TERMS AND CONDITIONS OF USE
1. About the Website
1.1 Thank you for visiting www.fletcherarts.com (the “Website”). The Website provides a service which allows users to purchase a wide variety of discounted products through the Website (the “Services”).
1.2 The Website is operated by Fletcher Arts Pty Ltd (ACN 167 036 339) (“Fletcher Arts”). Access to and use of the Website, or any of its associated products, is provided by Fletcher Arts. Please read these terms and conditions (the “Terms”) carefully. By using or browsing the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of this Website immediately and leave the Website.
1.3 Fletcher Arts reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Fletcher Arts updates the Terms, it will use reasonable endeavours to provide you with notice of same. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, you should print off or save a local copy of the Terms for your records.
2. Acceptance of the Terms
2.1 You accept the Terms by remaining on the Website. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Fletcher Arts in the user interface.
3. Your obligations
3.1 As a user of the Services (“User”), you agree to comply with the following:
(a) use the services only for purposes that are permitted by:
(i) the Terms; and
(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(b) you will not use the Services or the Website in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Fletcher Arts;
(c) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from User profiles without notice and may result in termination of the Services. Appropriate legal action will be taken by Fletcher Arts for any illegal or unauthorised use of the Website;
(d) you may not cover, obstruct, obscure or block the banner advertisements on your personal profile page or any Fletcher Arts page via HTML/CSS or any other means; and
(e) you acknowledge and agree that any automated use of the Website or its Services is prohibited.
4. Purchase and Exchange Policy
4.1 The Website provides you with an opportunity to browse various products that have been listed for sale through the Website (the “Product”) and to purchase the Product through the Website and have it delivered. In using the Services to purchase the Product through the Website, you will agree to the payment of the purchase price listed on the Website for the Product (the “Purchase Price”).
4.2 In order to purchase the Product, you must register as a User.
4.3 You agree and acknowledge that PayPal Australia Pty Limited (ABN 93 111 195 389) (“PayPal”) will be used to facilitate the purchase of the Product.
4.4 Fletcher Arts may, at their sole discretion, agree to exchange or provide and equivalent store credit (the “Exchange Policy”) for any Product(s) purchased through the Services, so long as the following terms are met:
(a) you contact Fletcher Arts by sending an email to email@example.com within forty eight (48) hours of your receipt of the Products explaining why you wish to exchange the Product(s);
(b) If Fletcher Arts agrees to the exchange, it will provide you with a unique returns authorisation code to be used in all future correspondence between the parties;
(c) within ten (10) days of Fletcher Arts agreeing to the exchange, you will return the Product(s) and the receipt of purchase to Fletcher Arts at PO Box 831 Narrabeen NSW 201, ensuring that the packaging and labels still attached to the Product(s); and
(d) where Fletcher Arts elects to provide an exchange, Fletcher Arts will send a replacement product to your return address.
4.5 You acknowledge and agree that all postage costs associated with complying with clause 5.4 of these Terms are to be borne by you.
4.6 The following Products provided through the Services are not applicable pursuant to the Exchange Policy:
(a) sale items;
(b) custom orders;
(e) body products; and/or
5. Gift Cards
5.1 Fletcher Arts offers gift cards for purchase through the Website (the “Gift Cards”).
5.2 The Gift Cards contain a unique code that can be used in the place of regular payment of the Purchase Price when purchasing Products from the Website and remain effective for a period of six (6) months from date of issue.
5.3 For the avoidance of doubt, purchases made using Gift Cards are subject to the same terms and conditions as normal purchases pursuant to these Terms.
6.1 You acknowledge that the Services offered by Fletcher Arts integrate delivery through the use of third party delivery companies (the “Delivery Services”) which may include but are not limited to the following companies:
(a) Australia Postal Corporation t/as Australia Post (ABN 28 864 970 579); and/or
(b) Temando Pty Ltd (ACN 120 582 738).
(the “Delivery Service Providers”)
6.2 You acknowledge that Fletcher Arts does not provide the Delivery Services to you and you agree that Fletcher Arts will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Delivery Services.
6.3 In providing the Services, Fletcher Arts may provide you with a variety of delivery and insurance options offered as part of the Delivery Services by the Delivery Service Providers. You acknowledge and agree that Fletcher Arts is not the provider of these delivery and insurance options and merely facilitates your interaction with the Delivery Service Providers in respect to same.
6.4 In the event that an item is lost or damaged in the course of the Delivery Services, Fletcher Arts asks that you:
(a) contact the Delivery Service Provider directly to request a refund or to claim on any insurance options available; and
(b) contact us by sending an email to firstname.lastname@example.org outlining in what way the Products were damaged in transit so we are able to determine if the Delivery Service Provider should be removed from the Services.
6.5 In the event that the item being lost or damaged in transit has not been resolved pursuant to clause 7.4 of these Terms, please contact us at email@example.com, providing suitable photographic evidence so that you can request an Exchange pursuant to clause 5.4 of these Terms.
7. Copyright and Intellectual Property
7.1 The Website, the Services and all of the related products of Fletcher Arts are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the site content and compilation of the website (including text, graphics, logos, button icons, video images, audio clips and software) (the “Content”) are owned or controlled for these purposes, and are reserved by Fletcher Arts or its contributors.
