Terms and Conditions

---

TERMS OF USE

You may access and use our Sites and Apps solely for your personal, noncommercial use. Except as expressly authorised by these Terms, you may not use, reproduce, distribute, modify, transmit or publicly display any portion of our Sites and Apps or create derivative works of any portion our Sites and Apps. While using any of our Sites and Apps, you agree not to:

1. Defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including, without limitation, others' privacy rights or rights of publicity;
2. Impersonate any person or entity or use any fraudulent, misleading or inaccurate email address or other contact information;
3. Restrict or inhibit any other user from using any of our Sites and Apps, including, without limitation, by means of: "hacking" or defacing any portion our Sites and Apps; using mechanisms, software or other scripts capable of disrupting the function of the Sites and Apps; imposing any unreasonable or excessive burden on the Sites and Apps infrastructure; or otherwise attempting to block, overwrite or modify any contents, or otherwise cause disruption to the functioning of the Sites and Apps.
4. Violate any applicable laws or regulations;
5. Upload to, transmit through, or display on any of our Sites and Apps (a) any material that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party's intellectual property or other rights; (b) any confidential, proprietary or trade secret information of any third party; or (c) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us);
6. Engage in spamming;
7. Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, or other destructive items;
8. Modify, adapt, translate, distribute, reverse engineer, decompile or disassemble any portion of our Sites and Apps; and
9. Remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of our Sites and Apps.

If you fail to comply with the above rules, such failure will constitute a violation of these Terms, and in addition to any other rights or remedies we may have, we may immediately terminate your access to and use of our Sites and Apps.

You have the option to create an account to assist you in placing orders. You also can order and checkout as a guest without creating an account. But if you choose to do so, then you won't enjoy the benefits of having an account, which include the easy ability to track the status of orders and to save time when placing new orders. The choice is yours. If you do choose to create an account, please keep your username and password confidential; you are responsible for any access to your account using your username and password. We reserve the right to cancel or reject any account or any order at any time in our discretion.

Our Sites and Apps may direct you or link to sites, software or services owned or operated by third parties. We do not endorse or approve any such sites or services, and we have no responsibility for them. You are responsible for any business you choose to conduct with any other party. We encourage you to read the terms of service, privacy policy, and any other similar documents relating to any third-party site or service.

Other sites may provide links to our Sites and Apps with or without our authorization. We do not endorse such sites, and are not and will not be responsible or liable for any links from those sites to our Sites and Apps, any content, advertising, products or other materials available on or through such other sites, or any loss or damages incurred in connection therewith.

We will have the right, at any time and in our sole discretion, to block links to our Sites and Apps through technological or other means without prior notice.

While we are not obligated to review User Submitted Materials for copyright infringement, we are committed to protecting copyrights and expect users of our Sites and Apps to do the same. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under Australian & U.S. copyright law. If you believe in good faith that any material used or displayed on or through our Sites and Apps infringes your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on our Sites and Apps; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov for details. DMCA notices and counter-notices regarding our Sites and Apps should be sent to copyrightclaims@godaddy.com.

EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THESE TERMS OR OUR TERMS OF SALE, OUR PRODUCTS AND SERVICES, INCLUDING ALL MATERIALS INCORPORATED THEREIN, ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, NO WARRANTY IS MADE THAT OUR SITE OR APPS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR THAT THEY WILL OPERATE WITHOUT ERRORS. THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE AND OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NOTE: CERTAIN APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. NO STATEMENT OF OURS OR ANY OF OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES SHALL CREATE ANY WARRANTY OTHER THAN THOSE EXPRESSLY CONTAINED IN THESE TERMS.

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER WE NOR ANY OF OUR MANAGERS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, OR AFFILIATES (THE "STUARTMCKAY.COM.AU PARTIES") SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS, USE OR DATA), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, EVEN IF THE STUARTMCKAY.COM.AU PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS OR SERVICES, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SUBMISSIONS OR DATA, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT THE STUARTMCKAY.COM.AU PARTIES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHERMORE, THE STUARTMCKAY.COM.AU  PARTIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH PRODUCTS IS TO OBTAIN A REFUND, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH SERVICES IS TO STOP USING THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF THE LIK.COM PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS OR SERVICES SHALL BE THE ACTUAL PRICE PAID THEREFORE BY YOU. NOTE: CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

We appreciate your interest in improving our Sites and Apps; however, please note that any ideas or suggestions that you submit will be owned by us, and you hereby irrevocably assign any intellectual property rights in such ideas and suggestions to us. If you intend to retain any intellectual property rights in your ideas and suggestions (patent, trade secrets, copyright, trademark, etc.), please do not submit them to us without our prior written approval.

Our Sites and Apps are ©2020/2021 STUARTMCKAY.COM.AU  Fine Art Photography. All rights reserved. All trademarks and service marks on any of our Sites and Apps not owned by us are the property of their respective owners. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on any of our Sites and Apps should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.

