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 Purchase Order will apply to that Purchase Order. Please review these Terms each time you place a Purchase Order, as these Terms may have changed.
INTRODUCTION
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) purchase Clothing Items through this Website.
By placing an order for Clothing Items, you agree to be bound by these Terms which form a binding contractual agreement between you, the purchaser and us, Neishe & Co Pty Ltd ABN 81 635 782 991 (Neishe & Co, our, we, us). A contract is formed when we confirm your Purchase 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:
| Term | Meaning |
| Fees | has the meaning set out in your Purchase Order. |
| Purchase Order | has the meaning set out in clause 1 of these Terms. |
| Clothing Item | means the item(s) selected by you on our site and included in your Purchase Order. |
TERMS AND CONDITIONS
1. ORDER TO PURCHASE
1.1 PURCHASE ORDER
(a) By submitting an order to purchase a Clothing Item using the Website’s functionality (Purchase Order) you represent and confirm that:
(i) you intend to place a binding order to purchase the Clothing Items;
(ii) you have the legal capacity and are of sufficient age to enter into a binding contract with us; and
(iii) you are authorised to use the debit or credit card or Afterpay account used to pay the Fees.
1.2 VARIATIONS TO YOUR ORDER
You may vary an order prior to notification to you that your Purchase Order is being processed by Neishe & Co through the functionality on the Website.
1.3 EXCHANGES
(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 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.
1.4 REFUNDS
(a) 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 Purchase Order;
(iii) any faulty clothing Items; or
(iv) any Clothing Items returned in their original packaging, not worn or used in any way;
provided:
(v) you request the refund immediately after (in Victoria, Australia) the actual delivery time stamped with the courier (being no more than 1 hour after);
(vi) we provide, in our discretion, confirmation of the failure, delay or substantially incorrect Clothing Item or our decision to allow a refund.
1.5 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.
2. HOW DELIVERY AND RETURN WORKS
(a) Delivery costs will be added to the cart upon checkout. The Fees displayed at checkout are inclusive of delivery.
(b) We will deliver the Clothing Items to you in accordance with the shipping information displayed on our Website. Third party courier 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.
(c) 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.
(d) We do not warrant or make any representation that your order will be delivered within the times indicated.
(e) 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 1.3 below.
3. 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.
4. PURCHASE PRICE AND PAYMENTS
4.1 PRICING
The price of the Clothing Item is that stated on the Website at the time of acceptance of your Purchase 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.
4.2 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.
4.3 FEES
You must pay the Fees to Neishe & Co, in the amounts and using the payment method set out in the Purchase Order or as otherwise agreed in writing.
4.4 THIRD PARTY PAYMENT PROVIDER
The Fees must be paid through our third party payment providers including PayPal and Afterpay, as prompted by the Website. Afterpay is available when you purchase Clothing Items. You acknowledge and agree that those third party payment providers have additional terms and conditions which apply to your payment of the Fees.
4.5 GST
Unless otherwise indicated, amounts stated in a Purchase Order include GST.
4.6 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).
5. LEGAL RISK AND LIABILITIES
1.2 TITLE AND RISK
(a) (Title) Until the price of Goods is paid in full, title in those Goods is retained by eCommerce Store.
(b) (Risk) Risk in the Goods will pass to you on delivery. Delivery must not be refused by you.
5.1 WARRANTIES
(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).
5.2 LIABILITY
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).
5.3 INDEMNITY
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) injuries to or deaths of persons and damage to property in connection with the Clothing Items or otherwise when the Clothing Items are in your possession; or
(b) any breach of this Agreement by you.
6. GENERAL INTERPRETATION PROVISIONS
6.1 GOVERNING LAW
This Agreement is governed by the law applying in Victoria, Australia.
6.2 JURISDICTION
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.
6.3 ASSIGNMENT
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).
6.4 RELATIONSHIP
(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.
6.5 AMENDMENTS
This Agreement may only be amended by a document signed by each party.
6.6 WAIVER
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.
6.7 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.
6.8 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.
6.9 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
6.10 PRIVACY
You agree to be bound by the clauses outlined in Neishe & Co’s Privacy Policy, which can be found on our Website.
6.11 INTERPRETATION
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.