Terms & Conditions

BIRDIE

(DRYVE BY BEAUTY, INC.)

TERMS & CONDITIONS OF USE


Effective Date: 1/1/21


These Terms & Conditions of Use (“Terms”) are a legal contract between you (either

you as an individual or the entity or organization on whose behalf you are entering into these

terms and conditions) and Dryve By Beauty, Inc. d/b/a Birdie having its principal office in Dallas, Texas (“DBB,” “we,” or “us”) for the access to and use of: (1) this website, which includes text, media, documentation, pictures and other content (collectively, the “Website”); as well as (2) the access to and use of any services supplied to you by independent contractors of DBB (collectively, the “Services”). Such Services may be supplied to you through the Website or through downloadable “Apps”/applications provided by DBB (collectively, the “Applications”).


By accessing or using the Website, the Services, or the Applications, you agree to be bound

by these Terms, including the warranty disclaimers and limitation of liability provisions

below. If you do not understand or agree to these Terms, do not access or use the Website,

the Services, or the Applications, and please exit the Website and/or the Services and/or the Applications now.


DBB IS NOT A DIRECT PROVIDER OF SERVICES. DBB PROVIDES ACCESS TO

TECHNICIANS THAT ARE INDEPENDENT CONTRACTORS AND IT IS THESE

INDEPENDENT CONTRACTS THAT DIRECTLY PROVIDE THE SERVICES. DBB DOES

NOT SUPERVISE OR MONITOR THE INDEPENDENT CONTRACTORS OR THEIR

PERFORMANCE OF THE SERVICES, AND DBB ASSUMES NO RESPONSIBILITY OR

LIABILITY RELATED TO THE SERVICES PROVIDED BY, OR ACTIONS OF, SUCH

INDEPENDENT CONTRACTORS.


IMPORTANT NOTICE REGARDING ARBITRATION: WITH LIMITED

EXCEPTIONS, YOU AGREE TO RESOLVE ANY DISPUTE WITH US RELATING TO

THESE TERMS THROUGH BINDING, INDIVIDUAL ARBITRATION INSTEAD OF BRINGING A SUIT AGAINST DRYVE BY BEAUTY, INC.


WEBSITE AND APPLICATIONS TERMS & CONDITIONS OF USE IN COURT. PLEASE REVIEW THE “ARBITRATION” SECTION BELOW FOR MORE DETAILS.


IMPORTANT NOTICE REGARDING WAIVER OF OTHER RIGHTS: THE TERMS

INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS. THE

TERMS OF USE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN

THE EVENT OF A DISPUTE.



1. Information You Provide

In addition to these Terms, your use of the Website is governed by our Privacy Policy. You agree

that DBB’s collection, use and sharing of any personal information will be as set forth in the

Privacy Policy, which may be amended by us from time to time. The Privacy Policy and any

posted terms or guidelines are hereby incorporated by reference into these Terms. You agree that we have unlimited rights to any other information that you provide to us and that we may use such information in any way we choose. Such information will be deemed to be non-confidential.


2. Accessing the Website

When retrieving information from the Website, you are prohibited from (a) using or attempting

to use spiders, robots, avatars, intelligent agents, or any other extraction or navigation search

except for a normal browser, (b) aggregating, copying or duplicating any of the materials or

information available from the Website except for the small amount of materials and information

temporarily required for an ordinary single use of the Website, or (c) accessing data not intended

for you.


Use of the Website or the Applications requires the creation of an Account with DBB

(“Account”) and we may require a login and password that you will create (your “ID”). You are responsible for maintaining the confidentiality of your Account and ID, and you are fully and

solely responsible for all activities that occur under your Account and ID. It is up to you to take

adequate precautions with your ID, and to immediately notify DBB of any unauthorized use of

your Account or ID.


By accessing or using the Website, the Services, or the Applications, you expressly agree to the

following:


● You represent and warrant that you are legally entitled to enter into these Terms and to

use the Services.

● You represent and warrant that you are at least 18 years old.

