Ergoflex® Australia Website Terms and Conditions
1. DEFINITIONS
1.1. ‘Business Day’ means a week day in which trading banks are open for the transaction of banking business in Sydney, Australia.
1.2. ‘GST Rate’ means the rate at which GST law from time to time imposes or levies GST on the Taxable Supply or relevant supply.
1.3. ‘Goods’ means mattresses, pillows, protectors, bed bases and associated products, services and goods.
1.4. ‘Tax’ means all forms of taxation, duties, imposts, fees, levies, withholding or deduction including income tax, fringe benefits tax, goods and services tax, withholding tax, capital gains tax, stamp duty or any other similar connection with any tax.
1.5. ‘Taxable Supply’ means any supply of Goods or services which is or becomes subject to GST.
1.6. ‘Terms and Conditions’ means these Terms and Conditions, as amended from time to time.
1.7. ‘Website’ means this website www.ergoflex.com.au.
1.8. ‘we/us’ means Ergoflex® Australia (ABN 85 141 058 380) and any subsidiaries, affiliates, employees, officers, agents or assigns.
1.9. ‘you/your’ means you as the purchaser of Goods from us pursuant to these Terms and Conditions.
2. OUR TERMS AND CONDITIONS
2.1. This Website is owned and operated by EAU Pty Limited trading as Ergoflex® Australia, of 7/2 Sabre Close, Anambah Business Park, Rutherford, NSW, 2320. ABN: 85 141 058 380.
2.2. By accessing and using this Website and the content and information offered on this Website, you are agreeing to these Terms and Conditions.
2.3. These Terms and Conditions apply to all transactions between us and you, relating to the sale and supply of the Goods, including all quotations, contracts and variations and unless otherwise agreed in writing, these Terms and Conditions shall apply to the exclusion of any other terms and conditions.
2.4. We reserve the right to amend these Terms and Conditions at any time and your use of the Website following any amendments will represent your agreement to be bound by these Terms and Conditions as amended. We recommend that each time you access our Website you read these Terms and Conditions.
2.5. If you are uncertain as to your rights under these Terms and Conditions or you want an explanation about them please contact our Customer Services Department on 1300 791 753 or by email to hello@ergoflex.com.au.
3. ACCURACY OF CONTENT
We have taken proper care and precautions to ensure that the information we provide on this Website is accurate. However, we cannot guarantee, nor do we accept any legal liability arising from or connected to, the accuracy, reliability, currency or completeness of anything contained on this Website or on any linked site. The information contained on this Website should not replace professional advice.
4. OUR GOODS
4.1. All product descriptions and content on our Website or otherwise issued by us are intended merely to present a general idea of our Goods. If you require any further details, please contact our Customer Services Department by telephone or by e-mail, providing details of the additional information needed.
4.2. Our Goods are manufactured to the highest standards in order to provide consistently excellent performance. However, the variable nature of memory foam and the layered composition of the product may result in a sizing tolerance of up to 2%.
4.3. You acknowledge and agree that from time to time, some Goods on the Website may be out of stock or unavailable and we may not be able to fulfil all or part of your order. If this occurs, we will contact you within five (5) Business Days to arrange a full or partial refund. We will use reasonable endeavours to process the refund within five (5) Business Days. Your receipt of your refund will depend on the period of time it takes your financial institution to finalise the refund. We are not liable with respect to any loss you or any third party might suffer as a result of any delay in processing your refund.
4.4. We reserve the right to withdraw or suspend any Goods displayed on the Website from sale either temporarily or permanently at any time without notice to you. We will not be liable to you for any loss you or any third party suffers as a result of a withdrawal or suspension of availability with respect to a particular Good.
4.5. Where your order is affected by an error on the Website (for example, in relation to a description of Goods, an image, price or otherwise), we will at your option either replace the Goods or accept their return and refund any money paid for the Goods. We will bear any necessary costs incurred in replacing or repairing Goods that are faulty or not as described.
4.6. You acknowledge and agree that:
(a) all pictures and images of Goods displayed on the Website are for illustration purposes only, and the sizes and dimensions of Goods may differ in real life;
(b) you have read any corresponding written description of the Goods prior to submitting your order;
(c) where we provide sizing or other measurements in the descriptions of the Goods (where applicable), it is your responsibility to ensure that the actual size of each item is suitable for your purpose prior to submitting your order; and
(d) any accessory featured with the Goods is for illustration purposes only.
5. PRICE AND PAYMENT
5.1. The price and availability of the Goods are identified on the relevant page of the Website detailing the Goods.
5.2. Prices are displayed in Australian Dollars, as indicated by the “AU$”. Where you access the Website from an Internet Protocol address located within Australia, prices displayed will include GST. Where you access the Website from an Internet Protocol address located outside Australia, all prices will be stated in Australian Dollars and are exclusive of all Tax which may be payable in relation to your order. You are liable to pay all such Tax.
