Product Specific Terms
Last updated: 21 November 2024
These Product Specific Terms apply to you for any Services that you sign up for (including through any of our Affiliates):
From the day you sign up for our Services, if on or after 21 November 2024.
From 22 December 2024, if you signed up for our Services before 21 November 2024.
Our archived terms are available here. Please read our Updated Terms notice, which explains the changes to our legal terms.
Introduction
The Product Specific Terms below govern your use of the Services. Capitalized terms used in these Product Specific Terms but not defined below are defined in our General Terms and Conditions or other agreement with us governing your use of the Services. We introduce new products regularly. If a product is not specified in these Product Specific Terms, we provide that product on the basis of the General Terms and Conditions.
Violation of these Product Specific Terms. Violations of these provisions may result in deactivation of your Services and third party liability. We may suspend your account in case of legitimate complaints from any third-party and/or end user or in any case when your behavior is reasonably believed to violate these Product Specific Terms. You are and will remain solely responsible for all usage of our Services and for all risks, expenses and liabilities arising from or relating to fraudulent, criminal or illegal usage of the Services by you, your users, your customers and/or your end users, or any other person or entity directly or indirectly making use of the Services through you.
1. SMS
1.1. SMS Service. This Section 1 applies to the use of application to person short messaging services generally sent to, from or over a mobile, IP or other communications network (“SMS”) as a standalone channel or as an integrated or associated part of other products provided by us or our Affiliates (“SMS Service”).
1.2. Basic Principles. In order to promote successful transmission of legitimate SMS unhindered by filtering or other blockers, you should cooperate with us to prevent and eliminate unsolicited SMS and any spam. For this purpose, you agree to obtain the required level of consent from each recipient before you initiate any SMS, and you further agree to comply with applicable laws and communications industry and telecommunications carrier standards. Further requirements are set out in the Acceptable Use Policy.
1.3. Responsibility for Your Customers’ Use of Services. If you provide your own end users or clients with the ability to send SMS through us, you are responsible for the SMS activity of these users. You must ensure that any SMS activity initiated by your users complies with the Agreement and policies, and applicable laws, regulations, and industry standards, including communications providers’ policies.
1.4 Third party terms. From time to time, we may use the services or infrastructure of a third party to provide the SMS Service to you that requires that we pass through and apply their legal terms to you. You acknowledge and agree that your use of the SMS Service may also be subject to the terms and policies of such third parties, as specified and updated here from time to time (“Third Party SMS Terms”). You will not use the SMS Service in a way that would violate the Third Party SMS Terms. If and to the extent applicable and required, you hereby explicitly authorise us to accept the Third Party SMS Terms and any ancillary onboarding forms on your behalf and on behalf of any of your Affiliates (as applicable) using the SMS Service under your account.
1.5 Charging. Fees for the SMS Services include two components: (i) our fees for facilitation of the SMS transmission via our platform, and (ii) pass-through fees for third party carrier message delivery services and, where applicable, Communications Surcharges. We collect the total payment and remit the appropriate fees to the carrier, deducting our intermediary facilitation Fees. Accordingly, we will charge you for each SMS that has been initiated by you and processed by our platform in accordance with the Agreement, regardless of actual receipt of such SMS by the recipient.
2. VOICE
2.1. Voice Service. This Section 2 applies to the use of Voice services as a standalone channel or as an integrated or associated part of other products provided by us or our Affiliates (“Voice Service”).
2.2. Permitted Use. You should ensure that our Voice Services will be used in accordance with all applicable laws and regulations, including access to emergency services and cooperation with law enforcement agency requests. It is your responsibility to, for example, (i) refrain from transmitting inaccurate calling number information with the intent to defraud, cause harm, or wrongfully obtain something of value. Further requirements are set out in the Acceptable Use Policy.
2.3. Cooperation Against Illegal Robocalling. You will cooperate with us as necessary, to determine the origin of a voice call that is suspected of being an illegal robocall by identifying (a) the upstream voice service provider from which such voice call entered our or your network; or (b) your own customer or end user, as applicable, if such voice call originated from within our or your network.
2.4. Recording Calls without Consent. You will respect consumer and data protection at all times. Before you record your calls, you should notify and obtain the necessary authorization from your end-users and comply with all other information, notification, retention, access and other applicable requirements if required by applicable laws.
2.5. Minimum Usage and Call Duration Requirements. You should not have a high volume of unanswered phone calls or phone calls that are too short in duration, as defined in the applicable laws and regulations.
2.6. Emergency Services. You shall not use our Services to offer any Emergency Services. “Emergency Services” means services that allow a user to connect with emergency personnel or Public Safety Answering Points (PSAP), such as 911/112/999/995, 999/112, or E911 services.
3. NUMBERS
3.1. Numbers Service. This Section 3 applies to the use of telephone numbers, alphanumeric numbers, and short-codes as a standalone service or as an integrated or associated part of other products provided by us or our Affiliates (“Numbers Service”).
3.2. Identification and Disclosure of Use. You will provide us with correct and accurate information, such as about the intended use and the identity of the actual user of the numbers that we may request from you at any point in time.
3.3. No Ownership. You acknowledge and agree that the use of our Numbers Service does not grant you any ownership or other rights to telephone numbers other than the limited, revocable use rights expressly set out in the Agreement.
3.4. Disconnection of Numbers without Notice. You do not have the right to use telephone numbers indefinitely and such numbers can be disconnected at any time, without notice, in the following cases: (i) non-compliance with legal, regulatory, self-regulatory, governmental, statutory, or telecommunication network operator’s requirements or codes of practice for the use of such numbers; and (ii) numbers used by suspended, terminated, and trial accounts.
3.5. Disconnection of Numbers with Notice. You acknowledge and agree that telephone numbers provided by us or our Affiliates may be reclaimed by us, our Affiliates or the applicable supplier, including in situations where you do not send sufficient traffic over that telephone number such that the telephone number is unutilized or underutilized, as defined by any local, federal, and/or national regulatory agency and/or governmental organization with oversight over the relevant telephone number and numbering plan; or in situations where you do not send any calls to the telephone number for three (3) consecutive months, whichever is sooner. Except for cases set out in Section 3.4 (Disconnection of Numbers without Notice) above, we will use our best efforts to provide at least seven (7) days advance notice of reclamation via email, except where we are prevented from doing so by applicable law, the competent regulatory agency or governmental organization, or the relevant supplier. For clarity, the disconnection or reclamation of a telephone number does not grant you the right to terminate the Agreement or any Order Form or to suspend any of your obligations under the Agreement.
3.6. Assignment of Numbers, Porting. You may not transfer or assign a telephone number unless explicitly agreed by us in writing.
3.7. Dead Endpoints. You shall not forward from a virtual number provided by us to a dead endpoint (e.g. if you forward from a virtual number, you must make a reasonable attempt to receive or answer the message, as applicable).
