Terms Of Service
iVitality Online - Terms Of Service
Version 1.0 | Effective: 17 May 2021
These terms govern the use of this website, our social media channels and email lists (collectively, “the Platforms”) and the sale of goods to you via those Platforms. These terms form a binding contract between you and us. Your use of the Platforms (including placing any Order) will constitute your acceptance of these terms. If you do not accept these terms you must not continue to use the Platforms or place any order.1.0 Licence
1.1 We grant you a non-exclusive, worldwide, non-transferrable licence to view and use the Platforms subject to these Terms.
1.2 You represent and warrant to us that you:
(a) are over the age of 18 years, or if under the age of 18 years use the Platform with the supervision and consent of your parent or legal guardian;
(b) are capable of forming binding contracts;
(c) are not breaking any law by accessing and using the Platform (by reference to laws in your jurisdiction and ours).
2.1 In order to access certain parts and functionality of the Platforms, you may be required to register an Account with us.
2.2 If you register an account on the Platforms
(a) you must:
(i) provide information during the registration process that is accurate and complete in all respects;
(ii) represent yourself only, and not impersonate any other person while using the Platforms; and
(iii) not permit anyone else to access or use your account.
(b) you are solely responsible for:
(i) the use of your account, regardless of who is using it, even if it is used without your permission; and
(ii) keeping your username and password secure.3.0 Content
3.1 We reserve the right to at any time:
(a) cancel, modify or withdraw any content on the Platforms; and
(b) withdraw any goods from sale or change their price, product description, image or specification, for any reason without prior notice.
3.2 All content is provided for informational purposes only, and is to be used or relied on at your own risk.
3.3 Product images, photographs and descriptions displayed on the Platforms are for illustrative purposes only, and may be based upon third party information and manufacturer specifications. The actual goods supplied may differ slightly from the photograph, image or description displayed.
3.4 Subject to clause 9, to the maximum extent permitted by law, we:
(a) make no warranty or representation as to the accuracy of any content on the Platforms including content posted by other users of the Platforms;
(b) do not accept liability for errors or omissions in general in relation to that content.
(c) do not accept liability for any event organised or promoted by any third-party user of the Platforms.3.5 We may at any time, without notice:
(a) correct any errors in content or on the Platforms;
(b) change or update the content or the Platforms; and
(c) withdraw, suspend or limit access to any part of the Platforms.
3.6 You agree that you will:
(a) use the Platforms only in the way that they are designed to be used, including in accordance with any acceptable use policy or content guidelines we publish on the Platforms from time to time; and
(b) not engage in any conduct that we consider to be improper, indecent, bullying, harassing or offensive conduct while using the Platforms.
3.7 You must not post any content on the Platforms that:
(a) infringes the IP Rights of any person or is in breach of the Privacy Act;
(b) is infected by any computer virus or malicious code or otherwise may compromise the security or integrity of the Platforms;
(c) is in breach of any provision of these Terms;
(d) is false, defamatory, or misleading or deceptive;
(e) constitutes financial, legal, medical or other professional advice;
(f) contains pornographic or adult material; or
(g) is likely to offend, insult or humiliate based on race, religion, ethnicity, gender, age, sexual orientation.
3.8 You agree that any comments or opinions that you express will be fair, accurate and genuinely held at the time of communication.
4.0 Third Party Websites and Advertising
4.1 The Platforms may contain hyperlinks, images, banners, information and advertising from third parties. You consent to receiving this information as part of your use of the Platforms.
4.2 We are not responsible for any information transmitted by third parties or for the accuracy of any advertisements and access to any third-party website or link is entirely at your own risk.
5.0 IP Rights and disclaimers
5.1 Subject to clause 6.5, all title, ownership rights and IP Rights, including copyright, in relation to the Platforms is owned or used under licence by us. This includes IP Rights in images, logos, photographs, product information, reviews, articles and blog posts.
5.2 Without our express written permission, you must not:
(a) reproduce all or part of the Platforms in any way;
(b) incorporate all or part of the Platforms in any other webpage, site, application or other digital or non-digital format; or
(c) copy, alter, use or otherwise deal in our IP Rights or IP Rights belonging to a third party.
