Momentum QMS


The Company provides the Momentum QMS online application for managing quality management and compliance processes. Use of Momentum QMS is subject to these Terms of Service.
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
(a) ABN means Australian Business Number.
(b) Agreement means the agreement formed between the Users and the Company under, and on the terms of, these Terms of Service.
(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
(d) Company means Momentum Enterprise Systems Pty Ltd ABN 47 619 547 198.
(e) Confidential Information means any written or verbal information that:
i Is about each party’s business or affairs;
ii Is about the conduct of each party under this Agreement and the during the term of this Agreement;
iii A party informs the other party that it considers it confidential and/or proprietary;
iv A party would reasonably consider to be confidential in the circumstances; and
v Is personal information within the meaning of the Privacy Act.
but does not include information that a party can establish:
vi Was in the public domain at the time it was given to that party;
vii Became part of the public domain, without that party’s involvement in any way, after being given to the party;
viii Was in party’s possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
ix Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
(f) Corporations Act means the Corporations Act 2001 (Cth).
(g) Customer means a registered user of Momentum QMS that uses the features associated with a Customer account.
(h) Custom Build means a custom iteration of Momentum QMS developed by the Company for the Customer.
(i) Fee means a fee charged by the Company for use of Momentum QMS.
(j) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(k) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
(l) Momentum QMS means the Momentum QMS digital platform accessible from, or any URL operated by the Company for a Customer, including any Custom Build where implied by context.
(m) Privacy Act means the Privacy Act 1988 (Cth).
(n) Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at
(o) Protocol means any policy, compliance or regulatory standard supported by Momentum QMS from time-to-time, including without limitation ISO or FDA standards.
(p) Services Agreement means an agreement between the Company and the Customer for the provision of additional services, including the development and hosting of a Custom Build.
(q) Subscription Fee means a Fee charged by the Company for use of Momentum QMS on a periodical basis.
(r) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(s) Team Member means a registered user of Momentum QMS, that uses the features associated with a Team Member account.
(t) Terms of Service means the terms and conditions of using Momentum QMS, as updated from time-to-time, which can be found at
(u) TPS means an online third-party service provider with whom a User holds an account.
(v) User means any registered Customer or Team Member that uses Momentum QMS.
(w) User Content means images, information, documents or other data that is uploaded or input into Momentum QMS by the User or that forms part of the User’s Intellectual Property.
1.1 General
(a) To use Momentum QMS, the User must log into Momentum QMS and have set up their account.
(b) The User agrees that all use of Momentum QMS is subject to these Terms of Service.
(c) Momentum QMS is only available to Users over the age of 18.
(d) The Customer shall be responsible for:
i Paying the Fees for using Momentum QMS; and
ii Each Team Member’s use of Momentum QMS that the Customer authorises.
(e) The Company may suspend the account or restrict the access of any User that breaches the terms of this Agreement.
(f) The Company provides Momentum QMS as a tool to assist Users to meet their quality management and compliance requirements only. It is each User’s responsibility to ensure that they meet their compliance requirements. Under no circumstance will the Company be liable for a User’s failure to meet their quality control or compliance responsibilities.
(g) To the extent permitted by law, the Company accepts no liability for the accuracy of any information made available via Momentum QMS. Any reliance on the information available through Momentum QMS is at the User’s own risk. A User’s recourse for reliance on inaccurate, fraudulent or otherwise false information shall only be against the User that supplied that information, and not against the Company.
(h) Any dispute that may arise between Users must be dealt with strictly between those Users and not involve the Company in any way. Under no circumstance will the Company perform a dispute resolution role for a dispute between Users.
(i) Momentum QMS does not keep a back-up of records or documents that have been deleted by a User. If a User deletes such a record or document, no User shall have a claim against the Company.
(j) The Company does not generally store the User Content of Users of terminated accounts. It is each User’s responsibility to ensure that they back-up and keep copies of any documentation within Momentum QMS that they may require.
1.2 Features
(a) Momentum QMS may allow a Customer to:
i Operate an admin account;
ii Create and manage Team Member accounts;
iii View analytic information on their quality management and compliance functions;
iv Customise Momentum QMS to manage Protocols relevant to the Customer’s organisation;
v Upload and manage documentation;
vi Manage risk management processes;
vii Manage risk management training; and
viii Such other features the Company enables via Momentum QMS from time-to-time.
(b) Momentum QMS may allow a Team Member to use such features as the Customer may enable the Team Member to use from time-to-time.
2.1 The Customer agrees and warrants that:
(a) The Customer is responsible for any compliance with Protocols for which it uses Momentum QMS, including (without limitation):
i ISO standards;
ii FDA Standards;
iii Occupational health and safety;
iv Laws and/or regulations;
v Contractual requirements;
vi Policies; or
vii Any other matter for which the Customer uses Momentum QMS to manage a quality management or compliance related function.
(b) To the extent permitted by law the Customer indemnifies and will hold the Company harmless against all costs, claims damages and expenses for any:
i Penalty imposed upon the Customer;
ii Claim of infringement of Intellectual Property Rights made by a Team Member or third party;
iii Claim of breach of confidentiality by a Team Member or third party;
As a result of the Customer’s use of Momentum QMS.
