Terms of service
Viva Tree has separate terms and conditions for different aspects of the website:
Welcome to our Site. Please note the Viva Tree brand is owned by Red Flame (International) Limited.
By accessing this Site, using the Services, or ordering Products, you hereby agree to be legally bound by these Website Conditions. If you do not accept these Website Conditions, please leave the Site and discontinue use of the immediately, and do not order any Products via the Site.
1.1 You hereby represent and warrant that:
1.1.2 you are at least 18 years old and have the necessary legal capacity, right, power and authority to agree to these Website Conditions;
1.1.3 you are authorised to bind the entity (yourself or your company) on whose behalf you are accessing this Site, using the Services or ordering Products and such entity agrees to be bound by these Website Conditions; and
1.1.4 all the information provided by you to Viva Tree (including without limitation personal particulars and contact information) is accurate and complete.
1.2 Viva Tree reserves the right to change, modify, suspend or discontinue the whole or any portion of the Site, Services or Products at any time. Viva Tree may also impose limits on certain features or restrict your access to parts or the entire Services or Site without notice or liability.
1.3 Viva Tree may from time to time vary or amend these Website Conditions by posting the amended Website Conditions at this Site. Any use of the Services after the amendment of these Website Conditions will be deemed to be acceptance of the amended Website Conditions by you. If you do not agree to the amended Website Conditions, you have the right to close your Account and/or cease using the Services.
2.1 In this Agreement, the following definitions shall apply unless the context does not permit such application:
- "Account" means a registered account of a Member opened under this Site.
- "Viva Tree" is defined in the opening paragraph of these Terms & Conditions.
- "Viva Tree Content" means all Content of Viva Tree that is made available on or via this Site.
- "Computer" means your computer, notebook computer, personal digital assistant, mobile phone or other electronic device used to access this Site or the Services.
- "Content" means product listings, product descriptions & reviews, materials, information, advertisements, text, audio, video, pictures, graphics, blogs, webcasts, podcasts, broadcasts, messages, comments, suggestions, ideas and other content.
- "Linked Sites" is defined in Clause 8.1.
- "Member" means a registered member of the Site.
- "Membership Conditions" means the terms and conditions applicable to Members accessible here.
- "Products" means products and other products available for purchase at the Site.
- "Servers" means the computer software, systems and servers hosting, operating, managing, providing or contributing to the Site and the Services.
- "Services" is defined in Clause 3.2.
- "Site" means the Viva Tree website containing the link to these Terms & Conditions.
- "Third Party Products" means products and services of third parties advertised on or available at the Site or websites linked from the Site.
- "User Content" means all Content on this Site which is created, transmitted, posted or uploaded by a user of the Site.
2.2 The words "include" and "including" shall not be construed as having any limiting effect.
2.3 The headings in this Agreement do not have any legal effect nor shall they affect the construction of this Agreement in any way.
3. Site and Services
3.1 The Site is owned and maintained by Viva Tree.
3.2 Viva Tree may offer one or more of the following services on or through the Site (each a "Service" and collectively the "Services"):
3.2.1 online ordering of Products;
3.2.2 online applications for membership;
3.2.3 access to Content;
3.2.4 search engines or tools;
3.2.5 a platform to create, upload and publicly make available customer reviews and other content;
3.2.6 any other features, content or applications that Viva Tree may offer at the Site from time to time in its sole and absolute discretion.
3.3 You acknowledge and agree that to order certain Products and to access and use certain Services, you will be required to register as a Member and additionally shall be bound to strictly comply with the Membership Conditions and other conditions accessible therein, in addition to these Website Conditions.
3.4 From time to time Viva Tree will run competitions, promotions and surveys at the Site. These are subject to additional terms and conditions that will be made available at the time they are run.
4. Content Use Conditions
4.1 You may not reproduce, modify, adapt, translate, publish, display, communicate, transmit, broadcast, podcast, webcast, distribute, sell, trade or exploit for any commercial or other purposes, any portion of, or any access to:
4.1.1 any Service;
4.1.2 the Site;
4.1.3 any Viva Tree Content except with the prior written consent of Viva Tree or unless expressly permitted in these Website Conditions; or
4.1.4 any User Content except with the prior written consent of Viva Tree and the owner of the specific User Content, unless you are the sole owner of the specific User Content.
4.2 Without prejudice to the generality of Clause 4.1, you agree not to reproduce, display or otherwise provide access to the Services, Viva Tree Content, or User Content on another website or server, for example through framing, mirroring, linking, spidering, scraping or any other technological means (including any technology available in the future), without the prior written permission of Viva Tree.
4.3 You may for your personal, non-commercial use:
4.3.1 retrieve and display Viva Tree Content on any compatible device owned by you;
4.3.2 print a single copy of individual articles on paper (but not photocopy them); and
4.3.3 store such articles in electronic form on disk or on a mobile device owned by you (but not on any server or other storage device connected to a network).
4.4 All Viva Tree Content are the copyrighted work of Viva Tree or its content or software providers, and Viva Tree reserves and retains all rights in the Viva Tree Content. Use of some Viva Tree Content may be governed by the terms of an accompanying end user license agreement.
4.5 You may not decompile, reverse engineer or otherwise attempt to discover the source code of any Viva Tree Content available on the Site or through a Service except under the specific circumstances expressly permitted by law or Viva Tree in writing.