5.4 We may display in good faith product names, packaging or representations which owned by third parties in order to describe or illustrate the goods we offer for sale. You acknowledge that by referencing such third-party product names, packaging or representations, we do not expressly or impliedly represent that:
(a) we are the owner of such third-party trademarks or products;
(b) we have any affiliation, association, sponsorship, endorsement or approval of the relevant third party;
(c) we are an authorised dealer, reseller or licensee of the relevant third party.
6.0 Sale Terms
6.1 Order Process
(a) You may submit Orders for goods advertised for sale on the Platforms.
(b) Your submission of an Order will constitute an offer to purchase the Ordered goods which may be accepted or requested by us in accordance with these Terms.
(c) Once an Order is accepted by us, cancellation and variation of the Order is only permitted in accordance with our Cancellation Policy set out in these Terms, subject to any right you may have under the Australian Consumer Law.
(a) Payment in full of the Order price is required at the time of submission of your Order.
(b) We are not obliged to dispatch any Order for shipping until payment is received in full. Subject to availability of stock, Orders are generally dispatched within 1 business days after receipt of payment in full.
(c) Unless we otherwise agree, all payments are processed in Australian dollars (AUD). Any price displayed in foreign currency is an estimate only and is subject to variation due to fluctuation in international exchange rates.
(d) You are responsible for any international currency conversion fees or bank charges you may incur by using international payment methods or other currencies.
(e) Unless otherwise stated, all pricing is shown in Australian Dollars (AUD) inclusive of GST. Applicable GST will be calculated and displayed at the online checkout.
(a) You acknowledge that stated shipping times are estimates only based on information available to us about your location and information from our shipping providers. We cannot guarantee delivery of any Order within a given shipping time.
(b) To the maximum extent permitted by law, we will not be responsible for non-delivery or, delayed delivery or loss or damage to any Order due to incorrect or incomplete addressing, non-performance or failures of our shipping providers.
(c) Shipping will be subject to any additional terms and conditions of our shipping providers. You will be responsible for, and indemnify us against, any additional fee, charge or surcharge imposed by our shipping providers relating to the shipment of an Order, including for non-delivery, re-delivery attempts and storage, unless such fees, charges or surcharges are expressly included in the Order price.
(d) Title in the Ordered goods does not pass to you until delivery of the Ordered goods or receipt of payment in full for the Order whichever is the last to occur.
(e) Risk in the Ordered goods passes to you upon shipment. We strongly recommend obtaining transit insurance to cover the Ordered goods shipment against loss or damage.
6.4 Cancellation Policy
(a) We may reject or cancel the whole or any part of an Order at any time by notifying you, if:
(i) we determine the Ordered goods are no longer available, incorrectly advertised, incorrectly priced or differ substantially from the description advertised;
(ii) you order unreasonable quantities of the Ordered goods;
(iii) we anticipate that there would be substantial delay in processing your Order or supplying the goods including due to events outside of our control;
(iv) we determine that it would be unlawful to supply you with the Ordered goods, or the Ordered goods become subject of a product recall (whether voluntary or involuntary) by the manufacturer or a government authority;
(v) you fail to supply complete and accurate shipping information or other identification;
(vi) a payment made by you is charged back, dishonoured or cancelled;
(vii) we reasonably suspect that you have engaged in fraud, unlawful conduct, or have provided misleading or deceptive information in connection with an Order;
(viii) goods shipped to you are returned to us as undeliverable; or
(ix) you are in breach these Terms.
(b) Once goods are dispatched by us for shipping it is not possible to cancel an Order, unless we otherwise agree at our sole discretion.
(c) If we cancel, or agree to cancel, an Order under this clause, we may:
(i) deduct, or charge to you, our reasonable costs incurred up to the point of cancellation, including shipping costs and any bank transaction fees or charges incurred;
(ii) deduct, or charge to you, a restocking fee (where the cancellation is initiated at your request, or is not due to our breach of these Terms); and
(iii) refund to you the balance of purchase price using your original payment method or apply a store credit to your account for the balance of purchase price.
6.5 Returns, Refunds and Exchange Policy
(a) Our returns, refunds and exchange policy is subject to the warranty provisions in clause 7 and is in addition to any other rights you may have under the Australian Consumer Law.
(b) Please choose carefully as we do not normally offer refunds or exchanges for change-of-mind or if you make a mistake. However, you may still be entitled to a refund or exchange under the Australian Consumer Law.
