LITTLE BIRD TERMS OF SERVICE
Welcome to getLittleBird.com (the “Site”) provided by Little Bird, Inc., an Oregon corporation (“Little Bird”). Any person who wishes to access the Site to submit, review or retrieve any content or to otherwise use any services or offerings made available through the Site (collectively, the “Services”) must accept the terms and conditions of these Terms of Service (this “Agreement”) without change.
Little Bird reserves the right to change any of the terms and conditions contained in this Agreement, including the Fees (as defined below) and Services, or any policies or guidelines governing the Services, at any time and in its sole discretion. While we will endeavor to provide direct notice to you of any changes, you are responsible for periodically checking the Site to determine if any changes have been made and we are not liable for your failure to do so or our failure to provide such direct notice to you. Your continued use of the Services following any revision to this Agreement will constitute your acceptance of the changes or modifications to the Agreement. If you do not agree to any changes to this Agreement, do not continue to use the Services or this Site.
Section 1 – Description of Services
During the Term (defined below), Little Bird will endeavor to make the Services available to you pursuant to this Agreement and the relevant Order(s). Except as expressly set forth herein, the Services are available for your internal business purposes only, and not for the use or benefit of any third party. You understand and agree that the Services and Media Content (as defined below) are provided “AS IS” and “AS AVAILABLE” and that Little Bird assumes no responsibility for the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Services or any all materials displayed or performed on the Site, including, but not limited to text, graphics, news articles, photographs, images, illustrations, audio clips and video clips (“Content”) or personalization settings. You are responsible for obtaining and maintaining any equipment or ancillary services needed to access or use the Services, including, without limitation, modems, hardware, software, and long distance or local telephone service and any fees associated therewith. You are also responsible for ensuring that such equipment or ancillary services are compatible with the Services.
Section 2 – Subscription Types; Orders
This Agreement commences on the date this Agreement is accepted by you as further set forth above (the “Effective Date”). If made available to you by Little Bird, you may utilize the Services (or certain portions thereof) for an initial “free trial” (the “Trial Term”) as set forth on the Site or within an Order. Pursuant to one or more Orders, you may elect to use the Services set forth therein for the subscription period specified, subject to early termination under Section 13 (the “Commercial Use Term”) (the Trial Term and the Commercial User Term, are collectively, the “Term”); provided that if the Commercial Use Term for a period of months, upon expiration of any such initial or renewal subscription period, the Commercial Use Term shall automatically renew for successive periods of equal duration unless either party provides written notice to the other party of its intent not to renew prior to such expiration.
Under this Agreement, you may order Services and/or Professional Services. The specifics of each such order will be set forth on Little Bird’s standard written (including via email) or electronic order form that references this Agreement (an “Order”), sets forth the specific Services, including the applicable subscription term, and/or Professional Services, including any applicable specifications, and is agreed upon by both parties; provided that Professional Services may be further set forth in one or more statements of work attached to or referenced within an Order. Each Order constitutes a binding commitment by you to purchase the items described on such Order under the terms and conditions of this Agreement. All Orders are incorporated herein by reference. “Professional Services” mean any professional or consulting services to be provided to you by Little Bird pursuant to an Order.
Section 3 – Eligibility & Registration
Use of the Site and the Services is limited to persons authorized to use the Services or the Site under the terms of this Agreement and a relevant Order(s) (“Users”) that lawfully can enter into and form contracts under applicable law. Without limiting the generality of the foregoing, minors may not use the Services without the consent of their parent or legal guardian. You hereby represent to Little Bird that you (i) are not a minor or are at least over the age of eighteen (18) and have obtained the consent of your parent or legal guardian and (ii) may otherwise enter into and form binding contracts under applicable law.
You also agree to: (a) provide true, accurate, current and complete information about yourself and your Little Bird account as prompted by the Site’s registration form, including such as, name,mailing and email address, telephone number, and, upon commencement of the Commercial Use Term, additional billing and credit card information (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Little Bird has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Little Bird has the right to suspend or terminate your account and refuse you any and all current or future use of the Services (or any portion thereof).
