Last Updated: January 19, 2023
TERMS OF SERVICE
Welcome to ATMOSPHERE TV. ATMOSPHERE TV is a streaming platform service offered by Zoo Business Media Pty Ltd (“Atmosphere TV,” “we,” “our,” or “us”), which allows your business locations to view and display probably the best videos in the world via specially curated video channels (“ATMOSPHERE TV”). These Terms of Service (these “Terms”) govern the use of ATMOSPHERE TV by your owned and operated venue(s) that you have signed up for the ATMOSPHERE TV service (your venue is referred to herein as “you,” “your,” or “Venue”).
1. Acceptance of Terms.
BY SIGNING UP FOR AND/OR USING ATMOSPHERE TV, WHETHER THROUGH THE ATMOSPHERE TV WEBSITE OR THROUGH SEPARATE WRITTEN AGREEMENT BETWEEN YOU AND ZOO BUSINESS MEDIA PTY LTD, YOU, ON BEHALF OF YOURSELF AND YOUR VENUE, ACCEPT AND AGREE TO THESE TERMS, WHICH CONSTITUTE A BINDING CONTRACT BETWEEN YOU AND ZOO BUSINESS MEDIA PTY LTD. YOU ALSO REPRESENT AND WARRANT THAT YOU HAVE FULL RIGHT, POWER, AND AUTHORITY TO SIGN UP YOUR VENUE FOR ATMOSPHERE TV, TO ACCESS AND USE ATMOSPHERE TV ON BEHALF OF YOUR VENUE, TO AGREE TO THESE TERMS ON BEHALF OF YOUR VENUE, AND THAT ALL ACTIONS NECESSARY TO AUTHORISE THE ACCEPTANCE OF AND AGREEMENT TO THESE TERMS HAVE BEEN TAKEN BY ALL AUTHORISED REPRESENTATIVES OF YOUR VENUE. IF YOU OR YOUR VENUE DOES NOT AGREE TO ANY OF THESE TERMS, OR IF ANY OF THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE NOT WHOLLY TRUE AND ACCURATE, THEN DO NOT SIGN UP FOR OR USE ATMOSPHERE TV.
Make sure you can read these Terms, as they may include hyperlinks, which may be only accessible online on our Website. If you are reviewing this on a device that does not allow You to access hyperlinks, please visit the hyperlinks online through the ATMOSPHERE TV website at https://atmospheretv.com.au (the “Website”).
THESE TERMS REQUIRE THAT YOU, YOUR VENUE, AND ANY REPRESENTATIVE OF YOUR VENUE RESOLVE ANY AND ALL DISPUTES WITH ZOO BUSINESS MEDIA PTY LTD ARISING FROM OR RELATED TO ATMOSPHERE TV AND/OR THESE TERMS BY ARBITRATION OR IN SMALL CLAIMS COURT. THESE TERMS ALSO REQUIRE ANY SUCH DISPUTES TO BE RESOLVED ON AN INDIVIDUAL BASIS.
1.1. Changes. We strive to always offer the best possible ATMOSPHERE TV Plans, content, and experience. As a result, we may, in our sole discretion, at any time and for any reason or no reason, temporarily or permanently, change, update, suspend, discontinue, or terminate all or part of these Terms or any Account, Portal, Plan, Plan Benefits, your Billing Plan, Plan Fee (all defined herein), the content, functionality, design, materials, availability, advertisements, products, pricing, technical requirements or any and all other elements of ATMOSPHERE TV, in part or as a whole, now existing or hereafter devised (collectively, “Changes”). We will provide You with reasonable notice of any such Changes by the means of notice provided for in Section 15 of these Terms. Unless otherwise stated in these Terms, all Changes will be effective on a date set forth in our sole discretion.
