Terms & Conditions
The Terms and Conditions
These terms and conditions regulate the business relationship between you and us. By using Our Website in any way, or by buying from us, you agree to be bound by them.
No person under the age of 18 years may purchase Goods.
We are: Krystal Dew Ltd
Our address is: 349B Frankley Rd, New Plymouth, New Zealand
You are: a visitor to Our Website / our customer
The terms and conditions:
1. Definitions
In this agreement:
|
“Carrier” |
means any person or business contracted by us to carry Goods from us to you. |
|
“Consumer” |
means any individual who, in connection with this agreement, is acting for a purpose which is outside his business. |
|
“Content” |
means any content in any form published on Our Website by us or any third party with our consent. |
|
“Digital Artwork” |
means a Digital Image that has been created by an artist from a blank canvas using image editing software. |
|
“Digital Image” |
means any image or photograph presented on this website. Digital images may be either a Digital Artwork or a digital photograph or a photograph edited and merged together with other photographs or written text using photo editing software to make a single image file. |
|
“Goods” |
means any of the goods we offer for sale on Our Website, or, if the context requires, goods we sell to you. Goods includes Digital Images in either printed or electronic format. |
|
“Our Website” |
means any website of ours, and includes all web pages controlled by us. |
|
"Post" |
means display, exhibit, publish, distribute, transmit and/or disclose information, Content and/or other material on to Our Website, and the phrases "Posted" and "Posting" shall be interpreted accordingly. |
2. Interpretation
In this agreement unless the context otherwise requires:
2.1. a reference to a person is a reference to one or more individuals, whether or not formally in partnership, or to a corporation, government body, or other association or organisation.
2.2. these terms and conditions apply to all supplies of Goods by us to any customer. They prevail over any terms proposed by you.
2.3. any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.
2.4. in this agreement references to a party include references to a person to whom those rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that party.
2.5. the headings to the paragraphs and schedules (if any) to this agreement do not affect the interpretation.
2.6. a reference to an act or regulation includes new law of substantially the same intent as that act or regulation.
2.7. in any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party.
2.8. these terms and conditions apply in any event to you as a buyer or prospective buyer of our Goods and so far as the context allows, to you as a visitor to Our Website.
2.9. this agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.
3. Our contract with you
3.1. This agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties.
3.2. Each party acknowledges that, in entering into this agreement, he does not rely on any representation, warranty, information or document or other term not forming part of this agreement.
3.3. If you use Our Website in any way and make an order on behalf of another person you warrant that you have full authority to do so and you accept personal responsibility for every act or omission by you.
3.4. We do not guarantee that Goods advertised on Our Website are available.
3.5. We may change these terms from time to time. The terms that apply to you are those posted here on Our Website on the day you order Goods.
3.6. The price of Goods may be changed by us at any time. We will never change a price so as to affect the price charged to you at the time when you buy those Goods.
3.7. If in future, you buy Goods from us under any arrangement which does not involve your payment via Our Website; these terms still apply so far as they can be applied.
3.8. We do not sell the Goods in all countries. We may refuse to deliver the Goods if you live in a country we do not serve.
4. Acceptance of your order
4.1. Your order is an offer to buy from us. Nothing said or done by us is an acceptance of an order until we confirm acceptance in writing, referring to the order.
AND
4.2. At any time before the Goods are despatched, we may decline to supply the Goods to you without giving any reason.
4.3. If we are unable to supply all the Goods you order, we will offer you alternatives. If this happens you may:
4.3.1 accept the alternatives we offer;
4.3.2 cancel all or part of your order in which event you will be entitled to a refund of the price you have paid for the cancelled part of the order.
5. Price and Payment
5.1. The price payable for the Goods that you order is clearly set out on Our Website.
5.2. Prices include New Zealand goods and services tax (“GST”). If you show by your delivery address that you reside outside New Zealand, GST will be deducted at the payment point.
5.3. Bank charges by the receiving bank on payments to us will be borne by us. All other charges relating to payment in a currency other than New Zealand dollar will be borne by you.
5.4. Any information given by us in relation to exchange rates are approximate only and may vary from time to time. All prices are defined in New Zealand dollars. The actual exchange rate applied against your credit card for foreign currency transactions may vary from exchange rates displayed or used on this website.
5.5. If, by mistake, we have under-priced Goods, we will not be liable to supply those Goods to you at the stated price, provided that we notify you before we dispatch it to you.
5.6. The price of the Goods does not include the delivery charge which will be charged at the rates applicable at the date you place your order and which will be displayed on a page of Our Website before we ask you to pay.
