EARLY BIRDS TERMS AND CONDITIONS
THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS ("TERMS") ON WHICH EARLY BIRDS MARKETPLACE PTY LTD (HEREINAFTER REFERRED TO AS "COMPANY"), A DULY REGISTERED COMPANY (ACN: 634599081), OFFERS YOU ACCESS TO ITS SERVICES. PLEASE READ THIS AGREEMENT CAREFULLY.
As a condition of your participation in the Company’s services (the "Services"), you (hereinafter "You" or "User") agree to abide by the Terms and Conditions herein ("Terms" or "Agreement").
By accessing the pages or the information contained on the Company web site located at https://www.earlybirds.io ("the Site" or "our Site") or Mobile App through any device or service, or by using the Service in any manner, You agree to be bound by the following Terms. You may review this Agreement at any time by clicking on the Terms and conditions link at the bottom of any page. In addition, if You visit any of our partners’ web sites or arrive at our Site through one of our many partners’ web sites, You may also be subject to the terms and conditions of that web site.
1. Modifications of Terms: Company reserves the right to make changes to the Site, this Agreement, or the policies incorporated herein by reference. Company will email you or post a conspicuous notice on the Site in the event of any material revisions to this Agreement. Your continued use of our Site after those revisions become effective will signify Your acceptance of those revised Terms.
2. Membership / Access Eligibility: Our Service is available only to individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our Service is not available to minors (as defined by the applicable laws) or to temporarily or permanently suspended members of Company. If You do not qualify, please do not use our Services. Additionally, Company reserves the right to refuse access to, or use of our Site to anyone, at anytime, in its sole discretion.
3.1 Registration / Your Account: You may browse the Site for free and without registering. However, You must register on the Site ("Registration") to use our Services or buy/sell products and services. During Registration You will be asked to provide information such as Your name, address, telephone number and email address. You will also be asked to create an account consisting of a User ID and password ("Your Account") to identify yourself in future visits to the Site. It is YOUR responsibility to maintain the confidentiality of Your User ID and password and You agree to accept responsibility for all activities that occur under Your Account. You may not transfer, assign or sell Your Account (including rating and feedback) to any third party.
3.2 Fees and Charges: Joining Company is free; however, Company charges fees, such as subscription, commission etc, for various Services offered through the Site.
You agree that You are responsible for paying all fees, including any and all applicable sales, income, excise, import, export and other taxes or duties associated with using our Service and the Site.
3.3 Credit Card Billing: Company will not charge Your debit or credit card unless You conduct an activity on our Site that has a fee associated with it. Before incurring fees, You will have an opportunity to review and accept the fees that You will be charged for the use of our Services. By agreeing to a transaction with a fee, You authorise us to charge your credit card or otherwise bill Your Account for such fees.
3.4 Processing Fees: Certain purchases made through Company may be subject to a non-refundable per item processing fee.
We reserve the right to change or discontinue, temporarily or permanently, some or all of our Services at any time with or without notice. In the event we introduce a new service, the fees for that service are effective at the launch of the service. We may also choose to temporarily lower the fees for our Services for promotional events (for example, free listing days), and such changes are effective when we post information about the promotional event on the Site. Additionally, we may change our Fee Policy and the fees for our Services at any time and in our sole discretion. Except for the foregoing fee changes, our changes to the Fees Policy are effective after we post the changes on our website.
4. Company is only a Venue: Our Site acts as an open marketplace for users to buy, sell, bid and negotiate the purchase and sale of products and services with other users. Company only provides a service and is not involved in any transaction between buyers and sellers who use our Site. There are risks that You assume when dealing with online users or those who may be acting under false pretenses. You agree that all of these risks are borne by You, and not Company. Company does not control the behaviour of users on the Site or the information provided by other users that is made available through our Site. As a result, Company does not guarantee or endorse the authenticity, quality, safety, or legality of any items offered or sold, the truth or accuracy of any listings, or the ability of sellers to sell items or of buyers to buy items. We cannot assure that all transactions will be completed. Additionally Company does not guarantee the ability or intent of users to fulfill their obligations in any transactions.
