TERMS AND CONDITIONS APPLYING TO THE
PURCHASE, DELIVERY AND USE OF GOODS

1. 1.                    Definitions and Interpretation

1.1                 In these Terms and Conditions:

(a)                  Goods means a garment or garments purchased via the Website.

(b)                  GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(c)                  Loss means loss or damage of any kind and includes:

(i)                    loss of actual or anticipated revenue;

(ii)                   loss of actual or anticipated profits;

(iii)                 economic loss;

(iv)                  personal injury;

(v)                   death;

(vi)                  damage to real or personal property;

(vii)                interest; and

(viii)               legal costs.

(d)                  Nightie Night Lane means Nightie Night Lane Pty Ltd ABN 75 600 575 844.

(e)                  Purchaser means a person who purchases Goods.

(f)                    Website means the Nightie Night Lane website, https://nightienightlane.com/.

1.2                 In these Terms and Conditions:

(a)                  headings are for convenience only and do not affect interpretation;

(b)                  unless the context indicates a contrary intention:

(i)                    an obligation or liability assumed by, or a right conferred on, 2 or more persons binds or benefits them jointly and severally;

(ii)                   person includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;

(iii)                 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 a substituted or an additional trustee;

(iv)                  a reference to a document (including these Terms and Conditions) is to that document as varied, novated, ratified or replaced from time to time;

(v)                   a reference to a statute or statutory provision includes a statutory modification or re-enactment of it or a statutory provision substituted for it, and each ordinance, by-law, regulation, rule and statutory instrument (however described) issued under it;

(vi)                  a word importing the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;

(vii)                a reference to a party, clause, schedule, exhibit, attachment or annexure is a reference to a party, clause, schedule, exhibit, attachment or annexure to or of these Terms and Conditions, and a reference to these Terms and Conditions includes all schedules, exhibits, attachments and annexures to these Terms and Conditions;

(viii)               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;

(c)                  includes in any form is not a word of limitation; and

(d)                  a reference to $ or dollar is to Australian currency.

1. 2.                    General

2.1                 These Terms and Conditions apply to the purchase, delivery and use of Goods.

2.2                 The Purchaser acknowledges that he/she (or, where the Purchaser is not a natural person, a natural person with authority to bind the Purchaser) has read these Terms and Conditions carefully and understood them, before purchasing Goods from Nightie Night Lane.

2.3                 By purchasing Goods from Nightie Night Lane, the Purchaser agrees to be bound by the terms contained in this document.

2.4                 Each purchase of Goods from Nightie Night Lane will give rise to a separate binding and enforceable agreement between the Purchaser and Nightie Night Lane containing the terms contained in this document. 

1. 3.                    Payment and pricing

3.1                 Payment for Goods (including any GST which applies) must be made in full at the time of purchase.  Delivery of Goods to the Purchaser will not occur until after payment in full has been received by Nightie Night Lane.

3.2                 Nightie Night Lane reserves the right to accept or reject any proposed purchase of Goods, in its sole and absolute discretion. 

3.3                 Goods purchased from Nightie Night Lane may not be resold unless the Purchaser has first obtained written approval from Nightie Night Lane.  That approval should be sought by contacting Nightie Night Lane via email at info@nightinightlane.com.

3.4                 Where a Purchaser purchases Goods and the Goods are withdrawn or suspended from sale before delivery to the Purchaser and the Purchaser's payment for the withdrawn or suspended goods has already been received by Nightie Night Lane by the time when the withdrawal or suspension occurs:

(a)                  the Goods will not be delivered to the Purchaser; and

(b)                  Nightie Night Lane will refund the money received from the Purchaser for the withdrawn or suspended Goods.

3.5                 Nightie Night Lane reserves the right to change the price of Goods at any time, without notice to the Purchaser or to any other person.  The price displayed on the Website at the time of purchase will be the price the Purchaser is charged.

