Nikon Professional Services ("NPS") Australia Terms and Conditions ("Terms and Conditions")
Please read these Terms and Conditions carefully. By accessing or using the Nikon Australia Pty Ltd ("Nikon") NPS web portal, at the URL/domain name http://nps.nikon.com.au and/or any contents or services therein, you, as an NPS member and user of the Site, hereby accept and agree to abide by these Terms and Conditions, and any additional terms & conditions and/or Site Policies governing specific services provided on the Site, as may be added from time to time.
Nikon reserves the right in its sole and absolute discretion to modify without prior warning or notice the Terms and Conditions. You agree that your continued participation in the NPS and/or the use of the Site after such modification shall constitute acceptance of the modifications and your agreement to abide by and be bound by such modifications. As such, Nikon recommends and advises you to regularly visit this web page to review the prevailing Terms and Conditions.
If you do not agree with any of the above, please discontinue your use of the Site and/or any content or services therein and do not register to be an NPS Member.
You must read these Terms and Conditions, and click on the "I agree" icon at the end of this page before accessing or using the Site.
• “Agreement” shall mean these Terms and Conditions and any additional terms and/or Site Policies which may be applicable at different stages of usage of the Site.
• "Content” shall refer to all and any Software (as defined below), data, information, articles, films, materials, sound recordings and/or images that Nikon or a NPS Member posts, uploads or transmits on or through the Site (including without limitation all intellectual property rights that such items contain).
• “NPS Global Support and Services” shall mean the prevailing policy that allows an eligible NPS Member to obtain support and have their equipment serviced at NPS global network sites operated by the Nikon Group.
• "NPS Member" shall mean a member of the NPS.
• "NPS Membership" shall refer to membership of the NPS.
• "NPS Membership ID" shall refer to the unique NPS user identification that is created upon registration of NPS Membership.
• "Nikon" shall refer to Nikon Australia Pty Ltd.
• “Services” shall refer to all services provided by Nikon to NPS Members within or via the Site.
• “Site” shall refer to the URL/domain name http://nps.nikon.com.au and/or any contents or services therein.
• "Software" refers to materials encompassing any software code, including programs, tools, utilities, files and otherwise, and accompanying documentation that are made accessible and/or made available for download via the Site.
• “Nikon Group” refers to Nikon Imaging’s network of companies worldwide.
2. SCOPE OF THIS AGREEMENT
2.1 The Terms and Conditions govern the use of the Site and/or the Content or Services therein.
2.2 By accessing the Site, NPS Members agree to comply with and observe all applicable laws, regulations, codes of practice and directives including without limitation the laws of Australia in connection with access to, and use of, the Site.
2.3 By accessing and/or performing transactions on the Site, NPS Members are deemed to be a user of the Site. These Terms and Conditions are applicable to the Site, but not necessarily to other Nikon web sites on the World Wide Web. When leaving the Site, please read any terms and/or guidelines of use applicable to such web sites to ensure that you agree with the terms and/or guidelines of use applicable to that web site.
2.4 Nikon controls and maintains the Site from the Republic of Singapore and the Site is intended for use within Australia. Nikon makes no representation that the Content contained herein is appropriate or available for use in other locations/jurisdictions outside Australia.
3. ACCOUNT SECURITY
3.1 NPS Membership is non-transferable, whether temporarily or permanently.
3.2 You shall not acquire any rights to your NPS Membership ID or password selected by you or assigned to you by Nikon. Nikon reserves the right to change the same, at its sole discretion, without, to the maximum extent permitted by law, being liable to you for any loss or damage of any nature whatsoever (whether direct, indirect, incidental, punitive, exemplary or consequential) suffered.
3.3 You are solely responsible for any and all activities and transactions performed under your NPS Membership ID. This includes but is not limited to any and all use of the Services and for any and all Content posted, promoted or transmitted under your NPS Membership ID.
3.4 Any transaction or use of the Site under your NPS Membership ID which is authenticated by your password shall be deemed to be by you, on your behalf or as your agent, with due authorisation from you at all times. Any transaction made on the Site under your NPS Membership ID shall be binding on you.
3.5 You are solely responsible for the confidentiality of your NPS Membership ID and password (including but not limited to changing your password from time to time and not releasing the information to third parties).
3.6 You shall notify Nikon immediately if you become aware of, or have any reason to believe, that there is any unauthorized use of your NPS Membership ID or any other breach of security. You agree to co-operate with Nikon in all such security investigations and to indemnify, defend and hold harmless Nikon for costs, losses, damages, proceedings, claims, liabilities or expenses arising from such use or misuse. To the maximum extent permitted by law, Nikon will not be liable for any loss or damage arising from your failure to comply with this requirement.
