Last Updated: 10/28/2021
These Terms and Conditions (“Terms and Conditions”) apply to your access to, and use of, any website, mobile application or similar software or program, or online service or program (collectively, the “Services”) of Birdcall Holdings, LLC and its subsidiaries and affiliates (collectively, “Birdcall”, “we” and “us”) where these Terms and Conditions are posted or linked.
These Terms and Conditions are a legal and binding agreement between you and Birdcall. These Terms and Conditions govern your use of the Services, which include the content, information, services, and features made available through the Services.
Your use of the Services is at your risk. If you are dissatisfied with the Services in any way, its contents, or features, or these Terms and Conditions, your sole and exclusive remedy is to discontinue accessing and using the Services.
Updates
Birdcall reserves the right to update, change, modify, or revise these Terms and Conditions at any time. Changes will become effective upon their posting, along with the date on which it was most recently updated as indicated by the “Last Updated” section at the end of these Terms and Conditions. Your continued access to or use of the Services after any such changes indicates your acceptance of the Terms and Conditions as modified. It is your responsibility to review the Terms and Conditions regularly for updates.
Permitted Use
The Services and all content, information, and other materials featured, displayed, contained, and available on the Services, including, but not limited to, all text, images, graphics, designs, illustrations, photographs, pictures, audio, software, and video clips, the “look and feel”, pages, screens, content arrangement, and computer programs (collectively, “Materials”) are owned by or licensed to Birdcall and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property rights and unfair competition laws under the statutory or common laws of the United States and foreign laws. Subject to your compliance with these Terms and Conditions, Birdcall grants you a personal, non-exclusive, non-transferable, limited right to access, use, display, and download the Services for noncommercial purposes only. You may view, display, copy, download, and print Materials solely for your own personal, noncommercial use. All copyright, trademark, and other proprietary notices contained on the Materials must be retained on all copies thereof. You may not, in any way, otherwise copy, reproduce, distribute, transmit, display, perform, reproduce, publish, license, modify, create derivative works from, sell, or exploit, in whole or in part, the Services or its Materials. Except as expressly provided herein, Birdcall does not grant any express or implied right to you under any patents, trademarks, copyrights, or trade secret information.
You agree to abide by all additional terms, conditions, and restrictions included within the Services, Materials, and/or the programs, features, and services.
Birdcall may at any time, for any reason, and without notice or liability: (1) modify, suspend, or terminate operation of or access to any Service, or any portion thereof; (2) change, revise, or modify the Services, Materials, or any portion thereof; (3) interrupt the operation of the Services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction, or for any other purposes; (4) impose limits on certain programs, features, and services, or restrict your access to the Services, in whole or in part; and/or (5) terminate the authorization, rights, and license given above, upon which you shall immediately destroy all Materials.
User Conduct
You agree to use the Services and Materials in accordance with these Terms and Conditions and all applicable laws and regulations. You agree not to: (1) modify, adapt, translate, or reverse engineer any portion of the Services or Materials; (2) use the Services or Materials for any unlawful, fraudulent, or malicious purposes, or to solicit any such activity; (3) attempt to gain unauthorized access to any accounts, features, systems, or networks through hacking, password mining, or any other means; (4) use the Services or any feature in any way that could disrupt, damage, disable, overburden, or impair it or its systems, servers, or networks; (5) frame or mirror any portion or feature of the Services; (6) use the Services or any feature for advertisements, chain letters, spamming, junk mail, solicitations, or any other commercial purposes; (7) use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm, or methodology, or any similar or equivalent manual process, to: (1) access, acquire, copy, or monitor any portion of the Services or Materials; (2) reproduce or circumvent the navigational structure or presentation of the Services or Materials; or (3) obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Services; (8) use any device, software, or routine to interfere or attempt to interfere with the proper working of the Services or with any other person’s use or enjoyment of the Services; (9) transmit any viruses, worms, defects, Trojan horses, time bombs, cancel-bots, corrupted files, or other items of a destructive nature; (10) circumvent or attempt to circumvent any security or authentication measures implemented by or on behalf of Birdcall; (11) forge headers or otherwise manipulate identifiers; (12) post, transmit, submit, or include any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable content, material, or information of any kind, or any content, material, or information that may give rise to criminal or civil liability; (13) submit or post any false or misleading information; and/or (14) violate, infringe, or misappropriate the intellectual property, publicity, privacy, or other proprietary rights of Birdcall, its Affiliates, or any other person or entity.
Birdcall reserves the right to prohibit access, use, conduct, communications, or content that we, in our sole discretion, deem to be harmful to the Services, Materials, users, us, our brand, or any other person or entity, or that violates these Terms and Conditions and/or applicable law.
