1. ABOUT THE WEBSITEThank you for using our website located at www.artelier.com.au (“Site”). This Site is operated byD.J Gilbert & S.D Gilbert T/A ArtelierOnline (ABN 317 038 361 37) (“Artelier”).
1.2 Artelier is an online art marketplace that connects creators (“Artists”) of original works (“Works”)with customers (“Customers”) through the use of the Site (our “Services”).
1.3 We welcome Artists and Customers to register with the Site to access our Services to purchaseand sell Works.
1.5 Please read our Terms carefully before using the Site because these Terms create a bindingcontract between Artelier, Artists or Customers.
1.6 We may update these Terms from time to time. Any changes to these Terms will be effective fromthe date published on our Site.
1.7 By using the Site, you agree that you are bound by these Terms. If you do not agree to theseTerms you must not use the Site or any part of our Services.
2. DEFINITIONS“Claim” includes any demand, claim, action, proceeding, Loss, damages, costs, expenses,requisition, objection, alleged right of indemnity incurred or suffered by, or brought or made orrecovered against a matter, no matter how arising (whether or not presently ascertained) in theimmediate future or contingent (whether criminal or civil, in contract, tort or otherwise).
“Content” means all material (including without limitation text, graphics, images, audio material,video material, audio-visual material, scripts, software and files) that you submit to us or our Site forstorage or publication on, processing by, or transmission via, our Site.
“GST” means goods and services tax as defined in A New Tax System (Goods and Services Tax)Act 1999 (Cth).
“Intellectual Property Rights” means any intellectual property including all copyright, patents,trademarks, design rights, trade secrets, circuit layouts, rights in database and data rights, domainnames, knowhow, trade secrets, procedures, technical designs, software and code and other rightsof a similar nature, whether registrable or not and whether registered or not, and any applicationsfor registration or rights to make such an application.
“Law” includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance,by-law, judgment, rule of common law or equity and is a reference to that law as amended,consolidated or replaced.
“Liability” means any debt, obligation, cost (including legal costs, deductibles or increasedpremiums), expense, Loss, damage, compensation, charge or liability of any kind, including thosearising from third party Claims, those that are prospective or contingent and those the amount ofwhich is not ascertained or ascertainable, and whether arising under breach of contract, in tore(including negligence), restitution, pursuant to statute or otherwise at law or in equity.
“Loss” means any cost, expense, loss, damage or Liability whether direct, indirect orconsequential (including pure economic loss), present or future, ascertained or unascertained,actual, prospective or contingent, or any fine or penalty and includes legal costs.
“Member” means a user of the Site or Services, including Customers and Artists.
“Moral Rights” means a right of attribution of authorship of a Work, a right not to have authorshipfalsely attributed and a right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
“Privacy Laws” means the Privacy Act 1988 (Cth), including the Privacy Amendment (NotifiableData Breaches) Act 2017 (Cth).
“Works” means any literary, dramatic, musical or artistic work pursuant to Part III of the CopyrightAct 1968 (Cth) and any Part IV subject matter such as cine-films, sound recordings, publications,television broadcasts including any rights in performances.
3. REGISTRATION AND ACCEPTANCE3.1 By registering for an account or otherwise using the Services, you will be required to accept ourTerms by clicking the “accept” button in the user interface as a condition of joining as an Artist,Customer or otherwise using the Services.
3.2 As part of the registration process for an account, you must provide us with the informationrequested which may include the following details:(a) name;(b) address;(c) phone number;(d) a valid email address;(e) user name and password (your “Login Details”);(f) other information as applicable to set up and administer your account to access theServices.(your “Registration Data”).
3.3 By visiting, registering for, or using the Site or Services, you agree that Artelier may send directcommunications to the email addresses and devices that you access the Services and use theSite.
3.4 You warrant that your Registration Data is accurate, correct and up to date. You must not submitany Registration Data that is false or inaccurate. If we detect any suspicious, inaccurate orincomplete information, we reserve the right to cancel your account. We may undertake additionalenquiries to confirm the identity and qualifications of an Artist or Customer, but we are not obligedto validate the identity, qualifications, or any Registration Data of an Artist or Customer.
