Effective starting September 1, 2023.
These Terms and Conditions (“Terms”) are entered into by and between BirdEye, Inc. or its Affiliate identified in the Order Form or Statement of Work (“BirdEye”), with its principal place of business at 2479 E Bayshore Rd, Suite #188, Palo Alto, CA 94303, and the entity agreeing to these Terms or any Order Form or Statement of Work (“Client”). The parties agree as follows:
1.1 Provision of Services. BirdEye will provide its subscription service through the BirdEye Customer Experience & Reputation Marketing platform (the “Subscription Service”), and any professional services in relation to the implementation of the Subscription Service (the “Professional Services”; the Subscription Services and Professional Services may hereinafter be generally referred to as the “Services”) in accordance with these Terms and any terms and conditions provided for in a customer agreement, reseller agreement or order form for the Subscription Service (all such documents maybe be referred to as an “Order Form”) or a statement of work for the delivery of Professional Services (“Statement of Work”). Client understands, acknowledges and agrees that onboarding and implementation of the Services may take up to 2 hours over a 4 week period of time. Client’s reasonable and timely participation in the onboarding process is a vital component of delivering the Services and any delays in this process caused by Client will not affect the duration of any agreement and will not provide a basis for non-payment or termination.
Using Third Parties For Reviews. Client understands that in order for its customers, end users or others to leave a review about its product or services on Google, Facebook, Twitter and similar third party sites, it may be required to have an active, registered account on the relevant third party platform.
1.4 Obligations With Respect to Third Party Sites. When using the Services, Client agrees 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: Client's use of the BirdEye platform 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, Client 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: Client's use of the BirdEye platform will fully comply with sites such as Yelp that prohibit review solicitation, and Client will not misuse the BirdEye platform to bypass review sites’ policies.
- Failure to comply with 3rd Party Review site policies: If Client attempts to circumvent the Terms of Service of 3rd party review sites, BirdEye will notify Client and allow Client 30 days to take corrective action. Should Client fail to comply within the 30-day notice period, Client's account will be suspended from BirdEye.
1.5 TCPA and 10DLC Compliance.
a. TCPA: 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”). Client 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. Client is responsible for obtaining explicit consent(s) from any and all third parties (including Client's 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).
b. 10DLC: You understand that if you are using certain SMS-related Services, you are responsible for complying with A2P 10DLC, including but not limited to registration and obtaining customer opt in. BirdEye reserves the right to pass carrier 10DLC fees on to you which you agree BirdEye may collect from you using your authorized payment method. Client authorizes BirdEye to act as its legal representative in the 10DLC registration process when such representation is necessary to provide or enhance the Services.
You understand and agree that in order to use any texting or text-based products or features in or through the Services, you must maintain your A2P 10DLC registration by paying the one time registration fee and ongoing text (or, “campaign”) fees for the duration of your use of any such Services. If you are entering into an online or self-serve contract for a small business, the registration fee and ongoing text fees may be combined in one line item on your contract shown as “Carrier Texting Fees”.
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 Client's breach of this Section 1.5.
1.6 Account Protection. In the event that Client become aware that the security of Client's login information has been compromised or breached, Client must immediately deactivate such account or change the account’s login credentials. Additionally, Client shall promptly deactivate the account or change the login credentials for any individual (e.g., former employee) that no longer is authorized by Client to access the Subscription Service.
1.7 Fair Use. 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 Client's use of the Services is in violation of its Fair Use Policy, in its sole reasonable discretion, it may take unilateral action regarding Client's 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 Client for use of the Services in violation of the FUP. Client understands, acknowledge and agree that BirdEye will have no liability to Client or any of Client's users for enforcing this FUP and enforcement will not affect Client's obligations under these terms which includes the payment of fees for the Services.
1.8 Client’s Restrictions on Use of Services.Client agrees not to do any of the following while using the Site, Services or BirdEye Content:
- Access, post, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, vulgar or offensive; (v) constitutes child pornography or child erotica; (vi) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any other person; or (viii) promotes illegal or harmful activities or substances (including, but not limited to activities that promote or provide instructional information regarding the manufacture or purchase of illegal weapons or illegal substances).
