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All Rent-To-Buys provided by Packserv PTY LTD (ABN 34 113 829 655) are subject to the following terms and conditions. Any order that contains terms and conditions in addition to or inconsistent with the following shall not be binding upon Packserv unless acceptance thereof is made in writing by an officer of Packserv.
Failure of Packserv to object to provisions contained in any purchase order or other communication from a BUYER shall not be construed as a waiver of these conditions nor an acceptance of any such provision.
Specific quotations showing definite quantities must be made for each order and are subject to immediate acceptance.
No orders shall be binding on Packserv until accepted in writing by Packserv.
Packserv reserves the right to correct clerical and stenographic errors at any time.
Packserv represents that in the manufacture of its products and performance of its service it has complied with all applicable provisions, regulations and orders under the FAIR WORK AUSTRALIA Act 2009.
No person, agent, firm or dealer is authorised to modify or amend these Packserv Standard Conditions of Sale unless specifically set forth and acknowledged in writing by an officer of Packserv.
Contract means the sale/hire/rent-to-buy/agreement or invoice, for which these terms and conditions contained herein apply, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
Seller/Supplier/Hirer means Packserv Pty Ltd (Packserv)
Packserv means Packserv Pty Ltd (ABN 34 113 829 655) or any person acting on behalf of and with the authority of Packserv Pty Ltd.
Purchaser/Client/Hire means the person/s, entities or any person acting on behalf of and with the authority of the Purchaser, to whom Packserv sells or supplies, or proposes to sell or supply, Goods in any proposal, quotation, order, invoice, or other documentation, and:
Equipment means all Equipment” (hereby referred to as including machinery, parts, accessories, shipping crates and any other items provided relating to the contract of sale) and where the context so permits shall include any incidental supply of services). The equipment shall be as described on any, quotation, invoice, or any other document or form as provided by Packserv to the Client and shall be subject to these terms and conditions which shall, subject to such variations, modifications, exclusions, or additions as may be agreed upon in writing between the parties, constitute the entire agreement between the parties.
Confidential Information means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, Personal Information such as: name, address, date of birth, occupation, driver’s licence details, electronic contact (email, or social media).
Cookies means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Equipment via the website.
Charges means the cost as agreed between Packserv and the Buyer.
GST means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999”.
Deposit means a payment made to secure or guarantee a buyer’s performance of the contract. It is considered “security for completion of the purchase”, and unconditional on the actual performance of the contract. A deposit forms part of the whole purchase price and is not refundable if the buyer cancels the contract before completion.
Part Payment differs in law from a deposit. Packserv does not accept nor facilitate part payments under any circumstances.
(i) The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Delivery of, the Equipment.
(ii) In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, or if any clause or part thereof within this contract is deemed unenforceable, the remaining terms of this Contract shall prevail.
(iii) Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
(iv) Packserv reserves the right to refuse Delivery of goods and/or services if the request exceeds the Clients payment terms.
(v) Both parties acknowledge and agree that this Contract does not constitute a partnership between the parties or constitute one party as agent or representative of another.
(vi) Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
(vii)These terms and conditions may be meant to be read in conjunction with Packserv’s Service Maintenance Contract (including any schedules or appendices), and:
(viii) Where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of Equipment, services, and parts, as defined therein; and
(ix) If there are any inconsistencies between the two documents, then the terms and conditions contained herein shall prevail.
The Client acknowledges and accepts that Packserv shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(i) Resulting from an inadvertent mistake made by Packserv in the formation and/or administration of this Contract; and/or
(ii) Contained in/omitted from any literature (hard copy and/or electronic) supplied by Packserv in respect of the Equipment hire and/or/services.
(iii) In the event such an error and/or omission occurs in accordance with clause 1 and is not attributable to the negligence and/or wilful misconduct of Packserv; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
The Client shall give Packserv not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address and contact phone or fax number/s, change of trustees or business practice, or the location of equipment). The Client shall be liable for any loss incurred by Packserv as a result of the Client’s failure to comply with this clause.
