Terms and Conditions

Application

This page highlights the terms and conditions that applies to our products and services listed in our website www.vivifytextiles.com to you. Please carefully read through these terms and conditions before ordering any products from our website. Vivifytextiles.com reserves all rights to make changes to this site and these terms and conditions at any time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system's capabilities.. 

Copying our information and materials are strictly prohibited. They are not to be reproduced, modified, republished, distributed or posted in any form or means without Vivify Textiles' consensus and written permission. 

By ordering or registering on Vivifytextiles.com you grant us the right to add your contact details to our database. From time to time we may contact you about offers and new products. You can easily be removed by either unsubscribing via a link or contacting our Customer Service at customersupport@vivifytextiles.com and we will remove you from marketing communications. For more information about our Privacy and Data Protection Policy, please click here

 

Information About Us

Vivify Textiles is a trading business under Swan Living Pty Limited ABN (96 602 775 968). 

For any enquiries, please contact us via email. We will aim to get back to you within 48 - 72 hours.

Seller: Vivify Textiles

Purchaser: Any customers make transaction on our website or through our offline portal

  

1. Sale of Products

1.1 In exchange for the Price, the Seller agrees to sell the Products to the Purchaser, on receipt of a Purchase Order, on the terms of this agreement.

1.2 When the Purchaser requires Products to be delivered by the Seller, the Purchaser must submit a Purchase Order to the Seller, setting out:

a. the quantity of Products that the Purchaser wishes to purchase;

b. the type of Products that the Purchaser wishes to purchase; and

c. the total Price that the Purchaser will pay to the Seller under the Details.

1.3 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 in your order total. All credit cards are charged in Australian Dollars. Non-Australian currency figures are all approximations based on the exchange rate applicable at the time.

1.4 Domestic deliveries are only attempted once and the driver will leave a card notifying you to call back and reschedule the delivery. You are to provide legit correct physical address as addresses such as PO boxes and Locked Bags are not reachable. If you provide the incorrect address or do not call back the courier services within 5 days, order will be bounced back and products will be sent back to us. In that case, you will need to reorganise delivery again at your own cost. Vivifytextiles.com cannot be held responsible for incorrectly entered delivery addresses. 

1.5 Order delivery in some case will be broken down or split due to back order. We will notify you the order status when this happens. 

1.6 For International deliveries, it will be at your own risk (e.g. delivery will be marked as abandoned) if you do not proceed to pay for your custom charges. Once the goods are scheduled to be picked up, Vivifytextiles.com will not be liable for any loss or damages of goods due to any uncontrolled factors such as weather and customs in your delivery process. It is advised that you add delivery insurance to protect your right for any unexpected matters.  

1.7 On confirming Purchaser's purchase agreement, the Seller must, as soon as practicable, issue to the Purchaser a tax invoice for the Price.

1.8 The Purchaser must pay a minimum 50% deposit upon placing the order, with any remainder to be paid upon receipt of invoice.

1.9 [AU Purchasers only] Seller reserves the right to recover from Purchaser all goods and services tax (GST) payable in respect of the supply of goods and services to Purchaser.

1.10  Coupons are redeemable only on the Vivifytextiles.com website. 

a. The special offer included can be used via our website www.vivifytestiles.com or via email orders. This offer cannot be used with any other discount or promotion and is not redeemable for cash. The validity is displayed on your personalised voucher.

b. In the case of a multiple-item order, the value of the coupon is allocated to each item based on the proportion of the item's value to the total value of all items, excluding shipping and other charges. 

c. Sales items are not refundable and exchangeable. If the coupon is used partial to your order through Vivifytextiles.com, and you wish to cancel your order completely, only the non-promotional items are refundable on if the order is stopped before fabric production. 

d. If a coupon is used and your entire order is cancelled or rejected, discount from coupon will no longer applicable for the transaction. 

e. If you have already placed an order before the coupon code valid, coupon code cannot be applied once order is processed. 

1.16 The Seller reserves the right to vary or discontinue a coupon or promotional offer at any time without notice. 

 

2. Acceptance of Products

2.1 When the Products are delivered to the Purchaser, the Purchaser will have 7 days to inspect the Products for:

a. any faults;
b. to ensure that the Products comply with any specifications or other requirements set out in any advertising material provided by the Seller, or on the website of the Seller; and
c. to ensure that the Products comply with any legal requirements.

2.2 If, after inspection, the Purchaser is satisfied with the Products, the Purchaser must communicate this to the Seller. If the Purchaser does not communicate acceptance to the Seller within 7 days of delivery under clause 2.1, the Purchaser will be deemed to have accepted the Products.