(c) It shall ensure that all information that it makes available through Momentum QMS is accurate and up to date, including (but not limited to) information supplied for:
i Creating an Account;
ii Creating records;
iii Updating records;
iv Notifying Team Members; and
v Any other information that may be accessed by the Customer or another User.
2.2 The Customer may impose any additional rules on a Team Member’s use of Momentum QMS, as such use relates to the Customer, at the Customer’s sole discretion. The Customer shall be solely responsible for the content and enforcement of any such rules. In no event will the Company be responsible to the Customer or any Team Member in relation to such rules. In the event of a conflict between such rules and this Agreement, this Agreement shall prevail.
2.3 Any person who registers as a Customer in Momentum QMS warrants that he or she is an authorized representative of that Customer with the requisite authority to bind the Customer to this Agreement.
3.1 A Team Member’s access to the Customer’s account may be created, limited and/or cancelled by the Customer at its discretion. Such access may include such features of the Customer’s account as the Customer enables for the Team Member.
3.2 The Team Member agrees and accepts that:
(a) Under no circumstances will the Company be responsible to a Team Member for the relevant Customer’s use of the Team Member’s User Content;
(b) Any dispute regarding a Team Member’s use of Momentum QMS must be directed to the Customer;
(c) The Team Member indemnifies the Company against all costs, claims damages and expenses for any injury or damage caused to the person or property of a third party as a result of the Team Member’s use of Momentum QMS;
(d) Momentum QMS may share the User Content input or uploaded by the Team Member with the Team Member’s Customer, and other Team Members;
(e) Any information shared by the Company with a Customer may be retained by the Customer for the purpose of updating their administrative records, compliance purposes, or such other purpose as may be agreed between the Team Member and the Customer;
(f) Momentum QMS may send the Team Member emails, text messages, push notifications and other alerts on behalf of Customers;
(g) Any consent or statement made by a Team Member through Momentum QMS is valid and binding unless and until revoked by the Team Member, and a Customer may rely on a consent or statement made through Momentum QMS without any need to further verify the veracity of that consent;
(h) All information about a Team Member is used and controlled by the Team Member or Customer, not the Company;
(i) All information input into Momentum QMS about a Team Member is provided with that Team Member’s consent;
(j) The Team Member must ensure that all information that they enter into Momentum QMS is true and accurate, and agrees to update that information in order to ensure that it is current.
(k) The Customer may impose any additional rules on the Team Member’s use of Momentum QMS in its sole discretion. In no circumstance will the Company be responsible for the Team Member’s compliance with such rules.
4.1 The Company may create and host Custom Builds of Momentum QMS for a Customer on the terms of a Service Agreement.
4.2 All use of Custom Builds shall be subject to the terms of this Agreement and the terms of any Service Agreement.
4.3 In the event of a conflict between this Agreement and any Service Agreement. The terms of the Service Agreement shall prevail.
4.4 Where the Company provides the Customer with access to a Custom Build, and the Customer further customises or develops the Custom Build (whether by themselves or by using a third party developer), the Customer acknowledges that:
(a) The Customer bears all responsibility for the efficacy and ongoing operation of the Customer’s Custom Build that the Customer has modified; and
(b) The Company shall not be responsible for the operation of any Custom Build modified by the Customer (or on behalf of the Customer by a third-party), including whether any update that the Company makes to the underlying Momentum QMS system will apply or operate correctly in the Custom Build.
4.5 This Agreement does not apply to any Custom Build that the Company does not host for the Customer. All use of a Custom Build hosted on a Customer’s own servers shall be governed by the Service Agreement that applies to the Custom Build.
5.1 Fees
(a) The primary Fee to use Momentum QMS shall be the Subscription Fee, which is payable in advance.
(b) Each Fee applies in accordance with such features; number of User licenses and/or services subscribed for by the Customer in accordance with the pricing described on the Site, or as otherwise agreed with the Company (including in a Service Agreement).
(c) The Customer agrees to make payment in advance for all Fees due at such frequency, or on such dates as the Customer has subscribed for.
(d) All payments shall be made via the online payment gateway within Momentum QMS, or in such other manner as the Company may direct from time-to-time. The Customer agrees that it has no right to access Momentum QMS if it fails to make payments when due.
(e) The Company reserves the right to introduce or change any Fees from time-to-time by giving the User no less than 14 days’ written notice. Any new or changed Fees will apply at the next billing period after the Customer has been given such notice.
(f) If a Customer does not accept a change to any Fees, then it can simply terminate its Account.
5.2 Currency.
All Fees are quoted in Australian dollars, however transactions may be processed in an equivalent foreign currency (such as US dollars or British pounds).
5.3 GST.
For Customers in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the Customer with a Tax Invoice for any payments.
5.4 Refunds.
No refunds of Fees are offered other than as required by law.
5.5 Late Payment.
(a) If the Customer does not pay the full Fees as required, the Company may suspend all User access to Momentum QMS for that Account.
(b) If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may terminate the Customer’s Account in Momentum QMS without notice and end this Agreement.
