BIRD BUDDY END-USER LICENSE AGREEMENT
The terms of this End-User License Agreement (“EULA” or “Agreement”) govern the relationship between You and Bird Buddy Inc., company number: 3664889, a corporation organized under the laws of Delaware, with a registered office at 229 E. Michigan Ave, Ste. 330 Kalamazoo, Michigan 49007, United States and business address at Miklošičeva cesta 16, 1000 Ljubljana, Slovenia. (which, together with its subsidiaries and affiliates, is hereon in referred to as “Bird Buddy”, “we”, “us” or “our”) regarding Your use of the App distributed by Bird Buddy that You installed, as well as any and all related updates and upgrades that replace or supplement the Application in any respect (the “App”), unless any such update or upgrade is accompanied by a separate license in which case the separate license shall govern.
If You download the App from any online market for software Apps that operate on devices powered by the operating system (e.g. Apple App Store, Google Play, Amazon Appstore, Huawei AppGallery), or if You use the App online (when this is available), You acknowledge that You have reviewed and accepted the terms of service applicable to such online market, platform, or operating system (“Special Terms”).
BY INSTALLING, USING, OR OTHERWISE ACCESSING THE APP YOU AGREE TO THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, OR DO NOT WISH TO BE BOUND BY THEM, PLEASE DO NOT INSTALL, USE, OR OTHERWISE ACCESS THE APP. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THIS EULA AND ANY SPECIAL TERMS, THE TERMS OF THIS EULA SHALL ALWAYS PREVAIL.
1.1 LIMITED LICENSE GRANT
Through the purchase or use of the App, You are acquiring and Bird Buddy grants You a personal, revocable, limited, non-exclusive, non-sublicensable, non-transferable license to install and use the App for Your own non-commercial use, subject to the limitations defined in this EULA. The App is being licensed to You and You hereby acknowledge that no title or ownership of the App is being transferred or assigned to You and this EULA is not to be construed as a sale of any rights of the App. Your rights granted herein are subject to Your compliance with this EULA and You agree not to use the App for any other purpose. Any commercial use of the App is allowed solely with the exclusive written permission of Bird Buddy.
1.2 LICENSE LIMITATIONS
Any use of the App in violation of these License Limitations is strictly prohibited and can result in the immediate revocation of Your Limited License and may trigger Your liability for violations of law.
Unless You have received prior written authorization and or permission from Bird Buddy, You agree not to:
- use cheats, automation software, bots, hacks or any other unauthorized software designed to modify or interfere with the App and/or any files that are part of the App;
- commercially exploit the Bird Buddy App or any part of the App;
- create Derivative Works of the App;
- access or use the App with any technology or means other than those provided in the App, or through other explicitly authorized means that Bird Buddy may designate;
- make a copy of the App available on a network where it could be used by multiple users;
- register domain names, social media accounts or related addresses that include Bird Buddy’s trademarks;
- use the App or related assets and/or Bird Buddy’s trademarks on or in connection with content that (i) promotes cheats, hacks, violence, discrimination, inappropriate themes, illegal activities, or sexually explicit content; (ii) makes untrue, dishonest, disparaging, or libelous statements about Bird Buddy and/or its products, employees, and agents; and/or (iii) contains other objectionable content;
- resell, copy, transfer, distribute, display, translate, or modify the App or make derivative works of the App or any part thereof;
- redistribute, sublicense,, publish, perform, sell, assign, lease, market, transfer, or otherwise make the App available to third parties;
- allow unauthorized access to the App, outside the permitted access of 3 people (“family&friends”) by design;
- seek to disable, reverse engineer, decompile or otherwise attempt to extract the source code of the App or any part thereof, unless this is expressly permitted or required by applicable law or by the licensing terms governing the use of any open-sourced components included within the App;
- delete, obscure, or in any manner alter any warning, notice (including but not limited to any copyright or other proprietary rights notice), or link that appears in the App;
- use the App when operating vehicles;
- remove or alter Bird Buddy’s trademarks or logos or legal notices included in the App or related assets;
- use the service to try to gain unauthorized access to any service, data, account or network by any means;
- post, create or share or distribute any information that contains nudity, violence, or offensive subject matter or that contains a link to such content;
- make an attempt to or harass, abuse, threaten, defame or otherwise infringe or violate the rights of any other party;
- use the App in any way that is unlawful, fraudulent, or deceptive;
- use technology or any other means to access Bird Buddy’s proprietary information not authorized by Bird Buddy;
- use or launch any automated system to access Bird Buddy’s website or computer systems;
- attempt to introduce viruses or any other malicious computer code that interrupts, destroys, or limits the functionality of any computer software, hardware, or telecommunications equipment;
- attempt to gain unauthorized access to Bird Buddy’s computer network or user accounts;
- encourage conduct that would constitute a criminal offense, or would give rise to civil liability;
- use the App in any way that violates any applicable federal, state, provincial, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries); or
- use the App in any manner not expressly allowed in this EULA.
Bird Buddy reserves the right to determine in its sole discretion what kind of conduct is considered to be in violation of the terms of this EULA. Furthermore, Bird Buddy reserves the right to take appropriate action as a result of Your violation of the terms of this EULA, including but not limited to prohibiting You from using the Bird Buddy App in whole or in part.
