Terms of service

Copyright Notice

© 2019 Kerryn Leigh Metcalfe ABN 304 846 41 531 t/as Kerryn Metcalfe Design.  All rights reserved.

This Website contains designs and other material protected under Australian and international intellectual property laws, including copyright.  The Intellectual Property Rights in Kerryn Metcalfe’s designs (the “Designs”) are a fundamental and valued part of the Kerry Metcalfe Design business, are legally protected and will be enforced.

By using this Website and viewing the Designs, you acknowledge that all copyright in the Designs (or any part of the Designs) is and remains the property of Kerryn Metcalfe Design.  No part of this Website, including any Designs or other content, may be used, displayed, published, reproduced, transmitted, disseminated, copied, sold, modified, adapted or used in the creation of derivative works except as set out in this Copyright Notice or otherwise with the express prior written consent of Kerryn Metcalfe Design (granted on a case by case basis).  

Sharing and linking. Parts of the Website which are accessible only by Registered Customers (including all related content and Designs) may not be shared in any manner whatsoever without our express prior written consent.  
Parts of the Website which are accessible by the general public may be shared by any of the following means:

For any other mode of sharing, please contact Kerryn Metcalfe Design at kerryn@kerrynmetcalfe.com.

In any sharing, linking or quoting, you must ensure that the Designs and any other relevant content are clearly marked as authored and/or designed (as appropriate) by Kerryn Metcalfe Design and are not subjected to any treatment which is prejudicial to the honour or reputation or Moral Rights of Kerryn Metcalfe Design.

Additional licensing rights.  You may be granted additional rights to use the Designs where you purchase licensing rights through the Website’s Online Store.  Such additional rights are only as expressly set out in the Online Store’s Terms of Sale.  You may also be granted additional rights to use the Designs where you enter into a bespoke customer agreement with Kerryn Metcalfe Design.

This Copyright Notice is incorporated by reference into and applies in addition to the Website’s general Terms of Use.  Any capitalized terms not otherwise defined in this Copyright Notice have the meaning as set out in the Terms of Use.

Terms of Use

This page sets out the general Terms of Use for the website www.kerrynmetcalfe.com (Website).  You should read these Terms of Use carefully. By continuing to use the Website you agree to these Terms of Use.   You also acknowledge and agree to the terms of the Copyright Notice.  Certain parts of the Website are accessible only to Registered Customers and are subject to additional legal terms.  If you need to contact Kerryn Metcalfe Design, please email kerryn@kerrynmetcalfe.com.

License to use the Website.  The aim of the Website is to showcase Kerryn Metcalfe’s designs (“Designs”), style, expertise and experience. We grant you a non-exclusive, limited and revocable license to use the Website for the purposes of learning about Kerryn Metcalfe Design and viewing Designs, commentary and other content published on the Website (collectively, “Content”).  If you register and are accepted as a registered customer of the Website (“Registered Customer”) you may also purchase certain Designs and other products as may be available from time to time over the Website (“Products”).

By registering your details with us, you warrant that you are authorised to register for and/or use the Website or particular service or Product or Design.  We reserve the right to terminate your registration without notice, for any reason, if we determine that you have breached these Terms of Use.

By registering for any Product, Design or service on the Website (if applicable), you warrant that You are responsible for maintaining the confidentiality of your password and account and are responsible for all activities that occur under your account.

Intellectual Property Rights. The Website, all Designs and Products displayed and any other Content published, contain material that is protected by Australian and international intellectual property laws, confidentiality and other legal rights and obligations.  You acknowledge that the copyright in the Designs, Products and any Content provided by Kerryn Metcalfe Design is and remains the property of Kerryn Metcalfe Design and may only be used or dealt with as provided in this Agreement.

Except to the extent of any license we expressly grant to you, we reserve all Intellectual Property Rights in the Designs, Products and other Content.  You must not use, display, publish, reproduce, transmit, disseminate, sell, copy, modify, adapt or use in the creation of derivative works, any Designs, Products or other Content, whether in whole or in part, except (i) to the limited extent expressly permitted in the above “License to use the Website”, in the Copyright Notice and the Terms of Sale applicable to any purchase you make through the Online Store (whether in respect of a license to use one or more Designs or the outright purchase of the copyright in a given Design) and (ii) to the limited extent permitted under Australian copyright legislation.

