This Master Subscription Agreement (this “Agreement”) contains terms and conditions that govern your purchase of subscriptions to, and use of, the Services (as defined in Section 26 below) and is a contract between Birdie SSOT Corp. (“Birdie”), and you (“Customer”) or the entity or organization that you represent.
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use the Services; (2) when you click an “I Accept”; “Sign up” or similar button or check box referencing this Agreement; or (3) when you enter into an Order (as defined below) with Birdie.
Capitalized terms not otherwise defined in this Agreement will have the respective meanings assigned to them in Section 26.
- Orders
1.1. This Agreement sets forth the terms pursuant to which Customer may access and use Birdie’s Services in connection with one or more Orders. Subject to the terms of an Order, the Services will support the Customer’s centralization, storage, organization, collaboration, and analysis of feedback data and insights pursuant to separate projects within a workspace.
1.2. Access to and use of the Services may be subject to additional terms specific to a product or feature as set forth in the Order, and Customer also agrees to the applicable Product-Specific Terms.
- Access, Integrations, and Usage
2.1. Subject to the terms and conditions of this Agreement, Birdie hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Services by the Authorized Users set forth in the applicable Order, in accordance with the Documentation, during the Order Term solely for Customer’s internal business purposes and not for resale or to provide services to third parties.
2.2. Birdie shall provide support for the Services.
2.3. As between the Parties, Customer controls its own environment and its individual components (each, a “Customer Component”), whether owned, leased, or licensed by Customer, located on Customer’s premises or cloud-based, used by Customer on a software-as-a-service basis or otherwise. Customer will be able to use the Services by establishing integrations or other connections to one or more Customer Components (each, a “Connection”). By implementing a Connection to a Customer Component, Customer hereby grants to Birdie the right and is expressly instructing Birdie to access and interoperate with that Customer Component during the Order Term in order to provide and support the Services. The customer is responsible for complying with all applicable third-party terms, policies, and licenses governing its access and use of Customer Components and associated data (collectively, “Third-Party Terms”).
2.4. Through Customer’s configuration and use of Connections and Services, Customer has control over the types and amounts of data from Customer’s own environment that are submitted for Processing by the Services (collectively, “Customer Data”). By submitting Customer Data to the Services, Customer hereby grants the right to Birdie, and is expressly instructing Birdie, to Process Customer Data during the Order Term in order to provide and support the Services and as otherwise provided in this Agreement.
2.5. Birdie may, from time to time, offer access to beta products, pre-release products, or other experimental features (“Beta Products”). Any obligations or warranties made by Birdie under this Agreement shall not apply with respect to Beta Products. Furthermore, any data, information, content, or other materials provided or displayed to Customer in connection with any Beta Products or any knowledge that Customer may have from or relating to Beta Products is Confidential Information of Birdie.
2.6. Birdie will use commercially reasonable efforts to assist Customer in the initial set-up of the Services according to the Order terms. The setup consists of (i) assistance in identifying and integrating with Integrated Sources and other platforms, (ii) identifying user feedback categories and subcategories relevant to the Customer’s business, and (iii) configuring the Services accordingly. Unless otherwise agreed, all setup services shall be provided remotely. Such shall be subject to the hours’ cap identified in the relevant Order. The customer agrees to reasonably cooperate with Birdie in the provision of such services and provide timely responses to Birdie’s reasonable requests.
2.7. Integrated Sources. If Customer connects or integrates, or requests Birdie to connect or integrate with, any Integrated Sources, Customer represents and warrants that it is entitled to disclose any log-in information provided by Customer in connection therewith and/or to grant Birdie access to Customer’s account governing its use of the Integrated Sources (a “Third Party Account”), including, but not limited to, for the use of the purposes described herein, without breach by Customer of any terms and conditions that govern its use of the applicable Third Party Account and without obligating Birdie to pay any fees or making Birdie subject to any usage limitations imposed by such Third Party Providers. By granting Birdie access to Third Party Accounts, Customer understands that Birdie may access Customer Data stored in its Third Party Account so that it may be used in accordance with the terms of this Agreement. Customer represents and warrants that it is in good standing with respect to each Third Party Account to which it grants Birdie access hereunder.