(c) Prior to returning goods to us for exchange or refund, we ask that you email a Return Request to customerservice@iVitality.com.au. Please attach any photos to support your claim and other applicable supporting documents such as order numbers/order dates.
(d) To the maximum extent permitted by law, we are not responsible for securing returned goods in transit or for any lost, misdirected or delayed returns. You should:
(i) consider obtaining suitable transit insurance to cover any returned goods in transit;
(ii) ensure that all goods returned are suitably packed to prevent loss or damage in transit;
(iii) ensure that the goods returned are accompanied by suitable identification or return authorisations to enable tracking of the goods.
(e) Upon receipt of returned goods, we reserve the right to inspect the goods to verify a warranty claim.
(f) Subject to the Australian Consumer Law, if a warranty claim is rejected:
(i) we will contact you to determine whether you wish to have the goods returned to you (where possible); and
(ii) we be entitled to charge for the cost of return postage to you and secure such payment prior to returning the goods to you.
(g) At our option, returned goods may be repaired or replaced with similar goods of a similar age and condition to the returned goods. If it is not possible to repair or replace the goods (for example due to unavailability of parts or discontinued product lines), we will contact you to offer a refund or store credit.
(h) Refunds will be processed to the original payment method used for the relevant Order.
(i) Subject to your rights under the Australian Consumer Law, postage and handling charges will not be refunded.
7.1 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
7.2 If any Ordered goods are the subject of a manufacturer warranty, you will be entitled to the benefit of that warranty in addition to any other rights you may have under the Australian Consumer Law.
7.3 Use of the Platforms is at your own risk. To the extent permitted by law, we make no warranties or guarantees, implied or express that the Platforms are or will be:
(a) accessible at all times, uninterrupted or error free;
(b) immune to unauthorised access or security breach.
7.4 Subject to any Non-Excludable Conditions, we exclude:
(a) all implied guarantees, conditions and warranties from these Terms and the Platforms;
(b) all other liability to you for any loss or damage, including Consequential Loss, suffered or incurred directly or indirectly by you in connection with these Terms or the Platforms, including in connection with:
(i) the Platforms being inaccessible for any reason;
(ii) incorrect or corrupt data, lost data, or any inputs or outputs of the Platforms;
(iii) viruses and other malware in connection with the Platforms;
(iv) your devices, including where your hardware is incompatible or insufficient to meet minimum requirements to access the Platforms;
(v) failure of any third-party component including, without limitation, hardware failure, network failure, or power failure;
(vi) events, recipes or activities promoted or advertised on the Platforms by users of the Platforms;
(vii) any unauthorised activity in relation to the Platforms; or
(viii) your failure to abide by these Terms.
7.5 Where a Non-Excludable Condition is deemed to apply and the relevant goods or services are of a kind not ordinarily acquired for personal, domestic or household use or consumption, to the maximum extent possible under the law, we limit our liability for any breach of a Non-Excludable Condition to:
(a) in the case of goods:
(i) the re-supply of the goods or payment of the cost of the re-supply of the goods; or
(ii) the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and
(b) in the case of services:
(i) the re-supply of the services affected by the breach; or
(ii) the payment of the cost of such re-supply of the services.
7.6 All limitations and exclusions in these Terms:
(a) are subject to Non-Excludable Conditions to the extent of any inconsistency;
(b) apply to the fullest extent permissible by the law; and
(c) apply however the excluded, limited, or indemnified loss is caused, whether such loss arises in contract, tort (including by our negligence), or under statute.
8.1 You indemnify us against all loss suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, in connection with these Terms or your use of the Platform, including any loss arising directly or indirectly from:
(a) your breach of the terms;
(b) your infringement of any third-party IP Rights while using the Platforms;
(c) the enforcement of our rights in connection with the terms, including legal costs on a full indemnity basis; or
(d) any claim, action or suit by a Third Party alleging infringement of their IP Rights as a result of your conduct.
8.2 The indemnities in these terms are subject to Non-Excludable Conditions to the extent of any inconsistency, and apply to the fullest extent permissible by law.
8.3 We may claim under indemnities in these Terms in relation to a loss before having incurred the loss, or before making a payment in relation to the loss.
