Indigenous Torres Strait Islander Art

You will find set out below the terms and conditions for Buyers ("Conditions") on which we, Scott Elphinstone Art Services T/A ITSIA Indigenous Torres Strait Islander Art, contract as distributors on behalf of artists and representatives of artists, for the sale of Products. Before proceeding to place an order, we ask Buyers to read the Conditions carefully.

1.1. Some terms with special meanings are used regularly throughout these Conditions. These are set out below:
"Approval Period" means the period of fourteen days beginning with the day after the day of delivery of the Products to the Buyer except for Commissioned Products where there shall be no Approval Period. "Buyer" means a person who offers to buy a Product. "Commissioned Product" means a Product which is made for a Buyer, to the Buyer’s specifications, as a result of an enquiry received from the Buyer. "Contract" means a contract for the purchase and sale of the Products. "Delivery Charges" means delivery charges and inclusive of GST or equivalent sales tax. "Performance Period" means a period of 30 days beginning with the day after the day the Buyer sent his order to ITSIA or such other period as may be agreed between the Buyer and ITSIA. "Price" means the price of the Product inclusive of goods & services tax (or equivalent sales tax) but exclusive of Delivery Charges. "Products" means the ready made and made to order items and Commissioned Products offered through this Site. "Site" means the website owned and operated by Scott Elphinstone Art Services and which is currently located at http://www.ITSIA.com or any subsequent URL which may replace it from time to time. "Supplier" means the artist or representative of an artist who is named as the supplier in connection with any Product offered for sale on the Site. "Total Purchase Price" means the Price plus any Delivery Charges relating to the Product. "Writing" includes e-mail, facsimile transmission and comparable means of communication.

1.2. Except where the context otherwise requires, words denoting the singular `include' the plural and vice versa; words denoting any gender shall `include' all genders; and, words denoting persons `include' firms and corporations and vice versa.

2.1. These Conditions shall apply to all contracts for the sale of Products through this Site to the exclusion of all other terms and conditions including any terms and conditions which the Buyer may purport to apply under any confirmation of order or similar document.

2.2. All orders for Products shall be deemed to be an offer by the Buyer to purchase Products pursuant to these Conditions.

2.3. A contract for the purchase of the Products shall come into effect on the acceptance by ITSIA of an offer by the Buyer as referred to in clause 2.2.

2.4. Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by ITSIA.

2.5. Any advice or recommendation given by ITSIA or its employees or agents to the
Buyer or its employees or agents as to the storage, application or use of the Products which is not confirmed in Writing by ITSIA or the Supplier is followed or acted upon entirely at the Buyer's own risk, and accordingly ITSIA shall not be liable for any such advice or recommendation which is not so confirmed.

2.6. Any typographical, clerical or other error or omission in any description of the Product on the Site or in any quotation, price list, acceptance of offer, invoice or other document or information issued by ITSIA shall be subject to correction without any liability on the part of ITSIA.

2.7. Where a Buyer is under 18 ITSIA reserves the right to require confirmation of any order to be given by an adult who is related or otherwise connected to such Buyer.

3.1. ITSIA facilitates the purchase of Products offered for sale on the Site by charging a Buyer for the Total Purchase Price (which comprises the Price and the Delivery Charges).

3.2. The Total Purchase Price is payable by the Buyer to ITSIA as soon as the Buyer places the order for the Product.

3.3. Payment will be made in Australian Dollars. If the payment is made by credit
or debit card it will be deemed to have been received when the payment has been authorised by the relevant credit or debit card company. Where payment is made by wire transfer, cheque, or other means, payment will be deemed to have been made on receipt of funds by ITSIA's bank. Cheques must be made payable to “Scott Elphinstone T/A ITSIA, Indigenous Torres Strait Islander Art Services”.

3.4. ITSIA will not confirm the order until payment has been received, except with prior written agreement with certain specific buyers.

3.5. If the Buyer fails to pay the Total Purchase Price within seven days of placing the order, then, without prejudice to any other right or remedy available to ITSIA, ITSIA shall be entitled to treat the order as having lapsed.

4.1. Delivery of the Products shall be made to the address notified by the Buyer to ITSIA as the delivery address. The Buyer shall make all arrangements necessary to take delivery of the Products whenever they are tendered for delivery.

4.2. If the Buyer fails to take delivery of the Products or fails to give ITSIA adequate
delivery instructions (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of ITSIA's fault) then without prejudice to any other right or remedy available to ITSIA, ITSIA may:

4.2.1. arrange for the Supplier to store the Products until actual delivery, or if the Buyer wrongfully fails to take delivery of the Products, at the time when delivery has been tendered, charge the Buyer for the reasonable costs of storage (including insurance);

4.2.2. return such Products to the Supplier with the Buyer remaining liable for all shipping and delivery costs for the Products;

4.2.3. sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the Total Purchase Price or charge the Buyer for any shortfall below the Total Purchase
Price.

