Effective: August 1, 2016
You acknowledge that you have read, understood, and agree to be bound by the terms of this agreement. Your access to and use of the Services, even if you are just browsing through our website, constitute your agreement to all of these Terms. If you do not agree to these Terms, you may not use the LittleBirdie website or access our Services.
The headings in this agreement are for convenience and have no legal or contractual meaning. In an effort to make this document more readable, we use some shorthand definitions as follows: “LittleBirdie”, “we”, “us”, and “our” means SendALittleBirdie, LLC, which operates the Services. “You” means you, a user of the Services, whether you are a person or entity, and whether you are using the Services for yourself or on behalf of your employer or on behalf of another. “User” means a user of the Services, whether a person or entity. “Personally Identifiable Information” means information, such as a person’s name, address, telephone number, email address, date of birth, or social security number which can be used to uniquely identify an individual person. “Seller” means any person or entity which sells cards on our website. “Affiliate” means any of our Sellers, licensors and suppliers, and our agents, affiliates, associates, employees, third-party service providers, distributors, officers, directors, shareholders, representatives, consultants, subsidiaries, and each of their respective employees and assigns.
If you have any questions or concerns regarding these Terms or the Services, please contact us at:
709 Plaza Dr. Ste. 2-272
Chesterton, IN 46304
2. Additional Documents You Must Accept
All of the following documents (which we will refer to as “Additional Documents”) are also part of these Terms, so please read them carefully.
You also agree to our anti-bullying policy found here: SendALittleBirdie.com/anti-bullying
If you are operating a store to sell cards on the SendALittleBirdie.com platform, you also agree to the Seller Agreement found here: SendALittleBirdie.com/seller-agreement
You must be 14 or older to use our Services. Otherwise, you may only use our Services under the supervision of a parent or legal guardian. Regardless of your age, you may access or use the Services only if:
You are fully and legally competent and able to enter into, abide by, and comply with these Terms;
You are not located in a country that is subject to a United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country; and
You are not listed on any United States government list of prohibited or restricted parties.
4. Account Registration
To use LittleBirdie’s Services, you must create an account (“Your Account”). You can also browse LittleBirdie without logging in. When registering for Your Account, you will be asked to provide certain information about yourself, such as your name and email address. Some of this requested information is required for registration. You may not register an account unless you submit all required registration information.
You are solely responsible for the information associated with Your Account and anything that happens related to Your Account. You may not license, transfer, sell, or assign Your Account without our written approval.
By registering an Account with us, you represent and warrant that:
You are eligible to access or use the Services as defined above;
All registration information you submit is truthful and accurate to the best of your knowledge; and;
5. Permitted Use
Subject to these Terms, we grant you a non-exclusive, non-transferable license to access and use the Services in connection with, and solely for the purposes of sending cards and messages and operating a store to sell cards. The foregoing non-exclusive and non-transferable license is referred to herein as “Permitted Use.” The provision of the Services for Permitted Use does not make either party an agent or a partner of the other party.
Your license to access and use the Services for the Permitted Use is subject to the following additional restrictions. You agree that you will not to use the Services, and nor will you direct or permit others to use the Services, to transmit or attempt to transmit content that:
Infringes the intellectual property or other proprietary rights of any party;
Is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, excessively violent, or hate speech;
Contains software viruses or any other computer code, files, or programs designed to interrupt, disrupt, or destroy any computer software, hardware, or telecommunications equipment;
Constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” or “spam”;
Violates any contractual or fiduciary duties held by you; or
In the sole judgment of LittleBirdie, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which actually or potentially exposes LittleBirdie, its business partners, or Users to harm or liability of any type.
