Emma Sleep Terms and Conditions

1. Application of these Terms and Conditions

1.1 Welcome to www.emma-sleep.com.au (the 'Website'). The Website is owned and operated by Emma Sleep Pty Ltd (ABN 99 635 164 199) (‘Emma Sleep’). Thank you for using Emma Sleep products and services.

1.2 The Website provides you with an opportunity to browse and purchase various products that have been listed for sale through the Website (the 'Products') by giving you access to a registered customer account (the 'Purchase Services')

1.3 Your access to and use of our Website for the purchase of Products through the Purchase Services or any associated products and services is governed by these terms and conditions (the 'Terms').

1.4 Please read the Terms carefully as they govern your access to and use of our Website. By using the Website, you agree that you are bound by these Terms. If you do not agree with the Terms, you must refrain from the using the Website.

1.5 Please read our Privacy Policy which form a part of these Terms to understand our practices regarding personal information that we collect about you through the conduct of our business.

1.6 These Terms may be updated by us at any time, and by continuing to use the Website, you accept the Terms as they apply from time to time. If Emma Sleep updates the Terms, we will use reasonable endeavors to provide you with notice of these updates. Any changes to the Terms take immediate effect from the date of their publication on our Website.

2. Who May Use Our Website

2.1 As a condition of your use of our Website and access to our Purchase Services, you warrant that:

(a) you are a person authorised to enter into a legally binding contract if you are purchasing our Products;

(b) all relevant consents have been obtained to use our Products.

2.2 We retain the right in our sole discretion to deny anyone access to this Website or our Purchase Services, at any time and for any reason.

3. Registration and Acceptance

3.1 To obtain access to our Purchase Services, you must register for a member account through our Website (‘Customer Account’).

3.2 By registering for a Customer Account, you will be required to accept the Terms by clicking the 'register' button in the user interface as a condition of joining as a member (‘Customer’). By clicking the 'register' button you agree to all the terms and conditions listed on these Terms by Emma Sleep which gives notice to you through our user interface as follows:

By Registering, you agree that you've read and accepted our website Terms and Conditions and you consent to our Privacy Policy.

3.3 You acknowledge that Emma Sleep may reject your application for a Customer Account or cancel an existing Customer Account, for any reason, in our sole discretion.

3.4 You must not register for a Customer Account if you are not of legal age to form a binding contract with us or if you are a person barred from receiving the Purchase Services under Australian law or any other country in which you are a resident.

3.5 As part of the registration process for a Customer Account, you will be required to provide us with personal information including but not limited to:

(a) your name;

(b) email and mailing address;

(c) a geographical address;

(d) a telephone number;

(e) a preferred username and password (‘Login Details’); and

(f) and any other information indicated as required.

(‘Registration Data’)

Registration Data includes any content that you submit to Emma Sleep including your personal data that you may submit to us through the course of us supplying Purchase Services to you. Emma Sleep acknowledges that by you providing us with Registration Data that you are entrusting us to treat it appropriately and in accordance with our Privacy Policy.

3.6 After registration as a Customer, you may login into your Customer Account with your Login Details to gain access to the Purchase Services by placing an order (‘Order’) for our Products. A contract comes into existence for the supply of the Products once acceptance of the Order is made by Emma Sleep. Any Order not accepted by Emma Sleep will be regarded as having been refused by Emma Sleep.

3.7 You are solely responsible for the accuracy of the information that you submit in relation to each Order for the Products. You agree that Emma Sleep does not control, verify, or endorse that information.

3.8 You warrant that your Registration Data is accurate, correct and up to date. You must not submit any Registration Data that is false or inaccurate. If we detect suspicious or incomplete information, we reserve the right to cancel a Customer Account and any orders for our Products.

3.9 If your Registration Data changes, you must promptly update your Customer Account to reflect those changes. Emma Sleep may undertake additional inquiries to confirm the accuracy of your Registration Data but is not obliged to verify Registration Data. It is your responsibility to ensure that your Registration Data is accurate and that you keep your Registration Data up to date.

3.10 You retain ownership of your Registration Data. You grant Emma Sleep a worldwide, royalty free license to use, reproduce, modify, adapt, create derivate works, make publicly available your Registration Data for the limited purposes of providing our services to you and only as permitted by our Privacy Policy. This license also extends to any trusted third parties we work with to the extent necessary to provide our services to you.