● You shall provide accurate, true and current information as prompted during the account

registration process and shall keep it current at all times.

● You shall not allow any other person or entity to access or use your account.

● You shall comply with all state and local laws of each location in which you access the

Website or use the Services. If for any reason one of your clients feels they need to report you for violation of TDLR regulations, they can do so here.

● You shall only access or use the Website or the Applications with a compatible device or

computer. DBB assumes no responsibility or liability for loss resulting from failure to

comply with this provision.

● You shall be solely responsible for all activity associated with your account, including

any posted data, text, images, audio, video, or any other content (collectively, the

“Content”).

● You represent and warrant that all Content that you post to the Website or submit through

the Applications shall be your wholly original material (except for material that you are

using with the permission of its owner), and does not infringe or violate any copyright,

trademark or other rights of any third party including any rights of privacy or publicity.

● You shall be solely responsible for keeping a duplicate copy of all Content; we do not

accept any responsibility or liability for the loss of your Content.

● You shall not share your password or any other login credentials with any other person or

publicly disclose it.

● You shall not use the Website or Applications for any illegal or unauthorized purpose.

● You shall not duplicate or resell the Applications.

● You acknowledge that, by accessing or using the Website and the Applications, certain

mobile carrier charges may apply, including SMS messaging charges and data charges.

● You shall not transmit worms, viruses or any code of a destructive nature to DBB, other

users, the Website, or the Applications.

● You shall not abuse, harass, threaten, harm or impersonate other DBB users or employees

of any DBB Entities or any of its partners, at any time or for any reason.

● You shall not post Content that is hateful, threatening, pornographic, obscene, abusive,

unlawful, harassing, racially or ethnically offensive, libelous or defamatory, or any

content that encourages unlawful conduct.

● In DBB’s sole discretion, you understand and agree that you may be subject to a vetting

process before they can register for an Account or otherwise use the Services, including

but not limited to verification of identity and address and a criminal background check

using third-party service providers as appropriate. You hereby give consent to DBB to

conduct background checks in compliance with federal and state laws.

● Feedback. If you provide us any feedback or suggestions regarding the Services

(“Feedback”), you hereby assign to us all rights in the Feedback and agree that we will

have the right to use such Feedback and related information in any manner we deem

appropriate. We will treat any Feedback you provide to us as non-confidential and non-

proprietary. You agree that you will not submit to us any information or ideas that you

consider to be confidential or proprietary.

● DBB’s Applications may use GPS locator capabilities to identify your location. You

hereby expressly consent to receive SMS text messages from DBB regarding DBB’s

Services and as otherwise described in our Privacy Policy. The communication standards

for the DBB Services include, but are not limited to: SMS, GPS, and web-based browser

technology.

● In order to use DBB’s Applications, you must maintain an active account with a carrier of

electronic communications through mobile devices. You shall be responsible for all

mobile carrier charges resulting from your use of the DBB’s Website, Applications, or

Services, including from any notifications provided by DBB relating to the Services.

DBB does not guarantee that its Website or Applications will be compatible with all

devices or will be supported by all mobile carriers.

Any use of the Website, the Services, or the Applications in violation of the foregoing violates

these Terms and may result in, among other things, termination or suspension of your rights to

use your ID, the Website, the Services, and/or the Applications. DBB reserves the right to

monitor your use of the Website, the Services, and the Applications to ensure your compliance

with these Terms, or pursuant to a court, administrative, or governmental order. Furthermore, we

reserve the right to deactivate or suspend use of the Website, the Services, or the Applications for any reason.


Payment, Cancellations and Changes to Appointments.

You will be required to provide information on an active and valid credit card when

setting up an Account, and DBB may validate your credit card before activating your

Account or allowing you to use the Services. By providing us with your credit card

number and associated payment information, you agree that DBB is authorized to

immediately invoice your Account for all fees and charges due and payable to us

hereunder and that no additional notice or consent is required. You agree to immediately

notify DBB of any change in your billing address or the credit card used for payment

Hereunder.