5. Intellectual Property
5.1 The copyright, patents, trademarks, registered designs and all intellectual property rights in the Services, the Site, and all Viva Tree Content, including without limitation the copyright in the compilation of all User Content, shall vest in and remain with Viva Tree.
5.2 The trademarks, logos and service marks ("Marks") displayed on this Site are the property of Viva Tree or other third parties, and all rights to the Marks are expressly reserved by Viva Tree or relevant third parties. You are not permitted to use any Marks without the prior written consent of Viva Tree or such third party. Viva Tree and its subsidiaries aggressively enforce their intellectual property rights to the fullest extent of the law. The name of Viva Tree or any other Marks may not be used in any way, including in any advertising or publicity, or as a hyperlink without prior written permission of Viva Tree.
5.3 The domain name on which the Site is hosted on is the sole property of Viva Tree and you may not use or otherwise adopt a similar name for your own use.
5.4 If you have any questions or concerns about these Website Conditions or any issues raised in these Website Conditions or on the Site, please email us at firstname.lastname@example.org
6. Online Conduct
6.1 You hereby undertake:
6.1.1 to comply with these Website Conditions, and such other notices or guidelines that may be posted on the Site by Viva Tree from time to time (which are hereby incorporated by reference into these Website Conditions);
6.1.2 not to use any Service, Product or Viva Tree Content for any unlawful purpose, and shall comply with all applicable laws and regulations, including without limitation, copyright law;
6.1.3 not to hack into, interfere with, disrupt, disable, overburden or otherwise impair the proper working of the Site, Services or Servers, which shall include but is not limited to denial-of-service attacks, spoof attacks, session hacking, sniffing, tampering, reverse engineering or reprogramming; and
6.1.4 not to use the Account of another Member at any time, whether with or without his/her permission.
7. Disclaimers & Limitations
7.1 While we make every effort to ensure that all Viva Tree Content displayed on the Site is accurate and complete, we provide the Viva Tree Content for informative purposes and on an 'as is', 'as available' basis only without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, Viva Tree disclaims all warranties, express or implied, including, but not limited to, implied warranties of satisfactory quality, merchantability or fitness for a particular purpose, compliance with description, or the warranty of non-infringement. Without limiting the foregoing, Viva Tree does not warrant that the functions contained in or access to the Site, Services, Viva Tree Content or other content will be timely, uninterrupted or error-free or without omission, that defects will be corrected, or that the Site, Services, Viva Tree Content or the Servers are free of viruses or other harmful components, or that the download, installation or use of any Viva Tree Content in or with any Computer will not affect the functionality or performance of the Computer. Viva Tree does not warrant or make any representations regarding the use or the results of the use of the Viva Tree Content, the Services, the Site or the Servers in terms of their correctness, accuracy, completeness, reliability, or otherwise. You (and not Viva Tree) assume the entire cost of all necessary servicing, repair, or correction, including any defect, problem or damage in any Computer. You agree not to hold Viva Tree liable for the loss of any of your User Content that is due to any circumstances beyond the reasonable control of Viva Tree.
7.2 The data and information made available on the Site are of a general nature and do not purport, and shall not in any way be deemed, to constitute an offer or provision of any professional or expert advice. Any arrangement made between you and a third party named on or linked to from these pages is at your sole risk and responsibility. Viva Tree does not sponsor, endorse or promote any financial products, services or information.
7.3 You acknowledge that it is not Viva Tree's policy to exercise editorial control over, and to review, edit or amend any data, information, materials or contents of any User Content, posting, email or any information that may be inserted or made available on the Site by other users of the Services and that Viva Tree does not endorse and shall not be responsible for any such content.
7.4 You acknowledge and agree that Viva Tree does not endorse or recommend, is not an agent, reseller or distributor of, and has no control over Third Party Products, and Viva Tree hereby expressly disclaims all liabilities and responsibilities arising in relation to any Third Party Products whether available or advertised via the Site or on Linked Sites.
7.5 You agree that all statements, offers, information, opinions, materials, User Content, and Third Party Products, from other users and from advertisers and other third parties on this Site should be used, accepted and relied upon only with care and discretion and at your own risk, and Viva Tree shall not be responsible for any loss, damage or liability incurred by you arising from such use or reliance.
7.6 You also acknowledge and agree that some Services may enable other users to upload User Content to the Site, and that some of these may be offensive, annoying, unlawful, in breach of these Website Conditions, contain viruses or cause you damage. While we will remove any such User Content brought to our notice, you acknowledge and agree that we cannot be responsible or liable for any User Content, and you agree to exercise access and use User Content only at your own risk and with care and discretion.
7.7 You agree that:
7.7.1 Viva Tree shall be entitled at any time, at its sole and absolute discretion and without prior notice, to add to, vary, terminate, withdraw or suspend the operation of the whole or any part or feature of the Site, Services or Products without assigning any reason; and
7.7.2 access to or the operation of the Site, Servers and/or the Services may from time to time be interrupted or encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors, and in any such event, Viva Tree shall not be liable for any loss, liability or damage which may be incurred as a result.
7.8 In no event shall Viva Tree be liable to you for any damages, losses, expenses, liabilities under any causes of action (whether in contract or tort including, but not limited to negligence, or otherwise) caused through the use of, or the inability to use, the Viva Tree Content, User Content, Services, Products, Third Party Products, any Computers, the Site, or any other website. In the event that Viva Tree is liable for damages despite the foregoing provision, you agree that Viva Tree's aggregate liability to you for any and all causes of action in relation to the Viva Tree Content, Services, Site, and the Agreement, shall not exceed the sum of USD 25 (Twenty five United States Dollars).
