1.1 “Numidan” (“we”, “our”, or “us”) means Daniel Alexander Harvey (ABN 32 387 448 743), its successors and assigns or any person acting on behalf of and with the authority of Daniel Alexander Harvey (ABN 32 387 448 743).
1.2 “Services” means the Numidan website located at numidan.com.au (the “Site”) and related services including Numidan’s baby clothes rental services and its content (the “Content”).
1.3 “User” (“client”, “customer”, “you” or “your”) means the User or any person acting on behalf of and with the authority of the User.
1.4 “Apparel” means all Apparel (all items of clothing) supplied on hire by Numidan to the User (and where the context so permits shall include any incidental supply of services). The Apparel shall be as described on any invoices or other documentation provided by Numidan to the User.
1.5 “Subscription (rental) Period” means the monthly period that the User books the Apparel for – starting from the tenth (10th) day from the sign up date, to the day the last Apparel is received by Numidan.
1.6 “Rental Price” (“price”) means the cost of the hire of the Apparel as agreed between Numidan and the User subject to clause 4 of this contract.
1.7 “Gift Card” (“Gift Cards”) means the Numidan Gift Card located at numidan.com.au.
2. The Commonwealth Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the User hires Apparel as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3.1 Any instructions received by Numidan from the User for the hire of Apparel and/or the User’s acceptance of Apparel supplied on hire by Numidan shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one User has entered into this agreement, the Users shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the User the terms and conditions are irrevocable and can only be amended with the written consent of Numidan.
3.4 The User shall give Numidan not less than ten (10) days prior written (or where applicable, online) notice of any proposed change in the User’s details (including but not limited to, changes in the User’s address, mobile number, or credit card details). The User shall be liable for any loss incurred by Numidan as a result of the User’s failure to comply with this clause.
3.5 Apparel is supplied by Numidan based only on the terms and conditions of hire herein to the exclusion of anything to the contrary in the terms of the User’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of hire.
4. Price and Payment
4.1 The Price shall be Numidan’s current Price, at the date of delivery of the Apparel, according to Numidan’s current Price as detailed on Numidan’s website.
4.2 Numidan reserves the right to change the Price in the event of a variation to the User’s requirements.
4.3 At Numidan’s sole discretion a deposit may be required.
4.4 A bond equivalent to two (2) months subscription will be required by Numidan upon sign up which shall be refunded upon return of the Apparel in a condition acceptable to Numidan.
4.5 Payment may only be made by credit card (only Amex, Mastercard and Visa accepted) or by any other method as agreed to between Numidan and the User.
4.6 In the event an invoice is issued for payment for any reason then payment shall be due within seven (7) days of the date of the invoice.
4.7 If a credit card cannot be debited and is more than seven (7) days late, the agreement will be terminated between Numidan and the User.
4.8 Receipt by Numidan of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
4.9 GST and other taxes and duties that may be applicable are included in the Price.
4.10 All Prices on our website are denominated in Australian Dollars.
5. Rental Period
5.1 Rental period shall commence from ten (10) days after the User (or a third party nominated by the User) places an order online (signs up) until the last Apparel is received by Numidan.
5.2 The User expressly authorises Numidan to deduct monthly hire fees (subscription cycles) from the User’s credit card which was provided at the time of placement of the User’s order. Such charges will be deducted monthly until the last Apparel is received by Numidan.
5.3 If the User has returned the Apparel once they have received a larger size, the date of the deducted monthly hire fees (subscription cycles) remains the same. If the User has returned the Apparel and is the final size offered by Numidan or if the User is closing an account down, there will be no pro rata payments – the monthly hire fees (subscription cycles) will still be charged for that month. A monthly hire fee (subscription cycles) will be refunded if the last Apparel is received by Numidan within five (5) days of a monthly hire fee (subscription cycles) having already being debited for the next month.
6. Delivery of the Apparel
6.1 At Numidan’s sole discretion delivery of the Apparel shall be deemed to have taken place when the Apparel is delivered to the User’s nominated delivery address (or picked up from an Australia Post Licensed Post Office (LPO) or Australia Post Post Shop) and the User (or a third party nominated by the User) has signed the delivery receipt.
6.2 The delivery fee as well as the return fee is included in the monthly hire fees (subscription cycles).
Numidan’s standard delivery method is Parcel Post service (or Express Post parcels at Numidan’s sole discretion), operated by Australia Post (see Australia Post’s Terms and Conditions).
6.3 The User shall make all arrangements necessary to take delivery of the Apparel whenever tendered for delivery. In the event that the User is unable to take delivery of the Apparel at the nominated delivery address and for any reason Numidan is required to redeliver the Apparel then Numidan shall be entitled to charge a reasonable fee for the redelivery.
