LAST UPDATED 27 NOVEMBER 2018
THIS TERMS OF SERVICE AGREEMENT ("AGREEMENT" OR "TERMS") IS A LEGAL AGREEMENT BETWEEN YOU ("YOU", "YOUR", OR "CUSTOMER") AND LILY BIRD, INC. ("WE", "LILY BIRD", THE "COMPANY"), THE OWNER AND OPERATOR OF THE WWW.MYLILYBIRD.COM WEBSITE (THE "SITE") AND THE RELATED LILY BIRD MOBILE APPLICATIONS ("APPLICATIONS"). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND APPLICATION OF ALL SERVICES, FEATURES, GIFT CARDS, CREDITS AND RESOURCES AVAILABLE OR ENABLED VIA THE SITE AND/OR APPLICATIONS (COLLECTIVELY, WITH THE SITE AND APPLICATIONS, THE "SERVICES"), AND YOUR PURCHASE OF THE SUBSCRIPTIONS AND PRODUCTS SOLD THROUGH OUR SERVICES. BY ACCESSING AND USING ANY OF THE SERVICES, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SERVICES OR PURCHASE PRODUCTS FROM, OR SUBSCRIPTIONS TO, Lily Bird.
By signing up for a Subscription (as defined below), you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Site with the consent of your parent or legal guardian and that you have received your parent's or legal guardian's permission to enter into this Agreement. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to this Agreement and to fully indemnify, release and hold harmless Lily Bird if your child breaches or disaffirms any term or condition of this Agreement.
PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER.
1 – CHANGES TO SERVICES; PERSONAL INFORMATION/PRIVACY
1.1 – Changes to the Services
Lily Bird may add to, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you.
1.2 – Personal Information
Customers agree to provide accurate, current, and complete information as required for the purchase of the Products and Subscriptions (both as defined below in Section 3.1). Lily Bird reserves the right to block further sales to Customers who provide false, inaccurate or incomplete data. Customer acknowledges that Lily Bird uses a third party payment processing service to process orders and bill fees to your credit, debit, or other Company accepted payment method ("Payment Method").
1.3 – Privacy
2 – PASSWORDS; USER LICENSE; CHAT SESSIONS
2.1 – Passwords
You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords or accounts. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify Lily Bird if there is any unauthorized use of your password or if you know of any other breach of security in relation to the Services.
2.2 – User License
Subject to your compliance with this Agreement, Lily Bird hereby grants you a limited, personal, revocable, non-transferable, non-sub-licensable, and non-exclusive license to access the Services and use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed through the Services (collectively, the "Content"), solely for your personal, non-commercial use. You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Services and Content automatically terminates without notice to you.
You hereby represent and warrant that you will not, and will not induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Services or Content or otherwise attempt to gain unauthorized access to any portion of the Services or Content or any other systems or networks connected to the Site, or to any server of Lily Bird or its third party service providers, by hacking, password "mining", or any other illegal means; (b) use any "deep-link", "page-scrape", "robot", "Lily Birdder", or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Services or Content; (c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Services or with any other person's use of the Services; (d) track or seek to trace any information on any other person who visits the Site or Applications, or uses our Services; (e) use the Services or Content for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations; or (f) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to the Site, Applications, Services, or Content.
2.3 – Chat Sessions
Lily Bird offers to its Customers the ability to enter into an instant messaging session ("Chat Sessions") with a Lily Bird Customer Support Agent ("CSA"). In order to maintain a high standard of service and provide a safe environment for its CSAs, Lily Bird reserves the right to refuse, discontinue, and/or block you from Chat Sessions for acts we consider to be inappropriate, such as unreasonable demands, misrepresentations, personally threatening or offensive language, and/or erratic behavior or acts that violate the Terms of Service. If you do not agree to the Terms of Service, including these provisions relating to the Chat Sessions, please do not use the Chat Session service.