4. Bird CRM
5. EMAIL CLOUD SENDING
5.1 Email Service. This Section 5 applies to the Email Services as a standalone service or as an integrated or associated part of other products provided by us or our Affiliates. “Email Services” means each of the following, either collectively or individually, Email Starter, Email Premier, Email Premium, Email Enterprise, Signals, Deliverability Services and Recipient Validation. You acknowledge that we are conduits in the provision of the Email Services and we do not guarantee successful email inbox placement. It is your sole responsibility to comply with mailbox provider guidelines, such as the guidelines from Google, Yahoo, and Microsoft, including adopting and compliance with industry standard email deliverability best practices, to achieve your desired email inbox placement results.
5.2 Customer Data. For the Email Service, you hereby grant us a worldwide, non-exclusive, non-transferable (except pursuant to a permitted assignment under the Agreement), royalty-free, perpetual, irrevocable license to use, copy, store, modify, create derivative works of, and otherwise process certain Customer Data, specifically the email addresses of a person receiving an electronic message sent by Customer through the Email Service; provided that for each person receiving an email (each, a “Recipient”): (i) Customer is not identified as the source of such data; (ii) the email address is pseudonymized; (iii) the email address is not EEA Personal Data; (iv) the email address is not disclosed to any other customer; and (v) we do not use the email address to send any of our own emails to the Recipient. Customer has all rights, permissions, and/or consents necessary to grant us the rights in the Customer Data as provided in this Agreement.
5.3 Analytics Data. Subject to the limitations in this Section, for the Email Services, we and our Affiliates may: (a) collect, extract, compile, synthesize, analyze, attribute, store, and otherwise use data resulting from Customer’s use and operation of the Email Service (“Usage Data”) including routing data (e.g., server hostnames, server IP addresses, and timestamps), delivery data (e.g., whether, when, where, and how an Email was sent or delivered), engagement data (e.g., whether, when, where, and how an Email was opened or clicked), and message data (e.g., message type, tone, length, and presentation); and (b) aggregate or compile Usage Data with other data, including data obtained via third parties and the usage data of our other customers (“Aggregate Data”). Usage Data and/or Aggregate Data: (i) will not include any identifiers of Customer as a source of such data; and (ii) will only be used by us and our Affiliates to: (1) provide aggregate research statistics and insights (e.g., publishing average email open rates by city, benchmarking by industry vertical, and analyzing industry trends); (2) optimize delivery, engagement, and conversion of your and other customers’ email campaigns (e.g., send time optimization, recipient validation, predictive filtering based on a recipient’s propensity to engage, convert, and/or complain, and content selection optimization); and (3) for our own lawful business purposes including operational support and planning, research and development, and additional product functionality. Notwithstanding the foregoing, you should notify and obtain the necessary authorization from your end-users and comply with all information, notification, retention, access and other applicable requirements if required by applicable laws. We assume no responsibility when Customer fails to do so.
5.4 Email Starter Services. If you purchase Email Starter Services, we will provide such services in accordance with the services description from time to time available at Email Starter and in the Documentation.
5.5 Email Premier Services. If you purchase Email Premier Services, we will provide such services in accordance with the services description from time to time available at Email Premier and in the Documentation.
5.6 Email Premium Services. If you purchase Email Premium Services, we will provide such services in accordance with the services description from time to time available at Email Premium and in the Documentation.
5.7 Email Enterprise Services. If you purchase Email Enterprise Services, we will provide such services in accordance with the services description from time to time available at Email Enterprise and in the Documentation.
5.8 Signals. If you purchase Signals Services, we will provide such services in accordance with the current services description from time to time available at Signals and in the Documentation.
5.9 Deliverability Services. If you purchase Deliverability Services, we will provide such services in accordance with the current services description from time to time available at Deliverability Services and in the Documentation.
5.10 Recipient Validation. If you purchase Recipient Validation Services, we will provide such services in accordance with the current services description from time to time available at Recipient Validation and in the Documentation.
6. EMAIL ANALYTICS: INBOX TRACKER AND COMPETITIVE TRACKER
6.1 Inbox Tracker and Competitive Tracker. This Section 6 applies to each of our Services known and branded as Inbox Tracker and Competitive Tracker, as more particularly set out from time to time here and here and in the Documentation, either as standalone services or as an integrated or associated part of other products provided by us or our Affiliates.
6.2 Permitted Use. You are only permitted to use Inbox Tracker and/or Competitive Tracker for your internal business purposes in accordance with applicable law, as limited by the number of seats identified in the Order Form and any other limitations contained therein (“Permitted Use”). Permitted Use includes publishing information derived from the Licensed Data so long as the Licensed Data itself is not disclosed or otherwise reproduced as part of such marketing. “Licensed Data” means the information and data contained within Inbox Tracker and/or Competitive Tracker and any further combinations or derivatives of such information and data, including any reports, analyses, summaries, forecasts, predictions, or confidence intervals. You will not disclose the Licensed Data to any third party.
7. REPUTABLE SENDER PROGRAM
7.1 Reputable Sender Program This Section 7 applies to our Reputable Sender Program Service, as more particularly set out from time to time here and in the Documentation, as a standalone service or as an integrated or associated part of other products provided by us or our Affiliates.
7.2 Reputable Sender Program. The Reputable Sender Program (the “Accreditation Program”) is a performance-based preferential treatment program. The Accreditation Program requires you to adhere to the Reputable Sender Standards defined within the Order (the “Program Standards”). If you exceed your permitted email volume listed in the Order during the applicable term, you are required to upgrade your permitted email volume accordingly for an additional fee. We may require you to provide information that is reasonably necessary to confirm the accuracy of your Accreditation Program application and for compliance with the Program Standards.
7.3 Accreditation Termination for Cause. You acknowledge and agree that we may terminate your participation in the Accreditation Program if: (i) you are in violation of the Program Standards and do not cure such violation within fifteen (15) business days of being notified of such violation; (ii) the volume of email sent over your IP addresses or domains enrolled in the Accreditation Program exceeds the maximum volume permitted under the Order; or (iii) any of your IP addresses or domains in the Accreditation Program are not in and/or have not been in compliance with Program Standards on multiple occasions (even if you have in each instance cured such non-compliance).
7.4 Suspension of Accreditation IP Addresses, Domains, and/or Account. You acknowledge and agree that we may immediately suspend and/or exclude one or more of your IP Address and/or domain from the Accreditation Program for any activity that is inconsistent with the objectives of the Program Standards, as determined by us in our sole discretion.
8. EMAIL DESIGN STUDIO
8.1 Email Design Studio. This Section 8 applies to our Email Design Studio Service known as Email Design Studio (the “Email Design Studio Services”, formerly known as variations of “Taxi for Email” or “Email Template Design”), as more particularly set out from time to time here and in the Documentation, as a standalone service or as an integrated or associated part of other products provided by us or our Affiliates.
8.2 Template License. We grant to you a non-exclusive, non-transferable, personal, and non-sublicensable license to: (a) use templates provided by the Email Design Studio Service (the “Templates”) to input and display the Customer Data; and (b) to customize the Templates as permitted by the functionality in the Email Design Studio Service or as otherwise specifically agreed by us in writing.
