These Terms contain the legal agreement between you and Birch & Co as to the terms on which you are permitted by Birch & Co to use the website (“the Agreement”).
Birch & Co owns and operates the website, and owns all Intellectual Property Rights in the website including all content on the website unless otherwise indicated, and all such rights are specifically reserved. Birch & Co has also been licensed to use content on the website in which the Intellectual Property Rights are owned by third parties. Birch & Co permits you to use and otherwise benefit from the website but only in accordance with these Terms and subject to any limitations on the use of any content stored on the website that have been imposed upon Birch & Co by its respective content providers.
By your use of the website, you acknowledge that you have read and understood these Terms and you express your agreement to be bound by them. You should pay particular attention to the restrictions contained in Clause 3 and the provisions of Clauses 9 and 10 before accepting these Terms. If you do not agree to these Terms you must not use the website.
If you have any questions or complaints regarding the website or these Terms, please contact us via the contact details recorded elsewhere on the website.
Words in these Terms in italics have been defined at the end of these Terms in Clause 15.
1. Acceptance of Terms
These Terms apply to your use of the website. You confirm that you have read and understood these Terms and that you accept and agree to be bound by them by using, or continuing to use, the website. We may vary these Terms at any time and at our sole discretion by publishing a revised version of these Terms on the website. Your use of any part of the website will be regulated by these Terms as they exist from time to time. It is your responsibility to keep yourself informed of any changes to these Terms.
2. Jurisdiction and Governing Law
The content of the website is intended only for persons who are seeking legal services in Queensland, Australia. The content on the website may not be appropriate or available for use outside Queensland, Australia, and no representation is made that any such content applies in any other jurisdiction. Even if you are seeking legal services relating to a matter in Queensland, Australia, the content on the website is for general informational purposes only and is not intended to constitute or be relied upon as legal advice, and as such may not be appropriate to your needs. You should contact us to seek specific legal advice regarding your particular circumstances.
If you access the website, you do so at your own risk and you are responsible for complying with all local laws, rules and regulations in your jurisdiction.
These Terms shall be governed by and construed in accordance with the laws of the State of Queensland, Australia, and any applicable laws of the Commonwealth of Australia, and shall be deemed to be made in Brisbane in the said State. Any proceedings in respect of any cause of action shall be instituted, heard and determined in accordance with the law of the State of Queensland in a Court of competent jurisdiction. Any such Queensland Court shall have territorial jurisdiction to hear and to determine such proceedings. You hereby submit to the exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts. These Terms will not be governed by the conflict of law rules, the application of which is expressly excluded. You agree that any judgment you obtain or purport to obtain against us by commencing proceedings otherwise than in accordance with this Clause 2 shall not be enforceable by you against us.
3. Use Restrictions
We may limit use and/or availability of the whole or any part of the website to or by any person, geographic area or jurisdiction we deem fit in our sole and unfettered jurisdiction.
You may subject to the Terms personally use public pages on the website provided that such use is for your own use and not for commercial exploitation.
Except as expressly provided (and then only to the extent so provided) in these Terms or in any law you must not:
- use any part of the website through any means not provided or intended by us. This means, amongst other things, that you are not permitted to “frame”, “screen-scrape”, “deep link” or “data mine” any part of the website;
- use any part of the website contrary to any directions, instructions or policies contained in the Terms or elsewhere on the website;
- use or permit or suffer any other person to use any administration pages forming part of the website;
- use or continue using (and are hereby specifically prohibited from so using) any part of the website if you have not agreed to these Terms or that, in any case, is a secured user pages (save where we have expressly authorised you todo so in writing);
- use the website for any fraudulent or unlawful purpose;
- submit any information via the website that is not true and accurate in every particular or that is misleading ordeceptive or likely to mislead or deceive in any particular;
- impersonate any person or computer whilst using the website;
- enter or store any personal information or sensitive information relating to any person other than yourself in any part of the website unless the person to whom such information relates has accepted these Terms and has authorised youto do so on their behalf;
- interfere with or disrupt, or attempt to interfere with or disrupt, the operation or usability of any part of the website orthe servers or networks used to make the website available, or otherwise violate any requirements, procedures,policies or regulations of such networks;
- reproduce, duplicate, copy, sell, resell or otherwise exploit any part of (including use of) the website or its content for commercial gain;
- modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source codeor derive any part thereof or create derivative works from or of the website or any of its content, whether or not forcommercial gain;
- systematically download the whole or any part of the website, whether or not for commercial gain;
- use any application or other device (including but not limited to robots, scrapers and spiders) to in any way retrieveor gather content from the website or to reproduce or circumvent the navigational structure or presentation of the website without our prior written consent;
- make or distribute copies (including back-up copies) of the website or any part of it (including any content stored onthe website other than content that has been uploaded to the website by you);
- transfer, share, disclose or licence any access codes relating to the website or to your right to use any part of the website to or with any other person, whether or not for value;
- adapt, alter, delete, modify, or translate any part of the website (including any content on the website) save to the extent that the website specifically incorporates any Utilities on any public pages or secured user pages permitting you to do so provided that you only use such Utilities for the purpose for which they have been provided;
- upload any unauthorised material to the website;
- remove, disable or circumvent any proprietary notices or labels, or security or operational features contained on orwithin the website or any part of it.
