MOMENTUM LIFESTYLES PTY LTD (ACN 162 961 426) TRADING AS MOMENTUM LIFESTYLES
ONLINE ORDERING TERMS AND CONDITIONS
1.1 This Momentum Shopping site at www.momentumlifestyles.com.au and any other Momentum website platforms (as applicable from time to time) (each, a “Site”) is a shopping website where you can browse, select and order products advertised on the Site from Momentum Lifestyles Pty Ltd (ACN 162 961 426) trading as Momentum Lifestyles (“Momentum”, “us” or “we”).
1.2 This agreement is a contract between you and Momentum. It sets out how you can purchase goods from Momentum. By completing the customer application process and using the Site, you are bound by this agreement.
1.3 Please read these terms and conditions before accessing or using the Site.
1.4 Your access to and use of the Site, including your order of Products through the Site, is subject to these terms and conditions.
2. Compliance with the Terms & Conditions
2.1 You agree to be legally bound by, and comply with, these terms and conditions:
(a) by completing your registration through the Site; and
(b) using the Site to obtain Products from us.
3.2 You may not have more than one active account, and your account is non-transferable. You may update, edit or terminate your account at any time through the Site. You may not have more than two accounts per delivery address.
3.3 If you choose to use a workplace email address for your account or to access the Site, then you are solely responsible for ensuring that you comply with the rules, policies or protocols that apply to the use of your email address and your workplace facilities
4. Placing an Order for Products
4.1 You must ensure that your Order in completed and validly received by the Site before 10:00pm (Perth time) on Sunday (“Order Deadline”) for Momentum to deliver the Products to you during the following calendar week at Momentum’s specified delivery times (as varied from time to time).
4.2 We may ask you to provide additional details or require you to confirm your details to enable us to process any Orders placed through the Site.
4.3 You agree to provide us with current, complete and accurate details when asked to do so by the Site.
5. Acceptance or rejection of an Order
5.1 We reserve the right to accept or reject your Order for any reason, including if the requested Product is not available, if there is an error in the price or the product description posted on the Site or an error in your Order.
5.2 Each Order placed for Products through the Site that we accept results in a separate binding agreement between you and us for the supply of those Products. For each Order accepted by us, we will supply the Products in that Order to you in accordance with these terms and conditions.
5.3 If we reject an Order placed through the Site, then we will endeavour to notify you of that rejection at the time you place the Order or within a reasonable time after you submit your Order.
6. Minimum and maximum amounts in each Order
6.1 If you wish to place an Order that differs from our ordering requirements, then you will need to contact our Customer Service on 1300 733 084 during Contact Hours. If we agree to an Order that differs from our usual requirements, then you agree that the delivery time may be longer than our usual delivery times for standard orders. In this regard, we recommend that you allow at least 3 days between ordering and delivery or such other time that we notify you of at the time we accept your Order.
7. Delivery of Products
7.1 You may obtain further information on the Site about our delivery timeframes and how we deliver your Products.
7.2 We will deliver the Products to the front door at the relevant Delivery Address. If you ask us to deliver inside a premise or building at the Delivery Address and we agree to do so (at our absolute discretion), then you are responsible for all loss or damage suffered by us in connection with our delivery of the Products beyond the front door of the Delivery Address.
7.3 You agree to comply with certain delivery requirements specified below and such other requirements that we notify to you when you place your Order through the Site.
7.4 The Products must be signed for by a person upon receipt at the Delivery Address.
7.5 Unless you direct us to Product Drop in accordance with clause 7.6 below, if there is no one or no appropriate person at the Delivery Address to receive the Order or, if you are required to be present at the time of delivery and you are not present at that time, then:
(a) we will not deliver the Products you have ordered; and
(b) we may charge you a fee of up to $25 and the charges for any perishable Products in your Order that we have accepted.
In this instance, it will be your sole responsibility for you to arrange with us for collection of the Products from the Momentum warehouse at a mutually convenient time during ordinary business hours on the next Business Day. For this purpose we will endeavour to contact you to arrange for a mutually convenient time for you to collect the Products on the next Business Day. You agree that it is your responsibility to collect the Products from us in these circumstances.