9. ON-PREMISES SOFTWARE
9.1. On-Premises Software. This Section 9 applies to our On-Prem Software (as defined below) Service, as more particularly set out from time to time here and in the Documentation, as a standalone service or as an integrated or associated part of other products provided by us or our Affiliates.
9.2 Inapplicable General Terms and Conditions. Due to the unique nature of on-premises software, the following sections of the General Terms and Conditions do not apply to any purchase of (i) PowerMTA Enterprise Server License; (ii) PowerMTA Standard Server License; (iii) PowerMTA Volume License; (iv) PowerMTA Hot Backup; (v) PowerMTA Management Console; or (vi) PowerMTA Development (individually and collectively, “On-Prem Software”): Section 1 (Your Account); Section 2.4 (Account Suspension); Section 2.5 (Maintenance and Downtime); Section 3.1(b) (Our Responsibilities); Section 4.7 (Prepaid Balance); and Section 5.4 (Application License). In the event of a conflict between this Section 9 and the General Terms and Conditions, this Section 9 of the Product Specific Terms will prevail solely with respect to your use of On-Prem Software.
9.3. License Grant. We hereby grant to you a limited, non-exclusive, non-sublicensable, non-transferable license during the Term to use the On-Prem Software purchased under the applicable Order Form in object code form only, subject to the terms and conditions set out in the Order Form, this Section 9.3, and the General Terms and Conditions (the "PowerMTA License” or “PowerMTA Licenses", as applicable).
9.4. Use Limitation. Each PowerMTA License you purchase is limited by either a Server Limitation or a Volume Limitation (each as defined below), which will be noted in the Order Form or, if applicable, the applicable ordering section of our Site where you purchase this Service through our Site. We have the right to audit your use of the On-Prem Software to ensure compliance with the applicable Server Limitation or Volume Limitation, which may include accessing the hardware on which you have installed the On-Prem Software at any time during or after the Term.
(a) Server Limitation. If your PowerMTA License has a Server Limitation, for each PowerMTA License you purchase you will only be permitted to install, run, and use one (1) copy of the object code version of the applicable On-Prem Software on a single Server (a “Server Limitation”). A “Server” means a machine that processes data using one or more CPUs, and which is owned, leased or otherwise used or controlled by you. Each Server Backup, Server Blade or Server Virtual Machine contained in or emulated on a Server constitutes a separate Server. "Server Backup" means a Server that is used only to archive data or to provide standby capability on systems configured for disaster recovery purposes. "Server Blade" means a complete computing system on a single circuit board, which will include one or more CPUs, memory, disk storage, operating system and network connections and is designed to be hot-pluggable into a space-saving rack where each rack may contain multiple Server Blades. "Server Virtual Machine" means a software implementation of a Server that executes programs like, and emulates, a physical Server. For avoidance of doubt, a single physical Server or Server Blade can host multiple operating systems and include multiple Server Virtual Machines.
(b) Volume Limitation. If your PowerMTA License has a Volume Limitation, you will be permitted to install, run, and use the On-Prem Software on any number of Servers located at any number of locations during the applicable Term; provided, however your PowerMTA License will be limited by the number of Emails that you are permitted to send using the On-Prem Software (a “Volume Limitation”). The applicable Volume Limitation for your PowerMTA License will be stated in the Order Form. Solely for purposes of this Section 9.4, an “Email” is an outbound digital message sent by you using the On-Prem Software. For any PowerMTA License with a Volume Limitation, you agree to enable and not disable the On-Prem Software’s outbound HTTPS connection that allows us to track the number of Emails sent by you.
9.5. Server License Outbound Connection. If you purchase an Enterprise PowerMTA License with a Server Limitation, the number of outbound connections is unlimited. If you purchase a Standard PowerMTA License with a Server Limitation, you are only permitted a maximum of three (3) outbound connections per each Standard PowerMTA License purchased. This Section 9.5 of the Product Specific Terms does not apply to you if your PowerMTA License has a Volume Limitation.
9.6. Support Services. Unless otherwise explicitly stated in the Order Form, On-Prem Software standard support services are included during the Term of any annual PowerMTA Enterprise License, PowerMTA Standard License, or PowerMTA Volume License purchase and consists of: (a) technical assistance by email, and (b) to the extent each of the following are made commercially available by us to our customer base generally, (i) access to major and minor releases, (ii) access to fixes and patches, and (iii) documentation for the On-Prem Software (“On-Prem Support Services"). The On-Prem Support Service does not cover problems arising from your own hardware or other software that is not ours or we do not provide, compatibility problems between the On-Prem Software and your own hardware and other software that is not ours or we do not provide, or problems resulting from using the On-Prem Software in violation of the Order Form, this Section 9.6, and the General Terms and Conditions.
9.7. Your Responsibilities. For On-Prem Software only, Section 3.2 (Your Responsibilities) of the General Terms and Conditions is replaced with the following language:
3.2 Your Responsibilities. You agree to use the On-Prem Software only in accordance with how the On-Prem Software has been made available to you by us, this Agreement (including any applicable Documentation and Product Specific Terms), Order Form(s)and applicable law. You will be solely responsible for (a) all use of the On-Prem Software, including prohibited acts such as reverse engineering, copying, disassembling, decompiling, or modifying (except with respect to modifying sample programs as specifically permitted under Section 9.8 (Sample Programs) of the Product Specific Terms or creating derivative works (except with respect to creating derivative works of sample programs as specifically permitted under Section 9.8 (Sample Programs) of the Product Specific Terms of any part of the On-Prem Software and Documentation and (b) any data and other information or content you process and/or send using the On-Prem Software (“Customer Data”). You will not transfer, resell, lease, license, or otherwise make available the On-Prem Software to third parties. You agree to provide prompt and reasonable cooperation regarding information requests we receive from law enforcement and regulatory authorities. You are solely responsible for preventing unauthorized access to or use of the On-Prem Software and will notify us promptly to legalnotice@bird.com and privacy@bird.com of any such unauthorized access or use. Except to the extent caused by our breach of this Agreement, we will not be liable for any loss or damage arising from unauthorized use of the On-Prem Software and you will continue to be charged in respect of any such access. You will not use the On-Prem Software or permit it to be used to transmit any content that is not in compliance with the Acceptable Use Policy.
9.8. Sample Programs. Notwithstanding Section 5.1 (Ownership of Service) of the General Terms and Conditions, the sample programs included within the On-Prem Software to facilitate custom programming and use of the On-Prem Software’s APIs may be modified and used by you solely in connection with the PowerMTA License during the Term.
9.9. On-Prem Software Customer Data. Notwithstanding Section 5.2 (Our Data), Section 5.3 (Your Data), and Section 7.1 (Your Representations and Warranties) of the General Terms and Conditions, we acknowledge that the nature of the On-Prem Software means that Customer Data (including recipient email addresses and Email content) sent using the On-Prem Software will remain solely on your Servers on which you install the On-Prem Software. You will not provide us with any Customer Data through your use of the On-Prem Software other than: (a) your business contact data for (i) invoicing, billing, compliance and other business inquiries, and (ii) contract management; and (b) your PowerMTA License usage data, including, but not limited to, the number of Emails you send using a PowerMTA License with a Volume Limitation, for our legitimate internal business purposes such as monitoring your compliance with PowerMTA License contractual limitations.
