Who are we?
Birchal Pty. Ltd. ACN 616 478 767 and its related bodies corporate (referred to as ‘we’ or ‘our’ or ‘us’ or ‘Birchal’) operate the website birchal.com (including any subdomains) across desktop, mobile, tablet and apps. We provide a variety of products and services via the website.
Birchal Financial Services Pty Ltd ACN 621 812 646 (BFS) is a licensed crowd-sourced funding (CSF) intermediary and is authorised by ASIC (AFSL 502618) to provide an equity crowd-funding service via Birchal’s platform on the website (Birchal Platform).
What is the purpose of these Terms of Service?
These Terms of Service tell you the important terms on which you may use our website and our products and services. These Terms of Service apply to all websites we own and operate and all products and services we provide.
Please read through these Terms of Service carefully because by accessing our website and using our products and services, you expressly agree to these Terms of Service. If that’s not ok with you, no hard feelings but we request you close this website and stop using our products and services now.
Please also read our Privacy Policy which sets out how we collect, use, disclose and manage personal information.
Crowd funding services - other terms that apply to you
Expression of interest (EOI) campaigns and CSF Offers involve the provision of an equity crowdfunding service and are provided by BFS. Crowdfunding services are marked on the Birchal Platform with a badge.
If you are using our crowdfunding service, please review these terms which also apply to you:
Your Birchal account
To access parts of the website and our products and services, you will be required to create an account with us - this will be your Birchal account and will enable you to access our website and our entire suite of products and services.
When you create a Birchal account you:
- must agree to these Terms of Service and our Privacy Policy
- may be required to agree to additional terms & conditions relevant to other products and services
- must register your Birchal account using your legal name - this is due to the nature of products and services we provide
- may be required to verify your identity
- must only create one Birchal account
- must not create, or attempt to create, more than one Birchal account (e.g. by using a different email address or other identifying information)
- must not transfer your Birchal account to any person
- must keep your password confidential
- are responsible for all actions taken with your Birchal account (whether or not they were taken by you or on your behalf)
- may be required to create additional profiles to access certain parts of our products and services
There are no fees to create a Birchal account.
If you would like to deactivate your Birchal account, please send us an email using the contact details below.
After your account is deactivated, your Birchal account will be removed from our website and you will no longer be able to login or use our products and services. We may retain your personal information as described in our Privacy Policy.
Deactivating your Birchal account will not affect any actions you have made prior to deactivation. For example, if your Birchal account is deactivated after you have made an application under a CSF Offer, you will continue to be bound by the subscription agreement and hold shares in the relevant issuer (as applicable).
Access to the website and our products and services
We grant you a non-exclusive, non-transferable, revocable limited license to access our website and use our products and services for the purposes and on the terms set out in these Terms of Service and our other applicable terms & conditions.
We reserve the right to deactivate, revoke, terminate, suspend or restrict your (and your affiliates) Birchal account and access to our website and our products and services without reason and without notice.
Your use of our services
You must use our website, products and services, at all times in good faith and in accordance with all applicable laws. You are solely responsible for your use, conduct and actions.
Your Content
When you use our website, products and services, you may be permitted to upload, display or otherwise provide information, messages, data, text, graphics, images, photographs, profiles, audio, video, items, links, documents, questions, comments and any other content (in whatever form) (Content).
You are solely responsible for your Content. You must promptly update your Content and you must contact us on becoming aware that any Content is untrue, incomplete or inaccurate or otherwise in breach of these Terms of Service, our other applicable terms & conditions or any applicable law.
Your Content must not (directly or indirectly):
- be false, inaccurate, incomplete, misleading, deceptive, fraudulent, out of date or irrelevant
- infringe upon any third-party's copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy
- breach these Terms of Service, or other applicable terms and conditions, our privacy policy or any other policies or guidelines
- be defamatory, libelous or threaten or harass any person or, in our absolute discretion, inappropriate
- impersonate or intimidate any person or falsely state or otherwise misrepresent your affiliation with any person
- be obscene, sexually explicit, contain child pornography or any other material that, in our absolute discretion, is in inappropriate or prohibited content
- involve illegal, counterfeit or stolen items or hazardous or recalled goods
- breach any applicable laws or regulations, including (without limitation), financial services, securities, advertising, privacy, spam, anti-discrimination, anti-competition and consumer protection laws
We and our users do not tolerate spam. All users of the website and our products and services must comply with all applicable privacy and spam laws. To report spam from users, please send us an email using the contact details below.
