Terms of Use

Last updated: January 10, 2021

Welcome to Birdie!

These Terms of Use ( “Terms”) constitute a binding agreement between you and Birdie, LLC (“Birdie”) and contain the terms and conditions governing your access to and use of: (1) our website at sendbirdie.com and all of our other websites to which these Terms are posted (collectively, the “Website”); (2) our web or mobile applications (collectively, the “Application”); and (3) any products, services, and applications made available through the Website or the Application (together with the Website and the Application, the “Services”). “You” and “your” mean the person who uses or accesses the Services. “We,” “us,” and “our” mean Birdie and its successors, affiliates, and assignees.

Your use of and access to the Services are subject at all times to these Terms and our Privacy Policy. By using or accessing the Services or by clicking to agree to these Terms when that option is made available to you, you represent that you have read and understand these Terms and our Privacy Policy and you agree to be bound by these Terms and our Privacy Policy.

IF YOU DO NOT AGREE TO THESE TERMS AND OUR PRIVACY POLICY, YOU MAY NOT USE OR ACCESS THE SERVICES. PLEASE READ THESE TERMS AND OUR PRIVACY POLICY CAREFULLY BEFORE USING OR ACCESSING THE SERVICES. THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. YOU SHOULD ALSO RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS. ALL CAPITALIZED TERMS SHALL HAVE THE MEANING SET FORTH IN THIS AGREEMENT.

Our Services

Birdie’s Services allow users to send and receive monetary gifts and digital greeting cards to friends and family. You can send money to a friend or family member, even if they don’t have a Birdie account at the time you send the gift, using their email address. If the recipient does not have a Birdie account, they can claim the gift by opening a Birdie account. If they don’t claim any money sent within 60 days of the date it is sent, the payment will be cancelled and any money (excluding any fees you were charged) will be sent back to you.

Eligibility

In order to use the Services, you must: (a) accept and agree to these Terms and our Privacy Policy; (b) register with us on the Website or the Application; (c) be a resident of the United States or one of its territories; (d) be an individual of at least 18 years of age; and (e) provide all information requested by us, such as your name, email address, mobile device number, online credentials for your Bank Account, and such other information as we may request from time to time (collectively, “User Information”).

You represent and warrant that all User Information you provide us from time to time is truthful, accurate, current, and complete, and you agree not to misrepresent your identity or your User Information. You agree to promptly notify us of changes to your User Information by updating your Birdie account on the Website or the Application. If we approve your registration, you will be authorized to use the Services, subject to these Terms.

Identity Authentication

For our compliance purposes and in order to provide the Services to you, you hereby authorize us, directly or through third-parties, to obtain, verify, and record information and documentation we consider necessary to verify your identity and bank account information. This may include:

  • asking you for further information, such as your date of birth, a social security or taxpayer identification number, your physical address and other information that will allow us to reasonably identify you (“Required Identifying Information”);
  • requiring you to take steps to confirm ownership of your email address, phone number or financial instruments;
  • verifying your information against third party databases or through other sources;
  • requiring you to provide a copy of your government-issued photo ID, such as a passport or driver’s license, or other identifying documents; and
  • such other information and documentation that we may require from time to time.

Anti-money laundering and counter-terrorism financing laws may require that we verify the Required Identifying Information if you use certain Birdie services. We reserve the right to close, suspend, or limit access to your Birdie account and/or the Services in the event that, after reasonable inquiries, we are unable to obtain information about you required to verify your identity.

Your Account

You may only create an account for your own personal, non-commercial use and not on behalf of or for the benefit of any third party. If you create an account with Birdie, you are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the Services. You may not share your account information and Birdie is not liable for any fraud or losses caused by the sharing of account information or log-in credentials. You must immediately notify Birdie of any unauthorized uses of your account or any other breaches of security. Birdie will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.

Closing An Account

You may close your Birdie account and terminate your relationship with us without cost, but you will remain liable for all obligations related to your Birdie account even after the account is closed. Any incomplete transactions or transfers must be completed or canceled and you must transfer any money from your Birdie account before closing it. If you voluntarily close your account, or allow your account to lapse, you may be unable to reactivate that account. We may permanently or temporarily terminate or suspend your Birdie account or any access to the Services without notice and liability for any reason, including if in our sole discretion you violate any provision of these Terms, or for no reason. If we have previously terminated your account for any reason, we further reserve the right, in our sole discretion, to prohibit you from reactivating such account or creating a new account. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

In certain cases, you may not close your Birdie account, including:

  • To evade an investigation.
  • If you have a pending transaction or an open dispute or claim.
  • If you owe amounts to us.
  • If your Birdie account is subject to a hold, limitation or reserve.

