Terms & Conditions.
BIRDI PTY LTD (ABN 64 614 016 929) (us, we or our) is the owner of our Website, and you are either an Account holder or a person accessing or using our Website or the Services (you or you), together the Parties and each a Party. We own the cloud-based platform and software which is accessible on our Website (Software).
These Terms and Conditions (Terms):
- set out the terms and conditions upon which you agree to use our Website (including the Content), the Services and your Account;
- set out the terms and conditions upon which we agree to grant you a right to use the Software (as a service), as described on our Website (SaaS Services), and provide any other services or products as set out in these Terms (together with the SaaS Services, the Services); and
- are binding on you from the date you start accessing or using our Website or the Services (Effective Date), until the earlier of, the date on which you stop accessing or using our Website or the Services, or your Account is terminated in accordance with these Terms (Term).
By creating an Account, or accessing or using our Website or the Services, you:
- warrant to us that you have the legal capacity to enter into a legally binding agreement or (if you are under 18 years of age) you have your parent’s or legal guardian’s permission to access or use our Website or the Services and they have agreed to these Terms on your behalf;
- warrant to us that you have the authority to act on behalf of any person or entity for whom you are accessing or using our Website and the Services, and you are deemed to have agreed to these Terms on the person or entity’s behalf;
- warrant to us that you have all things (including hardware and software) necessary to use the Services; and
- agree to use our Website and the Services in accordance with these Terms.
You may need to be a registered member to access or use certain features of our Website or the Services. To become a registered member, you will be required to create an account (Account).
When creating your Account, we will provide you with a user name and password. You must keep these secure at all times and you are liable for all use and activity carried out under your user name and Account. You must immediately notify us of any unauthorised use of your Account.
If you are under the age of 13 years, you may not create an Account. If you are 13 years or older but under the age of 18, you represent, warrant and agree that you have reviewed these Terms with your parent or legal guardian to make sure that you and your parent or legal guardian understand these Terms. If you are a parent or guardian permitting a person under the age of 18 (a Minor) to create an Account and/or use the Services, you agree to:
- exercise supervision over the Minor’s access to and use of our Website, the Services and their Account;
- assume all risks associated with and liabilities resulting from, the Minor’s access to and use of our Website, the Services and their Account;
- ensure that the content and information that the Minor may encounter on our Website is suitable for the Minor;
- ensure the accuracy and truthfulness of all information submitted by the Minor; and
- provide the consents, representations and warranties contained in these Terms on behalf of the Minor.
If you are a Minor, we may ask you to confirm that you have your parent’s or guardian’s permission and that they have agreed to these Terms on your behalf, and, even if we do not do this, we will assume that this is the case and will provide access to our Website, the Services and your Account on this basis.
At our sole discretion, we may refuse to allow any person to create an Account.
In consideration for your payment of the Fees, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the SaaS Services for personal and commercial use, during the term relevant to your Plan (SaaS Licence).
You agree that:
- the SaaS Licence permits you to use the SaaS Services in accordance its normal operating procedures;
- the SaaS Licence permits you to access and use the SaaS Services via your Account or otherwise agreed by us; and
- we reserve the right at any time and from time to time to:
- refuse any request in relation to the SaaS Services that we deem inappropriate, unreasonable, illegal or otherwise non-compliant with these Terms;
- modify or discontinue access to the SaaS Services (or any part thereof) with notice; and
- change or remove features of the SaaS Services provided that, for any material alterations we will provide you with 14 days’ notice.
You agree to not access or use the SaaS Services except as permitted by the SaaS Licence and to not do, omit to do, or authorise any act that would or might invalidate or be inconsistent with our intellectual property rights in the SaaS Services. You must not and must not permit any other person to:
- resell, assign, transfer, distribute or provide others with access to the SaaS Services;
- “frame”, “mirror” or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network;
- copy, alter, modify, create derivative works from, reproduce to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services or Software;
- use the SaaS Services in any way which is in breach of any applicable laws any person’s rights, including intellectual property rights;
- use the SaaS Services in any way that damages, interferes with or interrupts the supply of the SaaS Services;
- use the SaaS Services to carry out security breaches or disruptions of a network.
