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HomeAbout Usterms


LEGAL RESOURCES


EFFECTIVE STARTING SEPTEMBER 1, 2023.

These Terms and Conditions (“Terms”) are entered into by and between BirdEye,
Inc. or its Affiliate identified in the Order Form or Statement of Work
(“BirdEye”), with its principal place of business at 2479 E Bayshore Rd, Suite
#188, Palo Alto, CA 94303, and the entity agreeing to these Terms or any Order
Form or Statement of Work (“Client”). The parties agree as follows:

Quick Links
 * Terms & Conditions
 * Privacy Policy
 * Generative AI Policy
 * Acceptable Use Policy

1. TERMS & CONDITIONS

1.1 Provision of Services. BirdEye will provide its subscription service through
the BirdEye Customer Experience & Reputation Marketing platform (the
“Subscription Service”), and any professional services in relation to the
implementation of the Subscription Service (the “Professional Services”; the
Subscription Services and Professional Services may hereinafter be generally
referred to as the “Services”) in accordance with these Terms and any terms and
conditions provided for in a customer agreement, reseller agreement or order
form for the Subscription Service (all such documents maybe be referred to as an
“Order Form”) or a statement of work for the delivery of Professional Services
(“Statement of Work”). Client understands, acknowledges and agrees that
onboarding and implementation of the Services may take up to 2 hours over a 4
week period of time. Client’s reasonable and timely participation in the
onboarding process is a vital component of delivering the Services and any
delays in this process caused by Client will not affect the duration of any
agreement and will not provide a basis for non-payment or termination.

1.2 Third Party Sites. To the extent that Client requests or otherwise cause the
Subscription Service to be integrated with, or make use of data from, other
websites or services (e.g., Facebook, Google+ and Twitter) (“Third Party
Sites”), Client agrees that BirdEye does not have control over the terms of use,
privacy policies, operation, intellectual property rights, performance, service
levels or content of any Third Party Sites; and BirdEye disclaims all
responsibility and liability for any use of Third Party Sites. The Services
incorporate or make the use of certain third party software (“Third Party
Software”), which is licensed subject to the terms and conditions of the third
party licensing such Third Party Software. Nothing in these Terms limits
Client's rights under, or grants Client rights that supersede, the terms and
conditions of any applicable license for such Third Party Software. Such Third
Party Software includes but is not limited to the following software and
services and by use of the Services, Client agrees to be bound by the terms of
said Third Party Software: Google https://policies.google.com/terms?hl=en-US,
Facebook https://www.facebook.com/legal/terms, Twitter
https://www.twitter.com/tos, Youtube https://www.youtube.com/t/terms, Twilio
https://www.twilio.com/legal/tos, LinkedIn
https://www.linkedin.com/legal/user-agreement.

Using Third Parties For Reviews. Client understands that in order for its
customers, end users or others to leave a review about its product or services
on Google, Facebook, Twitter and similar third party sites, it may be required
to have an active, registered account on the relevant third party platform.

1.3 Subscription Service Content. During Client's use of the Subscription
Service, Client may receive data generated by the Subscription Service. Client
may display such generated data on Client's website but may not modify the data
or otherwise use it for any other purposes, including without limitation
analytics purposes, without BirdEye’s prior express written approval. For
purposes of clarification, data generated by the Subscription Service may
include data and content that is owned or licensed by a third party, and
Client's use of such third party data and content is limited further by such
third party’s applicable license terms and web site terms of use. BirdEye hereby
disclaims responsibility and/or liability in full for Client’s use of any such
third party data and content under these Terms.

1.4 Obligations With Respect to Third Party Sites. When using the Services,
Client agrees to adhere to the Terms of Service of all major review sites. This
includes but not limited to Google, Facebook, Yelp, and other review sites.

 * Review gating: Client's use of the BirdEye platform cannot implement any form
   of review gating. Review gating is a process where companies send a message
   to customers asking if their experience was positive or negative. Those who
   had a positive experience are directed to leave an online review. Those who
   had a negative experience are typically sent to a form to leave comments that
   are not made public.
 * When soliciting reviews using the BirdEye platform, Client must provide all
   recipients the same options to provide feedback, regardless of their
   sentiment. This applies to review requests sent via standard review
   templates, custom email templates, and surveys.
 * Sites prohibiting solicitation of reviews: Client's use of the BirdEye
   platform will fully comply with sites such as Yelp that prohibit review
   solicitation, and Client will not misuse the BirdEye platform to bypass
   review sites’ policies.
 * Failure to comply with 3rd Party Review site policies: If Client attempts to
   circumvent the Terms of Service of 3rd party review sites, BirdEye will
   notify Client and allow Client 30 days to take corrective action. Should
   Client fail to comply within the 30-day notice period, Client's account will
   be suspended from BirdEye.

