Effective Date: 11th August, 2014
Welcome to Bird Journal! We invite you to access our web site, use the Bird Journal Service, but please note that your invitation is subject to your review and agreement with these Terms of Service. This document describes in detail your rights and our rights relating to the provision of the Service, so please review these Terms carefully.
The Terms of Service constitutes a contract between us. The Terms include the provisions set forth in this document and in the Bird Journal Privacy Policy and other terms or conditions that may be presented to you from time to time in connection with specific Service offerings (all of which we collectively refer to as the "Terms of Service" or "Terms"). If you do not agree to these Terms, you do not have the right to access or use our Service. If you do register for or otherwise use our Service, you shall be deemed to confirm your acceptance of the Terms and your agreement to be a party to this binding contract.
By using the Service, you acknowledge, accept and agree with all provisions of the Privacy Policy, including, without limitation, the use and treatment of your Account Information and your Content in accordance with such Privacy Policy.
The Bird Journal Service consists of Bird Journal Software (as defined below), and other products, services and web sites hosted or made available by Bird Journal, which enable you to do many wonderful things on multiple computer devices and systems (collectively, the "Service"). In exchange for being enabled to use the Service, you agree to abide by these Terms.
You are one party to this contract. The other party to this contract is Bluebird Technology Ltd, a company running in the United Kingdom. (Bluebird Technology Ltd, will be referred to in these Terms of Service using the trading name "Bird Journal", but also "we" and sometimes "us").
It depends upon how you interact with the Bird Journal Service and our software applications. If you install any Bird Journal Software on your computing devices, you may be asked to agree to an end user license agreement. If you participate in our User Forum, you may also need to enter into a separate agreement (usually by clicking "accept" or "agree") with us. We refer to each of these as a "Separate Agreement." If that happens, the Separate Agreement shall take precedence if there is a conflict between those terms and these Terms, to the extent of such conflict and with respect to the particular subject matter of that Separate Agreement.
Changes in these Terms are almost certain to happen, due to changes in our Service and the laws that apply to us and you. If we make a change, we'll do our best to provide you with advance notice, although in some situations, such as where a change is required to satisfy applicable legal requirements, an update to these Terms may need to be effective immediately. We'll announce changes here at our site, and we also may elect to notify you of changes by sending an email to the address you have provided to us. We will also try to explain the reasons for the change.
If we do update these Terms, you are free to decide whether to accept the terms or to stop using our Service (see "How is My Account Closed" below); your continued use of the Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms. Except for changes made by us as described here, no other amendment or modification of these Terms shall be effective unless set forth in a written agreement bearing a written signature by you and us. For clarity, email or other communications will not constitute an effective written agreement for this purpose.
First, you need to create a Bird Journal Service account. You create an account by providing us with an email address, first name, last name, primary country of residence, and creating a password. We refer to this as your "Account Information." We encourage you to use a distinct and non-obvious password that is different from what you use for other services. You are responsible for maintaining the accuracy, completeness and confidentiality of your Account Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided your Account Information. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure. If you discover any unauthorized use of your Account Information or suspect that anyone may be able to access your private Content without authorization, you should immediately change your password and notify us.
In order to use Bird Journal Service on a variety of computing devices, you'll need to install our client software on your computers, tablets and phones. Sorry, but obtaining those devices and paying for their connectivity and data plans is your responsibility. Bird Journal also has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service.
Bird Journal Service accounts should not be shared. If you share your Account Information with anyone, that other person may be able to take control of the account, and we may not be able to determine who the proper account holder is. We will not have any liability to you (or anyone you share your Account Information with) as a result of your or their actions under those circumstances. Since you may use a free Service account, and since we provide a number of mechanisms to allow you to share your account Content with others, we strongly urge you not to share your Account Information with anyone, unless you are doing so as part of your estate planning purposes, as discussed below.
