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STANDARD CONDITIONS OF SALE APPLYING TO PRODUCTS SOLD BY PACKSERV PTY LTD ABN 34 113 829 655

GENERAL

All sales of 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.

DEFINITIONS

Contract means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

Seller 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.

Buyer/Purchaser means the person/s, entities or any person acting on behalf of and with the authority of the Buyer, to whom Packserv sells or supplies, or proposes to sell or supply, Goods in any proposal, quotation, order, invoice, or other documentation, and:

  • if there is more than one Client, is a reference to each Client jointly and severally: and
  • if the Client is a partnership, it shall bind each partner jointly and severally; and
  • if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
  • includes the Client’s executors, administrators, successors and permitted assigns.

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).

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. 

 

1. QUOTATIONS

All quotations shall remain valid for seven days unless otherwise agreed in writing.

2. PRICE

2.1 The quotation prices are ex-works Packserv’s Sydney or Melbourne depots. GST will be itemised separately.

2.2 In addition to the quotation price the purchaser shall be liable, for the following disbursements if incurred, which shall be payable upon demand by Packserv whether or not the equipment, the subject of this contract, has been delivered.

  • Storage fees incurred by the company due to delivery of the equipment being delayed by any failure or refusal on the part of the Buyer to forward dispatch instructions or accept delivery.
  • Insurance premiums in respect of any insurances arranged by the Company on behalf of the Buyer pursuant to this agreement.

3. PRICE VARIATION

3.1 The confirmed price will remain valid for 7 days only, after which a further confirmed price will be given.

3.2 Due to the volatility in the international currency markets, pricing will be confirmed upon quotation or invoicing and that price shall remain valid FOR 24 hours ONLY. If payment is made after this, Packserv will contact the Buyer regarding any significant price variation. Should any fluctuation result in a reduction in costs, those reductions will be passed on to the Buyer.

3.3 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.

4. TERMS OF PAYMENT

4.1 In addition to the terms set out in paragraph 5 below. The terms of payment are specified on the Packserv quotation and subject to the following terms:

  • Subject to the provisions of the Competition and Consumer Act 2010, should the Buyer, for any reason, cancel or fail to proceed to completion any order for goods, any deposit paid will be considered forfeit and non-returnable to the Buyer.  
  • Non-refundable deposits are intended to protect the seller in circumstances of sudden cancellation and to compensate the business for the time, effort and money expended up to that point. Packserv undertake that any non-refundable deposit that they charge in these circumstances is reasonable and proportionate with reference to protecting their legitimate business interests and is not excessive and never used as a ‘penalty’ against a customer or client.
  • In the event that the Buyer cancels or fails to proceed to completion the Buyer agrees to reimburse Packserv for reasonable costs incurred for any design enhancement or changes, modifications, or alterations carried out at the request of the Buyer to the original design and specification of the machinery

4.2 Both parties must pay all amounts due under these Terms and Conditions in full without any deduction or withholding except as required by law and neither party is entitled to assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.

5. CANCELLATION

5.1 If a Buyer cancels all or part of an Order without cause, the BUYER agrees to reimburse Packserv for its direct expenses incurred to fulfill that Order through the cancellation date.

5.2 No order which has been accepted by Packserv may be cancelled by the BUYER except with the agreement in writing by Packserv within five (5) days of verbal communication and on terms that the BUYER will indemnify Packserv in full against all loss (including loss of profit), costs (including the cost of labour and materials used), damages, charges and expenses incurred by Packserv as a result of cancellation.

5.3 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.

5.4 Any products which are within thirty (30) calendar days of completion are to be completed by Packserv and paid for by the BUYER in full under these Standard Conditions of Sale.

  • Such penalty shall be immediately due and payable upon order cancellation.
  • Any and all deposits made by BUYER to Packserv will be applied toward such reimbursements of costs.

6. DELIVERY

6.1 Packserv retains ownership of the equipment until all risk for the equipment passes to the Buyer on delivery.

6.2 Delivery of the equipment is taken to occur at the time that:

  • The Buyer or the Buyer’s nominated carrier takes possession of the equipment at the Buyer’s premises; or
  • Packserv’s, (or Packserv’s nominated carrier) delivers the equipment to the Buyer’s nominated address, even if the Buyer is not present at the address.

6.3 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.

6.4 Packserv may deliver the equipment by instalments and any delay by Packserv in the delivery of any instalment shall not render it liable in damages to the Buyer or give the Buyer the right to cancel this contract or refuse delivery of any future instalments.

6.5 Delivery times are given in good faith at the time of quotation but are not guaranteed. Packserv will not be responsible in any way for loss of production or any other costs incurred by the Buyer as a result of a late delivery unless otherwise specified in writing and agreed by Packserv.

6.6 The Buyer shall at the Buyer’s expense provide labour, cranes or forklift and reasonable access to point of delivery for offloading of Goods without delay.

6.7 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.