1.5 TCPA and 10DLC Compliance.

a. TCPA: To the extent required by law and as applicable to the parties, the
parties shall comply with the Telephone Consumer Protection Act, 47 U.S.C. § 227
(the “TCPA”). Client will be solely responsible for complying with any messaging
consent obligations under the TCPA and TSR in the course of accessing and using
the BirdEye Services. Client is responsible for obtaining explicit consent(s)
from any and all third parties (including Client's customers) to send and
receive SMS and/or emails using the BirdEye Services. BirdEye shall have the
same obligation to obtain third party consent for all parties from which it is
directly obtaining their phone number(s).

b. 10DLC: You understand that if you are using certain SMS-related Services, you
are responsible for complying with A2P 10DLC, including but not limited to
registration and obtaining customer opt in. BirdEye reserves the right to pass
carrier 10DLC fees on to you which you agree BirdEye may collect from you using
your authorized payment method. Client authorizes BirdEye to act as its legal
representative in the 10DLC registration process when such representation is
necessary to provide or enhance the Services.

You understand and agree that in order to use any texting or text-based products
or features in or through the Services, you must maintain your A2P 10DLC
registration by paying the one time registration fee and ongoing text (or,
“campaign”) fees for the duration of your use of any such Services. If you are
entering into an online or self-serve contract for a small business, the
registration fee and ongoing text fees may be combined in one line item on your
contract shown as “Carrier Texting Fees”.

Each party is liable for, and shall indemnify, defend and hold harmless the
other party from and against any and all damages, liabilities, judgments, fees,
fines, costs and expenses (including reasonable attorneys’ fees) incurred by the
non-breaching party arising from any claims, demands or legal actions made
against it resulting from Client's breach of this Section 1.5.



1.6 Account Protection. In the event that Client become aware that the security
of Client's login information has been compromised or breached, Client must
immediately deactivate such account or change the account’s login credentials.
Additionally, Client shall promptly deactivate the account or change the login
credentials for any individual (e.g., former employee) that no longer is
authorized by Client to access the Subscription Service.

1.7 Fair Use. BirdEye’s priority to its customers is to keep the Services
available and running at optimal speed, which requires each customer to use the
Services fairly and reasonably so as to not affect the access or use by other
customers. The Services include broad access to a variety of resources such as
bandwidth, API requests, and storage which are not unlimited (unless expressly
stated as such in a Customer Agreement, Order Form or other agreement) or the
overuse of which would affect the stability of the BirdEye platform, including
but not limited to the Services, which is why we have this fair use clause
(“Fair Use Policy” or “FUP”). Fair use will be considered the processing of 3
times the average number of requests or processed transactions per Location (as
that term is defined in a Customer Agreement, Order Form or other written
agreement) for other BirdEye customers in the same or similar industry. If
BirdEye determines Client's use of the Services is in violation of its Fair Use
Policy, in its sole reasonable discretion, it may take unilateral action
regarding Client's use of the Services including, but not limited to, limiting
the frequency of access to the Services or limiting the number of processed
requests through the Services in order to bring usage in line with this FUP.
BirdEye also reserves the right to invoice Client for use of the Services in
violation of the FUP. Client understands, acknowledge and agree that BirdEye
will have no liability to Client or any of Client's users for enforcing this FUP
and enforcement will not affect Client's obligations under these terms which
includes the payment of fees for the Services.

1.8 Client’s Restrictions on Use of Services.Client agrees not to do any of the
following while using the Site, Services or BirdEye Content:

