Unless otherwise agreed in writing with Sleep Corp Pty Ltd (ABN 16 070 837 151) (Sleep Corp) (and any associated or related entities), these Terms and Conditions apply to all transactions between the Customer and Sleep Corp relating to the supply of Goods, including the Credit Application, quotations, invoices, statements or other similar documents (collectively, the Terms). The Customer acknowledges and accepts that these Terms constitute a security agreement for the purposes of the PPSA, and that a Security Interest may arise in all previously supplied, and future supply, of Goods by Sleep Corp to the Customer.
Unless the context otherwise requires:
ACL means the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth);
Business Day means any day that is not a Saturday, or Sunday or public holiday in the place concerned;
Consumer Warranty means any warranty, guarantee or similar undertaking with Sleep Corp provides and is set out in a warranty card packaged with each item of Goods;
Credit Application means an application for the provision of credit submitted to Sleep Corp by the Customer;
Customer means the person shown on a Credit Application or Invoice or statement as the customer, and includes such person, contractors, servants, agents, business, partnership, trust or corporate entity (jointly and severally if there is more than one), their agents or assigns and/or other person claiming through, under or in trust for such person;
Goods means the goods supplied by Sleep Corp to the Customer pursuant to any order accepted by Sleep Corp;
GST means the goods and services tax imposed by or under GST Law; GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
PPSA means the Personal Property Securities Act 2009 (Cth);
Security agreement means these Terms (or any other Terms as updated or amended from time to time), which constitute and are evidence of, a security agreement as agreed and accepted by the Customer in relation to any transactions with Sleep Corp for the purposes of the PPSA;
Security Interest has the meaning given to it by the PPSA;
Subcontractor includes any person who pursuant to a contract or arrangement with any other person (whether or not Sleep Corp) provides or agrees to provide the Goods or any part of the Goods;
Supply means the same as in the GST Law; Taxable Supply means any Supply under these Terms in respect of which GST is or may be payable.
2.1. All orders are accepted on the basis of these Terms, subject only to amendments agreed by Sleep Corp’s authorised representatives. No representations, warranties, guarantees, or other statement not contained herein, or in such amendments, will be binding.
2.2. These Terms cover each and every, previous and future, supply of Goods by Sleep Corp to the Customer.
2.3. Sleep Corp may vary these Terms from time to time. Any orders placed after the variation date will be deemed an acceptance of such varied Terms.
3. SUPPLY OF GOODS BY SLEEP CORP
3.1. If Sleep Corp provides the Customer with a quotation, that quotation is an invitation to treat only, only valid in writing and valid for 30 days from the date of the quotation.
3.2. Orders placed by the Customer are offers to purchase particular Goods from Sleep Corp at the price specified in accordance with these Terms.
3.3. Sleep Corp may have a minimum order value. Any order less than the minimum order value may incur a delivery surcharge.
3.4. To the extent permitted by law including the ACL, Sleep Corp may refuse to accept or reject an order made by the Customer for any reason in its absolute discretion.
3.5. Sleep Corp is under no obligation to supply Goods which are the subject of an order by the Customer, unless and until Sleep Corp has accepted the order.
3.6. In the event that Sleep Corp makes a change to or cancels an order, Sleep Corp may notify the Customer.
3.7. Sleep Corp will, prior to or upon supplying the Goods to the Customer, provide the Customer with an invoice in respect of the Goods supplied.
3.8. If there is any variation to any of the information supplied by the Customer to Sleep Corp (including as to the structure or nature of the Customer’s business) the Customer must notify Sleep Corp in writing as soon as practicable.
4. SPECIAL SIZES
4.1. Special sizes are available in each brand. Time frame of delivery of all special size orders will be advised.
5.1. The Customer will, unless Sleep Corp and the Customer otherwise agree, bear the cost of delivery of the Goods.
5.2. Sleep Corp is authorised to deliver the Goods at the address given to it by the Customer.
5.3. Sleep Corp will make all reasonable efforts to deliver the Goods to the Customer by the date agreed. However, any times quoted for delivery are estimates only and Sleep Corp will not be liable for:
(a) any failure to deliver, or delay in delivery, of Goods;
(b) any damage or loss due to the unloading or packaging of Goods; and
(c) any damage to property caused upon entering premises to deliver the Goods.
