TERMS OF SERVICE

1. About these Terms

These Terms of Service ("Terms") form a legally binding agreement between you (the "Customer", "you", "your") and Earlibird AI Pty Ltd (ABN 76 674 568 140), trading as Earlibird AI ("Earlibird", "we", "us", "our").

They govern your use of our website at earlibird.ai and the AI voice and text systems and related services we build, configure, and manage for you (together, the "Service").

By signing one of our proposals or setup agreements, paying a deposit or invoice, accessing or using the Service, or instructing us to begin work, you confirm that you have read, understood, and agree to be bound by these Terms and our Privacy Policy and Refund Policy, which form part of these Terms. If you are agreeing on behalf of a business, you confirm that you have the authority to bind that business, and "you" refers to that business.

Your specific build, scope, channels, deliverables, fees, and payment schedule are set out in the proposal or setup agreement you sign with us (your "Agreement"). These Terms apply alongside that Agreement. If there is any conflict, the signed Agreement takes precedence for the specific commercial terms it covers, and these Terms govern everything else.

If you do not agree to these Terms, you must not use the Service.

2. Definitions

In these Terms, unless the context requires otherwise:

"AI Output" means any content, response, classification, recommendation, booking, message, or action generated by the artificial intelligence or automated components of the Service.

"Customer Data" means all data and content provided, submitted, or made available by you or on your behalf (including by your End-Users) in connection with the Service, including call recordings, transcripts, call and message metadata, contact lists, booking information, scripts, and business information.

"End-User" means an individual who interacts with the Service on your behalf, such as a caller, lead, customer, patient, or client of your business.

"Service" means the AI voice and text systems we build and manage for you, our website, and all related services described in your Agreement.

"Support Hours" means allocated capacity for support, changes, and additional work, where included in or purchased under your Agreement.

"Third-Party Platforms" means any third-party products, services, or infrastructure that the Service relies on, integrates with, or interoperates with, including (without limitation) your CRM, the Earlibird App, telephony and SMS carriers, email providers, messaging platforms, AI and voice providers, and connector or automation tools such as Zapier or Make.

"Earlibird App" means the platform we provide to you to operate your Service, which is built on third-party software licensed to us.

"Confidential Information" means non-public information disclosed by one party to the other that is marked confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure.

"Australian Consumer Law" or "ACL" means Schedule 2 to the Competition and Consumer Act 2010 (Cth).

3. Our Services

We build, configure, train, test, deploy, and manage AI voice and text systems for your business. Depending on your Agreement, the Service may handle inbound calls and messages, respond to leads, qualify and progress them, book appointments, run reactivation campaigns, and send confirmations, reminders, and follow-ups.

The Service is designed for lead handling, qualification, booking, and reactivation. It is not a source of detailed or specialist business advice, and it is not a substitute for professional judgement. The Service is for business use only and must not be used for life-critical, emergency, or safety-critical purposes.

We provide the Service with reasonable care and skill. We do not guarantee any particular number of calls answered, leads handled, appointments booked, conversion rates, revenue outcomes, or uninterrupted availability.

4. The Build, Deposit, and Go-Live

Your Service is delivered through an onboarding, build and testing, review, and go-live process as set out in your Agreement.

When you choose to proceed, you sign your Agreement and pay a deposit, which is applied toward your build fee. You then have a 48-hour review window from the time you sign, during which you may cancel for a full refund of anything you have paid, as set out in Section 7 (Refunds). Other than scheduling your onboarding, build work does not commence during your review window, unless you ask us in writing to start early, in which case our Refund Policy applies to any work performed at your request.

Once your review window has passed, your engagement is committed and your build proceeds in accordance with your Agreement.

You agree to provide the information, scripts, system access, and approvals we reasonably need to build and deploy your Service in a timely way. Delays in providing these may delay your go-live.

5. Fees, Billing, and Payment

Build and setup fees. Build and setup fees are charged once, in accordance with the payment schedule set out in your Agreement.

