Terms and Conditions
In this Agreement, the defined terms listed below shall have the following meanings:
Additional Subscription Period(s) – the time period(s) for which you continue to subscribe for Services after your Minimum Term has expired, and which shall have the same duration as your Minimum Term
Affiliates – any entity that directly or indirectly controls, is controlled by, or is under common control with another entity
Company Website – means a website that promotes your services and may be licensed to you by Tom Birch Web Ltd as part of the Paid For Services
Data Protection Laws – and all applicable EU laws and regulations governing the use or processing of personal data, including European Union Regulation 2016/679 and any national laws implementing or supplementing the foregoing
Domain Name – any domain name that may be offered to you as part of the Services
Intellectual Property Rights – patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world
Leads – any third party who contacts you as a result of the Services by any channel which may include, without limitation, telephone calls, SMS, emails and booking requests on the Company Website, irrespective of whether such enquiries result in purchases
Minimum Term – the minimum length of time that you have agreed to purchase the Services as set out on the Order Summary
Subscription Period(s) – after your Minimum Term has finished, unless otherwise notified to you in your Order Form, your Services will be provided on a monthly basis from the day after the Minimum Term finishes. So if your Minimum Term finishes on the 6th January, your Subscription Period will run from the 7th of January until the 6th February and continue monthly until you cancel
Order Summary – the Order Summary that was emailed to you which explains the package you have subscribed for, the price, the Start Date and the Minimum Term
Other Digital Accounts – any third party accounts that may be managed by Tom Birch Web Ltd as part of any Services, including (but not limited to) Google My Business, Facebook for Business, Bing, Google AdWords, Facebook advertising and Bing Ads
Services – includes any services which are provided to you by Tom Birch Web Ltd as set out in your Order Summary, which may include, without limitation, the building and hosting of your Company Website, provision of content on the Company Website, the Domain Name and any content created by Tom Birch Web Ltd for Other Digital Accounts
Referral Credit – any credit that may be applied to your account for recommending third parties who use the Services
Service Provider – a third party business that is promoting its products or services on the Tom Birch Web Ltd Platform
Start Date – the date at which your Services start, which shall be the date specified on the Order Summary
Tom Birch Web Ltd Platform – the technology platform owned by Tom Birch Web Ltd and its licensors that provides all Tom Birch Web Ltd managed websites and applications, including, if applicable, your Company Website, and enables the management of such websites
User Data – personal data (as defined in the Data Protection Act 1998) that is collected on the Tom Birch Web Ltd Platform from end users
1.1 Tom Birch Web Ltd agrees to provide you with access to any Services, as set out in the Order Summary, subject to the terms of this Agreement.
1.2 Unless you are on our free Starter Plan, you agree to pay for the Services from the Start Date for the Minimum Term at the rate set out in the Order Summary. In the case of an annual plan, you agree to pay for the Services from the Start Date for the Minimum Term of one year. To ensure the uninterrupted supply of 3rd party services such as your domain name, we will charge you for the renewal of next year’s annual plan at the end of month 11 of your current plan. Your plan will still run for 12 months. The Services provided are customised to meet your requirements and Tom Birch Web Ltd will not provide any refunds unless the Services are not provided in accordance with this Agreement.
1.3 At the end of the Minimum Term, any Services that you pay for will automatically renew for Additional Subscription Periods until you provide notice to terminate in accordance with clause 1.4.
1.4 You can cancel or downgrade any Services at the end of the Minimum Term or any then current Additional Subscription Period before such period is due to expire. You must request to cancel or downgrade via the link on the Subscriptions page of your Tom Birch Web Ltd Business Hub. Cancellation requests submitted via email will not be honoured. You are not entitled to cancel or downgrade any Services before the end of the Minimum Term or any then current Additional Subscription Period due to a change in your circumstances.
1.5 You are able to add additional Services or upgrade at any time through your Tom Birch Web Ltd Business Hub. To login please click here. Please contact firstname.lastname@example.org for more information. If you would like to transfer an existing domain name to Tom Birch Web Ltd then this can be managed as an additional service, subject to payment of a fee.
