In these Terms:
"ACL" means the Australian Consumer Law Schedule of the Competition and Consumer Act;
"Agreement" means any agreement for the provision of goods by us to you;
"consumer" is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement;
"You" means any person, jointly and severally if more than one, using the Website and, if applicable, also acquiring goods or services from us from the Website;
"Intellectual Property Rights" means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific or artistic fields;
"goods" means any goods, products etc. supplied by us to the Customer including but not limited to items for home decorating, posters and prints for walls, lamps, decorative mirrors, clocks and other decorative items;
"GST" means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
"PPSA" means the Personal Property Securities Act 2009 as amended;
"services" means the design services and any other services provided by us to you;
"We / our / us " means Irina Mitin and Igor Mitin as trustees for the Mitin Trust;
"Terms" means these Terms and Conditions of Use and Purchase; and
"Website" means www.fineartbotanica.com
2.1 Unless otherwise agreed by us in writing, the Terms apply exclusively to every use of the Website and order placed on the Website by you and cannot be varied or replaced by any other terms, including your terms and conditions of purchase (if any).
2.2 By visiting the Website and/or purchasing any of the goods or services from the Website, you engage in our service and agree to be bound by the Terms including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms apply to all users of the Website, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
2.3 Please read these Terms carefully before accessing or using the Website. By accessing or using any part of the Website, you agree to be bound by these Terms. If you do not agree to all of the Terms, then you may not access the Website or purchase any goods or services from the Website. If these Terms are considered an offer, acceptance is expressly limited to these Terms.
2.4 The store of the Website is hosted on Shopify Inc., which provides us the online e-commerce platform that allows selling of goods and services to customers.
2.5 An agreement is accepted by us when we accept an order from you.
2.6 Any amendments to the order must be received by us from you within 24 hours of the placement of the original order.
2.7 We have an absolute discretion to refuse or to accept any offer.
2.8 You must provide us with its specific requirements, if any, in relation to the goods or the services.
2.9 We may vary or amend these Terms by written notice to you at any time. Any variations or amendments will apply to orders placed after the notice date.
3.1 You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the goods or services provided or sold or any part of the Website without express written permission provided by us.
3.3 We do not warrant, guarantee or make any representation regarding the accuracy, adequacy, reliability, completeness or timeliness of the information available on the Website ("Information") or that it is suitable for your intended use. The Information is provided by us in good faith on an "as is" basis without warranty of any kind.
3.4 We do not warrant or represent that the Information is free from human or mechanical error, technical inaccuracies or other typographical errors or defects. The use of this Website and the Information is at your own risk.
3.5 We make no warranties, guarantees or representations that the material in this Website will not cause damage or that the material is free from any computer virus or other defects. It is your responsibility to complete a virus check on any Information downloaded.
3.6 All warranties, representations and statutory guarantees and any liability which may arise in relation to your access to or use of this Website or the Information is expressly excluded to the maximum extent permitted by law.
3.7 The publication of our email addresses on this Website is to facilitate communications relating to the goods or services supplied by us. It must not be inferred as consent by us to receive unsolicited commercial electronic messages.
3.8 The Website may contain cookies.
3.9 You acknowledge that you must be 18 years of age to purchase from the Website and you hereby undertake that you are 18 years of age.
4.1 We will in no way be liable to any party for any injury, loss or damage arising out of or related to the use (or the inability to use) the Website.
4.2 Under no circumstances will we be liable for any direct, indirect, incidental, special or consequential loss or damage, including loss of programs or data, loss of business, business interruption, or lost profits.
4.3 Where liability cannot be excluded, any liability incurred by us is limited to the re-supply of the Information on the Website or the goods or the services to you or the reasonable costs of having the Information, the goods or the services re-supplied.
4.4 We will not be liable for any damage to goods received by you, which damage is a result of your incorrectly opening the postal container (tube or box).
4.5 Except as these Terms specifically state, or as contained in any express warranty provided by us, the agreement for the supply of the goods or services from us to you does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
4.6 We will not be liable if any minor (person under the age of 18 years old) uses the Website and makes any purchases.
5.1 Prices quoted for the supply of goods include GST and any other taxes or duties imposed on or in relation to the goods and services.
5.2 If you request any variation to the order, we may increase the price to account for the variation.
5.3 Any private requests for personalised prints or other personalised goods will be quoted by us via email.
5.4 Where there is any change in the costs incurred by us in relation to goods, we may vary its price to take account of any such change, by notifying you.
6.1 When you place an order with us, we will provide the invoice for the total costs of goods. Any such order and acceptance by us will form part of these Terms.
6.2 You must make payment within 7 days of receiving the tax invoice from us in which event the payment must be made at the time of purchase.