(a) Customer acknowledges that each Third Party Account, including the Integrated Sources that are made available by Third Party Providers, and that the access to and use of such Third Party Accounts, including the availability thereof and uptimes related thereto, is solely determined by the relevant Third Party Providers. Birdie will have no liability to Customer for any unavailability of any Integrated Sources or any Third Party Provider’s decision to discontinue, suspend or terminate any Integrated Sources.
- Hosting and Other Providers
Birdie uses third-party hosting providers, other service providers, and Birdie Affiliates to support the provision of the Services in the ordinary course of its business, i.e., not specifically for Customers (collectively, “Ordinary Course Providers”). Birdie reserves the right to engage and substitute Ordinary Course Providers as it deems appropriate but shall: (a) remain responsible to Customer for the provision of the Services and (b) be liable for the actions and omissions of its Ordinary Course Providers undertaken in connection with Birdie’s performance of this Agreement to the same extent Birdie would be liable if performing the Services directly. In no event shall providers of Customer Components be deemed Ordinary Course Providers for any purpose under this Agreement.
- Security and Privacy
4.1. Taking into account the nature and types of Customer Data, Birdie will employ administrative, physical, and technical measures in accordance with applicable industry practice to protect the Services and prevent the accidental loss or unauthorized access, use, alteration, or disclosure of Customer Data under its control during each Order Term. During the Order Term, Birdie will maintain security measures with respect to Customer Data.
4.2. Customer is responsible for properly configuring the Services in accordance with the Documentation, enabling single sign-on for Customer’s accounts where available, and securing access passwords or other credentials used by Customer in connection with the Services (collectively, “Customer Credentials”). Customer agrees to use reasonable efforts to prevent unauthorized access or use of the Services and to promptly notify Birdie if Customer believes (a) any Customer Credentials have been lost, stolen, or made available to an unauthorized third party or (b) an unauthorized third party has accessed the Services or Customer Data.
4.3. In limited situations, Birdie may access Customer Data to provide support and troubleshoot issues, provided that Birdie will not use Customer Data for any purpose except the sole purpose of providing the Services. Birdie may further Process information about Customer’s configuration and use of the Services (“Usage Data”) and Account Data: (a) to manage Customer’s account, including to calculate Fees (as defined in Section 7.1); (b) to provide and improve the Services, including to provide support and troubleshoot other issues; and (c) to provide Customer and Authorized Users insights, service, and feature announcements and other reporting. Birdie may also Process Usage Data that has been aggregated and/or anonymized (including, for clarity, that does not allow a third party to identify Customer as the source of information): (i) to develop new services and features; and (ii) to promote Birdie’s services, including, for example, through analyses of patterns and trends. Birdie’s Processing of Usage Data, Customer Data, and Account Data, as applicable, shall at all times be subject to Birdie’s obligations under this Agreement, including those of security under Section 4.1 and confidentiality under Section 11.
- Customer Responsibilities and Restrictions
5.1. Customer will be solely responsible for: (a) Customer’s own environment, including as necessary to enable Authorized Users’ access and use of the Services; (b) Account Data, Customer Data and Customer Credentials (including activities conducted with Customer Credentials), subject to Birdie’s Processing obligations under this Agreement; (c) providing any required notices to, and receiving any required consents and authorizations from, Customer Component providers, Authorized Users and persons whose Personal Information may be included in Account Data, Customer Data or Customer Credentials; (d) ensuring use of the Services is only for Customer’s own environment and in accordance with the AUP, Documentation and any applicable Third-Party Terms; (e) all activities of Authorized Users and for Authorized Users’ compliance with this Agreement; (f) providing Birdie with complete and accurate account, billing and payment information and keeping such information up to date during the term of the Agreement; and (g) fulfilling any additional responsibilities as applicable to Customer set forth in the applicable Order.