9.10. Indemnification Exclusions. In addition to the exclusions already provided in the last sentence of Section 8.1 (Indemnification by Us) of the General Terms and Conditions and solely with respect to any Infringement Claim (as defined therein) arising out of the On-Prem Software, we will have no liability or obligation under Section 8.1 (Indemnification by Us) of the General Terms and Conditions arising from or out of: (a) failure to use updates to the On-Prem Software made available by us that would have avoided the alleged infringement; or (b) use of the On-Prem Software not in accordance with any applicable user documentation or specifications. This Section 9.10 will survive any termination or expiration under Section 11 (Term, Termination, and Survival) of the General Terms and Conditions.
9.11. Termination Deletion Obligations. Upon the effective date of termination or expiration of the Agreement or any Order Form including On-Prem Software: (a) you are required to delete the On-Prem Software and any updates, modifications and copies of the On-Prem Software, and documentation from your Server(s); and/or (b) if the On-Prem Software was initially delivered to you on physical storage media, you are required to return the On-Prem Software and any updates, modifications and copies of the On-Prem Software to us. We have the right to require you to certify in writing to us that you have complied with the deletion and/or return obligations in this Section 9.11. This Section 9.11 will survive any termination under Section 11 (Term, Termination, and Survival) of the General Terms and Conditions.
10. PUSH NOTIFICATIONS API
10.1. Push Notifications API Services. This Section 10 applies to each of the Pusher RTC Channels Service and the Pusher Beams Service provided by or through Pusher, a Bird company (“Push Notifications API Services”), as more particularly set out from time to time here and in the Documentation, as standalone services or as an integrated or associated part of other products provided by us or our Affiliates.
10.2 Fee Threshold. You agree to adhere to the pricing plan you select in connection with your use of the Push Notifications API Services free of charge up to the then-current usage quotas specified at https://pusher.com/legal/quotas for your selected pricing plan for the Push Notifications API Services (“Fee Threshold”), which quotas we may update from time to time. You may discontinue your use of the free of charge Push Notifications API Service at any time. Once you reach the Fee Threshold, your use of the Push Notifications API Services will be suspended until you have upgraded to a paid-for plan.
10.3 Upgrading to Paid-for Plans. Once you have upgraded to a paid-for plan, a bill will be issued to your account for all Services Fees due under your plan, provided they are within the Fee Threshold for the applicable plan. For use of the Push Notification API Services in excess of any portion of the Fee Threshold, you shall be responsible for all charges up to the amount set in your account.
10.4 Usage Limits. Unless otherwise specified in the Order Form, your use of the Push Notifications API Service is subject to the usage limitations set out from time to time at https://pusher.com/channels/pricing and https://pusher.com/beams/pricing/ (“Usage Limits”).
10.5 Usage Limits Notifications. You will receive a notification on the email address used to register for the Services when you are at 80% and 100% of the Usage Limits. You can add additional email addresses for receiving such notifications or receive notifications via other platforms designated in your account settings.
10.6 Billing. Unless otherwise specified in the Order Form, we will invoice the Services Fees upfront on an annual basis. Our measurement of usage statistics is final for billing purposes.
10.7 Changes to Access Credentials. We may change passwords or other access credentials if necessary for security reasons at any time by giving you one (1) business day notice.
10.8 IP Addresses. We may process your and your end users’ IP addresses for error logging and monitoring issues as part of providing the Push Notifications API Services. If an end user receives an application error, we may store the related IP address for up to fourteen (14) days. We will only store the 100 most recent errors and related end user IP addresses.
10.9 Open Source Licenses. Open source software licenses for components of the Push Notifications API Services released under an open source license constitute separate written agreements. To the extent that the open source software licenses expressly supersede the Agreement, the open source licenses govern your use of the components of the Push Notifications API Services released under an open source license.
11. VIDEO
11.1 Video. This Section 11 applies to our video-first customer engagement platforms and video services (“Video Service”), as more particularly set out from time to time in the Documentation, as standalone services or as an integrated or associated part of other products provided by us or our Affiliates.
11.2 Service and User Roles. The Video Service distinguishes between five user roles. Each role has different authorization rights and various levels of access to information: (i) “Administrators” have full access to the system and all functionalities of the Video Service; (ii) “Users” are individuals authorized by Administrators who can schedule and manage their own sessions and can see reviews left by Guests; (iii) “Managers” have the same permissions as Users, provided that they can also schedule sessions on behalf of other Users; (iv) “Planners” can schedule and manage sessions for Users but can not do sessions themselves; and (v) “Guests” are individuals authorized to join sessions by Administrators, Users, Managers, and/or Planners. You are responsible for assigning user roles and managing the use of the Video Service according to those roles.
11.3 Services Fees. Unless otherwise specified on the Order Form, one-off Service Fees relating to the set-up and installation of the Video Service are due and payable immediately upon signing of the relevant Order Form. The monthly subscription Service Fees will apply from the date the Video Service is made available to you.
11.4 Independent Customer Terms and Conditions. The Video Service enables you to make your own terms and conditions available to Guests, which apply only to the relationship between you and your Guests. When you enter into an agreement with a Guest via a video session (“Session”) using the Video Service, we do not become a party to such agreement.
11.5 Use Restrictions. You may not frame or utilize framing techniques to enclose any of our intellectual property rights without our express written consent. You may not use any meta tags or any other “hidden text” utilizing our intellectual property rights without our express written consent.
11.6 Fair use. A Customer may use functionalities within the Video Service that are delivered through a third-party provider, including usage of international telephone numbers (“Third-Party Functionality”). These Third-Party Functionalities are not included in the Video Service licensing fee. In the event that the Customer’s usage of the Third-Party Functionalities exceeds 5% of the monthly Video Service licensing fee, we may bill these fees directly to the Customer. The Customer shall pay the fees in accordance with the Agreement.
11.7 Recordings.
11.7.1 The functionality for recording, storing, downloading and deleting video calls can be made available by us on request by Customer.
11.7.2 Customer is responsible for compliance with all applicable laws and regulations to Customer’s use of the video call recording functionality, including data protection laws and intellectual property rights.
11.7.3 A file will be created during the (video) call which contains the selected content of the video call.
11.7.4 Video call recordings can be stored with us, or on premise with the Customer. Depending on the type of storage, the following applies:
11.7.4.1 With us: The file will be encrypted and stored in a designated folder on the cloud server used by us. The file can be downloaded directly by Customer in MP4 format through a secured connection. This storage lasts until the moment the Customer chooses to delete the file or until the Customer terminates the Agreement, whichever is sooner.