 * Access, post, submit or transmit any text, graphics, images, software, music,
   audio, video, information or other material that: (i) infringes,
   misappropriates or violates a third party’s patent, copyright, trademark,
   trade secret, moral rights or other intellectual property rights, or rights
   of publicity or privacy; (ii) violates, or encourages any conduct that would
   violate, any applicable law or regulation or would give rise to civil
   liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is
   defamatory, obscene, vulgar or offensive; (v) constitutes child pornography
   or child erotica; (vi) promotes discrimination, bigotry, racism, hatred,
   harassment or harm against any individual or group; (vii) is violent or
   threatening or promotes violence or actions that are threatening to any other
   person; or (viii) promotes illegal or harmful activities or substances
   (including, but not limited to activities that promote or provide
   instructional information regarding the manufacture or purchase of illegal
   weapons or illegal substances).
 * Use, display, mirror, frame or utilize framing techniques to enclose the Site
   or Services, or any individual element or materials within the Site or
   Services, BirdEye’s name, any BirdEye trademark, logo or other proprietary
   information, the content of any text or the layout and design of any page or
   form contained on a page, without BirdEye’s express written consent;
 * Access, tamper with, or use non-public areas of the Site or Services,
   BirdEye’s computer systems, or the technical delivery systems of BirdEye’s
   providers;
 * Attempt to probe, scan, or test the vulnerability of any BirdEye system or
   network or breach any security or authentication measures;
 * Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent
   any technological measure implemented by BirdEye or any of BirdEye’s
   providers or any other third party (including another user) to protect the
   Site, Services or BirdEye Content;
 * Attempt to access or search the Site, Services or BirdEye Content or download
   BirdEye Content from the Site or Services through the use of any engine,
   software, tool, agent, device or mechanism (including spiders, robots,
   crawlers, data mining tools or the like) other than the software and/or
   search agents provided by BirdEye or other generally available third party
   web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or
   Opera);
 * Send any unsolicited or unauthorized advertising, promotional materials,
   email, junk mail, spam, chain letters or other form of solicitation;
 * Use or access the Services for the purpose of, or resulting in, the posting,
   publication, distribution or transmission of defamatory material or content;
 * Send any emails or text communications for purposes of marketing or promoting
   non-federally legalized products or services or if such communications are
   barred by relevant industry associations. For example, Client will not send
   text messages through the Services if Client is in the cannabis industry, the
   firearms business or any other illegal or association-prohibited industry;
 * Use any meta tags or other hidden text or metadata utilizing an BirdEye
   trademark, logo URL or product name without BirdEye’s express written
   consent;
 * Use the Site, Services or BirdEye Content for the purpose of bringing an
   intellectual property infringement claim against BirdEye or for the purpose
   of creating a product or service competitive with the Services;
 * Forge any TCP/IP packet header or any part of the header information in any
   email or newsgroup posting, or in any way use the Site, Services or BirdEye
   Content to send altered, deceptive or false source- identifying information;
 * Attempt to decipher, decompile, disassemble or reverse engineer any of the
   software used to provide the Site, Services or BirdEye Content;
 * Interfere with, or attempt to interfere with, the access of any user, host or
   network connected to the Site or Services, including, without limitation,
   sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
 * Collect or store any personally identifiable information from the Site or
   Services from other users of the Site or Services without their express
   permission;
 * Impersonate or misrepresent Client's affiliation with any person or entity;
 * Violate any applicable law or regulation;
 * Develop or build products which perform substantially similar to the Services
   for the Term of this Agreement and the 12 month period thereafter; or
 * Encourage or enable any other individual to do any of the foregoing.

BirdEye will have the right to investigate and prosecute violations of any of
the above, including intellectual property rights infringement and Site and
Services security issues, to the fullest extent of the law. BirdEye may involve
and cooperate with law enforcement authorities in prosecuting users who violate
these Terms. Client acknowledges that BirdEye has no obligation to monitor
Client's access to or use of the Site, Services or BirdEye Content or to review
or edit any User Content, but has the right to do so for the purpose of
operating the Site and Services, to ensure Client's compliance with these Terms,
or to comply with applicable law or the order or requirement of a court,
administrative agency or other governmental body. BirdEye reserves the right, at
any time and without prior notice, to remove or disable access to any BirdEye
Content and any User Content, that BirdEye, in its sole discretion, considers to
be in violation of these Terms or otherwise harmful to the Site or Services.


2. FEES AND PAYMENT

2.1 Fees. Client shall pay BirdEye the undisputed fees in the currency and as of
the date set forth in each Order Form or Statement of Work. Client’s payments
under these Terms are due net thirty (30) days from Client’s receipt of
BirdEye’s invoice unless agreed otherwise by the Parties in the applicable Order
Form or Statement of Work. All fees are exclusive of applicable sales, excise,
value-added or use taxes. Except for income taxes levied on BirdEye’s net
income, Client shall pay or reimburse BirdEye for all national, federal,
provincial, state, local or other taxes and assessments of any jurisdiction,
which are legally payable by Client for charges set, services performed or to be
performed, or payments made or to be made hereunder. Client shall not be
entitled to deduct the amount of any such taxes, duties or assessments from
payments made to BirdEye under these Terms. This provision shall survive the
termination of these Terms and shall be applicable regardless of the time frame
in which the requirement of the payment of such taxes or assessments is asserted
(e.g. a deficiency assessment by a taxing authority as a result of an audit
after the termination of these Terms). Client will notify BirdEye of any invoice
dispute within thirty (30) days of receipt of invoice, at which time the parties
will engage in good faith efforts to resolve the dispute.

2.2 Late Payments. Client's failure to pay undisputed fees when due constitutes
a material breach of these Terms. If payment is not made within thirty (30) days
of when it is due, BirdEye may, in its sole discretion, choose to do any or all
of the following: (i) charge Client a late fee on the unpaid balance at the
lesser of one and one-half percent (1.5%) per month or the maximum lawful rate
permitted by applicable law, rounded to the next highest whole month and
compounded monthly; and/or (ii) suspend Client's access to the Subscription
Service and/or the delivery of the Professional Services. BirdEye’s suspension
or resumption of the Subscription Service or Professional Services does not
limit or prevent BirdEye from pursuing all other remedies available.

