On my way to a meeting I stopped in at the Harvey Norman store and purchased a TiVo. Unfortunately I have
, apparently due to a fault with the TiVo web site.
The Harvey Norman salesperson was very knowledgeable and helpful. They were able to answer my esoteric questions and I got the impression that they were used to having to do a lot of explaining of the device to the customer, this be a conceptually difficult appliance.
The TiVo was $AU699, which seems reasonable for a twin high definition hard disk PVR. The salesperson assured me that the TV guide, which is downloaded vie the Internet was free (not just a limited time free offer).
The TiVo comes in a large box for a PVR. My first surprise was five minutes later when I got in my car and the phone rang: it was my credit card company calling to check the purchase I had just made really was me. Perhaps it was a coincidence, or perhaps TiVos are favorite choices of credit card thieves.
Opening the box at home I was surprised by the size of the unit, which as large as an old fashioned VCR. The box is about four times the size of my previous PVR. It is a big black metal box, with an aluminium trim on the front and a black panel which looks like it should have a display in it, but just has a power indicator light and some back lit letting indicating the video output type and the like. It reminded me of a seventies Radio Shack HiFi. TiVo might want to send a little money on some industrial design to make a more up market looking case.
The box also seemed to have a lot of polystyrene and excessive packaging: did the mains power cable really need to have closed cell foam wrapping around it as well as a plastic bag? I noticed these as I had been reading the
.
Apart from the TiVo itself, the box contained a dog bone shaped remote control (with coloured buttons which reminded me an 80s
). There was also a very complete set of cables, with ones for component video and stereo audio, as well as composite video. There were a set of Panasonic "Industrial" alkaline AA batteries for the remote control.
A surprising inclusion was an Ethernet cable. The TiVo requires an Internet connection for the extended TV guide and the download of additional software features. Unfortunately the Ethernet cable was only about one metre long and so did not reach my router (the salesperson did offer an optional WiFi adaptor, but I had a longer cable to hand).
A one page "Start Here" guide shows how to connect the cables. But it doesn't tell you to put the batteries in the remote control. Also the manual is confusingly called a "Quick Guide".
I plugged in all the cables and turned on the power as instructed and was rewarded with a welcome screen. After a minute the screen changed and I thought "that was quick" but it just changed to say it was still initialising the system and it was 3 minutes 49 seconds before the system initialisation was complete.
. One annoyance is that the TiVo has an animated background to its information screens. This distracts from the information content, but despite this the text in screen is very readable, even with a relatively small screen. However, the text and graphics on the remote control are very hard to see.
The TiVo then stepped me through a test of the audio, and "Service Terms". I was asked to agree to the service agreement and privacy policy in the Viewer's Guide. But I have no idea what the "Viewer's Guide" is (they are not mentioned in the "Quick Guide" supplied).
I was then asked to activate the TiVo by visiting a web site. At this point the TiVo was getting annoyingly like setting up a computer, rather than a consumer appliance. I transcribed a fifteen digit number from the TiVo to the web site and pressed "activate". I was then presented with "Terms of Use of TiVo® box and the Tivo® service" and asked to agree to these. The terms are annoyingly long and a lawyer might like to check they are legal (see below).
The next screen then asked for my Name, Drivers Licence No. (or Mother's Maiden Name) and Date of Birth and the address where the TiVo would be used. There is some sense to asking for where the TiVo would be used (although some may not want to provide this). But it seems odd to require a divers licence number and date of birth to watch TV.
I tried omitting the diver's licence number, and date of birth. I got an error message which also inserted a slash ("/") in the Suburb field of the address. So I entered a date of birth and tried again. This time I got an error message saying the password was missing (I had entered one but the form seemed to forget it). I got another error message and another slash added to the address field. This time I was prompted for the driver's licence number (or mother's maiden name) and more slashes in the suburb field. The form then forgot the password again and added MORE SLASHES to the suburb field.
The form then complained that the suburb name (which by now had dozens of slashes in it) did not match the postcode: "
". At this point I was getting a little frustrated. I deleted the slashes the system had inserted and tried again. But the password had been deleted, causing another error message and inserting a slash back into the suburb field.
I deleted the slash, typed the password again and hoped the system was not going to check marriage records to see what my mothers maiden middle name was. Instead the suburb was again reported as wrong. So I checked the postcode and suburb with the
. I copied and pasted the suburb name and the postcode from the Australia Post site. This time I got "
PART A - INTRODUCTION
1. These Terms are binding on you
These Terms govern the supply of the TiVo® service (“TiVo service”) and your use of any TiVo® box (“TiVo box”) or other associated TiVo equipment you buy from us including your activation and use of the TiVo service with the TiVo box.
