GENERAL CONDITIONS OF USE8. The Items and Services
- Javier Murcia Studio provides the sale of sculptures, sculpture tools, casts, workshops, tutorials, tutoring, digital items and related goods.
- Javier Murcia Studio may, from time to time, also offer Services. These will typically be subservient to the sale of the Items, and typically either related to the sale, delivery and/or installation of the items, or related to the operation of the Website.
- Unless clearly stated otherwise, no Service is included or guaranteed with any Item purchased from Javier Murcia Studio. Services may only be provided at a cost to the Website User.
- Items purchased from Javier Murcia Studio can be returned 14 days in unused condition for credit or exchange. If your purchase is returned because of a minor fault, we reserve the right to repair it, replace it or refund it.
- All Services purchased from Javier Murcia Studio can be fully refunded or rescheduled by email 2 weeks (10 working days) from the start date. If there are any refund enquirers within seven days of the start date, Javier Murcia Studio can only refund 50% of the total purchased amount. No refunds will be issued in the last 24 hours before the start date.
- Javier Murcia Studio reserves the right to take photographs or videos during the operation of any Workshop or part thereof and to use the resulting photography, videos, or recordings for promotional or commercial use. By signing up for a Workshop, the participant agrees to allow his/her likeness to be used by Javier Murcia Studio and authorized third parties without compensation to the participant. If the participant prefers that his/her likeness not be used, he/she must notify Us in writing prior to beginning of the Workshop.
- All amounts are in New Zealand dollars unless otherwise stated.
- All amounts shown on the Website for consumer Orders are inclusive of GST unless otherwise stated.
- No interest or other financial charges will be applied, unless otherwise stated in these Terms and Conditions.
- You agree that, if you are not a consumer as defined in the Consumer Guarantees Act 1993, that it is fair and reasonable that the provisions of the Consumer Guarantees Act 1993 do not apply.
- You agree that sections 9, 11, 12A, and 13 of the Fair Trading Act 1986 do not apply to any sale from the Website.
- Javier Murcia Studio will retain all risk on any Item that is Ordered through the Website while the Item remains in Javier Murcia Studio’s possession.
- You agree and acknowledge that you will assume all risk, as far as permitted by law, when the Item is either collected from Javier Murcia Studio by yourself or by a third party, no matter whether the third party is arranged by Javier Murcia Studio or yourself.
- You agree that, to the maximum extent permitted by law, any and all liability and responsibility of Javier Murcia Studio to you or any other person under or in connection with these Terms and Conditions, or in connection with the Services, the Website, any Item, any Order, or your use of or inability to use the Website, is excluded regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise. Javier Murcia Studio’s liability and responsibility is excluded in respect of any and all loss or damage, whether direct or indirect, including, without limitation, loss of profits, loss of data, loss of business or anticipated savings, general and special damages, and consequential and incidental loss.
- You agree to release, indemnify and keep Javier Murcia Studio indemnified from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by us arising out of or in connection with your failure to comply with these Terms and Conditions, or your failure to comply with legislation.
- Without limiting any other rights and remedies available to Javier Murcia Studio, Javier Murcia Studio may limit your activities on the Website, suspend or terminate your Account, refuse to supply any Service, or refuse to supply any Item from any Order if you breach these Terms and Conditions or if Javier Murcia Studio considers it is appropriate to do so.
- You agree that Javier Murcia Studio’s decision on any such decision made under clause 14a is final and is at the sole discretion of Javier Murcia Studio. Javier Murcia Studio are not required to provide you with any reason as to why such action was taken. You will be refunded for any Item which you have paid for but which Javier Murcia Studio does not supply under this clause. You agree that, in such a situation, Javier Murcia Studio will not be required to pay interest or to compensate for any damage, loss, cost, or any other financial impediment that Javier Murcia Studio’s decision may cause to you or any other party.
- Javier Murcia Studio from time to time, offer promotions, special offers, time limited specials, multibuy offers, promotional codes or any other such offer that provides a discount to you (“Promotion”).
- All Promotions will be provided on these Terms and Conditions. Any Promotion may include its own special terms and requirements (“Special T&Cs”). If there is a conflict between these Terms and Conditions and the Special T&Cs, the Special T&Cs will prevail.
- Any time periods provided in Special T&Cs are as per New Zealand. If no expiry time is provided then the Promotion will expire at 11:59:59pm on the date stated. Javier Murcia Studio reserves the rights to extend or terminate the Promotion without notice.
