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1.1 All Artwork supplied by Richard Higham and his employees, contractors and agents (“Artist”) to the customer (“Customer”) are sold subject to these terms and conditions of sale (“Terms”).
1.2 The Customer acknowledges that by purchasing any Artwork from the Artist or using or otherwise accessing the Artist’s website www.richardhighamartist.co.nz (“Website”), the Customer has read, understood and accepted the Terms and agrees to be bound by the Terms.
1.3 The Artist reserves the right to amend these Terms in any manner and at any time and will notify the Customer of any amendments to the Terms by uploading the amended Terms to the Website. If there is no objection by the Customer to the amended terms or the Customer continues to use the Website or order Artwork from the Artist after any such amendment, the Customer is deemed to have agreed to the amended Terms.
1.4 No variation, modification or substitution for these Terms is binding on the Artist unless specifically accepted by the Artist in writing.
1.5 The parties acknowledge and agree that for the purposes of these Terms, any reference to “Artwork” means all artwork and any other products supplied by the Artist to the Customer from time to time for sale to, and purchase by, the Customer.
2.1 If a Customer is under the age of 18, the Customer must only use the Website with parental or caregiver consent, provided that the Customer’s parent or caregiver is over the age of 18 and has accepted the Terms on behalf of the Customer.
2.2 As a condition of use of the Website, the Customer agrees:
(a) Not to disrupt activity online;
(b) To ensure that the Website is not used for any illegal activity or which may expose the Artist to potential litigation including (but not limited to) copyright and trade mark infringement, the publication of obscene or defamatory information or material, the publication of information or material that infringes the rights of third parties, or the publication of information or material that is likely to be misleading or deceptive or otherwise breaches the Fair Trading Act 1986;
(c) Not to use anybody else’s computer system, communications services or data, including by hacking or by attempting to circumvent user authentication or other security measures;
(d) Not to post or use any software or device which may facilitate a continued connection or degrade or impede the service of another user, such as pinging, mail bombs or war dialling;
(e) Not to run network scanning software or use open relay to distribute messages; and
(f) Not to introduce anything harmful or destructive (such as viruses, worms, Trojan Horses, time bombs or bots) to, or interfere in any way with, the Artist’s or anyone else’s computer system or communications services.
3.1 Where the Customer wishes to request further information about any Artwork, the Customer must do by contacting the Artist directly using the contact details provided on the Website.
3.2 The Artist shall have absolute discretion to decline the Customer’s request for further information on Artwork for any reason whatsoever without reference to the Customer. The Artist may require the provision of additional information or verifications before providing the Customer with the further information.
4.1 Where the Customer proceeds to acquire Artwork from the Artist, the terms and conditions relating to the Customer’s acquisition and use of the Artwork are those specifically set out in these Terms, unless otherwise expressly agreed by the Artist in writing.
4.2 The Artist is entitled to:
(a) Discontinue supply of all or any of the Artwork; and
(b) Add to or substitute Artwork.
4.3 The Artist will give Customers notice of any such changes referred to in clause 4.2 by updating the Website.
4.4 The Artist reserves the right to correct any errors, inaccuracies or omissions contained in any description of the Artwork on the Website or in any other information on the Website without prior notice to the Customer.
5.1 The Customer must place orders for the Artwork to the Artist in writing or via the Website.
5.2 Orders for Artwork are subject to the Artist’s approval and acceptance. All orders are subject to the availability of the Artwork.
5.3 In the event that an order is declined pursuant to clause 5.2, the Artist shall refund to the Customer any payment for the Artwork to the credit card or account used for such payment.
5.4 The Customer cannot cancel any order for Artwork (whether fully or in part) unless the Artist has agreed in writing to the cancellation. The Customer cannot cancel any special indent order for Artwork (being an order for Artwork that the Artist does not keep readily available in stock and where the Artist has specifically ordered the Artwork from a supplier on the Customer’s instruction).
6.1 The price payable for the Artwork ordered will be either:
(a) Where the Customer orders from the Website, the price specified on the Website; or
(b) In all other cases, the price specified by the Artist in writing.
6.2 All prices for the Artwork shall be in $NZD and shall be inclusive of GST (unless otherwise stated). The Artist may correct any clerical errors or omissions in any quotation, correspondence, invoice or on the Website at any time.
6.3 The Artist reserves the right to vary the price for Artwork. The Artist will notify the Customer of any variations to the prices specified by updating the Website.