3.7 Nikon reserves the right to suspend access or change access to your account upon notification by you that your password has been lost, stolen or otherwise compromised.
4. GRANT OF LICENCE TO NIKON
4.1 You acknowledge that by posting, uploading, transmitting or submitting any Content on or through the Site, you automatically grant Nikon, companies within the Nikon Group and Nikon's affiliates an irrevocable, perpetual, non-exclusive, transferable, worldwide, royalty-free licence (with the right to sub-licence) to use, store, copy, display, publish, transmit, transfer, distribute, reproduce, create derivative works of, incorporate into other works and publicly perform or display that Content on the Site or for any purpose Nikon deems necessary.
4.2 In respect of any information or Content which you submit to Nikon using the Site, you warrant that you own the Content or otherwise have the right to grant the licences specified in this Clause 4, and that the submitting or posting of the Content does not infringe the confidentiality, intellectual property rights or any other rights of any person. You hereby agree to grant Nikon, companies within the Nikon Group and Nikon's affiliates, an irrevocable, perpetual, non-exclusive, transferable, world-wide, royalty-free licence (with the right to sub-licence) to use such information or Content for any purpose it deems necessary, including without limitation, the copying, transmission, distribution, broadcast and publication thereof, unless restricted by applicable law.
4.3 In addition, you hereby grant to Nikon, companies within the Nikon Group and its affiliates a world-wide perpetual right to use, without any compensation to you, any ideas, concepts, know-how, or techniques contained in any Content submitted to Nikon for any purpose whatsoever, including without limitation, developing, manufacturing, and marketing products using such information or materials. Nikon shall also be entitled to make use of, to publish and to make available, in any way, any demographical and statistical data it collates from your usage of the Site.
5. NPS MEMBERS' RESPONSIBILITIES
5.1 You shall be solely responsible for the set-up, configuration or compatibility of your hardware, equipment and software for access to the Site and you shall provide at your own expense all facilities or resources necessary for such proper access.
5.2 You must not use or allow any part of the Site to be used:
5.2.1 to acquire or attempt to acquire passwords, financial or personal information from NPS Members;
5.2.2 to use an obscene or offensive handle or name;
5.2.3 to engage in actions designed to disrupt or otherwise reduce other NPS Members' enjoyment of the Site;
5.2.4 to interfere with or disrupt the service, servers, or networks connected to the service, or disobey any requirements, procedures, policies, or regulations of networks connected to the service; and/or
5.2.5 to create any other circumstances whereby other NPS Members are affected in their access to, and use of, the Site.
5.3 Nikon reserves the right to, in its sole and absolute discretion, to delete any Content which Nikon determines to be in violation of the Terms and Conditions and/or Policies and/or in some or any way objectionable as determined by Nikon.
6. SITE CONTENT
6.1 You acknowledge and agree that:
6.1.1 information and materials which you find published on the Site may be the property of Nikon or others, and may be protected by and/or contain various intellectual property rights, including without limitation copyrights and trade marks. You may not copy, redistribute or commercially exploit such materials without the express written permission of the owner(s) of such information or materials; and/or
6.1.2 from the Site, you can access third party Internet sites and services. You acknowledge that Nikon has no control over such third party Internet sites and services, and that to the maximum extent permitted by law Nikon is not responsible or liable in any way for any activities and/or content of such third party Internet Sites. Nikon makes no representation of any endorsement, sponsorship, affiliation or approval by Nikon, its related bodies corporate, directors or officers of the content, products or services appearing in such third party Internet sites.
6.2 Nikon reserves the right, in its sole and absolute discretion, but is under no obligation, to refuse to post, delete or edit any information or Content that you submit or enter into the Site. You agree that you will not hold, nor seek to hold, Nikon liable for the loss of data or the misappropriation or infringement of any intellectual property right to which you claim ownership.
6.3 You must not do anything that would cause Nikon or the Site to be brought into disrepute.
6.4 Where expressly provided for by Nikon on the Site, Content may be available for download by you. Nikon hereby grants you a non-exclusive, limited, non-transferable, royalty-free right to download the Content for your personal and non-commercial use only. You shall not sub-license, distribute, adapt, modify, create derivative works from, decompile, or reverse engineer the content without the prior written consent of Nikon.
7. PROVISION OF INFORMATION
7.1 You are required to provide information about yourself for registration or otherwise which is complete and accurate. You may update the information online from time to time by contacting Nikon at email@example.com.