3.11 You are responsible for keeping your Login Details secure. Members acknowledge that they are entirely responsible for all activities that occur under their Login Details. Emma Sleep will not be liable for any loss or damage from your failure to maintain the security of your Login Details. You agree to immediately notify Emma Sleep of any unauthorised use of your Login Details or any other breach of security known to you.

3.12 You acknowledge that Emma Sleep will use the email you provide as the primary method for communication and agree to receive e-newsletters from Emma Sleep which will always have an unsubscribe function listed at the foot of the e-newsletter.

3.13 You are responsible for maintaining, protecting and making backups of your Registration Data. To the extent permitted by applicable law, Emma Sleep will not be liable for any failure to store, or for loss or corruption to your Registration Data.

3.12 You acknowledge that Emma Sleep will use the email you provide as the primary method for communication and agree to receive e-newsletters from Emma Sleep which will always have an unsubscribe function listed at the foot of the e-newsletter.

3.13 You are responsible for maintaining, protecting and making backups of your Registration Data. To the extent permitted by applicable law, Emma Sleep will not be liable for any failure to store, or for loss or corruption to your Registration Data.

3.14 Emma Sleep may without notice terminate your Customer Account and your access to the Purchase Services including any Registration Data in it or associated with it:

(a) at any time for a breach of these Terms in the sole discretion of Emma Sleep, or

(b) if there is no account activity associated with your Customer Account for over 12 months.

3.15 We may from time to time by notice on our Website vary our catalogue of available Products, the prices for our Products and offer additional products or services.

4. How the Contract is Formed

4.1 Our offer of Products on the Website constitutes an invitation to buy our Products. This means, it is not a binding offer to sell. You may submit your offer to buy via our order system integrated into our Website.

4.2 When purchasing Products via the Website, the Products you intend to purchase are placed in our virtual shopping cart (‘Shopping Cart’). You can view and access your Shopping Cart at any time and on each page of the Website and you can also make changes to your existing Shopping Cart. Once you have decided to purchase a Product in your Shopping Cart, you can enter your personal details, select the method of payment and select the shipping conditions. Prior to purchase, you can check, change, or cancel the purchase in its entirety. By clicking the “Buy now” button you make an offer to buy the Products from Emma Sleep.

4.3 You may return to the Website before placing your Order by clicking on the “back” button found on your internet browser, after checking your information and/or close your Internet browser to cancel the order process.

4.4 Our acceptance of your Order will take place when we email you notification of our acceptance of your Order. At this point, a contract will come into existence between you and Emma Sleep.

4.5 If we are unable to accept your offer, we will inform you of this and will not charge you for the Products. We may not be able to accept your order:

(a) because a Product is out of stock;

(b) because of unexpected limits in our resources which could not be reasonably planned for;

(c) because we have identified an error in the price or description of the Products; or

(d) because we are unable to meet a delivery deadline which you have specified.

4.6 It is always possible that, despite our best efforts, some of the Products we sell may be incorrectly priced. We will normally check prices before accepting your Order so that, where the Product’s correct price at your Order date is less than our stated price at your Order date, we will charge the lower amount. If the Product’s correct price at your date is higher than the price stated to you, we will contact you for your instructions before we accept your Order. If we accept and process your Order where a pricing error is obvious and unmistakable and could reasonably have been recognised by you as a mispricing, we may end the contract, refund you any sums you have paid and require the return of any goods provided to you.

5. Prices and Shipping Costs

5.1 Prices include GST unless otherwise stated on our Website. The prices stated on the order page when you placed your Order are the final prices. They include all price components including all applicable taxes.

5.2 We ship only to Australia, directly to your front door using our courier. You bear no responsibility for any shipping costs and returns in Australia given that your address lies within our serviced delivery areas.

6. Delivery

6.1 We will deliver the Products to you within 30 days after the day on which we accept your Order.

6.2 We are not responsible for delays outside of our control. If the delivery of the Product is delayed by an event outside our control, then we will contact you as soon as possible to let you know. We will take steps to minimize the effect of the delay. Provided we do this, we will not be liable for delays caused by the event, but if there is a risk of substantial delay you may contact us to end the contract and receive a refund for any Products you have paid for but not received.

6.3 In the case of the non-availability of goods, your advance payment, if any paid, will be refunded without delay.

6.4 The Products will be your responsibility and risk in the Products will pass to you from the time we deliver the Products to the delivery address provided to us.