1.6 We may adjust the price of the Services at any time after the expiry of your Minimum Term on 1 month’s written notice.
1.7 If you qualify for a Referral Credit, you will be notified of the details of your credit by email and this will be applied to your next Subscription Period.If you cancel the Services before the Referral Credit has been applied then the Referral Credit shall automatically expire.
1.8 All payments are processed by third payment processors including Paypal, Stripe and its their global affiliates.We do not hold any credit or debit card details.You agree to provide our third party payment processors with valid credit or debit card details and authorise them to store your information in accordance with their privacy policies and bill you according to the payment terms set out in your Order Summary and thereafter at the start of each Subscription Period or for other Services that you may purchase from Tom Birch Web Ltd.
1.9 If you fail to pay any charges when they fall due or request to cancel your account before the expiry of your Minimum Term then the total amount payable for the full duration of the Minimum Term will become immediately payable and we may suspend the provision of any Services until such monies are received. Interest will be charged on overdue payments at an annual rate equal to 8% over the Bank of England’s prevailing base rate.
1.10 All prices quoted are exclusive of anysales taxes.
1.11 Tom Birch Web Ltd may alter the Services from time to time. If such changes materially reduce their functionality, Tom Birch Web Ltd will notify you by email and you may provide notice within 30 days of the notification to cancel the Services with immediate effect, even if you are still within the Minimum Term.
1.12 The Start Date for the Services is the date you placed your order and you will be liable to pay for any Services as set out in your Order Form from the Start Date, whether or not you have provided Tom Birch Web Ltd with all the required information to set up the Services.
1.13 Invoices will be stored electronically on www.tombirch.co.uk. You can view and download these at any time from your Business Hub or we can email you invoices on request.
1.14 If you have signed up to a promotional offer (as stated on your Order Summary) then this shall be subject to any payment terms and restrictions as stated on your Order Summary. Tom Birch Web Ltd reserves the right to limit Promotional Offers to any businesses or categories of business at its discretion and to withdraw any promotional offers without notice.
1.15 Tom Birch Web Ltd cannot guarantee that the Domain Name that you would like to purchase will be available through Tom Birch Web Ltd. If you have secured a Domain Name from Tom Birch Web Ltd then you must ensure that you pay any renewal fees to Tom Birch Web Ltd promptly to avoid losing the Domain Name.
1.16 Tom Birch Web Ltd offers a 30 day Money Back Guarantee for purchasers of its Lifetime Deal. The 30 day period commences on the date you purchase the site, regardless of when you submit your information to enable us to build it.
2.1 You grant Tom Birch Web Ltd and our affiliates a non-exclusive, worldwide, perpetual, transferable and sub-licensable right to use, copy, modify, distribute, publish, and process any content:
2.1.1 you upload to the Tom Birch Web Ltd Platform; or
2.1.2 that you have uploaded to other websites, such as Facebook, Google My Business and Yelp (and you hereby provide your consent to Tom Birch Web Ltd utilising your content from such websites for the sole purpose of providing the Services); and
2.1.3 relating to your business on the Tom Birch Web Ltd Platform.
2.3 If you are paying for Services, Tom Birch Web Ltd may licence you a Company Website and / or a Domain Name. Tom Birch Web Ltd is the registrant of the Domain Name.
2.4 If you are paying for Services and you have signed up to listings management as part of the Services (as stated in your Order Summary), you confirm that your listings information (i) does not contain any viruses, spyware or other harmful code or materials, (ii) constitutes a “primary” source of the information, i.e. that you have officially approved it as the authorized representative of the location, and (iii) is current and accurate.