2. ATMOSPHERE TV PLANS.
We currently offer two (2) plans by which you can enjoy ATMOSPHERE TV services (each a “Plan”): (1) the ATMOSPHERE TV Free Plan (the “Free”); (2) the ATMOSPHERE TV Premium Plan (the “Premium”). All existing Plans have plan benefits attached to each (the “Plan Benefits”), and are found at: https://atmospheretv.com.au
2.1. Free Plan Rebate / Minimum Play Time Requirement. The Free Plan is made available to customers for $30.00 per month, per Venue (the “Free Plan Fee”). Each Venue that plays a minimum of forty (40) hours of ATMOSPHERE TV content per month (as monitored, tracked and solely determined by Zoo Business Media Pty Ltd) (the “Minimum Play Commitment”) will receive a rebate on its Account in an amount equal to one (1) month of the Free Plan Fee, applied for the following month of services for said Venue. IF ANY VENUE FAILS TO REACH THE MINIMUM PLAY COMMITMENT FOR ANY ONE (1) MONTH PERIOD, SUCH VENUE WILL BE AUTOMATICALLY CHARGED THE FREE PLAN FEE ON A MONTHLY BASIS UNTIL SUCH TIME SAID VENUE REACHES THE MINIMUM PLAY COMMITMENT FOR THE MONTH OR UPON CANCELATION OF YOUR ACCOUNT. The aforementioned rebate is non-transferable, not for resale and is not redeemable for cash.
2.2. Premium Plan Digital Signage Manager. Signing up for our Premium Plan gives you access to the ATMOSPHERE TV Digital Signage Manager. The Digital Signage Manager allows you to display static images, videos, or other permitted content or media of your choosing (“Digital Signage”) on ATMOSPHERE TV to promote your Venue and/or its products and services, subject to the restrictions stated in these Terms. You may create Digital Signage from your content (owned or licensed by you) or from one of the templates we make available as part of our Digital Signage Manager within your Portal. Digital Signage used in your Venue may only be used to promote your Venue, products or services.
Through your Portal, you can schedule your Digital Signage to display on ATMOSPHERE TV during each commercial break, with a run-time of up to 60 seconds each, provided that, we may, in our sole discretion, offer templates or scheduling that provides for more frequent displays and/or longer run times. The Digital Signage Manager also allows you to customise the date and time range when your Digital Signage will display on ATMOSPHERE TV. Zoo Business Media Pty Ltd has sole discretion over all elements, functions, and features of the Digital Signage Manager and reserves the right to make Changes to any and all elements, functions, and/or features of the Digital Signage Manager, in whole or in part, at any time, in accordance with these Terms.
YOU UNDERSTAND AND AGREE THAT WE DO NOT MONITOR OR APPROVE ANY DIGITAL SIGNAGE THAT YOU CREATE OR USE, THAT WE DO NOT REVIEW YOUR DIGITAL SIGNAGE FOR COMPLIANCE WITH THESE TERMS OR ANY LEGAL OR OTHER COMPLIANCE, AND THAT YOU ARE SOLELY AND LEGALLY RESPONSIBLE FOR ALL DIGITAL SIGNAGE THAT YOU CREATE AND/OR USE AND INDEMNIFY US FOR ANY AND ALL CLAIMS AS A RESULT OF YOUR USE OF THE DIGITAL SIGNAGE MANAGER FEATURE OR ANY DIGITAL SIGNAGE CREATED BY YOU. WE RESERVE THE RIGHT TO REMOVE ANY AND ALL DIGITAL SIGNAGE AT OUR SOLE DISCRETION, FOR ANY REASON, AND AT ANY TIME.
For more information on our Plans, visit https:/atmospheretv.com.au/pricing
3. Creating a Plan Account.
Regardless of which ATMOSPHERE TV Plan you choose, to access and enjoy ATMOSPHERE TV services, you must create an ATMOSPHERE TV account (the “Account”). You represent that all information provided to create your Account is truthful, accurate, current, and complete, and you agree to keep all such information current and updated at all times. You also represent that you have the authority, on behalf of your business to create an Atmosphere TV Account, enter all requested information, and on behalf of your business, pay the Account Activation Fee set forth below.
