Terms & Conditions

As at 14 June 2023

Thanks for your interest in using the Birdles Digital Platform. The right of the person, entity or company that enters into this Agreement (“You” or the “Client”) to use the Services is expressly conditional on Your acceptance of this Agreement. By clicking on the “accept” button and/or using the Services, You are unconditionally consenting to be bound as You to this Agreement and Birdles Digital Privacy Policy found at (https://birdles.com/privacy-policy/) which is incorporated into this Agreement by reference. If You are entering into this Agreement and accessing the Services on behalf of a You who is Your employer or another entity, You represent and warrant that You have the authority to agree to this Agreement on Your behalf. If You do not have such authority, or if You do not agree to this Agreement, You must not accept this Agreement and may not use the Services.

Please read this Agreement carefully to fully understand how this Agreement and the Privacy Policy govern Your relationship with Birdles Digital and Your use of the Services. We may change any of the terms of this Agreement by posting the revised Agreement on Birdles Digital’s website and/or by sending an email to the last email address You supplied us with. Unless You terminate Your account within ten (10) Business Days of the revised Agreement being posted on Birdles Digital’s website, the revised Agreement will be effective upon expiry of this period and apply to Your future use of the Services. We may change Birdles Digital’s website or any feature of the Services at any time. If you have any questions about this Agreement or the Privacy Policy, please feel free to contact us.

Capitalised terms are defined in Section 13 below.

Your Account

In order to use the Services, You must:

complete the registration process;
agree to the terms set out in this Agreement; and
provide true, complete and up to date contact information.
Each time You access the Platform, You represent and warrant that there have been no changes to the information provided above. Birdles Digital may refuse to provide the Services, close any You or
User Account if there has been a material change to the information provided above.

Term

This Agreement commences on the Commencement Date and continues until termination of this Agreement in accordance with clause 10 of this Agreement.

Services

Subject to Your compliance with this Agreement and paying the relevant Fees, Birdles Digital grants to You a non-exclusive and non-transferable right to use the Services in accordance with the terms of this Agreement. This licence may not be assigned or sublicensed to a third party.

Included Services must be used during the relevant Month and all entitlements to use the Included Services will expire on expiry of the Month. Where You have used all Included Services before expiry of the Month, or where Included Services do not apply to the Package you have selected, Birdles Digital may cease to provide any Services where there is insufficient Wallet Credit or other source of funds, to fund the fees applicable to those Services.

Fees

Birdles Digital charges for all campaigns before the campaign is launched. Before launching a campaign You must must provide Birdles Digital with valid credit card details and all authorisations required for Birdles Digital to deduct Fees from that credit card in accordance with this Agreement. You must ensure that all credit card details are updated as required from time to time. By providing Birdles Digital with the credit card details, You warrant that You are authorised to charge the Fees to that credit card, and that the credit card will have sufficient credit available at all times during the Term to pay the Fees. If, for some reason, Birdles Digital is unable to deduct the Fees from the credit card, Birdles Digital will try to contact You by email and suspend Your Client Account until the Fees are paid.

Additional Fees

You acknowledge and agree that all Included Services and Included Credit expire at the end of the relevant Month and in the event that You use all of an Included Service or Included Credit prior to expiry of the relevant Month, You must add sufficient funds to Your Wallet Credit in order for the Additional Fees to be deducted from your Wallet Credit. The Additional Services will be provided upon Your Wallet being credited with sufficient Wallet Credit.

You acknowledge that Additional Fees may be incurred where You require additional services or provisions in excess of the relevant Services included with the Subscription Fee under a Package, for example, additional Bandwidth, Storage Capacity, Reports or Support Services.

You acknowledge that upon uploading Client Content to the Platform, Client Content is encoded and transcoded into multiple formats and sizes which, when stored, will be larger than the single file uploaded and count toward Your Included Storage Capacity. You must not upload any content which is not used for a Campaign.

Any additional services requested of Birdles Digital by You, such as customisation development or integration of the Platform with Your operating environment, will be invoiced to You in advance at the rates agreed between Birdles Digital and You at that time.

