Terms of Use – By The Way Media  Services

Revised Sep 2024

1. Acceptance of Terms 
   1. The  Services offered under the name “By The Way Media” are operated and owned by By The Way Media Pty Ltd (ACN 660 169 826) and its related entities or body corporates (“BTW”).
   2. Customer use of the  Services is strictly subject to these terms of use and any other policy displayed on the Website (together the “Terms”). Every time Customer books or uses the Services, Customer indicates that Customer has read, understood, and accepted to be bound by these Terms. If Customer does not agree to be bound by these Terms, Customer must not use the Website or the   Services.
   3. BTW may amend or modify the Website, Services and/or the Terms at their sole discretion and at any time.  Any amendments are effective 14 days after publication on the Website. Customer’s continued use of the Website or  Services following such modifications will be deemed as acceptance of these modifications. 
   4. These Terms will prevail over any other terms or agreements between Customer and BTW.
2. Definitions
   1. In these Terms:

Booking means an agreement between BTW and the Customer for BTW to provide the Services to the Customer in exchange for the Booking Fee on terms set out in these Terms and the Booking Form.

Booking Fees means the fees charged by BTW to provide the Services, as set out on the Website, including Project Fees (and subject to change from time to time).

Booking Form refers to a booking form on the Website which allows the Customer to fill in their details and book in Services.

Booking means an agreement between BTW and the Customer for BTW to provide the Services to the Customer in exchange for the Booking Fee on terms set out in these Terms and the Booking Form.

BTW means By The Way Media Pty Ltd (ACN 660 169 826) and its related entities or body corporates.

Business Day refers to a day other than a Saturday, Sunday or public holiday in the State, when banks in the State are open for business.

CCA means the Competition and Consumer Act 2010 (Cth).

Claim means a claim, action, proceeding, notice, litigation, investigation, judgment, liability or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or deferred whether based in contract, tort or statute and whether involving a third party or party to these Terms.

Confidential Information means all information of a confidential or proprietary nature, in any form whether tangible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement, but excluding information which:

(a) is or becomes a matter of public knowledge through no fault, action, or omission of the Recipient or its personnel;

(b) is rightfully received by the Recipient from a third party without a duty of confidentiality;

(c) was already known to the Recipient at the time the disclosing party first made it available to the Recipient, except as a result of disclosure known by the Recipient to be made in violation of an obligation of confidence; or

(d) was independently developed by the Recipient without reference to the information of the disclosing party.

Without limitation, our Confidential Information includes all know-how, trade secrets, technical information, specifications, data, Intellectual Property Rights, marketing procedures, enablement procedures, documentation, pricing information, client and client records, as well as business, corporate, or trade information.

Copyright Act means the Copyright Act 1968.

Customer refers to the person who is purchasing Services from BTW.

Force Majeure Event means any act of God, war, terrorism, fire, flood or any other extreme weather conditions, loss of power, pandemic, epidemic, implementation of travel, movement, and large-gathering restrictions as a result of the pandemic or epidemic, industrial disputes, slow-downs or other strike activities, riots or civil disturbances, acts of government, semi-government or other Authorities.

GST means goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).

Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.

Materials means any materials, information or documents in whatever format provided by BTW to the Customer before, during or after the Services, and includes both hard copies, soft copies and downloadable soft copy materials.

Privacy Policy means BTW’s privacy policy available on our website.

Project Fees means Booking Fees and any other agreed fees paid by the Customer to BTW for Services, including any such fees paid in advance by the Customer and held on the Customer’s behalf by BTW in respect of unbooked Services.

State means the New South Wales, Australia.

Substitute Customer is as defined in clause 6 of these Terms. 

Terms refers to these terms of use, together with the Privacy Policy and the Booking Form.

Warranties mean any warranties, conditions, terms, representations, statements and promises of whatever nature, whether express or implied.

Website means the BTW website located at https://www.btwmedia.com.au/

Services means a course or  held by BTW which the Customer may attend, which may be conducted in person or online (including, without limitation, a live video or a non-live webinar) or any other services booked by a Customer via the Website.

Services Location means the location (which may be physical or virtual) on which the Services are to be delivered as per the Booking Form but also subject to change by BTW in accordance with clause 5.2.

Service Delivery Time means the time and date on which the Services are to be held as per the Booking Form but also subject to change by BTW in accordance with clause 5.2.

