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Effective Date: September 8, 2020
1. Welcome and Introduction
Mobileoffer, Inc. dba Freebird Rides (“Freebird”, “Freebird Rides”, “we,” “our,” or “us”) owns and operates certain websites, applications, tools, technologies, and programs and associated services (collectively, the “Services”) that reference these Terms of Service (the “Agreement”).
This Agreement is a contract between you and us that governs your access and use of the Services. What does that mean? It means that by accessing and/or using the Services, or by clicking a button or checking a box marked “I Agree” (or something similar), you agree to all the terms and conditions of this Agreement. If you do not agree, do not use the Services. As used in this Agreement, “you” means the company or other entity that you represent that will be using the Services as a Member Business (defined below).If you are signing up on behalf of a company or other entity, you individually warrant and represent that you are properly exercising your authority to bind such company or entity.
2. The Services
Freebird Rides is a referral service. Freebird Rides contracts with businesses that wish to encourage customers to visit their places of business (“Member Businesses”) by offering to reimburse their potential customers for some or all of their costs of obtaining transportation from a third-party rideshare service such as Uber or Lyft. The Services include access to a mobile application and related tools (the “Application”) that integrate with the rideshare services, track the offers of Member Businesses, and communicate them to riders. When a rider becomes a customer of a Member Business by making a purchase at the Member Business, the Application handles reimbursement to the rider in the amount of the offer from the Member Business or the cost of the ride, whichever is less.
Use of Freebird as a Member Business requires that you be registered for an account with us (“Account“). In connection with such registration, you agree to (a) provide true, accurate, current and complete information about yourself and your business location as necessary to complete your registration, and (b) promptly update the personal or business location information you provide to ensure that it is always true, accurate, current and complete. If you provide any information that is untrue, inaccurate, outdated or incomplete, or Freebird has reasonable grounds to suspect that such information is untrue, inaccurate, outdated or incomplete, Freebird has the right to block your current or future use of the Services (or any portion of your use).
Member Businesses will have access to a web-based platform (the “Portal”) where they can list their location, create and edit offers made to riders with the Application, and access details about the ride taken to their location.Member Businesses that offer a cash offer within the application will be charged a service fee for each ride Freebird facilitates that delivers a rider to the Member Business.Member Businesses will only be charged the service fee as long as the rider makes a qualifying purchase. A qualifying purchase is (i) a transaction made at the Member Business’ location; (ii) for a minimum amount as stated in the Application; (iii) with a credit or debit card linked to the Application; and (iv) that is made or processed within 14 business days of the rider arriving at the member business.In exchange for the service fee, the Member Business will receive certain transaction and ride details for each individual rider that accepts their cash offer.
Member Businesses that offer a point offer within the application will be charged a service fee for each ride Freebird facilitates that delivers a rider to the Member Business.No minimum purchase is required for the Member Business to reimburse a points ride and to pay a per ride service fee.In exchange for the service fee, the Member Business will receive certain ride details for each individual rider that accepts their point offer.
The Services are made available to riders for their own personal and non-commercial use. YOU ACKNOWLEDGE THAT PROVIDING THE SERVICES DOES NOT MAKE FREEBIRD RIDES A TRANSPORTATION PROVIDER, DELIVERY SERVICE, OR CARRIER.
This Agreement incorporates our Privacy Policy https://www.freebirdrides.com/privacy.You acknowledge that you have read and understood the Agreement and agree to be bound by it. If you don’t agree with (or cannot comply with) the Agreement, then you may not use the Service.
The term “Services” does not include Professional Services.“Professional Services” means any work we do at your request to develop features, modifications, or customizations for your specific use, as well as any other work we do for you that are not included in our standard Services. If you ever require Professional Services, we will enter into a separate written agreement with you outlining the Professional Services and the terms under which they will be provided.
3.Exchange and Use of Information
As part of the Services, we provide you access to certain third-party data that may originate with third parties and other users, such as Riders (“Third-Party Data”).All the information we provide to you through the Services that we obtain from third parties and other users is included in the term “Third-Party Data.”Our license to you includes access to the Third-Party Data, but we do not offer any warranty or representation regarding the Third-Party Data, including its accuracy, timeliness, or completeness.You and your Riders are solely responsible to ensure that the Third-Party Data you access or use is accurate, timely, and complete.