Our Sites and Apps are controlled in Australia and operated in the United States by Godaddy PLC. Our Sites and Apps are not subject to the laws or jurisdiction of any state, country or territory other than that of the State of Queensland, Australia. We do not represent or warrant that any of our Sites and Apps, products, and/or services or any part thereof is appropriate or available for use in any particular jurisdiction. Those who choose to access STUARTMCKAY.COM.AU  do so on their own initiative and at their own risk, and are responsible for complying with all applicable laws, rules and regulations. We may limit the availability of our Sites and Apps, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion. If you order a product from us for shipment outside Australia, you are solely responsible for the cost of shipment and for compliance with all applicable laws, regulations, duties, tariffs or other costs or responsibilities for receipt of the product in such other country.

We may revise these Terms from time to time, as well as our Terms of Sale or Privacy Policy. We will notify you of changes to these Terms by posting the amended terms on the STUARTMCKAY.COM.AU website at least thirty (30) days before the effective date of the changes. If you have provided us with your email address, we will also notify you of material changes to these Terms by sending an email at least thirty (30) days before the effective date of the changes to the email address you most recently provided to us. We encourage you to keep the email address you provide to us current, and to promptly notify us of any changes to your email address, so that you may receive any notices we send to you regarding material changes to these Terms. If you do not agree to the new Terms, you should stop using the STUARTMCKAY.COM.AU website. Otherwise, the new terms will take effect after thirty (30) days. Continued use after changes take effect constitutes acceptance of the changes.

These Terms are governed by and construed in accordance with the laws of the State of Queensland, Australia, without regard to its conflict of law provisions. For any disputes not resolved by the arbitration provisions set forth in Section 14 below, you agree to submit to the exclusive jurisdiction of any State or Federal court located in the State of Queensland, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of these Terms, or the application thereof to any person, place or circumstance, will be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, such provision will be enforced to the maximum extent possible, or, if incapable of such enforcement, will be deemed to be deleted from these Terms, and the remainder of these Terms and such provisions as applied to other persons, places and circumstances will remain in full force and effect. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy. This is the entire agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between us with respect to such subject matter. These Terms are not assignable, transferable or sublicense able by you except with our prior written consent. These Terms may not be modified or amended except as set forth in the introductory section of these Terms. Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. If you have any questions or comments regarding these Terms, please contact: info@STUARTMCKAY.COM.AU .

Initial Dispute Resolution
We are available by email at info@stuartmckay.com.au  to address any concerns you may have regarding our products or services. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.

Terms of Service and Binding Arbitration Agreement
IF THE PARTIES DO NOT REACH AN AGREED UPON SOLUTION WITHIN A PERIOD OF THIRTY (30) DAYS FROM THE TIME INFORMAL DISPUTE RESOLUTION IS PURSUED PURSUANT TO SECTION 14.1 ABOVE, THEN EITHER PARTY MAY INITIATE BINDING ARBITRATION. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ITS FORMATION, PERFORMANCE AND BREACH), THE PARTIES’ RELATIONSHIP WITH EACH OTHER AND/OR YOUR USE OF THE SERVICES SHALL BE FINALLY SETTLED BY BINDING ARBITRATION ADMINISTERED BY A NOMINATED QUEENSLAND BASED ARBITRATOR ON A NON-CONFIDENTIAL BASIS IN ACCORDANCE WITH THE PROVISIONS OF ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AUSTRALIAN  ARBITRATOR (THE “AAA”), EXCLUDING ANY RULES OR PROCEDURES GOVERNING OR PERMITTING CLASS ACTIONS. THE ARBITRATOR, AND NOT ANY FEDERAL, STATE OR LOCAL COURT OR AGENCY, SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ALL DISPUTES ARISING OUT OF OR RELATING TO THE INTERPRETATION, APPLICABILITY, ENFORCEABILITY OR FORMATION OF THESE TERMS OF SERVICE, INCLUDING, BUT NOT LIMITED TO ANY CLAIM THAT ALL OR ANY PART OF THESE TERMS OF SERVICE IS VOID OR VOIDABLE. THE ARBITRATOR SHALL BE EMPOWERED TO GRANT WHATEVER RELIEF WOULD BE AVAILABLE IN A COURT UNDER LAW OR IN EQUITY. THE ARBITRATOR’S AWARD SHALL BE BINDING ON THE PARTIES AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. THE PROCEDURES AND RULES OF THE FEDERAL ARBITRATION ACT SHALL EXCLUSIVELY GOVERN THE INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION AND THE PARTIES HEREBY REJECT, WAIVE AND DISCLAIM THE APPLICATION OF ANY STATE ARBITRATION ACT.

