TERMS OF SERVICE
Last revised on January 28, 2020
Welcome to Birdy, operated by Personality System, LLC (“us,” “we,” the “Company” or “Birdy”).
Notice to California subscribers: You may cancel your subscription, without penalty or obligation, at any time prior to midnight of the third business day following the date you subscribed. If you subscribed using your Apple ID, refunds are handled by Apple, not Birdy. If you wish to request a refund, please visit https://getsupport.apple.com . If you subscribed using your Google Play Store account, through Birdy Online: Contact customer support at hello@app-birdy.com
1. Acceptance of Terms of Use Agreement.
By creating a Birdy account or by using any Birdy service, whether through a mobile device, mobile application or computer (collectively, the “Service”) you agree to be bound by (i) these Terms of Use, (ii) our Privacy Policy and Safety Tips , each of which is incorporated by reference into this Agreement, and (iii) any terms disclosed to you if you purchase or have purchased additional features, products or services we offer on the Service (collectively, this “Agreement”). If you do not accept and agree to be bound by all of the terms of this Agreement (other than the limited one-time opt out right for certain users provided for in Section 15), you should not use the Service.
We may make changes to this Agreement and to the Service from time to time. We may do this for a variety of reasons including to reflect changes in or requirements of the law, new features, or changes in business practices. The most recent version of this Agreement will be posted on the Service under Settings and also on app-birdy.com, and you should regularly check for the most recent version. The most recent version is the version that applies. If the changes include material changes that affect your rights or obligations, we will notify you in advance of the changes by reasonable means, which could include notification through the Service or via email. If you continue to use the Service after the changes become effective, then you agree to the revised Agreement. You agree that this Agreement shall supersede any prior agreements (except as specifically stated herein), and shall govern your entire relationship with Birdy, including but not limited to events, agreements, and conduct preceding your acceptance of this Agreement.
2. Eligibility.
You must be at least 18 years of age to create an account on Birdy and use the Service. By creating an account and using the Service, you represent and warrant that:
3. Your Account.
In order to use Birdy, you may sign in using your Facebook login. If you do so, you authorize us to access and use certain Facebook account information, including but not limited to your public Facebook profile and information about Facebook friends you share in common with other Birdy users. For more information regarding the information we collect from you and how we use it, please consult our Privacy Policy.
You are responsible for maintaining the confidentiality of your login credentials you use to sign up for Birdy, and you are solely responsible for all activities that occur under those credentials. If you think someone has gained access to your account, please immediately contact us.
4. Modifying the Service and Termination.
Birdy is always striving to improve the Service and bring you additional functionality that you will find engaging and useful. This means we may add new product features or enhancements from time to time as well as remove some features, and if these actions do not materially affect your rights or obligations, we may not provide you with notice before taking them. We may even suspend the Service entirely, in which event we will notify you in advance unless extenuating circumstances, such as safety or security concerns, prevent us from doing so.
You may terminate your account at any time, for any reason, by following the instructions in “Settings” in the Service, however if you use a third party payment account, you will need to manage in app purchases through such account (e.g., iTunes, Google Play) to avoid additional billing.
Birdy may terminate your account at any time without notice if it believes that you have violated this Agreement. Upon such termination, you will not be entitled to any refund for purchases. After your account is terminated, this Agreement will terminate, except that the following provisions will still apply to you and Birdy: Section 4, Section 5, and Sections 12 through 19.
5. Safety; Your Interactions with Other Users.
Though Birdy strives to encourage a respectful user experience, it is not responsible for the conduct of any user on or off of the Service. You agree to use caution in all interactions with other users, particularly if you decide to communicate off the Service or meet in person. In addition, you agree to review and follow Birdy’s Safety Tips prior to using the Service. You agree that you will not provide your financial information (for example, your credit card or bank account information), or wire or otherwise send money, to other users.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS. YOU UNDERSTAND THAT BIRDY DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS USERS OR OTHERWISE INQUIRE INTO THE BACKGROUND OF ITS USERS. BIRDY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS. BIRDY RESERVES THE RIGHT TO CONDUCT – AND YOU AGREE THAT BIRDY MAY CONDUCT – ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES) AT ANY TIME USING AVAILABLE PUBLIC RECORDS.
