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TERMS AND CONDITIONS OF SALE
1 OUR TERMS AND CONDITIONS
1.1 This website is owned and operated by Ergo Flex™ Australia (ABN 85 141 058 380) whose registered office is at EAU Pty Ltd, Unit 7/2 Sabre Close, Anambah Business Park, Rutherford, NSW 2320.
1.2 Please read these terms and conditions carefully as they apply to your access and use of our website and the sale and supply of goods by us to you. They include important sales and products information relating to our goods and form the basis of any agreement between us should you wish to proceed with an order.
1.4 To protect your own interests, please read these terms and conditions carefully and make sure you understand them before proceeding with an order. If you are uncertain as to your rights under them or you want an explanation about them please contact our customer services department on [1300 169 273] or by email to [email@example.com]. Once you have read them and if you wish to proceed with a purchase, click the ["checkout"] button and you will be able to proceed with any order you wish to make. If you do not agree with these terms and conditions, you are not authorised to use this website.
2 BASIS OF AGREEMENT
2.1 Unless otherwise agreed in writing, these conditions shall apply to the exclusion of any other terms and conditions.
2.2 We will treat each order that you place as an offer by you to purchase the goods from us in accordance with these conditions.
2.3 We will acknowledge receipt of your order without undue delay by e-mail. Please note that our acknowledgement of receipt of your order is not our acceptance of your order which we will send separately.
2.4 No order submitted by you is accepted by us until we confirm its acceptance in writing. No contract shall exist between you and us until we confirm our acceptance of your order in this way.
2.5 If, for any reason, we do not accept your order we will advise you as soon as practicable and there will be no binding contract between us.
2.6 You must ensure that:
2.6.1 the details you provide in the order are complete and accurate; and
2.6.2 you provide us with all the necessary information relating to the supply of the goods within a sufficient time to enable us to perform the contract in accordance with these conditions.
3 DESCRIPTION OF GOODS
3.1 All product descriptions and content on our website or otherwise issued by us are intended merely to present a general idea of our goods and services. 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.
3.2 If you buy goods which are not as described 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.
3.3 Any minor typographical, clerical or other error made on our website, in our acceptance of your order, on our invoice to you, in our price list or any brochures or any documentation issued by us shall be subject to correction without any liability on our part. Any typographical, clerical or other error made, which affects the price that you will pay or affects the description of the goods (other than very minor changes), shall be notified to you by e-mail and we will allow you an opportunity to cancel your order.
3.4 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 YOUR RIGHT TO CANCEL THE CONTRACT AND/OR RETURN YOUR GOODS
4.1 You may cancel our contract for the purchase of the goods (mattreses, pillows, protectors) at any time prior to dispatch of your goods, without penalty and without giving any reason by notice in writing to us at our address, or by email, or by telephone in accordance with condition 15 (below) within the time limits below. Save as set out in condition 9 (in the case of any manufacturing faults). Save for bed base orders which are custom made and cannot be cancelled once ordered and in production.
4.2 You may exercise this right to cancel during the cancellation period, which starts on the day on which we issue our acceptance of your order to you (or, if earlier, we deliver the goods to you) and ends 7 (seven) days from the day the goods are delivered to you, by giving us written notice.
4.3 If you do not cancel our contract in accordance with condition 4.1, you shall be deemed to have accepted the goods (except in the case of any manufacturing faults) and will not be able to return the goods to us after that time.
4.4 If you cancel the contract whilst the goods are in transit and before they are delivered you will be liable for the cost of delivery to you and the cost of delivery back to our location in NSW. There will also be a re-boxing/ re-packaging fee of $20. This amount will be deducted from your refund.
4.5 If you cancel our contract after the goods have been delivered and have been unopened then:
4.5.1 you must keep the goods in your possession and take good care of them until such time as we collect them from you or you return them to us at your cost. Save for pillows and protectors which must be returned at the buyer's expense.
