Information about EarlyBirds Open Innovation Ecosystem

Terms of use

EARLY BIRDS TERMS AND CONDITIONS

THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS ("TERMS") ON WHICH EARLY BIRDS MARKETPLACE PTY LTD (COMPANY), A DULY REGISTERED COMPANY (ACN: 634599081), OFFERS YOU ACCESS TO ITS SERVICES. PLEASE READ THESE TERMS CAREFULLY.

As a condition of your participation in the Company’s Services, you (hereinafter, You), including in the capacity as a Registered User, Seller or Buyer, agree to abide by the Terms.

By accessing the Company’s Service in any manner, You agree to be bound by the following Terms. You may review these Terms by clicking on the ‘Terms and Use’ link at the bottom of any page of the Company’s Site or accessible here: https://earlybirds.io/en/infos/terms.

 

BACKGROUND

A. The Company is an online innovation platform providing innovation insights, services and which connects Innovators with Early Adopters and Service Providers based on industry, business function and expected outcomes.
B. You are a User of the Company’s Services, and are referred to in this Agreement as “You”.
C. This Agreement sets out the terms and conditions under which You agree to be governed for using the Company’s Services.

OPERATIVE PROVISIONS
IT IS AGREED as follows:

1 DEFINITIONS AND INTERPRETATIONS

1.1 (Definitions):

App means the Company’s desktop or mobile application which provides access to the EarlyBirds innovation platform.

Commission has the meaning given to it in the Company’s Fee Structure.

Company’s Service means all services provided by the Company through the Early Birds website and App, including the provision of an open innovation platform for Users to search, curate, buy, sell, bid and negotiate the purchase and sale of products and services with other Users, the provision by the Company of industry innovation insights and includes all Innovator Services, Early Adopter Services and Service Provider Services.

Designated Payment Method means Your designated method of payment of Fees as nominated on Registration and as can be changed by accessing Your Account.

Early Adopter means a User who is a buyer or potential buyer of products and services from Innovators or a consumer of industry insights published by the Company through the Company’s Service.

Early Adopter Services means Services provided by the Company to Users who Register as Early Adopters.

Fee means all fees incurred by You in the course of using the Company’s Service which may include Subscription Fees and any Commission which may arise from time to time. It also includes any additional fees on any and all applicable sales, income, excise, import, export and other taxes or duties associated with using the Company’s Service.

Fee Structure means the Company’s fee structure which is available at Early Birds Marketplace FAQs, accessible at https://earlybirds.io/en/infos/how_to_use, as amended from time to time.

Innovator means a User who is a seller or potential seller of products and services through the Company’s Service.

Innovator Services means Services provided by the Company to Users who Register as Innovators.

Intellectual Property Rights or Intellectual Property means all intellectual property rights and interests throughout the world whether registered or unregistered, including trade marks, designs, patents, inventions, copyrights and analogous rights, trade secrets, know how processes, concepts, Confidential Information and all other intellectual property.

Listing Requirements means the Company’s listing requirements which are displayed to You when You attempt to list a product or service, or are otherwise notified to you, and as amended from time to time.

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

Personal Information has the meaning given to it in section 6 of the Privacy Act 1988 (Cth), and its amendments from time to time. 

Privacy Policy means the Company’s privacy policy which is available at https://earlybirds.io/en/infos/privacy and as amended from time to time.

Registration means to register as a registered User of the Service.

Service Provider means a User who:
(a) is a buyer or potential buyer of products and services from Innovators through the Company’s Service; and
(b) also uses the Company’s Service to deliver services to their own customers or clients, or to any other third party.

Service Provider Services means services provided by the Company to Users who Register as Service Providers.

Site means the https://www.earlybirds.io desktop website, mobile website, any subdomains of that website and includes any equivalent domain that is accessed through the App.

Subscription Fee means any Fees incurred for a subscription to the Service as set out in the Fee Structure.

This Party User has the meaning given in clause 7.6.

User means any user of the Company’s Service, including You.