You hereby assign to us any Intellectual Property Rights you may otherwise have in any site, content or software that you create as a derivative work of the website or any content on the website.
To avoid doubt, you must not allow or suffer any other person to do anything you are prohibited from doing under these Terms.
The website may contain certain design, programming and processing utilities, tools, assets and other resources (“Utilities”) for use within the website which allow you to upload material to the website or perform other operations for your own use. Where this is the case you must use the Utilities strictly for the purpose for which they have been provided.
You must remove any unauthorised material you have uploaded to any part of the website immediately upon being directed by us to do so. However, we reserve the right to remove, delete and/or destroy any unauthorised material you have uploaded to any part of the website without first directing you to do so and without giving you prior notice of our intention to do so or reasons for our doing so.
4. No Retainer
You acknowledge and agree that your use of the website, including but not limited to your submission of any query via the website or any other mode of contact contemplated by the website, does not give rise to any retainer between you and us, and that we are not bound to respond to any such query or otherwise to provide you with any legal services unless and until we agreed to accept you as a client and you have accepted the terms of our costs agreement and satisfied any conditions imposed by us. A copy of our costs agreement can be provided on request. To avoid doubt, we reserve the right to refuse to act for any person and shall have no obligation whatsoever to provide reasons for any such refusal.
6. External Links
The website may enable you to link to or use linked content. Any linked content is not under our control and we are not responsible for the same (including changes or updates thereto). We are not responsible for webcasting or any other form of transmission forming part of any linked content. Any links provided to linked content through the website are provide for your convenience only, and the inclusion of any such link does not imply an endorsement by us of any such linked content or of the provider thereof. Your use of any linked content is at your own risk.
We hereby reserve all rights not expressly granted to you under these conditions. Without limiting the generality of the foregoing and without prejudice to any of our other rights:
- all right title and interest (including but not limited to Intellectual Property Rights) in and to the website (including any content stored on it), any accompanying printed materials, and any copies of the website, are owned by and remain the property of Birch & Co and/or content providers as the case may be. Our trade names and trademarks include, without limitation, “Birch & Co” and other associated logos; and
Nothing in these conditions affects the ownership of any Moral Rights in any content stored on or accessible via the website.
We are under no obligation to implement any extension, alteration, improvement or additional Utilities to the website or to incorporate any change into the website to overcome any defects whatsoever in the website.
You may not use our Intellectual Property Rights in connection with any product or service that is not ours or in any manner that is likely to cause confusion.
Nothing contained on the website is intended to or should be construed as granting any license or right to use any trade names or trade marks or any other Intellectual Property Rights without the express prior written consent of the owner.
8. Electronic Communication
9. Acknowledgements, Disclaimers and Limitation of Liability
To the maximum extent permitted by law, you acknowledge and agree and warrant that:
- The content provided on the website is provided to you as is and with all faults, and that all warranties (express or implied) are hereby excluded. We do not represent or warrant that such content is complete or accurate. We are not responsible for any errors, inaccuracies, or omissions in, or for any unauthorized material that may form part of, any content contained on the website, regardless of its source or how it came to be located on the website, and we hereby expressly exclude any and all Liability for any Loss that you may incur or sustain that in any way relates to or arises out of such content or your use of or reliance thereon, even if you have advised us of the possibility of such Loss;
- All content provided on the website is for information purposes only and is not intended to constitute legal or financial advice or a comprehensive or complete statement of any relevant legal or financial requirements; and
- Without prejudice to the generality of the foregoing, you also acknowledge and agree that we shall not be liable for any Loss that you may incur or sustain that in any way relates to or arises out of any circumstance beyond our control, including but not limited to failure by third party data transmission networks or servers.