1.3 ALLOWABLE USES OF THE APP
USE OF THE APP AND ANY OF YOUR INFORMATION TRANSMITTED IN CONNECTION WITH THE APP IS LIMITED TO THE FUNCTIONALITY OF THE APP AND TO THE LIMITED LICENSE GRANT AS OUTLINED ABOVE. YOU MAY NOT OTHERWISE USE THE APP OR ANY COMPONENT OF IT, EXCEPT AS EXPRESSLY AUTHORIZED BY BIRD BUDDY IN WRITING IN ADVANCE.
2. ACCESSING AND DOWNLOADING THE App FROM APP STORES
2.1 APPLE APP STORE
The following applies to any App accessed through or downloaded from the Apple App Store (“App Store Sourced App”):
You acknowledge and agree that (i) this EULA is concluded between You and Bird Buddy only, and not Apple; and (ii) Bird Buddy, is solely responsible for the App Store Sourced App and content thereof. Your use of the App Store Sourced App must comply with the Apple App Store Terms of Service.
You will use the App Store Sourced App only (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced App.
In the event of any failure of any App Store Sourced App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the App Store Sourced App to You and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced App. As between Bird Buddy and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Bird Buddy.
You and Bird Buddy acknowledge that, as between Bird Buddy and Apple, Apple is not responsible for addressing any claims You have or any claims of any third party relating to the App Store Sourced App in Your possession and use of the App Store Sourced App, including but not limited to (i) product liability claims; (ii) any claim that an App Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Bird Buddy acknowledge that, in the event of any third-party claim that an App Store Sourced App or Your possession and use of that App Store Source App infringes that third party’s intellectual property rights, as between Bird Buddy and Apple, Bird Buddy, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this EULA.
You and Bird Buddy acknowledge and agree that Apple and its subsidiaries are third party beneficiaries of this EULA and that upon Your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA.
By using the App Store Sourced App You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
Without limiting any other terms of this EULA, You must comply with all applicable third party terms of agreement when using the App Store Sourced App.
2.2 GOOGLE PLAY STORE
Your use of the Google Play Store and any material downloaded or otherwise obtained through the use of the Google Play Store is at your own discretion and risk and you are solely responsible for any damage to your computer system or other device or loss of data that results from such use.
Google further expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to, the implied warranties and conditions of merchantability, fitness for a particular purpose, and non-infringement.
In the extent that this EULA conflicts with Google Play Distribution Agreement, that Agreement will supersede this EULA. Bird Buddy acknowledges that this EULA is solely between Bird Buddy and the User. Google will not be responsible for, and will not have any liability whatsoever under this EULA.
2.3 HUAWEI APPGALLERY
By accessing Bird Buddy App via Huawei AppGallery, you acknowledge that you will be entering into a contract with Bird Buddy for the supply of the App, and subject to this EULA. Huawei is not a party to this EULA between you and Bird Buddy.
Huawei is neither entitled to nor obliged to control or censor the content of Bird Buddy App, therefore Huawei shall assume no liability in the event that your rights are infringed due to using such an App. Huawei is not responsible for the content or availability of any Bird Buddy apps or services and does not endorse and is not responsible in any way for any content, advertising, products, services or other materials made available by Bird Buddy on the AppGallery platform. Huawei may be required to assist Bird Buddy or governmental authorities. You will bear the full legal responsibility in such events.
Any dispute caused by the downloading, licensing and/or use of Bird Buddy App and/or services through Huawei AppGallery shall be settled by Bird Buddy; Huawei assumes no responsibility. Huawei does not provide any customer support for third-party software or technology. If you require support, please contact Bird Buddy.
Bird Buddy takes full responsibility for the App, app content, and any guarantees provided in this EULA. Where a dispute arises, the Bird Buddy’s warranty, or any other applicable agreement of the EULA or other agreement agreed between you and Bird Buddy concerning the App, shall prevail over Huawei AppGallery User Agreement.
2.4 AMAZON APPSTORE
Bird Buddy is the sole licensor of Bird Buddy App and Amazon is not party to this EULA. Bird Buddy hereby grants Amazon the nonexclusive, irrevocable, royalty-free right to sell, distribute, and make available the App through the Program to you by all means of electronic distribution available now or in the future. Bird Buddy acknowledges that Amazon may allow end users who have purchased the App to download unlimited copies of that App. For avoidance of doubt, if you download or access an App through Amazon Appstore that is free of charge, that App will be deemed to be “purchased” by you for purposes of this EULA.
If there are any conflicts between Amazon EULA and this EULA, then to the extent of such conflict the Amazon EULA will control. Amazon takes no responsibility or liability related to compliance or non-compliance by you under this EULA or the Amazon EULA.For Alexa Skills, the distribution rights set forth in the Alexa Skills Schedule apply in lieu of the rights set forth in this EULA.
3. USER CONTENT
Notwithstanding anything to the contrary stated in this EULA, You are allowed to create and use “User Content” (as defined below) (exactly as produced by the App) subject to the License Limitations and Specific Rules for User Content defined herein.