Sending Money

Birdie should only be used to send and receive money to and from people you know and trust. Do not use Birdie to transact with people you don’t know. Using Birdie’s Services to send or receive money in exchange for a good or service is prohibited under these Terms. If you use Birdie to conduct such a transaction and we later reverse the payment (which could occur if it is determined that these Terms were violated or if the payment was made using a compromised payment method or account), you could lose the money, goods, or other items of value. In such an event, Birdie is not liable for any loss caused by prohibiting, voiding, or refunding such a transaction.

Payment Methods

Birdie allows you to send money to friends and family using a variety of payment methods including: Birdie balance, bank account, debit card, and credit card. You can manage your payment methods, including selecting your preferred payment method, in the Payment Methods section of your Birdie account settings. When linking a bank account, you agree to Birdie collecting information available through our third-party vendors, including Plaid, to verify your identity and the availability of funds. In order to manage risk, we may limit the payment methods available when you send a monetary gift. When linking a bank account you agree to Birdie collecting information available through our third party vendors, including Plaid, to verify your identity and the availability of funds in your bank account.

Link Or Unlink A Payment Method

You can link or unlink a debit card, credit card, or a U.S. bank account to your Birdie account as a payment method. Please keep your payment method information current (e.g. credit card number and expiration date). If this information changes, we may update it using information and third-party sources available to us without any action on your part. If you do not want us to update your card information, you may contact your issuer to request this or remove your payment method from your Birdie account.

Preferred Payment Method

Your preferred payment method will be used when your Birdie balance is not enough to cover the entire amount of a particular transaction. In those instances, the full transaction amount will be placed on your preferred payment method. Transactions will not be split between your Birdie balance and your preferred payment method. If your preferred payment method is unavailable (e.g., a credit card expired), your transaction may be declined.

Bank Account Transfers

When you use your bank account as a payment method, you are allowing us to initiate a transfer from your bank account. You are required to agree to the ACH Authorization Notice each time you initiate a bank transfer. For these transactions, we will make electronic transfers from your bank account in the amount you authorize. You authorize us to try this transfer again if the initial transfer is rejected by your bank for any reason.

IF YOU HAVE NO BIRDIE BALANCE OR IT DOESN’T COVER THE FULL AMOUNT OF A TRANSACTION, YOU SHOULD CONFIRM THAT YOUR BANK ACCOUNT CONTAINS FUNDS SUFFICIENT TO COVER THE PAYMENT BEFORE MAKING THE PAYMENT, IF FUNDED BY YOUR BANK ACCOUNT. THIS WILL HELP YOU AVOID OVERDRAFT OR OTHER FEES YOUR FINANCIAL INSTITUTION MAY CHARGE.

Debit Card Processing

Birdie will process your debit card funded transactions through either the ATM debit network or the Visa, Mastercard or Discover network.

Fees And Limits

We may, at our discretion, impose limits on the amount and/or the number of monetary gifts you can send and receive.

The fees applicable to sending money can be found on the Fees page. If you use your credit card as the payment method when sending money, you may also be charged a cash-advance fee by your card issuer.

Fees and limits may change from time to time in our sole discretion. Your continued use of the Services after any change in fees becomes effective constitutes your acceptance of the updated fees.

Transferring Money Out Of Birdie

In order to transfer money out of your Birdie account via ACH, you must have a bank account with a U.S. financial institution. The balance in your Birdie account may be transferred out of Birdie by:

● Manually transferring it to your bank account linked to your Birdie account, or

● Transferring it to an eligible debit card linked to your Birdie account, subject to the fees applicable to such transfers.

You can manage linked bank accounts in the Payment Methods section of your Birdie account settings. We may set limits on your bank transfers. The fees applicable to transferring money out of Birdie can be found on the Fees page. Fees and limits may change from time to time in our sole discretion.

Bank Transfer Reviews

We review account and transaction activity at various times, including when bank transfers are initiated. This review checks for, among other things, suspicious or illegal activity, and whether your account activity and the activity of users with whom you’ve transacted comply with this agreement. In connection with our review process, you may be required to provide us with additional information and/or documentation to verify your identity or the purposes of the transaction(s). We may limit your account and your access to funds in your account until we complete our review.

