The following sets out the terms and conditions of procurement for QM Properties.
These terms and conditions, as amended from time to time, subject to any variations we agree to in writing, apply to the purchase of all Products by the Company (the ‘Company’, ‘we’ or ‘us’) identified in the purchase order (‘Order’) from the Supplier (the ‘Supplier, ‘you’) identified in the Order and constitutes the entire Agreement between the parties. Any terms and conditions or Agreements prior to or subsequent (including in any way changing, modifying or amending the Order) notified to us by you will apply only to the extent that we expressly accept them in writing. Your Supply of the Goods and/or Services described in the Order constitutes acknowledgement and acceptance of these Conditions.
You will be deemed to have accepted our Order, giving rise to a contract for the Supply of the Goods and/or Services subject to these Conditions unless you reject the Order within two business days of its delivery.
1. DEFINTIONS AND INTERPRETATION
In these terms and conditions:
a) Agreement means the agreement between the Company and the Supplier consisting of these terms and conditions, the Order and any applicable Specifications;
b) Claim includes any request, demand or entitlement in relation to, arising out of or in connection with this Agreement or any Supply;
c) Company means the legal entity as named on the relevant Order;
d) Delivery Date (as stated in the Order) means:
i. In relation to Goods the date of delivery of the Goods; and
ii. In relation to Services, the date for completion of the Services.
e) Goods means the item(s) to be supplied by the Supplier set out in the Order (if any);
f) GST means the Goods and Services tax imposed under the A New Tax System (Goods & Services Tax) Act 1999 (Cth);
g) Insolvency Event means, in relation to the Supplier:
an application or order is made to or by a court or a resolution is passed for the winding up of the Supplier or notice of intention to propose such a resolution is given; or a controller (as defined in section 9 of the Corporations Act 2001 (Cth)) or an administrator under Part 5.3A of the Corporations Act 2001 (Cth) is appointed in respect of the Supplier, or the whole or any part of its undertaking or property;
h) Loss includes any losses, damages, liabilities and costs (including reasonable legal expenses);
i) Order means the purchase order, inclusive of these terms and conditions and any appendices, issued in writing by the Company to the Supplier. An Order may be issued either by hard copy or electronically to the Supplier;
j) Products means Goods and/or Services and includes and deliverables resulting from a Service;
k) Services means the services to be provided by the Supplier set out in the Order (if any) and any related services, functions or responsibilities not specifically described in the Order which are reasonably required for the proper performance and provision of such services;
l) Site means the site for delivery of the Goods or provision of the Services specified in the Order;
m) Specifications means, in relation to any Goods or Services:
i. the required functionality and performance criteria for the Goods or Services; and
ii. the functional and performance specifications set out or referred to in the Supplier’s standard documentation for the Goods or Services and in the event of any conflict or inconsistency between the functionality and performance criteria referred to in paragraphs (i) and (ii) immediately above, the functionality and performance criteria referred to in paragraph (i) prevails to the extent of such conflict or inconsistency;
n) Supplier means, the party identified as the Supplier in the Order;
o) Supply means the Goods to be supplied or the Services to be performed and the whole of the works to be executed in accordance with this Agreement.
a) Reference to:
i. the singular includes the plural and the plural includes the singular;
ii. a person includes a firm, body corporate, unincorporated association or authority and reference to a person includes their executors, administrators, successors and permitted assigns;
iii. a thing includes the whole and each part of it separately; and
b) “including” and similar expressions are not words of limitation.
2. WARRANTIES AND LIABILITY
2.1. The Supplier warrants and agrees in relation to Goods supplied that:
a) they will be complete, undamaged, free from defects and fit for purpose for which they are ordinarily used or that may be reasonably inferred from the Order;
b) they will be free of liens, charges, mortgages, claims and other encumbrances and any other security whatsoever;
c) they conform with any technical Specifications, plans, drawings and performance Specifications specified by us, published by you in relation to them, or implied by our proposed use of them;
d) they will be in accordance with the Order, relevant legislation and all applicable Australian Standards or codes or industry standards;
e) they are provided by qualified, licensed, skilled, competent, experienced and adequately trained people.
