MPI Trading Terms and Conditions
MPI Global Pty Ltd T/A MPI Automotive – Terms & Conditions of Trade
1. Definitions
1.1 “MPI” means MPI Global Pty Ltd T/A MPI Automotive, its successors and assigns or any person acting on behalf of and with the authority of MPI Global Pty Ltd T/A MPI Automotive.
1.2 “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting MPI to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
b) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
c) includes the Customer’s executors, administrators, successors and permitted assigns.
1.3 “Goods” means all Goods or Services supplied by MPI to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between MPI and the Customer in accordance with clause 5 below.
1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Customer and MPI.
2.3 Where MPI gives advice or recommendations to the Customer, or the Customer’s agent, with specific instructions regarding the use of the Goods and such advice or recommendations are not acted upon then the MPI shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
2.4 All literature, specifications, dimensions and weights submitted with this quotation are approximate only and the data and descriptions contained on MPI’s website, in catalogues and other advertising material while being as accurate as possible may not necessarily be identical with Goods and Services MPI supplies, and MPI reserves the right to supply Goods that have minor modifications in specifications as MPI sees fit.
2.5 The descriptions, illustrations and performances contained in catalogues, other advertising material and price lists do not form part of the contract of sale of the Goods.
2.6 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with MPI and it has been approved with a credit limit established for the account.
2.7 In the event that the supply of Goods request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, MPI reserves the right to refuse delivery and/or request an alternative payment method.
2.8 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the Electronic Transactions Act 2011 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that MPI 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 MPI 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 MPI 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 MPI; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Customer shall give MPI not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by MPI as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At MPI’s sole discretion, the Price shall be either:
a) as indicated on any invoice provided by MPI to the Customer; or
b) the Price as at the date of delivery of the Goods according to MPI’s current price list;
or
c) MPI’s quoted price (subject to clause 5.2) which will be valid for the period stated in
the quotation or otherwise for a period of thirty (30) days.
5.2 MPI reserves the right to change the Price:
a) in the event that the Customer requests a variation to MPI’s quotation; or
b) where due to additional Services being required due to hidden or unidentifiable difficulties which are only discovered once the Services have commenced (including but not limited to any variation as a result of fluctuations in the dollar value of metal prices, change of design, availability of machinery and/or any variation made in writing or verbally at the request of the Customer); or
c) where due to increases to MPI in the cost of labour and materials, and where such Goods are imported specifically for the Customer this shall include additional freights costs, customs charges and foreign exchange fluctuations.
5.3 At MPI’s sole discretion, a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the
Customer on the date/s determined by MPI, which may be:
a) on delivery of the Goods;
b) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
c) the date specified on any invoice or other form as being the date for payment; or
d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by MPI.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and MPI.
5.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by MPI nor to withhold payment of any invoice because part of that invoice is in dispute.
5.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to MPI an amount equal to any GST MPI must pay for any supply by MPI under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that MPI (or MPI’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
6.2 At MPI’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
6.3 Any time specified by MPI for delivery of the Goods is an estimate only. The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. MPI will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. In the event that the Customer is unable to take delivery of the Goods as arranged then MPI shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.4 MPI 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.
7. On-Line Ordering
7.1 The Customer acknowledges and agrees that:
a) MPI does not guarantee the website’s performance;
b) display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by MPI;
c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
d) there are inherent hazards in electronic distribution, and as such MPI cannot warrant against delays or errors in transmitting data between the Customer and MPI including orders, and you agree that to the maximum extent permitted by law, MPI will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
e) if the Customer is not the cardholder for any credit card being used to pay for the Goods, MPI shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
7.2 MPI reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of MPI’s business, or violated these terms and conditions.
8. Risk
8.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, MPI is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by MPI is sufficient evidence of MPI’s rights to receive the insurance proceeds without the need for any person dealing with MPI to make further enquiries.
8.3 If the Customer requests MPI to leave Goods outside MPI’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
8.4 If in the opinion of MPI the Customers’ design requests are in deemed to be unsuitable and unsafe to proceed with, then MPI reserves the right to halt the Services until such time as the Customer authorises MPI in writing to proceed with the modifications and accepts that MPI shall not be responsible for any defects in the Services, any loss or damage to the vehicle (or any part thereof), howsoever arising from the modifications instructions supplied by the Customer.
