1.Definitions

In this document, the following words may be used:

“Agreement” – means any contract between you and Momentum which includes these Terms and any other additional documents such as quotes, invoices, tenders, purchase orders or other such documents.

“You” or “Purchaser” – means the customer or Purchaser to which Momentum supplies goods or services.

“Bespoke” – means goods that are created on a one-off basis for a specific Purchaser and made by Momentum specifically based upon unique requests of a Purchaser.

“Goods” – means the products and or services associated with those products that are provided by Momentum to the Purchaser.

“Momentum” – means Alder Enterprises Pty Ltd T/As Momentum Sales and Marketing.

“Price” – the amount payable for the Goods.

“Terms” – means these terms and conditions in this document.

2.Application of Terms

1. 2.1

   Any Agreement may be varied only with Momentum’s prior written consent.

2. 2.2

   To the extent that any conflict exists between these Terms (unless otherwise varied in writing by Momentum ) and any other documentation or correspondence forming part of any Agreement, these Terms of sale shall prevail unless otherwise provided herein.

3. 2.3

   A quote, tender or estimate submitted by Momentum may at any time, prior to acceptance by the Purchaser, be varied or withdrawn by Momentum.

4. 2.4

   Clerical, typing or other errors made in, or in respect of, any tender or quotation shall be subject to reasonably required correction by Momentum prior to acceptance of the quotation by the Purchaser and the corrected tender or estimate shall apply.

5. 2.5

   These Terms of sale are subject to change and may be replaced in their entirety by any subsequent Terms of sale published by Momentum or any division or subsidiary of Momentum, at its discretion.

6. 2.6

   No contract shall be binding on Momentum until the Purchaser's order has been accepted by Momentum and a deposit has been paid.

3.Estimates, Orders and Variations

1. 3.1

   Estimates given are subject to the following conditions:

1. a)

   Any amount provided in an Estimate is based on reasonable estimated costs, they are estimates only and subject to change.

2. b)

   Unless otherwise agreed in writing, estimates given and orders accepted are based on Momentum’s rates and costs as at the date of estimate for materials, transport, labour and other costs and otherwise remain valid for no more than 7 days from the date of communication or as otherwise provided in the estimate.

3. c)

   The price may be increased by Momentum at any time if the cost of such item increases or any other factors (including any change in duties and exchange rates) affecting Momentum cost of supply, production or delivery of the goods ("Relevant Cost Change"). In the event that a Relevant Cost Change occurs, Momentum will immediately provide the Purchaser with reasonable costings in respect of the affected goods and/or services. You may end the Agreement with Momentum in writing within two business days of being notified of the Relevant Cost Change, if the Agreement is not ended then you will be deemed to have accepted the Relevant Cost Change and will pay any difference to Momentum.

4. d)

   Any other conditions provided for in the estimate or otherwise are recorded within these Terms.

2. 3.2

   Variations and Alternations are subject to the following conditions:

1. a)

   Without limiting the generality of any other terms herein, any alteration in quantity, sizes, specification or delivery requested by the Purchaser may necessitate an adjustment of price, which will be advised to the Purchaser prior to such alterations or variations being accepted by Momentum.

2. b)

   No order may be suspended, cancelled or amended without Momentum’s agreement in writing and the Purchaser shall accept liability for all reasonable costs incurred by Momentum, including purchases, stock and work in progress consequent upon the suspension, cancellation or amendment of any order agreed to by Momentum.

3. c)

   Orders are accepted subject to Momentum’s minimum order conditions and manufacturing limitations specified in writing by Momentum (which may vary from time to time) for various items.

4.Deposit & Change of Mind

1. 4.1

   Upon acceptance by Momentum of any estimate, tender or order, the Purchaser must pay to Momentum, as a deposit, a percentage of the estimated total price payable for the Goods (deposit), to which the amount will be provided in writing by Momentum in any Agreement or estimate.