Intellectual Property

You acknowledge and agrees that all Intellectual Property Rights in, or associated with, the Software, the Platform and the Services are vested in Birdles Digital and, unless otherwise provided in this Agreement, no right, title or interest in the Software, the Platform or the Services (or the Intellectual Property Rights associated with the Software, the Platform or the Services) is assigned, conveyed or transferred to You or any User under this Agreement and You hereby assigns to Birdles Digital any rights it may have (now or in the future) in any Intellectual Property Rights in and to any updates, enhancements, improvements, developments and modifications to or of the Software, the Platform and the Services (or any Intellectual Property Rights arising in connection with the provision of the Services).

Except to the extent permitted by applicable Law, You must not, and must ensure that Your Personnel do not (in whole or part):

adapt, disassemble, reverse engineer or de-compile, the Software;
transfer or re-export the Software in violation of any applicable export restriction;
copy, modify, transmit, rent, lease, sub-licence, publish or otherwise exploit or distribute the Software to any person; and
apply or register or attempt to register any Intellectual Property Rights in or associated with the Software in any form or format whatsoever;
use the Software or the Services for any purpose whatsoever in breach of any law or regulation or in a manner or for any purpose or which constitutes violation or infringement of the rights of any person, firm or company (including but not limited to rights under Privacy Law and Intellectual Property Rights); and
misuse the Software by knowingly introducing viruses, trojans, worms, logic bombs or other similar malicious malware to Birdles Digital’s website.
You must immediately notify Birdles Digital upon becoming aware of any circumstances which breach, or may potentially breach, this clause 6.

Birdles Digital acknowledges and agrees that no right, title or interest in Client Content is assigned, conveyed or transferred to Birdles Digital under this Agreement and Birdles Digital hereby assigns to You any rights it may have (now or in the future) in any Intellectual Property Rights in and to any updates, enhancements, improvements, developments and modifications to or of Client Content (or any Intellectual Property Rights arising in connection with modification of Client Content).

You grant to Birdles Digital a non-exclusive, transferable, royalty-free, fully paid up licence to encode, transcode, reproduce, adapt, stream, store, copy and publish Client Content and Database, in any jurisdiction, for the term of this Agreement, to the extent necessary and for the express purpose of the provision of the Services in accordance with this Agreement.

You grant Birdles Digital the right to archive and use any Client Content if required for the purpose of a dispute, legal proceeding or investigation.

You consents to Birdles Digital referring to You as its client in its advertising and marketing materials and may use Your logo in such literature from time to time solely for the purpose of promoting Birdles Digital and its business.

Security and Privacy

You must not allow any person other than a User to access the Platform or use the Services. You acknowledge and agrees that it is responsible for all activity that occurs on the Platform in respect of Your Client Account or any User Account, irrespective of whether the User of the User Account has been authorised by You to undertake such activity, and accordingly, You must safeguard and keep records of the Users, User Accounts and Personnel to whom the login details of Client Account are disclosed. If You becomes aware of unauthorised access to Client Account or a User Account, You must immediately change the password to Client Account or User Account (as applicable) and notify Birdles Digital immediately.

You are solely responsible for ensuring that it has the relevant permissions, services and facilities required to upload Client Content to the Platform in the correct size and format. Birdles Digital is not liable for any failure, delay or fault in Client Content being uploaded to the Platform or if Client Content is unintentionally deleted from the Platform once uploaded. Birdles Digital will promptly notify the Customer if it becomes aware of any Client Content that has not been uploaded correctly, contains a bug or has been deleted and any disruptions to the upload process. You agree that You are responsible for backing up all Client Content and Birdles Digital will not be liable for any losses suffered by You as a result of Client Content no longer being available on the Platform.

You must not, and must ensure that its Personnel do not, use the Platform or the Services:

to distribute any content which contains material which is sexual, racist, defamatory, libelous, fraudulent, vulgar, discriminatory or otherwise inappropriate in nature. You acknowledge that such content will be considered to be harassment of the Customer;
to distribute content which contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorised access to any system, data, password or other information of a Customer, Birdles Digital or any third party;
to distribute any Client Content to any Customer who has not consented to receiving such Client Content;
to distribute any Client Content to any Customer whose Personal Information cannot be lawfully used by You (under statute or otherwise) for the purpose of receiving Client Content; or
in any manner which contravenes any applicable law, including without limitation, Privacy Laws and SPAM Laws or infringes the rights of a third party. Birdles Digital may charge a penalty of AUD100 per SMS or MMS for any messages that contravene the SPAM Laws.