- You acknowledge and accept the risk that any communication to or from the website may be intercepted, used or interrupted by third parties, that the website may not be free of unauthorized material, inaccuracies, errors and/or omissions. Accordingly, we accept no Liability and all Liability is excluded for any Loss or delay that you may incur or sustain that in any way relates to or arises out of your use of or activities in connection with the website or any content or linked content thereon, and you hereby release, discharge and indemnify us from and in respect of any and all such Liability. To the extent that the foregoing indemnity does not apply, you agree that any Liability incurred by us, however arising (including by reason of any negligence on our part or by any of our directors, officers, employees, agents or contractors), is limited to $1.
You hereby acknowledge and agree that we would not permit you to use the website but for your acknowledgments and your agreement to the limitations on our Liability as set out above.
You agree to defend, indemnify and hold us and our content providers harmless from and against all Claims and Liabilities that in any way relate to or arise out of:
- your use of or activities in connection with the website or any content or linked content thereon or of any services or Utilities we provide on or via the website
- your breach of any of these Terms; or
- any infringement by you of any Intellectual Property Rights owed by us or our content providers.
11. Problems with the Website
If you think there has been a mistake or an operation you did not authorise, or if you think there are any faults in any part of the website, you must inform us immediately via email. Our email address is included in the contact details recorded elsewhere on the website. To assist in obtaining a prompt resolution to the problem, please provide us with clear details as to your identity, the nature of the problem and the date on which it occurred.
The agreement (Agreement) constituted by your acceptance of these Terms is effective until terminated. We may at any time and for any reason terminate your use of the website. Upon such termination, your right to use the website will immediately cease. You agree that we will not be liable to you or any third party for any termination of your use of the website.
Without prejudice to any other rights we may have, all rights to use the website granted hereunder are automatically forfeited if you fail to comply with any part of these Terms.
We may take any steps we believe are appropriate to enforce or verify compliance with any part of these Terms.
Clauses 1, 2, 4, 5, 7, 8, 9, 10, 13 and 15 survive the termination of the Agreement.
Any provision of or the application of any provision of these Terms or any right, power, authority, discretion or remedy of a party hereunder which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition. Any provision of or the application of any provision of these Terms which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
Subject to the foregoing paragraph in this Clause 13, if a provision or part of a provision in these Terms is unenforceable, illegal or void, then it is severed and the rest of these Terms shall remain in force.
The English version of these Terms will be the version used when interpreting or construing these Terms.
These Terms (including anything incorporate herein by reference) contain the entire agreement between you and Birch & Co relating to your use of the website or any part of it and it supersedes any prior representations (express or implied), discussions, undertakings, communications or advertising relating to the website.
In these Terms, unless the context otherwise requires:
- a reference to the singular includes the plural and vice versa;
- a reference to a party to these Terms includes a reference to that party’s successors, executors, administrators andpermitted assigns, including persons taking by way of novation and, in the case of a trustee, includes a substituted oradditional trustee;
- a reference to a clause, sub-clause or paragraph shall, unless otherwise indicated, refer to a clause, sub-clause orparagraph of these Terms;
- a reference to a person shall be construed as a reference to any natural person, firm, company, corporation,government, governmental authority, state or agency of a state or any association or partnership (whether or nothaving corporate legal personality) or any two or more of the above;
- where a party to these Terms is comprised of two or more persons, these Terms binds those persons jointly and eachsuch person separately;
- a reference to “$” or AUD means Australian dollars;
- A reference to “we”, “us” or “our” or “ourselves” means Birch & Co and includes its successors and assigns; and
- A reference to “you” or “your” or “yourself” means the user of any part of the website.
In these Terms, unless the context otherwise requires, words in italics have the following meanings:
- “access codes” means any username and/or password.
- “administration pages” means those secured web documents forming part of the website that are not public pages or secured user pages, and includes any content stored on the website that is accessible through those documents to the extent that such content is not accessible by or clearly not designed and intended to be used by members of the public.
- “Birch & Co” means Birch & Co Solicitors Pty Ltd (A.B.N. 47 620 357 986) trading as Birch & Co.
- “Claim” means any claim whatsoever whether or not the same is presently known to or in the contemplation of yourself or us (and includes any claim, action, cause of action, suit, demand, proceeding, notice, litigation,investigation or judgment), whether based at common law (including negligence), in Equity or under statute.
