TERMS AND CONDITIONS OF USE
About the Website
1.1. Welcome to https://www.melissabarber.com and the related social media platforms operated by Melissa Barber (ABN 46 293 043 068) (“Melissa Barber”) (the 'Website'). The Website provides you with an opportunity to comment on, browse and purchase various original and commissioned art works and prints that have been listed for sale through the Website (the 'Art'). The Website provides this service by way of granting you access to the content on the Website (the 'Services').
1.2. Access to and use of the Website, or any of its associated Art or Services, is provided by Melissa Barber. 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 the Services, immediately.
1.3. Your use of parts of the Website (including those parts of the Website which are accessible to members of the public) also may be subject to disclaimers or additional terms and conditions.
1.4 Melissa Barber reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Melissa Barber 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.
1.5 Melissa Barber may in its sole and absolute discretion, for any reason or no reason, and without notice:
(a) alter or withdraw any functionality on the Website;
(b) withdraw or suspend access to all or any part of the Website and any account;
(c) monitor the use of the Website;
(d) subject to any applicable laws, treat any material that you transmit or display as non-confidential and non-proprietary; and
(e) edit or remove any material that you may have uploaded, posted, emailed or otherwise transmitted to the Website or in connection with the Services.
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 Melissa Barber in the user interface.
Using the Services
3.1. In order to access the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
an email address;
a mailing address;
a telephone number;
payment information; and
You warrant that any information you give to Melissa Barber in the course of using the Website or the Services will always be accurate, correct and up to date.
You may not use the Services and may not accept the Terms if:
you are not of legal age to form a binding contract with Melissa Barber; or
you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
3.4. Melissa Barber may, at its sole discretion and for any or no reason, refuse registration of, or suspend a user account.
4.1. As a User, you agree that:
you will use the Services only for purposes that are permitted by the Terms, any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
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 Melissa Barber providing the Services;
you will not use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of other users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
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 Melissa Barber for any illegal or unauthorised use of the Website; and
you acknowledge and agree that any automated use of the Website or its Services is prohibited.
4.2 If you wish to purchase Art, you may be required to register an account. As part of the account registration process you may be required to supply your:
(b) e-mail address;
(c) preferred username and password;
(d) address; and
(e) telephone number.
4.3 You are responsible for all transactions made via your account.
4.4 You must click the relevant button on the Website and confirm at checkout that you wish to make a purchase. Upon clicking the button to confirm a purchase, you are committing to a contractual obligation to buy the selected Art for the price, and to make such additional payments as may be required, as set out on the Website, and including those imposed by Melissa Barber, its payment partners and your financial institution.
4.5 Prices displayed are inclusive of all applicable GST. Shipping and any insurance charges will be separately shown, if selected.
Purchasing of Art and Returns Policy
5.1. In using the Services to purchase Art through the Website, you will agree to the payment of the purchase price listed on the Website for the Art, or agreed in writing with Melissa Barber (the 'Purchase Price').
5.2 Payment of the Purchase Price may be made through one of the following third party providers:
Direct deposit; or
Any other payment method we may offer from time to time
(the 'Payment Gateway Providers')
5.3 Following payment of the Purchase Price being confirmed by Melissa Barber, you will be issued with a receipt to confirm that the payment has been received and Melissa Barber may record your purchase details for future use.
5.4 If the Art is being shipped to an address that is not in the same country as Melissa Barber, you or the addressee will be responsible for paying any other charge, tax or impost or levy imposed by any applicable government agency in the addressee’s country.
5.5 Unless otherwise agreed, Users who make a purchase must make full payment for Art via the methods offered by Melissa Barber from time to time. Purchases are not confirmed until Melissa Barber has confirmed receipt or verification of payment and has conducted fraud checks, as required. All payments must be made, and will be taken, in Australian dollars.
5.6 Original Art is the original work of Art that has been created by an artist and is not a print or other reproduction.
5.7 Due to technical and other limitations, the images on the Website may not reproduce the colours of the Original Art accurately.
