FOURTH BIRD TERMS AND CONDITIONS
1. DEFINED TERMS
This clause 1 defines terms used in this agreement. Other terms are defined elsewhere in this agreement.
(a) Consumer Rights is defined in clause 6.9.
(b) Intellectual Property means existing and future copyright, trademarks, designs and patents, whether registered or not.
(c) Materials means any document, image, video, audio recording, online post, live performance, or the like, delivered or made available by us to Members in the course of the Membership.
(d) Member means a person who has subscribed for and holds a Membership.
(e) Membership means the Three Birds Renovations ‘Fourth Bird’ education and entertainment program, comprised for the time being of a website and private Facebook and Instagram groups, through which Members may access activities, Materials and benefits, as determined and varied by us from time to time.
(f) Membership Fees means the fees for the Membership, and any other sums payable to us by you from time to time in connection with the Membership.
(g) Partner means a third party who is our sponsor, or with whom we have a relationship but who is not our sponsor.
(h) Related Body Corporate has the same meaning as in the Corporations Act 2001 (Cth).
(i) we means Three Birds Renovations Pty Ltd (ACN 601 092 693) and, where it would be appropriate in the context, includes any Related Body Corporate of Three Birds Renovations Pty Ltd and all officers, employees and contractors of Three Birds Renovations Pty Ltd or its Related Bodies Corporate.
(j) you means the individual entering into this agreement by accepting our offer to supply the Membership on the terms of this agreement. That person will be the person in whose name your account is held.
2. MEMBERSHIP & FEES
2.1 Membership
When you are a Member, and subject to your payment of all Membership Fees in accordance with this agreement, we will grant you access to the Membership website.
2.2 Membership Fees and payment
(a) The amount of the Membership Fees is the amount published from time to time on the Fourth Bird website or webpage or via any other medium determined by us. Except for Members who subscribed under the ‘Founding Member’ offer, we may increase the Membership Fees from time to time by notice to you via an electronic address that you have given us, e.g. email or text message.
(b) You must pay the Membership Fees in advance by credit card. Payment will be monthly or annually, depending on the payment option you selected when becoming a Member. We may require that you enter into a direct debit arrangement for the payment of your Membership Fees. If and to the extent that you do not pay Membership Fees, we may suspend or terminate your Membership.
(c) You acknowledge that in the event that you fail to pay all Membership Fees as required, our loss and damage may include all of the unpaid amount by reason of the fact that the additional cost to us of accommodating a single additional Member is very low or nil.
(d) Subject to any express money-back guarantee that we offer in respect of your Membership and subject to clauses 6.3(b) (payment in advance) and 6.9 (consumer rights), we are under no obligation to provide you with any refund of Membership Fees paid to us by you, including in circumstances where you change your mind or you suffer misadventure, or if we terminate this agreement in accordance with this agreement.
2.3 Member conduct
To the extent that you create user-generated content or interact with any other person participating in a Membership, you must do so solely in respect of the Membership, you must not create any content or behave in a manner that is obscene, offensive, anti-social, defamatory or otherwise unsavoury, or in any way unlawful, or likely to be so, and you must not use any Membership forum, channel or contact list to market or supply any goods or services. You must not share your login or account information with any other person, nor permit them access to your Membership. We may terminate this agreement immediately if we reasonably believe that you have breached or are threatening to breach this provision.
3. WARRANTIES, DISCLAIMERS ETC
(a) Subject to clause 6.9 (consumer rights), we give no warranty or guarantee that the Membership will be of any particular standard, quality or grade. The Membership may contain errors, omissions and matters of opinion. You rely on the Membership at your own risk (whether financial, physical or otherwise), including for the reasons set out below.
(b) We give no warranty that being a Member will confer on you any particular objective, outcome or benefit, including conducting a successful renovation or buying and selling a property at a profit net of renovation costs. You acknowledge that investment in renovations, building and construction, and real estate, involves significant risk (including financial risk), and that a range of factors outside of our control will determine outcomes, even if you faithfully apply principles, techniques and methods contained in the Membership, such factors including the changes in the housing market, your project management (including budget and costs), your building and design decisions and your selection of tradespersons.
(c) You acknowledge that the Membership is generic in nature and for the purposes of general guidance and education of all Members who undertake Membership, without regard for their personal circumstances (including personal financial circumstances) or particular renovation or building projects they may undertake. The Membership is intended to provide only a summary and overview of the topics covered to assist Members to make their own judgments about any prospective renovation projects and are not intended to be a definitive, universal theory or teaching of renovation and related topics, nor relied upon as a substitute for professional advice in respect of financial or legal issues.
(d) In respect of the Membership, and any part of it or other conduct engaged in by us, you acknowledge that we are not providing financial product advice and that, if our Partners provide any financial product advice, passed on via the Membership, the Partner will be identified as the source of that advice. We do not hold an Australian Financial Services Licence (AFSL).