7.9 Under no circumstances, including, but not limited to, negligence, shall Viva Tree be liable for any indirect, special, consequential, or incidental damages that result from the use of, or the inability to use, the Viva Tree Content, Services, Products, Third Party Products, Site, or any other website, even if Viva Tree or a Viva Tree authorised representative has been advised of, or should have foreseen, the possibility of such damages.
7.10 You agree that the above exclusions and limitations of liability enable the Services and the Viva Tree Content to be provided by Viva Tree at either reasonable costs or no costs to you.
8. Linked Sites
8.1 Viva Tree may provide links to other sites ("Linked Sites") that may be of relevance and interest to users. Viva Tree has no control over, and is not responsible for the content on the Linked Sites or for any damage you may incur from the Linked Sites (including any virus, spyware, malware, worms, errors or damaging material contained in the Linked Sites) or the availability of any content on the Linked Sites, and you hereby irrevocably waive any claim against us with respect to the Linked Sites.
9. Data Use & Privacy
10.1 You agree that Viva Tree has the right in its sole and absolute discretion and without notice to restrict, suspend, or terminate your Account and/or your access to all or any part of the Site or Services, without assigning any reason.
11. Notification of Infringement
11.1 Viva Tree reserves the right to investigate notices of copyright, trademark and other intellectual property infringement ("Infringement") in respect of Viva Tree Content, User Content and other material on the Site ("Infringing Material") and take appropriate action. If you believe that your work has been used or copied in a way that constitutes Infringement and such Infringement is occurring on this Site, please notify Viva Tree in writing immediately.
11.2 All Infringement Notices shall be sent to Viva Tree addressed as follows:
Viva Tree (Red Flame (International) Ltd)
9th Floor, China Merchants Building,
303-307 Des Voeux Road Central,
11.3 Viva Tree will in response to all Infringement Notices submitted in the above manner remove the Infringing Material from the Site. In return, you agree that you shall not take any legal action or exercise any legal remedy you may have against Viva Tree in respect of any Infringing Material, unless you have first given Viva Tree the Infringement Notice and sufficient opportunity to remove the Infringing Material, and thereafter Viva Tree refuses or fails to remove the Infringing Material within a reasonable time. Where Viva Tree removes the Infringing Material in response to your Infringement Notice, you agree not to exercise and you hereby waive, any right of action against Viva Tree under applicable law which you may have in respect of any Infringing Material appearing on the Site prior to such removal by Viva Tree.
11.4 You acknowledge and agree that Viva Tree has no control and cannot undertake responsibility or liability in respect of Infringing Material appearing on Linked Sites or other third-party sites.
12. Jurisdictional Issues
12.1 This Site is owned and operated by Red Flame (International) Ltd in Hong Kong under the Viva Tree brand. Viva Tree makes no representation that the Contents of the Site are appropriate or available for use in your location. Those who choose to access this Site from any location do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
13.1 You agree to indemnify and hold Red Flame (International) Ltd, and its subsidiaries, affiliates, officers, agents, partners, and employees, harmless from all claims, demands, actions, proceedings, liabilities (including statutory liability and liability to third parties), penalties, and costs (including without limitation, legal costs on a full indemnity basis), awards, losses and/or expenses, due to or arising out of:
13.1.1 any use of the Site or any Service;
13.1.2 your connection to the Site;
13.1.3 your breach of any terms and conditions of these Website Conditions;
13.1.4 your violation of any rights of another person or entity; or
13.1.5 your breach of any statutory requirement, duty or law.
14.1 If any provision of these Website Conditions is found to be illegal, void or unenforceable under any law that is applicable hereto or if any court of competent jurisdiction in a final decision so determines, these Website Conditions shall continue in force save that such provision shall be deemed to be deleted.
15. Relationship of Parties
15.1 Nothing in these Website Conditions shall constitute or be deemed to constitute an agency, partnership or joint venture between Viva Tree and you and neither party shall have any authority to bind the other in any way.
16.1 No waiver of any rights or remedies by Viva Tree shall be effective unless made in writing and signed by an authorised representative of Viva Tree.
16.2 A failure by Viva Tree to exercise or enforce any rights conferred upon it by these Website Conditions shall not be deemed to be a waiver or variation of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.
17. Rights of Third Parties
17.1 Except as provided for in Clause 13, a person or entity who is not a party to this Agreement shall have no right under the Contracts Act, 1950 (Act 136) to enforce any term of this Agreement, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description.
18. Force Majeure
18.1 No party shall be liable for any failure to perform its obligations under this Agreement if the failure results from a Force Majeure Event (defined below), provided always that whenever possible, the affected party will resume that obligation as soon as the Force Majeure Event occasioning the failure ceases or abates.
18.2 For purposes of this Agreement, a "Force Majeure Event" is an event which is a circumstance or event beyond the reasonable control of a party which affects the general public in that party's country or in the territory, and which results in the party being unable to observe or perform on time an obligation under this Agreement. Such circumstance or event shall include industrial action or labour disputes, civil unrest, war or threat of war, criminal or terrorist acts, government action or regulation, telecommunication or utility failures, power outages, fire, explosion, natural physical disasters, epidemic, quarantine restrictions, and general failure of public transport.