Due to account security restrictions CSAs are not able and will not fulfill certain types of requests. If your request requires making a payment OR canceling your service, please log onto your account or email Customer Support at email@example.com complete such transactions. CSAs may request your account login user name, email address, or other personally identifiable information in order ensure the identity and security of the chat. CSAs are NOT supposed to ask you for your password or Payment Method information to confirm your account. If a CSA asks for your password or payment information, please immediately discontinue the Chat session and email Lily Bird at: firstname.lastname@example.org
3 – TERMS OF SALE
3.1 - Sales of Products and Subscriptions to End Users Only
Lily Bird sells incontinence products (the "Product(s)") to end-user customers who purchase monthly subscriptions to receive the Products ("Subscription(s)") only for their own personal, non-commercial use. You may not purchase Products or Subscriptions for further distribution or resale or for any other commercial or business purpose. The Subscription and all rights and privileges conferred are personal and non-transferable.
3.2 - Pricing
Pricing for Products and Subscriptions (including any applicable shipping and handling fees) can be found on Lily Bird's then-current pricing page located on the Site at: https://www.mylilybird.com/checkout/). The price that we will charge you for the Products and Subscriptions will be the price as posted on the Site on the date you first sign-up for a Subscription to the Site. Lily Bird reserves the right to change prices for Products and Subscriptions at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
3.3 – Promotional Trials
Your Subscriptions may start with a promotional trial period, allowing you to receive your first shipment at a reduced price or free of charge ("Trial"). At the time of sign-up, your Payment Method will just be charged for the reduced trial price and shipping and taxes, if applicable. For combinations with other offers, restrictions may apply. Lily Bird reserves the right, in its absolute discretion, to determine your Trial eligibility.
We will begin billing your Payment Method the applicable monthly Subscription fees – based on the product(s) you selected – at the cancellation date displayed on your order check out page unless you cancel your Subscription prior to the cancellation date. To view the specific details of your Subscription, including monthly Subscription price and end date of your Trial, visit our website and click the "Your Account" page. We may authorize your Payment Method through various methods, including authorizing it up to approximately one month of service as soon as you register. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your Trial period.
You will not receive a notice from us that your promotional (reduced Trial) pricing has ended or that the standard rate portion of your Subscription has begun. To avoid being charged after the expiration of your Trial, you must cancel your Subscription prior to the end of the first month. We will continue to bill your Payment Method on a monthly or bi-monthly basis (depending on your selection) for your Subscription fee until you cancel. For detailed instructions on how to cancel, see Section 3.5 below.
Lily Bird reserves the right, in its absolute discretion, to withdraw or modify any Trial offerings or promotions at any time without prior notice and with no liability.
3.4 – Refunds
If you are dissatisfied with one of our Products for any reason, Lily Bird will refund the amount paid for your most recent month of service. Refund requests must be made directly to Lily Bird at email@example.com. All refund requests must be made within thirty (30) days of the date of shipment by Lily Bird. Lily Bird is not liable for Products that are damaged or lost in transit to Lily Bird. Promptly following Lily Bird's receipt of your request (typically within five (5) business days), Lily Bird will credit the amount paid for the returned Product (less any shipping and handling costs/fees related to the original purchase, which are non-refundable) to the Payment Method you used to make the original purchase. Notwithstanding the foregoing, Lily Bird does not control when a specific credit card or payment method company processes a chargeback transaction. You are responsible for contacting your credit card or payment method company if you have questions about the status of the chargeback.
Lily Bird will not provide a refund for a request that is received by Lily Bird more than thirty (30) days after the date of original shipment. Lily Bird also does not provide a refund for returned Products that are damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use.