5.2. No provision of this Agreement includes the right to, and Customer shall not, directly or indirectly: (a) enable any person or entity other than Authorized Users to access and use the Services; (b) attempt to gain unauthorized access to any Service or its related systems or networks; (c) use any Service to access Birdie Intellectual Property Rights except as permitted under this Agreement; (d) modify, copy or create any derivative work based upon a Service or any portion, feature or function of a Service; (e) resell, distribute or otherwise make available any Service to any third party, including as part of a managed services offering; (f) except to the extent limited by Applicable Law, reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, the Services or access or use the Services or Documentation in order to (1) copy ideas, features, functions or graphics, (2) develop competing products or services, or (3) perform competitive analyses; (g) remove, obscure or alter any proprietary notice related to the Services; (h) send or store Malicious Code; (i) use or permit others to use the Services in violation of Applicable Law; or (j) use or permit others to use the Services other than as described in the applicable Order, Documentation and this Agreement.
5.3. Birdie reserves the right to investigate potential violations of the above provisions of this Section 5. In the event Birdie reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity (including termination pursuant to Section 13.2), Birdie will have the right to suspend Authorized Users suspected of the violation from accessing the Services for so long as is reasonably necessary to address the potential violation. Except where Birdie reasonably believes the violations are willful or in urgent or emergency situations, Birdie will notify Customer of any such suspension in advance (each, a “Suspension Notice”) and work with Customer in good faith to resolve the potential violation. For clarity, Birdie reserves the right but does not assume any obligation to Customer (except with respect to the Suspension Notice), to take any of the actions described in this Section 5.3.
- Compliance
6.1. Each Party shall comply with Applicable Laws concerning the privacy and protection of Personal Information. Without limiting Section 5.1, Customer will be solely responsible for providing any notices required by Applicable Law to, and receiving any consents and authorizations required by Applicable Law from, persons whose Personal Information may be included in Account Data, Customer Data or Customer Credentials. If Customer is (a) subscribed to a Service Plan; and (b) believes Customer Data may include the Personal Information of natural persons located in jurisdictions who have enacted privacy laws that require a written data processing agreement (such as the UK, Brazil, the European Economic Area, and California), Customer may do so by requesting a Birdie Data Processing Agreement.
6.2. Each Party shall comply with Applicable Laws concerning anti-bribery and anti-corruption, which may include the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. As of the date of this Agreement and the date of each Order, Customer represents that it has neither received nor been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any employee, agent or representative of Birdie or its Affiliates in connection with this Agreement. Customer agrees to promptly notify Birdie if it learns of any violation of the foregoing. This representation is not intended to include customary and reasonable gifts and entertainment provided in the ordinary course of business, to the extent such gifts and entertainment are permitted by Applicable Law.
6.3. Each Party shall: (a) comply with Applicable Laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”); and (b) not directly or indirectly export, re-export or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Customer represents that it is not a Sanctions Target or prohibited from receiving Servicespursuant to this Agreement under Applicable Laws, including Export Laws.
- Fees, Invoicing, Payment and Upgrade
7.1. Customer agrees to pay all fees charged by Birdie for Customer’s use of Services described in the Pricing Plan for the Services via bank transfer to such bank account as is nominated by Birdie from time to time (or via debit or credit card – if applicable), in accordance with the terms of this Agreement: Fees must be paid in U.S. dollars and, subject to Section 7.3 and 7.4.
7.2. Any fees will (subject to the Pricing Plan) be payable annually in advance. Invoices are payable in full and must be paid within 30 days of receipt of the invoice by the Customer. Any fees or additional fees due under this Agreement are exclusive of VAT or any other sales tax (where applicable). Any fees, once paid are non‑refundable.
7.3. If the Customer’s use of the Services exceeds the Authorized User Limit or Feedback Limit set out in your Pricing Plan or otherwise requires the payment of additional fees (per the terms of this Agreement), or if the parties have agreed to the provision of any additional services, the Customer shall be billed for such usage and the Customer agrees to pay the additional fees in accordance with this Section 7 (or as otherwise agreed between the parties in writing). Birdie will not charge the Customer for any additional services without obtaining the prior consent of the Customer.
