Terms & Conditions
PRIVACY NOTICE AND CONSENT
Privacy collection statement
AJ Davy & BA Quarrell trading as Allwell Drilling Services (Allwell) collects personal information to operate its business, including marketing its services.
If personal information is not provided on request, Allwell may not be able to provide the goods and services ordered.
Allwell may disclose personal information to its contractors who assist Allwell in operating its business.
Allwell Drilling Services
PO Box 1821 Howard Springs NT 0835
Obtaining reports from credit-reporting agencies
Allwell gives notice that it may give personal information about an individual who is the Buyer, a partner in the Buyer, a Director of the Buyer or a Guarantor to a credit-reporting agency for the following purposes:
- to obtain a consumer credit report about the individual, and/or
- to allow the credit reporting agency to create or maintain a credit information file containing information about the individual.
The information that may be given is limited to:
- identity particulars-name, sex, current address, previous two addresses, date of birth, name of employer, drivers licence number,
- the fact that the individual has applied for credit and the amount,
- the fact that Allwell is a current credit provider to the individual,
- payments that are overdue for more than 60 days, and for which debt collection action has started,
- advice that payments are no longer overdue in respect of any default that has been listed,
- information that, in the opinion of Allwell, the individual has committed a serious credit infringement (that is, acted fraudulently or shown an intention not to comply with the individual’s credit obligations),
- cheques drawn by the Buyer for $150 or more which have been dishonoured more than once.
This information may be given before, during or after the provision of credit to the Buyer.
Obtaining and exchanging information about individuals who are Buyers or partners in Buyers
Each individual who is the Buyer, or a partner in the Buyer, agrees that:
- Allwell may obtain information about the individual from a credit-reporting agency if Allwell considers it relevant to the assessment of the Buyer’s application for credit;
- Allwell may obtain information about the individual from the individual’s employer that may include the nature of the employment (full time, part time, contract or casual), the length of employment, the minimum hours, and the rates of pay);
- Allwell may exchange information about the individual (which can include anything about the individual’s credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act) with those credit providers named in this Application or in a consumer credit report obtained by Allwell for the following purposes:
- to assess an application by the individual for credit,
- to notify other credit providers of a default by the individual,
- to exchange information with other credit providers as to the status of the Buyer’s account where the individual is in default with other credit providers, and
- to assess the individual’s credit worthiness.
Obtaining information about individuals who are Directors of Buyers
Each individual who is a Director of the Buyer, and who has signed this Application, agrees that Allwell may obtain information about the individual from a credit-reporting agency if Allwell considers it relevant to the assessment of the Buyer’s application for credit.
Obtaining information about individuals who are Guarantors
Each individual who is a Guarantor, and who has signed this Application, agrees that Allwell may obtain information about the individual from a credit-reporting agency if Allwell considers it relevant to the assessment of whether to accept the individual as a guarantor in respect of credit the Buyer has applied for or obtained.
TERMS AND CONDITIONS OF SUPPLY
In these Conditions:
Australian Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010.
Buyer means the buyer specified in the attached Application for Credit Account or if there is no such application, or there is no buyer specified in the application, the purchaser of the Goods or Services from Allwell and includes any servants, agents, or contractors acting on behalf of the Buyer where the context permits.
Allwell means AJ Davy & BA Quarrell trading as Allwell Drilling Services ABN 63 585 461 515.
Conditions means these terms and conditions of sale.
Consumer means a “consumer” as that term is defined in Section 3 of the Australian Consumer Law.
Consumer Contract means a contract for supply of Goods or Services by Allwell to the Buyer as a Consumer.
Consumer Guarantees means the consumer guarantees under the Australian Consumer Law.
Contract means a contract for the supply of Goods or Services in accordance with these Conditions, as evidenced by the acceptance of any Order from the Buyer to Allwell.
Date of Acceptance means the date that Allwell approves the Application for Credit Account made by the Buyer or otherwise notifies the Buyer that these Conditions apply to the supply of Goods or Services by Allwell to the Buyer.
Goods means the goods supplied by Allwell to the Buyer from time to time and which are the subject of an Order.
Implied Terms means any guarantees, conditions, warranties or other terms implied by any Australian Commonwealth, State or Territory laws (excluding the Australian Consumer Law), or the laws of any other jurisdiction.
Land means the land described as the address for the provision of Services in any Order.
Order means any order for the supply of Goods or Services from Allwell to the Buyer from time to time in a form acceptable to Allwell.
PPSA means the Personal Property Securities Act 2009.
Quotation means a quotation supplied by Allwell to the Buyer in respect of Goods or Services.
Services means services supplied by Allwell to the Buyer from time to time and which are the subject of an Order.
These Conditions apply to all Goods or Services supplied by the Allwell as from the Effective Date and the Buyer is deemed to have read and agreed to these Conditions prior to the placing of any Order.