3.5 – Payment Methods; Automatic Monthly Subscription Renewals and Subscription Cancellation Policy
Lily Bird accepts various Payment Methods. You agree to pay all fees charged to your account based on Lily Bird's fees, charges, and billing terms in effect as shown on the order checkout page when you first sign-up for a Subscription. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase of Products or Subscriptions based on the address that you provide as the shipping address when you register for a Subscription, and you authorize Lily Bird or the third party payment processing service provider that we engage to charge your Payment Method for any such taxes and fees. All payments shall be made by your selected Payment Method in advance prior to shipping the Products. If you do not pay on time or if your Payment Method cannot be charged for any reason, Lily Bird reserves the right to either suspend or terminate your account and Subscription and terminate these Terms of Service. All sales and payments will be in US dollars. Lily Bird and Lily Bird's third party payment service provider may receive updated Payment Method information from your credit card or payment method issuer. The disbursement of the updated Payment Method information is provided to Lily Bird and Lily Bird's third party payment service provider at the election of your credit card and payment method issuer. Neither Lily Bird nor Lily Bird's third party payment service provider is responsible for the distribution of your credit card or payment method information. It is at the sole election of your credit card or payment method issuer. Your credit card or payment method issuer may give you the right to opt out of the update service. It is your responsibility to contact your credit card or payment method issuer with regards to your right to opt out of the update service.
IMPORTANT NOTICE TO CONSUMER:
MONTHLY SUBSCRIPTION RENEWAL FEES WILL BE AUTOMATICALLY CHARGED TO YOUR CARD ON FILE EACH MONTH. Lily Bird will automatically renew your Subscription on each monthly anniversary date of the Subscription (or bi-monthly anniversary date, depending on the subscription selections you make) and, as authorized by you by checking the box demonstrating your consent for automatic monthly renewal of your Subscription during the sign-up process, we will charge your Payment Method with the applicable Subscription fee and any shipping and handling costs and sales or similar taxes that may be imposed on your Subscription fee payments. Each Subscription renewal period is for one month.
SUBSCRIPTION CANCELLATION. You may cancel your Subscription at any time by calling us at 1 (833) 444-9477 or emailing us at firstname.lastname@example.org. Cancellation requests submitted in this manner (via your account page on the www.mylilybird.com website) must be received by 5pm Pacific on the day before your next shipping date to avoid being charged for that shipment. Cancellation requests received after that shall take effect the following month. Cancellation requests received by Lily Bird through other channels may take up to five (5) days to process. If you have any problems, please email email@example.com. Lily Bird requires a reasonable amount of time to process your Subscription cancellation request. If you cancel your Subscription, you will enjoy your Subscription benefits until the end of the then-current Subscription term, and your Subscription benefits will expire at the end of the then-current Subscription term for which you have paid. You will not be eligible for a prorated refund of any portion of the Subscription fees paid for any unused days of the then-current Subscription term.
3.6 – Shipping and Product Acceptance
The shipment date will be determined according to whichever date is closer to the date of the Customer's first purchase date. Shipping dates are estimates only. All shipments are sent via the U.S. Postal Service or a suitable third-party carrier. The risk of loss and title for all Products purchased via the Site pass to the Customer upon delivery of the item to the carrier.
3.7 – Pausing and Resuming Shipping
Lily Bird offers its customers the ability to skip shipments, one month at a time, in their Lily Bird Subscriptions. During the skipped month, customers will remain active customers, but they will not receive any Lily Bird Products.
During the Pause Period, customers will remain a member of Lily Bird, continue to receive communications from Lily Bird via email, but will not be charged any subscription fee.
Customers who have skipped a shipment do not need to do anything to resume shipping. You may email any questions about the Pause Period to firstname.lastname@example.org.
4 – USE OF MOBILE APPLICATIONS, SITE, AND OTHER SERVICES
4.1 – Lily Bird iOS and Android Mobile Application Terms:
The Terms of this Section 4 shall apply to the Users utilization of either the Lily Bird iOS Application or Lily Bird Android Application. The consideration of which terms apply is contingent on the Mobile Application downloaded and utilized by the User at the time of access to Lily Bird Sites and Services. By way of example, if the User accesses the Lily Bird Services on an Android device the Android terms shall apply and if the User accesses the Lily Bird Services on an Apple device the iOS terms shall apply. For purposes of this section and to the extent applicable in this Agreement, together the iOS Application and Android Application shall be known as Applications.
