Terms of service.
Payment Terms:
50% deposit on order and balance prior to delivery.
Delivery
Buyer must have appropriate equipment on site to off load the product when delivered to site.
If no excavator or telehandler available on site and Tunnelwell needs to unload using our truck hiab charged at $120/HR.
Terms and Conditions of Sale
Application
These terms and conditions of sale (Terms and Conditions) apply in every case where Sentry Holdings Pty Ltd (ABN 61 009 277 838) trading as Tunnelwell®, (Tunnelwell) provides goods of any kind (Goods) to a buyer of the Goods (Buyer), including a buyer specified in Tunnelwell’s quotation document (Quotation). Acceptance of Goods by the Buyer is conclusive evidence before any court that these Terms and Conditions (as varied from time to time) apply and are binding on the Buyer.
These Terms and Conditions prevail to the extent to which they are inconsistent with any agreement, trading terms or other communication provided by the Buyer to Tunnelwell.
Quotations
A Quotation is an offer by Tunnelwell to provide Goods to the Buyer and will not create any contract for the supply of Goods between Tunnelwell and the Buyer until the Buyer accepts the Quotation by written communication to Tunnelwell or by its conduct in accepting delivery of the Goods.
Tunnelwell may withdraw, revoke or vary a Quotation at any time prior to the Buyer accepting the Quotation.
A Quotation expires on the date specified as the expiry date in the Quotation. If no expiry date is specified, the Quotation expires 30 days after the date of the Quotation.
Where in the period between acceptance of a Quotation and the supply of Goods, Tunnelwell incurs an increase in the cost of supplying the Goods (including an increase in the costs of any raw material used to manufacture the Goods), Tunnelwell reserves the right to (at any time prior to supply) increase the quoted price of those Goods by the same amount by which Tunnelwell’s costs increase (Price Escalation). The Buyer accepts any such Price Escalation.
Price and Payment
Subject to any price adjustments pursuant to these terms and conditions, the amount payable by the Buyer to Tunnelwell for the supply of Goods shall be the price set out in the Quotation.
The Buyer must pay to Tunnelwell the whole amount of any debit balance shown on an invoice (Invoice) issued by Tunnelwell to the Buyer. The payment terms will, unless otherwise advised by Tunnelwell, be as set out in the Quotation.
All amounts payable by the Buyer under these Terms and Conditions must be paid by electronic funds transfer (EFT), to the account specified in the Invoice, in Australian Dollars and without deduction, retention or set-off of any kind and for any reason whatsoever.
All prices quoted by Tunnelwell in a Quotation are, unless otherwise specified by Tunnelwell, “Ex-Works” prices. If the Buyer requests delivery to site, then the transport costs for the Goods will be added to the amount payable by the Buyer. Should the delivery incur extra costs due to wait time, access issues or held over requirements, the added costs shall be invoiced by Tunnelwell to the Buyer for immediate payment.
Tunnelwell does not accept responsibility or liability for any action(s) and/or inaction(s) of third parties (including transport service providers) and shall not be liable for any delay, loss or damage of any kind which occurs while Goods are in the custody or control of a third party.
Payments made by the Buyer by credit card shall incur a payment processing fee (equivalent to the costs incurred by Tunnelwell for processing the payment) which shall be paid by the Buyer.
In addition to the amount payable by the Buyer to Tunnelwell for the supply of Goods, the Buyer will pay to Tunnelwell any GST (as defined in the A New Tax System (Goods and Services Tax) Act 1999) or other tax in the nature of a tax on sales related to, or arising out of, the supply of the Goods by Tunnelwell and any other taxable supply arising under these Terms and Conditions.
The Buyer agrees to hold Tunnelwell fully indemnified with respect to all GST or other sales tax paid or payable by Tunnelwell in respect of any supply to the Buyer.