6.8 If the Buyer does not take delivery of the Goods, Packserv may, at Packserv’s discretion and without prejudice to any other rights:

  • store or arrange for the storage of the Goods and will charge the Buyer for all associated costs and expenses including, but not limited to, transportation, storage and insurance; and/or
  • make arrangements for the redelivery of the Goods and will charge Buyer for the costs of such redelivery; and/or
  • after 10 business days, resell or otherwise dispose of part or all of the Goods and charge the Buyer for any shortfall below the price of the Goods.

6.9 If redelivery is not possible as set out above, the Buyer must collect the Goods from Packserv’s premises and will be notified of this. Packserv can charge the Buyer for all associated costs including, but not limited to, storage and insurance.

6.10 Any dates quoted for delivery are approximate only. Packserv will not be liable for any delay in delivery of the Goods that is caused by a circumstance beyond Packserv’s control or Buyer’s failure to provide Packserv with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

6.11 Packserv can deliver the Goods by instalments, which will be invoiced and paid for separately. Each instalment is a separate contract. Any delay in delivery or defect in an instalment will not entitle Buyer to cancel any other instalment.

7. INSPECTION & ACCEPTANCE OF GOODS

7.1 It is the Buyer’s responsibility, when accepting this contract or ordering to ensure the Goods ordered conform to the Buyer’s requirements and are suitable and sufficient for the Buyer’s purpose.

7.2 The Buyer must inspect the Goods on delivery or collection.

7.3 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.

7.4 Other than by agreement, Packserv will only accept returned Goods if Packserv is satisfied that those Goods are defective and if required, have carried out an inspection.

7.5 Subject to Buyer’s compliance with this clause and/or Packserv’s agreement, The Buyer may return the Goods and Packserv will, as appropriate, repair, replace, or refund the Goods or part of them.

7.6 Packserv will be under no liability or further obligation in relation to the Goods if:

  • the Buyer fails to provide notice as set above; and/or
  • the Buyer makes any further use of such Goods after giving notice under the clause above relating to damages and shortages; and/or
  • the defect arises because the Buyer did not follow Packserv’s oral or written instructions about the storage, commissioning, installation, use and maintenance of the Goods; and/or
  • the defect arises from normal wear and tear of the Goods; and/or
  • the defect arises from misuse or alteration of the Goods, negligence, wilful damage or any other act by the Buyer, or the Buyer’s employees or agents or any third parties.

7.7 The Buyer bear’s the risk and cost of returning the Goods.

7.8 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.

8. RISK & TITLE

8.1 The risk in the Goods will pass to the Buyer on completion of delivery.

8.2 Title to the Goods will not pass to Buyer until Packserv has received payment in full (in cash or cleared funds) for:

  • the Goods and/or
  • any other goods or services that Packserv has supplied to the Buyer in respect of which payment has become due.

8.3 Until title to the Goods has passed to the Buyer, the Buyer must:

  • hold the Goods on a fiduciary basis as Packserv’s bailee; and/or
  • store the goods separately and not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and/or
  • keep the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.

9.INSURANCE

9.1. For all equipment quoted ex-works, the Buyer is responsible for arranging their own shipping and must arrange their own transit insurance.

9.2 If Packserv arranges shipping and insurance in respect of the equipment, it does so as agent for and on behalf of the Buyer and is not to be deemed the carrier.

10. WARRANTIES & CONDITIONS

10.1 The Buyer must inspect the equipment on delivery and must immediately notify Packserv in writing of any evident defect, damage, shortage in quantity, or failure to comply with the description or quote. The Buyer must notify any other alleged defect in the equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Buyer must allow the Company’s representative to inspect the equipment.

10.2 The above warranty period commences at the date of shipment.

10.3 In the event the BUYER delays shipment, the warranty-period commences on the date Packserv is prepared to make shipment.

10.4 Packserv warrants the equipment and components of its manufacture and supply to be free from defects in workmanship and material under normal use and service for a period of one (1) year, except for normal wear items as may be defined.

10.5 The BUYER agrees to pay travel and living expenses for warranty work done at the customer’s site.

10.6 This warranty does not apply to any equipment which after delivery has been subject to abuse, accident, alterations by anyone other than persons authorised by Packserv, improper storage, misuse in its application, improper maintenance or failure to observe the operating instructions.

10.7 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.

10.8 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.

10.8 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.

10.9 The foregoing warranty is exclusive and in lieu of all other warranties expressed or implied, including but not limited to any warranty of merchantability or of fitness for a particular purpose.

10.10 Experimental or developmental products are expressly excluded from any warranty liability.

10.11 Under applicable State, Territory and Commonwealth Law (including, without limitation, the Consumer & Competition Act 2010 – CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

10.12 Packserv acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees contained within the CCA.

10.13 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.

10.14 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 repair or replace, as Packserv sees fit, any defective part or item which manifests itself within a period of 12 months, providing that:
    • the defect is due to bad materials or workmanship
    • the defect is not the result of neglect, misuse, or accident by the purchaser or excessive deterioration due to avoidable corrosion
    • the Buyer shall not have modified or have carried out any repairs to the goods or accessories without having first obtained the Packserv’s written  consent
    • the equipment has not been used in a manner other than intended or directed by the manufacturer.

