Purchase Terms and Conditions
These terms and conditions (Terms) and the Overview form the basis of our agreement (Agreement) to provide Workshops and/or Modules (Supplies) to you.
You agree to be bound by this Agreement if after being directed to it you:
(a) confirm your acceptance;
(b) pay any part of a deposit or Fee;
(c) Participate; or
(d) create an Account.
(a) The Overview may be in different forms and may be issued as a hard copy or by electronic means.
(b) The Overview may also be made up of different parts, which are to be taken as joined and to form one single instrument.
(c) You should tell Blooms immediately if you disagree with anything contained in the Overview.
If you do not you will be deemed to have agreed to the Overview as it was provided.
(d) If there is inconsistency between these Terms and the Overview, the Overview will prevail to the extent of that inconsistency
3.1 Provision of Supplies
Blooms provides the Supplies:
(a) in a professional manner with due care, skill and diligence; and
(b) substantially in accordance with the Overview.
3.2 Participation obligations
Before Participating you must:
(a) create an Account (unless otherwise specified in the Overview);
(b) ensure you have all equipment and materials the Overview requires;
(c) organise transportation to attend any venue specified in the Overview on time;
(d) notify Blooms of any special requirements/needs you may have that may be relevant to your Participation including:
(i) dietary requirements and allergies;
(ii) any form of physical disability; and/or
(iii) any other condition.
(e) conduct yourself in a manner that is respectful and reputable at all times;
(f) not act in a way that could reasonably be seen to interfere with another participants enjoyment; and
(g) comply with all of Blooms’ reasonable and lawful directions.
3.3 Account obligations
With respect to your Account, you must:
(a) not provide access to any other person;
(b) maintain the secrecy of your log in information;
(c) notify Blooms immediately if you are of the view that a third party has obtained access.
(a) You acknowledge and agree that each Overview’s specific agenda and inclusions are indicative only and may be subject to minor variation by Blooms at any time without further notice to you.
(b) Any reasonable changes to the Overview (not minor in nature) and/or these Terms may be reasonably varied by Blooms from time to time upon its provision of notice to you detailing the variation.
4. Our responsibilities
(a) comply with the Privacy Act 1988 (Cth) and any other applicable privacy laws in relation to your personal information;
(b) subject to sub clause 3.5, promptly provide you with notice of any variations to this Agreement; and
(c) ensure that the Supplies are provided:
(i) in accordance with this Agreement; and
(ii) substantially in accordance with our marketing material.
5. Fees, payments and charges
(a) All fees relating to your Participation will be specified in the Overview.
(b) Fees must be paid at the time and in the manner detailed:
(i) in the Overview; or
(ii) as Blooms reasonably nominates from time to time.
(c) Upon receipt, we will provide you with a receipt or a tax invoice (as applicable).
Any costs and reasonable out-of-pocket expenses necessary to provide a Workshop (Expenses) will be paid or reimbursed (as the case may be) by you where we have received approval from you regarding the incurring of the Expense.
Unless otherwise expressly stated, all amounts under this Agreement are exclusive of GST. If GST is imposed on any supply made under or in accordance with this Agreement and GST has not been accounted for in determining the consideration payable for the supply, then we may recover from you an amount on account of GST.
6. Workshop refunds
6.1 When provided
(a) You are entitled to a full refund of your deposit where you cancel your Participation within seven days of the deposit being received.
(b) Subject to sub clause (a), you are entitled to a refund of your Fees at any time prior to that date that is 30 days before the commencement date. After this time, the Fee will not be refundable.
(c) In the event that:
(i) a Workshop has been cancelled by Blooms;
(ii) a Workshop has been rescheduled by Blooms and as such you are no longer able to attend; or
(iii) the location of a Workshop has been relocated by Blooms and as such it is impossible or impracticable for you to attend, then you will be entitled to a full refund of the Fee and the deposit.
6.2 When not provided
Subject to 6.1 and 12.2, you will not be entitled to a refund of the Fee or any part thereof in the event:
(a) you are unable to attend or miss any part of the Workshop;
(b) you choose not to participate in any part of the Workshop or choose not to complete the Workshop for any reason;
(c) you choose not to partake in any meal or consume any beverage that is provided as part of the Workshop; or
(d) your participation in the Workshop is terminated by Blooms for any reason in accordance with these Terms.
7.1 Termination by notice
(a) Blooms reserve the right to terminate this Agreement at any time prior to the commencement date, upon provision of 28 days notice to you.
(b) You may cancel your subscription to a Module upon the provision of 14 days’ notice to Blooms.
7.2 Termination for Breach
Either Party may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect by written notice to the other party, in the event of any material breach of the Agreement by the other Party which is not remedied within 7 days after the service on the Party in default of a written Notice specifying the nature of the breach and requiring that the same be remedied.
7.3 Effect of termination
Upon termination or expiry:
(a) you must pay all outstanding Fees, and other charges due to Blooms under this Agreement up to the date of termination;
(b) each party must destroy the other parties Confidential Information received under the Agreement; and
(c) any accrued rights or liabilities of either party or any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after such termination will not be affected.