Reviews may result in:

  • delayed, blocked or cancelled transfers;
  • money or payments being applied to amounts you owe to us or used to offset loss incurred by us;
  • account limitation, suspension or termination;
  • money or payments being seized to comply with a court order, warrant or other legal process; and/or
  • money or payments you previously received being reversed (i.e., sent back to the sender or to the card or bank account that was used to fund the payment).

Among other reasons, we may take the above actions if you knowingly or unknowingly were a participant in a payment that was made from a stolen card, compromised bank account, or compromised Birdie account, or if you were a participant in a transaction for goods and services between two personal accounts.

Third Party Payments

We provide one or more links to third-party sites that process transactions between users. You acknowledge and agree that we do not control these transactions and that the transmission of gifts is solely between users, by means of our third-party payment processor. When a user’s gift has been made, the user agrees that the amount of the gift may be deducted from the user’s credit card, debit card or bank account, and reserved or secured until the recipient withdraws the funds. All Givers and Recipients must comply with all terms and conditions imposed by our payment processor, in addition to these Terms of Service.

Links

Links to or from other websites may be provided on the Birdie Website, Application or through Birdie’s Services. Birdie assumes no responsibility of any kind for the content or availability of these links, or your use thereof. By inserting links to the Website or Application or making them available through the Services, Birdie does not endorse any such website or its content. Birdie is not responsible for terms of service, or any other governing terms or conditions, of any websites other than the Birdie Website and Application.

FDIC Notice

Any money sent to you on Birdie that has not yet been transferred to your bank account is held by our partner bank, Blue Ridge Bank, N.A., and is FDIC insured for at least a balance of $250,000. By using the Services, you authorize Birdie to hold your funds for your benefit at Blue Ridge Bank, N.A., Member FDIC (“Blue Ridge Bank”), in an account (“FBO Account”). For purposes of applicable FDIC deposit insurance limitations, please note that deposits in the Blue Ridge Bank FBO Account may not be separately insured from any other deposit accounts you may have with Blue Ridge Bank.

Restricted Activities

You may only use the Services for your own personal, non-commercial use and not on behalf of or for the benefit of any third party. Your use of the Services must comply with all applicable law. If your use of the Services is prohibited by applicable law, then you are not authorized to use the Services. We are not responsible if you use the Services in any manner that violates applicable law. Important notice: Birdie reserves the right to suspend an account at any time, and without notice, if the account has been flagged as suspicious or fraudulent for any reason by our security team. Suspended accounts will require investigation.

You agree not to authorize any other person or entity to use your username and password, computer or mobile device to access the Services. You are solely responsible for the maintenance, confidentiality, and security of your username, password, and other User Information. Except as otherwise required by applicable law, you are responsible for all transactions and other activities authorized or performed using your username and password, computer, or mobile device, whether authorized or unauthorized by you. Except as otherwise expressly stated in these Terms or required by applicable law, we are not responsible for any losses arising out of the loss or theft of your User Information, username, password, computer, or mobile device or from unauthorized or fraudulent transactions associated with your Birdie account, your bank account, credit card or debit card. If you suspect or become aware of any unauthorized activity or access to your username, password, computer or mobile device, you must contact us immediately at support@sendbirdie.com.

We offer the use of Services and the features, information, materials, and content provided and depicted through the Services (collectively, “Content”) solely for your personal use for the purposes described therein and in these Terms. Any and all other uses are prohibited. You may not restrict or inhibit any other person from using or enjoying the Services or Content.

The Services and Content are protected by copyright, trademark, patent, and other intellectual property laws. We expressly reserve all rights and remedies under applicable law. Except as expressly provided by these Terms or with our prior written consent, you may not use, modify, disassemble, decompile, reverse engineer, reproduce, distribute, rent, sell, license, publish, display, download, transmit, or otherwise exploit any Content in any form by any means.

Without limiting the foregoing, in connection with your use of the Services, Website, Application, your Birdie account, or in the course of your interactions with us, other users, or third parties, you agree not to:

  • Breach these Terms, or any other agreement between you and us;
  • Violate any law, statute, ordinance, or regulation (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination or false advertising);
  • Infringe our or any third party's copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
  • Modify the Services or Content or create any derivative product from any of the foregoing
  • Use any portion of the Services or Content to provide, or incorporate any portion of the Services or Content into, any product or service provided to a third party;
  • Reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of the Services or Content;
  • Use your Birdie account to conduct transactions for goods or services;
  • Create or control more than one account for yourself without our express authorization, through, among other methods, using a name that is not yours, using a temporary email address or phone number, or providing any other falsified personal information;
  • Jeopardize the security of your Birdie account or any other person’s Birdie account (such as allowing someone else to use your username and password to access the Services)
  • Attempt, in any manner, to obtain the username, password, account, or other security information from any other user of the Services
  • Act in a manner that is defamatory, trade libelous, threatening or harassing;
  • Provide false, inaccurate or misleading information;
  • Send or receive what we reasonably believe to be potentially fraudulent money or payments for advertising, marketing, or otherwise on an unsolicited and unauthorized basis;
  • Refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us;
  • Attempt to double dip during the course of a dispute by receiving or attempting to receive money from both us and the recipient of a payment, bank or card issuer for the same transaction;
  • Control an account that is linked to another Birdie account that has engaged in any of these restricted activities;
  • Use the Services in a manner that results in or may result in:

