Terms and Conditions
Terms and Conditions
1.1 These standard terms apply to a purchase or commission of a Nicole Schafter original artwork We expressly reject any terms you propose that vary or add to our trading terms.
1.2 These standard terms can be varied only in accordance with either changes or additions published by us from time to time about these standard terms or by written agreement between us and you expressly stating that the agreement varies these standard terms. However, the standard terms at the time an order is place govern that order until the Artwork is delivered to you and that order is complete,
1.3 These trading terms apply notwithstanding any forbearance or failure by us to enforce any of the terms.
2.1 You can place an order for an Artwork on our website or by emailing us.
2.2 We can accept orders in our discretion. We will confirm orders we accept by sending you an order confirmation (or invoice), in which we will specify the estimated delivery date.
2.3 Upon sending to you the order confirmation, you are obliged to purchase the Artwork set out in the order confirmation or invoice.
3.1 Your art by Nicole Schafter retains copyright in all Original Artworks.
3.2 Your art by Nicole Schafter reserves the right to make a print of an Original Artwork or part of an Original Artwork sold to you.
3.3 You may share an image of the Artwork on your social media, such as Facebook and Instagram. However, you must not otherwise copy or reproduce the Artwork in any way. In particular, you must not make a copy or print of Artwork for any commercial or other purpose.
4.1 If you commission an Original Artwork then this clause applies (Commissioned Artwork).
4.2 The price of a Commissioned Artwork depends on the size of the piece and other factors. Your Art by Nicole Schafter will issue an invoice for the Commissioned Artwork once the details of the commission have been finalised with you (colour palette, size, framing, etc.) (Commission Invoice).
4.3 You must pay the deposit (50% of the total price, unless otherwise indicated in the invoice) for the Commissioned Artwork (Deposit) before work on the Commissioned Artwork will commence.
4.4 If you choose to cancel or are treated as having cancelled the order for the Commissioned Artwork for any reason then you forfeit the deposit.
4.5 Once the Commissioned Artwork is complete then Your Art will notify you and payment of the balance of the purchase price for the Commissioned Art-work is immediately due and payable. The Commissioned Artwork will not be released for delivery until payment in full has been made. You must pay the balance of the purchase price for the Commissioned Artwork within 7 days of the date advised for completion.
4.6 You acknowledge that you are commissioning an original artwork that requires the exercise of creative judgement by Nicole Schafter as the artist and that the final Commissioned Artwork may differ from what you had in mind and may differ from the colour palette or other requests made by you, but this gives you no right to cancel the commission or refuse to pay the balance of the purchase price or not accept delivery of the Commissioned Artwork.
6.1 The price for the Artwork is the price applicable at the time the Artwork is ordered by you.
6.2 You must pay the price for the Artwork in the time indicated in any invoice or in these standard terms of trade.
6.3 You must pay the full price of the Artwork before it is released for delivery to you.
6.4 Prices advertised are subject to change without notice
6.5 The price for the Artworks within the Gallery are inclusive of packing and delivery, but commissioned works will need to be added which they will be done at the time of quotation
6.6 You must pay us in the currency indicated in the invoice (typically AUD).
6.7 The price for the Artwork is exclusive of GST. You must pay all GST arising from the supply of the Artwork to you, including delivery.
7.1 We will arrange delivery of the Artwork to you.
7.2 We will make forecasts of delivery times in good faith but these are estimates only. For delivery (But risk of damage to the Artwork (including the canvas and frame of an Original Artwork) in transit is your risk.
7.3 We are not liable to you for any loss or damage arising directly or indirectly from any delay in delivery of, or failure to deliver, the Artwork or damage to the Artwork arising during delivery. If we are not able to deliver the Artwork to you we will notify you.
8. Title & Risk
8.1 The Artwork is at your risk (including responsibility for insurance, or transit insurance) when it is first in the possession of the courier or delivery company, who are acting as your agent. We can add insurance to the price should you wish simply contact us and advise you want this additional service
8.2 Until you have paid to us the price for the Artwork supplied under each invoice:
(a) We are and remain the legal and equitable owner of the Artwork
9.1 You acknowledge and agree:
(a) that you grant us a Security Interest in the Artwork by virtue of the retention of title under clause 8;
(b) the Security Interest secures the purchase price for Artwork supplied to you by us;
(c) the Security Interest attaches to the Artwork purchased by you from us at the time risk in the Artwork passes to you; and
(d) that we are entitled to register the Security Interest pursuant to the PPS Law.
9.2 To avoid any doubt, the Parties intend this document to create a purchase money security interest in the Artwork.
9.3 The Security Interest ranks in priority ahead of all other Security Interests over the Artwork.
9.4 You agree to do anything (such as obtaining consents, completing, signing and producing documents and supplying information) which we consider necessary for the purpose of:
(a) ensuring that the Security Interest is enforceable, perfected and otherwise effective;
(b) enabling us to apply for any registration or give any notification (including registering a Financing Statement or Financing Change Statement on the PPSR as a Security Interest and a Purchase Money Security Interest pur-suant to the PPSA), in connection with the Security Interest so that it has the priority required by us;
(c) enabling us to exercise any powers in connection with the Security Interest; and
(d) obtaining possession or control of any Artwork for the purpose of perfecting any Security Interest in the Artwork by possession or control for the pur-poses of the PPS Law.
9.5 You agree not to change your name or any other details required on the PPSR, without first notifying us in writing.
9.6 Without limiting any other provision of this document, you waive your right to receive any Verification Statement (or notice of any Verification State-ment) in respect of any Financing Statement or Financing Change Statement relating to any Security Interest created under this document.