Your use of the Services may involve the processing of information concerning you or your business activities, including specific information regarding your customers, clients, services, and finances.This specific information (“Your Data”) belongs to you. You exclusively own Your Data.For clarity, the term “Your Data” does not include Rider Information or User Content (defined below).
“Rider Information” is any information provided through the Portal about any individual who uses the Application to search for, hail, or pay for a ride (“Rider“), which may include, without limitation, a Rider’s general pick up location, the Rider’s pick up date and time, the Rider’s drop off time, the Rider’s gender and age range (if either or both are provided by the Rider) and the Rider’s transaction amount spent at your business location if the Rider accepts a cash offer. You acknowledge that you will have access to Rider Information in compliance with applicable laws when a Rider completes a ride and receives cash payment from your business, and that such Rider Information is private and/or sensitive in nature. You agree that: (a) you will be responsible for maintaining, and will use all reasonable precautions to protect the confidentiality and security of, Rider Information; (b) you will comply with the Freebird Privacy Policy; and (c) you will comply with all applicable laws, rules and regulations with respect to the privacy and security of Rider Information.The Rider Information is provided without any warranty by Freebird, and Freebird is not responsible for any inaccuracies in Rider Information.
You acknowledge that Rider Information is proprietary to Freebird, and you agree to use Rider Information only for authorized purposes directly related to fulfilling a Rider’s offer claim. You may not use Rider Information to contact Riders directly other than in relation to sending that Rider special offers within the Application. Notwithstanding any provision of this Agreement to the contrary, you are expressly prohibited from distributing, selling, providing access to, or otherwise making available Rider Information to any third party. The foregoing restrictions apply regardless of whether Rider Information is modified or combined with any other information or any other lists or databases.
You grant Freebird an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sub-licensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute and/or otherwise use the content which you upload on the Freebird Portal (“User Content“) and in all forms of media now known or hereafter invented (collectively, the “Uses“), without notification to and/or approval by you.
User Content includes, without limitation, any menu information uploaded on Freebird. You further grant Freebird a license to use your restaurant name and logo, as well as other account information, including, without limitation, your ratings history, to attribute User Content to you in connection with the Uses, if we choose to do so, again without notification to and/or approval by you. By transmitting User Content, you agree to follow the standards of conduct in this Agreement, and any additional standards stated on the Application, Portal, Services, our website, or otherwise agreed to between you and Freebird. We do our best to encourage civility and discourage disruptive communication on Freebird. We also discourage communications that incite others to violate our standards. We expect your cooperation in upholding our standards. You are responsible for all User Content. You agree not to provide any User Content that is unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another’s privacy, hateful, discriminatory and/or otherwise objectionable; has a purpose not contemplated by this Agreement, misleading and/or not written in good faith; infringes any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity; is illegal and/or promotes illegal activity; violates any agreement between you and Freebird.
Freebird may monitor any and all use of the Portal. We reserve the right to change, delete and/or remove, in part or in full, any User Content that we believe, and/or to terminate and/or suspend access to any materials and/or all or part(s) of Freebird for conduct that we believe, violates our standards, violates any other terms or conditions of this Agreement, interferes with other people’s enjoyment of Freebird or any materials, is inappropriate, or for any other reason, in each case, in our sole discretion. Freebird will cooperate with local, state and/or federal authorities to the extent permitted by applicable law in connection with User Content.
4.Received Materials
If you send us any comments, materials, or letters including, without limitation, questions, comments, suggestions, criticisms or the like (“Received Materials”), those Received Materials may be deemed by us to be non-confidential and free of any claims of proprietary or personal rights. Freebird shall have no obligation of any kind with respect to such Received Materials, and Freebird will be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and/or distribute the Received Materials without limitation or restriction. Furthermore, Freebird is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to Freebird for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information or ideas, without compensation or any other obligations to anyone, including you.
5.Changes to this Agreement
This Agreement may be changed only by an amendment signed by both parties.At certain times, we may in our discretion need to make revisions to this Agreement.If we do, we will notify you by posting notices on the website or by e-mailing you, as appropriate in the circumstances.If you continue using the Services after the effective date of the changes, you will be deemed to have accepted the revisions.If you do not agree to the revisions, you may terminate this Agreement by notifying us via e-mail at support@freebirdrides.com.