(c) The User agrees that the Company shall not be responsible or liable in any way for:
i Interruptions to the availability of Momentum QMS or User Content in the event of (a);
ii Loss of User Content in the event of (b).
6.1 Licence
(a) By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use Momentum QMS for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
(b) The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
(c) The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User.
6.2 Modification of Terms
(a) The terms of this Agreement may be updated by the Company from time-to-time.
(b) Where the Company modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using Momentum QMS.
6.3 Software-as-a-Service
(a) The User agrees and accepts that Momentum QMS is:
i Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the servers operated by the Company and is not available ‘locally’ from the User’s systems; and
ii Managed and supported exclusively by the Company from the servers operated by the Company and that no ‘back-end’ access to Momentum QMS is available to the User unless expressly agreed in writing.
(b) As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Momentum QMS.
6.4 Support
(a) The Company provides user support for Momentum QMS via the email address
(b) The Company shall endeavour to respond to all support requests within 1 Business Day.
6.5 Use & Availability
(a) The User agrees that it shall only use Momentum QMS for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
(b) The User is solely responsible for the security of its username and password for access to Momentum QMS. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Momentum QMS account.
(c) The User agrees that the Company shall provide access to Momentum QMS to the best of its abilities, however:
i Access to Momentum QMS may be prevented by issues outside of its control; and
ii It accepts no responsibility for ongoing access to Momentum QMS.
6.6 Privacy
(a) The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the User and other customers.
(b) The Privacy Policy does not apply to how the Customer handles personal information. If necessary under the Privacy Act, it is the Customer’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.
(c) Momentum QMS may use cookies (a small electronic tracking code) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.
6.7 Data
(a) Security. The Company takes the security of Momentum QMS and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
(b) Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
(c) Storage. The Company stores data on servers based in Australia and USA according to accepted industry standards. If the User requires its User Data to be stored in a different location, the Company may charge the User a fee to do so.
(d) Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Data from any period of time unless so stated in writing by the Company.
6.8 Intellectual Property
(a) Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
(b) Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Momentum QMS.
(c) The Momentum QMS Application. The User agrees and accepts that Momentum QMS is the Intellectual Property of the Company and the User further warrants that by using Momentum QMS the User will not:
i Copy Momentum QMS or the services that it provides for the User’s own commercial purposes; and
ii Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Momentum QMS or any documentation associated with it.
(d) Content. All content submitted to the Company, whether via Momentum QMS or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Momentum QMS.
6.9 Disclaimer of Third Party Services & Information
(a) The User acknowledges that Momentum QMS is dependent on third-party services, including but not limited to:
i Banks, credit card providers and merchant gateway providers;
ii Telecommunications services;
iii Hosting services;
iv Email services; and
v Analytics services.
(b) The User agrees that the Company shall not be responsible or liable in any way for:
i Interruptions to the availability of Momentum QMS due to third-party services; or
ii Information contained on any linked third party website.
6.10 Confidentiality
(a) Each party acknowledges and agrees that:
i The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
ii It owes an obligation of confidence to the Discloser concerning the Confidential Information;
iii It must not disclose the Confidential Information to a third party except as permitted in this Agreement;
iv All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
v Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
(b) A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
i Any actual, suspected, likely or threatened breach by it of clause 6.10(a);
ii Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
iii Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
(c) The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
i Any actual, suspected, likely or threatened breach of a term of this Agreement; or
ii Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
6.11 Liability & Indemnity
(a) The User agrees that it uses Momentum QMS at its own risk.
(b) The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
(c) The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Momentum QMS, including any breach by the User of these Terms of Service.
(d) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Momentum QMS, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, or business interruption of any type, whether in tort, contract or otherwise.
(e) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
i The re-supply of services or payment of the cost of re-supply of services; or
ii The replacement or repair of goods or payment of the cost of replacement or repair.
6.12 Termination
(a) Either party may terminate this Agreement by giving the other party 1 month’s written notice.
(b) Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
(c) Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations under clauses 6.5, 6.6, 6.7, 6.8 6.9, 6.10, 6.11, 6.13, 6.14 and 6.15 survive termination of this Agreement.
6.13 Dispute Resolution
(a) If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
i Includes or is accompanied by full and detailed particulars of the Dispute; and
ii Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
(b) Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.
(c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
6.14 Electronic Communication, Amendment & Assignment
(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
(c) The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
(d) A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) Notices must be sent to the parties’ most recent known contact details.
(f) The User may not assign or otherwise create an interest in this Agreement.
(g) The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
6.15 General
(a) Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
(b) Prevalence. To the extent this Agreement is in conflict with, or inconsistent with any Service Agreement or Special Conditions made under this Agreement, the terms of those Special Conditions or Service Agreement shall prevail.
(c) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
(d) Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
(e) Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
(g) Governing Law. This Agreement is governed by the laws of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
(h) Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
(i) Interpretation. The following rules apply unless the context requires otherwise:
i Headings are only for convenience and do not affect interpretation.
ii The singular includes the plural and the opposite also applies.
iii If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
iv A reference to a clause refers to clauses in this Agreement.
v A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.
vi Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
vii A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
viii A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
ix A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.