The terms and conditions set out below apply to your use of the www.motionneverstop.com.au and www.motionneverstop.com.au/home/shop websites and associated websites (“Websites”)
and also any other products and services of Motion Pty Ltd (ACN 116556819) including any of MOTION’s mobile apps for smart phone and tablet devices should they exist.
The Websites are operated by MOTION. As a condition of use of the Websites you agree to the terms and conditions of use as set out below. Should you not agree to these terms and conditions of use then please leave the Website now.
Your use of the Websites constitutes your agreement to the Terms and Conditions. This means by using the Websites you are bound by these Terms and Conditions. These Terms and Conditions are also to be read in conjunction with our Privacy Statement and any other applicable terms and conditions issued by MOTION.
MOTION reserves all rights to alter the terms and conditions as set out below at its discretion. Each time you use the site, it is your responsibility to be aware of our current terms and conditions.
TERMS AND DEFINITIONS
- “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of State Fair Trading legislation.
- “MOTION” means Motion Pty Ltd ACN 116556819 or any member of the Motion Group as the context may require (and any reference to “we”, “us” and “our” is also a reference to Motion); and
- “Motion Group” means the group of related bodies corporate of Motion Pty Ltd which carries on the business of design, importation, marketing and distribution of the Products;
- “Linked Website” means any website accessible from a hyperlink provided on the Websites, either directly or indirectly;
- “you” and “your” are a reference to the Purchaser or a User of the Websites;
“Products” means the products which Motion may cause to be supplied to you pursuant to these Terms and Conditions;
- “Purchaser” shall mean a person, firm, or corporation, jointly and severally if there is more than one, purchasing Products by placing an order on the Websites;
- “Terms and Conditions” shall mean these terms and conditions of sale and use of this Website;
- “Seller” shall mean either Motion or such other member of the Motion Group which is selling the Products as the case may be;
- “User” means any person who accesses the Websites.
- Any order placed by a Purchaser on the Websites is deemed to be an order incorporating, and being subject to, these Terms and Conditions, unless expressly agreed otherwise by the Seller in writing.
- Any order placed by you on the Websites in the manner described in the Website is an offer by you to purchase particular Products for the price specified (including the delivery costs and other charges and taxes), and in accordance with these Terms and Conditions as are applicable at the time you place your order.
- The Seller reserves the right to accept or reject your offer for any reason, including, without limitation, the unavailability of any Products, an error in the price or the description of Products on this Website, or an error in your order.
- You are not entering into a contract with the Seller until the Seller forwards confirmation of receipt of your order and payment.
- Orders accepted by the Seller may not be cancelled or altered in whole or in part by you without prior written consent from the Seller.
- The Seller may decline by notification to the Purchaser, any order in whole or in part, at any time prior to delivery of the Products. If the Seller does so, the Seller will be under no obligation in respect of the order.
- Payment of any order placed by you on the Website will only be accepted by credit card or PayPal (or such other payment means as may be approved by the Seller from time to time).
- Prices of Products and delivery and other charges displayed on this Website are current at the time of issue, but may change at any time and are subject to availability.
- All prices are expressed in Australian Dollars unless otherwise stated.
- All prices are inclusive of 10% GST as defined in the A New Tax System (Products and Services Tax) Act 1999, where the imposition of GST is applicable.
- In addition to the price payable, you are responsible for any other taxes, duties or other liabilities imposed by any governmental agency, including without limitation, any customs duty, Products and services taxes or any value added tax imposed on any Products acquired or ordered by you from this Website.
- You must arrange and pay for all costs associated with the carriage and insurance of the Products from the Seller’s nominated collection address.
- The Seller reserves the right to vary its prices, without notice to the Purchaser, up to the time when final confirmation of the order is given by the Seller.
- Orders are delivered by the method of delivery offered by the Seller and selected by you during the order finalisation and confirmation process on the Websites.
- Deliveries within Australia will be carried out by Australia Post,Startrack or TNT and the Purchaser should allow for approximately 2-3 business days from the date of confirmation of order to delivery of the Products. Allow up to 10 business days during a sale.
- Deliveries outside of Australia will be carried out by Australia Post and the Purchaser should allow for approximately 3 weeks from the date of confirmation of order to delivery of the Products.
- Any time quoted for delivery is an estimate only and the Seller shall not be liable to you or to any other person for any loss or damage howsoever arising as a result or consequence of any failure to deliver or any delay in delivery resulting in the Products arriving later than estimated delivery times.
- You shall not be relieved of any obligation to accept or pay for Products by reason of any delay in delivery.
- Where you request the Seller to deliver Products directly to another person, that person takes possession of the Products for you as your agent, but you remain directly responsible to the Seller under these Terms and Conditions.
INABILITY TO DELIVER DUE TO PURCHASER
- If, due to any act, omission or default by the Purchaser, the Seller is unable to deliver any Products to you at the time that the Products are due to be delivered, you agree to reimburse the Seller for all reasonable costs incurred by Motion or any member of the Motion Group for storing, securing and insuring the Products until such time as the Products are delivered or re-delivered to the Purchaser.
