Terms & Conditions of Sale
Ivory Egg (AUST) Ltd operates a number of online web stores supplying intelligent control systems and components. All our web store and other transactions with the Company operate under standard terms and conditions, as set out below:
All orders are accepted and goods supplied subject to the following express terms and conditions (the Company's standard conditions of sale) and, save to the extent that the exclusion or restriction of liability may be prohibited by statute, all other conditions, warranties and representations, expressed or implied and statutory or otherwise, except as to title, are hereby excluded. Any order placed by a customer shall constitute an offer to contract upon these express terms and conditions, and no addition thereto or variation therefrom, whether contained in the customer's order or otherwise shall apply unless expressly agreed in writing by the Company's authorised representative. These terms and conditions do not affect our customers' statutory rights.
- Company means Ivory Egg AUST Pty Ltd (ACN 605 649 385)
- Customer means any company, firm, or individual or agent thereof to whom the Company may agree to sell goods in accordance with the Company's standard conditions of sale.
- Conditions means these Terms and Conditions of Sale.
- Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.
- Goods means any goods supplied by the Company being building or construction materials, building or construction products and all related or ancillary goods.
- GST has the meaning given to that term in Goods and Services Tax Law.
- Insolvency Event means, for the Customer, as applicable, being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Corporations Act 2001) or similar person appointed to the Customer or any of the Customer’s property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay the Customer’s debts, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Customer’s own affairs for any reason, taking any step that could result in the Company becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Customer’s members or creditors, or any analogous event.
- Loss means any expense, cost or damage of any kind and includes Consequential Loss and a fine or penalty imposed by a statutory or other authority.
- PPSA means the Personal Property Securities Act 2009 (Cth).
- Real or Personal Property means all real property interests held by the Customer now or in the future.
- Services means any services provided by the Company being the supply of electrical services, the supply of electrical products and all related or ancillary services.
- Company Ts&Cs means any terms and conditions of quotation and supply, however described, notified by the Company to the Customer (whether on an invoice, quote, through the Company’s website, docket or otherwise), or supply agreement (however described) in the Company’s standard form entered into in writing between the Company and Customer.
Singular words include the plural and vice versa. A mention of anything after include, includes or including, does not limit what else might be included.
1. Customer obligations
(a) These Terms and Conditions apply if the Company accepts any order for Goods or Services or both in cash or credit from the Customer. The Customer has no entitlement to credit unless in the Company’s sole discretion the Company extends credit to the Customer. If the Company gives the Customer credit, the Company reserves their right at whatever time for any reason in the Company’s sole discretion to decline the supply of any further or additional Goods or Services to the Customer and decline the supply of any Goods or Services or both to the Customer on credit terms. If the Company does refuse to give the Customer further credit then that decision does not affect the credit terms which apply to any amounts the Customer then owes to the Company.
(b) If the Customer does not comply with any of the terms of these Conditions or in respect of any obligation to pay money to the Company when due, suffers an Insolvency Event or makes any misrepresentation to the Company, the balance of the Customer’s account to the Company will become due and payable immediately.
(c) The Customer agrees that it must:
- pay, without any deduction or set off, the price charged by the Company for Goods or Services supplied to the Customer on delivery or performance, or, if credit terms are offered, within 14 days during which the goods or services were supplied or provided.
- pay any stamp duty assessed on this document or fee to register or maintain any security interest held by the Company in respect of Goods or Services supplied to the Customer.
- advise in writing to the Company as soon as practicable and no later than seven (7) business days of any Insolvency Event, any change in its name, ownership or control, the Australian Business Number, the address of the business and address at which the goods will be located or any step being taken to sell an asset or assets (separately or together having a value being greater than 20% in value of its gross assets). The Customer acknowledges that, despite any such event, change, or step the Customer remains liable to pay the price for all Goods or Services supplied by the Company.
2. Overdue accounts and security
(a) If an account is not paid by the due date, the balance owing will incur interest at a rate of 5% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly but in no circumstances will the interest charged exceed 20% per annum.
