The NAMA website, accessible through the following web address www.nama.com.au, is a service provided by Nissan Motor Co (Australia) Pty Ltd ABN 54 004 663 156 (“Nissan”) to You for use by You and your Dealership.
These terms of use govern access to and the use of NAMA, the services on or in connection with NAMA and the images, photos, information, video, graphics, software, text, creative suggestions and other materials contained on NAMA.
By accessing or otherwise using NAMA you agree to be legally bound by these terms of use.
-
Term
1.1 The licence commences on the day when you and/or a Nominated User are issued with login details for NAMA and will continue unless terminated in accordance with clause 12 of these terms of use.
-
Right to use NAMA
2.1 Subject to payment of all relevant fees in accordance with clause 4 and these terms of use, Nissan grants to You a non-exclusive, non-transferable revocable licence to use:
(i) NAMA; and
(ii) the Nissan Content,
for the purpose of creating and editing an Advertisement.
2.2 The rights granted under clause 2.1 may only be exercised by You and Nominated Users.
2.3 Following registration, user names and passwords enabling access to NAMA will be allocated. Nominated Users are responsible for maintaining the confidentiality of their user name and password and must not, under any circumstances, allow another person to use their user name and password.
2.4 If a Nominated User becomes aware of any unauthorised use of a user name and password, or any other breach of security, the Nominated User must advise you and you must notify Nissan immediately. Following notice under this clause 2.4, Nissan may require the relevant user name and password to be changed and may withdraw access to NAMA by the relevant Nominated User or You if Nissan considers, in its absolute discretion, it to be appropriate to do so.
-
Advertisement Content
Nissan Advertising Guidelines
3.1 You warrant that any Advertisement will comply with the Nissan Advertising Guidelines, a copy of which will be available on NAMA. Nissan may vary the Nissan Advertising Guidelines from time to time. Nissan will provide You with written notice of any variation to the Nissan Advertising Guidelines. A copy of the current Nissan Advertising Guidelines will be available on NAMA at all times.
3.2 You are responsible for the choice of components which make up an Advertisement. You warrant that each Advertisement:
(i) is true and correct;
(ii) is not misleading or deceptive, defamatory or obscene;
(iii) does not infringe a third party’s intellectual property rights; and
(iv) can be lawfully published.
3.3 You may only use an Advertisement as a whole. You must not use part of an Advertisement on its own or in conjunction with any other advertising material.
User Content
3.4 Use of NAMA may require you to incorporate your own content (the “User Content”). Subject to clause 3.5, Nissan does not assert any rights of ownership in the User Content but asserts full rights in the format in which the User Content is displayed.
3.5 You grant to Nissan a perpetual, irrevocable, royalty-free right to use the User Content for the purposes of operating NAMA to produce Advertisements.
3.6 You acknowledge that all User Content is transmitted and stored at your own risk. Nissan is not liable for any lost data for any reason.
3.7 You warrant that all User Content:
(i) is true and correct;
(ii) is not misleading or deceptive, defamatory or obscene;
(iii) does not infringe a third party’s intellectual property rights; and
(iv) can be lawfully published.
Nissan Content and historical Advertisements
3.8 Nissan reserves the right to remove any Nissan Content from NAMA and to modify any Nissan Content without consultation.
3.9 You acknowledge that any Advertisements kept on NAMA are stored at your own risk. Nissan is not liable for any lost data for any reason.
Indemnities regarding Advertisements
3.10 You will indemnify and keep Nissan indemnified against all claims, costs, expenses, damages, liability or loss arising in relation to:
(i) a breach of the above warranties and use of NAMA by You, your Nominated Users, your employees, contractors or agents other than in accordance with these terms of use; and
(ii) the actions of third parties who You allow, either deliberately or through negligence or otherwise, to gain access to NAMA.
Inappropriate use of NAMA
3.12 You must not use NAMA to facilitate or participate in any illegal activity or engage in any activity that Nissan, in its absolute discretion, considers inappropriate. For example you must not use NAMA to interfere with, or disrupt, other network users, network services or network equipment (including without limitation to propagate or distribute computer viruses; distribute unsolicited advertising or chain letters or send unsolicited mass emails; use NAMA to make or attempt to make unauthorised entry to another machine accessible location; or distribute tools designed for compromising security such as network probing tools or password guessing programs).
3.13 Nissan reserves the right to immediately and indefinitely restrict your access to NAMA in any way considered reasonably necessary if it suspects that you are engaging in inappropriate behaviour in relation to NAMA.
-
Payment
4.1 Nissan reserves the right to introduce a reasonable fee for the use of NAMA.
4.2 Nissan may vary the NAMA fees from time to time provided Nissan gives You at least 30 days prior written notice.
-
Placement of an Advertisement and associated costs
5.1 You are responsible for all media placements of any Advertisements.
5.2 Except as otherwise provided for in writing by Nissan, You are responsible for all costs associated with the printing or placement of all Advertisements in any media.
-
Agreement and precedence
6.1 These terms of use and Your use of NAMA incorporates the Nissan Advertising Guidelines.
6.2 If there is any conflict, apparent conflict or ambiguity in or between these terms of use and the Nissan Advertising Guidelines, these terms of use will take precedence.
