In these conditions (“Conditions”):
“Amount Payable” means the Price owing by the Purchaser to Ekornes which is required to be paid on or before the due date shown on the Invoice.
“Amount Payable” means the Price owing by the Purchaser to Ekornes which is required to be paid on or before the due date shown on the Invoice.
“Consequential Loss” includes indirect, incidental, consequential or economic loss or damage (including but not limited to loss of profit, revenue, goodwill bargain, anticipated savings or data) regardless of foreseeability and even if advised of the possibility, together with any expenses incurred in connection with, arising from or incurred in mitigation or attempted mitigation of such loss or damage.
“Contract” means each agreement for the sale and purchase of Goods between Ekornes and the Purchaser, including the Order, the Order Confirmation, the Invoice, and incorporating these Conditions.
“Ekornes” means Ekornes Pty Limited (ACN 139 174 342) and includes Ekornes’ officers, employees and agents and, in clause 3.3, also includes its representatives and nominees.
“Force Majeure event” means an act of God, war or threat of war, actual or threatened terrorist activity, civil disobedience, fire, epidemic, disaster, explosion, breakdown in machinery, strike and other work stoppage or arising out of any other unexpected or exceptional cause outside Ekornes’ control.
“Goods” means any goods agreed in the Contract to be supplied to the Purchaser by Ekornes (including any part or parts of them), including those identified as Stressless.
“Insolvency Event” means in respect of a party, any one or more of the following events or circumstances:
(a) a winding up, dissolution, liquidation, provisional liquidation, administration, bankruptcy or becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001 (Cth));
(b) having a Controller (as defined in section 9 of the Corporations Act 2001 (Cth)) or analogous person appointed to it or any of its property;
(c) being unable to pay any of its debts as and when due and payable or being deemed to be insolvent under any provision of the Corporations Act or any other law;
(d) seeking protection from its creditors under any law, entering into a compromise, moratorium, assignment, composition or arrangement with, or for the benefit of, any of its members or creditors;
(e) any analogous event or circumstance to those described in paragraphs (a) to (d) under any law; or
(f) taking any step or being the subject of any action that is preparatory to, or reasonably likely to result in, any of the above.
“Invoice” means an invoice issued by Ekornes in respect of Goods supplied to the Purchaser in accordance with these Conditions.
“Order” means a written purchase order for Goods submitted by the Purchaser to Ekornes.
“Order Confirmation” means an Order which is confirmed by Ekornes to the Purchaser, by means of stamping confirmation details on the Order and sending it back to the Purchaser.
““Purchaser” means the consumer (as defined in the Competition and Consumer Act 2010 (Cth)) named as such on an Order.
“Stressless” means the Stressless recliners and sofas and related products identified with the Stressless branding (`Stressless’ being a trademark owned by the Ekornes group of companies, based in Norway).
“Warranty Period” means 12 months from the date of delivery of the Goods to the Purchaser, subject to (where applicable) the `10 year guarantee on internal mechanism’ on Stressless recliners as provided for in the booklet so entitled (and as amended from time to time).
Words importing the singular number shall include the plural and vice-versa.
Headings do not affect the interpretation of these Conditions.
1. TERMS OF SALE
1.1 The Goods are sold by Ekornes on these conditions of sale, to the exclusion of all other terms and conditions (including any terms or conditions which the Purchaser purports to apply under any purchase order, specification or other document).
1.2 These Conditions, the Order, the Order Confirmation and the Invoice set out the entirety of the terms of the Contract. The Purchaser does not, may not and represents to Ekornes that it will not, rely on any term, representation or warranty not set out in these Conditions, the Order, the Order Confirmation or the Invoice.
1.3 Each Order by the Purchaser shall be deemed to be an offer by the Purchaser to purchase Goods subject to these Conditions.
1.4 No Order placed by the Purchaser shall be deemed to be accepted by Ekornes until an Order Confirmation is issued by Ekornes. Ekornes reserves the right to accept or reject an Order at its sole discretion.
1.5 The Purchaser agrees that it must check the Order Confirmation immediately upon receipt and notify Ekornes of any errors.
1.6 The Purchaser may not at any time cancel an Order or the Contract.
Assembly of the Goods will depend upon whether the Goods are being delivered to the Purchaser or if the Purchaser has elected to collect the Goods from Ekornes. In most cases the Goods will be preassembled, unless the Goods are significantly large enough to render preassembly impractical. The Purchaser must discuss assembly arrangements with Ekornes.