5.4. The Goods will be deemed delivered in accordance with the Terms if they are delivered to the address given by the Customer and Sleep Corp obtains a receipt or a signed delivery docket.
5.5. If no-one at the specified address agrees to take delivery or the Goods are unable to be delivered for another reason, the Customer authorises Sleep Corp to deal with the Goods as Sleep Corp thinks fit.
5.6. Any dealings by Sleep Corp in accordance with clause 5.5 are at the Customer's sole expense and risk, and without liability to Sleep Corp.
5.7. Sleep Corp reserves the right to deliver Goods by instalments. If any Goods are damaged, wrongly supplied or not in accordance with the Terms, the Customer may return those Goods in accordance with clause 8. The Customer will be deemed to have accepted delivery of the Goods if the Customer fails to return the Goods in accordance with clause 8.
5.8. The Customer indemnifies Sleep Corp against any loss or damage incurred by Sleep Corp, its sub-contractors or employees as a result of delivery, except where such liability is excluded by law.
5.9. The Customer indemnifies Sleep Corp against any losses, costs or expenses incurred by Sleep Corp due to any failure by the Customer to accept the Goods at the time of delivery or collection.
5.10. Where Sleep Corp is responsible for transporting the Goods, Sleep Corp will not be liable for short delivery or damage to the Goods in transit unless the Customer sends written notice to Sleep Corp within 5 Business Days of receipt of the Goods.
6. PRICING AND PAYMENT
6.1. Prices are subject to change without notice.
6.2. The price for the supply of Goods is the price specified in the invoice or account provided to the Customer by Sleep Corp.
6.3. Sleep Corp may vary the price for the Goods if:
(a) the Customer requests any variation to an order; or
(b) there are any changes in the costs incurred by Sleep Corp in relation to the Goods.
6.4. Upfront payment will be required until a Credit Application has been accepted by Sleep Corp, at which time Sleep Corp may, in its sole discretion, extend terms in accordance with the relevant credit terms.
6.5. Sleep Corp reserves the right to cancel orders, or place an order on hold, if the Customer fails to make payment.
6.6. Sleep Corp is entitled to set off against any money owing to the Customer by amounts owed to Sleep Corp.
7. RETURN OF GOODS
7.1. The Customer must obtain a return authorisation number from Sleep Corp’s customer services.
7.2. The Customer may return Goods to Sleep Corp provided that:
(a) the Goods are damaged, wrongly supplied, defective or not in accordance with these Terms;
(b) the Customer notifies Sleep Corp of the invoice or account number in respect of the Goods to be returned; and
(c) the Goods are returned in the original state or condition in which they were supplied and remain in original boxes together with all packaging and instruction material.
7.3. All Goods returned by the Customer are subject to assessment by Sleep Corp, and Sleep Corp may, if permitted by the ACL or any other law, refuse to accept the return of the Goods at its sole discretion.
7.4. Sleep Corp reserves the right to impose any handling charge, it deems reasonable in respect of Goods returned.
7.5. Defective Goods may, at the option of Sleep Corp, be either repaired, replaced, or credited to the Customer’s account.
7.6. Claims for Goods which are shop-worn through mishandling or abuse will not be allowed or accepted.
7.7. Subject to the Customer’s rights under the ACL, the following Goods cannot be returned by the Customer to Sleep Corp under any circumstances:
(a) those that were specifically made, sourced, ordered or purchased for the Customer;
(b) those that were used, damaged or altered in any way by the Customer;
(c) those that were sold by the Customer at wholesale or discounted prices; or
(d) those that are no longer in stock by Sleep Corp or have been discontinued.
8. ACCOUNT TERMS
8.1. The Customer must pay for all Goods delivered in accordance with the terms of the relevant invoice, or as agreed with Sleep Corp, and acknowledges that time is of the essence in respect of any amounts to be paid to Sleep Corp by the Customer.