7.2 You must promptly inform Nikon of any:
7.2.1 changes in your contact details;
7.2.2 breaches of security, including loss, theft, or unauthorised disclosure or use of your NPS Membership ID or password; and
7.2.3 changes in your e-mail address.
7.3 You agree that as part of the NPS Global Support and Services, all information provided by you (whether as part of registration or use of the Site or otherwise) will be provided and released to the Nikon Group.
7.4 Nikon excludes any liability resulting from or in connection with any failure by you to advise Nikon of any change in your personal details.
7.5 Until Nikon receives notice of a breach of security, you remain fully liable for any unauthorised use under your NPS Membership ID.
8. USE OF AND DOWNLOAD OF SOFTWARE FROM THE SITE
8.1 The Software is the copyrighted and protected work of Nikon and/or its third party suppliers. Use of the Software is governed by the terms of the licence agreement that accompanies or is included with the Software, or by the licence agreement expressly stated on the Site accompanying the Software. By using, downloading and/or installing the Software, you hereby agree to abide by the terms of such licence agreement.
8.2 Except as indicated to the contrary elsewhere on this Site, you may view and download the Software available on this Site subject to the following conditions:
8.2.1 The Software may be accessed and used solely for personal and non-commercial purposes.
8.2.2 The Software may not be distributed or sold, rented, leased, licensed or otherwise made available by you to others.
8.2.3 You may not remove any copyright or other proprietary notices contained in the Software.
8.2.4 Nikon reserves the right to revoke the authorisation to view, use or download the Software available via this Site at any time, and any subsequent viewing or downloading of the Software shall be discontinued immediately upon notice from Nikon.
8.3 You agree that you will not decompile, reverse engineer or otherwise attempt to discover the source code of the Software. The Software is made available solely in accordance with the licence agreement. Without limiting the foregoing, unless the accompanying licence agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or reproduction of the Software to any other server or location for further reproduction or redistribution.
8.4 Any unauthorised use, copying or distribution of the Software is expressly prohibited by law, and may result in severe civil and criminal penalties.
9.1 Unless restricted by applicable law, you agree that any and all personal information/data relating to you collected by Nikon from the Site from time to time may be used and disclosed for such purposes and to such persons as may be in accordance with these Terms and Conditions and Nikon's Privacy Statement.
9.2 You agree that Nikon shall not be under any obligation of confidentiality to you regarding Content posted, uploaded or transmitted to Nikon by you on the Site unless agreed otherwise in a separate direct contract between you and Nikon or as required by law.
9.3 All areas and portions of the Site are considered public and, as such, there is no expectation of privacy or confidentiality. Nikon reserves the right to maintain, and make use of chat logs, and any other means that it deems in its sole and absolute discretion necessary and/or appropriate, to ensure that users of the Site are complying with the Terms and Conditions and/or any applicable Site Policies.
9.4 See our Privacy Statement for more details on how Nikon deals with your personal information http://nps.nikon.com.au/pages/privacy.asp.
10. INTELLECTUAL PROPERTY
10.1 Nikon is the owner or authorised user of any and all intellectual property, rights and interests (including without limitation copyright) in the Site. All Contents of the Site including, but not limited to the text, films, graphics, links and sounds are the copyright of Nikon or its licensors.
10.2 Where expressly provided for by Nikon, some Contents may be available for download by you. Nikon hereby grants you a non-exclusive, limited, non-transferable, royalty-free right to download the Content for your personal and non-commercial use only. You must not otherwise copy, download, sub-license, distribute, adapt, modify, create derivative works from, decompile, reverse engineer or otherwise deal with in any way all or any of the Contents or components of the Site without the prior written consent of Nikon, such consent to be provided or withheld in Nikon's absolute discretion.
10.3 Although Nikon authorises you to view and access the Contents of the Site solely for your personal and non-commercial use, you may not otherwise copy, download, distribute, display, perform, adapt, modify, publish, create derivative works from, decompile, reverse engineer or otherwise deal with in any way all or any of the contents of the Site without the prior written consent of Nikon.
10.4 All marks, business and trade names, indicia of origin and logos (whether registered or unregistered), including but not limited to "Nikon", "COOLPIX" and "COOLPIX CONNECT" used on the Site (unless otherwise stated) are trade marks, service marks and intellectual property rights held by Nikon and/or companies within the Nikon Group. No permission or licence is granted to use any intellectual property right without the prior written consent of Nikon, companies within the Nikon Group or its legal representatives (as the case may be). You must not use or register as a trade mark, business name or domain name any word, trade mark, name or logo similar to those used by or associated with Nikon.