Default and Consequences of Default
In the event that the Buyer fails to make any payment when due then (without prejudice to the application of any other provision contained in these Terms and Conditions or to any other remedy provided for by these Terms or Conditions or otherwise):
the Buyer must (on demand) pay to Tunnelwell interest on the amount of the overdue payment calculated daily at the rate of ten percent (10%) per annum from the date payment was due until the date that it is paid in full; and
Tunnelwell may withhold the supply of Goods and may (in addition but without limiting the preceding right) cancel all outstanding orders by the Buyer and retain any payments already made.
The Buyer unconditionally and irrevocably agrees to hold Tunnelwell fully indemnified against all costs and disbursements (including, without limitation, legal and/or collection agency costs) incurred by Tunnelwell in pursuing any outstanding amount or amounts owing by the Buyer to Tunnelwell which have not been paid by their due date for payment.
Without prejudice to any other remedies which Tunnelwell may have at law or in equity, Tunnelwell shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to Tunnelwell shall, whether or not due and payable, become immediately payable in the event that:
any money payable by the Buyer to Tunnelwell becomes overdue, or in Tunnelwell’s opinion the Buyer will be unable to meet its payments as they fall due; or
the Buyer becomes bankrupt, insolvent, convenes a meeting with its creditors or proposes to or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise), trustee in bankruptcy or similar person is appointed with respect to the Buyer or any asset of the Buyer.
Goods
Minor variations in the Goods as to components, thickness, dimensions, quantity, and the like shall be permissible and shall not constitute cause for the Buyer’s rejection of the Goods.
It is solely the Buyer's responsibility to determine whether the Goods are suitable for the Buyer’s specific needs, and there are no representations or warranties given by Tunnelwell except as set out in these Terms and Conditions.
The Buyer shall be fully responsible for compliance with all governmental laws, rules, and regulations governing, and assumes all risks and liabilities arising with respect to, transport, unloading, discharge, storage, handling, installation and use of the Goods.
Tunnelwell Warranty
Subject to the limitations and exclusions specified at clauses 6.2 to 6.5 and clause 7 below, Tunnelwell warrants that the Goods provided by the Buyer shall be free from defects in materials and workmanship in normal use and service. This warranty is applicable only to the Buyer and there are no other intended beneficiaries of the warranty.
For the warranty at clause 6.1 to apply, the Goods must be installed in accordance with applicable product and/or industry specifications and guidelines, manufacturer’s installation instructions (including any variations thereto made by Tunnelwell) and accepted good industry practices. Specifically excluded from the warranty is damage to the Goods arising from ordinary wear and tear, alteration or repair by anyone other than Tunnelwell, accident, misuse, abuse, or neglect, or arising from any other event not caused by Tunnelwell.
Tunnelwell’s obligation under clauses 6.1 and 6.2 shall not include any transportation charges or costs of installation.
The Buyer shall, within seven (7) days of the supply of any Goods (time being of the essence), notify Tunnelwell of any alleged defect, error, omission, shortage in quantity, damage or failure of Tunnelwell to comply with the Quotation. The Buyer shall afford Tunnelwell an opportunity to inspect the alleged defect, error, omission, shortage in quantity, damage or failure to comply within a reasonable time of receiving notification. If the Buyer fails to give notice in accordance with this clause 6.4, the Goods shall be presumed to be free from any defect, error, omission, shortage in quantity, damage or failure to comply.
Goods will not be accepted for return other than in accordance with clause 6.
Limitation of Liability
To the extent permitted by the law the liability of Tunnelwell whether in contract, tort, or otherwise in respect of all claims for loss, damage or injury in respect of any Goods arising from a breach of any of Tunnelwell’s obligations under contract, in equity or from any negligence or any act, matter or thing done or omitted to be done or permitted to be done or not done by Tunnelwell, its servants, agents and contractors shall not in the aggregate exceed the amount paid or payable by the Buyer to Tunnelwell for the Goods.
To the extent permitted by law, Tunnelwell is not liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by the Buyer or its servants, agents or contractors in connection with any Goods (including as a result of a breach by Tunnelwell of these Terms and Conditions) and the Buyer acknowledges this express limit of liability and agrees to limit any claim accordingly.