If you buy your TiVo box or other equipment from us online, you will also be bound by the Terms governing our TiVo Shop.
Your use of your TiVo box and the TiVo service indicates your understanding and acceptance of these Terms, and has the same force and effect as if you had actually signed these Terms.
These Terms and the TiVo Shop Terms (if you bought your TiVo box online) represent the entire agreement governing your use of your TiVo box and the TiVo service and supersedes any prior or contemporaneous written or oral statements by us.
In these Terms: 'you' and 'your' mean the customer (you!); we, our and us mean Hybrid Television Services (ANZ) Pty Limited.
2. Your TiVo features
Your TiVo box comprises a digital video recorder (“DVR”) and any optional TiVo branded accessories purchased by you (“TiVo box”) which operates in conjunction the TiVo service. You may access and use the TiVo service only with a TiVo box that is authorised to receive the TiVo service. Activation of the TiVo service enables a range of features for you to use on your TiVo box, including but not limited to:
- an integrated Electronic Program Guide ("EPG"), which is supplied to your TiVo box for the purpose of recording free to air television;
- features such as pause, fast forward, rewind, instant replay, Search, Season Pass® recordings, WishList™ searches, TiVo® Suggestions, TiVo KidZone, closed captions and Parental Controls (all of which are described in more detail at www.tivo.com.au/whatistivo) ;
- a Remote Online Scheduling Feature, which enables you to schedule recordings on your TiVo box using the internet (and can be accessed by logging on to yahoo7.com.au/tvguide. You can choose to record any broadcast television program airing in the following seven days;
- access to broadband content and applications; and
- access to updates and new features.
A complete list of features and information about them can always be found at www.tivo.com.au/whatistivo. The “TiVo service” means these features and any additional features and functionality that we may, at our discretion and from time to time, offer to you for you to access on your TiVo box at no additional cost.
3. Operating the TiVo box and activating the TiVo service
To operate the TiVo box you will need to do the following:
- You will need to connect the TiVo box to your personal broadband service. Depending on your home network set-up, this will require an Ethernet cable or purchase of a TiVo Wireless Adaptor. Amongst other things the TiVo box will use the broadband connection to keep your EPG up to date and to download upgrades to your TiVo box from time to time. The use of your personal broadband service to access the TiVo service will be at your cost and you will need to monitor it. Any Internet Service Provider (“ISP”) charges you incur to your ISP service provider are your responsibility.
- You will need to live within a free to air digital coverage area and to have a terrestrial television antenna at your home. Unfortunately, we can't absolutely guarantee you the availability or quality of digital television broadcasting, so there may be places within Australia where a customer cannot receive the TiVo service. Note: You will not be able to receive pay television services from providers such as Foxtel, Austar, SelecTV, TransACT or Neighbourhood Cable using your TiVo box.
- You will need to activatethe TiVo service, which you can do at www.tivo.com.au/activate, subject to these Terms. You will need your 15-digit TSN, found on the label on the back of your TiVo box.
- You will need to connect the TiVo box to your television by using the cables included in the carton or by purchasing an HDMI cable (available separately).
- You will need to follow the guidelines in the TiVo® HD Quick Guide and on www.tivo.com.au/support to ensure continued access to all your TiVo features.
PART B - THE TIVO SERVICE
In addition to the terms set out in Parts A and D of these Terms, the following terms relate to your use of the TiVo service.
We will provide the TiVo service to you in accordance with these Terms, using reasonable skill and care.
We will also ensure that the TiVo service does everything we say it will do as far as it is reasonably within our power to do so.
1. User information
At the time you activate the TiVo service we will ask you to create an account for your TiVo service using your personal email address. At the time of activating the TiVo service, you will not be required to enter your credit card details, however if you buy an optional new feature upgrade (“Optional New Feature Upgrade”) at a future time, you will need to provide them to complete that purchase.
You must provide us with accurate and complete information when you activate your TiVo service. It is important that this information is entered correctly and updated if you change your email address. We will use this email address for correspondence with you. You must regularly check for emails from us at the email address you provided to us as we may send you important notices about the TiVo service using this email address, for example about planned upgrades or outages.