The Services are provided for a fee as displayed on the Website or Applications. All fees

are final, non-refundable and payable immediately when due. We have no obligation to

provide refunds or credits, but may grant them, in each case in DBB’s sole discretion.

We rely on third party payment service providers, such as Stripe (each a “PSP”), to

collect payment of fees. You must agree with the PSP’s terms to set up an account with

the PSP or to otherwise use the PSP to pay for the Services; if you don’t, then you may

not use the Services.


Your credit card will automatically be charged the fee for the Services you received or

scheduled upon completion of your appointment. In addition, a tip in the amount of 20%

will be automatically charged to your credit card unless you checkout within (24) hours

of completion of your appointment and select an alternate tip amount or opt not to leave a

tip. After your appointment, DBB may contact you to obtain feedback regarding

your satisfaction with the Services.


If you need to cancel an appointment, for whatever reason, then: (i) if you cancel more

than 24 hours in advance of your appointment, there will be no charge to you, (ii) if you

cancel within 24 hours of your appointment, then we reserve the right to

charge you the full amount of the scheduled Beauty Services.


If you need to change your appointment for any reason, we will do our best to

accommodate your change but cannot guarantee that an Independent Contractor will be

available to provide the requested Services. If you change your appointment location

within one hour of your scheduled appointment time, and the new location is more

than five miles away from the originally scheduled location, then we reserve the right to

charge you a 25% surcharge in the amount of the scheduled Beauty Services. We may

also charge you a 25% surcharge if you change your appointment time by more than 30

minutes within 24 hours of your scheduled appointment.


Modifications to Services and Prices. 

Prices for our products and Services are subject to change without notice. We reserve the right at any time to modify or discontinue Products or Services (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of Products or Service.



Discounts, Promo Codes, Giftcards, Account Credits

Discounts, Promo Codes, Giftcards, and Account Credits (collectively, “Promotions”) are non-transferrable to other persons or appointments and non-redeemable for cash or credit. Promotions cannot be applied to previously scheduled appointments. Promotions cannot be combined. In order to apply a Promotion, you must enter it in the Applications checkout page prior to a service being completed. Promotions may only be applied through the Application. Certain products or services may be excluded from Promotions. See the specific details of the individual Promotion for excluded products or services. In the event that you must reschedule an appointment that has a Promotion applied to it, we reserve the right to transfer the Promotion, but only if the new appointment date/time is within 24 hours of the originally scheduled appointment. Promotions on cancelled appointments are forfeited. 



Products and Services

Certain products or services may be available for purchase through DBB’s Applications. These products or services may have limited quantities and are subject to returns and exchanges only according to our Return Policy as defined on a per product or per service basis.

 

We have made a reasonable effort to display as accurately as possible the colors and images of our products as they appear in person. We cannot guarantee that your computer or phone’s monitor's display of any color will be accurate.

 

We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer.All descriptions of products or product pricing are subject to change at anytime without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer to sell any product or service made on this site is void where prohibited.

 

We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

 

User Comments, Feedback, and Other Submissions

If, at our request, or without a request from us, you send certain specific submissions for example, contest entries, creative ideas, photos, suggestions, proposals, plans, or other materials, whether online, via the Application, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us.We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.

 

We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.

 

You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e‑mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.

 

 

Before and After Photographs

If, at our request, or the request of one of our agents, or Independent Contractors, you verbally consent to a Before or After photograph of your service, you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium.We are and shall be under no obligation (1) to maintain any photographs in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.



3. Intellectual Property Rights

The copyrights and other intellectual property in the Website, the Services, and the Applications

are owned by DBB, its independent contractors, and its licensors. Subject to your compliance

with these Terms, including Section 2 above, you are authorized to view, store, print, copy, and

distribute the pages, data, text, images, audio, video, or other content within the Website or

Applications for the purposes of your use of the Services or considering use of the Services. 


This right is non-transferable and non-sublicensable. All other rights are reserved. In consideration of this authorization, you agree that (a) any copy of these documents which you make shall retain all copyright and other proprietary notices contained in such documents and (b) these Terms are included with any distribution. By posting Content to the Website or submitting Content through the Applications, you hereby grant DBB a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, and display the Content when operating the Website and Applications, and for DBB’s internal business purposes, which include the Services.