Section 4 – Account, User ID, Password and Security
To use the Services, you must register to create an account with Little Bird. To create an account, (a) you may be asked to establish a password and user name designation upon completing the registration process, or (b) alternatively, if supported by Little Bird, you may be required to login using your account credentials from third party social network and/or identity providers (any such account credentials, your “User ID”). Your User ID is for your personal use only and you may not allow any other party to use your User ID. You are responsible for maintaining the confidentiality of your password, and are fully responsible for all activities that occur under your User ID. You agree to immediately notify Little Bird of any unauthorized use of your password or User ID or any other breach of security of which you are aware. Little Bird is not liable for any loss or damage arising from your failure to comply with this Section 4.
Section 6 – License Grant
During the Term and subject to the terms and conditions of this Agreement, Little Bird hereby grants you a limited, non-exclusive, non-transferable, worldwide right to access and use the Services as set forth in one or more Order(s) for your internal business purposes. If you are an agency, and if set forth in an Order, you may access and use the Services on behalf of you clients for the internal business purposes of those clients, and in any event, not for redistribution in any way. All rights not expressly granted to you are reserved by Little Bird.
Section 7 – Proprietary Rights
7.1 Little Bird Technology. Little Bird owns all right, title and interest, including all related all patents, patent applications, mask works, copyrights, moral rights, trade secrets, know-how and other proprietary rights (“Proprietary Rights”) in and to all of Little Bird’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Little Bird in providing the Service or performing Professional Services, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services or Professional Services. The trademarks and service marks and other Little Bird logos and product and service names are trademarks of Little Bird (the “Little Bird Marks”). Without Little Bird prior written permission, you agree not to display or use in any manner, the Little Bird Marks.
7.2 Submitted Content. Little Bird does not claim ownership of any Content that you submit to the Site in the course of using the Services (“Submitted Content”). You, and not Little Bird, shall have sole responsibility for backing up any Submitted Content and for the accuracy, quality, integrity, legality, reliability, appropriateness and Proprietary Rights or right to use all Submitted Content, and Little Bird shall not be responsible for the deletion, correction, destruction, damage, loss or failure to store any Submitted Content. However, with respect to any Submitted Content, all you hereby grant Little Bird a worldwide, royalty-free, non-exclusive, perpetual, irrevocable and fully sublicensable license to use, store, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display and make derivative works of such Submitted Content (in whole or in part) and to incorporate such Submitted Content into other works in any format or medium now known or later developed. Upon any termination of this Agreement, your right to access or use Submitted Content immediately ceases, and Little Bird shall have no obligation to maintain or forward any Submitted Content to you. Little Bird shall not be liable or responsible for any losses or damages caused by removal or deletion of files.
7.3 Media Content. Little Bird does not claim ownership of any Media Content. “Media Content” means third party information obtained from the Internet by the Services, including but not limited to links, posts and excerpts, and data derived thereof, such as reports, summaries, graphs and charts. Access to and use of the Media Content is subject to the following restrictions and acknowledgements:
a. Little Bird has no responsibility for the Media Content as it is derived from third party resources as available on the Internet;
b. Some of the Media Content may be protected by or subject to third party intellectual property or other proprietary or privacy rights, and therefore, you hereby agree not to, and to ensure that none of your Users, or customers if you are an agency, rent, lease, loan, sell, distribute or create derivative works based on the Media Content, unless the customer has obtained express rights to do so from the rightful rights-holder of such Media Content;
c. Some Media Content may be indecent, offensive or otherwise objectionable, and Little Bird shall have the right, but not the obligation, to preview, flag, modify, filter, or remove any or all Media Content from the Service, in its sole discretion, and in any event, your use of the Media Content is at your sole risk and Little Bird shall have no responsibility to you, your Users, customers, or any third party for any use of the Media Content provided in conjunction with the Service.
Section 8 – Usage Limitations
Access to the Site and use of the Services and the Media Content requires you, your Users and your customers, if applicable, to agree to the following restrictions:
- The Services and Media Content may only be used by your Users in accordance with this Agreement;
- Except for the purpose of monitoring & analyzing Media Content, you will not, nor will you permit any of its Users, customers, nor any third party, to do or attempt to do, any of the following: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the Media Content in any way; (ii) modify or make derivative works based upon the Services or the Media Content; (iii) “frame” or “mirror” the Site, Services or any Media Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Services in order to: (1) build a competitive product or service; (2) build a product using similar ideas, features, functions or graphics of the Services; or, (3) copy any ideas, features, functions or graphics of the Services, except for graphics which are exportable as part of receiving the reporting features of the Media Content;
- User accounts cannot be shared or used by more than one individual User, except when provisioned expressly for a Little Bird multi-user business account;
- You shall not, and shall ensure that each User shall not, in connection with its use of or access to the Services: (i) send spam or otherwise duplicative or unsolicited messages in violation of any applicable laws; (ii) attempt to cause this website to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violating third party privacy rights; (iii) interfere with or disrupt the integrity or performance of the Media Content or the Services; or (iv) systematically access the Services using “bots” or “spiders” or attempt to gain unauthorized access to the Site or any part of the Services.
