Terms Of Trade

MCI (VIC) Pty Ltd – Terms & Conditions of Trade

1. Definitions

1.1 “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.

1.2 “MCI” means MCI (VIC) Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of MCI (VIC) Pty Ltd.

1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting MCI to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and: (a) if there is more than one Client, is a reference to each Client jointly and severally; and (b) if the Client is a partnership, it shall bind each partner jointly and severally; and (c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and (d) includes the Client’s executors, administrators, successors and permitted assigns.

1.4 “Goods” means all Goods or Services supplied by MCI to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.5 "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, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

1.6 “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 using MCI’s 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 making enquiries via the website.

1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between MCI and the Client in accordance with clause 7 below.

1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

2. Acceptance

2.1 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 Goods.

2.2 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, the terms of this Contract shall prevail.

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

2.4 The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with MCI and it has been approved with a credit limit established for the account.

2.5 In the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, MCI reserves the right to refuse Delivery.

2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and Omissions

3.1 The Client acknowledges and accepts that MCI shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s): (a) resulting from an inadvertent mistake made by MCI in the formation and/or administration of this Contract; and/or (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by MCI in respect of the Services.

3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of MCI; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

4. Authorised Representatives

4.1 The Client acknowledges that MCI shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to MCI, that person shall have the full authority of the Client to order any Services, Goods and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to MCI for all additional costs incurred by MCI (including MCI’s profit margin) in providing any Services, Goods or variation/s requested thereto by the Client’s duly authorised representative.

5. Change in Control

5.1 The Client shall give MCI 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, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by MCI as a result of the Client’s failure to comply with this clause.

6. Goods On Consignment

6.1 Where Goods are supplied on consignment the following provisions apply specifically to those Goods: (a) the Goods shall be at the Client’s risk from the time of delivery and the Client shall be responsible for insuring the Goods and provide MCI of proof of insurance cover when requested; and (b) the Client may retain possession of the Goods until the Client sells them or MCI requires re-delivery of them to MCI, whichever first occurs; and MCI (VIC) Pty Ltd T/A Melbourne Commercial Installation – Terms & Conditions of Trade Page 2 of 7 #39824 © Copyright – EC Credit Control 1999 - 2020 (c) if MCI requires re-delivery of the Goods such re-delivery shall be at the Client’s cost; and (d) MCI shall provide the Client a consignment form on a bi-monthly basis and the Client shall notify MCI within forty-eight (48) hours of receipt by return email of all consignment Goods sold during that that period and shall within seven (7) days of that bi-monthly advice pay MCI for the Goods sold. Failure to comply with confirmation will result in MCI’s right to invoice the Client for all consignment Goods held in stock.

6.2 Furthermore, consignment Goods shall at all times remain the property of MCI and are returnable on demand by MCI. In the event that the consignment Goods are not returned to MCI in the condition in which the consignment Goods were delivered then MCI retains the right to charge the cost of repair or replacement of the consignment Goods.

6.3 The Client further agrees that; (a) MCI have the right to inspect the consignment Goods at any time upon giving written notice to the Client; and (b) MCI reserves the right to cease the supply of consignment Goods and enforce clause 6.2 if upon inspection it is found the consignment Goods totals do not correspond with information supplied by the Client and/or the consignment Goods are not stored in accordance with MCI’s instructions; and (c) consignment Goods shall be placed on display at front of house together with any advertising material supplied by MCI to the Client; and (d) the stand for consignment Goods are to be kept stocked to the agreed minimum levels at all times; and (e) the Client is responsible for the upkeep of the stand and agrees to take all due care to ensure that the consignment Goods are not damaged or marked in any way; and (f) they shall immediately advise MCI if for any reason they opt to remove the consignment Goods from display area.

7. Price and Payment

7.1 At MCI’s sole discretion, the Price shall be either: (a) as indicated on any invoice provided by MCI to the Client; or (b) MCI’s quoted price (subject to clause 7.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

7.2 MCI reserves the right to change the Price: (a) if a variation to the Goods which are to be supplied is requested; or (b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or (c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, limitations to accessing the site, obscured site defects which require remedial work, health hazards and safety considerations (such as the discovery of asbestos), prerequisite work by any third party not being completed or hidden pipes and wiring in walls, etc.) which are only discovered on commencement of the Services; or (d) in the event of increases to MCI in the cost of import duties, taxes, freight, labour or Goods which are beyond MCI’s control.

7.3 Variations will be charged for on the basis of MCI’s quotation, and will be detailed in writing, and shown as variations on MCI’s invoice. The Client shall be required to respond to any variation submitted by MCI within ten (10) working days. Failure to do so will entitle MCI to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

7.4 At MCI’s sole discretion, a non-refundable deposit may be required.

7.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by MCI, which may be: (a) on Delivery of the Goods; (b) before Delivery of the Goods; (c) by way of instalments/progress payments in accordance with MCI’s payment schedule; (d) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices; (e) the date specified on any invoice or other form as being the date for payment; or (f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by MCI.

