1 ACCEPTANCE
1.1 Terms and Conditions of Use and Access
1.1.1 This mobile application (“Application”) is owned and operated by NIOA Nominees Pty Ltd ACN 010 108 086 atf Bill Nioa Family Trust ABN 11 646 964 149 (“NIOA”).
1.1.2 This Application is available for you (the “User”) to use and access on the terms and conditions of access and use (“Terms”) that are set out below.
1.1.3 The User acknowledges and accepts that:
(a) access to this Application is permitted on a temporary basis, and NIOA reserves the right to, from time to time, withdraw or amend the services without notice or restrict access to some parts or all of the Application. NIOA will not be liable if for any reason this Application is unavailable at any time or for any period;
(b) NIOA has sole responsibility for the interpretation of the Terms and no discussion about such interpretation will be engaged in by NIOA; and
(c) information displayed within the Application should not be relied upon by the User as investment, financial or legal advice or a recommendation of any services or products and the User should consider obtaining independent advice before making any investment, financial or legal decision; and
(d) if the User does not agree to these Terms, the User must not proceed further and uninstall this Application immediately.
1.2 Third Party Beneficiary
1.2.1 NIOA’s Related Entities and NIOA’s Related Bodies Corporate are third party beneficiaries of these Terms.
1.2.2 Upon the User’s acceptance of these Terms, NIOA’s Related Entities and Related Bodies Corporate shall have the right (and will be deemed to have accepted the right) to enforce these Terms against the User as a third-party beneficiary thereof.
2 USER CONDITIONS AND OBLIGATIONS
2.1 Eligibility
2.1.1 The User must be an individual aged eighteen (18) years of age or older.
2.2 User Account
2.2.1 The User acknowledges and accepts that to register a user account and use the Application (“Account”), the User must:
(a) provide NIOA with some personal and contact details such as the User’s full name, as well as a valid e-mail address;
(b) create an Account password; and
(c) provide NIOA with complete, accurate, and current information when registering an Account.
2.2.2 For the avoidance of doubt, the User can deactivate his/her Account at any time through the Application. If the User deactivates his/her Account, any personal information tied to the User’s account may be permanently deleted by NIOA.
2.2.3 The User will be solely responsible for all acts and omissions that occur under his/her Account and must not share his/her Account access credentials with any other person. Unauthorised use of the User’s Account is a breach of these Terms and may result (if applicable) in the User’s automatic removal from the Application. NIOA accepts no responsibility for any transactions resulting from the unauthorised access to the User’s Account. Furthermore, NIOA accepts no liability for any loss, injury or damage resulting from the unauthorised use of the User’s Account.
2.2.4 The User agrees to inform NIOA as soon as practicable (using the Contact Details at clause 7.12) if:
(a) the reproduction of the material in any material form;
(b) the distribution of the material in any material form;
(c) re-transmission of the material by any medium of communication;
(d) uploading or reposting the material to any other site on the internet; and
(e) “framing” the material on the Application with other material on any other website or application.
2.3.2 The above acts are unlawful in any jurisdiction and are specifically prohibited by these Terms.
2.3.3 Despite the above restrictions on use of the material used on the Application, the User may download material from the Application for personal non-commercial use (if NIOA has given the User prior written authorisation), provided the User does not remove any copyright and trade mark notices contained on the material.
2.3.4 The User may not modify or copy:
(a) the layout of the Application; or
(b) any computer software and code contained in the Application.
2.3.5 NIOA reserves all intellectual property rights, including, but not limited to, copyright in material or services provided by it. The material provided on the Application is provided for personal use only and may not be:
(a) re-sold or re-distributed in any material form;
(b) stored in any storage media; or
(c) re-transmitted in any media,
without NIOA’s prior written consent.
2.4 Standards of Conduct
2.4.1 The User must use the Application in a responsible manner, and in accordance with all relevant laws, regulations, standards, codes and community standards.
