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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