User Information means any and all information or data You provide to the Company or other users during the Registration, offer, sale or user ranking process, and through any interactive feature of the system, including email.

1.2 (Interpretation): In this Agreement unless the contrary intention appears:

(a) Headings are for convenience only and do not form part of this Agreement or affect its interpretation. 

(b) A reference to any legislation includes regulations and other instruments under it and any variation or replacement of any of them. 

(c) The singular includes the plural and vice versa, and words importing any gender include the other genders

(d) References to any instrument are to that instrument as it may from time to time to be amended to extended in accordance with its terms. 

(e) A reference to a “person” includes an individual, a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association or any authority. 

(f) References to dollars or $ is a reference to US dollars unless explicitly specified otherwise. 

1.3 (Drafting responsibility): No provision of this Agreement is to be construed against a party because that party (or that party’s adviser) was responsible for drafting it. 

2 NATURE OF THIS AGREEMENT

2.1 (Consent to this Agreement): By registering as a User, You acknowledge and agree that You: 

(a) have read and understood the terms of this Agreement; and

(b) have accepted and agree to be bound by all terms of this Agreement.

2.1 (Binding nature of Agreement): Each party agrees that this Agreement is binding on that party’s legal personal representative, heirs, successors and permitted assigns. 

2.2 (Exclusion of agency and partnership): Nothing in this Agreement is to be treated as creating a partnership, joint or co-venture or fiduciary obligation between the parties, or any two or more of them, under the laws of any applicable jurisdiction and, except as specifically provided in this Agreement, no party may act or has any authority to act as agent of or trustee for or in any way bind or commit any other party to any obligation.

2.3 (Modification of terms): The Company reserves the right to make changes to this Agreement or the policies incorporated herein at any time and at its complete discretion. The Company will notify You of any material changes to its Company Services, the Agreement or the policies incorporated as soon as practicable by a reasonable method including by email or posting a conspicuous notice on an appropriate part of its Site. You are deemed to have accepted any such changes and agree to comply with them if You continue to use the Company’s Service after the Company makes any such change.

2.4 (Application of certain parts): You agree that in this Agreement, clause 5 applies only to Innovator Services, clause 6 applies only to Early Adopter Services and clause 7 applies only to Service Provider Services. You agree that all other clauses of this Agreement apply to all categories of Services.

3 REGISTRATION

3.1 (Registration): To register as a User, You will be required to provide a username, password and from time to time, such other information as required for the purpose of generating details for access to the Company’s Service. Where information provided by You is Personal Information, this information will be dealt with in accordance with the Company’s Privacy Policy.

3.2 (Restriction on registration): You must not register as a User more than one time. You must not impersonate or register as a User for anyone other than Yourself.

3.3 (Your account): It is Your responsibility to maintain the security and confidentiality of Your username and password and You agree to accept all responsibility and liability for any activities that occur under Your account. You may not transfer, assign or sell Your account (including rating and feedback) to any third party without the prior written consent of the Company.

3.4 (Correct information): You must provide accurate and current information to Us. The Company may, in its sole discretion, suspend or terminate Your account and refuse any and all current or future use of the Company’s Service (or any portion thereof) in its complete discretion, including where You provide any information that is false, misleading, inaccurate, not current or incomplete during registration or otherwise in Your use of the Company’s Service. You agree that the Company may report to the appropriate authorities any suspected illegal activities that are undertaken on in relation to the Company’s Service.

3.5 (Verification): You agree that the Company may request a form of identification to verify Your identity from time to time.

4 PROVISION OF SERVICES – GENERAL 

4.1 (Warranty): You warrant that You are aware of the relevant risks of using the Company’s Service with other Users including those who may be acting under false pretences. You agree that all of these risks of using the Service are borne by You, and not the Company. The Company does not control the behaviour of Users of its Service or the information provided by other Users that is made available through the Company’s Service beyond what is set out under this Agreement. You agree that the Company does not guarantee or endorse the authenticity, quality, safety, or legality of any products or services offered or sold, the truth or accuracy of any listings, or the ability of sellers to sell items or of buyers to buy items, through its Service. The Company cannot assure that any or all transactions will be completed. Additionally, the Company does not guarantee the ability or intent of Users to fulfil their obligations in any transaction.