complaints;

disputes; claims, reversals, chargebacks,

fees, fines, penalties or other liability or losses to Birdie, other users, third parties or you;

● Use your Birdie account or the Services in a manner that we, Visa, Mastercard, American Express, Discover or any other electronic funds transfer network reasonably believes to be an abuse of the card system or a violation of card association or network rules, or for the purpose of earning rewards, perks, miles, points, etc. with your credit card, debit card, or bank account;

● Have any amounts owed to us;

● Provide yourself a cash advance from your credit card (or help others to do so);

● Access the Services from outside the United States;

● Take any action that imposes or may impose (in our sole determination) an unreasonable or disproportionately large load on the Services or out infrastructure;

● Facilitate any viruses, trojan horses, malware, worms or other computer programming routines that attempts to or may damage, disrupt, corrupt, misuse, detrimentally interfere with, surreptitiously intercept or expropriate, or gain unauthorized access to any system, data, information or the Services;

● Use an anonymizing proxy or VPN; use any robot, spider, other automatic device, or manual process to monitor or copy our Website, Application, Services or any of our content without our prior written permission; or use any device, software or routine to bypass our robot exclusion headers;

● Interfere or disrupt or attempt to interfere with or disrupt any of the Services or other users’ use of any of the Services;

● Take any action that may cause us to lose any of the services from our Internet service providers, payment processors, or other suppliers or service providers;

● Use the Services to test credit card behaviors, or make excessive or unexplainable transactions;

● Circumvent any of our policies or determinations about your Birdie account such as temporary or indefinite suspensions or other account holds, limitations or restrictions, including, but not limited to, engaging in the following actions: attempting to open new or additional Birdie account(s) when you have amounts owed to us or when your Birdie account has been restricted, suspended or otherwise limited; opening new or additional Birdie accounts using information that is not your own (e.g. name, address, email address, etc.); or using someone else’s Birdie account; or

● Harass and/or threaten our employees, agents, or other users.

We do not grant you any licenses, express or implied, to our intellectual property or the intellectual property of our licensors, except as expressly stated in these Terms. We and our third-party licensors retain all right, title, and interest in and to the Services, Content, and any associated patents, trademarks, copyrights, mask work rights, trade secrets, and other intellectual property rights. The Services may permit you to submit content, send emails and other communications, and provide other information for publication or distribution to third parties (collectively, “User Content”). Any User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, or any form of “spam.” If you submit User Content, and unless we indicate otherwise, you grant us a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media. We take no responsibility and assume no liability for any User Content submitted by you or any other user or third party. To the extent permitted by applicable law, we may, in our sole discretion and without liability to you, terminate (or suspend access to) your use of the Services, Content, or your Birdie account for any reason, including, but not limited to, your breach of these Terms.

Actions We May Take if You Engage in Any Restricted Activities

If we believe that you’ve engaged in any of these activities, we may take a number of actions to protect ourselves, our users and others at any time in our sole discretion. The actions we make take include, but are not limited to, the following:

● Terminate any agreements with you, limit your Birdie account, and/or close or suspend your Birdie account immediately and without penalty to us;

● Refuse to provide the Birdie Services to you in the future;

● Limit your access to our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf, your Birdie account or any of the Birdie Services, including limiting your ability to send money with any of the payment methods linked to your Birdie account, restricting your ability to send money or make bank transfers;

● Hold your Birdie balance for up to 180 days if reasonably needed to protect against the risk of liability or if you have violated these Terms or any other agreements with you;

● Update inaccurate information you provided us;

● Take legal action against you; or

● If you’ve engaged in any of the restricted activities or otherwise violated these Terms, then you are also responsible for damages to us caused by your violation of these Terms.

If we close your Birdie account or terminate your use of the Services for any reason, we’ll provide you with notice of our actions and make any unrestricted money held in your Birdie account or that has been sent to you available for bank transfers.

