Terms and Conditions

TERMS AND CONDITONS All services provided by Momentum Estimating Pty Ltd (ACN 643 946 338) (Momentum Estimating) are provided in accordance with the following terms and conditions (Terms and Conditions).

1. Quoting
   1. (a) Any Quote provided by Momentum Estimating is only valid for 30 days. Quotes cannot be accepted after this time frame unless Momentum Estimating agrees to the same in writing.
   2. (b) You will be deemed to have accepted a Quote and to have entered into a Contract when:
      1. (i) You advise Momentum Estimating that You accept the Quote, whether in writing or otherwise;
      2. (ii) You instruct Momentum Estimating to proceed to supply the Services even if You have not
         expressly accepted the Quote; or
      3. (iii) You pay the Fees.
   3.  (c) You may at any time request additional Services to be supplied which exceed the scope of a Quote (Additional Services).
   4. (d) If You request Additional Services, Momentum Estimating may issue You with a new quote for the Additional Services and You agree that these Terms and Conditions are incorporated into any such new quote without the need for Momentum Estimating to provide them to You again.
2. Provisions of Services
   Momentum Estimating will use reasonable endeavours to provide the Services within:
   1. (a) 3 to 8 business days; or
   2. (b) if, in the opinion of Momentum Estimating, the Services are complex, 5 to 12 business days, from when You pay the Fees.
3. Invoicing
   1. (a) Momentum Estimating may issue Invoices to You at any time for Services provided by Momentum Estimating to You
   2. (b) You must pay Invoice/s within 7 days of the issue date, unless otherwise agreed in writing. Time is of the essence.
   3. (c) Interest shall accrue on all overdue Invoices calculated at a rate of 12% per annum.
   4. (d) The Fees and all other amounts payable by You to Momentum Estimating are exclusive of GST unless expressed otherwise in the Quote or Invoice.
   5. (e) Unless the parties agree otherwise, You must pay the Fees to Momentum Estimating in advance of Momentum Estimating providing the Services to You. To avoid doubt, Momentum Estimating does not have to commence work until the Fees have been received by Momentum Estimating in cleared funds.
4. Warranties and Acknowledgements
   1. (a) You warrant that:
      1. (i) all information provided by You, including any quantities and costs are correct and accurate, and conform to all requirements under the National Construction Code published by the Australian Building Codes Board, as revised from time to time, and all other applicable legislation; and
      2. (ii) You have obtained all necessary third party consents to the supply of the Services by Momentum Estimating to You, including consents to the use of intellectual property held by third parties.
   2.  (b) You acknowledge and agree that:
      1. (i) the Estimation must not be used for any purpose other than for the project to which the Services relate to;
      2. (ii) the Estimation is confidential and remains the intellectual property of Momentum Estimating;
      3. (iii) the Estimation will be based on non-conforming products and materials and may, for example, be based on industry average prices for specified products and materials, unless otherwise expressly agreed;
      4. (iv) if You require Momentum Estimating to review any Estimation, provide responses in relation to questions regarding the Estimation, obtain and provide any conforming quotations and/or provide any other Additional Services then additional costs will apply;
      5. (v) while Momentum Estimating’s Estimations are provided by experienced estimators, due to the nature of construction and, in particular, differing methods of construction, there is always an inherent risk of inaccuracy. It is therefore Your responsibility to ensure that all details in the Estimation, including quantity and cost estimates, are acceptable to You before use, and that the Estimation should not be the only source of information on which You rely.
5. Limit on Liability
   1. (a) All Estimations are produced by experienced estimators and are provided to You in good faith and
      are believed to be accurate, appropriate and reliable at the time they are given, however, Momentum
      Estimating gives no warranty in relation to the Services provided and You expressly agree that use of
      the Services is at Your own risk.
   2. (b) To the extent permitted by law:
      1. (i) all terms, guarantees, warranties, representations or conditions which are not expressly set out in
         this Contract are excluded; and
      2. (ii) Momentum Estimating is not liable or responsible in any way to You or any other person for any
         Loss suffered as a result of any error, omission, deficiency, discrepancy or issue with the Services.
   3.  (c) Where by law Momentum Estimating is not able to exclude terms, guarantees, warranties, representations or conditions but is able to limit its liability, then to the extent permissible by law, Momentum Estimating limits its liability for any breach, to supplying the Services again or, at Momentum Estimating’s option, refunding the Fees to You.