5.8 Due to the nature of Original Art, it and its mounting may contain imperfections, textural differences and colour variances, which may or may not be intended by the artist. Users accept that these imperfections are inherent in all original art.
5.9 The medium, style, size and mounting if any, are as stated on the Website.
5.10 Commissioned art is an original work of Art created by an artist on request by a User, and is not Portraiture, a print or other reproduction.
5.11 The price of Commissioned Art is negotiated in advance between the User and Melissa Barber.
5.12 Melissa Barber reserves the right not to accept a request for Commissioned Art.
5.13 Upon the receipt of a request for Commissioned Art, Melissa Barber will supply a Quotation based on the User’s request for colour, style, timeline and subject matter. Melissa Barber will also outline the process of creation which will include 1 or more preliminary sketches (that will remain the property of Melissa Barber) and consultations.
5.14 If the User rejects the completed work or does not make final payment within 14 days of completion, the User agrees and acknowledges that Melissa Barber may on sell the Commissioned Art to a third party without notice to the User.
5.15 Melissa Barber will take reasonable steps to create the Commissioned Art in accordance with the User’s request, but due to the nature of the creative process and the subjectivity of taste, preference and artistic appreciation, the User acknowledges and agrees that the final Commissioned Art may not conform exactly with the request or the preference of the User.
5.16 Notwithstanding that the Art is Commissioned Art, and without limiting the rights under clause 9, Melissa Barber reserves the right to reproduce Commissioned Art for sale, including as a Print.
5.17 Due to the nature of Commissioned Art, it and its mounting may contain imperfections, textural differences and colour variances, which may or may not be intended by the artist. Users accept that these imperfections are inherent in all original art.
5.18 The medium, style, size and mounting if any, are as stated on the Quotation.
Painted Commissioned Portraiture
5.19 Painted Commissioned Portraiture is an original work of Art created by an artist on request by User and is not a print or other reproduction.
5.20 The starting guide price of Painted Commissioned Portraiture is as stated on the Website and is then negotiated in advance between the User and Melissa Barber.
5.21 Upon the receipt of a request for Painted Commissioned Portraiture, Melissa Barber will supply a Quotation based on the User’s request for colour, style, timeline and subject. Melissa Barber will also outline the process of creation which will include 1 or more preliminary sketches (that will remain the property of Melissa Barber) and consultations.
5.22 Melissa Barber reserves the right not to accept a request for Painted Commissioned Portraiture.
5.23 Painted Commissioned Portraiture is created based on photographs taken by Melissa Barber or suitable photographs supplied by the User.
5.24 If the User accepts the Quotation, the face will be painted and shown to the User as a confirmation of the likeness of the subject (“Confirmation Stage”). If the work in progress is accepted by the User at the Confirmation Stage, 50% of the agreed price is payable before commencement of the remaining work. If the User does not accept the likeness at the Confirmation Stage, they are not obliged to continue with the Commission. Melissa Barber may also provide progress reports throughout the painting process at her discretion. 50% of the agreed price is payable on completion. Final payment must be made within 14 days of completion. No refunds will be provided for changes of mind.
5.25 Melissa Barber will take reasonable steps to create the Painted Commissioned Portrait in accordance with the User’s request, but due to the nature of the creative process and the subjectivity of taste, preference and artistic appreciation, the User acknowledges and agrees that the final Painted Commissioned Portrait may not conform exactly with the request or the preference of the User.
5.26 Notwithstanding that the Painted Portrait is Commissioned Art, and without limiting the rights under clause 9, Melissa Barber reserves the right to reproduce Commissioned Painted Portraiture to use as advertising material, for example on Social Media.
5.27 Due to the nature of Painted Commissioned Portraiture, it and its mounting may contain imperfections, textural differences and colour variances, which may or may not be intended by the artist. Users accept that these imperfections are inherent in all original art.
5.28 The medium, style, size and mounting if any, are as stated on the Quotation.
Sketched Commissioned Portraiture
5.29 Sketched Commissioned Portraiture is an original work of Art as an unpainted sketch created by an artist on request by the User and is not a print or other reproduction.
