Event Birdie Terms & Conditions




Event Birdie –Terms and Conditions   (January 2019) 
 
1 Definitions
 
In these Terms and Conditions:

Application Form means the document (whether provided in printed or electronic format) setting out your application for, and the details of, the Product you purchase (whether the Product is paid or complimentary).
 
Contract means the terms on which we supply any Product to you, as detailed in clause 2.3.
 
Content means any information, advertisement, business name, trade name, trade mark, design, logo, photograph, illustration, graphic, artwork, text, URL (and content accessible via that URL), video, video link or other material.
 
Law means all applicable laws, regulations, rules and applicable industry codes of practice and standards.
Listing means a dedicated webpage on the Website that displays an advertisement and other information relating to your business.
 
Product means any advertising products that we offer from time to time on a paid or free basis on the Website or through other mediums, including, but not limited to a Listing. 
 
Product Fee means the fees or charges payable by you for a Product, as notified to you by us from time to time, whether payable in full or in instalments.
 
we, us and our means Event Birdie Pty Limited (ABN 97 190 094 306).
 
Website means the website www.eventbirdie.com hosted by us that displays, amongst other things, your Listing.
 
you means the entity with whom we contract, as named on the Application Form. 
 
Your Website means any website used in connection with your business, and does not need to be owned by you.
 
2 About these Terms
 
2.1 These Terms and Conditions (Terms), as amended by us from time to time, will apply to any Product (paid or complimentary) we supply to you now and in the future. Please read the Terms carefully.
 
2.2 Each accepted Application Form constitutes a separate Contract for the Product covered by that Application Form.
 
2.3 The terms on which we supply any Product to you consist of:
 
(a) the Application Form and any specific terms we provide to you in respect of the Product when you submit an Application Form;
 
(b) these Terms; and
 
(c) our Website terms of use (available via www.eventbirdie.com/terms-of-use) and our Website privacy statement (available via www.eventbirdie.com/privacy-statement), which you acknowledge you have read and understood.
 
2.4 In the event of any inconsistency between any of the documents set out in clause 2.3, the document listed earlier prevails to the extent of any inconsistency.
 
3 Term of your Contract
 
3.1 Each Contract commences on the date that you sign the Application Form or authorise it by written, electronic or voice processes or we start supplying your Product, whichever occurs earlier.
 
3.2 Each Contract will continue at least for the initial term(s) specified in your Application Form (Initial Term). 
 
3.3 At least 28 days prior to the expiration of your Initial Term (or any renewed contract term, as applicable) we will send you notice of the Product Fees for the 12 month period immediately following the expiration of your Initial Term (or renewed contract term, as applicable). 
 
3.4 If, in response to that notice or for any other reason, you do not wish to receive the Product beyond the Initial Term (or renewed contract term, as applicable) you may terminate the Contract by providing us with no less than 14 days written notice prior to the expiration of your Initial Term (or any renewed contract term, as applicable). If you do not give us such notice, we will continue to provide the Product to you for a renewed Contract term of 12 months and the new Product Fee (as notified to you) will apply for that period.
 
4 Payment
 
4.1 We may invoice you in various ways. You must pay us the Product Fee (in Australian dollars) that applies to any Product by the due date specified on the invoice. 
 
4.2 If you do not pay us any amount you owe us by the due date or if any payment you have made to us is declined or otherwise not received by us because of insufficient funds in your account, we may suspend or cancel your Product, including any Listings, until such payments have been made in full.
 
4.3 If you pay any amount to us by credit card, we may charge you a payment processing fee on the day you make the relevant payment at the rate set out on your invoice, which may vary from time to time.
 
4.4 The Product Fee is exclusive of GST.  Unless expressly stated otherwise, if a party makes a taxable supply under or in connection with the Contract, in addition to our Product Fee or any other amount stated to be payable, the recipient of the supply must also pay the amount of any GST payable in respect of the supply, subject to receipt of a tax invoice.  “GST” and other terms used in this clause 4.4 have the same meaning as they do in the A New Tax System Goods and Services Tax) Act 1999 (Cth) as amended or replaced or any other relevant legislation and regulations.
 
5 Content
 
5.1 You are responsible for fulfilling the Content entitlements that come with a Product. We are not obligated to collect Content for you, but we may do so.
 
5.2 We are not responsible for, and you must regularly check and keep current and accurate, the Content (whether provided by you or collected by us) in your Product. You can update your Content via the Website or by providing us with information so that we may update your Content.
 
