EnhanceTV Pty Ltd (ABN: 72 119 702 251) (EnhanceTV) owns and operates the EnhanceTV Platform and provides the Services through the website at www.enhancetv.com.au and any other website that Enhance TV operates (Websites).
These terms and conditions (Terms) set out the terms on which a User may access and use the Services provided by EnhanceTV. The Terms, accompanied by a completed Form, constitute the entire agreement between EnhanceTV and each applicable Subscriber (Agreement).
This Agreement will commence on the date a Subscriber submits a valid and complete Form with EnhanceTV subscribing to the Services, and includes any trial periods EnhanceTV grants to an Institution for a period of time at the discretion of EnhanceTV. The Agreement will continue until:
a) The end of the trial period, if EnhanceTV grants a trial period to an Institution for the Services and the Institution has terminated the Agreement before the end of the trial period;Termination or expiry of the Agreement in accordance with clause 8, if EnhanceTV grants a trial period to an
b) Institution for the Services, and the Institution has not terminated the Agreement before the end of the trial period; or
c) Termination or expiry of the Agreement in accordance with clause 8, if there is no trial period (Term).
1.2 Accepting the Terms and Agreement
i. for the Term, the Subscriber appoints EnhanceTV to provide and EnhanceTV agrees to provide the Services in accordance with the Agreement.
i. by accessing and using the Services, each User accepts and agrees to the Terms.
ii. the Subscriber is responsible for and must ensure that each User authorised to access and use the Services by the Subscriber has been provided with these Terms, and agrees to and complies with these Terms.
1.3 Changing the Terms and Agreement
EnhanceTV may amend this Agreement or these Terms, or impose new terms (including adding fees and charges for the Services) from time to time. Any changes will be effective immediately upon EnhanceTV giving 30 days’ notice, which may be by any means, including notification via the EnhanceTV Platform, on the Websites or by email. The User understands and agrees that if the User accesses and uses the Services after the date on which the Agreement or Terms have changed, EnhanceTV will treat their use as acceptance of the changed Agreement or Terms as amended.
1.4 Changing the Services
EnhanceTV may update, add to, make changes to, or remove certain Services, its internal processes, the interface of the Services or features and functionalities of the Services, including subscription levels, from time to time as it considers appropriate. To the extent practicable, EnhanceTV will give the User 30 days’ notice in writing (which may be by e-mail) of any such changes that are material to the User’s use of the Services.
2. TERMS OF ACCESS
To be eligible to access and use the Services, the User must be a person authorised by an Institution.
a) An Institution may subscribe to the Services by way of an annual paid subscription.
b) EnhanceTV may, at its sole discretion, grant a complimentary subscription with limited uses, features, and data for streaming to an Educator for a limited period of time.
c) An Educator may subscribe to the Services with limited uses, features, and data for streaming by way of a 90-day paid subscription.
d) When an Educator has reached its 30-day data cap for streaming further streaming may be suspended for the remainder of the 30 days. The data cap refreshes every 30 days.
2.3 Payment Terms
a) Where the Subscriber subscribes to a paid subscription, EnhanceTV charges the Subscriber and the Subscriber agrees to pay Subscription Fees in advance in return for access to and use of the Services.
b) The Educator agrees that at the end of each subscription period covered by the Subscription Fee paid, the subscription will automatically renew for another period of the same duration as that period, provided the Educator continues to pay the prescribed Subscription Fee when due, unless the Educator terminates the Agreement by giving EnhanceTV notice, in writing, 30 days before the end of the relevant paid subscription period. EnhanceTV will not be obliged to provide the Educator with any refund or credit of Subscription Fees paid prior to the termination.
c) EnhanceTV will automatically charge an Educator’s Subscription Fees to his or her credit card every 90 days. The Educator can manage his or her account and credit card details on the EnhanceTV Platform.
d) An Institution will pay the Subscription Fees annually by Electronic Funds Transfer, cheque or credit card. An Institution may, at its sole discretion decide whether to renew its annual paid subscription.
