Private Art Sales Pty Ltd ACN 165 239 716 ("Private Art Sales")
And: The person or entity accessing this Website ("You")
1. DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions, unless the context otherwise requires:
"Advertisements" are defined in clause 3.1.
"Content" is defined in clause 7.1.
"External Websites" is defined in clause 4.3.
"Non-excludable Conditions" is defined in clause 10.1.
"Services" means all services supplied by Private Art Sales, including the maintenance and supply of the Website and all advertising and related services.
"Third Parties" is defined in clause 4.1.
"User Account" is defined in clause 9.1(a).
"Website" means the www.privateartsales.com website, and any other websites operated by Private Art Sales from time to time.
2. ACCEPTANCE OF TERMS
2.1 You acknowledge that access to and/or use of the Website or Services is subject to Your compliance with these terms and conditions.
2.2 If You do not accept these terms and conditions, You must stop using the Website and Services immediately.
2.3 Private Art Sales may amend these terms and conditions from time to time, and will publish the revised terms and conditions on the Website. Your continued use of the Website after such amendments will constitute acceptance of the amendments by You.
3. ADVERTISING BY YOU
3.1 The Services may allow You to place advertisements or listings for goods or services which will be visible to third parties on the Website ("Advertisements").
3.2 You acknowledge that all such Advertis ements must comply with this clause.
3.3 Advertisements must:
(a) comply in all respects with the requirements of Private Art Sales as notified to You from time to time;
(b) comply in all respects with all legal requirements, including requirements as to pricing, taxation and disclosure;
(c) if accompanied by a photograph, you must have the right to use the photograph and permission to reproduce the image of any goods depicted in the photograph on the Website and such photograph must be current and accurately represent the state of the goods at the time they are for sale;
(d) in all respects accurately describe the goods or services offered by You;
(e) relate only to goods that are:
(i) immediately available for sale; and
(ii) are owned or legally controlled by You; and
(f) must be removed as soon as possible if the goods are sold or otherwise cease to be available for sale.
3.4 Advertisements must not:
(a) inaccurately describe or depict goods or services available for sale, or in any way mislead or deceive or have the potential to mislead or deceive any person;
(b) breach any applicable law;
(c) infringe the intellectual property rights of any person (including any person's moral rights) or organisation;
(d) contain any material that may be abusive, defamatory, discriminatory, hateful, obscene, vulgar, offensive, threatening or otherwise objectionable to any reasonable person; and
(e) contain any material that could adversely affect the reputation of Private Art Sales or the Services, including the Website.
3.5 You acknowledge that Private Art Sales:
(a) reserves ultimate editorial control over the Services, and may refuse to publish an Advertisement for any reason, including without limitation if Private Art Sales considers that an Advertisement is or will be in breach of these terms and conditions;
(b) reserves the right to modify or withdraw an Advertisement at any time; and
(c) may change the appearance, organisation or functions of the Services, including without limitation the Website, at any time, and that such changes may affect the appearance or prominence of any Advertisement.
4. PURCHASES AND THIRD PARTY TRANSACTIONS
4.1 You acknowledge that:
(a) some aspects of the Services, including without limitation goods or services advertised for sale on the Website, will be provided by persons other than Private Art Sales ("Third Parties");
(b) it is Your responsibility to determine, negotiate and comply with the terms and conditions of Third Parties in connection with the purchase of goods or services from those Third Parties;
(c) Private Art Sales is in no way a partner, agent or representative of any Third Party;
(d) any arrangement for purchase of goods or services from Third Parties made through the Services, including without limitation any purchase made or arranged using the Website, will be subject to a separate contract between You and the Third Party that makes those goods or services available, and Private Art Sales will have no knowledge of or connection to such separate contract; and
(e) all of Your dealings with Third Parties are at Your own risk.
4.2 Private Art Sales does not:
(a) accept responsibility for the acts or omissions of any Third Parties in, or in connection with, the Services, including without limitation:
(i) the delivery or non-delivery of goods or services to You;
(ii) misrepresentations as to the quality of goods or services offered by Third Parties;
(iii) misrepresentations as to the appearance or performance of goods or services offered by Third Parties, including misrepresentations arising from misleading or deceptive photographs or samples provided by Third Parties; or
(b) warrant the accuracy, completeness, merchantability or fitness for purpose of any goods, services or information supplied on, through or in connection with the Services, including the Website (unless Private Art Sales is required to do so by a relevant Non-excludable Condition).