11.7.4.2 Transferring from us to external storage: Transferring of the files to the Customer is done through Customer’s transfer mechanism of choice. We will count the transfer as successful once it has initiated the transfer of the file, using the Customer’s transfer mechanism of choice and storage location of choice. Due to external factors (such as availability and updates of the Customer’s transfer mechanism and storage location of choice) we cannot guarantee the successful transfer of the file from us to the Customer’s storage location of choice. We therefore offer Customer to keep a back-up of the file(s) in our encrypted storage, before deleting the file(s) held by us. We will keep the back-ups with due care and diligence. Upon request of the Customer, we can also retain the file(s) in back-up until the Customer has confirmed to us that a file is transferred successfully. In this situation Customer is fully responsible for quality assurance of the video call recordings and to make sure that this confirmation is correct.
11.7.5 In case Customer uses manual recordings (where recordings may be started/stopped manually in the video call) the source data from us is leading in identifying when the recording started/stopped.
11.7.6 We are not liable for any loss / deletion of video call recordings. We are not liable for any claims from Administrators, Users, Managers, Planners and/or Guests regarding the video call recordings.
11.7.7 Customer is responsible to inform their Guests that the video call is being recorded and stored, taking into account the information obligations under the data protection laws. Notwithstanding the foregoing, you should notify and obtain the necessary authorization from your end-users and comply with all information, notification, retention, access and other applicable requirements prescribed by applicable laws. We assume no responsibility when Customer fails to do so.
11.7.8 Prohibited Use: Customer agrees that it will not use, and will not permit any Administrator, User, Manager, Planner and/or Guest to use the Services in violation of any of our terms or in a manner that violates applicable laws and regulations, including but not limited to, anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings. Customer also agrees to be solely responsible for compliance with all such laws and regulations.
11.8 Conversation Intelligence.
11.8.1 The functionality for conversation intelligence can be made available by us on request of the Customer. Conversation intelligence converts the recording of a video call into a text file. This text file can be further analyzed with optional add-on functionality including the goal tracker that checks if key topics have been discussed in the conversation.
11.8.2 In order to utilize this functionality, Customer agrees to the following: (a) use of our subprocessor Google Cloud to process the audio tracks of the conversations; and (b) use of the recording functionality of the Video Service as listed under the Section 11.7 (Recordings) above.
12. SUPPORT SERVICES AND PROFESSIONAL SERVICES
12.1 Support Plan. If Customer purchased a support plan during the Term, we shall provide support services to Customer in accordance with our then-current support plan for the relevant Service available at https://bird.com/pricing/support or as otherwise agreed in writing with you by separate agreement.
12.2 Push Notifications API Service. If Customer purchased a Push Notifications API Service support plan during the Term, we shall provide support services to Customer in accordance with our then-current support plan for Push Notifications API Services available at https://pusher.com/channels/pricing and https://pusher.com/beams/pricing/ or as otherwise agreed in writing from you by separate agreement. If Customer has not purchased a Push Notifications API Service support plan, we shall provide support services to Customer in accordance with our then-current support plan for Push Notifications API Services available at https://pusher.com/legal/support or as otherwise provided in writing to Customer.
12.3 Professional Services. To the extent Customer purchases professional services from us or our Affiliates (“Professional Services”), these terms and conditions shall apply and are deemed to be fully incorporated in the Agreement.
13. GOOGLE BUSINESS MESSAGES
13.1 Google Business Messages Online Terms. In addition to the other provisions of this Agreement, you acknowledge and agree that your use of Google Business Messages (“GBM Service”) is subject to the terms and policies provided by Google LLC and/or its affiliates (“Google”), including without limitation the Google APIs Terms of Service (currently available at https://developers.google.com/terms) and Terms of Service for Business Messages (currently available at https://developers.google.com/business-communications/business-messages/support/tos) and any supplemental or other terms or policies that may be provided separately by us or Google or its affiliate(s), all as may be amended from time to time (the “GBM Online Terms”). You will not use the GBM Service (including beta products) in a way that would violate the GBM Online Terms. If and to the extent applicable and required, you hereby explicitly authorise us to accept the GBM Online Terms on your behalf and on behalf of any of your Affiliates using the GBM Service under your account.
14. MESSENGER
14.1 Messenger Online Terms. In addition to the other provisions of this Agreement, you acknowledge and agree that your use of Messenger (“Messenger Service”) is subject to the terms and policies provided by Meta Platform Inc. and/or its affiliates (“Meta”), including the Beta Product Testing Terms (currently available at https://www.facebook.com/legal/BetaProductTestingTerms), and the Meta Terms of Service (currently available at https://www.facebook.com/terms.php?ref=p), the Community Standards (currently available at https://www.facebook.com/communitystandards/), the Commercial Terms (currently available at https://www.facebook.com/legal/commercial_terms), the Platform Terms (currently available at https://developers.facebook.com/terms), the Developer Policies (currently available at https://developers.facebook.com/devpolicy), and any supplemental or other terms or policies that may be provided separately by us or Meta, each as may be amended from time to time (the “Messenger Online Terms”). You will not use the Messenger Service (including beta products) in a way that would violate the Messenger Online Terms. If and to the extent applicable and required, you hereby explicitly authorise us to accept the Messenger Online Terms on your behalf and on behalf of any of your Affiliates using the Messenger Service under your account.
15. INSTAGRAM
15.1 Instagram Online Terms. In addition to the other provisions of this Agreement, you acknowledge and agree that your use of the Instagram Business Service (regardless of whether on the Instagram or Messenger platform) (“Instagram Business Service”) is subject to the terms and policies provided by Meta Platforms, Inc. and/or its affiliates (“Meta”), including the Beta Product Testing Terms (currently available at https://www.facebook.com/legal/BetaProductTestingTerms), the Meta Terms of Service (currently available at https://www.facebook.com/terms.php?ref=p), the Community Standards (currently available at https://www.facebook.com/communitystandards/), the Commercial Terms (currently available at https://www.facebook.com/legal/commercial_terms), the Instagram Terms of Use (currently available at https://help.instagram.com/581066165581870 and includes the Community Guidelines (currently available at https://help.instagram.com/477434105621119?helpref=page_content), the Platform Terms (currently available at https://developers.facebook.com/terms), the Developer Policies (currently available at https://developers.facebook.com/devpolicy), and any supplemental or other terms or policies that may be provided separately by us or Meta, each as may be amended from time to time (the “Instagram Online Terms”). You will not use the Instagram Business Service (including beta products) in a way that would violate the Instagram Online Terms. If and to the extent applicable and required, you hereby explicitly authorise us to accept the Instagram Online Terms on your behalf and on behalf of any of your Affiliates using the Instagram Business Service under your account.
15.2 Page User Permissions. By linking an Instagram account to a Facebook Page, you enable the ability for all users with a page role of moderator or higher (“Page Users”) to view and respond to user-initiated questions for customer support on Instagram (“IG Messages”). As the owner of such an Instagram account, you acknowledge and agree that Page Users will have the ability to view and respond to IG Messages. You acknowledge that the provision of the Instagram Business Service is subject to Meta’s approval and the compliance with the requirements set out in the Agreement and the Instagram Online Terms. You hereby give us consent to send IG Messages on your behalf.
