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SOFTWARE – CLICKVIEW ONLINE
Last Updated 15 September 2011
DEFINITIONS
"ClickView" means ClickView Pty Limited (ACN 106176 514) and its subsidiaries, ClickView Australia Pty Limited (ACN 140 397 584), ClickView Limited (IRD Number. 101 663 051), ClickView Limited (UK Reg. No. 909 8597 64) and ClickView Limited (Company No. 674471-5)
"Customer" means the person or legal entity identified in ClickView's Quotation or Invoice.
"Contract" means a contract for sale by ClickView to the Customer of the products and/or services incorporating the Terms and Conditions.
"Genuine" means manufactured by or for ClickView
"Purchase date" means the shipping date from ClickView or a Service Agent
"Product" means a Genuine Product supplied new by ClickView
This agreement (“Agreement”) is between you (“You”), either the person, school or legal entity identified in ClickView's Quotation or Invoice, and ClickView Pty Ltd (“ClickView”), for use of the ClickView Online service (“Service”) and software ("Software"), which may include associated software components, media, printed materials, and electronic documentation. You agree to be bound by and become a party to all the terms of this Agreement by using the Service. If you do not agree to the terms of this Agreement, do not use the Service in any manner whatsoever. The ClickView Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
1. Subscription
This Agreement sets forth the terms and conditions governing the performance and delivery of the Service described in any associated subscription contract ("Contract"). You may subscribe and purchase the Service by executing a Contract setting forth the applicable subscription period ("Subscription Period") subject to the terms and conditions of this Agreement. Service is for your schools’ use only and not for the purpose of redistribution or resale. You may not resell the Service to third party individuals and entities. Each Contract will be subject to this master agreement, notwithstanding any inconsistent or additional provisions contained therein. The application of this master agreement is automatic and invariable without the express contrary agreement of both parties. Contracts will be governed only by the terms and conditions of this Agreement and any different or additional terms in any other document are deemed inapplicable. No Agreement or Contract is binding unless or until it is accepted by ClickView in writing or in the form of a purchase order.
2. Term
The term of this Agreement ("Term") commences on the commencement date (“Commencement Date”) as set forth in the Contract. The Agreement and any associated Contract shall continue and renew automatically at the end of the renewal period ("Renewal Period"), unless either party notifies the other of its intent to terminate this Agreement by providing the other party written notice of termination at the end of any term of the Agreement or of any Service period or immediately, in ClickView's sole discretion, if You breach the Agreement. Contracts commence on the Commencement Date indicated in the Contract and unless earlier terminated, shall continue and renew automatically for the Subscription Periods set forth in the Contract. Service fees and charges are non-refundable.
3. Payments and Amendments
ClickView reserves the right to suspend or terminate the Service thirty (30) days after the due date of a correctly rendered and non-contested invoice in the event that you fail to pay ClickView by the due date. ClickView may change the fees and charges then in effect, or add new fees or charges, whenever Contract renews, with thirty (30) days notice. The fees payable to ClickView shall be exclusive of all governmental, federal, state or local excise, sales, value-added, use, and other taxes now or hereafter levied or imposed on the Service provided under this Agreement. You agree to pay or have paid all fees and charges incurred in connection with the Service (including any applicable taxes) at the rates in effect when the charges were incurred. You are responsible for any fees or charges incurred to access the Service through an Internet access provider or other third party service.
As specified in the Contract, periodic fees for the Subscription Period will be invoiced automatically to the School prior to the Commencement Date and prior to each subsequent Renewal Period. Payments are due prior to activation of the Service. Unless otherwise stated, as a condition to the right to use the Service, You must provide full details of school for invoicing.
Purchase order billing is available to current customers. Periodic fees for the Subscription Period as specified in the Contract will be billed automatically to the purchase order designated to ClickView prior to the Commencement Date of the initial Subscription Period and at the start of each Subscription Renewal Period. Payments are due prior to activation of the Service. Purchase order invoices are due and payable within fifteen (15) days of the Commencement Date of any Subscription Period.
ClickView reserves the right to discontinue or modify trial offers, coupons, credits and special promotional offers at ClickView's sole discretion. Any trial offer associated with the Service entitles new users to a one-time free trial usage period. At the end of the trial period the user will be automatically terminated unless a paid service plan is purchased prior to the end of the trial period as set forth in the Contract.
Any third party software required to run the ClickView Online product is not included in the subscription or renewal price, and is the responsibility of the school to adhere to all third party terms and conditions separately to ClickView’s terms and conditions.
