These Terms will apply to any contract between us for the provision of Services to you (Contract). Please read these Terms carefully and make sure that you understand them, before ordering any Services from our site. Please note that before placing an order you will be asked to agree to these Terms. If you refuse to accept these Terms, you will not be able to order any Services from our site.
These Terms were most recently updated on 5 July 2017
These Terms, and any Contract between us, are only in the English language.
API Service: means the provision of us providing to you the Birdsong API service.
API Service Contract: means either (i) a Contract for the provision of the API Service or (ii) where a Contract relates to Services which include, but do not comprise only of, the API Service, that part of the Contract which comprises the API Service.
- Information about us: birdsonganalytics.com/ is operated by Digital Tomorrow Today Limited, a company registered in England and Wales under company number 04453239 and with our registered office at 16 The Havens Ransomes Europark Ipswich Suffolk IP3 9SJ. Our main trading address is Unit 1, Brightwell Barns, Ipswich Road, Brightwell, Ipswich, Suffolk IP10 0BJ. Our VAT number is 104 7214 53.
- Contacting us: Subject to the terms of clause 43, you may contact us in writing at the address above, by contacting our customer service team on Skype at 020 8144 2877 or by e-mailing us at firstname.lastname@example.org.
- Use of our site: We do not guarantee that our site, or any content on it, will always be available or be uninterrupted. We may suspend, withdraw, discontinue or change all or any part of our site without notice. We will not be liable to you if for any reason our site is unavailable at any time or for any period.
- Content of our site: Although we make reasonable efforts to update the information on our site, we make no representations, warranties or guarantees, whether express or implied, that the content on our site is accurate, complete or up-to-date. We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our site or to your downloading of any content on it, or on any website linked to it.
- Third Party links: We assume no responsibility for the content of websites linked on our site. Such links should not be interpreted as endorsements by us of those linked websites. We will not be liable for any loss or damage that may arise from your use of them.
- Age restrictions: If you are a consumer, you may only purchase Services from our site if you are at least 18 years old. This website is not directed at children under 13 years of age and we do not knowingly collect or solicit personally identifiable information from children under 13 or knowingly allow such persons to create accounts.
- Authority to bind business: If you are not a consumer, you confirm that you have authority to bind any business on whose behalf you use our site to order Reports or the API Service. You also acknowledge that the cancellation rights set out in clauses 16 to 20 (inclusive) do not apply to customers who are not consumers.
- Exclusion of other terms: These Terms and any document expressly referred to in them constitute the entire agreement between you and us and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to their subject matter.
- Placing orders for Services: Our site will guide you through the steps you need to take to place an order for Services, which may include reviewing and selecting appropriate social media accounts on which BirdSong Analytics reports (Reports) will be prepared. Our order process allows you to check and review the accounts selected before submitting your order to us. Please take the time to check these social media accounts before submitting your order to confirm that they are the correct accounts as we will have no responsibility if you select incorrect accounts (for example “parody” or “tribute” accounts instead of a genuine account). Please also ensure that all other details provided by you during the order process, in particular, your email address, are correct as we will not be responsible should any Services (or any part thereof) be provided late or not be provided if this is caused by you providing us with incomplete or incorrect information (for example, if we send a Report to an email address which was provided by you in error).
- Formation of Contract between us: Your placing an order for the provision of Services is an offer by you to enter into a contract with us for the provision of those Services on these Terms. We may accept that offer at any time after your order is placed by sending you an email (or other acknowledgement) confirming that your order has been accepted or by commencing the provision of the Services, at which point the Contract between us for the provision of the Services will come into force (Contract Formation Date). In relation to the provision of the API Service only, the API Service Contract will continue on a rolling monthly basis from the Contract Formation Date (for the purposes of these Terms, each contractual month shall be referred to as an API Service Month) until the API Service Contract is terminated in accordance with these Terms.
- Changes to these Terms: We may amend these Terms from time to time. Please look at the top of this page to see when these Terms were last updated. Every time you order Services from us, the Terms in force at the time of your order will apply to the Contract between you and us.
- Consumer Cancellation Rights – Reports: If you are a “consumer” as defined under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (the Regulations), you have a legal right to cancel a Contract for the provision of one or more Report(s) during the period ending on the earlier of (i) 14 days from the date on which the Contract for the provision of the Report was entered into and (ii) in respect of each Report, the date on which you download the Report. If you exercise this right to cancel then the Credits with which you purchased the Report will be refunded to your account (subject to any deduction under clause 20).
