Terms and Conditions

Terms & Conditions

OUR SERVICE

Elspeth McIntosh - Artist acts as a service provider providing artwork to clients throughout Australia.

INTRODUCTION

Before you use the Elspeth McIntosh - Artist website you must read, agree with and accept all of these Terms and Conditions of Use.

Elspeth McIntosh - Artist reserves the right, at its absolute discretion, to change or modify all or any part of these Terms and Conditions of Use at any time, effective immediately upon publishing on the website (www.elspethmcintosh.com) .  If at any time these Terms and Conditions of Use are no longer acceptable to you, you should immediately cease use of the Elspeth McIntosh - Artist website. 

If you do not agree to accept and abide by these Terms and Conditions of Use, you should not access or use the Elspeth McIntosh - Artist website.  

These Terms and Conditions of Use are separated into four sections: 

GOVERNING LAW AND JURISDICTION

This agreement and all claims relating thereto is governed by the laws of Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria (including the Federal Court of Australia and courts entitled to hear appeals from such courts). The parties irrevocably waive any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

Dispute resolution

Business Days means a day (other than a Saturday, Sunday or public holiday) when banks in Victoria are open for business (to be inserted in definition section of T&Cs).

Proceedings If any dispute arises in relation to this agreement, including in relation to its interpretation or any aspect of its performance, no party may commence any form of legal proceedings, unless and until the parties have complied with the procedures set out in this "dispute resolution", except where a party seeks urgent interlocutory relief or the dispute relates to compliance with this "dispute resolution".

Notice of Dispute If any dispute arises in relation to this agreement, either party may give written notice (Notice of Dispute) to the other party claiming that a dispute has arisen, specifying the nature of the dispute, and request that a meeting be held between one duly authorised representative of each party within 10 Business Days.

Meetings between authorised representatives If a party receives a Notice of Dispute from the other party in accordance with clause "Notice of Dispute", that party, and the party that gave the Notice of Dispute, must cause an authorised representative to attend at the meeting referred to in that notice, which may be held by contemporaneous linking by telephone or live audio visual transmission (or similar).

Dispute resolution and mediation If the parties have not resolved the dispute within 20 Business Days of the meeting referred to in the dispute resolution (or such further period as agreed in writing by them), the parties must mediate the dispute, which must be conducted in Melbourne (or as agreed in writing between the parties), in accordance with the Australian Centre for International Commercial Arbitration Limited (ACICA) Mediation Rules (in operation from time to time) by the ACICA, except where they conflict with this dispute resolution in which case this dispute resolution will prevail.

Appointment of mediator

1. If the parties are required by the dispute resolution process to mediate the dispute, ACICA will appoint the mediator unless the parties agree on a mediator (Mediator).
2. The role of the Mediator is to assist in negotiating a resolution of the dispute.  The Mediator may not make a decision that is binding unless the disputing parties otherwise agree in writing.
3. The costs of the Mediator must be paid equally by the disputing parties but otherwise each disputing party must pay their own costs of the mediation.

Arbitration

1. If the dispute is not resolved within 20 Business Days after referral to the Mediator,  either party may by written notice to the other refer the dispute to arbitration administered by the ACICA.
2. The arbitrator must be selected from a panel suggested by ACICA.  The parties must ask ACICA to appoint the arbitrator if they cannot promptly agree on who it should be. 
3. The arbitrator must be an independent person and may not be the same person as the mediator appointed under clause "appointment of mediator".  The arbitration must be conducted in accordance with, and subject to, the ACICA Arbitration Rules which are operating at the time the dispute is referred to ACICA and must be held in Victoria, Australia, unless otherwise agreed by both parties.  The number of arbitrators will be one. 
4. The language of the arbitration is English.
5. The decision of the arbitrator will be final and binding on the parties. 
6. This arbitration agreement is governed by the laws of Victoria, Australia. 

Injunctive relief

Nothing in this dispute resolution prohibits a party from seeking injunctive relief from a court of competent jurisdiction if a breach or prospective breach of this document by the other party which would cause irreparable harm to the first party.

Total Liability 

(under disclaimer and just above to the extent permitted by law..)

Nothing in these terms and conditions shall limit or exclude the either partys liability for:

1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
2. fraud or fraudulent misrepresentation; or
3. any other losses which cannot be excluded or limited by applicable law, including but not limited to the Australian Consumer Law (has the meaning given in the Competition and Consumer Act 2010 (Cth)).

Subject to Condition above:

1. Elspeth McIntosh - Artist shall under no circumstances whatsoever be liable to the Purchaser/Customer/Artist, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this agreement; and
2. Elspeth McIntosh - Artists total liability in aggregate to [Purchaser/Customer/Artist] in respect of all other losses arising under or in connection with this contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the listed sale price of the Artwork.