FOR EVERY TRANSACTION THAT IS COMMENCED THROUGH OUR SITE, YOU MUST MAKE YOUR OWN INDEPENDENT DETERMINATION REGARDING THE STATEMENTS, PRODUCT DESCRIPTIONS OR THE REPRESENTATIONS OF THE OTHER PARTY AND THE PARTY’S ABILITY TO PAY FOR OR DELIVER THE GOOD(S)/SERVICES OFFERED. PLEASE USE CAUTION, COMMON SENSE, AND PRACTICE SAFE TRADING WHEN DEALING WITH OTHER USERS OR OTHERWISE USING THE SITE!
5. Safe Trading: Because user authentication on the Internet is difficult, Company cannot and does not confirm each user’s purported identity. Thus, we have established a feedback system to help You evaluate the user with whom You are dealing. We also encourage You to communicate directly with potential buyers or sellers through the features available on our Site.
6. Selling: You must have the legal authority to sell the goods that You are offering for sale on our Site. You must describe Your item and all terms of sale in Your listing. If You accept an offer, You are obligated to complete the transaction with the other party unless (i) the transaction is prohibited by law or this Agreement, or (ii) the buyer materially modifies the terms and conditions of the buyer’s offer. You are also responsible for payment of the transaction fees including Site commission. An offer to sell may be retracted at any time prior to its acceptance.
7. Buying: If You make an offer and the offer is accepted (or You use our Buy It feature), You are obligated to complete the transaction with the other party and to be bound by the terms and conditions specified by the seller, unless (i) the transaction is prohibited by law or this Agreement, (ii) the seller materially changes the item’s description or the item does not conform to the seller’s description, or (iii) a typographical error exists in the offer information which materially affects the terms of sale. An offer to buy may be retracted for any reason at any time prior to acceptance by the seller.
8. Delivery and returns: Delivery and returns are guaranteed only by using registered and insured carriers. Buyers shall enquire with the insured carrier if delivery has failed or product damaged in transit. All items shall be returned using registered and insured carriers only. Any seller or buyer agrees that any parcel, package for consignment can be opened by any state customs authority to check content. We do not accept any loss, cost or otherwise associated with any customs authority carrying out their legal duties. Parties should at all times comply with all Health and Safety regulations and laws.
9. Cooling off periods: Sellers agree to conform to any law governing cooling off periods in any country or state that the buyer is located. Any returns complying with cooling off period laws shall be refunded in-full. The buyer agrees to pay full cost of the delivery of products received, and pay full cost of returned products using carrier, all returns will be recorded and insured, if you fail to register and insure the return delivery you will bear the full cost of the delivery and product for failed or non-delivery and cover full cost for product in the event of any loss or damages.
Warranties: you agree product warranties supplied by manufacture and sellers, details of warranties and clauses are to be supplied and adhered to at all time, any use of print media, upgrade or repair service not approved by the manufacture or supplier for that product will void any product warranty.
10. User Information: "User Information" is defined as any and all information or data You provide to Company or other users during the Registration, offer, sale or user ranking process, and through any interactive feature of the system, including email. You represent and warrant that Your User Information (i) is not false, inaccurate, incomplete or misleading; (ii) is not fraudulent and does not involve the sale of counterfeit or stolen items; (iii) does not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (iv) does not violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (v) is not defamatory, libelous, unlawfully threatening or unlawfully harassing; (vi) is not obscene and does not contain child pornography; (vii) does not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (viii) does not create liability for Company nor cause Company to lose (in whole or in part) the services of our ISPs or other suppliers; and (ix) does not link directly or indirectly to another web site. Furthermore, You may not list any item on our Site (or consummate any transaction that was initiated using our Service) that, by paying to us the listing fee or the final value fee, could cause us to violate any applicable law, statute, ordinance or regulation, or that violates our current listing restrictions. You agree not to make use of any other user’s User Information other than as necessary to complete any transactions in which You and the subject of the User Information are involved.
