Terms of sale
In this document, the following definitions will apply:
Australian Consumer Law or ACL means Schedule 2 to the Competition and Consumer Act 2010 (Cth). Company means Sanofi-Aventis Healthcare Pty Ltd ABN 43 076 651 959 of 12-24 Talavera Road, Macquarie Park NSW 2113.
Customer means the party placing an Order with or purchasing Products from the Company.
Defective Products has the meaning given to that expression in clause 10.3.
GST has the meaning given to that term in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Indirect Loss means any one or more of the following:
(a) economic loss, loss of actual or anticipated profits, loss of revenue, loss of savings, loss of production, loss of business, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, loss of credit, loss of publicity, loss of data, loss of use, loss of interest or loss arising from business interruption; and
(b) any other special, indirect, consequential, incidental, punitive, exemplary or unforeseeable loss or any similar loss.
Insolvency Event means if a party enters into bankruptcy, provisional liquidation, liquidation, receivership, receiver and managership, voluntary administration or if a controller (as defined in the Corporations Act 2001 (Cth)) is appointed to a party or if a mortgagee takes possession of any assets of a party whether by itself or by an agent or if a party ceases to trade or is unable to pay its debts as they fall due or if a party makes a compromise with its creditors or enters into a scheme of arrangement.
Intellectual Property Rights means all present and future intellectual, industrial or proprietary rights conferred by statute, at common law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, trade marks, designs, trade secrets, know-how, confidential information and circuit layouts.
Order means an offer by a Customer to purchase Products from the Company via the Website (including under a subscription).
Products means the LIVVIT vitamins and may include any other goods sold by the Company via the Website and if the context allows, services, ordered by the Customer from the Company via the Website or supplied by the Company to the Customer via the Website.
Terms means the terms and conditions in this document.
Website means the Company’s website www.livvit.com.
In these Terms, unless the context otherwise requires:
(a) words denoting any gender include all genders;
(b) headings are for convenience only and do not affect interpretation;
(c) the singular includes the plural and vice versa;
(d) any schedule attached to this document forms part of it;
(e) a reference to a party includes its legal personal representatives, successors and permitted assigns;
(f) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
(g) a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(h) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, these Terms or any part of them;
(i) unless expressly stated to be otherwise, the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar inclusive expressions; and
(j) a reference to these Terms means this document and includes any variation or replacement of this document.
2 Supply terms
2.1 These Terms apply to all sales and other supplies of Products by the Company to the Customer via their online user account on the Website including all Orders. The terms and conditions, if any, contained in any documentation provided by the Customer are excluded and do not apply.
2.2 These Terms may be amended from time to time by the Company by notice to the Customer. The amended Terms will apply to any existing Order (e.g. existing subscriptions) or part of an existing Order 7 days after the date on which the Company notifies the Customer of that change (subject to the other provisions of this document). Any new Orders placed after notice of the amended Terms will be subject to the amended Terms immediately.
2.3 Publication of amended Terms on the Website of the Company located at www.livvit.com or where Products are purchased under a subscription, notice given by the Company via the Customer’s online user account on the Website will be deemed to be notice of the amendment to these Terms. The Company may choose, but is not required, to notify the Customer of the existence or content of any amendments to these Terms by any other means. The Customer’s purchase of Products via the Company’s Website subsequent to notice of any amendments of these Terms (including a failure to cancel an existing subscription within the timeframe specified in clauses 3.4 or 3.6 of this document) constitutes the Customer’s agreement to the amended Terms. The Company recommends that Customers regularly review these Terms, including before each purchase of any Products via the Company’s Website.
3 Order and acceptance
3.1 Any Order submitted to the Company by a Customer will be deemed to incorporate these Terms. Orders placed by any Customer via their online user account on the Website (including for periodic subscriptions on a recurring basis) constitutes an offer by the Customer to purchase a particular Product(s) at the advertised price (which may include additional delivery costs or other charges like those specified in clause 4 of this document if specified) as specified on the Company’s Website at the time the Order is placed.
3.2 The Company may, at its discretion, allow for Orders for Products to be placed under a subscription on a recurring basis (e.g. on a monthly, 3 monthly or 6 monthly basis depending on what has been agreed to in the Order placed by the Customer and accepted by the Company).
3.3 Where the Customer purchases Products on a monthly subscription, the Company (or its subcontractors) will take the payment from the Customer’s nominated credit or debit card (or via any other mutually agreed payment method) on the date the Order is accepted by the Company, and then on a recurring basis, on the same date each month and deliver the Products in accordance with clause 7, until the subscription is cancelled. The Customer may cancel monthly subscriptions through its online user account or via customer service (email at email@example.com or phone 1800 515 218) by giving at least 14 days notice prior to the next due date for payment for that relevant subscription month, in which case, the final delivery (for Products already paid for) will be made for that month. Any requests for cancellation received after this time will only come into effect at the end of the following subscription month after notice of cancellation is received and the Company reserves the right to fulfill deliveries and be paid for the Order during that period.