Severability

If any provision of this agreement is determined by a court or other competent tribunal or authority to be illegal, invalid or unenforceable then:

1. where the offending provision can be read down so as to give it a legal, valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; 
2. where the offending provision cannot be read down then that provision must be severed from the document in which event, the remaining provisions of this document operate as if the severed provision had not been included; and
3. the legality, validity or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction is not affected,

but only to the extent that is consistent with giving substantial effect to the intentions of the parties under this agreement.

DEFINITIONS 

Artist

Artist is defined as the person who created the original artwork, has the right to sell the artwork, and is selling the artwork via the Elspeth McIntosh - Artist website.

Purchaser

Purchaser is defined as the person who has made a purchase on the Elspeth McIntosh - Artist website through an online payment.

Member

Member is defined as any person who has created an account on the Elspeth McIntosh - Artist website, whether they are an Artist or a Purchaser.

User

User is defined as any person, member or not, who browses or uses the Elspeth McIntosh - Artist website for any purpose.

Content

Content is defined as data, text, images, usernames, graphics, photos, paintings, drawings, artworks, profiles or links or any other information whatsoever that is posted by Elspeth McIntosh - Artist or a member of the website.

Artwork

Artwork is defined as any piece of original work that is offered for sale on or sold via the website.

Copyright

Copyright protects the original expression of ideas, not the ideas themselves. It is free and automatically safeguards your original works of art from copying and certain other uses. For more information refer to the information sheets on Artists Copyright, Infringement, or the Copyright Act 1968. 

Original

Original is defined as a primary and original work, as opposed to any copy, reproduction or imitation. Copies and reproductions are not considered original for the purposes of these terms and conditions. Prints (photography and electronically altered works must be approved by Elspeth McIntosh - Artist before listing) must be limited editions, numbered and signed by the artist. Copyright must belong to the creator of an artwork in order for it to be considered original.

NFT

A non-fungible token established on a blockchain.

TERMS CONDITIONS OF USE

Service Region:

Elspeth McIntosh - Artist services and ships within the Australian community and other regions (including but not limited to) the UK, Europe and Asia.

Age and Responsibility:

The user represents and warrants that they are of sufficient legal age to use the Elspeth McIntosh - Artist website and to create binding legal obligations for any liability they may incur as a result of the use of the Elspeth McIntosh - Artist website. The user agrees to be responsible for all of their use of the Elspeth McIntosh - Artist website (as well as for use of their username and password(s) by others, including without limitation, minors living with them). The user agrees to supervise all usage by minors of the website under their name or account.

Unauthorised Use:

The Elspeth McIntosh - Artist website must not be used for any illegal or unauthorized purpose. The Elspeth McIntosh - Artist website must not be hacked and/or any adaptations made to any aspect of the website. Posting of advertisements or links to any other websites, including but not limited to social networking sites, is not allowed without express written permission from Elspeth McIntosh - Artist.

Art style:

Elspeth McIntosh - Artist aims to promote hand-made, original artworks.

Elspeth McIntosh - Artist is not creating any AI generated artwork.

Prices Sales practice:

All prices shown on the Elspeth McIntosh - Artist website are in either Australian Dollars (AUD). Prices of artworks shown on the Elspeth McIntosh - Artist website are set at the discretion of the Artist. 

Taxation responsibility:

Elspeth McIntosh - Artist will collect GST on every item but is not registered for GST.

Trademark:

The Elspeth McIntosh - Artist logo is a trademark of Elspeth McIntosh - Artist. Use of the Elspeth McIntosh - Artist logo is not authorised without express written permission from Elspeth McIntosh - Artist.

Copyright:

All content on the Elspeth McIntosh - Artist website is copyright of either Elspeth McIntosh - Artist or the Artist. Content must not be downloaded or used without express written permission from Elspeth McIntosh - Artist, or the Artist where the content is their own work. 

The Artist retains all copyright for physical artworks (which includes reproduction rights) even when the physical property is transferred to the Purchaser. If the Purchaser wishes to reproduce the Work, this must be separately negotiated with the Artist.

Refusal Termination of Service:

Elspeth McIntosh - Artist reserves the right to refuse service to anyone at any time and at its absolute discretion. Elspeth McIntosh - Artist reserves the right to modify, terminate or suspend member accounts, at any time, at its discretion, and without prior notice. 

Elspeth McIntosh - Artist reserves the right to terminate the Elspeth McIntosh - Artist service at any time and at its absolute discretion without prior notice. 