16. LINE
16.1 LINE Online Terms. In addition to the other provisions of this Agreement, you acknowledge and agree that your use of any LINE products or services (“LINE Service”) is subject to the terms and policies provided by LINE Corporation and/or its affiliates (“LINE”), including the LINE Official Account Terms of Use (currently available at https://terms2.line.me/official_account_terms_oth), LINE Official Account Guidelines (currently available at https://terms2.line.me/official_account_guideline_oth), LINE Official Account API Terms of Use (currently available at https://terms2.line.me/official_account_api_terms_jp?lang=ja, please note the terms are not available in English), LINE Developers Agreement (currently available at https://terms2.line.me/LINE_Developers_Agreement), LINE User Data Policy (currently available at https://terms2.line.me/LINE_Developers_user_data_policy?lang=en), LINE Individual Agreement (currently available at https://terms2.line.me/provide_information_zhd_jp, please note the terms are not available in English), LINE Terms and Conditions of Use (currently available at https://terms.line.me/line_terms/), and the LINE Privacy Policy (currently available at https://terms.line.me/line_rules/), as may be amended from time to time, and any further agreements, policies and guidelines provided by LINE and/or by us, each as amended from time to time (collectively, the “LINE Online Terms”). You will not use the LINE Service (including beta products) in a way that would violate the LINE Online Terms. If and to the extent applicable and required, you hereby explicitly authorise us to accept the LINE Online Terms on your behalf and on behalf of any of your Affiliates using the Line Service under your account.
17. X (Formerly known as “TWITTER”)
17.1 X Online Terms. In addition to the other provisions of this Agreement, you acknowledge and agree that your use of the X service (“X Service”) is subject to the terms and policies provided by X Corp. and/or its affiliates (“X”), including the X Terms of Service (currently available at https://twitter.com/tos), X Privacy Policy (currently available at https://twitter.com/en/privacy), X Rules and Policies (currently available at https://help.twitter.com/en/rules-and-policies ), and any supplemental or other terms or policies that may be provided by us, X or their respective affiliate(s), each as may be amended from time to time (the “X Online Terms”). You will not use the X Service (including beta products) in a way that would violate the X Online Terms. If and to the extent applicable and required, you hereby explicitly authorise us to accept the X Online Terms on your behalf and on behalf of any of your Affiliates using the X Service under your account.
17.2 Suspension and Termination. In addition to any other grounds for suspension or termination included in the Agreement, we may suspend or terminate your access to and use of the X Service and delete any Customer Data obtained by us through your use of the X Service on our own account or upon written instruction from X for any or no reason.
17.3 Sending and Receiving Posts. You hereby give us consent to retrieve and accept non-public information (including direct messages, protected Posts (formerly known as ‘Tweets’), and activity and engagement insights about Tweets) relating to your X account to the extent necessary to provide the X Service.
18. VIBER
18.1 Viber Online Terms. In addition to the other provisions of this Agreement, you acknowledge and agree that your use of the Viber services (“Viber Service”) is subject to the terms and policies provided from time to time by Viber Media S.a.r.l. (“Viber”), including without limitation the Viber Terms of Use (currently available at https://www.viber.com/en/terms/viber-terms-use/) and the Viber Acceptable Use Policy (currently available at https://www.viber.com/en/terms/viber-public-content-policy/), and any further agreements, policies and guidelines provided by Viber and/or by us as may be amended from time to time (the “Viber Online Terms”). You will not use the Viber Service in a way that would violate the Viber Online Terms. If and to the extent applicable and required, you hereby explicitly authorise us to accept the Viber Online Terms on your behalf and on behalf of any of your Affiliates using the Viber Service under your account. Without limiting the generality of the previous sentence, you will: (i) only send messages to users who have consented to receive messages by opting in or actively registering with you, did not revoke such agreement, and who are of legal age to receive such messages according to applicable laws; (ii) ensure that all messages comply with all terms and guidelines provided Viber, (iii) not allow any third party to use your verified messages channel, (iv) not send messages that contain or transmit viruses, worms, defects, Trojan horses, or any malicious code; and (iv) not send messages that falsely expresses or implies that the content is sponsored or endorsed by Viber.
18.2 Opt-In Data. You will keep a record of consent obtained from users and shall present such data upon Viber’s request.
19. WECHAT
19.1 WeChat Terms. In addition to the other provisions of this Agreement, you acknowledge and agree that your use of the WeChat services (“WeChat Service”) is subject to the terms and policies provided from time to time by WeChat International Pte. Ltd., Tencent International Services Europe B.V. and/or their affiliates (“WeChat”), including the WeChat Terms of Service (currently available at https://www.wechat.com/en/service_terms.html) and the WeChat Acceptable Use Policy (currently available at https://www.wechat.com/en/acceptable_use_policy.html) (the “WeChat Online Terms”). You will not use the WeChat Service (including beta products) in a way that would violate the WeChat Online Terms. If and to the extent applicable and required, you hereby explicitly authorise us to accept the WeChat Online Terms on your behalf and on behalf of any of your Affiliates using the WeChat Service under your account.
19.2 Data Protection. We may anonymize, permanently delete or render unreadable any Customer Personal Data sent or received through the WeChat Service if requested by WeChat. We shall have no liability for any loss of or damage to Customer Personal Data anonymized, rendered unreadable or deleted in accordance with this Section 19.2.
20. WHATSAPP
20.1 WhatsApp Online Terms. In addition to the other provisions of this Agreement, you acknowledge and agree that your use of the WhatsApp service (“WhatsApp Service”) is subject to the terms and policies provided by WhatsApp, Inc., Meta Platforms, Inc. and/or their affiliates (“WhatsApp”), including without limitation the Meta terms for WhatsApp Business Terms for Service Providers (currently available at https://www.whatsapp.com/legal/business-terms-for-service-providers/?lang=en), the WhatsApp Business Solution Terms (currently available at https://www.whatsapp.com/legal/business-solution-terms), the WhatsApp Business Terms of Service (currently available at https://www.whatsapp.com/legal/business-terms the WhatsApp Business Messaging Policy (currently available at https://business.whatsapp.com/policy ), the WhatsApp Brand Guidelines (currently available at https://whatsappbrand.com/), the WhatsApp Business Data Processing Terms (currently available at https://www.whatsapp.com/legal/business-data-processing-terms ) and any supplemental or other terms or policies that may be provided by us, WhatsApp or WhatsApp’s affiliate(s), all as may be amended from time to time (the “WhatsApp Online Terms”). You will not use the WhatsApp Service (including beta products) in a way that would violate the WhatsApp Online Terms. You hereby explicitly authorise us to accept the WhatsApp Online Terms on your behalf and on behalf of any of your Affiliates using the WhatsApp Service under your account.