3.5 If your Member Data changes, you must promptly update your Member Account to reflect thosechanges.
3.6 After registration, you may login into your account with your Login Details to gain access to ourServices. You are solely responsible for the accuracy of the information that you submit in relationto your account. You agree that we do not control, verify, or endorse the Registration Data or anyother information provided by Artist or Customer.
4. MEMBER OBLIGATIONS4.1 As a user of the Site and Services, you agree that:(a) you will use the Services only for purposes permitted by the Terms and you will abideby any applicable Law, regulation or generally accepted practices or guidelines regulatingthe Services in the relevant jurisdictions;(b) you have the sole responsibility for protecting the confidentiality of your Login Details andother confidential Registration Data, such as your secret questions required for resettingyour password. The use of your password by any other person may result in the immediatecancellation of your account;(c) any use of your registration information by any other person, or third parties, is strictlyprohibited. You agree to immediately notify Artelier of any unauthorised use of yourLogin Details, account, or any breach of security of which you have become aware;(d) you must not use the Services or Site in connection with any other commercialenterprise (apart from the Services) without the prior written approval of Artelier;(e) you must not use the Services or Site for any illegal or unauthorised purpose whichincludes collecting email addresses of other Customers or Artists by electronic or othermeans for sending unsolicited email or unauthorised framing or linking to the Site;(f) commercial advertisements, affiliate links, and other forms of solicitation may beremoved from the Site without notice and may result in immediate termination of yourMember Account or access to the Site;(g) any automated use of the Site or Services is strictly prohibited;(h) you may not have more than one (1) active account. Artelier reserves the right to mergemultiple accounts or to suspend or terminate your account and your access to the Site if youcreate more than one (1) account, or if any information provided during the registrationprocess or thereafter proves to be inaccurate, fraudulent, not current, out-of-date orincomplete;(i) you must not upload viruses or other malicious code on the Site;(j) you must not expressly or impliedly impersonate another person or use another person’saccount or Login Details.4.2 We reserve the right in our sole discretion to deny anyone access to an account.
4.3 If the use of your account breaches these Terms or shows signs of fraud, abuse or suspiciousactivity, Artelier may cancel any listings associated with your account. In addition, we may:(a) suspend your account; or(b) cancel your account.at any time in our sole discretion without notice.
5. TERMS FOR ARTISTS LISTING WORKS FOR SALE5.1 As an Artist, you may submit listings for original Works that you have created and which you wishto sell to Customers through the Services.5.2 The Artist warrants that they have created and possess unencumbered title to the Works, and thatthe descriptions provided to Artelier and listed on the Site are true and accurate.5.3 The Artist warrants that the Works, or Artelier’s use thereof, do not violate any third partyintellectual property rights, or rights of publicity or Privacy Laws, or result in the violation of anyapplicable law or regulation.5.4 If you submit Works for sale on the Site through the use of the Services, you hereby grant Artelier aworldwide, transferable, nonexclusive, royalty-free, right and license, with a right to sublicense, to:(i) use, modify, reproduce, distribute, publicly perform and publicly display the Works toCustomers and other third parties via the Site and through other online and offline channels;and(ii) access, view, use, crop, resize, copy, distribute, license, publicly display, publicly perform,transmit and broadcast copies of the Works in any form, medium or technology now known orlater developed, for the purpose of promoting Artelier and the Services.5.5 The Artist reserves all rights to the reproduction of the Works except unless described in writing tothe contrary. The Artist agrees that it will not withhold permission for the reproduction of the Worksfor promotional and marketing purposes by Artelier.5.6 If you want to remove your Work(s) from the Services because they are no longer available or forany other reason, you must go to your account and follow the instructions to remove your item. Youmay also edit the description of your Works at any time through the same page.5.7 You acknowledge that your Works may not be immediately available on the Site for several hours(or up to 24 hours or more in some circumstances).