6.5 If, after failed delivery to you, you do not re-arrange delivery, we will contact you for further instructions. We may charge you for storage costs and any further delivery costs. If, despite our reasonable efforts, we are unable to contact you to re-arrange delivery or collection, we may end the contract and claim for any loss caused by your refusal or non-availability to take delivery. If you are in default of acceptance, we reserve the right to sell the Products to a third-party or to hold you liable for any loss.

7. Our Products

Products may vary slightly from their images on our Website. The images of the Products on our Website are for illustrative purposes only.

8. Title and Risk

8.1 We retain ownership of the purchased item until the invoice has been paid in full by you.

8.2 If you are in arrears for any payment obligations, all outstanding sums are immediately due.

8.3 The risk in the Products will pass from Emma Sleep to you at the time of delivery of the Products to the point of delivery in the Order. From that time on, you assume all risk of loss and damage to the Products including without limitation all loss or damage in the course of unloading the Products following delivery.

9. Terms of Payment and Delivery

9.1.You agree that you will receive invoices and credit notes exclusively in electronic form.

9.2 We offer the following methods of payment:

(a) credit and debit card (MasterCard and Visa Card);

For every Order, we reserve the right not to offer certain payment methods based on the delivery address, a deviation from the delivery and invoice address, the value of the goods in the Order or due to other objective criteria. We are entitled to refer you to other payment methods for each Order.

9.3 In the case of payment in advance we will provide you with our bank details in the Order confirmation. The invoice amount must be transferred to our account within 10 days.

9.4 Consumers are asked to check the Products immediately for completeness, obvious defects and transport damage and to notify complaints to us at Contact us and the freight forwarder as soon as possible. Your warranty claims remain unaffected.

10. Returns and Refunds Policy

10.1 Returns and refunds will be processed in accordance with the Australian Consumer Law.

10.2 It is your responsibility to inspect your Products on delivery. Should your Products be defective upon receipt, not match the description or are not fit for the purpose specified, Emma Sleep will offer a full refund, replacement of the Products in accordance with its obligations under the Australian Consumer Law.

10.3 For defective merchandise, you must contact us within 100 calendar days of delivery to report any discrepancies or faults to make a claim.

10.4 To start the return process, email our customer service team at [email protected] and we will arrange for a pickup at no cost to you as long as your address lies within the range of our delivery coverage area. After we initiate a return for you, our collection company will contact you via text within 4-7 business days to organise a suitable date for collection.

10.5 After the return has arrived by pickup, we will issue you a refund. A refund may take up to 2 weeks to process depending on the payment method you used.

10.6 Collection addresses with access restrictions or that fall outside of metro cities may make it difficult for our partner charities to collect your mattress. In these instances, our customer service team will work with you to help facilitate your return. After all options have been exhausted, we might ask for your help to deliver to your nearest mattress drop off location or warehouse. Once you send in your donation receipt or we receive confirmation of receipt, we will issue your full refund.

10.7 To check the status of your refund please contact us at [email protected].

10.8 Products that have been modified, excessively handled, or are otherwise placed in a condition unfit for use will not be accepted as a return. No credit will be allowed for Products that have been used, modified or damaged or used in a manner or purpose for which the Product was not intended.

10.9 Products must be in donable condition to be eligible for return. Any mattress that has mould, dirt, stains, smells, or bed bug infestations are no longer eligible for a mattress return nor replacement. Any bed that has been altered with varnish, paint, carvings, or any other modifications are no longer eligible for a bed return nor replacement.

11. Service Obligations

11.1 If you end this contract in accordance with the 100-night trial we will pick up the mattress from the property where it is located for free, provided the collection address lies within our serviced delivery areas. Please email us at [email protected] to arrange collection.

11.2 Emma Sleep will supply the Purchase Services in a good, proper and professional manner and in accordance with relevant Australian industry standards, best practice and guidelines.

12. Customer Obligations

As a Customer, you agree that you will comply with the following:

(a) use the Purchase Services only for purposes that are permitted by the Terms;

(b) that you will have the sole responsibility for protecting the confidentiality of your Login Details and/or email address;

(c) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Emma Sleep of any unauthorised use of your Login Details or email address or any breach of security of which you have become aware;

(d) access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of Emma Sleep providing the Purchase Services.