By way of examples only and without in any way limiting the preceding sentences, you may not (a) in any way use any Designs or Products in providing your own products, services or publications; or (b) use any Designs or Products for any commercial purposes.

To the extent that you are granted a license to use Designs, Products and other Content, you must ensure that the Designs, Products and Content are not subjected to any treatment which is prejudicial to the honour or reputation of Kerryn Metcalfe Design and do not infringe the moral rights of Kerryn Metcalfe Design.
Any Website content which is provided by other Website users or sourced externally, such as content featuring on the Website’s blog, may also be subject to Australian and international intellectual property laws and you must ensure you do not breach those rights and obligations and comply with relevant limitations on use, reproduction and/or dissemination.  

The Website’s blog and other Content.  While we hope to provide and encourage others to contribute information, commentary and other Content that is up to date, accurate and relevant, at the time you view such Content, it may be out of date, contain inaccuracies or errors or be otherwise untrue. Content published represents one person’s opinion only and may not be widely held.  We make no endorsements and no representations or statements as to the reliability, accuracy or suitability of any Content for your specific purposes.  You should perform all inquiries as appropriate in the circumstances to verify any Content posted on the Website prior to relying on it and you assume full responsibility for any reliance you place on any Content available on the Website.

At times the Website’s blog may indicate certain Products or Designs as being available for purchase from a particular vendor. While we make every reasonable effort to ensure this is true at the initial time of publication, we cannot guarantee, and make no warranties in relation to, the business practices or availability of Products or Designs from any vendor other than Kerryn Metcalfe Design.

Further, we make no representations or warranties as to the experience you may have in dealing with any such vendor or as to the quality of their service(s).  Any transaction with such vendor is outside our control and is entirely a matter between you and that vendor.

The Website’s blog may also make references to third party products and/or services generally and any comments express the experience of one person only and may not be true or reliable generally.  We do not verify whether other users’ contributions are reasonable or justified.  One person’s experience and overall level of satisfaction may vary widely from another’s and you acknowledge that any reliance you place on the opinions or views expressed in the Website blog is at your risk.

Quality of the Website.

We cannot guarantee receipt of emails, or other Internet based communications such as via Facebook, LinkedIn, Instagram or Twitter (or other social media platforms) from us cannot be guaranteed. The delivery of video messages is dependent upon third party providers and therefore outside of our control. Low internet connection speeds and/or older operating systems and/or browsers may result in slower page load times and an inability to view videos on the Website.

Content provided by others.  

Any opinions, advice, comments or other content contributed by other Website users (User-Generated Content) do not represent our own views, opinions or comments nor our endorsement of any business operated or promoted by that contributor.

When posting User-Generated Content, you agree that you will not post or publish:

1. Information or content that is unlawful, harmful, fraudulent, misleading, deceptive, obscene, indecent, lewd, threatening, offensive, abusive, harassing, degrading, intimidating, libelous, defamatory, inflammatory, or objectionable.
2. Information or content about another person without that person’s consent.
3. Information or content that promotes or advertises a business, event, group, or activity organised through competing social clubs except when permitted by us.
4. Any chain letters, pyramid or Ponzi schemes, investment opportunities, or other unsolicited material, except where expressly permitted by us.
5. Information or content about a business owned by another person which is confidential or contains business secrets.

If you breach these Terms, we have the right to remove, review, or modify your User-Generated Content, unregister your account, and/or terminate your use of our Website’s services and Content. If you think anyone is violating any of these Terms, please notify us immediately. We reserve the right to disclose and refer any information that we collect for the purposes of any police investigation or governmental request.

We may but will not necessarily (and are not obligated to) monitor the quality of our Website contributors and any User-Generated Content we publish.

Although it is prohibited by our Website terms relating to user contributions, you acknowledge that you may encounter content provided by others which is inappropriate or which may be published without the appropriate licensing of Intellectual Property Rights.  If you are aware of such an occurrence, please contact us immediately.

Your use of the Website generally.

 
As an individual using the Website, you must be at least sixteen years of age.

If you are accessing the Website on behalf of a company, you must be duly authorised to accept the Agreement on behalf of that company.

You must not assign, sublicense or otherwise deal in any other way with any of your rights the Agreement (including any rights you may be granted under this Agreement by way of an intellectual property license). If you do not comply and/or agree with any term of the Agreement you should immediately cease all use of the Website and, if you have become a Registered Customer, advise us that you are terminating your membership as a Registered Customer.