You are expressly prohibited from sub-licensing, renting, leasing, transferring or otherwise distributing the App or rights to use the App. This EULA does not entitle You to receive, and does not obligate Bird Buddy to provide, hard-copy documentation, support, telephone assistance, or enhancements or updates to the App.
3.1 SUBMISSIONS OF USER CONTENT
The App may allow You to create content such as videos, data, photographs, messages, graphics, text, and other information (“User Content”), and to share such User Content with Bird Buddy or with other sites, including social networking sites, as You may designate. You are solely responsible for Your User Content that you create, upload, publish, display, link to or otherwise make available (hereinafter, “share”) on or through the App, and You agree that Bird Buddy is only acting as a passive conduit for Your online distribution and publication of Your User Content.
YOU AGREE NOT TO SHARE USER CONTENT THAT: (I) MAY CREATE A RISK OF HARM, LOSS, PHYSICAL OR MENTAL INJURY, EMOTIONAL DISTRESS, DEATH, DISABILITY, DISFIGUREMENT, OR PHYSICAL OR MENTAL ILLNESS TO YOU, TO ANY OTHER PERSON, OR TO ANY ANIMAL; (II) MAY CREATE A RISK OF ANY OTHER LOSS OR DAMAGE TO ANY PERSON OR PROPERTY; (III) SEEKS TO HARM OR EXPLOIT CHILDREN BY EXPOSING THEM TO INAPPROPRIATE CONTENT, ASKING THEM FOR PERSONALLY IDENTIFIABLE DETAILS, OR OTHERWISE; (IV) MAY CONSTITUTE OR CONTRIBUTE TO A CRIME OR TORT; (V) CONTAINS ANY INFORMATION OR CONTENT THAT BIRD BUDDY DEEMS TO BE UNLAWFUL, HARMFUL, ABUSIVE, RACIALLY OR ETHNICALLY OFFENSIVE, DEFAMATORY, INFRINGING, INVASIVE OF PERSONAL PRIVACY OR PUBLICITY RIGHTS, HARASSING, HUMILIATING TO OTHER PEOPLE (PUBLICLY OR OTHERWISE), LIBELOUS, THREATENING, PROFANE, OR OTHERWISE OBJECTIONABLE; (VI) CONTAINS ANY INFORMATION OR CONTENT THAT IS ILLEGAL (INCLUDING, WITHOUT LIMITATION, THE DISCLOSURE OF INSIDER INFORMATION UNDER SECURITIES LAW OR OF ANOTHER PARTY’S TRADE SECRETS); (VII) CONTAINS ANY INFORMATION OR CONTENT THAT YOU DO NOT HAVE A RIGHT TO MAKE AVAILABLE UNDER ANY LAW OR UNDER CONTRACTUAL OR FIDUCIARY RELATIONSHIPS; OR (VIII) CONTAINS ANY INFORMATION OR CONTENT THAT YOU KNOW IS NOT CORRECT AND CURRENT.
If You believe that certain User Content shared through the App, but stored on third-party services (e.g. Facebook, YouTube, etc.), is infringing Your rights, please contact the respective third-party service provider where such User Content is stored.
You agree that any User Content that You share does not and will not violate third-party rights of any kind, including and without limitation any “Intellectual Property Rights” (as defined in Section 7 herein) or rights of publicity and privacy. To the extent that Your User Content contains music, You hereby represent that You are the owner of all the copyright rights, including and without limitation, the performance and the mechanical and sound recording rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and that You have the power to grant the license granted below.
Notwithstanding anything to the contrary stated herein, Bird Buddy reserves the right in its sole discretion to review, monitor, prohibit, edit, delete or otherwise make unavailable any User Content at any time without notice for any reason or no reason at all. By entering into this EULA You hereby provide Your irrevocable consent to such monitoring and You acknowledge and agree that You have no expectation of privacy concerning the sharing of Your User Content. If Bird Buddy at any time decides, in its sole discretion, to monitor User Content, Bird Buddy does not assume any responsibility for User Content and/or has no obligation to remove or edit any User Content.
3.2 LICENSE GRANT FOR THE USER CONTENT
- By creating User Content through Bird Buddy Apps, You expressly grant, and You represent and warrant that You have a right to grant to Bird Buddy a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to store, collect and use all User created content for machine learning purposes.
- By creating User Content through Bird Buddy Apps, You expressly grant, and You represent and warrant that You have a right to grant to Bird Buddy a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to collect, store, use, reproduce, modify, publish, monetize, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of, and otherwise exploit, all User Content shared as “Public Photos” within Bird Buddy community, as well as Your name, user name, voice, and/or likeness as contained in Your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the App and Bird Buddy’s (and its successors’ and affiliates’) business, including and without limitation for promoting and redistributing part or all of the App (and any derivative works thereof) or any Bird Buddy App in any media formats and through any media collections and in connection with various advertisements, such as banner ads, mobile ads, and video ads. You also hereby grant each user of the App a non-exclusive license to access Your User Content through the App, and to use, reproduce, distribute, display, and perform such User Content as permitted through the functionality of the App or the Internet and under this Agreement.