(e) You acknowledge that the Membership does not provide personal financial or investment advice. We are not aware of your personal financial objectives or circumstances and, even if you tell us about your personal financial objectives and circumstances, we will not be providing any advice to you that takes those objectives and circumstances into account in anything we say or do. See also clause (c) above. The Membership is also not intended to influence you in making a decision about a particular financial product or an interest in a particular financial product, nor about buying or selling any property or committing to any particular renovation project. You should consider obtaining independent, professional financial advice before making any financial decisions.
(f) You acknowledge that the Membership does not provide legal advice, whether as to your personal circumstances or as to laws that may apply generally to real property, residential, domestic or home building work, building and construction or renovating. You should contact the relevant regulatory authorities and obtain independent professional legal advice before making any decisions that may engage applicable laws, such as in relation to council approvals and compliance with your state’s home building legislation and building standards.
(g) You acknowledge that the Membership provides only examples of renovation, building and styling (and the like) techniques that may or may not be safe to carry out in other renovation projects. We do not warrant or guarantee that the renovation techniques shown in the Membership are safe in other renovation projects. As between you and us, you are solely responsible for the safety of any renovation project you undertake.
(h) You acknowledge that the Membership is designed for residential home renovation projects only and are not designed for commercial premises or apartment dwellings.
(i) Where, anywhere on our website, within the Materials or in relation to the Membership:
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- content appears as content authored by or originating from a Partner;
- we provide a hypertext link to a website not controlled by us; or
- a Partner offers a benefit to a Member, such as a discount,
(together, Partner Matter) we are not responsible nor bear any liability in relation to that Partner Matter and you acknowledge that to the extent that we communicate any Partner Matter, we do so solely as an intermediary.
(j) You warrant that you are an individual, even if an entity will pay the Membership Fees on your behalf.
(k) You warrant that all information you provide to us is accurate and complete. We may terminate this agreement immediately if you breach this warranty and there is a material detriment to us.
4. INTELLECTUAL PROPERTY
(a) You acknowledge that, as between you and us, we own all Intellectual Property in and in relation to all Materials, including literary works, artistic works, sound recordings and cinematograph films, and including live performances and other subject-matter created or delivered ‘live’ (Live Subject-Matter).
(b) You acknowledge that any information, content or contribution (Contribution) that you make to or in relation to the content or conduct of the Membership (as distinct from submitting your own work, such as an ‘assignment’ (Submission)), is unsolicited by us and you agree that we may use that Contribution as we see fit and that, should any Intellectual Property subsist in the Contribution, you hereby assign all right, title and interest in that Intellectual Property to us. As further consideration from you to us, you consent to our including your Submissions in future Course content by way of example of Student work, without payment by us of licence fees or royalties.
(c) Without limiting our rights of copyright, you must not copy, communicate, distribute, disseminate or in any way commercially exploit the Materials (including the subject-matter they embody). You must not make any recording or copy of any Live Subject-Matter. We may immediately withhold access to the Membership or terminate this agreement if you breach or threaten to breach this clause 4. You indemnify and must defend us and our Partners against any claim (and loss arising therefrom) by third party arising from your breach of this clause (c).
5. LIMITATION OF LIABILITY
Subject to clause 6.9 (consumer rights) and without limiting any other limitation or exclusion of liability in this agreement: (a) the liability of each party to the other is limited to the extent to which the other party caused the liability to arise by reason of its own negligence, breach of contract or other unlawful conduct; (b) the liability of each party to the other is further limited to direct, general loss to the exclusion of indirect, special or consequential loss; (c) our liability to you is further limited to supplying the Membership again or paying the cost of having your Membership supplied again; and (d) we are not liable to you for any loss you suffer merely by reason of undertaking renovations during or after having been Member or having relied on any aspect of your Membership.
6. THIS AGREEMENT
6.1 Formation
The communication of a copy of this agreement to you, whether by email, availability via internet link or otherwise, is the making of a contractual offer by us to you. You may accept the offer using an online acceptance mechanism (e.g., tick box ‘I accept’) or in any other way that we agree to accept in writing to you. By accepting our offer, you enter into an agreement with us on the terms recorded in this agreement.
6.2 Duration
This agreement commences when this agreement is formed pursuant to clause 6.1 and continues until you or we terminate the Membership in accordance with this agreement.
6.3 Termination by you
(a) You may give notice of termination of your Membership (and thereby this agreement) at any time via email to hello@fourthbird.com.
(b) If you give notice of termination:
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- during a money-back guarantee period (if any), the termination takes effect 3 business days (in Sydney, NSW) from the date of the notice;
- during a Membership paid monthly, the termination takes effect from the end of the month of Membership in which the notice is given; or
- during a Membership paid annually, the termination takes effect from the end of the year of Membership in which the notice is given.
- (c) You acknowledge that, if you give us notice of termination very shortly before the end of the current month or year of Membership, we may not have time to process that notice before you are charged Membership Fees for the following month or year of Membership. If you are charged (and pay) Membership Fees for a month or year of Membership that follows the month or year of termination of your Membership, we will refund you those additional Membership Fees.