e) Payment of any invoice is due 14 days from the date of the invoice.
f) EnhanceTV may, at its sole discretion, terminate or suspend a Subscriber’s use or access to the Services without notice if any Subscription Fees remain unpaid.
g) EnhanceTV may, in its discretion, vary components of the Subscription Fees by giving the Subscriber at least 30 days’ notice in writing with the varied Subscription Fees effective on commencement of the next subscription period.
h) Unless indicated otherwise, the Subscription Fees are exclusive of GST and other applicable taxes and duties, which must be paid by the Subscriber.
i) If the Subscriber makes payments online, all information, including credit card details, is sent and received using up-to-date secure e-commerce software. EnhanceTV continuously monitors and implements new security protocols and software as they become available. If payments are made online, no credit card data is held by EnhanceTV.
Each User is responsible for providing their own internal facilities (including if applicable terminal, server, software, SQL database licences, modem and telecommunications facilities or services) necessary for accessing the Services. EnhanceTV accepts no responsibility for any deficiency in the User’s internal access facilities or services provided.
a) In order to access the Services, a User will have log-in details and an account. Each User must ensure that its account information is accurate and up to date at all times.
b) On EnhanceTV’s request, an Institution must provide EnhanceTV the email address of each User it proposes to authorise access to and use of the Services under the Institution’s subscription under clause 2.2(a). This email address will form part of the User’s log-in details used to access the Services.
c) Each User must keep confidential and secure any passwords or other security credentials used to access the Services. Each User agrees to take reasonable steps, including implementing reasonable security measures to ensure that no unauthorised person gains access to the EnhanceTV Platform and there is no unauthorised use of the Services. Each User further agrees not to use or interfere with any other User’s account.
d) A User must not share its log-in details, passwords or other security credentials used to access the Services, allow anyone else to use or access the Services, or do anything that might jeopardise the security of the Services.
e) The User must immediately notify EnhanceTV of any unauthorised use of log-in details or any other breach of security.
3. USE OF THE SERVICES
a) Where the Institution proposes to authorise access to and use of the Services to Users, such as students, who are under the age of 18, the Institution warrants that:
i. it has obtained consent from those Users’ parents or legal guardians for use of the Services by those Users;
ii. those Users’ parents or legal guardians have been provided with these Terms and agree to those Users’ use of the Services in accordance with these Terms;
iii. it will actively monitor the use of the Services by all Users who are under the age of 18;
iv. it will not provide access to those Users to Material which is classified by the Australian Classification Board as being unsuitable for those User; and
v. it will classify those Users’ levels of access to Materials according to the programming’s classification as appropriate.
b) Users under the age of 18 should seek their parents’ or legal guardians’ consent to access and use the Services.
3.2 Use Terms
a) The User agrees that it will use the Services in a manner consistent with the Agreement and any applicable laws.
b) The User must immediately report to EnhanceTV any instances of misuse or breach of the Agreement by Users, including students, who are given access to the Services of which it becomes aware or reasonably suspects is occurring. A failure to do so may amount to a breach of the Agreement.
c) EnhanceTV provides the Services on the condition that it is used by the User only:
i. for the educational purposes of the Institution; or
ii. in the provision by the Institution of assistance to persons with an intellectual disability.
d) The User agrees not to engage in any activity that interferes with or disrupts the Services (including the servers and networks that are connected to the EnhanceTV Platform), including but not limited to where EnhanceTV identifies what it reasonably considers to be exceptional server resources loads or support relating to the User’s use of the Services, which may arise as a result of the User’s excess usage of the Services, or uploading content which contains software viruses, worms, or any other code, file or program which may compromise the security, integrity or functionality of the Services or any other User’s computing device or software.
e) The User agrees not to attempt to gain unauthorised access to any part of the content or design of the EnhanceTV Platform, the EnhanceTV Material, the Material and Third Party Content other than those to which the User has been given express permission to access, or to the computer or server system on which the EnhanceTV Platform is hosted.
f) The User agrees not to attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the EnhanceTV Platform or to operate the EnhanceTV Platform except as is strictly necessary to use for normal operation.
g) In addition, the Services may only be used in accordance with the terms of the relevant Institution’s Screenrights Licence. For further details regarding a Screenrights Licence, please contact Screenrights by calling (02) 9904 0133.