- Consumer Cancellation Rights – Credits: If you are a “consumer” as defined under the Regulations, you have a legal right to cancel a Contract for the provision of Credits to your account during the period ending on the earlier of (i) 14 days from the date on which the Credits were allocated to your account by us and (ii) the date on which the Credits are used by you to enter into a Contract for the provision of one or more Report(s). If you exercise this right to cancel then the amount paid for the Credits will be refunded to your payment card by our third party payment processor, Stripe, which may take 10 to 14 days (subject to any deduction under clause 20).
- Consumer Cancellation Rights – API Service: If you are a “consumer” as defined under the Regulations, you have a legal right to cancel an API Service Contract during the period ending on the earlier of (i) 14 days from the date on which the API Service Contract was entered into and (ii) the date on which you commence your first chargeable or live export of records or data via the API. If you exercise this right to cancel then the amount paid for the API Service will be refundable to your account (subject to any deduction under clause 20).
- Consumer Cancellation Rights – Notification: To cancel a Contract for the provision of Credits, a Contract for the provision of a Report or an API Service Contract, you just need to let us know that you have decided to cancel. The easiest way to do this is to complete the cancellation form on our website.
- Consumer consent to provision of Services during cancellation period: If you are a “consumer” (as defined under the Regulations) then you acknowledge and agree that by placing an order for Credits or for the provision of a Report or API Service you consent to us commencing the provision of our Services in respect of the allocation of the Credits, the production of the Report or the provision of the API Service immediately and that if you later cancel the provision of these Services under the Regulations you will be liable for the cost of all Services provided by us in respect of the Report or the API Service up to the date of cancellation. In relation to the provision of Reports only, you acknowledge that the full cost of these Services will have been incurred once we begin processing the Report and that accordingly the cost of those Services shall be deemed to be the full amount of Credits paid by you for the provision of the Report.
- Delivery of Reports: We will confirm the estimated delivery date for each Report which is to be provided as part of the Services prior to the placing of your order. Occasionally our delivery to you may be affected by an Event Outside Our Control. See clause 40 for our responsibilities when this happens.
- Intellectual Property Rights in our site: We are the owner or the licensee of all intellectual property rights in our site, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
- Use of your name, trade mark and logo: You agree that we may identify you as a recipient of our Services and use your name (or that of your company), logo and any relevant trade marks (“your Branding”) for the purposes of displaying these on our site and marketing materials for promotional purposes. You hereby grant us a perpetual, irrevocable, non-exclusive licence to use any relevant trade mark (registered or unregistered) and any other relevant intellectual property rights owned by you for the purpose set out in this clause. You have the right to opt out of this clause by emailing email@example.com in which case this clause will not apply. If you opt out then, if your Branding has already been displayed on our site, we shall remove this within 5 working days of receipt of your request and will cease to use it in future marketing materials. For the purposes of these Terms, “working day” shall mean a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
- Provision of Services outside the United Kingdom: If you order Credits, Reports or the API Service from a jurisdiction other than England and Wales then you must comply with all applicable laws and regulations of your local jurisdiction which may relate to the provision of Credits, Reports and/or the API Service. We will not be liable or responsible if you break any such law.
- Pricing of Services: The prices of the Services will be as quoted on our site at the time you submit your order. In relation to the provision of Credits and Reports, prices are based on the number of followers, following, fans (or similar terms for other social media channels) as reported by the relevant social media channel API at the time the order is submitted. Please note that the number of followers, fans etc. in the final Report may differ from this number for a variety of reasons (including, without limitation, deleted accounts which are still shown as followers or fans). In relation to the provision of the API Service, prices are based on the number of records (for the purposes of this clause 26, a “record” is one Twitter or Instagram profile e.g. the profile of a follower of a publicly available Twitter or Instagram account or the profile of one of the accounts it follows. This record may include up to 20 fields of data about that profile) you are able to access. Please note that any unused records will not rollover to the next month.
- Upgrading or downgrading the API Service: You can upgrade or downgrade your monthly subscription package to your API Service by giving us at least one week’s written notice (by email pursuant to clause 43) of such instructions to upgrade or downgrade your monthly subscription with such upgrade or downgrade to take effect at the commencement of an API Service Month.
- Alteration of Prices: The price of Credits, the number of Credits required for a particular Service, the price of the API Service and the scope of such Service may change from time to time. These changes will not affect any order you have already placed for a Report or the cost of any Credits which you have already purchased. The details of any such proposed changes will be detailed on our website. With regard to the API Service, the details of any changes will also be emailed to you pursuant to clause 43. Should you not accept the proposed changes, you must do so by emailing us pursuant to clause 43 within 30 days of receipt of our notice. Following receipt of your notice, the API Service Contract will automatically terminate at the expiry of the current API Service Month. Should we not receive any such notice from you in that period, the proposed changes shall take effect from the commencement of the next API Service Month following expiry of the 30 day period.