Section 9 – Customer Responsibilities
You shall at all times comply with any Little Bird guidelines communicated or made available to you related to the Services. You understand that all Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such Content originated. This means that you, and not Little Bird, are entirely responsible for all Content that you upload, post, transmit, or otherwise make available via the Services. Little Bird does not control the Content posted via the Services and, as such, does not guarantee the accuracy, integrity, or quality of such Content. You understand that by using the Services, you may be exposed to Content that is offensive, indecent, or objectionable. Under no circumstances will Little Bird be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Services. You hereby acknowledge and accept that you are responsible for:
- All use of the Services, including the Media Content, by Users and your customers (if set forth in an Order), to whom Media Content is provided in accordance with any applicable laws;
- Notifying Little Bird immediately and using reasonable efforts to stop: (i) any unauthorized use of any password or account or any other known or suspected breach of security concerning access to or use of the Services; (ii) any copying or distribution of Media Content that is known or suspected by customer or a User; and (iii) any impersonation of a User or provision of false information to gain access to or use of the Services; and
- You and your Users’ compliance with all applicable laws in the use of and access to the Services and the Media Content.
You acknowledge and agree that Little Bird and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. You acknowledge, consent and agree that Little Bird may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the terms of this Agreement; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Little Bird, its users and the public.
Section 10 – Third Party Interactions
During your use of the Services, you may enter into correspondence or agreements with, purchase goods and/or services from, or participate in promotions of other third parties. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. Little Bird shall not be liable or responsible for any losses or damages caused by such activity.
Section 11 – Fees and Billings
During the Commercial Use Term, if any, Fees for Services (or portions thereof) may be charged on either a subscription or one-time fixed fee basis and you agree to pay all Fees associated with the Services purchased by you. You will generally be billed in advance for all applicable Fees. You must provide Little Bird with valid credit card and/or other information required during the registration process and Little Bird will charge your credit card or invoice you for all applicable Fees accordingly. Unless you terminate your account in accordance with Section 13 below, you are responsible for all recurring Fees charged on a subscription fee basis and Little Bird will continue to bill you (and charge your credit card if applicable) in advance for the applicable billing period for Fees. All Fees are nonrefundable. You shall pay all applicable taxes relating to use of the Services through your account.
Little Bird reserves the right at any time to charge additional Fees for access to the Services (or portions thereof). Little Bird reserves the right to change the amount of, or basis for determining, any Fees for the Services, and to institute new Fees effective upon at least thirty (30) days prior notice to you. Therefore, if at any time Little Bird requires a fee for portions of the Services that are now free,Little Bird will give you advance notice of such Fees. Little Bird reserves the right to offer special offers of the Services and to provide the Services at no charge for promotional reasons or otherwise (such as a free trial (in addition to the Trial Term)).
Section 12 – Non-Payment and Suspension
During any Commercial Use Term, your right to use the Services is subject to any limits established by Little Bird or by your credit card issuer. If payment cannot be charged to your credit card or your charge is returned to Little Bird for any reason, including chargeback, Little Bird reserves the right to either suspend or terminate your access and account, thereby terminating this Agreement and all obligations of Little Bird hereunder. If you have a balance due on your Little Bird account, you agree that Little Bird can charge these unpaid Fees to your credit card. In cases where you fail payment under this Agreement, you shall bear default interest after the due date at the rate of 18% per year or the highest amount permitted by applicable law (whichever is less), which shall be calculated on a per diem basis of a year of 365 days.