- Use, display, mirror, frame or utilize framing techniques to enclose the Site or Services, or any individual element or materials within the Site or Services, BirdEye’s name, any BirdEye trademark, logo or other proprietary information, the content of any text or the layout and design of any page or form contained on a page, without BirdEye’s express written consent;
- Access, tamper with, or use non-public areas of the Site or Services, BirdEye’s computer systems, or the technical delivery systems of BirdEye’s providers;
- Attempt to probe, scan, or test the vulnerability of any BirdEye system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by BirdEye or any of BirdEye’s providers or any other third party (including another user) to protect the Site, Services or BirdEye Content;
- Attempt to access or search the Site, Services or BirdEye Content or download BirdEye Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by BirdEye or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera);
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use or access the Services for the purpose of, or resulting in, the posting, publication, distribution or transmission of defamatory material or content;
- Send any emails or text communications for purposes of marketing or promoting non-federally legalized products or services or if such communications are barred by relevant industry associations. For example, Client will not send text messages through the Services if Client is in the cannabis industry, the firearms business or any other illegal or association-prohibited industry;
- Use any meta tags or other hidden text or metadata utilizing an BirdEye trademark, logo URL or product name without BirdEye’s express written consent;
- Use the Site, Services or BirdEye Content for the purpose of bringing an intellectual property infringement claim against BirdEye or for the purpose of creating a product or service competitive with the Services;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services or BirdEye Content to send altered, deceptive or false source- identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or BirdEye Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network connected to the Site or Services, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
- Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;
- Impersonate or misrepresent Client's affiliation with any person or entity;
- Violate any applicable law or regulation;
- Develop or build products which perform substantially similar to the Services for the Term of this Agreement and the 12 month period thereafter; or
- Encourage or enable any other individual to do any of the foregoing.
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. Client acknowledges that BirdEye has no obligation to monitor Client's 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 Client's 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.
2. FEES AND PAYMENT
2.1 Fees. Client shall pay BirdEye the undisputed fees in the currency and as of the date set forth in each Order Form or Statement of Work. Client’s payments under these Terms are due net thirty (30) days from Client’s receipt of BirdEye’s invoice unless agreed otherwise by the Parties in the applicable Order Form or Statement of Work. All fees are exclusive of applicable sales, excise, value-added or use taxes. Except for income taxes levied on BirdEye’s net income, Client shall pay or reimburse BirdEye for all national, federal, provincial, state, local or other taxes and assessments of any jurisdiction, which are legally payable by Client for charges set, services performed or to be performed, or payments made or to be made hereunder. Client shall not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to BirdEye under these Terms. This provision shall survive the termination of these Terms and shall be applicable regardless of the time frame in which the requirement of the payment of such taxes or assessments is asserted (e.g. a deficiency assessment by a taxing authority as a result of an audit after the termination of these Terms). Client will notify BirdEye of any invoice dispute within thirty (30) days of receipt of invoice, at which time the parties will engage in good faith efforts to resolve the dispute.
2.2 Late Payments. Client's 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 Client 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 Client's access to the Subscription Service and/or the delivery of the Professional Services. BirdEye’s suspension or resumption of the Subscription Service or Professional Services does not limit or prevent BirdEye from pursuing all other remedies available.
2.3 Auto Renew. If you have entered into an agreement for Services with BirdEye, the agreement will auto renew in compliance with applicable law as further set forth herein. Unless otherwise noted in the Order Form or Statement of Work, any agreement for Services will auto renew for the same period of time as the initial term of the agreement unless written notice of non-renewal is provided to BirdEye at least 90 days prior to the date of renewal.
3. PROPRIETARY RIGHTS
3.1 Ownership; License; Retained Rights. BirdEye owns all right, title, and interest in and to the Subscription Service, including, without limitation, all modifications, improvements, enhancements, integrations, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein (“Rights”), and any and all Rights developed as part of the delivery and receipt of the Professional Services. BirdEye grants Client a limited, revocable, royalty-free, non-exclusive, non-transferable license to use the Subscription Service, and any deliverables developed pursuant to the delivery of Professional Services hereunder in relation to Client's use of the Service, for the term of the applicable Order Form or Statement of Work. All rights not expressly granted to Client hereunder are reserved by BirdEye.