20.2 Use of Tech Providers. You may not grant any independent third party (“Tech Provider”) access to the WhatsApp Service and/or your WhatsApp messages sent through the WhatsApp Service without prior written approval of such Tech Provider by WhatsApp. If you are a Tech Provider or have engaged or intend to engage a Tech Provider that will use or have access to the WhatsApp Services, you must immediately notify us. If you have prior written approval by WhatsApp as an authorised Tech Provider and use our Services as a Tech Provider, you will (i) comply with the terms and conditions applicable to Tech Providers as specified by WhatsApp from time to time (the “Tech Provider Terms”) (ii) comply with our Tech Provider terms and conditions found here, (iii) take such technical or other steps as are necessary to enable account sharing of your WhatsApp account with us for the purposes of the Services and (iv) provide any necessary information that we or WhatsApp may require from time to time in respect of the Services. We may immediately suspend your use of the WhatsApp Services if you (i) operate as a Tech Provider and/or (ii) engage a Tech Provider in connection with the use of WhatsApp Services in breach of this Section.
20.3 Suspension and Termination. In addition to any other remedies included in the Agreement, we may suspend or terminate your access to and use of the WhatsApp Service if you no longer have an active WhatsApp account, you fail to comply with the requirements of this Section 20 or upon written instruction from WhatsApp for any or no reason.
20.4 Service Fees for WhatsApp Conversation-Based Messages. The Service Fees for WhatsApp Conversation-Based messages apply the rates set by Meta or WhatsApp, as amended from time to time (“Conversation-Based WhatsApp Rates”). The Service Fees may be updated from time to time (including during and throughout the Term) to reflect any such updates. We reserve the right to convert the currency of the Conversation-Based WhatsApp Rates in an Order Form or invoice and, where applicable, will do so in accordance with Section 4.6 (Currency) of the General Terms and Conditions. If and as long as you meet the criteria for other rates for Conversation-Based WhatsApp Rates set by Meta or WhatsApp, we will apply such other rates to the extent that we are enabled or permitted to do so by Meta or WhatsApp.
20.5 Customers and/or End-Users in China. This Section applies if you are (a) a foreign subsidiary of a business entity that is located in, or subject to the jurisdiction of, the People’s Republic of China, or (b) interacting with end clients/customers located in, or subject to the jurisdiction of, the People’s Republic of China. In respect of the WhatsApp Services provided by us, you may not collect, share, transfer or process the personal information of any natural person who is located in China and will ensure that any end client/customer information that may contain personal information collected, shared, transferred, or processed by you is that of natural persons located outside of China.
21. APPLE MESSAGES FOR BUSINESS
21.1 Apple Online Terms. In addition to the other provisions of this Agreement, you acknowledge and agree that your use of the Apple Messages for Business Service (“Apple Messages for Business Service”) is subject to the terms and policies provided by Apple Inc. and/or its affiliates (“Apple”), including the Apple Messages for Business Service Terms (currently available at https://register.apple.com/tou/bca/latest/en), the Apple Business Register Terms of Use (currently available at https://register.apple.com/tou/abr/latest/en), the Apple Developer Program License Agreement (currently available at https://developer.apple.com/support/terms/) and any supplemental or other terms or policies that may be provided by us, Apple or Apple’s affiliate(s), all as may be amended from time to time (the “Apple Messages for Business Online Terms”). You will not use the Apple Messages for Business Service (including beta products) in a way that would violate the Apple Messages for Business Online Terms. You hereby explicitly authorize us to accept the Apple Messages for Business Online Terms on your behalf and on behalf of any of your Affiliates using the Apple Messages for Business Service under your account.
21.2 Suspension and Termination. In addition to any other remedies included in the Agreement, we may suspend or terminate your access to and use of the Apple Messages for Business Service if you no longer have an active Apple ID or Apple Messages for Business account or upon written instruction from Apple or for any or no reason.
22. Telegram
22.1 Telegram Online Terms. In addition to the other provisions of this Agreement, you acknowledge and agree that your use of any Telegram products or services (“Telegram Service”) is subject to the terms and policies provided by Telegram Messenger LLP and/or its affiliates (“Telegram”), including the Telegram Terms of Service, the Telegram API Terms of Service and the Telegram Privacy Policy, each as may be amended from time to time (the “Telegram Online Terms”). You will not use the Telegram Service in a way that violates the Telegram Online Terms. If and to the extent applicable and required, you hereby explicitly authorize us to accept the Telegram Online Terms on your behalf and on behalf of any of your Affiliates using the Telegram Service under your account.
23. Bird Pay
23.1 Bird Pay Service. This Section 23 applies to the provision and use of payments-related services we or our Affiliate(s) make available to you as a standalone service or as an integrated or associated part of other products provided by us, our Affiliate(s) and/or third party payment service partners. Our payment service encompasses (i) payment account setup; (ii) facilitating payment risk assessments (or underwriting) performed by the payment service partners (“PSPs”, see Section 23.6 (PSP) below); and (iii) payment data transmission services facilitating your integration with a payment processor (jointly referred to as “Bird Pay Services”). Additional details about the Bird Pay Service are provided in this Section and the Documentation.
23.2 Bird Contracting Entity.
The Bird Pay Services are provided to you by Bird Pay B.V. By clicking “I accept” during the Bird Pay Service account setup, or signing the respective Order Form, or by accessing or using the Bird Pay Services, you agree that you have read and understood, and as a condition to your use of the Bird Pay Services, you agree to be bound by the General Terms and Conditions and Section 23 hereof. Your acceptance of the Agreement forms a legal agreement between you and Bird Pay B.V. in respect of the Bird Pay Services. If you purchase other Services from us that are not Bird Pay Services, your agreement in respect of any such other Services will be a separate agreement between you and the entity specified pursuant to Section 15 (Contracting Entity) of the General Terms and Conditions and such other Services shall not be provided by Bird Pay B.V.
Neither Bird Pay B.V. nor any of the entities specified in Section 15 (Contracting Entity) of the General Terms and Conditions is a licensed financial institution, such as a bank, payment institution, or electronic money institution. Instead, we are a provider of the Bird Pay Services as outlined in this Section.
23.3 Eligibility. The Bird Pay Services are available only to businesses:
located in the Bird Pay regions specified here (as may be updated from time to time) (“Bird Pay Regions”); and
that provide true, accurate and correct information in respect of, and have successfully completed, the Customer Due Diligence Process.
You must not apply for or attempt to use the Bird Pay Services:
in any region outside of the Bird Pay Regions;
if you have not successfully completed and passed the Customer Due Diligence Process.
“Customer Due Diligence Process” means the checks and associated requirements required under applicable law in respect of anti-money laundering (AML), know your customer (KYC), know your business (KYB), and associated customer due diligence (CDD) requirements.
23.4 Customer responsibilities
You agree to provide accurate and complete information to us and/or the PSP as required for the Bird Pay Services. Failure to provide such information to Bird or PSP may result in delays or inability to use Bird Pay Services.