4.3 The Website may contain links to websites or resources that Private Art Sales does not control ("External Websites"). You acknowledge that:
(a) links to External Websites are provided for Your convenience, and do not constitute any endorsement of those External Websites by Private Art Sales; and
(b) Private Art Sales is not responsible for the content of External Websites.
5. WEBSITE AND SERVICES
5.1 Private Art Sales does not warrant that:
(a) usage of the Website, or any other part of the Services, will be uninterrupted;
(b) the content of the Website, including any information posted on the Website, is or will be correct, up to date or error free;
(c) the Website or any of the equipment associated with the operation or delivery of the Services will be free of computer viruses or other harmful components;
(d) information provided via the Services is professional, expert or other advice or any substitute for such advice; or
(e) information provided via the Services will be appropriate, correct or sufficient for Your circumstances.
5.2 You acknowledge that Private Art Sales expressly prohibits, and You agree not to access or use the Services to:
(a) provide any false, misleading or deceptive information, including without limitation about Your identity or the history, quality or standard of any goods or services advertised by means of the Services;
(b) violate any law or regulation, or cause Private Art Sales to violate any law or regulation;
(c) be abusive, defamatory, discriminatory, hateful, obscene, vulgar, offensive, threatening or otherwise objectionable;
(d) harass, stalk or otherwise subject any other person to unwanted or inappropriate contact or communication;
(e) send unsolicited mail or email, make unsolicited phone calls, send unsolicited faxes or advertise any products or services by making any unsolicited contact with users whose email, telephone, postal or other contact details You have established via the Services;
(f) harvest or otherwise collect information about other users of the Services for any purpose other than as expressly authorised by Private Art Sales;
(g) take any action that imposes an unreasonable or disproportionately large burden on the infrastructure of the Services, including the Website; or
(h) deliberately distribute or execute any computer virus or any other program or code intended to disrupt or disable operations of the Services.
6. FEES AND TERMINATION
6.1 You must pay any applicable Fees at the times specified by Private Art Sales.
6.2 Private Art Sales may immediately terminate or suspend your access to the Services if You breach a term of these terms and conditions.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 You acknowledge that, except for information and content supplied by You, all intellectual property rights in the software, content and trade marks on the Website ("Content") are owned by Private Art Sales or another party. No part of the Services should be construed as granting You or any other person any right to use any Content without the express permission of Private Art Sales or the other owner of the intellectual property rights in such Content, except where You are expressly licensed to do so in accordance with these terms and conditions.
7.2 You acknowledge that activities You must not engage in include, without limitation:
(a) copying, modifying, adapting, reselling or redistributing any Content (other than as explicitly authorised by these terms and conditions);
(b) any commercial use of Content, unless such use is authorised in writing by Private Art Sales, or otherwise authorised by these terms and conditions;
(c) any form of representation, including linking or framing, that could mislead or deceive a person as to the source of the Content, including misleading or deceiving a person that the Content is from a source other than the Website;
(d) any use of or access to the Website by any automatic tool, including "spiders", "crawlers", "robots", "screen scrapers" or offline browsing tools without the prior written consent of Private Art Sales; or
(e) any access or use of the Website by any means that is contrary to the commercial interests of Private Art Sales (e.g., to facilitate a means of encouraging users of the Website to use another website offering services similar to those on the Website).
7.3 You grant to Private Art Sales a non-exclusive, royalty free, perpetual, irrevocable licence to use, copy, modify and adapt all intellectual property rights in any material submitted by You using the Services for the purpose of providing the Services and the Website. You warrant that You hold all rights necessary to grant this licence to Private Art Sales.
7.4 If You believe that any work in which You own intellectual property rights appears on the Website without Your consent, You must notify Private Art Sales. Such notice must provide details of such work, details of Your intellectual property rights in such work, and where You allege the work appears on the Website.
8. RESALE ROYALTY SCHEME
8.1 You acknowledge that the Resale Royalty Scheme administered by the Copyright Agency Limited ("CAL") may apply to Your sale or purchase of artistic works through the Website. If an original work or limited edition reproduction of a work is sold for $1,000 (including GST) or more (or such other amount that may be determined under the Resale Royalty Scheme from time to time) you may be required to report the sale to CAL and pay a royalty equal to 5% of the final sale price (or such other amount that may be determined under the Resale Royalty Scheme from time to time). Works covered by the resale Royalty Scheme include batiks, carvings, ceramics, collages, digital artworks, drawings, engravings, fine art jewellery, glassware, installations, lithographs, multimedia artworks, paintings, photographs, pictures, prints, sculptures, tapestries, video artworks and weavings. More information about the Resale Royalty Scheme may be found at www.resaleroyalty.org.au.