Birdles Digital warrants that all Client Content, Databases, Product Data and any other Personal Information provided by You to Birdles Digital in the course of providing the Services will be handled in accordance with:

this Agreement, the Privacy Policy and all applicable Privacy Laws; and
the best practice administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of the data which may be audited from time to time by You upon reasonable notice.

Birdles Digital agrees to take all reasonable steps to prevent unauthorised recording, plagiarizing, editing or re-distribution of Client Content, however, You agree that Birdles Digital will not be liable for any breach of this Agreement or Liability incurred by You as a direct or indirect result of circumstances which are, in whole or part, outside of the reasonable control of Birdles Digital or to the extent that You failed to mitigate such Liability.

Subject to the confidentiality obligations under this Agreement, Birdles Digital may retain and use the anonymised Product Data for the purposes of aggregating such data with the relevant data of Birdles Digital’s other clients to generate industry benchmark or case study reports from time to time. For the avoidance of doubt, unless agreed otherwise by You, nothing in this clause 7 permits Birdles Digital to disclose any information that would identify You or any individual included in the Database, as the subject of the data included in such reports.

You acknowledge and agree that if at any time circumstances arise which would reasonably be expected to compromise the security of the Platform or the provision of the Services, Birdles Digital may suspend all or part of the Services immediately and until security has been restored. In such an event, Birdles Digital and You must use their best endeavours to resolve such issues in order to reinstate the Services at the earliest possible opportunity.

Warranties and Acknowledgements

You acknowledge and agree that:

the Services rely on services provided by third parties, including without limitation, telecommunications companies and mobile network aggregators, and Birdles Digital will not be liable for any failure or defect in the Services directly or indirectly caused by, or resulting from, a failure, defect or technical constraint relating to the services provided by a third party supplier;
the Platform may be subject to technical maintenance, Upgrades and Service Issues which may temporarily affect Your access to the Platform or the Services. Where a Service Issue affects Your access to the Product, You must immediately report this to Birdles Digital, providing sufficient information to enable Birdles Digital to resolve, or arrange for the investigation of, the Service Issue;
several factors outside of Birdles Digital’s control may affect the accuracy of the Product Data and the Reports (for example Customer responses to the Analytics Services) and that Birdles Digital makes no warranty or representation regarding the accuracy of the Product Data; and
it is Your responsibility to ensure that Client Content and the Database are uploaded to the Platform in the correct format and that Birdles Digital will not be liable for any charges incurred by You as a result of, or relating to, an error or defect in Client Content or the Database which was directly or indirectly caused by Your operating environment.

You warrant that:

You have, or will have, all rights, consents and authorisations, and has paid any applicable royalties or fees, required to upload, publish, broadcast or modify Client Content, or any part of Client Content (such as music, images or video), including the right to authorise Birdles Digital to do such things, and that the use of Client Content by You or Birdles Digital in accordance with this Agreement will not infringe upon the copyright, trademark or other rights of third parties;
You have the right and authority to enter into, and perform its obligations under, this Agreement and to use the Database for the purposes contemplated under this Agreement;
You have taken all necessary action to authorise the execution, delivery and performance of this Agreement in accordance with its terms; and
this Agreement constitutes legal, valid and binding obligations and subject to any stamping and registration is enforceable in accordance with its terms.

Birdles Digital warrants that:

the Services will be fit for the purpose of conducting Campaigns and have the performance and functionality described in Birdles Digital’s promotional, technical, operational and user materials, and any additional, related written information provided to You;
all Services provided under this Agreement will be performed in a professional manner and in conformity with the professional standards or such equivalent for comparable services in the industry;
Birdles Digital has the right and authority to enter into, and perform its obligations under, this Agreement;
Birdles Digital has taken all necessary action to authorise the execution, delivery and performance of this Agreement in accordance with its terms; and
this Agreement constitutes legal, valid and binding obligations and subject to any stamping and registration is enforceable in accordance with its terms.
You acknowledge that Birdles Digital has entered into this Agreement in reliance on the warranties given by You under this Agreement.

Other than the warranties provided in this Agreement, Birdles Digital excludes:

all express and implied warranties, terms, conditions and guarantees in relation to the Services; and
all liability for consequential or economic loss or damage which may arise in respect of the Services or otherwise in relation to this Agreement, or in respect of other equipment or property, or for loss of profit, business, revenue, goodwill or anticipated savings,

except to the extent that each may not be excluded under applicable law.