4.2 – Incorporation of Related Apple Terms:
Should any provisions in the terms, conditions, or other policies listed above conflict with these Terms, these Terms will control, solely to the extent such provisions apply to the Application.
4.2-1 – End-User License for Apple Application:
Subject to these Terms, Lily Bird grants the User a personal, non-exclusive, non-transferable, limited and revocable license to use the Applications for personal use only on an Apple iPhone, iPad, or iPod Touch ("iOS Device") owned or controlled by User as permitted by the Usage Rules contained in the Apple Terms and in accordance with these Terms ("User License"). Any use of the iOS Device in any other manner, including, without limitation, resale, transfer, modification or distribution of the iOS Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the iOS Application is prohibited. This Agreement and User License also governs any updates to, or supplements or replacements for, the iOS Application unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.
4.3 – Incorporation of Related Android Terms:
Should any provisions in the terms, conditions, or other policies listed above conflict with these Terms, these Terms will control, solely to the extent such provisions apply to the Application.
4.3-1 – End-User License for Android Application:
Subject to these Terms, Lily Bird grants the User a personal, non-exclusive, non-transferable, limited and revocable license to use the Applications for personal use only on an Android Device owned or controlled by User as permitted by the Usage Rules contained in the Android Terms and in accordance with these Terms ("User License"). Any use of the Android Application in any other manner, including, without limitation, resale, transfer, modification or distribution of the Android Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the Android Application is prohibited. This Agreement and User License also governs any updates to, or supplements or replacements for, the Android Application unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.
4.4 – User Information:
Services and features, such as mobile gifting, feedback, account management, and interaction with social media sites, may use, maintain, or transmit User's personal information, including, without limitation, user names, passwords, proper names, email address, address, location, financial information (including Payment Method information), GPS location information, and information for and from third-party social-media accounts (collectively "User Information"). By acknowledging and agreeing to this Agreement, or by using the Applications, Site, or other Services, User consents to the transmission of User Information to Lily Bird, including its agents and third-party partners, and consents to Lily Bird, including its agents and third-party partners, receiving, collecting, storing, processing, transmitting, and using User Information for Application functionality and for the purposes disclosed in one or more of the Lily Bird Privacy Policies identified in this Agreement.
Users are solely responsible for taking precautionary steps to protect User Information stored on the respective Applications, including without limitation password-protecting the respective Applications and employing Apple's or Android's remote-wipe feature.
4.5 – Prohibited Uses:
Users are prohibited from using the Applications, Site, or Services in any way that: Harasses, abuses, stalks, threatens, defames any person, or otherwise infringes or violates the rights of any person (including but not limited to rights of publicity or other proprietary rights); is unlawful, fraudulent, or deceptive;
Uses technology or other means to access unauthorized content or non-public spaces;
Uses or launches any automated system or process, including without limitation, "bots" or "crawlers," to access unauthorized content or non-public data;
Attempts to introduce viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
Attempts to damage, disable, overburden, or impair Lily Bird servers or networks;
Attempts to gain unauthorized access to a Lily Bird computer network;
Attempts to gain unauthorized access to Lily Bird's user accounts;
Encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
Violates these Terms in any manner; or
Fails to comply with applicable third-party terms and conditions or other third-party policies (collectively "Acceptable Use").
Lily Bird reserves the right, in its sole discretion, to terminate any User License, remove Content, assist law enforcement in the prosecution of criminal liability, or assert a civil or criminal legal action with respect to Content or use of the Applications or other Services that Lily Bird reasonably believes is or might be in violation of these Terms, but failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.
