Thank you for using ClickView. These terms are between the legal entity (“Subscriber”) identified in ClickView’s quote and order form (the “Order Form”) and ClickView Australia Pty Ltd (ACN 140 397 584) of Suite 125, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 (“ClickView”) for supply of services (“Services”), content (“Content”) and use of the hardware (“Hardware”) available via the ClickView platform (“Platform”) or for use with the Platform as specified by Subscriber in the Order Form.
This Agreement consists of these General Terms, the applicable Appendice(s) and the Order Form (“Agreement”).
The provision and use of certain Services, Software (as defined in Appendix 2) and/or Hardware ordered by Subscriber is subject to additional terms as follows:
Where any of these Appendices apply to the Services and/or Hardware ordered by Subscriber, those terms shall be deemed incorporated into this Agreement.
Subject to the terms of this Agreement, ClickView grants Subscriber a limited, revocable, non-exclusive and non-transferable license for its Users to access and use the Platform and such parts of the Content as are specified in the Order Form (“Licensed Content”) for educational purposes only, and for the period of the subscription stated in the Order Form (the “Subscription Period”), subject to earlier termination of this Agreement in accordance with its terms. The access and usage rights provided under this Agreement are granted to the Subscriber only, and shall not be considered granted to any subsidiary or holding company of the Subscriber.
Certain Licensed Content and functionality of the Platform requires Subscriber to create an account (“Account”). Subscriber shall not access or attempt to access an Account that it is not authorized to access. Access to Subscriber’s Account is controlled with a unique username and password. Subscriber is responsible for keeping the Account password confidential and secure against unauthorized use, and for all activity that occurs using that Account. Subscriber must provide true, accurate, current and complete information about itself as requested by ClickView.
The individual entering into this Agreement represents and warrants that they are authorized to do so on behalf of Subscriber and that they are authorized to give the representations and warranties given by Subscriber in these terms.
The Content comprises (i) the Licensed Content; and (ii) information or content (including without limitation any comments) uploaded, or otherwise provided by subscribers to, and/or users of, the Platform including without limitation Subscriber and its Users (“User Content”). User Content will be subject to a maximum storage limit of 500GB or as otherwise agreed between Subscriber and ClickView (“Storage Limit”).
Subscriber shall, and shall ensure that its Users shall, use the Content only in accordance with the terms of this Agreement. Use other than in compliance with this Agreement is strictly prohibited, and may subject Subscriber and Users to civil and criminal sanctions.
Subscriber will ensure that Users are only permitted to access Content that is appropriate for such Users to access including, without limitation, appropriate regarding the age of such Users. Subscriber shall be responsible for setting and maintaining access rights and authorizations of Users using the administrative settings on the Platform, including by limiting those Users who may make purchases, deleting content uploaded by Users, applying age ratings to User Content and by setting storage limits for individual Users.
Subscriber shall procure that Users shall:
Subscriber shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Platform, the Services Hardware and/or the Licensed Content and shall notify ClickView promptly of any such unauthorized access or use.
ClickView agrees to provide certain Support and Maintenance services to Subscriber, as described in Appendix 4.
In consideration of the provision of Subscriber’s access to and use of the Platform, Services, Licensed Content and (if applicable) purchase of Hardware, Subscriber shall pay ClickView the fees calculated and payable as set out in the Order Form (the “Subscription Fees”).
All amounts and fees stated or referred to in this Agreement are exclusive of sales tax payable, which shall be added to ClickView’s invoice(s) at the appropriate rate.
ClickView shall invoice Subscriber at the intervals stated in the Order Form. Each correctly submitted invoice is due and payable within seven (7) days after the date of the invoice or as otherwise agreed between Subscriber and ClickView. If ClickView has not received payment within seven (7) days after the date of the invoice, and without prejudice to any other rights and remedies of ClickView, ClickView shall have the right to suspend access to the Content, Services and/or the Platform until ClickView has received payment of the overdue amount together with any accrued interest.
The Subscription Fees will be reviewed by ClickView annually, and ClickView may propose an increase to the same no more than once in every year of the Subscription Period by written notice to Subscriber.