(a) The Customer shall not exceed the Feedback Limit set out in your Pricing Plan. If the Feedback Limit is exceeded, Birdie reserves the right to suspend the processing of Customer Data.
(b) Birdie reserves the right to charge the Customer for any additional comments processed that are in excess of the Feedback Limit. Birdie will notify the Customer once (a) 10% or less of the Feedback Limit remains; and (b) the Feedback Limit has finally been exhausted at which point the Customer may elect to renew or upgrade their existing plan. If the Customer fails to renew or upgrade their existing plan and the Feedback Limit has been exceeded, then overage charges will apply following the terms of this Section 7 for each additional 1000 comments processed (or part thereof) as follows: Feedback Limit/Fees x 1.3 x 1000.
7.4. Except in the event of a good faith dispute under this Section, if Customer fails to make payment when due, without limiting Birdie’s other rights and remedies: (a) Birdie may charge interest on the past due amount at a rate of 2% per month or, if lower, the highest rate permitted under Applicable Law; (b) Customer shall reimburse Birdie for all reasonable costs incurred by Birdie in collecting any late payments or interest, including attorneys’ fees; and (c) if such failure continues, Birdie may suspend Customer’s and its Authorized Users’ access to the Services until such amounts are paid in full. Customer must assert any dispute with regard to Fees in writing within 10 days of receipt of the invoice giving rise to the dispute. Birdie will not exercise its suspension or termination rights or apply interest on late Fees if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.
- Automatic Renewal and Cancellation
8.1. Automatic Renewal. Unless a Party cancels an Order for a Service Plan in accordance with Section 8.2 below, each Order will automatically renew for additional periods of the same duration as the expiring Order Term (each, a “Renewal Order Term”). Customer authorizes Birdie to automatically charge Customer for the applicable fees on or after the start date of each Renewal Order Term unless the Order has been terminated or canceled in accordance with this Agreement. See Section 13.
(a) At the end of the Initial Term and upon each subsequent Renewal Period, Birdie reserves the right to increase any fees by up to 10% to account for (amongst other things) annual inflation and any increase to its cost base.
(b) Birdie reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the Initial Term or then-current Renewal Period, upon thirty (30) days prior notice to the Customer (which may be sent by email).
8.2. Either Party may opt-out of Order renewal by providing the other Party written notice of its intention not to renew an Order at least 30 days prior to the Order’s then current expiration date.
- Taxes
Customer shall be responsible for all sales, service, value-added, use, excise, consumption and any other Taxes on amounts payable by Customer under the Orders and this Agreement (other than any Taxes on Birdie’s income, revenues, gross receipts, personnel or assets). Without limiting the foregoing, if Customer is required to deduct or withhold any Taxes under Applicable Laws outside the United States, Customer shall remit such Taxes in accordance with those Applicable Laws and all Fees payable shall be increased so that Birdie receives an amount equal to the sum it would have received had no withholding or deduction been made.
- Ownership
As between the Parties: (a) Customer owns all right, title and interest in and to Customer’s environment and Customer Data, including in each case all associated Intellectual Property Rights; and (b) Birdie owns all right, title and interest in and to the Services, Documentation and Feedback, including in each case all associated Intellectual Property Rights. Except for the rights expressly granted by one Party to the other in this Agreement, all rights are reserved by the granting Party.
- Confidentiality
11.1. As used in this Agreement, “Confidential Information” means any information disclosed by one Party, its Affiliates, business partners or their respective employees, agents or contractors (collectively, the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (a) Customer Data; (b) information relating to the Discloser’s or its Affiliates’ technology, customers, plans, promotional and marketing activities, finances and other business affairs; (c) third-party information that the Discloser is obligated to keep confidential; and (d) the terms of this Agreement and all Orders. However, Confidential Information does not include any information that: (i) was known to the Party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes publicly available through no fault or action of the Recipient.