5.3. The price of all Goods are exclusive of all delivery costs.
5.4. Delivery costs, where applicable, are itemised separately from the price for the Goods.
5.5. We reserve the right to change or alter prices of Goods on the Website without notice to you, unless you have already submitted an order at a stipulated price, in which case if Goods ordered are unavailable or we need to vary the price to take account of any substantial increase in our suppliers' prices, changes in taxes and duties, site errors or errors or omission in the price displayed on our Website or in any confirmatory correspondence, we shall notify you by email and allow you an opportunity to cancel your order without penalty.
5.6. In respect of any order, we will charge you and you agree to pay:
(a) the price for the Goods (which is the price at the time the order is submitted in Australian Dollars); and
(b) the delivery fee.
5.7. You acknowledge and agree that, unless a credit agreement is arranged with us, any payment in respect of an order must be cleared by us before Goods which are the subject of an order are dispatched. If your payment cannot be processed, your order will be rejected in accordance with these Terms and Conditions and you will be notified of this.
5.8. In paying or attempting to pay for the Goods, you agree that you have not engaged in any fraudulent conduct or contravened any law.
5.9. We use an encrypted payment gateway and security certificate to secure payments. Whilst we take all reasonable precautions, we cannot guarantee the security of any transaction.
6. ORDERS
Placement of orders
6.1. All orders placed by you for the provision of Goods must be submitted through the Website or by contacting us by telephone or email.
6.2. An order will only be deemed to be placed by you if the order:
(a) clearly identifies the Goods to be ordered;
(b) specifies the required date of delivery; and
(c) provides us with all the necessary information relating to the supply of the Goods within a sufficient time to enable us to perform our obligations in accordance with these Terms and Conditions.
6.3. You acknowledge that all orders through the Website with respect to the Goods are intended for personal and domestic use only and must not be used for re-sale purposes or commercial use.
6.4. You acknowledge that quantity restrictions may apply as set out on the Website from time to time.
Acceptance and rejection of orders
6.5. We endeavour to acknowledge all orders submitted to us by way of email.
6.6. No order submitted by you is accepted by us until we confirm its acceptance in writing.
6.7. We reserve the right to accept or reject your order for any reason at any time without limitation.
6.8. We may in our absolute discretion refuse to provide the Goods in the event that:
(a) the Goods are unavailable for any reason whatsoever;
(b) payment for Goods previously provided to you or any of your related parties or to any other party who is, in our reasonable opinion, associated with you under the same or another agreement, has not been received by us;
(c) due to legal and other restrictions applicable for orders placed for international delivery, some of our products may not be available for delivery to certain locations outside Australia. We retain the right to determine what can and cannot delivered to any particular location.
6.9. In the event that we reject an order we will notify you of that rejection and the reason for rejection via email within five (5) Business Days after the placement of the order. We will not be liable to you for your loss or that of any third party for the rejection of an order.
6.10. Where we reject an order and your payment for the Goods has already been processed, we will refund any money paid to us in respect of that order and make reasonable endeavours to process the refund within five (5) Business Days. Your receipt of your refund will depend on the period of time it takes your financial institution to finalise the refund. We are not liable with respect to any loss, damage, cost, expense or injury you or any third party incurs as a result of any delay in processing your refund.
7. GST
7.1. This clause applies if GST is imposed on any Goods supplied to you under these Terms and Conditions.
7.2. Unless expressly stated otherwise, all consideration to be provided under these Terms and Conditions is expressed as exclusive of GST.
7.3. You must pay GST on the Taxable Supply to us of an amount equal to the GST exclusive consideration multiplied by the GST Rate.
7.4. GST will be payable by you without any deduction or set off for any other amount at the same time as the GST exclusive consideration is payable. In all other respects, GST will be payable by the you to us upon the same basis as the GST exclusive consideration is payable by you under these Terms and Conditions.
7.5. We will issue an invoice or invoices to you for the amount of GST referrable to the Taxable Supply. We will include in any such invoice such particulars as are required in order that you may obtain an input tax credit for the amount of GST payable on the Taxable Supply.
7.6. If any part of the consideration is referrable to both a Taxable Supply and anything that is not Taxable Supply, the amount of GST payable by you will be determined by us and will be the same amount of GST that would be payable if the Taxable Supply were the only supply made to you.
7.7. If you make default in the payment on the due date of any amount payable under these Terms and Conditions, then without prejudice to any other remedies, you will pay us upon demand an amount equal to the amount of any damages or interest or additional GST that may become payable by us arising out of your default.