6.Services, Payment, and Term
Creation of a Freebird Account (“Freebird Account”) is free, and your credit card or bank account will not be charged to create a Freebird business account.Freebird will charge your credit card or bank account a predetermined upfront amount that you select (“Ride Package Amount”) in advance of a ride offer to your location(s) being made available in the Application for Riders to accept.Once your Ride Package Amount is depleted, Freebird will charge your payment method to replenish your Freebird Account.You can change the Ride Package Amount to which your payment method will be replenished via the Portal.
Your Ride Package Amount will be used to pay (i) the ride reimbursement amount your business determines to provide the rider whether provided in cash or Freebird rewards points to the rider(“Ride Reimbursement”) and (ii) a per ride Freebird service fee that will vary depending upon the type or amount of Ride Reimbursement (“Service Fees”) for each ride offer accepted by a Rider within the Application that is taken to your location(s).The amount of the Ride Reimbursement and the Service Fee deducted from your Freebird Account will vary depending on if you have a cash or point offer available to riders within the Application.
Freebird will charge you in advance of your location(s) ride offer being accepted by a Rider, except for Fees for overages, which are charged in arrears.Fees must be paid in U.S. dollars. All amounts paid or payable are non-refundable, non-cancelable and non-creditable, except to the extent you have unused funds available at expiration or earlier termination of this Agreement.We will return those unused funds within thirty (30) days after expiration or termination of this Agreement. Unless otherwise stated, you shall be responsible for and shall pay all Taxes imposed on or with respect to the Services that are the subject of this Agreement. “Taxes” mean all applicable federal, state and local taxes, fees, charges, or other similar exactions, including, without limitation, sales and use taxes, excise taxes, VAT, GST, and other license or business and occupations taxes.If you are paying any Fees by credit card, you shall provide us complete and accurate information regarding the applicable credit card. You represent and warrant that all such information is correct and that you are authorized to use such credit card. You shall promptly update your account information with any changes (for example, a change in billing address or credit card information) that may occur. You hereby authorize us to bill such credit card (a) in advance on a periodic basis, in accordance with the terms of this Agreement and a Ride Offer; and (b) in arrears for any applicable overages, in accordance with the terms of this Agreement and a Ride Offer, and you further agree to pay any and all charges so incurred. You shall maintain, and we shall be entitled, to audit any records relevant to your or any of your Users’ use of the Services hereunder. We may audit such records on reasonable notice at our cost (or if the audits reveal non-compliance with this Agreement, at your cost).
We reserve the right to modify the Fees for the Services, effective upon depletion of your Ride Package Amount, by notifying you in writing of the change in Fees before the end of the then-current account balance.
For any change in the Ride Package Amount, we shall automatically charge you the new Ride Package Amount, effective as of the date the service upgrade is requested and for each subsequent Ride Package Amount pursuant to the billing method applicable to you.Any decrease in a Ride Package Amount shall only take effect upon the next replenishment of your Ride Package Amount.Any change or downgrade of your offer type, from cash to points, may cause the loss of features or capacity of your and your Users’ Accounts. We do not accept, and you agree to hold us harmless for, any liability for such loss.
If a Ride Package Amount cannot be successfully purchased via your payment method and/or you have any outstanding deficit balance in your Freebird Account, Freebird may, in our sole discretion and without limiting our other rights and remedies, suspend your and any of your user’s access to the Services and/or otherwise limit the functionality of the Services until such amounts are paid in full, or terminate the Account. If we suspend, limit, or terminate the Services, then we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any such actions. Additionally, any payments more than five (5) days overdue shall bear a late payment fee of one and one-half percent (1.5%) per month, or, if lower, the maximum rate allowed by law.
You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding any future functionality or features.
This Agreement shall begin on the Effective Date and continue in effect until terminated.If at any time you choose to terminate your offer in the Portal, you may do so by turning your offer “Off” and emailing “support@freebirdrides.com” to delete any location information.Termination will remove your location from the Application.
Freebird may keep any location data needed as it pertains to a fulfilled claim for a Rider within the Application as this is a business transaction that Freebird must keep for auditing purposes.If your business wishes to terminate your account with Freebird and your account still contains funds, Freebird will refund your payment method the remainder of funds on your account.