11.2. The Recipient shall not: (a) use the Discloser’s Confidential Information for any purpose outside the scope of this Agreement without the Discloser’s prior written consent; or (b) disclose the Discloser’s Confidential Information to any person or entity, except to the Recipient’s employees, agents, contractors and service providers who: (i) are bound by non-use and non-disclosure obligations at least as protective as those contained in this Agreement; and (ii) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information to the limited extent any use or disclosure is required by Applicable Law or a valid and binding order of a governmental body (such as a subpoena or court order), provided that, to the extent permitted under Applicable Law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.
- Disclaimers
12.1. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12.2. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL SERVICES, SUPPORT AND ANY OTHER MATERIAL ARE PROVIDED BY Birdie ON AN “AS IS” AND “AS AVAILABLE” BASIS. Birdie MAKES NO REPRESENTATION OR WARRANTY, AND HAS NO SUPPORT OBLIGATIONS OR LIABILITY, WITH RESPECT TO ANY CUSTOMER COMPONENT. WITHOUT LIMITING THE OTHER PROVISIONS OF THIS SECTION 12, Birdie MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, DOCUMENTATION, ANCILLARY TOOLS OR ANY OTHER MATERIAL, OR RESULTS OF THE USE THEREOF, WILL: (a) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (d) BE ERROR FREE OR (e) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH CUSTOMER COMPONENTS. ANY CHANGES TO CUSTOMER COMPONENTS (INCLUDING THEIR UNAVAILABILITY) OR THIRD-PARTY TERMS DURING AN ORDER TERM DO NOT AFFECT CUSTOMER’S OBLIGATIONS UNDER THE APPLICABLE ORDER OR THIS AGREEMENT.
- Term and Termination
13.1. The term of this Agreement will commence on the Effective Date and continue until terminated in accordance with the terms herein.
13.2. Unless otherwise stated in an Order, each Order will have an initial term of one (1) year (the “Initial Subscription Term”), and will automatically renew for successive one (1) year (each, a “Renewal Subscription Term”, and together with the Initial Subscription Term, the relevant Order’s “Subscription Term”) unless either party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
13.4. Subject to Section 7.2, Birdie may terminate any Order upon written notice to Customer if Customer fails to pay any amount due under the Order, and such failure continues more than 15 days after Birdie’s delivery of written notice. In addition, either Party may terminate all Orders and this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach (if capable of cure) remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
13.5. Upon expiration or earlier termination of an Order: (a) subject to Section 13.5, all rights granted to Customer with respect to Services under such Order will terminate effective as of the effective date of termination; (b) subject to Section 13.5, Birdie will have no obligation to provide Services to Customer or Authorized Users after the effective date of the termination; and (c) Customer will, subject to Section 13.4, pay to Birdie any Fees payable for Customer’s and any Authorized User’s use of Services through the effective date of the termination, together with all other amounts in accordance with the Order and this Agreement.
13.6. If an Order is terminated early by Customer pursuant to 13.2: (a) Customer shall not be obligated to pay any additional amounts specified in the Order following the effective date of termination and (b) Birdie will refund to Customer a pro rata share of any unused amounts prepaid by Customer under the applicable Order for the Services on the basis of the remaining portion of the current Order Term (a “Pro-Rated Refund”). In all other cases, and regardless of whether Customer uses the Services at the levels reflected in the Orders or otherwise, Customer will not be entitled to a refund of Fees paid and any unpaid Fees outstanding will become immediately due and payable.
13.7. Provided Customer has paid all amounts due under this Agreement, and subject to any applicable shorter Service Plan retention periods and Section 8.1(b) above, for up to 45 days from the termination of Customer’s billing period, as specified in the applicable Order, an Authorized User designated by Customer will be permitted to continue to access and download Customer Data that was accessible to Authorized Users through the Services immediately prior to termination. The designated Authorized User’s access and use will continue to be subject to the terms of this Agreement, provided the Authorized User shall not access or use the Services other than to download Customer Data.