13. Contract language and Storage of the Contract Text

This contract is offered exclusively in English. The contract text (order data and general terms and conditions) is filed and stored by us. The storage is, however, only temporary and is not accessible to you. If you wish to file and store these terms and conditions you will have to do so separately.

14. General Disclaimer

14.1 You acknowledge that Emma Sleep does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for pursuant to these Terms.

14.2 Emma Sleep will make every effort to ensure a Product is accurately depicted on the Website, however, you acknowledge that colours and packaging may differ from what is displayed on the Website.

14.3 Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.

14.4 Subject to this clause, and to the extent permitted by law:

(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and

(b) Emma Sleep will not be liable for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Purchase Services or these Terms (including as a result of not being able to use the Purchase Services or the late supply of the Purchase Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

14.5 None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Emma Sleep (including any third party where the delivery services are made available to you) make any express or implied representation or warranty about the content on the Website or any products or services (including the Products or Purchase Services of Emma Sleep) except as provided in these Terms and on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:

(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;

(b) the accuracy, suitability or currency of any information on the Website, the Purchase Service, or any of its content related products (including third party material and advertisements on the Website);

(c) costs incurred as a result of you using the Website, the Purchase Services or any of the Products;

(d) the Content or operation in respect to links which are provided for the User's convenience; or

(e) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website.

15. Venue and Jurisdiction

The Purchase Services offered by Emma Sleep is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland, Australia.

16. Limitation of Liability

16.1 Emma Sleep will not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profit, goodwill, use, damage to property, data or other intangible losses (even if Emma Sleep has been advised of the possibility of such damages).

16.2 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal rights in relation to the Products.

16.3 We are not liable for business losses. We only supply the Products for domestic and private use. If you use the Products for any commercial, business or re-sale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.

16.4 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations that is caused by events outside our reasonable control (“Force Majeure Event”). A Force Majeure Event includes any act, event, non-happening, omission accident or Act of God beyond our reasonable control. Our performance of the Services is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Terms may be performed despite the Force Majeure Event.

17. Copyright and Intellectual Property

17.1 The intellectual property rights in or related to the Products or any of its documentation vest in Emma Sleep or Emma Sleep has the right to use the intellectual property rights.

17.2 The Website, the Purchase Services and all of the related products of Emma Sleep are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the site content and compilation of the website (including text, graphics, logos, button icons, video images, audio clips and software) (the 'Content') are owned or controlled by Emma Sleep or its contributors.

17.3 You may not, without the prior written permission of Emma Sleep and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third-party contact for any purpose. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.

17.4 Emma Sleep retains all rights, title and interest in and to the Website and all related Content. Nothing you do on or in relation to the Website will transfer to you:

(a) the business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright of Emma Sleep;

(b) the right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or

(c) a system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a system or process).

The Website or any part of it (including, without limitation, any content or images) must not be copied, reproduced, adapted, publicly displayed, duplicated, translated or distributed in any way (including mirroring) to any other device, server, site or other medium for publication or distribution, without our express prior written consent.

17.5 The intellectual property in our Products including any trade marks, service marks, trade names and any other proprietary designations are owned, registered or licensed by us. Any other trade marks, service marks, logos, trade names and any other proprietary designations are the trade marks or property of the respective parties. You must not use any of our trade marks:

(a) in or as the whole or part of your own trade marks;

(a) in connection with activities, products or services which are not ours; or

(b) in a manner which may be confusing, misleading or deceptive.

17.6 Your obligations under this clause survive termination or expiry of these Terms.

18. Privacy Policy

18.1 In these Terms, personal information has the meaning as defined in the Privacy Laws. Privacy Laws means the Privacy Act 1988 (Cth). Please refer to our Privacy Policy which is made a part of these Terms.

18.2 If you are a non-Australian user of the Website, you agree that your personal information is stored in our servers in Australia and is subject to the applicable Australian Privacy Laws. You accept that by providing us your personal information, we will deal with such personal information as set out in our Privacy Policy.

19. Transfer of Risk

The risk of accidental loss and accidental deterioration of the purchased goods shall be transferred to you where you are not a consumer as soon as we have handed the goods to the freight forwarder, freight carrier or other person or institution who is otherwise responsible for the shipment.

20. Service Warranty

20.1 The warranty period is ten years from delivery of the goods. This does not apply to damages resulting from injury to life, body or health, which is attributable to the seller and not to gross negligence or willful deliberate damage or misrepresentation by us.