For example: if a Customer places an Order for a monthly subscription commencing on 15 January and cancels the subscription on 1 March then the subscription will end on 15 March and the Customer will not be charged for a further subscription on 15 March. However if the same Customer cancels the subscription on 12 March, then the Customer will be charged on 15 March for the following monthly subscription period and the Company reserves the right to fulfill Orders and be paid for Orders up until 15 April (being the end of that subscription period).
3.4 The Customer may also cancel a monthly subscription where:
(a) the price for a Product charged under a subscription is changed during the term of the subscription and the Customer cancels its subscription within 7 days after having received notice of the relevant change; or
(b) these Terms are changed in any other way during the subscription period and the Customer decides to cancel its subscription within 7 days after having received notice of the relevant change. In these circumstances, during the month in which the subscription is cancelled, any Orders that have been fulfilled for that subscription month as at the date the subscription was cancelled will be charged at the price applicable and on the Terms applicable immediately prior to the change. All Orders during the month in which the subscription is cancelled that have not been fulfilled or charged for as at the date the subscription is cancelled, may be refused by the Company at its discretion.
Where a subscription is not cancelled within 7 days after having received notice of the relevant change, the Customer will be deemed to have accepted the change with changes to immediately take effect from that date.
3.5 Where the Customer purchases Products on a 3 monthly or 6 monthly subscription, the Customer will be charged the full price of the subscription on the date the Order is accepted by the Company and the Company will deliver the Products in accordance with clause 7 for the relevant subscription period. Except where clause 3.6 applies and to the extent permitted by law, 3 monthly and 6 monthly subscriptions may not be cancelled prior to the end of the relevant subscription period.
3.6 The Customer may cancel a 3 monthly or 6 monthly subscription where these Terms are changed during the subscription period and the Customer decides to cancel its subscription within 7 days after having received notice of the relevant change. Where a subscription is not cancelled within 7 days after having received notice of the relevant change, the Customer will be deemed to have accepted the change with changes to immediately take effect. Where a subscription is cancelled in accordance with this clause, the Customer will only be able to claim a partial refund of the price paid for the months remaining in the subscription period at the time of cancellation.
3.7 To the extent permitted by law, the Company may reject an Order or cancel a subscription for any reason, including but not limited to:
(a) the unavailability of Products (in these cases, the Company is entitled to first try to arrange for a suitable alternate product to be provided prior to cancellation and where none are available (or it is not commercially viable) give a refund for Products paid for that have not been delivered);
(b) an error in the description of Products on the Company Website or in its catalogue or proposal, or an error in the Order (in which case, the Company will give a refund for Products paid for that have not been delivered);
(c) the Customer fails to comply with these Terms; or
(d) the Customer fails to pay for any relevant Products (including where the Company attempts to charge an amount to the Customer’s nominated credit card or debit card and the request is declined or payment is otherwise not received).
3.8 Any Order received by the Company will not be deemed to be accepted by, or binding on, the Company unless the Company accepts the Order in whole or in part by notice to the Customer. Except as expressly stated otherwise in this document, accepted Orders may not be varied or cancelled by the Customer without the Company’s written consent and, subject to clause 10 and clause 11.1, there is no right of return.
3.9 The Customer warrants to the Company that all sales are for personal use only and Products must not be purchased via the Company’s Website for the purpose of re-sale. The Company reserves the right to cancel any Orders placed by re-sellers.
4 Price & payment
4.1 The price of the Products will be as displayed on the Company’s Website at the time the Customer submits an Order. Prices displayed on the Website will be inclusive of any GST (unless expressly stated otherwise).
4.2 The Company reserves the right to change the prices of Products published on its Website at any time. This includes but is not limited to the prices of any Products sitting in the 'your basket' part of the Customer’s online user account but not paid for and the Customer agrees to pay the price current at the time the Order is accepted. Where there is a change in price for a Product(s) under a monthly subscription, clause 3.4 will apply.
4.3 The Company reserves the right to issue an amended invoice in the case of genuine error on its part in a confirmation, quotation or invoice.
4.4 If the price specified on the Website is advertised as being exclusive of/subject to additional delivery costs, the Company may charge in addition to the price of the Products an amount for delivery, freight, demurrage and handling at rates dependent on distance and volume of Products supplied. The rates to be applied will be the Company’s usual rates for services of that kind or if there are no such usual rates then reasonable rates. The Company’s usual rates are subject to change from time to time.