4.2 (Safe trading): The Company does not represent that a User’s purported identity is in fact that User’s identity. You acknowledge that the Company has established a User feedback system as part of the Company’s Service, and that You are responsible for making your own enquiries (including through review of User feedback) to satisfy Yourself as to the identity of other Users. Where You are of the view or have a reasonable suspicion that a User is not who they are purporting to be when using the Company’s Service or where there is a breach of this Agreement, You may contact the Company to report this at support@earlybirds.io. The Company will consider whether there are grounds for taking any action in response to the alleged misuse of the Company’s Service. The Company may contact You as to the Company’s decision.

4.3 (Acceptable use): You agree that you will not use the Company’s Services in a way that is unacceptable. Use is unacceptable if:

(a) it involves anything which is false, defamatory, harassing or obscene; 

(b) it would involve the contravention of any person’s rights (including Intellectual Property Rights and privacy rights);

(c) it may breach any laws;

(d) it involves fraudulent activity; or 

(e) it involves the sale or promotion of any illegal business activities or prohibited products or services. 

4.4 (Use of User Information): 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.

4.5 (Rights to restrict): Without limiting any other right or remedy available to the Company, You agree that the Company may restrict or suspend Your access to the Company’s Service if the Company considers that You have:

(a) undermined, or attempted to undermine, the security or integrity of the Company’s Service;

(b) used, or attempted to use, the Company’s Service: 
(i) for improper purposes; or 
(ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Company’s Service;

(c) transmitted, inputted or stored any data that breaches or may breach this Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or 

(d) otherwise materially breached the Agreement.

5 INNOVATOR SERVICES

5.1 (Application): This clause 5 applies only to Innovator Services.

5.2 (Selling): You represent and warrant that You have full authority (legal and equitable) to sell the goods or services that You are offering for sale under the Company’s Service. You must describe Your good or service and all terms of sale in Your listing in accordance with the Company’s Listing Requirements. Subject to the discretion of the Company, if You accept an offer in response to Your listing, You as the prospective Seller are obligated to complete the transaction with the prospective Buyer unless: 

(a) the transaction is prohibited by law or this Agreement; 

(b) the prospective buyer materially modifies the terms and conditions of their offer; 

(c) a typographical error exists in the offer information which materially affects the terms of sale; or 

(d) the transaction is, in the Company’s view, a transaction against the interest of the Company. 

5.3 (Commission): You agree that if you sell any product or service through the Company’s Service, You are responsible for payment of the Commission. 

5.4 (Independent determination): You agree that for every transaction that is commenced through the Company’s Service, you must make your own independent determination regarding the statements and representations of the other party and the party’s ability to pay for the good or service offered, including where appropriate seeking relevant professional advice. You warrant to us that you will exercise caution, common sense, practice safe trading and prudent business practices when dealing with other Users or otherwise when using the Company’s Service.

5.5 (Cooling off periods): You agree to comply with any law governing cooling off periods in any jurisdiction in which a buyer is located. You agree that you will refund in full any returns which comply with relevant cooling off laws.

5.6 (Compliance with laws): You agree that You may not list any item on the Company’s Services that could cause the Company to violate any applicable law, statute, ordinance or regulation, or that is contrary to the Company’s Listing Requirements.

6 EARLY ADOPTER SERVICES

6.1 (Application): This clause 6 applies only to Early Adopter Services.

6.2 (Buying): If You make an offer and the offer is accepted (or You otherwise use the Company’s Service to procure products and services through its platform functionality), You as the prospective buyer agree that you are obligated to complete the transaction with the prospective seller and to be bound by the conditions specified by the seller, unless: 

(a) the transaction is prohibited by law or this Agreement; 

(b) the seller materially changes the item’s description or the item does not conform to the seller’s description; 

(c) a typographical error exists in the offer information which materially affects the terms of sale; or 

(d) the transaction is, in the Company’s view, a transaction against the interest of the Company. 

