RESELLER TERMS AND CONDITIONS

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”) ( Collectively the Subscription Services and Professional Services may hereinafter be generally referred to as the “Services”) in accordance with the Terms and any terms and conditions provided for in a reseller agreement, an 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”).

Reseller is authorized to resell the Services to end users as defined in the applicable reseller agreement or Order form/ Statement of Work. Resellers’ must ensure that all resale marketing and promotion of Services adhere to BirdEye’s brand guidelines which BirdEye will make available to you upon request (“Branding Guidelines”).

1.2 Third Party Sites and Software

a. Reseller acknowledges that the Subscription Services may integrate with or utilize services from other websites (e.g., Facebook, Google+, Twitter) (“Third-Party Sites”). Reseller agrees that BirdEye does not have control over the terms of use, privacy policies, operation, intellectual property rights, performance or content of any Third-Party Sites; and BirdEye disclaims all responsibility and liability for any use of Third-Party Sites. Reseller must inform its end users that their use of those Third-Party Sites is subject to the terms and conditions of those Third-Party Sites.

b. The Services incorporate or make the use of 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 Reseller or its end user rights under or grants the Reseller or its end user rights that supersede, the terms and conditions of any applicable license for such Third-Party Software. By use of the Services, the Reseller and its end user agrees to be bound by the licensing terms of said Third Party Software and BirdEye reserves the right to terminate or suspend Services if Reseller or its end user violate these Terms.

c. Reseller and its end user must comply with the terms of services of all major review sites, including but not limited to Google, Facebook. Specifically:

• Prohibition on Review Gating: Reseller and its end user are strictly prohibited from engaging in review gating, where positive reviews are encouraged, and negative reviews are filtered or redirected
• Solicitation of Reviews: When soliciting reviews using the BirdEye platform, Reseller and its end user 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.
• Review Widget:BirdEye may provide Resellers’ end users with a Reviews widget which allows them to customize the Reviews shown on their website. It is Resellers’ sole responsibility to ensure that the end user’s settings provide for compliance with all laws.
• Adherence to third party policies: Reseller and its end user must comply with review sites policies, particularly those that prohibits solicitation of reviews. Reseller is responsible for enforcing these policies with its end user.
• Failure to Comply: BirdEye reserves the right to terminate or suspend the Reseller’s access to the Reseller’s account if the Reseller or its end user attempts to circumvent the Terms of Service of third-party review sites. BirdEye will notify the Reseller and allow the Reseller 30 days’ time period to take a corrective action. Failure to comply within this period will lead to suspension or termination of Reseller’s account.

1.3 Subscription Service Content

Reseller acknowledges that while using Subscription Service, Reseller or its end user may receive data generated by the Subscription Service. Reseller or its end user may display such generated data on their website but may not modify the data or otherwise use it for any other purposes, including without limitation analytics purposes, without BirdEye’s prior express written approval. For purposes of clarification, data generated by the Subscription Service may include data and content that is owned or licensed by a third party, and Reseller or its end users’ use of such third party data and content is limited further by such third party’s applicable license terms and website terms of use. BirdEye hereby disclaims responsibility and/or liability in full for Reseller or its end users’ use of any such third party data and content under these Terms.

1.4 Reseller Obligations

a. Reseller agrees that it shall include in its agreement with the end user, terms and conditions that are at least as stringent as those set forth in these Terms or a reseller agreement entered between BirdEye and Reseller. The Reseller further undertakes to ensure that its agreement with the end user contains all obligations imposed on both the Reseller and the end user as provided in these Terms, including but not limited to those concerning the use of Third-Party Sites and Third-Party Software.

b. Reseller acknowledges and agrees that as between the Reseller and BirdEye, Reseller is responsible for all the content Reseller or its end user post via the Subscription Service. Reseller and/or its end user agrees not to do any of the following while using the BirdEye’s dashboard, Services or BirdEye Content:

• Reseller will not sell Services to any local, state or federal government agency or body without first obtaining Birdeye's express written consent.

• Prohibited Content: Reseller and/or its end user must not upload, share, or transmit any material that:
  • Violates or infringes the intellectual property rights of a third-party or rights of publicity or privacy.
  • Breaches any applicable law or encourages illegal behavior.
  • Is false, deceptive, or fraudulent.
  • Contains offensive, obscene, or defamatory content.
  • Involves child exploitation.
  • Promotes discrimination, violence, or illegal activities.