- send any unsolicited email messages through or to users of the SaaS Services in breach of the Spam Act 2003 (Cth) or to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use the SaaS Services in breach of any person’s privacy (such as by way of identity theft or “phishing”);
- use the SaaS Services to circumvent user authentication or security of any of your networks, accounts or hosts or those of your customers or suppliers; or
- solicit or entice away, any person or organisation that was our actual or prospective, client, employee, contractor, representative, agent, or developer during the Term and for a period of twelve months after the Term.
You agree to:
- provide us with all reasonable assistance and cooperation in order for us to supply the Services;
- ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked; and
- make any changes to your computing environment, including all Systems, information technology and telecommunications services (Computing Environment), such as system upgrades, that may be required to support the delivery and operation of the Services.
Once you have set up your Account in accordance with these Terms, you may choose to purchase additional storage by selecting one of the following Plans:
- [Premium]; or
(together the Plans and each a Plan).
You must pay us the fee relevant to your Plan (Fee) and any other amount payable to us under these Terms, without set off or delay, via credit card or any other payment method set out on our Website.
The Fee for your Plan is payable in advance of the next billing cycle for your Plan and any additional charges will be billed in arrears at the end of the Plan cycle (unless otherwise agreed).
You are responsible for reviewing the pricing schedule, features and limits associated with your Plan, which are available on our Website.
You agree that the Fee is non-refundable. To the maximum extent permitted by law, there will be no refunds or credits for any unused Plan (or part thereof), Plan downgrade or unused Accounts. Downgrading your Plan may result in the loss of content, features or capacity of your Account. We do not accept any liability for any losses or damages that may arise in such cases.
We may offer you a free or trial Account with limited features designed to allow you to evaluate the Services and make sure it is right for you before signing up for a paid Plan. Any trial period (and the features available during this period) can change at any time without notice. We have the right to terminate any trial Account if you are found to be misusing the Services.
If you upgrade or downgrade your Plan, the credit card linked to your Account will automatically be charged the Fee for your new Plan in advance of your next Plan billing cycle. Please ensure that this credit card has sufficient funds to pay the Fee. If your credit card expires and you do not cancel your Account, you will remain responsible for paying the Fee for the Plan, which will accrue to your Account until we receive a notice from you of your intention to cancel the Plan or your Account.
All Fees include GST. You are responsible for all taxes, levies or duties imposed by taxing authorities in Australia / in your own country, and you shall be responsible for payment of them. We have no responsibility to them on your behalf.
The Fee is subject to change upon 30 days’ notice from us to you and will apply to the next Plan billing cycle. Such notice may be provided at any time by posting the changes on our Website, via email or via a notification to your Account. If you do not agree to the Fee change, you may cancel your Account in accordance with these Terms.
If any payment is not made in accordance with our above payment terms, we may (at our absolute discretion) immediately cease providing the Services to you, suspend our Account and recover as a debt due and immediately payable from you our additional costs of doing so.
We may, from time to time, provide an additional service (which forms part of the Services) by offering an opportunity for you to purchase a public liability insurance policy via our Website (Insurance).
You acknowledge and agree, in relation to the Insurance, that:
- the Insurance that we may offer to you will be on the terms of a group policy (Group Policy) that is underwritten by CGU Insurance Limited (ABN 27 004 478 371) (CGU);
- under the Group Policy:
- SURA Film and Entertainment Pty Ltd (ABN 36 115 672 350) (SURA) is an authorised representative and agent of CGU;
- we are the Group Purchasing Body (GPB) and the holder of the Group Policy; and
- you are a third party beneficiary (TPB) (as defined under section 48 of the Insurance Contracts Act 1984 (Cth)).
- as the GPB:
- we may issue the Insurance to you but we are not the insurer;
- we are not an agent and we are not authorised (and we do not any receive payments from SURA or CGU) to act on behalf of SURA or CGU;
- we hold the Group Policy on behalf of or on trust for you;
- we DO NOT provide any financial product or insurance advice to you in offering the Insurance, in particular:
- we DO NOT intend to influence you in making any decision in relation to the Insurance;
- we DO NOT provide any advice on our Website or otherwise in relation to the Insurance; and
- you should seek you own independent insurance advice before purchasing the Insurance; and
- we are not authorised to amend or negotiate the policy terms of the Insurance.
