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Help: Terms and Conditions

Website Terms of Use

Last updated: 10 April 2014

1. Introduction and your agreement to these Terms of Use

1.1 Welcome to www.thenile.com.au (Website). This Website is owned and operated by Mercury Retail Pty Ltd (Company), an Australian company limited by shares. The Company operates the Website under the brand 'The Nile'.

1.2 These terms and conditions of use (Terms of Use) are deemed to incorporate this Website's privacy policy (Privacy Policy) which is available on this Website and which you should read together with these Terms of Use. You acknowledge and agree that you consent to the Terms of Use and the Privacy Policy. The provisions of the Privacy Policy apply as if set out in full in these Terms of Use.

1.3 These Terms of Use, including the Privacy Policy, govern your access to and use of this Website, including any: (i) software, database, information, content or materials that are located on, form part of or are available through or in connection with this Website (Website Material); and (ii) services and products provided through or in connection with this Website (Services). If you visit, access or shop at this Website you are deemed to agree to these Terms of Use. If you do not agree to these Terms of Use, you must immediately exit and not access or use this Website. These Terms of Use create a legally binding agreement between you and the Company.

2. Changes to these Terms of Use
The Company may from time to time (with or without notice to you) amend or update these Terms of Use at its sole discretion. Accordingly, you should ensure that you regularly review them. We will endeavour to notify all Registered Users of any material or significant changes to these Terms of Use via the email address provided to us. However, the Terms of Use applicable to your access to and use of this Website is the current version displayed on this Website at the time you access or use this Website. By continuing to access or use this Website after such changes, you are deemed to agree to be bound by such changes.

3. Different types of Users

3.1 Subject to these Terms of Use, any person may access or use this Website via the internet without registering with or disclosing any personally identifying information to the Company (Unregistered User).

3.2 To make full use of the functionality of this Website (for example, to earn Nile Miles on your purchases to add items to your wish list), you will need to register with the Company (Registered User).

3.3 The Company may refuse any request for registration. Unregistered Users and Registered Users are referred to collectively in these Terms of Use as Users. The Company may make varying levels of functionality available to different Users, depending on whether they are Unregistered Users or Registered Users.

4. Registration

4.1 If you wish to become a Registered User, you must provide the Company with certain true and correct information about yourself (User Registration Information), as requested by the relevant registration page on this Website. Information requested may include some or all of the following information, your: email address; name; title; date of birth; home address; country of residence; telephone number; employer / organisation name; and office address.

4.2 Where you purchase products and services from the Company, the Company will request payment details including your billing address (also User Registration Information). You must promptly notify and update the Company if any of your User Registration Information is erroneous or changes from time to time. By providing your contact details, you are deemed to agree to the Company contacting you via such means for any purpose in connection with the Website or the Services.

5. Use of the Website Material
The Company grants you a revocable, non-exclusive, non-transferable, non-sublicensable, personal licence to access this Website, for personal use, solely in accordance with these Terms of Use. If you are a member of The Nile's Affiliate Program (Affiliate Program) then we grant you a licence to download the specifically created banners and text link available from the affiliate system provider, ClixGalore for the purpose of participating in the Affiliate Program.

6. Intellectual Property Rights

6.1 All intellectual property rights (including copyright, database rights and trade mark rights) subsisting in, relating to or arising out this Website, the Website Material or the Services are owned by and vest in the Company (or its licensors).

6.2 You acknowledge and agree these Terms of Use do not transfer any right, title or interest in the Company's (or its licensors') intellectual property rights to you.

7. Submitted Materials

7.1 This Website may allow Users to submit or post information, content and materials (for example, book reviews) (User Material) to this Website and/or the Company, for access and use by other Users and/or the Company. (References in these Terms of Use to "User Material" do not include any User Registration Information, which is treated separately to User Material). The Company does not systematically review User Material submitted by Users and is not responsible for the form or content of any User Material.

7.2 If you choose to submit or post User Material, you must own or have the right to submit or post that User Material and it must not: (i) infringe any intellectual property right (including copyright, database right or trade mark right) of any person or be in breach of any legal duty owed to any person, such as a contractual duty or a duty of confidence; (ii) deceive or be likely to deceive any person; (iii) be used to impersonate any person (including the Company and its representatives) or to misrepresent your identity or affiliation with any person; (iv) be illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, encourage conduct that would be considered a criminal offence, give rise to civil liability, violate any law or be otherwise inappropriate; or (v) advertise any product or service or solicit any business.

7.3 You agree that the Company may: (i) edit or delete your User Material; (ii) link your User Material to other material, including User Material submitted by other Users or material created by the Company and/or other third parties; (iii) use your User Material for its business purposes, including to promote, market or advertise this Website and the Company; and (iv) directly or indirectly commercially benefit from your User Material.