6. USE OF THE SITE AND SERVICES6.1 Artists and Customers warrant as a condition of their use of and access to our Site andServices that:(a) they are authorised to enter a legally binding contract if they are using the Services onbehalf of another person or entity; and(b) they are not a person prohibited from receiving the Services under any applicable Laws;(c) they are of legal age to use the Services and create a binding contract.6.2 Artists and Customers agree that Artelier:(a) will not be liable to any person in relation to the supply of any Services or Works advertisedor made available on our Site including for any Loss or Liability;(b) is not responsible for the enforcement of any contractual obligations arising out of a contractfor the sale or supply of any services between Artist and Customer and Artelier will have noobligation to mediate any disputes between the parties to any such contract;(c) is not responsible for the accuracy of information provided by Artists or Customers on ourSite;(d) cannot be held responsible for the actions or representations of our Artists or Customers,either on or off the Site; and(e) cannot guarantee that any information provided by an Artist or Customer is true, accurate,complete, current and not misleading or deceptive.
6.3 Customers agree to make their own enquiries to verify all information provided by an Artist and toassess the quality, condition, description or other attributes of any Works offered for sale by anArtist.6.4 Artelier reserves the right to cancel any order for any Works placed via the Services if Artelierdetermines, in its reasonable discretion, that the Work(s) is mispriced, out of stock, discontinued, orotherwise unavailable at the price advertised. If Artelier cancels an order, we will send you an emailconfirmation of such cancellation and you will not be charged for your order.
7. COMMISSION FOR USING THE SERVICES7.1 As part of any transaction made on the Site, the Artists agrees that Artelier will charge a fee(“Commission”) (15% + GST) from the total price paid for any Works purchased on the Site. AnyChange to the Commission will be notified to the Artist prior to application of any sale and bycontinuing to use the Site and Services the Artist agrees to the revised Commission.7.2 Artists agree that Artelier will automatically deduct the Commission from the sale price of the Worksand payment to the Artist will reflect the price paid for the Works by the Customer less Artelier’sCommission.
9. INTELLECTUAL PROPERTY AND YOUR CONTENT9.1 Member warrants that in relation to any Content posted on this Site that:(a) the Member owns the Intellectual Property in the Content or has all the applicable rights touse the Intellectual Property in the Content;(b) use of the Intellectual Property in the Content shall not result in the infringements ofproprietary rights of third parties;(c) the Content is not in contravention of legislation, any advertising or marketing laws or anyother third-party rights.9.2 Member grants to Artelier:(a) a worldwide, irrevocable, non-exclusive, royalty-free licence to use, reproduce, store, adapt,publish, translate and distribute the Content in any existing or future media on and in relationto this Site and any successor Site;(b) the right to sub-license the rights licensed under this section; and(c) the right to bring an action for infringement of the rights licensed under this section.9.3 Member waives all Moral Rights in the Content to the maximum extent permitted by any applicableLaw or otherwise grants to Artelier a genuine consent to deal with any of the Moral Rights in theContent.9.4 Artelier reserves the right to but is not obliged to reject or amend any Content without notice and forany reason if Artelier in its sole discretion considers any Content to be objectionable or in violationof these Terms including where Artelier believes the Member is infringing the rights of copyrightholders.9.5 If you breach any provision of these Terms, or if we reasonably suspect that you have breachedthese Terms in any way, we may delete or edit any part of your Content.9.6 The obligations accepted by Members under this section survive termination or expiry of theseTerms.