• Prohibited Actions: Reseller and/or its end user must not:
  • Use, display, mirror or utilize framing techniques to enclose the BirdEye’s dashboard or Services, or any individual element or materials within the Site or Services, including BirdEye trademarks or logos without written permission.
  • Access restricted areas, systems or networks of BirdEye or its technical providers.
  • Attempt to bypass security measures or use unauthorized software or devices to search or access BirdEye’s dashboard or Services.
  • Do unsolicited marketing, spam or unauthorized advertising.
  • Use the Services to distribute defamatory content or for purposes barred by law.
  • Use BirdEye’s dashboard to create competing products or to pursue intellectual property claims against BirdEye.
  • Forge TCP/IP packet header, alter source information or reverse engineer any of the software used to provide BirdEye’s dashboard, Services or BirdEye Content.
  • Interfere or attempt to interfere with BirdEye’s dashboard or Services by sending viruses or by flooding the network.
  • Collect any personally identifiable information without express consent.
  • Impersonate other or misrepresent affiliations
  • Develop or build products substantially similar to the Services for Reseller’s contractual term with BirdEye and the 12 month period thereafter.
  • Violate laws or regulations.

BirdEye reserves the right to investigate and prosecute violations of any of the above, including intellectual property infringement and security breaches.BirdEye may involve and cooperate with law enforcement agencies in prosecuting users who violate these Terms. Reseller acknowledges that BirdEye is not obligated to monitor Reseller’s and/or its end users’ use of BirdEye’s dashboard,Services or BirdEye Content but has the right to do so for operational purposes, ensuring compliance with these Terms or to meet legal requirements. 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 BirdEye’s dashboard or Services.

c. Reseller understands, acknowledges and agrees that onboarding and implementation of the Services may take up to a minimum of 60 days. Reseller’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 Reseller will not affect the duration of any agreement and will not provide a basis for non-payment or termination.

d. Reseller is responsible for the promotion, marketing and re-sale of Service and should adhere to BirdEye’s Branding Guidelines.

e. Reseller must ensure:

• General Compliance: All activities conducted by the Reseller and/or its end user under these Terms must comply with all the applicable laws concerning the use of the Services.
• TCPA and 10DLC Compliance:
  • TCPA Compliance: Reseller must ensure that the Reseller and/or its end user is complying with Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”) when sending SMS or email communications to any third-party including Reseller’s or end user’s customers. This includes obtaining explicit and unambiguous consent from recipients before sending communications and maintaining records of such consent.
  • 10DLC Compliance: Reseller understands that if the Reseller and/or its end user are using certain SMS-related Services, Reseller and/or its end user 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 the Reseller which the Reseller agrees that BirdEye may collect from Reseller using Reseller's authorized payment method. Reseller authorizes BirdEye to act as its legal representative in the 10DLC registration process when such representation is necessary to provide or enhance the Services.
  • Reseller agrees to indemnify defend and hold harmless BirdEeye from and against any and all damages, liabilities, judgments, fees, fines, costs and expenses (including reasonable attorneys’ fees) arising out of the Reseller's or its end users’ failure to comply with TCPA or 10DLC regulations.

f. If the Reseller becomes aware that the security of the Reseller’s and/or is end users’ account or login information has been compromised or breached, Reseller acknowledges and agrees to immediately contact BirdEye to deactivate such account or change the account’s login credentials.

g. In order to protect BirdEye’s direct sales business and Reseller ’s pipeline of end user/customer deals, Reseller must confirm each potential transaction with its end user/customer in the Deal Registration portal. Reseller’s obligations hereunder may be amended by the terms of a Reseller Agreement, Order Form or Statement of Work.

2.1 Fees

Reseller shall pay BirdEye the undisputed fees in the currency and as of the date set forth in each Reseller Agreement, Order Form or Statement of Work. Reseller’s payments under these Terms are due net thirty (30) days from Reseller’s receipt of BirdEye’s invoice unless agreed otherwise by the Parties in the applicable Reseller Agreement, 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, Reseller shall pay or reimburse BirdEye for all national, federal, provincial, state, local or other taxes and assessments of any jurisdiction, which are legally payable Reseller for charges set, services performed or to be performed, or payments made or to be made hereunder. Reseller 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). Reseller 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. If the Reseller fails to notify BirdEye of any invoice dispute within thirty (30) days of receipt of invoice, the invoice shall be deemed to be accepted.