At Packserv’s sole discretion the Charges shall be either:
Packserv reserves the right to change the Charges:
Time for payment for the provision of Goods and Services being of the essence, the Charges will be payable by the Client on the date/s determined by Packserv, which may be:
Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply) or by any other method as agreed to between the Client and Packserv.
Packserv may in its discretion allocate any payment received from the Client towards any invoice that Packserv determines and may do so at the time of receipt or at any time afterwards.
On any default by the Client Packserv may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Packserv, payment will be deemed to be allocated in such manner as preserves the maximum value of Packserv’s Purchase Money Security Interest (as defined in the PPSA) in the Equipment.
If any part of an invoice is in dispute, then the Client shall notify Packserv in writing within fourteen (14) business days once in receipt of the invoice, then the Client may only withhold payment for that part of the invoice that is in dispute and shall pay the balance of the invoice when due.
Unless otherwise stated the Charges do not include GST. In addition to the Charges the Client must pay to Packserv an amount equal to any GST Packserv must pay for any supply by Packserv under this or any other Contract for the provision of goods and services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Charges. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Charges except where they are expressly included in the Charges.
Receipt by Packserv of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared, or recognised.
Delivery of the Equipment is taken to occur at the time that:
The Client undertakes to:
Notwithstanding clauses 1 to 12.7 but subject to the CCA, Packserv shall not be liable for any defect or damage which may be caused or partly caused by, or arise as a result of:
The Client shall:
Immediately pay on request by Packserv:
Packserv reserves the absolute right to:
Default and Consequences of Default
Without prejudice to Packserv’s other remedies at law Packserv shall be entitled to cancel all or any part of any order of the Client which remains unperformed and all amounts owing to Packserv shall, whether or not due for payment, become immediately payable in the event that:
Service and Maintenance
In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via Packserv’s website.
Service of Notices
Any written notice given under this Contract shall be deemed to have been given and received:
All quotations shall remain valid for seven days unless otherwise agreed in writing.
iii) Freight is quoted on approximate weight and dimensions – once machines have been completed and prior to dispatch this can change, simply because most machines are made to order and this can sometimes affect the weight or CBM profile.
TERMS OF PAYMENT
In addition to the terms set out in paragraph below. The terms of payment are specified on the Packserv quotation and subject to the following terms:
iii) The BUYER will reimburse Packserv for all direct costs incurred as of the date of cancellation with respect to the product, including but not limited to engineering, design and development costs, material costs, freight costs, manufacturing labour and overhead costs, inventory costs, plus all other costs related to the cancelled order.
iii) Shipping dates set forth by Packserv are approximate, based on conditions existing at the time the estimate is made, and are contingent upon the Buyer promptly supplying all necessary information, approvals and payments to Packserv. Such estimates are not a guarantee as to shipment and Packserv accepts no responsibility for any delays which may occur.
vii) Subject to the specific terms of any special delivery service, delivery can take place at any time of the day and must be accepted at any time between 8 am to 8 pm.
viii) If the Buyer does not take delivery of the Goods, Packserv may, at Packserv’s discretion and without prejudice to any other rights:
INSPECTION & ACCEPTANCE OF GOODS
iii) If the Buyer identifies any damages or shortages, Packserv must be informed immediately. Written confirmation is required, giving full details, within 7 days of delivery.
vii) The Buyer bear’s the risk and cost of returning the Goods.
viii) Acceptance of the Goods will be deemed to be upon inspection of them by the Buyer and in any event within 1 day after delivery.