(b) The Customer agrees to pay all costs and expenses (including legal costs, commissions paid by the Company or its Related Bodies Corporate to any commercial or mercantile agent and dishonour fees) sustained by the Company in connection with the recovery of overdue amounts and enforcing the charge in clause 2(c).
(c) As security for any amounts due to the Company from time-to-time, the Customer charges all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all Real and Personal Property to the Company.
(d) Without limiting clause 2(c), the Customer, agrees, on request by the Company, to execute any document and do all things reasonably required by the Company, to perfect the charge given in clause 2(c) including, but not limited to, registering a mortgage security over any Real Property. The Customer indemnifies the Company on an indemnity basis against all costs and expenses incurred by the Company in connection with the preparation and registration of any such steps needed to perfect the security or prepare or register the mortgage documents.
(e) The Customer consents to the Company lodging a caveat or caveats noting its interest in any Real Property.
3. Property and Ownership/Retention of title
(a) The Company retains legal and equitable title in any Goods supplied to the Customer until payment in full for or in connection with the supply of the relevant Goods has been received by the Company. Until payment in full has been received, the following terms apply.
(b) Despite the fact that title in the Goods remains with the Company until payment has been received in full (as stipulated in clause 3(a)), the Customer may sell such goods or use the Goods in a manufacturing or construction process in the ordinary course of the Customer’s business. As between the Customer and the purchaser of any item of the Goods, the Customer agrees to sell the goods as principal and not as agent of the Company. The proceeds of sale of each item of Goods must be held by the Customer in a separate fund on trust for the Company and the Customer is under a duty to account to the Company for such proceeds. The creation of, or any failure of, any such trust shall not in any way limit the obligation of the Customer to pay an amount to the Company for Goods supplied.
(c) Until Goods are sold or used in a manufacturing or construction process, the Customer must keep the Goods safe and free from deterioration, destruction, loss or harm, clearly designate the Goods as the property of the Company, store them in such a way they are clearly identified as the property of the Company and keep full and complete records, firstly, of the physical location of the Goods and, secondly, the ownership of the Goods by the Company.
(d) The Company is irrevocably entitled at any time and from time-to-time before sale of any item of Goods by the Customer to inspect, recover and/or retake possession of such Goods and otherwise exercise in relation to the Goods any of its rights whether those rights are as owner and/or unpaid Seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way. In order to exercise such entitlement, the Company and its agents are irrevocably authorised by the Customer to enter any of the Customer’s premises or vehicles or those of any third party. The Customer agrees to obtain the consent of any such third party to such entry by the Company and to indemnify the Company and its agents for any liability arising from any entry upon such third parties’ premises or vehicles. The Company and its agents agree to take all reasonable care in removing the Goods from such premises or vehicles but, to the extent this liability may be disclaimed by law, are not liable for any damage or injury to such premises caused by the removal of the Goods.
(e) This reservation of title and ownership is effective whether or not the Goods have been altered from their supplied form, or commingled with other goods.
(a) The Customer acknowledges that pursuant to these Conditions they grant to the Company a Security Interest in the Secured Property and, for avoidance of doubt, the proceeds of sale of the Secured Property for the purposes of the PPSA.
(b) The Customer consents to the Company completing a registration on the PPSA (in any manner the Company considers appropriate) in relation to the Security Interest arising out of or in connection with these Conditions and the Customer agrees to provide all assistance required by the Company to facilitate this.
(c) The Customer acknowledges and agrees that in relation to the part of the Secured Property that is inventory, the Customer will not allow any Security Interest to arise in respect of that Secured Property unless the Company has perfected its Security Interest in the Secured Property prior to the Customer’s possession of the Secured Property.
(d) If Chapter 4 of the PPSA applies to the enforcement of the Security Interest arising under or in connection with these Conditions, the Customer agrees:
- to the extent that section 115(1) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: section 95 to the extent that it requires the Company to give a notice to the Customer, section 96, section 121(4), section 125 (obligation to dispose of or retain collateral), section 130 to the extent that it requires the Secured Party to give notice to the Customer, paragraph 132(3)(d), subsection 132(4), section 142 and section 143 (reinstatement of security agreement; and
- to the extent that section 115(7) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: section 127, section 129(2) and (3), section 132, section 134(2), section 135, section 136(3), (4) and (5) and section 137.