To begin creating your Account, visit https://atmospheretv.com.au/pricing and select your chosen plan then enter the requested information. Unless otherwise agreed between you and Zoo Business Media Pty Ltd, ALL NEW VENUES SIGNING UP FOR ATMOSPHERE TV SERVICES WILL BE SUBJECT TO AN ACCOUNT ACTIVATION FEE IN THE AMOUNT OF $199.00 PER VENUE (the “Account Activation Fee”) This Account Activation Fee will be collected during the account verification process.
REGARDLESS OF THE PLAN YOU CHOOSE, YOU WILL BE REQUIRED TO PROVIDE CURRENT AND VALID CREDIT CARD INFORMATION UPON CREATION OF YOUR ACCOUNT. The credit card information you provide will be used for any applicable Plan Fees (as defined herein), automatic renewals and/or other fees payable to Zoo Business Media Pty Ltd in accordance with these Terms, including without limitation, the Device Penalty Fees set forth in Section 4.6 of the Terms. If there are no Plan Fees for your particular Plan, then your credit card will not be charged unless otherwise triggered by any of the aforementioned.
Your ATMOSPHERE TV services will commence upon Zoo Business Media’s verification of your Account (the “Account Verification Date”). There will be a fourteen (14) day period commencing on the Account Verification Date where Zoo Business Media Pty Ltd will administer your Account and ship your Device(s). This fourteen (14) day period will provide you with ample time to install your Provided Device(s) per Section 4 below. Your “Subscription Start Date” will then commence on the fifteenth (15) day after the Account Verification Date. The “Term” of your Account commences as of the Subscription Start Date and ends upon termination or cancellation of your Account.
4. ATMOSPHERE TV Devices.
ATMOSPHERE TV uses an internet/Wi-Fi enabled streaming device to stream videos and other content to you. You will need a streaming device with sufficient internet (preferably unlimited data) and/or Wi-Fi to stream and display ATMOSPHERE TV.
4.1 Once your Account setup is finalised and verified by ATMOSPHERE TV, we will ship you a TV set-top streaming device, remote and required accessories (collectively, a “Provided Device”) to the address(es) you provide for each Venue. Provided Devices will be sent only upon our verification and acceptance of your account information, and is sent at our sole discretion. Provided Devices are only made available to Australian customers.
4.2 You will be responsible for PROMPTLY installing your Device(s). If you do not install your Device(s) within 7 days of receiving, you will be subject to the non-streaming fee. Our Customer Service team is happy to answer any questions or provide you with any help or instructions regarding the installation of your Device, available during normal business hours (Monday – Friday from 8:30 am to 5:00 pm, Australian Eastern Standard Time). If you have not installed your Device(s) after twenty-eight (28) days from our shipment date, Zoo Business Media Pty Ltd may send a written request for the return of said Device(s) back to us, at your cost. If you do not install your Device within sixty (60) days of our shipment date, and you haven’t shipped the device back pursuant to our initial written request, you will be billed the Device Penalty Fee as set forth in Section 4.6 of these Terms. Our Customer Service team will reach out to you through emails or phone calls if you haven’t installed the device.
4.3 Once your Device is activated, registered, and installed, you will have access to the ATMOSPHERE TV app, which you will use to stream ATMOSPHERE TV for display at your Venue. All Devices will need to be activated, registered, and properly installed in order to you to use the ATMOSPHERE TV service. Provided Devices sent to each Venue from Zoo Business Media Pty Ltd will be provisioned so that you may only access ATMOSPHERE TV through the ATMOSPHERE TV app. You must not use your Provided Device to access any other third-party platforms, content, websites, apps, or for any other purpose other than as set forth in these Terms.
4.4 You will need at least one (1) Device per Venue. You will be responsible for ensuring that the Device is properly connected and has sufficient internet (preferably unlimited data) and/or Wi-Fi to run the service. Additional Provided Devices may be available upon your request, at Zoo Business Media’s sole discretion, and unless otherwise agreed between you and Zoo Business Media Pty Ltd, for an additional fee of $199.00 for each Provided Device (the “Additional Device Activation Fee”). We further reserve the right to limit the number of Provided Devices per Venue. If your Venue’s technology permits, you may use one Device to display ATMOSPHERE TV on multiple TVs in said Venue. You may not use one Device, however, to transmit, exhibit, distribute or otherwise stream ATMOSPHERE TV video content to other Venues or locations other than in the Venue where the Device is located.