You may purchase an Insurance via our Website and/or by signing up for the offer via your account subscription. You acknowledge and agree that the fee payable by you to us to purchase the Insurance (Insurance Fee) is separately identifiable from any other Fees payable by you in relation to the Plan (i.e., for cloud storage).
We agree to pay an amount equivalent to the Insurance Fee to SURA (less any of our reasonable costs in acting as the GPB). In other words, other than our reasonable costs in acting as the GPB, we do not receive any payment, remuneration or other benefit from you by you purchasing the Insurance that is additional to the amount payable by us to SURA for the Insurance.
Before selecting to purchase the Insurance, you should read the Insurance policy and seek independent insurance advice to ensure that the Insurance (including the level of cover) is right for you and appropriate for your purposes. If you have any questions regarding the Insurance (including whether you have an entitlement to make a claim under the Insurance) you should contact SURA directly.
You agree that all claims under the Insurance are to be made to SURA and not us and we will have no responsibility to bring any claim on your behalf. The risk of a valid claim, and the obligation to pay any insured amount, under the Insurance remains with SUPA and/or CGU and we will not be responsible, in any way whatsoever, for any claim or for paying any insured amount under the Insurance.
This section of these Terms is subject to the terms and conditions specified in the relevant policy of Insurance and any other terms and conditions relevant to the Insurance.
- how we store and use, and how you may access and seek correction of or correct your personal information;
- how you can lodge a complaint regarding the handling of your personal information; and
- how we will handle any complaint.
You grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to:
- use the information, documents and other data you provide to us or upload to the SaaS Services or which we otherwise access in providing the Services (Data) and any intellectual property rights in the Data, including:
- supply the Services and to perform our obligations under these Terms;
- for diagnostic purposes and to test, enhance and otherwise modify the Services; and
- to develop other services.
Moral Rights: If you have any moral rights (as defined in the Copyright Act 1968 (Cth)) (Moral Rights) in any Data, you consent to the infringement of those Moral Rights by us or our personnel.
You agree to ensure the integrity and your use of your Data is compliant with all laws. You represent and warrant that:
- you have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in these Terms; and
We are not liable for your Data, and you shall be solely responsible for your Data.
Despite anything to the contrary in these Terms, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services (Analytics). You agree that we may make such Analytics publicly available, provided that they:
- do not contain identifying information; and
- are not compiled using a sample size small enough to make the underlying data identifiable.
As between the Parties, we own all right, title and interest in and to the Analytics and all related software, technology, documentation and content (including intellectual property rights).
As between the Parties, all intellectual property (including copyright, designs, patents, trademarks and other intellectual property rights) developed, adapted, modified or created by us or our personnel (including in connection with these Terms, the Software, the Services and including all of the content and material on our Website, including all text, graphics, logos and audio (Content)) will at all times vest, or remain vested, in us.
Your use of our Website and use of and access to any Content does not grant or transfer any rights, title or interest to you in relation to our Website or the Content. However, we do grant you a limited, revocable, non-transferable and non-sublicensable licence to use the Services and the Content solely for the purposes of accessing and using our Website and the Services, in accordance with these Terms.
Any reproduction or redistribution of our Website or the Content is prohibited and may result in civil and criminal penalties. In addition, you must not copy the Content to any other server, location or support for publication, reproduction or distribution. All other use, copying or reproduction of our Website, the Content or any part of it is prohibited, except to the extent permitted by law.
This section will survive termination of these Terms.
You agree not to use our Website or the Services inappropriately or unlawfully, in particular you agree not to do:
- breach any third party rights of any person (including uploading personal information without an individual’s consent) or any other of the legal rights of individuals;
- use our Website to defame or make derogatory statements about us, our personnel or other individuals;
- upload files that contain viruses that may cause damage to our property (including our Website) or the property of other individuals; or
- post on or transmit to our Website any non-authorised material including, but not limited to, material that is, in our opinion, likely to cause annoyance, or which is defamatory, racist, obscene, threatening, pornographic or otherwise or which is detrimental to or in violation of our, or any third party’s systems or security.
At our sole discretion and without notice, we have the right to take down any information that you post on our Website or on the Software.
Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights).
If the ACL applies to you as a consumer, nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.