(e) If the Customer makes payment to the Company at whatever time whether in connection with these Conditions or otherwise, the Company may, at its absolute discretion, apply that payment in any manner it sees fit.
(f) The Customer agrees to notify the Company without any delay of any changes made to its name or address (as specified in these Conditions).
(g) The Customer agrees to do anything the Company requests the Customer to do (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed): to provide more effective security over the Secured Property; to register in respect of a Security Interest constituted by these Conditions at any time; to enable the Company to exercise its rights in connection with the Secured Property; and to show the Company whether the Customer has complied with these Conditions.
(h) The Customer shall pay on demand any losses arising from, and any costs and expenses incurred in connection with, any action taken by the Company under or in relation to the PPSA, including any registration, or any response to an amendment, demand or a request under section 275 of the PPSA. (i) Any notices or documents which are required or permitted to be given to the Company for the purposes of the PPSA must be given in accordance with the PPSA.
(j) The Customer waives the right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
Risk passes to the Customer upon receipt of the supply and delivery of Goods to the Customer. Delivery of Goods will be at the Company’s premises on collection of the Goods by the Customer, its employees, agent or contractors. If the Company has specifically agreed to ship the Goods to the Customer, risk in the Goods passes immediately on delivery of the Goods to the Customer’s chosen place of delivery by the Company or its agent.
6. Exclusion of implied terms
The Customer may have the benefit of consumer guarantees under the Australian Consumer Law. Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into Company Ts&Cs or in connection with the supply of any Goods or Services by the Company under law or statute or custom or international convention are excluded.
7. Limitation of liability
To the maximum extent permitted by law and subject to clauses 5 and 7, the Company’s total liability arising out of or in connection with its performance of its obligations pursuant to these Conditions, the Company Ts&Cs, or arising out of or in connection with the supply of specific Goods or Services (including pursuant to or for breach of these Conditions, Company Ts&Cs or repudiation thereof, under statute, in equity or for tort, including negligent acts or omissions) is limited as follows:
(a) the Company shall have no liability to the Customer for any Consequential Loss;
(b) the Company’s total aggregate liability for loss, however arising, shall not exceed the GST exclusive aggregate price paid by the Customer to the Company for the specific Goods or Services that gave rise to the Loss in question. The limitations and exclusions in this sub-clause do not apply to the extent that any Loss is directly attributable to:
- the personal injury or death caused by the Company’s default, breach of these Conditions or the Company Ts&Cs or negligence; or
- fraud by the Company.
(c) Each party agrees to take all reasonable steps to mitigate any loss it suffers or incurs.
(d) The Customer shall inspect the Goods supplied to them at the time of collection/delivery and shall expressly notify the Company of any damage or defects in the Goods within seven (7) days from the date of collection/delivery. The Company is not liable for any damage or defects in the Goods should they not be notified within the period specified in this clause.
(e) The Customer accepts and acknowledges that unless it notifies the Company in writing as stipulated in clause 6(d) of these Conditions, the Customer is deemed to have accepted the Goods supplied and is liable for any subsequent damages or defects discovered in the Goods.
(f) To the extent that is permitted by Law and these Conditions, under no circumstances are any Goods supplied to the Customer by the Company returnable except under the terms below.
The warranty period of all goods supplied is 12 months from the date of delivery to the customer unless expressly agreed in writing by the Company.
9. Returns Policy
(a) Where the customer rejects the Goods as not being in accordance with the customer's requirement, the company shall reserve the right to refund all or part of the original invoiced amount, and recover any costs incurred in the return.
(b) For returns of standard goods which are returned in unopened packaging and in good condition, the company will normally refund the cost of the item as invoiced less a standard 15% charge for restocking charge.
(c) The customer shall obtain a Return Material Authorisation (RMA) number from the company in advance of returning any items (or, when the company arranges for collecting from the customer).
(d) The company will process the returned item then notify the customer via e-mail of the refund.
(e) The refund shall be in the same form of payment originally used for purchase within three weeks of the company receiving the returned item(s).
(f) This refunds policy does not affect the statutory rights of the Customer.