Termination of Free Accounts for Non-Use. In the case of a free trial or our otherwise providing the Services at no cost to you, we shall have, upon your or any of your users failing to use the Services for more than six (6) consecutive months, the right, in our sole discretion, to (i) terminate all of your Accounts and your User Accounts and terminate your and all your Users’ access to and use of the Services; and (ii) permanently delete all of Your Data from the Services without notice.
7.Trials and Beta Testing
From time to time, we or others on our behalf may offer access to beta models of the Services or trials of paid subscriptions for a specified period without payment or at a reduced rate (each, a “Trial”).We reserve the right, in our absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.
For some Trials, we’ll require you to provide your payment details to start the Trial. AT THE END OF SUCH TRIALS, WE MAY AUTOMATICALLY START TO CHARGE YOU THE APPLICABLE FEES ON THE FIRST DAY FOLLOWING THE END OF THE TRIAL, ON A RECURRING MONTHLY BASIS. BY PROVIDING YOUR PAYMENT DETAILS IN CONJUNCTION WITH THE TRIAL, YOU AGREE TO THIS CHARGE USING SUCH PAYMENT DETAILS. IF YOU DO NOT WANT THIS CHARGE, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR ACCOUNT’S SUBSCRIPTION PAGE OR TERMINATE YOUR ACCOUNT BEFORE THE END OF THE TRIAL. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR ACCOUNT’S SUBSCRIPTION PAGE OR TERMINATE YOUR ACCOUNT BEFORE THE END OF THE RECURRING MONTHLY PERIOD. PAID SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WE WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
IF THE TRIAL CONSISTS OF ACCESS TO A BETA MODEL, YOU ACKNOWLEDGE THAT THE BETA MODEL HAS NOT BEEN FULLY DEVELOPED AND MAY BE SUBJECT TO DEFECTS THAT WOULD BE UNACCEPTABLE IN A FULLY DEVELOPED VERSION.YOU AGREE THAT THE LICENSE GRANTED UNDER A BETA TRIAL IS WITHOUT WARRANTY OF ANY NATURE, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, AS WELL AS NON-INFRINGEMENT, AND ANY OTHER WARRANTY.BETA USERS HAVE NO CLAIM WHATSOEVER AGAINST US FOR ANY REASON WHATSOEVER.
8.License and Acceptable Use
With the exception of information, menus, photographs or logos provided by you, the Freebird Application and Portal and everything on it (collectively, “Materials”) are owned by or licensed to Freebird. Freebird and the Materials are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties and/or other proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the Application and except for the trademarks, service marks, logos and trade names of you or other companies that are or may be displayed on the Application, all trademarks, service marks, logos, trade dress and trade names are proprietary to Freebird. Please be advised that Freebird actively and aggressively enforces its intellectual property rights to the fullest extent of the law.
We grant you a limited, non-exclusive, non-transferable and revocable license to access and use the Application, Services, and/or the Materials, solely as expressly permitted by this Agreement.No Materials may be copied, republished, uploaded, posted, transmitted, distributed in any way, and/or modified without our express written permission. Nothing contained on Freebird or the Freebird portal should be interpreted as granting to you any license or right to use any of the Materials and/or third party proprietary content on the Application without the express written permission of Freebird or the appropriate third-party owner, as applicable.
Freebird reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Application and/or Services.
You have no rights in the Services other than as expressly provided in this Agreement. You may not download any portion of the website or use of any Services other than for your own personal business use. You may not use any data mining, robots, or similar data gathering tools or otherwise exploit your access to the Services for any commercial purpose. You may not use any of the trademarks, logos, or other proprietary graphics without express written permission, which may be denied in Freebird’s absolute discretion. Freebird’s logos and product and service names are trademarks of Mobile Offer. All other trademarks appearing on the website or in connection with the Services are trademarks of their respective owners, and our reference to them does not imply or indicate any approval or endorsement by their owners unless such approval or endorsement is expressly made.
In addition to any other things that might constitute a misuse of the Services, you must not, and must not attempt to do the following things:
You agree that the consequences of any unpermitted commercial use or republication of content or information from Freebird which is not expressly permitted may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy and that Freebird will be entitled to temporary and permanent injunctive relief to prohibit such use.
8.Third-Party Applications
The Services may be integrated with third-party applications, websites, and services, such as Google Maps, Uber, Lyft, and similar tools and applications (“Third Party Applications”) to make available content, products, and/or services to you. These Third-Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third-Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that we do not endorse and are not responsible or liable for the behavior, features, or content of any Third-Party Application or for any transaction you may enter into with the provider of any such Third-Party Applications.
