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1.Definitions
"Customer" means the party seeking to order and pay for the
Product through the Nitro Global website at http://www.nitroglobal.com/; "Nitro
Global" is a company registered in Australia with ACN 111 849 088; "Product"
means all software (and also hardware, accessories and services, if any)
supplied by Nitro Global to Customer via the Nitro Global website and "Products"
has like meaning; "Online Order" means an order placed by a Customer utilising
the Nitro Global secure online ordering service; Nitro Global Refunds Procedure
shall be as may be set out herein or otherwise as detailed on the Nitro Global
website, from time to time; and, "Terms and Conditions" shall, subject to 17
below, include Nitro Global's Terms and Conditions for Online Trading, the
Download Accelerator Software End User License Agreement and any other
conditions as included on the Nitro Global website.
2.All Online Orders Subject to Terms and Conditions
(a) Subject to availability of Product and to Nitro Global’s
right to refuse in its absolute discretion to accept any order, Nitro Global
shall supply to the Customer, Product in such quantities and at such prices and
in such manner as described on the Nitro Global website, such trade shall be
subject to the Terms and Conditions.
(b) Terms and Conditions contained in any form, order or other
writing of the Customer, its representative or agent which are at variance with
or additional to the Terms and Conditions are not binding upon Nitro Global or
any other party unless specifically accepted by Nitro Global in writing.
3. Delivery of Product
(a) Nitro Global in its absolute discretion will, if it accepts
an order from a Customer following payment being authorised and acknowledged by
its bank, arrange download delivery of the Product to the Customer at the
address specified in the Customer's order.
(b) Except pursuant to a specific prior arrangement and at the
cost of the Customer, Nitro Global will not be bound to deliver any Product to
any Customer or third party outside of Australia, New Zealand, Philippines,
Indonesia, Singapore, Thailand, Malaysia and Israel.
4. Terms of Payment
(a) Payment for the Products shall be made in full (including
but not necessarily limited to on any periodic basis, for example, month to
month) by the Customer to Nitro Global in accordance with the Terms and
Conditions without deduction, set-off or demand, utilising a secure payment
system provided by Nitro Global.
(b) Allow for online delivery of Nitro Global Product.
(b) If the Customer fails to make payment in accordance with
sub-clause 4(a) above for any order of the Product, Nitro Global may in its
absolute discretion suspend or cancel the supply of the Product to the Customer
until all amounts owing by the Customer are paid in full.
5. Price Variation
(a) Subject to the other provisions of this clause 5 the price
payable for the Products shall be Nitro Global's advertised price for the
Products on the Nitro Global Internet Website at the time when the order is
accepted by Nitro Global.
(b) Nitro Global will use all reasonable care to avoid, but will
not be responsible for, any typographical or other errors or omissions regarding
prices or other information.
(c) Prices and configurations are subject to correction or
change by Nitro Global without notification.
(d) Promotional offers and prices are for the limited time
specified in the offer and can be withdrawn at any time without notice.
(e) If any government imposes a duty, tax (other than income
tax) or fee on any Product or the sale of any Product, not otherwise provided
for in Nitro Global's prices or charges, the Customer agrees to pay
it when required by Nitro Global.
6. Orders
All orders are subject to acceptance by Nitro Global. Nitro
Global will not be responsible for any delays in delivery or supply of the
Product caused by any reason beyond the control of Nitro Global including but
not limited to delivery difficulties for whatsoever reason. Provided the Product
ordered by a Customer has not been delivered (electronically or otherwise) the
Customer can cancel any order and apply for a refund if payment has been made.
This can only be done by the customer contacting Nitro Global's Customer Service
team on tel: 612-9659-1825.
7. Year 2000 Disclaimer
(a) Nitro Global does not warrant or represent that the Products
when used in conjunction with any hardware or other software will not be
affected by the Millennium Bug AND the Customer expressly accepts that Nitro
Global shall not be liable for any breakdowns, delays, data losses, financial
losses or any other losses suffered by the Customer or any other person or
entity caused directly or indirectly by the effects of the Millennium Bug.
(b) The Customer acknowledges that it shall be solely
responsible for the investigation, acquisition and implementation of all
protective measures available to it relating to or considered advisable to
minimise or eliminate the effects of the Millennium Bug arising from the use of
the Products.
