Terms of service

DECEMBER NIGHTS

WEBSITE TERMS AND CONDITIONS

BETWEEN

DECEMBER NIGHTS PTY LTD ACN 679 846 014 of 102 Thurlgona Road, ENGADINE NSW 2233 ("December Nights")

AND

You

1. Acceptance and Agreement

You acknowledge and agree that:

(a) These are the terms and conditions governing the use of this website and the agreement that operates between us and You (hereinafter, "Terms and Conditions"). These Terms and Conditions set out the rights and obligations of all users (hereinafter, "You" / "Your") and those of December Nights (hereinafter, "us" / "our" / "we"/ “December Nights”) in relation to the goods/services offered by us through this website.

(b) Before You purchase any goods from this website, please carefully read these Terms and Conditions and Acknowledgement Statement.

(c) By using this website or placing an order through it, these Terms and Conditions are accepted by You and a contract between You and December Nights is formed upon placing Your order.

(d) These Terms and Conditions may be subject to amendment, so You should carefully read them prior to placing any order.

Warranties

You warrant the following:

(e) You will only use the website to make legitimate enquiries or orders and for purposes that are permitted by these Terms and Conditions, any applicable law or regulation and/or generally accepted practices or guidelines.

(f) You will not make any speculative, false or fraudulent orders. If we are reasonably of the opinion that such an order has been made, we shall be entitled to cancel the order and inform the relevant authorities.

(g) You will not engage in any activity that interferes with or disrupts this website or the servers and networks that host this website. You agree not to, or attempt to, circumvent, disable or otherwise interfere with security-related features of this website or features that prevent or restrict use or copying of any content or enforce limitations on the use of this website or the content.

(h) You also undertake to provide correct and accurate e-mail, postal and/or other contact details to us and acknowledge that we may use these details to contact You in the event that this should prove necessary.

(i) If You do not give us all of the information that we need, we may not be able to complete your order. 

(j) By placing an order through the website, You warrant that You are at least 18 years old and are legally capable of entering into binding contracts.

2. Website

You acknowledge and agree that:

December Nights

(a) December Nights carries on business from this website.

(b) The goods described in this website are available from December Nights, and will be available for You to make an offer to December Nights via the website to purchase at the specified price on or before the end date specified, or until otherwise removed from the website or as specified, and where December Nights accepts Your offer, December Nights will sell the goods or services to You in accordance with these Term and Conditions.

Website Content

(c) December Nights may, at any time, add or remove content from this website without notice.

(d) Any articles, information or content published on this website must be read subject to these Terms and Conditions.

(e) Although December Nights uses its best endeavours to confirm the accuracy of any information published on this website, You agree that December Nights cannot be held responsible for inaccuracies or errors caused by incorrect information supplied to December Nights or by manufacturers or suppliers changing product specifications without notice to December Nights. You agree to make Your own enquiries to verify information provided and to assess the suitability of products before You purchase.

(f) The information, materials and services in this website are provided for general information purposes only. It is current at the time of first publication. It is not legal or other professional advice or intended to be comprehensive. You are responsible for determining the validity, quality and relevance of any information, material or service assessed and to take appropriate independent advice before acting or relying on any of it to ensure that it meets Your particular requirements. You should report any error or omission in any information, material or service.

(g) This website may feature or display third party advertising or content. By featuring or displaying such advertising or content, December Nights does not in any way represent that December Nights recommends or endorses the relevant advertiser, its products or services.

(h) December Nights nor any third party will be liable for any errors in content, or for any actions You take in reliance on them to the fullest extent permitted by law. You nor any other person may hold December Nights liable for any delays, inaccuracies, errors or omissions in respect of such content, the transmission or delivery of such content or any loss or damage arising from any of them.

Product Use and Maintenance

(i) Any information provided regarding the use or maintenance of the product is provided without the knowledge of each customer’s particular needs and in any event must not be relied upon.

(j) December Nights is not liable for the information provided on this website and takes no responsibility and makes no representation regarding the accuracy of the information provided on this website.

(k) You acknowledge that You are responsible for the care and maintenance of any products purchased from this website.

(l) You agree that all products must only be used for their intended purpose and any manufacturer’s instructions and guidelines must be adhered to.

(m) You agree that December Nights is not liable in any way for any loss, damage, claim, injury or death arising from or in connection with the use or misuse of any of its products.

Use of Website

(n) December Nights may stop (temporarily or permanently) providing access to this website to You, or to guests or members generally, at its discretion and without prior notice to You.

(o) December Nights may in its sole discretion restrict Your access to this website. If December Nights does this, You may be prevented from accessing all or parts of the website, Your account details or other content contained in Your account. December Nights will not be liable to You or any third party for doing so.

(p) As electronic websites are subject to interruption or breakdown, access to this website is offered on an "as is" and "as available" basis only.

(q) December Nights may impose limits or restrictions on the use You may make of this website. Further, for security, technical, maintenance, legal or regulatory reasons, or due to any breach of these terms of use, December Nights may withdraw this website, or change or remove website functionality at any time without notice to You.