2.3 Auto Renew. If you have entered into an agreement for Services with BirdEye,
the agreement will auto renew in compliance with applicable law as further set
forth herein. Unless otherwise noted in the Order Form or Statement of Work, any
agreement for Services will auto renew for the same period of time as the
initial term of the agreement unless written notice of non-renewal is provided
to BirdEye at least 90 days prior to the date of renewal.


3. PROPRIETARY RIGHTS

3.1 Ownership; License; Retained Rights. BirdEye owns all right, title, and
interest in and to the Subscription Service, including, without limitation, all
modifications, improvements, enhancements, integrations, upgrades, derivative
works, and feedback related thereto and all intellectual property rights therein
(“Rights”), and any and all Rights developed as part of the delivery and receipt
of the Professional Services. BirdEye grants Client a limited, revocable,
royalty-free, non-exclusive, non-transferable license to use the Subscription
Service, and any deliverables developed pursuant to the delivery of Professional
Services hereunder in relation to Client's use of the Service, for the term of
the applicable Order Form or Statement of Work. All rights not expressly granted
to Client hereunder are reserved by BirdEye.

3.2 Restrictions. Unless otherwise permitted in writing by BirdEye, Client may
not, and may not permit any third party to, (i) copy, reproduce, modify,
translate, prepare derivative works of, de-compile, reverse engineer,
disassemble or otherwise attempt to derive source code from the Subscription
Service; (ii) use, evaluate or view the Subscription Service for the purpose of
designing or creating a product or service competitive to BirdEye’s products or
services; and/or (iii) resell or use the Subscription Service in a service
bureau.

3.3 Data Collection, Ownership, and Use.

3.3.1 Client Data. During the term of this Agreement or any Order Form or
Statement of Work, Client grants BirdEye a limited, non-exclusive, royalty-free,
revocable, world-wide license to use and disclose, as necessary to provide the
Subscription Service and Professional Services, all information submitted by
Client and Client's end users in connection with Client's use of the
Subscription Service (e.g., Personal Data, submitted content, product
information included in feeds, transaction detail information such as unit
prices and cart values, and survey data) (“Client Data”). Client owns all Client
Data. Nothing contained herein shall be construed as granting BirdEye ownership
in any Client Data. Client hereby give BirdEye a non-revocable, worldwide,
royalty right to use aggregated or anonymized Client Data for internal
evaluation purposes only; BirdEye will never market or sell Client Data to any
third party.

Client understands, acknowledges and agrees that BirdEye may only be able to
access its Client Data through managed services (or, “Managed Services”) in
order to provide the Services. In order for BirdEye to perform the Managed
Services, Client agrees to provide BirdEye with login credentials to its CRM.
Furthermore, the Managed Services process involves a member of the BirdEye team
logging into the CRM, downloading a report that will include Client Data and
then uploading said Client Data to the BirdEye platform. If being utilized, the
Managed Services will be performed weekly as a default although Client can
request that the timing be adjusted to as short a time as 48 hours upon
reasonable request. All personnel are subject to in-depth, annual privacy and
data security training and assessments.

3.3.2 BirdEye Data. All data generated, stored or collected by BirdEye
technologies which is not Client Data is owned by BirdEye (“BirdEye Data”).
BirdEye Data includes, but is not limited to, all review data posted to a
BirdEye microsite. Client shall have a limited, perpetual license to use such
BirdEye Data generated by the Subscription Service, subject to Section 3.3.3 of
these Terms.

3.3.3 Third Party Data. Data generated by the Subscription Service may include
data and content that is owned or licensed by a third party, and Client's use of
such third party data and content is limited by such third party’s applicable
license terms and web site terms of use. BirdEye hereby disclaims responsibility
and/or liability in full for Client’s use of any such third party data and
content under this Terms. Such third party data and content will be promptly
destroyed, and Client shall otherwise no longer have access to such third party
data and content, upon termination of these Terms or termination of the
applicable Order Form or Statement of Work.

3.4 Privacy Policy; Personal Data; Security.The collection, use and storage of
Personal Data (as defined in the DPA) through BirdEye’s website is governed by
BirdEye’s privacy policy located at Privacy Policy, (“Privacy Policy”). If
Client's use of the Subscription Service requires BirdeEye to process Personal
Data, BirdEye will process Personal Data subject to BirdEye’s Data Processing
Addendum located at https://cdn2.birdeye.com/version2/pages/terms/BirdeyeDPA.pdf
(“DPA”). The Privacy Policy and DPA, are incorporated into these Terms in their
entirety.

During the term of this Agreement, BirdEye shall maintain a security program
materially in accordance with industry standards that is designed to: (i) ensure
the security of Client Data; (ii) protect against threats or hazards to the
security or integrity of Client Data; and (iii) prevent unauthorized access to
Client Data. If either party believes that there has been a security breach
involving Client Data, such party must promptly notify the other party, unless
legally prohibited from doing so. Additionally, each party will reasonably
assist the other party in mitigating any potential damage arising from any such
security breach. As soon as reasonably practicable after any such security
breach, BirdEye shall conduct a root cause analysis and, upon request, will
share the results of its analysis and its remediation plan with Client.