3.3 SPECIFIC RULES FOR USER CONTENT
By creating User Content through Bird Buddy App you agree to these Specific Rules that outline Your use of any Bird Buddy’s Intellectual Property Rights:
- User Content will be used for the sole purpose of non-commercial displaying except with exclusive written permission of Bird Buddy, identifying, and discussing Bird Buddy Apps in accordance with these Specific Rules. You are not allowed to create new Apps, products, and/or content based on Bird Buddy Intellectual Property Rights, even if such content would be free.
- You are not permitted to charge any kind of fees from customers or visitors of Your User Content, unless You obtained express prior written approval from Bird Buddy.
- Bird Buddy, in its sole discretion, reserves the right to monetize or use User Content or its parts created through Bird Buddy Apps. To the extent that Bird Buddy does not use its right to monetize the User Content, You may monetize Your User Content with exclusive written permission of Bird Buddy by using advertisements, however You are solely responsible for ensuring that such advertisement is compliant with any and all applicable laws, rules, regulations and developer policies.
- You must not create and use the User Content under the impression that Bird Buddy is a creator or sponsor of Your User Content. Furthermore, You are also not allowed to create any materials from Bird Buddy’s Intellectual Property Rights that are similar to Bird Buddy’s logos, trademarks, or any other elements of Bird Buddy’s Intellectual Property Rights. You are not permitted to modify in any way Bird Buddy’s Intellectual Property Rights without the express prior written approval of Bird Buddy.
- Unless You obtained prior written approval from Bird Buddy, You are not allowed to manufacture or distribute (for free or otherwise) any physical items that bear any of Bird Buddy’s Intellectual Property Rights.
Bird Buddy reserves the right to determine, in its sole discretion, which User Content is in accordance with the above-mentioned Specific Rules and may revoke the Limited License in this EULA at any time and for any reason.
3.4 LIMITATION OF LIABILITY FOR USER CONTENT
Bird Buddy takes no responsibility and assumes no liability for any User Content that You or any other user or third party creates with the App or shares through the App. You shall be solely responsible for Your own User Content and the consequences of sharing or publishing it. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that You send, upload, download, stream, post, transmit, display, share or otherwise make available or access through Your use of the App is solely Your responsibility. In connection with Your User Content and in addition to any other representations and warranties contained in this EULA, You affirm, represent, and warrant the following:
- You have the written consent of each and every identifiable natural person in the User Content to use such a person’s name or likeness in the manner contemplated by the App and this EULA, and each such person has released You from any liability that may arise in relation to such use.
- Your User Content and Bird Buddy’s use thereof as contemplated by this EULA and the App will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights, and rights of publicity.
- Bird Buddy may exercise the rights to Your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- Bird Buddy is not responsible for any public display or misuse of Your User Content. You understand and acknowledge that You may be exposed to User Content that is inaccurate, offensive, indecent, objectionable, or inappropriate for children, and You agree that Bird Buddy shall not be liable for any damages you allege to incur as a result of such User Content.
You must provide, at Your own expense, the equipment, Internet connections, or mobile devices and/or service plans to access and use the App. Bird Buddy does not guarantee that the App is available in all geographic locations. You acknowledge that when You use the App, Your wireless carrier may charge You fees for data, messaging, and/or other wireless access. Check with Your carrier to see if there are any such fees that apply to You.
YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS THE App FROM YOUR MOBILE DEVICE AND/OR PC DEVICE. YOUR RIGHT TO USE THE App IS ALSO PREDICATED ON YOUR COMPLIANCE WITH ANY APPLICABLE TERMS OF AGREEMENTS YOU HAVE WITH THIRD PARTIES WHEN USING THE App.
5. TERM AND TERMINATION
The term of this EULA shall commence on the date You install or otherwise use the App and shall end on the earlier of the date of Your disposal of the App or Bird Buddy’s termination of this EULA. You may terminate this EULA by uninstalling the App.
Bird Buddy reserves the right, using its sole discretion, to terminate this EULA, or request that You remove the App from Your device for any reason, including but not limited to Bird Buddy’s reasonable conclusion that You have violated this EULA. Promptly upon termination, You must cease all use of the App and destroy all copies of the App in Your possession or control.
Termination will not limit any of Bird Buddy’s other rights or remedies at law or in equity. If any of the platforms disable the ability to use the App on Your device pursuant to Your agreement with such platform, any associated license rights with Bird Buddy will terminate as well.
6. RESERVATION OF RIGHTS
You have obtained a license to the App and Your rights are subject to this EULA. Except as expressly licensed to You herein, Bird Buddy reserves all rights, titles, and interests in the App. This license is limited to the intellectual property rights of Bird Buddy and does not include any rights to other patents or intellectual property.
Bird Buddy retains all rights, titles, and interests in and to the Bird Buddy Intellectual Property Rights, as defined below, whether registered or not, and all Apps thereof, except of the copyright of the third-party technology. The Bird Buddy software is protected by applicable laws and treaties throughout the world.