9. Your Account and Collaborators
You are responsible for maintaining the confidentiality and security of your Account and password, and you are fully responsible for all activities or any other actions that occur under or are taken in connection with your password or Account (including any individual user accounts created under your Account). You agree to: (a) use all reasonable precautions to protect the confidentiality and security of your Account and any information provided through Freebird, including, without limitation, (i) restricting access to your Account to authorized personnel, and (iii) ensuring that you sign out of your Account at the end of each session; and (b) immediately notify Freebird of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or any other information provided through your Account. You agree that Freebird will not be liable for, and is hereby released from any and all claims, actions, losses, judgments, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) of any kind arising from or relating to your failure to comply with (a) or (b) of this paragraph or for any acts or omissions by you or someone else using your Account and/or password. You agree to indemnify and hold Freebird harmless from and against any claim related to content, accuracy, or currency of the information you provide through the Services.
The Services may provide you with the opportunity to invite employees, designers, engineers, attorneys, and other service providers (“Collaborators”) to access Your Data and User Content associated with your account.If this functionality is made available to you and you use this functionality, you shall be solely responsible for the actions of your Collaborators.Freebird may limit the number of licensees with whom an individual Collaborator may collaborate and may require a Collaborator to obtain a paid license at any time, Freebird’s sole and absolute discretion.Collaborators are not third-party beneficiaries of this Agreement and are not entitled to any remedies or rights under this Agreement.
9.Confidentiality
9.1 Confidential Information.During the term of this Agreement, each party or its employees, consultants, or agents may receive information of the other party that is proprietary or confidential (“Confidential Information”).Each party agrees to hold the Confidential Information of the other party in confidence and not to disclose such Confidential Information to any third parties except as expressly authorized by this Agreement or to use such Confidential Information for purposes outside the scope of this Agreement. Each party may disclose the Confidential Information of the other party only to its employees, consultants and agents who need to know such Confidential Information for the purposes of this agreement and who are subject to confidentiality obligations at least as protective of the Confidential Information as those set out herein.Each party will advise its employees, consultants and agents of their responsibilities under this Agreement and be responsible for any breach of this section by its employees, consultants or agents.Confidential Information shall not include information that is: (a) part of, or becomes part of, the public domain (other than by disclosure by the receiving party in violation of this Agreement); (b) previously known to the receiving party without an obligation of confidentiality; (c) independently developed by the receiving party outside this Agreement; (d) rightfully obtained by the receiving party from third parties without an obligation of confidentiality; or (e) otherwise addressed in this Agreement.
9.2 Exceptions. Notwithstanding the foregoing, either party may disclose the Confidential Information of the other party to the extent such disclosure is required to comply with applicable law or the valid order or requirement of a governmental or regulatory agency or court of competent jurisdiction, provided that the disclosing party (a) restricts such disclosure to the maximum extent legally permissible; (b) notifies the party to whom the Confidential Information belongs as soon as practicable of any such requirement; and (c) that subject to such disclosure, such disclosed materials shall in all respects remain subject to the restrictions set forth in this Agreement.
9.3 Remedies. The parties acknowledge that their respective Confidential Information is unique and valuable, and that breach by a party of the obligations of this section regarding the other party’s Confidential Information could result in irreparable injury to the other party for which monetary damages alone would not be an adequate remedy.Therefore, the parties agree that in the event of a breach or anticipated breach of this section, the affected party shall be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond.Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
10. Links and Third-Party Rights
Freebird may provide links to other websites or resources. Because we have no control over such sites and resources, you acknowledge and agree that Freebird is not responsible for the availability or content of such external sites or resources.
11.Warranty
Freebird warrants that the Services, with the exception of any beta trial, and all elements thereof do not infringe the intellectual property rights of any third party and agree to hold you harmless and indemnify you with respect to any final judgment obtained by a third party based on a claim that the Services infringe on the intellectual property rights of such third party.Notwithstanding the foregoing, Freebird does not warrant that it owns or has licenses to any building codes made available through the Services, and its agreement to indemnify you does not extend to any claim by a third-party provider that the use of any building codes infringes upon the rights of that third party.