Once your account is created and you accept these Terms, we grant you a limited, non-exclusive license to use the Service subject to these Terms, for so long as you are not barred from receiving the Service under the laws applicable to you, until you close your account voluntarily or until we close your account pursuant to these Terms. In addition, we grant you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Bird Journal Software provided to you by or on behalf of Bird Journal, for the sole purpose of enabling you to use the Bird Journal Software and enjoy the benefit of the Service, subject to any applicable license terms provided with the Bird Journal Software and these Terms, until your rights are terminated in accordance with such license and/or these Terms. You do not obtain any other right or interest in Bird Journal or the Service.
You retain copyright and any other rights you already held in your Content before you submitted, posted or displayed it on or through the Service. But you do have to grant Bird Journal a limited license, as described below, so we can make your data accessible and usable on the Service. Other than this limited license and other rights you grant in these Terms, Bird Journal acknowledges and agrees that we do not obtain any right, title or interest from you under these Terms in any of your Content.
In order to enable Bird Journal to operate the Service, we must obtain from you certain limited license rights to process your Content so that technical actions we take in operating the Service are not considered legal violations. For example, copyright laws could prevent us from processing, maintaining, storing, backing-up and distributing your Content, unless you give us these rights. Accordingly, by using the Service and uploading Content, you are granting Bird Journal a license to display, perform and distribute your Content and to modify (for technical purposes, e.g., making sure content is viewable on smart phones as well as computers and other devices) and reproduce such Content to enable Bird Journal to operate the Service. You also agree that Bird Journal has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.
You agree that these rights and licenses are royalty free, worldwide and irrevocable (for so long as your Content is stored with us), and include a right for Bird Journal to make such Content available to, and pass these rights along to, others with whom Bird Journal has contractual relationships related to the provision of the Bird Journal Service, solely for the purpose of providing such services, and to otherwise permit access to or disclose your Content to third parties if Bird Journal determines such access is necessary to comply with its legal obligations.
Inasmuch as we rely upon your rights to upload and distribute your Content, you represent and warrant to Bird Journal that you have the unfettered legal rights and authority to submit your Content to the Bird Journal Service, to grant the rights granted to Bird Journal under these Terms and to make any publication or other distribution of that Content in your use of the Service. You also represent to us that, by submitting Content to the Bird Journal Service and granting Bird Journal the rights described in these Terms, you are not infringing the rights of any person or third party.
Finally, you understand and agree that Bird Journal, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.
Yes. Your use of the Service must be in accordance with these Terms. When it comes to your use of the Bird Journal Service, you agree that you are responsible for your own conduct and all conduct under your account. This means all Content - such as text, images, software, videos and anything else you can think of, no matter what the form or technical structure (collectively, "Content") - created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third party application or services integrated with the Bird Journal Service. If we find that any shared Content in your account violates our Terms of Service (including by violating another person's intellectual property rights), we reserve the right to un-share or take down such content.
Your privacy in your Content is a paramount concern for us, and we hope that we never need to examine anyone's Content. However, there are limited circumstances in which we may have the need to review part or all of your Content, as discussed in our Privacy Policy.
Except as described here and in our Privacy Policy, unless you elect to enable others to view or have access to the Content you submit to the Service, no one else should see your Content without your consent. Of course, if you do elect to share any portion of your Content by sharing your Account Information with another person, then you would be enabling each recipient of the Account Information to access, use, display, perform, distribute and modify your Content (subject to any understandings or agreements you and such users may work out without Bird Journal's involvement). If you elect to publish any portion of your Content by publishing it to the Bird Journal Library, then you would be enabling all users of Bird Journal Service to access, use, display and perform this published Content.
We do. They're described here:
While you own the Content you store with the Bird Journal Service, you acknowledge and agree that Bird Journal (and our licensors) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service that is hosted on Bird Journal's servers and all software deployed by you or a third party to enable access and use of the Service through compatible computing devices (the "Bird Journal Software").
In agreeing to these Terms, you also agree that the rights in the Service and Bird Journal Software, including all intellectual property rights, such as trademarks, patents, industrial designs and copyrights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any Separate Agreement. In particular, you agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from any Bird Journal Software, unless you are expressly permitted to do so under an open source license or we give you express written permission.