10.15 Where the equipment is not manufactured by Packserv, the manufacturer shall give to the Buyer such warranties as are given by the manufacturer of the equipment to Packserv and under that suppliers’ terms. Packserv will not be held responsible for the performance of the manufacturer or any losses, damages, or costs incurred by the Buyer relating to the performance or provision of services relating to the manufacturer’s warranty.

10.16 Where the equipment is not new, (previously hired equipment), the same warranty conditions apply, except that qualifying period is reduced to 3 months.  

10.17 Subject to clause 10.11 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.

10.18 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.

10.19 This warranty does not cover damage to or failure of the equipment due to:

  • repairs made or attempted by persons who have not been authorised by Packserv, misuse, accident, improper selection or installation, unsuitable storage or installation site, deterioration due to exposure or any other matters beyond Packserv’s control.
  • damages or breakages to the components of the machine arising from incorrect adjustment or mistreatment of the machine by the Buyer or the Buyer’s agents.   

10.20 Should a fault fall within warranty conditions of any item manufactured by the Company rectification or remedial action will normally only take place at the Company’s Sydney or Melbourne depots and the cost to and from that location will be borne by the Buyer.

10.21 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.

10.22 Performance Guarantees are not included in this contract and production losses are not covered in any way by Packserv.

11. REPLACEMENT PARTS

11.1 Replacement parts for equipment that are still under the original warranty are warranted only for the period that remains under the original warranty.

11.2 Replacement parts for equipment no longer under original warranty are warranted for a period of 90 days from date of shipment. All parts are shipped ex-works Packserv’s Sydney or Melbourne Factory unless specified in writing. Prices are those in effect at time of shipment. All prices in Packserv’s price book or other printed matter are subject to a minimum 25% restocking charge.

12. WORK HEALTH & SAFETY COMPLIANCE

12.1 The above warranty is expressly conditional upon the following:

  • the Buyer agrees to comply with the requirements of the OCCUPATIONAL HEALTH and SAFETY ACT 2009, Regulations, Codes of Practice or State Regulating Agency, and the standards and regulations prescribed thereunder and agrees that the location, operation, installation, maintenance and use of all goods furnished by Packserv and all work performed thereunder by the BUYER will comply with such requirements, standards and regulations.

12.2 In no event shall Packserv be responsible for any failure of the goods to so comply where such failure is caused in whole or in part by:

  • use contrary to the standard industry practices and procedures for operation and use of the goods, or
  • use contrary to Packserv’s instructions or recommendations for operation and use of the goods, or
  • use in conjunction with other goods of the BUYER.

13. DESIGNS AND DRAWINGS

13.1 All drawings, photographs, plans, capacities, weights, measurements and other particulars contained in the quotation are approximate and are intended only to be a general description of the equipment ordered. Small deviations therefrom shall not invalidate the contract nor be made the basis of any claim against Packserv.

13.2 All drawings, photographs, plans, estimates and other documents shall be and remain the property of Packserv and shall not be used by the Buyer for any purpose other than this contract and the Buyer shall not disclose them to any third party without Packserv’s prior written consent.

13.3 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.

14. SUSPENSION AND DELAYS

14.1 If the Buyer cancels, disturbs, suspends, defers or delays delivery of any part of the equipment the Buyer shall pay to Packserv all costs (including storage costs) incurred by the Company as a result of such cancellation, disruption, suspension, deferral or delay.

14.2 Packserv shall incur no liability whatsoever if the works are delayed or suspended by reasons of strikes, accidents, breakdown, delays in transit, government restrictions or regulations, inclement weather, Force Majeure, or any cause whatsoever beyond the Company’s control, including act of direction of the purchaser.

15. MACHINE TESTING SAMPLES

15.1 In order that the equipment be thoroughly tested prior to despatch from the manufacturer, sample quantities of products, packages, materials and containers may need to be available. The costs of these materials and associated freight are payable by the purchaser. After testing of the machine, they can be returned if requested.

16. NOTICES

16.1 Should any one or more of the provisions contained in this document for any reason be held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

16.2 Any notice required to be given pursuant to this contract shall be in writing and may be validly served by certified mail (without prejudice to any other mode of service) addressed to:

  • the company at the address of the company from which the company’s acceptance emanates;
  • to the Buyer at the address to which the equipment is to be delivered, or, if the purchaser is a company, its registered office.
  • notice is deemed to be given on the next business day after the day of posting.

16.3 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.

16.4 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

16.5 Any amendment to the terms and conditions contained in this document may only be amended in writing by the consent of both parties.

17. SERVICE OF NOTICES

17.1 Any written notice given under this Contract shall be deemed to have been given and received:

  • by handing the notice to the other party, in person;
  • by leaving it at the address of the other party as stated in this Contract;
  • by sending it by registered post to the address of the other party as stated in this Contract;
  • if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
  • if sent by email to the other party’s last known email address.
  • any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

18. FORCE MAJEURE

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.

19. NO WAIVER

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.

20. SEVERANCE

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).

21. 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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