Price Capping will occur for each school when the number of hours purchased is equal to or greater than a specified dollar value per student. In this case, each school will only pay a maximum of the specified dollar value multiplied by the total number of students in the school in a 12 month period. Price cap excludes the yearly subscription fee, and is only valid for the period of the annual subscription. Once price cap is exceeded, then normal billing will continue. For current costs, please see our website for more details www.clickview.com.au
All price caps automatically reset at the end of each annual subscription.
Price capping only applies to accounts that have restricted viewing to their enrolled students and staff members. Customers that use the Home Service for promotional purposes, for parental updates, and other public uses as deemed by ClickView, may not be applicable for the Cap.
For each Home subscription, 500 hours of video may be uploaded to the Home server. These 500 hours are in addition to the content provided with a ClickView Digital Video Library subscription, which will not count towards each school’s 500 hour limit. Schools may purchase additional uploading hours from ClickView.
Customers will be billed monthly for any excess usage of all services.
4. Use and Delivery of Services
You shall provide all necessary information to enable ClickView to create profiles pursuant to this Agreement. You are responsible for updating any and all information. To the extent ClickView receives any personal information, you grant ClickView permission and will ensure that it has received the permission of each user to transfer, process or store such personal information in our databases. The privacy statement can be found on the ClickView website.
You are responsible for maintaining the confidentiality of User Names and Passwords. You agree to immediately notify ClickView of any unauthorised use of your account of which you become aware. Otherwise, all guarantees as to service and performance given by ClickView to you shall be suspended.
You agree that ClickView may use your name and logo in advertisements, other promotional material and ClickView's website, upon prior written approval for such use. You agree not to unreasonably withhold such approval.
Unless otherwise stated in any Service description, support services will be provided by phone and email during the Subscription Period.
Violations of system or network security are prohibited, and may result in criminal and civil liability. ClickView will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network, unauthorised monitoring of data or traffic on any network or system without express authorization of the owner of the system or network, interference with Service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks, forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
Services may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. You agree that you are solely responsible for the content of all visual, written or audible communications used or sent by you. You agree that you will not use the Services to send unsolicited mass mailings. You further agree not to use the Services to communicate any message or material that is harassing, libellous, threatening, obscene, or indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offence, under any applicable law or regulation. Although ClickView is not responsible for any such communications, ClickView may delete any such content of which ClickView becomes aware, at any time without notice.
The ClickView Online service may contain links to third party websites that are not owned or controlled by ClickView. ClickView has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, ClickView will not and cannot censor or edit the content of any third-party site. By using the Website, you expressly relieve ClickView from any and all liability arising from your use of any third-party website.
Provided that you comply with the terms of this Agreement and our policies and procedures for the use of ClickView Online, you may use ClickView Online in connection with data owned or lawfully obtained by you (such data, to the extent to which actually used in connection with ClickView, "Your ClickView Content"). You acknowledge that neither we nor our licensors are responsible in any manner, and you are solely responsible, for your ClickView Content. While we may track information regarding your use of ClickView, we will not sell or license your ClickView Content and will not disclose ClickView Content except as we may determine to be necessary or desirable to comply with the Agreement, the request of a governmental or regulatory body, subpoenas or court orders, or for other legal purposes.
5. Restrictions
You have no right and will not, nor will You authorize or assist others to: (a) produce, manufacture, distribute or copy all or any portion of the Software, except as expressly allowed in this Agreement, (b) disassemble, reverse engineer or decompile all or any portion of the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, (c) modify, translate, or alter all or any portion of the Software or (d) license, sublicense, assign, transfer, rent, lease, sell, encumber or otherwise transfer title or any other rights in all or any portion of the Software. You will indemnify ClickView against any loss related to your failure to conform to the requirements of this section.
6. Copyright
ClickView and its suppliers, as applicable, retain ownership of all proprietary rights, notices and marks in, or displayed by, the Software. You will not remove, deface or obscure any of ClickView's or its suppliers' copyright or trademark notices or legends or other proprietary notices on or in the Software.
7. Warranty
ClickView's exclusive warranty is that Service will be provided in a professional and workmanlike manner and will conform to ClickView's applicable published specifications. ClickView does not warrant that the operation of Service will be uninterrupted or error free. This warranty extends only to you and may not be assigned to a third party. ClickView’s express warranty is contingent upon the proper use of the Service in accordance with ClickView specifications and instructions. The warranty does not apply to Service failure due to disaster, accident or misuse by you, failure or defect of electrical power or external circuitry, or your inability or difficulty to connect to the Internet.