5.3 We may at any time reject or remove any Content from a Product or change, delete, withdraw, disable or suspend a Product or any Content for any reason and without prior notice to you, including:
 
(a) if provided for under the Product rules, policies and guidelines;
 
(b) if we reasonably believe that the Content, or the use of it, contravenes any Law, infringes or is likely to infringe the rights of third parties or is inappropriate, unsuitable, offensive, obscene, defamatory or indecent;
 
(c) if we reasonably believe that the Content, or its use, will result in a breach of your Contract or affect us unfavourably; or
 
(d) in order to comply with requirements, notices, standards or instructions given to us by any third party, including a regulatory body.
 
5.4 We may determine, control or change your Product, your Content or any page, site or other means of displaying your Product or your Content, including the:
 
(a) duration, nature, content, size and presentation (such as format, design, placement, order and position);
 
(b) classification, business categories, keywords and search criteria; and
 
(c) availability of your Product or components of your Product in headings or business categories.
 
5.5 End-users may access a Product and your Content in a variety of ways (including via different sites, services and applications, technologies and devices). We cannot guarantee how a Product or your Content will be presented to end-users or that all features of the Website, your Product or your Content will be accessible by end-users.
 
5.6 We may use your Content in other aspects of the Website and in other forms of communication (including in our newsletter, web blog and social media platforms) as well as in sites and applications that we develop from time to time. We will determine the presentation of your Content in such communications, products, sites and applications.
 
5.7 We reserve the right to change the Website (including the format, design, scope and ‘look and feel’) at any time. We will use our reasonable endeavours to give you advance notice of any material changes that we make to Website or the Products that we supply to you.
 
5.8 You may remove your Product from the Website at any time and you acknowledge that no refund, full or partial, will apply in respect of such removal.
 
5.9 When your Contract is completed or terminated or when a Product is cancelled, we may retain or delete any Content relating to the relevant Contract or Listing.
 
6 Intellectual Property
 
6.1 You grant us a royalty free licence to use, reproduce, modify, adapt, communicate to the public and sub license the Content that you provide to us or we collect from Your Website (Your Inputs) for the purposes of providing the Product and the Website and including such Content in any directory, product, service, site, social media platform, application or marketing material provided or used by us or by a third party to whom we syndicate, distribute or otherwise make available (Syndicate) the Product or Content.
 
6.2 You agree that we own all intellectual property rights in:
 
(a) the Website and the Product, other than Your Inputs; and
 
(b) in any new work created by modifying, amending, adapting or otherwise dealing with any part of the Product (including Your Inputs); and
 
(c) in any data, results and reports we generate, and give to you pursuant to the Terms.
 
6.3 Except in relation to Your Inputs, you must not (and must not permit others to) reproduce the Website or any part of the Website, including the Product, or any new work created by us using any part of the Website or Product without our prior written consent.
 
6.4 In addition to our rights set out above, if you have a Listing, you agree that:
 
(a) all intellectual property rights in the design, functionality and ‘look and feel’ of the Website and your Listing (except to the extent that the Website and/or your Listing contains your business names, trade marks or other pre-existing intellectual property) are owned and will be retained by us;

(b) you give us a perpetual, royalty- free licence to use your business names, trade marks and all other words and symbols displayed on your Listing in any domain name that we create for the purposes of your Listing; and
 
(c) we will own any domain name registration that we create for the purposes of your Listing, whether or not the URL for the domain name includes any of your business names or trade marks.
 
7 Our warranties and limitation of liability
 
7.1 Except for the express warranties set out in these Terms, any terms implied by law (that cannot be excluded) and your rights under statutory guarantees provided under consumer protection laws, we provide no warranties or guarantees to you (including in relation to our provision of a Product to you, the performance of your Product (including your Listing) or your return on investment in relation to a Product).
 
7.2 While we will use due care and skill in relation to the provision of the Product, we do not warrant or guarantee that:
 
(a) the Product will be free from errors or omissions or provided to you by or within a particular time; or
 
(b) we will monitor your Content to ensure that it complies with the Law or your obligations and warranties to us under these Terms.
 
7.3 If we fail to comply with a statutory guarantee (if it applies to you under consumer protection laws) or any term of a Contract, then we limit our liability for that failure (where it is fair and reasonable to do so in respect of a statutory guarantee) to either of the following (at our option):
 
(a) supply of the Product again, free of charge to you; or
 
(b) paying you the cost of having the Product supplied again.
 
