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nura terms of sale

last updated: 25th October 2017  

terms of sale

PLEASE READ THESE TERMS OF SALE (THESE “TERMS”) CAREFULLY BEFORE PURCHASING PRODUCTS FROM NURA OPERATIONS PTY, LTD (“NURA,” “WE”,  “US”, OR “OUR”).These Terms govern your purchase of our Products (“Order”) from our Sites and App. BY PURCHASING PRODUCTS FROM US, YOU AGREE TO BE BOUND BY THESE TERMS IN ADDITION TO OUR TERMS OF USE AND ANY OTHER TERMS WHICH ARE INCORPORATED THEREIN BY REFERENCE.  IF YOU DO NOT AGREE TO ALL OF THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 16, DO NOT PURCHASE PRODUCTS FROM US. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Terms of Use.

 

We reserve the right to change or modify these Terms at any time and in our sole discretion.  If we make changes, we will notify you by revising the date at the top of these Terms. Every time you order Products from nura, the Terms in force at that time will apply to such purchases. We encourage you to review these Terms each time you make a purchase from us to ensure you understand the terms and conditions that apply to such purchase.

 

1. PLACING YOUR ORDER

The nura website (www.nuraphone.com) is the only place where nura Products may be purchased from. Nura Products purchased from anywhere other than the nura Sites (and in certain cases nura-run events), will not be covered under the rights and provisions of any nura policies, terms or conditions. 

To process your Order, you will be required to provide certain billing and shipping details so that your Order can be fulfilled. These details include your name, email address, physical billing address, physical shipping address and phone number. Please note that when you provide your credit card details for payment, you are providing them to our third-party payment service provider, who will process the payment for your Order. It is also important that the billing address that you provide corresponds with the party who paid for the nura product(s). This is necessary to satisfy credit card processing requirements and to prevent fraud. For this reason, billing details cannot be changed once your Order is completed.

 

2. PRICING AND AVAILABILITY

By placing an Order, you agree to pay the amount displayed on your Order checkout page. All prices are shown in USD, AUD, EUR, GBP, or another local currency, as applicable. Although the Services may be accessible worldwide, the Products and Services are not designed and tested for use in all countries. All Products are subject to availability and we reserve the right to impose quantity limits on any Order, cancel all or any part of an Order, and discontinue Products without notice, even if you have already placed your Order. All prices are subject to change without prior notice.

 

3. PAYMENT AND BILLING INFORMATION

By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your purchase (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, we will notify you and your Order may be suspended or cancelled if you do not resolve the issue promptly. In the event you want to change or update payment information associated with your nura account, you can do so at any time by logging into your account and editing your payment information.

You acknowledge that the amount billed may vary due to promotional offers, changes to your Order or changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.

 

4. ORDER FULFILLMENT

All Orders must be accepted by nura. Hence an email that you receive from nura acknowledging that your Order has been received, does not mean that your Order has been accepted. Your Order is only accepted when you are sent confirmation of shipping information with a tracking number. Until this tracking information is sent to you, all aspects of your Order including prices, are yet to be accepted. While we do everything in our power to prevent errors in Orders, in the event of an error in nura communication, we reserve the right to correct such error and revise, cancel or refund your Order if necessary.

 

Please note that Products purchased by you are to only be for personal or gift use - any other use is not permitted under the Terms. All Orders are subject to availability. As part of Order processing, nura may screen Order requests and reserves the right to reject all or part of an Order, in cases such as:

  • Insufficient stock or discontinuation of an item
  • If the party receiving the Order is suspected to be a reseller, suspected of fraud or is in a location that is not serviced by nura’s shipping provider
  • Errors in Order details or credit card processing

 

You may also be contacted via the email address that you provide in your Order, to confirm Order details. nura takes illegal activity very seriously and reserves the right to cancel Orders and accounts, in instances of illegal activity.

 

5. ANTI-FRAUD

nura will engage in fraud prevention activities to protect the rights of legitimate customers and so as not to profiteer from fraudulent transactions. nura reserves the right to monitor transactions for signs of fraud, such as: number of units ordered, time of Order, country of Order and information from the payment gateway. If a transaction is flagged for potentially being fraudulent, nura reserves the right to cancel the transaction, refund any monies received and potentially bar the credit card and customer from future purchases.

Fraud prevention extends to the use of nura Services, Products and nura accounts and if they are subject to suspected fraudulent activity, nura reserves the right to make contact using details provided, and lock both nura accounts and hardware.