We reserve the right to review, edit or delete any of your Content where we deem it to be illegal, offensive, in breach of these Terms of Service, any other applicable terms & conditions or, in our absolute discretion, otherwise inappropriate.
Your Content license to us
You grant us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sub-licensable (through multiple tiers), royalty-free license to use your Content (now or in the future) to supply our products and services to you and to others, to exercise the publicity and database rights you have in your Content, to validate and enhance our products and services, update our databases and for any other lawful purpose. You acknowledge that we require this license in order to provide our products and services and display your Content (and so that we are not violating any rights you have in that Content).
We acknowledge that you own, and continue to own, all intellectual property rights in your Content, unless otherwise agreed.
Your use
When you use our website and product and services, you must not (directly or indirectly):
- use an anonymous proxy or other technique to prevent us from identifying your location or your IP address
- attempt to gain unauthorised access to our website, products and services, the server on which they are stored or any server, computer or database connected to our website, products and services
- circumvent any technological measures that are designed to prevent unauthorised use or access to any part of our website, products and services
- engage in any form of extraction or harvesting of all or part of our website, products and services, including the use of “screen-scraping”, “bots”, “spiders” or other manual or automated means to access or harvest our website, products and services
- take any action which may corrupt, degrade, disrupt, cause damage to, or interfere with, the proper operation of our services, including introducing any virus, worm, trojan, malware, time bomb, cancelbot, logic bomb, easter egg or other malicious or harmful code, data or computer program
- attack the website, products and services via a denial-of-service attack
- transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information
- access or use the website, products and services if you are directly or indirectly involved (in any capacity) in the operations of a service that competes with any of our website, products and services (other than for genuine personal use)
- modify, adapt or hack our website, products and services
- modify another website so as to falsely imply that it is associated with our website, products and services
- use any content on our website, products and services for the purpose of building, improving or providing products or services that competes with all or any part of our ours or has similar features or functionality
- reuse, copy, modify, translate, adapt or in any other way reproduce our our website, products and services or resupply, resell or repackage any of our our website, products and services
- reverse engineer, decompile, derive the source code of or tamper with our website, products and services, software or network
- link to our website, products and services without our prior written consent (in our absolute discretion)
- frame our website, products and services on any other site, without our prior written consent (in our absolute discretion)
- access our our website, products and services on behalf of any other person
- use our website, products and services for any unlawful purpose
- use our website, products and services to send spam or other content that would breach these Terms of Service, our privacy policy or applicable privacy and spam laws
- use our website, products and services in an unreasonable way or in a way that is unintended or contrary to the way we intended it to be used or in a way that is otherwise unfair or unacceptable (in our absolute discretion)
- misrepresent or defraud any user or member of the public through phishing, spoofing, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with or any third party
- create liability for us or cause us to lose or potentially lose (in whole or in part) the services of our ISPs or third party suppliers
- cause us to breach, or potentially breach, any applicable laws or regulation or in any way harm or potentially harm us or any third party, where ‘harm’ includes (but is not limited to) reputational and non-economic harm
- breach any applicable laws or regulations, including (without limitation), financial services, securities, advertising, privacy, spam, anti-discrimination, anti-competition and consumer protection laws.
In addition to our rights to enforce these Terms of Service, we may report any unauthorised use or other suspicious activity to the appropriate regulatory or enforcement authorities and we will cooperate with those authorities by disclosing your identity to them.
Aggregated anonymous data
Birchal may obtain and aggregate technical, performance and other data (that is not personal information) about your use of our website, products and services. Birchal may use the aggregated anonymous data to analyse, improve, support, validate, enhance and operate our website, products and services and otherwise for any business purpose (now and in the future). Please refer to our Privacy Policy for how we collect, hold and store personal information.
Monitoring
Birchal may electronically monitor (through your IP address, cookies, beacons, pixels, interactions or otherwise) your use of our website, products and services, including to validate and enhance our products and to ensure compliance with our terms & conditions, our security requirements and to prevent fraudulent use. Please refer to our Privacy Policy for how we collect, hold and store personal information.