You are responsible for all reversals, chargebacks, claims, fees, fines, penalties and other liability incurred by us, any user, or a third party caused by or arising out of your breach of these Terms, and/or your use of the Services. For example, if you send a monetary gift funded by your bank account and your bank informs us you do not have sufficient funds to cover the transaction, you may be liable for the transaction amount. Similarly, if you receive a monetary gift and the transaction is disputed, you may be liable for the money you received.

Warranty Disclaimer

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR THIRD-PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND AS TO THE SERVICES AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE AND OUR THIRD-PARTY SERVICE PROVIDERS MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, OR (E) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR OUR THIRD-PARTY SERVICE PROVIDERS THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT BIRDIE, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, AND THIRD-PARTY SERVICE PROVIDERS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) THE PERFORMANCE OF THE SERVICES OR THE INABILITY TO USE THE SERVICES; (B) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES), WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, EVEN IF SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR IN CONNECTION WITH: (i) THESE TERMS, THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, (ii) DELAYS OR DISRUPTIONS IN THE SERVICES, (iii) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING THE SERVICES OR ANY WEBSITE OR SERVICE LINKED TO OUR WEBSITE, APPLICATION OR ANY OF THE SERVICES, (iv) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN OUR WEBSITE, APPLICATION OR SERVICES OR CONTENT, (v) THE CONTENT, ACTIONS OR INACTIONS OF THIRD PARTIES, OR (vi) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR BIRDIE ACCOUNT; (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE AMOUNT PAID BY YOU TO BIRDIE UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION OR $100, WHICHEVER IS LESS; OR (D) ANY EVENT BEYOND OUR REASONABLE CONTROL.

Release

If you have a dispute with any other Birdie user, you release us from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise, for example, California Civil Code § 1542) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

Indemnification

You must indemnify Birdie for actions related to your Birdie account and your use of the Services. You agree to defend, indemnify, and hold harmless Birdie, its affiliates, and its and their respective employees, officers, directors, agents, and third-party service providers from and against any claims, actions, demands, suits, liabilities, losses, fines, penalties, costs, expenses and damages (including reasonable attorneys’ fees) made or incurred by any third party due to or arising out of: (a) your use or access to the Services, (b) your violation of any of these Terms, (c) your violation of any applicable law or any third-party rights and/or the actions or inactions of any third party to whom you grant permissions to use your Birdie account or access any of the Services on your behalf, or (d) your fraud or willful misconduct. Such indemnified parties reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate in asserting any available defenses.

Assignment

You may not transfer, assign, or delegate these Terms or your rights or obligations hereunder or your Birdie account in any way (by operation of law or otherwise) without our prior written consent. To the extent permitted by applicable law, we may transfer, assign, or delegate these Terms and our rights and obligations hereunder without your consent.

Third-Party Beneficiary

You agree that our third-party services providers are third-party beneficiaries of the applicable provisions of these Terms, with all rights to enforce such provisions as if such service providers were a party to these Terms.

Governing Law

These Terms are made under and will be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.

Consent to Receive Electronic Communications

Consent to Receive Electronic Communications

To the extent permitted by applicable law, you consent to use electronic signatures and to electronically receive and view all disclosures, records, notices, agreements, statements and other communications (collectively, “Communications”) from us relating to all Services provided to you under these Terms and in connection with your relationship with us that we may otherwise be required to send or provide you in paper form (e.g., by mail), by any of the following means:

● Text to your mobile phone number (which may include a link to a new Communication on the Website),

● To your email (or social media network), or

● Notifications from our Application or Website.

Delivery by any of these means will constitute proper notice to you under applicable law. You acknowledge that Communications will include, but may not be limited to, the following:

● The Birdie Website, Privacy Policy, and the User Agreement (“Policies and Agreements”);

● Communications and/or amendments we may provide you under our Policies and Agreements;

● Balance, activity and any other information on your Birdie account(s),

● Periodic statements, receipts, confirmations, authorizations and transaction history for your Birdie account(s);

● Communications regarding the resolution of any claimed error on your periodic statements; and

● Communications required or permitted by law or regulation.

By accepting and agreeing to these Terms electronically, you represent that: (1) you have read and understand this consent to use electronic signatures and to receive Communications electronically; (2) you satisfy the minimum system requirements specified below; and (3) your consent will remain in effect until you withdraw your consent as specified below.