8.2. Credit extended to the Customer for all Goods sold will be made in accordance with the relevant Credit Application and the terms of credit, or as otherwise agreed in writing with Sleep Corp.
8.3. Sleep Corp may withdraw the Customer’s credit facilities at any time or vary the Customer’s credit limit, without notice to the Customer.
8.4. Sleep Corp may allow the Customer to purchase and continue to purchase Goods as long as the total of the Customer’s account does not exceed its pre-approved account limit.
8.5. The Customer acknowledges that Sleep Corp may revoke any credit granted to the Customer at any time.
9.1. If the Customer defaults in payment by the due date of any amount payable to Sleep Corp, then all money which would become payable by the Customer to Sleep Corp at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Sleep Corp may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest at the annual rate of 3% above the Reserve Bank of Australia’s Cash Rate, calculating daily and compounded weekly from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify Sleep Corp from, all costs and expenses (including without limitation all legal costs and expenses, collection costs, dishonour fees and stamp duty) incurred by it resulting from the default or in taking action to enforce compliance with these Terms;
(c) withhold for such period as Sleep Corp thinks fit, any further deliveries of Goods to the Customer; and
(d) by written notice to the Customer, terminate any credit arrangement and these Terms.
10. PROPERTY AND RISK
10.1. The Goods will be at the sole risk of the Customer from the time they are delivered or deemed to be delivered.
10.2. The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties, arising out of the use or possession of the Goods sold by Sleep Corp, unless recoverable from Sleep Corp on the failure of any statutory guarantee under the ACL.
10.3. Until Sleep Corp receives full payment in cleared funds for all Goods supplied by it to the Customer, as well as all other amounts owing to Sleep Corp by the Customer:
(a) property in and title to the Goods remain vested in Sleep Corp and will not pass to the Customer;
(b) the Customer holds the Goods as bailee for Sleep Corp;
(c) the Customer must store the Goods separately from its own Goods and retain Sleep Corp’s labelling and packaging;
(d) the Customer must hold any proceeds of sale of the Goods on trust for Sleep Corp, however failure to do so will not affect the Customer's obligation to deal with the proceeds as trustee;
(e) Sleep Corp may, without notice, enter any premises where it suspects the Goods are and remove them, and for this purpose the Customer irrevocably licenses Sleep Corp to enter such premises and also indemnifies Sleep Corp from and against all costs, claims, demands or actions by any party arising from such action.
11. PERSONAL PROPERTY SECURITIES ACT
11.1. The Customer acknowledges and agrees that these Terms are an accepted and adopted Security Agreement between Sleep Corp and the Customer for the purposes of the PPSA, and that a Security Interest exists in all Goods supplied to the Customer (and their proceeds). This security agreement between the parties includes any arrangements documented by emails or information or documents exchanged electronically (including by EDI).
11.2. In requesting Sleep Corp provide Goods, the Customer is deemed to have accepted this security agreement and any later amendments that may arise.
11.3. To secure payment of the secured money and performance of the Customer's obligations to Sleep Corp, the Customer charges all of its legal and equitable interest (including as beneficial owner, both present and future) of whatsoever nature held in any and all real property in favour of Sleep Corp.
11.4. The Customer acknowledges, agrees and grants to Sleep Corp, a Security Interest in:
(a) all Goods and any proceeds previously supplied by Sleep Corp to the Customer;
(b) all Goods and any proceeds that will be supplied in the future by Sleep Corp to the Customer; and
(c) all present and after acquired property (AllPAAP) of the Customer.
11.5. The above Security Interest secures all moneys owing by the Customer to Sleep Corp under these Terms or otherwise.
11.6. The Customer acknowledges and agrees the Security Interest is a continuing and subsisting interest in the Goods with priority over any registered or unregistered general (or other) Security Interest and any unsecured creditor.
11.7. The Customer acknowledges that the Security Interest over Goods or their proceeds arising under these Terms as and where applicable will be a purchase money Security Interest (PMSI) and deemed to be inventory to the extent that it secures payment of amounts owing in relation to the Goods.