12. Use Restrictions: Our Services may be used only for lawful purposes. Transmission, posting, distribution or storage of material or conduct in violation of any applicable local or foreign law or regulation is strictly prohibited. This includes without limitation any unauthorised use of material protected by patent, copyright, trademark or other intellectual property right, material that is obscene, defamatory or libelous, constitutes an illegal threat, violates rights of privacy or publicity or violates export control laws. You agree to comply with any applicable laws, statutes, ordinances and regulations ("Laws") regarding Your use of the Site and our Services and the contractual obligations related to Your buying and selling activities. You agree not to use the Site in any manner that violates, or proposes a transaction which, if consummated, would violate any Laws, expose Company to civil or criminal liability, or violates this Agreement. You agree that You are solely responsible for obtaining all necessary licenses and permissions necessary for Your transactions and for verifying that other Site users with whom You transact do the same. You agree that You will not use any information on our Site or any information You learn about any buyer, seller or other user for any purpose whatsoever beyond those necessary to complete transactions on our Site. Any action designed to undermine the system and to alter Your user profile or the profiles of others is strictly prohibited. You further agree that you will not use any robot, spider or other automated device, process or means to access the Site, and that you will not otherwise engage in any copying of the Site for any commercial purpose.
14. Compliance with Intellectual Property and Rights of Publicity Laws: You agree not to link to any third party’s web site or any file or data on a third party web site without that third party’s permission. You agree that You will not use any automatic or manual process to monitor or copy any portion of the Site without Company’s prior written permission. You agree not to use the Site in any manner which violates, or proposes a transaction which, if consummated, would violate the trademark, copyright, patent, trade secret, trade dress, publicity or privacy rights or other proprietary rights of Company or any third party. When accessing the Site or using Company’s services, You agree to obey the law and to respect the intellectual property rights of others. Your use of the Site is at all times governed by and subject to applicable Australian, and International law regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit or otherwise distribute any information, content, goods or merchandise in violation of any third party’s copyrights, trademarks or other intellectual property or proprietary rights. You agree to abide by such laws regarding copyright ownership and use of intellectual property, and You shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any information, content, goods or merchandise You provide, transmit, distribute or sell, or that is provided, transmitted, distributed or sold using Your User ID. The sale of unauthorised, counterfeit or replica products is prohibited, and the use of a third party’s trademark in connection with non-genuine goods is prohibited. The burden of proving that any User Content does not violate any laws or their party rights rests solely with You. If You are identified as selling unauthorised goods, Company reserves the right to disclose Your identity and contact information (including any aliases or alternate IDs or email addresses that You may have previously used) and credit card information, upon request of the intellectual property rights owner, and to assist in any prosecution. This disclosure may be made without notice to You. View our Copyright Policy. Company’s Copyright Policy is expressly incorporated into this Agreement by this reference.
16. Use of Software: Company may make certain software available to You from the Site. If You download software from the Site, the software, including all files and images contained in or generated by the software, and accompanying data (collectively, "Software") are deemed licensed to You by Company, for Your personal, noncommercial, home use only. such download does not transfer either the title or the intellectual property rights to the Software, and Company retains full and complete title to the Software as well as all intellectual property rights therein. You shall not sell, redistribute, or reproduce the Software, nor shall You decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form. All trademarks and logos are owned by Company or its licensors and You shall not copy or use them in any manner.
17. Waiver of Claims: By using the Site, the Software or Company’s services, You signify Your agreement to and do thereby waive all claims which have not been filed but may have accrued against Company or its officers, directors, employees, agents, parents, subsidiaries, partners and affiliates prior to or as of the date of said posting, regardless of the gravamen of the action, whether in law or equity, and such claims are forever barred.
18. DISCLAIMER OF WARRANTIES: YOU AGREE THAT USE OF OUR SERVICE IS AT YOUR SOLE RISK. THE SITE AND OUR SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT WARRANTY OR CONDITION OF ANY KIND. COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND NONINTERFERENCE WITH YOUR ENJOYMENT OF THE SITE OR SERVICES. COMPANY MAKES NO WARRANTY THAT THE SERVICE WILL SATISFY YOUR REQUIREMENTS, OR THAT OUR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE, OR VIRUS FREE. NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR OUR SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE. YOU UNDERSTAND AND AGREE THAT OBTAINING ANY INFORMATION OR MATERIAL AND/OR GOODS OR SERVICES THROUGH THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM ANY TRANSACTION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE SITE OR SERVICES SHALL CREATE ANY WARRANTY. NOT EXPRESSLY STATED HEREIN.