3. Payments

You acknowledge and agree that:

(a) While we take care to ensure that all prices quoted on our website are accurate, errors may occur. If we discover an error in the price of any product(s) You have ordered, we will inform You as soon as possible and give You the option of reconfirming the order at the correct price or cancelling it. If we are unable to contact You, the order will be treated as cancelled and if You have already paid for the product(s) You will receive a full refund.

(b) We are under no obligation to sell the product(s) to You at the incorrect (lower) price (even after we have sent You an Order Confirmation) if the pricing error is an obvious typographical or arithmetical inaccuracy and could have reasonably been recognised by You as such.

(c) The prices displayed on our website include GST but exclude delivery costs, which will be added to the total amount due.

(d) We reserve the right to decline orders for bulk or high value purchases and to change price and availability information without notice. Other than as set in Clauses 3(a)-(b), changes will not affect orders in respect of which we have already sent an Order Confirmation.

(e) Once You have finished shopping all the items You wish to purchase are added to your basket. Your next step will be to go through the checkout process and make payment.

(f) Payment may be made by Visa, MasterCard or otherwise through third-party payment platforms including, but not limited to, Shopify Payments and PayPal. Authority for payment must be provided at the time the order is placed. The authorised amount will be charged upon confirmation of your order.

(g) Cards are subject to validation checks and authorization by your Card issuer. If we do not receive the required authorization, we will not be liable for any delay or non-delivery.

4. Shipping

You acknowledge and agree that:

(a) To the fullest extent permitted by law, December Nights expressly excludes all liability for any loss, damage, delay, non-delivery, misdelivery, or other liability whatsoever arising from or in connection with the shipping, delivery, or transportation of products purchased through this website, including but not limited to any loss or damage occurring during transit, whether such shipping is arranged by December Nights or a third-party carrier.

(b) Where shipping or delivery services are provided by a third-party carrier, You acknowledge and agree that such services are provided subject to the terms and conditions of the relevant carrier, and December Nights is not responsible for the acts or omissions of any third-party carrier.

(c) Risk in the products passes to You upon dispatch from December Nights’ premises. Title in the products passes to You upon receipt of full payment by December Nights.

(d) It is Your responsibility to arrange any insurance coverage for products during transit, should You require it. December Nights does not provide insurance for products in transit unless expressly agreed in writing.

(e) Nothing in this clause excludes, restricts or modifies any guarantee, warranty, term or condition, right or remedy implied or imposed by any applicable law (including the Australian Consumer Law) which cannot lawfully be excluded, restricted or modified.

5. Intellectual Property

You acknowledge and agree that:

(a) all designs, logos, images, illustrations, distinctive brand features, and other artistic work (collectively referred to as "Intellectual Property") used in the merchandise are owned by December Nights and must not be used in any manner without the prior written consent of the owner. These Intellectua Property are protected by Australian and international laws and nothing in these Terms and Conditions gives You a right to use any of them.

(b) December Nights operates under the Business Name "December Nights Pty Ltd" and ABN 679 846 014. All rights in the Business Name, ABN, and any materials and content displayed on this website are reserved. 

(c)You must not use, reproduce, or otherwise deal with the Business Name, the ABN, or any materials or content from this website, except to the extent necessary to place an order or retain a copy of Your order or contract details, or as expressly authorised in writing by December Nights.

(d)Nothing contained on this website is to be interpreted as a recommendation to use any information on this website in a manner which infringes the Intellectual Property rights of any person. December Nights makes no representations or warranties that Your use of the information on this website will not infringe such Intellectual Property rights.

(e) You may view this website and its contents for personal and non-commercial use only and subject to the Copyright Act 1968 (Cth) and similar legislation, You may not in any form or by any means reproduce, modify, distribute, store, transmit, publish or display within another website or create derivative works from any part of this website or commercialise any information obtained from any part of this website without the prior written consent of December Nights or, in the case of third party material, from the owner of the copyright in that material.

(f) You may not modify or copy the layout or appearance of this website nor any computer software or code contained in this website, nor may You decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to this website.

6. Links to External Websites

You acknowledge and agree that:

(a) This website may contain links to other websites, content or resources, which are owned or operated by third parties. These linked websites are not under December Nights’ control and December Nights is not responsible for the operation, availability or contents of any linked website or any link contained in a linked website. December Nights provides these links to You for convenience only and the inclusion of any link does not imply December Nights’ endorsement of the linked website. You access linked websites at Your own risk. Subject to any non-excludable rights, December Nights disclaims all warranties, express and implied, as to the accuracy, value, legality or otherwise of any materials or information contained on linked websites. You should carefully review the terms of use and privacy policies of all other party’s websites that You visit.

(b) December Nights reserves the right to prevent third parties from linking to this website.

7. Non-disparagement

You acknowledge and agree that You must not directly, indirectly or expressly: 

(a) Do anything which materially damages, or is likely to materially damage, the reputation of December Nights.

(b) Make or publish any negative, adverse, denigrating or otherwise disparaging representation, statement, remark or comment about December Nights, that may reasonably be expected to bring, or intended to have the effect of bringing, December Nights into disrepute.