 

6. SHIPPING AND HANDLING

nura Products are specially packed for shipping in environmentally friendly nura packaging and a suitable box. Shipping boxes may be different for larger Orders. Shipping and handling charges are provided at the time of ordering, when details are entered via the nura checkout page. You agree to check all charges before submitting your Order. You agree to pay any shipping and handling charges presented to you at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. When you place your Order, you will also be provided with an estimated range of time that it will take your Order to reach you; please note that these dates are only provided as an estimate. Your Order is shipped to you via nura’s third-party shipping provider and a local carrier. This means that title to, and the risk of loss for, all Products passes to the buyer upon our delivery of the Products to the third party carrier. In no event will nura be liable for any loss, damage, or penalty resulting from a delay in shipment or delivery.

 

7. TAXES

We will collect applicable taxes and duties on Orders for which we determine we have a duty to collect. If an Order is subject to sales tax or duties, you agree that the amount of taxes and duties shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.

 

For U.S. Customers: The sale of these goods is made to you outside of the U.S. We will arrange for a third party company to act as your importer of these goods and our broker will pay your applicable import duties and taxes.  As purchaser, you are responsible to check your use tax liability in your own state and report/pay any taxes on this purchase where necessary.

 

8. ERRORS

We attempt to be as accurate as possible and to eliminate errors; however, we do not warrant that all Product descriptions, photographs, pricing or other information are accurate, complete, reliable, current or error-free. In the event of an error, whether on the Services, at a physical retail location, in an Order confirmation or in processing an Order or delivering a Product, we reserve the right to correct such error and revise your Order accordingly (including charging the correct price) or to cancel the Order and refund any amount charged. Your sole remedy in the event of an error is to cancel your Order and obtain a refund.

 

9. RETURN POLICY

In certain cases, you may be entitled to return your items from your Order. For details on when and how to return items from your Order, please visit our Returns Policy.

 

10. LIMITED PRODUCT WARRANTY

To the fullest extent permitted by applicable lawand subject to any applicable consumer guarantees that cannot be excluded, modified or restricted by law, nura warrants that your nura Products shall, as of the date of delivery, be free from material defects for a period of one (1) year. The date of delivery is considered the date that our delivery service has recorded delivering your nura Product as per delivery tracking, not any other date. As your sole and exclusive remedy and nura’s sole liability for any breach of the foregoing warranty, nura will repair or replace the affected Product in accordance with its Product Warranty Policy.  For details on nura Product limited warranties, please visit our Product Warranty Policy.

 

11. NO MEDICAL ADVICE

NURA DOES NOT PROVIDE MEDICAL ADVICE AND NURA PRODUCTS AND SERVICES ARE NOT INTENDED AS A SUBSTITUTE FOR QUALIFIED MEDICAL ADVICE OR TREATMENT.  IN THE INSTANCE THAT YOU ARE SEEKING MEDICAL ADVICE, TO DIAGNOSE A HEALTH CONDITION, THERAPEUTIC BENEFITS OR ARE UNSURE OF HOW NURA PRODUCTS OR SERVICES WILL INTERACT WITH YOUR HEALTH, PLEASE CONSULT WITH A MEDICAL PROFESSIONAL BEFORE USING OR RELYING ON ANY INFORMATION PROVIDED BY THE NURA PRODUCTS AND SERVICES. INFORMATION PROVIDED TO YOU VIA NURA PRODUCTS AND SERVICES IS BASED UPON PREDICTIVE INDICATORS, AND A USER MUST DRAW THEIR OWN CONCLUSIONS – IN CONSULTATION WITH A MEDICAL PROFESSIONAL – ABOUT THE VALUE OF THE INFORMATION PROVIDED BY THE PRODUCTS AND SERVICES.

 

12. NURA PRODUCTS ARE NOT MEDICAL DEVICES

PLEASE NOTE THAT USE OF NURA PRODUCTS MAY REQUIRE THE REMOVAL OF DEVICES WORN IN AND AROUND THE EAR. IN THE INSTANCE THAT YOU WEAR ANY FORM OF HEARING DEVICE (IMPLANTED OR NOT), PLEASE CONSULT THE PRODUCT USER GUIDE, SAFETY INFORMATION PROVIDED AND REFER ANY QUESTIONS TO A MEDICAL PROFESSIONAL.

 

13. INDEMNIFICATION

To the fullest extent permitted by applicable law, and in addition to the indemnification obligations set forth in the Terms of Use, you agree to indemnify, hold harmless and defend nura and the nura Parties from and against all claims, damages, losses, liabilities, costs and expenses, including but not limited to, attorneys’ fees, that are caused by, arise out of or are related to (a) your purchase or use of any Product in a manner that is illegal, tortious, or violates the rights of another, or that constitutes a misuse of the Product; (b) your breach of these Terms; or (c) your violation of any law or the rights of a third party. You agree to cooperate as fully as reasonably required in the defense of any claim. Nura reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. Your indemnification obligation will survive the termination of these Terms and your use of the Products. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and nura.

