Terms of service

Birde Terms and Conditions
Your Acceptance
Birde Pty Ltd (ABN 98620907315), is referred in these Terms and Conditions as “Birde”. Reference to “You” and “Your” means the user of products or software made by or provided by Birde.
Access to and use of any Birde software or product (collectively, the "Services") are subject to the following terms, conditions and notices (the "Terms of Service"). By using the Services, you have read, understood and are agreeing to all of the Terms of Service, which may be updated, suspended or terminated by Birde without notice at Birde’s absolute discretion. You should check this page regularly to take notice of any changes we may have made to the Terms of Service.
You can accept the Birde Terms of Service by creating a new account or by clicking "accept" or "agree" to the Terms of Service where the option is available. If you do not agree with these Terms of Service you must not create an account with birde and/or cease using our services.
The Service
This Agreement governs your use of Birde’s Services, through which you can purchase media, physical tokens/objects we call Seeds or Birde products such as the Birde Console (collectively, “Products”). Our Services are available for your use in your country of residence (“Home Country”). To use our Services, you must use only compatible hardware and/or software provided by birde and provide access via a high-speed Internet connection over WiFi. Our ability to provide a reliable service may be affected by these factors which are out of our control.
Services may contain links to third-party websites that are not owned or controlled by Birde, subsequently, Birde does not have any control over or assumes no responsibility for the content, privacy policies or practices of third party websites or apps. Birde cannot censor or edit the content on third-party site. By using this service you expressly relieve Birde from any and all liability arising from your or your child's use of any third-party websites or services.
Terms of Service apply to all users of the Service including users who are also contributors of the content of the Service. The Service includes all aspects of Birde including but not limited to Products (ie Birde Console and Seeds), Software and Services offered on website or app.

Registration, Accounts & Passwords
Aspects of our Services may require you to register for Birde Services (a “Birde Account”), for which you must provide accurate & complete information and be over 18 years of age.
You are solely responsible for maintaining the confidentiality and security of your Birde Account. Birde is not responsible for any losses arising from the unauthorized use of your Birde Account.
During registration, or to purchase items through Birde Services you may be required to provide personal information which may include any of the following:

• Email address
• A postal address
• A telephone number
• A password
• Auth or single sign-on Account

Any use of your Account by any other person or third parties is strictly prohibited and may result in Account termination. Please contact Birde immediately if you believe your Account may have been compromised.
Your Birde Account can be terminated at any time by contacting us, however, this will result in loss or removal of Media associated with your Birde Account. Access to purchased media and playback on your Birde console may also be affected.
In Holding an account you agree to the Terms of Service. Birde reserves the right to terminate or block accounts at any time.

Purchasing Content / Pricing
Purchasing Products on our Services is referred to as a “Transaction.” Each Transaction is an electronic contract between you and Birde.
In using the Services to purchase Products you agree to payment of the purchase price listed on the Service for the Product (the “Purchase Price”)
We take all reasonable care to ensure that all details and prices of Products on the Birde Services are correct at the time of online publication. However, we reserve the right to correct any publishing errors on the Service and cancel orders made at the incorrect price. This includes disabling Products if items have already been shipped
Payment and transaction of the Purchase Price is made through Shopify (the 'Payment Gateway Provider'). In using the Purchase products and services, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by the Payment Gateway Provider.
Birde will charge your payment method (such as your credit card, debit card, gift card/code) for any paid Transactions, including any applicable taxes or shipping costs if applicable.
Following payment of the Purchase Price being confirmed by Birde, you will be issued with a receipt to confirm that the payment has been received and Birde may record your purchase details for future use.
All Content purchased from birde is provided to you the customer via an EST (electronic sell-through) model whereby all purchased content is owned and usable by you, the customer within the range of product and service offered by birde.
Acceptable use limits are applied to each family account and/or each individual account. Within a 1 month period, each account can not exceed 100mb of stored content and can not exceed 15gb of downloaded data monthly. Birde may at any time decide to review, modify or further restrict these acceptable usage limits.
By purchasing content or services from birde you agree to our acceptable use limits described herein and warrant termination of any services if deemed by birde to exceed our acceptable use policy.