Upon termination, any rights granted by the Artist to Elspeth McIntosh - Artist under this agreement immediately revert to the Artist.

Warranties:

Elspeth McIntosh - Artist offers an "as is" service. Elspeth McIntosh - Artist does not supply any warranties in relation to content represented on the Elspeth McIntosh - Artist website.

Disputes Release Jurisdiction:

Elspeth McIntosh - Artist is released from any claims arising from disputes between users and members of the website, including disputes between Artists and Purchasers, between Artists and Artists, and between Purchasers and Purchasers.

Jurisdiction. These Terms will be governed by the laws of the State of Victoria (Australia) without regard to conflict of law provisions. You and we expressly agree that any claim or dispute must be resolved exclusively by a state court or arbitration located in Victoria.

Liability:

The user assumes all responsibility and risk for use of the Elspeth McIntosh - Artist website including and without limitation any of the content or information contained therein. Elspeth McIntosh - Artist accepts no liability for any failure to comply with these Terms and Conditions of Use where such failure is due to circumstances beyond its reasonable control.

Afterpay

By accepting Elspeth McIntosh - Artist's Ts Cs, you agree to and accept the possibility of purchasers using Afterpay, an interest-free 'buy now, pay later' payment plan for purchasing artwork and sharing their commission fee with Elspeth McIntosh - Artist.

How it works:

• The purchaser uses Afterpay and takes out a loan directly Afterpay and repays them over time. 
• Once the transaction is confirmed, which is (almost) immediate, the order is confirmed and can be dispatched.  The artists get paid in the normal time frame as a standard transaction done with credit card or PayPal. 
• Afterpay charge a commission to the seller (which varies based on loan size). This commission is deducted from he payment made to Elspeth McIntosh - Artist. A 5% charge will be shared with the artists and result in a 5% reduction in payout to the artist. It has the same effect as if a 5% coupon was applied to the sale. 

The usual Elspeth McIntosh - Artist returns policy still applies.

Elspeth McIntosh - Artist Layby

By accepting Elspeth McIntosh - Artist's Ts Cs, you agree to the possibility of purchasers using Elspeth McIntosh - Artist layby payment plan for purchasing artwork.

How it works:

• The purchaser uses Elspeth McIntosh - Artist Layby on the orders page and confirms the order.
• Once the transaction is confirmed, they pay in 4 equal fortnightly payments to Elspeth McIntosh - Artist (starting on the day of the order).
• Artist holds the artwork for this period (8 weeks).
• Once the full payment is received, the artwork is shipped out to the purchaser and artist is paid 7 days after delivery.
• Our usual returns policy still applies.
• Customers are limited to 3 active Elspeth McIntosh - Artist Layby plans at any one given time. 

Failure to make payments by/on the installment date may result in the plan being canceled and the work being made available for sale again. 

Communication with Elspeth

• When communicating with an artist directly via Elspeth McIntosh - Artist, you, the collector, agree to be respectful and fair to the artist. If any participant is found to be abusive, Elspeth McIntosh - Artist reserves the right to intervene and discontinue the accounts of participants involved.

Disclaimer:

Elspeth McIntosh - Artist does not represent or guarantee that the Elspeth McIntosh - Artist service or the Elspeth McIntosh - Artist website, or any other website that is accessible using a hyperlink from this website will be current, or free from errors or viruses. Elspeth McIntosh - Artist does not represent or guarantee that access to the Elspeth McIntosh - Artist service or these websites will be uninterrupted. 

The user acknowledges that the Elspeth McIntosh - Artist service or the Elspeth McIntosh - Artist website may be affected by outages, faults or delays. Such outages, faults or delays may be caused by factors, including but not limited to technical difficulties with the performance or operation of Elspeth McIntosh - Artist's or another person's software, equipment or systems, traffic or technical difficulties with the Internet or infrastructure failures. 

Elspeth McIntosh - Artist does not warrant that any members' uploads to this website will be protected against loss or misuse or alteration by third parties. Elspeth McIntosh - Artist does not warrant that all uploaded content will be available on our website. If Elspeth McIntosh - Artist elects in its sole discretion to make available content on its website, it does not warrant that it will be available within a certain time frame. Elspeth McIntosh - Artist reserves the right to cancel and refund any sale made through the Elspeth McIntosh - Artist website. 

It is the responsibility of the user to ensure that they are not exposed to viruses, Trojan horses or any other code of a destructive nature. 

Elspeth McIntosh - Artist does not accept responsibility for any loss or damage, however, caused (including through negligence), that users may directly or indirectly suffer in connection with their use of this website or any linked website, nor does it accept any responsibility for any such loss arising out of a user's use of or reliance on information contained on or accessed through this website. 