2. 4.2

   Goods that are not bespoke goods are subject to the following change of mind policy:

1. a)

   Within 7 days of acceptance by Momentum (whether or not the deposit is paid immediately), 100% refund of the deposit, unless production has commenced, to which the reasonable cost of production will be deducted from the deposit;

2. b)

   Within 14 days of acceptance by Momentum (whether or not the deposit is paid immediately), 50% refund of the deposit less any costs reasonably incurred by Momentum, unless production has commenced, to which any additional reasonable cost of production will be charged if above 50% of the deposit, and deducted from it;

3. c)

   More than 14 days, deposit forfeited in full unless production has commenced, to which any reasonable cost of production will be charged in addition to the deposit and will become immediately payable.

3. 4.3

   Goods that are bespoke goods are subject to the following change of mind policy:

1. a)

   No deposit is refundable by Momentum unless expressly agreed in writing by Momentum prior to payment of the Deposit by the Purchaser.

2. b)

   Momentum may vary the terms of the deposit and change of mind at its discretion and in consideration of the nature of goods being produced by for the customer, such variation will be recorded in writing and provided to the customer prior to payment of the deposit.

5.Payment

1. 5.1

   The Customer agrees to pay to Momentum the Price in full before the dispatch of the Goods, in a manner as required in the estimate.

2. 5.2

   If the Price is not paid in full as and when due, then Momentum shall have the right to charge interest at the Penalty Interest Rate, plus 5% from the due date to the date that the account is paid in full. Should the account be referred to a collection agency the Applicant shall indemnify Momentum for all interest, debt collection fees and legal costs on a solicitor/own client basis.

3. 5.3

   The Price is exclusive of GST and freighting costs, unless stated otherwise. The Customer must pay to Momentum any GST and freight costs which Momentum is liable to pay in respect of supplies made by Momentum under these Terms, together with the deposit.

4. 5.4

   Goods remain the property of Momentum until full payment has been made.

6.Freight

1. 6.1

   Freight times shall be agreed in writing between the parties. Momentum will not be responsible for delays in the delivery of goods caused by or incidental to floods, earthquakes, storms, war, fires, industrial action, an incorrect address being provided by the Purchaser for the delivery of goods or any other unavoidable, unforeseeable cause beyond Momentum’s control ("force majeure event"). In these circumstances any part of the goods delivered, or able to be delivered, or later delivered will be accepted and paid for by the Purchaser and any such delay in delivery will not relieve the Purchaser from its obligations to pay.

2. 6.2

   Momentum must use its best endeavours to remove, overcome or minimise the effects of that force majeure event as quickly as possible. However, this does not require Momentum to settle any industrial dispute in any way it does not want to.

3. 6.3

   Where delivery, dispatch or payment is to be made by instalments, each delivery, dispatch or payment shall be deemed for such purpose to be the subject of a separate contract and any failure whatsoever by either party in respect of any particular despatches, deliveries or payments shall not entitle the other party to repudiate the order or any instalments remaining to be delivered thereunder.

4. 6.4

   If for any reason the Purchaser is unable to accept delivery of the goods at the time when the goods are due and ready for delivery, Momentum will store at its own premises or arrange for suitable outside storage until actual delivery and the Purchaser shall be liable to Momentum for the reasonable cost of such storage, including any additional handling, insurance and transport costs.

5. 6.5

   Momentum reserves the right to apply delivery charges to all deliveries into the Purchaser's stores. Momentum may also apply additional freight charges for deliveries outside capital cities, outside of normal business hours or if undertaken by alternative means of transport.

6. 6.6

   Momentum shall be under no obligation to insure goods while in transport, unless otherwise agreed in writing and paid for by the Purchaser at the applicable rate at the time of dispatch from Momentum.

7. 6.7

   Risk of any loss, damage or deterioration of the goods ordered shall pass to the Purchaser as soon as the good have been loaded onto the nominated transport.

8. 6.8

   Momentum accepts no liability for off-loading and the Purchaser shall keep Momentum indemnified from and against all claims whatever arising from such off-loading.

9. 6.9

   Momentum reserves the right to dispatch the goods by the most suitable form of transport and to pack the goods in the most suitable manner.

