Terms of use

EFFECTIVE DATE: 1 OCTOBER 2016

Welcome to the CPAP Australia website, www.cpapaustralia.com.au ( Website).

By using this Website you agree to abide by and be subject to these terms of use (Terms) and the Privacy Notice that is incorporated into these Terms by reference and constitutes a part of these Terms. If you do not agree with any of these Terms, do not use this Website.

You agree that when you click the relevant box to accept the Terms, you electronically consent to the Terms.

1. SCOPE

   1. In these Terms, "you" refers to the person using this Website. The terms "we," "our," "us" and "CPAP Australia" collectively refer to Sleep and Breathing Solutions Pty Ltd trading as CPAP Australia (ACN 601089883), 1 Elizabeth Macarthur Drive Bella Vista, NSW 2153.
   2. These Terms give you information about us and the legal terms and conditions on which we sell any of the products listed on our Website ( Products).
   3. CPAP Australia expressly excludes any representation or warranty, express or implied, with respect to the information available on this Website. CPAP Australia makes no representation about any third-party websites that may be accessed via links from this Website.

2. PRIVACY

   For information about the way in which we use, process and share personal and non-personal information that we may obtain about you, please refer to our Privacy Notice.

3. DISCLAIMER ON EMERGENCY MEDICAL CONDITIONS

   Do not use this website for medical emergency services. In an emergency, call your local emergency assistance number.

4. MEDICAL DISCLAIMERS

   1. The Content (as defined in 10 below) available through this website is for informational and educational purposes only and is not a substitute for the professional judgment of a health care professional in diagnosing and treating patients. CPAP Australia does not give medical advice, nor does it provide medical or diagnostic services. Additionally, the use of the content obtained through this website does not establish a physician-patient relationship. Your reliance on information and content obtained by you at or through this Website is solely at your own risk. Neither we nor any providers of content to us assume any liability or responsibility for damage or injury (including death) to you, other persons or property arising from any use of any product, information, idea or instruction contained in the Content.
   2. We do not provide advice to you on any issues relating to medical treatment and the content is intended solely as a resource and informational tool. Always seek the advice of a physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have seen or read on this Website. We are not medical professionals and will not discuss or advise you on any issues relating to medical treatment.

5. ORDERING FROM US

   1. Our Website and these Terms are intended only to apply for consumers wishing to order Products for delivery in Australia. Some of our Products will be designated as “Click & Collect” only.
   2. You may only buy the Products for your own use or if you are a carer for the use of the person you care for. By purchasing Products from us, you represent and warrant that you are not buying the Products for resale.
   3. You are deemed to have placed an order with us by ordering via our online checkout process. As part of our checkout process you will be given the opportunity to check your order and correct any errors. If you pay by credit card, we will send you an order acknowledgement, detailing the Products you have ordered once your payment has passed our internal validation procedures. If you pay by direct deposit, we will send you an order acknowledgement, detailing the Products you have ordered. However, your order will not be processed until payment has been transferred into our bank account.
   4. Our acceptance of an order takes place when we dispatch the order. We will send you a dispatch confirmation by email. When we dispatch your order, the purchase contract will be made even if your payment has been processed immediately, unless we have notified you that we do not accept your order.
   5. We may, at our discretion, refuse to accept an order if:
      1. Products are no longer available;
      2. we cannot obtain authorisation for your payment;
      3. there has been a pricing or Product description error; or
      4. you do not meet any eligibility criteria set out in these Terms.
   6. If we are unable to supply you with a Product within a reasonable period of time, we will inform you of this by e-mail or phone and we will not process your order. If you have already paid for the Product, we will refund you the full amount including delivery costs (if any) charged, as soon as possible.

6. PRICING AND PAYMENT

   1. All prices and offers are in Australian dollars unless otherwise stated and are subject to availability and may change before (but not after) we accept your order.
   2. Prices available on the Website are only applicable for purchases made online through the Website.
   3. If we charge separately for packing, carriage and other relevant charges, the appropriate rates will be clearly specified on your online order when you proceed through the online checkout process.
   4. Unless otherwise stated, all prices referred to on the Website are inclusive of GST or any other value added or withholding taxes. In relation to any GST payable for a taxable supply (under GST Law) by a party, the recipient of the supply will pay the GST subject to the supplier providing a tax invoice (as defined under GST Law). Terms used in this clause which are defined in the GST Act have the same meaning as in the GST Act. For the purpose of this clause “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time.
   5. Our Website contains a large number of Products. It is possible that, despite our reasonable efforts, some of the Products on our Website may be incorrectly priced. If we discover an error in the price of the Products you have ordered, we will contact you to inform you of this error and we will give you the option of continuing to purchase the Product at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing, if you have provided us with your address or your email address. Please note that if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing, we do not have to provide the Products to you at the incorrect (lower) price.
   6. We accept payment by credit or direct deposit or such other means as may be specified on the Website. If you pay by credit or direct deposit, payment is authorised and deducted at the time of your order. If you use another method of payment as offered on the Website, the time of payment may differ.
   7. We do not store your credit card details. Your payment is processed by a Payment Card Industry accredited third party, which performs the financial transaction, and returns the approval code to us. Whilst we employ the latest technology, we exclude any and all liability for any loss or damage (whether direct or indirect) suffered by you if your credit card is fraudulently used or is used in an unauthorised manner by a third party.
   8. We will send you a tax invoice when your Products are delivered to you. Your tax invoice is your proof of purchase and may be required for warranty claims.

