Last Updated: January 4, 2023
PLEASE NOTE THAT THESE TERMS CONTAIN AN ARBITRATION PROVISION. BY ACCESSING OR USING THE SITE, YOU ARE AGREEING TO THE TERMS OF THE ARBITRATION PROVISION.
Your Information and Disclosure to Third Parties
When you use the Site, you consent to receive communications from us electronically via the Site. You agree to provide accurate, current, and complete information about yourself when you use the Site and to update such information while you continue to use the Site.
You represent and warrant that you (a) are above the legal age of majority in your jurisdiction of residence, (b) have not previously been suspended or removed from the Site, (c) do not have more than one account at any given time for the Site; (d) you will only provide us with true, accurate, current and complete information if you register for an account–if we believe or suspect that your information is not true, accurate, current or complete, we may deny or terminate your access to the Site or services (or any portion thereof); and (e) that you have full power and authority to enter into these Terms and in doing so will not violate any other agreement to which you are a party.
Purchase Related Policies and Procedures
To view policies and procedures related to orders placed through this Site (such as order processing, shipping and handling, returns and exchanges), please visit our FAQ Page and our Shipping and Returns page.We monitor returns and reserve the right to refuse service to anyone that may misuse or abuse the policy.
We have contracted with a third-party payment processor to facilitate purchases made on the Site. When you make a purchase through the Site, you will provide your payment details and any additional information required to complete your order directly to our third-party payment processor. You should be aware that online payment transactions are subject to validation checks by our payment processor and your card issuer and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our payment processor uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Please note, it is possible that your card issuer may charge you an online handling fee or processing fee. We are not responsible for this.
You agree to have sufficient funds or credit available upon placement of any such order to ensure that the purchase price will be collectible by us. We strive to provide accurate pricing information regarding the Products available on the Site. We cannot, however, insure against pricing errors. We reserve the right, at our sole discretion, to not process or to cancel any orders placed for a Product whose price was incorrectly posted on the Site as a result of an error. If this occurs, we will notify you by email. The Site may contain information regarding the availability of Products. In rare cases, a Product may be in stock when you place the order, and sold out by the time we attempt to process the order. Should this happen, we will notify you by email and cancel the item from your order. We also may offer some Products for sale before they have been manufactured or arrive at our warehouse. When you preorder these Products, we will ship them out once they are available. In rare cases, these items may not become available for shipping. Should this happen, we will notify you by email and cancel the item from your order.
Unless otherwise specified, prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery; and (b) value added tax and any other tax or duty which (where applicable) must be added to the price payable. You agree to pay for taxes, shipping or carriage of the Products as such costs are specified by us when you submit your order.
Some of the Services that we offer may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. You will have the ability to specify how regularly you would like to order any auto-replacing products. BY CHOOSING A RECURRING PAYMENT PLAN, YOU ACKNOWLEDGE AND AGREE THAT (A) OUR PAYMENT PROCESSOR IS AUTHORIZED TO CHARGE YOU ON A RECURRING BASIS (E.G., MONTHLY) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES AND (B) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SITE OR PRODUCTS. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY SIGNING INTO YOUR ACCOUNT AND FOLLOWING THE CANCELLATION INSTRUCTIONS. YOU WILL BE RESPONSIBLE FOR ALL CHARGES INCURRED WITH RESPECT TO ANY ORDER PROCESSED PRIOR TO THE CANCELLATION OF YOUR SUBSCRIPTION. All recurring payments are fully earned upon payment.
Use of Products and Services
All orders of Products must be for your personal use only. By purchasing Products, you hereby agree not to resell or distribute such Products for any commercial purposes. All orders are subject to our acceptance or rejection based on Product availability, noncompliance with this Agreement or any other reason as determined in our sole discretion. For instance, if we have reason to believe that your order is not for personal use, we reserve the right to reject or cancel any order that you place. We also reserve the right, in our sole discretion, to take steps to verify your identity to process your order. We will either not charge you or refund the charges for orders that we cancel or do not process.
We attempt to provide accurate descriptions of Products. We do not warrant, however, that the descriptions are accurate, complete, reliable, current or error-free. If a Product is not as described, your sole remedy is to return the item, unless otherwise specified in writing by us. We occasionally run promotions or provide limited-time offers for our Products. Please review the promotion or offer for eligibility and other terms and conditions.
The Site, the content, any materials downloaded, and all intellectual property pertaining to or contained on the Site (including but not limited to copyrights, patents, database rights, graphics, designs, text, logos, trade dress, trademarks, and service marks) are owned by Daybird or third parties; all rights, title, and interest will remain the property of Daybird and/or such third-party owner, as applicable. All content is protected by trade dress, copyright, patent, and trademark laws, as well as various other intellectual property and unfair competition laws.
You are authorized to view and retain a copy of pages of the Site only for your own personal, non-commercial use. You may also view and make copies of relevant documents, pages, images, or other materials on the Site for the purpose of transacting business with Daybird. You agree that you will not duplicate, publish, modify, create derivative works from, participate in the transfer of, or in any way distribute or exploit the Site, or any portion of the Site, for any public or commercial use, without the express written consent of Daybird. Additionally, you agree that you: (a) will not remove or alter any author, trademark, other proprietary notice, or legend displayed on the Site (or printed pages produced from the Site), and (b) will not make any other modifications to any documents obtained from the Site other than in connection with completing information required to transact business with Daybird.
For Content uploaded by User:
“Content“ means a creative expression and includes, without limitation, video, audio, photographs, images, illustrations, or animations, including images, photographs, and audio of the image and likeness of the User.
- For Content uploaded by User, or given to Daybird, for use by Daybird, User grants to Daybird a fully paid up and royalty free, perpetual, and irrevocable, non-exclusive worldwide unlimited right and license to use, publicly display, distribute, sub-license, modify, and otherwise utilize such Content in any and all media, channel, platform, or format now known or hereafter developed, in whole or in part, without further notice, approval or compensation to the User or any third party. Daybird will have the right to authorize others to exercise any and/or all of the rights granted to Daybird under these Terms, whether by license, sublicense, assignment or otherwise. User grants Daybird the right to use, reuse, and to grant to others the right to use and reuse, the User’s name and likeness for marketing and promotional purposes from Content submitted to Daybird by the User.
- Daybird may collect information from and about the User when the User provides Content to Daybird, such as when you make a purchase, visit or use our website, place an order with us, contact us by email, by phone, or by online chat, register for an online account, participate in a contest or sweepstakes, respond to a survey, comment on blog posts, engage in a promotional activity, or sign up for emails, newsletters, or marketing. We may collect Content that you upload or livestream from your device while using the Site.
Use of Information and Materials
The information and materials contained on the Site, and these Terms, policies, and descriptions on the Site, are subject to change. You accept sole responsibility for all of your activities using the Site. Your use of the Site is limited to the intended function of the Site. Unauthorized use of the Site and systems, including but not limited to unauthorized entry into Daybird's systems or misuse of any information posted on the Site, is strictly prohibited. You may not use the Site in a manner that:
- harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any party (including but not limited to rights of publicity or other proprietary rights);
- is unlawful, fraudulent, or deceptive;
- uses technology or other means to access content or systems of Daybird in a manner that is not authorized by Daybird;
- uses or launches any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” to access content or systems of Daybird;
- attempts to introduce viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment;
- attempts to gain unauthorized access to Daybird's computer network or user accounts;
- encourages conduct that would constitute a criminal offense or that gives rise to civil liability;
- violates these Terms or any other Daybird policies;
- attempts to damage, disable, overburden, or impair Daybird servers or networks;
- fails to comply with applicable third-party terms; or
- constitutes any other inappropriate conduct, as determined by us in our sole discretion.
System Outages, Slowdowns, and Capacity Limitations
At times you may experience difficulty accessing the Site or communicating with Daybird through the Internet, or other electronic wireless services, as a result of high Internet traffic, transmission problems, systems capacity limitations, or other problems. Any computer system or other electronic device, whether it is yours, an Internet service provider’s, or Daybird’s, can experience unanticipated outages or slowdowns or have capacity limitations. Daybird is not responsible for failure or delay of performance caused by such problems.
Daybird makes no warranty whatsoever to you, express or implied, regarding the security of the Site, including with respect to the ability of unauthorized persons to intercept or access information transmitted by you through the Site. You acknowledge and agree that you are solely responsible for maintaining the security of your devices. Daybird is not responsible for any losses resulting from the loss or theft of your device, the loss or theft of your information transmitted from or stored on your devices, or any losses arising from the use of your device by someone whom you have given access. You are required to notify us of any unauthorized use of the Site by using the contact information below.
To protect the security of your information, Daybird may require you to authenticate your identity (i.e., prove that you are who you say you are) when you use the Site.
Links to Other Websites and Services
The Site may contain links to outside services and resources, the availability and content of which Daybird does not control. We are not responsible for examining or evaluating, and we do not warrant the offering of these services and resources or the content of these websites. Daybird does not assume any responsibility or liability for the actions, products, and content of these and any other websites. Any concerns regarding any such services or resources should be directed to the service or resource.
If any provision of these Terms shall be deemed unlawful, void, or unenforceable for any reason, then such provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. Daybird's failure to enforce the strict performance of any provision of these Terms or the additional terms and conditions for any product or service will not constitute a waiver of our right to subsequently enforce such provision or any other provisions of these Terms or the additional terms and conditions.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES THAT MAY ARISE IN CONNECTION WITH THIS SITE, OR FROM YOUR USE OF, OR INABILITY TO USE THIS SITE; OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, OR LINE OR SYSTEM FAILURE EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, OR EXPENSES. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages. In such jurisdictions, our liability is limited to the greatest extent permitted by law.
THE SITE IS PROVIDED TO YOU ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DAYBIRD MAKES NO WARRANTY THAT (A) THE SITE WILL MEET YOUR REQUIREMENTS, (B) THAT OPERATION OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (C) THE CONTENT THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE. DAYBIRD UNDERTAKES NO OBLIGATION TO UPDATE THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DAYBIRD, OR THROUGH THE SITE SHALL CREATE ANY WARRANTY REGARDING THE SITE NOT EXPRESSLY STATED IN THESE TERMS. YOU UNDERSTAND AND ACKNOWLEDGE THAT ADDITIONAL DISCLAIMERS, LIMITATIONS, AND NOTICES REGARDING THE SITE AND ITS CONTENT AND DATA MAY BE PROVIDED BY DAYBIRD FROM TIME TO TIME WITHIN THE SITE.
WE DO NOT WARRANT THAT THE SITE WILL OPERATE ERROR-FREE OR THAT THE SITE AND ITS SERVERS ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL CONTENT. IF YOUR USE OF THE SITE, THE MATERIAL, OR THE SOFTWARE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE ARE NOT RESPONSIBLE FOR THOSE COSTS.
You will defend, indemnify, and hold us harmless from and against any actual or threatened suit, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees, costs, penalties, interest, and disbursements) arising from or related to your conduct with respect to the Site or violation (or alleged violation) of these Terms. Under no circumstance will Daybird be liable for damages of any kind that result from your use of, or the inability to use, the Site.
We may terminate or suspend your access to the Site, delete your profile and any content or information that you have posted on the Site and/or prohibit you from using or accessing the Site (or any portion, aspect or feature of the Site) if you violate these Terms, effective immediately, which may result in the forfeiture and destruction of all information associated with you and your activities in connection with the Site. If you wish to terminate your account, you may do so by following the instructions on the Site. Any fees paid hereunder are non-refundable. In the event of termination, you will still be bound by your obligations under these Terms.
You are responsible for reviewing these Terms regularly. Daybird reserves the right, at any time, without notice to you, and in its sole discretion, to modify or discontinue the Site, these Terms, or any Daybird policies related to use of the Site. Revisions to these Terms or Daybird’s policies may be provided through the Site, including by posting the revisions on the Site and updating the “Last Updated” date. Such revisions will go into immediate effect once posted to the Site. Continued use of the Site following such modifications to the Site, these Terms, additional terms and conditions for any service, or other Daybird policies will constitute your acceptance of such modifications and revisions.
YOU AND DAYBIRD AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
Any dispute between you and Daybird arising from or relating to these Terms and their interpretation or the breach, termination or validity thereof, the relationships which result from these Terms, including disputes about the validity, scope or enforceability of this arbitration provision (collectively, “Covered Disputes”) will be settled by binding arbitration.
Prior to initiating any arbitration, the initiating party will give the other party at least 60 days advanced written notice of its intent to file for arbitration. Daybird will provide such notice by either email to your e-mail address on file with Daybird or by mail to your mailing address on file with Daybird and you must provide such notice to Daybird by email to firstname.lastname@example.org.
During such 60-day notice period, the parties will endeavor to settle amicably by mutual discussions any Covered Disputes. Failing such amicable settlement and expiration of the notice period, either party may initiate arbitration. The arbitrator will conduct any arbitration proceedings by telephone or videoconference unless in-person appearances are requested by you or Daybird and approved by the arbitrator. Any in-person appearances will be held at a location mutually agreed upon by you and Daybird, or, in the absence of such agreement, at a location determined by the arbitrator. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. Arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. Daybird and you agree that any Covered Dispute hereunder will be submitted to arbitration on an individual basis only. Neither Daybird nor you are entitled to arbitrate any Covered Dispute as a class, representative or private attorney action and the arbitrator(s) will have no authority to proceed on a class, representative or private attorney general basis. If any provision of the agreement to arbitrate in this section is found illegal or unenforceable, the remaining arbitration terms shall continue to be fully valid, binding, and enforceable (but in no case will there be a class, representative or private attorney general arbitration). These Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA) and, where otherwise applicable, by the laws of the State of Delaware, U.S.A.
These Terms shall be governed in all respects by the laws of the State of Delaware, U.S.A., without regard to choice of law provisions.
These Terms constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all previous written or oral agreements between the parties with respect to such subject matter. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
Daybird’s failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these Terms.
Daybird may assign its rights and duties under these Terms to any party at any time without notice to you.
If any provision of these Terms is held to be invalid or unenforceable, the remaining provisions will continue in full force.
If you have any questions regarding the Site, please feel free to send us an email at email@example.com.