12. Disclaimer of Warranty
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND EVERY ELEMENT THEREOF, INCLUDING WITHOUT LIMTIATION THIRD-PARTY CONTENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FREEBIRD DOES NOT WARRANT OR GUARANTEE THE AVAILABILITY, CURRENCY, COMPLETENESS, ACCURACY, OR TRUTHFULNESS OF ANY INFORMATION PROVIDED BY OR WITH RESPECT TO THE SERVICES.WITHOUT LIMITING THE FOREGOING, FREEBIRD DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE WEBSITE AND/OR DELIVERY OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. Because some jurisdictions may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to Licensee. Any warranties made in this Agreement are for your benefit only.
13.Limitation of Liability
IN NO EVENT WILL FREEBIRD, ITS SUPPLIERS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL FREEBIRD’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT AND USE OF THE SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU DURING THE 12-MONTH PERIOD PRIOR TO SUCH CLAIM ARISING. THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. BECAUSE SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATIONS MAY NOT APPLY.
14. Service Limitations and Modifications
Freebird will make reasonable efforts to keep the Services operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, we reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Services, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Services or any function or feature thereof.You understand and agree that Freebird has no obligation to maintain, support, upgrade, or update the Services, or to provide all or any specific content through the Services. Freebird and/or the owners of any content may, from time to time, remove any such content without notice to the extent permitted by applicable law.
15. Term and Termination; Survival
This Agreement may be terminated by either party upon the breach of any material provision of this Agreement that is not cured within thirty (30) days after notice of breach.However, in the event of termination for any reason, you acknowledge and agree that the perpetual license granted by you in relation to User Content is irrevocable and will therefore continue after expiry or termination of this Agreement. We may terminate this Agreement or suspend your access to the Services at any time, and with or without notice, in the event of your actual or suspected unauthorized use of the Services and/or Content. You may terminate this Agreement at any time, but no event shall you receive a refund of Fees, whether paid in arrears or in advance.
Any provisions of this Agreement that, either explicitly or by their nature, must remain in effect even after termination of the Agreements to give effect to those provisions, shall survive termination.
16.Post-Termination Assistance
For a period of thirty (30) days following termination for any reason, Freebird agrees to provide Your Data to you in a reasonably approved format.If you desire any other assistance to transition to a new provider of similar services, Freebird may do so in its discretion after receipt of reasonable fees at Freebird’s standard hourly rates for the provision of such transition services.
17.Governing Law and Jurisdiction
The Services are operated by Freebird from its offices in California in the United States. The validity, construction, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to choice of law principles. You expressly agree that exclusive jurisdiction for any claim or dispute with Freebird, this Agreement, or relating in any way to your use of the Services resides in the federal and state courts located in the State of California, and you do hereby submit to and consent to jurisdiction and venue in the courts of that state. You agree to waive any defense pertaining to jurisdiction and venue. In the event any provision hereof shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
18. Attorney Fees
In case of an action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
19.Entire Agreement
This Agreement is a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties.
20.Non-Waiver
No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
21.Severability; Binding Effect
If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be impaired. This Agreement shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and assigns.
22.Force Majeure
Freebird will not be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Freebird’s reasonable control.
23.Defense and Indemnification
In addition to the other provisions of this Agreement, you agree to defend Freebird from any actual or threatened third-party claim arising out of or based upon (1) your and your Collaborators’ use of the Services, including without limitation any claim by your client or customer based on the inaccuracy, untimeliness, or incompleteness of any Third-Party data, (2) your failure to comply with any of the provisions of applicable law, and (3) your breach of any of the provisions of this Agreement. In addition, you agree to indemnify, defend, and hold harmless Freebird from and against: (a) all damages, costs, and attorneys’ fees finally awarded against Freebird in any proceeding under this section; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Freebird in connection with the defense of such proceeding (other than when you have accepted defense of such claim); and (c) if any proceeding arising under this section is settled, any amounts to any third party agreed to by you in settlement of any such claims.
24.Communications
When you visit us at www.freebirdrides.com (“Website”) or send e-mails to us, you are communicating with us electronically, and you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on our website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
25.Independent Contractors
The parties to this Agreement are independent contractors, and there is no actual or intended relationship of agency, partnership, joint venture, employment or franchise between the parties. Neither party is an agent of the other party, and neither party has the authority to bind the other party, or to incur any obligation on the other party’s behalf.