8. CANCELLATIONS, AND REFUNDS
General cancelation and refund policy
8.1. If you wish to cancel your order for the Goods, to the exclusion of any order for Goods which are custom made, made to specification or personalised (such as bed frames and other items of furniture), by notice in writing to us at any time without penalty, and you contact us prior to us dispatching the Goods, we will provide you with a refund.
8.2. If you do not cancel your order for the Goods in accordance with clause 8.1, you shall be deemed to have accepted the Goods and will not be able to return the Goods to us without penalty (except in the case of any manufacturing faults or in the case of mattresses arranged to be returned under the terms of the 30 Day Trial Period).
8.3. If you cancel your order for the Goods after the Goods have been dispatched and wish to obtain a refund:
(a) you must accept delivery of the Goods, keep the Goods in your possession, take good care of the Goods until such time that the Goods are returned to us at your cost or are collected by us;
(b) where you are returning the Goods to us you must ensure that the Goods remain wrapped in their original packaging and take all reasonable measures to ensure the Goods are not damaged in transit and pay all costs of return delivery to us;
(c) where we are collecting the Goods, you must make the Goods available and accessible for collection by us, in the original packaging and the original, unassembled condition in which you received them, from the premises that you have specified to us in your cancellation notice, on the date and time that we will confirm to you;
(d) where we are collecting the Goods and collection is futile on the date provided and agreed, and is no fault of our own or our courier, a futile collection fee of $100 (Futile Collection Fee) will be deducted from your refund.
8.4. If you have entered into a related credit or buy now pay later agreement to pay for the Goods, then your notice to cancel our agreement under clause 8.1 will also cancel the related credit agreement. A full refund will be issued to the credit or buy now pay later company less any contract or commission fees charged to us.
8.5. Where Goods which are returned to us by you have been damaged by you (and the damage is not the result of our or our courier's actions or negligence) then you must pay what we consider to be a reasonable amount for the damage. That amount will not exceed the price for the Goods.
8.6. In scenarios where an incorrect sized mattress has been purchased and:
(a) has not been removed from its box-packaging the mattress can be exchanged. A delivery fee for the new mattress, a return delivery fee for the existing mattress along with a re-boxing fee ($20) will apply. This is not covered by the 30 Day Trial Offer.
(b) has been removed from its box-packaging and/or does not fit a bed frame and is not the fault of Ergoflex and our mattress sizes then returning/exchanging the mattress is at the discretion of Ergoflex. If an exchange/return is agreed a delivery fee for the new mattress, a return delivery fee for the existing full-size mattress will be applicable. The one return per household will then apply in accordance with the terms of the 30 Day Trial Period.
8.7. In scenarios where an incorrect sized mattress protector or sheets have been purchased, clause 8.3 will apply. However it does not apply to custom made furniture - see clause 8.9.
8.8. If you cancel your order for the Goods in accordance with clause 8.3 we shall refund all sums that you have paid, less:
(a) the direct costs of our delivery if delivery has been made (except in the case of any manufacturing faults or in the case of mattresses arranged to be returned under the terms of the 30 Day Trial Period);
(b) return delivery fees if we have collected the Goods, a re-boxing/re-packaging fee of $20 for all mattresses, $15 for each pillow box;
(c) the Futile Collection Fee (if applicable);
(d) reasonable costs for any damage to the Goods (if applicable);
(e) contract or commission fees charged to us by credit or buy now pay later agreements (if applicable).
8.9. Once an order is made and accepted by us for Goods which are custom made, made to specification or personalised, you are not able to cancel an order for those Goods at any time.
8.10. If you purchase Goods as part of a bundle and return some of the items of the bundle, then the bundle pricing is no longer valid. For example, you cannot purchase a bundle consisting of a mattress, sheets and pillows, return the sheets and pillows, and expect the mattress price to remain at the bundle price offered. The mattress price (and/or any accessories kept) will revert to the general sale price on offer on the day of purchase and this amount will be taken into consideration when making the refund for items returned. This clause will apply to any mattresses returned under the 30 Day Trial Offer.
9. DELIVERY
9.1. The applicable delivery charges for the Goods, will be calculated depending upon your delivery address and postcode and confirmed to you in our acceptance of your order before dispatch and processing of your order.
9.2. Unless otherwise agreed in writing by you and us, the delivery of the Goods will take place at the address you have specified in your order.
9.3. If the Goods are to be delivered to an address other than the registered cardholder's address, proof of address may be required.
9.4. When placing your order you must provide us with all necessary information to enable us to deliver the Goods to you.