You must keep confidential all your identification and user information required to access the TiVo service.
We will keep your information confidential. See later in these Terms of Use of TiVo box and TiVo service for information about our Privacy Policy.
2. Availability and accuracy of the TiVo service
We try to make the TiVo service available to you at all times but sometimes availability is affected by factors outside our control. For this reason we can't guarantee that the TiVo service will be available to you at all times or that download speeds (for example, of upgrades to your TiVo box) won't vary from time to time. It may also be necessary to interrupt the TiVo service (or parts of it) occasionally in order to upgrade or maintain it. Should we need to interrupt the TiVo service we will:
- whenever possible conduct maintenance or upgrades between 1am and 6am Eastern Standard Time;
- if possible tell you in advance (via email or our website) if the TiVo service will be unavailable due to maintenance or any other foreseeable reason; and
- restore the TiVo service as soon as possible.
We try to make the TiVo service as accurate as possible. Unfortunately we cannot absolutely guarantee the accuracy of the TiVo service including the EPG information.
You acknowledge that your use of the TiVo service may not be uninterrupted, timely, secure or error free, and that any information obtained through the TiVo service (including third party content) may not be accurate or reliable.
3. Changes to the TiVo service and Optional New Feature Upgrades
We may at our discretion and from time to time change, add, or remove features and functionality of the TiVo service or discontinue one or some of the features of the TiVo service without notice. If you are dissatisfied with any such changes to the TiVo service, you may immediately cancel your use of the TiVo service as provided in these Terms without having to pay any early termination fee, however you acknowledge that your TiVo box will no longer be fully operational if it is not connected to the TiVo service.
We reserve the right to update software in your TiVo box to offer additional features and functions to your TiVo service or to improve the performance of the TiVo box. Under most circumstances upgrades will be done via your broadband connection and you won't have to do anything but leave your TiVo box plugged in and connected to your personal broadband service.
While upgrades to the TiVo service will be delivered to you automatically and free of charge (subject to third party ISP charges you incur in relation to your personal broadband service), from time to time we will also offer you the opportunity to purchase optional new feature upgrades, for a fee (“Optional New Feature Upgrades”). Optional New Feature Upgrades do not form part of the TiVo service but can be used in conjunction with it, and will be subject to their own terms and conditions at the time of purchase. You will be required to provide your credit card details to make those purchases.
4. Areas beyond our control
We want to give you the best service possible, but some things are beyond our control and we can't accept responsibility for them. We are not responsible for any failure to the TiVo service which occurs:
- due to fault with anything we have not supplied to you, such as your own television*, computer, broadband connection or home network infrastructure;
- because you do not use the TiVo service correctly according to our instructions;
- because you do not set up your TiVo box correctly according to our instructions;
- because you do not let us update software we provide to you (except for Optional New Feature Upgrades which you may choose not to purchase and which choice will not effect the TiVo service you continue to receive);
- due to natural disasters (including for example floods, lightning and fire), acts of terrorism, interruptions to power supplies or your personal broadband service or any other cause beyond our reasonable control.
*Television manufacturers advise you not to allow a still image such as on screen graphics and the electronic program guide graphics to be displayed on your television screen for an extended period of time. This can cause a permanent residual image to remain on some plasma, rear projection and LCD televisions, particularly during the first 200 hours of use. Read your television manufacturer’s manual for instructions and tips on avoiding ‘burn in’. It is something which is outside of our control.
To the extent permissible by law, you understand and agree that the TiVo service is provided on an "as is" and "as available" basis.
5. Content
The TiVo service gives you the ability to access audio, video, and other media over which we exercise no editorial or programming control (“Third Party Content”). You understand that: (a) we do not guarantee the access to or the ability to record or display any particular program; (b)programming is not under our control; (c) Third Party Content providers may restrict or limit the ability to record, display or view particular programs by using a variety of copy protection mechanisms; (d) Third Party Content providers may restrict or revoke access to their content at any time; (e) we are not responsible for and have no editorial control over any Third Party Content; and (f) we have no control over the distribution of such content. You agree that we will have no liability to you, or anyone else who uses your TiVo box, with regard to any Third Party Content.