3.3 Acceptable Use
a) Each User agrees that that it will not use the Services to:
i. engage in conduct which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, harassing, hateful, or racially or ethnically or otherwise objectionable;
ii. encourage conduct that is criminal, would give rise to civil liability or would otherwise violate any law;
iii. impersonate a person or entity or falsely state their affiliation with a person or entity;
iv. engage in conduct that infringes the rights of another party or a third party, including but not limited to trademark, copyright and other Intellectual Property rights;
v. advertise or perform any commercial or other form of solicitation that is in breach of law or not authorised by EnhanceTV under the Agreement;
vi. transmit or otherwise make available any content that contains software viruses or any other computer code, files designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
vii. assist with the development of a competitive or replacement web based streaming application or service.
3.4 External Content
a) The Material, Third Party Content or any other content comprising the Services may contain links to External Content. EnhanceTV is not responsible for the External Content. The User acknowledges and agrees that EnhanceTV is not liable for any loss or damage which may be incurred by the User as a result of the availability of External Content, or as a result of the User’s reliance on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, third party websites or resources.
b) The External Content is provided solely for convenience and do not indicate, expressly or impliedly, any endorsement of the websites or the products or services that are promoted, visible, accessible or transacted via the Services.
c) To the extent that the User links with other sites, including social networking sites, in connection with the User’s use of Services, the User’s use is also governed by the terms of service of those sites and it is a term of this Agreement that the User comply with those terms of service.
4. INTELLECTUAL PROPERTY
a) All Intellectual Property rights in the EnhanceTV Material and Third Party Content are the sole and exclusive property of EnhanceTV or its licensors. The User will not assert any claim or interest in or to any of the EnhanceTV Material or Third Party Content.
b) Third Party Content is provided subject to any copyright noticed on the Third Party Content. A User may, as permitted by EnhanceTV, make a copy of all or part of the Third Party Content for the sole purpose of viewing it and print a copy for use in the User’s capacity as an administrator, teacher, staff member or student within the Institution. Nothing in this clause grants the User any licence or right to any other use or to distribute any of the Third Party Content.
c) Except as permitted under clause 4b), a User must not reproduce, alter, modify, adapt, store, transmit, print, display, distribute, publish or create derivative works from any part of the content or design of the Services, the EnhanceTV Material, the Material and Third Party Content except with EnhanceTV’s prior written consent or as permitted by the Act, specifically including Part VA of the Act.
d) Where a User enters or posts any content on the EnhanceTV Platform or any website associated with EnhanceTV, that User grants to EnhanceTV a perpetual, irrevocable, non-exclusive, world-wide, royalty-free licence to use and reproduce the content for the purposes of Services and warrants that the User has all necessary rights, including copyright, in that content.
e) The Institution authorises EnhanceTV to copy Broadcasts and to communicate such Broadcasts on the Institution’s behalf for its educational purposes under the terms of Part VA of the Act.
f) The User acknowledges that copies of Broadcasts are made on behalf of the Institution and are communicated on behalf of the Institution by EnhanceTV.
g) The Institution agrees that EnhanceTV may use their business name, logo and trade mark for its promotion and marketing purposes. The Institution grants EnhanceTV an irrevocable licence to use such content in this way, providing that EnhanceTV does not use the Institution’s business name, logo and trade marks for promotion or marketing purposes in a way which would clearly detract from the Institution’s good name and reputation.