5.7. If we owe you money (for this or any other reason), we will credit your credit or debit card as soon as reasonably practicable but in any event no later than 15days from the date when we accept that repayment is due.
6. Security of your credit or debit card
We take care to make Our Website safe for you to use.
6.1. Card payments are not processed through pages controlled by us. We use one or more online payment service providers who will encrypt your card or bank account details in a secure environment.
6.2. If you have asked us to remember your credit card details in readiness for your next purchase or subscription, we will securely store your payment details on our systems. These details will be fully encrypted and only used to process your automatic monthly payments or other transactions which you have initiated.
7. Delivery and pick up
7.1. Goods are typically delivered within 12 businessdays from the day you place an order to purchase the Goods. Unless specifically stated on your order confirmation as available from stock, goods will be manufactured to order and delivered directly from our supplier to you.
7.2. Deliveries will be made by the Carrier to the address stipulated in your order. You must ensure that someone is present to accept the delivery.
7.3. If we are not able to deliver your Goods within 12 business days of the date of your order, we shall notify you by e-mail of a revised delivery date.
7.4. We may deliver the Goods in instalments if they are not all available at the same time for delivery. We use different suppliers to print digital images in different sizes and formats hence your order maybe split up and shipped separately from our various suppliers.
7.5. Goods are sent at our risk until delivered to the address stipulated in your order and either
7.5.1 signed for by you or by any other person at the address you have given to us or
7.5.2 confirmed as delivered to the address stipulated in your order by the Carrier
7.6. If we agree with you to deliver on a particular day or at a particular time, we will do our best to comply. But no time given is to be treated as contractual. We are not liable to you for any expense or inconvenience you incur on account of delayed delivery or non-delivery.
7.7. Time for delivery specified on the order, if any, is an estimate only and time shall not be of the essence.
7.8. Where goods are available from stock we are happy for you to pick up Goods from our premises provided you make an appointment in advance and payment has been received into our bank.
7.9. If you pick up Goods from our premises then:
7.9.1 Goods are at your risk from the moment they are picked up by you or your Carrier from our premises;
7.9.2 you agree that you are responsible for everything that happens after you take possession of the Goods, both on and off our premises, including damage to property of any sort, belonging to any person.
8. Foreign taxes and duties
8.1. If you are not in New Zealand, we have no knowledge of, and no responsibility for, the laws in your country.
8.2. You are responsible for purchasing Goods which you are lawfully able to import and for the payment of import duties and taxes of any kind levied in your country.
9. Liability for subsequent defects
9.1. We will repair or replace Goods which fail to comply with the provisions of the Fair Trading Act 1986 and the Consumer Guarantees Act 1993 or which show a defect. If you claim that the item is defective, the following conditions apply:
9.1.1 the defect must be reported to us (contact us) within four weeks of becoming apparent, for printed Digital Images this shall be interpreted as being four weeks from delivery to you for any printing, assembly or shipping damage defects,
9.1.2 the defect results only from faulty design, faulty manufacture or shipping damage;
9.1.3 you provide us with a clear written description and photographs of the defects,
9.1.4 if so instructed by us, you have returned the defective Goods to us. Goods should only be returned to us on our direct instruction.
9.2. If we agree that we are liable, we will refund the cost of return carriage if applicable, and will repair or replace the Goods free of charge.
9.3. If we repair or replace the Goods, you have no additional claim against us either under this agreement or by statute or common law, in respect of the defect.
10. Goods return
These provisions apply in the event that you return any Goods to us for any reason:
10.1. Please choose your purchase carefully. We do not accept returns unless:
10.1.1 there was a defect in the Goods at the time of delivery to you or
10.1.2 a defect due to a manufacturing fault (does not include fair wear and tear or fading due to UV exposure) becomes apparent within 12 months of the Goods being delivered to you or
10.1.3 we have delivered the wrong Goods to you or
10.1.4 we have otherwise agreed in correspondence that you may return them.
10.2. Goods must not be returned to us until
10.2.1 You have reported the defect to us as per clause 9 and
10.2.2 We have specifically instructed you to return the goods to us
10.3. The Goods must be returned to us within 15 days of our instruction that they be returned.
10.4. So far as possible, Goods should be returned:
10.4.1 with both Goods and all packaging as far as possible in their original condition;
10.4.2 securely wrapped;
10.4.3 clearly labelled with your customer name and order number.
10.4.4 at your risk and cost.