11.8. The Customer will do everything reasonably required of it by Sleep Corp to enable Sleep Corp to register its Security Interests with the priority Sleep Corp requires and to maintain those registrations, including to correct a defect in a financing statement.
11.9. The Security Interests arising under this clause 11 will be perfected by Sleep Corp prior to the Customer obtaining possession on delivery of the Goods and the parties confirm they have not agreed that any Security Interest arising under this clause 12 attaches at any later time.
11.10. Sleep Corp does not need to give the Customer any notice under the PPSA (including notice of the financing statement or verification statement) unless required by the PPSA.
11.11. Any time the Customer makes a payment to Sleep Corp, irrespective of whether the payment is made under or in connection with this Agreement, Sleep Corp may apply that payment:
(a) first to satisfy and obligation that is not secured;
(b) second, to satisfy an obligation that is secured, but not by a PMSI;
(c) third, to satisfy an obligation that is secured by a PMSI for that obligation and using proceeds from the sale of the collateral subject to that PMSI; and
(d) fourth, to satisfy an obligation that is secured by a PMSI using funds or proceeds from any source.
11.12. For the avoidance of doubt and without prejudice to Sleep Corp’s rights under the PPSA, the Customer:
(a) may process the Goods supplied by Sleep Corp to the Customer and accession or commingle them with other property in which case Sleep Corp will have a Security Interest in any processed, accession and commingled Goods;
(b) may sell the Goods to its customers and if it does so, then Sleep Corp will have a Security Interest in the proceeds of sale; and
(c) will, where and when applicable and instructed by Sleep Corp, implement, maintain and comply in all material respects with, procedures for the perfection of Security Interests, including taking all steps under the PPSA to perfect continuously any such Security Interest.
11.13. The Customer agrees that sections 95, 120, 121(4), 125, 128, 129, 130, 132, 134, 135, 142, 143 and 157 of the PPSA will not apply to the enforcement of those Security Interests.
11.14. The Customer agrees not to disclose to an 'Interested person' (as defined in section 275(9) of the PPSA) or any other person, any Information of the kind described in section 275(1) of the PPSA including these Terms as the security agreement between the Customer and Sleep Corp.
11.15. The Customer will notify Sleep Corp immediately in writing if the Customer changes its name or address for service, contact details or if there are any changes required under the PPSA in respect of these Terms.
11.16. The Customer agrees to keep and maintain all Goods free of any charge, lien, or Security Interest except as created under these Terms and not otherwise to deal with Goods in a way that will, or may, prejudice the rights of Sleep Corp under these Terms or the PPSA.
11.17. The Customer’s right to possession of Goods still owned by Sleep Corp under these Terms will cease if:
(a) the Customer being an individual, commits an act of bankruptcy; or,
(b) the Customer being a corporation, circumstances arise where a receiver, manager, administrator or controller becomes entitled to take possession of any of the Customer’s assets, any proceedings are instituted for winding up, or the Customer enter into a deed or scheme of arrangement; or
(c) the Customer ceases or threatens to cease conducting business in the normal manner or apply for deregistration or receive a deregistration notice; or
(d) any cheque the Customer provides to Sleep Corp is dishonoured for payment; or
(e) the Customer fails to comply with any demand for payment issued by Sleep Corp; or
(f) the Customer is in breach any of these Terms or is in default of any other agreement with Sleep Corp.
11.18. The Customer agrees that Sleep Corp is entitled to exercise the rights contained in section 123 of the PPSA and enter any premises where the Goods supplied by Sleep Corp are still unpaid for, repossess and sell such Goods. The Customer agrees to indemnify and keep Sleep Corp indemnified in respect of any claims, actions and costs that may arise against Sleep Corp in relation to the removal, repossession and sale of the Goods pursuant to these Terms including any claims brought by third parties.
11.19. The Customer agrees that repossession and retention of the Goods pursuant to the PPSA will only satisfy so much of the monies which may become payable to Sleep Corp by the Customer, as is equivalent to Sleep Corp’s estimation of the market value of the Goods as it is at the date of repossession and the repossession and retention will immediately extinguish any rights for interest the Customer has in relation to the Goods.