RISK & TITLE
iii) Until title to the Goods has passed to the Buyer, the Buyer must:
WARRANTIES & CONDITIONS
iii) In the event the BUYER delays shipment, the warranty-period commences on the date Packserv is prepared to make shipment.
vii) The obligation of Packserv hereunder shall be limited solely to repair and replacement of products that fail within the foregoing limitations and shall be conditioned upon the receipt by Packserv of written notice of any alleged defects or deficiency promptly after discovery within the warranty period.
viii) No products shall be returned to Packserv without Packserv’s prior consent. Products which Packserv consents to have returned shall be shipped F.O.B. Packserv’s factory. Final determination as to whether a product is defective rests with Packserv. Packserv will not assume responsibility or accept invoices for unauthorized repairs to its components, even if defective unless previously authorised by a Packserv officer.
viii) Packserv makes no warranty as to fitness of its products for specific applications by the Buyer, nor as to and period of service unless Packserv specifically agrees otherwise in writing, after the proposed usage has been made known to it. Packserv shall not be liable for any special, indirect or consequential damages resulting in any manner from the furnishing of the product/s or for any expense incurred by the Buyer due to use of such product.
xii) Packserv acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees contained within the CCA.
xiii) Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Packserv makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the equipment. The Company’s liability in respect of these warranties is limited to the fullest extent permitted by law.
xiv) Packserv’s liability for a breach of any condition or warranty which may be implied by the Australian Consumer Law (ACL) other than a condition or warranty implied by Section 51-53 of the ACL, is limited to the extent allowed by Section 64A of the ACL. The Company shall elect which of the remedies therein mentioned applies and without limiting, effecting or excluding the full extent of Section 64A of the ACL, the company gives the following express warranty:
Where the equipment is provided new by Packserv, the Company will provide, repair or replace, as Packserv sees fit, any defective part or item which manifests itself within a period of 12 months, providing that:
xvi) Where the equipment is not new, (previously hired equipment), the same warranty conditions apply, except that qualifying period is reduced to 3 months.
xvii) Subject to clause xvi hereof, no guarantee, warranty, condition or term is given or implied by this contract and all guarantees, warranties, conditions and terms whatsoever, including those as to state, quality or fitness for any particular purpose express or implied by statute, common law or otherwise are expressly excluded to the maximum extent permissible by law. The purchaser warrants that it has selected the equipment as being fit for purpose based upon its own technical research and inspection and has not relied solely upon Packserv for such advice.
xviii) The Company shall not under any circumstances whatsoever (including circumstances which would but for these conditions, constitute a fundamental breach of this contract, or the breach of a fundamental term of this contract) be liable to the purchaser or any other party in respect of the equipment, services and accessories, the subject of the contract, whether in contract or in tort or otherwise. And the Buyer shall indemnify and protect Packserv against any claim made against it either by the Buyer or another party, in respect of any injury, loss or damage to any person or property arising from or in connection with the equipment, services and/or accessories howsoever caused and whether or not such loss and damage was caused by the negligence or wilful act or default of Packserv, its servants or agents or any malfunctioning of or defect in or failure of any of the equipment services or accessories the subject of this contract.
xix) This warranty does not cover damage to or failure of the equipment due to:
xxi) Any guarantee will be null and void if the equipment is principally modified from the manufacturer’s specifications without written consent from the Company or manufacturer.
xxii) Performance Guarantees are not included in this contract and production losses are not covered in any way by Packserv.
WORK HEALTH & SAFETY COMPLIANCE
DESIGNS AND DRAWINGS
iii) Packserv reserves the right to make minor changes to the design and/or construction of the equipment at any time prior to delivery without notice and without incurring any liability providing that the equipment delivered remains consistent with the purchaser’s requirements as agreed and understood by Packserv.
MACHINE TESTING SAMPLES
iii) Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act, or any Regulations referred to in that Act.
SERVICE OF NOTICES
Neither party shall be liable for any failure nor delay in performing their obligations where such failure or delay results from any cause, that is beyond the reasonable control of that party. Such causes include, but are not limited to power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
No waiver by Packserv of any breach of these Terms and Conditions by the Buyer shall be considered as a waiver of any other provision or subsequent breach.
If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).
LAW & JURISDICTION
These Terms and Conditions are governed by and interpreted according to Australian law. All disputes arising under these Terms and Conditions are subject to the exclusive jurisdiction of the Courts of New South Wales.
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