9.5. Any delivery time frames provided by us to you are indicative only.
9.6. You acknowledge and agree that notwithstanding anything else stated on the Website:
(a) we cannot guarantee that delivery will occur in the stated delivery time frames;
(b) delivery time frames may change from time to time due to unforeseen circumstances;
(c) except where required by applicable law, we are not liable with respect to any loss, damage, cost, expense or injury you or any third party suffers as a result of a change in delivery times or a delay in delivery and;
(d) delivery fees are non refundable.
9.7. Provided that we deliver the Goods to the address you have specified in your order (or any other address agreed by us in writing) then the Goods will be deemed to have been delivered and we will not be liable to you for non-delivery of the Goods. We do not have to satisfy ourselves that the person who accepts delivery at the given address is you (or authorised by you to accept delivery of the Goods). If the details provided are incorrect and delivery changed when in transit or is futile then you will be subject to any redeliver or redirection costs.
9.8. Where you are unable to accept delivery on the delivery date notified to you, you must contact us at least 2 Business Days in advance to enable us to agree on an alternative date. If you fail to do so, we may charge you for the reasonable costs of storage and any delivery costs incurred by us.
9.9. Goods are delivered by a third party contracted to undertake delivery on our behalf to you and are delivered only to your doorstep. If you request that the Goods be taken upstairs or otherwise into a particular room and any damage to fixtures, fittings or the structure of the house occurs, we cannot be held responsible for the acts, omissions or negligence of such third party performing the delivery, its employees or subcontractors and for any such damage should it occur.
9.10. Upon delivery, you must inspect your Goods and check that the Goods delivered match your order. If there is obvious damage to the Goods, you must contact us immediately or within fourteen (14) days of the date the Goods are delivered to you. If the goods are found to be defective as a result of the delivery service or a manufacturing defect they will be replaced and the defective goods removed.
10. RISK AND TITLE
10.1. The Goods shall be at your risk from the time of delivery at the address for delivery as specified by you in your order and if you wrongfully fail to take delivery of the Goods, then risk of the Goods shall pass to you at the time when we tendered delivery of the Goods.
10.2. Title to the Goods shall pass to you only after we have received in full (in cash or cleared funds) all sums due to us in respect of the Goods.
10.3. If the Goods come into your possession prior to us receiving payment for the Goods, then title to the Goods shall remain with us.
10.4. Until ownership of the Goods are passed to you, you must:
(a) hold the Goods as our bailee;
(b) store and hold the Goods (at no cost to us) separately from all of your other property or those of any third party in such a way that the Goods remain readily identifiable as our property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) not use, alter or resell the Goods; and
(e) maintain the Goods in a satisfactory condition in their original packaging and take reasonable care of them.
10.5. You grant us and our agents and employees an irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect them or, where your right to possession has terminated, to recover them and to use reasonable force in doing so.
11. WARRANTIES
11.1. In this clause:
(a) ‘defects in materials’ means any deterioration of the main memory foam layers, with an indentation of more than one inch (1"), not associated with a sag in the foundation, box spring, platform or cool sleep airflow layer;
(b) ‘Product Registration’ means Goods which are registered with us by way of the guarantee registration form on our Website.
11.2. We warrant that the Goods will correspond with their specification at the time of delivery and will be free from defects in material, quality, workmanship and condition for a period of twelve (12) months from delivery. This warranty is provided only to you as the purchaser of the Goods from us and is not transferrable.
11.3. Subject to the conditions set out below and Product Registration of the Goods with us within 30 days of receipt of the Goods by you, we will further warrant the Goods (to the exclusion of covers on the mattress inner and outer covers, pillows, sheets, mattress protectors and furniture, such as bed frames) against defects in materials, quality, workmanship and condition for a total period of ten (10) years from delivery. This extended warranty is provided only to you as purchaser of the Goods from us and in accordance with the Product Registration and is not transferrable.
11.4. All mattress inner and outer covers, pillows, sheets and mattress protectors, are warranted for a maximum of two (2) years against defects in material or workmanship, subject to the conditions set out below. This extended warranty is provided only to you as purchaser of the Goods from us and in accordance with the Product Registration and is not transferrable.
11.5. Furniture, such as bed frames are warranted for a maximum of five (5) years against defects in material or workmanship, subject to the conditions set out below. This extended warranty is provided only to you as purchaser of the Goods from us and in accordance with the Product Registration and is not transferrable.
11.6. The warranties under clauses 11.2, 11.3, 11.4 and 11.5 only apply:
(a) to Goods supplied by us within Australia only. Nothing in these warranties affects any of your statutory rights for any alleged failure of a guarantee under the Australian Consumer Law;
(b) where you give us written notice of the defect within a reasonable time of you discovering the defect; and
(c) if we are given reasonable opportunity after receiving your notice of defect to examine the Goods in question and, if asked by us to do so, you return the Goods to us at our cost for the examination to take place.