5.30 The price of Sketched Commissioned Portraiture is as stated on the Website. Sketched Commissioned Portraiture is limited to the head and shoulders of one subject only. Additional subjects and amendments and associated pricing can be negotiated in advance between the User and Melissa Barber.
5.31 Upon the receipt of a request for Sketched Commissioned Portraiture, Melissa Barber will supply a Quotation based on the User’s request for timeline and subject as stated on the Website.
5.32 Melissa Barber reserves the right not to accept a request for Commissioned Art.
5.33 Sketched Commissioned Portraiture is created based on photographs taken by Melissa Barber or suitable photographs supplied by the User.
5.34 If the User is not satisfied with the completed Sketched Commissioned Portrait payment is not required. The Sketched Commissioned Portrait will remain the property of Melissa Barber.
5.35 Melissa Barber will take reasonable steps to create the Sketched Commissioned Portrait in accordance with the User’s request, but due to the nature of the creative process and the subjectivity of taste, preference and artistic appreciation, the User acknowledges and agrees that the final Sketched Commissioned Portrait may not conform exactly with the request or the preference of the User.
5.36 Notwithstanding that a Sketched Portrait is Commissioned Art, and without limiting the rights under clause 9, Melissa Barber reserves the right to reproduce Sketched Commissioned Portraiture to use as advertising material, for example on Social Media.
5.37 Due to the nature of Sketched Commissioned Portraiture, it may contain textural differences and colour variances, which may or may not be intended by the artist. Users accept that these imperfections are inherent in all original art.
5.38 The medium, style, size and mounting if any, are as stated on the Website and/or Quotation.
5.39 A Print is a reproduction of Original Art or Commissioned Art. Prints are not limited in number unless otherwise stated.
5.40 Due to technical and other limitations, the images on the Website may not reproduce the colours of the Print accurately.
5.41 The medium, style, size and mounting if any, are as stated on the Website.
Product Warranty and returns policy
6.1. Melissa Barber's Art come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure of the product. You are also entitled to have the product repaired or replaced if the product fails to be of acceptable quality and the failure does not amount to a major failure (the 'Warranty'). Note however that this Warranty does not extend to subjective changes of taste, style or artistic appreciation.
6.2. You may make a claim under this clause (the 'Warranty Claim') for material defects and workmanship in the product within 30 days from the date of purchase (the 'Warranty Period').
6.3. In order to make a Warranty Claim during the Warranty Period, you must:
(a) send us an email notifying us of the Warranty Claim to: email@example.com;
(b) complete the claim form we supply to you; and
(c) provide proof of purchase.
6.4. Where the Warranty Claim is accepted then Melissa Barber will, at its sole discretion, either repair or replace any defective Art or part thereof with a new or remanufactured equivalent during the Warranty Period at no charge to you. You acknowledge and agree that you will be solely liable for any postage or shipping costs incurred in facilitating the Warranty Claim.
6.5. The Warranty shall be the sole and exclusive warranty granted by Melissa Barber and shall be the sole and exclusive remedy available to you in addition to other rights and under a law in relation to the Art to which this warranty relates.
6.6. Melissa Barber makes no warranties of merchantability and fitness for use.
6.7. The Warranty does not apply to any appearance of the supplied Art nor to the additional excluded items set forth below nor to any supplied Art where the exterior of which has been damaged or defaced, which has been subjected to misuse, abnormal service or handling, or which has been altered or modified in design or construction.
6.8 Melissa Barber does not generally accept returns or provide refunds for a change of mind. Returns may be available for a breach of a contractual or statutory warranty.
6.9 If Melissa Barber agrees to accept a return or provide a refund, this is on the basis that the Art is returned in the same condition as delivered, in a merchantable state and within 7 days of purchase.