Submissions
Except for any personally identifiable information Birdcall may collect from you under the guidelines established in our Privacy Policy (“Privacy Policy”), any materials, remarks, suggestions, ideas, photos, stories and/or other information you communicate or submit to us through the Services (including, without limitation, “Share Your Birdcall Story”), via phone, or otherwise (collectively, “Submissions”) will be considered non-confidential and non-proprietary. By providing a Submission to us, you expressly grant us an unrestricted, irrevocable, perpetual, transferable (i.e., fully assignable and sub-licensable), worldwide, royalty-free license to disclose, copy, reproduce, display, publicly perform, transmit, distribute, translate, reformat, incorporate, and otherwise use your Submission along with your name, photograph, voice, likeness and other information, content, or materials embodied therein, in whole or in part, and create derivative works therefrom, in any media now known or hereafter developed, and for any and all commercial or non-commercial purposes without compensation to you or anyone else. You also permit any user to access, display, view, store, and reproduce, for personal use only, your Submission as posted by us.
Birdcall may, but shall not be obligated to, in our sole discretion, post any Submission on the Services and identify you as the submitting party. We may, without notice to you, refuse or edit Submissions for any reason or no reason, including those Submissions that violate these Terms and Conditions, are irrelevant or inappropriate, or represent us in a negative way or in any manner not consistent with our brand and/or reputation, as determined by us in our sole discretion.
You agree that any statements that you make about us or any of our products, services, or programs in any Submission that you make accurately reflect your personal beliefs and experiences with us and our products and services, and that any opinions submitted are true to the best of your knowledge.
You are fully responsible for your Submissions. You agree that your Submissions comply in all respects with these Terms and Conditions and shall not be made on behalf of any person or entity without their prior written consent. You may not include any content (e.g., text, photos, images, quotes, logos, etc.) that is the property of another (e.g., protected by copyright, trademark, or other intellectual property rights), unless you have express, written permission to do so.
Login and Registration
Certain programs, features, or services offered on or through the Services may require you to complete a registration process and/or setup an account or login. In connection therewith, you agree to (1) provide true, accurate, current, and complete information about yourself, (2) maintain and promptly update your information to keep it true, accurate, current, and complete, and (3) that you are at least thirteen (13) years of age. You are entirely responsible for maintaining the confidentiality of the information you hold for your login, including your password. You agree to notify Birdcall immediately of any unauthorized use of your login, or any other breach of security. You may be held liable for losses incurred by Birdcall or any other Service user or visitor due to someone else using your login as a result of your failing to keep your login information secure and confidential.
You may not use anyone else’s login at any time without their express written permission. Birdcall shall not be liable for any loss or damage arising from your failure to comply with these obligations.
Mobile Apps
In order to use the Services made available through the mobile application (the “Mobile App”), you must have a compatible mobile device; Birdcall does not warrant that the Mobile App will be compatible with your mobile device.
If you access the Mobile App using an Apple iOS or Android powered device, Apple Inc. or Google, Inc., and each of their subsidiaries shall be a third-party beneficiary to this contract, and you agree that these third-party beneficiaries have the right to enforce these Terms and Conditions against you. However, these third-party beneficiaries are not a party to these Terms and Conditions and are not responsible for the provision or support of the Mobile App. You agree that your access to the Mobile App also shall be subject to the usage terms set forth in the applicable third-party beneficiary’s terms of service.
The Mobile App may automatically download and install updates from time to time or require the downloading and installation of updates or new versions for continued use. You acknowledge that in some instances updates and/or new versions may reduce or remove features and functionality in prior versions of the Mobile App.
Third Parties
The Services may contain links to other third-party websites and social media platforms, such as Facebook, Twitter, Snap Chat or Instagram (all links to third-party websites and social medial platforms are collectively referred to herein as “Linked Sites”). Linked Sites are provided only for your convenience. If you decide to visit any Linked Site, you do so at your own risk. Birdcall shall have no responsibility or liability for any Linked Sites, or the content, policies, or actions thereof. If you choose to purchase any product or service from a Linked Site (including, without limitation, from a Linked Site of an Operator), your relationship is with that third party. You agree that Birdcall is not responsible for the quality of third-party products or services, or fulfilling any of the terms of your agreement with the seller, including, but not limited to, the delivery of products and services and warranty obligations related to products and services. Links do not imply that we sponsor, endorse, are affiliated with or associated with, or are legally authorized to use any trademark, trade name, service mark, design, logo, symbol, or other copyrighted materials displayed on or accessible through such Linked Site.
Privacy
Birdcall’s Privacy Policy applies to use of the Services, and its terms are made a part of these Terms and Conditions by this reference. By accessing and using the Services you agree to be bound by our Privacy Policy.