20.2 Only our details and the Product description of the Products are deemed as agreed upon; but no other advertising, public promises and statements by us.

20.3 If you are not a consumer, you are obliged to examine the goods immediately and perform due diligence on quality and quantity deviations and to notify obvious defects within 7 days from receipt of the goods to us in writing. The same applies to any defects you find later.

20.4 The warranty provided under this clause will not apply where you are not acting as a consumer and have not examined the Products and notified us of any defects.

20.5 We will fulfill the warranty in the case of defective goods at our option by replacement delivery. If we fail to rectify the fault two times, you may demand a reduction or withdraw from the contract.

20.6 In the case of subsequent improvement, the buyer shall bear the increased costs resulting from the fact that the goods have been transported to a place other than the place of performance, provided that the shipment does not correspond to the intended use of the goods.

21. 10 Year Warranty

This warranty is applicable to Emma mattresses that have been purchased on www.emma-sleep.com.au or through one of our licensed partners and with delivery to an Australian address. In order to be eligible for a refund or exchange, the mattress needs to be treated with proper care and in accordance with our advice.

21.1 We guarantee our new mattress purchases against manufacturing defects for a period of 10 years from the date of delivery.

21.2 Our 10-year warranty covers your mattress against the following faults:

(a) Any permanent sags or dips that occur within your mattress despite correct usage. The indentation should be greater than 2.5cm and visible to the naked eye. This does not include standard softening of the mattress after extensive use and is only deemed faulty if a permanent indent is apparent.

(b) Any cracks or hollows in the foam of your mattress. These need to be reported within the first 6 months of receiving your mattress to be identified as a manufacturing fault and the onus of checking the product is with the purchaser. After this point, we are not be able to identify if this was a production error or created through improper use, which will invalidate the 10-year warranty for this type of damage.

(c) The mattress not inflating to the correct size once removed from its vacuum packaging. We work to the industry standard of a leeway of 2cm across the length, width and depth of the mattress. If the mattress has had a reasonable time to inflate (two weeks) and is not within these dimensions you will be entitled to an exchange of the mattress.

(d) Cover damage, including damaged zip or faulty stitching resulting from improper manufacturing. If just the cover is damaged, we reserve the right to send a brand-new replacement cover, rather than exchanging the mattress core which remains undamaged. The warranty does not extend to general wear and tear of the cover over its period of use.

21.3 If your mattress develops any of the faults outlined above within its 10-year warranty, we require photographic evidence depicting the fault in question. This needs to be sent to our customer service team who will be able to assist in how the fault can be demonstrated through photographic evidence. If there is not sufficient proof that any of the criteria above has been met, we will not be able to offer an exchange of the mattress in question.

21.4 In the event of the mattress being proved as defective, a replacement mattress will be shipped to you in accordance with our current delivery time frames. The faulty mattress will also be collected from you free of charge.

21.5 The replacement of the faulty mattress does not reset your warranty period and the 10-year warranty will cover from the original purchase date. For example, if the mattress should develop a fault after 5 years of use, the new mattress will be covered for the remaining 5 years of your 10-year warranty.

21.6 Should the mattress develop a fault within the warranty, we will exchange the mattress and a refund will not be possible. However, should you go through this process 3 times, with two exchanged mattresses also developing faults within the 10-year period, you will then be entitled to a full refund of the purchase price upon its collection.

21.8 Any mattress purchased through an approved seller will be valid under our 10-year warranty with the same stipulations as above.

21.9 This warranty is available only to you, the original buyer of the mattress, and may not be transferred to any other person. If you have purchased the mattress through an unofficial source, we would not be able to assist with any concerns regarding the warranty and recommend that you contact the seller for further assistance. Our mattresses are officially sold through our own website domain.

21.10 We will need your order details in order to check the legitimacy of the order and process the exchange accordingly. Failure to provide any relevant details, combined with the failure to locate the order on our system, will result in the assumption that this was bought from an unverified third party and as such we are not responsible for the exchange of the item.

21.11 The warranty does not cover or extend to:

  • Normal wear and tear or any condition resulting from misuse or abuse of the product.
  • Standard softening of the mattress foam resulting from regular use.
  • Comfort preference after the 100 night trial, including preferences of firmness and/or heat retention levels.
  • Damage caused by mould, odour, mildew, discolouration caused by abnormal care such as liquid spillage, improper ventilation, or excessive humidity.
  • Mattresses that have been damaged or soiled due to improper use.
  • Mattresses that have been transported outside of Australia or our serviced delivery areas.

