Terms and conditions

IVORY OCTOPUS

TERMS AND CONDITIONS

Last updated on 26th July 2019

These terms and conditions (Terms) govern your use of the eCommerce Store website located at www.ivoryoctopus.com.au (Website) and our supply of goods through the Website. By using the Website, you agree to be bound by these Terms which form a binding contractual agreement between you, the user of the Website and us, IVORY OCTOPUS PTY LTD ABN 38 633 206 096 (Ivory Octopus, our, we or us).

These Terms set out the terms and conditions that apply when you use this Website and if you offer to purchase goods through the Website (Goods).

We may change these Terms at any time by updating this page of the Website, and your continued use of the Website following such an update will represent an agreement by you to be bound by the Terms as amended.

USE OF THE WEBSITE

1.1 ACCESS AND USE OF THE WEBSITE

You must only use the Website in accordance with these Terms and any applicable laws, and must ensure that your employees, sub-contractors and any other agents who use or access the Website comply with the Terms and any applicable laws.

1.2 ACCOUNT REGISTRATION

You will be required to sign up for an account (Ivory Octopus Account).

When you register for an Ivory Octopus Account, you must provide true, accurate and complete information as requested and keep this information up to date after registration. You warrant that you will abide by our Membership Policy wish you may find www.ivoryoctopus.com.au/privacy-policy.

You agree that you're solely responsible for:

(a) maintaining the confidentiality and security of your Ivory Octopus Account information and your password; and

(b) any activities and those of any third party that occur through your Ivory Octopus Account, whether those activities have been authorised by you or not.

You also agree to let us know if you detect any unusual activity on your account as soon as you become aware of it.

We won't be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out of a failure by you to maintain the security of your Ivory Octopus Account information or your password.

1.3 YOUR OBLIGATIONS

You must not:

(a) copy, mirror, reproduce, translate, adapt, vary, modify, sell, decipher or decompile any part or aspect of the Website without the express consent of Ivory Octopus;

(b) use the Website for any purpose other than the purposes of browsing, selecting or purchasing Goods;

(c) use, or attempt to use, the Website in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;

(d) use, or attempt to use, the Website in a manner that may interfere with, disrupt or create undue burden on the Website or the servers or networks that host the Website;

(e) use the Website with the assistance of any automated scripting tool or software;

(f) act in a way that may diminish or adversely impact the reputation of Ivory Octopus, including by linking to the Website on any other website; and

(g) attempt to breach the security of the Website, or otherwise interfere with the normal functions of the Website, including by:

(i) gaining unauthorised access to Website accounts or data;

(ii) scanning, probing or testing the Website for security vulnerabilities;

(iii) overloading, flooding, mailbombing, crashing or submitting a virus to the Website;

(iv) instigating or participating in a denial-of-service attack against the Website.

1.4 INFORMATION ON THE WEBSITE

While we make every effort to ensure that the information on the Website is as up-to-date and accurate as possible, you acknowledge and agree that we do not (to the maximum extent permitted by law) guarantee that:

(a) the Website will be free from errors or defects;

(b) the Website will be accessible at all times;

(d) information you receive or supply through the Website will be secure or confidential; or

(e) any information provided through the Website is accurate or true.

We reserve the right to change any information or functionality on the Website by updating the Website at any time without notice, including product descriptions, prices and other Website Content.

1.5 INTELLECTUAL PROPERTY

(a) Ivory Octopus retains ownership of the Website and all materials on the Website (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Website Content) and reserves all rights in any intellectual property rights owned or licensed by it not expressly granted to you.

(b) You may make a temporary electronic copy of all or part of the Website for the sole purpose of viewing it. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish the Website or any Website Content without prior written consent from Ivory Octopus or as permitted by law.

1.6 LINKS TO OTHER WEBSITES

(a) The Website may contain links to other websites that are not our responsibility.

(b) We have no control over the content of the linked websites and we are not responsible for it.

1.7 SECURITY

Ivory Octopus does not accept responsibility for loss or damage to computer systems, mobile phones or other electronic devices arising in connection with use of the Website. You should take your own precautions to ensure that the process that you employ for accessing the Website does not expose you to risk of viruses, malicious computer code or other forms of interference.

1.8 REPORTING MISUSE

If you become aware of misuse of the Website by any person, any errors in the material on the Website or any difficulty in accessing or using the Website, please contact us immediately using the contact details or form provided on our Website.