h) Nothing in the Agreement grants the User any licence or right to use or distribute any of EnhanceTV’s or any other person’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
5. DISCLAIMERS AND INDEMNITY
5.1 Disclaimers, Exclusions and Limitations
a) The EnhanceTV Platform contains content provided by third parties, including customers of EnhanceTV and Users of the EnhanceTV Platform. The content includes the Material and Third Party Content. EnhanceTV does not moderate this content, and is not responsible for the accuracy, completeness or reliability of any content posted on the EnhanceTV Platform. EnhanceTV does not endorse, support, encourage or necessarily agree with this content. The User agrees that EnhanceTV is not responsible, and has no liability to the User with respect to this content or the conduct of any User.
b) The User agrees that the User’s access to and use of the Services is at their own discretion and risk. The Services are provided ‘as is’ and ‘as available.’ To the extent permitted by law, neither EnhanceTV nor any of its affiliates, employees, representatives or agents make any representation or warranty about the Services in respect of its accuracy, reliability, fitness for purpose or non-infringement.
c) The User acknowledges that there are certain risks inherent in using the internet and electronic communications generally, which are out of EnhanceTV’s control and for which EnhanceTV is not responsible. EnhanceTV does not guarantee that its provision of the Services will be free of delays, uninterrupted, error free or free of viruses or bugs. EnhanceTV accepts no responsibility or liability for any loss or damage that the User may incur, including any damage to software or hardware, delivery failures, system malfunction, or misuse, loss or unauthorised access, modification, or disclosure of data, arising from the User’s use of or access to the Services.
d) Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Nothing in the Agreement excludes or limits EnhanceTV’s liability that may not be lawfully excluded or limited by applicable law. Accordingly, only the limitations that are lawful in the User’s jurisdiction apply to the User and EnhanceTV’s liability is limited to the maximum extent permitted by law.
e) EnhanceTV excludes, to the maximum extent permitted by law, all direct and indirect liability that may arise as a result of the User’s use of or access to the Services under the Agreement, however arising under any theory of liability, including negligence.
f) EnhanceTV excludes, to the maximum extent permitted by law all implied rights, remedies, guarantees, conditions and warranties of or in favour of the User or a third party in respect of goods and services related to the User’s use of and access to the Services and in particular, if any term, condition or warranty is implied into the Agreement and cannot be excluded, then warranty will be limited as determined by EnhanceTV in its sole discretion to:
i. in the case of goods, any one or more of the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or of acquiring equivalent goods;
ii. in the case of services, the supplying of the services again (directly or indirectly) or the payment of the actual cost of having the services supplied again.
g) The User warrants and represents that the User has not relied on any term, undertaking, inducement or representation made by, or on behalf of EnhanceTV, which has not been expressly stated in the Agreement.
h) EnhanceTV limits its aggregate liability under or in connection with the Agreement and the use and access to the Services to:
i. for an Educator, a sum equivalent to the 90-day Subscription Fee most recently paid under the Agreement prior to the relevant claim being made; or
ii. for an Institution, a sum equivalent to the annual Subscription Fee most recently paid under the Agreement prior to the relevant claim being made, divided by 4.
i) To the extent applicable and permitted by law, The User agrees that the provisions of clause 5 apply equally to the Subscriber and each User authorised by an Institution to access and use the Services.
The User agrees to unconditionally indemnify EnhanceTV and its affiliates, employees, agents, representatives and third party service providers against any claims, liabilities, loss or liabilities of any nature arising out of or in connection with the User’s breach of the Agreement, the User’s non-compliance with laws and regulations, or the User’s access to and use of the Services.
b) The Subscriber must comply with all applicable privacy and information laws and regulations so far as they relate to the Subscriber’s collection of personal information via the EnhanceTV Platform.
c) The Subscriber warrants that they have made and will make all necessary disclosures, and have obtained and will obtain any necessary consents from individuals in relation to personal information which they collect and disclose to EnhanceTV.
d) Where the Institution proposes to authorise access to and use of the Services to Users who are under the age of 18, the Institution warrants it has obtained consent from those Users’ parents or legal guardians to the provision of those Users’ personal information and disclosure to EnhanceTV.
e) The User unconditionally indemnifies EnhanceTV for their non-compliance with this provision.