Except as expressly stated in this section 7, there are no warranties, express or implied, by operation of law or otherwise, of services sold or furnished under this agreement or in connection herewith. ClickView disclaims all implied warranties of merchantability and fitness for a particular purpose. ClickView's express warranties will not be enlarged, diminished or affected by, and no obligation or liability will arise out of, ClickView rendering technical or other advice in connection with the service. In no event will ClickView be liable for any delay in furnishing services. You understand and agree that the services and the software are provided "as is". ClickView makes no warranty or representation regarding the results that may be obtained from the use of the services or software, regarding the accuracy or reliability of any information obtained through the services, regarding any goods or services purchased or obtained through the services, regarding any transactions entered into through the services or that the services will meet any user's requirements, or be uninterrupted, timely, secure or error free. Use of the Services and Software is at your sole risk. Any material and/or data downloaded or otherwise obtained through the use of the Services is at your own discretion and risk. You will be solely responsible for any damage to you resulting from the use of the services or software. The entire risk arising out of the use or performance of the software remains with you.
You agree to indemnify, defend and hold harmless ClickView, its affiliates, officers, directors, employees, consultants, agents, suppliers and resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from Your use of the Services. Some jurisdictions do not allow limitations on implied warranties, so the above limitation may not apply to you. In that event, such warranties are limited to the minimum warranties allowed by the applicable law.
8. Software License
ClickView grants you a perpetual, non-exclusive license ("Software License") to use the ClickView software subject to you paying fees for the Service on a timely basis, or until the Agreement or Contract is otherwise terminated. The Software is licensed, not sold. ClickView grants you the right to download copies of the ClickView software to any PC by installing one copy of the Software, in machine readable format only. ClickView has no obligation to provide you with, and this license does not entitle you to receive any hard-copy documentation or other printed materials, technical support services, telephone assistance or modifications, enhancements or supplements to the Software. Except as expressly licensed to you in this Agreement, ClickView retains all right title and interest in and to the Software and all copies thereof.
9. Limitation of Liability
ClickView's maximum liability will be limited in any event to actual direct damages to the extent caused solely by the acts or omissions of ClickView subject to a maximum liability of the lesser of $500 or the amount paid for the specific service which directly caused such damage. To the maximum extent permitted by applicable law, in no event will ClickView or its affiliates, suppliers and resellers be liable for any incidental, consequential, special, exemplary or indirect damages, lost business profits, business interruption, or loss, damage or destruction of data, or any other pecuniary loss or damage arising out of the use of or inability to use the services or the software or the provision of or failure to provide technical or other support services, or any other legal theory, regardless of the form of action, whether in contract, tort (including negligence), breach of warranty or otherwise, even if ClickView, its affiliates, suppliers or resellers have been advised as to the possibility of such damages. No limitation as to damages for personal injury is hereby intended. Some states do not allow the exclusion or limitation of incidental or consequential damages and the above exclusion or limitation may not apply.
10. Termination
You may terminate this Agreement at any time by providing written notice to ClickView and destroying all full and partial copies of the Software received or produced by you. If you fail to comply with any term of this Agreement, ClickView may terminate this Agreement upon written notice and you will then destroy all full and partial copies of the Software received or produced by you. If ClickView loses its rights as to all or any part of the Software due to reasons beyond ClickView's control, ClickView may terminate this Agreement upon 30 days notice and you will destroy all full and partial copies of the Software received or produced by or before the effective date of termination. Upon ClickView's request, you will certify in writing that you have complied with your obligations to destroy all full and partial copies of the Software as set forth in this section. ClickView may terminate this license and access to the ClickView networks upon failure to pay subscription fees when due.
11. Force Majeure
ClickView shall not be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by fire, flood, explosion, earthquake, war, strike, embargo, government requirement, civil or military authority, act of God, Internet traffic congestion, or other similar causes beyond its control and without the fault or negligence of ClickView or its subcontractors.
12. General
You will not assign or transfer any part or all of this Agreement or any of your rights or obligations hereunder without the prior written consent of ClickView. Failure by either party to exercise any of its rights under or to enforce any provision of this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision in the future. If any provision of this Agreement is held to be illegal, invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect. This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. ClickView may change the terms of this Agreement at any time by posting modified terms on its website. Any and all rights and remedies of ClickView upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on ClickView, and the exercise of any one remedy will not preclude the exercise of any other. This Agreement shall be governed by and construed under the laws of Australia. In the event of any dispute, the parties submit to the exclusive, personal jurisdiction of and venue in the federal and/or state court closest to the city of Sydney. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
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