Vivify Textiles - Terms and Conditions
- This website at www.vivifytextiles.com (Site) is a shopping website where you can browse, select and order products advertised on the Site from Swan Living Pty Limited (ABN 96 602 775 968) trading as Vivify Textiles (Vivify Textiles, us, we or our).
- Please read these terms and conditions before accessing or using the Site. If you are under 18 years of age, then you must obtain your parent or guardian’s consent before accessing and using the Site.
- Your access to and use of the Site, including your order of Products through the Site, is subject to these terms and conditions.
- The terms and conditions also apply to the sale of any Products via methods other than the Site, including sales by telephone, in person or other means, unless otherwise agreed in writing.
3. Intellectual Property
- The information contained in this Site is provided in good faith on an "as is" basis. Vivify Textiles does not represent or warrant to the reliability, accuracy or completeness of the information contained on this Site.
- To the extent permitted by law, Vivify Textiles is not responsible or liable for any Liabilities (direct, indirect or consequential losses and damages) arising in any way (including without limitation negligence) for errors in, or omissions from, the information in this Site.
- acknowledge that the copyright in the Site, the software, design, text and graphics comprised in the Site, the selection and layout of the Site and the content and materials on the Site (together, the Material) are owned by or licensed to us;
- must not modify, copy, adapt, store in a retrieval system, reproduce, upload, post, transmit, sell, distribute in any way or communicate to the public a Material without our prior written consent;
- must not frame or embed in another website any of the material appearing on this Site without our prior written consent;
- must not yourself do or assist any third party to damage, infringe or challenge the Intellectual Property rights of Vivify Textiles in the Material or the Products; and/or
- must as soon as reasonably practicable notify Vivify Textiles if you become aware of any third-party infringement or unauthorised use of the Material or the Products.
- You may:
- store a reproduction of the content on this Site on your local computer for the sole purpose of viewing the content and Materials; and
- print hard copies of the content and Materials for the sole purpose of viewing and purchasing Products but not for any other use, including commercial use.
- This Site, the Products and any ancillary materials or documents owned or used by Vivify Textiles in connection with the sale of the Products and promotion of its business contains registered trademarks which are protected by law and other branding, images, content which constitute the Intellectual Property of Vivify Textiles. You must not use any of the marks or trademarks appearing on the Site or our name or the names of our related bodies corporate or any of our Intellectual Property without our prior written consent.
- Vivify Textiles does not claim that any information (including any files) obtained from or through this Site is free from viruses or other faults or defects.
- You are responsible for scanning any information for viruses.
- You agree that Vivify Textiles has no responsibility or liability to you or any other person for any loss or damage (whether direct, indirect, consequential or economic), regardless of cause, negligence or otherwise, which may be the direct or indirect result of any such information.
- If Vivify Textiles is found to be liable this will be limited to the cost of supplying the information again.
5. Compliance with these Terms and Conditions
- You agree to be bound by, and comply with, these terms and conditions by:
- using the Site;
- completing your registration through the Site; and/or
- obtaining or ordering Products from us using the Site or by any other method of sale.
6. Changes to these Terms and Conditions
- If you have an Order that has been accepted by us, the terms and conditions that will apply to that Order are the terms and conditions that applied at the time you place your Order. We cannot vary the terms and conditions which apply to a given Order after that Order is accepted by us.
- Subject to clause 6.1, we may change these terms and conditions at any time, and such modifications will be effective as soon as they are posted. By continuing to use the Site after these terms and conditions have been modified, you agree to be bound by the changes to these terms and conditions.
7. Registration and Loyalty Program
- Participation in our Loyalty Program is open to individuals with a unique email address and a physical street address whom complete the customer registration process through the Site.
- To earn loyalty credits you must log in to your unique customer account before purchasing a Product though the Site.
- Credit points may be earned as follows:
- 10 (ten) credit points per one Australian dollar spent on eligible transactions as determined by us from time to time;
- during promotional or incentive days communication from time to time.
- Credit points are generally added to your customer account within 30 days following receipt by us of payment in full of your Order.
- We may deduct from your customer account any credit points which have been credited to you in error or which relate to an Order which has been cancelled, reversed or refunded.
From every 500 credit points earned you will receive a Discount Code by email to your nominated email address.
- Discount Codes are redeemable through this Site only.
- Discount Codes can only be used once, and no change will be given. If the purchase price of the Products is less than the value of the Discount Code then the remaining balance will be forfeited.
Discount Codes may only be applied to the GST-inclusive or VAT-inclusive price of the Products (if applicable).