4.3. Any dates quoted for delivery of the Products are approximate only and ITSIA shall not be liable for the delay in the delivery of the Products however caused. Time for delivery shall not be of the essence of the Contract. The Products may be delivered in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

4.4. If on delivery the packaging for the Product is damaged then, before accepting the Product from the delivery company, the Buyer must immediately check that the Product itself is undamaged. If the Product itself appears to be damaged as a result of damage to the packaging, the Buyer must immediately report this to the delivery company official and notify ITSIA accordingly within 24 hours.

4.5. The Buyer shall be deemed to have accepted the Products at the end of the Approval Period unless any prior claim has been made as referred to in clause 6.

4.6. After acceptance the Buyer shall not be entitled to reject the Products which are not in accordance with the Contract.

5.1. Where the Products are supplied for export, the provisions of this clause shall (subject to any special terms agreed in writing between the Buyer and ITSIA) apply notwithstanding any other provisions of these Conditions.

5.2. The Buyer shall be responsible for complying with any legislation or regulations covering the export of Products and the importation of the Products into the country of destination and for the payment of any duties on them.

6.1. Prior to Delivery, the Buyer shall be entitled to cancel the Contract, with the exception of Contracts relating to Commissioned Products, and to be reimbursed for the Total Purchase Price in the following circumstances:

6.1.2. if the Products are not delivered within the Performance Period and agreement for an extension to the Performance Period is not reached between the Buyer and ITSIA.

6.2. Following dispatch, the Buyer shall be entitled to cancel the Contract within the Approval Period. If the Contract is so cancelled, the Buyer shall return the Products to ITSIA within 14 days of giving notice of cancellation. The Buyer is responsible for the organization of the return delivery of the Products and remains liable for the Delivery & Insurance Charges for the return delivery. The Buyer will be reimbursed the Total Purchase Price following the return of the Products.

6.3. If the Product arrives in a damaged condition the Buyer must notify ITSIA accordingly within 24 hours. If ITSIA is unable to replace the Product, or to arrange for the repair of the Product to a standard satisfactory to the Buyer, then the Buyer will be entitled to cancel the Contract. The Buyer will be reimbursed for the Total Purchase Price.

6.4. If the Product that is delivered to the Buyer is not the Product that was ordered by the Buyer, the Buyer must notify ITSIA accordingly within the Approval Period. If ITSIA is unable to supply to the Buyer the Product that was ordered then the Buyer will be entitled to cancel the Contract. The Buyer will be reimbursed for the Total Purchase Price.

6.5. In the event of any return, the Buyer shall state clearly the reason for the return of the Product and (in the event of damage) provide a description of the damage.

6.6. Return transportation of the Products will be arranged by the Buyer, unless otherwise agreed with ITSIA, to the return address provided with the Product or notified by ITSIA.

6.7. Contracts relating to Commissioned Products may only be cancelled with the agreement of ITSIA and the Supplier, and the Buyer will be liable for all costs incurred by the Supplier relating to the Commissioned Products.

6.8. ITSIA agrees to reimburse the Buyer within 30 days of notification of the cancellation of the Contract.

7.1. Title in the Product shall (but not the copyright in the Product or any rights of reproduction in relation to the Product) pass to the Buyer on whichever is the later of the date on which the order is accepted and the date on which the Total Purchase Price is paid.

9.2. Care is taken with the preparation of images of Products on the Site, and the colours represented. ITSIA takes no responsibility for any difference which arises between the image on the Site and the Product itself as a result of the equipment used by the Buyer to access and view the image. Images on the Site are for guidance only, and should not be relied on to determine either the tone or the colour of any item. All rights in the images of the Product on the Site will belong to ITSIA, and ITSIA will have the right to use them in in line with the agreement made with the Supplier.

9.3. Subject as expressly provided in these Conditions except where the Products are sold to a person dealing as a Consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.

9.4. Where the Products are sold under a consumer transaction (as defined by the Consumer Transaction Restrictions on Statements Order 1976), the statutory rights of the Buyer are not affected by these Conditions.

9.5. Any claim by the Buyer which is based on any defect in the quality or condition of the Products or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to ITSIA within the Approval Period or (where the defect or failure was not apparent on reasonable inspection) within seven days after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify ITSIA accordingly, the Buyer shall not be entitled to reject the Products and ITSIA shall not have any liability for any such defect or failure and the Buyer's obligation to pay the Total Purchase Price shall be the same as if the Products had been delivered in accordance with these Conditions.

