BIRDIES, INC. TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE BEFORE ACCESSING OR USING OUR WEBSITE.
Last Revised: 11/21/2019
This website is operated by Birdies, Inc. (“Company”). These Terms of Service (“TOS” or “Terms”) govern both (A) purchases by You (the “Customer” and sometimes referred to as “you,” “your,” “Customer,” or “User” herein) and Company (“Company” and sometimes referred to as “us,” “we,” or “our” herein) as well as (B) your use of this website (also referred to as “Site”) even if you do not make any purchase. These Terms are divided into “Part A” and “Part B.” “Part A” terms apply specifically to those making purchases on this Website, and “Part B” Terms apply to all users of this website (“User(s)”). Users who make a purchase are also referred to as “Customer(s)”.
IF YOU USE THIS WEBSITE BUT DO NOT MAKE ANY PURCHASE, YOU AGREE TO BE BOUND BY THE “PART B” TERMS (AND ANY TERMS INCORPORATED BY REFERENCE); AND, IF YOU MAKE A PURCHASE YOU AGREE TO BE BOUND BY THE “PART A” AND “PART B” TERMS (AND ANY TERMS INCORPORATED BY REFERENCE).
DO NOT USE THIS WEBSITE IF YOU DO NOT AGREE TO ALL OF THE TERMS.
PART A: Terms applicable to Customers making website purchases.
SECTION 1 – GENERAL TERMS
These terms apply to all purchases made by you and Company via this Site. If you place an Order (as described in more detail below) with Company it means you have read and expressly agree, consent to, and accept these Terms. You must be 18 years or older to make a purchase on this Site. These Terms apply to all sales of Company’s goods and products offered on this Site (collectively, “Products”).
In the event of any conflict or inconsistency between these Terms and any provision in any Customer submitted order or writing, or any oral arrangement in connection with an order of any Product, these Terms shall govern and control (and any inconsistent provisions shall be void). These Terms may only be modified by a writing signed by an officer of Company. We reserve the right to refuse Service to anyone for any reason at any time.
Company reserves the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to this Site. You can review the most current version of the Terms of Service at any time on this page. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes. If we deem the change to be material, we may provide email notice to those Customers with whom we have contact information.
SECTION 2 – ORDERS AND ACCEPTANCE
No Order for Product is valid and binding until accepted in writing by Company. Such acceptance shall be evidenced by an Order Confirmation sent to Customer via email. Orders accepted by Company may not be cancelled without Company’s express written consent. All Orders are subject to the availability of the ordered Product. Company reserves the right to impose quantity limits on any order, to reject all or part of an order, and to discontinue Products or services without notice, even if you have placed your order. Also, even if an order has been accepted, Company may subsequently cancel such order in whole or in part due to Product availability (including without limitation, any discontinuation of the Product, price change (if the incorrect Product price was displayed on this Site), or as otherwise determined by Company in its sole discretion. Customer will be notified of any order cancellation and any amounts Customer has paid to Company in respect of such order shall be refunded to Customer as set forth in the “Payment” paragraph below.
You agree to provide current, complete and accurate purchase and account information for all purchases made via our Site. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
SECTION 3 – PRICES, TAXES AND PAYMENT
Prices and Taxes. Prices for our Products are subject to change without notice. The prices quoted for the Products sold on our website do not include any foreign, federal, state or local sales, use, value-added, excise, gross receipts or any similar transaction or consumption taxes, tariffs, duties or other charges imposed on or measured by the use or sale of Products (collectively, “Taxes”). Any Taxes due will be calculated and collected from you upon order checkout.
Payment. All orders must be paid in full prior to shipment. We use a third-party payment processor (the “Payment Processor”) to allow you to pay for Products. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor. By choosing to purchase Products on this Site, you agree to pay through the Payment Processor, all charges at the prices then in effect for your purchase in accordance with the applicable payment terms and you authorize us, via the applicable Payment Processor, to charge your chosen payment provider (your “Payment Method”). Such charges for your purchase may include shipping fees, state and local sales tax, and customs/duties, the amount of which may vary due to factors including the type of item purchased and the shipping destination.
SECTION 4 – SHIPPING
All Products purchased on our website can only be shipped to a valid address within the United States, Canada, Australia, and the United Kingdom to you directly (to the domestic/deliver-to address indicated in your order).
You are solely responsible for all shipping and handling charges which are displayed on the Site when an order is placed. Title and risk of loss or damage to the ordered Product shall pass to You at the time the Product is delivered on the address indicated in the order. Shipping times shown on our website are estimates only, and actual delivery dates may vary. Company will use reasonable efforts to fill Customer’s orders within the timeframe stated on our website but in no event shall Company be liable for any damages associated with Company’s inability to meet any such timeframes.
SECTION 5 – RETURNS
Products are subject to return or exchange only according to our Return Policy detailed in our FAQ page.
SECTION 6 - PRODUCTS OR SERVICES
We reserve the right, but are not obligated, to limit the sales of our Products to any person, geographic region or jurisdiction, on a case-by-case basis. We reserve the right to limit the quantities of any Products that we offer. All descriptions of Products or Product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any Product at any time.
SECTION 7 – WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY IN THESE TERMS OF SERVICE, OUR PRODUCTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO INSTRUCTIONS, ASSISTANCE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED FROM OUR COMPANY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY UNLESS IT IS EXPRESSLY STATED IN THESE TERMS OF SERVICE.