1. Access
   1. To access and use the Website or the Services, or create a Booking, Customer must be at least 18 years old and have the legal capacity to enter into binding contracts. If these conditions are not satisfied, please cease using the Website or Services immediately.
2. Bookings
   1. BTW offers the Services.
   2. Customer may book the Services by filling out a Booking Form on the Website.
   3. Customer is solely responsible for ensuring that any information entered in the Booking Form is accurate and complete. BTW relies on the information entered in the Booking Form.
   4. Customer must pay the Booking Fee upon submission of the Booking Form, through BTW’s chosen payment platform (which may change from time to time). Customer must also pay any additional fees charged by the relevant payment platforms, in addition to the Booking Fee.
   5. BTW will provide Customer with an acknowledgement email and tax invoice in relation to the Services and Booking Fee within a reasonable time after the submission of the Booking Form.
   6. Alternatively, Customer may make a manual Booking (Manual Booking) by submitting an email request to admin@btwmedia.com.au with the following details: full name of Customer, contact number, name of the Service requested, Services Location and number of attendees, if relevant. 
   7. If Customer chooses to make a Manual Booking in accordance with clause 4.6, the following conditions apply to the Booking: 
      1. An administration fee of $49 is payable by the Customer;
      2. Customer’s request for Manual Booking is subject to approval by BTW; and
      3. Full payment of the Booking Fee must be received by BTW at least 24 hours prior to the Service Delivery Time. If full payment of the Booking Fee is not received by this time, the Manual Booking will be cancelled without notice to the Customer.
   8. BTW may provide Customer with a ticket or access details to the Services at a time close to the Service Delivery Time, and Customer may gain access to the Services by presenting the acknowledgement email and identification to BTW at the Services Location.
   9. A Booking is created only upon BTW providing an acknowledgement email to the Customer.
   10. BTW is permitted to change the Booking Fee at any time, at its sole discretion.
   11. If the Customer pays a lump sum annual Project Fee or multiple advance Booking Fees to BTW to use for the ongoing provision of Services, such Fees (or related credits) must be used by the Customer for the purchase of Services within 12 months of the date of payment. Any Fees not used within this timeframe will be forfeited and will not be rolled over into the next year. 
   12. Bookings are subject to availability.
3. Services 
   1. Delivery of Services
      1. BTW shall use reasonable endeavours to supply the Services in accordance with these Terms in all material respects but reserves the right to change the content of any Services or Materials at any time and without notice.
      2. Whilst BTW will make reasonable efforts to provide the Services at the Services Delivery Time and at the Services Location, BTW reserves the right to reschedule and/or relocate Services at any time, without any liability, by notifying the Customer. In the event that such a reschedule or relocation is materially different to the original Service Delivery Time or Services Location, BTW may offer the Customer (at its sole discretion) a full or partial refund, or store credit for alternative Services. 
      3. Customer has the right to reschedule a Booking for the Services in accordance with clause 5.2. 

• Transferring and Rescheduling Bookings

Customer is permitted, no later than 7 days before the Services Delivery Time, to either:

1. reschedule a Booking to another available date; or
2. reschedule a Booking and apply for credit from BTW for an unspecified future  date (provided that the date of the rescheduled  Services shall be no more than 12 months from the original  Time, after which date such credit will expire), 

by emailing BTW at admin@btwmedia.com.au.

1. Customer’s Obligations
   1. The Customer shall:
      1. provide reasonable cooperation with BTW in all matters relating to the Services; 
      2. at all times behave in a professional and respectful manner to BTW, its personnel, and other attendees of the Services; and
      3. refrain from any sort of anti-social behaviour, including without limitation harassing, intimidating, mocking or ridiculing BTW, its personnel, or other attendees of the Services.
   2. Customer acknowledges that:
      1. cameras, audio and video recorders may not be permitted at certain Services. BTW will advise whether this is the case at each Service; and
      2. BTW films and photographs every Service. Customer consents to being filmed or photographed by BTW (or its personnel) and to BTW using Customer’s name, likeness, image and/or voice in such photographs or films for the purpose of promoting BTW’s events, services and products. No remuneration is payable for such use. 
   3. Without the express written permission from BTW, Customer shall not:
      1. record the Services in any way;
      2. reproduce, scan or copy, alter, modify, translate (in each case, whether in whole or in part) the Services or Materials except for the sole purpose of completing the Services; or
      3. permit the Materials (whether in whole or in part) to be reproduced, scanned, copied, combined with or become incorporated into any other materials.
   4. For Services delivered online, the Customer shall ensure that they:
      1. are able to meet the basic technical system requirements for hardware and software as may be prescribed by BTW from time to time; and
      2. do not upload any content that infringes upon the rights of third parties, are in contravention of applicable law, or would lead to BTW being in contravention of applicable law.
   5. Where Services are being delivered at the Customer’s premises, the Customer shall provide BTW with: 
      1. access, space and any equipment necessary for the delivery of the Services; and 
      2. such facilities, as are reasonably notified to the Customer in advance.