4.5.2 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. If collection is futile on the date provided and agreed, and is no fault of our own or our courier, a second collection of fee of $100 will be deducted from your refund.
4.5.3 we shall refund all sums that you have paid, less the direct costs of our delivery and collection, and reboxing without delay after the goods have been returned;
4.5.4 if you have entered into a related credit agreement to pay for the goods, then your notice to cancel our contract under condition 4.1 will also cancel the related credit agreement.
4.6 If you decide to deliver the goods back to us then you must:
4.6.1 take good care to ensure that the goods remain wrapped in their original packaging and so are not damaged in transit; and
4.6.2 pay all costs of delivery to you.
4.7 If you return the goods to us and they have been damaged by you in the return transit (and the damage is not the result of our 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. We will issue you with photographic evidence along with an invoice for the damage and you must pay that invoice on the date specified in the invoice (or if no date is specified, then 21 days from the date of the invoice). Or we shall be entitled to deduct the reasonable cost of any such damage out of the money that we are required to reimburse to you under condition 4.5.3.
4.8 You have no right to cancel once an order has been accepted and payment taken for goods made to your specification, for example to a special size or otherwise personalised for you or for bed bases.
4.9 You have the right to return your mattress. You must trial your mattress for a minimum of 30 days before we are able to begin the returns process. The 30-day trial period begins on the day your mattress is delivered. We ask you to contact us at anytime during the 30-day trial. Your mattress does not have to be returned to us by day 30, you just need to instigate communication with us within this time.
4.10. Return exclusions:
4.10.1 The 30-day home trial and free return service is limited to one return per household. It is applicable to Australian sized mattresses only.
4.10.2 Returned mattresses must be in their original condition, and photographic evidence will be required before a collection can be processed. Any mattress that is returned in a noticeably damaged or soiled state will not be processed and will be returned to you. The cost to return and cost to send the mattress back to you will be deducted from your refund.
4.10.3 Unfortunately we’re not able to offer the 30-day trial outside of metro areas and to regional NSW, regional VIC, regional SA, regional WA, the NT, regional QLD and all locations above Noosa QLD, regional TAS, outlying islands, Pacific Islands, New Zealand, Asia or Dubai. For returns from these areas, please contact us for details.
4.10.4 The free 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.
4.10.5 The 30-day home trial and free returns service is not available to any business or commercial entity, including but not limited to the hospitality industry, landlords or any party with associations to any company in the mattress and/or bedding industry. We also reserve the right to decline the service should we reasonably suspect that the offer is being abused.
4.10.6 The 30-day home trial and free return service is limited to the Ergoflex™ mattress range, and does not include bed bases, pillows or mattress protectors. The returns period for pillows and protectors is 14 days, however we cannot accept protector returns once the protector has been opened, for hygiene reasons. The cost to return pillows or a protector is the responsibility of the buyer.
4.10.7 Where additional comfort layers have been purchased or contributed to, the amount will be deducted from each refund.
4.10.8 In scenarios where an incorrect sized mattress has been purchased and has not been removed from its box-packaging the mattress can be exchanged. In this instance a delivery fee for the new mattress, a return delivery fee for the existing mattress along with a reboxing fee ($20) will apply. This is not covered by the home-trial offer. In scenarios where an incorrect sized mattress has been purchased, 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 the cost to deliver the new mattress and/or a cost to return the existing full-size mattress will be applicable. The one return per household will then apply.
4.10.9 You must trial your mattress for a minimum of 30 days before we are able to begin the returns process. If you wish to return your mattress before the 30-day trial has elapsed you are welcome to do so at your own expense or we can undertake this for you however you will be charged for the cost to return your mattress - including cost to send a protective bag to you and cost to return your mattress.
4.10.10 Where we are collecting the goods, you must make the goods available and accessible for collection by us, from the premises that you have specified to us in your return notice, on the date and time that we will confirm to you. This is usually within 24hrs of receipt of the collection packaging. If collection is futile on the date provided and agreed, and is no fault of our own or our courier, a second collection of fee of $100 will be deducted from your refund.
