This document (together with the documents referred to in it) sets out the terms and conditions (Terms) on which the Madcap Gallery (“we”, “us” or “our”) promotes the sale of art works (Work/s) through its website, www.madcapgallery.co.uk (website) as agent of the Artists who’s Work is displayed on the website.  It should be understood that we act as agent (Agent) for the creator  of the Work (Artist/s) and that by ordering any of the Works displayed, the consumer (“you”, “your” / Consumer) will be entering into a contract for sale (Contract) with the Artist for the sale of his/her Work.
 
In accessing the site you are agreeing to adhere to these Terms, which should be read carefully before ordering any Work/s from the site.  A copy of these Terms should be printed off by you for future reference.

About Madcap Gallery
Madcap Gallery has been created as a medium for promoting and selling the Works of Peter Blood, Julie Blood, their friends and colleagues.  Madcap Gallery can be contacted c/o The Osprey Company, Guards Road, Coldstream, Berwickshire, Scotland TD12 4EE.
 
Accessing our website
Access to our website is permitted on a temporary basis, and we reserve the right to withdraw or amend its content without notice.  We will not be liable if for any reason our website is unavailable at any time or for any period.

From time to time we may restrict access to some parts of our website, or our entire website, to users who have registered with us.

In the event that you are provided with a user name/identification code, password or any other piece of information as part of our security procedures, you agree to treat such information as confidential, and you must not disclose it to any third party.  The protection of your user name/identification code and password is your responsibility.  We have the right to disable any user name/identification code or password, whether chosen or allocated by us, at any time, if in our opinion you have failed to comply with any of these Terms.

Those wishing to purchase any of the Artists Work displayed on our website must accept and agree to these Terms.

Intellectual Property Rights
We are the owner or licensee of all intellectual property rights on our website and in the material published on it. The Works displayed are protected by copyright laws around the world.  All such rights are reserved.

Any material downloaded from our website can be for personal reference only and must not be modified in any way.  It cannot be used for commercial purposes without first obtaining a license from us or our licensors.

Explanation of Copyright
Copyright gives protection to, amongst others, originators of artistic Work, providing them with the right to control the use or commercial exploitation of a Work created by them.  This includes rights to authorise or prohibit copying of the Work or its adaption.

Works which benefit from copyright protection are laid down by statute and include, “original artistic work”.
For artistic Work to be deemed “original” it must have been the result of “independent creative effort”.

Consumers in purchasing a Work acquire the title to that Work but do not obtain the right of copyright.

Reliance on information posted
Commentary and other materials posted on our website are not intended to amount to advice on which reliance should be placed.  We therefore disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor to our website, or by anyone who may be informed of any of its contents.

Changes to our website
We aim to change our website regularly and may change the content at any time.  If the need arises we may suspend access to our website, or close it indefinitely.  Material on our website may be out of date at any given time and we are under no obligation to update such.

Our liability
The material on our site is provided without any guarantees, conditions or warranties as to its accuracy.  To the extent permitted by law, we, the creator of any Work displayed on our website and all third parties connected to us hereby expressly exclude :

• All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity.

• Any liability whatsoever for any direct, indirect or consequential loss or damage incurred by any user in connection with our website or in connection with its use, inability to use, or resulting from the use of our website.

This does not affect our liability for death or personal injury arising from our negligence, nor our liability for fraudulent misrepresentation or representation as to a fundamental matter, nor any other liability that cannot be excluded or limited under applicable law.

Information about you and your visits to our website
We process information about you in accordance with our Privacy Policy which is displayed on our website.  By using our website you consent to such process and you warrant that all data provided by you is accurate.

Viruses, hacking and other offences
You must not misuse our website by knowingly introducing viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful.  You must not attempt to gain unauthorised access to our website, the server on which our website is stored or any server, computer or database connected to our website.  You must not attack our website or a distributed denial-of-service attack.  By breaching this provision you would commit a criminal offence under the Computer Misuse Act 1990 and be liable to be reported to law enforcement agencies.

Links from our website
Where our website contains links to other sites and resources provided by third parties, these links are provided for information only.  We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.

Status of Madcap Gallery
We are appointed by the Artist to act as his/her Agent in the promotion and sale of his/her Work through our website.

As a Consumer, you on purchasing a Work will be entering into a Contract with the Artist for the sale of that Work.

The conditions appertaining to the sale of all Works displayed on our website are set out below. 

Your status as a Consumer
By placing an order through our website you warrant that:
• You are legally capable of entering into binding contracts; and
• You are at least 18 years old; and
• You are accessing our website from the country in which you are resident.