2.4.2 For the avoidance of doubt, NIOA reserves the right to refuse the User’s access to the Application, to remove/restrict the User’s access to the Application, or modify the User’s Account in any way, without notice and at any time. Without limitation, NIOA reserves the right to refuse access, deny or remove access to the Application or do anything else NIOA may deem necessary, if in its sole discretion the User is found to be:
(a) tampering with access to or the operation of the Application;
(b) engaging in practices which subvert or are intended to subvert these Terms;
(c) in breach of these Terms;
(d) acting in an unsocial or disruptive manner, or with intent to annoy, abuse, disparage, threaten or harass any other person; or
(e) engaging in any conduct which is deemed to be contrary to NIOA’s brand or acceptable standards of conduct on the internet.
2.5 User-Generated Content
2.5.1 The User represents and warrants, in relation to any material, content or information that the User provides, uploads, or saves on the Application (“UGC”), that:
(a) the User is authorised to use the UGC in connection with the Application;
(b) the User’s personal details are their own and not those of another person or have not been used to impersonate another person;
(c) no UGC is defamatory, misleading or false in relation to any product, service, person or corporation;
(d) the UGC is not “passing off” any product or service and does not constitute unfair competition nor infringe the rights of any person;
(e) the UGC does not infringe any intellectual property right including, but not limited to, copyrighted works, trade marks, service marks, patents, designs, confidential information (“Intellectual Property”); and
(f) the UGC does not infringe any legislation or regulations of the Commonwealth of Australia and the State of Queensland including, but not limited to, the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law (“ACL”) and any other parliament competent to legislate in relation to the Application or any law in any country where the material or information is or will be available electronically to the User of this Application.
2.5.2 By uploading any UGC that is subject to Intellectual Property rights to the Application, the User grants NIOA a perpetual, non-exclusive and payment-free licence throughout the world to:
(a) reproduce, use and exploit the Intellectual Property, as part of the Application, to the full extent permitted by Intellectual Property law in any jurisdiction in which the Application is available to the User; and
(b) allow NIOA to sub-licence others the same rights granted to NIOA above.
2.5.3 For the avoidance of doubt, the User agrees and acknowledges that NIOA:
(a) may remove any UGC, including but not limited to links to other sites on the Application, at any time without giving any notice, explanation or justification for removing the UGC;
(b) may block the User from contributing additional UGC, including suspending or deleting the User’s account; and
(c) will comply with any lawful requests by a third party to produce information or documents or comply with any court orders.
2.6 Advertising
2.6.1 The User acknowledges and consents to receiving information in any form or medium in the Application from NIOA or on NIOA’s behalf from any third party.
2.6.2 The User acknowledges that from time to time, the information may contain material that advertises or promotes, or offers to supply, goods or services of NIOA or a third party.
2.6.3 The User acknowledges and agrees that any subscription, promotion or purchases of goods or services from a third party or sponsor which the User elects to obtain during participation in the Application, may be subject to terms and conditions separate to these Terms and that the User may be obliged to enter into a separate agreement with that third party or sponsor. The User agrees that NIOA will not be liable for any loss or damage suffered resulting from the User obtaining any subscription, promotion or goods or services from a third party or sponsor.
2.7 Additional Licence Terms
2.7.1 The User acknowledges and accepts that if this Application or any software is provided to the User through an external third-party platform, such as the Apple App Store or Google Play Android Market, then additional terms and conditions may apply. Such terms and conditions will solely be between the User and the third-party, and not with NIOA.
2.7.2 The User must comply with these additional terms of conditions and any end user licences, including any usage rules.