3.2 Restrictions. Unless otherwise permitted in writing by BirdEye, Client may not, and may not permit any third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Subscription Service; (ii) use, evaluate or view the Subscription Service for the purpose of designing or creating a product or service competitive to BirdEye’s products or services; and/or (iii) resell or use the Subscription Service in a service bureau.
3.3 Data Collection, Ownership, and Use.
3.3.1 Client Data. During the term of this Agreement or any Order Form or Statement of Work, Client grants BirdEye a limited, non-exclusive, royalty-free, revocable, world-wide license to use and disclose, as necessary to provide the Subscription Service and Professional Services, all information submitted by Client and Client's end users in connection with Client's use of the Subscription Service (e.g., Personal Data, submitted content, product information included in feeds, transaction detail information such as unit prices and cart values, and survey data) (“Client Data”). Client owns all Client Data. Nothing contained herein shall be construed as granting BirdEye ownership in any Client Data. Client hereby give BirdEye a non-revocable, worldwide, royalty right to use aggregated or anonymized Client Data for internal evaluation purposes only; BirdEye will never market or sell Client Data to any third party.
Client understands, acknowledges and agrees that BirdEye may only be able to access its Client Data through managed services (or, “Managed Services”) in order to provide the Services. In order for BirdEye to perform the Managed Services, Client agrees to provide BirdEye with login credentials to its CRM. Furthermore, the Managed Services process involves a member of the BirdEye team logging into the CRM, downloading a report that will include Client Data and then uploading said Client Data to the BirdEye platform. If being utilized, the Managed Services will be performed weekly as a default although Client can request that the timing be adjusted to as short a time as 48 hours upon reasonable request. All personnel are subject to in-depth, annual privacy and data security training and assessments.>
3.3.2 BirdEye Data. All data generated, stored or collected by BirdEye technologies which is not Client Data is owned by BirdEye (“BirdEye Data”). BirdEye Data includes, but is not limited to, all review data posted to a BirdEye microsite. Client shall have a limited, perpetual license to use such BirdEye Data generated by the Subscription Service, subject to Section 3.3.3 of these Terms.
During the term of this Agreement, BirdEye shall maintain a security program materially in accordance with industry standards that is designed to: (i) ensure the security of Client Data; (ii) protect against threats or hazards to the security or integrity of Client Data; and (iii) prevent unauthorized access to Client Data. If either party believes that there has been a security breach involving Client Data, such party must promptly notify the other party, unless legally prohibited from doing so. Additionally, each party will reasonably assist the other party in mitigating any potential damage arising from any such security breach. As soon as reasonably practicable after any such security breach, BirdEye shall conduct a root cause analysis and, upon request, will share the results of its analysis and its remediation plan with Client.
3.5 Confidential Information. “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 in this Section 3.5). The parties acknowledge that the Subscription Service and Professional Services, the terms of these Terms and any Order Form or Statement of Work, and any other proprietary or confidential information provided to the other party constitute valuable proprietary information and trade secrets of BirdEye and the Client, respectfully. 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 breaches 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.4. WARRANTY; LIMITATIONS OF LIABILITY; INDEMNITY
4.1 BirdEye Warranty. BirdEye represents and warrants that (i) it has all right, title, and interest necessary to provide the Subscription Service and Professional Services to Client under the terms set forth in these Terms and each Order Form or Statement of Work; (ii) the Subscription Service will perform materially in accordance with the terms of this Agreement; (iii) the functionality of the Subscription Service will not be materially decreased during the term of this Agreement; (iv) BirdEye shall use industry standard virus protection designed to prevent any viruses, time bombs or other disabling code from the Subscription Service; and (v) it shall comply with all laws applicable to it in its provision of the Subscription Service. Additionally, BirdEye shall perform the Professional Services in a professional and workmanlike manner in accordance with applicable industry standards.
4.3 Warranty Disclaimer. EXCEPT AS SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES OR ANY SUPPORT RELATED THERETO, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING. BIRDEYE DOES NOT WARRANT, OR OTHERWISE PROMISE, THAT THE USE OF ITS SERVICES WILL INCREASE CLIENT’S RANKING POSITIONS ON GOOGLE OR ANY OTHER SEARCH ENGINE.