2.3 If, after inspection, the Purchaser is not satisfied with the Products, the Purchaser must communicate this to the Seller. The Seller must then make arrangements for the return of the Products at the Seller, after inspection

a. a refund of the Price; and
b. repair and re-delivery of the Products, at the Seller’s cost; or
c. replacement and delivery of the replacement Products, at the Seller cost.

2.4 Any disputes arising under this clause 2 will be resolved through the process outlined in clause 7.

 

3. Title to Products

3.1 Title to the Products and risk associated with the Products passes to the Purchaser on acceptance under clause 2. The risk of any loss, damage or destruction, regardless of the cause, will be the responsibility of the Seller until the Products are delivered and accepted under clause 2.

3.2 The Seller warrants that the Products are free from any encumbrances, security interests or liens, and that the Seller has full title, authority and legal rights to sell the Products to the Purchaser.

3.3 The parties acknowledge the Personal Property Securities Act 2012 (Cth) and agree that neither party will lodge any instrument to register their interest in the Products without having the legal right to do so, and without first notifying the other party under clause 8.

3.4 The Purchaser acknowledges and agrees that the Seller shall be the sole and exclusive owner of all Intellectual Property Rights related to any and all Products and other works, developed, made, written, created, discovered or designed by the Seller, its employees, agents and Sellers, in the course of, or for the purposes of, providing the Products and Services.

 

4. Confidentiality and Privacy

4.1 Each party:

a. may use Confidential Information of the other party solely for the purposes of performing its obligations under this agreement;
b. except as permitted under clauses 1(c) and 1(d), must keep confidential all c. Confidential Information of the other party;
d. may disclose Confidential Information of the other party only to employees or contractors who:

i. are aware and agree that the Confidential Information of the other party must be kept confidential; and
ii. either have a need to know (and only to the extent that each has a need to know), or have been specifically approved by the other party; and

e. may disclose Confidential Information if required by a court, rule or governmental law or regulation, or the rules of any stock exchange, provided that the party making the disclosure provides prompt notice to the other party of any such requirement.


4.2 If a party wants to disclose the other party’s Confidential Information to a person other than that other party, its employees or contractors (Third Person) or other than in accordance with clause 1(d), that party must require the Third Person to enter a confidentiality agreement on substantially similar terms to those confidentiality requirements specified in clause 4.1.


4.3 Each party must comply with:

a. the reasonable directions of the other party in relation to the handling of any Personal Information that the party holds or has held; and
b. the Privacy Act 1988 (Cth). 

 

5. Liability, warranties and indemnities

5.1 The parties will not be liable to each other under this agreement, under any circumstances, for any special, consequential, incidental, exemplary or indirect costs or damages, litigation costs, installation and removal costs, or loss of data, production or profit. Neither party will be liable to the other for any amount exceeding the Price.

5.2 The parties acknowledge that the Competition and Consumer Act 2011 (Cth) provides certain warranties and guarantees to consumers, given by sellers of goods, and that the Purchaser may be compelled by that law to give these warranties and guarantees to the Purchasers. Accordingly, the parties agree to incorporate those warranties and guarantees into this agreement, such that they are given by the Seller to the Purchaser. Those warranties and guarantees are given by the Seller to the Purchaser irrespective of whether the Products would ordinarily be covered by the Competition and Consumer Act 2011 (Cth).

5.3 The Seller indemnifies the Purchaser for any loss incurred by the Purchaser as a result of any breach of the warranties or guarantees in clause 3.2 by the Seller.

5.4 [AU Purchasers only] The Purchaser warrants that at the time any supply is made under this Agreement on which a goods and services tax (“GST”) is imposed, it will be registered for GST purposes with an ABN number, and will provide evidence of the same on request. Any invoice rendered by the Purchaser which seeks to recover an amount of GST payable, must conform to the requirements of a tax invoice as specified in GST law.

5.5 The Purchaser and its employees, agents and sub-contractors must, when within the Company’s boundaries, on its premises or at its facilities, comply with all reasonable directions, policies, signs and procedures relating to occupational health, safety, security, discrimination and harassment, and ethical conduct. 

 

6. Term and termination

6.1 The term of this agreement is the term set out in the Details.

6.2 A party may terminate all or part of this agreement by giving the other party notice if:

a. The other party breaches a term of this agreement and fails to rectify the breach within 30 days after receiving notice requiring it to do so; or
b. An event referred to in clause 6.3 happens to the other party.