2.8 Indemnity
2.8.1 To the fullest extent permitted by law, the User will at all times indemnify and keep indemnified NIOA and its respective officers, employees, agents, Related Entities and Related Bodies Corporate (“Those Indemnified”) from and against any claim, demand, suit, action or proceeding by any person or entity against any of Those Indemnified and any direct, indirect, special, consequential, punitive or incidental damages, or damages or loss (including consequential loss, and all reasonable legal costs and expenses) loss of use, profits, data or other intangibles, damage to goodwill or reputation, or the cost of procurement of substitute goods and services or other liability incurred by any of Those Indemnified, where such loss or liability arose out of, in connection with or in respect of:
(a) the use of the Application;
(b) the Linked Sites;
(c) any breach of these Terms by the User or by NIOA; and
(d) publication of or distribution of any UGC, material or information supplied by the User.
3 DISCLAIMERS
3.1 General Disclaimer
3.1.1 To the fullest extent permitted by law, NIOA is making this Application available for the User, without assuming a duty of care to the User. NIOA is not in the business of providing professional advice and gives no warranty, guarantee or representation about the accuracy, reliability, or timeliness or otherwise, of the information contained on the Application or on other websites and online platforms that the Application may link to (“Linked Sites”).
3.1.2 To the fullest extent permitted by law, NIOA disclaims any and all warranties, express or implied, with respect to:
(a) the Application, and it being free of software viruses;
(b) the accuracy, reliability, timeliness or otherwise of any information contained or referred to on the Application or of any Linked Sites; and
(c) the merchantability or fitness for any particular purpose of any service or product contained or referred to on the Application or on any Linked Sites.
3.1.3 To the fullest extent permitted by law, the User agrees to not hold NIOA liable for any:
(a) errors or omissions in the Application, or Linked Sites;
(b) delays to, interruptions of or cessation of the services provided in the Application, or Linked Sites; and
(c) defamatory, offensive or illegal conduct of the User’s use of the Application, whether caused through NIOA’s negligence or the negligence of NIOA’s employees, independent contractors, agents, Related Entities, Related Bodies Corporate, or through any other cause.
3.1.4 The User agrees to accept the full cost of any necessary repair, correction, and maintenance of any of the User’s mobile devices, computer software or hardware, which may be necessary as a consequence of the User accessing and using the Application.
3.2 Disclaimer of Liability
3.2.1 To the fullest extent permitted by law, NIOA hereby expressly excludes all warranties and representations and other terms which might otherwise be implied by statute, common law, or the law of equity in relation to NIOA’s liability under these Terms.
3.3 Disclaimer as to Ownership of Trade Marks, Images of Personalities and Third Party Copyright
3.3.1 Except where expressly stated to the contrary, all persons (including their names and images), third party trade marks and content, services and/or locations featured on this Application are in no way associated, linked or affiliated with NIOA and the User should not rely on the existence of such a connection or affiliation.
3.3.2 Any trade marks/names featured on this Application are owned by the respective trade mark owners. Where a trade mark or brand name is referred to it is used solely to describe or identify the products and services and is in no way an assertion that such products or services are endorsed by, or connected to NIOA.
3.4 Linked Sites
3.4.1 The User acknowledges and accepts that this Application may contain links to Linked Sites, which are not operated by NIOA.
3.4.2 The User acknowledges and accepts that:
(a) NIOA has no control over the Linked Sites and accepts no responsibility for them or for any loss or damage that may arise from the User’s use of them; and
(b) the User’s use of the Linked Sites will be subject to the terms of use and service contained within each such site.
4 PRIVACY
4.1 Privacy Policy
4.1.1 The User acknowledges and accepts that:
(a) the Application may use the User’s personal information to operate and to personalise the Application service, and the User consents to such use of the User’s personal information;
(b) the Application may use the User’s location information to operate and to personalise the Application service, and the User consents to such use of the User’s location information;
(c) the User’s personal information may be accessed and shared with other Application users and the User consents to such access and sharing;
(d) the User’s personal information may be accessed and stored by NIOA’s third party IT service providers and the User consent to such access and storage; and
(e) by using the Application and/or by uploading personal information, the User consents to the collection, processing, use and retention of that personal information by NIOA for the purposes of providing the User access to (and the services associated with) the Application.