4.6 – User-Generated Content:
The User may generate content, written or otherwise, while using the Services ("User-Generated Content"). User acknowledges and agrees that User-Generated Content may be used, reproduced, displayed, modified, deleted, added too, adapted, and published by Lily Bird (for example, in product marketing campaigns). User grants Lily Bird and its successors a worldwide; irrevocable; transferrable; sublicensable; fully-paid and royalty-free; and non-exclusive license to use, reproduce, display, modify, delete from, add to, adapt, publish, and prepare derivative works from the User-Generated Information. User further acknowledges and agrees that the User, and the User alone, is responsible for the development of User-Generated Content.
4.7 – Indemnification:
User agrees to indemnify and hold harmless Lily Bird, its affiliates, licensors, suppliers, and third-party service providers, and each of their respective directors, officers, employees, contractors, agents, successors, and assigns (collectively, the "Lily Bird Parties") from all claims or causes of action, liabilities, damages, costs, fines, penalties, and expenses (including attorneys' fees) arising from or related to the User's misuse of the Services or Products, violation of these Terms, or violations of any rights of a third party, or any allegation thereof. Lily Bird reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defenses. This provision does not require you to indemnify any Lily Bird Party for any unconscionable commercial practice by such party, or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact.
4.8 – No Warranties:
THE SITE, APPLICATIONS, OTHER SERVICES AND CONTENT ARE FURNISHED TO YOU "AS IS" AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. Lily Bird, ON BEHALF OF ITSELF AND THE OTHER Lily Bird PARTIES: (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT THE SITE, APPLICATIONS, CONTENT, OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE, APPLICATION OR SERVICES WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C) DOES NOT REPRESENT OR WARRANT THAT THE SITE, APPLICATIONS, CONTENT, OR SERVICES WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS REGARDING THE USE OF THE SITE, APPLICATION, SERVICES OR CONTENT IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, APPLICATIONS, SERVICES AND CONTENT IS ENTIRELY AT YOUR OWN DISCRETION AND RISK.
THIS LIMITATION OF WARRANTIES IS A PART OF THE BARGAIN BETWEEN YOU AND LILY BIRD. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LILY BIRD OR ANY PERSON ON BEHALF OF Lily Bird SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY. NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT THE Lily Bird PARTIES' WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
4.9 – No Liability:
IN NO EVENT SHALL LILY BIRD PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY ECONOMIC DAMAGES ARISING FROM THE USE OF THE APPLICATIONS, SITE, OTHER SERVICES OR CONTENT, THE INABILITY TO USE THE APPLICATIONS, SITE OR OTHER SERVICES OR CONTENT, OR DEVICE FAILURE OR MALFUNCTION, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER ECONOMIC DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, OR LOST PROFITS, EVEN IF A LILY BIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH ECONOMIC DAMAGES. IF, NOTWITHSTANDING THE FOREGOING, A LILY BIRD PARTY IS FOUND TO BE LIABLE FOR ANY ECONOMIC DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, APPLICATIONS OR OTHER SERVICES, THE RELEVANT LILY BIRD PARTY'S TOTAL CUMULATIVE LIABILITY SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID LILY BIRD FOR THE PRODUCTS OR SUBSCRIPTION, AS APPLICABLE; OR (B) THE SUM OF ONE HUNDRED DOLLARS (US $100). THIS LIMITATION EXPRESSLY APPLIES ONLY TO ECONOMIC DAMAGES ARISING FROM THE USE OF THE APPLICATION, SITE, OTHER SERVICES OR CONTENT AND DOES NOT APPLY TO PERSONAL INJURY OR ANY INJURY CAUSED BY ALLEGED FRAUD.
THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE LIMITATION ON RECOVERY OF ECONOMIC DAMAGE OR LASS, SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY.
4.10 – Intellectual Property:
Lily Bird, the Lily Bird logo, and other Lily Bird trademarks, service marks, graphics and logos used in connection with the Applications and other Services are trademarks or registered trademarks of Lily Bird or other companies of Lily Bird (collectively "Lily Bird Marks"). Other trademarks, service marks, graphics and logos used in connection with the Applications and other Services are the trademarks of their respective owners (collectively "Third-Party Marks"). The Lily Bird Marks and Third-Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of Lily Bird or the applicable trademark holder. The Applications and the Content are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorized by Lily Bird or the owner of the Content.