The content that you are able to record on, download to or transfer to your TiVo box (including Third Party Content) is protected by copyright. Unless you own the copyright in, or are licensed by the copyright owner to do a particular act with respect to that content, you are only allowed under Australian copyright law to record broadcast content for private and domestic use for watching or listening to that content at a more convenient time than the time when the broadcast was made, or may otherwise use that or other content (including broadband content) as expressly permitted or otherwise in accordance with the "fair dealing" provisions of the Copyright Act. Nothing in these Terms permits, and we do not permit, you to use or deal with content recorded on, downloaded to or transferred to your TiVo box for any other purpose. If you are not the owner or licensee of content and you distribute or otherwise make it available to anyone else, you may be infringing copyright, and this will be treated as misuse of the TiVo service.
You acknowledge that the TiVo service and the TiVo servers that provide you with data and Third Party Content may not be free of viruses or other harmful components.
6. EPG and Remote Online Scheduling
You may access and use the EPG provided as part of the TiVo service only on a TiVo box that is authorised to receive it.
The EPG contains material which is the subject of copyright owned by the respective free to air television broadcaster(s) whose programs the EPG relates to, including the schedule of television programs to be broadcast by the broadcaster for the following seven days and the information associated with those schedules supplied by the broadcaster ("Program Listing Content").
The Program Listing Content remains at all times the property of the relevant broadcaster. You may only use the EPG and Program Listing Content for the purpose of using your TiVo box in accordance with these Terms for your private and domestic use, and you must not sublicense, sell, lease, loan, upload, download, communicate or distribute the Program Listing Content to any person.
Occasionally, the EPG may be made inaccurate, for example due to an overrun or early start of a program, which is something managed by the television broadcasters and not us. We keep our EPG as up to date as possible but we cannot be liable for a missed recording due to timing inaccuracies, including when you use the Remote Online Scheduling feature of the TiVo service. Remember you always have the option of extending your recording.
Because scheduling requests you make using the Remote Online Scheduling feature of the TiVo service depend on your personal broadband service, we cannot be liable for a missed recording due to your personal broadband service failing to deliver the scheduling message to the servers which handle those requests.
7. Advertising
From time to time, there may be advertising displayed as part of the TiVo service, providing you information regarding products and services.
8. Term and termination of the TiVo service
Our agreement with you (as contained in these Terms) commences on the date you activate the TiVo service, and continues until terminated in accordance with these Terms.
We retain the absolute right to immediately suspend or terminate your TiVo service, and terminate this agreement with you (as contained in these Terms), if:
- you breach these Terms or the TiVo Shop Terms (if applicable) in a material way;
- you misuse (or we can establish you have attempted to misuse) the TiVo service;
- you alter (or we can establish you have attempted to alter) your TiVo-enabled software or use the TiVo service in such a manner as to infringe upon our intellectual property rights or those of our suppliers or any third party;
- we cease to provide the TiVo service, or any part of it, for example in order to comply with our legal obligations (including legislative changes) or Court orders; or
- we have reasonable grounds to believe that a threat or risk of security, injury or damage exists.
You also have the right to immediately terminate your TiVo service, and terminate our agreement (without having to pay any early termination fee), if we breach these Terms or the TiVo Shop Terms (if applicable) in a material way.
We may monitor your use of the TiVo service to ensure that you are complying with these Terms. We will comply with our Privacy Policy (at www.tivo.com.au/legal/privacy.php) if we do.
We may investigate any alleged misuse of the TiVo service and may involve or assist police or other law enforcement agencies in doing so without notice to you.
Termination will not affect either party's respective rights or remedies.
PART C - THE TIVO BOX
In addition to the terms set out in Parts A and D of these Terms, the following terms relate to your use of the TiVo box.
1. Compatibility
The TiVo box is compatible with most televisions and broadband services, however, we are not responsible for ensuring that the TiVo service, TiVo box or software we provide will be compatible with your television nor with other equipment nor with your personal broadband service. It is your responsibility to check whether you have any compatibility problems before the expiry of our money back guarantee period referred to in clause 4 below.
The TiVo box is not compatible and will not interconnect with the equipment and services of pay television providers such as Foxtel, Austar, SelecTV, TransACT or Neighbourhood Cable.
For connection to wireless networks, we only support the TiVo-branded Wireless Adaptor. Any other wireless adaptor cannot be guaranteed to connect your TiVo box to a wireless network.
You acknowledge that that the TiVo box or TiVo service may not be compatible with any other specific hardware or service.
2. Your responsibilities
When you buy a TiVo box from us or from a retail store, title (full ownership) passes to you when you have paid for it in full and risk in (responsibility for) the TiVo box passes to you as soon as you receive it. You are responsible for the use you make of your TiVo box and the TiVo service.
