TERMS AND CONDITIONS

TERMS AND CONDITIONS 

In these terms, we also refer to Mobile Mattress and Naptime as “our”, “we”, or “us”. And you are you. What are these terms about? These terms apply when you use this website, www.mobilemattress.com.au and any other websites we operate with the same domain name and a different extension (“Website”). These terms also apply when you purchase products through this Website (“Products”).

Once you place an Order, the terms accepted at the point of sale will apply to your purchase of those Products. However, please note that we may change any part of these terms at any time by updating this page of the Website, so you may find that different terms apply next time you use this Website or purchase Products. 

PURCHASE A PRODUCT / SUBMITTING AN ORDER

1. By submitting an order for the purchase of a Product using the Website’s functionality (Order) you represent and warrant that:
1. you have the legal capacity and are of sufficient age to enter into a binding contract with us; and
2. you are authorised to use the debit or credit card you provide with your Order.
2. Submitting an Order constitutes your intention and offer to enter into Part A of these terms (including Part C which you agreed to by using this Website) where we will provide you with the Products you have ordered in exchange for your payment of the total amount listed upon checkout.
3. Part A of these terms is not agreed between you and us until we have approved your payment and you receive an email from us confirming that your order is being processed.
4. You do not need an account to submit an Order, however for ease of access and to receive member benefits we will make available from time to time, you can sign-up, register and receive an account through the Website (an Account).
5. As part of the Account registration process and as part of your continued use of the Website, you may be required to provide personal information and details, such as your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, bank account information, and other information as determined by us from time to time.
6. You warrant that any information you give to us in the course of completing the Account registration process will always be accurate, honest, correct and up-to-date.
7. Once you complete the Account registration process, we may, in our absolute discretion, choose to accept you as a registered user within the Website and provide you with an Account.
8. We may, in our absolute discretion, suspend or cancel your Account for any reason, including for any failure to comply with these terms.

PRODUCT

1. We will endeavour to ensure that the Products provided will be substantially the same as the Products displayed on our Website, or as otherwise agreed with you in writing prior to you placing your Order. Please note that due to screen display, colour and brightness, and image quality, Products may not exactly match the image on our Website.
2. Until the price of your Products is paid in full, title in those Products is retained by Mobile Mattress/Naptime. Risk in the Products will pass to you on delivery in accordance with clause 6. Delivery must not be refused by you.

DISCLAIMER 

You acknowledge and agree that:

1. we are not responsible for any loss, damage, liability, expense, claim, injury, illness or death associated with the purchase or use of our Products if you do not use them in accordance with and/or comply with this clause 4;
2. you will use our Products responsibly and follow any instructions on our Products,
3. if you experience any negative symptoms (such as an allergic reaction) when you use our Products, you must immediately stop using the Products and check with a health professional whether the Products are right for you;
4. the information contained on our Website, our Products or our services is not professional medical advice, and you should not rely on such information as a substitute for medical, health, psychological or professional advice;
5. any recommendations provided on our Website (including in our blog posts or articles) are for educational purposes and are based on our experience;
6. please seek medical advice from a trained medical professional in relation to any medical issues you are experiencing;
7. by not seeking appropriate medical advice, you accept the risk that the information contained in our Products and/or on our Website may not meet your specific needs, circumstances or goals;
8. we do not guarantee that you will achieve any specific personal or medical outcomes or results by using our Products;
9. Our products may be heavy and could cause injury if handled incorrectly and as such you agree to take due care and caution when lifting, moving, repositioning and/or relocating our Products; and
10. you acknowledge and agree that we are not responsible for any loss, damage, liability, expenses, claim, injury or death associated with the lifting, moving, repositioning and/or relocating of our Products.