3.1 You make the following warranties to Tom Birch Web Ltd:
3.1.1 you are at least 18 years of age and have the right to enter into this Agreement;
3.1.2 you will not attempt to circumvent security, reverse engineer or interfere with the proper working of the Tom Birch Web Ltd Platform or Other Digital Accounts;
3.1.3 you will keep any password to access the Tom Birch Web Ltd Platform secure and be responsible for any unauthorised access as a result of a third party obtaining your password;
3.1.4 any content you upload to Tom Birch Web Ltd and your use of any Domain Name shall not be defamatory, indecent or illegal or breach the Intellectual Property Rights of any third party and shall be accurate and up-to-date and in accordance with all applicable legal obligations;
3.1.5 other than in relation to any Services that you have purchased, you will not use the Tom Birch Web Ltd Platform for commercial purposes;
3.1.6 you will not abuse the booking system of Service Providers available on the Tom Birch Web Ltd Platform;
3.1.8 you will not sell or licence, or attempt to sell or licence, access to the Tom Birch Web Ltd Platform or Services without our written consent; and
3.1.9 you have the legal right to set up an account for the business that you are representing.
4. INDEMNITY FROM CUSTOMER
4.1 You shall defend, indemnify and hold harmless Tom Birch Web Ltd against any claims, actions, proceedings, losses, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) arising out of or in connection with your use of the Tom Birch Web Ltd Platform, any Services including, without limitation, any Domain Name, or your breach of the warranties set out in clause 3 of this Agreement.
5.1 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER Tom Birch Web Ltd OR ITS AFFILIATES OR SUPPLIERS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE Tom Birch Web Ltd PLATFORM, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON – INFRINGEMENT.Tom Birch Web Ltd CANNOT BE RESPONSIBLE FOR THE QUALITY OF THE LEADS YOU RECEIVE THROUGH THE PAID SERVICES OR WHAT PROPORTION WILL CONVERT TO PAYING CUSTOMERS. REFUNDS WILL NOT BE PROVIDED IN THE EVENT THAT THE NUMBER OR QUALITY OF LEADS YOU RECEIVE THROUGH THE PAID SERVICES DOES NOT MEET YOUR EXPECTATIONS.
5.2 Tom Birch Web Ltd cannot guarantee the continuous, uninterrupted or error – free operability of the Tom Birch Web Ltd Platform or that it will be free from computer viruses or similar threats.There may be times when some or all features of the Tom Birch Web Ltd Platform become unavailable(whether on a scheduled or unscheduled basis) or are modified, suspended or withdrawn by Tom Birch Web Ltd, in Tom Birch Web Ltd’s sole discretion, without notice.Tom Birch Web Ltd will not be liable to you or any third party for any unavailability, modification, suspension of any elements of the Tom Birch Web Ltd Platform or for any loss or damage as a result of computer viruses or similar threats.
5.3 Tom Birch Web Ltd takes all appropriate measures to ensure that the content on the Tom Birch Web Ltd Platform is accurate, complete, legal and not misleading or offensive. However, we do not review content provided by users and are not responsible for such content. If you come across any content that breaches these principles, please notify us by writing to us at email@example.com . We reserve the right to remove or edit any content at any time without notice.
5.4 You are responsible for deciding if you want to access third party sites that link from the Tom Birch Web Ltd Platform. Third party sites have their own legal terms and privacy policies, and you may be giving others permission to use your information in ways we would not. Tom Birch Web Ltd is not responsible for third party sites and you should use them at your own risk.
5.5 Tom Birch Web Ltd may require access to your Other Digital Accounts on your behalf in order to provide certain Services. You acknowledge that you have separate agreements with the service providers managing your Other Digital Accounts and you are solely liable under such agreements. Tom Birch Web Ltd does not accept any responsibility or liability for their platforms, features, terms or policies, or the accuracy of any content relating to your business that may be available on their sites.
6. CAP ON LIABILITY
6.1 Nothing in this agreement excludes Tom Birch Web Ltd’s liability to you for death or personal injury caused by Tom Birch Web Ltd’s negligence or for fraud or fraudulent misrepresentation.
6.2 Subject to clause 6.1, Tom Birch Web Ltd shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential losses, or for any loss of profit (including by way of example and without limitation, loss of profit a result of your business not showing on a search engine), loss of revenue, contracts, data, goodwill or other similar losses, arising under or in connection with your use of the Tom Birch Web Ltd Platform or any Services.