Subject to your compliance with these Terms, including Section 2 above, you are authorized to

download and install a single copy of any of the Applications for your personal, non-commercial

use only. This right is non-transferable. All other rights are reserved. You may not sell, transfer,

license, sublicense, or distribute the Applications to any third party and you may not use the

Website, Services or Applications for the purpose of indirectly or directly competing with DBB.


4. Fees

You acknowledge that use of the Website, Services, and Applications may involve fees charged

by DBB. Pricing information displayed on the Website or through the Applications is subject to

change. DBB may increase or decrease fees as it deems necessary. All fees are final, non-

refundable and shall be paid by you immediately when due. Except as expressly stated in these

Terms or on the Website or Applications, DBB has no obligation to provide refunds or credits,

but may grant them, in each case in DBB’s sole discretion. As a user of the Services and

Applications, you agree that you shall: (i) as a condition to requesting Services, provide a valid

credit card or other authorized payment method; and (ii) pay for all Services that you request

from the Website or Applications. You expressly authorize DBB to charge the payment method

you provide for any Services you request. You also expressly authorize DBB to set the prices for

all charges and fees that apply to the provision of such Services. Your selection of the “Confirm”

button on the checkout page is your electronic signature and you agree that (a) this signature is

the legal equivalent of your wet or manual signature and (b) this transaction is equivalent to an

in-person transaction where your payment method is physically present.


Standard SMS and data fees may apply when accessing or using the Website or Applications

from a mobile device. To opt out of SMS notifications associated with the Services or

Applications, please contact DBB at mamabird@bookabirdie.app.


5. Third Party Websites; Third Party Services

The Website or Applications may contain links to third party websites or advertisements that are

not owned or controlled by DBB. DBB has no control over, and assumes no responsibility for,

the content, privacy policies, or practices of any third party websites. In addition, DBB will not

and cannot censor or edit the content of any third party website. By using the Website or the

Applications, you expressly relieve DBB from any and all liability arising from your use of any

third party website. Accordingly, we encourage you to be aware of and to read the terms and

conditions and privacy policy of each other third party website that you visit.


The Website or Applications may be made available to you through third party software or

services not controlled by DBB (e.g., the App Store or Google Play). DBB disclaims all liability

and responsibility for your use of the Website or Applications through any such software or

services. Any use of such software or services is at your own risk and may subject you to

additional or different terms and restrictions by the third party or third parties providing such

software or running such services. Accordingly, we encourage you to be aware of and to read the terms and conditions and privacy policy for each item of third party software or each third-party service through which you access the Website or Applications.


6. INDEMNITY

YOU HEREBY AGREE TO, AND SHALL, INDEMNIFY, DEFEND AND FOREVER

HOLD HARMLESS DBB AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, RELATED COMPANIES, OWNERS, OFFICERS, DIRECTORS, MEMBERS,

EMPLOYEES, AGENTS, ATTORNEYS, REPRESENTATIVES, PARTNERS, AND

LICENSORS (COLLECTIVELY, THE “DBB ENTITIES”) FROM ANY AND ALL

THIRD PARTY CLAIMS, LIABILITY, DAMAGES AND/OR COSTS (INCLUDING

ATTORNEYS’ FEES) ARISING FROM OR RELATED TO (I) YOUR USE OF THE

WEBSITE, SERVICES, OR APPLICATIONS, (II) YOUR VIOLATION OF THESE

TERMS, OR (III) ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY

INTELLECTUAL PROPERTY RIGHT OR OTHER RIGHT OF ANY PERSON OR

ENTITY BY YOU OR ANY OTHER USER OF YOUR USER ACCOUNT. YOU AGREE

TO IMMEDIATELY NOTIFY DBB OF ANY UNAUTHORIZED USE OF YOUR USER

ACCOUNT OR ANY OTHER BREACH OF SECURITY KNOWN TO YOU THAT MAY

AFFECT THE SECURITY OF THE WEBSITE OR APPLICATIONS.