3.5 Confidential Information. “Confidential Information” means any information
disclosed by either party to the other party, either directly or indirectly, in
writing, orally, or by inspection of tangible objects (i) that the disclosing
party identifies as confidential or proprietary; or (ii) that reasonably appears
to be confidential or proprietary because of legends or other markings, the
circumstances of disclosure, or the nature of the information itself (for
avoidance of doubt, neither party shall be required to identify information as
confidential in order to avail itself of the protections set forth in this
Section 3.5). The parties acknowledge that the Subscription Service and
Professional Services, the terms of these Terms and any Order Form or Statement
of Work, and any other proprietary or confidential information provided to the
other party constitute valuable proprietary information and trade secrets of
BirdEye and the Client, respectfully. Each party agrees to preserve the
confidential nature of the other party’s Confidential Information by retaining
and using the Confidential Information in trust and confidence, solely for its
use as permitted and in connection with these Terms, and by using the same
degree of protection that such party uses to protect similar proprietary and
confidential information, but in no event less than reasonable care. Each party
will have the right to seek an injunction to prevent any breach or continued
breach of this section. The receiving party agrees to promptly report any
breaches of this section to the disclosing party. Notwithstanding the foregoing,
Confidential Information does not include any information which (i) is now, or
becomes, through no act or failure to act on the part of the receiving party,
generally known or available to the public without breach of these Terms by the
receiving party; (ii) was independently developed, or otherwise acquired, by the
receiving party without restriction as to use or disclosure before receiving
such information from the disclosing party, as shown by the receiving party's
files and records immediately prior to the time of disclosure; or (iii) is
obtained by the receiving party without restriction as to use or disclosure by a
third party authorized to make such disclosure.

4. WARRANTY; LIMITATIONS OF LIABILITY; INDEMNITY

4.1 BirdEye Warranty. BirdEye represents and warrants that (i) it has all right,
title, and interest necessary to provide the Subscription Service and
Professional Services to Client under the terms set forth in these Terms and
each Order Form or Statement of Work; (ii) the Subscription Service will perform
materially in accordance with the terms of this Agreement; (iii) the
functionality of the Subscription Service will not be materially decreased
during the term of this Agreement; (iv) BirdEye shall use industry standard
virus protection designed to prevent any viruses, time bombs or other disabling
code from the Subscription Service; and (v) it shall comply with all laws
applicable to it in its provision of the Subscription Service. Additionally,
BirdEye shall perform the Professional Services in a professional and
workmanlike manner in accordance with applicable industry standards.

4.2 Client's Warranty. Client represents and warrant that (i) Client have any
and all consents and authorizations as may be necessary for the Client to
receive the Subscription Service and/or Professional Services; (ii) each of the
sites where the Subscription Service is deployed contains a privacy policy that
discloses the usage of third-party technology and the data collection and usage
resulting from the Subscription Service (it being understood that this clause
will not be deemed to require those privacy policies to expressly identify
BirdEye or any Subscription Service, unless otherwise required by law, rule or
regulation) and complies with all applicable privacy laws, rules and
regulations; (iii) Client's websites upon which the Subscription Service is
deployed do not contain any material which is defamatory, promotes illegal
activity, or contains hate speech; and (iv) Client have legally obtained
necessary ownership or license rights to any Client Data, including Personal
Data, and that Client have any waivers and/or opt-in agreements in place with
authorized users and Client customers that are required by applicable law in
relation to the communications to be sent to such users and customers by BirdEye
and the Subscription Service under this Terms.

4.3 Warranty Disclaimer. EXCEPT AS SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL
OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL OR
WRITTEN) WITH RESPECT TO THE SERVICES OR ANY SUPPORT RELATED THERETO, INCLUDING
ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING
FROM A COURSE OF DEALING. BIRDEYE DOES NOT WARRANT, OR OTHERWISE PROMISE, THAT
THE USE OF ITS SERVICES WILL INCREASE CLIENT’S RANKING POSITIONS ON GOOGLE OR
ANY OTHER SEARCH ENGINE.

4.4 Limitations of Liability. EXCEPT AS SET FORTH BELOW, THE LIMITATIONS OF
LIABILITY IN SECTIONS 4.4.1 AND 4.4.2 WILL APPLY IRRESPECTIVE OF ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND ALSO APPLY REGARDLESS OF THE LEGAL
OR EQUITABLE THEORY ON WHICH DAMAGES ARE SOUGHT. IN NO EVENT WILL THE
LIMITATIONS APPLY TO THE AMOUNTS DUE FOR SERVICES UNDER THE TERMS. BOTH PARTIES
SHALL USE REASONABLE EFFORTS TO MITIGATE THE DAMAGES FOR WHICH THE OTHER PARTY
IS RESPONSIBLE. HOWEVER, IN NO EVENT WILL THE LIMITATIONS APPLY TO THE EXTENT
PROHIBITED BY APPLICABLE LAW.