21.12 The Emma Bed Frame has a warranty of 5 years following delivery.

21.13 The Emma Bed Frame is ensured to be in its best quality. If the bed sold to you by Emma and its authorized reseller is found to be defective due to faulty workmanship or materials, you will be entitled for a replacement of the identified parts. The warranty only applies if you have found defects in material and workmanship despite appropriate use and handling.

21.14 The warranty does not cover or extend to:

  • Normal wear and tear.
  • Abuse, misuse and/ or non-standard use.
  • Act of God or other natural forces.
  • Lack of proper maintenance in accordance with the suggested care instructions.
  • Unauthorized repair or replacement of defective parts.
  • Replacement of any non-defective pieces (if one component is defective, then we will only replace that item and not the entire product).
  • If the product was bought from unauthorized reseller.

21.15 If you see that you are qualified for the warranty:

  • Contact our Support Team at [email protected] and provide your order number.
  • Provide a description and evidence of the defect such as photographs of the parts with the defect.

22. Extended Retention of Title

22.1 Ownership and title in the Products shall not pass to the customer until the customer has paid for the Products in full in accordance with these Terms.

22.2 Notwithstanding that risk in the Products shall pass to the customer as provided in paragraph 17, title to the Products shall remain with us until all monies owing by the customer to us have been paid in full.

22.3 Where Products are supplied by us to the customer without payment in full of all moneys payable in respect of the Products provided by us, the customer:

(a) is a bailee of the Products until property in them passes to the customer;

(b) irrevocably appoints us as its attorney to do all acts and things necessary to ensure the retention of title to Products including the registration of any security interest in favour of us with respect to the Products under applicable law;

(c) must be able upon demand by us to separate and identify as belonging to us the Products supplied by us from other products which are held by the customer;

(d) must not allow any person to have or acquire any security interest in the Products;

(e) agrees that we may repossess the Products if payment is not made within 14 days (or such longer time as we may, in our complete discretion, approve in writing) of the supply of the Products; and

(f) grants an irrevocable licence to us or our agent to enter the customers premises or premises under its control in order to recover possession of Products pursuant to this paragraph.

The corresponding security rights in the Products are transferable to third parties. Prior to the transfer of ownership of the reserved Products, a buyer is not entitled to pledge the Products or to surrender them for security.

22.4 If the customer is not a consumer, notwithstanding paragraph 20 (3) the customer may transfer, sell or dispose of Products to a third party in the ordinary course of business.

22.5 We retain ownership of the Products where you are not a consumer until the complete settlement of all claims arising from a current business relationship. The corresponding security rights in the Products are transferable to third parties. Prior to the transfer of ownership of the reserved Products, a buyer is not entitled to pledge the Products or to surrender them for security.

22.6 If you are not a consumer, you are entitled to resell the Products in the ordinary course of business. In this case, the purchaser must assign all claims arising from the resale to the seller in the amount of the invoice amount. The seller accepts the assignment amount. The purchaser is also authorized to collect the debt. The seller reserves the right to collect the claim itself if the purchaser does not properly fulfill its payment obligations. In case of connection and mixing of the reserved Products, the seller acquires co-ownership of the new item in the ratio of the invoice value of the reserved Products to the other processed items at the time of the processing. The seller undertakes to release the collateral which is due to the seller at the buyer’s request insofar as the value of the collateral exceeds the claim to be secured by more than 10%. The choice of securities to be released is incumbent upon the seller.

23. Discounts and Promotions

23.1 Advertised offers and promotions are subject to the following terms and conditions, in addition to any conditions specified upon entering the relevant code at checkout:

(a) promotions are only applicable to Products specified in the offer;

(b) any specified discounts and final sale promotions may not be eligible for any other offers;

(c) you must be logged in to your Customer Account to use a promotion code;

(d) we take no responsibility for promotion codes that were not applied during the checkout process and application of discounts after an Order has been placed is left to the discretion of Emma Sleep;

(e) Products marked ‘Final Sale’, or purchased from a promotion that specified the Products as ‘Final Sale’, cannot be returned (in the absence of any defect or fault and subject to any law to the contrary); and

(f) we reserve the right to end any promotions, sales or discount offers at any time.