Relationship between the Consumer and Madcap Gallery
On placing an order you will receive an e-mail from us acknowledging its receipt.  It should be noted that this does not mean that the order has been accepted, but that the order constitutes an offer to buy a Work through our website.

All orders are subject to acceptance by the Artist.  Once this is given, we will confirm acceptance to you by e-mail.  The estimated date of dispatch will be given at this time.

When the date of dispatch is known, we will inform you along with the expected date of delivery.  The date of dispatch is the effective date in creating the Contract between the Artist and the Consumer.

The Contract will relate only to those Work/s for which a date of dispatch has been sent to the Consumer.  Other Works which may have been ordered at the same time are subject to a separate Contract once the dispatch of such Works has been confirmed in a separate dispatch confirmation.

Consumer rights
We act in accordance with Distance Selling Arrangements which enable you to cancel a Contract in writing to us at any time within seven working days, beginning on the day after receipt of the Works.  In this case a full refund of the price paid for the Works will be made by the Artist in accordance with the conditions of our Return and Refunds Policy set out below.  This “cooling off” period extends only to Consumers resident within the European Union.
In the event of cancellation of a Contract you must also return the Works to the Artist in line with our Returns and Refunds Policy.

You will not have any right to cancel a Contract for the supply of any of the following Works :
• Personalised items, made or ordered with the Consumer’s choice of fabric or material, or including a customised aspect, e.g. name or size.  Also carrying a name or text.
• Jewellery – for reasons of hygiene.
• All specially commissioned Works
• Bespoke items of furniture or hardware.

Availability and delivery
An order will be fulfilled by the Artist by the delivery date given in the dispatch confirmation or, if no delivery date is specified, then within a reasonable time of the estimated date of dispatch provided in the dispatch confirmation, unless there are exceptional extenuating circumstances.

Risk and title
The Works will be at the Consumers risk from the time of delivery.

Ownership of the Works will pass from the Artist to you on dispatch of the Work, subject to us, as Agent for the Artist, having received full payment of all sums due to the Artist in respect of the Works, including all delivery charges.

Price and payment
The price of the Works and the Artist’s delivery charges will be as quoted on our website from time to time, except in cases of obvious error or when the cost of delivery of a specific Work needs to be advised to the consumer.

Work prices will include United Kingdom VAT, where applicable.

Work prices and delivery charges are liable to change at any time, but changes will not affect orders in respect of which we have already sent a date of dispatch confirmation.

In the event of a Work being erroneously priced on the site, we will inform the Consumer of the error and its impact on and any changes required to your order.

Payment for all Works must be by credit or debit card.  We accept payment on behalf of the Artist concerned through WorldPay by all major credit and debit cards.  Subject to agreement with us payment may be arranged by way of bank transfer to our merchant account.

Returns & Refunds Policy
Consumers resident within the European Union are accorded a “cooling off” period of seven working days under Distance Selling Regulations from the date of delivery of the purchased Work, during which they may cancel in writing their Contract to purchase.  This applies to all purchases save those of a personalised nature as detailed under Consumer Rights above.

In the event that a Consumer elects to cancel a purchase the Work must be returned to the Artist, undamaged and securely packaged, within fourteen days.

When a cancelled Work is returned to the Artist:
We will on receiving confirmation from the artist of its return and satisfactory condition arrange to refund the Consumer within 30 days of receipt of notice of cancellation.  In this case the price of the Work will be refunded in full together with the original delivery charges.  However the Consumer will be responsible for the cost of returning the Work to the Artist.

In all other circumstance and for any other reason a Consumer decides to return a purchased Work which is deemed to be defective or because of a change in our Terms or for any other reason the Consumer must notify us at peter@ospreyco.com within twenty four hours of receipt of the Work of their intention to return a Work stating clearly the reason for doing so.   The Work must be returned to the Artist within fourteen days.  On its return the Artist will examine the Work and the Consumer notified of his/her decision with regard to any refund within a reasonable period of time.  The price of any defective Work will be refunded in full together with the cost of the original delivery charges and any reasonable costs borne by the Consumer in retuning the Work.  We will endeavour to make any refund within 30 days.  We will usually refund any money due to the Consumer using the same method originally used by the Consumer to pay for the purchase of the Work.
 
Warranty
The Artist warrants to you that any Work purchased from the Artist through our website will, on delivery conform in all material respects with its description, be of satisfactory quality, and be reasonably fit for purpose.

Artists liability
You agree and understand that we act solely as Agents for the Artist and therefore have no liability to you on any basis whatsoever and that your sole recourse shall be against the Artist.