Monthly fees. Monthly fees (including software, system management, and any other recurring fees under your Agreement) are billed in advance, not in arrears. You pay for each upcoming month before it begins. Where your Service includes a build, your monthly subscription begins 30 days after your onboarding call, unless your Agreement states otherwise. For standalone subscriptions purchased without a build, billing begins at the time of purchase.

Invoices and due dates. Each invoice is payable by the due date shown on it. Where no due date is shown, payment is due on invoice issue.

Stored payment method. By providing a payment method, you authorise us to securely store it with our payment processor and to charge it for amounts due under your Agreement and these Terms, including scheduled payments, recurring fees, third-party and usage costs billed through us, and additional work you approve.

Automatic payment of overdue amounts. You authorise us to charge your stored payment method for any amount that remains unpaid after its due date. If a charge is unsuccessful, we may retry it on subsequent business days and will contact you for an updated payment method if it continues to fail.

If payment is not made. If any amount is not paid when due, we will notify you and give you the opportunity to bring your account up to date before any suspension takes effect. If your account remains unpaid after that opportunity, we may suspend or restrict your access to the Service, including the operation of your AI systems and any Support Hours, until all outstanding amounts are paid in full. Access is restored promptly once your account is brought up to date, and no reactivation fee applies. Continued non-payment after suspension may be treated as cancellation of your Service. We will only exercise our rights under this clause in a manner that is reasonable and proportionate. We may charge interest on overdue amounts, and you must pay our reasonable costs of recovering overdue amounts.

Third-party and usage costs. Third-party provider costs (including telephony, SMS, email, and AI usage) are billed separately and are your responsibility, whether billed by us as a pass-through or billed to you directly by the provider. Consumed usage is not refundable.

Third-party usage (calls, SMS, email sends, and AI usage) billed through our system is billed at our current usage rates, published at earlibird.ai/usage-rates and available in your platform. Our usage rates may change from time to time: the current rates are always those published, changes apply only to usage after they take effect, and we will take reasonable steps to notify you of material increases. Consumed usage is not refundable.

Taxes. All fees are exclusive of GST and any other applicable taxes. Where GST applies to a supply we make to you, you must pay us the GST in addition to, and at the same time as, the fee for that supply.

6. Support Hours

Where your Agreement includes Support Hours, the following applies. Requests are submitted through our designated support channel. We estimate the hours required for each request before starting work, and hours are deducted on completion based on that approved estimate. Monthly Support Hour allocations apply to that month only: unused hours expire at the end of each month, do not roll over, and do not accumulate, unless your Agreement expressly states otherwise. Validity periods and expiry for any prepaid Support Hour blocks are as set out in your Agreement. Unused Support Hours are not redeemable for cash and are not refundable. Work exceeding your available hours, or falling outside the nature of support work, will be quoted separately before we proceed.

7. Refunds

Your 48-hour review window. Anything you pay under a new Agreement is fully refundable for 48 hours after you sign that Agreement. If you decide not to proceed within that window, tell us in writing at [email protected] and we will refund all amounts paid under that Agreement in full. If you asked us in writing to start work early, we may deduct the reasonable value of work already performed at your request, as set out in our Refund Policy.

Once your window has passed. After the 48-hour window, your engagement is committed. From that point we do not refund for change of mind, change of circumstances, or deciding not to go ahead. Your deposit and payments are applied to your build fee.

The only path to a refund after the window. After your review window, a refund is available in one situation only: we deliver a system that is non-operational, and after a fair opportunity to fix it, we are unable to make it operational.

What "non-operational" means. Non-operational means the system does not perform the core functions set out in your scope (for example, it does not answer calls, does not respond to leads, or does not book appointments as described). It does not mean the AI said something wrong, phrased something imperfectly, or gave an answer you would word differently. The AI producing an incorrect, imperfect, or off-target response is not a fault in the system and is not grounds for a refund. Wording, the accuracy of individual responses, and conversational quality are handled through optimisation.