   4. (d) You acknowledge that the Services are not for personal, domestic or household purposes. If however, the Australian Consumer Law (ACL) does apply to the Contract, then these Terms and Conditions only exclude the ACL guarantees that can be excluded under the ACL and where Momentum Estimating’s liability can be limited under the ACL, Momentum Estimating’s liability is limited to the supply of the Services again or the cost of re-supplying the Services.
6. Indemnity
   1. (a) You indemnify and keep indemnified Momentum Estimating and its servants and agents in respect
      of any claim or demand made or action commenced by any person (including, but not limited to You)
      against Momentum Estimating in connection with any Loss arising from or incidental to the provision
      of Services, any Quote or Contract.
   2. (b) You indemnify Momentum Estimating against all costs and expenses incurred by Momentum
      Estimating as a result of Your failure to perform Your obligations under the Contract, including
      enforcement costs and party to party legal costs.
   3. (c) This clause 6 remains in force after the termination of the Contract.
7. Termination of Contract
   1. (a) Momentum Estimating may at its absolute discretion terminate the Contract at any time by giving
      You notice in writing (Notice of Termination).
   2. (b) Upon receipt of the Notice of Termination, You must immediately pay all amounts outstanding and
      payable by You to Momentum Estimating pursuant to the Contract.
   3. (c) If Momentum Estimating terminates the Contract pursuant to clause 7(a) prior to the supply of any
      Services, then it will refund any Fees relating to those Services to You.
8. Privacy
   1. (a) In the course of dealing with You, Momentum Estimating will collect personal information from You.
   2. (b) You agree to allow Momentum Estimating to collect and use the personal information collected from You for the purpose of supplying the Services to You, marketing and providing other goods and services to You and otherwise in accordance with any privacy policy that Momentum Estimating may provide to You.
   3. (c) You agree to Momentum Estimating disclosing Your personal information to other organisations in order to facilitate supply of the Services to You.
9. Miscellaneous Provisions
   1. (a) Any notice or Invoice that Momentum Estimating may give or issue to You pursuant to these Terms and Conditions will be deemed to be validly given or issued if posted, faxed or emailed to You at Your contact details set out in the Quote.
   2. (b) These Terms and Conditions can only be varied by written agreement of the parties.
   3. (c) If any part of the Contract is or becomes void or unenforceable, that part is or will be severed from
      the Contract to the intent that all parts that are not or do not become void or unenforceable remain in
      full force and effect and are unaffected by that severance.
   4. (d) Momentum Estimating is not liable to You for any default or delay in the supply of the Services to
      You due to circumstances beyond Momentum Estimating’s control including, but not limited to, the
      unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of
      God, government decrees, proclamations or orders and failures or malfunctions of computers or other
      information technology systems.
   5. (e) The Contract shall be governed by the law of Victoria and the parties consent to the non-exclusive
      jurisdiction of the Courts of Victoria.
10. Construction
    1. 10.1 Definitions
       In these Terms and Conditions, unless the context requires otherwise:
       1. (a) Contract means the contract for the supply of Services by Momentum Estimating to You, comprising these Terms and Conditions and the Quote.
       2. (b) Estimation means the construction estimation report prepared by Momentum Estimating as a part of the Services;
       3. (c) Fees means the amounts payable by You to Momentum Estimating for the Services, including all fees, disbursements and GST as set out in the Quote.
       4. (d) GST has the same meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
       5. (e) Invoice means an invoice rendered by Momentum Estimating to You under clause 3;
       6. (f) Loss includes, but is not limited to, direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever, costs (including party to party legal costs), expenses, lost profits or revenue, lost data, personal injury and property damage;
       7. (g) Quote means a written quotation issued by Momentum Estimating to You for the supply of Services to You;
       8. (h) Services means the estimation of quantities of materials and costs in the building and construction described in the Quote, including any other product and service inclusions specified in the Quote and excluding any product and service exclusions specified in the Quote;
       9. (i) You means the person requesting Momentum Estimating to supply the Services the subject of these Terms and Conditions;
    2. 10.2 Interpretation
       In these Terms and Conditions, unless the context otherwise requires:
       1. (a) a reference to a person includes:
          1. (i) a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority; and
          2. (ii) the person’s executors, administrators, legal personal representatives, successors, assigns and persons substituted by novation;
       2. (b) a reference to the parties is a reference to Momentum Estimating and You; and
       3. (c) if You are a trustee, the Contract binds You both personally and in Your capacity as a trustee.