You agree that you will not to use the Services, and nor will you direct or permit others to use the Services,
In violation of any applicable local, state, national, or international law, or any regulations having the force of law, or in furtherance of any criminal activity, enterprise, or conspiracy;
To impersonate any person or entity, or otherwise misrepresent your affiliation with any person or entity;
To solicit personal information from anyone under the age of 18;
In a manner that materially impairs our ability to provide the Services to other Users, including without limitation any impairment caused by excessive use of the Services by you;
Except to the extent otherwise allowed by these Terms, you agree not to, and nor will you direct or permit others to:
Copy, reproduce, republish, re-display, post, or transmit the Services, in whole or in part, in any form or by any means;
Access or use, nor attempt to access or use, the Services by means other than the interfaces provided or sanctioned by us;
Disassemble, make derivative works of, reverse compile, or reverse engineer the Services, in whole or in part;
Access or use the Services for the purposes of building a similar or competing service;
License, sublicense, assign, transfer, sell, lease, rent or otherwise commercially exploit the Services, in whole or in part;
Create, upload, transmit, or distribute any software intended to damage the Services;
Disrupt, interfere with, or attempt to gain unauthorized access to, disrupt, or interfere with the Services, or the servers or networks connected thereto; and
Remove, obscure or otherwise alter any proprietary rights notices, including copyright or trademark notices, that are used or displayed in connection with the Services.
You are solely responsible for communications and the content you choose to send through the Services. We reserve the right to monitor your use of LittleBirdie, and your use of the Service means you agree to this monitoring. We reserve the right, at our sole discretion, to investigate, take legal action against, report to authorities, remove unlawful content received or uploaded by, and/or suspend or terminate the account of, any User who we in good faith believe has violated or will violate the foregoing restrictions.
We will always tell you in advance via the LittleBirdie website and get your permission before charging you any fees. You may also submit your debit or credit card information (“Payment Information”) via the website as part of LittleBirdie to purchase other products or services via LittleBirdie. LittleBirdie uses third party service providers to process your payment information. If you submit your Payment Information, you agree to pay all costs that you incur, and you give us permission to charge you when payment is due for an amount that includes any applicable taxes, fees, and charges to LittleBirdie or one of our service providers.
8. No Storage Obligations
The provision of the Services for the Permitted Use does not obligate us to store your cards or messages or other content or information transmitted through the Services. You acknowledge and agree that we have no responsibility or liability to you for the failure to store, or the deletion of, any other content or information transmitted through the Services.
9. Modification of Services
We reserve the right, at our sole discretion, to modify, suspend, alter fee rates, delete your account, or discontinue the Services, or any part thereof, at any time, with or without notice to you. You acknowledge and agree that we will not be liable to you or to any third party for any expenses or damages, including consequential or special damages, allegedly resulting from suspension, modification, altered fee rates, or discontinuance of the Services, or any part thereof.
10. Account Security
We employ industry-standard practices to protect the integrity and security of your account. However, we cannot guarantee that unauthorized third parties will not be able to defeat our security practices and access your account or personal information. You acknowledge and agree that you access and use the Services, and provide your personal information, at your own risk.
You agree to promptly notify us concerning any unauthorized use, breach of security, or suspected unauthorized use or breach of your account. You agree to keep your account login information confidential and not access or use another User’s account without his or her express permission. We are not liable for any loss or damage arising from your failure to comply with these requirements.
11. Intellectual Property
LittleBirdie contains graphics, text, photographs, images, video, audio, software, code, website compilation, website “look and feel,” and advertisements supplied by us or our licensors, which we call “LittleBirdie content.” LittleBirdie content is protected by intellectual property laws including copyright and other proprietary rights of the United States and foreign countries. You acknowledge and agree that all intellectual property used or displayed in the Services, including any copyrights, patents, trademarks, logos, service marks, and trade secrets (collectively, the “Intellectual Property”), is owned by LittleBirdie or its licensors. The provision of the Services for the Permitted Use does not transfer to you or to any third party any right, title, or interest in the Intellectual Property. LittleBirdie and its licensors reserve all rights in their respective Intellectual Property. You are not permitted to use any trademarks, logos, or service marks displayed or used in the Services without the prior written consent of each respective rights holder.
12. Copyright and DMCA
We will respond to legitimate requests under the Digital Millennium Copyright Act (“DMCA”), and we retain the right to remove content on LittleBirdie that we deem to be infringing the copyright of others. If you become aware of content on LittleBirdie that infringes your copyright rights, you may submit a properly formatted DMCA request (see 17 U.S.C. § 512) to LittleBirdie.