10. Limitation of liability under Australian Consumer Law Guarantees
(a) To the extent that Goods supplied by the Company are not goods of a kind ordinarily acquired for personal, domestic or household use and the Customer is deemed to be a consumer for the purposes of section 64A of the Australian Consumer Law, the Customer agrees that the Company’s liability for a failure to comply with a consumer guarantee that the Customer may have a benefit under the Australian Consumer Law (other than a guarantee under ss 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities), is limited to, at the option of the Company, one or more of the following:
- replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) equivalent goods; or
- the payment of the cost of having the goods repaired.
(b) To the extent that Services supplied by the Company are services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption, the Company’s liability for failure to comply with a consumer guarantee that the Customer may have the benefit of is limited to, at the option of the Company:
- the supply of the Services again; or
- the payment of the cost of having the Services supplied again.
(a) Payment terms, where extended, are at the discretion of the Company and are detailed on each invoice.
(b) Payment of account balance can be made by electronic bank transfer or by credit / debit card (VISA, MasterCard). All credit / debit card payments of account balances incur a transaction fee of 2.5% of the complete amount including GST.
(c) Payment for orders placed on our website may be made by credit / debit card (VISA, MasterCard) and are made by completing details on our Secure Server.
(d) Where payment is made by credit or debit card the total amount payable is charged to the cardholders account prior to acceptance of the order. Once the payment has been cleared by the company the goods will either be shipped, if a stocked item, or orders placed to the relevant suppliers. It may not be known at the time of order what the lead-time for all the parts will be. In the event that a significant delay occurs the Customer will be informed by the Company.
(e) The Company may accept payment from Customers by bank transfer in Australian Dollars. When making payment the Customer shall enter the Ivory Egg Order No. as a reference to the transaction and ensure all fees for the bank transfer are at the Customer’s liability.
If the Company has any liability to pay Goods and Services Tax (GST) on the supply of any Goods or Services to the Customer, the Customer must pay to the Company an amount equivalent to the GST liability of the Company at the same time as the consideration is paid for the Goods or Services (unless the consideration for that supply is expressed specifically to be GST inclusive).
(a) Both parties agree that they will not disclose any information of the kind mentioned in section 275(1) of the PPSA, except in the circumstances required by sections 275(7)(b) to (e) of the PPSA. The Customer agrees that it will only authorise the disclosure of information under section 275(7)(c) or request information under section 275(7)(d), if the Company approves.
(b) Nothing in clause 9.1 will prevent any disclosure by the Company that it believes is necessary to comply with its other obligations under the PPSA or under any other applicable law.
(c) To the extent that it is not inconsistent with clauses 9(a) or 9(b) above constituting a "confidentiality agreement" for the purposes of section 275(6)(a) of the PPSA, the Customer agrees that the Company may disclose information of the kind mentioned in section 275(1) of the PPSA to the extent that the Company is not doing so in response to a request by an "interested person" (as defined in section 275(9) of the PPSA) pursuant to section 275(1) of the PPSA.
(a) This agreement constitutes the entire agreement between the Company and the Customer and any prior agreement or understanding between them in respect of the subject matter in this agreement, including any quotation, is suspended by this agreement.
(b) This agreement may only be varied by agreement in writing between both the Customer and the Company.
(c) This agreement shall be governed by and construed in accordance with the laws of the State and the parties submit to the jurisdiction of the Courts of the State.
(d) If a provision of these Conditions would, but for this clause, be unenforceable:
- the provision must be read down to the extent necessary to avoid the result; and
- if the provision cannot be read down to that extent, it must be severed without effecting the validity and enforceability of the remainder of these Conditions.
(e) The Customer or Company may only waive their rights in relation to these Conditions only by notice in writing to the other party advising them of their waiver. No waiver shall be construed as a general waiver unless it is expressly stated to be a general waiver. A single or partial exercise or waiver of a right relating to these Conditions will not prevent any other exercise of that right or any other right.
(f) Should any provision of this Agreement be illegal, void or unenforceable, that provision will be ineffective and shall be severed here from to the extent only of that illegality, voidability or unenforceability. All remaining provisions shall be enforceable between the Company and the Customer