For the purposes of this EULA, “Intellectual Property Rights” means all patent rights, trade names, proprietary rights, copyright rights, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all Apps therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
7. BIRD BUDDY PREMIUM SUBSCRIPTION TERMS AND CONDITION
This part of the Bird Buddy General Terms constitutes the agreement between you and us in relation to your purchase use of the Bird Buddy Premium Subscription (the “Premium Subscription”).
To purchase, access and use the features of the Premium Subscription on our Website or Mobile Application, you must accept these Terms and Conditions and carefully read through this section.
Our provision of the Premium Subscription service
The Premium Subscription is a digital service that is made available by us so that we may provide paying users with additional features and capabilities in relation to their Bird Buddy Smart Bird Feeder and corresponding Mobile Application.
Premium Subscription features may include options and functionalities that allow users to ignore selected species, add additional guests to their Bird Buddy Smart Bird Feeder, record, receive and share postcards as High-resolution videos, let their Bird Buddy Smart Bird Feeder change battery and functionality modes, and more.
When purchasing the Premium Subscription you assent to the current Premium Subscription fees, the available Premium Subscription model and duration of the Premium Subscription as well as all provided features, benefits, capabilities and service level as they had been disclosed to you at the time of purchase on the Subscriptions subsection of our Website or any related part of our Mobile Application.
Users can also find details about the Premium Subscription model they are subscribed to by checking the relevant part of our Mobile Application (i.e. under settings or profile).
Some features, benefits, capabilities and benefits may not be available in all countries. We will disclose which features or subscriptions are available to you when you are signing up for a particular subscription. Please reach out to our support team prior to purchasing a subscription should you have any questions as to the functionalities and their availability.
Note that any subscription we may offer may be discontinued in the future, in which case you will no longer be charged for the subscription you had signed up for.
We may provide a free trial version of our Premium Subscription or other available subscription free-of-charge, for a specified period without payment or at a reduced rate (the “Free Trial”), if such Free Trial is available to you for sign-up through our Website or Mobile Application. We may also offer special promotional plans, memberships, or services, including offerings of third-party products and services, whereby the Free Trial and all of our other active offers and their availability/requirements shall always be disclosed on the Subscriptions subsection of our Website.
By committing to a Free Trial, you agree to being bound by these General Terms and the pricing/subscription extension conditions that had been disclosed to you the Subscriptions subsection of our Website during sign-up.
Premium Subscription service Limitations and Modifications
We shall use reasonable care and skill to keep the Premium Subscription service operational. However, the features and other Premium Subscription service offerings and their availability may change from time to time without liability to you (such as temporary interruptions and outages due to technical difficulties, maintenance or testing, changes required by new laws or updates).
If we perform general changes or changes to the Premium Subscription fees (together: “Change” or “Changes”), we will inform you in text form (for example via e-mail) about the Changes and the reasons for the Changes within a reasonable period of at least 10 days before the Changes take effect. You may reject the Changes. Your consent will be deemed to have been given, if you have not rejected the Changes within a period of 10 days after receipt of the information. In this case the Changes will apply from the date that we have notified you in text form (e.g. by email). A Change to the Premium Subscription fee will however not apply until the next Premium Subscription fee is due.
You may cancel your Premium Subscription free of charge in accordance with the “Cancellation by you and refunds” section of these General Terms. At the beginning of the minimum 10-days-period, we will inform you once again on the effect of deemed consent (in case you do not reject), on the beginning and duration of the period to reject, and on your option for termination.
Any, including other, changes based on your express prior consent remain unaffected by the provisions of this section. If any Change is found invalid or for any reason unenforceable, that Change is severable and does not affect the validity and enforceability of any remaining Changes or conditions.
We as well as the applicable owners of any postcards/videos/audio recordings may remove any content without notice or remuneration to a Premium Subscription user.
Selecting a subscription or Free Trial option on our Website and following the check-out procedure will allow you to purchase (or obtain as a free trial) our Premium Subscription, giving you all of the features and benefits tied to that subscription for a specific time period (the “Pre-Paid Period”), as defined on the last check-out step of our Website or on the the Subscriptions subsection of our Website.
We reserve the right to accept or refuse your Premium Subscription order, to the extent permitted by applicable law.
If you have validly signed-up for your Premium Subscription and have been billed by us and you had not notified us before your Pre-Paid Period expired that you want to end your Premium Subscription at this date or cancel your Premium Subscription for the next month, we will automatically charge the then-applicable periodic Premium Subscription fee using your preferred payment method.
If your preferred payment method becomes invalid during your Premium Subscription period, or if the charge is refused for any other reason outside our control, you authorize us to use any other payment method we have on file in connection with your past purchase or user account. If all your payment methods on file are declined, you must provide us a new eligible payment method, by contacting our support team. We reserve the right to terminate your Premium Subscription until we receive valid payment.
Cancellation by you and refunds
If you sign up for your Premium Subscription directly through us, you may cancel it any time by visiting your account and adjusting your Premium Subscription settings. You may also contact our customer service.
All payable subscriptions are non refundable except where expressly provided as such in this document, your national legislation or on the Subscriptions subsection of our Website at the time of purchase.