9.7 To the maximum extent permitted by law, you waive any right you may have pursuant to, and hereby contract out of the following sections of the PPSA: Section 95 (notice of removal of accession) to the extent it requires us to provide you with a notice, Section 125 (obligation to dispose of or retain collateral), Section 130 (notice of disposal) to the extent it requires us to provide you with a notice, Section 132(4) (statement of account if no disposal), Sec-tion 135 (notice of retention), Section 142 (redemption of collateral) and 143 (reinstatement of security agreement).
9.8 You and we agree that subject to section 275(7) of the PPSA neither of us will disclose information of the kind described in section 275(1) of the PPSA in response to a request made pursuant to section 275(1) of the PPSA or otherwise.
9.9 You agree to pay our costs of any discharge or necessary amendment of any Financing Statement or Financing Change Statement.
10.1 We guarantee that the Artwork are of acceptable quality as defined in the Australian Consumer Law.
10.2 The guarantee in clause 10.1 operates for 6 months from the time of delivery of the Artwork to you (or the period allowed in the Australian Consumer Law).
10.3 If any Artwork does not conform to guarantee in clause 10.1 then:
(a) at our request, you must send that Good to us (at your cost); and
(b) if we agree that the Artwork does not conform to our warranty, we will (at our option) repair or replace that Good and return it to you (at our cost) or provide you with a refund.
10.4 To the maximum extent permitted by law:
(a) us repairing, replacing or providing a refund for the Artwork pursuant to clause 10.3(b) is the limit of our liability to you; and
(b) we are not liable to you or any other person, whether in contract, tort or otherwise, for more than the price paid by you for the Artwork.
10.5 This warranty does not apply and we are not obliged to repair, replace or provide a refund for any Artwork if:
(a) the Artwork was damaged after risk in them passes to you for a reason not related to a defect, or if the Artwork are lost, destroyed or disposed of;
(b) you or another person undertakes any alterations to the Artwork; or
(c) the Artwork is damaged due to misuse, accident or neglect by you or you.
10.6 To the maximum extent permitted by law, we are not liable in any circumstances for:
(a) any injury, damage or loss, including consequential damage or loss (including without limitation loss of market, loss of profit or loss of contracts) whether arising directly or indirectly, whether arising in contract, tort, in equity or on some other basis, to people or property arising out of us supplying the Artwork to you; or
(b) any loss of or damage to the Artwork, or caused by the Artwork, whilst in transit.
10.7 No returns are allowed except if clause 10.1 applies. If you believe that clause 10.1 has been breached, then you need to promptly notify us (within 7 days of being aware of the alleged breach) and include such information (such as a photograph of the Artwork) we reasonably request. We will assess your request and if satisfied that clause 10.1 has been breached we will allow you to return the Artwork. You must not return any Artwork to us until we have issued you an authorised return number for that Artwork. You must deliver to us at your cost Artwork returned for credit otherwise undamaged and accompanied by notice setting out the return authorisation number, the original invoice number, the date of purchase and the reason for the return.
11. Intellectual Property
11.1 You acknowledge that all intellectual property in the Artwork, their associated trademarks and marketing and advertising material are our sole property.
11.2 You must not advertise or use our name, trademarks or other intellectual property in any manner without our prior written consent and must immediately ceasing using them at our request.
11.3 You must keep all information we provide to you that is not commonly known to the public, including our prices, absolutely confidential.
12.1 The laws of Queensland, without reference to “choice of law” principles, govern these standard terms of trade. You and we submit to the non-exclusive jurisdiction of the courts of that place.
12.2 Other than clauses 4.6 and 6.2, time is not of the essence under these standard terms.
12.3 A reference to “includes”, “including”, “in particular” or “such as” are to be read as if followed by the words “without limitation”.
12.4 All rights and powers enjoyed by us and any discretion, consent or decision to be made by us pursuant to these standard terms may be exercised by us in our absolute discretion and may be given or withheld subject to conditions. All approvals by us are only effective and binding when given in writing by an authorised officer.
12.5 If any provision or part of any provision of these terms is unenforceable (including any of the sub-clauses in clause 5) then it will be severed from the rest and such unenforceability does not affect any other part of such provision or any other provision of these terms.
12.6 If you are a trustee, then the following provisions shall apply:
(a) you shall be personally liable for the performance of all obligations and undertakings under these trading terms and/or under any guarantee given by you;
(b) you warrant that you have full, complete and valid authority pursuant to the trust to enter into the relevant supply contract and/or any relevant guarantee or indemnity;
(c) notwithstanding that there is no reference to a specific trust our rights of recourse shall extend to both your assets personally and the assets of the trust; and
(d) you undertake to us that your rights of indemnity against the trust assets have not been excluded by the provisions of the trust or by any breach of trust or otherwise and that you will not release or otherwise prejudice such rights of indemnity.
12.7 In these standard terms of supply, the following terms apply:
GST means any consumption tax imposed by any government or government agency, whether at the point of sale or at some other occurrence, by whatever name, which operates during the time we supply you with Artwork and includes a Artwork and services tax, an indirect tax and value added tax.
Parties means us and you.
PPS Law means:
(a) the PPSA and any regulation made at any time under the PPSA, including the PPS Regulations (each as amended from time to time); and
(b) any amendment made at any time to any other legislation as a consequence of a law or regulation referred to in paragraph (a).
PPS Regulations means the Personal Property Securities Regulations 2010 (Cth).
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Property Securities Register.
12.8 In these standard terms of supply, unless the context requires otherwise, the following words and expressions (and grammatical variations of them) have the same meanings given to them in the PPSA or the PPS Regulations (as applicable): Accounts, Accessions, Financing Change Statement, Financing Statement, Purchase Money Security Interest and Verification Statement.