2.2. The Supplier warrants and agrees in relation to Services that:
a) they will be provided with due skill and care to a standard expected of an organisation experienced in the delivery of Services of this kind;
b) the Services will be performed promptly and in accordance with any time-table, schedule or Delivery Date defined in the Order or its Appendices.
c) where the Supplier will be providing installation Services on Site, the Supplier must Supply all labour, tools, equipment and materials necessary to complete the Service; the Supplier must do everything practicable not to impede or interfere with other works or activities on Site; the Supplier enters the Site at their own risk; and will perform as an independent Supplier, and not as an agent or employee of the Company;
d) you will comply with all applicable policies and procedures as they relate to the performance of the Services;
e) you will procure and maintain all licences, permits and authorisations necessary for you to Supply the Services; and
f) in Supplying the Services, you will comply with, and not do anything which would cause us to contravene any applicable laws.
3. PRICE AND PAYMENT
3.1. The price payable for the Supply is the price set out in the Order and is not subject to price variation and that:
a) payments will be made in accordance with the price specified on the Order (Price);
b) unless the Order expressly states otherwise, the Price includes: (i) any applicable GST; and (ii) all packing, insurance and delivery charges; and (iii) all other taxes and duties;
c) payment claims submitted prior to the entitlement arising will be invalid and rejected;
d) payment terms are within 30 days of the following month of receiving a valid tax invoice for GST purposes and must reference our Order number. Payment terms may not be amended unless otherwise agreed in writing prior to the issuance of a validly approved Order;
e) any payment on account does not constitute acceptance of satisfactory Goods or Services;
f) as well as any of our other rights, we may deduct from your invoice any amount you owe to us (including under any indemnity).
4.1. If to the extent that, the Supply of Goods and/or Services is a taxable Supply then, subject to our receipt of a valid tax invoice, in addition to and at the same time as we pay the Price (subject to clause 3.1(b), we will pay any GST payable for the taxable Supply.
4.2. All rebates, discounts or reductions in price will be calculated on the GST exclusive price.
5. OUR MATERIALS
5.1. Any, designs, drawings, or other material used in Supplying or manufacturing Products and that is paid for or supplied by us (‘our materials’) is our property.
5.2. While our materials are in your possession, you: (a) hold them solely as our bailee; (b) must store them securely and maintain them in good repair; (c) must use them only for the purpose of performing this Agreement; and (d) must return them to us on demand.
6. FOR THE SUPPLY OF GOODS
6.1. Delivery – The Supplier must deliver the Goods to the Site as stated in the Order and that
a) we will not be liable to pay for any Goods delivered in error or for over shipment of any quantity. Any return or replacement of such Goods shall be at the Suppliers expense;
b) the Goods must be delivered clearly marked for the attention of the Company including reference to a valid Order number;
c) employees or representatives of the Company signing for Goods delivered are not taken as acceptance of the quality or quantity of the Goods indicated on the delivery receipts;
d) the Supplier must advise us in writing if:
i. delivery is unlikely to take place on the due date; or
ii. there is a partial loss of, or damage to, or defects in any delivery of the Goods; and
iii. you must take all necessary steps to avoid or minimise any delay and must immediately replace any lost or damaged Goods or rectify any defects at your cost, if we so require.
6.2. Inspection and Quality
a) we may reject the Goods if you fail to comply with these terms and conditions; the Goods do not meet with our Specifications or the Goods do not comply with applicable laws, regulations, codes and Australian Standards;
b) reasonable time must be given for the inspection of the delivered Goods. We may direct the Supplier to rectify any shortage, discrepancy or non-conformity with the Specifications or replace the Goods (in either case) for a period of up to three (3) months after the delivery of the Goods, including where the Goods are:
i. not in sound working order;
ii. not in accordance with the requirements of the Order;
iii. not fit for their intended purpose or;
iv. damaged in transit.
c) the Supplier must comply with the direction at the first available opportunity and at the Supplier’s cost (including transportation charges). If the Supplier does not comply with the direction within a reasonable period (not less than 2 business days), we may rectify the defect, engage a third-party to rectify the defect, or replace the defective Goods;
d) the Supplier remains liable for any losses, costs, expenses, damages or liability suffered in relation to the defective Goods. Any action taken under this clause is not a waiver of the Company’s other rights and remedies;
e) payment for the Goods, signing of a delivery docket or other acknowledgment of delivery does not prejudice our right of rejection.
6.3. Title and Risk
a) title to and risk in Goods passes to us on delivery of the Goods and;
b) any intellectual property rights created from your performance of this Agreement vest in and are assigned to us on creation.
7. FOR THE SUPPLY OF SERVICES
7.1. Performance of Services
a) The Supplier understands that Company’s protection of its reputation and its intellectual property are of utmost importance. The Supplier will perform the Services diligently, competently, professionally, in a timely manner, and in full compliance with all applicable laws, regulations, and industry ethical standards, and in full compliance with the terms of this Agreement. The Supplier warrants and represents that execution and performance of this Agreement by the Supplier does not and will not result in any violation of any laws, rules or regulations;
b) The Supplier must perform the Services promptly and, in any event, in accordance with any timeframes which have been agreed to in writing by the Company or as defined by the Delivery Date of the Order, and in full compliance with the Order.