7.4 You agree that, apart from your rights under clauses 7.1 and 7.3 of these Terms we will not be liable for any loss, damage, claim or demand incurred or made by any person (whether based in tort (including negligence), contract, statute or otherwise) arising out of or in connection with a Contract, including from provision of the Product, or failure to provide the Product, or from exercising any of our rights in relation to
Content.
 
7.5 Without limiting clause 7.4 of these Terms:
 
(a) we have no liability for any failure or delay in performing an obligation under a Contract due to matters outside our reasonable control or to the extent it is caused by you or results from your failure to take reasonable steps to avoid or minimise your loss; 
 
(b) we have no liability whatsoever relating to the content of your Product or your dealings with any users of the Website or your customers or prospective customers; and
 
(c) we are not liable for loss or damage that was not reasonably foreseeable.
 
8 Your warranties
 
8.1 You represent and warrant to us that:
 
(a) you or your licensors own all intellectual property rights in the Content that you provide to us or we collect from Your Website (Your Inputs) and if you are not the owner of Your Website, you have obtained the consent of the owner of Your Website to allow us to collect Content from Your Website and display that Content in the Product that you receive from us;
 
(b) you have the right to enter into each Contract and are the owner of, or are legally authorised to use and/or sub-licence the use of, the Content in the Products that we supply to you;
 
(c) you will not purport to enter into any Contract as an agent without authority from the principal;
 
(d) all information you provide for the purposes of a Contract is accurate, complete and current;
 
(e) nothing in your Content (whether supplied by you or collected by us) in the Products that we supply to you:
 
(i) contravenes any Laws, or incites or encourages breaches of any Law;
 
(ii) infringes the rights (including intellectual property rights and moral rights) of any third parties;
 
(iii) breaches any of your Contracts or your obligations to any third party (including confidentiality and privacy obligations);
 
(iv) constitutes or may result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity;
 
(v) fails to meet the requirements set out in the terms of use in respect of the Website (www.eventbirdie.com/terms-of-use); 
 
(vi) in our reasonable opinion, otherwise prejudices our reputation or brand;
 
(vii) is inappropriate, offensive, unsuitable for minors, obscene, indecent, defamatory, discriminatory, false, misleading or deceptive or likely to be misleading or deceptive, or promotes, incites or instructs in matters of crime;
 
(viii) identifies a person or can be used to identify a person (including any copy, photos or other pictorial representations), unless you have obtained that person’s authority (or, if they are a minor, the consent of their parent or legal guardian);
 
(f) you will monitor Your Content to ensure you comply with these warranties;
 
(g) you will not engage in spamming or similar marketing activities in relation to any Product;
 
(h) your Content in the Products that we supply to you is free of “worms”, “viruses” and other disabling devices; and
 
(i) you have all necessary rights to advertise, sell, distribute and/ or communicate to others the business, products, goods or services advertised or otherwise referred to in Your Content.
 
8.2 Your warranties under clause 8.1 of these Terms:
 
(a) are given on an ongoing basis during the period of any Contract you have with us; and
 
(b) apply to any changes made to Your Content and displayed in any Product that we supply to you.
 
9 Your indemnity in favour of us
 
9.1 You agree to indemnify us against all claims, demands, damages, costs, penalties, suits and liabilities of any nature caused directly or indirectly by your act or omission or any breach by you of any provision of a Contract including the warranties given by you under clause 8.1.
 
10 Termination
 
10.1 We may terminate a Contract immediately if: 
 
(a) you breach any term of the Contract; or
 
(b) you become bankrupt or insolvent, execute a personal insolvency agreement, enter into liquidation, administration, receivership or cease to carry on business.
 
10.2 The rights of termination in clause 10.1 are in addition to any other rights we have under the Contract and do not exclude any right or remedy under law or equity or the survival of other terms under Contract.
 
11 Miscellaneous
 
11.1 Severability: If any part of these Terms becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
 
11.2 Governing Law: These Terms are governed by the laws applicable in the state of New South Wales and the courts of the state of New South Wales will have non-exclusive jurisdiction to settle any claim, dispute or matter or difference arising in connection with this document.
 
11.3 Force Majeure: If a party is prevented from or delayed in complying with an obligation of the Terms (other than to pay money) by an event beyond its reasonable control, performance by it of that obligation is suspended during the time, but only to the extent that, compliance is prevented or delayed.  Nothing in this clause relieves a party from any obligation to pay money.
 
11.4 No Waiver: A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.  The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.  A waiver is not effective unless it is in writing.  Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
 
11.5 Previous editions: this edition of the Terms replaces and supersedes all previously issued Terms by us.