We fix it first. If you believe the delivered system is non-operational, you agree to tell us and give us a reasonable opportunity to investigate and correct it. The large majority of issues are resolved through configuration and optimisation. A refund is only considered if, after that opportunity, we cannot make the system operational.

Third-party platforms, changes, and outages. Your system relies on Third-Party Platforms to operate. If a third party changes its policies, changes how it operates, restricts, suspends, or discontinues an API or integration, stops passing data or phone numbers through as it previously did, suffers an outage, or otherwise fails in a way that affects your system, that is outside our control and is not our responsibility. It does not mean the system we built is non-operational, and it is not grounds for a refund. We may, at our discretion, help restore service as a goodwill gesture, or quote any required remediation work separately, but we are under no obligation to do so.

Costs already used. Third-party provider costs and any usage already consumed are not refundable, as these are paid to outside providers on your behalf. Consumed or expired Support Hours are not refundable.

This Section 7 operates subject to your non-excludable rights under the Australian Consumer Law (see Section 17). Our full Refund Policy, including terms for specific product types, is available at earlibird.ai/refund-policy.

8. Cancellation

Subscriptions under a signed Agreement. You may cancel your monthly subscription at any time by giving us 30 days written notice to [email protected]. Your access and management services continue through the notice period, which is paid in advance, and end at the close of that period.

Standalone subscriptions without a signed Agreement. Where you subscribe to a standalone product or service without a signed Agreement (for example, an online purchase or membership), you may cancel at any time. Your subscription and access continue until the end of your current paid billing period, and you are not charged again after that. No partial refunds are issued for unused time within a billing period.

Your one-time build fee, and any deposit applied to it, are not refundable on cancellation (subject to Section 7 and your non-excludable rights under the ACL).

9. Intellectual Property and Licence

We own all intellectual property in any AI system we build for you, including its configuration, conversational flows, prompts, automations, scripts, and underlying build, together with our name, logo, and trademarks. On full and ongoing payment of your fees, you receive a non-exclusive, non-transferable licence to use the system for your business while your account is active and your fees are paid up to date. The licence ends if your Agreement ends or fees remain unpaid.

Configuration of the system with your Customer Data, business information, preferences, or other inputs does not create any joint ownership of, or any Customer interest in, the system. All such inputs remain your Customer Data, and the system remains our intellectual property.

As between you and us, you own your Customer Data. Nothing in these Terms transfers ownership of your Customer Data to us. You grant us a licence to host, process, store, and use your Customer Data as reasonably necessary to provide, support, secure, and improve the Service, in accordance with our Privacy Policy.

If you wish to own and operate a system independently, you may, at our discretion, acquire a one-time licence to that system for a separate licence fee under a separate written agreement. Any such licence transfers the system as it stands at the date of handover only, and ongoing updates, improvements, and support remain available solely under an active subscription.

You must not remove or alter any proprietary notices, copy or resell the Service, or attempt to reverse engineer the underlying build, except to the extent permitted by law.

10. Your Responsibilities

You are responsible for:

• the security of your account credentials and all activity under your account;

• the accuracy, quality, and lawfulness of your Customer Data and the way you obtained it;

• configuring and using the Service in compliance with these Terms and all laws that apply to your business and industry;

• providing all required privacy notices to your End-Users and obtaining all consents needed to collect, use, and disclose their personal information (including any Sensitive Information and any consent to call recording) to us;

• ensuring your End-Users are clearly told, at the start of any interaction, that they are dealing with an AI-powered agent and not a human;

• maintaining your own accounts and relationships with Third-Party Platforms and complying with their terms;

• reviewing and overseeing AI Output before relying on it; and

• maintaining your own backups of your data, as the Service is not a backup or disaster recovery solution.

Acceptable use. You must use the Service only for lawful purposes. You must not use it, or allow it to be used, to breach any law, infringe the rights of any person, send unlawful or unsolicited messages, transmit viruses or harmful code, or interfere with or attempt to gain unauthorised access to the Service or any related systems. We may suspend or terminate your access for breach of this clause.