 

14. DISCLAIMER OF WARRANTIES

EXCEPT FOR THE LIMITED PRODUCT WARRANTY EXPRESSLY SET FORTH HEREIN AND SUBJECT TO ANY LEGAL RIGHTS YOU MAY HAVE UNDER ANY LAW THAT APPLIES TO YOU WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT (“YOUR CONSUMER RIGHTS”), THE PRODUCTS ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED OR STATUTORY, THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS ARE IN LIEU OF, AND NURA SPECIFICALLY DISCLAIMS, ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. 

NOTHING IN THESE TERMS OF USE LIMITS, EXCLUDES, RESTRICTS, MODIFIES OR PURPORTS TO LIMIT, EXCLUDE, RESTRICT OR MODIFY YOUR CONSUMER RIGHTS. IF ANY PART OF THESE TERMS CONTRADICTS YOUR CONSUMER RIGHTS OR ANY OTHER APPLICABLE LAW, THEN YOUR CONSUMER RIGHTS OR OTHER APPLICABLE LAW WILL PREVAIL OVER THAT PART.  IF YOU SUFFER ANY LOSS IN CONNECTION WITH OUR PRODUCTS OR SERVICES, YOU MUST TAKE ALL REASONABLE STEPS TO MINIMISE YOUR LOSS, INCLUDING NOTIFYING US WITHOUT DELAY IF THERE ARE STEPS WE CAN TAKE TO HELP MINIMISE YOUR LOSS.

 

15. LIMITATION OF LIABILITY AND DAMAGES

NURA AND THE OTHER NURA PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF  NURA OR THE OTHER NURA PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

 TO THE EXTENT OUR LIABILITY CAN BE LIMITED UNDER APPLICABLE LAW TO RESUPPLYING A DEFECTIVE PRODUCT OR SERVICE, OUR LIABILITY IS SO LIMITED. THE TOTAL LIABILITY OF NURA AND THE OTHER NURA PARTIES, FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR OUR PRODUCTS, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU TO PURCHASE OR USE OUR PRODUCTS IN THE PREVIOUS 12 MONTHS, OR $100.

 

THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF NURA OR THE OTHER NURA PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

THE FOREGOING IN THIS SECTION 15 SHALL ONLY APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW INCLUDING YOUR CONSUMER RIGHTS DESCRIBED IN SECTION 14. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE RELATIONSHIP BETWEEN NURA AND YOU.

 

16. DISPUTE RESOLUTION; BINDING ARBITRATION

IF YOU ARE A U.S. OR EUROPEAN UNION RESIDENT, OR ARE LOCATED IN A JURISDICTION IN WHICH THIS SECTION 16 IS ENFORCEABLE, THE FOLLOWING PROVISIONS APPLY TO YOU, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

 

Agreement to Arbitrate Disputes. Any claim, dispute or controversy of any kind, regardless of the type of claim or legal theory or remedy (“Claim”) by either you or us against the other arising from, relating to or in any way concerning the Terms or any Product you purchase from us will, at the demand of either party, be resolved by confidential binding arbitration. This agreement to arbitrate also includes: (i) Claims relating to the enforceability or interpretation of any of these arbitration provisions; (ii) Claims by you, and also Claims made on your behalf or connected with you, such as an employee, representative, agent, predecessor, successor, heir, assignee, or trustee in bankruptcy; (iii) Claims that relate directly to us, and/or to our parent, affiliates, successors, assignees, employees, and agents; and (iv) Claims asserted as part of a class action, private attorney general or other representative action, it being expressly understood and agreed to that the arbitration of such claims must proceed on an individual (non-class and non-representative) basis and the arbitrator may award relief only on an individual (non-class and non-representative) basis. YOU AND WE AGREE THAT NO CLASS ACTION, CONSOLIDATED ACTION, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE CLAIMS MAY BE PURSUED IN ARBITRATION, NOR MAY SUCH ACTIONS BE PURSUED IN COURT. BY ACCEPTING THESE TERMS, YOU AGREE TO WAIVE THE RIGHT TO INITIATE OR PARTICIPATE IN A CLASS ACTION, REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR CONSOLIDATED ARBITRATION IN ANY MATTER ENCOMPASSED BY THIS ARBITRATION PROVISION.   

 

Notice of Dispute. The party seeking arbitration must first notify the other party of the dispute in writing at least 60 days in advance of initiating arbitration. Notice to nura should be sent [insert contact information]. The notice must include your name, address, and contact information, the facts giving rise to the dispute, and the relief requested. You and we will use reasonable efforts to resolve any dispute through informal negotiation within 60 days from the date the notice of dispute is sent. After 60 days, you or we may commence arbitration.   