19. Governing Law & Jurisdiction
19.1 These Website Conditions and all matters relating to your access to, or use of, this Site and the Services shall be governed by and construed in accordance with the laws of Hong Kong.
19.2 You hereby agree to submit to the non-exclusive jurisdiction of the Hong Kong courts.
1.1 In these Conditions, the following terms shall have the respective meanings specified below unless the context otherwise requires:
- "Viva Tree" means Viva Tree and/or Red Flame (International) Ltd.
- "Buyer" means the person or legal entity identified in the Order as the purchaser of the Products.
- "Card" means any Credit Card, Debit Card or other Payment Card that is accepted by Viva Tree's appointed Card Company or Payment Processor. These include Visa and Mastercard.
- "Card Company" means the applicable payment and Card processing entity for the relevant Card.
- "Conditions" means these Terms and Conditions.
- "Contract" means a contract for sale between Viva Tree and the Buyer of the Products formed in accordance with Clause 3.3.
- "Defective Product" is defined in Clause 6.2.
- "Force Majeure Event" means any event or circumstance the occurrence and the effect of which Viva Tree could not reasonably prevent or avoid including:
(i) explosion, fire, flood, war, earthquake, storm or other natural disasters;
(ii) war, declared or undeclared, sabotage, insurrection, terrorist or criminal acts, riot or civil disturbance;
(iii) import or export regulations or embargo or requisition restrictions regulations bye-laws prohibition or any acts or measures or any intervention of any governmental or regulatory authority;
(iv) epidemic, quarantine restrictions, outbreak of disease or any travel restrictions or bans (including bans on non-essential travel) issued by the World Health Organisation or any governmental authority;
(iv) strike, lock-out, work stoppage or other industrial action or trade dispute (whether involving employees of Viva Tree or any other person); and
(v) any default act or omission on the part of Viva Tree's suppliers or sub-contractors.
- "Online Store" means the Viva Tree online store.
- "Order" means an online order placed via the Online Store by a Buyer with Viva Tree for the Products in accordance with these Conditions.
- "Parties" means Viva Tree and the Buyer and "Party" means any one of them.
- "Product" means a product or service listed at the Online Store for which Viva Tree invites Orders in accordance with these Conditions.
- "Product Warranty" is defined in Clause 8.
- "Substitute Product" is defined in Clause 5.4.
- "Third Party Product" means a Product which is not a VIVA TREE branded Product.
1.2 Words using the singular or plural number also include the plural or singular number.
1.3 Any reference to a "person" or "entity" includes a reference to an individual, a sole-proprietor, a partnership, an unincorporated association and a company.
1.4 Any reference to a "Clause" is to a clause of these Conditions.
1.5 The headings in these Conditions are inserted for convenience only and shall be ignored in construing these Conditions.
1.6 A reference to the word "include" or "including" shall not be construed as having any limiting effect.
2. Application and effect
2.1 These Conditions shall govern the sale of the Products listed at the Online Store by Viva Tree to the Buyer, save where Buyer has signed a separate purchase agreement with Viva Tree, in which case the terms and conditions of the separate agreement shall govern.
2.2 By ordering the Products and/or accepting delivery of the Products described on the Invoice, the Buyer agrees to be bound by and accepts these Conditions.
3. Orders, price and payment
3.1 Buyer shall indicate the Products it wishes to order and the quantity required, at the price specified by Viva Tree at the Online Store, by placing a Order on the designated online form at the Online Store and providing to Viva Tree all necessary information as may be required by Viva Tree at the Online Store.
3.2 All Orders made by the Buyer for one or more Product(s) shall be deemed to be an offer made by the Buyer to purchase such Product(s) upon the terms of these Conditions and for the selected Products and quantities set out in the Order. All Orders shall be subject to acceptance by Viva Tree.
3.3 Viva Tree may accept an Order by:
3.3.1 contacting the Buyer by telephone, email or other mode of communication within a reasonable time after Buyer has made the Order, to accept and confirm the price, quantity, and delivery date and time of the Product(s) ordered by the Buyer; or
3.3.2 delivering the Product(s) ordered to the Buyer, and upon such acceptance, a binding Contract shall be formed upon the terms set out in these Conditions, the terms of the accepted Order (excluding any terms which are not accepted by Viva Tree), and such other terms and conditions as Viva Tree may impose as a condition of its acceptance. For the avoidance of doubt, no Contract shall come into existence unless and until the Order has been accepted by Viva Tree in the manner set out in this Clause 3.3. Processing of Card payment for an Order shall not in itself constitute acceptance of the Order by Viva Tree, provided that where an Order is rejected by Viva Tree, any payment made for such Order shall be reversed or refunded by Viva Tree.
3.4 Viva Tree shall be entitled to:
3.4.1 decline to accept or reject the Buyer's Order in whole or in part without assigning any reason; or
3.4.2 delay or defer delivery of any Order in whole or in part due to Product unavailability, low inventory levels, or for any other reason.
3.5 Viva Tree shall not be liable for any errors in the pricing or specification of Products ordered by the Buyer that may appear at the Online Store. The price to be paid by the Buyer for all Products shall be Viva Tree's current selling price on the date of receipt by Viva Tree of the Order, which may or may not be correctly reflected at the Online Store.
3.6 Unless otherwise agreed by Viva Tree in writing, payment for the Products shall be made by the Buyer in full by Buyer's valid Card before physical delivery of Products.