7.4 The Company does not claim any ownership rights in your User Material, however, by submitting User Material you are deemed to grant the Company an irrevocable, perpetual, non-exclusive, royalty-free, transferable, sublicensable, worldwide license to download, use, modify, distribute, copy, reproduce in a material form, publish, perform or cause to be heard or seen in public, communicate to the public, make an adaptation of and enter into commercial rental arrangements in respect of that User Material.

8. Prohibited activities

8.1 You must not submit, post, upload, email or otherwise send or transmit to this Website, or any User anything that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly to this Website.

8.2 You must not interfere with this Website or the servers or networks underlying or connected to this Website or violate any of the procedures, policies or regulations of this Website or any networks connected to this Website.

8.3 You must not impersonate any other person while using this Website, conduct yourself in an offensive manner while using this Website, or use this Website for any illegal, immoral or harmful purpose.

9. Cessation of services
The Company may (with or without notice to you) modify, restrict, prevent or withdraw your access to or use of this Website for any reason whatsoever or for no reason, including where the Company believes that you are in breach of these Terms of Use.

10. Indemnity by you
You must indemnify and hold harmless the Company (and its officers, employees and representatives) against all losses, liabilities and costs (including legal expenses) sustained, incurred or suffered by the Company (or its officers, employees and representatives) as a result of your breach of these Terms of Use or any violation by you of any laws or the rights of any person.

11. Other websites
The Company is not responsible for the policies and practices of internet websites operated by persons other than the Company, even if: (i) you access them using links on this Website; or (ii) are directed or link to this Website using links on such websites, and recommends that you carefully review the terms and conditions of use and privacy policy of every internet website you access or use.

12. Linking

12.1 Subject to clause 12.2, Users must not link to this Website from any other website (or authorise any other person to link from a third party website to this Website) without prior written consent from the Company. The Company prohibits framing or embedding all or any part of the Website on any other website.

12.2 Members of the Affiliate Program may link to this Website in accordance with the instructions set out on the Website.

13. Changes to this Website
The Company may (with or without notice to you) make changes to this Website, the Website Material and the Services.

14. Availability of this Website
This Website, the Website Material and the Services are provided on an "as available" basis and the Company shall not be liable if this Website, the Website Material or the Services are unavailable for any period. The Company may (with or without notice to you) temporarily suspend access to this Website, the Website Material and/or the Services or indefinitely close down this Website at any time. The Company does not represent, warrant or undertake that this Website, the Website Material or the Services will be error, defect, "bug" or "virus" free.

15. Accuracy of this Website
This Website, the Website Materials and the Services are provided on an "as is" basis and the Company makes no representations, warranties or undertakings with respect to this Website, the Website Material or the Services, including as to the currency, accuracy or completeness of this Website, the Website Material or the Services.

16. Disclaimer

16.1 To the fullest extent permitted by applicable law, the Company excludes all implied representations, warranties, terms and conditions of any kind whatsoever (whether implied by common law, statute or otherwise), including any implied representations, warranties, terms or conditions that this Website, the Website Material or the Services are of satisfactory quality or fit for their purpose.

16.2 To the fullest extent permitted by applicable law, the Company also excludes the application or availability of any statutory rights or any statutory guarantees with respect to this Website, the Website Material or the Services.

17. Limitation of liability

17.1 Nothing in these Terms of Use is intended to exclude, restrict or modify any rights that the User may have under the Competition and Consumer Act 2010 (Cth) (CCA) or any other applicable legislation which may not be excluded, restricted or modified by agreement.

17.2 If the CCA or any other applicable legislation provides the User with any non-excludable statutory rights (including any implied representations, warranties, terms or conditions or any statutory guarantees) in respect of any goods or services supplied under these Terms of Use, then the exclusions and limitations on the Company's liability in these Terms of Use do not apply in respect of such non-excludable statutory rights, however, where the Company's liability with respect to such non-excludable rights may be restricted or modified, then, without prejudice to any non-excludable statutory rights that the User may have which may not be restricted or modified by agreement, the Company's liability is limited to: (i) in the case of a supply of goods, the Company doing any one or more of the following (at its election): replacing the goods or supplying equivalent goods; repairing the goods; paying the cost of replacing the goods or of acquiring equivalent goods; or paying the cost of having the goods repaired; or (ii) in the case of a supply of services, the Company doing either or both of the following (at its election): supplying the services again; or paying the cost of having the services supplied again.

18. Force majeure
The Company will not be in breach of these Terms of Use or otherwise liable to you or any other person for any unavailability or failure of this Website, the Website Material or the Services or any delay or other failure by the Company to comply with these Terms of Use that is caused by or arises from any event or circumstances beyond the Company's control.