6. Rights Birdy Grants You.
Birdy grants you a personal, worldwide, royalty-free, non-assignable, nonexclusive, revocable, and non-sublicensable license to access and use the Service. This license is for the sole purpose of letting you use and enjoy the Service’s benefits as intended by Birdy and permitted by this Agreement. Therefore, you agree not to:
The Company may investigate and take any available legal action in response to illegal and/ or unauthorized uses of the Service, including termination of your account.
Any software that we provide you may automatically download and install upgrades, updates, or other new features. You may be able to adjust these automatic downloads through your device’s settings.
7. Rights you Grant Birdy.
By creating an account, you grant to Birdy a worldwide, transferable, sub-licensable, royalty-free, right and license to host, store, use, copy, display, reproduce, adapt, edit, publish, modify and distribute information you authorize us to access from Facebook, as well as any information you post, upload, display or otherwise make available (collectively, “post”) on the Service or transmit to other users (collectively, “Content”). Birdy’s license to your Content shall be non-exclusive, except that Birdy’s license shall be exclusive with respect to derivative works created through use of the Service. For example, Birdy would have an exclusive license to screenshots of the Service that include your Content. In addition, so that Birdy can prevent the use of your Content outside of the Service, you authorize Birdy to act on your behalf with respect to infringing uses of your Content taken from the Service by other users or third parties. This expressly includes the authority, but not the obligation, to send notices pursuant to 17 U.S.C. § 512(c)(3) (i.e., DMCA Takedown Notices) on your behalf if your Content is taken and used by third parties outside of the Service. Our license to your Content is subject to your rights under applicable law (for example laws regarding personal data protection to the extent any Content contains personal information as defined by those laws) and is for the limited purpose of operating, developing, providing, and improving the Service and researching and developing new ones. You agree that any Content you place or that you authorize us to place on the Service may be viewed by other users and may be viewed by any person visiting or participating in the Service (such as individuals who may receive shared Content from other Birdy users).
You agree that all information that you submit upon creation of your account, including information submitted from your Facebook account, is accurate and truthful and you have the right to post the Content on the Service and grant the license to Birdy above.
You understand and agree that we may monitor or review any Content you post as part of a Service. We may delete any Content, in whole or in part, that in our sole judgment violates this Agreement or may harm the reputation of the Service.
When communicating with our customer care representatives, you agree to be respectful and kind.
If we feel that your behavior towards any of our customer care representatives or other employees is at any time threatening or offensive, we reserve the right to immediately terminate your account.
In consideration for Birdy allowing you to use the Service, you agree that we, our affiliates, and our third-party partners may place advertising on the Service. By submitting suggestions or feedback to Birdy regarding our Service, you agree that Birdy may use and share such feedback for any purpose without compensating you.
You agree that Birdy may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary, such as to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of the Company or any other person.
8. Community Rules.
By using the Service, you agree that you will not:
Birdy reserves the right to investigate and/ or terminate your account without a refund of any purchases if you have violated this Agreement, misused the Service or behaved in a way that Birdy regards as inappropriate or unlawful, including actions or communications that occur on or off the Service.
9. Other Users’ Content.
Although Birdy reserves the right to review and remove Content that violates this Agreement, such Content is the sole responsibility of the user who posts it, and Birdy cannot guarantee that all Content will comply with this Agreement. If you see Content on the Service that violates this Agreement, please report it within the Service or via our contact form.
10. Purchases.
Generally. From time to time, Birdy may offer products and services for purchase (“in app purchases”) through iTunes, Google Play, carrier billing, Birdy direct billing or other payment platforms authorized by Birdy. If you choose to make an in app purchase, you will be prompted to confirm your purchase with the applicable payment provider, and your method of payment (be it your card or a third party account such as Google Play or iTunes) (your “Payment Method”) will be charged at the prices displayed to you for the service(s) you’ve selected as well as any sales or similar taxes that may be imposed on your payments, and you authorize Birdy or the third party account, as applicable, to charge you.
Auto-Renewal. If you purchase an auto-recurring periodic subscription, your Payment Method will continue to be billed for the subscription until you cancel. After your initial subscription commitment period, and again after any subsequent subscription period, your subscription will automatically continue for an additional equivalent period, at the price you agreed to when subscribing. If you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription, you will need to log in to your third party account (or My Account on Birdy) and follow instructions to cancel your subscription, even if you have otherwise deleted your account with us or if you have deleted the Birdy application from your device. Deleting your account on Birdy or deleting the Birdy application from your device does not cancel your subscription; Birdy will retain all funds charged to your Payment Method until you cancel your subscription on Birdy or the third-party account, as applicable. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term, and your subscription will not be renewed after your then-current term expires.
