Terms Of Service

These Terms of Service (these “Terms”) apply to the sale and purchase of goods and products (“Products”) through the website located at www.birdies.com, including all offerings and features available on or through the website (collectively, the “Site”). The Site is owned and operated by Birdies, Inc. and its affiliates and subsidiaries (collectively, “Company,” “we,” “us,” or “our”). Your access and use of the Site is governed by these Terms, whether as a guest or registered user.

PLEASE READ THESE TERMS BEFORE ACCESSING OR USING THE SITE. DO NOT USE THE SITE IF YOU DO NOT AGREE TO THESE TERMS. BY USING THE SITE, YOU ACCEPT AND AGREE TO BE BOUND TO AND ABIDE BY THESE TERMS, AND ACKNOWLEDGE OUR PRIVACY POLICY, WHICH IS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS OR OUR PRIVACY PRACTICES AS DESCRIBED IN OUR PRIVACY POLICY, YOU MUST NOT ACCESS OR USE THE SITE.

PLEASE NOTE THAT THESE TERMS CONTAIN A WAIVER OF YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE LAWSUIT. FOR MORE INFORMATION, PLEASE SEE SECTION 21.

THE SITE IS CONTROLLED AND/OR OPERATED FROM THE UNITED STATES. THE SITE IS FOR PERSONAL USE ONLY AND IS NOT INTENDED FOR BUSINESS SALES OR BUSINESS USE. If you access or use the Site from outside of the United States, you do so at your own risk, and you are responsible for complying with all local laws, rules, and regulations in your jurisdiction.

You must be 18 years of age or older to access or use the Site. Subject to your compliance with these Terms, you are granted a limited, non-exclusive, non-sublicensable, non-transferrable, and revocable license to access and use the Site solely for your personal and non-commercial use. The information on the Site may occasionally be inaccurate, incomplete, or out of date, and we make no representation as to the completeness, accuracy, or currentness of any such information. ANY RELIANCE YOU PLACE ON THE INFORMATION PROVIDED ON THE SITE IS STRICTLY AT YOUR OWN RISK. COMPANY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON THE SITE BY YOU OR ANY OTHER VISITOR TO THE SITE OR BY ANYONE WHO MAY BE INFORMED OF ANY OF THE SITE’S CONTENTS. We reserve the right to refuse access or use of the Site to anyone for any reason at any time.

Company may monitor your access and use of the Site and may use and disclose any information and materials received from you or collected through your access or use of the Site for any lawful reason or purpose. Please review our Privacy Policy with regard to the collection and use of your information. Our Privacy Policy is expressly incorporated into these Terms by reference.

We reserve the right, but are not obligated, to: (a) limit the sales of our Products to any person, geographic region, or jurisdiction on a case-by-case basis; (b) limit the quantities of any Products that we offer for sale; and (c) discontinue any Product(s) at any time. In addition, while we make every effort to display the Products as accurately as possible, we cannot guarantee that your computer monitor’s display of any color will be accurate. Accordingly, the Product descriptions may contain typographical errors, inaccuracies, or omissions that may relate to the look and feel of the Product as well as availability, pricing, promotions, offers, shipping charges, and transit times.

Certain parts or features of the Site may be subject to additional terms and conditions that are not expressly stated in these Terms, such as areas of the Site where payments are collected from you (collectively, “Additional Terms”). You agree to comply with such Additional Terms that apply to your use of the applicable parts or features of the Site. In case of any conflict between these Terms and Additional Terms, the Additional Terms will control.

In order to access and certain features of the Site, you may be required to register and create an account (“Account”). By creating an Account, you agree to: (a) provide accurate, current, and complete information about yourself and update it as necessary; (b) maintain the security of your Account; and (c) immediately notify us of any unauthorized use of your Account or any other breach of Account security. You agree to promptly update your Account information for transactions made on the Site. We reserve the right, in our sole discretion, to accept or reject your registration to create an Account and/or to access or use the Site.