Birdles Digital’s liability under this Agreement is limited to at Birdles Digital’s option to:

re-performance of the Service again (as applicable); or
payment of the cost of having the Service re-performed again (as applicable).

Any warranty, term, condition or guarantee given by Birdles Digital which is not excluded under this Agreement will not apply if the Platform or anything relating to the provision of the Services:

has been altered, subjected to abnormal or unusual physical or electrical stress or environmental conditions, misused, or negligently handled or operated, except by Birdles Digital; or
has not been installed, operated, repaired, used or maintained in accordance with instructions made available by Birdles Digital.

Birdles Digital makes no representation that the Services will be suitable or lawful under the laws, rules or regulations of any jurisdiction or country other than Australia. You must comply with all laws, rules and regulations applicable to the country or jurisdiction applicable to its use of the Services.

You agree to indemnify, keep indemnified and hold harmless Birdles Digital and its affiliates, resellers, directors, officers, employees, and agents, from and against all Liabilities suffered in connection with, or relating to:

a claim by a third party in respect of Client Content or Your use of the Services;
a breach of Your obligations or warranties under clauses 6, 7 or 8 by You or your Personnel,

and further agree that Birdles Digital may:

suspend the Services if, and for so long as, Birdles Digital reasonably suspects that a breach of any of these provisions has occurred; or
apply for injunctive relief in any court of competent jurisdiction in addition to such other remedies available to Birdles Digital either at law or in equity in respect of a breach of any of these provisions.

Confidentiality

Each Party must not disclose any Confidential Information of the other Party other than:

to the extent necessary to enable the Party to exercise or deal with its rights or obligations under this Agreement or to conduct its business generally, provided the recipient of the Confidential Information agrees to act consistently with this clause;
to officers, employees, subcontractors, legal and other advisers and auditors of any Party or related body corporate of a Party, provided the recipient of the Confidential Information agrees to act consistently with this clause; or
with the consent of the other Party.

Termination

This Agreement may be terminated by Birdles Digital:

giving You 5 Business Days notice in writing;
immediately without notice where You have breached any term of this Agreement;
immediately without notice where are Insolvent or Client Account has been inactive for more than 12 months.

This Agreement may be terminated by You:

giving Birdles Digital 5 Business Days notice in writing; and
where Birdles Digital fails to remedy any material breach of a material term of this Agreement within 5 Business Days of receiving notice from You to do so.

Upon termination of this Agreement by Birdles Digital under clause 10(a)

(i) or by You under clause 10(b)
(ii), Birdles Digital will refund to you the pro rata proportion of the Subscription Fee paid in respect of any unexpired part of the Month and any Wallet Credits applied to Your Wallet.

Upon termination of this Agreement by Birdles Digital under clause 10(a)(ii) or 10(a)(iii) or by You under clause 10(b)(i), You acknowledge and agree that all Subscription Fees and Wallet Credits already paid are to be forfeited to Birdles Digital.

Upon termination of this Agreement for any reason, Your access to the Platform and provision of the Services will cease and all Client Content may be deleted by Birdles Digital. Birdles Digital will not be liable for any Losses suffered by You in respect of the termination of this Agreement and closure of Client Account.

Where You or Birdles Digital are delayed or inable to perform our respective obligations under this Agreement due to the existence of a Force Majeure Event, the obligations of the relevant party under this Agreement will be suspended to the extent they are affected by the Force Majeure Event from the date on which the affected party notifies the other party of the Force Majeure Event until the passing of that Force Majeure Event. A party must take all reasonable steps to minimise any disruption to, and resume, the performance of its affected obligations.

If substantially all of a party’s obligations under this Agreement are suspended by a Force Majeure Event under clause 10(f) by more than 5 Business Days, either party may elect to terminate this Agreement without penalty.

Dispute Resolution

If a Dispute arises, a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with this clause 11 except where the party seeks urgent interlocutory relief.

The Party claiming that a Dispute has arisen must give written notice to the other Party specifying the details of the Dispute (Dispute Notice).

On receipt of the Dispute Notice by the other Party (Dispute Date), the Parties must use their best endeavours to resolve the Dispute expeditiously and in good faith using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed by them.