7.6 Payment may be made by, electronic/on-line banking, or by any other method as agreed to between the Client and MCI.

7.7 MCI may in its discretion allocate any payment received from the Client towards any invoice that MCI determines and may do so at the time of receipt or at any time afterwards. On any default by the Client MCI may re-allocate any payments previously received and allocated. In the absence of any payment allocation by MCI, payment will be deemed to be allocated in such manner as preserves the maximum value of MCI’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.

7.8 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by MCI nor to withhold payment of any invoice because part of that invoice is in dispute.

7.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to MCI an amount equal to any GST MCI must pay for any supply by MCI under this or any other agreement for the sale of the Goods. 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 Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

8. Delivery of Goods

8.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that MCI (or MCI’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.

8.2 At MCI’s sole discretion, the cost of Delivery is in addition to the Price.

8.3 MCI may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

8.4 Any time specified by MCI for Delivery of the Goods is an estimate only and MCI will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that MCI is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then MCI shall be entitled to charge a reasonable fee for redelivery and/or storage.

9. Risk

9.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.

9.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, MCI is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by MCI is sufficient evidence of MCI’s rights to receive the insurance proceeds without the need for any person dealing with MCI to make further enquiries.

9.3 If the Client requests MCI to leave Goods outside MCI’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.

9.4 The Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and MCI shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.

9.5 The Client acknowledges that Goods supplied may: (a) exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time. MCI will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and (b) expand, contract or distort as a result of exposure to heat, cold, weather; and (c) mark or stain if exposed to certain substances; and (d) be damaged or disfigured by impact or scratching.

9.6 MCI shall be entitled to rely on the accuracy of any designs, specifications (including, but not limited to CAD drawings), measurements and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information or data provided by the Client is inaccurate, MCI accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate designs, specifications, data, measurements or other information.

10. Access

10.1 The Client shall ensure that MCI has clear and free access to the work site at all times to enable them to undertake the Services. MCI shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of MCI.

11. Hidden Services

11.1 Prior to MCI commencing the Services the Client must advise MCI of the precise location of all hidden services on the site and clearly mark the same. The hidden mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.

11.2 Whilst MCI will take all care to avoid damage to any services the Client agrees to indemnify MCI in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 11.1.

12. Compliance with Laws

12.1 The Client and MCI shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, any occupational health and safety (OHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

12.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.

13. Title

13.1 MCI and the Client agree that ownership of the Goods shall not pass until: (a) the Client has paid MCI all amounts owing to MCI; and (b) the Client has met all of its other obligations to MCI.

13.2 Receipt by MCI 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.

13.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 13.1: (a) the Client is only a bailee of the Goods and must return the Goods to MCI on request; (b) the Client holds the benefit of the Client’s insurance of the Goods on trust for MCI and must pay to MCI the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed; (c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for MCI and must pay or deliver the proceeds to MCI on demand; (d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of MCI and must sell, dispose of or return the resulting product to MCI as it so directs; (e) the Client irrevocably authorises MCI to enter any premises where MCI believes the Goods are kept and recover possession of the Goods; (f) MCI may recover possession of any Goods in transit whether or not Delivery has occurred; (g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of MCI; (h) MCI may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

14. Personal Property Securities Act 2009 (“PPSA”)

14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

14.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to MCI for Services – that have previously been supplied and that will be supplied in the future by MCI to the Client.

14.3 The Client undertakes to: (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which MCI may reasonably require to; (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 14.3(a)(i) or 14.3(a)(ii); (b) indemnify, and upon demand reimburse, MCI for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of MCI; (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of MCI; (e) immediately advise MCI of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

14.4 MCI and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

14.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

14.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

14.7 Unless otherwise agreed to in writing by MCI, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

14.8 The Client must unconditionally ratify any actions taken by MCI under clauses 14.3 to 14.5.

14.9 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

15. Security and Charge

15.1 In consideration of MCI agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

15.2 The Client indemnifies MCI from and against all MCI’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising MCI’s rights under this clause.

15.3 The Client irrevocably appoints MCI and each director of MCI as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.

16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

16.1 The Client must inspect the Goods on Delivery and must within two (2) days of Delivery notify MCI in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow MCI to inspect the Goods.

16.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (NonExcluded Guarantees).

16.3 MCI acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, MCI makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. MCI’s liability in respect of these warranties is limited to the fullest extent permitted by law.

16.5 If the Client is a consumer within the meaning of the CCA, MCI’s liability is limited to the extent permitted by section 64A of Schedule 2.

16.6 If MCI is required to replace the Goods under this clause or the CCA, but is unable to do so, MCI may refund any money the Client has paid for the Goods.

16.7 If the Client is not a consumer within the meaning of the CCA, MCI’s liability for any defect or damage in the Goods is: (a) limited to the value of any express warranty or warranty card provided to the Client by MCI at MCI’s sole discretion; (b) limited to any warranty to which MCI is entitled, if MCI did not manufacture the Goods; (c) otherwise negated absolutely.

16.8 Subject to this clause 16, returns will only be accepted provided that: (a) the Client has complied with the provisions of clause 16.1; and (b) MCI has agreed that the Goods are defective; and (c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and (d) the Goods are returned in as close a condition to that in which they were delivered as is possible.