 

1. Cancellation
   1. Customer is entitled to cancel a Booking on the following terms:
      1. if the cancellation is more than 30 days prior to the Services Delivery Time, Customer will receive a refund of 50% of the Booking Fee;
      2. if the cancellation is less than 30 days but more than 7 days prior to the  Time or the Services Delivery Time, Customer will receive a refund of 25% of the Booking Fee;
      3. if cancellation is less than 7 days prior to the  Time or the Services Delivery Time, Customer will not receive any refund; or
      5. if Customer is entitled to cancel under any applicable law (including, without limitation, the ACL), under the terms of such applicable law.
   2. BTW is entitled to cancel a Booking on the following terms:
      1. if the Customer has breached any provision of these Terms;
      2. if, in BTW’s sole discretion, not enough Customers have booked the Services; or
      3. for any other reasonable grounds.
   3. If BTW cancels a Booking under clause 8.2(b) or 8.2(c), BTW will provide either a full refund or credit, at BTW’s sole discretion.
   4. BTW will refund any portion of the Booking Fee to which the Customer is entitled (if any) within a reasonable time after receiving all necessary information from the Customer.
   5. BTW will use reasonable endeavours to notify Customer of a cancellation, variation, rescheduling or postponement of any Services by sending an email to the address provided to BTW by Customer and putting a notice on BTW’s website. However, the responsibility to ascertain whether a Service has been cancelled, varied, rescheduled or postponed is the Customer’s responsibility. BTW do not guarantee that Customer will be informed of a cancellation, variation, rescheduled or postponement before the date of the Service.
2. Intellectual Property Rights
   1. Unless otherwise indicated or implied by context, BTW are the sole owners or licensees of all intellectual property comprised in the Services and the Materials. Nothing in these Terms constitutes a transfer of any intellectual property rights in or related to the Services or Materials by BTW to Customer. 
   2. Customer acknowledges and agrees that Services or Materials are protected by copyright, trademarks, service marks, patents, design registrations, and other proprietary rights and laws, and Customer agrees to comply with and maintain all copyright notices and other restrictions included on the Services or Materials.
   3. Customer must not do anything which breaches or otherwise interferes with BTW’s intellectual property rights or those of any of BTW’s third-party licensors. Customer may not distribute, reproduce, publish, alter, modify or create derivative works from the Services or Materials without BTW’s prior written permission or that of the relevant third-party licensor or exploit such content for commercial benefit.
   4. Customer acknowledges and agrees that damages may not be an adequate remedy for a breach of this clause 9 and that equitable or injunctive relief may be necessary.
3. Confidentiality 
   1. Each party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other party (Discloser) except:
      1. where permitted by these Terms;
      2. with the prior written consent of the Discloser;
      3. where the Confidential Information is received from a third party, except where there has been a breach of confidence;
      4. on a confidential, “need to know” basis to the Recipient’s shareholders, employees, contractors and other personnel, auditors, insurers, agents, prospective investors or buyers, and professional advisors; or
      5. where the Recipient is compelled to do so by applicable law, provided that it gives the other party written notice prior to disclosure.
   2. 1. The Recipient must only use the Confidential Information of the Discloser for the purposes contemplated by these Terms.
   3. You acknowledge we may refer to you as a Customer, and display your details on our Website, marketing portfolios, case studies, or in our promotional materials. You may ask that we stop doing this by emailing us. It may take up to 30 days to process your request.
4. Disclaimer and limitation of liability
   1. To the maximum extent permitted by law, BTW excludes all Warranties except for those expressly stated in the Terms. Any Services or Materials supplied are supplied “as is” and “as available”. 
   2. Any information or advice provided on the Services or Materials is of general nature only. The Customer acknowledges that:
      1. Customer’s use of any Services, Materials or any advice is solely at their own risk;
      2. Customer must rely entirely on Customer’s own enquiries and judgment in relation to Services, Materials and anything offered by BTW, any advice and any other information or material contained on the Website, Services or Materials;
      3. Customer must not use or engage in the Services or use the Materials in a manner inconsistent with any displayed instructions or advice from BTW; and
      4. BTW are not liable for any reckless or negligent act or omission by the Customer.
   3. To the extent that applicable law (including without limitation to the CCA) restricts BTW’s right to exclude Warranties under these Terms, these Terms must be read subject to those provisions and nothing in these Terms is intended to alter or restrict the operation of such provisions. If those statutory provisions apply, BTW limits its liability pursuant to such provisions, at its sole discretion, to:
      1. the replacement of the relevant Services; or
      2. the payment of the cost of replacing the relevant Services.
   4. To the maximum extent permitted by applicable law and subject to clause 10.6, neither party will have any liability in connection with these Terms for any indirect, consequential, special, incidental, or punitive damages, or any lost revenues, profits, savings, or goodwill.
   5. Subject to clause 10.6, each party’s maximum aggregate liability for damages in connection with these Terms is limited to the Booking Fees you paid to us during the 12 month period before the event giving rise to liability.
   6. Nothing in these Terms excludes or limits either party’s liability for:
      1. its fraud or fraudulent misrepresentation;
      2. its obligations under clause 11 (Release and Indemnity);
      3. its infringement of the other party’s Intellectual Property Rights;
      4. its payment obligations under these Terms; or
      5. matters for which liability cannot be excluded or limited under applicable law.