6.4 Any delivery time or date given by Numidan to the User is an estimate only. The User must still accept delivery of the Apparel even if late and Numidan will not be liable for any loss or damage incurred by the User as a result of the delivery being late.
7.1 Numidan retains property of the Apparel nonetheless all risk for the Apparel passes to the User on delivery.
7.2 The User accepts full responsibility for the safekeeping of the Apparel.
7.3 If the Apparel gets lost, stolen or damaged beyond repair (beyond normal wear and tear), whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the User then the User will be liable to pay for replacement of the item. Each item will incur a fifteen dollars ($15) fee if lost, stolen or damaged beyond repair.
8. Title To Hired Apparel
8.1 The Apparel is and will at all times remain the absolute property of Numidan.
8.2 If the User fails to return the Apparel to Numidan then Numidan or Numidan’s agent may (as the invitee of the User) enter upon and into land and premises owned, occupied or used by the User, or any premises where the Apparel is situated and take possession of the Apparel.
9.1 The User shall inspect the Apparel on delivery and shall within five (5) days of receipt of the Apparel notify Numidan (by email) of any alleged defect, shortage in quantity, damage, or failure to comply with what was ordered.
10. Sizing Issues/Returns
10.1 If the User wishes to cancel an order (the subscription), then they must contact Numidan as soon as is possible, in writing. The User will have ten (10) days from ordering the Apparel/subscribing to Numidan to cancel the order free of charge. The User must notify Numidan of their request to cancel an order within these 10 days. Numidan will issue a full refund upon return of the Apparel to Numidan.
10.2 All Apparel which is to be returned because of incorrect sizing must be sent back to Numidan within ten (10) days from ordering the Apparel/subscribing to Numidan, and Numidan will send out the User a new size. If for some reason Numidan doesn’t have an alternative size (since Numidan has limited inventories in each stock subscription package), it may be that the requested item is unavailable. In which event Numidan will issue the User a full refund of the monthly subscription cost, minus the shipping cost. The User might still be charged an additional shipping cost if another size is re-sent at the sole discretion of Numidan.
10.3 Once Numidan has received the returned Apparel, as well as the User’s return request, Numidan will email the User a refund request confirmation within three (3) working days. Whilst Numidan will make every effort to process a refund as quickly as is possible, the refund process can take approximately ten to twenty (10-20) working days dependant on the independent processing time taken by the User’s credit card provider and the User acknowledges that Numidan has no control over such Credit card issuers processes.
11. Gift card
11.1 Gift cards issued by Numidan will expire one (1) year after the date of issue. Once a gift card has expired, Numidan is under no obligation to offer an extension.
11.2 Expired gift cards are non-refundable in whole or in part. After a voucher has expired, it is no longer valid and all transaction attempts will be declined. Any unused value at the date of expiry will become the property of Numidan.
11.3 The User (or bearer) is responsible for the use and safety of gift cards issued by Numidan. The User (or bearer) is liable for all transactions made with Gift cards issued by Numidan, except to the extent to which there has been fraud or negligence by Numidan.
11.4 Any additional cost exceeding the value of gift cards issued by Numidan will be paid by the User (or bearer).
11.5 Gift cards issued by Numidan are not exchangeable for cash or any other item and not refundable.
11.6 If a Numidan gift card is received and subsequently lost, the User may be eligible to have a replacement gift card emailed to them.
Conditions for replacement of lost Numidan gift cards:
(a)The gift card is still valid and has not yet been used.
(b) Proof of purchase is provided; either an order number, Users full name or Users email address.
(c) Numidan is able to correctly verify you as the original User (or bearer).
Please note it is the gift card User’s responsibility to obtain and provide Numidan with all required verification details. Failure to do so will mean no replacement gift card can be issued.
12. User’s Responsibilities
12.1 The User shall:
(a) immediately notify Numidan of any damage to the Apparel that occurs during the hire period;
(b) on termination of the hire, deliver the Apparel, in good order as delivered, fair wear and tear accepted, to Numidan;
(c) keep the Apparel in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Apparel;
(d) not alter or make any additions to the Apparel or in any other manner interfere with the Apparel.
13.1 Numidan may cancel these terms and conditions or cancel the delivery of Apparel at any time before the Apparel is delivered by giving written notice. On giving such notice Numidan shall repay to the User any sums paid in respect of the Price. Numidan shall not be liable for any loss or damage howsoever arising from such cancellation.
14. Default and Consequences of Default
14.1 If the User owes Numidan any money the User shall indemnify Numidan from and against all costs and disbursements incurred by Numidan in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Numidan’s collection agency costs, and bank dishonour fees).
14.2 Without prejudice to any other remedies Numidan may have, if at any time the User is in breach of any obligation (including those relating to payment) under these terms of hire Numidan may repossess the Apparel as per clause 8.2, or suspend or terminate the supply of Apparel to the User and any of its other obligations under the terms and conditions. Numidan will not be liable to the User for any loss or damage the User suffers because Numidan has exercised its rights under this clause.