If you have signed up and paid for a payable subscription accidentaly and the Pre-Paid Period or the Free Trial period has not yet expired, we may decide to refund you in full or partially, as the case may be for any remaining days in relation to your Pre-Paid Period and at our own discretion. Your account and billing information must be up to date in order for us to refund you.
Premium Subscriptions redeemed through a promotional or gift code are not refundable.
Instructions and information on the withdrawal for EEA-based consumers
If you’re an EEA-based consumer, EEA consumer law gives you the right to withdraw from the contract that you enter into with us when you commit to a purchase in connection with these General Terms, as described in the EU’s Model Instructions on Withdrawal, provided below.
Right of withdrawal
As a EEA-based consumer you generally have a right to withdraw from a contract within 14 days without giving any reason.
If you purchase our Premium Subscription directly through us as a standalone product (i.e on our Website or through our Mobile Application), you expressly request that we start providing you the Premium Subscription within your 14-day cancellation period, thereby effectively waiving your 14-day cancellation right that might belong to you, if you are EEA-based consumer.
Please note that we may still offer you a right of withdrawal regardless of whether or not you are a EEA-based consumer and regardless of the above-stated exclusion, if such right of withdrawal had been explicitly stated at the last check-out step where you had placed your order for one of our paid subscriptions or if this is explicitly stated on the Subscriptions subsection of our Website.
If you paid for your Premium Subscription fee as soon as you bought your Bird Buddy Smart Bird feeder you may withdraw within 14 days if you are an EEA-based consumer, if neither you nor anyone authorized by you to use your account has taken advantage of any Premium Subscription benefits in the current Pre-Paid Period, whereby we will refund the Premium Subscription fee in full.
To withdraw within the 14-day period (or shorter period, as the case may be) as an EEA-based consumer, you can adjust your Premium Subscription settings in your Account, or otherwise inform us by an unequivocal statement (e.g. a letter sent to the address below or by or by e-mail to [email protected]).
You can also choose (whereby this is not required) to use the following withdrawal form:
(complete and return this form only if you wish to withdraw from the contract)
— To Bird Buddy d.o.o., 16 Miklošičeva cesta, 1000 Ljubljana, Slovenia or via email to [email protected].
— I hereby give notice that I withdraw from my contract of sale for the provision of the following service: Bird Buddy Premium Subscription
— Ordered on, _____________
— Name of consumer, _____________
— Address of consumer, _____________
— Signature of consumer (only if this form is notified on paper), _____________
— Date _____________
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
If you use any of the above-mentioned options, we will communicate to you an acknowledgement of receipt of such a withdrawal on a durable medium (e.g. by e-mail) without delay.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
No transfer or assignment of Free Trial or other subscription or benefits
You may not transfer or assign your Free Trial, Premium Subscription or any other subscription benefits we might offer including promotion codes, discounts or other benefits, except as expressly allowed in these General Terms.
No resale, rental or shipping to customers
Premium Subscription users are not permitted to purchase the subscription and use its features for resale, rental, or other commercial purposes which includes sharing any benefits or capabilities with third parties.
The Premium Subscription Service is only available to end consumers aged 18 years or older.
We may terminate any Free Trial or paid subscription with 14 days’ notice for convenience and will issue a prorated refund of your paid Premium Subscription fee based on the Pre-Paid period time remaining in connection with your current Premium Subscription.
We may terminate your Premium Subscription immediately by notice if we consider that (a) your use of the Premium Subscription service materially breaches these General Terms or any applicable law or (b) you fraudulently use or misuse the Premium Subscription service. In this case we will not give any refund. We will inform you of the termination of your Premium Subscription and your right to appeal.
You may terminate your Premium Subscription at any time in accordance with the “Cancellation by you and refunds” section of these General Terms.
We are liable for any damage you suffer as a result of gross negligence or willful misconduct by us, including by our directors and legal representatives.
In addition, we are liable for breach of our obligations under these General Terms which are essential for the provision of Premium Subscription and which you rely on when signing-up for such subscription. In this case, we are only liable for losses and damage that were foreseeable to both you and us when you joined Premium Subscription.
Nothing in this paragraph affects your statutory rights as a consumer or limits our liability for damages from injury to life, body or health, for a breach of a guarantee or for fraudulently
We have no liability to you, nor any obligation to provide a refund to you, in connection with internet or other service outages or failures that are caused by the actions of government authorities, other third parties or events beyond our control.
Our subscription services may be integrated with, or may otherwise interact with, third-party applications, websites, and services, whereby your use of such third-party assets may be subject to additional terms, conditions and policies provided to you by such applicable third parties. We do not guarantee that third-party assets will be compatible with our subscription services unless clearly stated at the time of sign-up on the Subscriptions subsection of our Website.
We will not be held responsible for any delay or failure to comply with our obligations under these Terms if the delay or failure arises from any cause which is non foreseeable and beyond our reasonable control.
If you’re an EEA-based consumer and you’ve agreed to our General Terms, then EEA consumer laws provide you with a legal guarantee covering the digital content, services, or goods that we provide you. Under this guarantee, we’re liable for any lack of conformity that you discover:
- within two years of the delivery of goods (such as our Smart Bird Feeder) or the one-time supply of digital content or services.