If, within 10 Business Days of the Dispute Date (or such further period as agreed in writing by them), the Parties do not resolve the Dispute or do not agree as to:

the dispute resolution technique and procedures to be adopted;
the timetable for all steps in those procedures; and
the selection and compensation of the independent person to be engaged to conduct the dispute resolution process,

either party may request the President of the Institute of Arbitrators and Mediators Australia to nominate and appoint a mediator who is to act in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation Rules.

If the Dispute is not settled within 20 Business Days of the submission to mediation (unless such period is extended by agreement of the Parties), the Parties agree that the mediator appointed pursuant to this clause may submit the Dispute to arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Arbitration Rules.

The parties agree that:

to the extent possible, each party must continue to comply with its obligations under this Agreement until the Dispute is resolved; and
in the absence of manifest error, the decision of an arbitrator appointed in accordance with this Agreement is binding on the parties.

Miscellaneous

You must not assign or novate this Agreement, in whole or part, without obtaining the prior written consent of Birdles Digital.

The covenants, conditions and provisions of this Agreement which are intended or capable of having effect after the expiration or termination of this Agreement (including provisions relating to warranties, privacy, confidentiality, indemnities, liability and Intellectual Property) must remain in full force and effect following any expiration or termination of this Agreement.

Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a Party to this Agreement:

must be in legible writing and in English addressed and marked “urgent” as shown below:
if to the Company, to the office or postal or email address shown on the most recent written correspondence sent on behalf of the Company to a representative of You;
if to You, to the office or postal or email address shown on the most recent written correspondence sent on behalf of You to a representative of the Company; or
as specified to the sender by any Party by notice;
where the sender is a company, must be signed by an officer of the sender;

is regarded as being given by the sender and received by the addressee:if by delivery in person, when delivered to the addressee;

if by post within Australia, 3 Business Days from and including the date of postage;
if by post to an address outside Australia or from outside Australia to an address inside Australia, 6 Business Days from and including the date of postage; or
if sent by email, upon receipt of a non-automated response confirming receipt of the email,
but if the delivery or receipt is on a day which is not a Business Day it is regarded as received at 9.00 am on the following Business Day.

This Agreement is governed by the laws of New South Wales and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

If any provision of this Agreement:

is or becomes void, voidable, illegal or unenforceable in its terms; and
would not be void, voidable, illegal or unenforceable if:
1. some words were omitted; or
2. where it is capable of being read down, it were read down,
  then those words are severed and that provision will be read down accordingly (as applicable) and the rest of the Agreement will continue in full force and effect.

This Agreement embodies the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes any prior negotiation, arrangement, understanding or agreement with respect to the subject matter of any term of this Agreement. A variation of any term of this Agreement must be in writing and signed by all of the Parties.

All rights and remedies available to a party under this Agreement are cumulative and not exclusive of any other rights or remedies at Law.

Each party must do all things necessary (including executing documents) to give full effect to this agreement and the transactions contemplated by this Agreement.

Time is of the essence in this Agreement.

Definitions & Interpretation

Definitions

Capitalised terms in this Agreement are defined as follows:

Additional Fees means the fees payable in respect of Additional Services, including without limitations, Usage Fees, Report Fees, Support Fees, Storage Fees and Bandwidth Fees;

Additional Services means any Services which are not Included Services;

Analytics Services means the compilation and generation of the Product Data and Reports by the Software which is delivered to You via the Platform;

Bandwidth means that amount of data which can be used to stream Client Content;

Bandwidth Fees means the fees to be paid by You to Birdles Digital in respect of Bandwidth usage in excess of the Included Bandwidth under a Package, as described at [insert link to Pricing/ Package details page];

Bonus Usage Credits means the bonus credit provided on the Commencement Date which may only be applied against Usage Fees;

Business Day means a day which is not a Saturday, Sunday, bank holiday or public holiday in Melbourne, Victoria;

Campaign means the distribution of Client Content to the Database via the Platform;

Claim means, in relation to a party, a demand, claim, action or proceeding made or brought by or against that party, however arising and whether present, unascertained, future or contingent.