THE AAA’S RULES GOVERNING THE ARBITRATION MAY BE ACCESSED AT https://www.ciarb.net.au  ( THE CHARTERED INSTITUTE OF ARBITRATORS AUSTRALIA) TO THE EXTENT THE FILING FEE FOR THE ARBITRATION EXCEEDS THE COST OF FILING A LAWSUIT. A REQUEST FOR PAYMENT OF FEES SHOULD BE SUBMITTED TO AAA ALONG WITH YOUR FORM FOR INITIATING THE ARBITRATION, AND STUARTMCKAY.COM.AU WILL MAKE ARRANGEMENTS TO PAY ALL NECESSARY FEES DIRECTLY TO AAA. IF THE ARBITRATOR FINDS THE ARBITRATION TO BE NON-FRIVOLOUS, WE WILL PAY ALL OF THE ACTUAL FILING AND ARBITRATOR FEES FOR THE ARBITRATION, PROVIDED YOUR CLAIM DOES NOT EXCEED $75,000. THE ARBITRATION RULES ALSO PERMIT YOU TO RECOVER ATTORNEY’S FEES IN CERTAIN CASES. THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.

Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 14 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Exception - Small Claims Court Claims
Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.

30 Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Section 14 by sending written notice of your decision to opt-out to the following address: Stuart McKay Fine Art Upstairs, The Marina 535 Capt.Cook Drve, 1770 Queensland Australia 4677. The notice must be sent within thirty (30) days of your first use of the Sites and Apps, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those Sections. If you opt-out of these arbitration provisions, stuartmckay.com.au  also will not be bound by them.

TERMS OF SALE

You are responsible for supplying all required information when submitting an order, including complete name, shipping and billing address (no P.O. Boxes), telephone number, valid e-mail address, and valid payment method. No responsibility is assumed for mis-delivery due to incorrect information supplied by a customer. StuartMcKay,com.au reserves the right to refuse or cancel any order at any time, in which case the customer’s sole remedy is a refund of any payment(s) made for such order.

It is not possible to change your order once it has been placed. The only exception is the delivery address, which can be changed if your order has not yet been shipped. To change the address for an unshipped order, please contact the stuartmcKay,com.au customer service via email at info@stuartmcKay,com.au 

Payment for any order must be made in advance at the time the order is placed. You may pay for your order by credit card, or by PayPal, or such other means as we may in future choose to accept. In the event of a stopped payment, disapproved charge or other failure to submit pre-payment, stuartmcKay,com.au shall have the right to cancel the order or, if already shipped, to seek payment and hold customer responsible for any and all costs of collection, including but not limited to reasonable solicitors’ fees, as well as to charge interest at the rate of 1.5% per month (or the highest allowable rate by law if less than 1.5% per month) until payment is made. 

You acknowledge and understand that (a) colors as seen on a computer monitor may not look the same as the colors as they appear on our manufactured product, and (b) no guarantee is made that any image as seen online will necessarily match exactly the colors on the final product.

All information submitted by you in connection with any order is governed by our Privacy Policy.

Applicable GST will be added to all orders submitted from Australian locations for delivery to an Australian address. GST is not applicable to over seas sales. Overseas taxes incurred at point of entry in accordance with local. taxation laws are paid by the purchaser of the goods.

Delivery time depends on the shipping option you choose when ordering. Please allow at least 2-6 weeks for your Limited Edition purchases or 7-10 business days for your retail product to be shipped, plus the shipping time based on the shipping option you selected. Title and risk of loss for any purchases pass to you upon our delivery to our nominated carrier or Postal service provider. If your print arrives damaged or broken, please contact us! We will happily replace it, but we’ll need a picture of the damage. Email us at stuartmcKay,com.au . Requests must be received within 10 days of delivery, and must include a copy of the shipping receipt and photographic proof of the damage for us to review and make a determination whether damage in fact occurred during shipping. If we approve your request for a replacement, we will not charge you for the new print, but you will be responsible for the costs of returning the damaged print to us, plus the cost of shipping the new print to you.

Shipping Problems/Damage
Notification of all shipping defects or damage must be made within 10 days of delivery and accompanied by the shipping receipt and photographic proof of the damage for us to review and make a determination whether damage in fact occurred during shipping.

Exclusion from Returns
If your use of our site or services has been terminated for violation of these Terms of Sale or our Terms of Use, we may refuse to accept any returns from you.

All orders and transactions also are subject to the stuartmcKay,com.au  Terms of Use policy, including, but not limited to, the limitations on damages and exclusions of warranties set forth therein. The Terms of Use also include provisions for arbitration of disputes and other important terms you should review. Descriptions, images, references, features, content, specifications, products, price and availability of any products or services are subject to change without notice, and our current prices can be found on our Sites and Apps. No responsibility is assumed for any errors in listed prices or other information, all of which we reserve the right to correct. Orders are not final or binding until accepted by us. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all purchase(s); and/or to refuse to provide any user with any product or service. stuartmcKay,com.au  is not responsible for any delay or failure in delivery due to causes beyond its control, including, but not limited to, acts of god, war, terrorism, embargo, quarantine, pandemic, accidents, fire, explosion, flood, severe weather, epidemic, riots, civil disturbance, unavailability of labor or transportation or any other similar or dissimilar cause. You are responsible for the proper and safe handling of any prints or other products you order from us. To the extent allowed by law, stuartmcKay,com.au's liability for any claim relating to any product purchased from us is the amount you paid for the product.