The information on our Website is not comprehensive and is intended to provide a summary of the subject matter covered. While we use all reasonable attempts to ensure the accuracy and completeness of information on our Website, subject to your Statutory Rights, we exclude all express and implied warranties, and all material, information, documents and services (including the Services, our Website and the Content) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
Despite anything to the contrary, to the maximum extent permitted by the law:
- our maximum aggregate liability arising from or in connection with these Terms (including the Services or the subject matter of these Terms) will be limited to, and must not exceed the total amount of Fees you paid to in the year in which the liability arose; and
- we will have no liability for any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any liability caused or contributed to by, arising from or connected with:
- any damage, injury or loss to any person or property (including any drone) or to your Computing Environment;
- the Services being unavailable, any outage or interruption or any delay in us providing the Services to you, for whatever reason;
- your or your personnel’s acts or omissions;
- any breach by you (or any of your personnel) of any third party rights (including intellectual property rights or privacy) or of any privacy or confidentiality obligations;
- any claim that you have or may have under the Insurance;
- any use or application of the Services, your Account, the Content or our Website by a person or entity other than you, or other than as reasonably contemplated by these Terms;
- any third parties or any goods and services provided by third parties, including customers, end users, suppliers, providers or other subcontractors which the provision of the Services may be contingent on, or impacted by;
- your choice of the Insurance and/or the appropriateness or suitability of the Insurance for any purpose; or
- any event outside of our reasonable control,
Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:
- any claim (whether valid or otherwise) made by you under the relevant policy of Insurance;
- your Data; and
- your use of our Website, the Services or any breach of these Terms by you.
You agree that:
- you are responsible for all users using the Services;
- your use of our Website and the Services is at your own risk;
- the Services, including your Data, may be transferred unencrypted and over various networks;
- we may use third-party service providers to host the Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing the Services (or any part of the Services) without liability or entitling you to any refund, credit, or other compensation;
- we may pursue any available equitable or other remedy against you if you breach of these Terms.
This section will survive termination of these Terms.
We may, at any time and at our sole discretion, suspend or terminate your Account for any reason. You must ensure that all your Data on the SaaS Services is backed up so that you do not lose your Data if we suspend or terminate your Account. We will generally alert you when we take such action and give you a reasonable opportunity to remedy any breach of these Terms, but if we determine that your actions endanger the operation of the Services or other users, we may suspend or terminate your Account immediately without notice. You will continue to be charged for the Services during any suspension period in which you are in breach of these Terms. If we suspend your Account and you are not in breach of these Terms, we will apply a credit to your Account for the Fees you have paid for any unused portion of your Plan to which the period of suspension relates. If we terminate your Account and you are not in breach of these Terms, we will refund you the Fees you have paid for any unused portion of your Plan. If we terminate your Account and you are in breach of these Terms, no refunds will be given.
We reserve the right to restrict, suspend or terminate without notice your access to our Website, your Account, any Content, or any feature of our Website at any time without notice and we will not be responsible for any loss, cost, damage or liability that may arise as a result.
Automatic Renewal: Your Plan will automatically renew at the end of the Plan period (and for the same Plan cycle) unless you terminate or change your Account prior to the renewal date.
For certain campaigns, promotions or contests, additional terms and conditions may apply. If you want to participate in such a campaign, promotion or contest, you need to agree to the relevant terms and conditions applicable to that campaign, promotion or contest. In case of any inconsistency between such terms and conditions and these Terms in relation to any campaign, promotion or contest, those terms and conditions will prevail.
Our Website may contain links to websites operated by third parties. Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, we do not endorse and are not responsible for the content on those linked websites and have no control over or rights in those linked websites.
Assignment: We may assign any rights or obligations under these Terms, whether in whole or in part, without your prior written consent.
Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on our Website. Such variation will take effect at the commencement of your next Plan billing cycle or unless otherwise specified. Prior to the commencement of each Plan billing cycle, we recommend you carefully read the Terms that are in effect at that time to ensure you understand and agree to them.
Disputes: Neither Party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a representative of the other party to seek (in good faith) to resolve the dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).
Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.
Jurisdiction and Governing Law: Your use of our Website and these Terms are governed by the law of New South Wales and you irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales.
Notices: Any notice given under these Terms must be in writing and addressed to us at the details set out on the “Contact” page on our Website or to you at the details provided when setting up your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of email.
Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
Subcontracting: We may engage subcontractors, suppliers and others to perform the Services on our behalf, without your consent.
Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.