Your Right to Revoke Consent

Your consent to receive Communications electronically will remain in effect until further notice by us or until you revoke your consent to receive Communications electronically. You may withdraw your consent to receive further Communications electronically at any time by contacting us at support@sendbirdie.com or submitting your request in writing to: Legal Department, Birdie, LLC, 8322 Beverly Blvd., #301, Los Angeles, CA 90048. If you withdraw your consent to receive Communications electronically, we reserve the right to refuse to accept your Birdie Account application, to cancel your Birdie Account, place your Birdie Account on inactive status, close your Birdie Account and return the balance of your Birdie Account to your Bank Account, or to provide a paper copy of Disclosures. Any withdrawal of your consent to receive Communications electronically will be effective only after we have a reasonable period of time to process your withdrawal. Please note that withdrawal of your consent to receive Communications electronically will not apply to Communications electronically provided by us to you before the withdrawal of your consent becomes effective.

SYSTEM REQUIREMENTS: In order to receive Communications, whether by text or email, you need to have a means of printing or storing them. So, in addition to having an email address and phone number you must have the following:

● Computer or mobile device with Internet connection;

● A current web browser with cookies enabled;

● A valid email address on file in your Birdie Account profile;

● Ability to store or print the Disclosures;

● A Current Version of a program that accurately reads and displays PDF files, such as Adobe Acrobat Reader version 7 or higher; and

● if you use a spam blocker, you must add birdie@sendbirdie.com to your email address book or whitelist.

“Current Version” means a version of the software that is currently being supported by its publisher.

We reserve the right to change these System Requirements and will provide you with a Communication when we make a material change to the System Requirements.

Receiving Texts and Emails

In order to receive Communications, you must ensure that the primary mobile phone and/or email address that you provide us is your valid, current phone number or email address, and you are able to receive at that address texts or email messages containing Communications including attached electronic documents and that such Communications, including portions that are attached documents are available for viewing and storing or printing by you. You agree to promptly update your email address by updating your Account profile if your email address changes. You acknowledge that our ability to notify you of the availability of your Communications is contingent on the validity of mobile phone number and email address in our records. If your mobile phone or email address is no longer valid, we reserve the right to determine your Birdie Account is inactive or take other actions as set forth in these Terms. You will not be able to conduct any transactions in your Birdie Account until you update your mobile phone or email address in your Birdie Account profile.

Reservation of Rights

We reserve the right to provide you with any Communication in writing, rather than electronically, or to withdraw the right to receive Communications electronically at any time. You agree to maintain on file with us your current street address and to promptly update your address in the event it changes by updating your Birdie Account profile. Although we may waive our fee for delivery of paper Communications (“Communication Request Fee”), we reserve the right to charge the Communication Request Fee and to increase this fee in our discretion.

Print Disclosures

We recommend that you print a copy of this Consent and any Disclosure that you view electronically for your records as the Disclosure may not be accessible online at a later date.

General

You understand and agree that we are responsible for sending the Communications to you electronically by email or text to the address in your Birdie Account profile or through the Service. We are not responsible for any delay or failure in your receipt of the email or text notices and whether or not you choose to view the Communication, subject to your right to revoke your consent to receive Communications electronically.

Contact us

Except as otherwise provided by law or other agreement between you and us, you may provide us with notices regarding your Birdie Account by clicking the “Contact Us” link at the bottom of this page, contacting support@sendbirdie.com or mailing us at Legal Department, Birdie, LLC, 8322 Beverly Blvd., #301, Los Angeles, CA 90048.

Privacy

Protecting your privacy is very important to us. Please review our Privacy Policy in order to better understand our commitment to maintaining your privacy, as well as our use and disclosure of your information.

Electronic Fund Transfer Disclosure Statement

The following disclosures are made in accordance with the federal law regarding electronic payments, deposits, transfers of funds and other electronic transfers to and from your account(s). There may be limitations on account activity that restrict your ability to make electronic fund transfers. Any such limits are disclosed in the appropriate agreements governing your account.

A. Definitions:

Electronic Fund Transfer: Any transfer of funds, other than a transaction originated by check, draft or similar paper instrument, that is initiated through an electronic device or computer to instruct us to debit or credit an account. Electronic Fund Transfers include such electronic transactions as direct deposits or withdrawals of funds, transfers initiated via telephone, website or mobile application. Preauthorized Electronic Fund Transfer: An Electronic Fund Transfer that you have authorized in advance to occur at a later date or to recur at substantially regular intervals; for example, direct deposits into or withdrawal of funds out of your account.

