Your use of BirdEye’s services, including the services BirdEye makes available through this website, including this website (the “Site” or the “BirdEye Site”) and any content (“BirdEye Content”) made available through this website (collectively the “Services”) is governed by these Terms and Conditions (the “Terms”). Please read these terms carefully before using the Services.
YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING THE BIRDEYE SITE OR SERVICES, OR POSTING OR ACCESSING ANY CONTENT ON THE SITE OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SERVICES OR BIRDEYE CONTENT.
If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these terms. In that case, “you” and “your” will refer to that organization.
BirdEye gives you a personal, royalty-free, non-assignable and non-exclusive license to use the software provided to you by BirdEye as part of the Services provided to you by BirdEye. Please note that you may use this software for internal business purposes only, and only in the manner permitted by the Terms. You may not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the content provided by or on behalf of BirdEye through the Services (the content) in any way, except as permitted by the Terms.
In the course of using the Services, you may be required to provide BirdEye personally identifiable information, including contact information, username and password (“Credentials”). BirdEye handles such information with the utmost attention, care and security. Nonetheless, you, not BirdEye, shall be responsible for maintaining and protecting your Credentials in connection with the Services. If your contact information, or other information relating to your username or password changes, you must notify BirdEye promptly and keep such information current. You are solely responsible for any activity using your Credentials, whether or not you authorized that activity. You should immediately notify BirdEye of any unauthorized use of your Credentials or if your email or password has been hacked or stolen. If you discover that someone is using your Credentials without your consent, or you discover any other breach of security, you agree to notify BirdEye immediately.
By making available any user-generated content (“User Content”) through the Site and Services, you hereby grant to BirdEye a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of the Site and the Services. BirdEye does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Site or Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Site or Services or you have all rights, licenses, consents and releases that are necessary to grant to BirdEye the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your accessing, posting, submission or transmittal of the User Content or BirdEye’s use of the User Content (or any portion thereof) on, through or by means of the Site and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
BirdEye reserves the right (but shall have no obligation) to remove any or all User Content from the Services in its sole discretion. You agree to immediately take down any User Content that violates the Terms, including pursuant to a take down request from BirdEye. In the event that you elect not to comply with a request from BirdEye to take down certain User Content, BirdEye reserves the right to directly take down such User Content.
The Services incorporate certain third party software (“Third Party Software”), which is licensed subject to the terms and conditions of the third party licensing such Third Party Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for such Third Party Software.
You may be able to access or use third party services, Third Party Software, resources, content, documentation or materials (“Third Party Materials”) as part of or during your use of the Services. You acknowledge and agree to sole responsibility for and assume all risk arising from your access to or use of any such Third Party Materials and BirdEye disclaims any liability that you may incur from your access to or use of such Third Party Materials or any User Content via BirdEye or the Services. You acknowledge and agree that BirdEye: (a) is not responsible for the availability or accuracy of such Third Party Materials or the products or services or available from such Third Party Materials; (b) has no liability to you or any third party for any harm, injuries or losses suffered as a result of your access to or use of such Third Party Materials; (c) does not make any promises to remove Third Party Materials from being accessed through the Services and your ability to access or link to Third Party Materials does not create or imply any endorsement by BirdEye of Third Party Materials or any such third party services; and (d) has no responsibility or liability for the deletion or failure to store any Third Party Materials maintained or transmitted through use of the Services. You further acknowledge and agree that you are solely responsible for backing up and making copies of any Third Party Materials that you wish to preserve.
Businesses using the BirdEye platform agree to adhere to the Terms of Service of all major review sites. This includes but not limited to Google, Facebook, Yelp, and other review sites.
Review gating: Businesses using BirdEye cannot implement any form of review gating. Review gating is a process where companies send a message to customers asking if their experience was positive or negative. Those who had a positive experience are directed to leave an online review. Those who had a negative experience are typically sent to a form to leave comments that are not made public.
When soliciting reviews using the BirdEye platform, businesses must provide all recipients the same options to provide feedback, regardless of their sentiment. This applies to review requests sent via standard review templates, custom email templates, and surveys.
Sites prohibiting solicitation of reviews: Businesses using BirdEye will fully comply with sites such as Yelp that prohibit review solicitation, and will not misuse the BirdEye platform to bypass review sites’ policies.
