TERMS AND CONDITIONS
TERMS AND CONDITIONS OF SALE - Website
These Terms and Conditions were last updated on 1st May 2017.
IMPORTANT: Please read these Terms and Conditions carefully. They form a legally binding agreement between you and us. If you do not agree with these Terms and Conditions, please do not access or use the Website or place any orders with us through the Website. Website purchases at this stage are only available for lifestyle products in Australia at this time.
1.3 For the purposes of these Terms and Conditions, all references to: “Terms and Conditions” means these terms and conditions, as amended from time to time in accordance with Clause 1.2 above and any policies, guidelines, rules and/or other terms and conditions which we may, from time to time, post on the Website or otherwise make known to you; “Website” means the website currently located at www.kabaland.com and/or any successor website; and “us” and “we” means Tempur Australia Pty Ltd and “our” shall be construed accordingly).
2.1 Provided that you comply fully with these Terms and Conditions, we and/or our licensors grant you the right to access and view the content and information provided or made available on or through the Website, including, without limitation, text, images and videos (the “Content”), for your personal and non-commercial use only, unless agreed in writing between you and us.
2.2 You may not, without our express prior written permission, print, download, copy, reproduce, sub-license, republish, distribute, transmit, publicly perform, display or make available, alter, adapt, interfere with, create derivative works from or counterfeit, by any means or in any manner, any Content, or do anything else with such Content which is not expressly permitted by these Terms and Conditions. Without prejudice to the generality of the above, you should download and/or print and retain a current copy of these Terms and Conditions for your records.
2.3 All intellectual property and other proprietary rights in the Content are owned by us or our licensors. You agree and acknowledge: that you will not acquire any ownership rights in the Content; and that modification of any Content or use of any Content for any purpose not expressly permitted by these Terms and Conditions may breach our and others’ copyright and other proprietary rights.
2.4 Any rights not expressly granted in these Terms and Conditions are reserved.
2.5 We do not accept or consider creative materials, ideas or suggestions other than those we specifically request. This is to avoid any misunderstandings if your ideas are similar to those we have developed independently. If you transmit to us, by email or otherwise, any communication or material, you will be deemed to have granted us and our affiliates a perpetual, world-wide, royalty-free, irrevocable licence to use such communications or material in any way we deem fit, including granting sub-licences to third parties. You agree that we and our affiliates are free to use any ideas, concepts, know-how or techniques contained in any communication or material you send to us for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products using such information.
3. SERVICE ACCESS
3.1 While we endeavour to ensure that the Website is normally available 24 hours a day, access to the Website may be suspended temporarily and without notice for any reason in our discretion, including, without limitation, in the case of system failure, maintenance or repair or for reasons beyond our control. We shall not be liable to you or any third party if for any reason the Website is unavailable at any time or for any period.
3.2 We reserve the right to modify or withdraw, temporarily or permanently the Website (or any part of it) with or without notice and shall not be liable to you or any third party for any such modification or withdrawal.
4.1 You agree that you will not use the Website for the posting or transmission of any material of any kind which is: unlawful; harmful; threatening; abusive; harassing; defamatory; vulgar; obscene; in breach of our and/or any third party’s rights; and/or racially, ethnically or otherwise objectionable.
4.2 You agree that you will not:
4.2.1 upload or attempt to upload to the Website or otherwise transmit to us files that contain viruses, "Trojan Horses", worms, cancelbots, corrupted files, other such similarly destructive features, or otherwise in any way damage, disable or impair the operation of the Website or our business or seek to do so; or
4.2.2 gain or attempt to gain unauthorised access, by any means, including by hacking, spoofing or seeking to circumvent or defeat any firewalls or other technological or other protections or security measures, to the Website, networks connected to the Website or any Content.
4.3 We shall fully co-operate with any law enforcement authorities or court order requesting or directing us to disclose the identity or locate anyone suspected of an offence in relation to use of the Website.
5. CUSTOMER INFORMATION
You are responsible for the accuracy and completeness of the personal information you give to us and you warrant that such information is accurate and complete in all respects. You agree to notify us of any change to such information, which you can access and update using your account.
6. YOUR ACCOUNT AND PASSWORD
6.2 You are responsible for the security and confidentiality of the password and other log-in information for your account. You accept responsibility for all activities which occur under your account. If you have any reason to suspect that your password has become known to someone else and/or that your account has been or is likely to be used without your authorisation, you should contact us immediately. We shall not be liable for any loss or damage resulting from a failure by you to protect the password and/or other log-in information for your account.