Misrepresentations of infringement can result in liability for monetary damages. You may want to consult an attorney before taking any action pursuant to the DMCA. Any DMCA request should be sent to this contact information:
709 Plaza Dr., Chesterton, IN 46304
Please send our Copyright Agent the following information:
The electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf;
Identification of the copyrighted work claimed to have been infringed, or a representative list of such works;
The URL or Internet location of the materials claimed to be infringing or to be the subject of infringing activity, or information reasonably sufficient to permit us to locate the material;
Your name, address, telephone number and email address;
A statement by you that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent or the law; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
13. Your Right to File a Counter-Notice
If we remove your content in response to a copyright or trademark notice, we will notify you via email and offer to provide you with a copy of the notice. If you believe your content was wrongly removed due to a mistake or misidentification of the material, you can file a counter-notice with us that includes the following:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and where the material was located online before it was removed or access to it was disabled;
- A statement by you, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of federal district court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which the service provider may be found, and that you will accept service of process from the person who provided notification under DMCA 512 subsection (c)(1)(c) or an agent of such person.
Upon receiving a counter-notice we will forward it to the complaining party and tell them we will restore your content within 10 business days. If that party does not notify us that they have filed an action to enjoin your use of that content on LittleBirdie before that period passes, we will consider restoring your user content to the site.
It is LittleBirdie’s policy to close the accounts of users we identify as repeat infringers. We apply this policy at our discretion and in appropriate circumstances, such as when a user has repeatedly been charged with infringing the copyrights or other intellectual property rights of others.
Each of the following sections applies to the maximum extent permitted by law. Where jurisdictions do not allow disclaimers of implied warranties or the limitation of liability in contracts, the contents of this section may not apply.
14. Idea Submissions
You may choose to submit, or we may invite you to submit, comments, suggestions, designs, or ideas about existing or potential LittleBirdie products or services (collectively, “Idea Submissions”). You agree that regardless of any representations you make at the time of disclosure or at any time thereafter, any Idea Submissions you make are voluntary, gratuitous, without restriction, and will not place us under any fiduciary or other obligation. You further agree that we are free to disclose your Idea Submissions and use your Idea Submissions without any obligation to compensate you.
15. Third Party Websites
The Services may contain links to third party websites (“Third Party Websites”). Third Party Websites are not under our control. We provide these links as a convenience and do not monitor, review, approve, endorse, warrant, or make any other representations with respect to Third Party Websites.
16. Warranty disclaimers; Services available “as is”
LittleBirdie will attempt to give you quality customer service, but sometimes sometimes things can go wrong. You understand and agree that the Services are provided to you on an “as-is” and “as-available” basis and without any kind of warranty. You are solely responsible for any damage to your computer or mobile device, loss of use, or loss of your user content. We do not guarantee that LittleBirdie will always work properly.
To the maximum extent permitted by law, LittleBirdie and its Affiliates expressly disclaim any and all warranties with respect to the Services, whether express or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose, accuracy, and non-infringement of property rights, or any other warranty, condition, guarantee or representation, whether oral or electronic.
LittleBirdie and its Affiliates make no representations or warranties of any kind with respect to the Services, including without limitation any representation or warranty that defects will be corrected or that the Services:
will meet your requirements or expectations;
will be compatible with your software, computer, mobile device, phone, or other hardware;
will be available on an uninterrupted, timely, secure, or error-free basis;
will be free of viruses or other harmful components;
will be accurate or reliable; or
the results of using the Services will meet your expectations.
No representation, advice, or information obtained by you from LittleBirdie or through the Services will create any warranty with respect to the Services. Your access to and use of the Services is at your own risk. Some jurisdictions do not allow limitations on implied warranties, so the above limitations may not apply to you.