4.5 A service fee sufficient to cover the Company’s administration and banking costs may be added by the Company to the price where payment by the Customer is made by way of credit card.
4.6 Any discount or rebate will only apply if the Customer and the Company agree in writing.
4.7 Payments can be made via credit or debit card (or via any other mutually agreed payment method). The Customer’s payment is subject to the user terms of the Company’s payment gateway provider. Please refer to its terms and conditions.
5 Disputed charges
5.1 If the Customer disputes any invoiced amount, the Customer must:
(a) notify the Company in writing of the grounds of the dispute within 14 days after the date of the relevant invoice; and
(b) pay the amount (if any) which is not disputed.
5.2 The Company will review all disputes. If a disputed amount is found by the Company acting reasonably to be payable to the Customer (in whole or in part), the Company must pay the due amount within 60 days after receiving notice of the dispute. Where the Company finds that the disputed amount is not payable to the Customer, it agrees to notify the Customer in writing of its decision.
6.1 Terms used in this clause 6 that have a particular meaning in the GST Act have the same meaning in this clause.
6.2 Subject to clause 6.3, the Customer must pay GST on any consideration paid for any Products supplied under these Terms.
6.3 The Customer is not obliged to make any payment for GST unless it is provided with a tax invoice which complies with the GST Act.
7.1 Delivery of the Products to the Customer is deemed to have taken place when the Products are delivered to the Customer’s nominated address.
7.2 The Customer’s nominated address is the address specified in the Customer’s online user account details (on the Website).
7.3 Delivery of Products must not be refused by the Customer after an Order has been accepted by the Company. Where prices are stated as inclusive of delivery, delivery is to the delivery point accepted by the Company.
7.4 The Customer must make all arrangements necessary to accept delivery of the Products at the Customer’s nominated address. The delivery area must be clean and cleared before delivery. The Customer must ensure adequate access is available.
7.5 If the Customer is unable to accept delivery of the Products in accordance with these Terms, the Company will deliver the Products to the nearest pickup location to the Customer’s nominated address that can be offered by its logistics provider (e.g. the post office). Such deliveries will then become the Customer’s sole responsibility to the maximum extent permitted by law).
7.6 To the maximum extent permitted by law, the Company will not be liable for any loss or damage or expense arising from failure by the Company to deliver the Products at a specified time, promptly or at all and the failure of the Company to deliver at a specific time or location or at all will not entitle the Customer to treat these Terms (or any connected agreement) as repudiated.
8 Product information, photos and images
Whilst the Company will try to ensure that the information on the Website is accurate, the information is of a general nature only and should not take the place of professional or medical advice.
The Customer must not use any of the information on the Website:
(a) to diagnose, treat, cure or prevent any disease or medical condition; or
(b) as a substitute for the advice of a health professional.
To the maximum extent permitted by law, the Company does not accept any liability for any injury, loss or damage caused by use of the information provided on the Website.
Photos and images supplied by the Company, available on the Website or otherwise contained in catalogues, price lists, advertising or other printed material of the Company are approximate and for general illustration purposes only, may differ from the actual Products and do not form part of the contractual description of the Products unless agreed to in writing by the Company and to the extent permitted by law.
9 Intellectual property
9.1 The Customer agrees that:
(a) the Company owns and retains, and the Customer must not assert any right of any kind to any Intellectual Property Rights in respect of the Products, their design or anything used to make or design them; and
(b) nothing in these Terms transfers any Intellectual Property Rights to the Customer or confers any licence to use any Intellectual Property Rights.
10 Defects, claims and returns
10.1 The operation of this clause 10 is subject to clause 11.1.
10.2 The Customer accepts that refunds, returns or replacements will only be given to the extent that there is a non-excludable right to refunds, returns or replacements under the Australian Consumer Law (or any other applicable law). To the maximum extent permitted by law, no returns will be accepted simply because the Customer changes their mind.
10.3 The Customer must inspect and check all Products received, and within 7 days after receipt, notify the Company via email at firstname.lastname@example.org of any shortage in quantity, defect, damage or Products not in accordance with the Customer’s Order (“Defective Products”). The Customer is responsible for checking that Products correspond with those ordered before use. After use or expiry of the 7 day period following receipt, the Products will be deemed to be free from any defect or damage at delivery to the maximum extent permitted by law.
10.4 The Customer agrees that it will not return any Products without the Company’s prior approval. No refund or replacement will be given unless and until Products returned have been verified by the Company as being Defective Products or otherwise valid for return (which the Company will do, but only where the Customer is entitled to a return, replacement or refund under the Australian Consumer Law (or other applicable legislation)). The Company reserves the right to recover its costs where the returned Products prove not to be valid for return or are not Defective Products. Returned Products must be returned to the Company to the address notified by the Company to the Customer from time to time and via the Company’s nominated freight carrier (where the Company elects to apply clause 10.7(b)).