4.5 All Provided Devices are exclusively owned, managed and maintained by Zoo Business Media Pty Ltd for playback of Atmosphere TV only.. Any and all ownership rights in and to the Provided Devices are specifically reserved by Zoo Business Media Pty Ltd. You will not own or acquire any right, title, interest in any Provided Devices sent to you pursuant to this Section 4.5. You are solely responsible for maintaining the security of your Provided Device and will ensure that it is used only in accordance with these Terms. If you have any difficulties with the installation of your Provided Device, or if you suspect that there is a defect with your Provided Device, please contact Customer Service. If your Provided Device is lost, stolen or damaged, you may contact Customer Service for a replacement device. Replacement device requests will be fulfilled at our sole discretion, and may be subject to a penalty fee of $210.00 per Provided Device.
4.6 Upon termination or cancellation of your Plan, you must promptly return (within 30 days) all Provided Device(s). You will be responsible for all the shipping costs associated with the return. The returns are to be sent to PO BOX 276, Helensvale QLD 4212, AUSTRALIA. All Provided Devices must be returned in proper working order. If any Provided Device is not in proper working order upon our receipt (as determined by Zoo Business Media Pty Ltd in its sole discretion) or if you fail to timely return your Provided Device after termination or cancelation of your Plan (per Section 13 of these Terms) or upon our request due to the Device(s) not being installed (per Section 4.2 of these Terms), then you will be charged a penalty fee in the amount of $210.00 per Provided Device (the “Device Penalty Fee”). This Device Penalty Fee is also payable pursuant to other applicable terms or conditions as set forth in these Terms, including without limitation, in the event your Account has been deemed inactive, in the event you have not begun streaming ATMOSPHERE TV content in a timely manner after creation of your Account, upon replacement of any Provided Device per Section 4.5 or upon failing to reach the Minimum Play Commitment per Section 2.1. If you return any Provided Device without the remote, or if the remote returned is not in working order (as determined by us in our sole discretion), you will be charged a penalty fee in the amount of $80.00 per remote. Any Provided Devices returned without a power cord will result in a $13.00 replacement fee for each applicable Device.
5. Paid Accounts.
If you choose to sign up for a Plan that requires Payment (a “Paid Plan”), unless otherwise agreed between you and Zoo Business Media Pty Ltd via separate written agreement, then the following additional provisions regarding payment apply to you:
5.1. Payment Method. We will bill your Plan Fee (defined herein) and any other amounts permitted by these Terms to the current and valid credit card that you provided in connection with the creation of your Account or as updated during the Term (the “Payment Method”). You will be billed in AU Dollars, and all Plan Fee payments must be made in AU Dollars. We reserve the right to change our Payment Method requirements at any time. Depending on your Payment Method provider, your provider may charge you additional fees or charges, for which you will be solely responsible. Your credit card information must be valid at all times during the Term. If you fail to update your Payment Method, your Account may be subject to cancellation or termination in accordance with these Terms. You may update or change your Payment Method at any time by visiting your Portal or by emailing Customer Service at [email protected]
5.2. Plan Fee; Automatic Recurring Billing. You will automatically be billed a monthly fee in the amount stated at the point where you sign up for your Plan (the “Plan Fee”) (which Plan Fee may be changed in accordance with these Terms), along with any taxes or other charges applicable to your use of the Plan. EACH VENUE WILL BE BILLED A SEPARATE PLAN FEE. By signing up for a Paid Plan, you authorise us to automatically bill your Payment Method in the amount of the monthly Plan Fee on a recurring monthly basis in accordance with your Billing Cycle (described below), until your Paid Plan (or your Account entirely) is cancelled by you or terminated by us. If we offer and you purchase any optional ATMOSPHERE TV upgrades or promotions, you also authorise us to bill your Payment Method in accordance with the terms of any such offers purchased by you.