Shipping & Delivery
You acknowledge that the Services offered by Birde integrate delivery through the use of third party delivery companies (the 'Delivery Service Providers').
In providing the Purchase Services, Birde may provide you with a variety of delivery and insurance options offered by the Delivery Service Providers. You acknowledge and agree that Birde is not the provider of these delivery and insurance options and merely facilitates your interaction with the Delivery Service Providers in respect to providing the Delivery Services.
After the order is placed, an email will be sent confirming shipping and tracking information (if available) along with approximate delivery time (if available). Note that after the purchase has been completed the order cannot be modified. This is not a guarantee of availability.
In the event that an item is lost or damaged in the course of the Delivery, Birde asks that you:
contact the Delivery Service Provider first to determine cause of any failure of delivery or to claim any insurance options available
If you are not satisfied with this resolution contact birde by sending an email outlining the problem or if products were damaged in transit so we are able to determine a suitable resolution.
If delivery issues have been found or there was an unreasonable delivery delay of your order, your exclusive and sole remedy is either replacement of the order or refund of the price paid as determined by Birde to the extent permitted by law. Your statutory rights are not affected.
From time to time, Birde may refuse a refund request if we find evidence of fraud, refund abuse, or other manipulative behavior that entitles Birde to a corresponding counterclaim.

Usage Rules
Your use of the Services and Products must follow the rules set forth in this section (“Usage Rules”). Any other use of the Services and Products is a material breach of this Agreement. Birde may monitor your use of the Services and Products to ensure that you are following these Usage Rules. The Usage Rules do not modify, restrict or exclude any additional rights you may have under applicable laws that cannot be so modified, restricted or excluded.
You acknowledge that all Products that you order through Birde are intended for personal, domestic, non-commercial use. Any use in a commercial setting requires prior written approval from birde
You may not tamper with or circumvent any security technology included with the Services or Products which includes duplication of content.
You may not modify our Services or use modified versions of such Services
Video Content requires a stable WiFi connection and a stable connection to the internet with a minimum of 10mbs / second. Birde does not guarantee reliable video or audio playback due to an unreliable internet connection.
Video and Audio streaming may incur additional fees from your ISP. Birde recommends you check your data usage regularly as Birde does not take responsibility for your usage.
Birde reserves the right to cancel these Services at any time and will not be held responsible for any damage which may occur to your hardware from usage of these Services

Using Content
Birde’s delivery of Content is delivered as is and does not transfer any promotional use rights to you, and does not constitute a grant or waiver of any rights of the copyright owners.
Content may not be copied, reproduced, duplicated, made available online, published or broadcasted.
Intellectual rights for content, software & systems owned or licensed to Birde or Birde services (including logos, images, names, designs, trademarks and copyright materials) are the property of Birde or Its licensors or partners.

Contributing Content
As a Birde account holder you may submit Content to the Service, including images and audio recordings. You understand that Birde does not guarantee any confidentiality with respect to any Content you submit. For this reason we do not encourage submitting photos or images of your Family to our Services.
You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit.
You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Birde all of the license rights granted herein.
Content submitted must not contain nudity or sexual content, harmful or dangerous content, violent, hateful or graphic content. Birde reserves the right to terminate accounts at any time in breach of these conditions.
Your submitted content will only be visible to yourself and other members of the Family Account. Birde will not sell, duplicate or publish your content without permission from you.

Copyright & Intellectual Property
The Services and all of the related products of Birde are subject to copyright. The material on these Services is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the site content and compilation of the Services (including text, graphics, logos, button icons, video images, audio clips and software) (the 'Content') are owned or controlled for these purposes, and are reserved by Birde or its contributors.
Birde retains all rights, title and interest in and to the Website and all related content. Nothing you do on or in relation to the Services will transfer to you:
the business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright of Birde;
the right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or
a system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a system or process).
You may not, without the prior written permission of Birde and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party content for any purpose. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.

Privacy
Our privacy policy, which sets out how we will use your information, can be found at https://birde.co/privacy. By using this service, you consent to the processing of information as described therein and warrant that all data provided by you is accurate.