You must keep your TiVo box secure against use by others. You are liable for all liability resulting from use of your TiVo box, whether authorised by you or not. If your TiVo box is lost or stolen, you will be responsible for replacing it and upon replacement you will have to activate the TiVo service to connect to your replacement TiVo box.
You must also ensure that any other person you permit to access your TiVo box also complies with these Terms.
You agree not to tamper with or otherwise modify your TiVo box – this form of misuse is treated very seriously by us.
3. Liability and exchanges in relation to damaged or faulty products
Implied warranties and liability - Nothing in these Terms removes or limits any rights that you have under existing laws or regulations and codes, including the Trade Practices Act 1974 (Cth) and the various State and Territory fair trading laws, including for example that the services provided under these Terms are provided with due care and skill and the goods are fit for the purpose for which they are supplied and are of merchantable quality. These rights are described in more detail in Part D of these Terms.
To the maximum extent permitted by law, all other terms, conditions and warranties, other than the limited warranty provided below in this clause, whether express or implied are expressly excluded.
Limited Warranty - All new TiVo boxes carry an express warranty against defects in materials and workmanship under normal use for 12 months from the time of purchase by you (“Limited Warranty Period”). Our warranty obligations for TiVo boxes are limited to the terms set forth below:
If a hardware defect arises and a valid claim is received within the Limited Warranty Period, at our option and to the extent permitted by law, we will either:
- repair the hardware defect at no charge, using new or refurbished replacement parts; or
- exchange the TiVo box with a new or “as new” TiVo box.
Replacement under warranty will be like for like, refurbished or "as new", meaning the replacement may have been used for testing or demonstration purposes, or may have been returned by customers who were unable to receive a digital television signal or broadband service where they lived. A refurbished TiVo box will have been checked, tested and re-packed. You will not receive a new version or model unless none of the models returned as faulty remain in stock, new or refurbished.
A warranty of thirty days or the balance of the warranty period on your original TiVo box, whichever is the greater, will apply to the replacement TiVo box.
EXCLUSIONS AND LIMITATIONS
This Limited Warranty applies only to hardware products that can be identified by the “TiVo” trademark, trade and, or logo affixed to them. The Limited Warranty does not apply to any non-TiVo hardware products or any software, even if packaged or sold with TiVo hardware.
Other than as required by law as set out above and in Part D of these Terms, we cannot accept responsibility for everything that happens to your TiVo box. We are not responsible for, and this warranty is voided with respect to and does not apply to:
- damage caused by accident (whether by you or a third party);
- damage caused by operating the TiVo box outside the permitted or intended uses described by us or arising from failure to follow instructions on use of the TiVo box;
- damage caused by service (including upgrades and expansions) performed by anyone who is not an authorised repairer of TiVo boxes;
- a TiVo box or part that has been modified to alter functionality or capability without our written permission;
- consumable parts, such as batteries, unless damage has occurred due to a defect in materials or workmanship;
- cosmetic damage, including but not limited to scratches, dents and broken plastic on ports, that does not otherwise affect the TiVo box’s functionality or materially impair your use;
- if any TSN has been removed or defaced;
- any abuse, misuse, neglect, mishandling or misapplication (including, for example, opening up, modifying or tampering with the hardware and use with incompatible non-TiVo products);
- any unusual hazards affecting the TiVo box or failure to provide a suitable environment for the TiVo box (including for example exposure to excessive humidity, heat, cold, dust, food, liquids, magnetic or electromagnetic interference, or incorrect power voltage);
- electrical supply problems resulting from misuse; or
- natural disasters (including for example floods, lightning and fire), acts of terrorism, or any other cause beyond our reasonable control.
If you believe:
- your TiVo box was damaged or faulty when it is delivered to you; or
- your TiVo box has become faulty while still within the Limited Warranty Period and the fault is not excluded from our Limited Warranty (see “Exclusions and Limitations” section above),
go to www.tivo.com.au/legal/warranty.php and follow the process set out there to see if you are entitled to make a warranty claim. That process forms part of these Terms.
If you do not comply with your obligations set out at www.tivo.com.au/legal/warranty.php in relation to warranty claims (for example if it turns out that the fault is not covered by the Limited Warranty or the claim is made outside the Limited Warranty Period), you will be charged handling costs and you will have to pay for your TiVo box to be repaired.