6.3 Unless otherwise agreed in writing, any payments can be made using EFT and PayPal.
6.4 All payments must be made upon you placing the order, unless otherwise agreed in writing by us.
6.5 You will be provided with details of all payment options available.
6.6 Payment terms may be revoked or amended at our sole discretion immediately upon giving you written notice.
6.7 The time for payment is of the essence and all invoices should be paid on or before the due date.
7.1 If any services or goods are to be paid on the invoice issued, and you default in payment by the due date of any amount payable to us, then all money which would become payable by you to us at a later date on any account, becomes immediately due and payable without the requirement of any notice to you, and we may, without prejudice to any of its other accrued or contingent right:
(a) charge you interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full;
(b) charge you for, and you must indemnify us from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Terms or to recover any goods;
(c) cease or suspend supply of any further goods to you; and
(d) by written notice to you, terminate any uncompleted contract with you.
7.2 Clauses 5.1(c) and (d) may also be relied upon, at our option, where you are a natural person and become bankrupt or enter into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally or where you are a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding you up.
8.1 Until we receive full payment in cleared funds for all goods or services (to be) supplied by us to you, as well as all other amounts owing to us by you:
(a) title and property in all goods remain vested in us and do not pass to you;
(b) you must hold the goods as fiduciary bailee and agent for us, and must keep the goods separate from your goods and maintain our labelling and packaging;
(c) in addition to the rights under the PPSA, we may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not part of our property, and for this purpose you irrevocably licences us to enter such premises and also indemnify us from and against all costs, claims, demands or actions by any party arising from such action.
9.1 Not with standing anything to the contrary contained in these Terms, the PPSA applies to these Terms.
9.2 For the purposes of the PPSA:
(a) terms used in clause 7 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and we have a Purchase Money Security Interest in all present and future goods supplied by us to you and the proceeds of the goods;
(c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by you at any particular time; and
(d) you must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by us on the Personal Property Securities Register.
9.3 The security interest arising under this clause 7 attaches to the goods when the goods are collected or dispatched from our premises and not at any later time.
9.4 Where permitted by the PPSA, you waive any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
9.5 To the extent permitted by the PPSA, you agree that:
(a) the provisions of Chapter 4 of the PPSA which are for your benefit or which place obligations on us will apply only to the extent that they are mandatory or we agree to their application in writing; and
(b) where we have rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
9.6 You must immediately upon our request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by us to be relevant to its security position such agreements and waivers (including as equivalent to those above) as we may at any time require.
9.7 We may allocate amounts received from you in any manner we determine, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by us.
10.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to you immediately on the goods being delivered to you or taken from our premises.
10.2 You assume all risk and liability for loss, damage or injury to your persons or to your property, or third parties arising out of the use, installation or possession of any of the goods sold by us, unless recoverable from us on the failure of any statutory guarantee under the ACL.
11.1 Any period or date for delivery of goods stated by us is an estimate only and not a contractual commitment.
11.2 We will use reasonable endeavours to meet any estimated dates for delivery of the goods but will not be liable for any loss or damage suffered by you or any third party for failure to meet any estimated date.
11.3 Our delivery records will be prima facie proof of delivery of the goods to you.
12.1 Subject to clause 12.5, we will arrange for the delivery of the goods to you.
12.2 You are responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to you to the point of delivery.
12.3 We may make part delivery of goods and we may invoice you for the goods provided.
12.4 You indemnify us against any loss or damage suffered by us, its sub-contractors or employees as a result of delivery, except where you are a consumer and we have not used due care and skill.
12.5 Delivery is deemed to have taken place once a confirmation has been entered into our system, or a delivery docket is signed by you. If delivery is attempted and is unable to be completed, you are deemed to have taken delivery of the goods. You are liable for any re-postage charges if the goods are returned to us payable on demand.
12.6 If any goods delivered are damaged, you must notify us within 24 hours of receiving the goods in order to be eligible for either a resupply or a refund, at our sole discretion.
12.7 We estimate that unframed orders will ship within 5 business days and framed orders within 10 business day of us accepting the order. Once the order is shipped, you will receive an email notifying them.
12.8 If there has been a non-delivery in relation to the goods ordered, you must notify us within 48 hours of such non-delivery.
12.9 If agreed that you will collect the goods:
(a) you must collect the goods on the agreed date;
(b) if you does not collect the goods on that date or rescheduled the date in advance, you are deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.
12.10 If the order for goods is less than $100 then no signature will be needed from you. If the order is over $100, then a signature will be required from you.
12.11 We ship limited range of goods worldwide. We should contact you to find out if the goods you wish to purchase and which country the goods need to be shipped to.
13.1 We will accept return of goods for a full refund within 30 days of purchase but you will be responsible for postage of such goods and ensuring that the goods are in original undamaged condition, otherwise you will not be entitled to a refund.
13.2 In the event that the goods are damaged in transit, you must notify us within 24 hours of receiving the goods and provide us with photographs of the damage. We will then provide instructions to you on returning such goods and obtaining a replacement or a refund, at our sole discretion.
13.3 No refunds will be given when you have provided wrong dimensions for any of the goods purchased or in relation to custom framed prints.
13.4 No refunds will be given in regards to sale items.
14.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods, the Terms do not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or any contractual remedy for their failure.