5.3. Billing Cycles. We will start billing your Plan Fee upon commencement of the Subscription Start Date. Thereafter, we will automatically bill your recurring Plan Fee each month on the date that corresponds to the date of your first Plan Fee billing (each, a “Billing Cycle”). Unless otherwise stated in these Terms, references to “month” or “monthly” refer to your Billing Cycle.
5.3.1. Zoo Business Media Pty Ltd reserves the right to adjust the actual dates of your Billing Cycle in accordance with these Terms at any time for any reason, including but not limited to, technical requirements, weekends, holidays, differing number of days in each month, or other commercially reasonable reasons.
5.3.2. Each full payment of your Plan Fee will provide you with access to your Account for the upcoming month, until the start of your next Billing Cycle.
5.4. Third Party Payment Processing. All payments are processed through a third-party payment processor, and not by us. We do not assume, and disclaim any and all liability related to any third-party errors, omissions, or delays in payment processing.
5.5. GST. All plan fees listed are excluding GST.
6. Usage Restrictions.
It is important that we maintain the integrity of ATMOSPHERE TV and all Devices so that all users can enjoy ATMOSPHERE TV and all Plan Benefits. Therefore, in addition to complying with the provisions of these Terms, you agree that you will not use ATMOSPHERE TV, the Portal or any part of your Account or any Digital Signage, that in any way:
6.1. General Restrictions. With respect to ATMOSPHERE TV, unless otherwise agreed in writing between you and Zoo Business Media Pty Ltd, you will not engage in any of the following: (a) reverse engineering, disassembly, or de-compiling any portion of the ATMOSPHERE TV service, or its software or technology; (b) re-distribution, re-exhibition, re-licensing, encumbrance, or the transfer of any rights in and to any portion of ATMOSPHERE TV service, including any video content; (c) private labelling or use in connection with any third-party trademarks, brand names, or similar identifying material in any manner that is likely to cause confusion, mistake, or deception as to an affiliation, connection, or association with Zoo Business Media Pty Ltd or the owner/controller of content as to the origin, sponsorship, or approval thereof; (d) commercial use of any video content, including in connection with advertisements or promotions for any products or services of yours or any third party; or (e) use of the ATMOSPHERE TV service in any manner that is (i) in violation of any applicable laws, rules, or regulations, (ii) false, deceptive, misleading, deceitful, fraudulent, defamatory, pornographic, obscene, threatening, abusive, harassing, defamatory, intimidating, or hateful toward an individual or group, (iii) reasonably likely to be disparaging of or otherwise harmful to the reputation or commercial interests of Zoo Business Media Pty Ltd or any third party, (iv) in violation of a person’s right of privacy or publicity, (v) infringing upon or in violation of the rights of any third party; or (vi) in the promotion of illegal activity.
7. Intellectual Property.
All materials, images, videos, trademarks, content, inventions, media, works of authorship, names, likenesses, biographical information, and other intellectual or other property displayed or used on or in connection with ATMOSPHERE TV (collectively, “ATMOSPHERE TV Materials”) are the exclusive property of their respective owners and may be protected by copyright, trademark, patent, trade secret, privacy, or publicity laws, and/or other laws of Australia or foreign countries. All rights in all ATMOSPHERE TV Materials are reserved by their respective owners. Signing up for and/or using any Plan does not grant you any ownership or other rights in any ATMOSPHERE TV Materials, nor does it grant you a license to otherwise use any ATMOSPHERE TV Materials for any purpose, except for displaying ATMOSPHERE TV in your Venue(s) in accordance with these Terms. You may not otherwise use, copy, distribute, stream, reproduce, exhibit, broadcast, transmit, display, modify, alter, make derivatives of, license, assign, incorporate, and/or otherwise exploit any ATMOSPHERE TV Materials, without the written consent of Zoo Business Media Pty Ltd, or their owner(s), as applicable.