LIABILITY AND OTHER LEGAL TERMS

1. (Liability) To the maximum extent permitted by applicable law, Mobile Mattress/Naptime limits all liability in aggregate of all claims to you (and any third parties who encounter the services or goods through you) for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement or any goods or services provided by Mobile Mattress/Naptime to the total Fees paid by you to Mobile Mattress/Naptime under the most recent Order.
2. Claims for loss of or damage to Products in transit must be made against the carrier.
3. Products sold by Mobile Mattress/Naptime, will have only the benefit of any warranty given, and insurance held, by the manufacturer.
4. All other express or implied representations and warranties in relation to Products and the associated services performed by Mobile Mattress/Naptime are, to the maximum extent permitted by applicable law, excluded.
5. Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
6. (Indemnity) You indemnify Mobile Mattress/Naptime and its employee, contractors and agents in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through you) arising from your or your representatives’:
1. breach of any third party intellectual property rights;
2. breach of any of these terms;
3. use of the Website;
4. negligent, wilful, fraudulent or criminal act or omission; or
5. use of any goods or services provided by Mobile Mattress/Naptime.
7. (Consequential loss) To the maximum extent permitted by law, under no circumstances will Mobile Mattress/Naptime be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this Website, these terms or any Products or services provided by Mobile Mattress/Naptime (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).

1. GOVERNING LAW AND JURISDICTION

   This agreement is governed by the law applying in Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with these terms. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
2. WAIVER
   No party to these terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
3. SEVERANCE
   Any term of these terms which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of these terms is not limited or otherwise affected.
4. JOINT AND SEVERAL LIABILITY
   An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
5. ASSIGNMENT
   A party cannot assign, novate or otherwise transfer any of its rights or obligations under these terms without the prior written consent of the other party.
6. COSTS
   Except as otherwise provided in these terms, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing these terms.
7. ENTIRE AGREEMENT
   This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of these terms.
8. INTERPRETATION
1. (singular and plural) words in the singular includes the plural (and vice versa);
2. (currency) a reference to $, or “dollar”, is to Australian currency;
3. (gender) words indicating a gender includes the corresponding words of any other gender;
4. (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
5. (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
6. (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
7. (these terms) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of these terms, and a reference to these terms includes all schedules, exhibits, attachments and annexures to it;
8. (document) a reference to a document (including these terms) is to that document as varied, novated, ratified or replaced from time to time;
9. (headings) headings and words in bold type are for convenience only and do not affect interpretation;
10. (includes) the word “includes” and similar words in any form is not a word of limitation; and
11. (adverse interpretation) no provision of these terms will be interpreted adversely to a party because that party was responsible for the preparation of these terms or that provision.
9. NOTICES
1. Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in this agreement, and the email’s subject heading must refer to the name and date of this agreement.
2. If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
3. The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.

Intellectual property

1. Mobile Mattress/Naptime retains all intellectual property rights in the design of the Products, including the labelling and packaging, or those rights are owned by a third party. You must not attempt to copy, reproduce, manufacture or otherwise commercialise the Products.
2. In this clause 10, “intellectual property rights” means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of these terms both in Australia and throughout the world.

You must only use the Website in accordance with these terms and any applicable laws, and must ensure that your employees, sub-contractors and any other agents who use or access the Website comply with these terms and any applicable laws.

YOUR OBLIGATIONS


You must not:

1. copy, mirror, reproduce, translate, adapt, vary, modify, sell, decipher or decompile any part or aspect of the Website without the express consent of Mobile Mattress/Naptime;
2. use the Website for any purpose other than the purposes of browsing, selecting or purchasing Products;
3. use, or attempt to use, the Website in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
4. use, or attempt to use, the Website in a manner that may interfere with, disrupt or create undue burden on the Website or the servers or networks that host the Website;
5. use the Website with the assistance of any automated scripting tool or software;
6. act in a way that may diminish or adversely impact the reputation of Mobile Mattress/Naptime, including by linking to the Website on any other website; and
7. attempt to breach the security of the Website, or otherwise interfere with the normal functions of the Website, including by:
1. gaining unauthorised access to Website accounts or data;
2. scanning, probing or testing the Website for security vulnerabilities;
3. overloading, flooding, mail bombing, crashing or submitting a virus to the Website; or
4. instigate or participate in a denial-of-service attack against the Website.