Warranty

Birde Guarantees physical products against defects caused by faulty workmanship and materials for 24 months from date of purchase. During this Guarantee period Birde will repair or replace your Birde if it’s found to be defective. In the event of a product being replaced during the Guarantee, the Guarantee on the replacement will expire on the original date i.e., 24 months from the original date of purchase
This Guarantee excludes defects caused by the product not being used in accordance with instructions, accidental damage, misuse or being tampered with by unauthorised persons. Additionally, Birde does not Warrant Console Playback will be without interruption or without error due to internet connection. If Warranty is to be pursued we will need your name, contact information (including telephone) and explanation of failure. You will also need to provide proof of purchase. Without this proof any work carried out pursuant to the Birde Guarantee and any associated delivery charges (both to and from us) will be at your cost, subject to applicable statutory rights as a consumer.
If failure or fault occurs, and you would like to make a claim under the Birde Guarantee Warranty please contact our Customer Service Centre by following the links at https://birde.co/contact-us.
In Australia your Birde Console comes with statutory guarantees that cannot be excluded under Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have your Birde Console repaired or replaced if it fails to be of acceptable quality and the failure does not amount to major failure.

Limitation of Liability
Birde's total liability arising out of or in connection with the Services or these Terms of Service, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the Purchase Price paid by you under these Terms of Service or where you have not paid the Purchase, then the total liability of Birde is the resupply of information or Services to you.
You expressly understand and agree that Birde, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
Birde is not responsible or liable in any manner for any purchased content (including the Content and Third Party Content) posted on the Website or in connection with the Purchase Services, whether posted by third parties or any of the Purchase Services offered by Birde.
You acknowledge that Birde does not provide the Delivery Services to you and you agree that Birde will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Delivery Services.
Indemnity
you agree to indemnify, defend and hold harmless birde and its parent, affiliates, officers, directors, partners, contractors, licensors, sub contractors, suppliers, and employees, harmless from any demand or claim, including attorney fees, made by any third_party from your breach of our terms of service or violation, or your violation of any law or rights of a third party.
Ability to Accept Terms of Service
You affirm that you are more than 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service.
We provide these Terms of Service with our Service so that you know what terms apply to your use. You acknowledge that we have given you a reasonable opportunity to review these Terms of Service and that you have agreed to them.
Termination of Contract
The Terms of Service will continue to apply until terminated by either you or by Birde as set out below.
If you want to terminate the Terms of Service, you may do so by:
notifying Birde at any time; and
closing your accounts for all of the Services which you use, where Birde has made this option available to you. Your notice should be sent, in writing, to Birde via the 'Contact Us' link on our homepage.
Birde may at any time, terminate the Terms of Service with you if:
you have breached any provision of the Terms or intend to breach any provision;
Birde is required to do so by law;
the partner with whom Birde offered the Services has terminated its relationship with Birde or ceased to offer the Services to you;
Birde is transitioning to no longer providing the Purchase Services to Users in the country in which you are resident or from which you use the Service; or
the provision of the Services to you by Birde is, in the opinion of Birde, no longer commercially viable.
Subject to local applicable laws, Birde reserves the right to discontinue or cancel your membership to the Services at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Services without notice if you breach any provision of the Terms of Service or any applicable law or if your conduct impacts Birde's name or reputation or violates the rights of those of another party.
When the Terms of Service come to an end, all of the legal rights, obligations and liabilities that you and Birde have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.

General
These Terms of Use will be governed by and construed in accordance with the laws of the State of New South Wales which shall have exclusive jurisdiction over any disputes. If for any reason a court of competent jurisdiction finds any provision or portion of these Terms of Use to be unenforceable, the remainder of these Terms of Use will continue in full force and effect.
You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Services. Your use of the Services may also be subject to other laws. Risk of loss for all electronically delivered Transactions pass to the acquirer upon electronic transmission to the recipient. No Birde employee or agent has the authority to vary this Agreement.
Birde may notify you with respect to the Services by sending an email message to your email address or a letter via postal mail to your mailing address, or by a posting on the Services. Notices shall become effective immediately. Birde may also contact you by email or push notification to send you additional information about the Services.
You hereby grant Birde the right to take steps Birde believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that Birde has the right, without liability to you, to disclose any data and/or information to law enforcement authorities, government officials, and/or a third party, as Birde believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement? (including but not limited to Birdie's right to cooperate with any legal process relating to your use of the Services and/or Content, and/or a third-party claim that your use of the Services and/or Content is unlawful and/or infringes such third party's rights).
Policy revision 2 (14th August 2019)