No other warranties and limitation of liability
7.1 To the extent permitted by law, Melissa Barber excludes all representations and warranties, express or implied, other than those contained in these terms and conditions. Where Melissa Barber is found to be liable for breach of any warranty or condition implied by statute and which it cannot lawfully exclude (such as under the Competition and Consumer Law Act 2010 (Cth), Melissa Barber’ liability is limited (to the extent permitted by law) at its option to the following:
in the case of goods supplied or offered by it:
to the supply of those goods again; or
(ii) to the payment of the cost of having those goods supplied again; or
(b) in the case of services supplied or offered by it:
(i) to the supply of the services again; or
(ii) to the payment of the cost of having services supplied again.
7.2 Melissa Barber, its related bodies corporate, its directors, and its employees accept no liability for any loss (including loss of revenue or anticipated profits, loss of goodwill, loss of business, loss of data, computer failure or malfunction), or injury or any direct, indirect, consequential, special, punitive, or other damages caused by or as a result of:
(a) a user’s use of or inability to use the Website,
(b) any virus or other harmful, or potentially harmful, code which may be transmitted in connection with use of the Website;
(c) any information available on or through the Website or on or through any website to which there is a link from the Website; or
(d) Melissa Barber’ negligence or the negligence of any of its related bodies corporate, directors, officers, shareholders, employees, provider institutions or agents.
7.3 Melissa Barber 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.
7.4 Without limiting 7.1, 7.2 or 7.3, Melissa Barber’ total liability shall be limited to the amount paid by a User in respect of a disputed transaction.
Delivery & Risk
8.1 You acknowledge that the Services offered by Melissa Barber may unless otherwise agreed, integrate delivery (the 'Delivery Services') through the use of third party delivery companies (the 'Delivery Service Providers').
8.2 In providing the Services, Melissa Barber 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 Melissa Barber is not the provider of these delivery and insurance options and merely facilitates your interaction with the Delivery Service Providers in respect to providing the Delivery Services.
8.3 If agreed in advance, Melissa Barber may directly deliver Art to you if the delivery address is in the Central Western area of New South Wales, Sydney or Canberra. The price of this service is available on request.
8.4 Risk in the Art passes to you when the Art leaves our facility and is accepted by the Delivery Service Providers, or in the case where Melissa Barber delivers the Art to you, at the point you receive the Art. Title passes when Melissa Barber has been paid in full for the Art.
8.5 In the event that an item is lost or damaged in the course of the Delivery Services, you must:
contact the Delivery Service Provider directly to request a refund or to claim on any insurance options available; and
contact us by sending an email to firstname.lastname@example.org outlining in what way the Art was damaged in transit.
8.6 You acknowledge that, except for deliveries under 8.3, Melissa Barber does not provide the Delivery Services to you. In any event, you agree that Melissa Barber will not be liable to you for any direct or indirect loss, 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 or delivery under 8.3.
8.7 Unless otherwise agreed in writing, Melissa Barber packs Art as described on the Website.
8.8 Art is easily damaged in transit. You should consider taking out optional insurance for all Art purchased.
Copyright and Intellectual Property
9.1. The Website, the Services and all of the related products and Art of, and supplied by, Melissa Barber 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, videos, images, audio clips and software) (the 'Content') are owned or controlled for these purposes, and are reserved by Melissa Barber or its contributors.
9.2. Melissa Barber 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:
the business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright of Melissa Barber; or
the right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or
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).
9.3. You may not, without the prior written permission of Melissa Barber 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.
9.4. All copyright and moral rights in the Art remain the exclusive and sole property of the artist. Purchase of Art does not convey, transfer or licence the artist’s copyright or moral rights. In particular you may not reproduce, distribute or sell reproductions, prints or copies of any Art or other products purchased via the Services.
9.5. If you decide to on sell the Art, you may do so without removing any of the artist’s identifying marks.
9.6 Unless otherwise agreed, the artist who created the art may, without notice to Users, make available prints and copies of any Art made available or sold via the Services.
User’s Intellectual Property
9.7 Users acknowledge and agree that submissions to the Website, including images, reviews and comments may be used and adapted by Melissa Barber and its associated artists, for its own use.
10.1 If Users purchase a Commissioned Work that includes an image or representation of an identifiable person as a subject, then that User warrants that the subject has consented to the image being created, sold and displayed by Melissa Barber.