7.6 If you elect (via the option on the Site) that we Product Drop (i.e. leave your Products on the ground at the front door of the Delivery Address and unattended), then you agree to:
(a) us leaving your ordered Products at the front door of the Delivery Address without being receipted or signed for by any person;
(b) you fully release Momentum (including its officers, agents and employees) from all loss, damages, claims in respect of the Products that a delivered and left the front door of the Delivery Address; and
(c) fully indemnify Momentum (and its officers and employees) from all or any loss, damage costs, expenses, claims which you or a third party may seek to claim against Momentum as a result of the Product Drop.
7.7 You acknowledge that we may record the details of any identification provided in relation to delivery of Products.
8. Fraud and risk assessment
8.1 We have processes in place to assist in detecting transactions that may be illegal or in breach of these terms. We may contact you by telephone or email to confirm your payment and information details. If we are unable to confirm these details, we may cancel your Order. If you are unsure whether the person contacting you is from Momentum, please contact our Customer Service Centre on 1300 733 084 or email email@example.com.
9. Risk and title
9.1 Risk in the Products passes to you on the date and time of delivery to the Delivery Address. Title to the Products passes to you on the later of the date and time of:
(a) payment for those Products; and
(b) delivery of those Products to the Delivery Address.
10. Cancelling an Order
10.1 We may cancel any Order or part of an Order (including any Orders that we have accepted) without any liability to you for that cancellation at any time if:
(a) the requested Products in that Order are not available; or
(b) there is an error in the price or the product description posted on the Site in relation to the relevant Product in that Order; or
(c) that Order has been placed in breach of these terms and conditions.
10.2 If we cancel an Order in accordance with:
(a) clause 9.1: we will provide you with reasonable notice of that cancellation, and will not charge you for the cancelled Order. If any payment has been taken for the cancelled Order, then the full payment amount, including any Delivery Fee and other fees and charges, will be refunded to your original payment method or through an alternative means.
10.3 You may cancel an Order (whether it is accepted by us or not) through the Site or by calling Customer Service on 1300 733 084 up to 30 minutes before the Order Deadline (as specified on the Site). If so, no fees or charges will apply to that cancellation. Cancellation of an Order through the Site or by calling Customer Service after the Deadline Date will result in all fees and charges paid by you to be retained in full by Momentum.
11. Fees and charges
11.1 We will charge you, and you agree to pay, the following fees and charges in relation to an Order that we accept (as applicable):
(a) the purchase price of each Product that is ordered;
(b) the delivery fee provided to you at the time you selected the relevant delivery window when placing your Order (“Delivery Fee”); and
(c) the cancellation fee for an Order that is cancelled as set out in clause 13.3(b)(ii); and
(d) any other fees and charges set out in these terms and conditions.
11.2 All fees and charges identified in these terms and conditions and all prices for the Products include GST where applicable.
11.3 The purchase price of each Product is shown on the product list on the Site at the time you place your Order. The purchase price of a Product on the Site may not be the same or correspond to the prices in any of the retail stores that supply the same Product.
11.4 If a Product that you have ordered is not available and we have not provided you with a substitute then we will provide you with a refund back within 3-5 business days to your card of purchase to the value of the Products (excluding delivery) that were not supplied to you.
12. Payment methods
12.1 You must pay the fees and charges online using the online payment methods in clause 12.2.
12.2 We accept the following credit cards:
(a) Visa and Visa Debit; or
(b) MasterCard and MasterCard Debit;
12.3 If we are unable to successfully process your credit card payment for your Order that is accepted by us, then we may notify you of dishonour and cancel your Order.
12.4 You authorise Momentum to debit the amount that is payable for an accepted Order from your nominated credit card to pay for the fees and charges.
12.5 You must not pay, or attempt to pay, for Products through any fraudulent or unlawful means.
13. Substitution or missing items in delivery
13.1 You acknowledge that a Product that you order may be out of stock or temporarily unavailable. If this happens, then we will not be able to provide you with that Product.
13.2 We aim to select substitute Products that are of similar value and quality, but (subject to clause 12.4) we reserve the right not to provide you with a substitute Product even if a suitable substitute Product is available.
13.3 If there are items missing from your delivery or collection, then you should check the receipt that we provided to you to determine if the missing Product is marked as out of stock. If so, then we will provide you with a refund to your card of purchase or coupon for the Products that were not supplied.
13.4 In all other circumstances, you may contact Customer Service on 1300 733 084 during Contact Hours within 24 hours after the delivery or collection time and we will take steps to verify and confirm any such missing items. Once we are reasonably satisfied that the item was not delivered to you, provide you with a credit to your relevant card account within 3-5 business days for the Products that were charged but not delivered to you.