7. Disclaimers; Limitation of Liability

DBB provides information through this Website and the associated Applications. While DBB

has undertaken efforts to provide accurate information, it is not comprehensive and DBB makes

no commitment to update the information at any particular time. As a result, the information may

not be accurate, up to date or applicable to the circumstances of any particular case. Any

decisions you make based on information contained in this Website or the Applications are your

sole responsibility.


THE WEBSITE, SERVICES, AND APPLICATIONS ARE PROVIDED ON AN “AS IS” AND

“AS AVAILABLE” BASIS WITH NO COMMITMENT TO ANY FUTURE

FUNCTIONALITY OR FEATURES. YOU ACKNOWLEDGE THAT YOUR USE OF THE

WEBSITE, SERVICES, OR APPLICATIONS IS AT YOUR OWN RISK. THE WEBSITE,

SERVICES, AND APPLICATIONS ARE PROVIDED WITHOUT WARRANTIES OF ANY

KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-

INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DBB AND THE DBB

ENTITIES DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR

CORRECT; THAT THE WEBSITE, SERVICES, OR APPLICATIONS WILL MEET YOUR

REQUIREMENTS; THAT THE WEBSITE, SERVICES, OR APPLICATIONS WILL BE

AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR

SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE

WEBSITE OR APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL

COMPONENTS. YOUR SOLE REMEDY IN THE EVENT OF ANY DEFICIENCY, ERROR,

OR INACCURACY IN THE WEBSITE OR APPLICATIONS SHALL BE TO REQUEST

THAT DBB CORRECT THE MATTER OR, IF DBB FAILS TO DO SO, TO DISCONTINUE

YOUR USE OF THE WEBSITE, SERVICES, OR APPLICATIONS. ANY CONTENT

DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE

OR APPLICATIONS IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE

SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR DEVICE, OR

FOR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. DBB DOES NOT

WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY

PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH

THE WEBSITE OR APPLICATIONS, OR ANY HYPERLINKED WEBSITE OR SERVICE,

OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND DBB WILL NOT BE

A PARTY TO AND IS NOT RESPONSIBLE IN ANY WAY FOR MONITORING ANY

TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR

SERVICES, INCLUDING ANY INDEPENDENT CONTRACTOR PROVIDING THE

SERVICES.


DBB ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ASSESSING THE ABILITY

OR SUITABILITY OF INDEPENDENT CONTRACTORS, WHO PROVIDE YOU SERVICES AS THIRD PARTIES. YOU EXPRESSLY WAIVE AND RELEASE DBB AND