Your use of the Website must at all times be appropriate in the context of our purpose in providing the Website and the license we grant you to use it.  We may terminate these Terms of Use and Your access to the Website or any part of it at any time without notice.

In addition to all other requirements and without limiting your responsibility to ensure your use of the Website is appropriate, you must not use the Website:

Linking.  The Website may contain links to or from other external websites not operated by us ("Linked Sites"). The Linked Sites are not under our control and we are not responsible for the contents of or transmissions from any Linked Site. Where we provide links, we do so for your convenience only and in no way endorse or recommend the Linked Site, its products or services. By using a link to an external website, you accept the risk of any viruses, Trojan horses or worms associated with that website or any other negative impact it may have upon your computer.

Any linking to our Website must be in accordance with our Copyright Notice.  All other forms and types of linking, framing or mirroring any part of the Website are prohibited without our express permission.  However, since we cannot control external websites linking to our Website, any links should not be considered as our endorsement of any external website or business.

Advertising.  Any advertising on the Website does not represent our endorsement of or warranties in relation to whatever is being advertised.

Privacy. We are committed to protecting Your privacy.  We collect, use and disclose Your Personal Information in accordance with Our Privacy Policy.  Please read Our Privacy Policy.  By agreeing to these Terms of Use, You agree to accept Our Privacy Policy.  If You object to Our practices as set out in Our Privacy Policy, You may not use our Website.

Disclaimers and limitation of liability. All disclaimers in these Terms of Use and limitations on our liability to you are subject to all applicable laws which prohibit or restrict the exclusion or modification of implied warranties and/or limitations on our liability, including, to the extent applicable, the Australian Consumer Law.

Exclusion of representations and warranties. We exclude all representations and warranties related to any goods or services we provide, including our Designs, Products and Content other than those expressly set out in these Terms of Use and those which by law cannot be excluded.

General disclaimer. The Website, including all functionality and Content, and our Designs and Products are provided “as is” and may contain inaccuracies, errors and/or be out of date, may be unreliable or unavailable from time to time, may be and unsuitable for your requirements and purposes and may not provide the results you desire. Your use of the Website and related services and our Designs and Products is on the basis that you assume responsibility for all associated risks, whether or not foreseen.

While we endeavour to update Website content regularly, at times prices and Product descriptions may be incorrect or out-of-date and Designs or other Products featured may not be available in the manner indicated on the Website.  While we endeavour to monitor and restrict the use of our intellectual property in the Designs and Products available, we cannot guarantee there will be no unauthorized use of such Designs and Products or that their use will be limited and restricted.

Remedies under the Australian Consumer Law (ACL). Where our goods or services fail to meet the guarantees mandated by the ACL, you may be entitled (as set out in the ACL), in the case of a major failure, to a refund and compensation for your losses or damages which were reasonable foreseeable or, in the case of a non-major failure, to have the goods (if relevant) repaired or replaced and/or to have the services (if relevant) re-supplied by us or to be reimbursed the cost of their re-supply.

General limitation on our liability to you.  To the maximum extent permitted by law:

1. (assumption of risk) Your use of the Website and, where relevant, our Designs, Products and any other goods or services we supply is on the basis that you assume full responsibility for all associated risks, whether or not foreseen, and that we are in no way liable or responsible except to the limited extent as set out in this section;
2. (limit on overall liability) We limit the entirety of our liability (for any Claim) to you (or anyone else) (whether direct, indirect or consequential and whether arising due in contract, tort, including negligence, as a result of a claim by a third party or otherwise) in relation to the Website, Content, Designs, Products or any other goods or services we supply or in any other way related to this Agreement to the amount we have charged you in respect of the relevant subject matter of your Claim or complaint, whether in respect of access to the Website, use or ownership of any relevant Design(s), Product(s) or, generally, in relation to any products or services (as relevant) we have supplied or, where no amount has been charged, to $10 (AUD); and
3. (exclusion of indirect losses etc) All liability in respect of any Consequential Loss however arising in relation to the Website, Content, Designs, Products or other services is excluded; and
4. (available remedies) Our liability may, at our option, be further limited to:

To the extent that any provision purporting to limit our liability is held to be unenforceable, then our liability for any damages, loss or Claim is limited to the maximum extent permitted by law.