To the extent permitted by law but except as otherwise provided in these Terms and Conditions, all express and implied warranties and guarantees in respect of the supply of any Goods are hereby expressly excluded and Tunnelwell shall not be liable for loss or damage (including consequential loss or damage) of any kind arising in connection with the supply of any Goods. Tunnelwell’s liability specifically excludes the cost of removal and/or installation of the Goods.
Indemnity
The Buyer agrees to hold Tunnelwell and its employees and agents fully indemnified and harmless from and against all loss including, but not limited to:
legal costs and expenses on a solicitor and client basis;
loss (including consequential loss) in relation to property;
loss in respect of personal injury, disease, illness or death;
economic loss; and
loss in relation to the environment;
caused by a breach by the Buyer of these Terms and Conditions, or any wilful, unlawful or negligent act or omission by the Buyer. Tunnelwell and its employees and agents shall not be held responsible for any loss suffered by the Buyer (whether by disruption to the Buyer’s normal business operation, defect in workmanship or any other reason whatsoever) in relation to the supply of Goods by Tunnelwell if the loss is caused by or arises as a result of such breach, act or omission.
Rights in Relation to Goods
The Buyer and Tunnelwell agree that:
Property and ownership (including legal and equitable title) in all Goods sold or otherwise provided by Tunnelwell to the Buyer remains with Tunnelwell until all money which the Buyer (now or in future, actually or contingently) owes to Tunnelwell is paid in full;
All risk for the Goods passes to the Buyer on those Goods leaving Tunnelwell’s possession, subject to any other arrangement agreed between the Buyer and Tunnelwell in writing;
The Buyer shall insure (and keep insured) all Goods on the following conditions until such time as property and ownership (including legal and equitable title) in the Goods passes to the Buyer:
The Goods shall be insured for their full insurable or replacement value (whichever is higher); and
The Goods shall be insured by an insurer licensed or authorised to conduct the business of insurance in the place where the Goods will be stored;
If any Goods are damaged or destroyed before title in those Goods passes to the Buyer, Tunnelwell is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions (including the right to recover payment of the balance of the price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the price has become payable under these Terms and Conditions. The production of these Terms and Conditions by Tunnelwell is sufficient evidence of Tunnelwell’s right to receive the insurance proceeds without the need for any person dealing with Tunnelwell to make further enquiries.
If the Buyer fails to pay for the Goods within any period of credit (if any) extended by Tunnelwell to the Buyer:
The Buyer shall deliver the Goods to Tunnelwell, when demanded by Tunnelwell or its agent; or
Tunnelwell may recover possession of the Goods by any necessary means at any site owned, possessed or controlled by the Buyer;
The Buyer agrees that Tunnelwell has an irrevocable licence to exercise its rights under clause 9.2;
The Buyer shall be liable for all costs associated with the exercise of Tunnelwell’s rights under clause 9.2, and this liability shall be payable on demand.
Tunnelwell and the Buyer agree that, until property and ownership of (including legal and equitable title) the Goods has passed to the Buyer:
The Buyer will not supply any of the Goods to any third party outside of its ordinary or usual course of business;
The Buyer will not grant or register (or allow any person to have, acquire or register) any ‘Security Interest’ (within the meaning of the Personal Property Securities Act 2009 (PPSA)) in the Goods;
The Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by Tunnelwell;
The Buyer must not remove, deface or obliterate any identifying mark or number on any of the Goods;
Where the Buyer is in actual or constructive possession of the Goods:
The Buyer shall hold the Goods as fiduciary bailee and agent for Tunnelwell;
After giving 48 hours notice to the Buyer, Tunnelwell shall be entitled to enter upon the Buyer’s premises between 9 am and 5 pm to inspect the Goods;
The Buyer will not deliver the Goods, or any document of title to the Goods, to any person except as directed by Tunnelwell;
The Buyer shall store the Goods separately and in a manner that enables the Goods to be identified and cross-referenced to particular invoices issued to the Buyer by Tunnelwell; and
Without limiting the effect of Division 2 of Part 2.4 of the PPSA (Proceeds and Transfer) or any other provision of the PPSA, the proceeds of any Goods sold shall be kept in a separate account and shall not be mixed with any other moneys, including funds of the Buyer.
