to the Buyer.

30. SITE ACCESS

QMW’s Contract is based on the assumption that access to the Buyer’s site with suitable provision for transport of all equipment, materials and plant and the actual site itself will be made readily available during the installation period and that reasonable space will be provided in and near the installation to take deliveries of materials and to store QMW equipment, and that the Buyer shall make available to QMW (at the costs of the Buyer) all necessary telecommunications, electrical power, compressed air, light, water, waste disposal amenities, toilet and other services and facilities at the site during the progress of the work.

31. SITE SECURITY

The Buyer agrees to provide site security for QMW’s tools and equipment should they be left unattended at the Buyer’s site. The Buyer shall indemnify QMW from costs, expenses or losses incurred should QMW’s tools and equipment go missing or suffer damage when left unattended at the Buyer’s site.

32. WORKING HOURS

Installation work will be carried out during normal working hours. Such work carried out at other times at the Buyer’s request will be subject to an extra charge.

33. CONDITIONS OF PREMISES

The Buyer warrants that the structure of the premises or equipment in or upon which the Goods are to be installed is sound and will sustain the installation and work incidental thereto and QMW shall not be liable for the Buyer agrees to indemnify QMW against any and all loss, damage and/or injury and by whomsoever sustained resulting from insufficient or defective foundation walls or other structures not erected by QMW.

34. FIRE DAMAGE

QMW will take all reasonable precautions against fire during site cutting, welding and other installation procedures. Insurance of buildings and contents etc. and the Goods installed during installation shall be the responsibility of the Buyer.

35. ACCEPTANCE TESTS

35.1 Upon completion of the work or any mutually agreed part thereof the Buyer and QMW shall carry out Acceptance Tests at an agreed date or dates to establish the ability of the work or mutually agreed part thereof.

35.2 To meet the performance complying with the specification the Buyer shall forthwith issue a Certificate of Acceptance of the work or part thereof which shall then be deemed to have been finally accepted or taken over by the Buyer. Acceptances shall not be unreasonably withheld because of minor omissions or deficiencies which do not affect the commercial use of the work provided always that QMW undertakes to make good such omissions and defects at the earliest date practicable.

35.3 If by any act of the Buyer, QMW shall be prevented from carrying out Acceptance Tests within thirty (30) days from the date of completion of the work or mutually agreed part thereof unless in the meantime performance shall have proved not to be substantially in accordance with the Contract, the work shall be deemed to have been accepted on the expiry of the said thirty (30) days and payments to QMW shall be made as if satisfactory Acceptance Tests had taken place.

35.4 Notwithstanding this provision QMW shall undertake these tests during the period provided for warranty as and when required within fourteen (14) days notice in writing from the Buyer and QMW will have the same obligations and liabilities in connection with the tests provided that the Buyer shall pay the extra expense incurred in such delayed testing.

36. QUALIFICATIONS

Orders are only acceptable upon and subject to the foregoing conditions of supply and (where the Contract is for maintenance or the supply and installation of goods) the conditions hereinafter set forth which constitute the whole agreement between the parties. Unless expressly agreed in writing by QMW any qualifications of these conditions in a Buyer’s form shall not apply.