8. Venue Use and Password Security.
Only the Venue that signs up for the Account and whose Payment Method is charged may use that Account and its ATMOSPHERE TV Plan Benefits. You may only use your Account for your Venue’s own use. A Venue may not share its password or otherwise allow any other unaffiliated person, entity, or venue to use or access the Venue’s Account. If we suspect or determine that you are sharing your password with other third parties or venues who are unaffiliated with your Account, Zoo Business Media Pty Ltd may suspend or terminate your services, in its sole discretion.
If you suspect or become aware that any other person or entity has accessed your Account, or obtained your password, you must notify us immediately. Each Venue is solely responsible for maintaining the security of its password and assumes all liability arising from its and any third-party use of its Account and password and any other third-party activity relating to your Account. If you fail to create or maintain the security of your Account, you will not be entitled to any refund, discount, or credit (a “Refund”) relating to your inability to enjoy any Plan Benefits as a result.
9. Free Trials and Discounts.
We may occasionally offer limited-time free trials, discounts, or other Account offers (collectively, “Offers”). Unless otherwise specified, or as provided by us at the point of account sign-up or by written notice to you, Offers are available to new Accounts only. Any such Offer will commence on the Subscription Start Date and will last for the period specified at the time you sign up for the Offer (the “Offer Period”). We reserve the right, in our sole discretion, to determine your eligibility for all Offers.
You may be required to provide your Payment Method when you sign up for certain Offers. If you sign up for an Offer that results in you being billed for a Paid Plan at the end of the Offer Period, we will begin billing the monthly Plan Fee to your Payment Method at the end of the Offer Period, and your Account will automatically renew each month as stated in these Terms, unless you cancel your Account prior to the end of the Offer Period. TO AVOID BEING BILLED ANY PLAN FEES AFTER THE OFFER, YOU MUST CANCEL YOUR ACCOUNT IN ACCORDANCE WITH THESE TERMS PRIOR TO THE END OF ANY APPLICABLE OFFER PERIOD.
We reserve the right to sell and display advertisements on or in connection with ATMOSPHERE TV; and we will have sole discretion over all elements of such advertisements, including without limitation, all advertisement advertisers, content, formats, media, frequency, runtime, products and/or services, and subject matter. We will be the sole owner of any and all proceeds, revenue, and other consideration related to any such advertisements.
11. Upgrading your Plan.
You may upgrade your Plan at any time. If you are signed up for a Free Plan and would like to upgrade to our Premium Plan, please contact Customer Service. Your Premium Plan will be activated as soon as we process your upgrade. Once your Premium Plan is activated, you will be subject to all the Terms applicable to Premium Plan, and your new Subscription Start Date will commence the eighth (8th) day after our confirmation of your upgrade to a Premium Plan. Please contact us by calling 07 5587 7222. We are open Monday through Friday 8:30am to 5pm AEST.
12. Cancelling or Downgrading Your Plan.
You may cancel or downgrade your Free Plan, Premium Plan at any time. If you would like to cancel or downgrade your existing Plan, you may do so by sending an email to Customer Service at [email protected] Cancellation or downgrade of any Plan is effective as of the last day of your then-current Billing Cycle. You will continue to have access to your Plan Benefits through the end of the monthly Billing Cycle in which you cancel or downgrade, but you will not receive any Refund.
IF YOU WISH TO CANCEL YOUR PLAN, YOU MUST DO SO BEFORE IT AUTOMATICALLY RENEWS FOR THE NEXT MONTH IN ORDER TO AVOID BEING BILLED AND RESPONSIBLE FOR THE NEXT MONTH’S PLAN FEE. Upon cancellation of your account, all rights granted hereunder will terminate and you will cease all uses of the Service and will immediately return to Atmosphere TV all Provided Devices, files, documents, platforms or other property of any media or nature. If you fail to return any Provided Device(s) within thirty (30) days of cancellation, you will be subject to the Device Penalty Fee as set forth in Section 4.6 of these Terms.