14.1 The Momentum Returns Policy applies to all purchases of Products using the Site and forms part of these terms and conditions.
14.2 A copy of the Momentum Returns Policy is available at www.momentumlifestyles.com.au/refunds.
14.3 The Momentum Returns Policy applies in addition to any other rights to which you may be entitled under the consumer guarantees provisions of the Australian Consumer Law. Our liability to you under this agreement is otherwise limited as set out in clause 18 below.
15. Your general obligations
(a) must ensure that your LoginID and password that is used to access the Site and the details of your account are kept in a safe and secure manner;
(b) must notify us through Customer Service on 1300 733 084 during Contact Hours if you are or become aware that there is or has been an unauthorised use of your LoginID and password or account, or any other security breach relating to your account;
(c) must promptly advise us of any changes to your information provided to us as part of the customer registration process;
(d) must provide us with your date of birth to place an Order where a relevant law requires us to obtain or verify your date of birth before we agree to supply that Product to you;
(e) are responsible for any costs associated with your access to or use of the Site, including Internet access fees;
(f) are responsible and liable for any person that uses your LoginID and password to order Product(s) through the Site;
(g) agree that we may charge you for all Products that we agree to supply to you that have been ordered using your LoginID and password through the Site; and
(h) should check the labels on the Products before consumption or use.
16. General restrictions
16.1 You must not:
(a) use the Site for any activities that breach any laws, infringe a third party’s rights or are contrary to any relevant standards or codes;
(b) use the Site in a manner or way, or post to or transmit to or via the Site any material, which interferes with other users or our other customers or defames, harasses, threatens, menaces or offends any person or which prevents any other person from using or enjoying the Site;
(c) make fraudulent or speculative enquiries, purchases or requests through the Site;
(d) use another person’s details without their permission or impersonate another person when using the Site;
(e) post or transmit any obscene, indecent, inflammatory or pornographic material or any other material that may give rise to civil or criminal proceedings;
(f) tamper with or hinder the operation of the Site;
(g) knowingly transmit any viruses, worms, defects, trojan horses or similar disabling or malicious code to the Site;
(h) use any robot, spider, site search and retrieval application or other mechanism to retrieve or index any portion of the Site;
(i) modify, adapt, translate or reverse engineer any portion of the Site;
(j) remove any copyright, trade mark or other proprietary rights notices contained in or on the Site;
(k) reformat or frame any portion of the web pages that are part of the Site;
(l) create accounts by automated means or under false or fraudulent pretences;
(m)use the Site to violate the security of any computer or other network or engage in illegal conduct;
(n) take any action that imposes or that would, in our reasonable opinion, result in an unreasonable or disproportionately large load on our infrastructure;
(o) use the Site other than in accordance with these terms and conditions; or
(p) attempt any of the above acts or engage or permit another person to do any of the above acts.
17. Suspension of account
17.1 We reserve the right to refuse service, terminate accounts and/or remove or edit content if we, acting reasonably, deem that you have acted in breach of these terms and conditions or have used the Site in a fraudulent or improper manner. Momentum also reserves the right to otherwise cancel Orders in accordance with clause 10.
17.2 If we lock, suspend or delete your account under clause 17.1, then we will refund all credits that you are entitled to receive under these terms and conditions by direct deposit to your nominated account once we have conducted all our verification and other relevant checks.
18.1 You warrant that:
(a) all information and data provided by you to us through the Site (including as part of the customer registration process) or otherwise is true, accurate, complete and up to date;
(b) the person receiving the Products at the Delivery Address or collecting the Products on your behalf is authorised by you to do so; and
(c) you have and will comply with all relevant laws relating to your use of the Site and your placement of any Order to us.
19.1 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. You may also be entitled to remedies that cannot be excluded under the Australian Consumer Law if any services supplied by us to you fail to meet a consumer guarantee under the Australian Consumer Law.
19.2 Without excluding, restricting or modifying the rights and remedies to which you may be entitled under these consumer guarantees provisions of the Australian Consumer Law or Momentum’s liabilities under those provisions:
(a) you acknowledge that each Site is provided “as is” and that we do not make any warranty or representation as to the suitability of the Site or a Product for any purpose;
(b) we exclude all other implied terms and warranties, whether statutory or otherwise, relating to the Site or the subject matter of this agreement; and
(c) we will not be liable to you for indirect and consequential loss arising from or connected to this agreement in contract, tort, under any statute or otherwise (including, without limitation, for loss of revenue, loss of profits, failure to realise expected profits or savings, loss or corruption of data and any other commercial or economic loss of any kind) unless such loss arises as a result of our own negligence or wilful misconduct.