- (d) If you give notice of termination:
- at any time during a money-back guarantee period (if any), we will refund you all Membership Fees you have paid for the Membership;
- during a Membership paid monthly, and subject to Consumer Rights, you will not be entitled to any refund of Membership Fees paid in respect of that month or any previous month of the Membership; or
- during a Membership paid annually, and subject to Consumer Rights, you will not be entitled to any refund of Membership Fees paid in respect of that year or any previous year of the Membership.6. 4 Termination by us
Without limiting anything else in this agreement, we may terminate your Membership (and thereby this agreement) if you breach this agreement and: (i) the breach is not remedied within 7 days’ of our giving written notice of the breach to you via an electronic address that you have given us, eg email or text message; or (ii) the breach is material is irremediable by you.
6.5 Terms
(a) This agreement includes any schedules to this agreement. To the extent there is any irreconcilable inconsistency between the body of this agreement and the schedule, the body of this agreement prevails.
(b) Subject to paragraph (a) and clause 6.7 (variation), this agreement, as a document, embodies all the express terms of the agreement, and supersedes or excludes all other agreements, arrangements, understandings and representations, written or oral, in relation to your Membership.
(c) If you enter into any agreement with any third party as a necessary incident of becoming a Member, such as with a payment processing provider, you must comply with all terms of that agreement.
(d) The terms of any Partner offer or agreement are terms of a separate agreement and not terms of this agreement.
6.6 Principles of interpretation of agreement
In this agreement, unless expressly to the contrary and as appropriate in the context: (a) an expression in the plural may be read in the singular, and vice versa; (b) all references to currency or amounts of money are in Australian Dollars; (c) in relation to an expression reflecting a present state of affairs, if the existence of an obligation is conditional on the existence of that state of affairs, the obligation only survives to the extent that the condition remains satisfied during the term of this agreement; (d) a reference to a thing or things includes a reference to any, some or all, or part or whole, of the thing or things; (e) a reference to an act includes an omission and to the causing to be done of that act or omission, including the execution of legal documentation; (f) a reference to a person doing an act includes a reference to the doing of the act on behalf of the person; (g) a reference to one alternative does not, of itself, exclude any other alternative; (h) an expression of the exercise of a right means the exercise of that right at the sole and absolute discretion of the relevant party; (i) an expression prohibiting the doing of an act includes the prohibiting of offering, attempting or purporting to do the act, or aiding, abetting, authorising, approving, contributing to, directing or materially being involved with the doing of the act; (j) a list of rights is not to be read as an exhaustive list of rights; (k) an inclusive expression is without limitation; (l) an expression of ownership includes the legal or beneficial ownership; (m) a reference to an assignment or transfer of proprietary rights is a reference to the absolute and irrevocable assignment or transfer; (n) a reference to an indemnity is a reference to compensation for loss, not prevention of loss; (o) a reference to a ‘copy’ of a thing includes the original embodiment in material form of the thing; (p) a reference to ‘this agreement’ includes a reference to the terms and conditions of this agreement, or this document, regardless of whether the terms and conditions of this agreement, or this document, are sometimes expressly referred to in this agreement; and (q) a reference to a schedule, provision, clause or paragraph is a reference to a schedule, provision, clause or paragraph of this agreement.
6.7 Variation
We may vary this agreement by giving you notice in writing via the contact details you have provided on formation of this agreement, so long as the variation does not cause material detriment to you.
6.8 Waiver
Subject to this agreement, no waiver of rights, actions or remedies is effective unless in writing. To be clear, the failure of any party to exercise or enforce a right, action or remedy under this agreement, or otherwise, does not constitute a waiver of the relevant right, action or remedy.
6.9 Consumer rights
The Membership and anything else we provide may come with guarantees that cannot be excluded under the Australian Consumer Law 2010 (Cth) (Consumer Rights). All terms of this agreement granting us rights and limiting our obligations and like terms, are to be read as being to the maximum extent permitted by law. Nothing in this agreement is intended to modify or oust Australia Consumer Law and related legislation.
6.10 Severability
To the extent that any provision of this agreement would be unlawful, void or unenforceable for any reason, the other provisions of this agreement are valid and enforceable.
6.11 Assignment & novation
Your subscription to the Membership is personal to you and not transferable. You must not assign your rights nor novate your rights and obligations under this agreement without our written consent.
6.12 Survival
Without limitation, clauses 3, 4 and 5 (warranties & disclaimers etc, intellectual property and limitation of liability), as well your obligation to pay fees and charges, survive termination of this agreement.
6.13 Governing law & jurisdiction
The laws of the state of New South Wales, Australia, govern this agreement. The parties acknowledge that the courts of NSW are an appropriate forum for the settlement of disputes arising under or in relation to this agreement. To the extent they come before any court, all disputes arising under or in relation to this agreement will be determined in the courts of NSW.