- at any time during the “continuous” supply of digital content or services (such as our Premium Subscription)
Please note that your national laws may provide even longer guarantees. Your rights under these legal guarantees aren’t limited by any other commercial guarantees that we provide. If you want to make a guarantee claim, please contact us.
8. THIRD-PARTY CONTENT
8.1 THIRD-PARTY TECHNOLOGY
Bird Buddy App uses third-party technologies, whereas such third-party technologies may be subject to commercial licenses (“Commercial Third-Party Technology”) or to open-source software licenses (“Open-Source Components”).
The following list includes those Commercial Third-Party Technologies that require such disclosure in accordance with their license:
- AWS: The App uses AWS software as a cloud service provider for storing information and by using such App You agree to be bound by the AWS Terms of Service available at https://aws.amazon.com/service-terms/.
- Google Sign-In: The App allows you to sign in with Google Sign-In and by using this option You agree to be bound by Google Sign-In terms available at https://developers.google.com/terms/.
- Apple: The App allows you to sign in with Apple and by using this option You agree to be bound by Apple terms available at https://developer.apple.com/support/terms/.
- Facebook: The App allows you to sign in with Facebook and by using this option You agree to be bound by Facebook terms available at https://developers.facebook.com/terms/dfc_platform_terms/.
- Zendesk: The App uses Zendesk software as a customer support tool and by using such App You agree to be bound by the Zendesk Terms of Service available at https://www.zendesk.com/company/agreements-and-terms/terms-of-use/.
- Mixpanel: The App uses Mixpanel software for conducting analysis and research and by using such App You agree to be bound by the Mixpanel Terms of Service available at https://mixpanel.com/legal/terms-of-use/.
- Sentry: The App uses Sentry software to track errors and by using such App You agree to be bound by the Sentry Terms of Service available at https://sentry.io/terms/.
- Firebase Services: The App uses Firebase software for notifications and loading remote configurations and by using such App You agree to be bound by the Firebase Terms of Service available at https://firebase.google.com/terms.
- Lightstep: The App uses Lighstep software for backend observability and by using such App You agree to be bound by the Lighstep Terms of Service available at https://lightstep.com/terms-of-service.
- Grafana Cloud: The App uses Grafana software for on-call operations, App logs, App metrics and infrastructure monitoring and by using such App You agree to be bound by the Grafana Terms of Service available at https://grafana.com/legal/terms/.
- V7: The App uses V7 data platform for computer vision to assist AI recognition of birds and by using such App You agree to be bound by the V7labs Terms of Service available at https://www.v7labs.com/terms.
To the extent there is conflict between the license terms covering the Open-Source Components and this EULA, the terms of such licenses will apply in lieu of the terms of this EULA. To the extent that the terms of the licenses, applicable to Open-Source Components, prohibit any of the restrictions in this EULA with respect to such Open-Source Component, such restrictions will not apply to such Open-Source Component. To the extent that the terms of the licenses applicable to Open-Source Components require to make available the source or object form of the Open-Source Component or any modifications to it, You may obtain it by contacting us at: [email protected].
8.2 THIRD-PARTY CONTENT AND FUNCTIONS
Some content and functions available via the App may include materials from third parties. Bird Buddy may integrate third-party content (e.g. Bird sound recordings) and provide links to third-party websites as a convenience to You. You agree that Bird Buddy is not responsible for examining or evaluating the content or accuracy of such and Bird Buddy does not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. You agree that You will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that Bird Buddy is not in any way responsible for any such use by You.
Bird Buddy App uses the following third-party content, whereas the following list includes only such third-party content that requires such disclosure in accordance with their license:
Bird sound recordings used in BirdBuddy APP are sourced from these sources:
- Xeno-Canto: The App uses bird sound recordings available at https://xeno-canto.org/.
- Wikimedia Foundation: The App uses bird sound recordings available at https://commons.wikimedia.org/.
All recordings used fall under one of the following licenses:
- CC BY-NC-ND 2.5, CC BY-NC-ND 3.0, CC BY-NC-SA 3.0, CC BY 3.0, CC BY-NC-SA 4.0, CC BY-NC-ND 4.0, CC BY-SA 2.5, CC BY-SA 3.0, CC BY-SA 4.0, CC BY 4.0 and Public domain.
9. DISCLAIMER OF WARRANTIES
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE App IS PROVIDED TO YOU “AS IS”, WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. BIRD BUDDY AND BIRD BUDDY’S LICENSORS (COLLECTIVELY “BIRD BUDDY” FOR PURPOSES OF THIS SECTION AND SECTION 10) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OF THIRD-PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
BIRD BUDDY DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE App; THAT THE App WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE App WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE App WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER App; THAT ANY ERRORS IN THE App WILL BE CORRECTED; OR THAT THE App WILL BE AVAILABLE FOR REINSTALLS TO THE SAME OR MULTIPLE DEVICES.