11. NO WARRANTIES
11.1 To the extent permitted by law, Nikon makes no warranties on the future availability of any Content on the Site. Nikon reserves the right to modify or discontinue any Content on the Site at any time, for any reason, without any advance notice to NPS Members.
11.2 Nikon does not guarantee that any emails sent from the Site will be received by you or received by Nikon if sent by you nor does Nikon warrant the privacy and/or security of e-mails during Internet transmission.
11.3 To the maximum extent permitted by law, Nikon makes no guarantee, endorsement, representation or warranty, term or condition of any kind, express, implied or statutory in relation to the Site, the Content or the products advertised, provided and/or made available on the Site (including the Software and downloadable Content), including any guarantee, endorsement, representation, warranty, term or condition that the Site, the Content, the Software or any associated products are of good title, correspond with description, of acceptable quality or merchantable, of satisfactory fitness or quality for any general or particular purpose. Except as required under applicable law, Nikon is not under any obligation to provide any walk-in, house call, backup or technical support or any other post-sale service. All products made available to you shall be the subject matter of a separate contract between yourself and Nikon. Further, Nikon shall not in any way be responsible for the non-receipt of any order you make, or any delay in the delivery of any product you may order.
11.4 To the maximum extent permitted by law, Nikon makes no guarantee, endorsement, representation or warranty, term or condition of any kind, express, implied or statutory regarding the Site and its operation, or the Content contained or referred to on each page herein including the Software and downloadable Content. To the maximum extent permitted by law, the Site and its available materials and information including the Software and downloadable Content and the products are provided on an "as is" and "as available" basis.
11.5 To the maximum extent permitted by law, Nikon makes no guarantee, endorsement, representation or warranty, term or condition in respect of any accuracy, quality, completeness, timeliness, satisfactory quality, acceptable quality, merchantability, fitness for a general or particular purpose, non-infringement or title of any software (including the Software), communications, transmissions, information, data, product or service provided pursuant to the Site.
11.6 Nothing in these Terms and Conditions attempts to limit or exclude liability for death or personal injury arising from Nikon's negligence or fraud.
11.7 Nikon acknowledges that State and Commonwealth legislation in Australia implies certain non-excludable guarantees, warranties and conditions into particular agreements for the supply of goods and services, which cannot be excluded, restricted or modified ("Non-Excludable Guarantees"). Nikon does not exclude, restrict or modify the Non-Excludable Guarantees and nothing in Clauses 11.3 – 11.5 or any other provision of these Terms and Conditions is intended or is to be construed as doing so. Accordingly, nothing in this document affects any remedies available to you at law and which cannot be lawfully excluded by Nikon, including in respect of any of the Non-Excludable Guarantees which may be applicable to any goods or services provided by Nikon to you.
12.1 Without prejudice to the other provisions of these Terms and Conditions and to any other rights and remedies which Nikon may possess, to the maximum extent permitted by law, you hereby agree to indemnify and hold Nikon harmless at all times against all actions, proceedings, costs, claims, expenses (including all legal costs on a full indemnity basis), demands, liabilities, losses (whether direct, indirect or consequential) and damages (whether in tort, contract or otherwise) whatsoever and howsoever arising, including without limitation claims made by third parties and claims for defamation, infringement of intellectual property rights, death, bodily injury, wrongful use of computers, unauthorised or illegal access to computers (including but not limited to hacking), property damage or pecuniary losses which Nikon may sustain, incur, suffer or pay arising out of, in connection with or pursuant to your access to and/or your use of the Site, whether or not such access or use was authorised or whether it was due to any act or omission on your part, your violation of this Agreement including any abusive or unlawful behaviour on the part of you or anyone using your NPS Membership ID or password, and/or infringement of any intellectual property or other right of any person in connection with your use of any portion of the Site or your NPS Membership ID. For the purposes of this Clause, any reference to the use of the Site shall include but is not limited to the Software and downloadable Content or the purchase of any product by you.
13. EXCLUSION/LIMITATION OF LIABILITY
13.1 To the maximum extent permitted by law, Nikon disclaims all liability (including any indirect, special, incidental or consequential damage or loss) suffered or incurred by any person, whether directly or indirectly, by reason of any use or misuse of, or reliance upon, the Site, including but not limited to any loss, damage or expense arising from or in connection with any defect, error, imperfection, fault, mistake or inaccuracy in, of, or on the part of (as is applicable) the Site or its Contents, the downloadable Content or due to any unavailability of the Site or any part thereof or any contents or associated Products or services.