11.7. If the Goods are not found to be defective according to our reasonable opinion, you shall be responsible for the direct cost of the customer service visit (approximately $100 fee) and/or the delivery of the Goods to us and back to you, as applicable.
11.8. Subject to clause 11.10, if we are in breach of our warranties in clauses 11.2, 11.3, 11.4 and 11.5 then, within 30 days of us examining the defective Goods, we shall (at our option):
(a) repair or replace such Goods (or the defective part) free of charge or at a discounted rate (not including freight) depending upon the issue in question in such circumstances we warrant that the replacement Goods will correspond with their description and will be free from defects in material, quality and workmanship at the time of delivery, but do not provide any additional express warranties for such replacement Goods; or
(b) refund the price of such Goods (or a proportionate part of the price pro rata from date of purchase and based on the price paid for the Goods at the time and warranty remaining, up to a maximum of 5 years) provided that you deliver up the Goods for collection (or, if we so request and at our expense you return the Goods of the part of such goods which is defective to us).
11.9. The warranties in clauses 11.2, 11.3, 11.4 and 11.5 do not apply:
(a) to any normal increase in softness in the mattress foam, which can occur during normal breaking in, or in lessening of the gradual recovery aspect of the foam. This is not a defect in materials or workmanship and does not reduce the continual pressure reducing and pressure relief properties of the Goods;
(b) to the use of the Goods by you on the floor, improper foundations, platforms or other bases, which may result in damage to the Goods;
(c) in circumstances where you have not used the Goods for their intended purpose;
(d) where the Goods have been subjected to conditions likely to cause damage or deterioration beyond normal wear;
(e) if you fail to rotate the mattress every month for the first 6 months of ownership and every three months thereafter;
(f) where the Goods have not been continuously supported by a proper foundation sufficient to support the combined distributed weight of the person or couple intending to use the Goods;
(g) where the Goods have been used for commercial purposes;
(h) where the Goods have been purchased by landlords offering furnished rentals, by any parties with an affiliation to the hospitality industry, or any party with associations to any company in the mattress and/or bedding industry including but not limited to hotels, hostels, AirBnBs, guesthouses;
(i) in circumstances where indentation or sag of the mattress is greater than 1 inch (2.5cms) at any point, is not caused by any manufacturing defect, and is visible in the foam material or below the cover level when no weight is applied to the top of the mattress;
(j) the defect arises as a result of wilful damage, negligence, misuse, abnormal conditions or use or your failure to follow our oral or written instructions as to the storage or use of the Goods;
(k) if the Goods have been damaged (intentionally or due to accident or neglect), including burns, cuts, water damage, smoke damage, bodily fluid contamination, stains or is otherwise abnormally soiled or unsanitary;
(l) if the tag, which identifies the Goods regarding the warranty and the original invoice, has been removed or erased from the Goods, as this is your proof of purchase;
(m) if you make any further use of such Goods after giving notice of the defect to us; or
(n) if you alter or repair such Goods without our prior written consent.
11.10. We make no warranty or representation that:
(a) our Goods will meet your particular requirements or comfort preferences;
(b) our Goods are a suitable remedy for any specific medical condition;
(c) our Goods will satisfy individual comfort preferences, sheet fit or height issues resulting from your bed frame size or headboard style;
(d) our Goods will be odour free, as a slight smell is usual when the Goods are first unpacked;
(e) any particular results may be obtained from the use of our Goods.
11.11. We shall not be obliged to fulfil our warranties in clauses 11.2, 11.3, 11.4 and 11.5 unless:
(a) you give us written notice of the defect within a reasonable time of you discovering the defect; and
(b) we are given a reasonable opportunity after receiving your notice of defect to examine the Goods in question and, if asked by us to do so, you return the Goods to us at our cost for the examination to take place. If the Goods are not found to be defective according to our reasonable opinion, you shall be responsible for the direct cost of the customer service visit (approximately $100 fee) and/or the delivery of the Goods to us and back to you, as applicable.
12. LIMITATION OF LIABILITY
12.1. We take no responsibility for the accuracy of any of the content or statements contained on this Website or in relation to our Goods. Statements made are by way of general comment only and you should satisfy yourself as to their accuracy. We are not liable for any loss or damage whatsoever incurred as a result of or relating to the use of the Website or our Goods.
11.2. This Website or any part of it may not be compatible with your browser or computer configuration and we make no representation or warranty that it is. We make no representation or warranty that your access to our Website will be uninterrupted, timely or error free and we will not be responsible if we are unable to provide the Website for whatever reason.