 

Administration of Arbitration. If any dispute is not resolved by informal negotiation, any claim, dispute, or controversy will be, at the demand of either party, conducted exclusively by binding arbitration governed by the Federal Arbitration Act (“FAA”), and not state law. You and nura agree that any arbitration will occur either in (i) Alameda County, California, (ii) telephonically, or (iii) in the county in which you reside. YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. Instead, all disputes will be resolved on an individual basis before a single, neutral arbitrator and the proceeding will be confidential. The arbitrator will be either a lawyer admitted to practice law in his or her jurisdiction and with at least ten years’ experience or a retired or former judge selected in accordance with the rules of the AAA. The arbitrator is bound by these terms, and the arbitration will be governed by the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes of the AAA, as modified by these Terms (the “Arbitration Rules”). For more information, see adr.org or call 1-800-778-7879. Except with respect to any claims or counterclaims seeking less than $25,000, the arbitrator will issue a reasoned, written decision sufficient to explain the essential findings and conclusions on which the award is based. All arbitration proceedings will be conducted in English, and the United States FAA will govern the interpretation, enforcement, and proceedings pursuant to the binding arbitration clause in these Terms. The award will be confidential and only disclosed as is necessary to obtain judgment or as otherwise required by law. You and we further agree that a judgment may be entered upon the award by any court having jurisdiction. The arbitration award will determine the rights and obligations between the named parties only, and only in respect to the claims in arbitration, and will not have any bearing on the rights and obligations of any other dispute.   

 

Costs. The party initiating the arbitration will pay the initial filing fee. If you file the arbitration and an award is rendered in your favor, we will reimburse your filing fee. We will pay the fees and costs for the first day of any hearing. All other fees and costs will be allocated in accordance with the arbitration rules. However, we will advance or reimburse filing and other fees if the arbitrator rules that you cannot afford to pay them or if you ask us and we determine there is a good reason for doing so. Each party will bear the expense of their respective attorneys, experts, and witnesses and other expenses, regardless of who prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.   

 

Right to Resort to Provisional Remedies Preserved. Nothing herein will be deemed to limit or constrain our right to resort to self-help remedies or to comply with legal process, or to obtain provisional remedies such as injunctive relief, attachment, or garnishment by a court having appropriate jurisdiction; provided, however, that you or we may elect to arbitrate any dispute related to such provisional remedies.   

 

Conflicting Terms. In the event of a conflict between the Arbitration Rules and this Section 16, this Section 16 will govern. If any portion of this Section 16 is deemed invalid or unenforceable, it will not invalidate the other provisions of this Section 16; provided, however, that (a) if the prohibition on class-wide arbitration is deemed invalid, then this entire Section 16 will be null and void; and (b) if the prohibition on arbitration of representative claims brought in a private attorney general capacity is deemed invalid, then this Section 16 will be null and void as to such claims only. This Section 16 will survive the termination or cancellation of these Terms. In the event of a conflict between this Section 16 and any other applicable arbitration provision, this Section 16 will control.   

 

WAIVER OF JURY TRIAL. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND WE AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND WE UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THESE TERMS OR FROM ANY PRODUCTS YOU PURCHASE FROM US. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT. This paragraph in no way invalidates the agreement to arbitrate disputes. 

 

For European Union Customers – Online Dispute Resolution Service (“ODR”) & Alternative Dispute Resolution (“ADR”). We are required by law to provide a link from our website to the EU ODR Platform http://ec.europa.eu/consumers/odr/index_en.htm. We are not obligated to use ADR should you have a complaint with us. If you do have a complaint with us which we cannot resolve using our internal complaints handling procedures, we will contact you by letter or email about whether we are prepared to submit to ADR. You may contact us at info@nuraphone.com

 

17. GOVERNING LAW AND VENUE

U.S. Customers. These Terms are governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Alameda County, California and the United States, respectively, sitting in Alameda County, California, for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in Section 16.

Non U.S. Customers. These Terms are governed by the laws of Victoria, Australia, without regard to conflict of laws provisions. To the extent that you reside in a country that will not apply the laws of Victoria, Australia, then your country's laws will apply to such disputes related to the Products or these Terms. Any Dispute between the parties that is not subject to arbitration will be resolved exclusively in the courts located in Victoria, Australia.

 

18. CONTACTING NURA

We want to help you get the most out of nura Products and Services. If you have any questions, please contact us via info@nuraphone.com or write to us at:

NURA OPERATIONS PTY. LTD.; PO Box 95; Brunswick, 3056, VICTORIA; AUSTRALIA

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