4.4 Limitations of Liability. EXCEPT AS SET FORTH BELOW, THE LIMITATIONS OF LIABILITY IN SECTIONS 4.4.1 AND 4.4.2 WILL APPLY IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND ALSO APPLY REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH DAMAGES ARE SOUGHT. IN NO EVENT WILL THE LIMITATIONS APPLY TO THE AMOUNTS DUE FOR SERVICES UNDER THE TERMS. BOTH PARTIES SHALL USE REASONABLE EFFORTS TO MITIGATE THE DAMAGES FOR WHICH THE OTHER PARTY IS RESPONSIBLE. HOWEVER, IN NO EVENT WILL THE LIMITATIONS APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
4.4.1 No Special Damages. EXCEPT FOR CLAIMS ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, OF ANY PARTY, INCLUDING THIRD PARTIES, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE FOREGOING.
4.4.2 Liability Cap. EXCEPT FOR CLAIMS ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, INDEMNITY OBLIGATIONS OF THESE TERMS WITH RESPECT TO CLIENT'S OBLIGATION TO PAY UNDISPUTED FEES UNDER THESE TERMS, IN NO EVENT WILL THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY UNDER THIS Terms EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY EITHER PARTY UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.If Client is located in Australia, pursuant to section 64A of the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (“CCA”)), if and to the extent that Client have acquired the Service as a ‘consumer’ (as defined in section 3 of the Australian Consumer Law), BirdEye’s liability to Client under each of sections 60, 61 and 62 of the Australian Consumer Law is limited to either supplying the Services again or payment of the cost of having the Services supplied again. Nothing in these Terms excludes, restricts or modifies or purports to exclude, restrict or modify any guarantee that applies pursuant to the Australian Consumer Law or any other provision of the CCA which cannot be lawfully excluded, restricted or modified.
4.5 Client's Indemnity. Client shall indemnify, defend, and hold harmless BirdEye, its officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees), resulting from any judgment or proceeding, or any settlement Terms, from a third party’s claim that arises out of a third party’s claim that Client's website on which the Subscription Service is provided or any application Client develop infringes any intellectual property rights.
4.6 BirdEye Indemnity. BirdEye shall indemnify, defend, and hold harmless Client, Client's officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees), resulting from any judgment or proceeding, or any settlement Terms, from a third party’s claim that the Subscription Service, as provided by BirdEye to Client within the scope of this Terms, infringe any intellectual property rights. BirdEye has no obligation to indemnify Client for a claim of infringement to the extent it arises from: (i) infringing matter supplied or developed solely by Client; (ii) unauthorized modifications or uses of the Subscription Service; or (iii) Client's acts or omissions not in accordance with the terms of this Agreement. If Client's use of the Subscription Service is enjoined or is likely to be enjoined due to a third party claim of infringement for which BirdEye is required to indemnify Client under these Terms then BirdEye may, at its sole cost and expense and within its sole discretion, do one of the following: (x) procure for Client the right to continue using the Subscription Service; (y) replace or modify the enjoined Subscription Service to make it non-infringing but functionally equivalent; or (z) terminate the enjoined Subscription Service and return any fees paid for enjoined Subscription Service not yet rendered.
4.6.1 The indemnification obligations set forth in this Section 4.6 are BirdEye’s sole and exclusive obligations with respect to any infringement claims.
4.7 Indemnification Conditions. The indemnification obligations contained in these Terms are conditioned upon: (a) prompt notice by the indemnitee to the indemnitor of any claim, action or demand for which indemnity is claimed (failure to meet this condition does not exempt the indemnitor of its indemnification obligation, except to the extent that failure has materially prejudiced the indemnitor’s ability to defend the claim); (b) sole control of the defense and settlement by the indemnitor; and (c) reasonable cooperation by the indemnitee in the defense as the indemnitor may request. The indemnitee has the right to participate in the defense against the indemnified claims with counsel of its choice and at its own expense but may not confess judgment, admit liability or take any other actions prejudicial to the defense. Further, the indemnitee may not settle an indemnified claim unless the indemnitor has declined to defend.