6.4 Where a quotation is given by the Artist to the Customer for Artwork:
(a) Subject to clause 6.5, the quotation will be valid for 20 working days from the date of issue and thereafter will be deemed to be withdrawn; and
(b) No variation of the quotation is permitted unless the Artist has agreed in writing to the variation.
6.5 The Artist reserves the right to withdraw or vary any quotation at any time before the Customer accepts the quotation in writing.
6.6 To the extent permitted by law, the Artist reserves the right to reasonably vary the price payable for the Artwork by giving the Customer notice in writing where there has been an increase in the cost of supplying or delivering the Artwork or where any circumstances described in clause 17 of the Terms apply in respect of the Artwork.
7.1 Unless the Artist otherwise agrees in writing, the Customer must pay the full price for the Artwork and any delivery costs upon placing an order for the Artwork on the Website. In any case, the Artist must receive payment in full for the Artwork and delivery costs prior to shipment of the Artwork.
7.2 The Customer must make all payments to the Artist without delay, counter-claim, abatement, deduction or set off.
7.3 Without prejudice to the Artist’s other rights and remedies, if any amounts due to the Artist are not paid by the Customer by the due date for payment or the Customer breaches any of these Terms, The Artist may:
(a) Retain the Artwork until full payment for the Artwork has been received;
(b) Suspend or terminate any account the Customer holds with the Artist, at which time any amounts the Customer owes to the Artist will become due and payable;
(c) Charge the Customer interest, payable on demand, on any overdue amounts at the rate of 12% per annum, calculated daily from the due date for payment until payment is received in full; and
(d) Recover from the Customer all costs incurred by the Artist arising from any breach of these Terms (including, without limitation, legal costs, service costs and costs of recovering unpaid amounts).
8.1 Risk passes to the Customer on delivery of the Artwork.
8.2 Delivery shall be deemed complete when the Artist gives possession of the Artwork directly to the Customer, or possession of the Artwork is given to a carrier, courier, or other bailee for the purposes of transmission to the Customer.
8.3 The Customer is responsible for insuring all Artwork from the time of delivery.
8.4 Where the Artist has accepted an order, the Artist will use its reasonable endeavours to arrange supply to the Customer of the Artwork by the delivery date agreed in writing between the Artist and the Customer or within the estimated delivery time as specified on the Website.
8.5 The Customer shall advise the Artist in writing if an order is not received within 10 working days from the date that the order is placed with the Artist.
8.6 If several pieces of Artwork are ordered by the Customer at the same time, the Artist may, at its discretion, deliver the Artwork by instalments.
8.7 The Artist is not liable to the Customer for any failure to deliver, or for any delay in the delivery of, the Artwork. Without limiting the foregoing, the Artist is not liable for failure to deliver, or for any delay in the delivery of, the Artwork in the following circumstances:
(a) Where payment for the Artwork by the Customer has not been received by the Artist on the due date for payment; or
(b) Those circumstances described in clause 17 of these Terms.
9.1 The Artist retains ownership of and the legal and equitable title in all Artwork agreed to be supplied by the Artist until the Customer has paid the full price for the Artwork and any delivery costs and all other amounts owing by the Customer to the Artist.
10.1 The Customer will inspect the Artwork on delivery and shall within three working days after delivery notify the Artist in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description and the Customer shall return the defective Artwork to the Artist at the Customer’s cost unless otherwise agreed by the Artist in writing. If the Customer does not notify the Artist within three working days after delivery, then the Customer shall be deemed to have accepted the Artwork.
10.2 Where the Artist has agreed in writing that the Customer is entitled to reject the Artwork, the Artist will, at the Artist’s discretion, replace the Artwork with Artwork of similar or identical type, or refund the price the Customer has paid for the Artwork (excluding delivery costs) either, at the Artist’s discretion, in the form of cash. The Artist’s liability is limited to either, at the Artist’s discretion, the replacement of the Artwork or the price the Customer has paid for the Artwork (excluding delivery costs) either, at the Artist’s discretion, in the form of store credit or in cash.
10.3 Where the Artist has agreed to replace the Artwork, the Customer shall pay to the Artist the delivery costs required to deliver the replacement Artwork, unless otherwise agreed by the Artist in writing.
10.4 Returns of Artwork will only be accepted by the Artist if:
(a) The Customer has complied with the provisions of clause 10.1 or the Artist has agreed in writing to the return of the Artwork;
(b) The Artwork is returned at the Customer’s cost within 10 working days of the date of delivery;
(c) The Artwork is returned with the original invoice/packing slip or the number and date of the invoice or packing slip are enclosed; and
(d) The Artwork is returned in the condition in which it was delivered, is unused and is in original packaging.