Client Account means Your account for Services with Birdles Digital;

Client Content means the video or text content uploaded by You to the Platform in accordance with this Agreement;

Combined Credit means the aggregate of any Included Credit and any Wallet Credit from time to time;

Commencement Date means the date of this Agreement;

Communications Services means the following services provided via the Platform:

the uploading, encoding and transcoding of video content and the distribution via SMS, email, MMS &/or QR codes of messages to the Database, which may include the video content, documents, images and text content; and
access to proprietary software for the creation of custom micro-websites and forms for distribution to the Database;

Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible 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 and includes, without limitation, any information (including Regulated Information) and material concerning the contractual or commercial dealings, financial details, products or services (current or proposed), customers, employees, internal policy, the Intellectual Property Rights of a party or dealings under this Agreement, but does not include information or material which:

is already in the public domain, or enters the public domain other than due to a breach of this Agreement;
can be proven to be already known by the receiving party other than through any disclosure under this Agreement; or
obtained from a source other than the disclosing party or any of its Related Members or authorised representatives, where that source is entitled to disclose it without an obligation of confidence.

Customer means each person who is included in the Database;

Database means the database of mobile phone numbers, email addresses or other contact details relating to the Customers which are to receive Client Content distributed via Communications Services;

Fees means the Subscription Fees, Additional Fees and PAYG Fees as applicable;

Force Majeure Event includes the following events beyond the reasonable control of a party:

act of nature;
war or terrorism;
national emergency;
epidemic;
change of legislation, regulation, legal process or access to facilities, infrastructure or information controlled by a third party relating to the supply of the Services in any particular state, country or territory which may (in the opinion of the non-performing party, acting reasonably) materially adversely affect the supply or use of the Platform or Services; or
other cause similar to the events described in this definition and beyond the reasonable control of the non-performing party,
act or inaction of government or regulatory agency; and
industrial action outside that party’s own workforce.

Hosting Services means the hosting and storing on, and streaming from, Birdles Digital’s servers of Client Content in accordance with this Agreement;

Included Bandwidth means the amount of Bandwidth with the payment of the Subscription Fee under a Package, as described at [insert link to Pricing/ Package details page];

Included Credit means the credit to be applied as a Wallet Credit each Month as part of the Subscription Fee under a Package (including the Bonus Usage Credit);

Included Reports means the Reports included with the payment of the Subscription Fee under a Package, as described at [insert link to Pricing/ Package details page];

Included Services means the Services included with the payment of the Subscription Fee under a Package, as described at [insert link to Pricing/ Package details page];

Included Storage Capacity means the amount of storage for Client Content included in the Package, as described at [insert link to Pricing/ Package details page];

Included Support means the Support Services included with the payment of the Subscription Fee under a Package, as described at [insert link to Pricing/ Package details page];

Included User Accounts means the number of User Accounts included with the payment of the Subscription Fee under a Package, as described at [insert link to Pricing/ Package details page];

Insolvent means an event by which a party is:

declared bankrupt;
rendered insolvent;
placed in or under receivership, receivership and management, liquidation or official management or administration;
wound up or a resolution is made for the winding-up;
made subject to any arrangement, assignment or composition (otherwise than as a result of voluntary corporate reconstruction); or
subject to any other event that has similar effect to any of the events described in (a) to (e) in this definition.

Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semi conductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world. Intellectual Property has a corresponding meaning;

Invoice means an invoice issued by Birdles Digital to You in respect of amounts owing to Birdles Digital under this Agreement;

Law means any principle in common law or equity and any requirement under any legislation, rule, instrument, code of practice, ordinance or by law, present or future;

Liabilities means Claims, losses, damages, liabilities (direct and indirect), costs or expenses of any kind and however arising, including legal costs (on a full indemnity basis), 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.

Minimum Term means the period commencing on the Commencement Date and expiring after the time period set out in Item 3 of the Schedule;

Month means each calendar month during the Term;

Monthly Packages means a Package under which You pay a Subscription Fee for the provision of the Included Services, the details of which are further described at [insert pricing link];

Package means a Monthly Package or PAYG Package purchased by You from time to time, the details of which are further described at [insert pricing link];

PAYG Fees means the fees payable in respect of the Services provided on the basis of a PAYG Package, the details of which are further described at [insert pricing link];

PAYG Packages means a Package under which you pay for Services as you use them, the details of which are further described at [insert pricing link];

Personal Information has the meaning in the Privacy Act.

Personnel of a party means officers, employees, agents and contractors of that party.