Should the Artist fail to comply with these Terms any liability arising from their actions extends solely to the purchase price of the Work in question.

The Artist cannot be held liable for any consequential losses whatsoever suffered by the you.

Nothing in this agreement excludes or limits the Artists liability for:
· death or personal injury caused by their negligence;
· fraud or fraudulent misrepresentation;
· any breach of the obligations implied by section 12 of the Sale of Goods Act 1979;
· defective Works under the Consumer Protection Act 1987;
· any deliberate breaches of these Terms that would entitle you to terminate your  Contract with the Artist or
· any other matter for which it would be illegal for us to exclude or attempt to exclude our liability.

Import duty
If a Consumer orders Work/s from our website for delivery outside the UK, they may be subject to import duties and taxes which are levied when the delivery reaches the specified destination.  The Consumer will be responsible for payment of any such import duties and taxes.  Please note that we have no control over these charges and cannot predict their amount.  The Consumer should contact their local customs office for further information before placing an order.

Please also note that it is the Consumers responsibility to comply with all applicable laws and regulations of the country for which the Works are destined.  The Consumer will be liable for any breach by them of any such laws.

Written communications
Applicable laws require that some of the information or communications we send to you should be in writing.  When using our site, you accept that communication will be mainly electronic.  We will make contact by e-mail or provide you with information by posting notices on our website.  For contractual purposes, you agree to this electronic means of communication and acknowledges that all contracts, notices, information and other communications provided by us electronically comply with any legal requirement that such communications be in writing.  This condition does not affect any of your statutory rights.

Notices
All notices given by you to us must be given to Creative Arts Gallery Limited at peter@ospreyco.com. We may give notice to the Consumer at either the e-mail or postal address provided to it when placing an order, or in any of the ways specified above.  Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter.  In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
 
Transfer of rights and obligations
The Contract between the Consumer and the Artist is binding.

The Consumer is not able to transfer, assign, charge or otherwise dispose of a Contract, or any of their rights or obligations arising under it, without the Artists prior written consent.

The Artist may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of rights or obligations arising under it, at any time during the term of the Contract.

Events outside the Artists control
The Artist cannot be held liable or responsible for any failure to perform, or delay in performance of, any of the obligations under a Contract that is caused by events outside their reasonable control (Force Majeure Event).

A Force Majeure Event includes any act, event, non-happening, omission or accident beyond the reasonable control of the Artist and includes in particular (without limitation) the following:
· strikes, lock-outs or other industrial action;
· civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
· fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster.
· impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
· impossibility of the use of public or private telecommunications networks;
· the acts, decrees, legislation, regulations or restrictions of any government.

The Artists performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and allows for an extension of time for performance for the duration of that period.  The Artist will use reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which the obligations under the contract of sale may be performed despite the Force Majeure Event.

Waiver
Failure at any time during the term of a Contract, to insist upon strict performance of any of the Consumer’s obligations under it or any of these Terms, or failure to exercise any of the rights or remedies to which the Artist is entitled under the Contract, will not constitute a waiver of such rights or remedies and will not relieve the Consumer from compliance with such obligations.

A waiver by the Artist of any default will not constitute a waiver of any subsequent default.

No waiver by the Artist of any of these Terms will be effective unless it is expressly stated to be a waiver and is communicated to the Consumer in writing in accordance with handling of Notices set out above.

Severability
If any of these Terms or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining Terms, and all other conditions and provisions will continue to be valid to the fullest extent permitted by law.

Entire agreement
These Terms and any document expressly referred to in them constitute the whole agreement between both the Consumer and the Artist, and us, to the extent that we act as Agent for the Artist, and supersedes all previous discussions, correspondence, negotiations, previous arrangements, understanding or agreement to the subject matter of any contractual arrangement between parties.

Each party acknowledges that, in entering into a Contract for the purchase of an Artist’s Work, it was not reliant on, or will have any remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms or the documents referred to in them.

Nothing in this clause limits or excludes any liability for fraud.

Madcap Gallery’s right to vary its terms and conditions
We have the right to revise and amend these Terms from time to time to reflect changes in market conditions affecting its business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes to the website’s design.

The Consumer will be subject to the policies and Terms in force at the time an order for Works is made, unless any change to those policies or Terms is required to be made by law or governmental regulation, in which case it will apply also to orders previously placed.

Law and jurisdiction
Contracts for the purchase of Works arising from orders placed through this Site and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by Scottish law.  Any dispute or claim arising out of or in connection with such Contracts or their formation (including non-contractual disputes or claims) will be subject to the non-exclusive jurisdiction of the courts of Scotland.