1.1 “Black Beret” (“we”, “our”, “us” or “Black Beret”) means BB & HTL PTY LTD, its successors and assigns or any person acting on behalf of and with the authority of BB & HTL PTY LTD.
1.2 “Services” means the Black Beret website located at www.blackberet.com.au (the “Site”) and related services including Black Beret’s fashion 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 (including any fashion accessories e.g. dresses) supplied on hire by Black Beret 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 Black Beret to the User.
1.5 “Rental Period” means up to 4 day period that the User booked the Apparel for - starting from the day the Apparel is delivered to the User’s delivery address, to the day the Apparel is supposed to be dropped in mail by the User, as shown on Black Beret’s website.
1.6 “Rental Price” (“price”) means the cost of the hire of the Apparel as agreed between Black Beret and the User subject to clause 4 of this contract.
1.7 “Rental Return Due Date” means the date the Apparel is expected to be back at Black Beret’s warehouse. The Rental Return Due Date is calculated to be within 1-2 business days from the end of Rental Period, depending on the User’s location.
- 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 Black Beret from the User for the hire of Apparel and/or the User’s acceptance of Apparel supplied on hire by Black Beret 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 Black Beret.
3.4 The User shall give Black Beret not less than Seven (7) days prior written notice of any proposed change in the User’s details (including but not limited to, changes in the User’s address, facsimile number, or business practice). The User shall be liable for any loss incurred by Black Beret as a result of the User’s failure to comply with this clause.
3.5 Apparel is supplied by Black Beret 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.
- Price and Payment
4.1 The Price shall be Black Beret’s current Price, at the date of delivery of the Apparel, according to Black Beret’s current Price list as detailed on Black Beret’s website.
4.2 Black Beret reserves the right to change the Price in the event of a variation to the User’s requirements.
4.3 At Black Beret sole discretion a deposit may be required.
4.4 At Black Beret’s sole discretion a bond may be required which shall be refunded upon return of the Apparel in a condition acceptable to Black Beret.
4.5 At Black Beret’s sole discretion:
(a) payment shall be due before delivery of the Apparel; or
(b) payment for approved Users shall be made by instalments in accordance with Black Beret’s payment schedule.
4.6 Payment may only be made by credit card (only Mastercard and Visa accepted).
4.7 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.
4.8 Receipt by Black Beret 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 shall be added to the Price except when they are expressly included in the Price.
4.10 All Prices on our website are denominated in Australian Dollars.
- Rental Period and Late Fees
5.1 Rental period shall commence from when the User (or a third party nominated by the User) signs the Courier’s delivery receipt and shall continue until the Apparel is dropped in the mail.
5.2 Where Apparel has not been returned to Black Beret by the Rental Return Due Date then Black Beret shall be entitled to charge additional hire fees until the Apparel is returned to Black Beret and the User expressly authorises Black Beret to deduct such additional hire fees from the User’s credit card which was provided at the time of placement of the User’s order. Such additional charges shall be charged a fixed fee of $40 for each day overdue, and full rental price of the item for every weekend overdue.
5.3 When counting overdue days Black Beret shall not count either Sundays or Public Holidays when the post office is closed as being part of the overdue period.
5.4 If the User pays Black Beret an amount equal to 150% of the recommended retail value in late fees and the User still has the item(s) in their possession, the item(s) is The User’s to keep.
5.5 If the User has not returned the rental item(s) within 15 days after the return date, Black Beret will consider the rental item(s) as non-returned and will charge the User’s credit card 150% of the recommended retail value minus the rental and late fees that the User has already paid.
- Delivery of the Apparel
6.1 At Black Beret’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 and the User (or a third party nominated by the User) has signed the delivery receipt.
6.2 EXPRESS delivery fee is $45.00 for all rental orders.
Black Beret’s standard delivery method is Express Delivery Service, operated by Australia Post (see Australia Post's Terms and Conditions on the Australia Post Website). Express Delivery is a guaranteed next business day delivery within the Express Post network only. If the User’s location is outside of the Express Post network, it will take more than one business day and Black Beret has no control over this.
Same Day Delivery is also available for Users in the Perth metro area (within 60km of Perth CBD). In the event that the User requests Same Day Delivery, the User will incur an additional Twenty Five Dollars ($25.00). At its sole discretion to cover the cost for the courier, Black Beret may change these delivery fees. Same Day Delivery is available between 9am - 5pm, Monday through Friday.
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 Black Beret is required to redeliver the Apparel then Black Beret shall be entitled to charge a reasonable additional fee for the redelivery.
6.4 Any delivery time or date given by Black Beret to the User is an estimate only. The User must still accept delivery of the Apparel even if late and Black Beret will not be liable for any loss or damage incurred by the User as a result of the delivery being late.