4.10.11 If you return the goods to us and they have been damaged by you in the return transit (and the damage is not the result of our 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. We will issue you with photographic evidence along with an invoice for the damage and you must pay that invoice on the date specified in the invoice (or if no date is specified, then 21 days from the date of the invoice). Or we shall be entitled to deduct the reasonable cost of any such damage out of the money that we are required to reimburse to you under condition 4.5.3. For example if the mattress is not packaged securely in the packaging that we supply you and the mattress cover is soiled during transit then a dry cleaning charge of $49 will be deducted from your refund for the cleaning of the cover.
5.1 The price and availability of the goods are identified on the relevant page detailing the goods. This price includes all applicable taxes.
5.2 Delivery costs where applicable are itemised separately from the price for the goods, which is exclusive of all delivery costs. We will confirm to you the applicable delivery costs when we accept your order and these costs will vary according to the delivery method you choose. If you do not accept the delivery costs you will have an opportunity not to proceed any further with your order.
5.3 If goods 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 e-mail and allow you an opportunity to cancel your order.
6.1 You will be required to pay the price for the goods prior to the delivery of the goods. If we do not receive payment on the due date then we may delay delivery of the goods until such payment is received by us.
6.2 No payment shall be deemed to have been received until we have received cleared funds. If you intend to pay for the goods using credit or debit card, then we shall clear your payment immediately before we dispatch the goods to you.
7.1 All delivery charges where applicable and displayed on our website are guidelines. Final delivery charges will be confirmed to you in our acceptance of your order before dispatch and process of your order. For bedsif the delivery address is outside of a metropolitan area you may be required to pay additional freight fees due to the size and weight of the product. We will confirm any delivery costs when we contact you to accept your order. If you don't accept any additional delivery fees, you may choose to cancel your order. In this instance, we will arrange to refund your payment.
7.2 Unless otherwise agreed in writing by you and us, the delivery of the goods will take place:
7.2.1 at the address you have specified in your order (if the goods are to be delivered to an address other than the registered cardholder's address, proof of address may be required); and
7.2.2 within 30 days after the day on which we accept your order in writing.
7.3 You must ensure that when placing your order you provide us with all necessary information to enable us to deliver the goods to you.
7.4 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).
7.5 If the goods you have ordered are not available or discontinued or we are otherwise unable to deliver them to you within the 30 days referred to in condition 7.2 (or any other time limit agreed between us) we shall:-
7.5.1 inform you of this as soon as practicable;
7.5.2 be entitled to cancel our contract and refund to you any sum paid by you (or which has been paid on your behalf) under the contract, to the person by whom payment was made, no later than 30 days after the due date for delivery of the goods under the contract.
7.6 Subject to condition 7.2.2, any dates and times quoted for delivery of the goods are approximate only. The goods may be delivered to you in advance of any quoted date upon giving you reasonable written notice.
7.7 Where you are unable to accept delivery on the delivery date notified to you, you must contact us 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 wasted delivery costs incurred by us.
7.8 In the event that delivery takes place before you have paid for the goods in full, the goods will only be owned by you once we have received payment in full.
7.9 As soon as we have delivered the goods to you, you will be responsible for them.
7.10 Goods are delivered by a third party contracted to undertake delivery on our behalf to you and are delivered only to inside your doorstep. If you request that the mattress is 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, it's employees or sub-contractors and for any such damage should it occur.
8 RISK AND TITLE
This condition shall apply to any goods sold to you where you are not an individual consumer buying the goods for your own personal use.
8.1 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.
8.2 Despite delivery and the passing of risk, ownership in the goods shall not pass to you until we have received in full (in cash or cleared funds) all sums due to us in respect of:
8.2.1 the goods; and
8.2.2 all other sums which are or which become due to us from you on any account.