Dispute Resolution. In the event of any dispute under these Terms, the parties agree to negotiate in good faith to resolve the dispute. Please notify us of any problems or issues arising out of use of the Website by emailing us at kerryn@kerrynmetcalfe.com

Any dispute or difference whatsoever arising out of or in connection with these Terms which cannot be resolved by the parties shall be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators and Mediators Australia Mediation and Conciliation Rules.

Miscellaneous.  Your agreement with us (the “Agreement”) is comprised of:

 

1. these Terms of Use;
2. the Copyright Notice; and
3. where applicable, our Registered Customer Terms; and
4. where applicable, our Terms of Sale.

The above documents form the entirety of the Agreement between you and us with respect to the Website, the Designs, Products and other Content.

However, if you engage the services of Kerryn Metcalfe Design outside of the Online Store on the Website, we may enter into a separate and bespoke written agreement with you in respect of the work to be done, Designs and/or other Products (“Customer Agreement”).  Fees and charges will apply as set out in that Customer Agreement and all other terms in the Customer Agreement will prevail to the extent of any inconsistency with this Agreement.

 
For the avoidance of doubt, where you purchase licensing rights through the Online Store to use our Designs or Products and additional rights or restrictions are agreed and set out in email or other written correspondence between us, then those additional rights or restrictions are incorporated into our Terms of Sale for that Design or Product and in no way replace or derogate from the other terms of this Agreement.  To the extent of any inconsistency between this Agreement and those additional terms, this Agreement prevails.

The various components of the Agreement (set out above) form a dynamic part of our business and may be updated from time to time to reflect changes in our business practices or as we otherwise determine to be appropriate.  The terms applicable to your use of the Website, your membership as a Registered Customer and/or the ordering of any Designs or Products are those as stated on the Website at that given point in time.  You should check back periodically to ensure you know and agree to the applicable terms as advised on the Website.

Any rights, obligations and liabilities (including any fees for our services) which have accrued up at the time of termination (whether of this Agreement in whole or in part) will continue beyond and survive termination.

Survival. The following terms (and any terms required to give effect to those terms) survive termination of this Agreement (whether in whole or in part): all provisions related to confidentiality, the protection of our intellectual property rights, exclusion of implied terms, disclaimers of representations and warranties, and limitations and exclusions of our liability to you and provisions under this section “Miscellaneous”.

If any provision of the Agreement is invalid or unenforceable, the relevant provision shall be deemed to be removed and replaced with a valid, enforceable provision that most closely matches the intent of the original provision and the remaining provisions shall continue in full force and effect.  Any failure to assert any right under the Agreement does not constitute a waiver of such right. No waiver of any term of the Agreement will be deemed a further or continuing waiver of that term.

Governing Jurisdiction. The Agreement is governed by and construed in accordance with the laws of Queensland, Australia and each party submits to the non-exclusive jurisdiction of the courts of Queensland, Australia.

Definitions and Interpretation.  In this Agreement, the words "includes", "including" or "such as" are not words of limitation, and when introducing an example, do not limit the meaning of the words to which the example relates to examples of a similar kind.  “Person” means an individual, corporation, government or governmental agency, estate, trust, partnership, association or other legal or commercial entity or undertaking.  The singular includes the plural and vice versa and any gender includes any other gender.  Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this agreement.
In addition to the definitions already set out:

(Updated as at 4 July 2019)

Registered Customer Terms

This page sets out the additional legal terms which apply when you become a registered customer of the Kerryn Metcalfe Design website.  

By completing and submitting your registered customer application you acknowledge and agree to the following terms (“Registered Customer Terms”).  These Registered Customer Terms are incorporated by reference into and apply in addition to the Website’s general Terms of Use.  Any capitalized terms not otherwise defined in these Registered Customer Terms have the meaning as set out in the Terms of Use.

Application process. Completing a customer registration form is an application by you to become a registered customer of the Website (“Registered Customer”).  Registered Customers are able to access additional parts of the Website (“Restricted Areas”) which include Designs, Products and other Content which contain key and valued intellectual property of our business.  We therefore restrict the number and types of persons and businesses accepted as Registered Customers and we may accept or reject a registration application in our absolute discretion.  Following our receipt of your customer registration application we will email you to advise whether or not your application has been accepted.