11.1 Except as provided in the Consumer Guarantees Act 1993 (if applicable) and by any third party manufacturer’s written warranty (if any), the Artist makes no representation, condition, warranty or promise, express or implied, in respect of the Artwork supplied to the Customer.
11.2 No agent or representative of the Artist is authorised to make any representations, statements, warranties, conditions or agreements not expressly specified in the Terms and the Customer agrees that the Artist is not in any way bound by any such representations, statements, warranties, conditions or agreements.
11.3 Where the Customer purchases Artwork for a particular purpose, it is the Customer’s sole responsibility to ensure that the Artwork will be suitable for the Customer’s purpose, and the Artist shall have no liability whatsoever in the event that the Artwork is not fit for the Customer’s purpose, notwithstanding any statements made to the Customer by the Artist or its officers or employees. The Customer and the Artist agree that section 137 of the Commercial and Contract Law Act 2017 does not apply.
11.4 Where the Customer is in trade and acquires the Artwork in trade, then the Artist and the Customer agree to contract out of the provisions of the Consumer Guarantees Act 1993 and accordingly the provisions of the Consumer Guarantees Act 1993 do not apply. Except to the extent permitted by law, nothing in the Terms is intended to have the effect of contracting out of provisions of the Consumer Guarantees Act 1993 in respect of a Customer that is a consumer (as that term is defined in the Consumer Guarantees Act 1993) where that Customer is not in trade and these Terms are amended to the extent necessary to give effect to that intention. In this clause 11.4, “in trade” has the meaning given to it in the Consumer Guarantees Act 1993.
12.1 The information provided on the Website, including any suggestions made by the Artist regarding the selection or use of a particular Artwork, is supplied on the condition that the Customer will make their own determination as to the fitness or suitability of such information or Artwork for their purposes prior to use of the Website or the purchase of any Artwork.
12.2 The Artist makes no warranties or representations about the accuracy or completeness of the Website, its content or the content of any website “hypertext linked” to or from the Website.
13.1 Except as provided in the Consumer Guarantees Act 1993 (if applicable) and under these Terms, the Artist shall not be liable for:
(a) Any loss of any kind whatsoever suffered by the Customer by reason of any breach of any of the Artist’s obligations regarding the supply of Artwork or in contract, tort (including negligence) or otherwise including without limitation any indirect, special or consequential loss or damage of any kind whatsoever including, without limitation, loss of revenue, loss of profits, loss of any contract, failure to realise expected profits or savings and any other commercial or economic loss of any kind that may be suffered by the Customer;
(b) Any damage to the Artwork due to external causes, including accident, abuse, misuse, usage not in accordance with instructions for the Artwork in any user guide, manual or other directions;
(c) Any faults, defects or damages to Artwork caused by the modifying or adding to Artwork by the Customer or any person or entity;
(d) Any damages, losses or liabilities that result from the use of, or inability to use, the Website, including, but not limited to, any failure of performance, error, omission, interruption, defect, delay in operation of transmission, computer virus or line failure or any special or consequential damages that result from the use of, or the inability to use, the Website;
(e) Any damages or losses caused by the Customer’s, representatives, employees, agents, customers or any other persons whatsoever (whether similar to the foregoing or not); and
(f) Any loss, damage or injury caused to the Customer’s employees, agents, contractors, customers or other persons and the Customer will indemnify the Artist against any claim by such persons.
13.2 To the extent permitted by law, the Artist’s liability arising out of any claim by the Customer under or in relation to these Terms or otherwise shall not in any event exceed the price invoiced to the Customer for the Artwork giving rise to the claim or $2000.00, whichever is the lesser amount.
14.1 The Customer warrants that it has the full authority to order or request the Artist to deliver the Artwork and the Customer shall be bound by all such orders and requests.
14.2 The Customer agrees to protect, indemnify, defend and hold harmless the Artist absolutely from and against any and all damages, claims, losses, demands, liabilities (including vicarious liability), injuries, suits, actions, judgements, costs and expenses of any kind whatsoever (including reasonable legal fees and service costs) arising out of or in any way connected with the Customer’s breach of the Terms.
15.1 Unless otherwise specified, the Artist is the owner of and possesses all rights in respect of the copyright in the Artworks, the content appearing on the Website including the text, site design, logos, trade marks, graphics, icons, button icons, audio clips, software and images, as well as the collection, assembly and arrangement of those items.
15.2 The Customer is granted permission to electronically copy and to print hard copy portions of the Website for personal, private and non-commercial use only. Any other use of the content on the Website (including reproduction for purposes other than that noted above, or any modification, distribution, or republication of any content on the Website) without the Artist’s prior written permission is strictly prohibited.