10. WARRANTIES AND LIABILITY10.1 To the maximum extent permitted by Law, we exclude all representations and warranties relating tothe subject matter of these Terms, our Site and the use of our Services. Nothing in the Terms limitsor excludes any guarantees, warranties, representations or conditions implied or imposed by law,including the Australian Consumer Law (or any liability under them) which by law may not belimited or excluded.10.2 We do not warrant or represent:(a) the completeness or accuracy of the information published on our Site;(b) that the material on the Site is up to date; or(c) that the Site or any Services on the Site will remain available.10.3 The use of the Site and Services is at your sole and exclusive risk. Everything on the Site andmade part of the Services is provided to you without warranty or condition of any kind. None of theaffiliates, directors, officers, employees, agents, contributors and licensors of Artelier make anyexpress or implied representation or warranty about the Services or any services advertised on theSite.10.4 To the extent permissible at law, you agree that we, our affiliates or subsidiaries, or any of ourdirectors, officers, employees, partners, agents, contributors, and licensors shall not be liable toyou or any third party for any:(a) loss of profit or opportunity;(b) damage to goodwill or business reputation and any other intangible loss;(c) special, direct, indirect, incidental, punitive, exemplary or consequential damageswhatsoever or any other losses, costs or expenses of any kind, including loss of data, legalfees, expert fees, cost of procuring substitute services, or any other disbursementswhether arising, directly or indirectly, from your reliance on, access to, use of, or inability to accessor use, the Site and Services provided therein, or through downloading of any materials, data, text,images, video or audio from the Site, whether in common law, under contract, tort (includingnegligence), in equity, pursuant to statute or otherwise.10.5 You agree that Artelier operates to connect Artists and Customers to facilitate the provision of theServices. Artelier is not a supplier of any products or services that Artists offer on this Site nor isArtelier a party to any contracts entered into between Artists and Customers.10.6 Artelier makes no warranty as to the truth, suitability, quality or accuracy of any Content orinformation provided by Artists or Customers, including, but not limited to, the ability of the Artist tocomplete a supply of services offered to a Customer, expertise or experience to qualify for joiningas an Artist or otherwise.10.7 Artelier does not make any representation or warranty with respect to or endorse any Member as totheir identity, expertise or background. Any review, feedback or rating of a Member is not aguarantee of the outcome of the products or services offered by that Member and Artelier will haveno responsibility or liability of any kind for the performance of the Member. Any use of or relianceon the services of a Member is solely at Customer’s risk.10.8 We reserve the right to discontinue or alter any of the Services on the Site, and to stop publishingour Site or any Content contained therein, at any time in our sole discretion without notice. Save tothe extent expressly provided otherwise in these Terms, you will not be entitled to anycompensation or other payment upon the discontinuance or alteration of any Services, or if we stoppublishing the Site or Content.10.9 Artelier’s total liability arising out of or in connection with the Services or these Terms, howeverarising, including under contract, tort (including negligence), in equity, under statute or otherwise,will not exceed at our option the resupply of Services to you. Our aggregate liability to you inrespect of any contract to provide Services to you under these terms and conditions shall notexceed the greater of the total amount paid and payable to us for providing our Services.10.10 These Terms are to be read subject to any legislation that prohibits or restricts the exclusion,restriction or modification of any implied warranties, conditions, guarantees or obligations. If suchlegislation applies, to the extent possible Artelier limits our liability as follows, at our option:(a) in the case of products including any digital products (a) the replacement of the products orthe supply of equivalent products; (b) the repair of the products; (c) the payment of the costof replacing the products or of acquiring equivalent products; or (d) the payment of havingthe products repaired; or(b) in the case of services, the supply of the services again or the payment of the cost of havingthe services supplied again.10.11 This clause survives the termination or expiry of these Terms for whatever reason.
11. INDEMNITY AND RELEASE OF LIABILITY11.1 You agree to indemnify Artelier, its affiliates, employees, agents, contributors, third party contentproviders and licensors from and against all actions, suits, Claims, demands, Liabilities, costs,expenses, Loss and damage (including legal fees on a full indemnity basis) incurred, suffered orarising out of or in connection with:(a) your Content, including any Works listed for sale;(b) any direct or indirect consequences of you accessing, using or transacting on the Site andServices or attempts to do so; or(c) any breach of the Terms.11.2 Artelier hereby expressly disclaims, and you hereby expressly release Artelier from, all Liability,Claims, suits, injuries, Loss, harm or damages arising from or related to our Services or yourinteractions or dealings with Artists or Customers.11.3 This clause survives the termination or expiry of these Terms for whatever reason.
12. BREACH12.1 Without prejudice to our other rights under these terms and conditions, if you breach these Termsin any way, or if we reasonably suspect that you have breached these Terms in any way, we may:(a) suspend your access to our Site and Services (including your Member Account);(b) permanently prohibit you from accessing our Site and Services;(c) commence legal action against you, whether for breach of contract or otherwise;(d) delete your Member Account on our Site.12.2 Where we suspend or prohibit or block your access to our Site and Services, you must not take anyaction to circumvent such suspension or prohibition or blocking.