16.9 Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, MCI shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: (a) the Client failing to properly maintain or store any Goods; (b) the Client using the Goods for any purpose other than that for which they were designed; (c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Client failing to follow any instructions or guidelines provided by MCI; (e) fair wear and tear, any accident, or act of God.

16.10 Notwithstanding anything contained in this clause if MCI is required by a law to accept a return then MCI will only accept a return on the conditions imposed by that law.

17. Intellectual Property

17.1 Where MCI has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of MCI. Under no circumstances may such designs, drawings and documents be used without the express written approval of MCI.

17.2 The Client warrants that all designs, specifications or instructions given to MCI will not cause MCI to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify MCI against any action taken by a third party against MCI in respect of any such infringement.

17.3 The Client agrees that MCI may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which MCI has created for the Client.

18. Default and Consequences of Default

18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at MCI’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

18.2 If the Client owes MCI any money the Client shall indemnify MCI from and against all costs and disbursements incurred by MCI in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, MCI’s contract default fee, and bank dishonour fees).

18.3 Further to any other rights or remedies MCI may have under this Contract, if a Client has made payment to MCI, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by MCI under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.

18.4 Without prejudice to MCI’s other remedies at law MCI shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to MCI shall, whether or not due for payment, become immediately payable if: (a) any money payable to MCI becomes overdue, or in MCI’s opinion the Client will be unable to make a payment when it falls due; (b) the Client has exceeded any applicable credit limit provided by MCI; (c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

19. Cancellation

19.1 Without prejudice to any other remedies MCI may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions MCI may suspend or terminate the supply of Goods to the Client. MCI will not be liable to the Client for any loss or damage the Client suffers because MCI has exercised its rights under this clause.

19.2 MCI may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice MCI shall repay to the Client any money paid by the Client for the Goods. MCI shall not be liable for any loss or damage whatsoever arising from such cancellation.

19.3 In the event that the Client cancels Delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by MCI as a direct result of the cancellation (including, but not limited to, any loss of profits).

19.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

20. Privacy Policy

20.1 All emails, documents, images or other recorded information held or used by MCI is Personal Information, as defined and referred to in clause 20.3, and therefore considered Confidential Information. MCI acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). MCI acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by MCI that may result in serious harm to the Client, MCI will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.

20.2 Notwithstanding clause 20.1, privacy limitations will extend to MCI in respect of Cookies where the Client utilises MCI’s website to make enquiries. MCI agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s: (a) IP address, browser, email client type and other similar details; (b) tracking website usage and traffic; and (c) reports are available to MCI when MCI sends an email to the Client, so MCI may collect and review that information (“collectively Personal Information”) If the Client consents to MCI’s use of Cookies on MCI’s website and later wishes to withdraw that consent, the Client may manage and control MCI’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

20.3 The Client agrees that MCI may exchange information about the Client with those credit providers and with related body corporates for the following purposes: (a) to assess an application by the Client; and/or (b) to notify other credit providers of a default by the Client; and/or (c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or (d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.

20.4 The Client consents to MCI being given a consumer credit report to collect overdue payment on commercial credit.

20.5 The Client agrees that personal credit information provided may be used and retained by MCI for the following purposes (and for other agreed purposes or required by): (a) the provision of Goods; and/or (b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or (d) enabling the collection of amounts outstanding in relation to the Goods.

20.6 MCI may give information about the Client to a CRB for the following purposes: (a) to obtain a consumer credit report; (b) allow the CRB to create or maintain a credit information file about the Client including credit history.

20.7 The information given to the CRB may include: (a) Personal Information as outlined in 20.3 above; (b) name of the credit provider and that MCI is a current credit provider to the Client; (c) whether the credit provider is a licensee; (d) type of consumer credit; (e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested); (f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and MCI has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments); (g) information that, in the opinion of MCI, the Client has committed a serious credit infringement; (h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

20.8 The Client shall have the right to request (by e-mail) from MCI: (a) a copy of the Personal Information about the Client retained by MCI and the right to request that MCI correct any incorrect Personal Information; and (b) that MCI does not disclose any Personal Information about the Client for the purpose of direct marketing.

20.9 MCI will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

20.10 The Client can make a privacy complaint by contacting MCI via e-mail. MCI will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

21. Service of Notices

21.1 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.

21.2 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.

22. Trusts

22.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not MCI may have notice of the Trust, the Client covenants with MCI as follows: (a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund; (b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity; (c) the Client will not without consent in writing of MCI (MCI will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events: (i) the removal, replacement or retirement of the Client as trustee of the Trust; (ii) any alteration to or variation of the terms of the Trust; (iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.

23. General

23.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which MCI has its principal place of business, and are subject to the jurisdiction of the courts in that state.

23.3 Subject to clause 16, MCI shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by MCI of these terms and conditions (alternatively MCI’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

23.4 MCI may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

23.5 The Client cannot licence or assign without the written approval of MCI.

23.6 MCI may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of MCI’s sub-contractors without the authority of MCI.

23.7 The Client agrees that MCI may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for MCI to provide Goods to the Client.

23.8 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.

23.9 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.

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