6.3 (Offer retraction): You may retract an offer to buy for any reason at any time prior to acceptance by the prospective seller.

6.4 (Independent determination): You agree that for every transaction that is commenced through the Company’s Service, you must make your own independent determination regarding the statements, product descriptions and representations of the other party and the party’s ability to deliver the good or service offered, including where appropriate seeking relevant professional advice. You warrant to us that you will exercise caution, common sense, practice safe trading and prudent business practices when dealing with other Users or otherwise when using the Company’s Service.

6.5 (No warranty): You acknowledge and agree that the Company provides no warranty in relation to the products and services that are offered on the Company’s Service. You agree that You are solely responsible for satisfying yourself as to the warranty (if any) offered by a seller.

7 SERVICE PROVIDER SERVICES

7.1 (Application): This clause 7 applies only to Service Provider Services.

7.2 (Buying): If You make an offer and the offer is accepted (or You otherwise use the Company’s Service to procure products and services through its platform functionality), You as the prospective buyer agree that you are obligated to complete the transaction with the prospective seller and to be bound by the conditions specified by the seller, unless: 

(a) the transaction is prohibited by law or this Agreement; 

(b) the seller materially changes the item’s description or the item does not conform to the seller’s description; 

(c) a typographical error exists in the offer information which materially affects the terms of sale; or 

(d) the transaction is, in the Company’s view, a transaction against the interest of the Company. 

7.3 (Offer retraction): You may retract an offer to buy for any reason at any time prior to acceptance by the prospective seller.

7.4 (Independent determination): You agree that for every transaction that is commenced through the Company’s Service, you must make your own independent determination regarding the statements, product descriptions and representations of the other party and the party’s ability to deliver the good or service offered, including where appropriate seeking relevant professional advice. You warrant to us that you will exercise caution, common sense, practice safe trading and prudent business practices when dealing with other Users or otherwise when using the Company’s Service.

7.5 (No warranty): You acknowledge and agree that the Company provides no warranty in relation to the products and services that are offered on the Company’s Service. You agree that You are solely responsible for satisfying yourself as to the warranty (if any) offered by a seller.

7.6 (Provision of services to third parties): Without limiting any other terms of this Agreement, You agree that if you use the Company’s Service to provide services to any third party (Third Party User):

(a) under no circumstance will the Company be liable for any loss, damage, expense or costs suffered by any Third Party User in connection with its use of the Company’s Service; 

(b) in addition to any other indemnity in this Agreement, You must at all times indemnify and hold harmless the Company and its officers, employees, contractors and agents from and against any direct or indirect loss (including legal costs and expenses) incurred or suffered by the Company arising from any claims against the Company from Third Party Users;

(c) You will take all reasonable steps to notify any Third Party User that your provision of services to that Third Party User includes use of the Company’s Service; and

(d) You will pay any additional Fees set out in the Company’s Fee Structure to account for the use of the Company’s Services by any Third Party User.

8 PAYMENT

8.1 (Fees and Charges): You agree that You are responsible and liable to pay all Fees to the Company for the use of the Company’s Services.

8.2 (Fee Avoidance): The direct or indirect avoidance of any Fee that would otherwise have been incurred by using the Company’s Service (“Fee Avoidance”) is prohibited under this Agreement. You must not engage in Fee Avoidance in any form whatsoever. Where you engage in any Fee Avoidance as reasonably determined by the Company, the Company may exercise its right to charge You for the Fees that would otherwise have been payable by You. Without restricting this clause 8.2, Fee Avoidance includes:

(a) making or accepting offers, bidding or negotiating, to buy or sell products or services outside the Company’s Service where knowledge or awareness of such product or service arose from using the Company’s Service;

(b) linking or promoting other services, sites, items, catalogues that can be used to make or accept offers, bid or negotiate, to buy or sell products or services outside the Company’s Service where knowledge or awareness of such product or service arose from using the Company’s Service;

(c) requiring a person You are transacting with when using the Service to make an additional purchase of a good and/or service outside of the listing You made;

(d) cancel bids or negotiations or ending a listing early because the desired price has not been met;

(e) reduce the listing price but charge excessive charges including for postage and additional fees not already included in the price for sale; and

(f) falsely reporting unpaid items; falsely reporting the transaction amount, among other things.

