Last updated on 14 November 2019
We may change these Terms at any time by updating this page of the Website. The Terms displayed on this page of the Website at the time you place your Hire Order will apply to that Hire Order. Please review these Terms each time you place a Hire Order, as these Terms may have changed.
These terms and conditions (Terms), govern your use of the booking functionality located on this Website and the terms under which you or the company you represent (the Customer, you) will hire designer Clothing Items listed on the Website for the purpose of Photo Shoots conducted by you.
By placing an order for Clothing Items, you agree to be bound by these Terms which form a binding contractual agreement between you, the Hirer and us, Neishe & Co Pty Ltd ABN 81 635 782 991 (Neishe & Co, our, we, us). A contract is formed when we confirm your Hire Order.
MEANING OF KEY TERMS
In addition to capitalised terms defined in the Introduction above, capitalised terms used in this agreement will have the following meanings:
|Fees||has the meaning set out in your Hire Order.|
|Hire Order||has the meaning set out in clause 1 of these Terms.|
|Rental Term||means the period of Clothing Item rental, from the Start Date, set out in the Hire Order.|
|Clothing Item||means the item(s) selected by you on our site and included in your Order.|
|Start Date||has the meaning set out in the Hire Order.|
TERMS AND CONDITIONS
1. YOUR ORDER TO HIRE CLOTHING ITEMS
(a) By submitting an order for hire of a Clothing Item using the Website’s functionality (Hire Order) you represent and confirm that:
(i) you intend to place a binding order to hire the Clothing Items on a rental basis (and you are not purchasing the Clothing Items);
(ii) you will return the Clothing Items on or before the Return Date unless you extend your Hire Order in accordance with clause 2.2
(iii) you have the legal capacity and are of sufficient age to enter into a binding contract with us; and
(iv) you are authorised to use the debit or credit card used to pay the Fees.
(b) The Clothing Items are, and will at all times be and remain, the property of Neishe & Co. You will not have any right, title or interest in or to the Clothing Items except as expressly set out in these Terms. You must not, without Neishe & Co’s prior written consent, part with possession of the Clothing Items during the Rental Term.
2. CHANGING YOUR ODER
2.1 VARIATIONS TO YOUR ORDER
You may vary an order prior to notification to you that your Hire Order is being processed by Neishe & Co through the functionality on the Website.
2.2 EXTENDING THE HIRE PERIOD
If you want to extend the hire period, you may do so using the functionality on our website (Extension). All Extensions are subject to availability and your payment of the additional fees displayed on our website from time to time.
(a) Due to the rare and high quality nature of the Clothing Items, it is not always possible to provide an exchange even where we want to or say we will. Some Clothing Items are only carried in one size, and stock is limited for all Clothing Items.
(b) We are not able to accommodate exchanges if you change your mind or the Clothing Item does not fit (other than due to a size guide error).
(c) If the Clothing Item arrives damaged or not as described, or the size guide is wrong, we will do our best to send a new item express post (noting that there may not another of the same Clothing Item).
(d) If the Clothing Item arrives damaged or faulty or not as described, or the size guide is wrong, we will do our best to send a new item express post (noting that there may not another of the same Clothing Item). The refunds process in clause 1.4(b) will apply.
(a) We do not offer change of mind returns. If you change your mind and want to order a different Clothing Item, you can return the Clothing Item early (for no refund) and order a new Clothing Item.
(b) We will provide a full refund of the Fees paid in respect of:
(i) any ordered Clothing Items not provided due to failure by us;
(ii) any Clothing Items provided that are not substantially the same as the Clothing Items requested in the Hire Order; or
(iii) any faulty clothing Items,
provided you request the refund immediately after (in Victoria, Australia) the actual delivery time stamped with the courier (being no more than 1 hour after) and subject to confirmation of the failure, delay or substantially incorrect Clothing Item.
2.5 CANCELLATIONS BY US
We reserve the right to cancel your order for any reason and will notify you of this as soon as possible. Where payment has already been debited, the full amount will be credited back to your original method of payment.
3. HOW DELIVERY AND RETURN WORKS
(a) Delivery costs will be added to the cart upon checkout. The Fees displayed at checkout are inclusive of return delivery.
(b) Clothing Items will be delivered with a return pre-paid post bag. You must return the Clothing Items using this bag, or you will have to pay for the cost of return shipping.
(c) We will deliver the Clothing Items to you in accordance with the shipping information displayed on our Website. Third party courier, Shippit, terms, apply to the delivery of the Clothing Items to you. Any problems with delivery should be directed to us to troubleshoot the issue. We will endeavour to assist you to ensure your delivery arrives.
(d) We use express post. While we always endeavour to ensure your Clothing Items are delivered to you no later than the date indicated for schedule delivery at checkout, all delivery times provided to you are estimates only and are subject to reasons beyond our control.
(e) We do not warrant or make any representation that your order will be delivered within the times indicated.
(f) We will not be liable for any loss or damage suffered as a result of or in connection with late deliveries or non-deliveries except as set out in clause 2.4 below.
4. USING AND CARING FOR THE CLOTHING ITEMS
(a) The Clothing Items are hired to you for the purpose of the Photo Shoot only. The Clothing Items are not to be used for any other purpose. The Clothing Items must only be worn by your clients during the Photo Shoot.