2.2 Late Payments

Reseller’s failure to pay undisputed fees when due constitutes a material breach of these Terms. If payment is not made when due, BirdEye may, in its sole discretion, choose to do any or all of the following: (i) charge Reseller a late fee on the unpaid balance at the lesser of one percent (1%) 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 Reseller’s and/or its end users’ 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 Reseller has 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.

3.1 Ownership; License; Retained Rights

BirdEye retains exclusive ownership of all right, title, and interest in and to the Subscription Service, including, without limitation, any and all modifications, improvements, enhancements, integrations, upgrades, derivative works, and feedback (see below) 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. Subject to the strict compliance of these Terms, BirdEye grants Reseller a limited, revocable, royalty-free, non-exclusive, non-transferable license to resell the Subscription Service, and any deliverables developed pursuant to the delivery of Professional Services hereunder in relation to Reseller’s resale of the Service, for the term of the applicable Reseller Agreement, Order Form or Statement of Work.Any feedback, suggestions, or ideas provided by the Reseller or its end user regarding the Services (“Feedback”) are hereby assigned to BirdEye, and BirdEye shall own all the rights, title and interest in and to such Feedback, including all intellectual property rights therein. The Reseller agrees that BirdEye may use such Feedback without any restriction or obligation to provide compensation to the Reseller or its end user. All rights not expressly granted to you hereunder are reserved by BirdEye.

3.2 Restrictions

Unless otherwise permitted in writing by BirdEye, Reseller and /or its end user may not, (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, or any part thereof; (ii) use, evaluate or view the Subscription Service, or any part thereof, for the purpose of designing or creating a product or service competitive to or intending to compete with BirdEye’s products or services; and/or (iii) resell or use the Subscription Service in a service bureau (iv) circumvent, disable or otherwise interfere with security related features of the Subscription Service, or any features that enforce limitations on the use of the Subscription Service. Reseller will work reasonably with BirdEye to ensure enforcement of this Section 3.2 with respect to its end users.

3.3 Data Collection, Ownership and Use

a. Reseller Data. During the term of the reseller agreement, or any Order Form or Statement of Work, Reseller 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 Reseller and/ or its end users in connection with Reseller’s resale and its end users’ 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) (“Reseller Data”). Reseller and/or its end users (as the case may be) own all Reseller Data. Nothing contained herein shall be construed as granting BirdEye ownership in any Reseller Data. Reseller Data shall include Reseller’s end users’ data which is submitted to or through the Subscription Service.
Reseller understands, acknowledges and agrees that BirdEye may only be able to access its Reseller Data through managed services (or, “Managed Services”) in order to provide the Services. In order for BirdEye to perform the Managed Services, Reseller 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 Reseller Data and then uploading said Reseller Data to the BirdEye platform. If being utilized, the Managed Services will be performed weekly as a default although Reseller can request that the timing be adjusted to as short a time as 48 hours upon reasonable request. All BirdEye personnel are subject to in-depth, annual privacy and data security training and assessments.

b. BirdEye Data.All data generated, stored or collected by BirdEye technologies which is not Reseller Data is owned by BirdEye (“BirdEye Data”). BirdEye Data includes, but is not limited to, all review data posted to a BirdEye microsite. Reseller shall have a limited, perpetual license to use such BirdEye Data generated by the Subscription Service, subject to Section 3.3.c of these Terms.

c. Third Party Data. Consistent with Section 1.3 of these Terms, data generated by the Subscription Service may include data and content that is owned or licensed by a third party, and Reseller and /or its end users’ of such third party data and content is limited by such third party’s applicable license terms and web site terms of use. BirdEye hereby disclaims responsibility and/or liability in full for Reseller and/ or its end users’ use of any such third party data and content under these Terms. Such third party data and content will be promptly destroyed, and Reseller and/ or its end user shall otherwise no longer have access to such third party data and content, upon termination of these Terms or termination of the applicable reseller agreement or Order Form or Statement of Work.

d. Reseller Compliance. Reseller acknowledges and agrees that it bears full and exclusive responsibility for compliance with the data protection laws, regulations, and contractual obligations when handling the data of its end users. Reseller shall (i) obtain all necessary consents from its end users and provide all required notices regarding the collection, processing and use of the data (ii) maintain appropriate technical and organizational measures to ensure the security confidentiality and integrity of all the Reseller Data processed in connection with the Subscription Services. These measures, at a minimum, must comply with industry best practices and any specific requirement mandated by applicable data protection law.