1. 4.                    Cancellations, refunds and exchanges

The Purchaser agrees and acknowledges that, except where provided for expressly in these Terms and Conditions or separately agreed in writing by Nightie Night Lane:

(a)                  no changes to purchases will be accepted by Nightie Night Lane;

(b)                  no refunds will be provided by Nightie Night Lane; and

(c)                  no returns or exchanges will be accepted by Nightie Night Lane,

simply for a change of mind.  The Nightie Night Lane Returns Policy can be found on the Website or by clinking this link: [insert link to Nightie Night Lane Returns Policy].

1. 5.                    Exclusions and limitations of liability

5.1                 Clauses 5.2 to 5.7 have effect to the maximum extent permitted by law.

General exclusion of liability

5.2                 The Purchaser agrees and acknowledges that neither Nightie Night Lane nor any of its officers or employees will have any liability whatsoever to the Purchaser, or to any other person, for any Loss suffered by the Purchaser, or by any other person, arising in connection with:

(a)                  the purchase of Goods;

(b)                  the delivery of Goods;

(c)                  the use of Goods;

(d)                  access to the Website; and/or

(e)                  use of the Website,

even where such Loss is caused by a breach by Nightie Night Lane (or by any of its officers, employees, agents or representatives) of a duty owed to the Purchaser, or to some other person.

5.3                 Without limiting the generality of clause 5.2, the Purchaser further agrees and acknowledges that:

(a)                  while Nightie Night Lane will take reasonable steps to ensure the timely delivery of Goods to the Purchaser, Nightie Night Lane will not be responsible for the time taken for delivery to occur and will have no liability to the Purchaser or to any other person for any Loss suffered by the Purchaser, or by any other person, arising in connection with:

(i)                    delay in the delivery of Goods; or

(ii)                   damage to Goods while in transit;

(b)                  Nightie Night Lane, its officers and employees make no representation that the Website will be free of viruses, worms, spy-ware, Trojans or other malicious software;

(c)                  Nightie Night Lane, its officers and employees make no representation that the Purchaser's access to the Website will be uninterrupted or free from technical error;

(d)                  while Nightie Night Lane endeavours to ensure that all information on the Website is true and correct (including descriptions, details and prices of products), Nightie Night Lane will have no liability to the Purchaser or to any other person for any Loss suffered by the Purchaser, or by any other person, arising in connection with any inaccuracy or error in the information contained on the Website;

(e)                  while Nightie Night Lane endeavours to display garments as accurately as possible on the Website, the colours and visual descriptions of the garments may be different from what appears on the Purchaser's computer or other electronic device and all pictures and images of garments displayed on the Website are displayed for illustrative purposes only;

(f)                    garment sizes referred to on the Website are intended only as a guide and are not intended to represent the actual dimensions of  garments, which may vary slightly from those referred to on the Website;

(g)                  Nightie Night Lane, its officers and employees make no representation as to whether any garment offered for sale on the Website complies with any Australian or New Zealand Standard, including AS/NZS 1249:2014;

(h)                  if, notwithstanding clause 5.2, Nightie Night Lane or any of its officers or employees is held by a Court to owe a liability to the Purchaser, or to any other person, the maximum liability which Nightie Night Lane, its officer or employees may owe to the Purchaser or to any other person is an amount equivalent to the purchase price (excluding GST) of the relevant Goods; and

(i)                    if, notwithstanding clause 5.2, the Purchaser is legally entitled to recover Loss from Nightie Night Lane, or any of Nightie Night Lane's officers or employees, any proceedings seeking recovery of the Loss must be commenced within 12 months after the date of the relevant purchase of Goods, failing which the Purchaser's entitlement to recovery of the Loss will be extinguished.

5.4                 Clauses 5.5 to 5.7 inclusive do not limit the generality of clauses 5.2 and 5.3 and operate to the extent (if any) that clauses 5.2 and/or 5.3 are held by a Court not to be enforceable.

No liability in negligence

5.5                 The Purchaser agrees and acknowledges that neither Nightie Night Lane nor any of its officers or employees will have any liability whatsoever in negligence to the Purchaser, or to any other person, for any Loss suffered by the Purchaser, or by any other person, arising in connection with:

(a)                  the purchase of Goods;

(b)                  the delivery of Goods;

(c)                  the use of Goods;

(d)                  access to the Website; and/or

(e)                  use of the Website,

even where such Loss is caused by a breach by Nightie Night Lane (or by any of its officers, employees, agents or representatives) of a duty of care owed to the Purchaser, or to some other person.