2. PRICE AND PAYMENT
2.1 Unless otherwise stated, all prices are inclusive of Goods and Services Tax (GST) which will be added to all prices.
2.2 All Amounts Payable to Ekornes must be made in full, without deduction for any reason.
3. PROPERTY & RISK
3.1 Title to all Goods purchased by the Purchaser is retained by Ekornes until the Price is paid in full by the Purchaser and the Purchaser has taken physical possession of the Goods.
3.2 Until property in the Goods passes to the Purchaser:
3.2.1 the Purchaser must not:
3.2.2 sell or transfer; or mortgage, charge or otherwise encumber; the Goods.
3.3 All Goods purchased by the Purchaser are at the risk of the Purchaser from the time the Goods are delivered to the Purchaser. Delivery is deemed to occur when the Goods are delivered to the purchaser, whether Ekornes arranges, procures or effects the transport of the Goods at the request of the Purchaser or otherwise.
4.1 The quantity and description of the Goods shall be as set out in the Order Confirmation.
4.2 All samples, drawings, descriptive matter, specifications and advertising issued by Ekornes and any descriptions or illustrations contained in Ekornes’ catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the goods described in them. They shall not form part of the Contract and this is not a sale by sample.
5. DELIVERY AND ACCEPTANCE
5.1 Unless otherwise agreed in writing by Ekornes, delivery of the Goods (which shall be organised by Ekornes) shall take place at a location to be specified in the Order.
5.2 Any delivery time stated on the Order or Order Confirmation is subject to alteration by Ekornes. Ekornes will use its best endeavours to deliver Goods by any delivery time stated on the Order or Order Confirmation but shall have no liability (including for Consequential Loss) for any failure to deliver Goods by a stated time. If no delivery time is specified, delivery shall be within a reasonable time of the Order Confirmation having been provided to the Purchaser.
5.3 Delivery is subject to Ekornes not being delayed by inaccurate, inadequate or incomplete instructions or information provided by or required from the Purchaser.
5.4 The Purchaser must inspect the Goods immediately on delivery and within 48 hours of delivery (“Inspection Period") notify Ekornes of any defect in the Goods which is apparent upon inspection at the time of delivery.
5.5 Subject to clause 8, if the Purchaser has not notified Ekornes within the Inspection Period that Goods delivered were not as ordered by the Purchaser, or that Goods were delivered in a damaged state, then the Goods will be deemed to have been delivered in good condition and as ordered by the Purchaser.
5.6 If Ekornes is delayed in or prevented from delivering the Goods due to a Force Majeure event:
(a) Ekornes’ obligation to supply the Goods is suspended for the period of the Force Majeure event plus such reasonable period following its cessation as is required by Ekornes to resume its normal supplies; and
(b) if the Force Majeure event continues for in excess of 7 days, Ekornes may give notice that the Contract (or such parts as remain to be performed by Ekornes) is terminated and Ekornes shall have no consequential liability (including for Consequential Loss) to the Purchaser for such parts of the Contract as remain to be performed by it at the time of termination.
5.7 A Force Majeure event does not relieve the Purchaser of any obligation to pay for Goods previously delivered. Unless Ekornes has given notice pursuant to paragraph (b), the Purchaser may not refuse to accept delivery of Goods tendered by Ekornes after or during a Force Majeure event.
6.1 Ekornes may terminate the Contract (or any part of it remaining to be performed by Ekornes) by notice in writing if:
(a) An Insolvency Event occurs in respect of the Purchaser;
(b) proceedings are commenced seeking the winding up or sequestration of the Purchaser; or
(c) the Purchaser dies.
6.2 Termination of the Contract by Ekornes, including pursuant to clause 5.6(b), does not affect any right, remedy or obligation which has accrued to a party prior to termination.
7.1 Ekornes shall repair or replace the Goods (or any part of them) which shall be found to be defective within the Warranty Period and this is Ekornes’ sole warranty obligation, subject to the provisions of this clause 9.