12.3. The Australian Consumer Law may give you certain guarantees. Where liability for breach of any such guarantee can be limited, our liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods.
13. INDEMNITY
To the maximum extent permitted by law, you indemnify us, hold us harmless, and release us from any and all claims, loss, damages, penalties, costs, suits, demands, liabilities and expenses howsoever arising (and whether direct or indirect) suffered by you or any third party arising from or in connection with:
(a) your use of our Website including without limitation the content and for any inaccessibility, interruption or outage of our Website or any corruption of data or if the content is incorrect, incomplete or out of date.
(b) your failure to comply with any laws, rules, standards, regulations or instructions applicable in relation to the Goods or the use of the Goods; and
(c) any negligence or breach of duty by you in relation to the Goods or the use of the Goods.
14. CUSTOMERS FORCE MAJEURE AND ADDITIONAL LIMITS OF LIABILITY
14.1. We shall not be liable to you or be deemed to be in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform any of our obligations under these Terms and Conditions, if the delay or failure was due to any cause beyond our reasonable control including, without limitation:
(a) acts of God, fire, explosion, epidemic, pandemic or flood;
(b) war or national emergency;
(c) riot, civil commotion, lock-outs, strikes or other labour disputes;
(d) restraint or delays affecting carriers or inability or delay in obtaining supplies of adequate suitable materials;
(e) import or export regulations or embargoes (including the failure of our suppliers to obtain any necessary export permits, licenses or other authorisations);
(f) acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority.
14.2. Provided that, if any event referred to in clause 14.1 continues for a period in excess of 30 days, you shall be entitled to give us notice in writing to terminate the agreement.
14.3. All warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
14.4. Nothing in these Terms and Conditions excludes or limits our liability for death or personal injury caused by our gross negligence or for fraudulent misrepresentation.
14.5. Subject to clauses 14.3 and 14.4:
(a) our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation restitution or otherwise, arising in connection with the performance or contemplated performance of this contract shall be limited to price payable by you; and
(b) we shall not be liable to you for any indirect or consequential loss or damage (including loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses and other claims or consequential compensation whatsoever (howsoever caused) which arise out of or in connection with these Terms and Conditions, or our non-performance or delayed performance thereof.
15. COMPLAINTS
15.1. If you have a complaint about the Goods or our service, please contact us via one of the following methods outlining your complaint and requested action:
(a) in writing to Ergoflex Australia, 7/2 Sabre Close, Rutherford, NSW 2320; or
(b) by email addressed to hello@ergoflex.com.au; or
(c) by telephone on 1300 791 753.
15.2. We will endeavour to respond to all complaints in a timely manner.
16. DISPUTE RESOLUTION
16.1. In the event of a dispute arising between you and us (‘the parties’) in connection with the purchase of our Goods, the parties agree to use their best endeavours to try and resolve the dispute amicably through negotiations, discussion and other communication in good faith.
16.2. If the dispute cannot be resolved by agreement within 21 days of the dispute arising or within such longer period as the parties agree, the parties will appoint, by agreement a mediator to assist in the resolution of the dispute and in the absence of an agreement a mediator will be appointed by the president of the Law Society of NSW.
16.3. The parties agree to co-operate with the mediator in all procedural steps necessary to constitute the mediation and to participate in a bonafide discussions with the assistance of the mediator in seeking to agree on a resolution of the dispute.
17. INTELLECTUAL PROPERTY
Any text, graphics, images, video, artwork, metadata and other data, design, organisation, compilation, advertising and all other protectable Intellectual Property displayed on our website have been reproduced by us with the permission of the copyright owner. You may not copy, reproduce, republish, upload, post, transmit or distribute any of our Intellectual Property in any way without our express written permission. Infringement of any of our Intellectual Property will result in appropriate legal action.
18. ACCESS OUTSIDE OF AUSTRALIA
18.1. Our Website may be accessed throughout Australia and overseas.
18.2. If you access our Website from outside Australia, you do so at your own risk and are responsible for complying with the laws of the jurisdiction from which you access the Website.
18.3. You consent to receiving communications from us electronically and all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
19. NOTICES
19.1. A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on the order (or as varied pursuant to this paragraph) and delivered personally, sent by prepaid mail to the address of the addressee specified in the relevant order, sent by email to the email address of the addressee specified in the relevant order with acknowledgement of delivery.
19.2. For the purpose of these Terms and Conditions notices can be sent to us:
(a) by post to: Ergo Flex Australia, 7/2 Sabre Close, Rutherford, NSW, 2320;
(b) by electronic mail to: hello@ergoflex.com.au; or
(c) to any other address that we may notify to you in writing.