We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service and any Bird Journal Software, including changes that may affect the previous mode of operation of the Service. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. We also reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions and email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice. For example, if you use the free Bird Journal Service, you will not enjoy all of the benefits provided to subscribers of the Bird Journal Premium Service.
You also acknowledge that a variety of Bird Journal actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Bird Journal has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. However, if you are a subscriber for Bird Journal Premium (a "Premium Service") and find that any such modifications or interruption of the Premium Service adversely affects you, you may notify us, explain the adverse impact the modification has created and, if you desire, request a termination of your Premium Service. Upon receipt of any such request, we will endeavour to promptly remedy the adverse impact caused by the modification, extend the duration of your Premium Service subscription for a period of time equal to the interruption and/or refund a portion of your Premium Service subscription fee equal to the remaining unused term of the Premium Service subscription, as we determine appropriate.
Bird Journal may from time to time engage certain affiliates or other third parties to provide technical or other services relating to all or part of the Service, and you hereby agree that such third party involvement is acceptable. In addition, Bird Journal may contract with third party resellers of the Bird Journal Premium Service, and payment processors to enable payments in your local currency and payment systems. Please see our Privacy Policy to understand the extent to which any affiliate or third party may have access to your account information or contents.
Bird Journal may from time to time include as part of the Service and Bird Journal Software computer software supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. Bird Journal expressly disclaims any warranty or other assurance to you regarding such third party software.
In connection with any modification of the Service, Bird Journal Software may automatically download software updates on your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. Bird Journal will endeavour to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g., security risks), Bird Journal may require you to install the update to continue accessing the Service. In all cases, you agree to permit Bird Journal to deliver these updates to you (and you to receive them) as part of your use of the Service.
We respond to clear and complete notices of alleged infringement of copyright, trademark or other intellectual property laws that satisfy the requirements in these Terms (which we believe to comply with applicable laws). If you believe that your intellectual property rights have been violated, please notify us and we will investigate. Note that each owner of intellectual property is responsible for protecting their rights and taking any legal or other action they determine to be appropriate to do so, and Bird Journal does not accept any obligation to take any particular action to enforce or protect any party's intellectual property rights.
Of course, but the Bird Journal Service is not currently directed to children, and we expect that use by children will only be done with the guidance, supervision and consent of their parents and/or guardians. Further, we rely on parents and guardians to ensure minors only use the Service if they can understand their rights and responsibilities as stated in these Terms and our Privacy Policy.
The Bird Journal Service is available worldwide, but our data processing operations take place in the United States. If you use the Service, you acknowledge that you may be sending electronic communications (including your personal account information and Content), through computer networks owned by Bird Journal and third parties located in Virginia and other locations in the United States and other countries. As a result, your use of the Service will likely result in interstate and possibly international data transmissions, and your use of the Service shall constitute your consent to permit such transmissions.
You may deactivate your account with our Service at any time, for any reason (or no reason), and you don't even have to give us notice. If you desire to deactivate your account you need to take certain specific steps, which we will explain upon request.
Bird Journal may suspend access to your account, or close your account, with or without notice according to these Terms. Reasons for Bird Journal suspending or closing your account may include, without limitation: (i) breach or violation of these Terms or any Separate Agreement, (ii) an extended period of inactivity (determined in Bird Journal's sole discretion), (iii) your non-payment of any fees or other sums due Bird Journal or any other party related to your use of the Service, (iv) the discontinuance or material modification of the Service (or any part thereof) or (vi) unexpected technical or security issues or problems.
In most cases, in the event we elect to close your account , we will provide at least 30 days advance notice to you at the email address you have provided to us, so you have a chance to retrieve any Content stored on the Service servers (unless we determine that we are legally prohibited from enabling you to do so). After the expiration of this notice period, you will no longer be able to retrieve Content contained in that account or otherwise use the Service through that account.
