Terms & Conditions - Ark Gallery

Website Terms & Conditions of Use

1. About the Website

1.1. Welcome to www.arkgallery.com.au (the ‘Website’). The Website provides original Artworks for purchase (the ‘Services’).

1.2. The Website is operated by Ark Gallery. Access to and use of the Website, or any of its associated Products or Services, is provided by Ark Gallery. Please read these terms and conditions (the ‘Terms’) carefully. By using, browsing and/or reading 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 the Website, or any of Services, immediately.

1.3. Ark Gallery reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Ark Gallery updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.

2. Acceptance of the Terms

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 Ark Gallery in the user interface.

3. Registration to purchase the Products or commission the Services

3.1. In order to purchase the Products or commission the Services, you may be required to provide your personal information through the Website (the ‘Account’).

3.2. As part of the registration process, or as part of your continued use of the Website, you may be required to provide personal information about yourself (such as identification or contact details), including:

1. 1. Email address
  2. Name and surname
  3. Mailing address
  4. Telephone number

3.3. You warrant that any information you give to Ark Gallery in the course of completing the registration process will always be accurate, correct and up to date.

3.4. Once you have completed the registration process, you will be a registered member of the Website (‘Member’) and agree to be bound by the Terms.

3.5. You may not use the Services and may not accept the Terms if:

1. 1. you are not of legal age to form a binding contract with Ark Gallery; or
  2. you are a person barred from receiving the Products or Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Products or Services.

4. Your obligations as a Member

4.1. As a Member, you agree to comply with the following:

1. 1. you will use the Services only for purposes that are permitted by:
    1. 1. the Terms; and
      2. any applicable law, regulation or generally accepted practices or guidelines in the relevant;
  2. you have the sole responsibility for protecting the confidentiality of your personal details and email address. Use of your personal details by any other person may result in the immediate cancellation of the Services;
  3. any use of your registration information by any other person, or third Parties, is strictly prohibited. You agree to immediately notify Ark Gallery of any unauthorised use of your personal details or email address or any breach of security of which you have become aware;
  4. access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of Ark Gallery providing the Services;
  5. 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 Ark Gallery;
  6. you will not use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
  7. you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Services. Appropriate legal action will be taken by Ark Gallery for any illegal or unauthorised use of the Website; and
  8. you acknowledge and agree that any automated use of the Website or its Services is prohibited.

5. Payment

5.1. Where the option is given to you, you may make payment for the Product or Services (the ‘Product or Services Fee’) by way of:

1. 1. EFT (Electronic Funds Transfer)
  2. PayPal (‘PayPal’)
  3. Cash (‘Cash’)

5.2. All payments made in the course of your use of the Website are made using the payment. Option in clause 5.1.

5.3. You acknowledge and agree that where a request for the payment of the Product or Services Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Product or Services Fee.

5.4. You agree and acknowledge that Ark Gallery can vary the Product or Services Fee at any time.

6. Refund Policy

Ark Gallery will only provide you with a refund of the Product or Services Fee in the event they are unable to submit an application after payment has been made in full, or if a Manager of Ark Gallery makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances (the ‘Refund’).

7. Copyright and Intellectual Property

7.1. The Website, the Services and all related Products of Ark Gallery 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 Services, Products and compilation of the Website (including but not limited to product images, text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) or the Products and the Services are owned or controlled for these purposes and are reserved by Ark Gallery or its contributors.

7.2. All original Artworks are owned, registered and/or licensed by Ark Gallery, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to:

1. 1. use the Website pursuant to the Terms;
  2. copy and store the Website and the material contained in the Website in your device’s cache memory; and
  3. print pages from the Website for your own personal and non-commercial use.

Ark Gallery does not grant you any other rights whatsoever in relation to the Website, the Products or the Services. All other rights are expressly reserved by Ark Gallery.

7.3. Ark Gallery retains all rights, title and interest in and to the Website and all related Products and Services. Nothing you do on or in relation to the Website will transfer any:

1. 1. business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
  2. a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
  3. a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.