8. Intellectual property and advertising
8.1 Background IP
(a) Each Party retains all right, title and interest in and to its pre-existing Intellectual Property Rights.
(b) You are granted a limited, revocable, nonexclusive, non-transferrable, non-sublicensable license to use the Intellectual Property Rights of Blooms and its Related Entities only for the purposes of your:
(i) Participation; and
(ii) continued personal use (until revoked).
8.2 Your IP
(a) You retain all Intellectual Property Rights in the artistic works you create as part of your Participation.
(b) You grant Blooms a non-revocable, perpetual, royalty free, sub-licensable, worldwide, assignable license to the Intellectual Property Rights in your artistic works for the purposes of its advertising and promotions.
8.3 Consent to photograph, film or interview
You hereby consent to:
(a) Blooms documenting/photographing/filming/ interviewing you and your work for:
(i) teaching purposes; and/or
(ii) its advertising and promotion (which may be on the internet); and
(b) your name being used and disclosed by Blooms in any of the material you are in for the purposes of identifying you as a past participant.
9. Confidentiality and restrictions
9.1 Recipient must keep confidential
Each party must keep all Confidential Information confidential and only use Confidential Information for the purpose of your Participation.
9.2 Disclosure exceptions
The obligations in clause 9.1 do not apply:
(a) to the extent necessary to enable a party to make any disclosure required by law;
(b) to the extent necessary to enable a party to perform its obligations under this Agreement;
(c) to any disclosure agreed in writing between the parties; or
(d) in respect of any portion of the Confidential Information which has entered the public domain other than as a result of a breach of this Agreement.
You covenant and agree that you will not at any time during or for a period of 36 months after the expiration or termination of this Agreement:
(a) reproduce any methodology or teaching content; or
(b) share any teaching method or content to a third party, that Blooms disclosed to you during your Participation.
10. Indemnity and Liability
10.1 Your indemnity
You agree to indemnify Blooms and to keep Blooms indemnified against any Loss that may be incurred by Blooms arising from or in connection with (directly or indirectly):
(a) any breach or default by you, of this Agreement (including any breach of warranty);
(b) a negligent act or omission by you; or
(c) your failure to comply with any Law.
10.2 Limit of liability
(a) Except as expressly provided by this Agreement, the Modules are provided on an “as is” basis without any representation, warranty or guarantee as to quality, condition or fitness for purpose. We do not warrant that the Modules will be free of defect, uninterrupted, accurate, complete, current, stable, bug free, error free or available at any time.
(b) Except in relation to liability for personal injury (including sickness and death), property damage or an infringement of confidentiality or Intellectual Property Rights, our liability in damages (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) in respect of any act or omission of Blooms in connection with our obligations under this Agreement will not exceed the net payment received by Blooms from you in the immediately preceding 12 months from when the cause of action arose.
10.3 Exclusion of liability
To the maximum extent permitted by Law, we will not be liable for any ordinary, incidental, consequential or special loss or damage (including but not limited to loss of profits and loss of data) arising out of this Agreement or your Participation even if we were appraised of the likelihood of such Loss occurring.
10.4 Exclusion of other Terms
(a) Subject to sub-clause (b), any condition, guarantee or warranty which would otherwise be implied in this Agreement is hereby excluded.
(b) Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to Blooms providing the Supplies again or the payment of the cost of having the Supplies provided again.
11. Dispute Resolution
(a) If a dispute arises out of or relates to this Agreement (Dispute) a party to the Agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with this clause, except where the party seeks urgent interlocutory relief.
(b) A party claiming that a Dispute has arisen must give a Notice (Dispute Notice) to the other party or parties to this Agreement specifying the nature of the Dispute. The parties must then negotiate in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed to by them.
(c) If the Parties do not resolve the Dispute within fourteen (14) days of receipt of the Dispute Notice (or such further period as agreed in writing by them) any party to the Dispute may refer the Dispute to mediation by a mediator nominated by the President or the nominee of the President for the time being of the Queensland Law Society Incorporated.
(d) Each party must bear its own costs in connection with resolving the Dispute and the Parties must bear equally the costs of any mediator engaged.
(e) Any information or documents disclosed by a party under this clause must be kept confidential and may not be used except to attempt to resolve the dispute.
12. Standard provisions
12.1 Survival and essential terms
(a) Clauses 7.3, 8, 9 and 10 survive the termination of this Agreement.
(b) Clauses 3, 5, 8 and 9 are essential terms of this Agreement.
12.2 Force majeure
Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 30 days, either party may immediately terminate this Agreement on providing Notice to the other party.
(a) Any notice given under or in connection with this Agreement must be in writing, in English and be delivered to the addressee at the last address it notified as the address for receiving notices.