These Conditions shall prevail over all inconsistencies in an Order and Quotation, unless Allwell expressly agrees otherwise and that agreement is acknowledged in writing.
Allwell reserves the right to vary, add or substitute to these Conditions from time to time and any such variations to these Conditions will have effect from the date of publication of such changes to Allwell’s customers.
SHORTAGE AND NON-CONFORMING SUPPLY
Allwell will endeavour to ensure that the Goods conform with the descriptions contained in relevant catalogues, drawings, literature and advertising materials.
Allwell reserves the right to supply Goods which do not conform with descriptions referred to in clause 3.1 or the Buyer’s order for the Goods provided that such non conformity is not material.
The Buyer waives any claim for shortage of any Goods delivered or failure to supply Goods conforming with the Order if a claim for short delivery or failure to supply Goods conforming with the Order has not been lodged with Allwell within seven (7) days from the date of delivery of Goods by the Buyer. Any claim must be submitted in writing in a form approved by Allwell.
The delivery times made known to the Buyer are estimates only and Allwell is not liable for late delivery or non-delivery.
The Buyer may cancel an order for Goods or Services purchased under a Consumer Contract if Allwell is unable to deliver the Goods or Services within 90 days of any specified delivery date.
Except where clause 4.2 applies:
Allwell is not liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery of Goods or Services;
late delivery or non-delivery does not vary these Conditions or relieve the Buyer from its obligations to accept and pay for Goods or Services.
Allwell may at its option deliver Goods or Services by portion unless otherwise agreed in writing by Allwell.
Where Allwell delivers by portion, Allwell may issue invoices to the Buyer pro rata with such deliveries.
Delivery of Goods will be taken to have occurred when the Goods or Services are:
collected by the Buyer or the Buyer’s agent; or
Offloaded on the Land or at the Buyer’s nominated point of delivery.
Goods are at the risk of the Buyer after delivery.
ACCESS TO SITE AND OTHER ASSISTANCE
The Buyer must permit and facilitate Allwell to have access to the Land (and any adjoining land) at such times and on such notice as Allwell reasonably requires in connection with the supply of the Services.
The Buyer must ensure the safety of any person gaining access to the Land and adjoining land under clause 5.1.
The Buyer must provide such written instructions and any other information or assistance reasonably required by Allwell in connection with the supply of the Services.
The Buyer warrants that any information provided to Allwell under clause 5.3 is complete and is true and correct.
Supply the Services in a professional manner and with due care, skill and diligence;
comply with all statutes, acts, ordinances, by-laws, proclamations, orders or regulations affecting the supply of the Services; and
unless otherwise agreed in writing, provide at its own cost all labour, plant, tools and equipment reasonably required for the supply of the Services.
AUSTRALIAN CONSUMER LAW
Where the Contract under which the Buyer purchases Goods or Services is a Consumer Contract (ie where the Buyer is a Consumer):
the Goods or Services are supplied subject to the Consumer Guarantees;
if the Goods or Services fail to meet any Consumer Guarantee, the Buyer will be entitled to such rights and remedies as are permitted or provided in the Australian Consumer Law for such failure, to the extent that such rights and remedies cannot be lawfully excluded;
the Buyer may only exercise any right or remedy for breach of a Consumer Guarantee strictly in accordance with the rights and responsibilities of the Buyer under the Australian Consumer Law;
where Goods or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then, unless Allwell is the manufacturer of the Goods under the Australian Consumer Law, Allwell’s liability for breach of a Consumer Guarantee is limited at Allwell’s option to repairing or replacing the Goods or Services, supplying equivalent goods or services or paying the costs of the repair or replacement of the Goods or Services or of acquiring equivalent goods or services.
Where the Buyer resupplies Goods to a Consumer and the Goods are not ordinarily acquired for personal, domestic or household use or consumption, Allwell’s liability to the Buyer in connection with any breach of a Consumer Guarantee in respect of the Goods is limited to paying to the Buyer an amount equal to the cost of replacing the Goods, supplying equivalent goods or services or having the Goods repaired, whichever is the lower amount.
GENERAL LIMITATION ON LIABILITY
This clause 8 does not limit the liability of Allwell under Consumer Contracts.
Allwell shall not be liable for any guarantee, warranty
or representation as to the quality, performance, and fitness for purpose or otherwise of any Goods or Services unless expressed in writing and any such warranty or representation shall be limited to its express terms.
None of the Implied Terms apply to any Contract except to the extent that they cannot be lawfully excluded.
Allwell’s liability for breach of any provision of any such Contract or for breach of any Implied Terms which by force of law cannot be excluded from applying to any such Contract is limited at the option of Allwell to repairing or re-supplying Goods or Services which have been found defective, or, paying the cost of repairing or re-supplying Goods or Services which have been found defective.