3.4 Privacy Policy; Personal Data; Security

The collection, use and storage of Personal Data (as defined in the DPA) through BirdEye’s website is governed by BirdEye’s privacy policy located at https://birdeye.com/privacy/, (“Privacy Policy”). If Reseller’s resale of the Subscription Service requires BirdeEye to process Personal Data, BirdEye will process Personal Data subject to BirdEye’s Data Processing Addendum located at https://cdn2.birdeye.com/version2/pages/terms/BirdeyeDPA.pdf (“DPA”). The Privacy Policy, DPA and Branding Guidelines are incorporated into these Terms in their entirety.

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 Reseller Data; (ii) protect against threats or hazards to the security or integrity of Reseller Data; and (iii) prevent unauthorized access to Reseller Data. If either party believes that there has been a security breach involving Reseller 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 the Reseller.

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 reseller agreement or 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 Reseller, 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 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 this MSA 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.

3.6 Use of Artificial Intelligence.

Some BirdEye Services use artificial intelligence. By agreeing to these Terms, Reseller and/or its end user agree to the use of artificial intelligence, where applicable. BirdEye will process all data through artificial intelligence models according to its Privacy Policy, DPA and data security policies. BirdEye will not use Reseller data, or that of its clients, customers or end users, to train third party artificial intelligence models. BirdEye will apply the highest degree of ethics to all of its artificial intelligence features and functionality.

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 the Reseller and/or its end users under the terms set forth in these Terms and each reseller agreement, Order Form or Statement of Work; (ii) the Subscription Service will perform materially in accordance with these Terms; (iii) the functionality of the Subscription Service will not be materially decreased during the term of these Terms; (iv) BirdEye shall use industry standard virus protection designed to ensure that the Subscription Service will not contain any viruses, time bombs or other disabling code; and (v) it shall comply with all laws applicable to it related to data privacy, international communications and the transmission of technical or personal data. Additionally, BirdEye shall perform any Professional Services in a professional and workmanlike manner in accordance with applicable industry standards.

4.2 Your Warranty.

Reseller represents and warrants that (i) Reseller have any and all consents and authorizations as may be necessary for the Reseller to receive or resell the Subscription Service and/or Professional Services; (ii) each of the sites where the Subscription Service is deployed contains, or each end user that is using the Subscription Service employs, a privacy policy that discloses the usage of third-party technology and the data collection and usage resulting from the Subscription Service (it being understood that this clause will not be deemed to require those privacy policies to expressly identify BirdEye or any Subscription Service, unless otherwise required by law, rule or regulation) and complies with all applicable privacy laws, rules and regulations; (iii) its end users’ websites upon which the Subscription Service is deployed do not contain any material which is defamatory, promotes illegal activity, or contains hate speech; and (iv) Reseller and its end users have legally obtained necessary ownership or license rights to any Reseller Data, including Personal Data, and that Reseller and its end users have any waivers and/or opt-in agreements in place with authorized users that are required by applicable law in relation to the services to be provided and communications to be sent to such users and customers by BirdEye and the Subscription Service under these Terms.

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 RESELLERS’ END USERS 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.a AND 4.4.b 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 THESE 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.