15.3 All rights not expressly granted herein are reserved. Any unauthorised use of the content appearing on the Website may violate copyright, trade mark and other applicable laws and could result in criminal or civil penalties.
15.4 Content from the Website may not be copied, reproduced, distributed, modified, published, uploaded, posted or transmitted in any way without the Artist’s prior written consent.
15.5 Modification, distribution, or use of the content contained in the Website for any purposes other than for the Customer’s personal use directly violates the Artist’s intellectual property rights. The content contained within this site is copyrighted and protected by world-wide copyright laws and treaty provisions (even if it is not stated to be so protected) and is provided for lawful purposes only.
16.1 In connection with the use of the Website and purchase of Artwork, the Customer shall be subject to the Artist’s Privacy Policy. The terms of this policy can be accessed by clicking here.
17.1 The Artist shall not be liable for any breach of these Terms in the event of any unforeseen circumstances, being any failure, delay or breach caused by strike, industrial dispute or disturbances, natural disaster, shortage or unavailability of stocks of Artwork or raw materials, failure of any of the Artist’s suppliers to supply the products necessary to create the Artwork, delay by any of the Artist’s suppliers in supplying the products necessary to create the Artwork, delay in transit, import or export restrictions, legislative, governmental or other prohibition or restrictions, fire, flood, disease, pandemics, hostilities, commotions or any other causes whatsoever (whether similar to the foregoing or not) which is beyond the Artist’s reasonable control (“Force Majeure Event”).
17.2 If the Artist considers that a Force Majeure Event has occurred and is unable to perform its obligations as a result of a Force Majeure Event, it will promptly notify the Customer of that fact and may suspend its obligations under the Terms. Any suspension of performance by the Artist under these Terms will be limited to the period during which the relevant event continues.
17.3 Where the Artist’s obligations have been suspended pursuant to clause 17.2 for a period of 30 consecutive days or more, the Artist may terminate these Terms by giving written notice to the Customer.
17.4 In event of termination pursuant to clause 17.3, the Artist will refund the price that the Customer has paid to the Artist for the Artwork as at the date of termination, less any amounts as may be required to cover the Artist’s reasonable costs and expenses.
18.1 Either party may terminate these Terms with immediate effect if the other party:
(a) Is in breach of these Terms; or
(b) Becomes insolvent, fails to pay its debts as they fall due, ceases to carry on business or a resolution is passed or proceedings have commenced to have the party wound up or a receiver, statutory manager, liquidator or any other administrator is appointed in respect of the party or any of its assets.
18.2 Without prejudice to the Artist’s other rights and remedies, in the event of termination of these Terms pursuant to clause 18.1 the Customer shall pay the Artist immediately all amounts due and owing by the Customer to The Artist.
18.3 Termination shall not prejudice or affect the accrued rights or claims of either party.
19.1 If any dispute arises in connection with these Terms, the parties shall within 5 working days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
19.2 If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation. To initiate the mediation a party must give notice in writing (“Mediation Notice”) to the other party to the dispute requesting mediation. The mediation will start not later than 20 working days after the date of the Mediation Notice.
19.3 No party may commence any court proceedings in relation to any dispute arising out of these Terms until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation.
19.4 Nothing in this clause will prevent a party from obtaining urgent interlocutory relief in respect of a breach or suspected breach of these Terms.
20.1 The Terms shall be governed by and construed in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.
20.2 Except where otherwise agreed in writing, the Terms set out the entire agreement and understanding between the parties in relation to the subject matter of the Terms and merges all prior discussions between them and neither of the parties will be bound by any conditions, warranties or representations regarding the subject matter of the Terms other than as expressly provided in the Terms.
20.3 Notices in writing must be addressed to the other party and delivered by hand or by receipted delivery system.
20.4 Any waiver or failure to execute any rights by the Artist shall not be deemed to be a waiver of any further or other right of the Artist in respect of the Customer. No waiver is effective unless it is in writing.
20.5 No party may assign its rights or obligations under these Terms without the other party’s consent.
20.6 The headings to the clauses of these Terms are for ease of reference only and will not affect the interpretation or construction of these Terms.
20.7 Each and every covenant, obligation or restriction in the Terms and each part of them is deemed a severable and independent covenant, obligation and restriction. In the event of the invalidity of any covenant, obligation and restriction of the Terms such invalidity will not affect the enforceability of any other covenant, obligation and restriction of the Terms.