3.7 The Buyer warrants that it is ordering Products for its own use only and not for resale or export purposes.
3.8 The Buyer shall bear all shipping and handling charges (where applicable), as well as all applicable taxes (including but not limited to Goods and Services Tax) at the prevailing rates.
3.9 All Card payments are subject to the approval of the Card Company and the relevant paying bank. Viva Tree shall not be liable in any way if the Card Company or the paying bank refuses to process or accept any Card or Card particulars for any reason.
3.11 Viva Tree reserves the right to exercise its lawful remedies if a dispute or issue arises over Card payments, or if it does not receive full payment for an Order. In particular, but without limitation to any other remedies, if the Card Company or the paying bank rejects or reverses payment for an Order, Viva Tree may in its discretion:
3.11.1 reject such Order, or suspend or cancel delivery of such Order;
3.11.2 repossess the Products if delivered; or
3.11.3 claim against the Buyer for the full price of the Order as a debt.
3.12 Viva Tree shall be entitled to set-off and deduct from any refund due to the Buyer all sums owed by the Buyer to Viva Tree under any and all Contracts and other agreements.
4. Title and Risk
4.1 Risk in the Products shall pass to the Buyer upon delivery of the Products to Buyer.
4.2 Title in the Products shall not pass to Buyer until receipt by Viva Tree of full and final payment for the Products.
5. Order delivery and cancellation
5.1 The Buyer shall designate in the Order the Buyer's preferred delivery / collection options, and where the delivery option is selected, the place of delivery of the Products.
5.2 Subject always to Viva Tree acceptance of the Order,
5.2.1 Where the delivery option is selected:
(i) Viva Tree shall deliver the Products to such place of delivery as may be designated by the Buyer and agreed to by Viva Tree. If no one is available at the delivery address to receive the Products, Viva Tree's delivery agent will leave an "unable to deliver" card at the address and the Buyer should follow the directions on that card to obtain delivery of the Products.
(ii) The Buyer shall bear and pay to Viva Tree:
(a) the delivery and shipment charges set out at the Online Store for all Orders;
(b) the delivery, shipment and administrative costs of any delivery of Product(s) which is rejected by the Buyer, where such rejection is not made pursuant to an express right of the Buyer under these Conditions.
5.3 Any shipment, delivery or collection dates provided by Viva Tree are estimates only and shall not form part of the Contract. Viva Tree shall not be liable for any loss, damage, cost or expense for any failure to meet any given shipment, delivery or collection date, howsoever caused. If Buyer's Order has not been delivered within a reasonable time, the Buyer should contact Viva Tree at:
Email address: email@example.com
Operating Hours: 10.00am to 6.00pm
5.4 Viva Tree reserves the right from time to time, without liability or prior notice, to withdraw or cease to make available any or all Products from the Online Store, or to:
5.4.1 change its prices or specifications of any Product; or:
5.4.2 deliver a Product which has similar functionality as any Product ordered with minor differences in specifications, (each a "Substitute Product"). The Buyer shall be deemed to have accepted such changes and differences if the Buyer accepts delivery of a Substitute Product.
5.5 An Order may be cancelled by the Buyer prior to shipment of the Products by Viva Tree, provided always that:
5.5.1 the Buyer must contact Viva Tree to request Viva Tree for cancellation immediately;
5.5.2 Viva Tree will endeavour to accommodate the Buyer's request, if the Products have not been shipped; and
5.5.3 the Buyer shall pay any cancellation fees which may be imposed by Viva Tree.
5.6 If an Order has already been shipped, no cancellation or refund will be permitted.
5.7 The Buyer acknowledges that Viva Tree's liability to deliver the Products to the Buyer pursuant to the Contract is subject to the availability of the Products from Viva Tree's usual sources of supply. The Buyer further acknowledges that Viva Tree retains absolute discretion as to the order of priorities in which any Products are delivered to Viva Tree's customers.
5.8 Viva Tree may deliver the Products by instalments. Each separate instalment shall be regarded as a separate Contract, and invoiced and paid for in accordance with these Conditions.
5.9 Viva Tree reserves the right to make only partial delivery of an Order.
6. Acceptance of Products
6.1 In so far as the Products are sold as perfect unless otherwise expressed; if upon acceptance any should prove defective the Buyer shall be at liberty to take or reject them provided they are returned within fourteen (14) days after the conclusion of the sale.
6.2 The conditions of clause 6.1 do not apply to handmade products which must be taken with all faults and errors of description. All other Products shall only be eligible for replacement if it fails to function or operate, is damaged or is not the Product specified to be supplied in the Order (such Product being a "Defective Product").
6.3 The Buyer must report any Defective Product to Viva Tree by contacting:
Email address: firstname.lastname@example.org
within fourteen (14) days of its delivery, failing which the Buyer shall not be entitled to a replacement Product.
6.4 If Viva Tree considers the Product to be a Defective Product, Viva Tree will contact the Buyer with the procedure for return and replacement. The Buyer must produce the tax receipt together with the Defective Product in its original delivered condition and packaging.