Limitation of liability for breach of contract

5.6                 The Purchaser agrees and acknowledges that, in connection with any breach of contract (including any breach of these Terms and Conditions) by Nightie Night Lane, the maximum liability which Nightie Night Lane may owe to the Purchaser, or to any other person, for Loss caused by the breach is an amount equivalent to the purchase price (excluding GST) of the Goods the subject of the contract in respect of which the breach of contract occurs.

5.7                 Without limiting the generality of clause 5.6, the Purchaser further agrees and acknowledges that Nightie Night Lane will not be liable to the Purchaser or to any other person for any indirect or consequential Loss caused by any breach of contract by Nightie Night Lane.

Acknowledgement of reliance

5.8                 The Purchaser acknowledges that Nightie Night Lane relies upon the Purchaser's agreements and acknowledgments contained in clauses 5.2 to 5.7 inclusive (and each of them) every time Nightie Night Lane enters into an agreement with the Purchaser on the terms contained is this document.

1. 6.                    Intellectual Property

6.1                 All content on the Website is subject to copyright and other intellectual property rights. These rights are owned by Nightie Night Lane.

6.2                 No element of the Website may be reproduced, transmitted, communicated, adapted, distributed, sold, modified or published, uploaded to a third party, linked to, framed, or otherwise used, except as provided by legislation or with the prior written consent of Nightie Night Lane. This includes all pictures, photographs and garment designs viewable on the Website.

6.3                 All text on the Website, including these Terms and Conditions, is subject to copyright and may not be reproduced, transmitted, communicated, adapted, distributed, sold, modified or published, or otherwise used, except as provided by legislation or with the prior written consent of Nightie Night Lane.

1. 7.                    Governing law

7.1                 These Terms and Conditions are governed by and must be construed according to the laws of New South Wales, Australia.

7.2                 Each party irrevocably submits to the non‑exclusive jurisdiction of the courts of New South Wales, and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating in any way to these Terms and Conditions.

7.3                 Each party irrevocably waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, where that venue falls within clause 7.2.

1. 8.                    Severance

If at any time any provision of these Terms and Conditions is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that will not affect or impair:

(a)                  the legality, validity or enforceability in that jurisdiction of any other provision of these Terms and Conditions; or

(b)                  the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of these Terms and Conditions.

1. 9.                    Entire agreement

To the extent permitted by law, in relation to the subject matter of these Terms and Conditions, these Terms and Conditions:

(a)                  embody the entire understanding of the parties, and constitute the entire terms agreed by the parties; and

(b)                  supersede any prior written or other agreement of the parties.

1. 10.                 Amendment

10.1              Nightie Night Lane may amend these Terms and Conditions at any time. 

10.2              The Terms and Conditions Applying to the Purchase, Delivery and Use of Goods which are displayed on the Website at the time that the Purchaser purchases Goods will be the terms and conditions applying to that purchase.

1. 11.                 Waiver

11.1              Failure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement of, a right, power or remedy provided by law or under these Terms and Conditions by Nightie Night Lane does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under these Terms and Conditions by Nightie Night Lane.

11.2              A waiver or consent given by Nightie Night Lane under these Terms and Conditions is only effective and binding on Nightie Night Lane if it is given or confirmed in writing by Nightie Night Lane.

11.3              No waiver by Nightie Night Lane of a breach of a term of these Terms and Conditions operates as a waiver of another breach of that term or of a breach of any other term of these Terms and Conditions.

1. 12.                 GST

Where a supply of Goods is a taxable supply, the consideration provided for that supply (other than under this clause) shall be increased by an additional amount equal to the GST payable on the supply.  The additional amount must be paid, and Nightie Night Lane must provide a tax invoice, at the same time as the other consideration for that supply is to be provided under these Terms and Conditions.  Terms used in this clause 11 have the meanings given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended from time to time.