You may place orders for Products on the Site (each, an “Order”). All Orders are subject to the availability of the ordered Product(s). An Order is valid and binding when it is accepted in writing by Company via a confirmation email sent to the email address you provide the Company in the Order. Orders accepted by Company may not be cancelled without the Company’s express written consent. Company may cancel Orders in whole or in part due to Product unavailability or discontinuation, price change if the incorrect Product price was displayed on the Site, or as otherwise determined by Company in its sole discretion. You will be notified of any Order cancellation and receive a refund of any prepaid amounts paid to Company.

Product prices on the Site are subject to change without notice. Prices listed on the Site 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 at or prior to Order checkout.

All Orders must be paid in full prior to shipment, including any and all Taxes and shipping fees which will be itemized for your review at or prior to checkout. We use a third-party payment processor (the “Payment Processor”) to allow you to pay for Orders. Our Payment Processor will process your payment according to their terms, as such terms will be made available to you at or prior to checkout. We are not responsible for errors or processing times by the Payment Processor. By placing an Order on the 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 method.

All Products purchased on the Site can only be shipped to a valid address within the United States, Canada, Australia, and the United Kingdom (to the domestic/deliver-to address indicated in your Order). 

You are solely responsible for all shipping and handling charges which are available for your review at or prior to checkout. Title and risk of loss or damage to the ordered Product(s) shall pass to you at the time the Product is delivered to the address indicated in the Order. Shipping times shown on our FAQ page here are estimates only, and actual delivery dates may vary. You acknowledge and agree that Company will not be liable for any damages associated with Company’s or Company’s third-party delivery services’ inability to meet any estimated shipping timeframes.

Products are subject to return or exchange only according to our Return Policy detailed in our FAQ page here. If there is any inconsistency between these Terms and our Return Policy, the Return Policy shall control.

The Site and all logos, designs, text, images, data, software and other related files (collectively “Site Content”) are the property of Company and/or its affiliates, licensors and suppliers, and are protected by the United States and international copyright and trademark laws. In addition, the look and feel of the Site, 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 the Site are the property of their respective owners. Nothing contained on the 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 the Site without the express written consent of Company. UNAUTHORIZED USE OF ANY PART OF THE SITE, INCLUDING, WITHOUT LIMITATION, ANY SOFTWARE USED BY THE SITE, MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES (INCLUDING, WITHOUT LIMITATION, POSSIBLE MONETARY DAMAGES), INCLUDING, WITHOUT LIMITATION, FOR COPYRIGHT INFRINGEMENT.

In addition to other prohibitions as set forth in these Terms, you are prohibited from using the Site: (a) for any unlawful or unauthorized purpose such as to violate any laws in your jurisdiction (including, but not limited to, copyright laws); (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 Site or of any website 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 Site or any website or the Internet. We reserve the right to terminate your access and use of the Site for violating any of the prohibited uses in this Section 12. We reserve the right to refuse access or use of the Site to anyone for any reason at any time.

If you send the Company information, ideas, suggestions, proposals, plans, or other materials, whether online, by email, or by postal mail (collectively, “Feedback”), , you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any such Feedback. We are and shall be under no obligation to (a) maintain any Feedback in confidence; (b) pay compensation for any Feedback; or (c) respond to any Feedback. You hereby grant Company a perpetual, irrevocable, and worldwide license to use any Feedback in any and every way, as well as the right to grant sublicenses, without compensation, without any obligation to report on such use, and without any other restriction. 

If you provide submit or make any content publicly available on the Site (“User Content”), you do so at your own risk. You are solely responsible for your User Content and its accuracy. 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 User Content. You warrant that your 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 libelous 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. We take no responsibility and assume no liability for any User Content posted by you or any third-party.