20. PRIVACY AND INFORMATION COLLECTION
20.1. Use of information you have provided to us or that which we have collected and retained relating to your use of the Website and/or Goods is governed by our Privacy Policy.
20.2. By using this Website and the Goods and services associated with this Website, you are agreeing to the Privacy Policy.
20.3. To view our Privacy Policy and read more about why we collect personal information from you and how we use that information, please refer to our Privacy Policy on this Website.
21. CONFIDENTIALITY
21.1. All personal information you provide to us will be dealt with in a confidential manner in accordance with our Privacy Policy. We will use our best endeavours to keep such personal information securely protected.
21.2. We agree not to disclose, disseminate or use your personal information in any way other than stated in our Privacy Policy.
21.3. Due to circumstances outside of our control, we cannot guarantee that all aspects of your use of this Website will be confidential due to the potential ability of third parties to intercept and access such information.
22. LINKS TO EXTERNAL WEBSITES
22.1. This Website may contain links that direct you outside of this Website. These links are provided for your convenience and are not an express or implied indication that we endorse or approve of the linked website, its contents or any associated website, product or service. We accept no liability for loss or damage arising out of or in connection with your use of these websites.
22.2. You should not provide a link which suggests any association, approval or endorsement on our part in respect to your website, unless we have expressly agreed in writing.
22.3. We may withdraw our consent to you linking our Website at any time by notice to you.
23. ENTIRE AGREEMENT
To the extent permitted by law in relation to the subject matter of these Terms and Conditions, these Terms and Conditions and any order made pursuant to these Terms and Conditions embodies the entire understanding of the parties and constitutes the entire terms agreed on between the parties and supersedes any prior written or other agreement, representation, negotiation, arrangement, understanding and all other communications between the parties.
24. WAIVER
Failure to exercise or enforce or a delay in exercising or partially enforcing or exercising any right, power or remedy provided under the law or these Terms and Conditions by any party will not in any way preclude or operate as a waiver of any exercise or enforcement or further exercise or enforcement of that or any other right, power or remedy provided by law or under these Terms and Conditions.
25. GOVERNING LAW
25.1. These Terms and Conditions are governed by and construed in accordance with the laws of New South Wales, Australia. Any disputes concerning this Website are to be resolved by the courts having jurisdiction in New South Wales, Australia.
25.2. You irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and waive, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.
25.3. We retain the right to bring proceedings against you for breach of these Terms and Conditions of use, in your country of residence or any other appropriate country or jurisdiction.
12 MONTHS OR 24 MONTHS INTEREST FREE
For full terms and conditions see:
1. Afterpay’s Terms of Service https://www.afterpay.com/en-AU/terms-of-service; and
2. Zip’s terms and conditions: https://zip.co/files/au/zip-pay-terms-and-conditions.pdf
30 DAY TRIAL MATTRESS OFFER
We know that purchasing a mattress is a very important decision. That is why we offer a 30 day trial with a free return option in most Australian metro areas for the purchase of any Australian sized mattress in the Ergoflex mattress range (30 Day Trial Offer). The 30 Day Trial Offer is offered in accordance with the following conditions, which may be amended from time to time:
General Terms
1. The 30 Day Trial Offer is limited to one mattress return per household.
2. The 30 Day Trial Offer commences on the day your mattress is delivered to you and ends 30 days later (30 Day Trial Period).
3. The 30 Day Trial Offer is not offered to, and does not apply to any business or commercial entity, including but not limited to landlords, any parties with an affiliation to the hospitality industry, or any party with associations to any company in the mattress and/or bedding industry.
4. During the 30 Day Trial Period, we ask you to trial your mattress. If within the 30 Day Trial Period you are not entirely satisfied with your mattress, you can contact us to arrange a return. You can contact us by telephone 1300 791 753 or via email hello@ergoflex.com.au.
5. If you purchase a mattress as part of a bundle and return some of the items of the bundle, then the bundle pricing is no longer valid. For example, you cannot purchase a bundle consisting of a mattress, sheets and pillows, return the sheets and pillows, and expect the mattress price to remain at the bundle price offered. The mattress price (and/or any accessories kept) will revert to the general sale price on offer on the day of purchase and this amount will be taken into consideration when making the refund for items returned. This clause will apply to any mattresses returned under the 30 Day Trial Offer.
6. Only mattresses can be returned free of charge under the 30 Day Trial Offer. Any accessories purchased or complementary items (i.e. pillows) included as part of a promotion must be returned at your expense. If the complementary items are not returned, you may be charged the listed RRP which will be deducted from any overall refund.