- If a Promotion is provided that does not include an expiry date or time then Javier Murcia Studio reserves the right to remove that Promotion at any time without notice.
- Any Promotions that require a minimum value or quantity number require that the requirements are met in a single order unless otherwise provided for explicitly in the Special T&Cs.
- You may make use of any Promotion as often as you would like, unless stated otherwise in the Special T&Cs.
- You may only use one Promotion in any order, unless the Promotions relate to different items within the order. For the sake of clarity, an item in an order may not be affected by more than one Promotion. If there is more than one Promotion included in an order, you agree that we may alter the order so that only the Promotion that gives you the greatest discount applies.
- Promotions only apply to the current order. They cannot be applied to previously submitted orders, or redeemed or held for future orders. They have no cash value.
- Some Promotions may be limited to certain customers or accounts. Please let us know if you have been notified about a Promotion which is not being applied correctly to your order, as this may be the reason. If the Website does not show the Promotion being applied at Checkout then we request that you contact us before placing your order. You agree that any order you place will be charged at the stated amount, and no discount will be provided after it has been placed.
- Unless otherwise stated in the Special T&Cs, trade customers are ineligible to accept Promotions.
- Javier Murcia Studio reserves the right to cancel and refund any order where we believe that the order does not meet the requirements of any Promotion. This includes, but is not limited to, any exclusion from supplying items to those in trade that may be contained within the Special T&Cs.
- When calculating the value requirements of any Promotion, the cost of shipping or any service or additional warranty is not included in the calculation of whether the requirements have been met. Any value requirement can only be met through the cost of the physical items included in the order.
- You are not required to create an account to use the Website. However, Javier Murcia Studio does recommend that You do, so that You can more easily track your Order history as well as providing additional security.
- Any reference in these Terms and Conditions to Website User may mean someone who has created an Account on the Website, as well as someone who has not.
- Creating an Account is free.
- You may only register an Account if you can form a legally binding contract that is enforceable against you. You must be at least 18 years old. By registering an Account, you warrant that you can form a legally binding contract.
- You warrant that you have provided complete, accurate, and current personal information when creating an Account and/or making an Order.
- Javier Murcia Studio recommends that You maintain and update Your information held by Javier Murcia Studio on any Account You have with Javier Murcia Studio to ensure it is kept current at all times. Javier Murcia Studio may call or mail You to verify these details if it feels it has a reasonable need to do so.
- You must not register multiple Accounts under multiple identities or personas (whether false or not) unless doing so is with the express written permission of Javier Murcia Studio or for the purposes of using Javier Murcia Studio for separate businesses of which You are an owner, partner or shareholder.
- You are responsible for keeping your login information for any Account, including your email address and password, secret and secure. Without limiting the foregoing, you agree:
- not to permit any other person to use your Account; and
- not to disclose, or provide to any other person, your password, email address, date of birth or any other information in connection with your Account to the extent that the information given may allow them to gain access to your Account.
- Javier Murcia Studio may send you emails or other electronic messages relating to your Account, Orders and other activities on the Website, and for promoting and marketing other Javier Murcia Studio Items and Services to you. Javier Murcia Studio may also send regular electronic newsletters to Account holders. Newsletters will contain clear and obvious instructions for how you can unsubscribe from the mailing list.
- Such notifications may be are necessary for Javier Murcia Studio to provide the Services. While Javier Murcia Studio will comply with the Unsolicited Electronic Messages Act 2007, any messages that must be sent to facilitate an Order of which you are a party will be sent, even if you have unsubscribed from communications, as these are not considered as a commercial electronic message as per s6(b)(ii) and s6(b)(iv) of that Act.
- Javier Murcia Studio reserves the right to decline to register or to terminate your Account without entering into further discussions with You. Without limiting the foregoing, Javier Murcia Studio may terminate your Account if:
- if You breach any Javier Murcia Studio’s Terms and Conditions or policies;
- if Javier Murcia Studio believes, in its sole discretion, that Your having access to an Account may lead to Javier Murcia Studio’s financial detriment;
- if You access, or attempt to access, the Account of another member; or
- if Javier Murcia Studio, at its sole discretion, deems Your behaviour towards Javier Murcia Studio, its staff or agents, to be unacceptable.
- Website Users who have registered multiple Accounts may have some or all of their Accounts disabled at the sole discretion of Javier Murcia Studio.