9. Accuracy of Customer’s Plans and Specifications
9.1 MPI shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. Where the Customer is to supply MPI with any design specifications (including, but not limited to CAD drawings) the Customer shall be responsible for providing accurate data. MPI shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Customer.
9.2 In the event the Customer gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or MPI places an order based on these measurements and quantities. MPI accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.
9.3 Whilst MPI shall endeavour to modify the vehicle or part to the exact specifications or instructions of the Customer, MPI can offer no guarantee that any technique used will provide the exact effect desired by the Customer.
10. Compliance with Laws
10.1 The Customer and MPI shall comply with the provisions of all statutes, regulations and any other relevant safety standards or legislation that may be applicable to the Services
11. Title
11.1 MPI and the Customer agree that ownership of the Goods shall not pass until:
a) the Customer has paid MPI all amounts owing to MPI; and
b) the Customer has met all of its other obligations to MPI.
11.2 Receipt by MPI 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.
11.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 11.1:
a) the Customer is only a bailee of the Goods and must return the Goods to MPI on request.
b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for MPI and must pay to MPI the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
c) the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for MPI and must pay or deliver the proceeds to MPI on demand.
d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of MPI and must sell, dispose of or return the resulting product to MPI as it so directs.
e) the Customer irrevocably authorises MPI to enter any premises where MPI believes the Goods are kept and recover possession of the Goods.
f) MPI may recover possession of any Goods in transit whether or not delivery has occurred.
g) the Customer 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 MPI.
h) MPI may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
12. Personal Property Securities Act 2009 (“PPSA”)
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 Upon assenting to these terms and conditions in writing the Customer 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 Customer to MPI for Services – that have previously been supplied and that will be supplied in the future by MPI to the Customer.
12.3 The Customer 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 MPI 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 12.3(a)(i) or 12.3(a)(ii);
b) indemnify, and upon demand reimburse, MPI 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 MPI;
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 MPI;
e) immediately advise MPI 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.
12.4 MPI and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
12.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by MPI, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer must unconditionally ratify any actions taken by MPI under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained in this clause 12) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of MPI agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Customer indemnifies MPI from and against all MPI’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising MPI’s rights under this clause.
13.3 The Customer irrevocably appoints MPI and each director of MPI as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify MPI in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow MPI to inspect the Goods.
14.2 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
(Non-Excluded Guarantees).
14.3 MPI acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, MPI makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods.
MPI’s liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, MPI’s liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If MPI is required to replace the Goods under this clause or the CCA, but is unable to do so, MPI may refund any money the Customer has paid for the Goods.
14.7 If the Customer is not a consumer within the meaning of the CCA, MPI’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 Customer by MPI at MPI’s sole discretion;
b) limited to any warranty to which MPI is entitled, if MPI did not manufacture the Goods;
c) otherwise negated absolutely.
14.8 Subject to this clause 14, returns will only be accepted provided that:
a) the Customer has complied with the provisions of clause 14.1; and
b) MPI has agreed that the Goods are defective; and
c) the Goods are returned within thirty (30) days of the invoiced date at the Customer’s cost (if that cost is not significant); and
d) prior to return, a Credit Return Number must be obtained by phoning 1300 310 330 and this number must be quoted on all documentation relating to the return. Failure to acquire this number may delay any claim being acknowledged or accepted by MPI; and
e) full details, including but not limited to, invoice number, date, part number and reason for return are to be provided on request from MPI; and
f) the Goods are returned in as close a condition to that in which they were delivered (including no alterations or the addition of any identifying marks) as is possible, and
g) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
h) the Goods are returned in as close a condition to that in which they were delivered as is possible.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, MPI 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 Customer failing to properly maintain or store any Goods;
b) the Customer using the Goods for any purpose other than that for which they were designed;
c) the Customer 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 Customer failing to follow any instructions or guidelines provided by MPI;
e) fair wear and tear, any accident, or act of God.
14.10 In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by MPI as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that MPI has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 14.10.
14.11 MPI may in its absolute discretion accept non-defective Goods for return, in which case MPI will require the Customer to pay a re-stocking fee of ten percent (10%) of the value of the returned Goods, plus any freight costs.