Subject to the remaining provisions of this Agreement, including the provisions of Appendix 4, ClickView shall use commercially reasonable endeavors to make the Platform, the Services and Licensed Content available 24 hours a day, seven days a week, except for:
Subscriber acknowledges and agrees that:
All Intellectual Property Rights in and to the Content shall be owned by the applicable licensors. Subscriber and its Users shall have sole responsibility for the legality, reliability, accuracy, quality and suitability of the Licensed Content and ClickView shall not be liable to Subscriber or its Users for any use made by them of the Licensed Content to the fullest extent permissible by law.
No portion of the Platform or the Content may be reproduced in any form or by any means, except as expressly permitted hereunder. Subscriber agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Platform or the Content, in any manner, and Subscriber shall not exploit the Platform or the Content in any unauthorized way whatsoever.
ClickView, the ClickView logo, and other ClickView trademarks, marks, graphics, and logos used in connection with the Platform are trademarks or registered trademarks of ClickView Pty Ltd in Australia and/or other countries. Other trademarks, graphics, and logos used in connection with the Platform or the Content may be the trademarks of their respective owners. Save as expressly stated in this Agreement Subscriber is not granted any right or license with respect to any of the aforesaid trademarks graphics and logos.
Subscriber agrees that it will not reproduce, copy, duplicate, sell, resell, rent or trade access to the Platform or the Licensed Content (or any part thereof) for any purpose.
Subscriber may suspend its use of the Platform at any time during the Subscription Period or terminate this Agreement at any time during the Subscription Period by providing written notice to ClickView. In the event of termination or suspension under this clause and, without prejudice to its other rights and remedies, ClickView shall not be required to refund any Subscription Fees paid by Subscriber up to the effective date of termination or to refund that part of the Subscription Fees corresponding to the period of such suspension.
In addition to its other rights under this Agreement, ClickView reserves the right to suspend or terminate Subscriber’s access to the Platform at any time at ClickView’s sole discretion without any liability to Subscriber, save for the refund of any part of the Subscription Fees attributable to the unused portion of the Subscription Period at the effective date of termination, calculated pro rata.
Subscriber shall, and shall ensure its Users shall, comply with all applicable laws and regulations that apply to its use of the Platform, the Services, the Content and, if applicable, the Hardware.
ClickView reserves the right to takes steps ClickView believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to ClickView’s right to cooperate with any legal process relating to Users’ use of the Platform, the Services the Content and/or (if applicable) the Hardware, and/or a third party claim that Users’ use of the Platform, the Services the Content and/or (if applicable) the Hardware, is unlawful and/or infringes the Intellectual Property Rights of a third party).
ClickView warrants that it will provide the Platform, Services and the Content with reasonable care and skill and in accordance with this Agreement.
To the fullest extent permissible by law ClickView excludes all liability in the event of any loss or damage to the Content, the Platform and the Services.
Without limitation to the foregoing:
Neither party shall be liable under or in connection with this Agreement, however that liability arises, for consequential, special, incidental or indirect losses or for loss of profits, loss of business, loss of anticipated savings and/or loss of goodwill, even if such damage or loss could reasonably be supposed to have been in the contemplation of both parties when entering into this Agreement.
Subject to the remaining provisions of this clause, and except for the Subscriber’s or its Users’ unauthorized or unlawful use of the Platform, the Services, the Content and/or (if applicable) the Hardware (for which the Subscriber’s liability will not be capped), each party’s maximum aggregate liability under or in connection with this Agreement, however that liability arises, shall in no circumstances exceed the total value of the Subscription Fees paid or payable to ClickView for the duration of the Subscription Period.
Nothing in this Agreement shall exclude or in any way limit ether party’s liability for fraud, or for death or personal liability caused by its negligence or any other liability to the extent the same may not be excluded or limited as a matter of law.
For the purposes of this clause, ‘however that liability arises’ means howsoever arising, whether in contract, tort (including negligence and strict liability), breach of statutory duty, indemnity or otherwise.
The parties agree that the limitations and exclusions of liability contained in this Agreement are reasonable in view of the nature and extent of the obligations accepted by each party under this Agreement and the level of the Subscription Fees.