7.2 Ekornes has no liability under clause 7.1:
(a) where the defect arises from or is caused by misuse, abuse, interference, accidental damage or negligence by the Purchaser or any third party;
(b) for defects resulting from abuse, breakage or mishandling of the Goods after delivery;
(c) where the defect or damage arises from the use of the Goods other than in accordance with the manufacturer’s recommendations;
(d) where the defect or damage arises from any repairs made by any persons not authorised by the manufacturer;
(e) where the defect arises due to wear and tear from normal use of the Goods;
(f) where the Purchaser makes any further use of such Goods if to do so might worsen the alleged defect;
(g) where the defect arises because the Purchaser failed to follow any of Ekornes’ oral or written instructions as to the storage, assembly, installation, use or maintenance of the Goods;
(h) where the defect has been caused by fire, flood, water seepage, earthquake, storm, explosion or similar such event; or
(i) where the defect was apparent at the time of delivery of the Goods unless it receives notice of that defect from the Purchaser within the Inspection Period (pursuant to clause 5.4).
7.3 In the event that the Purchaser considers the Goods (or any part of them) to be defective (other than in the circumstance set out in clauses 5.4 and 7.2(i)), the Purchaser must submit an initial warranty claim form (as provided to it by Ekornes) together with photos (to the extent practicable) of such defect. The Purchaser must then (at the Purchaser’s cost) arrange for the delivery of the Goods to Ekornes’ warehouse following which Ekornes will (subject to clause 9.2) carry out repairs.
7.4 Where Ekornes replaces Goods or a part, the defective Goods or part shall, unless they already are, become the property of Ekornes.
7.5 The Purchaser shall bear Ekornes’ costs of inspecting any Goods or part returned to it for inspection which is found either not to be defective or, if found to be defective, where the defect is not one for which Ekornes is liable under clause 7.2.
7.6 Subject to clause 7.8, all warranties, representations and conditions as to merchantability and fitness for purpose of the Goods or otherwise, whether express or implied by law, trade custom or otherwise are, to the full extent permitted by law, excluded.
7.7 Subject to clause 7.8, Ekornes excludes all liability (including Consequential Loss) for negligence, breach of contract, tort, product liability, statute or otherwise, suffered or incurred by the Purchaser or any other person in any way in connection with or arising from or in respect of the Goods or the Contract, regardless of whether such loss or damage was foreseeable and even if its possibility had been made known.
7.8 Nothing in this clause 7 is intended to exclude, restrict or modify or have the effect of excluding, restricting or modifying warranties implied by law which by law cannot be excluded, restricted or modified, and this clause 7 shall be construed appropriately and (if necessary) any provision which would have such an effect shall be severed. If Schedule 2 of the Competition and Consumer Act 2010 or any similar or equivalent State legislation is applicable, Ekornes’ liability for breach of any implied warranty will be limited to one of the following as determined by it in its absolute discretion:
(a) replacement of the Goods (or part) or the supply of equivalent Goods or an equivalent part;
(b) repair of the Goods (or part);
(c) payment of the cost of replacing the Goods (or part) or of acquiring equivalent Goods (or an equivalent part);
(d) (e) payment of the cost of having the Goods (or the part) repaired; or
(f) in the case of services, supply of the services again or payment of the cost of having the services supplied again.
7.9 To the maximum extent permitted by law, Ekornes’ liability in respect of the Goods (including in any case of non-delivery of the Goods or part to the Purchaser) is limited to the cost of replacing the Goods (or part).
8. GOVERNING LAW
The Contract is governed by and construed in accordance with the laws of New South Wales and the Purchaser irrevocably submits to the non- exclusive jurisdiction of the Courts of New South Wales and any Courts which may hear appeals from those Courts.
9.1 These Conditions may not be waived or varied otherwise than in writing signed on behalf of Ekornes by one of its directors.
9.2 Failure or delay by Ekornes in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of Ekornes’ rights under the Contract.
9.3 No waiver by Ekornes, whether express or implied, of any of these Conditions, or of any breach or default of them by the Purchaser, will constitute a continuing waiver of any other Condition unless expressly made in writing and signed on behalf of Ekornes by one of its directors.
9.4 If a Court of competent jurisdiction determines any provision of these Conditions to be invalid, void or voidable, that provision shall be severed and the remainder of these Conditions will have full force and effect. 10.5 Ekornes may assign the Contract or any part of it to any person. The Purchaser shall not be entitled to assign the Contract or any part of it without the prior written consent of Ekornes.
Edition 1: April 20