8.3 (Company’s right to determine): The Company reserves the exclusive right to determine whether a User has engaged in Fee Avoidance.

8.4 (Credit card billing): The Company will not charge Your Designated Payment Method for any Fees unless You conduct an activity under the Company’s Service which incurs a Fee. Before incurring such Fees, You will have a reasonable opportunity to review and accept the Fees that You will be charged for use of the Company’s Services. By agreeing to a transaction with a Fee, You authorise Us to charge Your Designated Payment Method for such Fees.

8.5 (Processing fees): Certain purchases made through the Company’s Service may be subject to a non-refundable per item processing fee. By agreeing to a transaction with a processing fee, you authorise Us to charge Your Designated Payment Method for such processing fees.

8.6 (Amendments to fees): You agree that the Company has the right to add, change or discontinue, in its sole discretion, temporarily or permanently, some or all of the Company’s Fees as reflected in the Fee Structure at any time with or without notice to You. You agree that a change to the Fee Structure is effective after the Company publishes the changes on the Company’s Service. You acknowledge that the Company may, in its absolute discretion, also choose to change the Fees for its Services on a one-off basis. You agree that a change to Fees on a one-off basis as contemplated in this clause is effective when the Company posts information about this change through the Company’s Services. You agree that if the Company introduces a new service, the Fees for that service are effective at the launch of the service.

9 INTELLECTUAL PROPERTY 

9.1 (Ownership):

(a) Subject to clause 9.1, title to, and all Intellectual Property Rights in, the Company’s Services and Site is and remains the property of the Company (and its licensors). 

(b) Title to, and all Intellectual Property Rights in, Your User Information remains Your property. You grant the Company a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate Your User Information for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with this Agreement. 

9.2 (Third party Intellectual Property Rights indemnity): You indemnify the Company against any claim or proceeding brought against the Company to the extent that claim or proceeding alleges that Your use of the Services in accordance with this Agreement constitutes an infringement of a third party’s Intellectual Property Rights.

10 WARRANTIES

10.1 (No implied warranties): To the maximum extent permitted by law, the Company’s warranties are limited to those expressly stated in this Agreement and the Company otherwise makes no representation concerning the quality of the Company’s Services and does not promise that the Company’s Services will:

(a) meet Your requirements or be suitable for a particular purpose; or 

(b) be secure, free of viruses or other harmful code, uninterrupted or error free. 

10.2 (Consumer guarantees): Where legislation, including the Competition and Consumer Act 2010 (Cth) implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying application of or exercise or liability under such condition or warranty, the condition or warranty will be deemed to be included in this Agreement. However, the liability of the Company for any breach of such condition or warranty will be limited, at the option of the Company, to one or more of the following:

(a) if the breach relates to goods:

(i) the replacement of the goods or the supply of equivalent goods; 
(ii) the repair of such goods; 
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or 
(iv) the payment of the cost of having the goods repaired; and 

(b) if the breach relates to services:
(i) the supplying of the services again; or 
(ii) the payment of the cost of having the services supplied again. 

11 INDEMNITY AND LIABILITY

11.1 (Indemnification): You must at all times indemnify and hold harmless the Company and its officers, employees, contractors and agents from and against any direct or indirect loss (including legal costs and expenses) incurred or suffered by the Company arising from any claims against the Company where such loss or liability arises out of or in connection with Your use of the Company’s Services.