Subscriber shall indemnify ClickView against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and legal fees) arising out of or in connection with:
Neither party shall be liable for any delay in performing or failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any act, event, non-happening, omission or accident beyond its reasonable control (a “Force Majeure Event”). Force Majeure Events shall include but not be limited to the unavailability of third party telecommunications or services; strikes, lock-outs or other industrial action (other than strikes, lock-outs or other industrial action of any contractors of the party seeking to rely on the Force Majeure Event); impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; act of public enemy or terrorism; or compliance with any law or governmental order, rule, regulation or direction.
If any Force Majeure Event occurs, the date(s) for performance of the affected obligation(s) shall be postponed for so long as is made necessary by the Force Majeure Event, provided that if any Force Majeure Event continues for a period of or exceeding 1 month, the non-affected party shall have the right to terminate the Agreement forthwith on written notice to the affected party. Each party shall use its reasonable endeavors to minimize the effects of any Force Majeure Event.
ClickView may send notices with respect to this Agreement by sending an email message to the email address listed in Subscriber’s Account contact information; by sending a letter via postal mail to the contact address listed in Subscriber’s ClickView Account contact information. Email notices shall become effective immediately and postal notice shall become effective 2 working days after the date of posting.
This Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. Subscriber warrants to ClickView that it has not been induced to enter into this Agreement by any prior representations whether oral or in writing, except as specifically contained in this Agreement.
No waiver of any term of this Agreement is valid unless it is in writing and signed by an authorized person of the party charged with the waiver. A waiver is valid for the specific situation for which it was sought. All remedies provided for in this Agreement are cumulative and in addition to and not in lieu of any other remedies available to either party in equity.
ClickView reserves the right to make changes to this Agreement at any time. Changes to this Agreement will be announced by sending a notice to the Subscriber. Subscriber’s and Users’ continued use of the Platform will be deemed acceptance of any such changes.
This Agreement is governed by the laws of the United States of America and the parties submit to the exclusive jurisdiction of the courts of the United States of America.
Subscriber may upload User Content to the Platform, subject to the Storage Limit as defined in the General Terms.
Users with a staff or teacher user account (“Staff Users”) may upload User Content to the ClickView Exchange service on the Platform. Subscriber must procure that, by uploading such User Content, Staff Users grant to ClickView a non-exclusive, royalty-free, transferrable and worldwide right (but not an obligation) to use and reproduce such content on ClickView Exchange. Subscriber acknowledges that such User Content will be accessible to other subscribers and users on ClickView Exchange, however such User Content will not be used by ClickView outside of the Platform without Subscriber consent.
Where User Content includes a comment, the User’s username may be used and published in connection with such comment.
The views expressed in User Content are the opinions of the relevant Subscriber and do not represent the views, opinions, beliefs or values of ClickView. ClickView will not be responsible for the content or accuracy of any User Content.
Subscriber shall not and shall ensure Users shall not submit User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. Subscriber represents and warrants for itself and on behalf of its Users that User Content:
and Subscriber agrees that it be responsible for any loss or damage ClickView may suffer as a result of and breach of the warranties set out in this Agreement.
ClickView may monitor, edit or remove any User Content for violation of the letter or spirit of this Agreement, or for any other lawful reason.
ClickView reserves the right to remove any User Content at any time for any reason, at its sole discretion.
ClickView is not liable for any User Content available on the Platform or ClickView Exchange. Subscriber is responsible for appointing a suitable person to act as their administrator to: immediately remove User Content where Subscriber has a good reason to believe that any User Content is in breach of these terms, is infringing Subscriber’s rights, or is otherwise illegal, including User Content notified to Subscriber by one or more Users clicking on the “Flag this Video” button. For User Content uploaded in ClickView Exchange, Subscriber may request for the User Content to be removed by contacting email@example.com
ClickView makes available certain software and applications to Subscribers and its Users (i) to download, from time to time; and (ii) embedded on certain Hardware, if applicable (the “Software”).