7.Title

Title in the goods shall pass to the Purchaser only upon Momentum receiving full and cleared payment for the goods. Until payment is received, it reserves the following rights to those goods until the account in relation to those goods is fully paid:

1. a)

   legal ownership of the goods; and

2. b)

   b)to enter the Purchaser's premises (or the premises of any associated company or agent where the Goods are located) on giving at least 48 hours prior written notice to the Purchaser without liability for trespass and retake possession of the goods, provided that Momentum complies with the Purchaser's access and security policies at all times which on such premises.

8.Variations

1. 8.1

   The Purchaser acknowledges and accepts that Momentum may be required to vary the goods ordered by the Purchaser for reasons outside the control of Momentum, from time to time.

2. 8.2

   In the event of a variation being required, Momentum will give the Purchaser reasonable notice of the required variation, upon which:

1. a)

   The Purchaser may cancel the order if the variation materially affects the goods provided as required by the Purchaser;

2. b)

   The Purchaser may require any further variations as reasonably required to meet the Purchaser’s requirements for the goods; or

3. c)

   The Purchaser may accept the variations.

3. 8.3

   In the event of a variation requiring a change to the Price, Momentum will issue an adjustment within 2 business days of the Purchaser exercising the above options.

9.Termination & Breach

1. 9.1

   Momentum has the right to terminate its agreement with the Purchaser in the event of any breach of the terms herein or otherwise in Momentum’s sole discretion, acting reasonably.

2. 9.2

   For the avoidance of doubt, a breach is not limited to, but also includes, the Purchaser:

1. a)

   becoming insolvent through bankruptcy or windup;

2. b)

   failing to make payment of any amount to Momentum as and when it falls due;

3. c)

   misusing the goods in any way whatsoever, causing risk of damage to the goods or safety risks to the Purchaser or other parties;

4. d)

   acting in, conducting, dealing in or requiring any practices which are unsafe to people or property;

5. e)

   causing or creating any risk to any person, property or otherwise, such risk being to physical, financial, medical or otherwise;

6. f)

   failing to follow any reasonable requests or instructions of Momentum to prevent a breach; as outlined in this clause;

7. g)

   acting in, conducting, dealing in or requiring any practices which are inappropriate, prejudicial to the reputation of Momentum or it’s associates, employees and contractors; and

8. h)

   fails to maintain a work environment free of risk and danger to people and property.

3. 9.3

   In the event of any termination of the agreement Momentum shall be entitled to a general lien for the unpaid price of any goods sold and/or delivered to the Purchaser under any agreement pursuant to these terms and be entitled to take possession of those goods for the purpose of sale or recovery and resale.

10.Warranty

1. 10.1

   The Purchaser understands that some goods supplied by Momentum are bespoke goods which are one off hand creations that may contain imperfections.

2. 10.2

   The Purchaser purchases any such product relying on its own inspection as to the quality of the product, and as to the existence or otherwise of any imperfections at the time of purchase.

3. 10.3

   Momentum, its directors and staff are not responsible in any way for imperfections in bespoke goods sold and, in particular, are not required to warrant those bespoke goods, unless those goods are specifically not fit for their intended purposes.

4. 10.4

   The Purchaser understands and accepts that any warranty provided for bespoke goods, which shall not in any circumstances exceed 6 months, will apply as specified in documents related to those specific goods from Momentum and as otherwise specified by Momentum.

5. 10.5

   The Purchaser understands that it is their responsibility to use the goods in the intended manner in accordance with any instructions given by Momentum or manuals provided, without causing damage to the goods, the safe use of the goods and ensure all safety devices are installed and checked before they are used ensuring the safety standards comply with the relevant occupational health and safety requirements.

6. 10.6

   Any warranty provided by momentum to the Purchaser may not be assigned or transferred by the Purchaser, without the express written consent of Momentum.

7. 10.7

   The Purchaser’s rights under the Australian Consumer Law remain applicable notwithstanding any conditions set out herein which will be applied to the full extent without conflict to the consumer law.

11.Bespoke Goods

1. 11.1

   The Purchaser acknowledges and agrees that the terms in this clause are specific and additional to these general terms.

2. 11.2

   The Purchaser accepts that the nature of bespoke items requires initial costs for Momentum that must be met, and those costs and expenses cannot be offset towards the sale of other goods usually sold by Momentum.