8.3 Time for payment shall be of the essence.
8.4 Until ownership of the goods are passed to you, you must:
8.4.1 hold the goods on a fiduciary basis as our bailee;
8.4.2 store and hold the goods (at no cost to us) separately from all of your other goods or those of any third party in such a way that the goods remain readily identifiable as our property;
8.4.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the goods;
8.4.4 maintain the goods in a satisfactory condition in their original packaging and take reasonable care of them;
8.4.5 keep the goods insured on our behalf for their full price against all risks to our reasonable satisfaction and upon request from us you shall produce the policy of insurance to us; and
8.4.6 hold the proceeds of the insurance referred to in condition 8.4.5 on trust for us and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
8.5 You may not use, alter or resell the goods before ownership has passed.
8.6 We shall be entitled to recover payment from you for the goods notwithstanding that ownership of any of the goods has not passed from us.
8.7 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.
8.8 You shall pay the price for the goods in full without any deduction, whether by way of set-off, counterclaim, discount, abatement or otherwise unless you have a valid court order requiring an amount equal to such deduction to be paid to you by us.
8.9 We reserve the right to suspend future deliveries of goods and cancel our contract with you and your right to possession of the goods shall terminate immediately if you:
8.9.1 have a bankruptcy order made against you or make an arrangement or composition with your creditors;
8.9.2 convene a meeting of creditors or enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purposes only of reconstruction or amalgamation;
8.9.3 have a receiver and / or administrator or administrative receiver appointed of its undertaking or any part thereof;
8.9.4 pass a resolution or you are served with a petition for the winding up of for the granting of an administration order in respect of you;
8.9.5 have proceedings issued against you in relation to your insolvency or potential insolvency;
8.9.6 suffer or allow any execution to be levied on your property or obtained against you;
8.9.7 fail to observe or perform any of your obligations under the contract or any other contract between Ergo Flex™ and you;
8.9.8 are unable to pay any debts within the meaning of section 123 of the Insolvency Act 1986;
8.9.9 cease to trade; or
8.9.10 encumber or in any way charge any of the goods.
9.1 The Goods are securely packaged for delivery, to ensure they reach you in excellent condition. Subject to the conditions set out below, we warrant that the goods will correspond with their specification at the time of delivery and will be free from defects in quality, material workmanship and condition for a period of 12 months from delivery.
9.2 We will further warrant the goods for a total period of ten (10) years from delivery, subject to product registration with us within 30 days of receipt of the goods by you, against defects in workmanship and materials (the "Warranty Period"), subject to the conditions set out below. This warranty does not apply to the cover on the mattress, pillows and mattress protectors, which are warranted for two (2) years against defects in material or workmanship, subject to the conditions set out below.
9.3 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.
9.4 Subject to condition 9.10, if we are in breach of our warranties in condition 9.1 or 9.2 then, within 30 days of us examining the defective goods, we shall (at our option):
9.4.1 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 or
9.4.2 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 mattress at the time) 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).
9.5 The warranties in conditions 9.1 and 9.2 do not apply:-
9.5.1 to any normal increase in softness in the foam, which can occur during normal breaking in, or in lessening of the gradual recovery aspect of the foam, which is not a defect in materials or workmanship and does not reduce the continual pressure reducing and pressure relief properties of the goods;
9.5.2 to the use of the goods by you on improper foundations, platforms or other bases, which may result in damage to the goods;
9.5.3 to the use of the goods by individuals over 18 stone in weight (approx. 114kg or 252lbs) and couples of combined weight of more than 30 stone (approx. 190kgs or 420lbs);
9.5.4 where 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;
9.5.5 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;
9.5.6 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;
9.5.7 if you make any further use of such goods after giving notice of the defect to us; or
9.5.8 if you alter or repair such goods without our prior written consent.
9.6 The warranties under condition 9.1 and 9.2 only apply to goods supplied by us within Australia only. Nothing in these warranties affects any of your statutory rights as a consumer, details of which are set out in paragraph 13.