Intellectual Property
Birdcall® is a registered trademark and service mark of Birdcall in the United States. The Services, Materials, and the trademarks, logos, service marks, and all other source identifying indicia displayed on the Services (collectively, the “Intellectual Property”) are owned by or licensed to Birdcall with all rights reserved unless otherwise noted. The absence of a trademark notice or legend indicating the registration or ownership by Birdcall anywhere in the text of the Services does not constitute a waiver of Birdcall’s trademark or other intellectual property rights concerning that trademark or service mark used or referenced on the Services.
Nothing contained on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Intellectual Property without our prior express written permission. You are strictly prohibited from using any of the Intellectual Property except as expressly provided in these Terms and Conditions. You are also advised that Birdcall and/or its licensee(s) will aggressively enforce its intellectual property rights to the fullest extent of the law, including seeking criminal prosecution.
Electronic Communications
When you visit the Services or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically and by phone text message and or sms. We will communicate with you by e-mail, SMS, or by posting notices on the Services. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically, or by SMS, satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms and Conditions.
When you submit an order using the Services, we may send you an email, push or SMS confirming the details of your order. By submitting an order, you affirmatively agree to receive such SMS, push or email. Birdcall will not charge you for the text messaging, however, standard text messaging rates will apply to each text message sent or received as provided in your wireless rate plan. You must be at least eighteen (18) years of age or older to place an order through the Services, or otherwise under the supervision of an adult or guardian.
No Warranty
Birdcall makes no representations or warranties regarding the Services and Materials.
WE DO NO WARRANT THAT THE SERVICES OR MATERIALS WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED.
WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE USE OF BIRDCALL SERVICES OR MATERIALS, PROGRAMS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE SERVICES, OR THE RESULTS OBTAINED THEREFROM, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, TIMELINESS, RELIABILITY, OR OTHERWISE.
THE SERVICES AND MATERIALS, PROGRAMS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. WE DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD PARTY SERVICE PROVIDERS, PARTNERS, SPONSORS, LICENSORS, LICENSEES, OR THE LIKE (“PROVIDERS”) IN CONNECTION WITH OR RELATED TO YOUR USE OF BIRDCALL SERVICES AND MATERIALS PROGRAMS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE SERVICES.
Limitation of Liability
IN NO EVENT SHALL WE OR ANY OF OUR PROVIDERS BE LIABLE TO ANY PERSON FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES (LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, PROGRAMS, OR DATA) RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES AND MATERIALS, PROGRAMS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT PERMIT THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, IN SUCH JURISDICTIONS, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
Indemnification
You agree to indemnify, defend, and hold harmless Birdcall and all of its officers, directors, employees, and agents from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and expenses that arise directly or indirectly out of or from: (1) your breach of these Terms and Conditions; and/or (2) your activities in connection with the Services, and Materials, programs, features, and services made available through the Services.
Choice of Law
The Services are controlled, operated, and administered by us and our service providers from offices within the United States. We make no representation that Materials on the Services are appropriate or available for use at other locations outside of the United States, and access to them from territories where their contents are illegal is prohibited. You may not use the Services or export Materials in violation of U.S. export laws and regulations. If you access the Services from locations outside of the United States, you are responsible for compliance with all local laws. These Terms and Conditions and our Privacy Policy shall be governed by the laws of the State of Colorado, without regard to conflict of laws provisions or principles.
No Agency Relationship
Neither these Terms and Conditions, nor any Materials, programs, features, or services of the Services, create any partnership, joint venture, employment, or other agency relationship between Birdcall and you. You may not enter into any contract on our behalf or bind us in any way.
Remedies
You agree that Birdcall may, in its sole discretion and without prior notice, block and/or terminate your access to any or all of the Services if we determine that you have violated these Terms and Conditions or other agreements or guidelines that may be associated therewith. You also agree that any violation, or threatened violation, by you of these Terms and Conditions constitutes an unlawful and unfair business practice, and will cause irreparable and unquantifiable harm to Birdcall. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.
If Birdcall takes legal action against you as a result of your violation of these Terms and Conditions, we will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Birdcall. You agree that Birdcall will not be liable to you or to any third party for termination of your access to the Services as a result of any violation of these Terms and Conditions.
Miscellaneous
The Terms and Conditions, together with our Privacy Policy and any other applicable terms included within the Services, and/or Materials, programs, features, and services made available through the Services, as each is currently posted on the Services, constitute the entire agreement between us and you with respect to your use the Services and Materials, and supersede all previous written or oral agreements between us and you with respect to such subject matter. Any cause of action you may have arising out of or relating in any way to the Services must be commenced within one (1) year after the claim or cause of action arises. If, for any reason, a court of competent jurisdiction finally determines any provision of these Terms and Conditions, our Privacy Policy, or any portion thereof to be unenforceable, such provision shall be enforced to the maximum extent permissible so as to give the intended effect thereof, and the remainder of these Terms and Conditions and Privacy Policy shall continue in full force and effect.