- All costs under the above clause will be calculated for the period commencing on the date on which any Products would have been delivered but for the Purchaser’s act, omission or default, and finishing on the date on which the Products are subsequently delivered or re-delivered.
CANCELLATION OF ORDERS
- If the Seller determines that it is or may be unable to deliver within a reasonable time, or at all, the contract may be cancelled by the Seller. In the event of cancellation you shall have no claim against the Seller for any damage, loss, cost or expense whatsoever.
- No purported cancellation or suspension of an order or any part thereof by you is binding on the Seller after that order has been accepted by the Seller.
- Risk in the Products and all insurance responsibility for theft, damage or otherwise in respect of the Products will pass to you upon despatch of the Products for delivery from the premises of the Seller supplying the Products.
- Refunds and exchange policy
- The Seller acknowledges and agrees that:
- The Seller at its discretion may accept returns within ten (10) days of dispatch of a Product, if the Product is in its original purchase condition.
- Any Product which the Seller has elected to accept return of shall be returned at the Customer’s cost.
- Sale items are non-refundable.
- Any custom made, custom processed or custom acquired Products will not be returnable at all.
- Damaged or faulty goods
The Purchaser acknowledges and agrees that:
- If the Product has been damaged during transportation for the purposes of Delivery* to the Purchaser, the Seller will replace the Product if the Purchaser contacts Seller within two (2) business days of receiving the Product.
- Delivery costs to return the Product to Seller are the responsibility of the Purchaser.
- Incorrect Products, If you receive Products from the Seller other than those you intended to purchase, you have seven (7) days after delivery of the Products to you to contact the Seller and return the Products so that they may be replaced by the correct Products. If the Products are returned in original packaging and in a resalable condition (ie not worn), the Seller will replace the Products or refund you the purchase price of them at the Seller’s discretion. If the Products are not returned in original packaging and/or not in a resalable condition (ie not worn), it is at the Seller’s discretion as to whether the Products will be replaced or returned to you without replacement.
- The Seller will not be held responsible for damage caused to Products by misuse or poor care.
- The Seller’s Refund Policy as set out herein shall be subject to the requirements of the Australian Consumer Law, and where applicable shall be modified to the extent necessary to comply with the Australian Consumer Law and shall be supplemented where necessary to provide any additional rights and obligations upon the Seller and the Purchaser where necessary to comply with the Australian Consumer Law.
- If you are returning Products from an International location (outside of Australia), please ensure that you clearly mark on the customs declaration that the Products contained in the package are “Returns” to the seller to prevent the package incurring customs charges. If the Products are not marked as “Returns” and the Seller incurs a customs charge, the Seller may refuse to accept delivery of the Products unless the cost is met by you.
INTELLECTUAL PROPERTY RIGHTS IN THE PRODUCTS
- Motion pty ltd owns or is the licensee of all copyright, trade mark, patent or design rights or confidential information (“Intellectual Property”) in or related to any of the Products.
- You must not copy the Products or permit or arrange for any third party to copy them.
- You must:
- only use any Products for the purposes for which they were designed to be used;
- not reverse engineer any Products; and
- not design or manufacture products that compete with any Products.
- Consumer Notice: Our Products 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 for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure.
- Subject to clause 10 above, in no event shall Motion be liable (whether before or after discharge of the contract or otherwise) for any loss or damage suffered by you or any third party, howsoever caused, including but not limited to special, incidental, indirect, or consequential loss, economic loss, loss of turnover, profits, goodwill or revenue, whether or not any member of the Motion Group was aware of or may reasonably have anticipated such losses may be incurred.
- You agree that your use of the Website shall be at your sole risk.
- To the fullest extent permitted by law, any condition or warranty which would otherwise be implied into these Terms and Conditions is hereby excluded.
- We make no warranties or representations about the accuracy or completeness of the content or opinions expressed on the Website or the content of any Linked Website and assume no liability or responsibility for any of the following, or for any claims, demands, losses, costs or expenses (including without limitation legal costs), or for any direct, indirect, incidental, special, punitive or consequential damages, economic loss or damage to reputation whatsoever, resulting from any:
- errors, mistakes or inaccuracies of material or information on the Website;
- personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Website;
- any unauthorised access to or use of our secure servers and/or any and all personal information and or financial information stored therein;
- any interruption or cessation of transmission to or from the Website;
- any bugs, viruses, or the like, which may be transmitted to or through the Website by any third party;
- any errors or omissions in any material or information or for any loss or damage of any kind incurred as a result of your use of any material or information posted, emailed, transmitted or otherwise made available on the Website; and/or
- any errors or omissions in any content or for any loss or damage or for any loss or damage of any kind incurred as a result of your use of any content posted, emailed, transmitted or otherwise made available on the Website.