8.2 You are responsible for determining if the Resale Royalty Scheme applies to the sale or purchase of any goods by You and for complying with the requirements under the Resale Royalty Scheme.
8.3 You indemnify Private Art Sales for any costs, loss or damage it may incur as a result of Your failure to comply fully with the requirements under the Resale Royalty Scheme.
9. SECURITY, ACCOUNT REGISTRATION AND PASSWORDS
9.1 You acknowledge and agree that:
(a) You may be given a username and password that will uniquely identify You ("User Account"), in accordance with Private Art Sales' registration procedures;
(b) You will comply with any procedures specified by Private Art Sales from time to time regarding updating Your User Account, including its password;
(c) You will use best efforts to prevent any person (other than an employee, officer or agent of You) from using Your User Account; and
(d) You will inform Private Art Sales immediately in writing of any actual or potential unauthorised access to Your User Account, or to any part of the Services not normally available to users who do not have a User Account.
9.2 You must not take any action to circumvent or attempt to circumvent the security and access control provisions of the Services. Examples of actions You (including any of Your representatives) must not undertake include, without limitation, any attempt to:
(a) log in to a User Account with a password not assigned to You;
(b) access personally identifiable information not intended to be accessed by You;
(c) test the security measures of the Website and/or attempt to identify system vulnerabilities;
(d) impersonate any other user of the Website;
(e) modify, reverse engineer, disassemble, decompile or otherwise attempt to allow others to attempt to discover the underlying computer code for the Website; or
(f) overwhelm or disable the Website or interfere with the access and use of the Website by another user.
9.3 You agree that Private Art Sales may do all things necessary to work with and cooperate with law enforcement authorities and any other government body throughout the world in relation to Your access and use of the Services, including without limitation providing all such information about You and Your access and use of the Services to such law enforcement authorities and other government bodies.
9.4 You agree that Private Art Sales may terminate or suspend Your access to and use of the Services, including temporarily or permanently revoking Your User Account, at any time if Private Art Sales reasonably considers You, or any person acting on behalf of You, breaches any term of these terms and conditions or otherwise uses the Services in connection with any illegal activity.
10. LIABILITY AND INDEMNITY
10.1 Other than warranties, conditions and guarantees imposed by relevant legislation, including the Competition and Consumer Act 2010, the exclusion of which from an agreement would contravene a statute or cause part or all of this clause to be void ("Non-excludable Conditions"), Private Art Sales excludes all representations, terms, conditions and warranties in relation to the Services, including any service provided on the Website.
10.2 Except for liability for breach of any Non-excludable Condition, You agree that Private Art Sales excludes all liability to You for all losses, damages, costs and expenses howsoever arising, including without limitation in contract, tort (including negligence), bailment, statute or otherwise. For breach of any Non-excludable Condition (to the extent permitted by law), Private Art Sale's liability is limited, at its option to:
(a) where the breach relates to goods:
(i) the replacement of the goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods; or
(iv) the payment of the cost of repairing the goods; and
(b) where the breach relates to services:
(i) the supply again of those services; or
(ii) the payment of the cost of having those services supplied again.
10.3 You agree to defend, indemnify and hold harmless Private Art Sales and its related entities, representatives, partners, directors, agents and employees from and against any and all liabilities, claims, costs, losses, damages and expenses, including legal fees, that arise out of or in connection with:
(a) any breach of these terms and conditions by You;
(b) any claim made, or action brought, by any third party in connection with Your use of the Services; and
(c) any deliberate, unlawful or negligent act or omission of You or any of its representatives.
11. CHOICE OF LAW AND SEVERABILITY
11.1 This Agreement, and all matters arising out of or in relation to it (including without limitation, its enforceability), is governed by the laws applicable in New South Wales.
11.2 While the Website may be used or accessed from outside New South Wales, You accept full responsibility for such use or access, and warrant that You will comply with the law of the jurisdiction from which You use or access the Website at all times.
11.3 The parties agree that any dispute, action, claim, or cause of action related to these terms and conditions or in connection with the use of the Services will be brought only in the courts located in Sydney, New South Wales, Australia.
11.4 If any provision of these terms and conditions is deemed by a court of competent jurisdiction to be void, voidable by either party, unenforceable or illegal, it must be read down so as to be valid and enforceable or, if it cannot be so read down, the provision (or where possible the offending words) must be severed from these terms and conditions without affecting the validity, the legality or the enforceability of the remaining provisions (or parts of those provisions), which will continue in full force and effect.