IceTV LICENCE AGREEMENT
1. This Agreement is made between you (either an individual or a single legal entity) and IceTV Pty Limited ("IceTV") ABN 58 003 552 216.
2. This Agreement sets out the services, content, and any documentation that IceTV will provide to you ("IceTV Service") along with the terms and conditions which govern your use of the IceTV Service and any products or software ("IceTV Software") provided by IceTV to you.
3. You must accept these terms and conditions by selecting the checkbox provided and this Agreement (and the Subscription Term chosen by you) commences when you do so. This Agreement (and the Subscription Term) ends when all the IceTV Services expire (or terminate), unless terminated earlier in accordance with this Agreement.
Services and Content
4. IceTV will provide you with the IceTV Service on the terms and conditions that are set out in this Agreement.
5. The IceTV Service consists of the IceTV electronic program guide (EPG) along with additional interactive features, software applications and services provided as part of IceTV Interactive. The IceTV Service allows you to see the latest program guide listings for certain free-to-air television channels in your region and perform tasks such as 'one-click recording' and receive (or download) a data stream through your home network (such as the Internet or a wireless network) from IceTV's Servers ("Content"). IceTV will deliver the Content to you in XML format (or in such other format as IceTV determines in its absolute discretion) through a network in a manner that you will be able to use in conjunction with the IceTV Software and the existing software of your compatible digital recording device ("IceTV Device").
License to use Content
6. For the duration of the Subscription Term (i.e. 1, 3 or 12 month IceTV Subscription), you are entitled to receive (or download) the Content, and to use the Content with the IceTV Software, in each case in accordance with the terms and conditions of this Agreement.
7. IceTV reserves all rights in the Content that are not expressly granted in this Agreement.
8. At the end of the Subscription Term, including any renewals pursuant to this Agreement, the license granted terminates, and you must not use, access or download the Content nor use the IceTV Service, nor any IceTV Software without permission from IceTV.
Ownership of the Content
9. Copyright and all other intellectual property rights in the Content belong to IceTV. The license granted in this Agreement does not give you any right to deal with the Content and, in particular, you must not: (a) use the Content to provide a service to a third party; (b) make available to anyone hard copy or electronic versions of the Content (including on CD ROM, DVD or as an email attachment or as a shareable or downloadable file); (c) reverse engineer any of the Content (including the format in which the Content is delivered) and/or IceTV Software or by any means create data which is the same or substantially similar to the Content or its format; (d) remove, alter or obscure any notice, logo, trade mark or identifying mark from the Content accessed or produced by IceTV or any reproduction of that Content; (e) without written permission from IceTV, use the content with any software or device that is not listed by IceTV as supported software or device (f) use the Content for any commercial and non-personal purposes; and (g) do or permit any further activity which IceTV notifies you from time to time is contrary to its interests.
10. Provided you pay IceTV the applicable fees and charges, the Subscription Term will automatically extend unless IceTV notifies you to the contrary after receipt of your payment or this Agreement subsequently terminates.
11. If IceTV provides any Software to you, IceTV grants you a non-exclusive and non-transferable limited license during the Subscription Term to utilise the Software for your personal private use anywhere in Australia.
12. You must not use, or permit any person to use, the Software in any way not expressly permitted by clause 5. You must protect the Software with measures adequate to prevent any disclosure or use in breach of this Agreement, and you must also not: (a) use the Software on behalf of, or for the benefit of, any person that is not a resident in your home or otherwise in the physical vicinity of the equipment on which the Software operates; (b) disassemble or reverse-engineer the Software; (c) copy, reproduce or transmit to the public any of the Software; or (d) cause or permit any person to do any of things referred to in paragraphs (a), (b) or (c).
13. You do not acquire any intellectual property rights in the Software, you do not have a right to the source code of the Software, and you must not tamper with the Software.
14. IceTV warrants that use of the Software as permitted by clause 5 will not infringe the intellectual property rights of any person.
15. Any third party software provided or bundled with the Software is licensed to you under the terms and conditions of that license agreement. IceTV is not a party to such license agreements and does not assume any obligation in respect of that third party software.
16. You agree to pay all the fees and charges for the Services as set out in the relevant sections of the IceTV web site or associated promotional material. Unless otherwise stated, all fees and charges are due within 14 days of the date of the IceTV tax invoice.
17. You agree to pay all taxes arising from or relating to this Agreement (other than taxes on IceTV's income).
18. All fees include GST unless otherwise indicated. IceTV agrees to provide you with a valid tax invoice for that supply and that tax invoice may be delivered to you by email or other electronic means.
19. IceTV may increase the fees and charges payable for the Services (including any software) by up to 10% each year. If IceTV increases any fees and charges payable by you for the Services (including any software), IceTV will give you at least 30 days' notice of such increase.
20. You agree to be bound by the conditions of this Agreement whether you have paid for the service or you are using it for free for any reason.
21. If you receive (or have received) any information about the business affairs or technology or processes used or implemented by IceTV you must keep that information confidential and only use or disclose it: (a) for the purpose of meeting your obligations or exercising your rights under this Agreement; or (b) as required by law or in connection with legal proceedings. The provisions of this clause continue after termination of this Agreement.