Information about you.  You must ensure that all information you provide in completing a Registered Customer application is true and accurate.  You acknowledge and consent to the treatment of all Personal Information in accordance with our Privacy Policy.  Further, upon our request, you agree to provide us with identification and other information as we may reasonably require to verify your identity, your compliance with the Agreement (including these Registered Customer Terms) or as may be required by any law or government agency. If you become a Registered Customer, you must continue to ensure that all information you have provided is kept up to date by emailing us at kerryn@kerrynmetcalfe.com.  You agree that notices and all other communications are effectively given to you if they are sent to your last advised email address.  Please ensure you keep us up to date with your current working email address and add us to your email contacts book to help ensure our emails do not get filtered out to your “junk” email folder without your awareness or get blocked by your firewall.

Registered Customer security credentials. Upon becoming a Registered Customer, you will be issued with a user login and password (“Security Credentials”) which will enable you to access certain Restricted Areas.  You undertake to ensure the confidentiality of your Security Credentials and to take all steps reasonably necessary to ensure the continued security, limited access and confidentiality of the Restricted Areas and all related Designs and Content.  Under no circumstances may you share or provide your Security Credentials to any other person and you should contact us immediately if you suspect or know that your Security Credentials have become known to or used by someone else. You agree to comply with all reasonable security procedures which we may require you to undertake. You accept full responsibility for all use made of the Website using your Security Credentials.  

Subscription to eNewsletter. By applying to become a Registered Customer, you will automatically be subscribed to our eNewsletter and will receive various communications from us, from time to time.  You may unsubscribe at any time from our eNewsletter mailing list by contacting us on email kerryn@kerrynmetcalfe.com.  Our eNewsletter will be sent to your email account (as you have advised us).

Ending your Registered Customer membership.  You may terminate your agreement with us as a Registered Customer at any time by emailing us at kerryn@kerrynmetcalfe.com. Your Registered Customer membership and any related rights may not be transferred or assigned to anyone else.  We reserve the right to terminate your Registered Customer membership, restrict functionality available to you and/or refuse service to you if you are in breach of these Registered Customer Terms or any other term of our Agreement with you, if we believe you are using the Website in an inappropriate way or outside its intended purposes or otherwise in our absolute discretion and without the need to provide reasons to you.

Your contributions to the Website’s blog and other types of user contribution.  By “Messaging Service” we mean any communication facility offered over the Website to enable communications between you and the public at large, a group or an individual.  The types of Messaging Services available may change over time but may include the blog on our Website or any other forum or private messaging facility.

License to contribute to the blog and use Messaging Services generally. The blog and any other Messaging Services (as available) may only be used for the limited purposes for which you are granted a license for the Website (see Terms of Use - License to use the Website) and to genuinely contribute to the discussion of topics we initiate in a manner which is respectful, reasonable and appropriate.   If you provide information (whether personal or not) through a Messaging Service, you must ensure that it is true, accurate, up to date and not misleading.  You may use your real name in providing comments but you should not publish any other personal information or contact details.

Specific prohibitions.  You must not use the blog or any other type of Messaging Service to:

Editorial rights.  We retain complete editorial rights over the Website and all Content.  We have the right (but not the obligation) to monitor the Messaging Service(s) and we may, as we consider appropriate, with or without notice to you, alter or remove any content or refuse to post content and/or alter or terminate access to the Messaging Service(s).

Removing Content. If you inadvertently publish Content in some circumstances you may be able to remove that Content by logging into your Registered Customer account.  If not, please email us and we will endeavour to assist. Not all Content published can be readily retracted (or retracted at all) such as if it has passed to a communication system outside of our control.  In addition, any information you provide through a Messaging Service may be retained by our computer systems. Please exercise care prior to sending any messages or publishing any content.Information about you. Always use caution when giving out any information about yourself or your business, especially with respect to information which can be used to personally identify you.  Disclosure of any personal information on a Messaging Service is at your own risk. In deciding what to send, post or otherwise transmit using a Messaging Service, you should assume that all such communication methods are not secure and exercise extreme caution.Intellectual Property Rights in Content You Provide. We do not claim ownership of any Intellectual Property Rights in any content you provide via the Website blog or any other Messaging Service(s) (“User-Generated Content”).  Instead, you grant us, our affiliates and sublicensees, a perpetual, non-exclusive, royalty-free, unlimited, irrevocable, worldwide and transferable license to use the User-Generated Content in any way and permit us to authorize any person to do the same thing, including reproducing, changing and communicating the content to the public or using it in connection with the operation of our business. You acknowledge that your name may or may not be published in connection with User-Generated Content. You represent and warrant to us that you have all necessary rights to grant the licenses and rights set out in this paragraph. You consent to any act or omission which would otherwise constitute an infringement of your moral rights and, if you add any content in which any other person has moral rights, you must also ensure that person also consents in the same manner.  The licenses and permissions granted in this paragraph continue after termination of these Registered Customer Terms.