4.11 – Severability:
If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms. Failure of Lily Bird to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.
4.12 – Modification of this Agreement:
Subject to Section 9.(x) of this Agreement, Lily Bird reserves the right to change or modify this Agreement or any other Lily Bird terms, conditions, or policies related to use of the Applications or other Services at any time and at its sole discretion by posting revisions on the Site (https://www.mylilybird.com) or within the Applications. Continued use of the Applications, Site, or other Services following the posting of these changes or modifications will constitute the User's acknowledgement and agreement to such changes or modifications. Only a specific, written waiver signed by an authorized representative of Lily Bird shall have any legal effect as a waiver by Lily Bird of any Terms of this Agreement.
4.13 – Third-Party Beneficiary:
User agrees that Lily Bird's service providers, licensors, or others involved in creating or providing the Applications or other Services are third party beneficiaries to this End-User Agreement and may rely upon the provisions of this End-User Agreement, including but not limited to, the provisions concerning Indemnification, No Warranties, and No Liability.
5 – GIFT CARDS
5.1 – Purchasing and Redemption:
By purchasing Lily Bird Gift Cards ("Gift Cards"), you agree and represent that your use of the Gift Cards will comply with this Agreement and all applicable laws, rules, and regulations, and that you will not use the Gift Cards in any manner that is misleading, deceptive, unfair, or otherwise harmful to consumers or Lily Bird, including its investors, officers, employees, agents, servants, assignees, subsidiaries, or any other Lily Bird-related entity.
A Site account is not required in order to purchase a Gift Card. If the Gift Card is purchased for an individual other than you, the recipient of the Gift Card shall be notified via email at the email address you provide during the purchase. In the event the recipient does not have a Site account at the time of receiving the email, they will be prompted to create a Site account in order to redeem the Gift Card. A Site account is required in order to redeem a Gift Card. You may purchase Gift Cards for any value between $10 and $300 US dollars. The amount of the Gift Card you purchase shall be charged to you according to your selected payment option when you confirm the purchase of the Gift Card. If the purchase of a Gift Card is part of a promotional campaign wherein purchase of a Gift Card at a pre-determined dollar amount is awarded with additional Lily Bird credits ("Lily Bird Credits"), these Lily Bird Credits shall only be available for use after the total amount of Gift Cards has been exhausted. In all circumstances Lily Bird Credits shall be used only after the exhaustion of Gift Cards.
Gift Cards and Lily Bird Credits may only be redeemed toward the purchase of eligible products on the Site. Redemption of Gift Cards and Lily Bird Credits on the Site is subject to change in Lily Bird's sole discretion. Purchases are deducted from the Gift Card balance. Any unused balance will be placed in the recipient's Lily Bird account ("Lily Bird Credits Balance Display") when redeemed. If an order exceeds the amount of the Gift Card, the balance must be paid with a Payment Method or other payment method accepted by Lily Bird.
You may be able to obtain your gift card balance by contacting Lily Bird customer service at email@example.com. The Gift Card balance relayed to you by a Lily Bird customer service agent is an estimate only. In most cases, the balance is adjusted immediately when you make a purchase online, but there may be occasions when the updated balance is delayed for a period of time.
Gift Cards never expire.
5.2 – Use and Limitations:
Gift Cards may only be purchased and redeemed by persons residing in the 50 United States and the District of Columbia, and may only be used on the Site (https://www.mylilybird.com). Gift Cards may not be purchased through or redeemed for the purchase of products at any other website operated by Lily Bird, its affiliates, or any other person or entity, except as indicated by these terms and conditions.
Gift Cards cannot be used to purchase other gift cards.
To the fullest extent of the law, Gift Cards cannot be reloaded, resold, transferred for value, or applied to any other account. Unused Gift Card balances in a Site account may not be transferred. Lily Bird Gift Cards may not be resold by any unauthorized vendor under penalty of law; unlawful resale or attempted resale is grounds for cancellation without compensation. We will not honor gift cards purchased through an unauthorized vendor, including, without limitation, any Internet auction sites.