Failure to comply with 3rd Party Review site policies: If a business attempts to circumvent the Terms of Service of 3rd party review sites, BirdEye will notify the business and allow them 30 days to take corrective action. Should the business fail to comply within the 30-day notice period, their account will be suspended from BirdEye.
You may not use the Services if you are a person barred from receiving the Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Services. You affirm that you are over the age of 13, as the Services are not intended for children under 13.
Your compliance: To the extent required by law and as applicable to the parties, the parties shall comply with the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”). You will be solely responsible for complying with any messaging consent obligations under the TCPA and TSR in the course of accessing and using the BirdEye Services. You are responsible for obtaining explicit consent(s) from any and all third parties (including your customers) to send and receive SMS and/or emails using the BirdEye Services. BirdEye shall have the same obligation to obtain third party consent for all parties from which it is directly obtaining their phone number(s). Each party is liable for, and shall indemnify, defend and hold harmless the other party from and against any and all damages, liabilities, judgments, fees, fines, costs and expenses (including reasonable attorneys’ fees) incurred by the non-breaching party arising from any claims, demands or legal actions made against it resulting from your breach of this Section 6.
BirdEye compliance: If you submit your mobile telephone number to BirdEye through a webform or any other method, you expressly consent to receive text messages from BirdEye to that mobile phone number. You may opt out at any time.
BirdEye will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Site and Services security issues, to the fullest extent of the law. BirdEye may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that BirdEye has no obligation to monitor your access to or use of the Site, Services or BirdEye Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. BirdEye reserves the right, at any time and without prior notice, to remove or disable access to any BirdEye Content and any User Content, that BirdEye, in its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site or Services.
BirdEye’s priority to its customers is to keep the Services available and running at optimal speed, which requires each customer to use the Services fairly and reasonably so as to not affect the access or use by other customers. The Services include broad access to a variety of resources such as bandwidth, API requests, and storage which are not unlimited (unless expressly stated as such in a Customer Agreement, Order Form or other agreement) or the overuse of which would affect the stability of the BirdEye platform, including but not limited to the Services, which is why we have this fair use clause (“Fair Use Policy” or “FUP”). Fair use will be considered the processing of 3 times the average number of requests or processed transactions per Location (as that term is defined in a Customer Agreement, Order Form or other written agreement) for other BirdEye customers in the same or similar industry. If BirdEye determines your use of the Services is in violation of its Fair Use Policy, in its sole reasonable discretion, it may take unilateral action regarding your use of the Services including, but not limited to, limiting the frequency of access to the Services or limiting the number of processed requests through the Services in order to bring usage in line with this FUP. BirdEye also reserves the right to invoice you for use of the Services in violation of the FUP. You understand, acknowledge and agree that BirdEye will have no liability to you or any of your users for enforcing this FUP and enforcement will not affect your obligations under these terms which includes the payment of fees for the Services.
If you have entered into an agreement with BirdEye for a free 30-day pilot of the Services, you understand, acknowledge and agree that your use of the Services will be for a period of 30 days only. At the end of the 30 day period, your access to and use of the Services will automatically terminate and, absent an executed agreement between BirdEye and you for paid access to and use of the Services effective prior to the 30-day period, all of the data will be deleted from the BirdEye platform. BirdEye will have no liability for the deletion of the data or for any other damages related to the use of the Services on a pilot basis.
“Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself (for avoidance of doubt, neither party shall be required to identify information as confidential in order to avail itself of the protections set forth herein). The parties acknowledge that these Terms and any Customer Agreement, order form, statement of work or other agreement between the parties referencing and/or incorporating these Terms, and any other proprietary or confidential information provided to the other party constitute valuable proprietary information and trade secrets of BirdEye and you, respectively. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its use as permitted and in connection with these Terms, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party will have the right to seek an injunction to prevent any breach or continued breach of this section. The receiving party agrees to promptly report any breach(es) of this section to the disclosing party. Notwithstanding the foregoing, Confidential Information does not include any information which (i) is now, or becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public without breach of these Terms by the receiving party; (ii) was independently developed, or otherwise acquired, by the receiving party without restriction as to use or disclosure before receiving such information from the disclosing party, as shown by the receiving party's files and records immediately prior to the time of disclosure; or (iii) is obtained by the receiving party without restriction as to use or disclosure by a third party authorized to make such disclosure.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org. You acknowledge and agree that all Feedback will be the sole and exclusive property of BirdEye and you hereby irrevocably assign to BirdEye and agree to irrevocably assign to BirdEye all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At BirdEye’s request and expense, you will execute documents and take such further acts as BirdEye may reasonably request to assist BirdEye to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
The Site, Services and BirdEye Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, BirdEye and its licensors exclusively own all right, title and interest in and to the Site, Services and BirdEye Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or BirdEye Content. BirdEye claims no ownership interest in any Third Party Materials and expressly disclaims any liability concerning those materials.