Discount Codes may not be applied to the delivery fee for delivering the Products to you or any other fees and charges.
- Discount Codes cannot be redeemed for cash.
- Discount Codes are valid for the time stipulated on the coupon and any remaining balance after expiry will be forfeited.
- We reserve the right to refuse to accept a Discount Code as payment where we reasonably suspect that the Discount Code may have been stolen or obtained in an illegal or unauthorised manner.
- We reserve the right to suspend, change or terminate your participation in the Loyalty Program if we reasonably suspect that you have breached these terms and conditions or have engaged or may engage in fraudulent conduct.
- We may terminate the Loyalty Program at any time by providing at least 30 days’ notice on this Site.
8. Placing an Order for Products
- You may order Products by selecting and submitting your Order through the Site in accordance with these terms and conditions.
- Any Order placed through this Site for a Product is an offer by you to purchase the particular Product for the Price notified at the time you place the Order, subject to clause 9.4.
- Minimum Order Quantities are subject to change without notice. We reserve the right to impose or change Minimum Order Quantities at any time before we accept an Order from you.
- We may ask you to provide additional details or require you to confirm your details to enable us to process any Orders placed through the Site.
- You agree to provide us with current, complete and accurate details when asked to do so by the Site.
9. Prices, Fees and Charges
- The prices of Products and delivery and other charges displayed on this Site are current at the time of issue, however, we reserve the right to change Product prices at any time before we accept an Order from you.
- All prices shown on this Site are in Australian Dollars (AUD).
- We will charge you, and you agree to pay, the following fees and charges in relation to an Order that we accept (as applicable):
- the purchase price of each Product that is ordered;
- the delivery fee for delivering the Products to you; and
- any other fees and charges set out in these terms and conditions,
(collectively, the “Price”).
Prices are subject to change without notice. There may be duties and taxes added to your Order by the destination country. You will be responsible for these taxes and duties upon delivery and are not included the Price. All credit cards are charged in Australian Dollars. Non-Australian currency figures are all approximations based on the exchange rate applicable at the time.
- We may accept United States Dollar (USD) or Euro (EUR) upon request. Requests for payment in a currency other than AUD may be made by sending an email to email@example.com.
- For Australian-based purchasers, all fees and charges identified in these terms and conditions and all Prices as shown on the Site are exclusive of GST (unless otherwise indicated).
- If applicable, all fees and charges identified in these terms and conditions and all Prices as shown on the Site are exclusive of VAT.
- We will issue you with a tax invoice for the Price as soon as practicable following our acceptance of your Order.
- For any Sample Orders, payment of the Price must be made in full at the time you place the Sample Order.
- For any Bulk Orders, you must pay:
no less than 65% of the Price at the time you place the Bulk Order; and
the balance of the Price within 14 of the date of the invoice issued under clause 9.8.
- We will not dispatch the Products to you unless and until payment is made by you and received by us in full.
10. Acceptance or Rejection of an Order
- We reserve the right to accept or reject your Order for any reason, including (without limitation) if the requested Product is not available, if there is an error in the Price or the product description posted on the Site or in your Order.
- Each Order placed for Products through the Site or any other means that we accept results in a separate binding agreement between you and us for the supply of those Products. For each Order accepted by us, we will supply the Products in that Order to you in accordance with these terms and conditions.
- If we reject an Order placed through the Site, then we will endeavour to notify you of that rejection at the time you place the Order or within a reasonable time after you submit your Order and will refund your deposit within 10 business days of rejection.
11. Cancelling an Order (by Us)
- Prior to the dispatch of an Order, we may cancel all or any part of an Order (including any Orders that we have accepted) without any liability to you for that cancellation if:
- the requested Products in that Order are not available; or
- there is an error in the Price or the product description posted on the Site or in any other sales platform in relation to the relevant Product in that Order;
- we consider that the postage price selected in the checkout does not match the applicable price for the delivery address;
- your Order weight exceeds our maximum postal delivery weight (in which case we will contact you to make alternative arrangements where possible);
- that Order has been placed in breach of these terms and conditions; or
- we are unable to supply or deliver the Product to you as a result of a Force Majeure Event.
- If we do so, then we will endeavour to provide you with reasonable notice of that cancellation, and will not charge you for the cancelled Order if we cancel it before the delivery date or if you are not at fault or in breach of these terms and conditions. Any payment made by you will be refunded within 10 business days of the date of cancellation.