4.4.1 No Special Damages. EXCEPT FOR CLAIMS ARISING OUT OF GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT, NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR LOSS OF
INFORMATION, OF ANY PARTY, INCLUDING THIRD PARTIES, REGARDLESS OF WHETHER SUCH
PARTY WAS ADVISED OF THE POSSIBILITY OF THE FOREGOING.

4.4.2 Liability Cap. EXCEPT FOR CLAIMS ARISING OUT OF A PARTY’S GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT, INDEMNITY OBLIGATIONS OF THESE TERMS WITH RESPECT TO
CLIENT'S OBLIGATION TO PAY UNDISPUTED FEES UNDER THESE TERMS, IN NO EVENT WILL
THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY UNDER THIS Terms EXCEED THE
AGGREGATE FEES PAID OR PAYABLE BY EITHER PARTY UNDER THESE TERMS DURING THE
TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM
AROSE.If Client is located in Australia, pursuant to section 64A of the
Australian Consumer Law (as set out in Schedule 2 to the Competition and
Consumer Act 2010 (Cth) (“CCA”)), if and to the extent that Client have acquired
the Service as a ‘consumer’ (as defined in section 3 of the Australian Consumer
Law), BirdEye’s liability to Client under each of sections 60, 61 and 62 of the
Australian Consumer Law is limited to either supplying the Services again or
payment of the cost of having the Services supplied again. Nothing in these
Terms excludes, restricts or modifies or purports to exclude, restrict or modify
any guarantee that applies pursuant to the Australian Consumer Law or any other
provision of the CCA which cannot be lawfully excluded, restricted or modified.

4.5 Client's Indemnity. Client shall indemnify, defend, and hold harmless
BirdEye, its officers, agents, and employees against all losses, damages,
liabilities, costs, and expenses (including but not limited to reasonable
attorneys’ fees), resulting from any judgment or proceeding, or any settlement
Terms, from a third party’s claim that arises out of a third party’s claim that
Client's website on which the Subscription Service is provided or any
application Client develop infringes any intellectual property rights.

4.6 BirdEye Indemnity. BirdEye shall indemnify, defend, and hold harmless
Client, Client's officers, agents, and employees against all losses, damages,
liabilities, costs, and expenses (including but not limited to reasonable
attorneys’ fees), resulting from any judgment or proceeding, or any settlement
Terms, from a third party’s claim that the Subscription Service, as provided by
BirdEye to Client within the scope of this Terms, infringe any intellectual
property rights. BirdEye has no obligation to indemnify Client for a claim of
infringement to the extent it arises from: (i) infringing matter supplied or
developed solely by Client; (ii) unauthorized modifications or uses of the
Subscription Service; or (iii) Client's acts or omissions not in accordance with
the terms of this Agreement. If Client's use of the Subscription Service is
enjoined or is likely to be enjoined due to a third party claim of infringement
for which BirdEye is required to indemnify Client under these Terms then BirdEye
may, at its sole cost and expense and within its sole discretion, do one of the
following: (x) procure for Client the right to continue using the Subscription
Service; (y) replace or modify the enjoined Subscription Service to make it
non-infringing but functionally equivalent; or (z) terminate the enjoined
Subscription Service and return any fees paid for enjoined Subscription Service
not yet rendered.

4.6.1 The indemnification obligations set forth in this Section 4.6 are
BirdEye’s sole and exclusive obligations with respect to any infringement
claims.

4.7 Indemnification Conditions. The indemnification obligations contained in
these Terms are conditioned upon: (a) prompt notice by the indemnitee to the
indemnitor of any claim, action or demand for which indemnity is claimed
(failure to meet this condition does not exempt the indemnitor of its
indemnification obligation, except to the extent that failure has materially
prejudiced the indemnitor’s ability to defend the claim); (b) sole control of
the defense and settlement by the indemnitor; and (c) reasonable cooperation by
the indemnitee in the defense as the indemnitor may request. The indemnitee has
the right to participate in the defense against the indemnified claims with
counsel of its choice and at its own expense but may not confess judgment, admit
liability or take any other actions prejudicial to the defense. Further, the
indemnitee may not settle an indemnified claim unless the indemnitor has
declined to defend.

4.8 Proportional Liability. Each indemnitor’s liability to pay or reimburse any
indemnified claim is limited to the extent of the indemnitor’s proportional
contribution. Neither party has any liability to the extent that any losses in
conjunction with indemnified claims are attributable to acts or omissions of the
other party or its indemnities.