8.1. You must treat all information received or obtained as confidential and not directly or indirectly disclose, use, record, memorise, reverse engineer or copy it for any other purpose other than to perform the requirements of this Agreement.
8.2. You must not disclose any of our information in any advertising, referral or publicity material without the express consent of the Company.
9.1. You must comply, and must ensure that your representatives comply, with all applicable privacy laws.
10. INDEMNITY AND INSURANCE
10.1. The Supplier will indemnify and hold harmless the Company, our officers, employees, agents and customers against all loss, damage, claim, expense or liability incurred because of, or arising out of (a) your performance or breach of this Agreement; (b) any Products you Supply; (c) a claim by a third party that the Products infringe their intellectual property rights; and (d) any negligent or wilfully wrong act or omission by you, your employees, agents and contractors;
10.2. The Supplier will, for so long as any obligations remain in connection with this Agreement, effect and maintain appropriate insurance policies at its cost in relation to the Product/s and/or Services supplied. You must provide evidence of your valid insurance upon request. Except where otherwise agreed in writing in relation to a particular Order, required insurances include (as applicable):
a) public and products liability insurance with cover of not less than $20,000,000 at all times, unless otherwise agreed.
b) workers’ compensation, work care or equivalent insurance in accordance with legislation applicable to the state or territory in which the Services are to be performed or Goods to be supplied and in which the Supplier employs persons together with unlimited cover for common law liability where permissible by Law.
c) professional Indemnity insurance for an amount not less than $10,000,000 for any one loss and in the aggregate each policy year, for any civil liability arising out of the Supplier’s professional Services or activities.
d) Material Damage insurance to cover physical loss, destruction or damage to the property of the Company under the Supplier’s care, custody and control or where the Supplier has accepted the risk of such loss or damage. Such property must be insured for its replacement cost.
11.1. The Supplier may not assign, sub-contract, novate, transfer or otherwise dispose of any or all its rights and/or obligations under this Agreement without the prior written consent of the Company, which we may grant or withhold at our sole discretion. You will remain principally liable for the performance obligations of this Agreement and the acts and omissions of any sub-contractor.
12. TERMINATION AND DEFAULT
12.1. If the Supplier breaches a material term of this Agreement then the Company may give the Supplier notice specifying the breach and require the breach to be rectified (if it is capable of being rectified) within 5 business days of receipt of the notice. If the Supplier does not rectify the breach within 5 business days or if the breach is not capable of rectification, then the Company may terminate this Agreement at any time by giving 14 calendar days’ notice of termination.
12.2. The Company may terminate this Agreement should the Supplier become or threaten to become insolvent, bankrupt, enter into an arrangement with creditors or any form of external administration; or are unable to in any way complete your obligations under this Agreement or are subject to an Insolvency Event.
12.3. Despite any other provision in this Agreement, the Company mat at its discretion, terminate this Agreement at any time in part or in whole without cause and without obligation to pay compensation by giving the Supplier 30 calendar days’ prior written notice.
13.1. Waiver – Waiver of any right, power, authority, discretion or remedy arising from any breach of this Agreement must be in writing and signed by the party granting the waiver
13.2. Governing Law – This Agreement is governed the law of the State of Queensland and the parties irrevocably submit to the non-exclusive jurisdiction of its courts.
13.3. Notices – All notices or other communications under this Agreement hand delivered or sent by prepaid post or electronically. A notice will be deemed given in the case of prepaid post, on receipt by the addressee; in the case of hand delivery or registered mail, on acknowledgment of receipt by an officer or authorised employee, agent or representative of the receiving party or by the receiving party themselves; and in the case of electronic means, on acknowledgement of receipt by the addressee or upon the addressee responding (other than a response indicating an error or problem in transmission).
13.4. Parties – A reference to a party to this Agreement includes that party’s successors, executors, administrators, and permitted assigns.
a) The rights, obligations and indemnities in clauses 2 (Warranties and Liability), 5 (Our Materials), 6.3 (Title and Risk), 7 (Confidentiality), 9 (Indemnity and Insurance) and 11 (Termination and Default) survive the termination or expiry of this Agreement;
b) Any clause which contemplates that a party has any rights or obligations after the termination or expiry of this Agreement also survives termination or expiry.