4.8 Proportional Liability. Each indemnitor’s liability to pay or reimburse any indemnified claim is limited to the extent of the indemnitor’s proportional contribution. Neither party has any liability to the extent that any losses in conjunction with indemnified claims are attributable to acts or omissions of the other party or its indemnities.5. TERM AND TERMINATION
5.1 Term. These Terms commences on the Effective Date of the first Order Form and shall remain effective as long as any Order Form referring to this Terms remains in effect. Except as specifically set forth to the contrary in these Terms, all payment obligations under any and all Order Forms or Statements of Work are non-cancelable and all payments made are non-refundable.
5.2 Termination for Breach. In addition to any other remedies it may have, if either party breaches any of the material terms or conditions of these Terms and fails to cure such breach within thirty (30) days after written notice from the non-breaching party, the non-breaching party may terminate these Terms or a specific Order Form or Statement of Work upon written notice. Upon termination of these Terms or a Order Form or Statement of Work due to Client's material breach, Client will pay for the Subscription Service and Professional Services that have been rendered through the termination date plus all other charges that would have been due under the remaining term of each affected Order Form or Statement of Work. Upon termination of these Terms or an Order Form or Statement of Work due solely to a breach by BirdEye, BirdEye shall refund a pro rata portion of any fees paid for services not yet rendered as of the date of termination.6. INNOVATION FEE
At the time of any auto renewal, Birdeye will apply a 5% fee on all recurring Services fees to cover product innovations, enhanced services and inflation (“Innovation Fee“). The Innovation Fee shall apply automatically upon any auto renewal of this Agreement and apply to all Services covered by this Agreement at the time of the auto renewal. The Innovation Fee will be applied to the Services fees including any additional fees incurred during the term. The Innovation Fee will be included in the annual invoice to Client due according to the payment terms set forth above or as other specifically stated in the Order Form or Statement of Work.7. BIRDEYE PAYMENTS
Stripe Terms of Service: Client agrees to be bound by Stripe Terms of Service located at: https://stripe.com/ssa. The Stripe Terms of Service may be modified periodically by Stripe in its sole discretion.
No PCI DSS Liability: Client understands, acknowledges and agrees that all payment transactions processed through BirdEye Payments are done through a third party payment processor which is Level 1 PCI DSS compliant. Since BirdEye does not store any payment card information, it is not subject to PCI DSS and, as a result, BirdEye shall be released from any and all liability or claims related to or arising out of PCI DSS.
No Refunds of Payment Fees; Client Liability to Its Customers for Refunds: BirdEye will not refund any Payment Fees upon a refund, chargeback or other reversal of a transaction. The amount of the refund transaction will be sent to Client's customer directly but Client shall remain liable to BirdEye for the Payment Fees which BirdEye will deduct from Client's payment account for the original transaction. Client agrees to indemnify BirdEye against any claims related to or arising out of any claims by Client's customer related to the amount of any refund, chargeback or similar issue. In the event Client's payment account does not contain the funds required to process the refund or cover the Payment Fees, Client gives BirdEye the right to debit Client's bank account directly to cover the shortfall.
Right to Cancel or Adjust Pricing: BirdEye reserves the right to terminate Client's access to and use of Payments if BirdEye, in its sole discretion, determines that Client pose too great of a risk to continue using the Payments service. In addition, BirdEye reserves the right to modify the Payment Fees, upon written notice (for which an email will suffice), in its sole discretion, if BirdEye determines that different Payment Fees are required to cover the risk posed by Client's use of the Payments service.
Hardware/Terminals: Client may be provided with hardware (ie, a “terminal”) to assist with point of sale purchases using the Payments service. Client will at all times be responsible for maintaining the terminal and will, upon termination of the Payments service or upon reasonable request from BirdEye, return all terminals in good condition and good working order.
Disputes: For disputed transactions (including allegedly fraudulent transactions), Client is responsible for providing evidence of the relevant transaction(s), through the tools provided by BirdEye. BirdEye is not responsible for providing the evidence, nor is it or will it be liable to Client for lost disputes or any and all losses or damages arising out of or related to a lost dispute.8. MISCELLANEOUS
8.1 Independent Contractors. In performing under these Terms, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint ventures, or agents of one another in any respect.
