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McKinnon Heating & Cooling Pty Ltd – Terms & Conditions of Trade

McKinnon Heating & Cooling Pty Ltd – Terms & Conditions of Trade

Please note that a larger print version of these terms and conditions is available from McKinnon on request. © Copyright – EC Credit Control 1999 - 2017 - #17640

1. Definitions

1.1 “McKinnon” means McKinnon Heating & Cooling Pty Ltd ATF McKinnon Heating & Cooling Unit Trust T/A McKinnon Heating & Cooling Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of McKinnon Heating & Cooling Pty Ltd ATF McKinnon Heating & Cooling Unit Trust T/A McKinnon Heating & Cooling Pty Ltd.

1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3 “Goods” means all Goods or Services supplied by McKinnon 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).

1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between McKinnon and the Client in accordance with clause 5 below.

1.5 “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 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 agreement between the Client and McKinnon.

3. Electronic Transactions (Victoria) Act 2000

3.1 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.

4. Change in Control

4.1 The Client shall give McKinnon 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, or business practice). The Client shall be liable for any loss incurred by McKinnon as a result of the Client’s failure to comply with this clause.

5. Price and Payment

5.1 At McKinnon’s sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by McKinnon to the Client; or

(b) McKinnon’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 McKinnon reserves the right to change the Price if a variation to McKinnon’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen circumstances such as poor weather conditions, limitations to accessing the site, obscured site defects which require remedial work (e.g. poor existing wiring, etc.), health hazards and safety considerations (such as the discovery of asbestos), availability of machinery, prerequisite work by any third party not being completed, hidden pipes and wiring/cabling, or as a result of any increase to McKinnon in the cost of materials and labour) will be charged for on the basis of McKinnon’s quotation and will be shown as variations on the invoice. The Client shall be required to respond to any variation submitted by McKinnon within ten (10) working days. Failure to do so will entitle McKinnon 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.

5.3 At McKinnon’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 Client on the date/s determined by McKinnon, which may be:

(a) on delivery of the Goods;

(b) by way of instalments/progress payments in accordance with McKinnon’s payment schedule;

(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 Client by McKinnon.

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 Client and McKinnon.

5.6 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 McKinnon 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 Client must pay to McKinnon an amount equal to any GST McKinnon must pay for any supply by McKinnon 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.

6. Delivery of Goods

6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:

(a) the Client or the Client’s nominated carrier takes possession of the Goods at McKinnon’s address; or

(b) McKinnon (or McKinnon’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.

6.2 At McKinnon’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 McKinnon for delivery of the Goods is an estimate only. The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. McKinnon will not be liable for any loss or damage incurred by the Client as a result of delivery being late. In the event that the Client is unable to take delivery of the Goods as arranged then McKinnon shall be entitled to charge a reasonable fee for redelivery and/or storage.

6.4 McKinnon 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. Risk

7.1 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.

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

7.3 If the Client requests McKinnon to leave Goods outside McKinnon’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.

7.4 The work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with the Australian and New Zealand Wiring standards.

7.5 Where applicable, the Client warrants that any structure/s to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to roofing), McKinnon reasonably forms the opinion that the Client’s premises is not safe for the Services to proceed then McKinnon shall be entitled to delay the Services until McKinnon is satisfied that it is safe for the Services to proceed.

7.6 The Client acknowledges that McKinnon is only responsible for parts that are replaced by McKinnon, and in the event that other components/goods, subsequently fail, the Client agrees to indemnify McKinnon against any loss or damage to the Good, or caused by the Goods, or any part thereof howsoever arising.

7.7 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client, or any Goods need to be relocated due to complaints from neighbours or local authorities, the Client agrees to indemnify McKinnon against any additional costs incurred with such relocation. All such variances shall be invoiced in accordance with clause 5.2.

7.8 Whilst the final location of the condensing unit is at the discretion of the Client, a charge will apply as a variation as per clause 5.2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required

7.9 The Client acknowledges that in the event that McKinnon is requested by the Client to perform a temporary repair, the Client accepts that the repair is temporary and McKinnon offers no guarantee against reoccurrence, effectiveness or further damage.

7.10 Where McKinnon gives advice or recommendations to the Client (or the Client’s agent) in regards to the Services, including specific instructions regarding the repair or use of the Goods/equipment and such advice or recommendations are not acted upon then McKinnon shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services, which will be completed at the risk and liability of the Client.

7.11 McKinnon shall, upon installation, ensure that all installed Goods meet current industry standards applicable to noise levels, however McKinnon cannot guarantee that noise levels will remain constant post installation as the Goods may be impacted by many factors such as the weather, lack of maintenance, tampering etc. Accordingly McKinnon offers no warranty in regards to noise levels post installation unless it is evident that there is inherent fault in the Goods or that the installation process was defective.

7.12 Notwithstanding clause 7.2, the Client acknowledges and agrees that it is their responsibility to insure any Goods partly or completely installed on site, against theft or damage.

7.13 Where the Client has supplied materials for McKinnon to complete the Services, or existing materials are in place, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. McKinnon shall not be responsible for any defects in the Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of materials supplied by the Client.

7.14 The Client acknowledges and agrees that pictures and photos in McKinnon’s brochures and advertising material may not represent the actual Goods, and the dimensions and features of the Goods may vary. McKinnon shall not be liable for any loss, damages, or costs however resulting from such variations to the Goods.