 

1. Customer acknowledges that BTW provides the Website on an “as is” and on an “as available” basis without any Warranties as to continuous, uninterrupted or secure access to the Website, that defects will be corrected, or that the Customer will not have disruption or other difficulties when accessing the Website participating in any online Services.
2. All of the above subclauses are cumulative to one another.

1. Release and Indemnity
   1. To the maximum extent permitted by law,  each party agrees to release the other party and its Affiliates from all Loss and/or Claims arising out of or in any way connected with:
      1. the indemnifying party’s failure to comply with any applicable laws; or
      2. the indemnifying party’s gross negligence or wilful misconduct. 
   2. We agree to indemnify (and defend and hold harmless) you and your Affiliates from any Loss finally awarded as a result of a Claim brought by a third-party alleging that your use of the Website as contemplated in these Terms directly infringes the Intellectual Property Rights of a third party, except to the extent any such infringement is caused or contributed to by your act or omission (IP Claim). If an allegation concerning a possible IP Claim is made, you must permit us to do one of the following (at our sole discretion):
      1. modify, alter or substitute the Website until the Website no longer infringes the Intellectual Property Rights alleged in the relevant IP Claim. Such modification will be at our cost; or
      2. terminate these Terms, your access to the Website and/or our display of any advertisement.
   3. You agree to indemnify (and defend and hold harmless) us and our Affiliates harmless from any Loss or Claims in connection with:
      1. any damage to person, property, personal injury or death; or
      2. your breach of any of clauses 8 and 9 of these Terms of Use.
   4. As conditions to indemnification under this clause 12, the indemnified party must:
      1. notify the indemnifying party promptly in writing of the Claim for which the indemnified party is seeking indemnification;
      2. grant the indemnifying party sole control over the defence and settlement of each Claim;
      3. provide the indemnifying party with reasonable cooperation in response to such party’s requests for assistance (including all relevant information or materials); 
      4. not have admit any fact, or settle or compromise a Claim, without the prior written consent of the indemnified party if such settlement includes an admission of liability on the part of the indemnified party; and
      5. use its best endeavours to mitigate any Loss the indemnified party suffers as a result of the Claim.
   5. In this clause:
      1. Claim means a claim, action, proceeding or demand made against a person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
      2. Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.
      3. Affiliates means a party’s officers, directors, shareholders, employees, consultants, agents, related body corporates and associates, affiliates, subsidiaries, related parties, related body corporates, sponsors, and other third-party partners
2. Force Majeure
   1. Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under these Terms is prevented or delayed in whole or in part due to any Force Majeure Event, these Terms will continue and remain in effect, but the Affected Party will not be in breach of these Terms for that reason only for so long as the Force Majeure Event persists. 
   2. The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so. 
3. General 
   1. No concession, latitude or indulgence allowed by BTW to Customer may be construed as a waiver or abandonment of any of its rights under the Terms or act as an estoppel against BTW.
   2. Notices are taken to be read on the day they are received, unless they are received after 5 PM or not on a Business Day, in which case they are deemed to be received on the next Business Day. Any notice to Customer will be addressed to the most recent address that BTW has of Customer in its records.  
   3. The Customer must not assign, sublicense or otherwise deal in any other way with any of Customer rights under these Terms, other than in accordance with clause 6.
   4. If a provision of these Terms is invalid or unenforceable, it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
   5. These Terms are governed by the laws of the State and each party submits to the exclusive jurisdiction of the courts of that State and all courts of appeal therefrom.
   6. Any waiver of any term on these Terms by BTW can only be done in express writing. Any failure on BTW’s part to enforce a term does not constitute a waiver and BTW reserves the right in relation to all breaches unless expressly stated otherwise. 
   7. The contents of these Terms constitute the entire agreement between the parties and supersede any prior negotiations, representations, understandings or arrangements made between the parties regarding the subject matter of these Terms, whether orally or in writing.
   8. A provision of these Terms which can and is intended to operate after its conclusion will remain in full force and effect, including clauses 8, 9,10, 11, 12 and all indemnities and releases.