Gift Cards are not returnable or refundable for cash except in states where required by law. Notwithstanding the foregoing reason sentence, if a balance of less than $5 remains on a Gift Card owned by a New Jersey resident following redemption we will refund the balance in cash upon the owner's request to firstname.lastname@example.org
Gift Cards may be used as personal or business gifts, but may not be used in connection with any marketing, advertising, or other promotional activities (including without limitation via websites, Internet advertisements, email, telemarketing, direct mail, newspaper and magazine advertisements, and radio and television broadcasts) unless you obtain Lily Bird's prior written approval.
Use of Lily Bird's name, logo, trade dress (including any image/likeness of the Gift Cards) or trademarks (or those of any of its subsidiaries or affiliates) in connection with the purchase or use of Lily Bird Gift Cards is strictly prohibited. Furthermore, the use of Lily Bird Gift Cards in any manner that states or implies that any person, website, business, product, or service is endorsed or sponsored by, or otherwise affiliated with, Lily Bird or any of its subsidiaries or affiliates is prohibited.
5.3 – Risk of Loss:
If your Gift Card is lost or stolen, immediately contact customer service at email@example.com. Your Gift Card will be cancelled and after an internal investigation, we will issue a new Gift Card with the remaining balance, if any. Lost or stolen Gift Cards cannot be replaced without the original confirmation email sent to the email account provided to Lily Bird. Lily Bird and its affiliates shall have no liability to you for:
for lost or stolen Gift Cards; or
use of any Gift Cards by third parties through your Site account. You are solely responsible for keeping the username and password for your Site account safe and for any activity conducted under your account.
Notwithstanding the above, the risk of loss and title for Gift Cards pass to the purchaser upon our electronic transmission to the purchaser, recipient, or delivery to the carrier, whichever is first and/or applicable. We are not responsible if a Gift Card is lost, stolen, destroyed, or used without your permission.
5.4 – Fraud:
Lily Bird shall have the right to close member accounts or any related account(s) if Lily Bird suspects a Gift Card is being used in a fraudulent manner to make purchases on the Site. If a fraudulently obtained Gift Card is redeemed and/or used to make purchases on the Site or any of its affiliated websites set forth above Lily Bird shall immediately suspend the Gift Card and may recoup the amount of the Gift Card by charging the amount from the Credit or Debit Card supplied. Lily Bird may also cancel or remove any and all Lily Bird Credits on the member accounts and/or any related account(s). Lily Bird has a zero-tolerance Fraud policy and it is the responsibility of the account holder to secure their account and Gift Card.
5.5 – Limitation of Liability & Gift Cards:
IN THE EVENT A GIFT CARD CODE IS NON-FUNCTIONAL, UNLESS SUCH NON-FUNCTIONALITY IS DUE TO THE GIFT CARD BEING FULLY REDEEMED, OUR SOLE LIABILITY SHALL BE FOR THE REPLACEMENT OF SUCH GIFT CARD CODE.
5.6 – Issuer:
Gift Cards are issued by Lily Bird, Inc., a Delaware corporation.
6 – PROPRIETARY RIGHTS
You hereby acknowledge and agree that Lily Bird or its licensors own all legal right, title and interest in and to the Service and Content, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Services and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist. Lily Bird is a trademark of Lily Bird in the United States. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in this Agreement, all information and screens appearing on the Services, including Content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Lily Bird, Copyright © 2018 Lily Bird, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
7 – PRODUCT/IDEA SUBMISSIONS
Lily Bird and its personnel do not accept or consider unsolicited ideas, including, without limitation, ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans or new product names. Please do not submit any unsolicited ideas, original creative artwork, suggestions or other works ("Submissions") in any form to Lily Bird or any of its employees. The sole purpose of this policy is to avoid potential misunderstandings or disputes when any of Lily Bird's products, services or marketing strategies might seem similar to ideas submitted to Lily Bird. If, despite our request that you not send us your ideas, you still submit them, then regardless of what your correspondence says, the following terms shall apply to your Submissions.