- Birdie shall use reasonable endeavours to make available to the Customer, within 30 days of the effective date of termination, a file of Customer Data, if the Customer so requests at the time notice of termination, subject to payment of Birdie’s reasonable costs.
13.6. The provisions set forth in the following Sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 4.3, 5.2, 6, 9, 12, and 13 through 26.
- Indemnification
14.1. Subject to Sections 14.2 and 14.4, Birdie agrees to defend, indemnify and hold harmless Customer and its employees, contractors, agents, officers and directors (collectively, “Customer Indemnitees”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) (collectively, “Losses”) arising out of or related to any legal claim, suit, action or proceeding (each, an “Action”) by a third party alleging use of the Services as permitted under this Agreement infringes such third party’s United States patent or copyright, or misappropriates such third party’s trade secrets (each, a “Customer Infringement Claim”).
14.2. If the Services become, or in Birdie’s opinion are likely to become, the subject of a Customer Infringement Claim, Birdie may in its discretion and at its own expense: (a) obtain for Customer the right to continue using the Services; (b) modify the Services so that they no longer infringe or misappropriate; or (c) terminate this Agreement and all Orders and issue a Pro-Rated Refund. Birdie will have no obligation to indemnify Customer for a Customer Infringement Claim to the extent it arises from any of the following (collectively, “Customer-Controlled Matters”): (i) Customer’s own environment, including Connections to Customer Components; (ii) Account Data, Customer Data or Customer Credentials (including activities conducted with Customer Credentials), subject to Birdie’s Processing obligations under this Agreement; or (iii) use of the Services by Customer or an Authorized User in a manner that breaches an Order, Service Plan or this Agreement. SECTIONS 14.1 AND 14.2 STATE Birdie’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION.
14.3. Subject to Section 14.4, Customer agrees to defend, indemnify and hold harmless Birdie, its Affiliates and their employees, contractors, agents, officers and directors (collectively, “Birdie Indemnitees”), from and against any and all Losses arising out of or related to any Action by a third party arising out of or relating to Customer-Controlled Matters.
14.4. A Customer Indemnitee or Birdie Indemnitee (each, an “Indemnitee”) seeking indemnification shall promptly notify the other Party (each, an “Indemnifying Party”), in writing of any Action for which it seeks indemnification under this Agreement and cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party shall promptly take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s expense. An Indemnitee may participate in and observe the proceedings at its own expense with counsel of its own choice. A Party’s failure to perform any obligations under this Section 14.4 will not relieve the Indemnifying Party of its obligations under this Agreement, except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnifying Party shall not settle an Action without the Indemnitee’s written consent if such settlement shall require action or payment by the Indemnitee.
- Limitations of Liability
15.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 15: (a) IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND (b) IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO Birdie BY CUSTOMER UNDER THE APPLICABLE ORDER(S), INCLUDING PRIOR ORDERS FOR THE SAME SERVICES, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE LIMITATIONS IN THIS SECTION 15.1 APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PROVISIONS OF THIS SECTION 15.1 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT AND THE PRICING FOR THE SERVICES.
15.2. NOTWITHSTANDING SECTION 15.1 ABOVE OR ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, Birdie’S AGGREGATE LIABILITY FOR ANY FREE TRIALS OR BETA PRODUCTS SHALL NOT EXCEED $100.
15.3. If you are a California resident, you hereby waive 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 or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others. You hereby waive any similar provision in law, regulation, or code that has the same intent or effect as the aforementioned provisions, including without limitation the New Jersey Truth In Consumer Contract, Warranty, and Notice Act.
- Publicity
Neither Party shall, except as otherwise required by Applicable Law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that Birdie may use Customer’s name and logo in its lists of Birdie customers, its public website and other promotional material.