-
Hosting services
7.1 Nissan, or a third party provider to Nissan, will host NAMA.
7.2 Nissan will meet NAMA hosting fees. Nissan does not accept any responsibility for your telephone bills or costs associated with connection to the internet, including those for accessing NAMA or using the Support Services under clause 8.
7.3 From time to time NAMA may be temporarily unavailable for maintenance or other reasons.
7.4 If a server failure occurs, Nissan will endeavour to ensure your access to NAMA is restored as efficiently as possible. Nissan is not liable for any server failure.
-
Support Services
8.1 Nissan will provide you with support and maintenance services in relation to NAMA (the “Support Services”) in accordance with the NAMA User Handbook which will be published by Nissan on NAMA.
8.2 Nissan will correct any major defects in NAMA within a reasonable time period.
8.3 The Support Services do not include:
(i) advice or correction of defects which have been caused by: failure to operate NAMA in accordance with its user documentation; any unauthorised use of NAMA; failure to use NAMA in a suitable operating environment; any hardware malfunctions or failure to comply with the terms of this NAMA Terms of Use; or
(ii) hardware maintenance services or investigation or corrections of errors in software other than NAMA; or
(iii) any customisation of NAMA.
-
Intellectual Property Rights
9.1 For the purposes of these terms of use, the term “Intellectual Property Rights” means all copyright, patents, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidentiality and other intellectual and industrial property rights in all parts of the world.
9.2 You acknowledge that you obtain no Intellectual Property Rights whatsoever in NAMA or Nissan Content or any associated material. As between the parties all Intellectual Property Rights, other than in the User Content, belong to Nissan.
9.3 You must not, except to the extent permitted by any law that cannot be excluded by the parties or for operational, backup or security purposes, copy, modify, disassemble, decompile or reverse engineer NAMA or Nissan Content.
9.4 If you become aware of any infringements or suspected infringements by any third party of any Intellectual Property Rights in NAMA or Nissan Content, You must immediately notify Nissan and must at the request and expense of Nissan take such action as Nissan may reasonably deem appropriate to protect its Intellectual Property Rights.
9.5 You will indemnify Nissan against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging infringement if you have failed to comply with any requirement of this clause 9.
-
Warranty and acknowledgement
10.1 NAMA has not been written to meet the individual requirements of You and is supplied on an “as is” basis. A failure of any part or the whole of NAMA to be suitable for your requirements will not give rise to any right or claim against Nissan.
10.2 By accessing or otherwise using NAMA, You agree to be legally bound and abide by these terms of use just as if you had signed an agreement containing these terms of use and you acknowledge that Nissan provides NAMA to you on these terms of use.
10.3 You warrant that You, or your authorised representative have the authority to enter the agreement contemplated by these terms of use and that You will be bound by these terms of use upon signing below.
10.4 You acknowledge that if any Advertisement contains a price point that the price set out in the price point or referred to in any material is a maximum recommended price only and there is no obligation on You or your dealership to comply with the recommendation.
-
Liability
11.1 Nissan accepts no liability to You for any loss, damage, costs, expenses, claims, demands, actions and proceedings arising out of or in connection with Your use of NAMA, whether arising under common law (including negligence) or under statute, including for any direct or indirect lost profit or revenue, exemplary damages, loss of goodwill, deletion or corruption of electronically or digitally stored information or, without limiting the foregoing, any indirect or consequential loss or damage howsoever described or claimed.
11.2 Nothing in these terms of use excludes, restricts or modifies any condition, warranty, right or remedy which is conferred on you by the Competition and Consumer Act 2010 (Cth) or any other consumer protection legislation that cannot be excluded by mutual agreement (“the Acts”). Where Nissan breaches a condition or warranty which has been implied by the Acts, its liability for breach will be limited to (where permissible by the Acts):
(i) in the case of the supply of goods:
- replacement or repair of the goods;
- supply of equivalent goods; or
- payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; and
(ii) in the case of the provision of services:
- the supply of the services again; or
- payment of the cost of having the services supplied again;
whichever Nissan sees fit to provide.
-
Termination
12.1 Nissan may terminate your use of NAMA and these terms of use immediately by notice to you if:
(i) You breach these terms of use, including the Nissan Advertising Guidelines, any other policies advised to You by Nissan from time to time or Your Dealer Agreement during the term of the licence provided under these terms of use; or
(ii) Nissan gives you 90 days written notice of its intention to terminate your use of NAMA.
12.2 You may terminate the licence provided under these terms of use by giving 30 days written notice of your intention to terminate.
12.3 Upon termination, Nissan may:
(i) immediately stop access to NAMA; and
(ii) in the event a fee has been introduced pursuant to clause 4.1, Nissan can recover from you any outstanding fees and expenses incurred up to the date of termination.
Nissan may, at its absolute discretion, elect to recover such monies by way of an invoice against your Nissan parts account.
-
General
13.1 This arrangement is governed by the laws of Victoria, Australia and the parties submit to the exclusive jurisdiction of the Courts of Victoria, Australia and the Commonwealth of Australia.
13.2 Nissan may amend these terms, the Nissan Advertising Guidelines and the NAMA User Guide from time to time. If Nissan does this, you will be notified in writing. Your use of NAMA following this notification constitutes acceptance of the revised terms.