7. LINKS TO OTHER WEBSITES
7.1 Links to third party websites on the Website are provided solely for your convenience. If you use such links, you leave the Website. We have not reviewed, do not control and are not responsible for these websites or their content or availability. We do not endorse or make any representations about such websites, any material on such websites, or any results that may be obtained from using such websites. If you decide to access any of the third party websites linked to the Website, you do so entirely at your own risk. These websites may have their own terms and conditions and privacy policies which you should review before using such websites.
8.1 While we endeavour to ensure that the information on the Website is accurate, complete and up to date, we do not warrant that this is or will be the case. We may, at any time without notice, make changes to the Website and/or or to the products and/or their prices described and available on the Website.
8.2 Illustrations, photographs, weights, dimensions and descriptions on the Website are intended as a general guide to our products. You acknowledge and agree that we do not promise that our products will be precisely in accordance with such guidance and without any variation at all. While we endeavour to ensure that our guidance is helpful and accurate there are many factors, such as minor changes in stock, ongoing product development and even your own computer or other monitor technology that mean that actual products may vary slightly from the illustrations, photographs, weights, dimensions and/or descriptions on the Website.
9. ORDER PROCESS
9.1 You must be over 18 to place an order through the Website.
9.2 If you place an order through the Website, we will acknowledge your order, by email which your order constitutes an offer by you to purchase the product(s) ordered from us.
9.3 We will also confirm whether or not we have the product(s) in stock and provide an estimated date on which such product(s) will be delivered to you. In the case of an order placed through the Website, by calling you following such order).
9.4 Following our confirmation that the product(s) ordered is in stock and provision of an estimated delivery date, we will take payment from you (using the payment information provided when you placed your order) in respect of the product(s) ordered and will send you a confirmation (by email if you have an email address or by post if you do not have an email address) of dispatch of the product(s). That confirmation of dispatch constitutes our acceptance of your offer and the formation of a contract between you and us for the sale of such product(s) under these Terms and Conditions.
9.5 We will take all reasonable care, in so far as it is in our power to do so, to keep the details of your order and payment secure, but in the absence of negligence on our part we cannot be held liable for any loss you may suffer if a third party procures unauthorised access to any data you provide when accessing or ordering from the Website.
10.1 The prices payable for products are shown on the Website. We may make an additional charge for delivery costs and this will be shown separately in the checkout section of the Website, before you submit your payment information.
10.2 All product prices on the Website are inclusive of GST. On the product pages of the Website, the product prices are exclusive of any delivery charges, which are added, inclusive of GST, in the shopping basket and check out section of the Website.
10.3 If you qualify for, and wish to take advantage of, a GST exemption, you will need to submit some additional information to us using an additional form, which will be available when you place your order and which you must print out, complete and send to us. Please note that the initial payment will be taken inclusive of GST. Only upon receipt of your completed form will a GST credit be applied to your account and a refund will be issued within 30 days. The GST exemption applies only to, and we will therefore only be able to refund the GST on, qualifying products and not GST on the delivery charges.
11. NON-ACCEPTANCE OF ORDERS BY US
11.1 We can refuse to accept or fulfil any order in our absolute discretion, including, without limitation, if:
11.1.1 there is a pricing or description error when the order is placed which is obvious and unmistakeable and could have reasonably been recognised as a mis-pricing;
11.1.2 your payment is refused;
11.1.3 we do not have sufficient stock to deliver the product you have ordered;
11.1.4 we do not deliver to the area in which your delivery address is located;
11.1.5 it is not possible or practical for us to deliver to, or we have any other concerns with, the delivery address that you have given us; and/or
11.1.6 the product you are attempting to order is not available for sale through the Website.
11.2 If we refuse to accept an order in accordance with this Clause 11, we will not be obliged to offer any compensation for loss or disappointment suffered by you.
12.1 We accept payment by credit card (Visa and Mastercard only).
12.2 Unless we allow you to place an order for any product(s) by paying a deposit and paying the balance of the purchase price for the product(s) ordered at a later date (in which case this will be indicated on the Website), in respect of all orders, payment of the full purchase price for the product(s) ordered must be made when the order is placed and we will not dispatch the product(s) ordered until we have received such payment in full.
12.4 If for any reason any payment is refused after we have dispatched any product we will have the right to request the payment from you or recover the relevant product(s) from you. We may charge you for our costs in recovering the product(s) or seeking further payment.
12.5 We do not offer credit facilities for products purchased from us.
12.6 Full ownership and title in any product ordered from us will remain with us and will not pass to you until we have received payment of the full purchase price for such product.