Additional Terms that apply if you pay Birdy directly with your Payment Method. If you pay Birdy directly, Birdy may correct any billing errors or mistakes that it makes even if it has already requested or received payment. If you initiate a chargeback or otherwise reverse a payment made with your Payment Method, Birdy may terminate your account immediately in its sole discretion.
You may edit your Payment Method information by visiting Birdy and going to “My Account.” If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not edit your Payment Method information or cancel your subscription, you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. This may result in a change to your payment billing dates. In addition, you authorize us to obtain updated or replacement expiration dates and card numbers for your credit or debit card as provided by your credit or debit card issuer. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If you reside outside of the Americas, you agree that your payment to Birdy will be through Personality System, LLC.
Filters and Other Virtual Items. From time to time, you may be able to purchase, a limited, personal, non-transferable, non-sublicensable, revocable license to use “virtual items,” including but not limited to Filters (collectively, “Virtual Items”). Any Virtual Item balance shown in your account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your license. Virtual Items do not incur fees for non-use, however, the license granted to you in Virtual Items will terminate in accordance with the terms of this Agreement, when Birdy ceases providing the Service or your account is otherwise closed or terminated. Birdy, in its sole discretion, reserves the right to charge fees for the right to access or use Virtual Items and/ or may distribute Virtual Items with or without charge. Birdy may manage, regulate, control, modify or eliminate Virtual Items at any time. Birdy shall have no liability to you or any third party in the event that Birdy exercises any such rights. Virtual Items may only be redeemed through the Service. ALL PURCHASES AND REDEMPTIONS OF VIRTUAL ITEMS MADE THROUGH THE SERVICE ARE FINAL AND NON-REFUNDABLE. The provision of Virtual Items for use in the Service is a service that commences immediately upon the acceptance of your purchase of such Virtual Items. YOU ACKNOWLEDGE THAT BIRDY IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
Refunds. Generally, all charges for purchases are nonrefundable, and there are no refunds or credits for partially used periods. We may make an exception if a refund for a subscription offering is requested within fourteen days of the transaction date, or if the laws applicable in your jurisdiction provide for refunds.
For subscribers residing in Arizona, California, Connecticut, Illinois, Iowa, Minnesota, New York, North Carolina, Ohio and Wisconsin, the terms below apply:
You may cancel your subscription, without penalty or obligation, at any time prior to midnight of the third business day following the date you subscribed. In the event that you die before the end of your subscription period, your estate shall be entitled to a refund of that portion of any payment you had made for your subscription which is allocable to the period after your death. In the event that you become disabled (such that you are unable to use the services of Birdy) before the end of your subscription period, you shall be entitled to a refund of that portion of any payment you had made for your subscription which is allocable to the period after your disability by providing the company notice in the same manner as you request a refund as described below.
To request a refund:
If you subscribed using your Apple ID, refunds are handled by Apple, not Birdy. To request a refund, go to iTunes, click on your Apple ID, select “Purchase history,” find the transaction and hit “Report Problem”. You can also submit a request at https://getsupport.apple.com.
If you subscribed using your Google Play Store account or through Birdy directly: please contact customer support with your order number for the Google Play Store (you can find the order number in the order confirmation email or by logging in to Google Wallet) or Birdy (you can find this on your confirmation email).
11. Notice and Procedure for Making Claims of Copyright Infringement.
If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:
Notice of claims of copyright infringement should be provided to the Company’s Copyright Agent via email to copyright@app-birdy.com
Birdy will terminate the accounts of repeat infringers.
12. Disclaimers.
BIRDY PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE (INCLUDING ALL CONTENT CONTAINED THEREIN), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. BIRDY DOES NOT REPRESENT OR WARRANT THAT (A) THE SERVICE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, (B) ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED, OR (C) THAT ANY CONTENT OR INFORMATION YOU OBTAIN ON OR THROUGH THE SERVICE WILL BE ACCURATE.
BIRDY TAKES NO RESPONSIBILITY FOR ANY CONTENT THAT YOU OR ANOTHER USER OR THIRD PARTY POSTS, SENDS OR RECEIVES THROUGH THE SERVICE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK.
BIRDY DISCLAIMS AND TAKES NO RESPONSIBILITY FOR ANY CONDUCT OF YOU OR ANY OTHER USER, ON OR OFF THE SERVICE.