7.1 Black Beret retains property in 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 Black Beret offers damage insurance to the value of one hundred dollars ($100) to cover minor damage or staining. For minor damage and/or staining if Black Beret assesses (at its sole discretion) that the cost of repairs will be over one hundred dollars ($100), then the User will be required to pay the difference (e.g. if the repair cost is one hundred and fifty dollars ($150), then Black Beret will require the User to pay fifty dollars ($50).
7.4 If the Apparel gets lost, stolen or damaged beyond repair, 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 at Full Recommended Retail Price for the item or items hired. In assessing the replaceable value, Black Beret will take into account, the demand of that dress in the market, the availability to purchase that dress in the market, the condition of the dress, and the rental fee that the User has already made.
- Title To Hired Apparel
8.1 The Apparel is and will at all times remain the absolute property of Black Beret.
8.2 If the User fails to return the Apparel to Black Beret then Black Beret or Black Beret’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 four (2) hours of receipt of the Apparel notify Black Beret (by phone or email) of any alleged defect, shortage in quantity, damage, failure to comply with what was ordered.
- Sizing Issues/Returns
10.1 If the User wishes to cancel an order, then they must contact Black Beret as soon as is possible, Deposits are non-refundable and if the item has already been dispatched the full price of the rental fee including the deposit in non-refundable.
10.2 All Apparel which is to be returned because of incorrect sizing or because the User has changed their mind must be sent back to Black Beret within twenty-four (24) hours of signing for the delivery (with tags still intact and the return slip completed), and Black Beret will send out the User a new size for an additional fee to cover the cost of the original item hired being unavailable to other customers and to cover the cost of shipping. If for some reason Black Beret doesn’t have an alternative size (since Black Beret has limited sizes in each stock item), it may be that the requested item is unavailable. In which event Black Beret will not issue the User a full refund of the dress rental cost, minus the shipping cost, we do not offer refunds for change of mind r picking the wrong size which is why we recommend to always refer to sizing guides or consulting with our stylist before renting any item, this is the users responsibility to take use of the options to ensure correct size is ordered.
- User's Responsibilities
11.1 The User shall:
(a) immediately notify Black Beret of any damage to the Apparel that occurs during the hire period;
(b) on termination of the hire, deliver the Apparel complete with all accessories, in good order as delivered, fair wear and tear accepted, to Black Beret;
(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.
12.1 GlamCorner 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 Black Beret shall repay to the User any sums paid in respect of the Price. Black Beret shall not be liable for any loss or damage howsoever arising from such cancellation.
- Default and Consequences of Default
13.1 If the User owes Black Beret any money the User shall indemnify Black Beret from and against all costs and disbursements incurred by Black Beret in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Black Beret’s collection agency costs, and bank dishonour fees).
13.2 Without prejudice to any other remedies Black Beret may have, if at any time the User is in breach of any obligation (including those relating to payment) under these terms of hire Black Beret 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. Black Beret will not be liable to the User for any loss or damage the User suffers because Black Beret has exercised its rights under this clause.
13.3 Without prejudice to Black Beret’s other remedies at law Black Beret 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 Black Beret may have and all amounts owing to Black Beret shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Black Beret becomes overdue, or in Black Beret’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.
- Security and Charge
14.1 In consideration of Black Beret 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).
14.2 The User indemnifies Black Beret from and against all Black Beret’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Black Beret’s rights under this clause.
14.3 The User irrevocably appoints Black Beret and each director of Black Beret as the User's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the User's behalf.
- 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 Black Beret 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 Black Beret’s sole discretion. We reserve the right to change, condense or delete any content on our website that Black Beret deems, in its sole discretion, to violate the content guidelines or any other provision of these Terms. Black Beret does not guarantee that you will have any recourse through Black Beret to edit or delete any content you have submitted. Ratings, reviews and written comments are generally moderated and published within two to four business days. However, Black Beret reserves the right to remove or to refuse to post any submission for any reason. You acknowledge that you, not Black Beret, 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 Black Beret, its agents, subsidiaries, affiliates, partners or third party service providers and their respective directors, officers and employees.
By submitting any content to Black Beret, 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, libelous, 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 Black Beret (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.
- Privacy Act 1988
16.1 The User agrees for Black Beret to obtain from a credit reporting agency a credit report containing personal credit information about the User in relation to credit provided by Black Beret.
16.2 The User agrees that Black Beret may exchange information about the User with those credit providers either named as trade referees by the User or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the User; and/or
(b) to notify other credit providers of a default by the User; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the User is in default with other credit providers; and/or
(d) to assess the creditworthiness of the User
The User understands that the information exchanged can include anything about the User's creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
16.3 The User consents to Black Beret being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The User agrees that personal credit information provided may be used and retained by Black Beret for the following purposes (and for other purposes as shall be agreed between the Client and Black Beret or required by law from time to time):
(a) the provision of Apparel on Hire; and/or
(b) analysing, verifying and/or checking the User's credit, payment and/or status in relation to the provision of Apparel on hire; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the User; and/or
(d) enabling the daily operation of User's account and/or the collection of amounts outstanding in the User's account in relation to the hire of the Apparel.