17. Release from Liability
To the maximum extent permitted by applicable law, you agree to release LittleBirdie and its Affiliates from responsibility, liability, claims, demands, and damages of every kind and nature, actual and consequential, known and unknown, past and future, arising out of or in any way connected with the following:
Disputes between you and other users, including the sender and/or recipient of any cards and/or messages;
Third party conduct, including without limitation the conduct of users, third party website owners, carriers, ISPs, equipment providers, and other third party providers;
Disputes concerning any use of or action taken using your LittleBirdie account or the Services by you or a third party; and
Claims relating to the unauthorized access to, use of, or alteration of the Services, your LittleBirdie account, or any data stored under or relating to your LittleBirdie account.
Any indirect, incidental, exemplary, punitive, or consequential damages of any kind whatsoever;
Loss of profits, data, revenue, use, good-will, or other intangible losses suffered by you;
Damages relating to your access to, use of, or inability to access or use the Services; and/or
Damages relating to any conduct of any third party using the Services, including without limitation unauthorized account access or other illegal conduct.
This limitation of liability applies to all claims, whether based on contract, tort, warranty, or any other legal theory, whether or not LittleBirdie has been informed of the possibility of such damage, and whether or not a remedy set forth herein is found to have failed its essential purpose.
In no event shall LittleBirdie’s aggregate liability for any damages exceed the greater of either $100 (one hundred dollars) or the amount you paid us in the 12 months immediately prior to accrual of the applicable claim. This limitation is cumulative and is not increased by the existence of more than one incident or claim.
Some jurisdictions do not allow limitations on incidental or consequential damages, so the above limitations may not apply to you.
18. Indemnification (what happens if we get sued because of your actions)
Indemnification means that you will not hold us or our Affiliates legally liable if your actions violate the law or infringe or misappropriate the rights of a third party or person in any way. If LittleBirdie gets sued because of something that you did in violation of these Terms, you agree to indemnify us. That means you will indemnify, defend, and hold LittleBirdie and its Affiliates harmless from and against any and all third party claims, demands, suits, and actions, including any related liabilities, damages, obligations, penalties, fines, losses, judgments, settlements, expenses, including attorneys and accountants fees and disbursements, and costs incurred by, borne by, or asserted against us or our Affiliates to the extent such claims in any way arise out of or result from your violation of these Terms, or your account’s infringement of someone else’s rights.
We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with the defense of such claims. You further agree that you will not to settle any such claim without our prior written consent.
19. Governing Law
We want you to enjoy LittleBirdie, so if you have an issue or dispute, you agree to raise it and try to resolve it with us informally. You can contact us with concerns by emailing us at support@SendALittleBirdie.com.
Any claim or dispute between you and us arising out of or relating to this user agreement, in whole or in part, shall be governed by the laws of the State of Indiana without respect to its conflict of laws provisions. We agree and you agree to submit to the personal jurisdiction and venue of the state and federal court located in Porter County, Indiana.
20. Binding Arbitration
Except for claims relating to our Intellectual Property, which may be brought in any court of competent jurisdiction without the posting of a bond, you acknowledge and agree that any claim or dispute related to or arising from these Terms or your access to or use of the Services shall be finally settled on an individual basis through binding arbitration conducted by the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) at a location mutually agreed upon by the parties, or, in the event the parties are unable to agree on a location for the arbitration, at a location chosen by JAMS. You acknowledge and agree that the arbitration shall be conducted in accordance with, as applicable, either the JAMS Streamlined Arbitration Rules & Procedures or the JAMS Comprehensive Arbitration Rules & Procedures and shall, at our exclusive choice and discretion, be conducted in person, telephonically, online, or solely based on written submissions. The procedure for initiating an arbitration claim with JAMS is explained at www.jamsadr.com. The arbitration shall be conducted in the English language and the arbitral decision shall be enforceable in any court of competent jurisdiction. Unless both you and LittleBirdie agree otherwise, the arbitrator shall not consolidate more than one person’s claims, and shall not otherwise preside over any form of a representative or class proceeding. You acknowledge and agree that, by entering into these Terms, both you and LittleBirdie are each waiving the right to a trial by jury, appeal, and to participate in a class action. The United States Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. In the event either the foregoing class action waiver or this arbitration provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void and you agree to submit to the personal jurisdiction of the summary courts of the Porter County, Indiana for the purpose of litigating any and all claims or disputes related to or arising from these Terms or your access to or use of the Services.