- Value Added Tax: The price of the Services excludes VAT or other sales tax (where applicable). For UK customers, VAT will be charged at the applicable current rate chargeable in the UK for the time being at the time the Contract is formed and for customers outside the UK any applicable sales tax will be charged at the applicable current rate. We will rely on the information provided by you about your country of residence or incorporation and your status as a business or consumer when calculating the applicable VAT and will not be liable for any inaccuracy in the information provided by you.
- How to pay: Payments for Credits and the API Service are processed by our third party payment processor, Stripe (https://stripe.com/gb) and may only be made using payment sources accepted by them. You may be required to accept additional terms of service imposed by them when payments are made. If your payment is made in a currency other than US dollars (USD $) then you will be responsible for all exchange rate costs and associated risks. We may in certain circumstances accept alternative payment methods such as Paypal, but shall not be obliged to do so.
- Timing of payment: Payment for Credits must be made in advance. Credits have no cash value and are not refundable or cancellable except as set out in clauses 16, 17, 19 and 20 and are not transferable. Credits will only be allocated towards the provision of Services when the Contract between us is formed as set out in clause 12. In relation to the provision of the API Service, you should pay to us in cleared funds the agreed monthly fee in advance through Stripe by the last working day of the prior API Service Month.
- Limited warranty: Except as expressly stated in these Terms, we do not give any representation, warranties or undertakings in relation to the Services or the Reports. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Reports are suitable for your purposes.
- Terminating an API Service: The provisions of this clause shall apply to an API Service Contract only.
(a) The API Service Contract will continue unless and until:
(i) you give no less than one week’s written notice by email pursuant to clause 43 to terminate the API Service Contract with such notice to expire at the end of an API Service Month; or
(ii) we terminate the API Service Contract at any time by email to you pursuant to clause 43 if you do not make any payment to us when it is due.
(b) If we terminate the API Service Contract pursuant to clause 35(a)(ii), we may make a reasonable charge to you for compensation in respect of the net costs we will incur as a result of your breaking the API Service Contract.
(c) We may write to you to let you know (by email pursuant to clause 43) that we are going to stop providing the API Service. We will use reasonable endeavours to provide you with sufficient advance notice of our stopping the API Service and will refund, on a pro rata basis, any sums you have paid in advance in respect of any period in which the API Service has not been provided.
(e) On termination of the API Service Contract you shall immediately stop using the API Service.
- Consequences of termination: Any provision that expressly or by implication is intended to come into or continue in force on or after termination or satisfaction of the Contract (or an API Service Contract) shall remain in full force and effect.
- Limitation of liability: We only supply the Services for internal use by you or your business, and you agree not to use the Services or Reports for any resale purposes. Nothing in these Terms limits or excludes our liability for (i) death or personal injury caused by our negligence; (ii) fraud or fraudulent misrepresentation (iii) breach of any representation, condition or warranty implied into these Terms and which cannot legally by excluded. Subject to the foregoing we will not be liable to you in any circumstances whether in contract, tort or otherwise for any loss of profits, sales, business or revenue; loss or corruption of data, information or software; loss of business opportunity; loss of anticipated savings; loss of goodwill; or any indirect or consequential loss. Subject to the preceding provisions of this clause, our total liability to you in respect of all losses arising under or in connection with the Contract shall in no circumstances exceed the price paid for the Services and/or Reports in respect of which such losses arise.
- Events Outside Our Control: We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in clause 39.
- Consequences of Events Outside Our Control: if an Event Outside Our Control takes place that affects the performance of our obligations under a Contract we will contact you as soon as reasonably practicable to notify you and (at our option) may either notify a later delivery date for any Reports or cancel the Contract and refund the relevant Credits (or in respect of the API Service, any sums paid by you on a pro rata basis for the API Service in respect of any period in which the API Service has not been provided) to your account.
- Transferring Rights and Obligations: we may transfer our rights and obligations under a Contract to another organisation, but this will not affect your rights or our obligations under these Terms. You may only transfer your rights or obligations under these Terms or a Contract to another person if we agree in writing.
- Third Party Rights: any Contract formed is between you and us. No other person shall have any rights to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
(a) Any notice given to a party under the Contract shall be in writing and shall be delivered by e-mail to the addresses set out below:
To the e-mail address set out in the order.
(b) Any notice sent pursuant to this clause 43 shall be deemed to have been received at 9.00 am on the next working day after transmission.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
- Severance of Terms: Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
- No waiver of rights: If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
- Governing law and jurisdiction: these Terms are governed by English law. This means a Contract for the purchase of Credits or Services through our site and any dispute or claim arising out of or in connection with it will be governed by English law. You and we both agree to that the courts of England and Wales will have non-exclusive jurisdiction. However, if you are consumer and a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are a consumer and a resident of Scotland, you may also bring proceedings in Scotland.