10.5. In returning faulty Goods please enclose with it a note clearly stating the fault and when it arose.
10.6. If we agree that the Goods are faulty, we will:
10.6.1 refund the cost of return carriage but only if we have instructed that the Goods be returned to us;
10.6.2 repair or replace the Goods as we choose.
10.7. If we are unable to replace the Goods for any reason then we will provide you with a refund for the defective Goods.
11. Disclaimers
11.1. The law differs from one country to another. This paragraph applies so far as the applicable law allows.
11.2. All the conditions, warranties or other terms implied by the law of any county other than New Zealand are excluded from this agreement to the extent permitted by law.
11.3. We or our Content suppliers may make improvements or changes to Our Website, the Content, or to any of the Goods, at any time and without advance notice.
11.4. You are advised that Content may include technical inaccuracies or typographical errors. This is inevitable in any large website. We would be grateful if you bring to our immediate attention, any that you find.
11.5. In choosing to purchase a Digital Image from our website you accept that the printed image may appear differently on printed medium than it does on your computer screen. We make all reasonable effort to accurately describe and display Digital Images however any image presented on a backlit LED screen will always have different appearance to a printed image with every screen having different settings for colour hue, saturation and brightness.
11.6. You are entirely responsible for the selection and installation of all wall fixings used to hang printed Digital Images. We provide detailed descriptions of the different framing and mounting options on our website. By ordering a Digital Image you confirm that you fully understand the product description of the item you have ordered and take full responsibility for providing suitable wall fixings.
11.7. We give no warranty and make no representation, express or implied, as to:
11.7.1 the quality of the Goods;
11.7.2 any implied warranty or condition as to merchantability or fitness of the Goods for a particular purpose;
11.7.3 the correspondence of the Goods with any description;
11.7.4 the adequacy or appropriateness of the Goods for your purpose;
11.7.5 the truth of any Content on Our Website;
11.7.6 non-infringement of any right.
11.8. We are not liable in any circumstances for special, indirect or consequential loss or any damages whatsoever resulting from loss of use, loss of data or loss of revenues or profits, whether in an action of contract, negligence or otherwise, arising out of or in connection with your use of Our Website or the purchase of Goods.
11.9. Except in the case of liability for personal injury or death, our liability under this contract is limited, to the maximum extent permitted by law, to the value of the Goods you have purchased.
12. Your account with us
12.1. You agree that you have provided, and will continue to provide accurate, up to date, and complete information about yourself. We need this information to provide you with the Goods.
12.2. If you use Our Website, you are responsible for maintaining the confidentiality of your account and password and for preventing any unauthorised person from using your account.
12.3. You agree to accept responsibility for all activities that occur under your account or password. You should tell us immediately if you believe some person has accessed your account without your authority and also log in to your account and change your password.
13. Restrictions on what you may Post to Our Website
You agree that you will not use or allow anyone else to use Our Website to Post Content which is or may:
13.1. be malicious or defamatory;
13.2. consist in commercial audio, video or music files;
13.3. be illegal, obscene, offensive, threatening or violent;
13.4. be sexually explicit or pornographic;
13.5. be likely to deceive any person or be used to impersonate any person, or to misrepresent your identity, age or affiliation with any person;
13.6. give the impression that it emanates from us or that you are connected with us or that we have endorsed you or your business;
13.7. solicit passwords or personal information from anyone;
13.8. be used to sell any goods or services or for any other commercial use;
13.9. include anything other than words (i.e. you will not include any symbols or photographs) except for a photograph of yourself in your profile in such place as we designate;
13.10. provide links to any of the material specified above, in this paragraph;
14. Your Posting: restricted content
In connection with the restrictions set out below, we may refuse or edit or remove a Posting which does not comply with these terms.
In addition to the restrictions set out above, a Posting must not contain:
14.1. hyperlinks, other than those specifically authorised by us;
14.2. keywords or words repeated, which are irrelevant to the Content Posted;
14.3. the name, logo or trademark of any organisation other than yours;
14.4. inaccurate, false, or misleading information.
15. How we handle your Content
15.1. Our privacy policy is strong and precise. It complies fully with current law.
15.2. If you Post Content to any public area of Our Website it becomes available in the public domain. We have no control over who sees it or what anyone does with it.
15.3. We need the freedom to be able to publicise our Services and your own use of them. You therefore now irrevocably grant us the right and licence to edit, copy, publish, distribute, translate and otherwise use any Content that you place on Our Website, in public domains and in any medium. You represent and warrant that you are authorised to grant all such rights.