THE DBB ENTITIES FROM ANY AND ALL LIABILITY, CLAIMS, OR DAMAGES

ARISING FROM INDEPENDENT CONTRACTORS YOU ENCOUNTER THROUGH USE

OF THE WEBSITE, SERVICES OR APPLICATIONS. DBB DISCLAIMS ANY AND

ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ACTS BY INDEPENDENT

CONTRACTORS DURING THE PERFORMANCE OF SERVICES WHICH CAUSE

PERSONAL INJURY, PROPERTY DAMAGE, DEATH, THEFT, DEFAMATION,

DISPARAGEMENT, DISCRIMINATION, BREACH OR INTERFERENCE WITH A THIRD-

PARTY CONTRACT, MISREPRESENTATION, OR OTHER LOSS OR INJURY,

INCLUDING BUT NOT LIMITED TO INTENTIONAL ACTS AND/OR GROSS

NEGLIGENCE. YOU ACKNOWLEDGE THAT DBB OWES NO DUTY OF CARE TO YOU

AND DBB DISCLAIMS ANY AND ASSUMES NO RESPONSIBILITY OR LIABILITY FOR

BREACH OF SUCH A DUTY BY AN INDEPENDENT CONTRACTOR. DBB EXERCISES

NO CONTROL OVER THE SCHEDULES OR AVAILABILITY OF INDEPENDENT

CONTRACTORS AND SHALL NOT BE LIABLE TO YOU FOR ANY LOSSES OR

DAMAGES THAT MAY RESULT FROM ISSUES RELATED TO THE SCHEDULE OR

AVAILABILITY OF AN INDEPENDENT CONTRACTOR. DBB DISCLAIMS ANY AND

ASSUMES NO RESPONSIBILITY OR LIABILITY FOR LOSSES OR DAMAGES

RESULTING FROM DISCLOSURE OF YOUR PERSONAL OR CONFIDENTIAL

INFORMATION BY AN INDEPENDENT CONTRACTOR. DBB DISCLAIMS ANY AND

ASSUMES NO RESPONSIBILITY OR LIABILITY FOR AN INDEPENDENT

CONTRACTOR’S FAILURE TO MAINTAIN OR OBTAIN ANY LICENSES OR PERMITS,

OR LACK OF TRAINING, EXPERIENCE, OR BUSINESS QUALIFICATIONS

NECESSARY TO PROVIDE SERVICES. DBB ASSUMES NO RESPONSIBILITY OR

LIABILITY FOR DISPUTES BETWEEN YOU AND ANY INDEPENDENT CONTRACTOR,

INCLUDING PAYMENT DISPUTES, AND DISPUTES RELATED TO THE METHOD, DETAILS, AND MEANS THAT AN INDEPENDENT CONTRACTOR CHOOSES TO PERFORM SERVICES.


TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DBB ENTITIES

SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,

CONSEQUENTIAL, INTENTIONAL, GROSSLY NEGLIGENT, OR PUNITIVE DAMAGES,

OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR

INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE

LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO

ACCESS OR USE THE WEBSITE, SERVICES, OR APPLICATIONS; OR (B) ANY

CONTENT OBTAINED FROM THE WEBSITE OR APPLICATIONS.


IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL

CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A

GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES

NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF

EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE

MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”


8. Controlling Law; Venue

These Terms and any action related to the access or use of the Website, Services, or Applications shall be governed by the laws of the State of Texas without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings or litigation arising in connection with the Website, Services, or Applications will be brought solely in Dallas County, Texas, subject to the following Arbitration provision, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. 


9. Arbitration

In consideration of your access to the Website, Services, and Applications set forth herein, you

hereby consent and agree that any dispute, controversy, or claim against DBB or the DBB

Entities, and whether arising under federal, state, local statutory, common law, or contract law,

including, but not limited to, breach of contract, tort, negligence, gross negligence, fraud, and/or

the construction, interpretation, or application of the Terms, must be submitted to binding

arbitration on the written request of DBB or the DBB Entities. Arbitration shall be the exclusive

forum for any and all such controversies. For example, if you and DBB have a dispute

concerning the interpretation or enforceability of one or more of the Terms, the parties will

resolve the dispute exclusively through arbitration. However, if for any reason a Dispute

proceeds in court rather than in arbitration, you and we each waive any right to a jury trial.

The Arbitrator’s decision shall be final and binding on both parties. The arbitration shall comply

with, be governed by, and be settled under the American Arbitration Association’s Commercial

Arbitration Rules by one or more arbitrators appointed in accordance with the said Rules. The

parties also agree that the American Arbitration Association Optional Rules for Emergency

Measures of Protection (“Emergency Rules”) shall apply to proceedings brought by either party.

The above Rules and Emergency Rules can be found at the following page of the American

Arbitration Association’s website, www.adr.org. You acknowledge that you should read these

Rules and Emergency Rules and that it is your responsibility to be familiar with them prior to

agreeing to these Terms.


If any claim or cause of action at law or in equity is filed by in any state or federal court which

results in arbitration being compelled and/or the claim or cause of action being dismissed, stayed, and/or removed to arbitration pursuant to this Agreement, the party who instituted the claim or cause of action in state or federal court, either wholly or in substantial part, shall, at the

discretion of the Arbitrator(s), reimburse the respondent for its reasonable attorneys’ fees, costs,

and necessary disbursements to the extent permitted by law, in addition to any other relief to

which it may be entitled, related to the state or federal court claim or action.