7. We do not offer a trial or return period for UK sized mattresses or UK sized mattress protectors.
When and how to return your mattress
8. In order to return your mattress, you need to notify us WITHIN the 30 Day Trial Period. We will then provide you with instructions to arrange the return AFTER the 30 day Trial Period has ended. This ensures you are able to trial the mattress for the full 30 Day Trial Period.
9. If you wish to return your mattress before the 30 Day Trial Period has ended you may do so at your own expense. Alternatively, we can undertake this for you however you will be charged for the cost of returning your mattress including the cost to send a protective bag to you.
10. Returned mattresses must be in their original condition, and photographic evidence will be required before a collection can be processed.
11. The return service is subject to the customer reasonably repackaging the full-sized mattress (in packaging that we’ll supply when you begin the return process), and assisting the courier collecting the item.
12. We are not able to offer the free return service to any customers outside a 50km radius of Brisbane, Melbourne, Perth and Sydney and a 30km radius of Adelaide, Canberra, Darwin, Newcastle and Hobart. This also includes regional NSW (except the Central Coast), regional VIC, regional SA, regional WA, the NT, regional QLD, regional TAS, outlying islands, Pacific Islands, New Zealand, USA, Asia or Dubai.
13. Any mattress that is returned in a damaged or soiled state will not be processed and will be returned to you. The cost to return the mattress and cost to send the mattress back to you will be charged to you. We also reserve the right to charge you for any re-delivery fees from your initial delivery, cleaning fees and/or a new mattress cover. New covers are priced at: Single, Long Single, King Single: $120. Double, Queen and King: $150. Cleaning fees are charged at $50 per cover.
14. We consider mattresses to have been damaged where it is evident to us that the mattress:
a. has been used on the floor or on improper foundations, platforms or other bases;
b. has not been used for its intended purpose;
c. has been subjected to conditions likely to cause damage or deterioration beyond normal wear;
d. has not been continuously supported by a proper foundation sufficient to support the combined distributed weight of the person or couple intending to use the mattress; or
e. has an indentation or sag greater than 1 inch (2.5cms) at any point, which was not caused by any manufacturing defect, and is visible in the foam material or below the cover level when no weight is applied to the top of the mattress; or
f. is visibly damaged in any other way.
Refund process
15. Upon receipt, all returned mattresses are inspected and signed off. A full refund is then issued within 48 hours for the cost of the mattress. This is refunded back via the payment method initially used to pay for the mattress. We do not refund the initial cost to deliver the Goods to you.
16. Any additional comfort layers which have been purchased or contributed to (if applicable) will also be deducted from the refund.
Ergoflex® Privacy Policy
This Website is owned and operated by Ergoflex®, trading name of EAU Pty Ltd. 7/2 Sabre Close, Anambah Business Park, Rutherford, NSW, 2320. ABN: 85 141 058 380.
Your privacy is very important to us and we are committed to protecting your privacy. We appreciate that your personal information is both important and private and we want to share with you how we take care of, and use, your personal information.
This Privacy Policy sets out how we will collect, use, store, process and share your personal information we collect through this Website. This Privacy Policy outlines what our commitment is, why we collect personal information, in what circumstances Personal Information may be shared and how you may request access to and correction of your stored personal information.
This Privacy Policy may change from time to time and if it does, the up-to-date version will always be available on the Website. This Privacy Policy is in addition to any other terms and conditions applicable to the Website.
WHAT WE COLLECT
The type of personal information we collect is dependent on the type of service or interaction you wish to receive. Personal information we collect includes, but is not limited to your:
• name;
• address;
• email address;
• credit and financial details;
• contact details.
Personal information about visitors to our Website is collected only when knowingly and voluntarily submitted.
Sometimes we will also collect other personal information, such as what your interests are, so that we can improve our service and product offering to you. You may decide not to provide your personal information to us.
We may also collect non-personally identifiable information that cannot be used to identify or contact you. Such information may include IP addresses, browser types, domain names and other anonymous statistical data.
HOW WE COLLECT IT
The personal information we collect is generally supplied directly by you through our website. For example, the details you provide us when you make an order, subscribe to our emails, join a mailing list, submit an enquiry, or provide feedback to us.
There are also certain situations in which we may collect personal information about you from someone else. For example we may collect information from third parties including public sources, our related companies, your organisation, your representatives and information service providers.
We also receive and store certain types of information through the use of 'Cookies', when you interact with our website via the Internet. Most Internet browsers are pre-set to accept cookies. If you prefer not to receive cookies, you can adjust your internet browser to disable or to warn you when cookies are used. We recommend that you leave your cookies enabled as they allow our systems to recognise your browser and provide quicker and easier use of our website (see our Cookies Policy).
These Terms and Conditions & Privacy Policy were last updated on 30 June 2023