23.2 Please refer to our Website for specific terms and conditions, eligibility for, and rules that apply to our special offer discounts and promotions.

24. Customer Service

Our customer service is available for questions and complaints on weekdays from 9:00 am to 5:00 pm AEDT.

Email: [email protected]

25. Other Important Terms

25.1 If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.

25.2 Nobody else has any rights under this contract. This contract is between you and us. No other person shall have any rights to enforce any of its terms.

25.3 If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

26. Emma Sleep Hotel Terms and Conditions

Emma Sleep Hotel Competition:

This competition (the “Competition”) is operated and promoted by Emma – The Sleep Company (Emma Sleep Pty Ltd.) (the “Promoter”). [BD1]The competition will run from 09:00 am AEST 10th May 2023 (the “Opening Date”) to 11:59pm AEST 28th May 2023 (the “Closing Date”) (together the “Competition Period”).

1. Competition and Data Protection: By entering the Competition, you (as the “Entrant”) agree that your full name, email address and mobile number (if provided), and city will be used by Emma – The Sleep Company and Neon Black for the purpose of fulfilling this Competition and for the purpose of receiving marketing contact if you the Entrant have selected to opt in.

Emma – The Sleep Company may request further personal information to the extent necessary to fulfil the prize. You agree that your personal data will be used by Emma - The Sleep Company and Neon Black to complete the Competition. Any personal data collected by Emma – The Sleep Company and Neon Black will be processed in accordance with Emma – The Sleep Company’s privacy policy.

Your email address and any other personal details that you the Entrant provide for this Competition will only be used and processed by Emma – The Sleep Company and Neon Black for the purpose of operating and managing this Competition and for the purpose of marketing contact. Emma – The Sleep Company and Neon Black will process your personal information in accordance with its privacy policy.

Any questions, comments or complaints regarding the Competition must be directed to [email protected]

2. How to Enter the Competition: To enter the Competition, you the Entrant must:

a. complete all the questions on the entry form;

b. be willing to share your full name and email address for entry into the Competition;

c. answer the question “Why do you deserve a stay at the Sleep Hotel?”;

d. answer the question “What is your favourite sleeping position and why?”;

e. answer the question “What is your biggest issue when trying to fall asleep?”;

f. be available to travel to Sydney and stay overnight for two (2) nights from 24th to 26th June 2023.

3. Eligibility: To be eligible to enter the Competition, you the Entrant must:

a. be eighteen (18) years or over; and

b. be an Australian resident.

In entering the competition, you the Entrant confirm that you are eligible to do so and eligible to claim the Prize. Emma – The Sleep Company may require you, the Entrant, to provide proof that you are indeed eligible to enter the competition.

The following individuals are excluded from the competition:

1. employees of Emma – The Sleep Company;

2. employees of agents or suppliers of Emma – The Sleep Company who are professionally connected with the competition or its administration; or

members of the immediate families or households of (a) and (b) above.

Emma – The Sleep Company reserves all rights to disqualify you the Entrant if your conduct is contrary to the spirit or intention of the Competition.

Emma – The Sleep Company will not accept competition entries that:

1. are automatically generated by computer;

2. are completed in bulk;

3. are entered the competition multiple times;

4. contain any inappropriate content, condone or encourage violent or anti-social behaviour, or cause offence;

5. are illegible, indecipherable, unintelligible, have been altered, reconstructed, forged or tampered with; or

6. are incomplete.

Emma – The Sleep Company shall have the right, in its sole discretion, to exclude anyone from the Competition who acts in such a manner.

4. How the Competition Works: The Competition closes on the Competition End Date. Any entries made in accordance with the Competition must be submitted during the Competition Period. Any entries made after the Competition End Date shall be deemed invalid and therefore not considered.

No purchase necessary.

Only one (1) entry per person.

By entering the Competition, you the Entrant are agreeing to be bound by these Terms and Conditions.

5. Prizes: The one (1) winning entrant of the competition (the “Winner”) will receive (the “Prize”):

1. two (2) night’s stay at the Emma Sleep Hotel at The Strand Hotel in Darlinghurst for the Winner and one (1) guest;

2. a pillow pairing session on check in, with the Winner taking home a single pillow of their choice upon check out (not including linen);

3. a voucher valued up to $200 to be used at the Hotel’s rooftop bar;

4. a 1:1 sleep session with a sleep expert from Emma – The Sleep Company’s global team;

5. an in-room sleep pack for the Winner with items that can be taken home upon check out.