13.1 We are only able to deliver a product to a home address within Australia.
13.2 We are only able to deliver products between Monday and Friday (excluding public holidays) and there must be a person aged over 18 at the delivery address when the product is delivered. Once you have submitted an order, you may not be able to change the delivery address. If you would like to discuss a change to the delivery address after you have submitted an order, please contact us as soon as possible at (03) 9785 4900.
13.3 The estimated delivery date of a product is based on whether the product is in stock and on the delivery address you have provided to us and is subject to receipt by us from you of payment for such product. Although we endeavour to ensure that products are delivered on their estimated delivery date, such date is indicative only and we cannot guarantee that delivery will take place on such date. However, unless agreed otherwise with you, any product will be delivered within 30 days of the date on which we received payment from you for such product.
13.4 You must inform us, by contacting us using the information at www.kabaland.com, by the date on which we agree an estimated delivery date with you, if there are any special circumstances which might be relevant to your delivery, including, without limitation, factors relating to access: to your delivery address (e.g. low bridges, narrow lanes etc); and/or to the premises at your delivery address (e.g. small door frames, narrow passages, steps etc). Please take appropriate measurements to confirm whether or not there are any such factors.
13.5 You may be liable to pay us extra delivery charges if:
13.5.1 we are unable to complete a delivery because a person over 18 is not present at the delivery address on the date of delivery to accept the product;
13.5.2 you attempt to change the delivery address after the product has been dispatched to you; and/or
13.5.3 you fail to notify us in accordance with Clause 13.4 above of special circumstances which are relevant to your delivery.
13.6 Although we will endeavour to do so, we cannot guarantee that we will be able and reserve the right to refuse in our sole discretion to:
13.6.1 relocate any of your existing furniture at the delivery address (and any such request for us to do is at your own risk); and/or
13.6.2 deliver the product to a precise location within the premises at the delivery address.
13.7 Notwithstanding Clause 12.6, once we have delivered any product to you: risk in that product passes to you; and you are responsible for its insurance and security.
13.8 We regret that we are not able to take away or dispose of any of your existing furniture (including, without limitation, any existing mattress).
14. IF YOU CHANGE YOUR MIND
14.1.1 we will not refund the cost of delivering the product to you;
14.2 If you do not notify us within 12 hours that you wish to cancel your order of any product, you will be deemed to have accepted the applicable product.
15. IF A PRODUCT IS DAMAGED OR FAULTY OR NOT WHAT YOU ORDERED
15.1 Please keep all the warranty information that comes with your product as it may be needed if the product develops a fault.
15.2 We request that you inspect any product delivered to you within a reasonable period of receiving it. If a product you have received from us: was damaged when delivered; or develops a fault within the warranty period (provided you have used the product in accordance with Clause 18), please notify us and an Account Manager will come to see you and review your request.
15.2.1 we will repair it, if possible;
15.2.2 if it is not possible to repair it, we will replace it with an equivalent product, if possible; or
15.2.3 if it is not possible to replace it with an equivalent product, we will (in accordance with Clause 17) refund any sums paid to us by you, and any provider of credit facilities, as envisaged by Clause 12.5, in respect of the purchase price for the product and any charges for delivering the product to you.
In relation to any such returns, we require that you follow our returns policy, as set out in Clause 16 below.
This warranty gives you specific legal rights, and you may also have other rights under the legislation referred to in Clause 19.1.3. In particular, our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
15.3 If we discover that a product you have returned to us on the basis that it was damaged or faulty is not in fact damaged or faulty, we may: return it to you and, using the payment information provided to us when you placed your order; recharge you for the product and the original delivery costs; and charge you for the costs of returning the product to us and of redelivering the product to you.
15.4 If a product you have received from us is not the product which you ordered from us please notify us and return the product to us, at our cost, either by post or by requesting that we collect the product from you, and
(a) we will deliver the product which you ordered, if possible; or
(b) if it is not possible to deliver the product which you ordered, we will refund the purchase price and any delivery costs.
In relation to any such returns, we request that you follow our returns policy, as set out in Clause 16 below.
16. RETURNS POLICY
16.1 If you want to return a product or otherwise make a claim under Clause 15.2, please email us at firstname.lastname@example.org, or, if you do not have an email address, please contact us on (03) 9785 4900.
17. REFUND ON CANCELLED ORDERS PRIOR TO SHIPMENT
17.1 We will make any refunds due to you in accordance with these Terms and Conditions using the same method of payment as you used when placing your order. Please note that we cannot influence any part of a refund after we have submitted the request to a bank and that banks can take up to 5 days to process such a refund.