(Updated as at 4 July 2019)

Terms of Sale

These terms apply if you place an order to purchase items through the online store www.kerrynmetcalfe.com (the “Online Store”).  

By completing and submitting an order through the Online Store you acknowledge and agree to the following terms (“Terms of Sale”).  These Terms of Sale are incorporated by reference into and apply in addition to the Website’s general Terms of Use.  Any capitalized terms not otherwise defined in these Terms of Sale have the meaning as set out in the Terms of Use.

Charges for online purchases.  Prices and, where applicable, any delivery charges are as stated on the relevant Website pages at the time you place your order.  Unless otherwise indicated, all amounts stated are exclusive of GST and any other applicable government taxes or other charges which you will also be charged in addition to the stated price.  Prices advertised may change over time.  Any special offers on the Website may be for a limited time or quantity.

Placing an Order. You may place an order for certain Designs and any other Products displayed for sale on our Website by selecting and submitting the relevant details using the available order page (an “Order”).   Any Order is an offer by you to purchase either licensing rights or ownership (as specified on the Website) of the relevant Designs and/or Products at the prices and other terms as stated at that time on the Website (including any delivery charges, fees, taxes or other charges applicable).

Processing an Order.  We may, in our discretion, accept or reject an Order.  An Order may be rejected for business reasons including where a Design has already been licensed on an exclusive basis to someone else, where advertised prices are incorrect, where we experience high demand for a particular Design or Product, or otherwise in our absolute discretion and without the obligation to provide reasons to you.  We will advise you by email whether your Order has been accepted or rejected.  

What you are purchasing – Designs: a license or ownership. The Website may set out certain Designs which are available for the purchase of the outright ownership of the associate copyright in that Design (“Ownership”) and Designs which are available for the purchase of licensing rights only (“License”).  If it is not clear whether a Design is available for the purchase of Ownership or a License, you should assume it is available for a License only.  The relevant terms for Ownership and Licenses are as set out below.

1.    Ownership of a Design. Where the Website specifies that a Design is available for the purchase of Ownership, in placing an Order for that Design you agree to the following additional terms:

a.    (Conditions of sale) Upon receiving full payment of the relevant purchase price and any associated costs (such as GST) as stated on the Website, we assign to you all copyright in the Design and you irrevocably and unconditionally acknowledge and agree to the following:

i.    You grant us, our affiliates and sublicensees, non-exclusive, royalty-free, unlimited, worldwide and transferable license to use the Design for the purposes of publicity, marketing purposes and business development generally – this may include reproducing, changing and communicating the Design to the public, such as publishing the Design on our Website or using it as part of our professional portfolio;
ii.    You authorize us to publish your name and the fact that you have purchased Ownership of the Design from us;
iii.    You will at all times and in all use and publication of the Design, designate the author and creator of the Design as being “Kerry Metcalfe Design”;
iv.    You will ensure that your use of the Design is in no way is prejudicial to the honour or reputation of Kerryn Metcalfe Design;

b.    (Acknowledgement as to other use) You acknowledge that while we take measures to protect our intellectual property rights in our Designs and the confidentiality of certain Designs, in some instances where you purchase Ownership of a Design, that Design may be subject to use by one or more third parties – whether with our agreement or otherwise.  In some cases, the Design may be in use in breach of our previous intellectual property rights.  In other cases, the Design you purchase may have previously been licensed by us other users.  If having exclusivity of use of the Design is important to you, you should check with us whether we know of any concurrence of previous licensing rights in respect of that Design; and

c.    (Your indemnity to us) You indemnify and at all times hold harmless us and our Related Bodies Corporate, officers, agents and employees (each for whom we hold the benefit of this indemnity in trust or as agent, as applicable) against any liability for Claims arising directly or indirectly out of or in connection with your use of and ownership of the copyright in the relevant Design(s).

The above terms in relation to Ownership of Designs survive any termination of this Agreement, whether in whole or in part.