22. IceTV may, by notice to you, immediately terminate this Agreement (including any Services) if: (a) you breach this Agreement and do not remedy it within 30 days of IceTV sending you a notice detailing the breach and asking you to remedy it; or (b) you become insolvent (as that term is defined in the Corporations Act 2001). The expiry or termination for any reason, of this Agreement does not affect any accrued rights or remedies that you or IceTV may have.
23. On the expiry or termination for any reason, of this Agreement or the Subscription Term: (a) any licenses granted in this Agreement are immediately revoked; (b) you must, within 14 days of expiry or termination, return any Software (and documentation) to IceTV and delete all copies in your possession or control; and (c) you must pay to IceTV any amounts owing to IceTV without any deductions or set off of any kind.
24. Apart from your statutory rights which cannot be excluded or limited, IceTV excludes all other terms and all warranties (other than the warranty in clause 14) of any kind (whether express, implied, statutory or otherwise).
25. Apart from your statutory rights which cannot be excluded or limited, IceTV excludes all liability for indirect loss or damage of any kind (including for loss or corruption of data, loss of revenue, loss of profits of any kind (whether direct, indirect or otherwise), failure to realise expected benefits, enjoyment, time, profits or savings of any kind (whether direct, indirect or otherwise) and any commercial or economic losses of any kind) however caused, whether in contract, tort (including negligence), under any statute or otherwise, arising from or related in any way to this Agreement.
Limitation of liability
26. To the extent permitted by law, IceTV's total liability for loss or damage of any kind not excluded by clauses 23, 24 and 25, however caused, whether in contract, tort (including negligence), under any statute or otherwise, arising from or related in any way to this Agreement (including, to avoid any doubt, the subject matter of this Agreement) is limited for any and all claims that arise in a calendar year to the fees paid to IceTV in that calendar year.
27. If a statute implies into this Agreement a term that cannot be excluded, then so far as lawful IceTV's liability for breach of the term is limited to: (a) for breaches relating to goods: the repair of the goods, replacement of the goods with equivalents or the payment of the cost of such repair or replacement; and (b) for breaches relating to services: re-supply of the services or payment of the cost of re-supply.
28. You are liable to IceTV if you act negligently in performing your obligations set out in this Agreement.
30. IceTV may modify the terms and conditions of this Agreement by notice to you. You will be taken to have accepted the amendments by continuing to use any Services or the Software after they have been drawn to your attention.
31. You indemnify and agree to keep IceTV indemnified from and against all liability, claims, loss and damage suffered (including legal fees and expenses on an indemnity basis) or incurred out of or in connection with: (a) any breach of this Agreement or any act or omission by you, your agents or sub-contractors; (b) any claim that the use of the Services (including any related content and software) otherwise than in accordance with this Agreement infringes any intellectual property rights of a third party; (c) any use you make of the Services (including any content) or any software; or (d) your use of any Services or Software otherwise than as permitted by this agreement including, in particular, for the purposes of preparing or creating evidence for use in any litigation or other legal proceeding regardless of the parties.
32. You agree to perform any tasks that are allocated to you in this Agreement. You also agree to provide IceTV with all information and co-operation needed to enable IceTV to meet its obligations under this Agreement. If you do not do these things, then without limiting any other right or remedy that IceTV may have, the time for IceTV to meet its obligations under this Agreement is extended by any delay that is caused by you.
33. You may not assign, or otherwise deal with any rights or obligations under this Agreement without IceTV's prior written consent (which may be unreasonably withheld or delayed). You must agree to IceTV's notation of this Agreement to another body corporate provided that the proposed replacement entity is reasonably likely to be able to provide Services to no less a standard than IceTV.
34. IceTV will not be in breach of this Agreement if the breach is caused by an event beyond IceTV's commercially reasonable control. You will not be in breach of this Agreement (other than by a failure to pay money) if the breach is caused by an event beyond your control.
35. You agree to comply with all applicable laws and regulations when using the Services.
36. You acknowledge that IceTV is not responsible for your reproduction, saving, access, downloading or other exploitation of any third party material (whether provided by IceTV or not). Title and related rights in third party material is the property of the applicable third party owner and may be protected by applicable laws.
37. In addition to IceTV's other rights, if you breach any term of this Agreement, IceTV may suspend Services indefinitely and/or terminate the Subscription Term.
38. This agreement: (a) constitutes the entire agreement between you and IceTV relating to the subject matter of this agreement and supersedes all prior understandings, arrangements and agreements between you and IceTV; (b) may only be varied by a written agreement between you and IceTV; and (c) is governed by the law in force in New South Wales, Australia and you and IceTV submit to the non exclusive jurisdiction of the courts of that place. The United Nations Convention on Contracts for the International Sale of Goods (The Vienna Convention) does not apply to this agreement.
39. IceTV may give you a notice under this Agreement in any manner that brings it to your attention. In addition to hard copy notice this may include email notice or notice that appears as part of your use of any Software, or as part of the Content. If your email software is configured to automatically provide delivery and read receipts for any communication sent to you by IceTV, then where notice is not given to you by hard copy, it will not be effective unless IceTV has received a message to the effect that the message containing the notice has been delivered or read, or deleted without being read.