13.2 To the maximum extent permitted by law, Nikon assumes no responsibility, and shall not be liable, for any damage your computer equipment or other property, or for any loss or corruption of data arising from your access to, use of, uploading or downloading of any Content to or from the Site, howsoever caused, whether by reason of software and/or hardware issues, including but not limited to viruses, Trojan horses, worms, software bombs or similar items or processes.
13.3 If you become entitled to obtain any legal remedy for breach of this Agreement or breach of the Non-Excludable Guarantees then to the maximum extent permitted by law that remedy will be limited to the right:
13.3.1 if the breach relates to goods – the replacement or repair of the goods, the supply of equivalent goods or the payment of the cost of replacing the goods or of acquiring equivalent goods; or
13.3.2 if the breach relates to services, the re-supply of the services or the payment of the cost of having the services re-supplied.
13.4 Without limiting the above, to the maximum extent permitted by law Nikon shall not have any liability for any delay or default in its operation of the Site caused by circumstances beyond its control including but not restricted to acts of God, epidemics, acts of the public, enemy, decrees or restraints by governmental authorities, telecommunications, computer or utilities failure, strikes, war, riots, insurrections, civil commotion and other causes of such nature. In any of the events mentioned above occurs, Nikon shall for the duration of such event, be relieved of any such obligation under these Terms and Conditions as is affected by the said event, provided that the provisions of the Terms and Conditions shall remain in force with regard to all other obligations which are not affected by such event and provided further that the parties shall resume their full obligations under these Terms and Conditions upon the cessation of such event.
13.5 You acknowledge that the circumstances could arise in which the remedies and limitations on liability set forth in these Terms and Conditions may appear insufficient to you. In light of the terms hereunder, and to the extent permitted by law, Nikon and you have agreed that the limited remedies and liabilities set out herein are part of a reasonable allocation of the risks and benefits of the agreement between Nikon and you, taking all relevant factors into consideration including the value of the consideration provided by you and the availability of costs of insurance with respect to the said risks.
13.6 For the avoidance of doubt, it is acknowledged and agreed that nothing in this Clause affects any remedies available to you in respect of a breach of any of the Non-Excludable Guarantees which cannot be lawfully limited or excluded by Nikon.
14.1 In case of any conflict or inconsistency between any provision of the Terms and Conditions and any provision of the Site Policies as applicable to NPS Members in relation to the Site, such conflict or inconsistency will be resolved in a manner most favourable to Nikon.
14.2 However, if such conflict or inconsistency cannot be resolved, the provisions of the Terms and Conditions will prevail over the provisions of the Site policies.
15. GOVERNING LAW
15.1 These Terms and Conditions are governed by the laws of Australia and any dispute arising out of or in connection with it shall be subject to the exclusive jurisdiction of the courts of Australia.
16. GOODS AND SERVICES TAX
16.1 In this clause:
16.1.1 "GST Law" means A New Tax System (Goods & Services Tax) Act 1999 (Cth) and Regulations and any other similar or related act or regulation; and
16.1.2 taxable supply, tax invoice, recipient, supplier and supply have the same meaning as defined in the GST Law.
16.2 Unless otherwise provided for in these Terms and Conditions or the Site, any amount payable via the Site or pursuant to these Terms and Conditions is expressed exclusive of GST.
16.3 If a supply made via the Site or pursuant to these Terms and Conditions is a taxable supply, the recipient shall pay on demand to the supplier, any GST payable on that supply in addition to any other amount that may be payable by the recipient to the supplier for that supply pursuant to these Terms and Conditions provided that the supplier provides to the recipient a valid tax invoice in the form prescribed by the GST Law within fourteen (14) days of such payment.
17.1 These Terms and Conditions may be amended by Nikon at any time, such amendments to take effect immediately upon posting of the amendments on the Site.
17.2 You must not assign or transfer any of your rights or obligations under these Terms and Conditions without the prior written consent of Nikon. Nikon may assign or transfer its rights or obligations under these Terms and Conditions at any time without obtaining your consent.
17.3 You must do everything necessary or reasonably required by Nikon to give full effect to the purposes, and transactions contemplated by, these Terms and Conditions.
17.4 The relationship between the parties is and will remain that of independent contractors, and nothing in these Terms and Conditions constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.
17.5 No waiver by a party of any breach or default by any other party is effective unless reduced to writing and signed by the party making such waiver, and any such waiver does not constitute a waiver of any other continuing breach or default under these Terms and Conditions.
17.6 If any provision of these Terms and Conditions is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.