9.6. Where any valid claim in respect of any of the Products which is based on any defect in the quality or condition of the Products or their failure to meet specification is notified to ITSIA in accordance with these Conditions, where it is possible to do so, ITSIA shall be entitled to arrange to replace the Product/s (or the part in question) free of charge or, at ITSIA's sole discretion, refund to the Buyer the Total Purchase Price of the Products (or a proportionate part of the Total Purchase Price) but ITSIA shall not have any further liability to the Buyer.

9.7. Except in respect of death or personal injury caused by the negligence of either ITSIA or the Supplier (as the case may be), neither ITSIA nor the Supplier shall be liable to the Buyer by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of these Conditions, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of ITSIA or the Supplier or the employees or agents or otherwise of either such party) which arise out of or in connection with the supply of the Products or their use or sale by the Buyer, the entire liability of both ITSIA and of the Supplier under or in connection with these Conditions shall not exceed in aggregate the Price of the relevant Products, except as expressly provided in these Conditions.

9.8. Neither ITSIA nor the Supplier shall be liable to the Buyer or be deemed to be in breach of these Conditions by reason of any delay in performing, or failure to perform, any of ITSIA's or the Supplier's obligations in relation to the Products if the delay or failure was due to any cause beyond (as the case may be) ITSIA or the Supplier's reasonable control.

10.1.If any claim is made against the Buyer that the Products infringe the copyright, design, trade mark or other intellectual property rights of any person, then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim provided that:

10.1.3. except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Supplier and ITSIA (which shall not be unreasonably withheld); and

10.1.4. the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do).

10.2.The Supplier and ITSIA shall be entitled to the benefit of, and the Buyer shall accordingly account to the Supplier and to ITSIA for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim;

10.3.Without prejudice to any duty of the Buyer at common law, the Supplier and ITSIA shall be entitled to require the Buyer to take such steps as the Supplier and ITSIA may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Supplier is liable to indemnify the Buyer under this clause.

10.4.In the case of Commissioned Products, if they have been made in accordance with the specification submitted by the Buyer, the Buyer shall indemnify ITSIA and the Supplier against all loss, damages, costs and expenses awarded against or incurred by ITSIA or the Supplier (as the case may be) in connection with or paid or agreed to be paid by ITSIA or the Supplier in settlement of any claim for infringement of any patent, copyright, design, trade mark or other intellectual property rights of any other person which results from the Supplier's use of the Buyer's specification.

11.1.2. the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

11.2.If this clause applies then, without prejudice to any other right or remedy available to ITSIA, ITSIA shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Products have been delivered but not paid for the Total Purchase Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

12.1.Any notices required to be given under these Conditions shall be in Writing and shall be deemed to have been duly served if hand delivered or sent by e-mail, facsimile (in each case with the original to be forwarded by post) and sent in the case of the Buyer to the address notified by the Buyer to ITSIA and in the case of ITSIA to the following address:

12.2.2. if sent by e-mail within one hour of transmission during business hours at its destination or within 24 hours if not within business hours but subject to proof by the sender that it has received an acknowledgement confirming that the transmitted notice in readable form has been received and read;

12.2.3. if sent by facsimile within one hour of transmission during business hours at its destination or within 24 hours if not within business hours but subject to proof by the sender that it holds an acknowledgement confirming receipt of the transmitted notice in readable form; and

12.2.4. if sent by post within 48 hours of posting (exclusive of the hours of Sunday) if posted to an address within the country of posting and seven days of posting if posted to an address outside the country of posting;

13.1.Neither party shall be liable for failure to perform or delay in performing any obligation under these Conditions if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of God, war, civil commotion or industrial dispute. If such delay or failure continues for at least thirty (30) days, the party not subject to the force majeure shall be entitled to terminate the Contract by notice in writing to the other.

14.1.These Conditions together with any document expressly referred to in any of its terms, contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these Conditions.

14.2.No addition to, or modification of, any provision of these Conditions shall be binding on the parties unless made by a written instrument and signed by a duly authorised representative of each of the parties.

14.3.The failure to exercise or delay in exercising a right or remedy under these Conditions shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under these Conditions shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in these Conditions are cumulative and not exclusive of any rights or remedies provided by law.

14.4.If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected.

15.1.These Conditions shall be governed by and construed in accordance with the laws of Australia and the parties hereby submit to the non-exclusive jurisdiction of the Australian courts in respect of any dispute or matter arising out of or connected with these Conditions.