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Terms of service

QWS Trading Terms and Conditions

It is at the discretion of QWS Pty Ltd, that the first 5 (five) transactions are paid in full and funds are cleared, before goods leave our premises or a third party premises.

Q.W.S. Pty Ltd ABN 61 074 439 919 trading as QWS Welding Supply Solutions (QWS). The person or entity applying for credit or ordering goods is the Customer.

1. Credit and Acceptance

1.1 The Customer agrees to be bound by these terms (as varied from time to time) for all orders. If more than one person signs, they are jointly and severally liable. 1.2 QWS may refuse any credit application, and may vary or withdraw any credit limit at its absolute discretion without giving reasons. Trading on credit is deemed acceptance of the application. 1.3 Queensland law governs, and the parties submit to the exclusive jurisdiction of the Queensland courts. The Vienna Sales Convention does not apply.

2. Orders, Quotes and Pricing

2.1 Price lists and quotes are an invitation to treat only. QWS may accept or reject any order at its absolute discretion, and is not obliged to supply until it accepts in writing. 2.2 Prices are exclusive of GST, freight, insurance and delivery charges, all of which the Customer pays. Prices may change without notice. 2.3 QWS may cancel or suspend any order, or refuse supply, if the Customer defaults on payment, becomes bankrupt, enters liquidation or administration, or cannot pay its debts as they fall due. 2.4 QWS is not liable for failure to supply due to events beyond its reasonable control (force majeure). If it can supply only part of an order, these terms apply to that part. Back orders are supplied on the terms applying when the original order was accepted.

3. Delivery

QWS will try to meet any stated delivery time but accepts no liability for delay or non-delivery. Delivery charges are the Customer's responsibility unless QWS agrees otherwise in writing before delivery.

4. Payment

4.1 Time is of the essence for payment. Payment is due before delivery, or for approved accounts within 30 days of the end of the month of the invoice (calculated from the invoice date, not the receipt date). 4.2 Any change to payment terms must be in writing and signed by a QWS director or company secretary. 4.3 Overdue amounts attract interest at the rate prescribed under s 58 Civil Proceedings Act 2011 (Qld) and/or r 283 Uniform Civil Procedure Rules 1999 (Qld) (or replacements). 4.4 The Customer pays all losses, expenses and collection costs from non-payment, including legal costs on an indemnity basis. 4.5 Payment is made when cash is tendered or when an other instrument is cleared by QWS's bank. QWS applies payments first to collection costs, then interest, then unsecured debts, then secured non-PMSI debts, then PMSI debts, each in order incurred.

5. Inspection, Claims and Returns

5.1 The Customer must inspect goods on delivery and give written notice within 2 business days of any non-conformity, otherwise (to the extent the law permits) the goods are deemed accepted. 5.2 Claims for short delivery or damage must be notified in writing within 7 days of delivery or collection, and the Customer must give QWS full access to the goods to test and examine them. Payment of any claim is at QWS's discretion. 5.3 Returns and cancellations need QWS's prior approval, must be made within 7 days, freight prepaid, in original saleable condition. A minimum 15% handling/restocking charge applies (except to "consumers" under the Competition and Consumer Act 2010 (Cth)), and the Customer indemnifies QWS for related freight, bank and other costs. Specially made or purchased goods and goods damaged or altered by the Customer cannot be returned. 5.4 Accepted orders cannot be cancelled or deferred without QWS's written consent and the Customer indemnifies QWS for all resulting loss.

6. Risk and Insurance

Goods are at the Customer's risk from delivery (or from delivery into the Customer's custody, if earlier). The Customer must insure them for full replacement value at its own cost, and provide the policy on request. This applies to part deliveries and to consigned goods.

7. Retention of Title

7.1 Goods remain QWS's property until all amounts owing for them are paid in full. Until then the Customer holds the goods as trustee and bailee for QWS, must store them identifiably and keep records, and may sell them only in the ordinary course of business as QWS's fiduciary and agent (without holding itself out as such). QWS is not bound by the Customer's contracts with third parties. 7.2 Sale proceeds must be held separately and accounted for until QWS is paid in full. 7.3 QWS may sue for the price even if title has passed, including by applying to wind up the Customer. 7.4 If the Customer breaches any contract with QWS, becomes insolvent or is placed under external administration, or parts with the goods other than by ordinary-course sale, QWS may without notice enter any premises where the goods are located to retake or dispose of them. 7.5 Consigned goods remain QWS's property, are at the Customer's risk and maintenance cost from delivery, and must be returned on written demand. 7.6 These provisions prevail over any credit arrangement.