- We do not warrant, endorse, guarantee or assume responsibility for any product or service advertised or offered by a third party through the Website or any Linked Website or featured in any banner or other advertising, and we will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services.
- To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless, us, our officers, directors, employees, contractors, agents or related bodies corporate for any liabilities, claims, demands, losses, costs and expenses (including without limitation legal costs), or for any direct, indirect, incidental, special, punitive or consequential damages, whatsoever resulting from:
- your use of and access to the Website; and
- your violation of any third party right, including any copyright, property, or privacy right; or
- any breach of your obligations under these Terms and Conditions
The indemnities referred to in this clause 13 shall survive the termination of these Terms and Conditions of Use and your use of the Websites.
- Unless we agree otherwise in writing, you are provided with access to this Website only for your personal use.
- Copyright in the content of this Website (including text, photographs, graphics, logos, icons and software) is owned or licensed by us. Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth) and similar legislation which applies in your location, and except as expressly authorised by these Terms and Conditions, you may not in any form or by any means:
- adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of this Website; or
- Commercialise any information, products or services obtained from any part of this Website, without our written permission.
Failure by Motion to insist upon strict performance of any term, warranty or condition of the contract shall not be deemed as a waiver thereof or of any rights Motion or any member of the Motion Group may have and no expressed waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.
- You acknowledge that you are acquiring the Products for private use and not for the purpose of re-supply in trade or commerce and warrant that you can make legally binding contracts.
- You acknowledge that neither Motion Pty ltd nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the Products for any particular purpose or any other matter. In particular, you acknowledge that it does not rely on the skill and judgment of the Motion Group in supplying Products which are fit for a particular purpose, and that it will ensure that any Products supplied to it by Motion pty ltd are in accordance with its order.
- Any description of the Products contained on this Website is approximate only and is given by way of identification only and the use of such description shall not constitute the contract a sale by description. You cannot claim against the Motion pty ltd for any deviation.
- You agree that your use of the Websites is solely at your risk. To the fullest extent permitted by law, Motion, its officers, employees and agents disclaim all warranties whether express or implied in connection with the Websites and your use of it.
- Motion does not warrant or represent that the content on the Websites or on any other website linked to the Website is accurate or complete.
- Motion does not warrant as to the fitness and appropriateness of any the products or services advertised by third parties on the Websites and you agree that Motion shall in no way be responsible for your dealings with third parties who so advertise.
- To the fullest extent permitted by law, and in respect of the Websites, in no way shall Motion, its officers, employees or agents be liable for any remedy at law or at equity resulting from:
- any errors of content;
- any viruses, trojan horses or the like which is transmitted through the Websites by a third party; or
- any unauthorized access of secure servers which results in access to personal, sensitive and/or financial information stored therein;
- Corruption to or loss of data, errors or interruptions or any suspension or discontinuance of the service.
Motion reserves the right to assign its rights and obligations under these Terms and Conditions or subcontract the production, manufacture or supply of the whole or any part of the Products to be supplied. You may not assign its right and obligations under these Terms and Conditions without Motion ptyltd’s prior written consent.
- This Website may contain links to other websites. Those links are provided for convenience only and may not remain current or be maintained
- Motion are not responsible for the content or privacy practices associated with Linked Websites
- Our links with Linked Websites should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those Linked Websites, or of any information, graphics, materials, products or websites referred to or contained on those Linked Websites, unless and to the extent stipulated to the contrary
Any notice to be given by you to Motion shall be sent to Motion’s address that appears on this Website, or as otherwise notified to you by Motion. No notice shall be deemed to be given until it is actually received at such address
Any provision of these terms, which is invalid or unenforceable in any jurisdiction, is to be read down, if possible, so as to be valid and enforceable. The read down provision will apply only in the relevant jurisdiction. If the provision cannot be read down, and it can be severed to the extent of the invalidity or unenforceability, then it will be severed. The remaining provisions of these terms, and the validity or enforceability of that provision in any other jurisdiction, will not be affected
The Purchaser agrees that all contracts made with Motion shall be deemed to be made in the State of Victoria, Australia and these Terms and Conditions are governed by the laws of the State of Victoria, Australia and the parties unconditionally submit to the exclusive jurisdiction of the courts of Victoria and courts entitled to hear appeals from these courts.
If the performance of the Seller’s obligations under these Terms and Conditions is prevented, restricted or affected by force majeure including strike, lock out, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of the Seller, the Seller will not be liable for any loss or damage suffered by the Purchaser or any other person and the Seller will give the Purchaser written notice if the force majeure event has continued unabated for thirty (30) days.
We reserve the right to amend these Terms and Conditions from time to time. Amendments will be effective immediately upon notification on the Websites. Your continued use of the Websites following such notification will represent an agreement by you to be bound by the Terms and Conditions, as amended.
If you have any queries please contact customer service at:
Motion Pty Ltd
No4 Woodrow court
VIC, Australia 3781