Each party must keep the other party’s Confidential Information (including the terms of the Agreement) confidential, and neither party will disclose or allow any written or electronically recorded Confidential Information to be copied other than for the purposes of the Agreement, as the other party expressly agrees or as required by law.
8. SUSPENSION AND TERMINATION
a) The Subscriber may terminate the Agreement at any time by giving EnhanceTV 30 days’ notice in writing. EnhanceTV will not be obliged to provide the Subscriber with any refund or credit of Subscription Fees paid prior to the termination.
b) EnhanceTV may in its absolute discretion terminate the Agreement at any time by giving 30 days’ notice in writing. In the event of termination pursuant to this clause only, EnhanceTV will provide a refund of any pre-paid Subscription Fees for which Services will not be provided.
c) Without limiting EnhanceTV’s other remedies at law, in equity or under the Agreement, The User acknowledges and agrees that EnhanceTV may, in its sole discretion, immediately terminate the Agreement or suspend for any definite or indefinite period of time a User’s right to use or access the Services or any part of it if:
i. a User has breached any of the Agreement and that breach is not remedied within 14 days of EnhanceTV notifying the User of the breach;
ii. a Subscriber suffer any form of Insolvency; or
iii. EnhanceTV determines in its sole and exclusive judgment that terminating the Agreement or suspending for any definite or indefinite period of time a User’s right to use or access the Services or any part of it, is necessary for security reasons, to preserve the proper continued operation of the Services (including the servers and networks that are connected to the EnhanceTV Platform), or where a User’s actions may cause legal liability for EnhanceTV or any other persons.
d) EnhanceTV will not be obliged to provide the Subscriber with any refund or credit of Subscription Fees paid prior to the suspension or termination under this clause.
e) Termination of the Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of the Agreement:
i. the Subscriber will remain liable for any accrued charges and amounts which become due for payment before or after termination; and
ii. the User will immediately cease to use the Services.
f) EnhanceTV reserves the right to permanently delete all data associated with a Subscriber’s subscription and a User’s access to and use of the Services within 30 days of the termination of the Agreement.
9. DISPUTE RESOLUTION
a) The parties must endeavour to settle any dispute in connection with the Agreement by mediation. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement within seven days of receiving any party’s notice of dispute, by a person appointed by the Chair of Resolution Institute (ACN 008 651 232) or the Chair’s designated representative. The Resolution Institute Mediation Rules shall apply to the mediation.
b) It is a condition precedent to the right of either party to commence arbitration or litigation other than for urgent interlocutory relief, that it has first offered to submit the dispute to mediation.
c) Despite the existence of a dispute, the parties must continue to perform all their respective obligations under the Agreement.
10. GENERAL TERMS
a) Sometimes the Services are provided by a third party. The User's use of these other services may be subject to separate terms between the User and that third party. The Agreement does not affect the User’s legal relationship with that third party.
b) The User acknowledges and agrees that EnhanceTV may engage subcontractors or individuals on a consultancy basis to assist in the provision of the Services.
c) Except as otherwise agreed in writing, this Agreement forms the entire agreement between the parties and supersedes any prior agreement covering the same subject matter and any prior written or oral representations.
d) If there is any inconsistency between any of the documents that comprise the Agreement, the order of priority for the purposes of construction is as follows (where the provisions of the Form prevail over the other documents to the extent of the inconsistency, and so on):
i. the Form;
ii. these Terms;
iii. any other document referenced or comprised in the Agreement.
e) Notice may be given by email. The User agrees that EnhanceTV may give notice by sending an email to the address provided by the User as part of the subscription or account set-up process, or as later notified by the User. The User is responsible for ensuring the email address provided to EnhanceTV is a current and monitored email account. The User may send notices to EnhanceTV at email@example.com.
