CONDITIONS OF SALE
All orders placed for “equipment” (hereby referred to as including machinery, parts, accessories, shipping crates and any other items provided relating to the contract of sale) by the purchaser (the company named in the contract placing the order) from Packserv Pty Ltd. (hereinafter called “the Company”) 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.
All quotations shall remain valid for thirty days unless otherwise agreed in writing.
3.1 The quotation prices are ex-works the Company’s Sydney depot. Goods and Services Tax (GST) will be noted separately.
3.2 In addition to the quotation price the purchaser shall be liable, subject to prior agreement, for the following disbursements if incurred, which shall be payable upon demand by the Company whether or not the equipment, the subject of this contract, has been delivered.
(a) Storage fees incurred by the company due to delivery of the equipment being delayed by any failure or refusal on the part of the Purchaser to forward despatch instructions or accept delivery.
(b) Insurance premiums in respect of any insurances arranged by the Company on behalf of the purchaser pursuant to this agreement.
- Price Variation
Due to fluctuations in international currency exchange rates, prices included in any quote provided by the Company will be confirmed at the time the purchaser places an order. The confirmed price will remain valid for 24 hours only, after which a further confirmed price will be given.
- Terms of Payment
5.1 The purchaser shall pay the total of the quotation price at the time of placing an order, unless otherwise specified.
5.2 The purchaser shall pay interest/late fees on overdue payments at a rate of 5% of the invoice amount for each 30-day term expired, i.e. if a month’s invoice is over 60 days outstanding the interest/late fee would be 10% of the invoice value.
5.3 Should the purchaser not make a payment within 90 days from the date of invoice the Company reserves the right to terminate the agreement as per terms of termination below. If termination is the course of action taken by the Company at any point during the term of a contract the Company reserve the right to repossess the equipment at any time, and to enter any premises where the equipment is or is thought to be.
6.1 The Company retains ownership of the equipment until all risk for the equipment passes to the purchaser on delivery.
6.2 Delivery of the equipment is taken to occur at the time that:
(a) the purchaser or the purchaser’s nominated carrier takes possession of the equipment at the Company’s premises; or
(b) The Company, (or the Company’s nominated carrier) delivers the equipment to the purchaser’s nominated address even if the purchaser is not present at the address.
6.3 The delivery date indicated to the purchaser is an estimate only. The Company shall make every reasonable effort to deliver the equipment by the said date but failure to do so shall not render it liable in damages to the purchaser or give the purchaser the right to cancel the contract or refuse delivery.
6.4 The Company may deliver the equipment by instalments and any delay by the Company in the delivery of any instalment shall not render it liable in damages to the purchaser or give the purchaser 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. The Company will not be responsible in any way for loss of production or any other costs incurred by the purchaser as a result of a late delivery unless otherwise specified in writing and agreed by the Company.
7.1. For all equipment quoted ex-works, the purchaser is responsible for arranging their own shipping and must arrange their own transit insurance.
7.2 If the Company arranges shipping and insurance in respect of the equipment, it does so as agent for and on behalf of the purchaser and is not to be deemed the carrier.
- Transfer of Property
All equipment provided will remain the property of the Company until the total of all outstanding amounts have been paid.
- Designs and Drawings
9.1 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 the Company.
9.2 All drawings, photographs, plans, estimates and other documents shall be and remain the property of the Company and shall not be used by the purchaser for any purpose other than this contract and the purchaser shall not disclose them to any third party without the company’s prior written consent.
9.3 The Company 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 the Company.
10.1 Unless otherwise stated, this quotation does not include any aspect of installation. However, installation can be arranged through the Company’s preferred technicians. All costs would therefore be quoted and invoiced separately from this contract.
- WARRANTIES & CONDITIONS
11.1 The purchaser must inspect the equipment on delivery and must immediately notify the Company in writing of any evident defect, damage, shortage in quantity, or failure to comply with the description or quote. The purchaser must notify any other alleged defect in the equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the purchaser must allow the Company’s representative to inspect the equipment.
11.2 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).