13. Termination of Your Account by Zoo Business Media Pty Ltd.
14. No Refunds/Unpaid Amounts.
14.1. No Refunds. ALL PLAN FEE PAYMENTS (OR ANY OTHER PAYMENTS AUTHORIZED HEREUNDER) ARE NONREFUNDABLE. WE WILL NOT BE OBLIGATED TO PROVIDE YOU WITH ANY REFUND FOR ANY CANCELLATION, SUSPENSION, OR TERMINATION OF YOUR ACCOUNT. We reserve the right, at any time and for any reason, to provide Refunds or other benefits to some or all of Plan users. If we suspend or terminate your Account as a result of your violation of these Terms or for other misconduct, you will not receive any Refund.
14.2. Unpaid Amounts. If your Account is cancelled, suspended, or terminated, you will nonetheless remain responsible for any unpaid Plan Fees or other amounts owed, in accordance with these Terms, and you authorise us to continue to bill your Payment Method for any unpaid amounts owed in connection with your Account.
15. Communication from Zoo Business Media Pty Ltd.
You agree that, unless otherwise stated in these Terms, we may send all notices and other communication related to your Account (whether under these Terms or otherwise) to you electronically by: (a) Email to the then-current Email address associated with your Account; or (b) posting them within your Portal or any other account page assigned to you as part of your Account. Such electronic notices and communication from us may include notices with respect to your Account, Payment Method, Billing Cycle, new offers, cancellation or termination, changes to these Terms, and other transactional information.
17. Representations and Warranties.
You represent and warrant that: (a) you have full right and authority to agree to these Terms, and perform all obligations and grant all rights under these Terms; (b) the execution, delivery, and performance of these Terms, and the authority of the signatory hereto, have been duly authorised by you; and (c) you are not under any contractual, fiduciary, or other obligation that would prevent you from entering into and fully performing its obligations under these Terms.
18. Warranty Disclaimer and Limitation of Liability.
18.1 Warranty Disclaimer. THE ACCOUNT, ATMOSPHERE TV, AND ALL CONTENT RELATED THERETO ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITH ALL FAULTS, AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPLETENESS, AVAILABILITY, SECURITY, AND NON INFRINGEMENT, ALL OF WHICH WARRANTIES ARE DISCLAIMED BY ZOO BUSINESS MEDIA PTY LTD. ADDITIONALLY, ZOO BUSINESS MEDIA PTY LTD DOES NOT WARRANT AND DISCLAIMS ANY WARRANTY THAT THE USE OF YOUR ACCOUNT OR OF ATMOSPHERE WILL BE UNINTERRUPTED, ACCURATE, COMPLETELY AD-FREE AT ALL TIMES, ERROR-FREE, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, OR OF ANY PARTICULAR OPERATIONAL SPEED, CONTENT, SUBJECT MATTER, OR QUALITY.
18.2 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY OF THE RELEASED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PERSONAL INJURY, LOST PROFITS, OR OTHER DAMAGES, UNDER ANY THEORY OF LIABILITY, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF, OR INABILITY TO USE, THE ACCOUNT OR ATMOSPHERE TV, EVEN IF THE RESPECTIVE RELEASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL LIABILITY TO YOU (AS A RESULT OF ANY CLAIM OR OTHERWISE) EXCEED THE PLAN FEE AMOUNT YOU HAVE ACTUALLY PAID TO ZOO BUSINESS MEDIA PTY LTD.
18.3 Jurisdictional Limitations. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLIES TO YOU.
19. Additional or Separate Agreements.
From time to time, we might also offer certain services that require additional or separate agreements. If so, all of these Terms are incorporated into that additional or separate agreement, and your use of ATMOSPHERE TV in accordance with the additional or separate agreements indicates your acceptance of these Terms. If there is any conflict between these Terms and the terms of any additional or separate agreement entered into between you and us, the terms of that additional or separate agreement will govern.
20. Force Majeure.
Excluding your payment obligations, no party will be liable for delay or default in the performance of their respective obligations if the delay or default is caused by conditions beyond their reasonable control (a “Force Majeure Event”). If a Force Majeure Event continues for fourteen (14) days, you may cancel your account.