11. Call Recording and Consent

The Service may record, process, and analyse phone calls. You are solely responsible for ensuring that your use of the Service complies with all laws relating to call recording, surveillance, and interception, including the Telecommunications (Interception and Access) Act 1979 (Cth), relevant state and territory surveillance and listening device laws, and the Privacy Act 1988 (Cth).

You must provide all required notifications and obtain all required consents from your End-Users before, or at the start of, any recorded or processed call. We may provide configurable tooling to assist with consent notifications, but this does not relieve you of responsibility for the content and legal sufficiency of your notices.

12. AI Disclosure to End-Users

You must ensure that every End-User is clearly informed, at the earliest practicable point in any interaction, that they are communicating with an AI-powered automated agent and not a human being, in compliance with all applicable laws and codes relating to AI transparency and consumer protection. We may provide configurable disclosure tooling, but you remain responsible for the adequacy and legal sufficiency of these disclosures.

13. Outbound Communications

If you use the Service to initiate outbound calls or messages, you are solely responsible for ensuring those communications comply with all applicable laws, including the Do Not Call Register Act 2006 (Cth), the Spam Act 2003 (Cth), and any applicable time-of-day and consent requirements. We do not screen, wash, or verify your outbound contact lists against any do-not-call register, and we do not monitor the content, timing, or lawfulness of your outbound communications. You must maintain your own internal do-not-contact list and comply with all calling restrictions.

14. AI Output and Automated Actions

The Service uses artificial intelligence and automated tools to generate AI Output and take actions based on your configurations, scripts, and instructions. You acknowledge that:

• AI Output is generated probabilistically and may be inaccurate, incomplete, or unexpected, including the generation of plausible but incorrect information;

• you are responsible for reviewing, validating, and overseeing AI Output, and for deciding how it is used in your business;

• you are responsible for the permissions, scopes, and settings you configure in your Customer Systems and Third-Party Platforms, including what the Service is authorised to create, update, or delete; and

• the Service must not be used for any purpose where an error or delay could reasonably result in death, personal injury, or significant harm.

An incorrect or off-target AI response is not, on its own, a failure of the Service, and is addressed through optimisation rather than refund (see Section 7).

15. Third-Party Platforms, Dependencies, and Outages

The Service relies on Third-Party Platforms to function. We do not own or control these providers, and we are not responsible for their availability, performance, security, or reliability.

If a third party changes its policies, changes how it operates, restricts, suspends, or discontinues an API or integration, stops passing data or phone numbers through as it previously did, experiences an outage, or otherwise fails in a way that affects your system, that is outside our control and is not our responsibility. Any resulting disruption does not mean the system we built is non-operational and is not grounds for a refund. We may, at our discretion, assist in restoring service as a goodwill gesture, or quote any required remediation work separately, but we are under no obligation to do so.

You are responsible for maintaining your own accounts, subscriptions, and backups with Third-Party Platforms.

16. Confidentiality, Privacy, and Data Security

Each party must keep the other party's Confidential Information confidential and use it only for the purposes of these Terms.

We handle personal information in accordance with our Privacy Policy and the Privacy Act 1988 (Cth). When we process personal information about your End-Users, we generally do so on your behalf as a service provider, and you remain responsible for your own obligations as the entity that collects that information.

We implement reasonable technical and organisational measures to protect Customer Data, including encryption in transit and at rest, access controls, and secure credential storage. No method of transmission or storage is completely secure, and we cannot guarantee absolute security.

In the event of a data breach involving personal information, we will comply with the Notifiable Data Breaches scheme under Part IIIC of the Privacy Act 1988 (Cth) and, where we process data on your behalf, notify you without undue delay after our initial assessment so that you can meet your own obligations.

17. Australian Consumer Law

Nothing in these Terms excludes, restricts, or modifies any guarantee, right, or remedy under the Australian Consumer Law or any other law that cannot lawfully be excluded ("Non-Excludable Rights").