1.9 LIABILITY

(a) (Limitation of liability) To the maximum extent permitted by applicable law, Ivory Octopus excludes completely all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this Website, these Terms or any goods or services provided by Ivory Octopus.

Claims for loss of or damage to Goods in transit must be made against the carrier.

Goods sold by Ivory Octopus will have only the benefit of any warranty given by the manufacturer. All other express or implied representations and warranties are, to the maximum extent permitted by applicable law, excluded. Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee into these Terms which may not lawfully be excluded, then to the maximum extent permitted by applicable law, Ivory Octopus's liability for breach of that non-excludable condition, warranty or guarantee will, at Ivory Octopus's option, be limited to:

(i) in the case of goods, their replacement or the supply of equivalent goods or their repair; and

(ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.

(b) (Indemnity) You agree to indemnify Ivory Octopus and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from your or your representatives' use of the Website or of any goods or services provided by Ivory Octopus.

(c) (Consequential loss) To the maximum extent permitted by law, under no circumstances will Ivory Octopus be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this Website, these Terms or any goods or services provided by Ivory Octopus (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).

1.10 PRIVACY

You agree to be bound by the clauses outlined in Ivory Octopus's Privacy Policy, which can be found www.ivoryoctopus.com.au/privacy-policy.

SUPPLY TERMS

2.1 OFFER TO PURCHASE

(a) By submitting an order for purchase of a Good using the Website's functionality (Purchase Order) you represent and confirm that you:

(i) have the legal capacity and are of sufficient age to enter into a binding contract with us; and

(ii) are authorised to use the debit or credit card included in your order.

(b) Submitting a Purchase Order constitutes your intention and offer to enter into a contract, where we will provide you with the Goods you have ordered in exchange for your payment of the total amount listed upon checkout. A contract is not formed until we have approved your payment and you receive an email from us confirming that your order is being processed.

(c) You can cancel or change your Purchase Order within 24 hours. If you cancel or change your Purchase Order after 24 hours, you will be liable for shipping costs, and if applicable, and custom fees and clause 2.8 will apply.

2.2 PAYMENT

(a) (Payment obligations) Unless otherwise agreed in writing:

(i) if Ivory Octopus issues an invoice to you, payment must be made by the time specified in such invoice;

(ii) in all other circumstances, you must pay for all Goods on or prior to Ivory Octopus dispatching the Goods for delivery; and

(iii) you must not set off any money alleged to be owing by Ivory Octopus against money due by you to Ivory Octopus.

(b) (GST) Unless otherwise indicated, amounts stated on the Website include GST. In relation to any GST payable for a taxable supply by Ivory Octopus, you must pay the GST subject to Ivory Octopus providing a tax invoice.

(c) (Card surcharges) Ivory Octopus reserves the right to charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).

(d) (Online payment partner) We may use third-party payment providers (Payment Providers) to collect payments for Goods. The processing of payments by the Payment Provider will be, in addition to these Terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.

2.3 CANCELLATION

We reserve the right to cancel your order for any reason, and will notify you of this as soon as possible. Where payment has already been debited, the full amount will be credited back to your original method of payment.

2.4 PRICING ERRORS

In the event that we discover an error or inaccuracy in the price at which your order was purchased (including shipping prices), we will attempt to contact you and inform you of this as soon as possible. You will then have the option of purchasing your order at the correct price, or cancelling your order. If you choose to cancel your order and payment has already been debited, the full amount will be credited back to your original method of payment.

2.5 DELIVERY AND SHIPPING

(a) (Delivery) For Goods to be delivered, Ivory Octopus may charge you for delivery at any time (notwithstanding that it may not have previously done so). Where prices are stated as inclusive of delivery, delivery is to the delivery point specifically accepted by Ivory Octopus.

(b) (Shipping) All delivery times provided to you are estimates only and are subject to postal delays and reasons beyond our control. We do not warrant or make any representation that your order will be delivered within the times indicated. We will not be liable for any loss or damage suffered as a result of or in connection with late deliveries.

2.6 TITLE AND RISK

(a) (Title) Until the price of Goods is paid in full, title in those Goods is retained by Ivory Octopus.

(b) (Risk) Risk in the Goods will pass to you on delivery. Delivery must not be refused by you.