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.
2. Liability Cap. EXCEPT FOR CLAIMS ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BIRDEYE’S INFRINGEMENT INDEMNITY OBLIGATION IN SECTION 4.6 OF THESE TERMS, A PARTY’S BREACH OF ITS TCPA COMPLIANCE OBLIGATIONS AS SET FORTH IN SECTION 1.4.e OF THESE TERMS; OR WITH RESPECT TO THE RESELLER’S OBLIGATION TO PAY UNDISPUTED FEES UNDER THESE TERMS, IN NO EVENT WILL THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY UNDER THESE TERMS EXCEED THE AGGREGATE FEES PAID BY RESELLER UNDER THESE TERMS OR ANY RESELLER AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE. If Reseller 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 Reseller have acquired the Service as a ‘consumer’ (as defined in section 3 of the Australian Consumer Law), BirdEye’s liability to Reseller 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.
3. Liability Cap for Data Breaches, Intellectual Property Claims, Indemnity and Gross Negligence or Willful Misconduct. Notwithstanding the terms of Section 4.4.b, the maximum liability of BirdEye for any claims relating to data breaches, intellectual property infringement claims, indemnification or gross negligence or willful misconduct claims shall in no event exceed two times the 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.
4. Cumulative Liability. The caps provided in this Section are cumulative for all claims (not per incident) and apply collectively to each Reseller and its affiliates (not per affiliate).
5. Time During Which To Bring Claim. Except where a longer period is mandated by applicable law, any claim, action or proceeding that the Reseller may have arising out of or relating to these Terms must be brought within twelve (12) months of the date on which the claim arose, or such claim will be deemed waived and permanently barred. This Section does not affect any non-waivable statutory rights the Reseller may have under the applicable law.

4.5 Reseller Indemnity.

Reseller 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 any end user’s or third party’s claim that arises out of a another party’s claim which relate to Reseller’s breach of these Terms including but not limited to Reseller’s failure to meet Reseller’s TCPA compliance obligations in Section 1.4.e.

4.6 BirdEye Indemnity.

BirdEye shall indemnify, defend, and hold harmless Reseller, Reseller’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 Reseller or Reseller’s end users within the scope of these Terms, infringe any intellectual property rights. BirdEye has no obligation to indemnify Reseller for a claim of infringement to the extent it arises from: (i) infringing matter supplied or developed solely by the Reseller; (ii) unauthorized modifications or uses of the Subscription Service; or (iii) Reseller acts or omissions not in accordance with the terms of these Terms. If Reseller use or your end users’ 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 Reseller 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 Reseller’s end user 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. 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.

5.1 Term.

These Terms commences on the Effective Date of the first Order Form or Statement of Work 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 Reseller Agreement, Order Forms or Statements of Work are non-cancellable 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 specific Reseller Agreement a specific Order Form or Statement of Work upon written notice. Upon termination of these Terms or Reseller Agreement or Order Form or Statement of Work due to Reseller's material breach, Reseller 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 Reseller Agreement or Order Form or Statement of Work. Upon termination of these Terms or Reseller Agreement 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.

At the time of any auto renewal, and unless Reseller have entered into an agreement with BirdEye prior to April 1, 2024 and/or have entered into an agreement which specifically changes the Innovation Fee applicable to Reseller’s contract for or use of the Services, 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 Reseller Agreement or Order Form or Statement of Work and apply to all Services covered by these Terms or any Reseller Agreement or Order Form Or Statement of Work 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 Reseller due according to the payment terms set forth above or as other specifically stated in the Reseller Agreement or Order Form or Statement of Work.

7.1 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.

7.2 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.

7.3 Export.

Reseller 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.

7.4 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.

7.5 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.

7.6 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.

7.7 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 94303
ATTN: Legal
Email: legal@BirdEye.com

If to Reseller: To the contact information stated in the Order Form or Statement of Work.

Notices to Reseller will be addressed to the contact designated in writing by Reseller to BirdEye for Reseller's relevant account, and in the case of billing-related notices, to the relevant contact designated by Reseller.

7.8 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

7.9 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 Reseller's Reseller Agreement or Order Form or Statement of Work is with BirdEye Australia Pty Ltd or BirdEye NZ Pty Ltd, the Terms any dispute or claim arising out of or in connection with them or their 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 Reseller's Reseller Agreement or Order Form or Statement of Work is with BirdEye UK Limited, these Terms and any dispute or claim arising out of or in connection with them or their 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.

7.10 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 Reseller. 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.

7.11 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.

7.12 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 Resellers Contracting with BirdEye Australia Pty Ltd.

A1. SMS Services Requirements.

Reseller 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 Reseller business registration and a utility bill or equivalent that is in the name of the business.

A2. Use of Collections Agencies

Reseller acknowledges that if a payment issue cannot be resolved through good faith efforts, BirdEye may submit a Reseller’s overdue account to an external collections agency.