2.    A License to use a Design. Unless you submit an Order for a Design which is clearly marked as available for purchase of the Ownership of the Design, any Order for a Design is an offer to purchase a limited license to use that Design on the terms set out in this section.

 
a.    (Permitted use) You are granted a limited, revocable and non-exclusive license to use the Design for the limited purpose(s) and in the limited geographic area(s) as specified in as set specified in email or other written correspondence from Kerryn Metcalfe Design to you in relation to your Order of that specific Design(s).  Where no specific use or geographic area is specified, then by default your use must be restricted to your own personal non-commercial use and within a 10 km radius of your home location and you are not permitted to manufacture, have made, use or market the Design in any other location.  Further:

b.    (Prohibited use) Unless specifically granted in respect of a particular Design, the license does not permit the use of the Design in any adaptation, derivative work or modification, the use of the Design for the purpose(s) of commercial re-supply, the display, publication, reproduction, transmission, dissemination, copyright or selling of that Design.  

c.    (Duration of License) The license commences once we have received full payment from you of the relevant purchase price and any associated costs (such as GST) as stated on the Website and provided you with the ability or details as to how to download the Design or delivered the Design to you by email. The license terminates automatically and immediately if you breach any term of the license or become insolvent.  It may otherwise be terminated without cause (i) by you immediately upon providing written notice to us or (ii) by us, no less than 6 months after the commencement of the license by providing written notice to you.  

d.    (Obligations upon termination of License) Upon termination of the license, you must immediately cease all use of the Design in any manner whatsoever and must deliver up to us all copies of the Design in your possession, custody or control.  Where the Design is stored electronically, you must effect its immediate destruction and certify to us in writing that this has been done.

e.    (Retention of ownership and other rights) In purchasing a License to use a Design, you acknowledge that copyright and any other Intellectual Property Rights subsisting in the Design (whether licensed or used in whole or in part) are and remains the property of Kerryn Metcalfe Design and that the Design must only be used or dealt with by you as expressly permitted in this Agreement.  

You acknowledge that in no event are you permitted to: (i) hold yourself out, engage in any conduct or make any representation which may suggest to any person that you are for any purposes the agent of Kerryn Metcalfe Design; or (ii)  sell, offer to sell, license or sublicense the Design to any other person or entity, other than as expressly permitted by us in writing on a case by case basis.  You may not assign any or all of the rights given to you under the License without our prior written consent (which may be withheld in our absolute discretion).  Further you must not make the Design available to or accessible by any person or entity except as expressly permitted by the terms of the License.

Some Designs may be licensed on an exclusive basis or to a limited number of Licensees.  However, you acknowledge and agree that while we maintain Website security measures to prevent unauthorized copying and use of our Designs, we cannot guarantee that our Designs are not used by persons or entities without our permission, in breach of our Intellectual Property Rights and outside our intended restrictions on use.You indemnify and at all times hold harmless us and our Related Bodies Corporate, officers, agents and employees (each for whom we hold the benefit of this indemnity in trust or as agent, as applicable) against any Claims (as defined in our Website Terms of Use) arising directly or indirectly out of or in connection with your use of the relevant Design(s).

The above terms in relation to your indemnity and obligations upon termination of the License survive termination of the License and survive termination of this Agreement, whether in whole or in part.

What you are purchasing – in the case of physical objects.  Where you Order a Product which requires physical delivery, you are purchasing the physical form of that Product as delivered to you – this does not include any intellectual property rights in the Product or any Design or artistic (or other) work used in creating that physical product.  You may use and enjoy the Product in its physical form but you are expressly prohibited from otherwise using, copying, modifying, adapting, exploiting or displaying any design or other creative material comprised in that Product.

Payment. The applicable purchase price and all other fees and charges must be paid by you at the time of placing an Order.  Payments may be processed through our nominated third-party payment gateway (such as PayPal Pty Ltd) or by direct deposit into the bank account nominated on the Website.  If there is a problem processing your payment or we do not receive payment within 3 business days after your Order has been accepted, we may cancel your Order.

You agree that we are not responsible for and that you accept all risks related to the treatment of any information you provide to a third party (such as PayPal Pty Ltd or our nominated bank) as part of the payment process.  The security of any payments made and any information you provide is dependent upon the security of our third-party provider(s) payment systems and we in no way guarantee or make any recommendations as to the security or reliability of their systems.  Any use of their payment systems is entirely at your risk.  If you are not comfortable accepting these risks, you may contact us to arrange an alternative payment method.