Platform means the online video platform accessible at www.Birdles Digital.com or cm.Birdles Digital.com and related domains, mobile applications, Application Programming Interfaces, webservers and desktop applications, which enable You to receive the Services;

Privacy Law means any Law, Australian or otherwise, which affect privacy or any personal information (including its collection, storage, use or processing) including:

the Privacy Act 1988 and includes any guidelines issued by the Office of the Australian Information Commissioner and corresponding Australian State privacy Laws; and
any codes of conduct, directives, principles or orders made under the legislation referred to in (a) above;
Privacy Policy means Birdles Digital’s privacy policy which can be found at https://cm.Birdles Digital.com/general/privacy;

Product Data means the data produced from the Analytics Services and delivered to You via the Platform or included in a Report in respect of various metrics relating to a Campaign, including without limitation, the number of views of Client Content, consumer response to, and behaviour in respect of, a Campaign, responses to surveys or registration forms or other calls to action included in a Campaign;

Regulated Information means all Personal Information and any other information or opinion, whether true or untrue, and whether or not recorded in material form, about any entity other than an individual which a party received or has access to under, or for the purpose of or in the course of carrying out its obligations under this Agreement;

Related Member has the meaning of ‘related body corporate’ as that term is defined in the Corporations Act 2001 (Cth);

Report means a report generated by the Software in respect of various Product Data;

Report Fees means the fees to be paid by You in respect of a Report or Analytic Services requested during the Term;

Service Issue means any failure, error or defect in the provision of the Services by, or on behalf of, Birdles Digital but excludes failures, errors or defects arising from, caused by or contributed to by Your acts or omissions or third parties acting on Your behalf including other providers of telecommunications, computers or other equipment or services (including internet services) or any failure, error or defect arising as a result of causes beyond the reasonable control of Birdles Digital;

Services means the services provided by Birdles Digital via the Platform from time to time, including without limitation, the provision of access to the Platform and use of the Software, the Hosting Services, the Analytics Services and the Communications Services;

Support Fees means the fees to be paid by You in respect of Support Services requested which is not Included Support as detailed at [insert link to page detailing support fees];

Support Services means the support provided by Birdles Digital to You in regard to Your use of the Services;

Software means the software program owned and used by Birdles Digital to provide the Services;

SPAM Laws means any Law, Australian or otherwise, which affect commercial electronic messages (including content, distribution and the rights of recipients) in the country or jurisdiction in which the Communications Services are to be received by a Customer, including without limitation:

the SPAM Act 2003 and includes any guidelines issued by the Australian Communications and Media Authority (or other governing body); and
any codes of conduct, directives, principles or orders made under the legislation referred to in (a) above;
Storage Fees means the fees charged by Birdles Digital in respect of the storage of Client Content in excess of the Included Storage Capacity under a Package, as described at [insert link to Pricing/ Package details page];

Subscription Fee means the subscription fee payable in respect of the Included Services provided under a Package;

Taxes means all taxes, charges, duties, levies, fees and other government imposts levied, assessed or collected, including any related fine or penalty (excluding GST);

Tax Invoice has the meaning given by the GST Law;

Term means the period from the Commencement Date until termination of this Agreement in accordance with clause 10;

Upgrade means any enhancement or improvement to the Software, functionality of the Platform or the Services which may be made available to You as and when they are released;

Usage Fees means the fees and costs to be paid by You in consideration for the provision of the Communications Services under the Package, as described at [insert link to Pricing/ Package details page];

User means each Personnel of You nominated by You to have a User Account;

User Account means a sub-account under Your Account through which a User is authorised to access and use the Services in accordance with this Agreement;

Birdles Digital means Birdles Digital Pty Ltd ABN 60655532620

Wallet means Your pre-paid account with Birdles Digital in which the Wallet Credit is held;

Wallet Credit means the amount of funds applied to Your Wallet.

Interpretation

Headings are for convenience only and do not affect interpretation.
The singular includes the plural, and vice versa.
Mentioning anything after includes, including or similar expressions, does not limit what else might be included.

A reference to:

a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
a clause, schedule, annexure or exhibit is a reference to a clause of or a schedule, annexure or exhibit to this Agreement;
an agreement or document is a reference to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document;
a party to this Agreement or another agreement or document includes the party’s successors, permitted substitutes and permitted assigns (and, where applicable, the party’s legal personal representatives);
legislation or to a provision of legislation includes a modification or re enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
dollars and $ is to Australian currency; and
notice is to notice in writing (including any visible means of reproduction of words in a tangible or permanently viable form).