16.5 Black Beret may give information about the User to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the User;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the User.
16.6 The information given to the credit reporting agency may include:
(a) personal particulars (the User's name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the User's application for credit or commercial credit and the amount requested;
(c) advice that Black Beret is a current credit provider to the User;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the User's overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Black Beret, the User has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the User's credit obligations);
(g) advice that cheques drawn by the User for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the User by Black Beret has been paid or otherwise discharged.
- Intellectual Property
17.1 User acknowledges and agrees that Black Beret’s trademark shall remain the intellectual property of Black Beret at all times and further agrees that they shall not use the same for any purpose whatsoever without the express written approval of Black Beret.
- Personal Property Securities Act 2009 (“PPSA”)
18.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
18.2 Upon assenting to these terms and conditions in writing the User acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Apparel that has previously been supplied and that will be supplied in the future by Black Beret to the User.
18.3 The User undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Black Beret may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 19.3(a)(i) or 19.3(a)(ii);
(b) indemnify, and upon demand reimburse, Black Beret for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Apparel charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of GlamCorner;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Apparel in favour of a third party without the prior written consent of Black Beret.
18.4 Black Beret and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
18.5 The User waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
18.6 The User waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
18.7 Unless otherwise agreed to in writing by Black Beret, the User waives their right to receive a verification statement in accordance with section 157 of the PPSA.
18.8 The User must unconditionally ratify any actions taken by Black Beret under clauses 19.3 to 19.5.
18.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
19.1 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.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia and are subject to the jurisdiction of the courts of Perth Western Australia.
19.3 Black Beret 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 Black Beret of these terms and conditions (alternatively Black Beret’s liability shall be limited to damages which under no circumstances shall exceed the Price paid for the hire or purchase of the Apparel).
19.4 Black Beret 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 Black Beret notifies the User of such change. Except where Black Beret supplies further Apparel to the User and the User accepts such Apparel, the User shall be under no obligation to accept such changes.
19.5 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.
19.6 The failure by Black Beret to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Black Beret’s right to subsequently enforce that provision.
19.7 Unless otherwise specified, the User agrees that by sending or tagging photos of wearing Black Beret dress, Black Beret may use the images for promotional purposes including but not limited to print materials, social media platforms and newsletters.
Additional Clauses Applicable to the Sale of Apparel.
- Title To Apparel Being Sold To The User
20.1 Black Beret and the User agree that the ownership of Apparel shall not pass until:
(a) the User has paid Black Beret all amounts owing to Black Beret; and
(b) the User has met all of its other obligations to Black Beret.
20.2 Receipt by Black Beret 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.
20.3 It is further agreed that until ownership of the Apparel passes to the User in accordance with clause 20.1 that:
(a) the User is only a bailee of the Apparel and must return the Apparel to Black Beret on request.
(b) the User holds the benefit of the User's insurance of the Apparel on trust for Black Beret and must pay to Black Beret the proceeds of any insurance in the event of the Apparel being lost, damaged or destroyed.
(c) the User must not sell, dispose, or otherwise part with possession of the Apparel. If the User sells, disposes or parts with possession of the Apparel then the User must hold the proceeds of any such act on trust for Black Beret and must pay or deliver the proceeds to Black Beret on demand.
(d) the User irrevocably authorises Black Beret to enter any premises where Black Beret believes the Apparel are kept and recover possession of the Apparel.
(e) Black Beret may commence proceedings to recover the Price of the Apparel sold notwithstanding that ownership of the Apparel has not passed to the User.
- Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
21.1 The User must inspect the Apparel on delivery and must within two (2) hours of delivery notify Black Beret 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 Black Beret to inspect the Apparel.
21.2 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).
21.3 Black Beret acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
21.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Black Beret makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Apparel. Black Beret’s liability in respect of these warranties is limited to the fullest extent permitted by law.
21.5 If the User is a consumer within the meaning of the CCA, Black Beret’s liability is limited to the extent permitted by section 64A of Schedule 2.
21.6 If Black Beret is required to replace the Apparel under this clause or the CCA, but is unable to do so, Black Beret may refund any money the User has paid for the Apparel.
21.7 Subject to this clause 22, returns will only be accepted provided that:
(a) the User has complied with the provisions of clause 21.1; and
(b) Black Beret has agreed that the Apparel are defective; and
(c) the Apparel are returned within a reasonable time at the User's cost (if that cost is not significant); and
(d) the Apparel are returned in as close a condition to that in which they were delivered as is possible.
21.8 Notwithstanding clauses 22.1 to 22.7 but subject to the CCA, Black Beret 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.