You agree that:
Any Submission (including its complete contents) by you to Lily Bird will automatically become the property of Lily Bird, without any compensation to you;
Lily Bird may use or redistribute any Submission and its contents for any purpose and in any way, without any compensation to you;
Lily Bird has no obligation to review any Submission; and
Lily Bird has no obligation to keep any Submission confidential, and no confidential relationship may be established by or inferred from any such Submissions to, or the consideration of your Submissions by, Lily Bird.
8 – THIRD PARTY SITES
8.1 – Third Party Web Sites
9 – NOTICE AND PROCEDURE FOR CLAIMS OF COPYRIGHT INFORMATION
If you believe that any Content, User Material, or other material contained on this Site or the App, including through a link, infringes your copyright, you should notify Lily Bird of your infringement claim in accordance with the procedures below.
We will process each notice of alleged infringement that Lily Bird receives and take appropriate action in accordance with applicable intellectual property laws. A notification of claimed copyright infringement should be emailed to Lily Bird's copyright agent at firstname.lastname@example.org(subject line: "DMCA Notification"). You may also contact us by mail at:
Attention: Copyright Agent
Lily Bird, Inc.
Address: 421 Holcomb Avenue
Reno, NV 89502
To be effective, the notification must be in writing and contain the following information: (i) a physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located that is reasonably sufficient to enable Lily Bird to identify and locate the material; (iv) how Lily Bird can contact you, such as your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you that the above information in your notice is accurate and under penalty of perjury that you are authorized to act on behalf of the copyright owner or the owner of an exclusive right in the material. Email messages sent to email@example.com purposes other than communication about copyright infringement may not be answered.
Lily Bird has a policy of terminating repeat infringers in appropriate circumstances.
10 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW
10.1 – Arbitration Agreement; Class Waiver; Waiver of Trial by Jury.
Please read this Section ("Arbitration Agreement") carefully. It is part of your contract with Lily Bird and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Informal Resolution. Most customer concerns can be resolved quickly and to a customer's satisfaction by writing to our customer service department at firstname.lastname@example.org or Lily Bird, Attn: Customer Service, 421 Holcomb Avenue, Reno, NV 89502. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction, the terms of this Section 10.1 govern dispute resolution between us.
Applicability of Arbitration Agreement. All claims and disputes in connection with the Agreement or the use of any product or service provided by Lily Bird that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Lily Bird, and to any of Lily Bird's licensors, suppliers, dealers or third party vendors, subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement. Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the American Arbitration Association ("AAA"), an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Arbitration Agreement ("Arbitration Rules"). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States (in which case hearing will be held in the capital of your country), and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Lily Bird, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Lily Bird. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Lily Bird in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND LILY BIRD WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Washoe County, Nevada.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Lily Bird, Attn: Legal Department, 421 Holcomb Avenue, Reno, NV 89502 within 30 days of purchasing a Subscription. If you send this notice, then the Arbitration Agreement will not apply to either party and you must litigate pursuant to subparagraph xii below. If you do not send this notice, then you agree to be bound by this Arbitration Agreement.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Lily Bird.
Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Lily Bird makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Lily Bird.
Small Claims Court. Notwithstanding this section 10, either you or Lily Bird may bring an individual action in small claims court.
Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court (except for actions brought in small claims court), the parties hereby agree to submit to the personal jurisdiction of the courts located in Washoe County, Nevada for such purpose.
10.2 – Choice of Law
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to its conflicts of laws rules. Foreign laws do not apply. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
11 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS
11.1 – Electronic Communications
Whenever you visit our Site or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically. We will communicate with you by email (if you have provided your email address to us), by text (if you send a SMS or text message to Lily Bird), by posting notices on our Site or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.
11.2 – General Terms