4.1.2 NIOA and any persons or legal entities authorised by NIOA may gather and process the User’s personal information:
(a) which the User may provide when accessing the Application, such as the User’s full name, address, e-mail address and other personal information about the User; and
(b) regarding the way in which the User uses the Application including, without limitation, information acquired through the use of “cookies” delivered to the Application when the User accesses the Application.
4.1.3 Please refer to NIOA’s full privacy policy (available at the link below) for further details of how NIOA will collect, store and use the User’s personal information: https://www.nioa.com.au/privacy-policy.
4.1.4 NIOA will comply with the Privacy Act 1988 (Cth) (“Privacy Act”) and the Australian Privacy Principles (“APPs”) with respect to NIOA’s collection, storage and use of the User’s personal information.
4.1.5 By using the Application or registering for an Account, the User is accepting the terms of the above privacy policy, and is consenting to NIOA’s collection, use, disclosure, retention and protection of the User’s personal information, as described in this privacy policy.
4.2 How NIOA Will Use the User’s Data
4.2.1 The Application relies on third-party services to enable the Application to function. For example, the Application’s mailing system, the beacon technology and the hosting services. NIOA only utilises quality, reputable third-party service providers who have excellent security. When the User registers for an Account, the User consents to his/her personal information being stored by such trusted service providers, some of whom may be overseas.
4.2.2 The Application may use “cookies” and other similar technologies to help NIOA better understand user behaviour. For example, cookies and other technologies may assist NIOA with discovering and analysing which parts of the Application the User has visited (in what order and how often), measure the effectiveness of advertisements and help NIOA monitor the performance of the Application. NIOA may also use this data to analyse trends and statistics to help provide better customer service and for targeted advertising purposes, which may also require tracking through pixels and other data.
4.2.3 The anonymous non-personal information that is collected and analysed by NIOA through cookies and other technologies is not ‘personal information’ as described in the Privacy Act. However, to the extent that the information collected by cookies and other similar technologies is considered ‘personal information’ under the Privacy Act (or any other applicable law), NIOA will treat the relevant parts of the information gathered as ‘personal information’.
4.2.4 If the User does not wish to enable cookies, the User can adjust the settings on the Application to refuse cookies completely or choose to have the User’s device warn the User each time a cookie is being sent.
4.3 Privacy Complaints
4.3.1 Should the User have a question or complaint regarding the handling of his/her personal information, the User should contact NIOA, in the first instance, at the following address:
NIOA
PO Box 191
Pinkenba QLD 400
Australia
4.3.2 If the User is not satisfied with NIOA’s response to the User’s question or complaint, the User can contact the Office of the Australian Information Commissioner (“OAIC”) using the details below:
Tel: 1300 363 992
Email: enquiries@oaic.gov.au
Website: https://www.oaic.gov.au/
5 INTELLECTUAL PROPERTY
5.1 Intellectual Property Rights
5.1.1 The Intellectual Property rights in all software and content (including photographic images) made available to the User on or through this Application remain the property of NIOA or its licensors and are protected by copyright laws and treaties around the world. All such rights are reserved by NIOA and its licensors. The User is not permitted to publish, manipulate, distribute, or otherwise reproduce, in any format, any of the content or copies of the content supplied to the User or which appears on this Application, nor may the User use any such content in connection with any business or commercial enterprise.
5.1.2 All logos, icons, brand names or service names that identify NIOA as the owner and operator of this Application are NIOA’s Intellectual Property. All other trade marks or service marks on this Application are the property of their respective owners.
5.1.3 The User must obtain written permission before using any Intellectual Property that is published on this Application. Any unauthorised use of the materials appearing on this Application may violate NIOA’s Intellectual Property rights or legal protections and could result in criminal or civil penalties.
5.2 Third-Party Content
5.2.1 The Application may include links to, or contain content (including data, audio and video) from, third-party websites and services (“Third-Party Content”).