14.12 Notwithstanding anything contained in this clause if MPI is required by a law to accept a return then MPI will only accept a return on the conditions imposed by that law.
15. Intellectual Property
15.1 Where MPI has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of MPI. Under no circumstances may such designs, drawings and documents be used without the express written approval of MPI.
15.2 The Customer warrants that all designs, specifications or instructions given to MPI will not cause MPI to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify MPI against any action taken by a third party against MPI in respect of any such infringement.
15.3 The Customer agrees that MPI may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which MPI has created for the Customer.
16. Default and Consequences of Default
16.1 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 MPI’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Customer owes MPI any money the Customer shall indemnify MPI from and against all costs and disbursements incurred by MPI in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, MPI’s contract default fee, and bank dishonour fees).
16.3 A late payment fee of $25 + GST will be applied to any account where payment is received outside of MPI’s trading terms.
16.4 Further to any other rights or remedies MPI may have under this contract, if a Customer has made payment to MPI, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by MPI under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.
16.5 Without prejudice to MPI’s other remedies at law MPI shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to MPI shall, whether or not due for payment, become immediately payable if:
a) any money payable to MPI becomes overdue, or in MPI’s opinion the Customer will be unable to make a payment when it falls due;
b) the Customer has exceeded any applicable credit limit provided by MPI;
c) the Customer 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 Customer or any asset of the Customer.
17. Cancellation
17.1 Without prejudice to any other remedies MPI may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions MPI may suspend or terminate the supply of Goods to the Customer. MPI will not be liable to the Customer for any loss or damage the Customer suffers because MPI has exercised its rights under this clause.
17.2 MPI 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 Customer. On giving such notice MPI shall repay to the Customer any money paid by the Customer for the Goods. MPI shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by MPI as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18. Privacy Act 1988
18.1 The Customer agrees for MPI to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by MPI.
18.2 The Customer agrees that MPI may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
a) to assess an application by the Customer; and/or
b) to notify other credit providers of a default by the Customer; and/or
c) to exchange information with other credit providers as to the status of this credit
account, where the Customer is in default with other credit providers; and/or
d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
18.3 The Customer consents to MPI being given a consumer credit report to collect overdue payment on commercial credit.
18.4 The Customer agrees that personal credit information provided may be used and retained
by MPI 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 Customer’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 Customer; and/or
d) enabling the collection of amounts outstanding in relation to the Goods.
18.5 MPI may give information about the Customer 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 Customer including credit history.
18.6 The information given to the CRB may include:
a) personal information as outlined in 18.1 above;
b) name of the credit provider and that MPI is a current credit provider to the Customer;
c) whether the credit provider is a licensee;
d) type of consumer credit;
e) details concerning the Customer’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 Customer no longer has any overdue accounts and MPI has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
g) information that, in the opinion of MPI, the Customer has committed a serious credit infringement;
h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
18.7 The Customer shall have the right to request (by e-mail) from MPI:
a) a copy of the information about the Customer retained by MPI and the right to request that MPI correct any incorrect information; and
b) that MPI does not disclose any personal information about the Customer for the purpose of direct marketing.
18.8 MPI will destroy personal information upon the Customer’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.
18.9 The Customer can make a privacy complaint by contacting MPI via e-mail. MPI 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
19. Service of Notices
19.1 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.
19.2 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.
20. Trusts
20.1 If the Customer 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 MPI may have notice of the Trust, the Customer covenants with MPI as follows:
a) the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
b) the Customer 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 Customer against the Trust or the trust fund. The Customer 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 Customer will not without consent in writing of MPI (MPI will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Customer 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.
21. General
21.1 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.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws Western Australia, of the state in which MPI has its principal place of business, and are subject to the jurisdiction of the Northern Courts in Western Australia.
21.3 Subject to clause 14 MPI shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by MPI of these terms and conditions (alternatively MPI’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4 MPI may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
21.5 The Customer cannot licence or assign without the written approval of MPI.
21.6 MPI 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 Customer agrees and understands that they have no authority to give any instruction to any of MPI’s sub-contractors without the authority of MPI.
21.7 The Customer agrees that MPI may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for MPI to provide Goods to the Customer.
21.8 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.
21.9 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.