5. TERM AND TERMINATION

5.1 Term. These Terms commences on the Effective Date of the first Order Form
and shall remain effective as long as any Order Form referring to this Terms
remains in effect. Except as specifically set forth to the contrary in these
Terms, all payment obligations under any and all Order Forms or Statements of
Work are non-cancelable and all payments made are non-refundable.

5.2 Termination for Breach. In addition to any other remedies it may have, if
either party breaches any of the material terms or conditions of these Terms and
fails to cure such breach within thirty (30) days after written notice from the
non-breaching party, the non-breaching party may terminate these Terms or a
specific Order Form or Statement of Work upon written notice. Upon termination
of these Terms or a Order Form or Statement of Work due to Client's material
breach, Client will pay for the Subscription Service and Professional Services
that have been rendered through the termination date plus all other charges that
would have been due under the remaining term of each affected Order Form or
Statement of Work. Upon termination of these Terms or an Order Form or Statement
of Work due solely to a breach by BirdEye, BirdEye shall refund a pro rata
portion of any fees paid for services not yet rendered as of the date of
termination.

6. INNOVATION FEE

At the time of any auto renewal, Birdeye will apply a 5% fee on all recurring
Services fees to cover product innovations, enhanced services and inflation
(“Innovation Fee“). The Innovation Fee shall apply automatically upon any auto
renewal of this Agreement and apply to all Services covered by this Agreement at
the time of the auto renewal. The Innovation Fee will be applied to the Services
fees including any additional fees incurred during the term. The Innovation Fee
will be included in the annual invoice to Client due according to the payment
terms set forth above or as other specifically stated in the Order Form or
Statement of Work.

7. BIRDEYE PAYMENTS

Stripe Terms of Service: Client agrees to be bound by Stripe Terms of Service
located at: https://stripe.com/ssa. The Stripe Terms of Service may be modified
periodically by Stripe in its sole discretion.

No PCI DSS Liability: Client understands, acknowledges and agrees that all
payment transactions processed through BirdEye Payments are done through a third
party payment processor which is Level 1 PCI DSS compliant. Since BirdEye does
not store any payment card information, it is not subject to PCI DSS and, as a
result, BirdEye shall be released from any and all liability or claims related
to or arising out of PCI DSS.

No Refunds of Payment Fees; Client Liability to Its Customers for Refunds:
BirdEye will not refund any Payment Fees upon a refund, chargeback or other
reversal of a transaction. The amount of the refund transaction will be sent to
Client's customer directly but Client shall remain liable to BirdEye for the
Payment Fees which BirdEye will deduct from Client's payment account for the
original transaction. Client agrees to indemnify BirdEye against any claims
related to or arising out of any claims by Client's customer related to the
amount of any refund, chargeback or similar issue. In the event Client's payment
account does not contain the funds required to process the refund or cover the
Payment Fees, Client gives BirdEye the right to debit Client's bank account
directly to cover the shortfall.

Right to Cancel or Adjust Pricing: BirdEye reserves the right to terminate
Client's access to and use of Payments if BirdEye, in its sole discretion,
determines that Client pose too great of a risk to continue using the Payments
service. In addition, BirdEye reserves the right to modify the Payment Fees,
upon written notice (for which an email will suffice), in its sole discretion,
if BirdEye determines that different Payment Fees are required to cover the risk
posed by Client's use of the Payments service.

Hardware/Terminals: Client may be provided with hardware (ie, a “terminal”) to
assist with point of sale purchases using the Payments service. Client will at
all times be responsible for maintaining the terminal and will, upon termination
of the Payments service or upon reasonable request from BirdEye, return all
terminals in good condition and good working order.

Disputes: For disputed transactions (including allegedly fraudulent
transactions), Client is responsible for providing evidence of the relevant
transaction(s), through the tools provided by BirdEye. BirdEye is not
responsible for providing the evidence, nor is it or will it be liable to Client
for lost disputes or any and all losses or damages arising out of or related to
a lost dispute.

8. MISCELLANEOUS

8.1 Independent Contractors. In performing under these Terms, each party is
acting as independent contractor, and in no way are the parties to be construed
as partners, joint ventures, or agents of one another in any respect.

8.2 Subcontractors. If BirdEye subcontracts any portion of the Professional
Services to a third party, BirdEye (i) shall require such subcontractor to
comply with the material terms and conditions of these Terms and (ii) remains
responsible for any acts or omissions of its subcontractors as if such acts or
omissions were performed by BirdEye.

8.3 Export. Client may not export or re-export any software included within the
Subscription Service, either directly or indirectly, without receiving BirdEye’s
written consent and any required license from the applicable governmental
agency.

8.4 Force Majeure. Neither party will be in default for failing to perform any
obligation hereunder, if such failure is caused solely by supervening conditions
beyond the parties’ respective control, including without limitation acts of
God, civil commotion, Third Party Sites, strikes, terrorism, failure of third
party networks or the public Internet, power outages, industry-wide labor
disputes or governmental demands or restrictions.