8.2 Subcontractors. If BirdEye subcontracts any portion of the Professional Services to a third party, BirdEye (i) shall require such subcontractor to comply with the material terms and conditions of these Terms and (ii) remains responsible for any acts or omissions of its subcontractors as if such acts or omissions were performed by BirdEye.
8.3 Export. Client may not export or re-export any software included within the Subscription Service, either directly or indirectly, without receiving BirdEye’s written consent and any required license from the applicable governmental agency.
8.4 Force Majeure. Neither party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, Third Party Sites, strikes, terrorism, failure of third party networks or the public Internet, power outages, industry-wide labor disputes or governmental demands or restrictions.
8.5 Assignment. Either party may assign these Terms in connection with (i) a merger where the contracting entity does not survive such merger, or (ii) the sale of all or substantially all of the contracting entity’s assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under the Terms without obtaining the other party’s prior written consent. Any assignment in contravention of this subsection is void.
8.6 Travel & Expense Reimbursement. Each applicable Order Form or Statement of Work will set forth any reasonable and necessary travel expenses that will need to be incurred in performance of the Professional Services under these Terms.
8.7 Notice and Delivery. Except as otherwise provided herein, all notices, statements and other documents, and all approvals or consents that any party is required or desires to give to any other party will be given in writing and will be served in person, by express mail, by certified mail, by overnight delivery, by facsimile, or by electronic mail at the respective addresses set forth below, or at such other addresses as may be designated by such party.
If to BirdEye:BirdEye, Inc.2479 E Bayshore Rd, Suite #188 Palo Alto, CA 94303ATTN: BirdEye Customer CareEmail: legal@BirdEye.comIf to Client: To the contact information stated in the Order Form or Statement of Work.Notices to Client will be addressed to the contact designated in writing by Client to BirdEye for Client's relevant account, and in the case of billing-related notices, to the relevant contact designated by Client.
8.8 Compliance with Laws and Regulations. Each party shall in good faith perform its obligations hereunder in a manner that complies with all applicable laws, regulations, ordinances and codes, including identifying and procuring required permits, certificates, approvals and inspections. If either party receives any notice, summons, or complaint regarding its non-compliance with any such laws, regulations, ordinances, or codes, it shall promptly notify the other party of such matter
8.9 Governing Law and Jurisdiction. These Terms and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed by the laws of the State of California, without giving effect of principles of conflicts of law. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction, will not apply to the Terms. Any disputes, actions, claims or causes of action arising out of or in connection with the Terms shall be subject to the exclusive jurisdiction of the state or federal courts in Santa Clara County California.
If Client's Order Form or Statement of Work is with BirdEye Australia Pty Ltd or BirdEye NZ Pty Ltd, the Agreement any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed exclusively by, and construed in accordance with, the laws of New South Wales, Australia, and the parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales.
If Client's Order Form or Statement of Work is with BirdEye UK Limited, this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English courts.
8.10 Entire Understanding; Order of Precedence. These Terms represent the parties' entire understanding relating to the Subscription Services and Professional Services, and supersedes any prior or contemporaneous, conflicting or additional, communications. Any conflict between these Terms, any addendum or attachment and any Order Form or Statement of Work shall be resolved in favor of the Order Form or Statement of Work followed by the addendum or attachment over the Terms. These Terms or an Order Form may be executed by electronic signature. Except as otherwise provided in an Order Form or Statement of Work or other agreement of the parties, these Terms may only be amended by a duly executed agreement between the BirdEye and Client. If any provision of the Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
8.11 Severability; Waiver. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
8.12 Survival. All sections of this Terms that by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.Appendix A: Additional Terms for Clients or Partners Contracting with BirdEye Australia Pty Ltd.
A1. SMS Services Requirements.
Client understands and accepts that in order to use SMS-based Services, it will be required to register a mobile phone number on its behalf. In order to obtain a registered number, BirdEye will require a copy of Client’s business registration and a utility bill or equivalent that is in the name of the business.
A2. Use of Collections Agencies
Client acknowledges that if a payment issue cannot be resolved through good faith efforts, BirdEye may submit a Client’s overdue account to an external collections agency.