(b) You must take all necessary precautions to protect the Clothing Items. This includes not allowing your clients to consume any food or beverages during the Photo Shoot, and minimising potential for other stains including not placing subjects in grass or mud.
(c) You must follow all care instructions provided to you in relation to storing and ironing, and otherwise caring for, the Clothing Items.
5. DRY CLEANING
(a) Dry cleaning of the Clothing Items is included in the Fees.
(b) We will use our dry cleaner. Please do not provide the Clothing Items to another dry cleaner unless otherwise agreed with us.
(c) If dry cleaning is required prior to returning the Clothing Items, including where there are any stains on the Clothing Items, please notify us immediately. We will work with you to determine the best approach and may require you to take the Clothing Items to a dry cleaner yourself.
6. PUBLISHING PHOTOS ONLINE
You may publish, and allow your clients to publish, photos of the Clothing Items taken during the Photo Shoot, subject to accreditation to Neishe & Co by reference or hashtag. We reserve the right to require you to remove any posts that feature the Clothing Items or remove any accreditation to us.
7. PAYMENTS FOR HIRE
The price of the Clothing Item hire is that stated on the Website at the time of acceptance of your Hire Order, unless otherwise expressly agreed by us in writing. Prices quoted are based on the information which you submit to the Website, and we reserve the right to vary prices if that information is incorrect.
7.2 PRICING ERRORS
In the event that we discover an error or inaccuracy in the price at which your order was purchased, we will attempt to contact you and inform you of this as soon as possible. You will then have the option of purchasing your order at the correct price, or cancelling your order. If you choose to cancel your order and payment has already been debited, the full amount will be credited back to your original method of payment.
You must pay the Fees to Neishe & Co, in the amounts and using the payment method set out in the Hire Order or as otherwise agreed in writing.
7.4 LATE PAYMENTS
Additional Fees will apply for each day that the Clothing Item is late to be returned to us after the end of the Rental Term.
No Additional Fees paid will limit or otherwise affect your obligation to return the Clothing Items to us on the date to which we agree to extend the Rental Term.
7.5 THIRD PARTY PAYMENT PROVIDER
The Fees must be paid through our third party payment providers including PayPal as prompted by the Website. You acknowledge and agree that those third party payment providers have additional terms and conditions which apply to your payment of the Fees, including as to how the transaction takes place and any late fees that may apply from time to time as determined by the third party payment provider in its absolute discretion.
Afterpay is not available when you hire Clothing Items.
Unless otherwise indicated, amounts stated in a Hire Order and/or on our Website include GST.
7.7 CARD SURCHARGES
Neishe & Co reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
8. LEGAL RISK AND LIABILITIES
(a) Except for fair wear and tear, you will bear all risk of loss or destruction of, or damage to, the Clothing Items during the Rental Term, or otherwise when the Clothing Items are in your possession.
(b) You must compensate the relevant Supplier for any costs of repair or replacement in relation to any loss, theft, damage or destruction set out in clause 8.1(a).
(c) You must bear all risks and liability for the Clothing Items and their use, repair and storage (including but not limited to loss of profits, loss of revenue, consequential damage, inconvenience or loss of use for any period of time) and for injuries to or deaths of persons and damage to property arising in connection with such use, repair or storage.
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this Agreement are excluded.
(b) Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, Neishe & Co’s liability for breach of that non-excludable condition, warranty or guarantee will, at Neishe & Co ’s option, be limited to:
(i) in the case of goods, their replacement or the supply of equivalent goods or their repair; and
(ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
This clause is not intended to limit any rights you may have under the Competition and Consumer Act 2010 (Cth).
To the extent permitted by law (including the Competition and Consumer Act 2010 (Cth)), Neishe & Co’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims are for economic loss, or for personal injury or other damage) arising under or in connection with these Terms:
(a) is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits or loss of goodwill; and
(b) is limited, insofar as concerns other liability, to the total money paid to Neishe & Co under this Agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
You indemnify Neishe & Co from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
(a) any damage to the Clothing Items during the Rental Term or otherwise when the Clothing Items are in your possession;
(b) injuries to or deaths of persons and damage to property in connection with the Clothing Items during the Rental Term or otherwise when the Clothing Items are in your possession; or
(c) any breach of this Agreement by you.
9. GENERAL INTERPRETATION PROVISIONS
9.1 GOVERNING LAW
This Agreement is governed by the law applying in Victoria, Australia.
Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
(a) Nothing contained in these Terms creates an agency, partnership, joint venture or employment relationship between Neishe & Co and the Customer or any of their respective employees, agents or contractors.
(b) Neither party nor any person acting on its behalf may hold itself out as being entitled to contract or accept payment in the name of or on account of the other party.
This Agreement may only be amended by a document signed by each party.
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
9.7 FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
9.8 ENTIRE AGREEMENT
This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.
9.9 FORCE MAJEURE
Neither Neishe & Co nor the Supplier will be liable for any failure or delay in complying with any obligation imposed by these Terms if the failure or delay arises directly from an any circumstance beyond Neishe & Co’ or Supplier’s control, including without limitation fire, flood, earthquake, explosion, war, insurrection, sabotage, industrial disputes, transportation, embargo, changes in law, delays or disruption by government or government agencies
In this agreement, the following rules of interpretation apply:
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to “person” includes an individual, the estate of an individual, a corporation, an authority, anassociation, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (currency) a reference to “$” or “dollar” is to Australian currency;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.