19. Assignment
You must not assign, transfer, sub-contract or otherwise dispose of any or all of your rights and/or obligations under these Terms of Use. The Company may assign, transfer, sub-contract or otherwise dispose of any or all of the Company's rights and/or obligations under these Terms of Use.

20. GST
Subject to clause 21, if GST is payable in respect of any supply made to you by the Company, you will be liable to pay an amount equal to the GST payable (at the current prevailing rate) on the supply at the same time and in the same manner as the consideration for the supply is to be provided under this Agreement. GST means GST within the meaning of A New Tax System (Goods and Services) Act 1999 (Cth).

21. Imported Goods

21.1 In this clause: Imported Goods means goods which are sourced directly from outside Australia and which are available through the Website and which are specifically labelled as ‘Ships from New Zealand' or ‘Ships from United Kingdom' or ‘Ships from USA'. Order means an order for Imported Goods.

Taxes means value added taxes (including GST) and all levies, imposts, charges and duties imposed by any authority in relation to Imported Goods.

21.2 The amount payable for Imported Goods is shown on the Website in Australian dollars.

21.3 The Company will be a mail or courier provider for all shipping and delivery requirements, on your behalf. A standard flat rate fee per delivery will apply. This will be charged at the time an Order is made, and will be payable at the same time and in the same manner as the consideration for the goods is to be provided.

21.4 By placing an Order for Imported Goods you are deemed to accept these Terms of Use including the obligations contained in this clause.

21.5 Imported Goods are sold to you on an FCA basis, in accordance with the Incoterms® 2010 terms, whereby the risk of ownership and title in the goods passes to you on the date and time of delivery of the goods to the nominated delivery agent in the country of export.

21.6 You acknowledge and agree that you will be recorded as the importer of record and will be the responsible party for any Taxes associated with the importation of Imported Goods.

21.7 You acknowledge that the Company is not liable for any loss, damage, cost or expense that you incur as a result of your obligation to act as importer of record for the Imported Goods.

21.8 If your order arrives in Australia and the Customs value is above the low value import threshold of AUD $1,000, you may be required to lodge a Customs Import Declaration and pay the calculated duty and GST. For further information visit http://www.customs.gov.au

21.9 For Customs purposes any number of goods delivered by the Company to you may be considered as the one consignment and the total value will be taken into account in assessing whether the low value import threshold has been reached.

22. Delivery of Goods
You acknowledge and agree that delivery times in relation to products ordered through the Website are an estimate only.

23. Returns
The Company does not take title to returned items until the item arrives at the return address nominated by the Company.

24. General

24.1 Entire Agreement: These Terms of Use, together with any additional terms and conditions set out on this Website from time to time, constitutes the whole agreement between you and the Company relating to its subject matter and supersedes and extinguishes any prior drafts, versions, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter.

24.2 Rights cumulative: The rights, powers, privileges and remedies provided under any provision of these Terms of Use are cumulative and are not exclusive of any rights, powers, privileges or remedies provided under any other provision of these Terms of Use or by applicable law or otherwise.

24.3 Waiver: No failure to exercise nor any delay in exercising by the Company of any right, power, privilege or remedy under these Terms of use shall impair or operate as a waiver thereof in whole or in part. No single or partial exercise of any right, power privilege or remedy under these Terms of Use shall prevent any further or other exercise thereof or the exercise of any other right, powers, privilege or remedy.

24.4 Invalidity: If any provision of these Terms of Use is held to be illegal, void, invalid or unenforceable under the applicable laws of any jurisdiction, the legality, validity and enforceability of the remainder of these Terms of Use in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of these Terms of Use in any other jurisdiction shall not be affected.

24.5 Governing law: These Terms of Use shall be governed by, and construed in accordance with, the laws of New South Wales. You are deemed to submit to the non-exclusive jurisdiction of the courts of New South Wales.

24.6 Interpretation: In these Terms of Use, unless the context requires otherwise: (i) any reference to a "person" includes any individual, company, corporation, firm partnership, joint venture, association, organisation or trust (in each case, whether or not having separate legal personality) and references to any of the same shall include a reference to the others; (ii) any phrase introduced by the words "including", "include", "in particular", "for example" or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; (iii) references to the singular include the plural and to the masculine include the feminine, and in each case vice versa; and (iv) the headings and sub-headings are inserted for convenience only and shall not affect the meaning of these Terms of Use.

25. Contacting the Company

25.1 All correspondence to the Company, including any queries you may have regarding this Website or these Terms of Use, should be sent to:
Email Us
Address: 19 Whiting Street, Artarmon, NSW, 2064, Australia