- “content” includes text, graphics, photographs, animations, audio, video, design, software, database files, applets,services, Utilities, and any other resource whatsoever, and includes information and data.
- “Consequential Loss” includes but is not limited to indirect loss, loss of revenue, loss of reputation, loss of profit,loss of actual or anticipated savings, lost opportunities (including opportunities to enter into arrangements with thirdparties), loss or damage in connection with Claims by third parties against you, or loss or corruption of data.
- “electronic communication” means a communication of information in the form of data, text or images by guided orunguided electromagnetic energy, or a communication of information in the form of sound by guided or unguidedelectromagnetic energy, if the sound is processed at its destination by an automated voice recognition system.
- “Intellectual Property Rights” means all present and future rights conferred by statute, common law or equity in orin relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions,and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
- “Internet” means the world wide connection of computer networks providing for the transmittal of electronic mail,on-line information, information retrieval and file transfer protocol.
- “Liability” includes any and all liability whatsoever whether arising in contract, tort including negligence, understatute or otherwise, and includes liability for any Loss.
- “linked content” means a site or content owned, operated, maintained or provided by anyone other than Birch & Co which is made accessible by you via a link on any part of the website.
- “Loss” includes all losses, Claims, damages, outgoings, charges, penalties, fines, costs and expenses (includinglawyers fees and expenses) of whatever description and whether present, unascertained, contingent or prospectiveand whether direct or in the nature of Consequential Loss.
- “local law” means any applicable law in force in the jurisdiction in which you are viewing the website.
- “Moral Right” means:
- a right of attribution of authorship; or
- a right not to have authorship falsely attributed; or
- a right of integrity of authorship; or
- a right of a similar nature,
which is conferred by statute, and which exists or comes to exist anywhere in the world.
- “objectionable material” includes pornographic or sexually degrading content or content that advocates criminal behaviour, violence, terrorism, or cultural, sexual, racial, religious or political discrimination or harassment, and includes any other material that would be distasteful to a reasonable person.
- “operation” means any operation we allow to be performed or carried out on a secured user page including, but not limited to, the use of any functionality incorporated into any secured user page.
- “password” includes any secret alphanumeric use code prescribed or required by us in order to use any part of the website that is not a public page or clearly intended to be accessible from a public page.
- “personal information” has the meaning ascribed to it in the Privacy Act.
- “Privacy Act” means the Privacy Act 1988 (Cth).
- “public pages” means those web documents forming part of the website that are accessible by and clearly designedand intended to be used by members of the public without an access code, and includes any content stored on the website that is accessible through those documents but only to the extent that such content is accessible by and clearly designed and intended to be used by members of the public without an access code, and for the avoidance of doubt excludes any administration pages or secured pages.
- “site” means a location accessible on the Internet through the Web, whether or not via a graphical user interface, and includes any content appearing on or in or offered at any such location.
- “secured user pages” means those web documents forming part of the website that are not public pages or administration pages or that are clearly not designed and intended to be used as public pages.
- “sensitive information” has the meaning ascribed to it in the Privacy Act.
- “unauthorised material” includes: (a) any virus, malware or executable file or code or any other computer filewhich unilaterally modifies or manipulates (or attempts to do so) any content forming part of the website or anything on your computer, (b) any illegal, obscene or defamatory material, objectionable material, material that infringe the rights of privacy and publicity of third parties, (c) any material in which any third party has any Intellectual Property Rights who has not consented the use or proposed use of such material, and (d) anything else you are prohibited from entering or storing on any part of the website. For the purposes of this definition, “material” includes content.
- “use” includes accessing, viewing, displaying or manipulating (whether remotely on our servers or otherwise) any content forming part of the website (or any linked content where such content is accessed, viewed or displayed by you by following a link contained on any part of the website) or performing any operation, and includes storing (or continuing to store) any content on the website and attempting to do any of the foregoing.
- “username” means a unique alphanumeric identifier that that you are required to enter electronically in order to use the secured user pages.
- “Utilities” has the meaning ascribed to it in Clause 3.
- “website” means the Internet site operated by us at www.birchandco.com.au, and includes all content located oraccessible thereon other than linked content.
- “web” means a method of representing and obtaining graphical data and linking data items used by Internet users.
- “web documents” includes but are not limited to web pages written in HyperText Markup Language (HTML).