9.7 We do not warrant our goods are a suitable remedy for any specific medical condition and do not warrant against any complications resulting from the use or inability to use this goods. We do not warrant against individual comfort preferences, sheet fit or height issues resulting from your bed frame size or headboard style. Further, we do not warrant that the goods will be odour free, as a slight smell is usual when the goods are first unpacked.
9.8 We make no warranty or representation that:-
9.8.1 our goods will meet your particular requirements or comfort preferences; or
9.8.2 any particular results may be obtained from the use of our goods.
9.9 If you have any particular discomfort during or after sleeping, particularly neck or back discomfort you should seek medical advice. You should always listen carefully to your body and in the event of any pain or side effects, you are advised to obtain appropriate medical advice without delay.
9.10 Should the warranty at condition 9.1 or 9.2 be exercised and your goods are replaced and/or repaired, we warrant that the replacement goods will correspond with their description and will be free from defects in quality, materials and workmanship at the time of delivery, but do not provide any additional express warranties for such replacement goods.
9.11 We shall not be obliged to fulfil our warranties in condition 9.1 or 9.2 unless:
9.11.1 you give us written notice of the defect within a reasonable time of you discovering the defect; and
9.11.2 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. If the product is not found to be defective you shall be responsible for the direct cost of the customer service visit (approximately $100 fee) or the delivery of the goods to us and back to you, as applicable.
10 LIMITS OF LIABILITY
10.1 This website or any part of it may not be compatible with your browser or computer configuration and we make no warranty that it is. We make no 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.
10.2 We will accept all liability if something we do causes death or personal injury. We will also accept all liability for damage to your property if the cause is our fault.
10.3 Provided you are not purchasing the goods for business purposes, we are also responsible for loss caused by:-
10.3.1 the goods not matching our description of them;
10.3.2 the goods not being of the quality you would expect;
10.3.3 the goods not being fit for the purpose for which they are intended; or
10.3.4 us not having the legal right to sell the goods to you.
10.4 Other than the liability we have accepted as described above, we will not be liable for any losses that you suffer as a result of any breach of our agreement except those losses which are a foreseeable consequence of the breach. In particular, as the goods are provided to you as a consumer, we cannot accept responsibility for any losses related to any business of yours such as lost data, lost profits or other business loss that you may incur as a result of any breach of our agreement.
11 BUSINESS CUSTOMERS FORCE MAJEURE AND ADDITIONAL LIMITS OF LIABILITY
This condition shall only apply to goods sold to you where you are not an individual consumer buying the goods for your own personal use.
11.1 We shall not be liable to you or be deemed to be in breech of contract by reason of any delay in performing, or any failure to perform any of our obligations under our contract, if the delay or failure was due to any cause beyond our reasonable control including, without limitation:
11.1.1 acts of God, fire, explosion, epidemic or flood;
11.1.2 war or national emergency;
11.1.3 riot, civil commotion, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce);
11.1.4 restraint or delays affecting carriers or inability or delay in obtaining supplies of adequate suitable materials;
11.1.5 import or export regulations or embargoes (including the failure of the Company's suppliers to obtain any necessary export permits, licenses or other authorisations);
11.1.6 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority.
11.2 Provided that, if any event referred to in condition 11.1 continues for a period in excess of 30 days, you shall be entitled to give us notice in writing to terminate the contract.
11.3 All warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
11.4 Nothing in these Conditions excludes or limits our liability for death or personal injury caused by our negligence or for fraudulent misrepresentation.
11.5 Subject to clauses 11.3 and 11.4:
11.5.1 our total liability and contract, tort (including negligence of breech 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
11.5.2 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 the contract, or our non-performance or delayed performance thereof.
12 COMPLAINTS AND DISPUTES
12.1 If you should have a complaint about the goods or our service, you should contact us by:
12.1.1 in writing or email in accordance with condition 15; or
12.1.2 by telephone on 1300 169 273.