Section 13 – Termination; Survival
Either you or Little Bird may terminate this Agreement at any time by notifying the other party in writing (including via email communication) at least five (5) business days prior to the end of the then-current subscription term, as applicable]. Little Bird shall be entitled to terminate this Agreement, and also terminate or suspend any and all Services and your access to the Site immediately in Little Bird’s reasonable discretion, without prior notice or liability, if you fall under any of the following items:
- You breach any of the provisions in this Agreement;
- You become insolvent, or an application for a proceeding for the bankruptcy or other similar proceeding has been instituted by you or against you;
- Your entity dissolves, liquidates, is wound-down, ceases to do business, sells or disposes of all or substantially all of its assets or is acquired (by sale of stock or otherwise);
- Little Bird determines that continuation of the Services for you is not permitted by applicable law or is otherwise inappropriate.
All Fees paid hereunder are non-refundable. Upon termination of your account, your right to access and use the Services and Media Content will immediately cease. Sections 5, 7 through 18 and 20 shall survive termination of this Agreement for any reason; provided, however, that Section 11 and 12 shall survive if and to the extent that any Fee or default interest remains unpaid.
Section 14 – Links
The Site may provide, or third parties may provide, links to or portions of other third party sites or resources. Because Little Bird has no control over such sites and resources, you acknowledge and agree that Little Bird is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Little Bird shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
Section 15 – Indemnity
You agree to indemnify and hold Little Bird, and its subsidiaries, affiliates, shareholders, officers, agents, and employees, harmless from any claim or demand, including reasonable attorneys’ fees due to or arising out of Submitted Content you submit, post, transmit or make available through the Services, your use of the Services and/or Media Content, your access to the Site, your violation of this Agreement, including, without limitation, the restrictions in Section 8 above, or your violation of any applicable law or infringement of any intellectual property or other right of any other person or entity.
Section 16 – Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS-IS”, “AS AVAILABLE,” EXCLUSIVE OF ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. LITTLE BIRD AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. LITTLE BIRD DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, THE MEDIA CONTENT IS PROVIDED “AS IS,” “AS AVAILABLE,” WITH NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.
Section 17 – Internet Delays
The Services may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. Little Bird is not responsible for any delays, delivery failures, or other damages resulting from such problems, including, without limitation, problems in the transmission of data between the Site and your web browser.
Section 18 – Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT LITTLE BIRD SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF LITTLE BIRD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL LITTLE BIRD’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICES EXCEED THE LESSER OF THE FEES PAID TO LITTLE BIRD BY YOU IN THE PRIOR 12 MONTH PERIOD OR $10,000.00. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LITTLE BIRD AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Section 19 – No Third Party Beneficiaries
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.
Section 20 - General Information
20.2 Choice of Law and Forum. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Oregon, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Venue in any suit or action between the parties arising out of or relating to the Agreement shall be in either the Circuit or District Court for Multnomah County, Oregon or the United States District Court for the District of Oregon in Portland, Oregon.
20.3 Waiver and Severability of Terms. The failure of Little Bird to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
20.4 Assignment. This Agreement is not assignable, transferable or sublicensable by you except with Little Bird’s prior written consent. Any attempt to assign or transfer in violation of the foregoing shall be null and void. Little Bird shall be entitled to transfer this Agreement and/or any rights and obligations under this Agreement for any reason including, without limitation, in connection with the acquisition of all or substantially of its capital stock or assets, whether by merger, operation of law or otherwise.
20.5 Force Majeure. Little Bird shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Little Bird’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference), fire, power cut, hacking, attack of computer virus, earthquake, flood, war, embargo, strike, riot, inability to secure materials and transportation facilities, or the intervention of any governmental authority.
20.6 Confidentiality. “Confidential Information” referred to in this Section includes any and all information relating to technologies, business, operation, finance, organization or others provided or disclosed by Little Bird to you in writing, orally, through recording media or in any manner in the transactions under this Agreement. Confidential Information shall not include information which (i) is already publicly known or known to you prior to the provision or disclosure; (ii) is or becomes publicly known through no wrongful act of you; (iii) is rightfully received by you from an authorized third party without any obligation of confidentiality; or (iv) is approved by written authorization of Little Bird. You shall not use Confidential Information beyond the purposes of this Agreement, and shall not, without prior written consent of Little Bird, disclose or divulge Confidential Information to any third party. You shall promptly return to Little Bird, destroy or otherwise dispose of Confidential Information, documents and recording media containing Confidential Information, and copies thereof in accordance with Little Bird’s instruction, upon the termination of this Agreement or Little Bird’s request at any time.