Where the ACL applies and a failure to comply with a consumer guarantee is not a "major failure", our liability is limited (at our option, to the extent permitted by section 64A of the ACL) to re-supplying the services or paying the cost of having them re-supplied. Where the failure is a major failure, you have the rights given to you by the ACL.

18. Disclaimers and Limitation of Liability

To the maximum extent permitted by law and subject to your Non-Excludable Rights, the Service is provided "as is" and "as available", without warranties of any kind. We do not warrant that the Service will be uninterrupted, error-free, compatible with all Third-Party Platforms, or that it will achieve any particular business outcome.

To the maximum extent permitted by law and subject to your Non-Excludable Rights:

• we are not liable for any consequential or indirect loss, including loss of profit, revenue, data, business, goodwill, bookings, or anticipated savings, however caused; and

• our total aggregate liability for all claims arising out of or in connection with these Terms or the Service will not exceed the total fees paid by you to us for the Service in the twelve (12) months immediately before the event giving rise to the liability.

These limits do not apply to liability that cannot be excluded or limited by law, or to our fraud or wilful misconduct.

19. Indemnity

You agree to indemnify us against any claim, loss, liability, cost, or expense (including reasonable legal fees) arising from or in connection with your breach of these Terms, your Customer Data, your configurations and instructions, your failure to obtain required consents (including for call recording), your failure to make required AI disclosures, your outbound communications, or your breach of any law or third-party right, except to the extent the claim is directly caused by our breach of these Terms or our negligence.

20. Term and Termination

These Terms apply from the date you first accept them and continue until terminated.

You may terminate by cancelling in accordance with Section 8. We may suspend or terminate your access immediately if you engage in fraudulent or unlawful activity, breach a material term other than payment (in which case Section 5 applies to non-payment first), or where we are required to do so by law. On termination, your right to use the Service ends, you remain liable for amounts accrued up to termination, and we may delete or de-identify your Customer Data in accordance with our Privacy Policy. Before termination takes effect, you may ask us to export your Customer Data to you in a commonly used format. Written confirmation of data deletion is available on request. The provisions that by their nature should survive termination will survive.

21. Dispute Resolution

If a dispute arises, the parties must first try to resolve it by good-faith negotiation. If it is not resolved within twenty (20) business days, either party may refer it to mediation in Queensland, Australia, with the cost of the mediator shared equally. Neither party may commence court proceedings (other than for urgent or injunctive relief) until it has complied with this Section.

22. Governing Law

These Terms are governed by the laws of Queensland, Australia, and each party submits to the exclusive jurisdiction of the courts of Queensland and the courts that hear appeals from them.

23. General

Changes to these Terms. We may update these Terms from time to time by posting the updated version on our website. For material changes, we will take reasonable steps to notify you. Your continued use of the Service after the changes take effect constitutes acceptance.

Force majeure. Neither party is liable for any failure or delay (other than a payment obligation) caused by an event beyond its reasonable control.

Assignment. You may not assign these Terms without our prior written consent. We may assign these Terms in connection with a sale or restructure of our business, provided the assignee agrees to honour them.

Severability. If any provision is held invalid or unenforceable, it is severed or read down to the minimum extent necessary, and the remaining provisions continue in full force.

Waiver. A failure to enforce a right is not a waiver of that right.

Entire agreement. These Terms, together with your Agreement, our Privacy Policy, and our Refund Policy, are the entire agreement between us about the Service and supersede any prior understanding.

Relationship. Nothing in these Terms creates a partnership, agency, or employment relationship between us.

24. Contact

Questions about these Terms can be sent to us at:

Earlibird AI Pty Ltd ABN: 76 674 568 140

Phone: 1300 542 635

Email: [email protected]

Address: Suite 25 / 29 Claremont Street, South Yarra, VIC 3141, Australia

Related

Privacy Policy (earlibird.ai/privacy-policy): how we collect, use, and protect personal information

Refund Policy (earlibird.ai/refund-policy): your 48-hour review window and refund terms by product type

Contact ([email protected]): for any commercial or contractual enquiry