21. Governing Law and Jurisdiction.
These Terms are governed by the laws of the State of Queensland, Australia, without regard to conflict of law principles. You and we agree that, if the arbitration or small claims provisions of these Terms are determined to not apply to any Dispute, then that Dispute will be governed by the laws of the State of Queensland, without regard to conflict of law principles, and will be adjudicated exclusively in the State or Federal Courts located in Brisbane, Queensland, to which you consent to personal jurisdiction for the purpose of litigating the Dispute.
22. No Waiver.
No waiver by either of us of your breach of any term or provision of these Terms will be deemed or construed to be a waiver of any past or future breach of that same or any other term or provision.
If any provision of these Terms is found by a court or adjudicator of competent jurisdiction to be invalid or unenforceable, such provision will be invalid or unenforceable only to the extent of such invalidity or unenforceability, without invalidating or affecting the remainder of such provision or the remaining provisions of these Terms.
24. Trademark Use.
Trademarks (including but not limited to the ATMOSPHERE logo and all affiliated ATMOSPHERE channel logos) and Tradenames that are used or displayed on the ATMOSPHERE platform are owned by Rarefied Atmosphere (collectively, the “Atmosphere Trademarks”). Zoo Business Media Pty Ltd is a licensed reseller of Atmosphere TV and has approval from Rarefied Atmosphere to use their marks. The Atmosphere Trademarks may not be copied or used, in whole, partial or modified form, without the prior written permission of Zoo Business Media Pty Ltd. In addition, ATMOSPHERE custom graphics, logos, icons, scripts, and page headers are covered by trademark, trade dress, copyright or other proprietary right law, and may not be copied, imitated, or used, in whole, partial or modified form, without the prior written permission of Zoo Business Media Pty Ltd. Other trademarks, service marks, registered trademarks, product and service names, and company names or logos that appear on the ATMOSPHERE service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Zoo Business Media Pty Ltd. By using the ATMOSPHERE service, you grant us the right to use your trademark, logo and trade name for marketing, promotional and public relations purposes, in any and all media now known or hereafter devised, worldwide and in perpetuity.
25. Customer Service and More Information.
We strive to offer our subscribers the best possible customer service. Our first goal is to satisfactorily resolve any issues through our Customer Service. For any information, issues, questions, comments, assistance, or concerns with your Account, please contact Customer Service on [email protected] If there is any conflict between these Terms and any information provided by in the Frequently Asked Questions or by our Customer Service, these Terms will control.
Zoo Business Media Pty Ltd may assign its rights and obligations hereunder to any third party, in its sole discretion. You may not assign your rights and obligations without the prior written consent of Zoo Business Media Pty Ltd; provided that the transfer of said rights and obligations by operation of law following the acquisition of all or substantially all of the assets of a party, or all of the equity of a party, will not be treated as an assignment hereunder. These Terms will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
Except as specifically provided elsewhere in these Terms, any notice required to be delivered under these Terms will be effective upon delivery as follows: (a) if to you, (i) when sent via email or via express courier or registered mail, to the email address and address specified in your account and (b) if to Zoo Business Media Pty Ltd, (i) when sent via email to [email protected] or (ii) when delivered via express courier or registered mail, return receipt requested, to the following address: Zoo Business Media Pty Ltd Attn: Legal Department, PO Box 276, Helensvale, QLD 4212. Any such notice, in either case, must specifically reference that it is a notice given under this Agreement.
28. Other Terms.
These Terms constitute the entire agreement between the parties and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to its subject matter. Any changes to these Terms are to be made via formal written and executed amendment between authorized representatives of both parties, and such amendment(s) will be subject to the terms of this Agreement. If any provision of these Terms are held to be unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect. All rights and remedies under this Agreement are cumulative. Provisions of these Terms which by their nature would apply after termination will survive termination. The waiver of a breach of any provision under these Terms by any party will not be deemed to be a waiver of any preceding or subsequent breach, nor will any waiver constitute a continuing waiver. The parties are independent contractors. Nothing in these Terms is intended, nor will be deemed, to confer rights or remedies upon any third party.