11.20. Until any obligations owed to Sleep Corp by the Customer are discharged in full, the Customer must not give Sleep Corp a written demand or allow any other person to give Sleep Corp a written demand requiring Sleep Corp to register a financing change statement under the PPSA or enter into or allow any other person to enter into the PPSR, a financing change statement.
12. LIMITATION OF LIABILITY
12.1. Except as otherwise provided by law, Sleep Corp gives no warranty in connection with the sale or use of its Goods and will not be liable for any losses, costs, expenses, liabilities or damages (including loss of profits, all liabilities of the Customer to its customer or third persons and all other consequential damages) whether direct or indirect, and whether or not resulting from or contributed to by the default or negligence of Sleep Corp, its agents and employees resulting from the use or failure of the Good sold.
12.2. If the Customer is a consumer as defined in the ACL, then the following applies to the Goods:
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 compensation for any other reasonably foreseeable 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.
12.3. To the extent permitted by law, Sleep Corp’s liability for any breach of the Terms, and any condition or warranty implied by the provisions of the ACL, is limited to and will be completely discharged by any one of the following as determined by Sleep Corp in its absolute discretion:
(a) the replacement of the Goods or the supply of equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(d) the payment of the cost of having the Goods repaired.
12.4. Except as expressly provided in this clause and to the extent permitted by law, Sleep Corp is not liable to the Customer (and any third party) for:
(a) any claim made after use of the Goods;
(b) any claim made under, or in connection with, the Terms, in tort, under statute, in equity or otherwise in respect of any defects whatsoever in Goods for the loss or damage to person or property arising from or caused from such defects; and
(c) any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Goods where indirect, special or consequential loss or damage includes:
(i) any loss of income, profits or business; or
(ii) any loss of goodwill or reputation.
12.5. These Terms do not exclude or limit the application of any provision of law which cannot be so excluded or limited.
13. CONSUMER WARRANTY
13.1. The Customer acknowledges that each of the Goods will be packaged with a Consumer Warranty, which Sleep Corp provides to its end-consumers (and not to the Customer).
13.2. The Customer must not interfere, tamper with or otherwise remove the Consumer Warranty from any of the Goods.
13.3. The Customer agrees to provide Sleep Corp and the end-consumers of the Goods with all reasonable assistance and cooperation in relation to the Consumer Warranties supplied with the Goods.
13.4. The Customer acknowledges that the Consumer Warranties are not provided for the Customer’s benefit, but that the Customer may be entitled to rely on the statutory warranties or other rights as set out in the ACL.
The Customer will indemnify and keep indemnified and hold Sleep Corp harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by Sleep Corp, and from and against all actions, proceedings, claims or demands made against Sleep Corp, arising from one or more of the following:
(a) the Customer’s failure to comply with any laws, rules, standards, regulations or instructions applicable in relation to the Goods or the use of the Goods; and
(b) any negligence or breach of duty by the Customer and its employees, agents or contractors in relation to the Goods or the use of the Goods.
15.1. Either Party may terminate the Terms at any time with immediate effect by giving the other Party written notice of termination if:
(a) the other Party commits a material breach of the Terms which is not remediable; or
(b) the other Party, having breached a term of the Terms which is remediable and having been given a notice which specifies the breach that has occurred and requires rectification, fails to remedy the breach within the time specified.
15.2. Notwithstanding the provisions in clause 15.1, either party may terminate the Terms upon giving 30 days’ written notice of termination to the other.
16.1. This clause 16 applies if Sleep Corp is or becomes liable to pay GST in relation to any Supply under these Terms.
16.2. Unless expressly stated otherwise, all consideration to be provided under this contract is expressed as exclusive of GST.
16.3. In addition to such charges, the Customer must pay GST on the Taxable Supply to Sleep Corp of an amount equal to the GST exclusive consideration multiplied by the GST Rate.
16.4. GST will be payable by the Customer 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 Customer to Sleep Corp upon the same basis as the GST exclusive consideration is payable by the Customer under these Terms.