15.4. We will use that licence only for commercial purposes of the business of Our Website and will stop using it after a commercially reasonable period of time.
15.5. You agree to waive of your right to be identified as the author and your right to object to derogatory treatment of your work as provided in the Copyright Act 1994 as amended.
15.6. Posting content of any sort does not change your ownership of the copyright in it. We have no claim over it and we will not protect your rights for you.
15.7. You understand that you are personally responsible for your breach of someone else’s intellectual property rights, defamation, or any law, which may occur as a result of any Content having been Posted by you.
15.8. You accept all risk and responsibility for determining whether any Content is in the public domain and not confidential.
16. Removal of offensive Content
16.1. For the avoidance of doubt, this paragraph is addressed to any person who comes on Our Website for any purpose.
16.2. We are under no obligation to monitor or record the activity of any customer for any purpose, nor do we assume any responsibility to monitor or police Internet-related activities. However, we may do so without notice to you and without giving you a reason.
16.3. If you are offended by any Content, the following procedure applies:
16.3.1 Your claim or complaint must be submitted to us in the form available on Our Website, or contain the same information as that requested in our form. It must be sent to us by post or email.
16.3.2 we shall remove the offending Content as soon as we are reasonably able;
16.3.3 after we receive notice of a claim or complaint, we shall investigate so far as we alone decide;
16.4. We may re-instate the Content about which you have complained or not.
16.5. In respect of any complaint made by you or any person on your behalf, whether using our form of complaint or not, you now irrevocably grant to us a licence to publish the complaint and all ensuing correspondence and communication, without limit.
16.6. You now agree that if any complaint is made by you frivolously or vexatiously you will repay us the cost of our investigation including legal fees, if any.
17. Security of Our Website
If you violate Our Website we shall take legal action against you.
You now agree that you will not, and will not allow any other person to:
17.1. modify, copy, or cause damage or unintended effect to any portion of Our Website, or any software used within it.
17.2. link to Our Website in any way that would cause the appearance or presentation of the site to be different from what would be seen by a user who accessed the site by typing the URL into a standard browser;
17.3. download any part of Our Website, without our express written consent;
17.4. collect or use any product listings, descriptions, or prices;
17.5. collect or use any information obtained from or about Our Website or the Content except as intended by this agreement;
17.6. aggregate, copy or duplicate in any manner any of the Content or information available from Our Website, other than as permitted by this agreement or as is reasonably necessary for your use of Our Website;
17.7. share with a third party any login credentials to Our Website.
17.8. Despite the above terms, we now grant a licence to you to:
17.8.1 create a hyperlink to Our Website for the purpose of promoting an interest common to both of us. You can do this without specific permission. This licence is conditional upon your not portraying us or any product or service in a false, misleading, derogatory, or otherwise offensive manner. You may not use any logo or other proprietary graphic or trademark of ours as part of the link without our express written consent.
17.8.2 you may copy the text of any page for your personal use in connection with the purpose of Our Website.
18. Indemnity
You agree to indemnify us against all costs, claims and expense arising directly or indirectly from:
18.1. your failure to comply with the law of any country;
18.2. your breach of this agreement;
18.3. any act, neglect or default by any agent, employee, licensee or customer of yours;
18.4. a contractual claim arising from your use of the Goods;
18.5. a breach of the intellectual property rights of any person.
19. Intellectual Property
19.1. We will defend the intellectual property rights in connection with our Goods and Our Website, including copyright in the Content whether provided by us or by any other content provider (including copyright in text, graphics, logos, icons, images, audio clips, digital downloads, data, and software).
19.2. Except as set out below, you may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part.
19.3. You may not use our name or logos or trademarks or any other Content on any website of yours or that of any other person.
19.4. Subject to the other terms of this agreement, you may download or copy Content only for your own personal use, provided that you maintain all copyright and other notices contained in it. You may not store electronically any significant portion of any Content.
20. Miscellaneous matters
20.1. When we communicate with you we do so by email. You agree that email communications are contractually binding in the same way as properly signed and dated paper sent by post.
20.2. Where we provide goods or serviceswithout specific charge to you, then it (or they) is deemed to be provided free of charge, and not to be associated with any other Goods for which a charge is made. Accordingly, there is neither contractual nor other obligation upon us in respect of those goods or that service.
20.3. If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
20.4. The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.
20.5. No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
20.6. Any communication to be served on either party by the other shall be delivered by hand or sent by first class post or recorded delivery or by e-mail.
|
It shall be deemed to have been delivered: |
|
20.7. In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
20.8. This agreement does not give any right to any third party.
20.9. Neither party shall be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond his reasonable control.
20.10. In the event of any conflict between any term of this agreement and the provisions of the constitution of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.