We may, but have no obligation to, monitor, edit or remove User Content that we determine in our sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms. You agree and acknowledge that Company may disclose User Content if Company determines that: (a) disclosure is necessary to enforce these Terms, respond to claims that any User Content violates the rights of third parties, or protect the rights, property, or personal safety of Company, its users, and the public; or (b) appropriate legal process requires disclosure. Without limiting the generality of the foregoing, you authorize Company to include User Content in a searchable format that may be accessed by users of the Site and Third-Party Websites, provided, however, that Company shall have no liability for User Content that can be public and visible on the Site, Third-Party Websites, or search engines, including after deletion of such User Content by you or Company. YOU UNDERSTAND AND AGREE THAT COMPANY WILL HAVE NO LIABILITY OR RESPONSIBILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH ANY USER CONTENT.

1. Copyright: Infringing Material/DMCA. We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Site infringe your copyright, you may request removal of those materials (or access to them) from the Site by submitting written notification to the e-mail address listed in “DMCA Contact Information” in Section 16(c) below. In accordance with the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

1. Your physical or electronic signature.
2. Identification and description of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Site, a representative list of such works.
3. Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
4. Adequate and current information by which we can contact you (including your name, postal address, telephone number, and, if available, e-mail address).
5. A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the written notice is accurate.
7. A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the Site is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

It is our policy to disable and/or terminate, in appropriate circumstances, any user’s access to the Site and/or Account in the event of repeated infringing activity, and Company reserves such rights.

Counter-Notification Procedures. If you believe that material you posted on the Site was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to the e-mail address listed in “Contact Information” below. Pursuant to the DMCA, the Counter-Notice must include substantially the following:

1. Your physical or electronic signature.
2. An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
3. Adequate and current information by which we can contact you (including your name, postal address, telephone number, and, if available, e-mail address).
4. A statement by you, under penalty of perjury, that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
5. A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States, for any judicial district in which the Site may be found) and that you will accept service from the person (or an agent of that person) who provided the Site with the complaint at issue.

The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten (10) to fourteen (14) days of receiving the copy of your Counter-Notice. Please be aware that if you knowingly materially misrepresent that material or activity on the Site was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

1. DMCA Contact Information. If you believe your copyright material is being used on the Site without permission, send DMCA Notice and Counter-Notices to our designated agent for notice of alleged copyright infringement at:

The Site may provide links to third-party websites and resources that are not maintained by us (“Third-Party Websites”). We are not responsible for such Third-Party Websites, and we make no warranties or representations about the content therein. We recommend that you read the privacy notices and user agreements of the Third-Party Websites you visit. We are not and will not be responsible for (a) the terms and conditions of any transaction between you and any such Third-Party Websites; (b) any insufficiency of or problems with any such Third-Party Websites’ information; (c) the quality of products or the services offered or advertised by Third-Party Websites; or (d) any other legal liability arising out of or related to your transactions in connection with Third-Party Websites. YOUR USE OF THIRD-PARTY WEBSITES IS AT YOUR OWN RISK. IN THE EVENT YOU HAVE A DISPUTE WITH ANY THIRD-PARTY WEBSITES, YOU AGREE TO RELEASE US AND OUR AFFILIATES, AGENTS, AND EMPLOYEES FROM ANY AND ALL CLAIMS ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. If you are a California resident, you waive the California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

Except as prohibited under applicable law, you agree to defend, indemnify, and hold harmless us and all our affiliates, officers, directors, owners, agents, employees, information providers, subsidiaries, licensors, and licensees from and against all liabilities, claims, losses, costs, and expenses (including attorneys’ fees) arising out of (a) your use of, or activities in connection with, the Site, or (b) any violation of these Terms by you. You shall cooperate as fully as reasonably required in the defense of any claim. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, and you shall not in any event settle any matter without the prior express written consent of Company.

WE DO NOT GUARANTEE THAT THE SITE WILL BE SECURE OR THAT ANY ACCESS OR USE OF THE SITE WILL BE UNINTERRUPTED. THE SITE AND ALL PRODUCTS AND INFORMATION MADE AVAILABLE ON OR THROUGH THE SITE ARE PROVIDED TO YOU “AS IS” WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND WE DISCLAIM ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS, AND CONDITIONS WITH RESPECT TO THE SITE, INCLUDING THE REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE. WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SITE (OR ANY PART THEREOF) WILL BE ACCURATE, COMPLETE, CURRENT, OR ERROR-FREE. ANY RELIANCE ON THE MATERIAL ON THE SITE IS AT YOUR OWN RISK. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH YOUR ACCESS AND USE OF THE SITE, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION MADE AVAILABLE ON OR THROUGH THE SITE, INCLUDING VIA THIRD-PARTY WEBSITES. 