6.3 A party must give the other party notice immediately if:

a. it disposes of the whole or any part of its assets, operations or business except in the normal course of business;
b. a step is taken to enter into an arrangement between the party and its creditors;
c. it cannot pay its debts as they become due;
d. stops carrying on business;
e. a mortgagee takes a step to enter into possession or dispose of the whole or any part of its assets or business;
f. a step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of its assets or business; or
g. there is any change in the direct or indirect beneficial ownership or control of the party.

6.4 If a party terminates this agreement in accordance with clause 6.2:

a. the Purchaser must, at the Purchaser’s own cost, return to the Seller any Products which the Purchaser has received and accepted under clause 2, but not paid for under clause 1; and
b. the Seller must refund to the Purchaser any payments made under clause 1 for Products which:

i. the Purchaser has not received; or
ii. which have been rejected under clause 2.3.

 

7. Disputes

7.1 A party must not start court proceedings (except proceedings seeking interlocutory relief) unless it has complied with clause 7.

7.2 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).

7.3 When a Dispute Notice is given, 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.

7.4 If the parties cannot resolve a Dispute in accordance with the escalation procedure in clauses 7.2 and 7.3, each party may commence court proceedings.

7.5 If a party breaches clause 7.1 in relation to a Dispute, the other party need not comply with clause 7.1 in relation to that Dispute.

7.6 The parties must continue to perform their respective obligations under this agreement pending the resolution of a Dispute.

7.7 Each party must pay its own costs of complying with this clause 7.

 

8. Notices

8.1 A notice, demand, consent, approval or communication under this agreement (Notice) must be:

a. in writing, in English and signed by a person duly authorised by the sender; and

b. hand delivered or sent by prepaid post or facsimile to the recipient's address for Notices specified in the Details, as varied by any Notice given by the recipient to the sender.

8.2 A Notice given in accordance with clause 8.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:

a. if hand delivered, on delivery;
b. 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);
c. if sent by facsimile or electronic mail, when the senders facsimile or electronic mail 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.

 

9. Warranties

9.1 The Seller warrants that it will:

a. provide the Products and Services at all times exercising due care, skill and judgment, in a proper manner, and in accordance with the Seller’s specifications;

b. provide the Products and Services in the timeframes specified in the Agreement or as otherwise specified by the Seller;

c. ensure that all methods and procedures employed in performing the Services and supplying the Products are ethical and are, where possible, best practice methods and procedures currently employed in the industry;

d. ensure that only qualified and experienced personnel work on the provision of the Products and Services;

e. provide the Products and Services in accordance with all the Purchaser’s reasonable requirements and directions;

f. prepare and submit to the Purchaser such reports as are required as to the Supplier’s performance as and when required by the Purchaser.

g. ensure that in providing the Products and Services all applicable laws and regulations are complied with; and

h. ensure that no act or omission of the Supplier may or may be likely to prejudice or harm the interests of the Purchaser.

9.2 The Seller warrants that all Products supplied under this Agreement:

a. Are free from any contamination;

b. Comply with all relevant:

i. health;

ii. product packaging and labelling;

iii. transport, handling and storage;

iv. environmental;

v. weights and measures; and

vi. all other relevant legislation, regulations and other requirements of the Commonwealth and all States and Territories of Australia, standards and industry codes of practice;

c. conform with the description given by the Seller;

d. conform with the specifications and the quantities stated in the relevant purchase order and with any samples provided, and otherwise meet the requirements of a purchase order;

e. correspond with any sample in quality;

f. are newly manufactured, free from defects in workmanship and materials, of merchantable quality, free from defect or delivery, and are fit for the purpose and use for which they are acquired;

g. are free from any lien or encumbrance, and the Seller has good marketable title to them;

h. shall, for the lifetime of the product, perform at a level consistent with the Seller’s specifications and representations as to functionality and suitability for purpose, and otherwise satisfy and comply with the terms of any product warranty supplied with the product.

9.3 Without limiting the application of any other clause, the Seller warrants that:

a. the Services and the results thereof will be free from defect or deficiency for a period of 18 months from the date at which they are completed and accepted by the Purchaser;

b. it understands all risks, difficulties, contingencies and other matters relating to performing the Services and the terms and conditions of this Agreement and is able to comply with the same;

c. it has the resources, skill, competence, expertise, experience, knowledge and ability necessary to supply the Services and Products in accordance with this Agreement;

d. it will provide all necessary on-site and off-site personnel needed to ensure it effectively meets its obligations under this Agreement;

e. the personnel engaged by the Seller in the performance of this Agreement are duly qualified to and will perform their obligations in a careful, skillful and diligent manner; and

f. it will have or will at its expense acquire all licenses, permission, permits or authority required to perform the Services and supply the Products, including all intellectual property rights needed.