When your TiVo box is exchanged for a new or ‘as new’ TiVo box, your original TiVo box for which the exchange is made must be returned to us and becomes our property.
You acknowledge that you will need to re-activate the TiVo service after your TiVo box is repaired or replaced. This is because the TiVo box gets re-set during repairs, and a refurbished TiVo box will not contain your original recordings.
Process for repairs not covered by Limited Warranty terms or outside Limited Warranty Period
If your TiVo box needs servicing but is not covered by terms of the Limited Warranty, or the Limited Warranty Period has expired, you will have to pay for your TiVo box to be repaired.
4. 14 day money back guarantee
We offer a 14 day money back guarantee for TiVo boxes purchased on our website (and some retailers offer the same guarantee if you bought your TiVo box from them). If your TiVo box is not damaged or faulty but, within 14 days of delivery of your TiVo Box, you:
- decide you are not satisfied with the purchase of your TiVo box; or
- discover after your TiVo box has been delivered to you that you do not receive a digital television signal where you live or that your personal broadband service is not compatible with the TiVo box;
and you would like to return your TiVo box and get a refund of the price paid, go to www.tivo.com.au/support and follow the process set out there for the 14 day money back guarantee. That process forms part of these Terms.
If you comply with your obligations set out at www.tivo.com.au/support in relation to our 14 day money back guarantee, we will refund your purchase price of your TiVo box (along with the purchase price of the TiVo Wireless Adaptor if you purchased it at the same time as your TiVo box and returned it at the same time as your TiVo box). If you do not comply with those obligations, you will not be entitled to a refund and you will be charged handling costs.
When we refund your money under our 14 day money back guarantee, your TiVo box must be returned to us and becomes our property.
5. Title to Software and Intellectual Property
You received certain software in your TiVo box at the time of purchase, and other software programs may be delivered to your TiVo box by us from time to time, which your TiVo box will automatically accept. You may use that software solely in executable code form and solely in conjunction with your TiVo box.
You must not use any unauthorised software on your TiVo box.
Any attempt to disassemble, decompile, create derivative works from, reverse engineer, modify, sublicense, distribute or use for other purposes either the TiVo box or the software in the TiVo box is strictly prohibited, except as expressly set out below in relation to Open Source Software.
We and our suppliers retain title to and ownership of all the software on the TiVo box and certain intellectual property rights in the TiVo box. We and our suppliers also retain ownership of all copyright and trademarks in and on the TiVo box. Without limiting the foregoing, all TiVo copyright and trademarks are the exclusive property of TiVo Inc. TiVo Inc. is an intended third-party beneficiary of these Terms.
Without limiting the foregoing, "TiVo", the TiVo logo, " TiVo, TV Your Way ", and "Season Pass" are registered trademarks of TiVo Inc. "WishList", "Thumbs Down" (logo and text), "Thumbs Up" (logo and text) are trademarks of TiVo Inc. The absence of a product or service name or logo belonging to TiVo Inc. anywhere in the text of the tivo.com.au website or other publications and materials regarding the TiVo box and/ or TiVo service does not constitute a waiver of TiVo's trademark or other intellectual property rights concerning that name or logo. All other products and brand names are trademarks and/or registered trademarks of their respective companies. HTS and TiVo Inc. disclaim any and all rights in these marks.
If in future you install separate software intended for installation on your home computer for use in conjunction with your TiVo box, ownership and the other terms of use of that software will be governed by the applicable end user licence agreement, to which you must agree before installation.
If you fail to comply with these Terms, we may terminate this licence to use the software of the TiVo box, except for the Open Source Software.
You will find some of our supplier’s software licence terms in the Copyrights and Trademarks menu option on your TiVo box, as well as on www.tivo.com.au/legal/licensing.php. Nothing in those terms serve to reduce your rights under the laws of the states and territories of Australia.
6. Open Source Software
Certain components of the software on the TiVo box are subject to so-called open-source licences such as the GNU General Public License Version 2 (“Open-Source Software”). Open Source Software is not subject to the restrictions in clause entitled “Title to Software and Intellectual Property” above, and is subject to the terms of the applicable open-source licence. You are free to use, modify and distribute Open Source Software, so long as you comply with the terms of the applicable open-source licence (available at www.tivo.com.au/legal/licensing.php).
To the extent required by the terms of the applicable open-source licences, we and our suppliers make our modifications to Open Source Software that we distribute pursuant to such open-source licences available to the public in source code form at www.tivo.com/linux.