To the extent permitted by law, any condition or warranty that would otherwise be implied into these Terms and Conditions of Use is hereby excluded. Where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to one or more of the following: 

1. if the breach relates to goods:
   • the supply of equivalent goods;
   • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
   • the payment of the cost of having the goods repaired; and

1. if the breach relates to services:
   • the supplying of the services again; or
   • the payment of the cost of having the services supplied again

• This disclaimer does not attempt or purport to exclude liability arising under statute if, and to the extent, such liability cannot be lawfully excluded.

CONTACT ACKNOWLEDGEMENT

Contact:

If you have concerns relating to the Elspeth McIntosh - Artist website or these Terms and Conditions of Use, please contact Elspeth McIntosh - Artist via any of the following means:

Australia:

Email:

info@elspethmcintosh.com

Phone:

0472 721 852

INTRODUCTION

Elspeth McIntosh regards user privacy as an important part of our relationship with our users. The following privacy policy applies to all Elspeth McIntosh users, and conforms to Internet privacy standards. If you have questions or concerns regarding this policy, you should first contact Elspeth McIntosh via any of the following means:

Email:

elspeth.mcintosh@gmail.com

COLLECTION OF INFORMATION

In order to use the Elspeth McIntosh website, Elspeth McIntosh may require information from you in order to provide the best service possible. All correspondence may also be collected and stored, particularly in regard to sales, support and accounts, including email. Any information collected by Elspeth McIntosh is collected via correspondence from you or your company. This may be via the telephone, email, mail, fax or directly through our website, mobile apps, live chat or social media accounts.

Any details collected from Elspeth McIntosh users are required in order to provide you with our products and/or services, and a high level of customer service. Correspondence is recorded in order to provide service references. Collected information may also be used to send you marketing communications and remarketing digital advertising if you choose to sign up for marketing and communications on an ongoing basis via Mailchimp.

The security of your personal information is important to Elspeth McIntosh. When you enter sensitive information (such as credit card numbers) on our website, Elspeth McIntosh encrypts that information using secure socket layer technology (SSL). When Credit Card details are collected, Elspeth McIntosh simply passes them on in order to be processed as required. Elspeth McIntosh never permanently stores complete Credit Card details, though retains personal information for as long as a user account remains active.

Elspeth McIntosh follows generally accepted industry standards to protect the personal information submitted to Elspeth McIntosh, both during transmission and once Elspeth McIntosh receives it.

If your personally identifiable information changes, you no longer desire our service, or wish to opt-out of your identifiable information being used for Elspeth McIntosh digital marketing campaigns, you may correct, update, delete or deactivate your information by modifying your account on the website, or by emailing elspeth.mcintosh@gmail.com .

Provided all financials and/or disputes are cleared, all personal details will be deleted/de-activated from Elspeth McIntosh’s database and any files that are also contained on their personal computer.

LEGAL Elspeth McIntosh reserves the right to disclose your personally identifiable information as required by law and when it believes that disclosure is necessary to protect our rights and/or comply with a judicial proceeding, court order, or legal process served on our website.

LINKS

Links on the Elspeth McIntosh site to external entities are not covered within this policy. The terms and conditions set out in this policy only cover the domain name of www.elspethmcintosh.com  .

CHANGES TO PRIVACY SECURITY POLICY

If any changes are made to the this Privacy Security Policy, Elspeth McIntosh will post those changes to this policy on our website www.elspethmcintosh.com , so that you are aware of what information Elspeth McIntosh collects, how it uses that information, and under what circumstances, if any, it discloses that information. Elspeth McIntosh reserves the right to modify this policy at any time, so please review it frequently. If Elspeth McIntosh makes material changes to this policy, the policy located on the website www.elspethmcintosh.com will be updated accordingly.

SECURITY

Elspeth McIntosh uses the Stripe Payment Gateway for its online credit card transactions. Stripe processes online credit card transactions for thousands of Australian merchants, providing a safe and secure means of collecting payments via the Internet. All online credit card transactions performed on this site using the Stripe gateway are secured payments.

• Payments are fully automated with an immediate response.
• Your complete credit card number cannot be viewed by Elspeth McIntosh or any outside party.
• All transactions are performed under 128 Bit SSL Certificate.
• All transaction data is encrypted for storage within Square’s bank-grade data centre, further protecting your credit card data.
• Square is an authorised third party processor for all the major Australian banks.
• Square at no time touches your funds; all monies are directly transferred from your credit card to the merchant account held by Elspeth McIntosh.

For more information about Stripe and online credit card payments, please visit https://squareup.com/au/en