20.11. The validity, construction and performance of this agreement shall be governed by the laws of New Zealand.
21. Photo License Agreement
21.1. If you have purchased a digital copy of a Digital Image from our website then it shall be subject to the license agreement contained in this clause 21. If you are using the Digital Image for personal use only as a private individual then we grant you a Personal License as per section 21.3 of this agreement. If you are purchasing the Digital Image for any form of commercial use or for use by a club or non profit organisation then we grant you a Commercial License as per section 21.4 of this agreement.
21.2. By placing an order with us for a digital copy of any Digital Image you confirm your full agreement with these license conditions. The licence is between Krystal Dew Ltd and the person or company named on the purchase order and may not be reassigned to any third party without our prior written permission.
21.3. Personal License
21.3.1 We grant you a non exclusive perpetual personal use license to use the Digital Images listed on the purchase order subject to the following conditions.
21.3.2 This license is for personal use only. Personal use means non-commercial use of the Digital Images for display on personal websites and computers, or making image prints or video copies for your own personal use or for the use of your immediate family only. The Digital Image may not be used in any way whatsoever in which you charge money, collect fees, or receive any form of remuneration. The Digital Image may not be used in advertising. The Digital Image may not be resold, relicensed, sub-licensed or distributed in any way.
21.3.3 Title and ownership, and all rights now and in the future, of and for the Digital Image remain exclusively with Krystal Dew Ltd.
21.3.4 There are no warranties, express or implied. The Digital Image is provided 'as is.'
21.3.5 Krystal Dew Ltd will not be liable for any third party claims or incidental, consequential or other damages arising out of this license or your use of the Digital Image.
21.4. Commercial License
21.4.1 We grant you a perpetual, non-exclusive, non-transferable, worldwide license to use the Digital Images listed on your order for permitted commercial purposes, defined as:
21.4.2 Use in advertising, promotions, brochures or packaging
21.4.3 Use on a commercial website for promotional or informative purposes
21.4.4 Use on promotional or commercial posters, flyers or tearsheets (but not for resale)
21.4.5 Use in magazines, books, newspapers or other printed publications
21.4.6 Use to create a derivative work for permitted commercial purposes as defined in clauses 21.4.2 to 21.4.5.
21.4.7 You may not resell, relicense or redistribute the Digital Image in either digital or printed format without our express written permission.
21.4.8 You may not use the Digital Images or any derivative work to sell or distribute prints, posters or cards for commercial gain.
21.4.9 You may not resell or redistribute any derivative work created from the Digital Images either in digital or printed format without our express written permission.
21.4.10 The Digital Image may not be used in a pornographic, obscene, illegal, immoral, libellous or defamatory manner.
21.4.11 The Digital Images may not be incorporated into trademarks, logos, or service marks.
21.4.12 The Digital Images may not be made available for download.
21.4.13 Krystal Dew Ltd retains all rights, license, copyright, title and ownership of the Digital Images.
21.4.14 There is no warranty, express or implied, with the purchase of the Digital Images. Krystal Dew Ltd will not be liable for any claims, or incidental, consequential or other damages arising out of this license or of your use of the Digital Images.
21.5. Refunds. Please select your images carefully. Once a digital copy of a Digital Image has been made available to you either via download or email, we will not give any refunds.
21.6. Images displayed on our website (including thumbnail images and preview images) are made available to you for evaluation purposes only. It is an infringement of our Terms and Conditions and of Copyright law to use Web Display Images for any final application or End Use without the purchase of a License and the payment of a License Fee.
21.7. Specifically the following uses of Web Display Images are prohibited (in the absence of a License):
21.7.1 Displaying a Web Display Image on any internet website, intranet or digital presentation
21.7.2 Use of a Web Display Image in a TV Commercial or film "storyboard";
21.7.3 Use of a Web Display Image in layouts for concepts to show a photographer or other visual artist how you want a commissioned photograph or image to look; or
21.7.4 Any other use of a Web Display Image where there is no potential that the Image will be licensed.
21.8. We have made all reasonable effort to ensure the accuracy, correctness and reliability of the images and any metadata contained in the Digital Image file but make no representations or warranties as to accuracy, correctness or reliability of the Digital Image content. While we take all reasonable care to correctly identify, caption and orientate the Digital Images we do not accept any liability for loss or damage incurred by you or any third party caused by any errors.