PART D – GENERAL
In addition to the terms set out in Parts A, B (regarding the TiVo service) and C (regarding the TiVo box) of these Terms, the following terms relate to your use of both the TiVo service and TiVo box.
1. Customer support
We commit to supplying the TiVo service within 24 hours of you activating it.
Once you have activated the TiVo service, for additional customer support, go to www.tivo.com.au/support.
You acknowledge that if the TiVo box crashes, in some cases your recordings and/ or broadband content may be affected.
You acknowledge that any defects in the TiVo service may not be corrected.
2. Changes to these Terms
We may vary these Terms or any information contained on our website at any time. However, if a variation is likely to have a detrimental impact on you, and that impact is more than a minor impact, we will notify you of the change no later than when the change becomes effective.
3. Privacy, notices and messages
Your use of our website or access to the TiVo service and use of the TiVo box will be taken to indicate your consent to our collection, use and disclosure of your personal information in accordance with the terms of our Privacy Policy, which forms part of these Terms and is available at www.tivo.com.au/legal/privacy.php. Please read it carefully before using the TiVo service.
From time to time you may receive messages from us about the TiVo service: mostly by email to the email address you have nominated, but occasionally to your television. We will only send you messages which we believe you will find useful, for example messages about keeping your personal broadband service connected at all times, about activation, upgrade availability, program line up changes and imminent maintenance to the TiVo service. You agree as part of your acceptance of these Terms, to us sending you emails for those and related purposes.
4. Supplier Liability
Under Division 2 Part V of the Trade Practices Act 1974 (Cth) (“TPA”) and other state based legislation, certain warranties and conditions (“Implied Terms”) are implied into your contract with us. The operation of, and liability for breach of, the Implied Terms cannot be, and are not in this contract, excluded and can only be limited in certain circumstances.
Except for the Implied Terms, we exclude to the fullest extent permitted by law all terms implied by statute, at law, in fact or otherwise.
You understand and agree that our suppliers have no warranty obligations or other liabilities to you under this contract.
We exclude to the fullest extent permitted by law all liability for any liabilities, losses, damages, costs or expenses (whether arising in contract, tort (including negligence) or under any other cause of action) suffered or incurred by any person in connection with this contract or an act or omission of our or any of our suppliers' personnel in connection with this contract:
- on behalf of and for the benefit of our suppliers; and
- for ourselves, except for liability for breach of the Implied Terms which cannot be excluded by law (which may be limited to the extent permitted by the TPA).
In addition, pursuant to section 68A of the TPA, in respect of any of the goods or services supplied under this contract which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability for breach of a condition or warranty implied into this contract by the TPA other than a condition or warranty implied by section 69 is limited:
- in the case of goods, to any one of the following as determined by us:
- the replacement of the goods or the supply of equivalent goods; or
- the repair of the goods; or
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired;
- in the case of services, to any one of the following as determined by us:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
Nothing in these Terms shall limit or exclude our liability for death or personal injury caused by our negligence.
To the extent permissible by law, we will not be liable under these Terms for any loss of income, loss of profits, loss of contracts, loss of data or for any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.
To the extent permissible by law, our maximum aggregate liability under these Terms whether in contract, tort (including negligence) or otherwise shall in no circumstances exceed the amount payable by you to us in respect of the product(s) in question.
5. Assignment
We may transfer all or part of our rights and obligations under these Terms to our business partners or related bodies corporate. However, if assignment is likely to have a detrimental impact on you, and that impact is more than a minor impact, we will notify you about this.
The TiVo service is provided for your personal, non-commercial use, and may not be resold, in whole or in part. If you transfer or sell your TiVo box, the purchaser will need to re-activate the TiVo service.
6. Indemnity
You agree to indemnify and hold us harmless from and against any and all claims, proceedings, injuries, liabilities, losses, costs and expenses (including reasonable attorneys’ charges on an indemnity basis), including but not limited to claims against us or the TiVo service alleging negligence, copyright infringement and/or trademark infringement, relating to or arising out of your breach of our agreement with you (as contained in these Terms), your misuse of the TiVo service, or your unauthorised modification or alteration of the TiVo box or software on the TiVo box.
7. Applicable Law
These Terms are governed by the laws in force in New South Wales, Australia and you irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia and any courts which may hear appeals form those courts.
From: Terms of Use of TiVo® box and the Tivo® service, 2008, Hybrid Television Services (ANZ) Pty Limited, 2008
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