12. Cancelling an Order (by You)
- Sample Orders may not be cancelled once submitted via this Site or via any other method of sale. Should you wish to correct your delivery address or contact details prior to the Order being dispatched, please Contact Us and we will endeavour to assist you.
- Sample Meterage Orders and bulk Orders may be cancelled by email to firstname.lastname@example.org. Cancelling a Sample Meterage Order or Bulk Order will result in cancellation fees being applied as outlined below:
- if you cancel your Order before the Order has progressed to production, an amount equivalent to 10% of the Price will be forfeited by you to Vivify Textiles;
- if you cancel your Order after the Order has progressed to production or processing stage, an amount equivalent to 65% of the Price will be forfeited by you to Vivify Textiles;
- if you cancel your Order after the Product has been finished, 100% of the Price will be forfeited by you to Vivify Textiles.
13. Delivery of Products
- The Lead Times displayed on this Site are estimates only. We will not be liable to you if the Products are not produced in accordance with the Lead Times displayed on this Site.
- Please see the Shipping section of this Site for information on delivery times and costs.
14. Risk and Title
- Title in the Products will pass to you upon receipt by us of payment of the Price in full.
- Risk in the Products will pass to you upon dispatch of the Products by us, unless otherwise set out in our Shipping Policy or agreed by us in writing. Please see the Shipping section of this Site for information.
15. Force Majeure
- Vivify Textiles is not responsible for any failure to perform its obligations under these terms and conditions if it is prevented or delayed in performing those obligations by or in connection with a Force Majeure Event.
- We will notify you as soon as practicable of any interruption to production, supply or delivery as a result of a Force Majeure Event.
- A delay in supply, production and/or delivery of the Product to you arising from or in connection with a Force Majeure Event will not entitle you to cancel the Order and our policy under clause 12 will continue to apply.
16. Returns & Refunds
- We do not offer refunds or exchanges for incorrect purchases or change of mind.
- Unless you notify us to the contrary by email within seven (7) days of delivery of any Products and such notification is confirmed by return email within seven (7) days of its receipt by us, the Products shall be deemed to have been accepted by you.
Please follow the care instructions as outlined in product description as we are unable to accept claims on Products which have been laundered incorrectly. We cannot guarantee the colour of Products as depicted on the Site due to variances beyond our control such as computer monitor settings. If you are not sure if the Product sample on the Site is the correct colour, texture, pattern, weight or style, please place a Sample Order or contact us before you make your purchase. Since some of the fabrics are stretchy, please allow +/- 5% colour allowance, +/- 10% fabric weight and +/- 20% fabric final length for alteration.
- Please see Returns on the Site for more information on our Return Policy.
17. Your Obligations
18. Warranty and Liability
- You covenant and warrant that:
- all information and data provided by you to us through the Site (including as part of the customer registration process) or otherwise is true, accurate, complete and up to date;
- the person receiving the Products at the Delivery Address is authorised by you to do so;
- you have and will comply with all relevant laws relating to your use of the Site and your placement of any Order to us;
- you will ensure that your LoginID and password that is used to access the Site and the details of your account is kept in a safe and secure manner;
- you will promptly notify us if you are or become aware that there is or has been an unauthorised use of your LoginID and password or account, or any other security breach relating to your account;
- you will promptly advise us of any changes to your information provided to us as part of the customer registration process;
- you are responsible for any costs associated with your access to or use of the Site, including Internet access fees;
- you are responsible and liable for any person that uses your LoginID and password to order Product(s) through the Site;
- you agree that we may charge you for all Products that we agree to supply to you that have been ordered using your LoginID and password through the Site;
- you will check the labels on the Products before consumption or use; and
- you have satisfied yourself as to the colour, texture, pattern, weight and style of a Product before placing a Bulk Order. If you are not sure if the Product sample depicted on the Site is the correct colour, texture, pattern, weight or style, it is your responsibility to order a Sample Order before you make your Bulk Order purchase.