Section 8 – LIMITATION OF LIABILITY
IN ADDITION TO ALL OTHER LIMITATIONS AND DISCLAIMERS IN THESE TERMS OF SERVICE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY LIABILITY OR LOSS IN CONNECTION WITH THE PRODUCTS SOLD THROUGH THE SITE.
IN NO EVENT OR CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL CONSEQUENTIAL DAMAGES, TO LIFE OR PROPERTY, ARISING OUT OF, CONNECTED WITH OR FOLLOWING THE USE OR MISUSE OF OUR PRODUCTS, AND YOU AGREE TO HOLD US HARMLESS FROM THE SAME. YOUR USAGE OF OUR PRODUCTS IS SOLELY AT YOUR OWN RISK. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE COMPLETEST EXTENT ALLOWED BY LAW IN THE APPLICABLE JURISDICTION. HOWEVER, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Part B: Terms applicable to Customers making website purchases and Users browsing the Site. If you are using this Site or making a purchase, Part B for Terms are applicable to you.
Section 9 – USE OF WEBSITE
This Site is not targeted towards, nor intended to be used by children under the age of 13. If you are not at least 13 years of age, do not access or use the Site. If you are under the age of 18 (and over the age of 13), do not access or use this Site without the involvement and supervision of a parent or guardian.
Section 10 – LICENSE TO USE WEBSITE
This Site and all the content and materials, including but not limited to Company’s logo and all designs, text, images, data, software and other related files (collectively “Site Content”) are the proprietary property of Company and are protected by the United States and international copyright and trademark laws. Subject to your compliance with the Terms, you are granted a limited, non-exclusive, non-sublicensable, non-transferrable, and revocable license to access and use this Site and this Site Content solely for your personal, non-commercial use. Nothing contained on our Site should be construed as granting by implication, estoppel, or otherwise, any license or right to use any of Company’s intellectual property or the look and feel of our Site without the express written consent of Company.
Section 11 - IP/TRADEMARKS
Our logo and mark, and other product or service names, logos or slogans that may appear on our website are trademarks or registered trademarks of Company and/or its affiliates, licensors and suppliers and as the exclusive property of Company and/or its affiliates, licensors and suppliers may not be copied, imitated or used, in whole or in part, without the prior written permission of Company or the applicable trademark holder. In addition, the look and feel of our website, including the design, arrangement and collection of the content constitutes the service mark, trademark and/or trade dress of Company and may not be copied, imitated or used, in whole or in part, without prior written permission of Company. All other trademarks, registered trademarks, product names and company names or logos mentioned in our website are the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Company. Nothing contained on our website grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Company’s intellectual property or the look and feel of our website without the express written consent of Company.
SECTION 12 - PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses. You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature. A breach or violation of any of the Terms will result in an immediate termination of your Services.
We reserve the right to refuse Service to anyone for any reason at any time.
SECTION 13 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, including all intellectual property rights in such suggestion or idea (collectively, 'Feedback'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any Feedback that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments. Customer hereby grants Company a perpetual, irrevocable, worldwide license to use any Feedback (as defined above) that Customer communicates to Company, without compensation, without any obligation to report on such use, and without any other restriction. Company’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libellous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
You agree that any content that you provide either directly to Us or to the Site (“User Content”) will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your User Content will not contain libellous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Site. You may not use a false e‑mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for your User Content and its accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
SECTION 14 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on our site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of our site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.
We do not guarantee that any material will be made available through the Service. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify any content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such content or if we are concerned that you may have violated the Terms of Service), or for no reason at all and (ii) to remove or block any content from the Services.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
SECTION 15 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. WE SHALL HAVE NO LIABILITY WHATSOEVER ARISING FROM OR RELATING TO YOUR USE OF OPTIONAL THIRD-PARTY TOOLS.
ANY USE BY YOU OF OPTIONAL TOOLS OFFERED THROUGH THE SITE IS ENTIRELY AT YOUR OWN RISK AND DISCRETION AND YOU SHOULD ENSURE THAT YOU ARE FAMILIAR WITH AND APPROVE OF THE TERMS ON WHICH TOOLS ARE PROVIDED BY THE RELEVANT THIRD-PARTY PROVIDER(S).
We may also, in the future, offer new products or Services and/or features through the website (including, the release of new tools and resources). Such new features and/or Services shall also be subject to these Terms of Service.
SECTION 16 - THIRD-PARTY LINKS
Certain content, products and Services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or Services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, Services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
SECTION 17 - PERSONAL INFORMATION
SECTION 18 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
SECTION 19 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of the Service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
You agree that from time to time we may remove the Service for indefinite periods of time or cancel the Service at any time, without notice to you.
You expressly agree that your use of, or inability to use, the Service is at your sole risk. The Service and all products and Services delivered to you through the Service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall COMPANY, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, Service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the Service or any products procured using the Service, or for any other claim related in any way to your use of the Service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Service or any content (or product) posted, transmitted, or otherwise made available via the Service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
SECTION 20 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless COMPANY and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, Service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
SECTION 21 – General Terms
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).
21.3 WAIVER, ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
21.4 GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of California. All disputes arising hereunder shall be adjudicated in the state and federal courts having jurisdiction over disputes arising in the County of San Francisco, California and each party hereby consents to the personal jurisdiction of such courts.
21.5 BINDING ARBITRATION AND CLASS ACTION WAIVER
You agree to binding individual arbitration before the American Arbitration Association ("AAA") under the Federal Arbitration Act ("FAA"), and not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide, and the arbitrator’s decision will be final except for a limited right of review under the FAA.
Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity are not allowed. Nor is combining individual proceedings without the consent of all parties.
21.6 CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes. We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.