7.4. You may not, without the prior written permission of Ark Gallery 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 Artworks, Products and Services or third-party Artworks, Products and Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.

8. Privacy

8.1. Ark Gallery takes your privacy seriously and any information provided through your use of the Website and/or Products and Services are subject to Ark Gallery’s Privacy Policy, which is available on the Website.

9. General Disclaimer

9.1. Nothing in the 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.

9.2. Subject to this clause, and to the extent permitted by law:

1. 1. all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
  2. Ark Gallery 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 Products or Services or these Terms (including as a result of not being able to use the Products or Services or the late supply of the Products or Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

9.3. Use of the Website and the Products or Services is at your own risk. Everything on the Website and the Products or Services is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, managers, employees, agents, contributors and licensors of Ark Gallery make any express or implied representation or warranty about the Products or Services or any Products or Services (including the Products or Services of Ark Gallery) referred to on the Website. includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:

1. 1. 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;
  2. the accuracy, suitability or currency of any information on the Website, the Products or Services, or any of its Services related Products (including third-party material and advertisements on the Website);
  3. costs incurred as a result of you using the Website, the Services or any of the Products of Ark Gallery; and
  4. the products or Services or operation in respect to links which are provided for your convenience.

9.4. Ark Gallery and its employees and consultants provide Artworks (the Products) and commission of Artworks services (the Services) only.

10. Limitation of liability

10.1. Ark Gallery’s total liability arising out of or in connection with the Products and Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Products or Services to you.

10.2. You expressly understand and agree that Ark Gallery, its affiliates, employees, directors, officers, managers, agents, contributors 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.

11. Termination of Contract

11.1. The Terms will continue to apply until terminated by either you or by Ark Gallery as set out below.

11.2. If you want to terminate the Terms, you may do so by:

1. 1. providing Ark Gallery with 23 days’ notice of your intention to terminate; and
  2. closing your accounts for all of the Products or Services which you use, where Ark Gallery has made this option available to you.

Your notice should be sent, in writing, to Ark Gallery via the ‘Contact’ section on our homepage www.arkgallery.com.au

11.3. Ark Gallery may at any time, terminate the Terms with you if:

you have breached any provision of the Terms or intend to breach any provision;
Ark Gallery is required to do so by law;
the provision of the Products and Services to you by Ark Gallery is, in the opinion of Ark Gallery, no longer commercially viable.

11.4. Subject to local applicable laws, Ark Gallery reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Products and Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Ark Gallery’s name or reputation or violates the rights of those of another Party.

12. Indemnity

12.1. You agree to indemnify Ark Gallery, its affiliates, employees, directors, officers, managers, agents, contributors, third-party content providers and licensors from and against:

1. 1. 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 Your Content;
  2. any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so;
  3. any direct or indirect consequences of you dealing or transacting with Ark Gallery’s representatives; and/or
  4. any breach of the Terms.

13. Dispute Resolution

13.1. Compulsory:

If a dispute arises out of or relates to the Terms, either Party may not 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 sought).

13.2. Notice:

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.

13.3. Resolution:

On receipt of that notice (‘Notice’) by that other Party, the Parties to the Terms (‘Parties’) must:

1. 1. Within 23 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;
  2. If for any reason whatsoever, 23 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 Dispute Settlement Centre Victoria or his or her nominee; and
  3. 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; The mediation will be held in Level 11, 360 Elizabeth Street, Melbourne Victoria 3000.

13.4. Confidential:

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.

13.5. Termination of Mediation:

If 3 months 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.

14. Venue and Jurisdiction

The Services offered by Ark Gallery is 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 Victoria, Australia

15. Governing Law

The Terms are governed by the laws of Victoria, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Victoria, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the Parties hereto and their successors and assigns.

16. Independent Legal Advice

Both Parties confirm and declare that the provisions of the Terms 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.

17. Severance

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.