- You must not:
- use the Site for any activities that breach any laws, infringe a third party’s rights or are contrary to any relevant standards or codes;
- use the Site in a manner or way, or post to or transmit to or via the Site any material, which interferes with other users or our other customers or defames, harasses, threatens, menaces or offends any person or which prevents any other person from using or enjoying the Site;
- make fraudulent or speculative enquiries, purchases or requests through the Site;
- use another person’s details without their permission or impersonate another person when using the Site;
- post or transmit any obscene, indecent, inflammatory or pornographic material or any other material that may give rise to civil or criminal proceedings;
- tamper with or hinder the operation of the Site;
- knowingly transmit any viruses, worms, defects, trojan horses or similar disabling or malicious code to the Site;
- use any robot, spider, site search and retrieval application or other mechanism to retrieve or index any portion of the Site;
- modify, adapt, translate or reverse engineer any portion of the Site;
- remove any copyright, trade mark or other proprietary rights notices contained in or on the Site;
- reformat or frame any portion of the web pages that are part of the Site;
- create accounts by automated means or under false or fraudulent pretences;
- use the Site to violate the security of any computer or other network or engage in illegal conduct;
- take any action that imposes or that would, in our reasonable opinion, result in an unreasonable or disproportionately large load on our infrastructure;
- use the Site other than in accordance with these terms and conditions; or
- attempt any of the above acts or engage or permit another person to do any of the above acts.
- Vivify Textiles accepts liability for all legal guarantees and warranties expressed or implied to the transactions under the Australian Consumer Law, or any other legislation in each State and Territory of Australia, the effect of which cannot be excluded.
- Our Products may come with guarantees that cannot be excluded under the Australian Consumer Law. You may be entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You may also be 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.
- We represent and warrant that the Products are:
- of merchantable quality; and
- do not have a safety defect or defect,
within the meaning of Australian Laws.
- Where we are permitted by law (and subject to clause18.1):
- we do not warrant or represent the suitability of the Site or a Product for any purpose; and
- we do not warrant the colour, texture, pattern, weight or style of Products as depicted on the Site; and
- we will not be liable to you for indirect and consequential loss (including without limitation for loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind) or loss or corruption of data, in contract, tort, under any statute or otherwise (including negligence) arising from or connected to the Site or the Product.
- To the maximum extent permitted by law, under no circumstance will we be liable for any loss or damage caused by your reliance on information or Products obtained or purchased through the Site.
- To the fullest extent permitted by law, our liability for breach of any guarantee, which cannot be excluded, is limited at our option to, in the case of Products or services supplied or offered by us which are not of a kind ordinarily acquired for personal, domestic or household use or consumption:
- the supply of the Products or services again; or
- the payment of the cost of having the Products or services supplied again.
- Except for the rights, guarantees and remedies which cannot be excluded, restricted or modified:
- we exclude all liability (including liability arising as a result of its negligence) for any indirect or consequential expenses, losses, damages or costs, loss of profit, lost revenue, business interruption and loss of data incurred or suffered by or awarded against you under or in any way connected with this Site; and
- we limit our liability in relation to any direct loss to the purchase price of the Product the subject of the claim (excluding delivery fees or any other charges).
- Our liability to you for loss or damage of any kind arising out of this agreement or in connection with the relationship established by it is reduced to the extent (if any) that you cause or contribute to the loss or damage. This reduction applies whether our liability is in contract, tort (including negligence), under any statute or otherwise.
19. Termination and/or Suspension of Account
- We may terminate this agreement for convenience at any time on notice to you. Without qualifying the foregoing, we may immediately suspend, terminate or limit your access to and use of the Site and (where relevant) your account if we reasonably suspect that you have commit fraudulent act and/or you breach these terms and conditions.
20. General Provisions
- If the whole or any part of a provision of this agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this agreement or is contrary to public policy.
- This agreement is governed by the laws of Australia. Each party submits to the non-exclusive jurisdiction of the courts of that place.
- A party must not start court proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause.
- A party claiming that a dispute, difference or question arising out of this agreement, including a question as to whether certain services are in scope or not, has arisen (Dispute) must give the other party notice of the details of the Dispute (Dispute Notice).
- The parties must negotiate in good faith a resolution to the Dispute.
- f the parties are unable to resolve the Dispute within 14 days of the Dispute Notice being issued, the parties must refer the Dispute for mediation by the Australian Commercial Dispute Centre Limited for resolution in accordance with the Conciliation Rules of the Australian Commercial Dispute Centre.
- f the parties cannot resolve a Dispute in accordance with the escalation procedure in this clause, each party may commence court proceedings.
- If a party breaches this clause in relation to a Dispute, the other party need not comply with this clause in relation to that Dispute.
- The parties must continue to perform their respective obligations under this agreement pending the resolution of a Dispute.
- Each party must pay its own costs of complying with this clause.
- A notice, demand, consent, approval or communication under this agreement (Notice) must be:
- in writing, in English and signed by a person duly authorised by the sender; and
- hand delivered or sent by prepaid post or email to the recipient's address for Notices specified in the Order or the customer’s account, as varied by any Notice given by the recipient to the sender.