11.1 You acknowledge that Melissa Barber does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Art other than provided for pursuant to these Terms.
11.2 Melissa Barber will make every effort to ensure Art is accurately depicted on the Website, however, you acknowledge that sizes, colours and packaging may differ from what is displayed on the Website.
11.3 Use of the Website, the Services, and any of the products of Melissa Barber (including the Delivery Services), is at your own risk. Everything on Website, the Services, and the Art of Melissa Barber, 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 Melissa Barber (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 Melissa Barber) 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:
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;
the accuracy, suitability or currency of any information on the Website, the Purchasing Service, or any of its Content related products (including third party material and advertisements on the Website);
costs incurred as a result of you using the Website, the Services or any of the Art;
the Content or operation in respect to links which are provided for the User's convenience;
any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or
any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.
Termination of Contract
12.1. The Terms will continue to apply until terminated by either you or by Melissa Barber as set out below.
12.2. If you want to terminate the Terms, you may do so by:
notifying Melissa Barber in writing at any time; and
closing your accounts for all of the Services which you use, where Melissa Barber has made this option available to you.
12.3. Melissa Barber may at any time, terminate the Terms with you if:
you have breached any provision of the Terms or intend to breach any
Melissa Barber is required to do so by law;
the partner with whom Melissa Barber offered the Services to you has terminated its relationship with Melissa Barber or ceased to offer the Services to you;
Melissa Barber 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
the provision of the Services to you by Melissa Barber is, in the opinion of Melissa Barber, no longer commercially viable.
When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Melissa Barber 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.
You indemnify Melissa Barber, its related bodies corporate, their officers and employees, and service providers from and against all:
(a) liability to any third party;
(b) damage to property; and
(c) other liability, damage or loss;
insofar as the injury, damage or other liability, damage or loss is attributable to your negligence, breach of these terms and conditions, or unlawful or wilful action in connection with these terms and conditions, their performance, or the failure to perform them.
14.1 Before court or arbitration proceedings other than for urgent interlocutory relief may be commenced, the following steps must be taken to attempt to resolve any dispute that arises out of or in connection with this contract (including any dispute as to the validity, breach or termination of the contract, or as to any claim in tort, in equity or pursuant to any statute).
14.2 Notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party (or parties) to this contract specifying the nature of the dispute.
14.3 Upon receipt of the notice of dispute, the parties must attempt to agree upon an appropriate procedure for resolving the dispute.
14.4 If within 10 business days of receipt of the notice of dispute the dispute is not resolved, then the parties shall agree on a mediator, of failing agreement on a mediator, refer the dispute to a person appointed by the Chair of the Resolution Institute, (ACN 008 651 232; Level 2, 13-15 Bridge Street, Sydney NSW 2000; email: email@example.com, telephone: (61-2) 9251 3366, for facilitation of a mediation in accordance with Resolution Institute's Mediation Rules.
14.5 The parties must co-operate with the Resolution Institute as facilitator and its appointed mediator.
14.6 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
14.7 The mediation will be held in Sydney, New South Wales, Australia.
14.8 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.
14.9 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.
14.10 This clause will remain operative after the contract has been performed and notwithstanding its termination.
Venue and Jurisdiction
In the event of any dispute arising out of or in relation to the Services or the Website, the parties agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
These Terms are 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 the Terms 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. These Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
Independent Legal Advice
Both parties confirm and declare that the provisions of these 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.
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.
19. Revisions and Errata
The Content appearing on the Website could include technical, typographical, or photographic errors. Melissa Barber does not warrant that any of the Content on the Website are accurate, complete, or current. Melissa Barber may make changes to the Content contained on the Website at any time without notice. Melissa Barber does not, however, make any commitment to update the Content.
20. Links and Advertising
Melissa Barber has not reviewed the sites linked to or from the Website or third-party advertising. All links and advertising provided are for your convenience only, and Melissa Barber is not responsible for the content of any such linked site or advertising. The inclusion of any link or advertising does not imply endorsement by Melissa Barber of the site. Use of any such linked website or advertising is at your own risk.