Bird Journal's pledge to protect the privacy of your Content will continue, even after your death or incapacity. If you wish to enable someone to have access to your Content or Account Information after you are no longer able to provide them access, you need to implement a process for providing your Account Information to them. We will not provide your Account Information, or your Content, to anyone, even next of kin, unless we determine that we are legally obligated to do so. We encourage you to include your Account Information, with instructions on how to access your Content, in your will or other estate plans, so that anyone you wish to have access to your account will have the means to do so.
When you submit any ideas, suggestions, documents and/or proposals relating to the Service (or other products or services) to Bird Journal through the "Contact Us," User Forum or Support interfaces or through any other mechanism (collectively, "Contributions"), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) Bird Journal is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) Bird Journal shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) Bird Journal may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become the property of Bird Journal without any obligation of Bird Journal to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from Bird Journal under any circumstances.
Our business model is to make the Service so valuable that our users will opt to pay for a Premium Service. However, we may display advertisements and promotions on or in connection with the Service, some of which may be paid for by third parties. We may also provide announcements within the Bird Journal Software. These messages may promote other Bird Journal products and services, events, demonstrate various uses of our Service and promote certain third party applications and services that work with the Bird Journal Service. We pledge to you that we will not engage in any data mining of your Content in order to target advertising at you. For more information, please see our Privacy Policy page.
Inasmuch as some advertising or other messaging content we provide will be based upon information provided by third parties, we shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of any advertisements or other messages. Furthermore, your interactions with advertisers found on or through the Service, including, without limitation, all reliance upon advertising, all commercial transactions and legal obligations associated therewith, are solely between you and such advertisers.
We may include or recommend third party resources, materials and developers and/or links to third party websites, content and applications as part of, or in connection with, the Service. We may have little or no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites, content or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications.
You agree to indemnify and hold Bird Journal, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
To the maximum extent permitted by law, the Service Is Available "As Is." YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BIRD JOURNAL EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) BIRD JOURNAL DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BIRD JOURNAL OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT BIRD JOURNAL, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF BIRD JOURNAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, PRODUCTS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE, OR PROVIDING ANY SERVICES RELATED TO THE OPERATION OF THE SERVICE; (v) BIRD JOURNAL'S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION; (vii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED OR OTHER THIRD-PARTY PRODUCT OR SERVICE; (viii) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (ix) ANY OTHER MATTER RELATING TO THE SERVICE.
NOTHING IN THESE TERMS OF SERVICE (INCLUDING THE LIMITATION OF LIABILITY PROVISIONS) IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
This is another reason why it's important for you to make sure your Account Information is accurate, complete and up to date. We may provide you with notices by email (to the email address associated with your account), regular mail or postings on the web site(s) related to the affected Service.
Except where these Terms or any Separate Agreement specifically provide for use of a different means or address for notice, any notice to Bird Journal must be delivered by email to mail AT birdjournal DOT com. This email address may be updated as part of any update to these Terms of Service. If you are unable to deliver notice via email, you may send a notice to us at the following address (as applicable to your Service provider):
Bird Journal
1 Turnbridge Court
Swavesey
Cambridgeshire
United Kingdom
CB24 4GH
Attention: Legal
You may not use or otherwise export the Service or any Bird Journal Software except as authorized by British law and the laws of the jurisdiction in which the Service is hosted and accessed by you, or where your use any of the Bird Journal Software. In particular, but without limitation, the Bird Journal Software may not be (i) exported or re-exported into any U.S. embargoed countries or (ii) provided to or used by anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list, and shall not use the Service in any such country.
These Terms and the relationship between you and Bird Journal (including any dispute) shall be governed in all respects by the laws of the United Kingdom and shall be considered to have been made and accepted in the United Kingdom, without regard to conflict of law provisions.
If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
A couple of final, but important, points. First, these Terms constitute the entire agreement between you and Bird Journal and govern your use of the Service, except, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and Bird Journal for the use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party's terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.
Second, you acknowledge and agree that each affiliate of Bird Journal shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favour of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms.
Finally, the section headings in these Terms of Service are for convenience only and have no legal or contractual effect.