Notwithstanding the foregoing, you or LittleBirdie may bring claims or disputes related to or arising from these Terms or your access to or use of the Services on an individual basis in the courts of Porter County, Indiana to the extent said claims or disputes are subject to the small claims limitations and procedures of such courts. This arbitration provision shall survive termination of these Terms.
21. Term and Termination
These Terms remain in effect so long as you continue to access or use the Services. If we believe in good faith that you may have violated or will violate these Terms, or for any other reason we chose, we may, at our sole discretion, with or without notice: (1) immediately suspend your right to access or use the Services; (2) immediately terminate your account; and/or (3) remove any of your User Content from LittleBirdie. Upon termination of these Terms, your account and your license to access or use the Services automatically terminates. That notwithstanding, your obligations within these Terms will remain in effect even after your access to the Service is terminated or your use of the Service ends.
22. Additional Guidelines
Some features of the Services may be subject to additional guidelines, terms, conditions, or rules (collectively, “Additional Guidelines”). Additional Guidelines, if any, will be communicated to you through the Services in connection with such features. All such Additional Guidelines are incorporated by reference into these Terms.
23. Changes to the Terms
24. Legal Requirements
Your account information, including Personally Identifiable Information, may be subject to legal requirements, including requirements to disclose account information to government authorities. We will disclose this information to law enforcement, or to comply with other legal requests, only when provided with facially sufficient and proper legal process.
We may also disclose your account information, including Personally Identifiable Information, if we believe in good faith that disclosure is necessary to protect our rights, protect your safety or the safety of others, or investigate fraud or other crimes. In such instances, we will limit disclosure to that information which is necessary to accomplish the above purposes.
These Terms may not be assigned or otherwise transferred by you without our prior written consent. These Terms may be assigned by us without restriction and are binding upon any rightful assignee.
You acknowledge and agree that we may provide any required legal notices to you, at our sole discretion, via postal mail, or email. You agree to notify us about any claim or dispute you have regarding the Services, or these Terms by emailing us at help@SendALittleBirdie.com.
27. Non-U.S. Users
In the event you access or use the Services from a location outside the United States, you agree and acknowledge that you are responsible for complying with any laws, regulations, or registration requirements in your jurisdiction that may impact your right to import, export, access, or use the Services. Information collected through the Services is stored and processed on servers located in the United States and is subject to United States data protection, privacy regulations, and other laws that may be different than those of other countries. By accessing or using the Services outside the United States, you are consenting to transfer and processing of your personal information in the United States subject to United States law.
28. Entire Agreement and Severability
These Terms, the Additional Documents, and any Additional Guidelines incorporated by reference herein constitute the entire agreement regarding the Services between you and LittleBirdie.
Except to the extent otherwise stated herein, if any provision of this user agreement is held invalid or unenforceable, that provision will be modified to the extent necessary to render it enforceable without losing its intent. If no such modification is possible, that provision will be severed from the rest of this agreement.
Any failure by us to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision.
30. Electronic Communications
We will provide you with certain legal information in writing (which we will refer to as Electronic Communications). By using our Services, you agree to allow us to send you information via email instead of mailing you paper copies and that your agreement with electronic terms and disclosures has the same legal effect as if you had signed an agreement on paper.
We will sometimes need to send you messages about your use of our website and its Services, including our revising our Terms, updating our policies, regular billing statements, transaction information, privacy disclosures, and other legal documents.
For example, if you click a button on our website, and language appearing next to the button informs you that you will agree to certain terms by clicking the button, then your click of the button will have the same legal effect as signing an agreement on paper.
We may provide you with Electronic Communications by emailing them to you at the email address listed in your LittleBirdie account or by posting them on our website.
If you do not have the technical capability to receive such notifications, we may terminate your account and discontinue your access to our Service.