7. DELIVERY

   1. Subject to clauses 7(b) and ?7(c) below, delivery will be to the address specified in your order, which must be within Australia. We aim to ship all orders that are in stock within 1 working day of receipt of payment. Delivery is by a third party and occasionally delivery times may be affected by factors beyond our control and therefore they cannot be guaranteed.
   2. Certain Products listed on our Website are required by the manufacturer or supplier to be only made available for pick up at one of our stores after an in-store consultation. We will clearly mark these Products as “Click & Collect only”. This means that these Products can only be ordered online through our Website and must be picked up in person from one of our CPAP Australia store locations after you have had an in-store consultation with us.
   3. Existing customers who have purchased from us online previously and have an online account set up with us can purchase ResMed CPAP Masks online and have them delivered to the address specified in their order. New customers will need to pick these types of Products up from one of our CPAP Australia store locations.
   4. The delivery charges specified as part of your order will apply. These charges may change from time to time. Currently, we do not charge for standard shipping in Australia wide on all purchases made online on the Website. Express shipping is currently offered for $10 on all online purchases.

8. RISK AND TITLE

   1. Risk of any loss or damage to the Products passes to you at the time of delivery to our carrier.
   2. Title to and property in the Products will not pass until you have paid all money owed to us on any account whatsoever.

9. RIGHTS UNDER AUSTRALIAN CONSUMER LAW

   1. We acknowledge that our Products may come with guarantees that cannot be excluded under the Competition and Consumer Act (Cth) 2010 as amended from time to time (the “Australian Consumer Law”). If you are a “consumer” under the Australian Consumer Law, you are entitled to a replacement or a refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure.
   2. Some of the Products we sell to you come with a manufacturer’s warranty. For details of the applicable terms and conditions, please refer to the manufacturer’s warranty provided with the Products. The manufacturer’s warranty is in addition to but may overlap with any rights or remedies you may have under applicable law, including any consumer guarantees under the Australian Consumer Law. If you are not considered a “consumer” within the meaning of the Australian Consumer Law, the manufacturer’s warranty may be your sole remedy.
   3. If you return a Product to us for repair (or replacement) and the Product is capable of retaining user-generated data, the repair (or replacement) of the Product may result in the loss of this data. We will not be responsible for any data loss and we require you to back up your data before returning any Product to us for repair (or replacement). Products presented for repair may be replaced at our discretion by refurbished Products of the same type rather than being repaired. Refurbished parts may be used to repair Products.

10. INTELLECTUAL PROPERTY RIGHTS

    OWNERSHIP

    All content, text, images, data, information and other material displayed, available or present on this Website (Content), including any intellectual property rights in such Content (including without limitation trademarks and copyrights) (referred to as Intellectual Property Rights), are the property of CPAP Australia, its affiliates, its licensors or the designated owners, and are protected by applicable intellectual property laws. You should assume that everything you see or read on this Website is copyrighted unless otherwise noted and may not be used without our written permission, except as otherwise provided in these Terms.

    AUTHORIZED AND PROHIBITED USES

    You may download and print copies of the Content only for non-commercial, informational, personal use, without modification or alteration in any way, and only so long as you comply with these Terms and applicable laws. Except as may otherwise be expressly authorised by these Terms, you may not otherwise reproduce, sell, publish, distribute, modify, display, or use any of this Website or the Content without our prior written permission. If this Website permits the emailing of certain Content or a link through the use of an "email to a friend" (or similar) icon, you may send that particular Content or link to others by email, as indicated. You agree not to infringe on any Intellectual Property Rights or remove or modify related proprietary notices contained in this Website or the Content.