Allwell is not liable in tort for any loss or damages suffered by the Buyer or by any third party.
In no circumstance whatsoever shall Allwell be liable to the Buyer or to any third party for any loss of data or profits, loss of anticipated savings, economic loss or interruption of business or for any indirect or consequential loss (“Consequential Loss”) arising out of the late delivery of Goods or Services or any failure to perform or observe Allwell’s obligations under any Contract or Implied Terms and the Buyer will keep Allwell fully indemnified against any claim made against Allwell by a third party for any such Consequential Loss.
PRICES AND GST
Unless otherwise stated all prices quoted by Allwell are net, exclusive of Goods and Services Tax (GST).
GST applied to all supplies of Goods or Services made by Allwell and the amount payable by the Buyer will be increased by a percentage equal to the prevailing of GST rate at the time of delivery of the Goods or Services.
CREDIT PAYMENT ARRANGEMENTS
Where project credit has been approved for the Buyer, the purchase price for the Goods or Services is payable within 14 days from the date of invoice unless other terms of payment are expressly stated on the invoice. If payment is made on or before the due date, the agreed settlement discount (if any) may be deducted from that payment.
Allwell reserves the right to withdraw approval of an Application for Credit Account for the Buyer at any time by notice to the Buyer.
The Buyer warrants:
that all information set out in the Credit Application in respect of the Buyer is true and accurate; and
that the persons whose signature appears on the Credit Application are duly authorised to apply for credit with Allwell on behalf of the Buyer.
The Buyer charges its interest in the Land as security for the performance of its obligations in favour of Allwell under the Contract for the supply of Services in respect of that Land.
Allwell may lodge a Caveat under the charge in clause 10.4 (which may be an absolute Caveat) against any title or titles to the Land to protect its interest as equitable chargee under clause 10.4.
If Allwell lodges a Caveat on the title or titles to the Land under clause 10.5, Allwell must immediately withdraw the Caveat on satisfaction of the Buyer’s obligations under the Contract.
The Buyer must pay within seven days of demand, Allwell’s costs of preparing and lodging the above Caveat and withdrawing the Caveat in accordance with this clause.
Allwell reserves the right to request such additional security for any credit arrangements with the Buyer as Allwell shall in its discretion think fit and shall be entitled to withhold supply of any Goods or Services or credit arrangements until such additional security is provided by the Buyer.
Where no Application for Credit Account has been approved for the Buyer, or approval of the Application for Credit Account is withdrawn, the purchase price of the Goods or Services must be paid in full on placement of the Order, or where expressly agreed in writing by Allwell, on delivery of the Goods or Services.
All amounts payable to Allwell by the Buyer must be paid in Australian dollars in any manner required by Allwell in writing and in full without set-off on or before the due date for payment.
Any costs or charges incurred by Allwell in collecting or attempting to collect overdue amounts must be paid by the Buyer to Allwell on demand.
Allwell reserves the right to charge interest at the rate of 12% per annum on all overdue amounts owing to it. Such interest will accrue daily and is payable on demand.
Payment will not be taken to occur until all cheques tendered in discharge of amounts owing to Allwell have been presented and cleared in full.
Allwell reserves the right to charge the Buyer a reasonable administration fee for issuing duplicate invoices, statements or other documents requested by the Buyer.
TITLE TO GOODS
Subject to the law, title to and property in the Goods will not pass until the Buyer has paid all moneys owed to Allwell on any account whatsoever.
Until the Buyer has paid all moneys owed to Allwell:
the Buyer must indemnify Allwell against any loss, theft or damage to the Goods arising after delivery to the Buyer;
subject to PPSA, Allwell retains a purchase money security interest in the Goods and the proceeds of sale of the Goods under the PPSA;
upon any resale of the Goods by the Buyer:
Allwell will have the right to trace the full proceeds of sale; and
the Buyer must account to Allwell for such proceeds of sale and Allwell may recover from such proceeds of sale any moneys then owing to Allwell on any account whatsoever.
Subject to the law, Allwell reserves the right to enter upon any premises for the purpose of repossessing the Goods and the Buyer grants Allwell a licence to enter such premises for the purpose of exercising such right.
The Buyer must do all things reasonably required by Allwell in respect of the registration of Allwell’s interest in the Goods under this clause or the enforcement of Allwell’s rights under the PPSA in respect of the Goods.
To the extent permitted under the PPSA, the Buyer waives any right the Buyer has to:
receive notices and statements from Allwell under the PPSA;
claim damages against Allwell under Section 271 of the PPSA;
redeem the Goods under Section 142 of the PPSA; and
reinstate Allwell’s security interest in the Goods under Section 143 of the PPSA.