16.5. Sleep Corp will issue an invoice or invoices to the Customer for the amount of GST referrable to the Taxable Supply. Sleep Corp will include in any such invoice such particulars as are required by the GST in order that the Customer may obtain an input tax credit for the amount of GST payable on the Taxable Supply.
16.6. 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 the Customer will be determined by Sleep Corp and will be the same amount of GST that would be payable if the Taxable Supply were the only Supply made to the Customer.
16.7. If the Customer makes default in the payment on the due date of any amount payable under these Terms, then without prejudice to any other remedies of Sleep Corp, the Customer will pay Sleep Corp upon demand an amount equal to the amount of any damages or interest or additional GST that may become payable by Sleep Corp arising out of the default of the Customer.
17. PROVISIONS SEVERABLE
The Parties acknowledge and agree that if any provision or part of any provision of these Terms is unenforceable, it will be read down to be enforceable or, if it cannot be read down, the term will be severed from the Terms without affecting the enforceability of any part of such provision or any other provision.
18. GOVERNING LAW
The Terms are governed by the laws of Victoria, Australia.
19. APPLICABLE LEGISLATION
Notwithstanding anything contained in these Terms Sleep Corp will continue to be subject to any implied terms, guarantees, conditions or warranties imposed by the ACL or any other Commonwealth or State legislation in so far as they may be applicable or prevents the exclusion or modification of any such term, guarantee, condition or warranty.
20. FORCE MAJEURE
20.1. Sleep Corp will not be liable to the Customer for any breach or failure to perform its obligations under these Terms or any damage or loss to Goods resulting from causes beyond Sleep Corp’s control including but not limited to acts of God, fires, floods, adverse weather, strikes, lockouts, factory shutdowns or alterations, wars, riots, delay or shortage in transportation, or any other cause arising beyond the reasonable control of Sleep Corp, without the actual fault of Sleep Corp and without the actual fault of the agents or servants of Sleep Corp.
20.2. If any of the events contemplated above causes a delay of over five (5) Business Days in any obligation of Sleep Corp, then Sleep Corp may terminate the Terms by notice in writing. All costs, charges and expenses already incurred by Sleep Corp prior to the termination or arising in connection with the disposal or return of the Goods will be paid by the Customer.
21.1. All rights under these Terms are in addition to and do not abrogate, limit or reduce any other rights that Sleep Corp may have.
21.2. Sleep Corp is not bound by any agreement purporting to waive or vary these Terms unless such agreement is in writing and signed by a duly authorised representative.
21.3. A notice must be in writing and handed personally or sent by fax, email or prepaid mail to the addressee. Notices sent by mail are deemed to be received five (5) Business Days after posting. Notices sent by fax or email are deemed received on confirmation of transmission or otherwise in accordance with applicable Laws.
21.4. Where a person uses or authorises the use of his or her signature in whatever form, including approving an authorised person (including any employee) to apply his or her signature to a document, leaving an authorised person with his or her email address and password, that person agrees that they:
(a) have full knowledge of these Terms and all material circumstances related to or as stated in the relevant document;
(b) have provided the requisite authority in whatever form for the use of their signature for the express purpose of entering into legally binding arrangements;
(c) acknowledge that Sleep Corp has relied on this clause and any signature as being applied with full and complete authority (express, implied or ostensible) by person whose signature is used; and
(d) understand the nature and effect of these Terms.
21.5. The parties agree that these Terms can be produced and retained solely in an electronic form and that the provision of these Terms to the Customer constitutes the agreement between the parties. The rights and obligations of Sleep Corp and the Customer under these Terms will be binding on, and will be of benefit to, each of the party’s successors, permitted assigns, heirs, executors and administrators.
22. ENTIRE AGREEMENT
22.1. These Terms constitute the entire agreement (including security agreement for the purposes of the PPSA) between Sleep Corp and the Customer. All prior negotiations, representations, understandings, arrangements and agreements (whether oral and/or in writing), may be superseded by these Terms.
22.2. No amendment or variation will be of any force and effect unless in writing and signed by both Sleep Corp and the Customer.