11. USER CONTENT

    1. Except as provided in our website Privacy Notice, any content that you submit to this Website or to CPAP Australia, whether directly or through a third-party website ( User Content) will be deemed to be non-confidential and may be disclosed through this Website to unknown persons on a worldwide basis without control by CPAP Australia, including for browsing, downloading, printing and other uses by such other persons or entities.
    2. You agree not to submit User Content to this Website or CPAP Australia except for User Content that is fully authorised for purposes of this Website and these Terms, and by posting User Content on this Website, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit or otherwise distribute User Content. It is your obligation to determine the extent to which User Content you submit is protected by applicable intellectual property laws.
    3. You agree that CPAP Australia will have, and you grant to CPAP Australia, a worldwide, royalty-free, perpetual, irrevocable, sub-licensable, non-exclusive right and license to translate, reproduce, sell, publish, distribute, modify, adapt, display, perform, promote, link to or use, in any form or media, any User Content that you submit to this Website or CPAP Australia.
    4. CPAP Australia does not endorse any User Content, or third-party product or service that may appear on this Website. Nothing in these Terms will obligate CPAP Australia to use any User Content you submit or permit the posting of such User Content on this Website.

12. REGISTRATION AND PASSWORDS

    1. At times, we may require you to have a password and provide registration details to access this Website or portions of this Website. To the extent that we do require a password and registration details, the details you provide must be correct, current and complete. If CPAP Australia believes that the details are not correct, current and complete, we have the right to refuse you access to the Website, or any of its resources, and to terminate or suspend your account, if any.
    2. You are responsible for maintaining the confidentiality of any password(s) you are given to access this Website, and you are responsible for all activities that occur under your password(s). CPAP Australia is not liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by CPAP Australia, its affiliates, officers, directors, employees, consultants, agents and representatives due to someone else's use of your account or password. You agree to notify us immediately of any unauthorized use of your password(s). We reserve the absolute right not to issue a password to any person or entity.

13. LINKING

    1. Unless otherwise agreed between you and CPAP Australia, no link will be made to any page of this Website except a direct link to the top page (eg, https://www.cpapaustralia.com.au) without framing. In addition, any link to this Website must be immediately followed by notice to CPAP Australia via email at cpap@cpapaustralia.com.au.
    2. Moreover, if CPAP Australia deems your linking practices in relation to this Website to be inappropriate, CPAP Australia may choose to delete the link or to provide you with notice concerning removal or modification of the inappropriate link, and you agree to comply with any and all requirements of CPAP Australia relating to such notice.

14. ACCESS TO WEBSITE

    While it is CPAP Australia's objective to make the Website accessible 24 hours per day, 7 days per week, the Website may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of the control of CPAP Australia, access to the Website may be interrupted, suspended or terminated from time to time. CPAP Australia will have the right at any time to change or discontinue any aspect or feature of the Website, including, but not limited to, Content, hours of availability and equipment needed for access or use.

15. IMPORT/EXPORT CONTROL

    You agree not to submit any User Content to this Website or commit any act involving the transfer of information relating to any Content in violation of applicable import/export control, espionage or national security laws.

16. YOUR OBLIGATIONS

    You agree to comply with the following:

    • You will comply with all applicable laws in connection with your use of this Website;
    • You will not engage in, conduct or submit to our Website any User Content or other material that is illegal, inaccurate, misleading, misappropriated, infringing, dilutive, defamatory, obscene, offensive or otherwise objectionable. You must not cause damage, embarrassment or adverse publicity to us.
    • You will submit only User Content that is functionally and technically compatible with our Website. You will not attempt to and will not damage, corrupt, tamper with or infect our Website, the Content or any of our information or telecommunication systems with a virus or other malicious computer program.
    • You will only use this Website for the permitted purposes stated in these Terms, and will not engage in abusive activity with respect to our Website, or undertake any other activity which may adversely affect the use or enjoyment of our Website by any person. You are prohibited from using any services or facilities provided in connection with our Website to compromise security or tamper with system resources and accounts.
    • You agree to cooperate with all of our reasonable requests and will notify us promptly on learning of any actual or suspected breach of Terms by you or unauthorised use or abuse of this Website.

17. WARRANTY DISCLAIMERS

    This Website, its content and its links are provided on an "as is" basis and are used only at your sole risk, to the fullest extent permissible by law. CPAP Australia disclaims all warranties, representations and conditions, express or implied, of any kind, regarding this Website (including its content, hardware, software and links), including any implied warranties as to fitness for a particular purpose, merchantability, title, non-infringement, results, accuracy, completeness, accessibility, compatibility, security and freedom from computer virus. If applicable law does not allow the exclusion of some or all of the above implied warranties to apply to you, the above exclusions will apply to you to the fullest extent permitted by applicable law.