To the extent permitted under the PPSA:
the enforcement of Allwell’s security interest in the Goods shall be governed by the Contract; and
Allwell and the Buyer contract out of the provisions of the PPSA in respect of the enforcement of such security interest.
The exercise of any rights under this clause is without prejudice to any other rights of recovery or other rights of Allwell at law, including in respect of any workers’ lien.
Subject to clause 15.2, all Quotations are valid for 30 days from the date of Quotation.
Quotations are based on the current costs of supplying the Goods or Services and unless Allwell has otherwise agreed, are subject to amendment by Allwell before or after the Quotation is made to meet any rise and fall in such costs between the date of Quotation and the date of supplying the Goods or Services.
Allwell reserves the right to charge the Buyer for any costs incurred as a result of the Buyer varying its Order or the Contract, correcting any errors or omissions referred to in clause 15.4, or requiring Goods or Services urgently.
Allwell will supply the Goods or Services on the basis of the Order (whether written or oral). Allwell will not be responsible for any errors or omissions in relation to the Goods or Services where those errors or omissions result wholly or partially from incomplete or unclear instructions in the Order.
Allwell is not under any duty to accept Goods returned by the Buyer and will do so only on terms to be agreed in writing in each individual case.
Nothing in clause 16.1 affects the Buyer’s rights under the Australian Consumer Law or in respect of any breach of Implied Terms.
maintain for a period of six years following supply of the Services appropriate professional indemnity insurance in respect of the supply of the Services; and
provide certificates of currency in respect of the above insurance when reasonably requested by the Buyer.
Allwell may cancel any Contract any time before Goods or Services are delivered by giving written notice to the Buyer. On giving such notice, Allwell will repay to the Buyer any sums paid in respect of the Goods or Services. Allwell will not have any other liability in respect of such cancellation.
Subject to clause 4.2, the Buyer may not cancel a Contract at any time except with Allwell’s prior written consent.
In the event that the Buyer cancels a Contract otherwise than under clause 4.2:
Allwell may retain any deposit or other sums paid on account of the Goods or Services; and
if payment is not already made in full, the Buyer will be responsible for any losses incurred by Allwell in respect of such cancellation (including loss of profits, loss of anticipated savings, economic loss or interruption of business loss or other incidental, consequential or indirect damages).
In the event the Buyer cancels a Contract under clause 4.2, Allwell will repay to the Buyer any sums paid in respect of the Goods or Services. Allwell will not have any other liability in respect of such cancellation.
SUSPENSION OR TERMINATION BY ALLWELL
If the Buyer makes a default in any payment due to Allwell for any Goods or Services supplied by Allwell, commits any act of bankruptcy or enters into liquidation whether voluntary or involuntary, Allwell may in its absolute discretion, suspend supply of any Goods or Services to the Buyer or cancel any Contract with the Buyer, without prejudice to its rights hereunder.
Any default by the Buyer or cancellation, suspension or termination by Allwell shall in no way prejudice any rights of Allwell against the Buyer whatsoever, including any right to recover any amounts due for Goods or Services, or Goods or Services previously supplied by Allwell to the Buyer.
PLACE OF CONTRACT
This Contract is made in the Northern Territory.
The Buyer and Allwell agree that unless otherwise stipulated by Allwell all disputes arising between them shall be submitted to the courts of the Northern Territory and any court competent to hear appeals from those courts of first instance.
A Contract may be altered in writing signed by each party.
Unless otherwise provided, a party may in its discretion give (conditionally or unconditionally) or withhold any approval or consent under a Contract.
A party must not assign or otherwise deal with a Contract or any right under it without the written consent of the other party.
A Contract constitutes the entire agreement between the parties about its subject matter and supersedes any prior understanding, agreement, condition, warranty, indemnity or representation about its subject matter.
A waiver of a provision of or right under a Contract must be in writing signed by the party giving the waiver and is effective only to the extent set out in the written waiver.
The failure, delay, relaxation or indulgence by a party in exercising a power or right under a Contract is not a waiver of that power or right.
An exercise of a power or right under a Contract does not preclude a further exercise of it or the exercise of another right or power.
Each indemnity, obligation of confidence and other term capable of taking effect after the expiration or termination of a Contract, remains in force after the expiration or termination of the Contract.
In these Conditions, unless the context otherwise requires:
headings do not affect interpretation;
singular includes plural and plural includes singular;
a reference to a party includes its executors, administrators, successors and permitted assigns;
a reference to a person includes a partnership, corporation, association, government body and any other entity;
an agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
an agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
a reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;
a provision is not construed against a party only because that party drafted it;
an unenforceable provision or part of a provision may be severed, and the remainder of these Conditions continues in force, unless this would materially change the intended effect of these Conditions;
the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions.