Birdsy Store Sales Terms

Effective Date: August 30, 2019

Welcome to the online Birdsy Store (the “Store”) provided by Birdsy Inc, a Delaware corporation whose principal place of business is at 16 W 19th St , New York, NY 10011, United States ("Birdsy" or "we"). Your purchase of a Birdsy Cam and/or accessories (“Device”) and/or subscription services (“Subscription Services”) from the Store constitutes your agreement to be bound by these Terms of Sale and any terms incorporated by reference, including the Return Policy at birdsy.com/returns, the terms of any limited warranty offered by Birdsy (whether online or accompanying the product) and any other applicable terms in our Warranty at birdsy.com/warranty ("Terms").

Please carefully read the Terms. Your purchase of a Device or Subscription Services requires that you agree to the Terms. If you do not understand the Terms or do not accept any part of them, do not place an order.

1. Birdsy Services
When you use any Birdsy product or service through your Device or Subscription Services, your use is subject to the applicable terms and conditions for those services, including the Birdsy Terms of Service at Birdsy.com/terms. Use of certain Device features or Subscription Services require that you open a Birdsy account. Note that Birdsy services and content may vary by region. All features, functionality and other product specifications are subject to change without notice or obligation.

2. Birdsy Payments or Guest Checkout
To place an order, you may use guest checkout or be signed in to your Birdsy account. To use guest checkout, you will need to agree the Birdsy Payments Terms of Service. Do not place an order if you do not agree to these payment terms.

3. Privacy
Please refer to our Birdsy Privacy Policy (birdsy.com/privacy) and the Birdsy Payments Privacy Policy for more information on how Birdsy collects, uses and shares the information we receive from you.
Birdsy may provide information about you to third parties to detect, prevent or otherwise address fraud, security or technical issues.

4. Support
Please refer to our Help center at birdsy.com/help and return policy at birdsy.com/return to learn more about any support offered by Birdsy in connection with your Device and/or Subscription Services. The Birdsy support team will only provide support if you are located in a supported country with order management or technical support.

5. Ordering and Payment
By providing a credit card or other payment method accepted by Birdsy, you represent and warrant that you are authorized to use the designated payment method, and you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your order (including any applicable taxes and other charges detailed at checkout). If the payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your order.
Birdsy reserves the right to reject all or part of an order or a return request and may refuse to ship Devices to you for reasons such as: (a) if we detect suspicious or fraudulent activity (including unauthorized reseller activity) in violation of these Terms; (b) if you do not live in a country from which Devices may be purchased; or (c) if you order more than the permitted maximum number of Devices.

6. Subscription Services
We offer different subscription plans for our Subscription Services.
Continuous Subscriptions. When you purchase any of our Subscription Services, you expressly acknowledge and agree that (1) Birdsy is authorized to charge you a monthly or annual subscription service fee depending on the billing cycle you choose (in addition to any applicable taxes) for as long as your subscription continues, and (2) your subscription is continuous until you cancel it or such Subscription Service is suspended, discontinued or terminated in accordance with these Terms.

Billing. We automatically bill the payment method associated with your Birdsy account on a monthly or annual basis (depending on the billing cycle you choose). Day one of your billing cycle is tied to the date you activate your Subscription Services by pairing them to DeviceProduct(s). In the event you later decide to purchase additional Subscription Services (each, an “Add-On Service”), your payment for such Add-On Service will be prorated to the renewal date of your initial Subscription Service and the full amount of the add-on service will be charged on your subscription renewal date. You acknowledge that the amount billed may vary due to promotional offers, changes in your Subscription Services plan and changes in applicable taxes, and you authorize us to charge your payment method for the corresponding amounts.

Cancellations and Refunds. You may cancel your Subscription Services at any time by logging into your Birdsy account and selecting "Cancel Subscription." Note that merely unpairing a Device Product from a Subscription Service will not trigger cancellation of the Subscription Service. Other than as set forth in section 4(f) below (Pre-paid Subscription Services), in the event you cancel a Subscription Service, we will provide a prorated refund for the period of time starting the day after cancellation of the Subscription Service through the remainder of your billing cycle. If you cancel a Subscription Service but continue to use other Subscription Service(s) following such cancellation, we may provide the refund to you in the form of Store Credit.

Free Trials. We may offer free trials of our Subscription Services for limited periods of time. If we offer you a free trial, the specific terms of your free trial will be provided at registration. We have no obligation to notify you when your free trial ends, and we reserve the right to modify or terminate free trials at any time, without notice and in our sole discretion.

Pre-paid Subscription Services. We may offer Devices Products that include pre-paid Subscription Services, either included in the purchase price or as a Bundle. Pre-paid Subscription Services may not be used with Devices Products other than the Device Product with which those pre-paid Subscription Services were purchased. If you purchase such DevicesProducts, and subject to these Subscription Services Terms and these Terms & Conditions and Terms of Service, the pre-paid Subscription Services will begin on the date you pair your Device Product with your Birdsy account and end on the date noted in your Birdsy account following activation. If you cancel your pre-paid Subscription Services, those Subscription Services will be canceled permanently and you will not receive a refund. Pre-paid Subscription Services are subject to the same terms and conditions as other Subscription Services, including Birdsy’s right to suspend, discontinue or terminate the Subscription Services in accordance with these Terms.

7. Prices and Taxes
The Device and/or Subscription Service price displayed on the Store does not include any shipping charges. Information about shipping charges will be presented at checkout before you place your order. All prices displayed on the Store are subject to change at any time without notice.
In the event we change the pricing for any Subscription Service you have purchased, we will give you advance notice of this change. After receiving this notice, you will be deemed to have accepted the change in pricing, unless you cancel your subscription as set forth in section 6 above.
Applicable taxes will be presented at checkout or on the Device or Subscription Service description page, and such taxes are estimated and may be subject to change until you are charged.

8. Delivery
We may not be able to deliver Devices to, or offer Subscription Services in locations outside the US, Canada, UK and EU. If a Device cannot be successfully delivered to you, the Device should be returned to Birdsy. In that case and once Birdsy receives the return shipment, you will not be charged for the Device (or charges already incurred will be reversed using the initial payment method in your Birdsy Payments account), but you may be charged for shipping (and such charges may not be reversed). If a Device is not successfully delivered because we or a delivery agent made a mistake, you will not be charged at all and all charges will be reversed.
If Birdsy successfully delivers your Device to the address specified in your order, you will not be entitled to a refund or replacement Device. If you do not receive your Device, please contact us.

Any delivery dates or times provided by Birdsy (or a delivery agent) are estimates only and are not guaranteed.

9. Availability and Order Limits
All Devices offered on the Store are subject to availability. We reserve the right to discontinue offering certain Devices and/or a Subscription Service without prior notice.
Certain products have quantity limits. You may not order more than the maximum number of Devices that we specify on a product page or in a product description. For example, the product description or product page may contain a maximum order limit for a particular Device.

10. Pricing Mistakes
We try very hard to make sure there are no mistakes in the prices that appear on the Birdsy Store. In the unlikely event that a mistake happens, you agree that Birdsy will not be bound by that incorrect price and may cancel your order. If a mistake is discovered and you haven't been charged yet, we will let you know the correct price, and you will be given the option to continue with your order at the correct price or cancel it.

11. Promotions
Birdsy may offer promotions or promotional prices for the sale of Devices or the purchase of a Subscription Service. If so, any terms applicable to such promotional offers or prices will govern the offer.

12. Import and Export
The Device and/or Subscription Service may be subject to import and export laws and regulations in the United States and elsewhere. You must comply with all domestic and international import and export laws and regulations that apply in connection with the Device and Subscription Service. These laws may include restrictions on destinations, users, and end use.

13. Use of the Device and Subscription Service
Please carefully read any instructions that come with the Device and Subscription Service, including instructions that may be available online. In order to make use of any enhanced functionality of your Device or Subscription Service, you may have to sign in to your Birdsy account or open a Birdsy account if you do not yet have one. Further, you agree to comply with any agreements applicable to your use of the Device, Subscription Service or any software on the Device.

14. Gifts
You may only purchase Devices and/or a Subscription Service for personal use. You may not resell any Device or Subscription Service, but you may give the Device or Subscription Service as a gift.

15. Return Policy
You must comply with our Return Policy at birdsy.com/returns if you want to return a Device for a refund.

16. Data and Deactivation
You are responsible for managing any data stored on your Device or through your Subscription Service, including, for example, deleting, transferring and creating back-ups of such data. For example, if you decide to return the Device, or if you have to send a Device to Birdsy for repair or replacement, it is your responsibility to erase all personal or other data on the Device before sending it to Birdsy. Birdsy will not be responsible for any use or disclosure of any data that resides on a Device.
If you tell Birdsy that you have not received your Device, the Device is defective, or it has been lost or stolen, Birdsy may deactivate that Device. Deactivation does not automatically delete personal or other data stored on your Device. We strongly recommend that you back-up your data periodically.

17. Resale and Warranty
The limited warranty in the Device box and in the Warranty section below is only for the benefit of the end user and not resellers.

18. Defects; Warranties; Disclaimer of Warranties
If the Device is or becomes defective through no fault of your own, you may have statutory rights such as repair or replacement of the defective Device, or in some cases, a price reduction, or the right to cancel the contract for a refund. Please refer to the warranty at birdsy.com/warranty.
If you have a defective Device, please contact us.
If Birdsy provides you with a replacement Device, you agree that Birdsy may exchange the defective Device with a new or refurbished Device. Birdsy may require that you return the defective device before sending you a replacement. You must ensure that the correct device is returned to Birdsy. You will not receive a replacement until Birdsy has received the correct device. If Birdsy provides you with an advanced replacement (at its discretion) device before we receive your defective Device, and you do not return the defective Device within the time communicated to you in notification emails, you authorize Birdsy to charge your original form of payment for the full value of the replacement Device.
Nothing in this section affects your legal rights under statutory or applicable laws. Unless otherwise required under applicable laws, Birdsy may only provide warranty support for Devices manufactured by Birdsy that are located in either the US, Canada, UK or EU.
OTHER THAN THE WARRANTIES REFERRED TO IN THE WARRANTY AT BIRDSY.COM/WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Birdsy AND THE DEVICE MANUFACTURERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING ANY DEVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

19. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Birdsy AND ITS SUBSIDIARIES AND AFFILIATES, INCLUDING SUPPLIERS (COLLECTIVELY, "Birdsy PARTIES") SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU IN CONNECTION WITH THE DEVICE AND/OR SUBSCRIPTION SERVICE OR THESE TERMS, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT A Birdsy PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Birdsy PARTIES' TOTAL LIABILITY IN CONNECTION WITH THE DEVICE OR THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO Birdsy UNDER THESE TERMS.
Some states or countries do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

20. Device Features Outside of Birdsy’s Control
You acknowledge that unless specifically provided in any Device description page, no Device comes with a cellular data plan, a wireless service plan or other Internet connectivity service. You are solely responsible for obtaining any access to the Internet or wireless service through a cellular data service provider or a wireless service provider (each, a “Wireless Carrier”) or other Internet connectivity service provider ("Internet Service Provider") whose service is compatible with the Device. If your Device includes functionality allowing you to access the Internet via a cellular data plan, the Device may be configured to work with a certain cellular network technology. Check with your preferred Wireless Carrier for compatibility and mobile data plan availability.
If your Device requires a SIM card, or any other mobile connectivity feature required by your Wireless Carrier or Internet Service Provider, you are solely responsible for obtaining such connectivity feature(s). If your Device includes WiFi functionality that allows you to access the Internet, you understand that you will need access to a compatible WiFi access point.
You agree that, unless specifically provided in any Device description page or otherwise agreed by Birdsy, Birdsy has no responsibility for the provision of cellular data services, wireless services or other Internet connectivity services, or the terms under which Wireless Carriers or Internet Service Providers may offer those services. Internet Service Providers and Wireless Carriers may charge you for usage and other fees that Birdsy does not control.
You understand that the Device may only be compatible with certain hardware accessories manufactured by third parties, and Birdsy makes no warranty with respect to such third-party hardware accessories or their compatibility with the Device.
Returning the Device, in accordance with these Terms, does not cancel your service contract with your Internet Service Provider or Wireless Carrier, if applicable, so you must contact your Internet Service Provider or Wireless Carrier (and any other applicable service provider(s)) directly to cancel such service(s).

21. Governing Law and Jurisdiction
The laws of New York, U.S.A. apply to these Terms, excluding New York’s choice of law rules, and will apply to any disputes arising out of or relating to these Terms. Claims arising out of or relating to these Terms will be subject to the exclusive jurisdiction and venue of the courts in New York City, NY, U.S.A.

22. Changes to the Terms
The Terms in effect at the time you place an order for the Device and/or Subscription Service will apply to such order and Device and/or Subscription Service. Birdsy reserves the right to make changes to these Terms from time to time, and any such changes will apply to future orders. If you purchase our Subscription Services, we will notify you in the event we make changes to these Terms that affect your subscription.

23. Events Beyond Reasonable Control
Neither party will be responsible for any delay or failure to comply with these Terms if the delay or failure arises from any cause which is beyond its reasonable control.

24. No Waiver
If you do not comply with these Terms, and we don't take action right away, this doesn't mean that we are giving up any rights that we may have (such as taking action in the future).

25. Severability
If it turns out that a particular term is not enforceable, this will not affect any other terms.