18. LIMITATIONS ON LIABILITY AND REMEDIES

    1. CPAP Australia's entire liability and your exclusive remedy with respect to any dispute with CPAP Australia (including without limitation your use of the website) is to discontinue your use of the website.
    2. CPAP Australia and its vendors will not be liable for any direct, indirect, special, incidental, consequential or exemplary damage arising from your use of this Website or for any other claim related in any way to your use or registration with CPAP Australia. These exclusions for direct, indirect, special, incidental, consequential or exemplary damages include, without limitation, damages for lost profits, lost data, loss of goodwill, work stoppage, computer failure or malfunction, or any other commercial damages or losses, even if CPAP Australia had been advised of the possibility thereof and regardless of the legal or equitable theory upon which the claim is based. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, CPAP Australia and its vendors' liability in such state or jurisdiction will be limited to the extent permitted by law. CPAP Australia does not endorse, warrant or guarantee any product or service offered through this Website and will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services.

19. INDEMNIFICATION

    You agree to defend, indemnify and hold harmless CPAP Australia and its affiliates, officers, directors, employees and contractors from any demands, claims, damages, liabilities, expenses or harms, including attorney’s fees, arising in connection with your use of this Website, online conduct, breach of these Terms , or dealings or transactions with other persons resulting from use of this Website.

20. THIRD-PARTY SITES AND OTHER INFORMATION

    This Website may contain as a convenience to you, content, links and other information submitted by third parties over whom CPAP Australia has no control or responsibility, as well as translations thereof which CPAP Australia may arrange. CPAP Australia has no obligation to monitor, control or restrict the use of this Website, or third-party websites accessible via links on this Website. These other sites are not under CPAP Australia's control, and you acknowledge that (whether or not such sites are affiliated in any way with CPAP Australia) CPAP Australia is not responsible for the accuracy, copyright compliance, legality, decency or any other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of any site by CPAP Australia or any association with its operators.

21. SEPARATE TERMS AND CONDITIONS

    From time to time in connection with your use of or access to Content contained in certain areas of this Website, it may be necessary for you to consent to policies or terms and conditions in addition to these Terms. You should read carefully any such additional terms and conditions before making any use of such Content or areas of this Website. Any such terms will not vary or replace these Terms regarding any use of this Website, unless otherwise expressly stated.

22. MODIFICATION OF TERMS

    These Terms and the Privacy Policy constitute the complete agreement between you and CPAP Australia with respect to their subject matter and supersede any prior agreement or communication. These Terms are subject to change from time to time. CPAP Australia will endeavour to post a notice of any changes to these Terms for a period of 30 days following any such modifications.

    Therefore, you are advised to review these Terms occasionally, or at least every 30 days. Your continued use of this Website subsequent to CPAP Australia's notice of modification of these Terms will constitute your acceptance of the modified Terms.

23. GENERAL

    1. FORCE MAJEURE.

       We will not be liable for any delay or failure to perform under these Terms if such delay is due to any circumstance beyond our reasonable control.

    2. ENTIRE AGREEMENT.

       These Terms form the entire agreement between you and us.

    3. CHANGES.

       We reserve the right at any time to modify these Terms and to impose new or additional terms or conditions. Such modifications and additional terms and conditions will be effective immediately and will apply to future orders you make with us.

    4. TERMINATION BY US.

       We reserve the right to refuse to supply the Products ordered by you, terminate our contract with you or terminate your account with us at our sole discretion and without incurring any liability to you.

    5. SUPPORT.

       If you require support for Products ordered online through our Website, please phone our office on 1300 692727. If you require face to face personalised support, please go to one of our CPAP Australia store locations, by appointment.

    6. ASSIGNMENT.

       You may not assign, sub-license or otherwise transfer any of your rights under these Terms whether in whole or in part without our prior written consent.

    7. VOID OR UNENFORCEABLE TERMS.

       If any provision of these Terms is found by any court of competent jurisdiction to be invalid, the invalidity of that provision will not affect the validity of the remaining provisions which will continue to have full force and effect. Only the parties to these Terms may seek to enforce them.

    8. DISPUTE RESOLUTION AND GOVERNING LAW.

       With respect to any and all disputes arising out of or in connection with our Website or these Terms, each of us agrees to negotiate in good faith and undertake reasonable efforts to cooperate with one another in order to achieve a mutually satisfactory resolution. Each order will be governed by and will be construed in accordance with the laws of New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the State of New South Wales and its appellate courts and waives any right to object to proceedings being brought in those courts for any reason.

    9. CONTACT INFORMATION.

       If you have any questions regarding these Terms or this Website, please contact us by email at cpap@cpapaustralia.com.au.