   

10. General

10.1 Neither party will assign or novate this Agreement without the prior written consent of the other.

10.2 This agreement consists of these Terms and Conditions, the Details and any annexures or schedules to this agreement and constitutes the entire agreement of the Parties about its subject matter and supersedes all previous agreements, understandings and negotiations on the subject matter.

10.3 If there is an inconsistency between any provision of the Details, the Terms and Conditions, a schedule or an annexure of this agreement, then the Details prevail over the Terms and Conditions, the Terms and Conditions prevail over any schedule, and a schedule will prevail over any annexure, each only to the extent of the inconsistency.

10.4 A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power, or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

10.5 Except where this agreement expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this agreement.

10.6 Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this agreement and the transactions contemplated by it.

10.7 Neither party may assign its rights or obligations under this agreement without the prior written consent of the other party which may not be unreasonably withheld. Any assignment will only be effective if it is made by way of a deed of assignment and assumption between the assigning party, the continuing party and the incoming party.

10.8 A term or part of a term of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining terms or parts of the term of this agreement continue in force.

10.9 Any indemnity or any obligation of confidence under this agreement is independent and survives termination of this agreement. Any other term by its nature intended to survive termination of this agreement survives termination of this agreement.

10.10 Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

10.11 Unless otherwise stated, the rights, powers and remedies provided in this agreement are in addition to and not exclusive of the rights, powers and remedies given by law independently of this agreement.

10.12 If force majeure prevents a party from fully or partly performing any obligation under this agreement (except an obligation to pay money), the affected partyrming any obligation under this agration is suspended while the force majeure continues

10.13 This agreement may be executed in counterparts.  All counterparts when taken together are to be taken to constitute one instrument.

10.14 This agreement is governed by the laws of the state of New South Wales, Australia and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the state of New South Wales, Australia.

 

11. Interpretation

11.1 The following words have these meanings in this agreement unless the contrary intention appears:

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.

Coupon here is presented in a coupon code and in order to receive the discount for sales items, all the terms and conditions must be met before coupon application. Coupons apply to the GST inclusive price. 

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.

Details means the section of this agreement headed “Details”.

Intellectual Property Rights means all rights resulting from intellectual activity whether capable of protection by statute, common law or in equity, including copyright, discoveries, inventions, innovations, technical information and data, prototypes, processes, specifications, know-how, patent rights, registered and unregistered trademarks, design rights, circuit layouts, plant varieties, samples, drafts, moulds, artworks, films, proofs, the right to have confidential information kept confidential and all rights and interests of a like nature, together with any and all documentation and other material relating to such rights and interests.

Purchaser means, the group of Purchasers that trade and buy fabrics from the Seller directly and indirectly.

Price means the price or prices set out in the Details. 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 in your order total. All credit cards are charged in Australian Dollars. Non-Australian currency figures are all approximations based on an exchange rate.

Products mean, where applicable, those products of the type customarily supplied by the Seller, and ordered by the Purchaser from the Seller from time to time. Since some of the fabrics are stretchy, please allow +/- 5% colour allowance, +/- 10% fabric weight and +/- 20% fabric final length for alteration.

Purchase Order means the purchase order described in clause 1.

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:

Australian Transfer

Bank: ANZ
BSB: 012 257
Account number: 406 929 338
Account name: Swan Living Pty Ltd T/A Vivify Textiles 

International Transfer

Bank: ANZ
Swift Code: ANZBAU3M
Account number: 012257406929338
Account name: Swan Living Pty Ltd T/A Vivify Textiles
(If it requires IBAN number, please key in our international account number again)

 

Services means the services which the Seller is to provide to the Purchaser, which may be ancillary to the supply of the Products, or as otherwise requested by the Purchaser from time to time.

Special Conditions means those conditions, if any, referred to in the Details.

Tax means all tax, charges, fees and other imposts payable in connection with this agreement.

[delete if non-exclusive] Territory means the territory set out in the Details.

Warranty” or “Warranties” means any all conditions, warranties and terms implied by statute, general law or custom such as certain warranties under the Competition and Consumer Act 2010 (Cth) and any warranties expressly provided in this Agreement.

11.2 In this agreement, except where the context otherwise requires:

a. the singular includes the plural and vice versa, and a gender includes other genders;

b. another grammatical form of a defined word or expression has a corresponding meaning ;

c. a reference to a clause or schedule is to a clause of, or schedule to, this agreement, and a reference to this agreement includes any schedule;

d. a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

e. a reference to dollars, $ is to Australian currency;

f. a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;

g. a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

h. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

i. the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

j. any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;

k. any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally; and

l. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it.

11.3 Headings are for ease of reference only and do not affect interpretation.