13. Third Party Services.
The Service may contain advertisements and promotions offered by third parties and links to other web sites or resources. Birdy is not responsible for the availability (or lack of availability) of such external websites or resources. If you choose to interact with the third parties made available through our Service, such party’s terms will govern their relationship with you. Birdy is not responsible or liable for such third parties’ terms or actions.
14. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BIRDY, ITS AFFILIATES, EMPLOYEES, LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (II) THE CONDUCT OR CONTENT OF OTHER USERS OR THIRD PARTIES ON, THROUGH OR FOLLOWING USE OF THE SERVICE; OR (III) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR CONTENT, EVEN IF BIRDY HAS BEEN ADVISED AT ANY TIME OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL BIRDY’S AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE SERVICE OR THIS AGREEMENT EXCEED THE AMOUNT PAID, IF ANY, BY YOU TO BIRDY DURING THE TWENTY-FOUR (24) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT YOU FIRST FILE A LAWSUIT, ARBITRATION OR ANY OTHER LEGAL PROCEEDING AGAINST BIRDY, WHETHER IN LAW OR IN EQUITY, IN ANY TRIBUNAL. THE DAMAGES LIMITATION SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE APPLIES (i) REGARDLESS OF THE GROUND UPON WHICH LIABILITY IS BASED (WHETHER DEFAULT, CONTRACT, TORT, STATUTE, OR OTHERWISE), (ii) IRRESPECTIVE OF THE TYPE OF BREACH OF OBLIGATIONS, AND (iii) WITH RESPECT TO ALL EVENTS, THE SERVICE, AND THIS AGREEMENT.
THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 14 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL WITH RESPECT TO THEIR ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
15. Arbitration, Class-Action Waiver, and Jury Waiver.
Except where prohibited by applicable law:
The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), or the Service, regardless of the date of accrual and including past, pending, and future claims, shall be BINDING ARBITRATION administered by the American Arbitration Association under the Consumer Arbitration Rules. Such arbitration shall be conducted by written submissions only, unless either you or Birdy elect to invoke the right to an oral hearing before the Arbitrator. You fully agree that you will not under any circumstances commence, maintain, or participate in any class action, class arbitration, or other representative action or proceeding against Birdy and you waive and release any right or claim you have to a class action lawsuit or arbitration.
By accepting this Agreement, you agree to the Arbitration Agreement in this Section 15. In doing so, BOTH YOU AND BIRDY GIVE UP THE RIGHT TO GO TO COURT to assert or defend any claims between you and Birdy. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING.
If you assert a claim against Birdy outside of small claims court, your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY, and the arbitrator shall determine all claims and all issues regarding the arbitrability of the dispute. The same is true for Birdy. Both you and Birdy are entitled to a fair hearing before the arbitrator. The arbitrator can generally grant the relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
The Jurisdiction and Venue provisions in Sections 16 and 17 are incorporated and are applicable to this Arbitration Agreement.
Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge or a jury. Instead, the parties’ dispute is decided by a private arbitrator selected by the parties under the Consumer Arbitration Rules of the American Arbitration Association. Arbitration does not limit or affect the legal claims you as an individual may bring against Birdy. Agreeing to arbitration will only affect where those claims may be brought and how they will be resolved.
Arbitration is generally considered to be a more rapid dispute resolution process than the judicial system, but that is not always the case. The Arbitrator will typically determine whether Birdy or you will be required to pay or split the cost of any arbitration with Birdy, based on the circumstances presented.
You will be precluded from bringing any class or representative action against Birdy, unless you timely opt out of the retroactive application of this Arbitration Agreement, and you will also be precluded from participating in any recovery resulting from any class or representative action brought against Birdy, in each case provided you are not already bound by an arbitration agreement and class action waiver previously agreed to with Birdy.
Under Rule R-9 of the AAA Consumer Arbitration Rules, either party to an arbitration involving a claim within the jurisdiction of a small claims court may choose to have the case decided by the small claims court instead. Please review Rule R-9 for more details. Nothing in this Agreement, including the right of the consumer (but not Birdy) to file a dispute directly in small claims court rather than initiating arbitration, should be construed as being inconsistent with either party’s right to invoke Rule R-9 after an arbitration has been initiated.
WHETHER TO AGREE TO THIS ARBITRATION AGREEMENT IS AN IMPORTANT DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD TAKE CARE TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