6.5 Viva Tree reserves the right to refuse any return or replacement of a Defective Product if:
6.5.1 The Buyer is unable to produce the Product details or tax receipt;
6.5.2 The Defective Product is a Third Party Product and Viva Tree is not authorised by the supplier to process returns or replacements; or
6.5.3 The defect is the result of:
(i) improper use or mismanagement by Buyer;
(ii) operation of the Product other than in accordance with the operating manual or instructions;
(iii) use of the Product in a manner not reasonably contemplated by Viva Tree;
(iv) modification of the Product not authorised by Viva Tree;
(vi) use of consumables, parts, or peripherals which are not original, in conjunction with the Product;
(vii) subjection of the Product to unusual or unrecommended physical, environmental or electrical stress;
(viii) use of Product by a person other than Buyer; or
(viii) Buyer's failure to comply with any terms of these Conditions.
7. Controls and Restrictions
7.1 Certain countries impose censorship, customs, import, export and/or other regulatory requirements and restrictions on Products. The Buyer shall be responsible for ensuring that all Products in the Order are and will be compliant with such requirements at its own costs. Viva Tree shall not be liable for any non-delivery or delay in delivery of any Product which fails to meet such requirements or which is intercepted by any government or regulatory authorities.
8. No Warranties
8.1 Viva Tree makes no warranty in respect of any Viva Tree Product, express or implied, including any implied warranties of merchantability, satisfactory quality, compliance with description and fitness for a particular purpose. Viva Tree's sole liability for any defects in any Viva Tree Product is set out in Clause 6.
8.2 Viva Tree makes no warranties in respect of any Third Party Products, and all warranties express or implied in respect of Third Party Products, including any implied warranties of merchantability, satisfactory quality, compliance with description and fitness for a particular purpose, are hereby excluded. Third Party Products including software, hardware, peripherals and accessories are covered by the warranties (if any) provided by the original manufacturer, licensor or publisher only.
9. Exclusion & Limitation of Liability
9.1 In no event shall Viva Tree be liable to the Buyer or any third party for any indirect, special, consequential, exemplary or punitive loss or damage for any breach of these Conditions, including but not limited to loss of profits, loss of business or goodwill, loss of use, or any claim by any third party, even if Viva Tree has been advised of the possibility of such loss or damage.
9.2 If any service (including but not limited to installation of any Product) is performed by any third party, Viva Tree shall not be liable for any act, neglect, omission or wilful default of such third party, regardless of whether such third party is authorised by Viva Tree.
9.3 The total liability of Viva Tree to the Buyer for any and all claims whether by the Buyer or by any other person and howsoever arising in connection with or arising out of the sale, supply, delivery possession, replacement or use of a Product or resulting from the breach of the Contract and/or these Conditions by Viva Tree shall not in any event exceed the price of the Product giving rise to such claims.
9.4 Nothing in these Conditions shall limit or exclude Viva Tree's liability for death or personal injury caused by Viva Tree's negligence.
10. Force Majeure
10.1 Viva Tree shall not be liable for or be deemed to be in breach of the Contract and/or these Conditions by reason of any failure in performing any of its obligations under the Contract and/or these Conditions during any period in which performance is delayed by any Force Majeure Event.
10.2 Viva Tree shall notify the Buyer of any delay or failure arising through any Force Majeure Event and provide a revised delivery date as soon as practicable. The Buyer shall not terminate the Contract by reason of any such delay or failure.
10.3 In the event that any Force Majeure Event results in a shortage of Products, Viva Tree shall be entitled to allocate its available stock of the Products among its customers in such a manner as Viva Tree may consider equitable and may make partial deliveries of any Products to the Buyer.
11.1 Viva Tree reserves the right to change these Conditions without prior written notice at any time, at Viva Tree's sole discretion, by posting a copy of the amended Conditions at the Online Store.
11.2 Any attempt to modify, supplement or amend these Conditions by the Buyer will be null and void, unless expressly agreed to in writing by Viva Tree.
12. Complete Contract
12.1 The Contract and these Conditions represent the entire understanding between Viva Tree and the Buyer concerning the sale and supply of the Products, and shall form the exclusive statement of all the matters covered by the Contract and these Conditions. Any and all previous course of dealings, written or oral understandings, discussions, representations, correspondence and communications between the Parties relating to the matters covered by the Contract and/or these Conditions are hereby superseded.
12.2 Any term or condition of the Buyer's Order which is any way inconsistent with or in addition to these Conditions shall not be applicable or binding on Viva Tree, unless otherwise agreed in a written agreement signed by Buyer and Viva Tree, and any failure by Viva Tree to object shall not be considered a waiver of these Conditions.
13.1 The Buyer shall not assign or otherwise transfer the Contract or any of its rights and obligations hereunder, whether in whole or in part without the prior written consent of Viva Tree. Any such unauthorised assignment shall be deemed null and void.
14. No Waiver
14.1 No failure on the part of Viva Tree to exercise, and no delay on its part in exercising, any right or remedy under the Contract will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
15.1 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.
16. Rights of Third Parties
16.1 A person or entity who is not a Party to the Contract shall have no right under the Cap.623 Contracts (Rights of third parties) ordinance, to enforce any term of the Contract, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of doubt, nothing in this Clause shall affect the rights of any permitted assignee or transferee of the Contract.
17. Governing Law and Jurisdiction
17.1 These Conditions shall be construed in accordance with, and governed by, the laws of Hong Kong.
17.2 The Parties hereby submit to the non-exclusive jurisdiction of the Hong Kong courts.
18.1 Please click on the "Accept" button to indicate your acceptance of these Conditions, or the "Decline" button to discontinue the registration process.