(b) A notice will be deemed to be received by the addressee:
(i) if delivered by hand, at the time of delivery;
(ii) if sent by prepaid post, on the third business day after the day on which it is posted, the first business day being the day of posting;
(iii) if sent by facsimile, on the business day on which the notice is received by the recipient’s facsimile receiving facility, and a completion transmission report is received; or
(iv) if sent by electronic mail, at the time of receipt in accordance with section 24 of the Electronic Transactions (Queensland) Act 2001 (Qld).
(a) You cannot assign, novate, sublicense or otherwise transfer any of your rights or obligations under this Agreement without our prior written consent.
(b) Blooms may assign our rights and obligations without your consent upon providing notice to you.
(a) This Agreement contains the entire arrangement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.
(b) Each party must promptly do all further acts and execute and deliver all further Agreements required by law or reasonably requested by another party to give effect to this Agreement.
(c) This Agreement is governed by the law in force in Queensland, Australia (the Jurisdiction) and each party submits to the non-exclusive jurisdiction of the courts of the Jurisdiction, in relation to any proceedings that may be brought at any time relating to this Agreement. Each party irrevocably waives any objection to proceedings being commenced in the Jurisdiction.
(d) No right or obligation of any party will merge on completion of any transaction contemplated by this Agreement.
(e) Each party represents and warrants to each other party that it has the power to enter into and perform its obligations under this Agreement and this Agreement creates valid and binding obligations that are enforceable.
(f) Any provision of this Agreement that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of this Agreement which remain in force.
(g) Time is of the essence in respect of each parties’ obligations under this Agreement.
(h) The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by written notice signed by the party to be bound by the waiver.
(i) This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect. You warrant that you have not relied on any representation made by Blooms which has not been stated expressly in this Agreement.
(j) This Agreement is governed by the law in force in the State of Queensland Australia and each party submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this Agreement.
(k) Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
(l) Any provision of these Terms that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of these Terms which shall remain in force.
(m) Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under these Terms by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under these Terms. No waiver of a breach of any term of these Terms will operate as a waiver of another breach of that term or of a breach of any other term of these Terms.
13. Definitions and interpretation
In this Agreement, unless the context provides otherwise:
Account means an account you create with Blooms on the Website providing you access to a Module.
Australian Consumer Law means Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth).
Blooms means each of Blooms Online Pty Ltd ACN 607 395 602; Blooms Painting Workshops Pty Ltd; How to Paint Pty Ltd ACN 618; Jacqueline Coates and their Related Entities.
Claim includes a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.
Confidential Information means all information and material (of whatever nature and medium of communication) which is communicated to, available to, or accessible by you in connection with the provision of any Supplies by Blooms, which is not information that is in the public domain (other than through a breach of these Terms).
Fee means the fees charged by Blooms for Participation.
Force Majeure means (without limitation) an act of God; fire; earthquake; storm or flood; war or apparent act of war; act of terrorism or apparent act of terrorism; disaster; civil disorder or unrest, disturbance or riot; restriction or limitation on travel, transport or accommodation; or any other cause beyond the reasonable control of Blooms which is unable to be overcome by the exercise of reasonable diligence and at a reasonable cost.
Intellectual Property Rights means all intellectual and industrial property rights and interests throughout the world, whether registered or unregistered, including trade marks, designs, patents, inventions, circuit layouts, copyright and analogous rights, confidential information, know how and all other intellectual property rights as defined in Article 2 of the convention establishing the World Intellectual Property Organisation of 14 July 1967 as amended from time to time.
Law includes any requirement of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise.
Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.
Module means an online educational course provided by Blooms including in relation to painting techniques, artistic styles and the commercialisation of art.
Overview means the details and specifics of a Suppliy being provided by Blooms.
Participate means to receive any of the Supplies.
Related Entities has the meaning prescribed to that term in section 9 of the Corporations Act 2001 (Cth).
Website means the website operated by Blooms pertaining to the particular Workshop or Module as updated from time to time.
Workshop means an educational course in relation to painting techniques, artistic styles and the commercialisation of art, provided by Blooms in person to participants.
In interpreting this Agreement, unless the context provides otherwise:
(a) words or expressions used in this document, which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or the Corporations Act 2001 (Cth) have the same meaning in this document;
(b) the singular includes the plural and vice versa, and a gender includes other genders;
(c) another grammatical form of a defined word or expression has a corresponding meaning;
(d) a reference to a person includes a natural person, partnership, body corporate, association, and any Government Agency;
(e) a reference to a party means a party to this Agreement and includes the party’s executors, administrators, successors, substitutes (including by novation) and assigns;
(f) a reference to a statute, regulation, code or provision of a statute, regulation or code includes any modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(g) “including” and similar expressions are not words of limitation;
(h) costs and expenses include legal costs and expenses on a full indemnity basis;
(i) conduct includes an omission, statement or undertaking, whether or not in writing;
(j) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it;
(k) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and
(l) headings and table of contents are for ease of reference only and do not affect interpretation.
Blooms Online Pty Ltd, & Blooms Painting Workshops Pty Ltd
PO BOX 598 Kapunda 5373 SA