13. TERMINATION13.1 The Terms will continue to apply until terminated by either you or by Artelier as set out below.13.2 Termination of these Terms does not affect any contract that has been formed between Artists andCustomers. A Member must comply with the terms of any contract entered into including providingany products or services.13.3 If you wish to terminate the Terms, you may do so by:(a) providing Artelier with 30 days' calendar notice of your intention to terminate; and(b) closing your Member Account for all the Services which you use, where Artelier has madethis option available to you.13.4 Your notice should be sent, in writing, to Artelier via the 'Contact Us' link on our homepage.13.5 Artelier may at any time, terminate the Terms with you if:(a) you have breached any provision of the Terms;(b) Artelier is required to do so by law;
(c) the provision of the Services to you by Artelier is, in the opinion of Artelier, no longercommercially viable.13.6 Artelier reserves the right to discontinue or cancel your Member Account at any time and maysuspend or deny, in its sole discretion, your access to the Site or the Services without notice if youbreach any provision of the Terms or any applicable law or if your conduct impacts Artelier' name,goodwill or reputation or violates the rights of another party.
14. DISPUTES14.1 Artists and Customers are solely responsible for interactions and disputes with each other.14.2 Artelier reserves the right, but has no obligation, to monitor disputes between Artists andCustomers although may involve itself in such a dispute for the purpose of improving the userexperience of the Site and Services.14.3 If a dispute arises out of or relates to the Terms as between Artelier and a Member or Customer,either party may not commence any Tribunal or Court proceedings in relation to the dispute, unlessthe following clauses have been complied with (except where urgent interlocutory relief is sought):(a) Compulsory process. A Party shall not start arbitration or court proceedings (exceptproceedings seeking interlocutory relief) in respect of a Dispute unless it has complied withthis clause.(b) Notification. A Party claiming that a Dispute has arisen shall notify each other party to theDispute giving details of the Dispute.(c) Initial period – efforts to resolve Dispute. During the 30-day period after a notice is given(or longer period agreed in writing by the Parties to the Dispute) (Initial Period) each Party tothe Dispute (Disputant) covenants with the other to cooperate and take all reasonable stepsnecessary to attempt to resolve the Dispute.(d) Mediation. If the Disputants are unable to resolve the Dispute within the Initial Period, eachDisputant agrees that the Dispute shall be referred for mediation, at the request of anyDisputant, to:(i) a mediator agreed on by the Disputants; or(ii) if the Disputants are unable to agree on a mediator within seven days after the end of theInitial Period, then the Parties must submit the dispute for mediation through the Chair ofResolution Institute (ACN 008 651 232) or the Chair’s designated representative and theResolution Institute Mediation Rules shall apply to the mediation.
(e) Role of mediator. The role of any mediator is to assist in negotiating a resolution of theDispute. A mediator may not make a decision that is binding on a Disputant unless thatDisputant has so agreed in writing.(f) Information. Any information or documentation disclosed by a Disputant under this clauseshall be kept confidential and may not be used except to attempt to resolve the Dispute.(g) Costs of mediation. Each Disputant shall pay its own costs of complying with this clause.The Disputants shall pay equally the costs of any mediator engaged.(h) Location, timing and attendance. The mediation will be held in Sydney, Australia, within 30days after expiry of the Initial Period. Each Disputant agrees to attend the mediation by arepresentative having full authority to resolve the dispute. At the mediation each Disputantmay be represented by one or more legal representative.(i) Failure to resolve. If the dispute fails to resolve at mediation or if one of the Disputants failsor refuses to attend the mediation, the mediator will be requested to inform each Disputant inwriting that the mediation has been terminated without resolution (Mediation TerminationNotice). Upon receipt of Mediation Termination Notice, the dispute resolution process will beterminated. A party to a dispute will only be entitled to pursue other remedies available to itat law or otherwise, after receipt of Mediation Termination Notice.(j) Confidentiality. All communications concerning negotiations made by the Disputants arisingout of and in connection with this dispute resolution clause are confidential and to the extentpossible, must be treated as “without prejudice” negotiations for the purpose of applicablelaw of evidence.