B. Your Liability:

Authorized Transfers: You are liable for all Electronic Fund Transfers that you authorize, whether directly or indirectly. Unauthorized Transfers: Tell us at once if you believe your account or PIN or Access Information (as defined below) is lost or stolen or has been or may be subject to unauthorized Electronic Fund Transfers. Support message us immediately to keep your possible losses to a minimum. You could lose all the money in your account(s). If you tell us within two (2) business days after learning of the loss or theft of your account access device, or after learning of any other unauthorized transfers from your account involving your account access device, you can lose no more than $50 if Electronic Fund Transfers are made without your permission. For these transactions, if you DO NOT tell us within two (2) business days after learning of the loss, theft or unauthorized use, and we can establish that we could have prevented the unauthorized transfer(s) if you had told us in time, you could lose as much as $500. Also, if your periodic account statement shows unauthorized transfers and you DO NOT tell us within sixty (60) days after the statement was delivered to you, you may not get back any money you lose after the sixty (60) day period if we can prove that we could have prevented the unauthorized transfer(s) if you had told us in time. If an extenuating circumstance (such as extended travel or hospitalization) prevents you from promptly notifying us of a suspected lost or stolen access device or of any other suspected unauthorized transfer(s), the time periods specified in this Section B may be extended for a reasonable period.

Errors About Transactions

Errors or Questions about Transactions

Please contact us by emailing us at support@sendbirdie.com (1) if you believe a transaction receipt or a statement is wrong, or (2) if you need more information about a transaction on the receipt or statement. We must hear from you no later than sixty (60) days after we send you the first statement on which the error or problem appeared. Filing a chargeback or reversal with your financial institution related to a Birdie payment does not constitute notice of an error to us. You must contact us directly to notify us of errors. Your inquiry must include: (a) your name, email associated with your account, and your account number (if available); (b) a description of the error or the transaction you are unsure about, and a clear explanation of why you believe there is an error or why you need more information; and (c) the dollar amount of the suspected error.

Time Periods

(1) Ten-Day Time Period - Birdie will investigate promptly and, except as otherwise provided in this paragraph, shall determine whether an error occurred within 10 business days of receiving a notice of error. Birdie shall report the results to the user in writing within three business days after completing its investigation. Birdie shall correct the error within one business day after determining that an error occurred.

(2) Forty Five-Day Time Period - If Birdie is unable to complete its investigation within 10 business days, Birdie may take up to 45 days from receipt of a notice of error to investigate and determine whether an error occurred. If we decide to do this, Birdie will:

  1. Provisionally credit the user’s account in the amount of the alleged error within 10 business days. Birdie need not provisionally credit the user’s account if:
    • Birdie does not receive written confirmation within 10 business days of an oral notice of error
  1. Inform the user, within two business days after the provisional crediting, of the amount and date of the provisional crediting and gives the user full use of the funds during the investigation;
  2. Correct the error, if any, within one business day after determining that an error occurred; and
  3. Report the results to the user within three business days after completing its investigation (including, if applicable, notice that a provisional credit has been made final).
  4. Extension of time periods. The time periods described above may be extended as follows:
    • Extension of Ten-Day Time Period - The time limit for resolution is extended to 20 business days in place of 10 business days if the notice of error involves an electronic fund transfer to or from the account within 30 days after the first deposit to the account was made; or
    • Extension of Forty Five-Day Time Period - The time limit for resolution is extended to 90 days in place of 45 days for completing an investigation, if a notice of error involves an electronic fund transfer that occurred within 30 days after the first deposit to the account was made.

Account Balances

By creating an account with Birdie and initiating bank deposits or withdrawals (i.e. EFTs), you agree to the terms of service and privacy policy of our financial software provider, Unit, and Unit’s financial institution partner’s Terms of Service & Privacy Policy (“Unit TOS”), https://www.unit.co/clients-privacy-policy, which are incorporated herein by reference. Terms not defined in this section shall be defined in Unit TOS. We have partnered with Unit, a financial services software company, to offer digital bank account services. When you sign up for an account with Birdie, you will also be signing up for a Unit User Account (as defined in Unit TOS). You authorize us to share your identity and banking information with Unit to open and support your User Account as further detailed in our Privacy Policy and Unit’s Privacy Policy. It is your responsibility to make sure the data you provide us is accurate and complete. Additionally, you are responsible for complying with Unit TOS when using your User Account. It is your responsibility to read and understand Unit TOS as it contains terms and conditions relating to your Unit user account including but not limited to your rights, limitations, reversal and other liabilities, limitation of liability and binding arbitrations provisions. When you open a Unit User Account, you will link an account to perform EFT and, if applicable, deposit funds into your Unit User Account. Deposits into your User Account are held at Unit’s financial institution partners as detailed in Unit TOS.