8.5 Assignment. Either party may assign these Terms in connection with (i) a
merger where the contracting entity does not survive such merger, or (ii) the
sale of all or substantially all of the contracting entity’s assets related
hereto. Except as expressly stated in this section, neither party may assign its
rights or obligations under the Terms without obtaining the other party’s prior
written consent. Any assignment in contravention of this subsection is void.

8.6 Travel & Expense Reimbursement. Each applicable Order Form or Statement of
Work will set forth any reasonable and necessary travel expenses that will need
to be incurred in performance of the Professional Services under these Terms.

8.7 Notice and Delivery. Except as otherwise provided herein, all notices,
statements and other documents, and all approvals or consents that any party is
required or desires to give to any other party will be given in writing and will
be served in person, by express mail, by certified mail, by overnight delivery,
by facsimile, or by electronic mail at the respective addresses set forth below,
or at such other addresses as may be designated by such party.

If to BirdEye:BirdEye, Inc.2479 E Bayshore Rd, Suite #188 Palo Alto, CA
94303ATTN: BirdEye Customer CareEmail: legal@BirdEye.comIf to Client: To the
contact information stated in the Order Form or Statement of Work.Notices to
Client will be addressed to the contact designated in writing by Client to
BirdEye for Client's relevant account, and in the case of billing-related
notices, to the relevant contact designated by Client.

8.8 Compliance with Laws and Regulations. Each party shall in good faith perform
its obligations hereunder in a manner that complies with all applicable laws,
regulations, ordinances and codes, including identifying and procuring required
permits, certificates, approvals and inspections. If either party receives any
notice, summons, or complaint regarding its non-compliance with any such laws,
regulations, ordinances, or codes, it shall promptly notify the other party of
such matter

8.9 Governing Law and Jurisdiction. These Terms and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed by the laws of the State of California, without giving effect of
principles of conflicts of law. The Uniform Computer Information Transactions
Act, the United Nations Convention on the International Sale of Goods, and
choice of law rules of any jurisdiction, will not apply to the Terms. Any
disputes, actions, claims or causes of action arising out of or in connection
with the Terms shall be subject to the exclusive jurisdiction of the state or
federal courts in Santa Clara County California.

If Client's Order Form or Statement of Work is with BirdEye Australia Pty Ltd or
BirdEye NZ Pty Ltd, the Agreement any dispute or claim arising out of or in
connection with it or its subject matter or formation (including non-contractual
disputes or claims) shall be governed exclusively by, and construed in
accordance with, the laws of New South Wales, Australia, and the parties
irrevocably submit to the exclusive jurisdiction of the courts of New South
Wales.

If Client's Order Form or Statement of Work is with BirdEye UK Limited, this
Agreement and any dispute or claim arising out of or in connection with it or
its subject matter or formation (including non-contractual disputes or claims)
shall be governed by and construed in accordance with the laws of England and
Wales and the parties irrevocably submit to the exclusive jurisdiction of the
English courts.

8.10 Entire Understanding; Order of Precedence. These Terms represent the
parties' entire understanding relating to the Subscription Services and
Professional Services, and supersedes any prior or contemporaneous, conflicting
or additional, communications. Any conflict between these Terms, any addendum or
attachment and any Order Form or Statement of Work shall be resolved in favor of
the Order Form or Statement of Work followed by the addendum or attachment over
the Terms. These Terms or an Order Form may be executed by electronic signature.
Except as otherwise provided in an Order Form or Statement of Work or other
agreement of the parties, these Terms may only be amended by a duly executed
agreement between the BirdEye and Client. If any provision of the Terms is held
by a court of competent jurisdiction to be invalid or unenforceable, then such
provision(s) shall be construed to reflect the intentions of the invalid or
unenforceable provision(s), with all other provisions remaining in full force
and effect.

8.11 Severability; Waiver. The failure of either party to enforce any right or
provision in these Terms shall not constitute a waiver of such right or
provision unless acknowledged and agreed to by such party in writing.

8.12 Survival. All sections of this Terms that by their nature should survive
termination will survive termination, including, without limitation, accrued
rights to payment, use restrictions and indemnity obligations, confidentiality
obligations, warranty disclaimers, and limitations of liability.

Appendix A: Additional Terms for Clients or Partners Contracting with BirdEye
Australia Pty Ltd.

A1. SMS Services Requirements.

Client understands and accepts that in order to use SMS-based Services, it will
be required to register a mobile phone number on its behalf. In order to obtain
a registered number, BirdEye will require a copy of Client’s business
registration and a utility bill or equivalent that is in the name of the
business.

A2. Use of Collections Agencies

Client acknowledges that if a payment issue cannot be resolved through good
faith efforts, BirdEye may submit a Client’s overdue account to an external
collections agency.


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