7.15 In the event that the property experiences any movement that effects and causes damage to the Goods, the Client accepts and agrees that McKinnon shall not be held liable for any such damage and that the Client shall be responsible for the cost of rectification.

7.16 In the event that the worksite is disturbed due to adverse weather conditions, the Client acknowledges that they shall be liable for the cost of rectification (including but not limited to roof leaks causes by storms, acts of God, earthquake, etc.).

7.17 The Client agrees to indemnify McKinnon from any damage caused by any other tradesman during and after the completion of the Services. If the Client instructions McKinnon to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at McKinnon’s normal hourly rate per clause 5.2.

8. Access

8.1 The Client shall ensure that McKinnon has clear and free access to the nominated site at all times to enable them to undertake the Services. McKinnon 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 McKinnon.

9. Compliance with Laws

9.1 The Client and McKinnon 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, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

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

10. Underground Locations

10.1 Prior to McKinnon commencing the Services the Client must advise McKinnon of the precise location of all underground services on the site and clearly mark the same. The underground 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.

10.2 Whilst McKinnon will take all care to avoid damage to any underground services the Client agrees to indemnify McKinnon 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 10.1.

11. Title

11.1 McKinnon and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid McKinnon all amounts owing to McKinnon; and

(b) the Client has met all of its other obligations to McKinnon.

11.2 Receipt by McKinnon 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 Client in accordance with clause 11.1:

(a) the Client is only a bailee of the Goods and must return the Goods to McKinnon on request.

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for McKinnon and must pay to McKinnon 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 McKinnon and must pay or deliver the proceeds to McKinnon 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 McKinnon and must sell, dispose of or return the resulting product to McKinnon as it so directs.

(e) the Client irrevocably authorises McKinnon to enter any premises where McKinnon believes the Goods are kept and recover possession of the Goods.

(f) McKinnon 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 McKinnon.

(h) McKinnon may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

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 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 McKinnon for Services – that have previously been supplied and that will be supplied in the future by McKinnon to the Client.

12.3 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 McKinnon 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, McKinnon 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 McKinnon;

(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 McKinnon;

(e) immediately advise McKinnon 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 McKinnon 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.

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

12.6 The Client 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 McKinnon, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

12.8 The Client must unconditionally ratify any actions taken by McKinnon 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 McKinnon 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).

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

13.3 The Client irrevocably appoints McKinnon and each director of McKinnon as the Client’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 Client’s behalf.

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

14.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify McKinnon 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 McKinnon 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 McKinnon 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, McKinnon makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. McKinnon’s liability in respect of these warranties is limited to the fullest extent permitted by law.

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

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

14.7 If the Client is not a consumer within the meaning of the CCA, McKinnon’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 McKinnon at McKinnon’s sole discretion;

(b) limited to any warranty to which McKinnon is entitled, if McKinnon 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 Client has complied with the provisions of clause 14.1; and

(b) McKinnon 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.

14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, McKinnon 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 McKinnon;

(e) fair wear and tear, any accident, or act of God.

14.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client 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 McKinnon as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that McKinnon has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 14.10.

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

15. Intellectual Property

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

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

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

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 McKinnon’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

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

16.3 Further to any other rights or remedies McKinnon may have under this contract, if a Client has made payment to McKinnon, 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 McKinnon under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.

16.4 Without prejudice to McKinnon’s other remedies at law McKinnon shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to McKinnon shall, whether or not due for payment, become immediately payable if:

(a) any money payable to McKinnon becomes overdue, or in McKinnon’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 McKinnon;

(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.

17. Cancellation

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

17.2 McKinnon 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 McKinnon shall repay to the Client any money paid by the Client for the Goods. McKinnon shall not be liable for any loss or damage whatsoever arising from such cancellation.

17.3 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 McKinnon as a direct result of the cancellation (including, but not limited to, any loss of profits).

18. Privacy Act 1988

18.1 The Client agrees for McKinnon 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 Client in relation to credit provided by McKinnon.

18.2 The Client agrees that McKinnon 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.

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

18.4 The Client agrees that personal credit information provided may be used and retained by McKinnon 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.

18.5 McKinnon 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.

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 McKinnon 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 McKinnon has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of McKinnon, 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).

18.7 The Client shall have the right to request (by e-mail) from McKinnon:

(a) a copy of the information about the Client retained by McKinnon and the right to request that McKinnon correct any incorrect information; and

(b) that McKinnon does not disclose any personal information about the Client for the purpose of direct marketing.

18.8 McKinnon 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 agreement or is required to be maintained and/or stored in accordance with the law.

18.9 The Client can make a privacy complaint by contacting McKinnon via e-mail. McKinnon 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.

19. Dispute Resolution

19.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:

(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and

(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

20. Building and Construction Industry Security of Payment Act 2002

20.1 At McKinnon’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.

20.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

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. General

22.1 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.

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

22.3 Subject to clause 14, McKinnon 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 McKinnon of these terms and conditions (alternatively McKinnon’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

22.4 McKinnon may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

22.5 The Client cannot licence or assign without the written approval of McKinnon.

22.6 McKinnon 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 McKinnon’s sub-contractors without the authority of McKinnon.

22.7 The Client agrees that McKinnon may amend these terms and conditions by notifying 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 McKinnon to provide Goods to the Client.

22.8 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.

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

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