10.5 To the maximum extent permitted by law, all returns, refunds and replacements of Products are subject to the Customer providing the Company with proof of purchase of the relevant Products.
10.6 Other than in relation to Defective Products verified under clause 10.4 (and subject to clause 11), all freight, handling and other charges in relation to returning Products are the responsibility of the Customer.
10.7 Where the freight, handling and other charges in relation to a Defective Product are the responsibility of the Company:
(a) the Company must authorise those costs in writing to the Customer before the Customer returns the Product to the Company; or
(b) the Company may elect to collect the Product from the Customer or nominate its own carrier.
11 Limitation of liability
11.1 Nothing in these Terms is or should be interpreted as an attempt to modify, limit or exclude any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by legislation which cannot be modified, limited or excluded.
11.2 The Company excludes to the maximum extent permitted by law, all other guarantees, terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, which would otherwise be implied into these Terms concerning the activities covered by these Terms.
11.3 The Customer agrees that it does not rely on any guarantee, term, condition, warranty, undertaking, inducement or representation made by or on behalf of the Company which is not expressly stated in these Terms to the maximum extent permitted by law.
11.4 Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement or representation in relation to these Terms and the Company is not able to exclude that guarantee, term, condition, warranty, undertaking, inducement or representation (Non-Excludable Provision), and the Company is able to limit the remedy of the Customer for a breach of the Non-Excludable Provision, then the Company’s liability for breach of the Non-Excludable Provision is limited to (at the Company’s election):
(a) in the case of goods, replacement of the goods, a refund for those goods or the supply of equivalent goods (or the payment of the cost of doing so); and
(b) in the case of services, the supplying of the services again (or the payment of the cost of doing so).
11.5 Subject to the Company’s obligations under the Non-Excludable Provisions and clause 11.6, the Company’s maximum aggregate liability to the Customer in respect of any one claim or series of connected claims under these Terms or in connection with its subject matter or the sale of the Products, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, or under an indemnity or otherwise is limited to an amount equal to the amount paid by the Customer to the Company for the Products.
11.6 Subject to the Company’s obligations under the Non-Excludable Provisions, the Company is not liable to the Customer or any third party for any Indirect Loss arising in connection with these Terms or its subject matter, whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, breach of warranty or guarantee, under an indemnity or otherwise and whether or not that loss was foreseeable, even if the Company has been advised of the possibility of such loss.
12 Force majeure
The Company will have no liability to the Customer in relation to any loss, damage or expense caused by the Company’s failure to complete an Order or delivery or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock out, war, pandemic, the inability of the Company’s suppliers to supply necessary materials or any other matter beyond the Company’s control.
13 Privacy consent
14.1 The Company may serve any notice or court document on the Customer by hand or by prepaid post to the address of the Customer last known to the Company or by email to an email address supplied by the Customer. Any such notice is taken to be duly given and received:
(a) if delivered by hand, when delivered; or
(b) if delivered by prepaid post, two Business Days after being deposited in the mail with postage prepaid; or
(c) if delivered by email, on the day of dispatch provided that no notice of non-delivery is received and the email is received between 9.00 am and 5.00 pm on a Business Day (emails received outside of this time or on non-Business Days will be taken to be received at 9.00 am on the next Business Day).
14.3 The failure, delay or omission by a party to exercise, or to partially exercise, a right, power or remedy under these Terms (or any connected agreement) does not operate as a waiver of that right, power or remedy. A party which exercises, or partially exercises, a right, power or remedy maintains its right to further exercise the same right, power or remedy or to exercise another right, power or remedy. A party waives a right, power or remedy only by explicitly doing so in a written notice to the other party and the waiver is strictly limited to the matters specified in the notice.
14.4 The rights, powers, authorities, discretions and remedies of a party under these Terms do not exclude any other right, power, authority, discretion or remedy.
14.5 If any provision of these Terms is determined by a court or other competent tribunal or authority to be illegal, invalid or unenforceable then:
(a) where the offending provision can be read down so as to give it a legal, valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result;
(b) where the offending provision cannot be read down then that provision must be severed from the document in which event, the remaining provisions of these Terms operate as if the severed provision had not been included; and
(c) the legality, validity or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction is not affected, but only to the extent that is consistent with giving substantial effect to the intentions of the parties under these Terms.
14.6 These Terms (and each connected agreement) are governed by the laws of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts in New South Wales, Australia in connection with matters concerning these Terms.