(i) or you otherwise fail to comply with these Terms, and by the terms of sale credit has been extended to you, Ivory Octopus reserves the right to revoke such credit and demand immediate payment before any further shipment of Goods;

(ii) you must pay Ivory Octopus interest at the rate of 12% per annum on each amount outstanding, from the due date for payment to the date on which the payment is received by Ivory Octopus;

(iii) you authorise Ivory Octopus, its employees and agents to enter any premises occupied by you or any other place where the Goods are located and use reasonable force to retake possession of the Goods without liability for trespass or any reasonable damage;

(iv) Ivory Octopus may at its option keep or resell Goods retaken from you; and

(v) if you sell Goods or items into which the Goods are incorporated before payment in full to Ivory Octopus, you acknowledge that such sale is made by you as bailee for and on behalf of Ivory Octopus, to hold the proceeds of sale on trust for Ivory Octopus, in an account in the name of Ivory Octopus, and you must pay that amount to Ivory Octopus on demand.

2.7 CUSTOMS AND DUTIES

Ivory Octopus reserves the right to refuse international orders. Approved international orders may be subject to customs and import duties upon reaching its country of destination. You will be responsible for paying all customs and import duties and acknowledge that failure to pay may result in your order being held at customs. We will not be liable for any costs you may incur in having your order released from customs, including reimbursing you for any customs or import duties you may pay.

2.8 RETURNS & EXCHANGES

(a) Returns of Goods will only be accepted if:

(i) the Goods are faulty and you comply with the provisions of this clause; or

(ii) the Goods are new, unused and tagged (if applicable) (Original Condition);

(iii) the Goods are returned within 10 business days of you receiving it; and

(iv) we agree in writing to accept return of the Goods.

(b) (Change of size exchanges) If you have ordered Goods that are clothing goods that you would like to exchange for a different size, please let us know by emailing us details of your order and the size you would like instead. We will do our best to exchange the clothing for the new size you've requested and, if we are unable to do so, we will provide you with a store credit or refund (at our option).

(i) are returned within 14 days of purchase;

(ii) are returned in their Original Condition, in which case you must bear the shipping costs and email us a shipping receipt ; and

(iii) are exchanged for other Goods; or

(iv) are exchanged for store credit which is valid for 90 days from the date of item return.

(d) (Faulty products) If you believe your Goods are faulty, please contact us using the details provided on our website with a full description of the fault (including images if possible).

If we determine that your Goods may be faulty, we will request that you send the product back to us at your cost for further inspection, including any accessories, manuals, documentation or registration shipped with the product. We reserve the right to further inspection before deeming a product faulty.

If we determine in our reasonable opinion that the product is not faulty, or is faulty due to fair wear and tear, misuse, failure to use in accordance with the manufacturer's instructions, or failure to take reasonable care, we will refuse your return and send the product back to you at your own cost.

If we determine that the product is faulty, you will be credited the full amount paid (including shipping costs) and you may request a refund, exchange or store credit. All refunds will be credited back to your original method of payment unless you request otherwise and we approve this request.

If you fail to comply with the provisions of this clause in respect of defective Goods, we may, in our discretion, issue only a partial refund or no refund in respect of such defective Goods, provided that nothing in this clause is intended to limit the operation of any manufacturers' warranties which you may be entitled to or any of your rights which cannot be excluded under applicable law.

GENERAL

(a) (Governing law) This agreement is governed by the law applying in Victoria, Australia.

(b) (Jurisdiction) Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia, and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

(d) (Waiver) No party to these Terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

(e) (Further acts) Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to these Terms.

(f) (Assignment) A party cannot assign, novate or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of the other party.

(g) (Entire Agreement) These Terms embody the entire agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of the Terms.

(h) (Interpretation) In these Terms, the following rules of interpretation apply:

(i) (singular and plural) words in the singular includes the plural (and vice versa);

(ii) (gender) words indicating a gender includes the corresponding words of any other gender;

(iii) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(iv) (person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(v) (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(vi) (these Terms) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of these Terms, and a reference to these Terms includes all schedules, exhibits, attachments and annexures to it;

(vii) (document) a reference to a document (including these Terms) is to that document as varied, novated, ratified or replaced from time to time;

(viii) (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(ix) (includes) the word "includes" and similar words in any form is not a word of limitation; and

(x) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

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