8. PPSA

Each order creates a security interest in the goods (including consigned goods), which are collateral. QWS may register a financing statement and exercise all secured-party remedies. The Customer waives its right to notice of verification statements, agrees that neither party will disclose information under s 275(1) of the PPSA, and QWS may elect to contract out of any provisions permitted by s 115 of the PPSA.

9. Security Over Property

To secure all amounts owing, the Customer grants QWS a fixed charge over all real property it owns or later acquires and consents to QWS lodging a caveat. A Customer acting as trustee warrants it has authority under the trust deed to trade and grant this security. The Customer irrevocably appoints QWS's Credit Manager as attorney to create and register caveats and security interests.

10. Warranties and Liability

10.1 The Customer acknowledges that the use of the goods is beyond QWS's control, and that QWS's advice and recommendations are not warranties or guarantees. 10.2 To the extent permitted by law, all conditions, warranties and guarantees other than those imposed by statute (including the Competition and Consumer Act 2010 (Cth)) are excluded. 10.3 Where a statutory guarantee cannot be excluded, QWS's liability is limited, for goods, to repair, replacement, supply of equivalent goods or the cost of any of these, and for services, to resupplying the services or the cost of doing so. 10.4 Otherwise, QWS has no liability (including in negligence) for any loss or damage, including indirect or consequential loss, loss of profit, economic loss or loss of goodwill, arising from the goods or from advice or services relating to them.

11. General

11.1 No waiver by QWS of any breach waives any other breach, and QWS's conduct or omissions do not amount to a waiver. 11.2 These terms (and any non-excludable implied terms) are the entire agreement, subject only to written terms on a Customer order that QWS accepts in writing for that order. Prior negotiations, representations and collateral agreements are excluded. 11.3 QWS collects personal information to assess credit applications and supply goods, and may disclose it to credit reporting agencies. Without it, QWS cannot process the application or supply goods. QWS complies with the Privacy Act 1988 (Cth) and the Australian Privacy Principles, and individuals may access their information.

 

Personal Guarantee and Indemnity

In consideration of QWS supplying goods or giving credit to the Customer, each Guarantor named below agrees as follows.

1. Guarantee

The Guarantors unconditionally guarantee the due and punctual payment of the Guaranteed Moneys and agree that:

  • they will pay on demand any Guaranteed Moneys then due;
  • a statement signed by an authorised QWS representative is conclusive of the amount owing, absent manifest fraud or error;
  • the guarantee is continuing, remains in force until all Guaranteed Moneys are paid in full, and is additional to any other security or guarantee QWS holds, and their liability is not affected by anything that might otherwise discharge or reduce it at law or in equity;
  • if any payment is avoided, set aside, refunded or becomes unenforceable under insolvency laws, it is treated as never made and QWS may recover its value from the Guarantors (this survives discharge); and
  • the guarantee binds their personal representatives and assigns and is unaffected by death or bankruptcy.

2. Indemnity and Security

If the Customer's obligation to pay is unenforceable for any reason, the Guarantors separately, unconditionally indemnify QWS against any resulting loss.

The Guarantors, jointly and severally and as beneficial owners, charge all freehold and leasehold land they now own or later acquire with payment of the Guaranteed Moneys, and consent to QWS lodging a caveat.

4. Protections for QWS

  • No waiver: delay or partial exercise of any right is not a waiver. Rights are cumulative to those at law.
  • No competing proof: until released, the Guarantors will not prove in competition with QWS in the Customer's administration.
  • Application of money: QWS may apply money received against any debt it chooses, without regard to the Guarantors' benefit.
  • Laws excluded: laws that limit QWS's powers or require notices to be given are excluded as far as possible. Unenforceable parts are severed.
  • Trustees: a Guarantor signing as trustee is bound both personally and as trustee.
  • Costs: the Guarantors pay all QWS's costs of enforcing the guarantee, including legal fees, stamp duty and government charges.

5. Definitions and General

Administration includes any administration, liquidation, arrangement, receivership or similar. Guaranteed Moneys means all moneys now or in future owing or payable by the Customer to QWS for any reason, including principal, interest, fees, costs, indemnities, charges, duties, expenses & liquidated damages. A Customer liability that would exist but for its Administration is still treated as existing.

The QWS Trading Terms and Conditions and Personal Guarantee and Indemnity obligations are joint & several. References to a party include successors & permitted assigns. Queensland law governs & the parties submit to the exclusive jurisdiction of the Queensland courts. Each Guarantor confirms they sign voluntarily & understand the nature and consequences of the guarantee. Personal information is collected to process the credit application and guarantee and may be disclosed to credit reporting agencies.

IMPORTANT NOTICE: This document may require you to pay someone else's debts. Read & understand it - if necessary - seek independent legal advice.