- A Notice given in accordance with this clause takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
- if hand delivered, on delivery;
- if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia);
- if sent by email, when the sender’s email system generates a message confirming successful transmission of the entire Notice unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire Notice,
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
- Capitalised terms used are defined in these terms and conditions.
- The definitions used in these terms and conditions apply across all of our policies and the Site, unless the context requires otherwise.
- In these terms:
“Agreement” means the agreement constituted by these terms and conditions, and any other terms and conditions relating to the supply relationship between the parties which are agreed by the parties and recorded in written correspondence between the parties.
“Australian Consumer Law” means the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory.
“Australian Laws” means all applicable laws of Australia and its states and territories, including the Australian Consumer Law.
“Bulk Order” means an Order to purchase a large quantity of Products in accordance with any Minimum Order Quantity required by Vivify Textiles from time to time.
“Business Day”means a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received.
“Confidential Information” means any information provided by the Seller to the Purchaser concerning its product requirements, product specifications, business, Purchasers (including Purchaser names, contact details, product requirements, product spend details, the types and specifications of products and service supplied by the Seller to its Purchasers, the prices and terms on which the Seller provides products and services to its Purchasers), contracts, system and system access details, Purchaser ordering and business software, product cost and pricing, sales methods and techniques, sales figures, marketing plans, budget and other financial information, employee details, internal business policies and procedures, and any information generated during and as a result of the Agreement (including any pricing arrangements, rebates, settlement discounts, terms of payment, other terms of trade, joint marketing plans and artwork, design and specifications for any products manufactured specifically at the Seller’s request), but does not include:
a. Information or knowledge which is already publicly known or which subsequently becomes generally publicly known other than as a direct or indirect result of a breach of this Agreement; or
b. Information or knowledge which is required to be disclosed by law.
“Discount Code” means a code issued by Vivify Textiles which enables the code holder to receive a discount on the purchase price of eligible Products, as nominated by Vivify Textiles.
“Force Majeure Event” means an act of God, pandemic, fire, lightning, earthquake, explosions, flood, subsidence, insurrection or civil disorder or military operations or act of terrorism, expropriation, strikes, lock-outs or other industrial disputes of any kind not relating solely to the party affected, and any other event which is not within the reasonable control of the party affected but does not include any act or omission of the other party.
“GST” has the meaning it has in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Intellectual Property” means all current and future registered and unregistered rights in respect of copyright, trade marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation 1967.
“Lead Times” means the time between the initiation and completion of the production process in relation to a Product.
“Liabilities” means all direct and/or indirect liability for: costs; damages; losses; claims, causes of action, accidents; injuries; deaths; law and traffic violations; and expenses including but not limited to legal fees.
“LoginID” means the email address and that you provided to us as part of the registration process to use the Site.
“Loyalty Program” means the membership loyalty program offered by Vivify Textiles through the Site.
“Minimum Order Quantity” or “MOQ” or means the minimum amount of a Product that the customer must Order in order to purchase the Product for a reduced purchase price, as determine by Vivity Textiles in its sole discretion.
“Order” means an order made by a customer to purchase Products from Vivify Textiles through the Site or any other method of sale agreed between the parties.
“Payment” refers to online payment that Purchaser submit to Seller at the point of online check out. Payment can be done with Paypal or the following options:
BSB: 012 257
Account number: 406 929 338
Account name: Swan Living Pty Ltd T/A Vivify Textiles
For Euro only:
BIC/Swift Code: TRWIBEB1XXX
IBAN: BE80 9670 1485 2177
Account name: Vivify Textiles
Address: Avenue Louise 54, Room S52, Brussels 1050 Belgium
For AUD only:
BSB Code: 802-985
Account name: Vivify Textiles
Address: 36038 Gipps Street, Collingwood 3066 VIC Australia
For USD only:
Account number: 8310335891
Bank code (SWIFT / BIC): CMFGUS33
Account name: Vivify Textiles
Address: 19 W 24th Street, New York 10010 United States
“Price” means the total price or prices set out in the order, in accordance with clause 9.3 of these Terms and Conditions. The Price excludes duties and taxes which may be added to your order by the destination country. You will be responsible for these taxes and duties upon delivery and are not included in your Order total, unless otherwise agreed by Vivify Textiles in writing.
“Product’ means each good or service that is advertised on the Site.
“Sample Order” means an Order by a customer to purchase a Swatch and/or sample meter of a Product and/or of a quantity below the Minimum Order Quantity.
“Swatch” means a small sample of a fabric Product.
“VAT” means value added tax.