f) Neither party will be liable for any delay or failure in performance of its obligations under the Agreement if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
g) A failure or neglect by a party to enforce any of its rights under the Agreement will not be deemed to be a waiver to those rights. If either party waives any breach of the Agreement, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
h) The User may not assign or transfer any rights to any other person without EnhanceTV’s prior written consent.
i) Nothing in the Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that a party may have against another party or any other person at any time.
j) Nothing in the Agreement creates a relationship of partnership, joint venture, agency or employment between the parties.
k) If a part of the Agreement is found by a court of competent jurisdiction to be illegal, void, or unenforceable, that part is taken to be deleted from the Agreement, and will not affect the enforceability of the remaining provisions, unless the deletion would change what EnhanceTV intends to be the effect of the Agreement.
l) The Agreement is governed by the laws in force in New South Wales, Australia. The User submits to the non-exclusive jurisdiction of the courts in New South Wales, Australia and courts competent to hear appeals from those courts to resolve any legal matter arising from the Agreement. The Services are deemed to be supplied in New South Wales, Australia.
In the Agreement, unless the context otherwise requires:
means the Copyright Act 1968 (Cth) as amended from time to time.
has the meaning ascribed to it in the Act.
means all trade secrets, ideas, know-how, concepts, methods of working, management, operations, procedures, financial and business information whether in writing or otherwise relating to the parties, but does not include information that is in the public domain for reasons other than unauthorised disclosure.
means an individual of an Institution who has subscribed to the Services on behalf of an Institution for an individual subscription to the Services.
means information, data, reports, and material used in providing or incorporated into the Services including all software, tools, know-how, methodologies, equipment or processes, trade marks, logos, designs, the Material and other materials.
means the EnhanceTV web based streaming application and service.
means information and advertising from third parties and links to third party websites.
means the online application or registration pages or other EnhanceTV application or registration forms or agreement a Subscriber completes in subscribing to the Services, together with the information provided in them, and also includes any EnhanceTV form submitted by a Subscriber requesting Services from EnhanceTV and any variation to the Form agreed by EnhanceTV.
means being at risk of being unable to pay the debts as they become due, and includes any form of bankruptcy or administration.
means an Institution as that term is defined in Part VA of the Act that:
a) has a current remuneration notice in place under Part VA of the Act;
b) holds a current Screenrights Licence; and
c) is authorised to access the Services.
means all intellectual property throughout the world, including copyright (including under the Copyright Act 1968 (Cth)), patents, inventions, designs, trademarks, domain names, trade secrets, know-how, and all other intellectual property as defined in Article 2 of the convention establishing the World Intellectual Property Organisation 1967 (whether registered or unregistered), and any application or right to apply for registration of any of those intellectual property.
means the audio-visual content supplied through the EnhanceTV Platform.
means a calendar month.
means providing access to the archive or broadcast educational video content supplied to users under Part VA of the Act and includes Third Party Content, and related services through the EnhanceTV Platform or other Websites, provided by EnhanceTV for use by each Subscriber and User.
means the Audio-Visual Copyright Society Limited, trading as Screenrights (ABN 76 003 912 310).
means a licence to copy and communicate television Broadcasts for the educational purposes of an Institution subject to payment of equitable remuneration pursuant to an agreement with Screenrights.
means the Institution or Educator entering into the Agreement.
means where a Subscriber subscribes to the paid subscription, either for 90 days or annually, as the case may be, the fee (including any taxes and duties) payable by the Subscriber in advance to EnhanceTV for the Subscriber’s access to and use of the Services.
Third Party Content
means material previously uploaded by Users of the EnhanceTV Platform, previously known as EnhanceTV Direct, that became available as part of the EnhanceTV Platform, such as lesson notes and work sheets created by Users, and study guides.
means a Subscriber accessing and using the Services and includes an Educator, administrator, teacher, staff member, employee, agent, representative, student (subject to clause 3.1), or any person authorised by an Institution to access and use the Services as part of that Institution’s subscription to the Services.