12.2 We will try to solve any disagreements or problems quickly and efficiently. We will always try to respond in writing to your complaint within 14 working days of receiving it. Our response will tell you:
12.2.1 the course of action we propose in response to your complaint;
12.2.2 the estimated time of dealing with your complaint; and
12.2.3 the contact details of a person at Ergo Flex™ who will be handling your complaint.
12.3 Within 14 days of our initial response under condition 12.2, we shall inform you of our substantive response to your problem and our proposal for resolution.
13 STATUTORY RIGHTS
13.1 As a consumer you have certain statutory rights regarding the repair or return and replacement of defective or misdescribed goods and the performance of services, as well as claims in respect of losses caused by our negligence or our failure to carry out our obligations. Nothing in these terms and conditions affects those statutory rights.
13.2 For further information about your statutory rights, please contact the Australian Competition and Consumer Commission or Citizens' advice Bureau.
14.1 We own the copyright in and operate this website. Any photographs 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 material from this website in any way without our express written permission. All trade marks, service marks and trade names are our property (or are used with the permission of the trademark owner). Infringement of any copyright or trademarks on this website will result in appropriate legal action.
14.2 [This website may include links to sites operated by other parties but we are not responsible for examining or evaluating them and their inclusion does not imply our endorsement of their material. You therefore agree that we will not incur any liability in respect of the content of any site accessed through a link contained on this website.]
14.3 You shall not be entitled to assign our contract or any part of it to any other person without our prior written consent. We may assign or sub-contract our contract or any part of it to any person, firm or company.
14.4 Each right or remedy of your or of ours under the contract is without prejudice to any other right or remedy whether under the contract or not.
14.5 If any provision of our contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partially illegal, invalid, void, unenforceable or unreasonable such provision (or relevant part) shall be deemed severed from our contract and the remaining provisions of the contract and the remainder of such provision shall continue in full force and effect, provided the overall effect of the contract is more or less the same.
14.6 Failure or delay by you or us in enforcing or partially enforcing any provision of the contract will not be construed as a waiver of any of your or our rights under the contract.
14.7 Any waiver of any breech of, or any default under, any provision of the contract will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the contract.
14.8 The parties to this contract do not intend that any term of this contract will be enforceable by virtue of the contract by any person that is not a party to it.
14.9 Our website is operated and controlled from Australia and these terms and conditions and your use of this website and purchase of the goods are governed by and construed in accordance with the laws of Australia.
15.1 When you visit our website or send e-mails to us, you are communicating electronically. We may communicate with you by e-mail. You agree that all notices, agreements, disclosures and other communications that we provide to you electronically satisfy any requirement that such communications be in writing.
15.2 Any notices required to be given under our contract shall be in writing and may be delivered to the other party by hand, pre-paid first class post, facsimile or electronic mail.
15.3 For the purpose of these conditions and our contract notices can be sent to us:-
15.3.1 by post to: Ergo Flex Australia, PO Box 72, Maitland, NSW 2320
15.3.2 by electronic mail to: firstname.lastname@example.org; or
15.3.3 to any other address that we may notify to you in writing
15.4 Notice shall be deemed to have been received:
15.4.1 If it is delivered to the last known address of the other party, then on the day of delivery;
15.4.2 If it is sent by post to the last known address of the other party, then on the day on which it was posted;
15.4.3 If it is sent by facsimile to the last known facsimile number of the other party, then on the day it is sent; or
15.4.4 If it is sent by electronic mail to the last known electronic mail address of the other party, then on the day it is sent.
16 PRIVACY AND SECURITY POLICY
16.1 You may visit this website and access the public information while remaining anonymous and not revealing any personal information.
16.3 If you wish to make a purchase from us, then you will be required to provide certain personal information before being able to place an order. We will only ask you for as much information as we need to process your order and perform our contract. That information will be:
16.3.1 retained by Ergo Flex™ for as long as it is needed to perform the contract; and
16.3.2 kept secure in accordance with the requirements of the Privacy Act of 1998.