By downloading and/or using the Software, Subscriber and its Users agree to be bound by the following license terms in relation to the Software. ClickView hereby grants to Subscriber a non-exclusive, non-transferrable license for it and its Users to use the Software to access the Platform and use the Services for educational purposes only during the Subscription Period and subject to the terms and conditions of this Agreement.
Subscriber and its Users acknowledge and agree that the download and use of the mobile version of the Software will also be subject to the terms and conditions applied by the relevant third party mobile platform provider, which shall apply in addition to the terms and conditions of this Agreement. Subscriber and its Users may receive and use any free supplementary software code incorporating “patches” and corrections of errors as may be provided by ClickView from time to time. Such patches and error corrections shall be deemed to be part of the Software for the purposes of this Agreement.
Subscriber’s and its Users use of the Software is subject to the following restrictions. Subscriber shall not and shall ensure its Users shall not:
ClickView cannot guarantee that no material error or malfunction will arise during use of the Software nor that the information, results and functions related to the Software are free of all errors or defects. It is Subscriber’s and User’s responsibility to take all appropriate steps to protect its data and/or software stored on its computer equipment and devices against any viruses and infringement.
ClickView reserves the right to modify and update all or a portion of the Software or its functions without prior notice and without the need to notify Subscriber and Users in advance.
Upon acceptance of an Order Form by ClickView including any Hardware, ClickView agrees to supply the Hardware specified in the Order Form to Subscriber in accordance with the terms and conditions of this Appendix.
If the specific Hardware referenced in the Order Form is unavailable, ClickView reserves the right to supply alternative Hardware provided that such alternative Hardware can fulfill the same functionality and performance as the originally referenced Hardware.
The Hardware shall be delivered to such address as is provided by Subscriber in the Order Form, within 30 days of receipt of the Order.
Risk and Title in the Hardware shall pass to Subscriber on delivery of the Hardware.
Subscriber represents and warrants that the Hardware shall be for its own internal use only. Use of the Hardware other than for this purpose in connection with the Services shall constitute a breach of this Agreement. In particular, Subscriber represents and warrants for itself and on behalf of Users that use of the Hardware by Subscribers and Users:
ClickView shall use reasonable endeavors to procure that any warranty offered by the manufacturer of the Hardware is passed to the Subscriber. Where such manufacturer’s warranty is available, Subscriber may claim against the manufacturer and exercise its rights under the warranty to the extent permitted under its terms.
ClickView offers remote support in relation to configuration and operation of the Platform.
Cases can be logged by phone, email or through our website. ClickView’s policy is to respond to all customer cases on the same business day. Please note that cases logged after 4pm may not receive a response until 8.30am the following business day. Our offices are open from 8.00am until 6.00pm Monday to Friday PDT.
ClickView Technical Support cases will be addressed in a structured fashion and be escalated to the appropriate response team based upon the severity of the case. The following table shows expected resolution times, based on the assumption that a decision-making ICT representative of Subscriber will be able to respond to the recommendations of ClickView and make efficient decisions about its correct operation.
|Severity Level||Condition||Expected Resolution Time||Frequency of Updates|
|1||Majority of Users have restricted or no ClickView functionality||Worked on 24×7 until resolved||Every 3 hours|
|2||ClickView functionality is impaired or degraded||Worked on during business hours. Expected resolution time is 1 business day.||Every 6 hours|
|3||Problem which is causing minor issues, but not preventing use or general access||Worked on during business hours. Expected resolution time is 3 business days.||Every business day|
|4||Problem where single User(s) are experiencing issues||Worked on during business hours. Expected resolution time is 7 business days.||When remedied|
|5||An end-user contacts ClickView directly requesting a new service or clarification.||Expected resolution time is 30 business days||When addressed (if necessary)|
Subscriber agrees and acknowledges that:
ClickView reserves the right to close down access to the Platform to Subscriber and/or any Users should there be a real or perceived security risk that the Platform or any of the servers that it runs on could be infected by a virus or spyware of any kind. ClickView shall use its reasonable endeavors to restore access to the Platform as soon as is reasonably practicable following any restriction of access in accordance with this paragraph.
ClickView shall maintain and update the Platform as it deems necessary from time to time. Support for additional features developed by ClickView may be provided separately at rates to be agreed between the parties.