18. USE OF PRODUCTS
18.1 You agree only to use the products for their normal and proper use and not to alter or modify or otherwise interfere with them.
18.2 You agree to follow the manufacturer’s instructions supplied with the products and not to use the products in a careless or negligent manner.
19.1 Nothing in these Terms and Conditions excludes or limit our liability for:
19.1.1 death or personal injury caused by negligence;
19.1.2 fraud; or
19.1.3 any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances]
19.2 To the maximum extent permitted by law:
19.2.1 the Website and the Content are provided “as is” without any warranties of any kind;
19.2.2 the products will be of satisfactory quality and fit for the purpose for which they are made available (i.e. non-commercial, domestic use, unless otherwise agreed between you and us); and
19.2.3 we exclude all other express and implied representations, warranties, conditions and other terms relating to the Website, the Content and the products.
19.3 If any guarantee, warranty, term or condition is implied or imposed in relation to these Terms and Conditions under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a Non-Excludable Provision), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then the liability of us for breach of the Non-Excludable Provision is limited to one or more of the following at our option:
(a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(b) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
19.4 Subject to our obligations under the Non-Excludable Provisions referred to in Clause 19.3 and to the maximum extent permitted by law, the maximum aggregate liability, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way of us, our group companies and the officers, directors, employees, shareholders or agents of us or any of them, for any kind of loss or damage that may result to you or a third party in connection with these Terms and Conditions is limited to the greater of:
19.4.1 the amount paid by you for the product (and in calculating our aggregate liability under this clause, the parties must include any amounts paid or the value of any goods or services replaced, repaired or supplied by us for a breach of any Non-Excludable Provision); and
19.5 Subject to our obligations under the Non-Excludable Provisions referred to in Clause 19.3 and to the maximum extent permitted by law, we, our group companies and the officers, directors, employees, shareholders or agents of us or any of them will not be liable, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way in connection with these Terms and Conditions for:
19.5.1 any indirect, punitive or consequential loss or damages;
19.5.2 any loss arising from or in connection with loss of income, profits, goodwill, data, contracts, use of money or business interruption;
19.5.3 any loss arising from your use of the Website, including, without limitation, in connection with the use, inability to use or the results of use of the Website, any websites linked to the Website or the material on such websites, including but not limited to loss or damage due to viruses that may infect your computer equipment, software, data or other property on account of your access to, use of, or browsing the Website or your downloading of any material from the Website or any websites linked to the Website;
19.5.4 any loss arising from failure to use the products in a normal and proper manner or through altering or modifying the products, failure to follow our and/or the manufacturer’s instructions or using the products in a careless or negligent manner; and/or
19.5.5 any failure to perform any obligation owed to you under these Terms and Conditions, including, without limitation, any failure to deliver or delay in delivering products, due to any event or circumstance beyond our reasonable control, including, without limitation, industrial disputes, technical difficulties, failure of or delays in communications networks, acts of terrorism or power failure.
20. INVALIDITY AND WAIVER
20.1 If any part of these Terms and Conditions is unenforceable (including any provision in which we exclude our liability to you) the enforceability of any other part of these Terms and Conditions will not be affected.
20.2 If you breach these Terms and Conditions and we take no action against you, we will still be entitled to enforce our rights against you in relation to that breach and to use our rights and remedies in any other situation where you breach these Terms and Conditions.
21. THIRD PARTY RIGHTS
Except for our affiliates, directors, employees or representatives, a person who is not a party to these Terms and Conditions has no statutory or other right to enforce them, to the extent that any such right can be lawfully excluded.
22. TERMINATION AND SURVIVAL
22.1 Except in respect of an order by you which has been accepted by us in accordance with Clause 9, either party may terminate an agreement under these Terms and Conditions at any time on written notice to the other.
22.2 This Clause 22 and Clauses 1, 2.2, 2.3, 2.4, 2.5, 3, 4, 8, 18, 19, 20, 21, 23, 24 and 25 shall survive a termination of an agreement under these Terms and Conditions for any reason.
23.1 We reserve the right to assign or sub-contract any or all of our rights and obligations under these Terms and Conditions. These Terms and Conditions are personal to you and are entered into by you for your own benefit and not for the benefit of any third party.
24. GOVERNING LAW AND JURISDICTION
24.1 These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia and any disputes arising in connection with these Terms and Conditions shall be subject to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
25. ENTIRE AGREEMENT