16.4 We shall not transfer any of your information outside of Australasia.
16.5 At the time of placing your order you may give your consent to us:
16.5.1 to contact you by electronic mail in relation to the supply of the goods; and/or
16.5.2 to provide you with details of products which we consider to be of interest to you. If you do not give your consent, then we will not send you any such information. If at any time you wish to withdraw your consent, you should notify us immediately in writing.
16.6 In accordance with our security policy, we shall use our reasonable endeavours to ensure that:
16.6.1 our ordering system is on a secure server and is encrypted to prevent any security breach;
16.6.2 any information you send to us (personal information or credit card details) is kept secure and cannot be intercepted by a third party; and
16.6.3 our equipment at is kept secure to avoid any tampering or unauthorized use of your information.
ERGO-FLEX warrants your Visco-Elastic mattress for a period ten (10) years* against defects in workmanship and materials. Your Mattress will be replaced or repaired, at our option, should it be found defective due to faulty workmanship or structural defects. This includes 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. If such a defect appears during the ten (10) years* of this warranty, we will, at our option, either repair or replace the Mattress or refund you (a proportionate part of the price pro rata from data of purchase). It is understood that this does not include normal increase in softness in the foam, which can occur during normal breaking in, or in lessening of the gradual recovery aspect of the foam. This does not reduce the continual pressure reducing and pressure relief properties of the Mattress. Substitution or use of improper foundations, platforms or other bases upon which the Mattress is placed, may result in damage to the product. ERGO-FLEX mattresses 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%.
Should an improper base be utilised by the consumer, causing the product to default, the warranty may be voided. The cover on the Mattress is warranted for two (2) year against defects in material or workmanship.
ERGO-FLEX advises that its mattress products are suitable for individuals up to approximately 114 kg or 252 lbs in weight (18 stone) and couples of combined weight of approximately 190kgs or 420lbs (30 stone). ERGO-FLEX hereby accepts no responsibility for any loss of performance experienced when these weight guidelines are not followed.
This warranty is void if the product is found to have been tampered with or misused by the purchaser beyond reasonable wear, and shall not apply if the product has been physically damaged intentionally or due to accident and or neglect; including burns, cuts, water damage, smoke damage, bodily fluid contamination, stains, or is otherwise abnormally soiled or unsanitary. This warranty is valid only to the original purchaser of the product as indicated on the original sales invoice and registration below. The Tag must not be removed from original product as this identifies the product regarding warranty and original invoice is required and is the only acceptable proof of purchase. This warranty gives you specific legal rights and you may also have other rights that vary from country to country.
In order to provide the most optimum sleeping surface this premium product contains only the finest quality materials. Our representative or designated agent shall make the final determination regarding repair or replacement. If the product is deemed defective there is no service charge for the visit. However, if the product is found to be in good condition the customer is responsible to absorb the charge of the customer service visit (approximately $100 fee). We do not warrant our product as a remedy for any specific medical condition and do not warrant against any complications resulting from the use or inability to use this product. We do not warrant individual comfort preferences, sheet fit or height issues resulting from purchaser's bed frame size or headboard style. Should this warranty be exercised and your product replaced and/or repaired the warranty will not be extended or renewed. Terms and service related in this warranty shall be the consumer's sole and exclusive remedy should the product fail during the time frame stated here in. We make no warrant beyond those terms and conditions stated. Please retain this warranty and your original invoice for ten (10) years. Contact ERGO-FLEX regarding any warrantable issues.
*Full 10 year guarantee subject to product registration with Ergo Flex within 30 days of receipt of your product.
*Excludes accessories. Free delivery and returns not applicable to some locations. 30-day trial applicable to mattresses only.
Copyright © Ergoflex™ 2019
Ergoflex Australia, trading name of EAU Pty Ltd. 7/2 Sabre Close, Anambah Business Park, Rutherford, NSW, 2320 ABN: 85 141 058 380