The Prize is not transferable or negotiable and has no cash alternative.

The Prize must be claimed on the specific days as communicated by Emma – The Sleep Company (24th to 26th June 2023 – specific date to be confirmed and may be changed subject to unforeseen circumstances that prevent the Prize going ahead).

6. How a Winner is Selected:Game of skill. Chance plays no part in determining the Winner. Judging will take place by the Promoter at 10.00am AEDT. The Winner will be the up to ten (10) Entrants who have most creatively answered the promotional question. The Promoter reserves the right to select additional reserve entries that it determines to be the next best, and record them in order of merit, in case of an invalid entry or ineligible Entrant.

Emma – The Sleep Company’s decision is final. The Winner will be contacted by email by Monday 5th June 2023 (“Winner Announcement Date”) by Neon Black.

All reasonable efforts will be made to contact the Winner first by email and then by phone (if number shared) but if the Prize is declined or unclaimed by the Winner, or if the Winner cannot be contacted, for whatever reason, within three (3) working days of the Winner Announcement Date, a replacement Winner will be selected based on the same random selection and will be notified on the same terms. The original Winner and their entry will then be forfeited. A Prize may not be claimed by a third party on the Entrant’s behalf.

Emma – The Sleep Company must either publish or make available information that indicates that a valid competition took place. To comply with this obligation Emma – The Sleep Company will send the surname of the Winner and their home city, to anyone who emails [email protected] within one (1) month after the Competition End Date. If you object to any or all of your surname and home city being published or made available, please contact Emma – The Sleep Company at [email protected]. In such circumstances, Emma – The Sleep Company must still provide the information and winning entry to the Advertising Standards Authority on request.

7. Promises: When submitting a Competition entry you, the Entrant, promise that:

a. you will not upload, include any content that violates, or encourages any conduct that violates any law or regulation (including but not limited to any intellectual property rights), and any entry including any such material, will be invalid at Emma – The Sleep Company’s sole discretion. Emma – The Sleep Company excludes any and all liability in respect of any such material; and

b. you will not act in any way which is rude or violent towards Emma - The Sleep Company’s staff at entry stage or during the duration of the Prize stay. Emma – The Sleep Company shall have the right, in its sole discretion, to exclude anyone from the Competition who acts in such a manner.

8. Intellectual Property: All competition entries will become the property of Emma – The Sleep Company on receipt. By submitting your competition entry and any accompanying material, you the Entrant agree to:

a. allow your name to be used in any communications to promote Emma – The Sleep Company; and

b. assign to Emma – The Sleep Company all your intellectual property rights with full title guarantee; and

c. waive all moral rights in and to your competition entry and otherwise arising in connection with your entry to which you the Entrant may now or at any time in the future be entitled under the Copyright, Designs and Patents Act 1988 as amended from time to time and under all similar legislation from time to time in force anywhere in the world.

9. Limitation of Liability: Emma – The Sleep Company will not accept responsibility for competition entries that are lost, delayed in transit regardless of cause, including but not limited to, equipment failure, technical malfunction, network and computer hardware or software failure.

To the fullest extent permitted by law, Emma – The Sleep Company will not under any circumstances be responsible or liable for any loss, damage, personal injury or death occurring as a result of taking up the Prize except where it is caused by Emma – The Sleep Company’s negligence. The Entrant’s statutory rights are not affected.

10. Emma – The Sleep Company’s rights: Emma – The Sleep Company reserves the right at any time to cancel, modify or supersede the Competition if, acting reasonably, the Competition cannot be conducted as specified.

Emma – The Sleep Company reserves the right to substitute the Prize for another Prize of equal value, in the event that circumstances beyond its control make this unavoidable.

If there is any reason to believe that there has been a breach of these Terms and Conditions, Emma – The Sleep Company may, at its sole discretion, reserve the right to exclude you from participating in the competition.

11. Governing Law: These Terms and Conditions shall be governed by Australian law.[BD2]

[BD1]Does this need to be an Australian or Manila address/entity?

[BD2]Please advise on the relevant AU body

Emma Sleep Pty Ltd. All Rights Reserved.

Terms and Conditions last updated 8 April 2020.