15. INTELLECTUAL PROPERTY AND USE OF THE SITE15.1 Artelier retains all rights, title and interest in and to the Site and all related Services. Nothing you doon or in relation to the Site will transfer any:(a) business name, trading name, domain name, trade mark, industrial design, patent,registered design or copyright, or(b) a right to use or exploit a business name, trading name, domain name, trade mark orindustrial design, or(c) a thing, system or process that is the subject of a patent, registered design or copyright (oran adaptation or modification of such a thing, system or process); or(d) any proprietary rights to our database, know-how or technology.15.2 You may not, without the prior written permission of Artelier and the permission of any otherrelevant rights owners broadcast, republish, up-load to a third party, transmit, post, distribute, showor play in public, adapt or change in any way the Content on the Site for any purpose, unlessotherwise expressly provided by these Terms.15.3 The Site and its Content may not be copied, reproduced, publicly displayed, translated ordistributed in any way (including mirroring) to any other computer, server, website or other mediumfor publication or distribution, without our express prior written consent.
16. THIRD PARTY SITESThe Site may contain links and other pointers to other websites or applications operated by thirdparties. We do not control these linked websites and are not responsible for the contents of anylinked website. The links are provided solely for your convenience and do not indicate, expressly orimpliedly, any endorsement by us of the website or the products or services provided at thosewebsites. Your access to any such advertisement or link is entirely at your own risk. You shouldcontact the relevant third-party directly to enquire on that information prior to entering into atransaction in relation to the third-party products and services.
17. NO WAIVERAny failure on our part to enforce any right or provision of these Terms will not constitute a waiverof future enforcement of that right or provision.
18. ASSIGNMENT18.1 You hereby agree that we may assign, transfer, sub-contract or otherwise deal with our rightsand/or obligations under these Terms.18.2 You may not without our prior written consent assign, transfer, sub-contract or otherwise deal withany of your rights and/or obligations under these Terms.
19. SEVERABILITY19.1 If a provision of these Terms is determined by any court or other competent authority to be unlawfulor unenforceable, the other provisions will continue in effect.19.2 If any unlawful or unenforceable provision of these Terms would be lawful or enforceable if part of itwere deleted, that part will be deemed to be deleted, and the rest of the provision will continue ineffect.
20. THIRD PARTY RIGHTS20.1 A contract under these terms and conditions is for our benefit and your benefit and is not intendedto benefit or be enforceable by any third party.20.2 The exercise of a party's rights under a contract under these Terms is not subject to the consent ofany third party.
21. ENTIRE AGREEMENTThese Terms shall constitute the entire agreement between you and us in relation to your use ofour Site.
22. LAW AND JURISDICTION22.1 The Terms and information on this Site are governed by and construed in accordance with the lawsof the State of New South Wales. You submit to the non-exclusive jurisdiction of the Courts of NewSouth Wales and Courts of Appeal from them for determining any dispute concerning these Terms.22.2 If any provision of these Terms is found to be invalid or unenforceable by a Court of Law, suchinvalidity or unenforceability will not affect the remainder of the Terms which will continue in fullforce and effect.
23. FORCE MAJEURENotwithstanding any other provision of these Terms, Artelier need not act if it is impossible to actdue to force majeure, meaning any cause beyond our control (including war, riot, natural disaster orlaw taking effect after the date of these terms). You agree that Artelier will have no responsibility orliability for any loss or expense suffered or incurred by you because of not acting for so long as theforce majeure continues.
24. FEEDBACK AND AUTHORISATIONSYour feedback is important to us. Artelier welcomes and encourages you to provide feedback,reviews, comments and suggestions for improvements to the Site and our Services ("Feedback").You may submit Feedback by contacting us using the contact details provided below.
25. HOW TO CONTACT USYou can contact us:(a) using our support page provided on our Site located at www.artelier.com.au(b) by email at email@example.com
© 2020 D.J Gilbert & S.D Gilbert T/A ArtelierOnline. All Rights Reserved.Terms last updated 8 April 2020.
1. ABOUT THE WEBSITE