3. 11.3

   The deposit paid for bespoke goods is necessarily required to meet expenses related to the design and manufacturing of the bespoke good specifically and such costs will not be refundable.

4. 11.4

   The design and manufacture of bespoke items is reliant on the cooperation and timely communications of the Purchaser as to the proper finishes, additions, inclusions, designs or otherwise of the bespoke goods. Any delays caused by the Purchaser will result in delays of production of the bespoke goods by Momentum, to which Momentum will not be liable.

5. 11.5

   The Purchaser acknowledges that any variations or unique requirements may result in the need for materials, contractors or other requirements that will be sourced by Momentum from third parties and such requirements may cause delays beyond Momentum’s control. Such delays must be reasonably accepted by the Purchaser as being necessary and required and do amount to a breach by Momentum unless Momentum agrees that the delays are unreasonable, in its sole discretion.

6. 11.6

   Additional costs may from time to time be charged to you for design and conceptual drawings preparation provided by Momentum for bespoke goods, which will be outlined by Momentum in writing through quotation/estimate or otherwise.

12.Health and Safety

All Purchasers must conduct their own inquiries, hazard and risk assessments for compliance with the relevant State of Victoria Health and Safety Act’s and regulations, associated Work Health and Safety Regulation’s and relevant Codes of Practice given the context in which they will use the services, goods, plant and equipment.

Momentum reserves the right to refuse any order for safety reasons, accessibility issues, location issues or otherwise.

13.No Guarantee

1. 13.1

   The Purchaser acknowledges and agrees that the goods do not provide any guarantee as to the expected outcome, sale, profitability, marketability or otherwise in relation to the goods and their intended use.

2. 13.2

   The Purchaser holds Momentum harmless in relation to any dissatisfaction with the marketability or otherwise to which the goods were used, which may be the subject of numerous other factors external to the goods which are not within Momentum’s control.

14.Liability

1. 14.1

   Under no circumstances will Momentum be liable for any loss of profits or any consequential, indirect or special loss damage or injury of any kind whatsoever suffered by the other party or its servants, agents and contractors and the Purchaser acknowledges this express limit of liability and agrees to limit any claim accordingly.

2. 14.2

   Momentum shall not be liable for any defects, malfunctions, claims for loss, damage or injury of any kind whatsoever, whether to the Purchaser or to any party purchasing such goods from the Purchaser.

3. 14.3

   The Purchaser acknowledges and agrees that Momentums liability limited to the lesser of an amount equivalent to the cost of the specific goods supplied by Momentum for the relevant transaction.

4. 14.4

   The Purchaser will at all times indemnify, hold harmless and defend Momentum, its officers and employees (in this clause referred to as "those indemnified") from and against any loss (including legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising directly from any claim, suit, demand, action or proceeding by any person against any of those indemnified where such loss or liability was as a direct result of a wrongful, unlawful or negligent act or omission of Momentum its employees, agents or sub-contractors in connection with these Terms.

15.Privacy

1. 15.1

   Momentum will meet all necessary and applicable privacy requirements in relation to keeping the Client’s information confidential, save for as required to reasonably complete the requirements of the agreements and these terms.

2. 15.2

   The Purchaser acknowledges and consents to Momentum disclosing some privacy information to third parties for the purpose of completing the requirements of the agreements and these terms and the Purchaser agrees to that disclosure insofar as is reasonably required.

16.Intellectual Property Rights

1. 16.1

   The Purchaser agrees that the rights to any photographs taken by Momentum (or its agents) of the goods remain the sole property of Momentum and may be used by momentum for marketing of its own business, goods and services.

2. 16.2

   The Purchaser irrevocably releases Momentum in relation to any claim which may arise in relation to use of the photographs referred to in this clause.

17.General

1. 17.1

   Any provision in these terms which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms and conditions or affecting the validity or enforceability of that provision in any other jurisdiction.

2. 17.2

   These terms and conditions are governed by the laws of the State of Victoria and the jurisdiction thereof.

3. 17.3

   All terms and conditions are subject to the Australian Consumer Law, your rights as a consumer under that law are not affected.

4. 17.4

   These terms may only be varied by Momentum from time to time, at its discretion.