8. Passing of Risk and Title
(a) Notwithstanding any payment received by Nitro Global, no
title whatsoever to any Product licensed, or for any part thereof, passes to the
Customer at any time nor to any destination, and the Customer acknowledges
absolutely the ownership therein as set out in the Terms and Conditions.
(b) Any Products sold by Nitro Global to the Customer shall be
at the Customer's risk as and from dispatch to the Customer or at the Customer's
direction. Following dispatch the Customer shall be responsible for any loss or
damage to the Products however arising. The Customer hereby agrees to indemnify
and keep indemnified Nitro Global for any loss sustained in any manner
whatsoever by Nitro Global in relation thereto.
(c) All and any references to a sale of the Product (or any
connotation thereof) refers only to the license for the use of the Product as
described on the Nitro Global website and in the Terms and Conditions.
9. Liability
(a) Nitro Global shall not be liable to the Customer or to any
other person whatsoever for any loss or damage howsoever caused arising directly
or indirectly from or in connection with the Products, parts of the Products, or
otherwise, other than expressly imposed by statute and to the extent to which
liability can be excluded it is.
(b) Notwithstanding the generality of (a) above, Nitro Global
expressly excludes liability for consequential loss or damage including but not
limited to loss of profit, business, revenue, goodwill or anticipated savings.
(c) The limit of all liability for which Nitro Global might be
held responsible is, at Nitro Global's option, to any one of re-supplying,
replacing or repairing the Product or supplying again any services, subject to
the Terms and Conditions.
10. Refunds Procedure
(a) Nitro Global Refunds Procedure does not apply to "specials"
or other discounted offers similarly made or to any other Products specifically
advertised and sold as not returnable or refundable.
(b) Provided the Customer complies with the Nitro Global Refunds
Procedure and the Product is defective and unable to be utilised or used as
reasonably represented (or otherwise is not covered by sub-clause (a) above),
the Customer may request a refund as provided at (c) below.
(c) Each claim of the Customer for a refund shall be dealt with
under Nitro Global's Refunds Procedure, as may apply from time to time. The
Nitro Global Refunds Procedure requires that the Customer contacts Nitro
Global's Customer Service team on tel: 612-9659-1825 to obtain a Refund
Authority Number, details of which must be quoted in all communications with
Nitro Global with regard to any request for a refund.
(d) Nitro Global shall have no liability for any damage or
defects in the Products that have been caused by neglect, abuse or improper use,
installation, maintenance or unauthorised repair.
11.Waiver
Failure or neglect by Nitro Global to enforce at any time the
provisions hereof shall not be constructed nor shall be deemed to be a waiver of
Nitro Global's rights hereunder nor in any way affect the validity of the whole
or any part of this agreement nor prejudice Nitro Global's rights to take
subsequent action.
12.Severability
In the event that any or any part of these Terms and Conditions
shall be determined invalid, unlawful or unenforceable to the extent such terms
and conditions shall be severed from the remaining terms and conditions which
shall continue to be valid and enforceable to the fullest extent permitted by
law.
13.Whole Agreement
The Terms and Conditions supersedes any arrangements
understandings provisions or agreements made or existing between the Customer
and Nitro Global prior to or simultaneously herewith and constitutes the sole
and entire Agreement between the parties and except as provided herein no
variation amendment modification or addition to any of its Terms and Conditions
shall be of any force or effect unless the same shall be in writing and signed
by and on behalf of the Customer and Nitro Global.
14.Governing Law
The parties agree that the Terms and Conditions and their
application and enforcement shall be constructed in accordance with the Law of
the State of New South Wales Australia and all parties agree to the accept the
jurisdiction of the Courts of that State.
15.Access to the Customer's Consumer Accounts
The Customer hereby authorises Nitro Global to make enquires at
any time and from time to time report to any credit reporting agency information
relating to the Customer's individual account and its conduct with Nitro Global.
16. Warranty
(a) Nitro Global's warranty to the Customer in respect of the
Products is as set out in the warranty conditions accompanying the Products.
(b) The Customer's rights under this clause 16 are subject to
clauses 8 and 10 above.
(c) The warranties provided in respect of the Product are to the
extent permitted by law exclusive and in lieu of all other warranties whether
express or implied, including without limitation any warranty of merchantability
or of fitness for a particular purpose.
17. Conflict of Terms
In the event of any conflict between any Terms and Conditions,
the Download Accelerator Software End User License Agreement shall prevail.