- Notices
Subject to change pursuant to this Section: (a) Birdie’s physical address for notices is that of its US headquarters at 978 N California Ave, Palo Alto, CA, 94303 Attn: Legal Notice, and its email address for notices is finance@birdie.ai;and (b) Customer’s physical and email addresses for notices are those associated with its Order(s). Notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to be sufficiently given: (i) one business day after being sent by overnight courier to the Party’s physical address; (ii) three business days after being sent by registered mail, return receipt requested, to the Party’s physical address; or (iii) one business day after being sent by email to the Party’s email address (provided that (1) the sender does not receive a response that the message could not be delivered or an out-of-office reply and (2) any notice for an indemnifiable Action must be sent by courier or mail pursuant to clause (i) or (ii)). Either Party may change its address(es) for notice by providing notice to the other in accordance with this Section.
- Assignments
So long as Customer subscribes to a Service Plan and remains current in the payment of all amounts when due, Customer may assign this Agreement in connection with any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity), or a sale of all or substantially all of Customer’s business or assets relating to this Agreement to an unaffiliated third party. Subject to the foregoing, Customer may not assign any of its rights or obligation under this Agreement, whether by operation of law or otherwise, without Birdie’s prior written consent, and any purported assignment in violation of this Section is void. For clarity, Customers who access the Services through a Free Trial account may not assign this Agreement without Birdie’s prior written consent. Birdie may freely assign this Agreement. Notwithstanding the foregoing, if (a) Customer is accessing Birdie individually, then Customer may assign and delegate its rights and obligations under this Agreement and transfer ownership of its workspace to an entity represented or owned by Customer; or (b) Customer is accessing Birdie on behalf of a client, then Customer may assign and delegate its rights and obligations under this Agreement and transfer ownership of its workspace to its client. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
- U.S. Government Contractors
The Services and Documentation are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Customer or any Authorized User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer and Customer’s Authorized Users must immediately discontinue use of the Services and Documentation. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
- Independent Parties; No Third-Party Beneficiaries
The Parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one Party as an employee, agent, joint venture partner or servant of another. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Force Majeure
Except for a Party’s obligation to pay Fees, neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by acts of God; flood, fire or explosion; war, terrorism, pandemics, epidemics, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of this Agreement; or national or regional emergency (each of the foregoing, a “Force Majeure Event”), in each case, provided the event is outside the reasonable control of the affected Party, the affected Party provides prompt notice to the other Party, stating the period of time the occurrence is expected to continue, and the affected Party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
- Governing Law; Venue
Except to the extent the issue arising under this Agreement is governed by United States federal law, this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without giving effect to the choice of law rules of that State. Any legal action or proceeding arising under or relating to this Agreement shall be brought exclusively in the state or federal courts located in San Francisco, California, and the Parties expressly consent to personal jurisdiction and venue in those courts. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods are specifically excluded from application to this Agreement.
- Miscellaneous
This Agreement, together with all Orders, is the complete and exclusive statement of the agreement between the Parties and supersedes all proposals, questionnaires and other communications and agreements between the Parties (oral or written) relating to the subject matter of this Agreement. Any terms and conditions of any other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Without limiting the foregoing, if Customer issues to Birdie a purchase order upon entering into an Order, any such purchase order is for Customer’s internal purposes only, and any terms in such purchase order are rejected by Birdie, do not amend this Agreement, and have no effect. If Customer requests Birdie to reference a purchase order number on a Birdie invoice, such reference is included for administrative convenience only. Additionally, this Agreement supersedes any confidentiality, non-disclosure, evaluation or trial agreement previously entered into by the Parties with respect Customer’s or an Affiliate’s evaluation of the Services or otherwise with respect to the Services. Except as otherwise provided in Section 25, this Agreement may be modified only by a written instrument duly executed by authorized representatives of the Parties. The failure of a Party to exercise or enforce any condition, term or provision of this Agreement will not operate as a waiver of such condition, term or provision. Any waiver by either Party of any condition, term or provision of this Agreement shall not be construed as a waiver of any other condition, term or provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; the word “or” is not exclusive; and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.