Without limiting the effect of Part 3.3 (Accessions) or Part 3.4 (Processed or Comingled Goods) of the PPSA, the Buyer acknowledges that if it should mix the Goods with other products or items such that the Goods are no longer separately identifiable, then the Buyer and Tunnelwell shall be owners in common of the new product.
The Buyer has no right to claim any interest in the Goods to secure any liquidated debt or obligation Tunnelwell owes to the Buyer.
Intellectual Property
For the purposes of this clause 10, ‘Intellectual Property Rights’ means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property right, anywhere in the world whether or not registered.
Nothing in these Terms and Conditions constitutes a transfer of any Intellectual Property Rights. Tunnelwell reserves all Intellectual Property Rights.
Tunnelwell (and its licensors as applicable) own all proprietary and Intellectual Property Rights in the Goods (including in their specification and design). The Buyer must not:
reproduce, copy, distribute or create derivative works from, any part of the Goods; or
commercialise, copy, or on-sell any part of the Goods.
Notice
Notice served pursuant to these Terms and Conditions or any contract made thereunder may be delivered by post, or by facsimile to:
In the case of the Buyer, at the postal or facsimile address specified in the Quotation or notified in writing by the Buyer to Tunnelwell in accordance with this clause 11; or
In the case of Tunnelwell, at its office as listed in the Quotation or as notified in writing by Tunnelwell to the Buyer in accordance with this clause 11.
Notice is taken to be given:
In the case of ordinary post, the second business day after the day of posting; or
In the case of facsimile, the business day following the date of transmission provided that the sender has received confirmation receipt.
Assignment
Tunnelwell may assign, licence or sub-contract all or any part of its rights or obligations arising under these Terms and Conditions without the Buyer’s consent.
The Buyer must not dispose of, assign, licence, encumber or otherwise deal with its interest in or rights and obligations under these Terms and Conditions or any contract made hereunder without the express prior written consent of Tunnelwell which it may withhold in its absolute discretion.
General
Upon acceptance of these Terms and Conditions by the Buyer, these Terms and Conditions become binding and, subject to clause 15, can only be amended with the written consent of Tunnelwell.
The Buyer shall give to Tunnelwell not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer or any change to the Buyer’s constitution, membership, control status, or the Buyer’s name and/or any other change in the Buyer’s details including, but not limited to, changes in the Buyer’s address, facsimile number or business practice. The Buyer shall be liable for any loss incurred by Tunnelwell as a result of the Buyer’s failure to comply with this clause 14.2.
If any provision of these Terms and Conditions or their application to any person or circumstance is or becomes invalid or unenforceable, that provision will be taken to be omitted without invalidating or modifying the remaining provisions of these Terms and Conditions which will continue in full force and effect as if the invalid or unenforceable provision had not been included in them.
These Terms and Conditions and any contract to which they apply shall be governed by the laws of Western Australia and the Buyer irrevocably submits to the non-exclusive jurisdiction of the courts of that jurisdiction.
The Buyer acknowledges that the Buyer has had the opportunity to obtain independent legal advice before accepting these Terms and Conditions.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
The failure of Tunnelwell to enforce any provision of these Terms or Conditions or any provision of any contract made thereunder shall not be treated as a waiver of that provision, nor shall it affect Tunnelwell’s right to subsequently enforce that provision.
Variation
Tunnelwell may vary these Terms and Conditions from time to time.
Tunnelwell may give notice of any variation of these Terms and Conditions on its website and may (but is not obliged to) notify the Buyer that it has varied these Terms and Conditions in an invoice, statement or other written communication by Tunnelwell to the Buyer. If the Buyer continues to deal with and place orders for the supply of Goods with Tunnelwell after any such notification to the Buyer, the Buyer is taken to have agreed to those Terms and Conditions and to have taken supply of Goods on those varied Terms and Conditions.