1.1 All defined terms in the Website Conditions, apply to these Membership Conditions unless specifically defined in these Membership Conditions.
2. User ID, Password, Account Information
2.1 You agree that your Account is for your sole, personal use (or that of the entity on whose behalf you are entering into these Membership Conditions). You hereby agree not to:
2.1.1 share with or permit others to use your Account; or
2.1.2 assign or otherwise transfer your Account to any other person or entity.
2.2 You shall provide Viva Tree with accurate, complete, and up-to-date Account information. Failure to do so shall constitute a breach of these Membership Conditions, which may result in the restriction, suspension or immediate termination of your Account.
2.3 As part of the registration process for the Account, you will select a password ("Password") and e-mail address ("User ID"). You may not:
2.3.1 select or use a User ID of another person with the intent to impersonate that person;
2.3.2 use a name subject to the rights of any other person without authorisation; or
2.3.3 use a User ID that Viva Tree, in its sole discretion, deems inappropriate, offensive or illegal.
2.4 You shall promptly notify Viva Tree of any known or suspected unauthorised use(s) of your Account, or any known or suspected breach of security, including loss, theft, or unauthorised disclosure of your Password. You shall be solely responsible for safeguarding and maintaining the confidentiality of your User ID and Password.
2.5 Whilst we have adopted all possible security measures to protect your personal data against accidental loss or unlawful destruction, alteration, unauthorized disclosure or access, for the protection of your personal data, it is advisable that your computer, laptop or note product be provided with software devices that protect network data transmission/receipt (such as updated antivirus systems) and that your internet service provider take appropriate measures for the security of network data transmission (such as, for examples, firewalls and anti-spam filtering).
2.6 You shall be bound by and responsible for, and Viva Tree shall be entitled to rely on, all communications transmitted through the use of your User ID and Password, and all such communications shall be deemed to be communications made and issued by you.
2.7 You shall be responsible for all User Content, messages, and all online activity at the Site transmitted or conducted through the use of your User ID and Password.
2.8 Viva Tree shall have no responsibility or liability for any loss, damage, cost, expenses, or liabilities arising as a result of or in connection with the wrongful, unauthorised or fraudulent use of your User ID and Password.
2.9 You undertake to keep your Account information updated at all times such that it is accurate, current and complete. You may change or update your Account information by logging into your account and editing your personal information.
2.10 You agree that Viva Tree reserves the right to change or re-assign User IDs and/or Password(s) at its sole discretion by giving you notice. Viva Tree shall not be liable for any loss, damage, cost or expense incurred by you as a result of such change or re-assignment.
3. Use of Account Information
4. Suspension and Termination of Account
4.1 You agree that Viva Tree has the right in its sole and absolute discretion and without notice to:
4.1.1 restrict, suspend, or terminate your access to all or any part of the Services; and/or
4.1.2 terminate, deactivate or suspend your Account, delete your Account and all related information and files in your Account, without assigning any reason. Without prejudice to the generality of the above, Viva Tree reserves the right to deactivate your Account if it has been inactive for a period of six (6) months or more, or if you are in breach of any of our Website Conditions or these Membership Conditions or if Viva Tree believes that you have been using the Account for unlawful and/or undesirable activities.
4.2 You agree not to hold Viva Tree liable or responsible for any loss or damage incurred by you arising out of or in connection with the suspension and/or termination of your Account.
5. Member Obligations
5.1 You represent and warrant that you have read and agree to be bound by our Website Conditions and these Membership Conditions.
5.2 You acknowledge that the Site and Services are used by a community of users, and you hereby agree and undertake:
5.2.1 to treat all users with respect and civility;
5.2.2 not to annoy, pester, solicit, harass, threaten, offend, insult, abuse, defame, or injure any other users, or commit any unlawful or tortious acts against other users;
5.2.3 not to spam, mail bomb, send viruses, spyware, malware, worms or other damaging material to other users, or act in any manner that adversely affects the use of the Services by other users;
5.2.4 not to harvest or otherwise collect information about users, including email addresses, without Viva Tree's prior written consent.
5.3 Any infringing, fraudulent, abusive, or otherwise illegal activity, or any breach of the Website Conditions or these Membership Conditions, shall be grounds for termination of your use of the Site and Services and/or your Account, at Viva Tree's sole and absolute discretion, and you may be reported to appropriate law-enforcement agencies.
5.4 Without prejudice to Viva Tree's rights of restriction, suspension and termination under Clause 4, Viva Tree reserves the right to terminate your Account and/or your access to all or any part of the Site or Services if you are in breach of any of these Membership Conditions or the Website Conditions or if Viva Tree believes that you have been using the Site or any of the Services for unlawful and/or undesirable activities.
5.5 You agree to indemnify and hold Viva Tree, and its subsidiaries, affiliates, officers, agents, partners, and employees, harmless from all claims, demands, actions, proceedings, liabilities (including statutory liability and liability to third parties), penalties, and costs (including without limitation, legal costs on a full indemnity basis), awards, losses and/or expenses, due to or arising out of:
5.5.1 any User Content placed by you;
5.5.2 your use of any Services;
5.5.3 your breach of warranty, or breach of any terms and conditions of these Membership Conditions; or
5.5.4 your misrepresentation, fraudulent acts, tortious acts, breach of contract, or violation of any rights of another person or entity.
6. User Content & Licence
6.1 Please exercise respect when participating in any community feature on the Services which permits you to upload or submit User Content.