14.2 If you is a consumer nothing in these Terms restricts, limits or modifies your rights or remedies against us for failure of a statutory guarantee under the ACL.
14.3 If you on-supply the goods to consumer (whether or not they are used up by you in the course of manufacture):
(a) if the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of our liability to you;
(b) otherwise, payment of any amount required under section 274 of the ACL is the absolute limit of our liability to you;
howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods by you or any third party.
14.4 If clause 14.2 or 14.3 do not apply, then other than as stated in the Terms or any written warranty statement we are not liable to you in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods by you or any third party.
14.5 We are not liable for any indirect or consequential losses or expenses suffered by you or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
14.6 We are not liable for any indirect or consequential losses or expenses suffered by you or any third party, howsoever caused, in relation to any perishable or consumable goods.
14.7 You acknowledge that you have not relied on any advice, recommendation, information or assistance provided by us in relation to the goods or their use or application and you have not made known, either expressly or by implication, to us, if applicable, any purpose for which you require the goods and you have the sole responsibility of satisfying yourself that the goods are suitable for your use.
14.8 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
15.1 If we are unable to deliver or provide the goods, then we may cancel your order (even if it has been accepted) by notice to you (written or verbal).
15.2 No purported cancellation or suspension of an order or any part of it by you is binding on us once the order has been accepted.
16.1 Subject to clause 16.2 and 16.5 we will not be liable for any shortages, damage or non-compliance with the specifications in the Terms unless you notify us with full details and description within 24 hours of receipt of the goods otherwise you are deemed to have accepted the goods.
16.2 When any shortages, claim for damaged goods or non-compliance with the Agreement specifications is accepted by us, we may, at our option, replace the goods, or refund the price of the goods.
16.3 Subject to clause 16.5:
(a) if you want to return goods for credit, you must first obtain written authority from us in the form of an official returns note;
(b) all returns for credit must be received by us within 7 days of the date of delivery or pick up from our premises and must be accompanied by written reasons for the return;
(c) you are responsible for freight and insurance of the goods being returned and we will not be liable for any goods damaged in transit;
(d) any goods accepted for return may incur a handling charge.
16.4 Subject to clause 16.5, we will not under any circumstances accept goods for return that have been specifically produced, imported or acquired to fulfil the Agreement, are discontinued goods or no longer stocked by us, have been altered in any way, have been used or are not in their original condition and packaging.
16.5 If you are a consumer, nothing in this clause 13 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
17.1 You acknowledge that certain items of information is provided to us may be disclosed to a credit reporting agency.
17.2 By creating the account with us, you authorise us to obtain consumer and/or commercial information permitted by the Privacy Act from a credit reporting agency and to use such information for the purpose of collecting overdue payments relating to commercial credit owed by you. This authority remains in force for the duration of your account with us and until all moneys owed have been repaid.
18.1 You warrant all the information, including financial information, provided to us is complete and accurate. You acknowledge that we will rely on the information when making a decision whether to provide the credit facility.
19.1 We are not liable in any way howsoever arising under the Terms to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, we may suspend any orders with you and terminate the Terms by written notice to you.
20.1 You acknowledge and agree that:
(a) we own all the Intellectual Property, copyright, Website and all the contents of the Website;
(b) you will not acquire any interest in the Intellectual Property, including the Website and any of its contents, goods or services; and
(c) all content, coding, graphics, design, goods and services and Information available on the Website are protected by copyright, trade mark or other Intellectual Property rights and laws and remains our property or third party supplier’s as the case may be.
20.3 You acknowledge that:
(a) some of our collage prints are made using elements of photos and illustrations of other photographers and illustrators;
(b) All such photos and illustrations have either been purchased by us or are licensed to us and we have a legal right to use them in our collages (and sell our collages containing such photos and illustrations) by creating our own unique graphic compositions, each of which has its own elements.
20.4 © Irina Mitin and Igor Mitin as trustees for the Mitin Trust. All rights reserved.
20.5 All trade marks and trade names which appear on the Website are proprietary to us and/or its affiliates. Use of these trade marks without the owner's consent will infringe the owner's intellectual property rights. Nothing in this Website should be interpreted as granting any rights to use or distribute any names, logos or trade marks except with the express written consent of the respective owner.
20.6 If you are our competitor and you create documents, goods or services similar to ours for the purpose of providing them to third parties, whether these third parties are business users or domestic users, we expressly exclude and do not permit you to use or access the Website, to use or download any documents or any information, including the Information, from the Website or any other source. If you breach our Intellectual Property rights by using our documents, goods, service or the Information, you will be liable for any loss that we may incur. We will hold you accountable for all profits that you might make from using our Intellectual Property.
20.7 We reserve the right to deny access to the Website, the goods, the services or the Information to any person or business.
21.1 The law of Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
21.2 Our failure to enforce any of these Terms shall not be construed as a waiver of any of our rights.
21.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
21.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.
To contact us – please go to “Contact Us” page.