All trademarks, service marks, logos, trade names and any other proprietary designations of BirdEye used herein are trademarks or registered trademarks of BirdEye. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Please see your Customer Agreement for information regarding pricing and billing for these Services. If you have any questions about BirdEye’s billing policies, please contact BirdEye at email@example.com.
Your failure to pay undisputed fees when due constitutes a material breach of these Terms. If payment is not made within thirty (30) days of when it is due, BirdEye may, in its sole discretion, choose to do any or all of the following: (i) charge you a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly; and/or (ii) suspend your access to the Services. BirdEye’s suspension or resumption of the Services does not limit or prevent BirdEye from pursuing all other remedies available.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
BIRDEYE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BIRDEYE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICES WILL BE ACCURATE.
NOTHING IN THESE TERMS, INCLUDING SECTIONS #15, #17, SHALL EXCLUDE OR LIMIT BIRDEYE’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
You agree to defend, indemnify, and hold BirdEye, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with User Content, your access to or use of the Site, Services or BirdEye Content, or your violation of these Terms.
SUBJECT TO SECTION #17 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT BIRDEYE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
THE LIMITATIONS ON BIRDEYE’S LIABILITY TO YOU IN THIS SECTION SHALL APPLY WHETHER OR NOT BIRDEYE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
SOME STATES AND JURISDICTIONS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL BIRDEYE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES FOR THE LAST THREE MONTHS.
Without limiting other remedies, BirdEye may at any time suspend, terminate, or refuse to provide you with access to the Site or Services. In addition, BirdEye may notify authorities or take any actions it deems appropriate, without notice to you, if BirdEye suspects or determines, in its own discretion, that you may have or there is a significant risk that you have (i) failed to comply with any provision of these Terms and Conditions or any policies or rules established by BirdEye; or (ii) engaged in actions relating to or in the course of using the Site or Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, BirdEye users, BirdEye or any other third parties or the Site or Services.
Without limiting any other terms of these Terms and Conditions, you may stop using the Site and Services at any time.
After any termination, you understand and acknowledge that we will have no further obligation to provide the Site or Services and all licenses and other rights granted to you by these Terms and Conditions will immediately cease. BirdEye will not be liable to you or any third party for termination of the Site or Services or termination of your use of either. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT, MATERIALS OR INFORMATION (INCLUDING USER CONTENT) THAT YOU HAVE SUBMITTED ON THE SITE OR VIA THE SERVICES WILL NO LONGER BE ACCESSIBLE BY YOU VIA THE SERVICES THEREAFTER. HOWEVER, BIRDEYE SHALL CONTINUE TO HAVE A LICENSE TO UTILIZE THE USER CONTENT.
Any suspension, termination or cancellation will not affect your obligations to BirdEye under these Terms and Conditions (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
We respect the intellectual property rights of others and expect our users to do the same. In accordance with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (the “DMCA”), we will respond expeditiously to claims of copyright infringement committed using the Services if such claims are reported to our Designated Copyright Agent identified in the sample notice below.
Deliver this Notice, with all items completed, to our designated Copyright Agent:
250 Cambridge Ave, Suite 103, Palo Alto, CA 94306
BirdEye reserves the right, in its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms, at any time. Changes to the Services may include the modification or discontinuation of any “review aggregation” services currently offered as part of the Services. If we modify these Terms, we will post the modification on the Site or otherwise provide you with notice of the modification. By continuing to access or use the Site or Services after we have posted a modification to these Terms or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services. These Terms may only be modified in writing as set forth in this paragraph and may not be modified orally. Please visit this page regularly to review these Terms for any changes.
If you have any questions about these Terms, please contact BirdEye at firstname.lastname@example.org.