5.2.2 The User acknowledges that NIOA does not control any Third-Party Content and is not responsible for the content or accuracy of any Third-Party Content. The User’s use of any Third-Party Content on the Application may be subject to third party terms of use. For the avoidance of doubt, the User agrees to comply with any applicable third-party terms of use in relation to the User’s use of any Third-Party Content on the Application.
6 TERMINATION
6.1 Termination of Use and Access
6.1.1 NIOA may at any time, terminate the User’s use of this Application, if:
(a) the User has breached any provision of these Terms or intends to breach any provision of these Terms;
(b) NIOA is required to do so by law;
(c) the User’s behaviour impacts NIOA’s name or reputation or violates the rights of a third party;
(d) NIOA decides to discontinue this Application; or
(e) in NIOA’s reasonable opinion, there are grounds (reasons) warranting the termination of the User’s use of this Application.
7 TERMINATION
7.1 Entire Agreement
7.1.1 These Terms represent the complete agreement between the User and NIOA concerning the subject matter of these Terms and supersedes all prior agreements and representations.
7.2 Amendments to these Terms
7.2.1 NIOA reserves the right to amend these Terms, from time to time:
(a) with or without further notice to the User; and
(b) without giving the User any explanation or justification for such change.
7.2.2 Amendments will be effective immediately upon publication on this Application and NIOA will update the modification date of the Terms below in clause 7.13 (Version).
7.2.3 For the avoidance of doubt, all such amendments will hereby be incorporated into these Terms by reference and the User’s continued use of the Application will indicate the User’s acceptance of such amendments.
7.3 Changes to this Application
7.3.1 NIOA has the right in its absolute discretion at any time and without notice to amend, remove or vary the services or any page/functionality of this Application.
7.4 Waiver
7.4.1 NIOA’s failure or delay to exercise, or its partial exercise, of a power, right or remedy under these Terms, does not operate as a waiver of the power, right or remedy; nor does it preclude its future exercise of, or the exercise of any other, power, right or remedy. A waiver or consent given by NIOA under these Terms is only effective and binding on the User if it is given or confirmed in writing.
7.5 Assignment
7.5.1 NIOA may assign or delegate its rights and/or obligations under these Terms in whole or in part, to any person or entity at any time with or without the User’s consent. The User may not assign or delegate any rights or obligations under these Terms without NIOA’s prior written consent, and any unauthorised assignment and delegation by the User will be ineffective.
7.6 Severability
7.6.1 If any part of any clause of these Terms is invalid or unenforceable at law, the part of the clause is excised to the extent of the inconsistency and the remainder of the Terms continue in full force.
7.7 Disputes
7.7.1 If a dispute arises between the User and NIOA, NIOA encourages the User to first contact NIOA directly to seek an appropriate resolution from NIOA’s customer support.
7.8 Survival
7.8.1 Any part of these Terms which expressly or by implication from the context are intended to survive the termination or expiration of these Terms, and any rights arising on termination or expiration, shall survive including those relating to warranties and indemnities, confidentiality, and IP.
7.9 Notices
7.9.1 NIOA may notify the User via the Application or directly via the contact details provided by the User under his/her Account. All notices given by the User or required from the User under these Terms shall be in writing and addressed to NIOA (as per the contact details at section 7.12 below). Any notices that the User provides to NIOA which are not in compliance with this provision shall have no legal effect.
7.10 Force Majeure
7.10.1 NIOA shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of NIOA, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond NIOA’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labour or materials.
7.11 Governing Law and Jurisdiction
7.11.1 These Terms will be governed by the laws of the State of Queensland and the Commonwealth of Australia. Each Party irrevocably submits to the non-exclusive jurisdiction of the courts of that State or Territory. For the avoidance of doubt, the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) shall have no application.
7.12 NIOA’s Contact Details
7.12.1 Any questions, complaints or claims the User has regarding the Application should be directed to:
7.13 Version
7.13.1 These Terms were last modified on Friday, 18 February 2022.