- Counterparts
Any written Order may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. Delivery of an executed counterpart of a signature page to an Order by email of a scanned copy, or execution and delivery through an electronic signature service (such as DocuSign), shall be effective as delivery of an original executed counterpart of the relevant Order.
- Definitions
Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Section 25.
“Account Data” means information about Customer that Customer provides to Birdie in connection with the creation or administration of its Birdie account, such as first and last name, user name and email address of an Authorized User or Customer’s billing contact. Customer shall ensure that all Account Data is current and accurate at all times during the applicable Order Term, and shall in no event include Sensitive Information in Account Data.
“Affiliate” means, with respect to a Party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such Party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
“Applicable Laws” means any and all governmental laws, rules, directives, regulations or orders that are applicable to a particular Party’s performance under this Agreement.
“Authorized User” means an individual employee, workspace administrator, agent or contractor of Customer for whom subscriptions to Services have been purchased pursuant to the terms of the applicable Order and this Agreement, and who has been supplied user credentials for the Services by Customer (or by Birdie at Customer’s request).
“Customer Data” means any information submitted by Customer through the Birdie Service or provided by Customer to Birdie as part of the Services, including any support tickets, development requests or other feedback related to Customer’s products and services.
“Documentation” means Birdie’s standard user documentation for the Services, such as user manuals, handbooks, and online materials provided by Birdie to Customer that describe the features, functionality or operation of the Birdie Platform.
“Feedback” means bug reports, suggestions or other feedback with respect to the Services or Documentation provided by Customer to Birdie, exclusive of any Customer Confidential Information therein.
“GDPR” means the General Data Protection Regulation 2016 / 679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing of Directive 95/46/EC.
“Integrated Sources” means any application, data services, software, or service made available by a third party (a “Third Party Provider”) with whom Customer has a valid account and that is integrated with the Services.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order” means a separate order, checkout page, purchase, or statement of work for any Service Plan pursuant to this Agreement: (a) completed and submitted by Customer online at the Birdie website and accepted by Birdie or (b) executed by Birdie and Customer. For Free Trials, “Order” shall refer to the account registration completed and submitted by Customer online at the Birdie website and accepted by Birdie.
“Order Term” means, with respect to each Order, the initial subscription term for the Services specified in the applicable Order and all Renewal Order Terms, if any. In the event an Order does not specify a fixed term, then the Order Term will will have an initial term of one (1) year (the “Initial Subscription Term”), and will automatically renew for successive one (1) year.
“Party” means each of Birdie and Customer.
“Personal Information” means information relating to an identified or identifiable natural person that is protected by Applicable Laws with respect to privacy where the individual resides.
“Process” means to perform an operation or set of operations on data, content or information, including to submit, transmit, post, transfer, disclose, collect, record, organize, structure, store, adapt or alter; “Processing” has a correlative meaning.
“Sensitive Information” means the following categories of Personal Information: (a) government-issued identification numbers, including Social Security numbers; (b) financial account data; (c) biometric, genetic, health or insurance data; (d) financial information; (e) data revealing race, ethnicity, political opinions, religion, philosophical beliefs or trade union membership; (f) data concerning sex life or sexual orientation; and (g) data relating criminal convictions and offenses. Without limiting the foregoing, the term “Sensitive Information” includes Personal Information that is subject to specific or heightened requirements under Applicable Law or industry standards, such as Social Security numbers in the United States, protected health information under the U.S. Health Insurance Portability and Accountability Act, nonpublic personal information under the U.S. Gramm-Leach-Bliley Act, cardholder data under the PCI Data Security Standard, and special categories of personal data under the GDPR.
“Services” means the hosted services to which Customer subscribes through, or otherwise uses following, an Order that are made available by Birdie, including without limitation any free trials of the Services. Birdie may make such changes to the Services as Birdie deems appropriate from time to time, provided such changes do not materially decrease the features or functionality of the Services as they existed at the effective date of this Agreement. Notwithstanding the foregoing, Birdie may make any modifications, in its sole discretion, to any Beta Products, including without limitation removing certain functionalities or discontinuing the availability of such Beta Products.