- When limiting your activities on the Website, Javier Murcia Studio may consider offsite conduct such as prior criminal convictions, insolvency, harassment to Javier Murcia Studio staff or agents, or any other conduct that Javier Murcia Studio’s community, goodwill or systems at risk. In the event of termination, you also agree that you will not open or attempt to open any new Javier Murcia Studio Accounts.
- Any Account holder may at any time close their Javier Murcia Studio Account. If you close your Account, or if it is terminated by Javier Murcia Studio, your ability to use the Javier Murcia Studio Website will end. If you decide to terminate your Javier Murcia Studio account, please contact us.
- Any Account holder that terminates their account agrees and acknowledges that Javier Murcia Studio may retain information about them Javier Murcia Studio’s systems, as per the Privacy Policy.
- All transactions, communications and dealings made through Javier Murcia Studio shall be made in good faith.
- You must not damage, interfere with, or harm the Website, or Services, any network, or underlying system connected to such, or attempt to do so.
- You may not use a robot, spider, scraper or other unauthorised automated means to access the Website or information featured on it for any purpose.
- You must not engage in or promote retaliatory behaviour or spam other Website Users.
- You are responsible for any actions taken through your Account. Javier Murcia Studio‘s Accounts are not transferable and therefore cannot be sold, leased, lent or traded.
- You agree that you will not deceive, mislead or attempt to deceive or mislead Javier Murcia Studio.
- Javier Murcia Studio will use its reasonable endeavours to ensure the availability of the Website and Services, subject to any downtime required for maintenance. However, Javier Murcia Studio takes no responsibility for any system unavailability, or for any loss that is incurred as a result of the Website or Services being unavailable. Furthermore, Javier Murcia Studio assumes no responsibility for the corruption of any data or information held by Javier Murcia Studio.
- Should a dispute arise between you and Javier Murcia Studio, the Parties agree to follow the following steps:
- Either party may write to the other party to give them notice of the dispute (“Dispute Notice”). Both parties agree to use their reasonable endeavours, acting with good faith, to resolve the dispute.
- If the dispute is not resolved within 21 working days of the Dispute Notice, either payment may initiate mediation by informing the other party in writing (“Mediation Notice”).
- If the parties have not agreed on a mediator within 10 working days of the Mediation Notice, or if the Parties agree that a mediator cannot be agreed to, either party may ask the Chairperson of the New Zealand Law Society to nominate a Wellington, New Zealand based mediator for the purpose of the dispute.
- Unless the Parties otherwise agree, any mediation will take place in Wellington, New Zealand.
- The proceedings will then continue, with both Parties agreeing to work with the mediator to resolve the dispute, but with all discussions to be on a “without prejudice” basis.
- The mediator’s costs will be allocated by the mediator in whatever proportion they believe is fair based on the dispute.
- If the dispute is not resolved within 30 working days of the Mediator being appointed, either party may then commence court proceedings.
- Nothing in clause 24a above will prevent either party from seeking injunctive relief from an appropriate court, where failure to do so would result in irreparable damage to the party concerned.
- Javier Murcia Studio has no liability for any lack of performance, unavailability or failure of the Website or Services, or for any failure of Javier Murcia Studio to comply with these Terms and Conditions where the same arises from any cause reasonably beyond the control of Javier Murcia Studio including, but not limited to, a pandemic.
- If Javier Murcia Studio do not exercise or enforce any right available to us under these Terms and Conditions, it does not constitute a waiver of those rights or Javier Murcia Studio’s right to act with respect to subsequent or similar breaches.
- If any provision of these Terms and Conditions becomes or is held to be invalid, unenforceable or illegal for any reason, and in any respect, that provision shall be severed from the remaining Terms and Conditions, which shall continue in full force and effect.
- These Terms and Conditions are governed by the laws of New Zealand. You submit to the non-exclusive jurisdiction of the Courts of New Zealand. You agree that any action must be initiated in a court in Wellington.
- Javier Murcia Studio (and its licensors or suppliers, as the case may be) owns all proprietary and intellectual property rights in the Website (including text, graphics, logos, icons, video and sound recordings) and the software and other material underlying and forming part of the Services and the Website.
- You may not, without Javier Murcia Studio’s prior written permission, in any form or by any means:
- Adapt, reproduce, copy, sell, distribute, print, display, perform, publish or create derivative works from any part of the Website; or
- Commercialise, copy, or on-sell any information, or items obtained from any part of the Website.
- These Terms and Conditions supersede all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written, and constitutes the entire agreement between the Parties relating to the subject matter of these Terms and Conditions.