Changes to our website, products and services
We may withdraw, vary, reconfigure, add to, modify, substitute or otherwise change our services from time to time, including due to a change in applicable law or regulation, a change in technology or security requirements, due to market demand or for any other business need, improvement or enhancement. If a change to our service materially and negatively alters the performance or functionality of a service for you, we will notify you.
Alpha or beta versions of our website, products and services
We may make alpha or beta versions of our website, products or services available to you. These products and services may be still under development and may be inoperable or incomplete and contain more errors and bugs than our generally available products and services. When we make an alpha or beta version available, some features may not be available to all users and the experience may differ between users. Also, there is no guarantee that any data, feature or experience in an alpha or beta version will be released in subsequent versions. Because of the nature of the alpha and beta versions, you use them at your own risk.
Feedback
You may, from time to time, submit feedback to Birchal. Birchal may freely use or exploit any feedback in connection with our products and services. To the extent you submit feedback, you grant to Birchal, if for any reason it is further needed, a perpetual, non-revocable, royalty-free worldwide license to use and/or incorporate such feedback into any Birchal product or service at any time at the sole discretion of Birchal.
Intellectual property rights
We are the owner or the licensee of all intellectual property rights and other proprietary and industrial rights and interests in our website, products and services (whatever its nature), throughout the world, whether registered or unregistered, including (without limitation) the Birchal Platform, Birchal Engage, trademarks, designs, inventions, discoveries, copyright (including source code), rights in software, confidential information, know-how, business names, material, data, information, content, templates, documents, checklists, logos, graphics, sounds, videos, recordings, icons, layout, look and feel, software, systems and network and all analogous rights (Birchal’s IP). All our rights are expressly reserved by us.
You must not use, reuse, adapt, store, distribute, publish, display, copy, reproduce or create derivative works in any form or by any means of any of Birchal’s IP (in whole or in part), without our express prior written consent (which may be given in our absolute discretion).
Nothing in these Terms of Service (or any of our other terms & conditions) should be interpreted as granting any license, transfer or right to use any of Birchal’s IP, including by linking or framing (other than as expressly provided).
We are not responsible for content posted by third parties on our website (including content posted by Birchal users), including the content of messages, pitches, pitch videos, images, issuer profiles, offer documents and the communication facility. If you believe any content on our website, products or services infringes your intellectual property rights, please send us an email using the contact details below.
Our liability to you
No advice or recommendation
Unless expressly stated otherwise, we do not give you any general or personal investment, legal, tax, financial or other advice or recommendation in connection with our website, products and services. You are solely responsible for any decision made or not made by you in relation to any product or service we provide.
Reliance on information
We do not make any representations, warranties or guarantees as to the accuracy, availability, completeness, reliability, suitability or timeliness of Birchal’s Content or any other information we provide on our website, products and services.
Third party information
Our website, products and services may incorporate information that is provided to us, or uploaded directly, by third parties, including Birchal users. We are not responsible for any content or material that is provided to you at any time by third parties.
We do not make any representations, warranties or guarantees in relation to the accuracy, availability, completeness, reliability, suitability or timeliness of a user’s Content or any other information provided by a third party.
Where our website, products and services link to other sites and resources provided by third parties, these links are provided for your information only and do not indicate an endorsement by us. As you can appreciate, we have no control over the contents of those sites or resources.
To the maximum extent permitted by law, we exclude all responsibility and liability for any third party information, including any inaccurate, incomplete, out of date or unavailable third party information.
Availability of services
All our services are supplied to you on an “as is” and “as available” basis.
We do not make any representations, warranties or guarantees as to the accuracy, availability, completeness, reliability or timeliness of our website, products and services.
To the extent permitted by law, we are not liable in respect of any failure or delay in providing our website, products and services.
Where we supply our website, products and services to you online, the services are supplied over communication links and other networks, and the availability of the services rely on the availability of those links and networks. We are not responsible if the links or networks are unavailable at any time, and we do not guarantee that our website, products and services supplied online will be continuously available.
No implied warranties
To the maximum extent permitted by law, any representation, warranty, condition, guarantee, term or undertaking that would be implied into these Terms of Service or or other terms & conditions (as applicable) by legislation, common law or otherwise, including any implied terms, conditions or warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and accuracy, is excluded from these Terms of Service and other terms & conditions (as applicable).