All EFT transactions are performed by and deposits are held by Blue Ridge Bank. Birdie and Unit only transmit transaction instructions to Blue Ridge Bank. Birdie will provide you with all transaction notifications and User Account balances in addition to providing customer support relating to your Unit User Account as detailed below.

Transactions History and Disputes

All questions regarding EFT transactions or your Birdie account must be directed to support@sendbirdie.com and not to Unit, Blue Ridge Bank or any of Birdie’s third-party servicers. Birdie is responsible for resolving issues and errors relating to transactions and account balances. If you wish to make a financial service complaint against Birdie, you may email notices@unit.co. In addition to any of your other representations and warranties in these Terms, you represent that: (a) your browser is equipped with at least 128-bit security encryption; (b) you are capable of printing, storing, or otherwise saving a copy of this electronic authorization for your records; and (c) the ACH transactions you hereby authorize comply with applicable law.

For purposes of these Terms, “Business Day” means Monday through Friday, excluding federal banking holidays.

While Birdie strives to make withdrawals available to you promptly, you acknowledge and agree that withdrawals may not be available to you for use immediately, and Birdie does not guarantee that withdrawals will be available to you within any specific time frame, and Birdie expressly disclaims any and all responsibility for any delay or inability to access and use withdrawals at any specified time, and any consequences arising from such delay or inability. You are responsible for ensuring that the information you provide to Birdie in order to process a withdrawal, including your bank account information, is accurate and up to date.

Unauthorized Access

If your mobile device is lost or stolen or if you suspect someone has gained unauthorized access to your username or password, you must contact us immediately at support@sendbirdie.com. In order to take any action, you will need to provide certain User Information so we can verify your identity.

Dispute Resolution

BY BINDING ARBITRATION JURY TRIAL WAIVER: CLASS ACTION WAIVER. For any and all controversies, disputes, demands, claims, or causes of action between you and us (including the interpretation and scope of this Section and the arbitrability of the controversy, dispute, demand, claim, or cause of action) relating to the Services or these Terms (as well as any related or prior agreement that you may have had with us), you and we agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration. The arbitration will take place in the federal judicial district of your residence. As used in this Section, “we” and “us” mean Birdie and its subsidiaries, affiliates, predecessors, successors, and assigns and all of its and their respective employees, officers, directors, agents, and representatives. In addition, “we” and “us” include any third party providing any product, service, or benefit in connection with the Services or these Terms (as well as any related or prior agreement that you may have had with us) if such third party is named as a co-party with us in any controversy, dispute, demand, claim, or cause of action subject to this Section. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes. As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). You should review this provision carefully. To the extent permitted by applicable law, you are GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court in the state or municipality of your residence within the jurisdictional limits of the small claims court and as long as such matter is only pending in that court. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence in order to maintain the status quo pending arbitration, and each party hereby agrees to submit to the exclusive personal jurisdiction of the courts located within the federal judicial district of your residence for such purpose. A request for interim measures will not be deemed a waiver of the obligation to arbitrate. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators’ decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT. You and we must abide by the following rules: (A) 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; (B) 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; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) we also reserve the right, in our sole and exclusive discretion, to assume responsibility for any or all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (g) subject to the limitation of liability provisions of these Terms, the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (h) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law. This Section will survive termination of your Birdie Account and these Terms as well as any voluntary payment of any debt in full by you or any bankruptcy by you or us. With the exception of subparts (a) and (b) of this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting part was not contained herein. If, however, either subpart (a) or (b) of this Section is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence. If you wish to opt out of this arbitration provision, you must notify us of your election in writing within 30 days of the date that you first became subject to this arbitration provision or within 30 days of the effective date of any material change to these Terms by sending a written notice to us by certified mail at the following address: Legal Department, Birdie, LLC, 8322 Beverly Blvd., #301, Los Angeles, CA 90048, Attn: Arbitration Opt-Out. Your opt-out notice must include your name, address, phone number, and email address.

For more information on the AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call the AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.

Miscellaneous

You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that we may, in our sole discretion, do any of the foregoing on your behalf or for ourselves. The failure of either you or us to exercise, in any way, any right herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms will otherwise remain in full force and effect and enforceable.

Contact

If you have any questions, comments, or concerns regarding these Terms or the Services, please contact us at support@sendbirdie.com, or Legal Department, Birdie, LLC, 8322 Beverly Blvd., #301, Los Angeles, CA 90048.