11.3 The Company acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Company 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.
11.5 The Company’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:
(a) Where the equipment is manufactured by the Company the Company will repair or replace, as the Company sees fit, any defective part or item which manifests itself within a period of 12 months, providing that:
(i) The defect is due to bad materials or workmanship
(ii) The defect is not the result of neglect, misuse, or accident by the purchaser or excessive deterioration due to avoidable corrosion
(iii) The purchaser shall not have modified or have carried out any repairs to the goods or accessories without having first obtained the Company’s written consent
(iv) The equipment has not been used in a manner other than intended or directed by the manufacturer.
(b) Where the equipment is not manufactured by the Company, the manufacturer shall give to the purchaser such warranties as are given by the manufacturer of the equipment to the Company and under that suppliers’ terms. The Company will not be held responsible for the performance of the manufacturer or any losses, damages, or costs incurred by the purchaser relating to the performance or provision of services relating to the manufacturer’s warranty.
11.6 Subject to clause 11.3 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 the Company for such advice.
11.7 The company may apply a 20% re-stocking fee for all orders cancelled or returned by the customer other than where a major problem has occurred with a product or item. A ‘major problem’ is defined as per the Consumer & Competition Act 2010. The customer is generally responsible for returning the product.
11.8 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 purchaser shall indemnify and protect the Company against any claim made against it either by the purchaser 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 the Company, 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.
11.9 This warranty does not cover damage to or failure of the equipment due to:
(a) Repairs made or attempted by persons who have not been authorised by us, misuse, accident, improper selection or installation, unsuitable storage or installation site, deterioration due to exposure or any other matters beyond the Company’s control.
(b) Damages or breakages to the components of the machine arising from incorrect adjustment or mistreatment of the machine by the purchaser or the purchaser’s agents.
11.10 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 depot and the cost to and from that location will be borne by the purchaser.
11.11 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.
11.12 Performance Guarantees are not included in this contract and production losses are not covered in any way by the Company.
- Suspension and Delays
12.1 If the purchaser cancels, disturbs, suspends, defers or delays delivery of any part of the equipment the purchaser shall pay to the Company all costs (including storage costs) incurred by the Company as a result of such cancellation, disruption, suspension, deferral or delay.
12.2 The Company 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.
- Machine Testing
13.1 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.
14.1 This contract may be terminated by the Company without notice in the event that:
(a) The purchaser cancels delivery of the whole of the equipment or such equipment as remain undelivered; or
(b) The purchaser fails or refuses to take delivery of the equipment and such failure or refusal continues for 7 days after the Company advising the purchaser that the equipment is ready for delivery; or
(c) The purchaser commits an act of bankruptcy, or, if the purchaser is a company, a receiver is appointed, or winding up proceedings are commenced against the company; or
(d) The purchaser is in breach of any of the terms of the contract and has not remedied the breach within 14 days’ notice in writing from the Company specifying the breach and requiring the same to be remedied within 14 days.
14.2 This contract may be terminated by the purchaser with the company’s written consent. If the purchaser terminates the contract after commissioning, the purchaser shall, if required by the Company, pay to the Company forthwith the remaining balance of the contract. If the purchaser terminates the contract prior to commissioning, the purchaser shall if required by the Company, pay to the Company forthwith the costs of work and labour done to the date of termination together with the value of “work in progress” of equipment and/or accessories in the course of manufacture, or completed but not delivered, and shall be liable to the company for costs incurred by the company in pursuance of the contract.
- Governing Law
The Laws of the State of New South Wales shall govern this contract and the Courts of the State of New South Wales shall have sole jurisdiction to hear and determine all actions arising out of or relating to this contract.
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 wiring and may be validly served by certified mail (without prejudice to any other mode of service) addressed to:
(a) The company at the address of the company from which the company’s acceptance emanates;
(b) To the purchaser at the address to which the equipment is to be delivered, or, if the purchaser is a company, its registered office.
(c) 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.
- Service of Notices
17.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) 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;
(e) if sent by email to the other party’s last known email address.
(f) 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.