Nothing in these Terms of Service or other terms & conditions (as applicable) excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the consumer laws or any other applicable law that cannot be excluded, restricted or modified (Non-Excludable Obligation). To the maximum extent permitted by law, our liability for a breach of a Non-Excludable Obligation is limited, at our option, to the cost of supplying the services again or payment of the reasonable cost of having the services supplied again.
Limitation of liability
To the extent permitted by law, we expressly exclude any liability for any direct, indirect or consequential loss or damage incurred by you in connection with the use, access or inability to use or access our website, products or services or or any websites linked to it or any content (of whatever nature) on it, including (without limitation) any liability for:
- any special, indirect or consequential loss or damage, including (without limitation) loss of income, revenue, profit, opportunity, contract, business, anticipated savings, data, reputation, goodwill or management or office time
- any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract, statute or otherwise, even if foreseeable
- any loss or damage caused by a denial-of-service attack or virus that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our services or to your downloading of any material posted on it, or on any website linked to it
- any financial decision or action taken or not taken by you
- any content or information, including Birchal’s Content or any third party content or information that is inaccurate, incomplete, out of date or unavailable
Your indemnity to us
You indemnify us and our employees, officers, agents and contractors from and against (without limitation) any liability, claim, loss or damage (including reasonable legal costs, out of pocket expenses and charges for our time) suffered or incurred by us as a result of your failure to comply with these Terms of Service.
An important note about children
Children (persons under the age of 18 years) are not eligible to use our website, products and services unsupervised and we ask that children do not submit any information to us. If you are under the age of 18 years, you can use our website, products and services only in conjunction with and under the supervision of your parents or guardians.
Changes to the Terms of Service
We may update these Terms of Service from time to time. We encourage you to check our website periodically to ensure that you are aware of our current Terms of Service.
How to contact us
You can ask us any questions about these Terms of Service by sending an email to support@birchal.com. Sending an email will ensure your question or complaint gets to the right person quickly. You can also Contact Us.
General
Assignment by us: We may assign, subcontract or transfer any right or obligation under these Terms of Service or our other terms & conditions to any person.
Assignment by you: Your Birchal account is personal to you. None of your rights or obligations under these Terms of Service or our other terms & conditions may be assigned, subcontracted or transferred to any other person.
Force majeure: We are not liable to you for any delay in performing, or failure to perform, any of our obligations under these Terms of Service or our other terms & conditions to the extent caused by an event that is beyond our reasonable control.
Severability: If any part of these Terms of Service or our other terms & conditions is illegal, invalid or unenforceable, it will be severed and the remaining terms will continue in full force and effect.
No merger: The rights and obligations of you and us under these Terms of Service or our other terms & conditions do not merge on completion of any transaction contemplated by these Terms of Service or our other terms & conditions (as applicable).
Survival: Our rights under these Terms of Service and our other terms & conditions, survive termination of these Terms of Service and our other terms & conditions (as applicable).
Waiver: A single or partial exercise or waiver of a right relating to these Terms of Service or our other terms & conditions does not prevent any other exercise of that right or the exercise of any other right.
Notices to us: Any notice from you to us may be given by email to support@birchal.com.
Notices to you: Any notice from us to you may be given by email to the address you provide to us, including via your Birchal account.
Relationship: Nothing in these Terms of Service or our other terms & conditions creates any partnership, joint venture, employment or agency relationship between us.
Non-exclusive: These Terms of Service and our other terms & conditions are not exclusive and you agree there are no restrictions on us to provide services to any other person.
Governing law: These Terms of Service and our other terms & conditions are governed by the laws of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.
Electronic execution
These Terms of Service are legally binding. You agree for the purposes of the Electronic Transactions Act 1999 (Cth) to be bound by any agreement reached through electronic means.
BY USING OUR WEBSITE, PRODUCTS AND SERVICES AND BY CREATING A BIRCHAL ACCOUNT, YOU CONFIRM YOUR ACCEPTANCE OF THESE TERMS OF SERVICE.
If you do not understand any of the terms set out in these Terms of Service or have any questions in relation to it, please obtain independent legal or professional advice before proceeding.