Cancelling an Order. Orders cannot be cancelled by you after you have received delivery of the Design or Product (as relevant).  If you wish to cancel an Order before you have received delivery of the relevant Design or Product, you should contact us immediately at kerryn@kerrynmetcalfe.com. Requests to cancel may not be processed outside our standard business hours.  Where you cancel an Order prior to our acceptance of the Order, no charges will be payable by you however you are responsible for any costs we have incurred if we have commenced the processing of your Order.  Orders cannot be cancelled (i) in the case of electronic delivery, once we have sent the electronic transmission containing the relevant Design or provided details to enable its download from the Website, or (ii) in the case of Products requiring physical delivery, once they have been dispatched to our delivery service for delivery to you.   

We may cancel all or any part of your Order if a Design or Product is not available, if the pricing or description of the Design or Product on the Website was incorrect at the time of your Order, if we believe you have not or do not comply with this Agreement or for other business reasons as we determine to be appropriate (in our discretion).

 
Where we cancel your Order due to unavailability or incorrect pricing or description, you will not be charged for the Order and any amount already paid by you will be refunded in full.  However, in all other cases cancellation charges may be payable by you for an amount representing any expenses we incur in processing and cancelling your Order such as administrative charges or for any Products requiring physical delivery, transit charges.

Delivery.  Designs and Products will not be delivered to you until they are paid for in full.  Where we sell Designs or any Products which are delivered electronically, they will be sent to your email account (as you have advised us) or will be available to be downloaded from the Website by instructions we provide to you (at your last advised email address).  If you do not receive your purchased Designs or Products or have difficulties accessing them, please contact us by emailing kerryn@kerrynmetcalfe.com

Where any Products or Designs you order require physical delivery, in general, the cost and method of delivery will be notified to you at the time of submitting an Order.  Charges may depend upon the size and weight of products and their destination. Where you Order several products within the one Order, these products may be delivered separately. Our ability to deliver to your location is subject to our delivery service providers.

The delivery timeframes stated on the Website or in your Order confirmation are by way of guidance only. We reserve the right to change, modify or discontinue any delivery options at our absolute discretion.

You agree that delays may occur, such as where Products are not immediately available or for reasons associated with our delivery service providers. If we ever need to change the delivery method, no additional delivery charges will be incurred by you without your prior agreement. Depending upon the type of delivery service provider, you may be required to be present to accept delivery of your Product(s).  If you are not present at the required time, then the Product or Design may not be delivered and you may be charged an additional delivery fee.  You agree that any person who is present at the delivery address you have specified is authorized by you to accept delivery of the Products or Designs on your behalf.

Limited refunds.  Refunds are only available in the limited instances mandated by the Australian Consumer Law (and any other applicable laws or regulations) and as set out in the Terms of Use. Refunds are not available if you simply change your mind about the Designs or other Products you have ordered.

 
Damaged items. We may provide a refund or resupply in the event any physical Products we sell to you are damaged. Prior to sending the damaged items please email us at kerryn@kerrynmetcalfe.com within 48 hours of receiving a damaged item and please send a photograph of the damage so that we may review your request for a refund or resupply.

Force Majeure. We will not be liable (and you release us from all liability and Claims) in relation to any delay in performing any of our obligations caused by circumstances beyond our reasonable control, including but not limited to, failure of or interruption in the provision of essential services such as electricity supply, bank payment systems or postal deliveries and other situations such as (but not limited to) severe weather events, world events, strikes, riots, natural disasters, accidents, shipping provider delays or technical issues.

Product liability.  To the maximum extent permitted by law: (i) our liability for Claims in respect of any Designs, Products and any other related goods or services is limited as set out in the Terms of Use; and (ii) all disclaimers of warranties and representations (so far as are relevant) and exclusions of implied terms as set out in the Terms of Use apply in respect of all Designs, Products and any related goods or services and survive termination of this Agreement, whether in whole or in part.

Limitation of Liability. To the maximum extent permitted by law, we exclude all liability for any and all loss or damage or Claims and Consequential Loss of any kind (however caused, including by negligence) arising from or relating in any way to the Products, Designs and/or any use of the Website. Where any law implies a warranty into these terms of use which may not lawfully be excluded, then to the maximum extent permitted by law, our liability for breach of the warranty will at our option be limited to the supply of the Products or Designs again, or the payment of the cost of having them supplied again.

(Updated as at 4 July 2019)