11.2 (Release): As the Company is not involved in the actual transaction between a buyer and a seller, You release the Company and (as applicable) its officers, employees, contractors and agents, from any and all claims, demands, and damages (actual and consequential) in any way connected with any dispute You have with another User. 

11.3 (No indirect loss): To the extent that the Company is liable for breach of contract in connection with the supply of the Company’s Services, the Company excludes liability for loss of profit, revenue, business, savings, data or product, increased cost of production, loss of customer goodwill, or other special punitive, indirect or consequential loss or damage of any kind. 

11.4 (Maximum liability): The maximum aggregate liability of the Company under or in connection with this Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any year exceed an amount equal to the Fees paid by You under this Agreement. 

11.5 (Mitigation): Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of any act or omission by the other party under or in connection with the Agreement. 

11.6 (Compliance with law): The Company is not liable to You under this Agreement or otherwise if and to the extent Your access to or use of the Company’s Services is contrary to obligations, including those owed under any contracts or any laws.

12 DISPUTE RESOLUTION 

12.1 (Informal resolution): The parties will initially attempt to resolve any dispute that may arise between them in relation to the performance of the obligations set out in this Agreement, by informal means and at a time and in a manner acceptable to all parties. 

12.2 (Issue of notice): If the parties are not able to resolve their dispute by informal means, either party may issue a notice requiring the dispute be resolved in accordance with this clause 12. 

12.3 (Mediation): If, after 7 days from the date of the notice given in accordance with clause 12.2, the parties’ dispute remains unresolved, the parties agree to submit to mediation of the dispute. 

12.4 (Terms of mediation): Any mediation of the dispute must:

(a) take place within the Australian Capital Territory, Australia; and 
(b) be conducted by a mediator selected by the parties, or if no agreement can be reached, by a mediator selected by the President of the Law Society of the ACT. 

12.5 (Cost): The cost of mediating the dispute will be borne equally by all parties.

12.6 (Urgent relief): This clause 12 does not prevent any party from seeking urgent injunctive, declaratory or other interlocutory relief.

12.7 (No relief from obligations): Notwithstanding that a negotiation, or mediation of the dispute may have commenced, nothing in this clause is intended to relieve any party from performing their obligations under this Agreement. 

13 GENERAL PROVISIONS

13.1 (Notices): A notice required to be given under this Agreement must be in writing and delivered using any of the following means:

(a) hand delivery;
(b) courier; or
(c) e-mail,
in the case of the Company, to the contact details set out in the “Parties” section of this Agreement, and in the case of You, to your contact details provided as part of Registration, or such updated or replacement address notified by a party from time to time.

13.2 (Entire agreement): This Agreement comprises the parties’ entire understanding in relation to the subject matter of this Agreement and supersedes any prior Agreement or arrangement. 

13.3 (Cumulative): The rights, remedies and powers of the parties under this Agreement are cumulative and not exclusive of any rights, remedies or powers provided to the parties by law.

13.4 (Consent): Unless this Agreement expressly provides otherwise, any approval or consent required to be obtained under this Agreement may be withheld, given conditionally, or given unconditionally, in each case in the relevant party’s absolute discretion.

13.5 (Waiver): A right granted to one party under this Agreement may only be waived by that party giving notice in writing to the other parties. A party does not waive any right granted under this Agreement merely by not exercising that right immediately.

13.6 (Severance): Any provision of this Agreement which is invalid or unenforceable in a particular jurisdiction, may be read down or severed to the extent of the invalidity or unenforceability in that jurisdiction only. The invalidity or unenforceability of a provision of this Agreement in one jurisdiction does not affect the:

(a) application of that provision in any other jurisdiction in which it is valid and enforceable; or
(b) remaining provisions of this Agreement.

13.7 (Governing law and jurisdiction): This Agreement is governed by the laws in force in the Australian Capital Territory and the parties submit to the exclusive jurisdiction of the Supreme Court of the Australian Capital Territory to decide any dispute between them in relation to this Agreement.

 

LAST UPDATED: 2 November 2021.