NO ORAL OR WRITTEN ADVICE PROVIDED BY BIRD BUDDY OR ANY AUTHORIZED REPRESENTATIVE OR THIRD PARTY SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF, OR LIMITATIONS ON, IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
10. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL BIRD BUDDY, ITS SUBSIDIARIES OR ITS AFFILIATES AND ITS LICENSORS BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS EULA OR THE App, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT BIRD BUDDY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND WHETHER OR NOT REPAIR, REPLACEMENT, OR A REFUND (IF AWARDED AT OUR SOLE DISCRETION) FOR THE App DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES.
SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS OR CERTAIN INTENTIONAL OR NEGLIGENT ACTS, OR VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. In no event shall Bird Buddy’s total liability to You for all damages (except as required by applicable law) exceed the amount actually paid by You for the App and or subscriptions. THIS LIMITATION APPLIES, BUT IT IS NOT LIMITED TO ANYTHING RELATED TO THE App, SERVICES, OR CONTENT MADE AVAILABLE THROUGH THE App. You agree that the provisions in this EULA that limit liability are essential terms of this EULA.
You agree to defend, indemnify, and hold harmless Bird Buddy and its employees, contractors, officers, and directors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including attorney’s fees) that arise from Your use or misuse of the App, violation of the EULA, or violation of any rights of a third party. Bird Buddy reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will cooperate in asserting any available defenses.
12. INJUNCTIVE RELIEF
You agree that a breach of this EULA will cause irreparable injury to Bird Buddy for which monetary damages would not be an adequate remedy and Bird Buddy shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
13. GOVERNING LAW
This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by, and construed in accordance with, the laws of Slovenia, if You use the App in the EU, excluding its conflict of laws rules, or in accordance with the laws of the State of Delaware, excluding its conflict of laws rules, if You use the App anywhere else in the world.
We will make every reasonable effort to resolve any disagreements that You have with Bird Buddy. If those efforts fail, by using the App You agree that any claim, dispute, or controversy You may have against Bird Buddy arising out of, relating to, or connected in any way with this Agreement and/or the App, shall be resolved exclusively by final and binding arbitration, as defined in this Section 14.
If You are a resident of the United States of America: (a) any such arbitration shall be administered by the American Arbitration Association (the “AAA”) and conducted before a single arbitrator pursuant to the applicable rules and procedures established by the AAA (the “AAA Rules and Procedures”); (b) the arbitration shall be held at a location determined by the AAA pursuant to the AAA Rules and Procedures (provided that such location is reasonably convenient for You), or at such other location as may be mutually agreed upon by You and Bird Buddy; (c) the arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (d) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only Your and/or Bird Buddy’s individual claims, and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (e) in the event that You are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Bird Buddy will pay as much of Your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; (f) all arbitration submissions, communications, and proceedings shall be made or conducted in English; and (g) with the exception of clause (d) above, if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the AAA Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.
If You are a resident of any country other than the United States of America: (a) any such arbitration shall be administered by the International Chamber of Commerce (the “ICC”) and conducted before a single arbitrator pursuant to the Rules of Arbitration of the ICC (the “ICC Rules of Arbitration”); (b) the arbitration shall be held in Ljubljana, Slovenia, or at such other location as may be mutually agreed upon by You and Bird Buddy; (c) the arbitrator shall apply Delaware law consistent with the ICC Rules of Arbitration and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (d) all arbitration submissions, communications, and proceedings shall be made or conducted in English; and (e) if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the ICC Rules of Arbitration, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.
15. FINAL PROVISIONS
Any person who uses the App represents to Bird Buddy that they are at least the age of majority under applicable law, or if under the age of majority that they are either an emancipated minor, or possess the legal consent of a parent or legal guardian, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
15.2 SEVERABILITY AND SURVIVAL
If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA shall continue in full force and effect.
15.3 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between You and Bird Buddy with respect to the App and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this EULA will be binding unless made in writing and signed by Bird Buddy. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between this EULA, any applicable purchase, or other terms, the terms of this EULA shall govern.
The original version of this EULA is written in English. Any translation of this EULA into any other language is done for local requirements and in the event of a dispute, inconsistency, or discrepancy between the English and any non-English version, the English version of this EULA shall govern, to the extent not prohibited by local law in Your jurisdiction.
You agree to abide by U.S., EU and other applicable export control laws and agree not to transfer the App to a foreign national, or national destination, which is prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You certify that You are not a person with whom Bird Buddy is prohibited from transacting business under applicable law.
We will occasionally update this EULA as necessary to protect our users, furnish current information, and respond to legal and technical changes. The most current version of the EULA will govern Your use of our App and will be available at https://mybirdbuddy.com/pages/app-eula. Please check this webpage regularly for any changes. We reserve the right to change this EULA at any time by posting the amended version of EULA at the above-mentioned address. Your usage of the App after the changes are integrated will constitute Your acceptance of the changes.
15.7 CONTACT INFORMATION
Should You wish to contact Bird Buddy with any questions, complaints, or claims with respect to the App, You should visit the Bird Buddy website at https://mybirdbuddy.com/ or contact [email protected].
15.8 TRANSFER OF TITLE FOR THE SALE OF AN APP
To the extent that applicable legislation allows the parties to a transaction to agree on where title passes for sales of property, You agree that title for the sale of the App (software sold by electronic download) passes where Bird Buddy is domiciled.
BIRD BUDDY Inc.