19. LIMITATION OF LIABILITY: IN NO EVENT SHALL COMPANY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, PARTNERS AND AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, (HOWSOEVER ARISING, INCLUDING BUT NOT LIMITED TO DAMAGES FOR NEGLIGENCE OR FOR CAUSE), INCLUDING BUT NOT LIMITED TO, DAMAGES FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, RESULTING FROM OR IN CONNECTION WITH (I) OUR SITE, SERVICES OR THIS AGREEMENT, (II) THE RECEIPT OF DATA, INFORMATION OR MESSAGES, (III) TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE OR SERVICES, OR (IV) UNAUTHORISED ACCESS TO OR ALTERATION OF USER’S TRANSMISSIONS OR DATA, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY, OR THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICES, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE, LOSS, OR CAUSE OF ACTION EXCEED THE AMOUNT PAID TO THE COMPANY.
20. Affiliated Sites: Company has no control over, and no liability for any third party websites or materials. Company may work with a number of affiliates whose Internet sites may be linked with the Site. Because neither Company nor the Site has control over the content and performance of these partner and affiliate sites, Company makes no guarantees about the accuracy, currency, content, or quality of the information provided by such sites, and Company assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites. Similarly, from time to time in connection with Your use of the Site, You may have access to content items (including, but not limited to, websites) that are owned by third parties. You acknowledge and agree that Company makes no guarantees about, and assumes no responsibility for, the accuracy, currency, content, or quality of this third party content.
21. Prohibited Uses: Company imposes certain restrictions on Your permissible use of the Site. You are prohibited from violating or attempting to violate any security features of the Site, including, without limitation, (i) accessing content or data not intended for You, or logging onto a server or account that You are not authorised to access; (ii) attempting to probe, scan, or test the vulnerability of the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (iii) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site, overloading, “flooding”, “spamming”, “mail bombing”, or “crashing”; (iv) using the Site to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (v) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; or (vi) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Company in providing the Site. Any violation of system or network security may subject You to civil and/or criminal liability.
22. Your Indemnity: You agree to defend, indemnify and hold Company and (as applicable) its officers, directors, employees, agents, parents, subsidiaries, partners and affiliates harmless against any and all claims made by or liability to any third party resulting from any activities conducted under Your Account, Your use or misuse of the Site, including, but not limited to, posting content on the Site, entering into transactions with other Site users, contacting others as a result of their posting(s) on the Site, infringing a third party’s intellectual property or other rights, failing to deliver goods or payment to other Site users or otherwise arising out of Your breach of any Terms of this Agreement.
23. Release: Because we are not involved in the actual transaction between buyers and sellers, in the event that You have a dispute with one or more users, You release Company and (as applicable) its officers, directors, employees, agents, parents, subsidiaries, partners and affiliates from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes
24. Dispute Resolution: We encourage our Sellers and Buyers to try and resolve any disagreements between themselves. However, if we have to step in and make a resolution decision on behalf of both parties We will do so within seventeen (17) working days. If a mutual resolution has already been agreed between both parties, then the dispute will either be cancelled or resolved in line with the mutual agreement. In the process of resolving the dispute, We will use only the communication in the platform as sole evidence, and consider:
• if both parties are acting in good faith and have tried to resolve the issue between themselves before contacting us, including at least a second attempt made between both parties to complete or rectify the project; and
• if the item was sent by Seller and item received by Buyer.
25. Arbitration: Company is not liable under this Agreement for any injury You may suffer or allege to suffer as a User of this Site. In the event, however, that You wish to assert any claim against Company for any purpose whatsoever, You expressly agree that such dispute will be settled by binding arbitration. You agree that notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or Site or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. Legal action taken by Company to collect fees and/or recover damages for, or obtain an injunction relating to, the Site operations, intellectual property, and our Services shall not be subject to the foregoing restrictions.
26. No License: Nothing contained on the Site should be understood as granting You a license to use any of the trademarks, service marks, or logos owned by Company or by any third party.
27. General: This Agreement shall be governed by and construed in accordance with the laws of Australian Capital Territory. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section. If any part of this Agreement is deemed invalid or void, that part of the Agreement shall be deemed severable and shall not affect the validity or enforceability of any of the remaining conditions. Company’s failure to act with respect to a breach by You or others does not waive our right to act with respect to subsequent or similar breaches. You and Company are independent contractors. No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
LAST UPDATED: August 17, 2019.