7.2 Fletcher Arts retains all rights, title and interest in and to the Website and all related content. Nothing you do on or in relation to the Website will transfer to you:
(a) the business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright of Fletcher Arts; or
(b) the right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or
(c) a system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a system or process).
7.3 You may not, without the prior written permission of Fletcher Arts and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party contact for any purpose. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.
8. General Disclaimer
8.1 You acknowledge that Fletcher Arts does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Products.
8.2 Fletcher Arts will make every effort to ensure a Product is accurately depicted on the Website, however, you acknowledge that sizes, colours and packaging may differ from the photographs of the products as displayed on the Website.
8.3 Products sold by Fletcher Arts through the Website may include handmade items (the “Handmade Products”). You acknowledge that each Handmade Product is unique and will differ from other similar Handmade Products. You also acknowledge that the Handmade Products may include minor imperfections.
8.4 Nothing in these Terms limits or 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 be limited or excluded.
8.5 Subject to this clause 9, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and
(b) Fletcher Arts we will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
8.6 Use of the Website, the Services, and any of the products of Fletcher Arts (including the Delivery Services), is at your own risk. Everything on Website, the Services, and the Products of Fletcher Arts, are provided to you on an “as is” and “as available” basis, without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Fletcher Arts (including any third party where the Delivery Services are made available to you) make any express or implied representation or warranty about its Content or any products or Services (including the products or services of Fletcher Arts) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Website, the Service, or any of its Content related products (including third party material and advertisements on the Website);
(c) costs incurred as a result of you using the Website, the Services or any of the products of Fletcher Arts;
(d) the Content or operation in respect to links which are provided for the User’s convenience;
(e) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or
(f) any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.
9. Limitation of liability
9.1 Fletcher Arts’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you under these Terms or where you have not paid the Purchase, then the total liability of Fletcher Arts is the resupply of information or Services to you.
9.2 You expressly understand and agree that Fletcher Arts, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
9.3 Fletcher Arts is not responsible or liable in any manner for any site content (including the Content and Third Party Content) posted on the Website or in connection with the Services, whether posted or caused by users of the website of Fletcher Arts, by third parties or by any of the services offered by Fletcher Arts.
9.4 Fletcher Arts does not control and is not responsible for the behaviours and actions of the users of its website, their comments, posts or information that they may upload. Accordingly, Fletcher Arts is not responsible for any offensive, inappropriate, obscene or unlawful content you may encounter on the Website or in connection with any of the services provided on the Website.
10. Termination of Contract
10.1 The Terms will continue to apply until terminated by either you or by Fletcher Arts as set out below.
10.2 If you want to terminate the Terms, you may do so by:
(a) notifying Fletcher Arts at any time; and
(b) closing your accounts for all of the services which you use, where Fletcher Arts has made this option available to you. Your notice should be sent, in writing, to Fletcher Arts via the ‘Contact Us’ link on our homepage.
10.3 Fletcher Arts may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any provision;
(b) Fletcher Arts is required to do so by law;
(c) the partner with whom Fletcher Arts offered the Services to you has terminated its relationship with Fletcher Arts or ceased to offer the Services to you;
(d) Fletcher Arts is transitioning to no longer providing the services to Users in the country in which you are resident or from which you use the service; or
(e) the provision of the services to you by Fletcher Arts is, in the opinion of Fletcher Arts, no longer commercially viable.
10.4 Subject to local applicable laws, Fletcher Arts reserves the right to discontinue or cancel your membership to the Website at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Fletcher Arts’s name or reputation or violates the rights of those of another party.
10.5 When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Fletcher Arts have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
11.1 You agree to indemnify Fletcher Arts, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with any Content you post through the Website;
(b) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so and any breach by you or your agents of these Terms; and/or
(c) any breach of the Terms.
12. Dispute Resolution
If a dispute arises out of or relates to the Terms, no party may commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sort).
A party to the Terms claiming a dispute (“Dispute”) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
On receipt of that notice (“Notice”) by that other party, the parties to the Terms (“Parties”) must:
(a) Within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Society of New South Wales or his or her nominee;
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d) The mediation will be held in Sydney, Australia.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
12.5 Termination of Mediation:
If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
12.6 Legal Proceedings:
In the event that the Dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
12.7 Venue and Jurisdiction
The Services offered by Fletcher Arts are intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
12.8 Governing Law
This agreement is governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to this agreement and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. This agreement shall be binding to the benefit of the parties hereto and their successors and assigns.
13. Independent Legal Advice
13.1 Both parties confirm and declare that the provisions of this agreement are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
14.1 If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
15. Force majeure
If a party is prevented from or delayed in performing an obligation by Force Majeure, and promptly acts to mitigate or remove the Force Majeure and its effect, then the obligation is suspended during, but for no longer than, the period the Force Majeure continues and any further period that is reasonable in the circumstances.
In this clause “Force Majeure” means an event beyond the reasonable control of the affected party, which occurs without the fault or negligence of the affected party.