6.3 Subject to clause 6.1, Tom Birch Web Ltd’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total amount paid by you for any Services during the 12 months immediately preceding the date on which the claim arose.
7. BOOKING SERVICES & CUSTOM MESSAGES
7.2 Any goods or services that you may agree to purchase from a Service Provider (including via a payment link on the Tom Birch Web Ltd Platform) are agreed directly between you and the Service Provider and you will make any payments to the Service Provider or its payment processor directly. Tom Birch Web Ltd is not responsible or liable to you for such goods or services.
7.3 You should check all details and any restrictions relating to goods and services before making a booking request or a purchase and ensure that you notify the Service Provider of any conditions that might be relevant to the provision of the services.
7.4 All services listed on the Tom Birch Web Ltd Platform are subject to the availability of the Service Provider. Price information listed may be inaccurate and you should confirm this directly with the Service Provider prior to booking any services or purchasing any goods.
7.5 You should contact the Service Provider directly if you have any complaints regarding the services provided to you.
8. DATA PROTECTION
Subject to clause 9.2 below, either party may terminate this Agreement on 1 month’s written notice to the other.
9.1 Clause 9.1 shall only apply where you have not purchased Services or where you have purchased Services but the Minimum Term will have expired within 1 month of serving notice to terminate.
9.2 Tom Birch Web Ltd reserves the right to cease providing Services to you with immediate effect if it considers, in its sole discretion, that you are acting in violation of its policies or the products or services offered on your Company Website are not supported by Tom Birch Web Ltd. Either party may terminate this Agreement with immediate effect if: (i) the other party is in material breach of the Agreement; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days.
9.3 If the Services are cancelled by either party or this agreement is terminated then the rights and licences granted to you under this Agreement, including your licence to the Company Webpage and the Domain Name, will be terminated with immediate effect.
9.4 Prior to the termination of this Agreement, you may elect for the registration of the Domain Name to be transferred to you, subject to payment to Tom Birch Web Ltd of a transfer fee.
9.5 In the event that we are managing your Other Digital Accounts as part of any Services, on termination we may, at our discretion, either delete such accounts,transfer them to you, or leave them as is.
10.1 Tom Birch Web Ltd may revise this Agreement from time to time. The most current version will always be posted on our website. Any material changes will be notified to you by email if you have a Tom Birch Web Ltd account.
10.2 This Agreement, including the Order Summary, supersedes any prior agreements between us and constitutes the entire Agreement related to this subject matter. If there is a conflict between this Agreement and the Order Summary, the Order Summary shall take priority.
10.3 If you have any questions or issues with this Agreement or the quality of your Services please contact Tom Birch Web Ltd at firstname.lastname@example.org or through the notice procedures in clause 10.7.
10.4 Tom Birch Web Ltd will not be liable for inadequate performance to the extent caused by a condition that was beyond its reasonable control (for example natural disaster, act of war or terrorism, riot, labour condition, governmental action and Internet disturbance).
10.5 The terms and conditions of this Agreement including the price of any Services, will be considered the confidential information of Tom Birch Web Ltd, and you will not disclose this information to any third parties.
10.6 You may not assign or transfer this Agreement or any rights or obligations under this Agreement without Tom Birch Web Ltd’s written consent. Tom Birch Web Ltd may assign this Agreement or any rights or obligations under this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganisation or sale.
10.7 Notices can be sent by email, post or hand delivery and are deemed given when received.Tom Birch Web Ltd’ s address for notices is email@example.com and Legal Department, Tom Birch Web Ltd, 44 Bowden Street, Litherland Liverpool L21 8LL.
10.8 Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
10.9 If Tom Birch Web Ltd fails to enforce, or delay in enforcing, any of Tom Birch Web Ltd’s rights under these terms, that does not result in a waiver of the rights concerned.
10.10 No terms are enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
10.11 This Agreement is governed by English law and subject to the exclusive jurisdiction of the courts of England and Wales.
Last Update 20 May 2022