This Agreement and its enforcement shall continue to be governed by and construed in

accordance with the laws of the State of Texas. The Federal Arbitration Act (“FAA”) will

supersede state laws to the extent inconsistent. Any claim(s) involving the construction or

application of this Agreement must be submitted to arbitration within the statute of limitations

period for such claim(s) under Texas state law and shall be dismissed if the statute of limitations

period is not met. The Arbitrator(s) shall have no authority to apply the law of any other

jurisdiction. The Arbitration shall take place in Dallas County, Texas, United States of America,

and shall be in English.

Excluding the initial filing fee, which shall be borne by the claimant, the cost of arbitration shall

be borne by DBB, unless the Arbitrator determines that any claim(s) brought against DBB or the

DBB entities was/were wholly frivolous or fraudulent.

The dispute shall be heard and determined by one Arbitrator, unless both parties mutually

consent in writing to a panel of three (3) Arbitrators. Unless both parties mutually consent

otherwise, the parties agree and request that the Arbitrator(s) issue a reasoned award in

accordance with Commercial Arbitration Rule R-42(b).


WAIVER OF CLASS ACTION CLAIMS. ANY CLAIMS BROUGHT BY YOU OR US

MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE

PROCEEDING; THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE

PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A

REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE

RELIEF.


As limited exceptions to above Arbitration provision: (i) you may seek to resolve a

Dispute in a Texas small claims court if the dispute qualifies; and (ii) we each retain the right to

seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or

misappropriation of our intellectual property rights.


Starting Arbitration. If you want to begin arbitrating a Dispute, you must send a certified letter to

us at 3902 Elm St. Dallas, TX 75226 requesting arbitration and describing the Dispute.

If we want to begin arbitrating a Dispute, we’ll send such a letter to you at the email address or

street address that you provided.


10. Entire Agreement; No Third Party Beneficiaries

These Terms and our Privacy Policy are the entire and exclusive agreement between DBB and

you regarding access to and use of the Website, Services, and Applications, and these Terms

supersede and replace any prior agreements between DBB and you regarding access to and use of the Website, Services, and Applications. These Terms may not be modified orally. Absent a written agreement signed by DBB, you may not alter these Terms by adding, deleting, or modifying such in any written correspondence, notes, or order information submitted to DBB by you. To access these Terms as an electronic record you will need the following hardware and software: an internet-connected device and a compatible browser such as Internet Explorer 6 or later, Safari 6.1.6 or later, Chrome 32 or later, or Firefox 30 or later. We recommend that you download and store a copy of these Terms and our Privacy Policy.


If for any reason a court of competent jurisdiction finds any provision of these Terms or portion

thereof to be unenforceable, that provision shall be enforced to the maximum extent permissible

so as to effect the intent of these Terms, and the remainder of these Terms shall continue in full

force and effect. No waiver by us of any breach or default hereunder shall be deemed to be a

waiver of any preceding or subsequent breach or default. We may revise these Terms from time

to time, and the most current version will always be at www.bookabirdie.com. By continuing to access or use the Website, the Services, or the Applications after those revisions become effective, you agree to be bound by the revised terms. We do not assume any obligation to notify you of changes to these Terms.


The headings used in these Terms are for convenience only and have no legal meaning or effect. Terms defined in the singular have the corresponding meanings in the plural, and vice versa. Unless the context of these Terms clearly requires otherwise, words importing the masculine gender include the feminine and neutral genders and vice versa. The terms “include,” “includes” or “including” mean “including without limitation.” The words “hereof,” “hereto,” “hereby,” “herein,” “hereunder” and words of similar import, when used in these Terms, refer to these Terms as a whole and not to any particular section or article in which such words appear. The word “or” will not be construed as exclusive.


Other than the DBB Entities (solely for purposes of Sections 6 and 7), no other persons or

companies will be third party beneficiaries to these Terms.


THESE TERMS MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,

CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN DBB AND

YOU. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN DBB AND YOU.



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