14.3 Without prejudice to Numidan’s other remedies at law Numidan shall be entitled to cancel all or any part of any order of the User which remains unperformed in addition to and without prejudice to any other remedies Numidan may have and all amounts owing to Numidan shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Numidan becomes overdue, or in Numidan’s opinion the User will be unable to meet its payments as they fall due; or
(b) the User becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the User.
15. Security and Charge
15.1 In consideration of Numidan agreeing to supply Apparel, the User charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the User either now or in the future, to secure the performance by the User of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2 The User indemnifies Numidan from and against all Numidan’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Numidan’s rights under this clause.
15.3 The User irrevocably appoints Numidan as the User’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the User’s behalf.
16. User Generated Content
For any content that you submit – any information such as data, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Service – you grant Numidan a perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such content and/or incorporate such content into any form, medium or technology throughout the world without compensation to you.
All content that you submit may be used at Numidan’s sole discretion. We reserve the right to change, condense or delete any content on our website that Numidan deems, in its sole discretion, to violate the content guidelines or any other provision of these Terms. Numidan does not guarantee that you will have any recourse through Numidan to edit or delete any content you have submitted. Numidan reserves the right to remove or to refuse to post any submission for any reason. You acknowledge that you, not Numidan, are responsible for the contents of your submission. None of the content that you submit shall be subject to any obligation of confidence on the part of Numidan, its agents, subsidiaries, affiliates, partners or third party service providers and their respective directors, officers and employees.
By submitting any content to Numidan, you represent and warrant that:
• You are the sole author and owner of the intellectual property rights thereto;
• All “moral rights” that you may have in such content have been voluntarily waived by you;
• All content that you post is accurate;
• Use of the content you supply does not violate these Terms and will not cause injury to any person or entity.
You further agree and warrant that you shall not submit any content:
• That is known by you to be false, inaccurate or misleading;
• That infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
• That violates any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
• That is, or may reasonably be considered to be, defamatory, libellous, hateful, racially or religiously biased or offensive, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation;
• For which you were compensated or granted any consideration by any third party;
• That includes any information that references other websites, addresses, email addresses, contact information or phone numbers;
• That contains any computer viruses, worms or other potentially damaging computer programs or files.
You agree to indemnify and hold Numidan (and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers), harmless from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown including reasonable attorneys’ fees, arising out of a breach of your representations and warranties set forth above, or your violation of any law or the rights of a third party.
17. Intellectual Property
17.1 User acknowledges and agrees that Numidan’s trademark shall remain the intellectual property of Numidan at all times and further agrees that they shall not use the same for any purpose whatsoever without the express written approval of Numidan.
18.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of Sydney, New South Wales.
18.3 Numidan shall be under no liability whatsoever to the User for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the User arising out of a breach by Numidan of these terms and conditions (alternatively Numidan’s liability shall be limited to damages which under no circumstances shall exceed the Price paid for the hire of one month’s subscription of the Apparel).
18.4 Numidan reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Numidan notifies the User of such change. Except where Numidan supplies further Apparel to the User and the User accepts such Apparel, the User shall be under no obligation to accept such changes.
18.5 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.6 The failure by Numidan to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Numidan’s right to subsequently enforce that provision.
18.7 Unless otherwise specified, the User agrees that by sending or tagging photos of Numidan’s clothing (including wearing), Numidan may use the images for promotional purposes including but not limited to print materials, social media platforms and newsletters.
19. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
19.1 The User must inspect the Apparel on delivery and must within five (5) days of delivery notify Numidan in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The User must notify any other alleged defect in the Apparel as soon as reasonably possible after any such defect becomes evident. Upon such notification the User must allow Numidan to inspect the Apparel.
19.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
19.3 Numidan acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
19.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Numidan makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Apparel. Numidan’s liability in respect of these warranties is limited to the fullest extent permitted by law.
19.5 If the User is a consumer within the meaning of the CCA, Numidan’s liability is limited to the extent permitted by section 64A of Schedule 2.
19.6 If Numidan is required to replace the Apparel under this clause or the CCA, but is unable to do so, Numidan may refund the last monthly subscription fee the User has paid for the Apparel.
19.7 Subject to this clause 19, returns will only be accepted provided that:
(a) Numidan has agreed that the Apparel are defective; and
(b) the Apparel are returned within a reasonable time; and
(c) the Apparel are returned in as close a condition to that in which they were delivered as is possible.
19.8 Subject to the CCA, Numidan shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the User failing to properly maintain or store any Apparel;
(b) the User continuing the use of any Apparel after any defect became apparent or should have become apparent to a reasonably prudent user;
(c) fair wear and tear, any accident, or act of God.