8.4 The indemnities in these Terms are in addition to any damages for breach of contract to which we may be entitled. Nothing in the indemnities in these Terms will be taken to prevent us from claiming damages in relation to your breach of any provision of these Terms.
9.1 WARNING: The Liip Monitor is not a medical device. It is not intended for use as a medical device or to replace a medical device. It does not and is not intended to diagnose, treat, cure, relieve, or prevent any disease or health condition.
The Liip Montitor is meant for healthy babies for newborns to the age of 7 years old. The notification thresholds on the Liip Monitor are not as stringent as a medical device.
10.1 If you have a dispute with another user, you must first attempt to work in good faith with that person to resolve the dispute, without our involvement. We may at our discretion investigate any complaint about another user or their content where the user’s conduct or content would constitute a breach of these Terms.
10.2 If you have a complaint regarding the Platform:
(a) you must notify us in writing to us and provide such relevant further information that we may request for the purpose of investigating your complaint; and
(b) we may, at our sole discretion, investigate your complaint and advise you of the outcome.
10.3 To the fullest extent permitted under the law, you agree not to bring any court or other legal proceedings against us in respect of any complaint or dispute unless you have first complied with the requirements of this clause. This clause does not preclude the right to seek urgent interlocutory relief from an appropriate court.
10.4 The complaints procedure provided in these Terms are in addition to any rights you may have under the Australian Consumer Law or any equivalent legislation.
11.1 Either party may terminate these Terms immediately for any reason by giving the other party written notice.
11.2 Upon termination:
(a) you must immediately cease to use the Platforms and (where applicable) uninstall the Platforms from your devices.
(b) we may immediately limit or prevent your access to the Platforms.
11.3 Termination does not affect the parties’ rights in respect of periods before the termination of these Terms.
11.4 After termination, we will continue to have the right, but not the obligation, to monitor content on the Platforms, to determine compliance with these Terms.
(a) Communications and notices must be in writing and in English.
(b) Either party may serve any communication or notice on the other party by sending it to that party’s nominated email address.
(c) We may also serve a communication or notice to you by displaying that communication within the Platforms.
(a) We may make minor changes to assist with fairness and accuracy of the Terms at our sole discretion by providing you with a period of notice that we determine to be reasonable.
(b) By continuing to use the Platform after an amendment to the Terms, you agree to be bound by the Terms as amended.
The relationship between the parties under the Terms does not form a joint venture or partnership.
(a) You may not assign, novate or otherwise transfer any of your rights or obligations under the Terms without our prior written consent.
(b) We may assign, novate or otherwise transfer any of our rights or obligations under these Terms to a third party without notice to you, or your prior consent.
(c) These Terms are binding on each party's successors and permitted assigns.
12.5 Further assistance
You agree to do everything required to give full effect to these Terms.
12.6 Entire agreement
These Terms and any other document incorporated by reference constitute the entire legal agreement between you and us. You agree that you have not relied on any representation or statements outside the provisions of these Terms.
No right or obligation under these Terms will be taken to be waived unless the waiver is given in writing.
Any unenforceable or invalid provision of these Terms will be severed to the extent of the unenforceability or invalidity without affecting any other term in these Terms.
13.1 The laws of the State of Queensland, Australia, govern the Terms and each party submits to the non-exclusive jurisdiction of the courts in that location.
13.2 Unless otherwise stated, these Terms will be interpreted as follows:
(a) "including", "includes" or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
(b) where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
(c) headings are for convenience and will not affect interpretation;
(d) words in the singular will be taken to include the plural and also the opposite;
(e) references to a notice or notification includes any written communication, notice, consent, approval, request and demand under or in connection with these Terms;
(f) when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way.
Account means a membership account you register with us on the Platforms.
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
IP Rights means all present and future intellectual property rights conferred by statute, common law or equity including in relation to business names, computer software, confidential information, copyright, designs, domain names, inventions, know-how, patents, recipes, trademarks, and the right to apply for registration of the foregoing.
Non-Excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.
Order means an order for the supply of certain goods on the Platforms.
Personal Information has the meaning given to that term in the Privacy Act.
Platforms means our Website, social media channels and email lists.
Privacy Act means the Privacy Act 1988 (Cth).
We, Us, Our means iVitality ABN 64 606 839 552
Website means our website at www.iVitality.com.au
You, Your means the user of the Platforms or the holder of an Account on the Platforms.