19.3 Our liability to you for loss or damage of any kind arising out of this agreement or in connection with the relationship established by it is reduced to the extent (if any) that you cause or contribute to the loss or damage. This reduction applies whether our liability is in contract, tort (including negligence), under any statute or otherwise.
20.1 We may immediately suspend, terminate or limit your access to and use of the Site and (where relevant) your account if you breach these terms and conditions and:
(a) the breach cannot be remedied; or
(b) you fail to the remedy the breach within 10 days of our notice to you of that breach; or
(c) if there is an emergency.
20.2 You may stop using the Site at any time and for any reason.
20.3 We may stop making the Site (or any part of it) available without prior notice. If so, any Orders that we have accepted will not be affected by this unless the Products that have been ordered are no longer available or we are prevented from supplying the Products, in which case, we will notify you and will refund to you all valid payments received by us for those Products.
22. Intellectual property rights
(a) acknowledge that the copyright in the Site, the software, design, text and graphics comprised in the Site, the selection and layout of the Site and the content and materials on the Site (together, the “Materials”) are owned by or licensed to us;
(b) must not modify, copy, adapt, store in a retrieval system, reproduce, upload, post, transmit, sell, distribute in any way or communicate to the public a Material without our prior written consent; and
(c) must not frame or embed in another website any of the material appearing on this Site without our prior written consent.
22.2 You may:
(a) store a reproduction of the content on this Site on your local computer for the sole purpose of viewing the content and Materials; and
(b) print hard copies of the content and Materials for the sole purpose of viewing and purchasing Products but not for any other use, including commercial use.
22.3 This Site contains registered trade marks and other trade marks which are protected by law. You must not use any of the marks or trade marks appearing on the Site or our name or the names of our related bodies corporate without our prior written consent. You must not use any of the other company, product and services marks on the Site that are owned by other third parties (including our suppliers) without obtaining the relevant third party owner’s consent.
23. Changes to these terms and conditions
23.1 We may change these terms and conditions at any time, and such modifications will be effective as soon as they are posted. For future orders, these terms may therefore be different. We recommend that you read these terms carefully each time you agree to them during the ordering process.
23.2 If you have an Order that has been accepted by us, the terms and conditions that will apply to the Order are the terms and conditions that applied at the time you placed your Order.
24.1 The Site may contain links to external websites that are not operated by us or our related bodies corporate. These links are provided for your convenience only and you agree that:
(a) we make no representations or warranties, or have any responsibility or liability for those websites; and
(b) these links do not indicate, expressly or impliedly, that we endorse the site or the products or services that are provided at those sites.
You agree that you access and use the products and services made available at those sites solely at your own risk.
24.2 If the whole or any part of a provision of this agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this agreement or is contrary to public policy.
24.3 This agreement is governed by the laws of Western Australia. Each party submits to the non-exclusive jurisdiction of the courts of that place. Any rights or remedies to which you are entitled under the Australian Consumer Law arise independently of these terms and conditions and this clause does not apply to any claim you may have under the Australian Consumer Law.
24.4 Momentum attempts to be as accurate as possible and uses its best endeavours to ensure, but does not itself warrant, that any information provided by its suppliers, including in relation to product descriptions or other content of this site, is accurate, complete, reliable, current or error-free.
Capitalised terms used are defined in these terms and conditions. In these terms:
Contact Hours means Customer Service operating hours, Monday to Friday 8:00 am to 5:00 pm, Western Standard Time (Perth).
Customer Services means Momentum’s customer service assistants.
Delivery Address means the address specified by you during the customer registration process for the delivery of Products that we will supply to you under these terms and conditions. In the case of delivery to a remote area via a courier, Delivery Address means the address of the courier or postal outlet to which we deliver the Products.
Delivery Fee has the meaning given in clause 11.1(b).
GST has the meaning it has in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth).
LoginID means the email address that you provided to us as part of the registration process to use the Site.
Order means any order for a Product or Products submitted using the Site.
Order Deadline has the meaning specified in clause 4.1.
Product means each good or service that is advertised on the Site.
Product Drop means Momentum (or its agents) leaving your Order unattended on the ground at the front door of the Delivery Address without being receipted or signed for by any person.