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, OR CONSEQUENTIAL DAMAGES, TO LIFE OR PROPERTY, ARISING OUT OF, CONNECTED WITH OR FOLLOWING THE USE OR MISUSE OF THE PRODUCTS OR THE SITE, AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US HARMLESS FROM THE SAME. YOUR USAGE OF THE PRODUCTS AND ACCESS AND USE OF THE SITE IS SOLELY AT YOUR OWN RISK. THIS SECTION 20 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 DAMAGES.

IF YOU ARE DISSATISFIED WITH ANY PRODUCT, PORTION OF THE SITE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITE. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM AGGREGATE LIABILITY OF COMPANY TO YOU WITH RESPECT TO YOUR USE OF THE SITE IS THE TOTAL AMOUNT PAID TO COMPANY FOR THE PRODUCT(S) IN QUESTION PURCHASED ON THE SITE.

These Terms shall be governed by and construed in accordance with the laws of the State 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. 

This Section 21 limits certain legal rights and includes a waiver of the right to participate in any form of class or representative action, and limits your ability to obtain certain remedies and forms of relief. Please review carefully.

1. You and the Company agree that neither of you will sue each other as a class plaintiff or class representative, join as a class member, or participate as an adverse party in any way in a class action lawsuit against each other. Nothing in this Section 21, however, limits your right or the Company’s right to bring a lawsuit as an individual plaintiff. 
2. If Company takes legal action against you in connection with any actual or suspected breach of these Terms, Company will be entitled to recover from you as part of such legal action, and you agree to pay, all reasonable costs and attorneys’ fees.
3. You understand, acknowledge, and agree that any legal proceeding arising out of or relating to these Terms, your use of the Site, or your relationship with Company shall have, as its forum, a state or federal court of competent jurisdiction in the State of California. You hereby waive any objection to personal jurisdiction or venue in the state or federal courts of the State of California.
4. In any legal proceeding arising out of or relating to these Terms, your use of the Site, or your relationship with Company, the governing law (including substantive and procedural laws) shall be that of the State of California, without regard to California’s choice-of-law provisions.
5. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY LAWSUIT AGAINST COMPANY MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.

These Terms are effective unless and until terminated by either you or us. You may terminate these Terms at any time by notifying us that you no longer wish to access or use the Site by emailing us at help@birdies.com, by closing your Account, or by ceasing to access or use the Site. If we determine or suspect that you have failed to comply with any term or provision of these Terms, we also may terminate your access and use of the Site at any time without notice and you will remain liable for all amounts due up to and including the date of termination.

These Terms (including the Privacy Policy, which is incorporated herein by reference) constitutes the entire agreement and understanding between you and us and govern your use of the Site, 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 these Terms).

In the event that any provision of these Terms are 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.  Such determination shall not affect the validity and enforceability of any other remaining provisions in these Terms.

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.

We may modify and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Site thereafter. Any changes to these Terms will be effective upon our posting of the notice, provided that these changes will be prospective only and not retroactive. In certain cases, we may also provide a summary of changes to these Terms via email to your email address on file with us. Your continued use of the Site following the posting of revised Terms means that you accept and agree to the changes. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE ACCESS OR USE THE SITE, YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND YOU AGREE THAT YOUR ACCESS AND USE OF THE SITE AFTER SUCH NEW TERMS HAVE BEEN POSTED CONSTITUTES YOUR AGREEMENT TO THE NEW TERMS FOR YOUR NEW ACCESS, USE, AND TRANSACTIONS ON THE SITE. You are expected to check this page each time you access or use the Site so you are aware of any changes, as they are binding on you.