(c) Cause, permit, induce or encourage any other person to disparage or otherwise make any statement or publication or remark or comment about December Nights that may or may be likely to injure the reputation of December Nights.

(d) This clause 7 survives termination of these Terms and Conditions.

8. Privacy

You acknowledge and agree that:

(a) You acknowledge and agree that December Nights will handle (including collection, storage, use and disclosure) Your personal information and related data in accordance with the National Privacy Principles in the Privacy Act 1988 (Cth).

9. Liability and Disclaimers

You acknowledge and agree that:

(a) To the fullest extent permitted under law, December Nights’ total aggregate liability for all claims and loss incurred by You or any other person arising pursuant to, or in connection with, these Terms and Conditions is at all times limited to the purchase price of the product under these Terms and Conditions.

(b) Nothing in these Terms shall exclude or limit in any way our liability:

(i) For death or personal injury caused by our negligence;

(ii) For fraud or fraudulent misrepresentation;

(iii) For any matter for which it would be illegal or unlawful for us to exclude or limit, or attempt to exclude or limit, our liability.

(c) Subject to the foregoing paragraph and to the fullest extent permitted by law, and unless otherwise stated in these Terms and Conditions, we accept no liability for indirect losses which happen as a side effect of the main loss or damage however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable, including (without limit) for any:

(i) loss of income or revenue;

(ii) loss of business;

(iii) loss of profits or contracts;

(iv) loss of anticipated savings;

(v) loss of data; and

(vi) waste of management or office time.

(d) Due to the open nature of this website and the potential for errors in the storage and transmission of digital information, we do not warrant the accuracy and security of information transmitted to or obtained from this website unless otherwise expressly set out on this website.

(e) To the fullest extent permissible pursuant to law, but without excluding anything that may not lawfully be excluded in the case of consumers, we disclaim all other warranties of any kind.

(f) Nothing in this Clause will affect your statutory rights as a consumer under Schedule 2 to the Competition and Consumer Act 2010 (Cth) and other similar legislations.

10. Risk and indemnities

You acknowledge and agree that:

(a) To the fullest extent permitted by law, and notwithstanding anything else in these Terms and Conditions, You must indemnify and keep December Nights indemnified against any loss sustained or incurred, or any claim brought by any person as a result, whether directly or indirectly, of:

(i) Any breach, default or non-performance of a term of these Terms and Conditions by You;

(ii) Any act or omission (including negligent acts or omissions) by You.

(b) Clause 10(a) of these Terms and Conditions applies irrespective of whether December Nights breaches any term of these Terms and Conditions.

(c) To the extent that the indemnity in clause 10(a) of these Terms and Conditions is by law void or unenforceable, the indemnity will apply, however, will be reduced to the extent the loss arises from, or is contributed to by, the gross negligence or a wilful or deliberate act by December Nights.

(d) Each indemnity in this clause 10 is a primary obligation and December Nights is not obliged to proceed against or enforce any other right against any person or property or demand payment from any other person before making a demand for payment by You under these Terms and Conditions.

(e) Your obligations under this clause 10 are absolute and unconditional. They are not subject to any set-off, counter claims or conditions. In particular, Your obligations will not be affected by anything which might abrogate, prejudice or limit them or the effectiveness of these Terms and Conditions.

(f) If any transaction or payment under these Terms and Conditions is void, voidable or otherwise unenforceable or refundable:

(i) December Nights is entitled against You to all rights under these Terms and Conditions and any collateral security that it would have had if the transaction or payment had not occurred or been made, as the case may be; and

(ii) You must do all things and sign such documents necessary to restore toDecember Nights its rights under these Terms and Conditions or any collateral security immediately before that transaction or payment.

(g) This clause 10 survives termination of these Terms and Conditions.

11. General

You acknowledge and agree that:

Entire agreement

(a) These Terms and Conditions constitutes the entire agreement between the parties as to their subject matter and supersedes all prior understandings or agreement between the parties and any prior condition, warranty, covenant, indemnity, or representation given, made or imposed by a party in connection with the subject matter of these Terms and Conditions.

Counterparts

(b) These Terms and Conditions may be executed in any number of counterparts each of which will be an original, but such counterparts together will constitute one (1) and the same instrument.

Variation

(c) These Terms and Conditions may be amended at any time without notice and Your access to this website may be terminated at any time without notice. Your continued use of this website following such amendment of these Terms and Conditions will represent an agreement by You to be bound by the Terms and Conditions as amended.

Severance

(d) If it is held by a Court of competent jurisdiction that:

(i) any part of these Terms and Conditions is void, voidable, illegal or unenforceable; or

(ii) these Terms and Conditions would be void, voidable, illegal or unenforceable unless any part of these Terms and Conditions was severed, 

then that part will be severable from and will not affect, or derogate from, the enforceability or validity of the Parties’ rights or obligations or the continual operation of the rest of these Terms and Conditions.

Survival

(e) Where Your access to this website is terminated, all disclaimers and limitations

of liability set out in these Terms and Conditions will survive.

Definition of “Website”

(f) Reference to “website” includes the whole or any part of the web pages located on this webpage (including but not limited to any elements of design, underlying code, text, sounds, graphics, animated elements or any other content).