6.2 You may not submit, upload or publish on the Site or through Viva Tree:
6.2.1 any User Content that is inaccurate, misleading, libellous, defamatory, threatening, pornographic, an invasion of privacy, obscene, indecent, lewd, crude, abusive, improper, illegal, political, racist, religious, blasphemous, offensive, false, misleading, an infringement of any intellectual property or other rights of a third party, or would otherwise violate or encourage the violation of any law or the proprietary or other rights of any third party;
6.2.2 not to annoy, pester, solicit, harass, threaten, offend, insult, abuse, defame, or injure any other users, or commit any unlawful or tortious acts against other users;
6.2.3 any User Content that solicits funds, or includes programs that contain viruses, Trojan horses, worms, time bombs or any other programs designed to impair the operation and functionality of the Site, Services, Servers, or any computer; or
6.2.4 without the relevant third party owners' permission, any links to third party websites or use any third party trademarks, (individually and collectively "Improper Works").
6.3 If, at any time you upload or post User Content to the Site you automatically:
6.3.1 grant Viva Tree, its affiliates, subsidiaries and subcontractors (including its Internet content hosting servers and delivery networks) a non-exclusive, royalty-free, irrevocable, perpetual and worldwide licence to use (including without limitation, to store, reproduce, modify, distribute, publish, display, communicate, transmit, broadcast, podcast, webcast, or broadcast) and to sub-licence the User Content whether or not in connection with the provision of the Services and/or on or via the Site, other websites, and other printed and online publications and newspapers;
6.3.2 represent and warrant that:
(i) all User Content are your own original works and creations and do not and will not infringe the copyright or any other intellectual property or other rights of any third party;
(ii) none of the User Content are proprietary or confidential;
(iii) none of the User Content are Improper Works, nor will they expose Viva Tree to any civil or criminal proceedings in any part of the world; and
(iv) the use by Viva Tree and other users for the purposes and in the manner set out in this Clause 6.3, and the hosting of the User Content on the Servers by Viva Tree will not require any further licences from, or infringe any intellectual property or other rights of, any third party.
6.4 Viva Tree at all times retains the sole discretion to remove or decline to accept any User Content from the Site without assigning any reason whatsoever. Without limiting the foregoing right, Viva Tree may monitor the Site for Improper Works (but is not obliged to do so) and reserves the right to remove any User Content which Viva Tree believes are Improper Works, or which is the subject of any dispute.
6.5 You agree to indemnify and hold Viva Tree, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from all claims, demands, actions, proceedings, liabilities (including statutory liability and liability to third parties), penalties, and costs (including without limitation, legal costs on a full indemnity basis), awards, losses and/or expenses, due to or arising out of any User Content or Improper Works you submit, post to or transmit through the Site or Services.
6.6 The copyright and intellectual property rights in all User Content which belong to you prior to uploading on this Site shall be retained by you, subject to the licences granted by you under these Membership Conditions (including under Clause 6.3), and subject to Viva Tree's rights in the compilation of all User Content.
7. Use of Services
7.1.1 Some Services are subject to further terms and conditions or the execution of a separate contract between Viva Tree and yourself.
7.1.2 Viva Tree shall be entitled at any time, at its sole discretion and without prior notice, to:
(i) add to, vary, terminate, withdraw or suspend the whole or any part or feature of any Service; and/or
(ii) add new Services.
7.1.3 when new Services are added, these Membership Conditions and the Website Conditions will also apply to such new Services, in addition to any further terms and conditions notified to you.
7.2 Online Ordering of Products
7.2.1 The terms and conditions governing online ordering of Products can be found at Online Store Terms & Conditions and are hereby incorporated by reference into these Membership Conditions.
8.1 The initial registration with the Site is free.
8.2 Viva Tree may offer the use of any Service, subject to payment of a fee or other charges to Viva Tree. If you wish to use such Service, you shall make full and prompt payment to Viva Tree of the applicable fees in accordance with the payment terms specified by Viva Tree at the point of transaction. Unless otherwise stated, all fees are quoted in United States Dollars.
8.3 You acknowledge and agree that Viva Tree in its sole and absolute discretion, may now or in the future impose a fee or vary any fee for any Service by notifying you.
8.4 If you do not agree to make payment of such fee or varied fee after being notified, you may close your Account and discontinue your access of the Service.
8.5 In the event that Viva Tree terminates or withdraws the operation of any Service, Viva Tree shall refund any fees paid by you to Viva Tree, on a pro-rated basis for the remaining and unexpired portion of the term for such specific and relevant transaction.
8.6 If your Account is terminated at any time by Viva Tree for breach of the Agreement, or if you cancel any payable Service, you shall not be entitled to any refund of any fees that have been paid to Viva Tree.
9.1 You hereby agree that:
9.1.1 all records of Viva Tree relating to the Services, your use or access of the Services or the Site, your Account, your particulars, any Content, or this Agreement (collectively "Records"), though in electronic form, are written documents, and you shall not dispute or challenge the validity or enforceability of any Record on the grounds that it is not a written document, is in electronic form, or was produced by or is the output of a computer system, and you hereby waive any such right you may have at law; and
9.1.2 the Records, though in electronic form, are original documents, and you will not challenge the admissibility of any Record on the grounds that it is made in electronic form.
10.1 Please click on the "Accept" button to indicate your acceptance of these Membership Conditions, or the "Decline" button to discontinue the registration process.