You assume sole and exclusive responsibility for:
the collection of your customers’ consent to be billed for each transaction or, as the case may be, on a recurring basis, in compliance with applicable legal requirements;
compliance with Visa Europe Ltd., Visa U.S.A., Inc., Visa Canada Inc. and Visa International (collectively, “Visa”), MasterCard International Incorporated (“MasterCard”), American Express or other applicable card networks’ (such networks being, collectively, the “Payment Networks”) payment rules (the “Payment Network Rules”). The Payment Network Rules for Visa, MasterCard and American Express are available at the following links from time to time: Visa, MasterCard and American Express. The Payment Networks may amend the Payment Network Rules at any time and without notice to us or to you. Insofar as the terms of this Agreement and/or the Connected Account Agreement (defined in the Connected Account section) are inconsistent with the Payment Network Rules, the Payment Network Rules shall prevail. We may amend this Agreement from time to time in accordance with Section 12 (Changes to these Terms) of the General Terms and Conditions as may be necessary to comply with the Payment Network Rules.
the use of the Bird Pay Services and the Payment Processing Activities (as defined below) in accordance with this Agreement and the Connected Account Agreement.
the verification of the identity of customers and of the eligibility of a presented card used to purchase your products and services. Bird does not guarantee or assume any liability for Payment Processing Activities authorised and completed that may later be reversed or charged back (see Section 23.17 (Liability and Indemnification in connection with Bird Pay Services) below).
all reversed or charged back transactions regardless of the reason for, or timing of the reversal or chargeback.
23.5 Bird Pay Service Restrictions. You may only use the Bird Pay Services for legitimate business purposes. You may not, and may not enable or allow any third party to:
use the Bird Pay Services for personal, family, or household purposes;
engage in any activities or practices, or fall into any of the categories, that are prohibited from using Bird Pay Services under this Agreement, applicable law, the Payment Network Rules or as may be specified from time to time by the PSP via the Connected Account Agreement (including the PSP’s banking partners);
act as a service bureau or pass-through agent for the Bird Pay Services with no added value to end users;
use the credit available on any card to provide cash advances to cardholders;
submit any transaction for processing that does not stem from your sale of goods or services to a customer;
act as a payment intermediary or aggregator or otherwise resell the Bird Pay Services on behalf of any third party;
transmit fraudulent authorizations or fraudulent transactions;
use the Bird Pay Services or in a manner that a Payment Network reasonably believes to be an abuse of the Payment Network or a violation of the Payment Network Rules; or
work around any of the technical limitations of the Bird Pay Services, use any tool to enable features or functionalities that are otherwise disabled by us.
23.6 The PSP.
The PSP acting as payment processor for the Economic European Area (EEA) is Airwallex (Netherlands) B.V., an electronic money institution authorised by De Nederlandsche Bank with licence number R179622. For jurisdictions outside the EEA, the processing and settlement of payment transactions initiated by you (“Payment Processing Activities”) will be carried by the respective Airwallex affiliate specified in the Connected Account Agreement (defined in the Connected Account section) between you and the PSP in the relevant jurisdiction. We reserve the right to add to, change or remove the PSP or to use multiple PSPs from time to time. Where we do so, we will use reasonable efforts to notify you of such change, such as by posting an announcement on our website or sending you an in-application notice or email. We may also require you to enter into a new Connected Account Agreement with such PSP(s) to allow you to continue using the Bird Pay Services.
The PSP is a licensed technical services provider whose role is to accept and process credit card, debit card and other types of payments with respect to the collection of the sales of your product and services through internet-based transactions.
23.7 Payment Methods. The Bird Pay Services supports the cards of most Payment Networks, which are outlined in the Documentation and may be updated from time to time. For the avoidance of doubt, we or the PSP may add or remove one or more types of Payment Networks or cards, in their sole discretion, at any time, without prior notice to you.
23.8 Customer Services. The PSP retains sole responsibility for the Payment Processing Activity and customer support in connection therewith. We will use commercially reasonable efforts to provide you with customer support to assist in resolving issues related to access to the Bird Pay Services through the process outlined in the Documentation. You assume sole and exclusive responsibility for providing customer support to your customers for all matters related to your products and services, including issues that may arise from the processing of payments through the Bird Pay Services.
23.9 Taxes. Further to Section 4.4 (Taxes) of the General Terms and Conditions, you have sole and exclusive responsibility to determine what, if any, Taxes apply to the sale of your goods and services and/or the payments you receive in connection with your use of Bird Pay Services. It is solely your responsibility to assess, collect, report, or remit the correct Taxes to the proper tax authority, whether in customers’ jurisdictions, your jurisdiction or elsewhere. We are not obligated to, nor will we, determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority, arising from any Payment Processing Activity. You agree that we may send you any tax-related information electronically.
23.10 Connected Account.
From time to time, we may elect to provide all or any part of the Bird Pay Services to you (i) directly by us or an Affiliate(s) (in such cases subject to and in compliance with appropriate regulatory authorisations in applicable regions) and/or (ii) through and/or in partnership with one or more authorised PSP(s). For the avoidance of doubt, we shall not provide regulated payment services to you under (i) unless we have all relevant required regulatory licences to operate in the relevant region. We may use a combination of (i) and (ii) for region specific or other reasons.
We may specify from time to time certain onboarding and associated requirements applicable to your use of the Bird Pay Services depending on which election applies under a. above. Without limiting or affecting the foregoing, the following provisions shall apply where the Bird Pay Services are provided by means of a PSP:
By accepting this Agreement and/or by using the Bird Pay Services, you (i) agree to be bound by the terms of the connected account agreement with the PSP (which, is available here from time to time) (the “Connected Account Agreement”) and, to the extent you use a payment method subject to additional terms, the relevant local payment methods terms, as well as to comply with any other supplemental terms, policies, or requirements as the PSP may specify from time to time; and (ii) authorise the creation of an account with the PSP for the Payment Processing Activities. The Connected Account Agreement will define and govern the provision of the services provided by the PSP to you in connection with the Bird Pay Service. The Connected Account Agreement will be made available to you as part of or pursuant to the onboarding process for the Bird Pay Services. You may not access the Bird Pay Services if you have not accepted the Connected Account Agreement.
The Connected Account Agreement is a direct agreement between you and the PSP and we and our Affiliate(s) are not party to the Connected Account Agreement. All rights and obligations and any disputes arising in respect of the Connected Account Agreement apply solely as between you and the PSP.
You authorise us to make User information and information in respect of the Customer Due Diligence Process available to the PSP as necessary for the provision of the Bird Pay Services and the PSP’s services under the Connected Account Agreement.
23.11 Consent for Bird Pay Services. You shall provide the User Information to us and/or the PSP(s). You hereby authorise and consent to the processing, collection, access, use and sharing of the User Information for the purposes of the Bird Pay Services, including but not limited to sharing the User Information with a PSP (as applicable) for its use under or pursuant to any Connected Account Agreement.
“User Information” means such identifying and other information requested of you as part of the onboarding process for the Bird Pay Services, including but not limited to information requested as part of the Customer Due Diligence Process and/or as may be required by a PSP from time to time.
23.12 Suspension and Termination. In addition to any other grounds for suspension or termination included in the Agreement, we may suspend or terminate your access to and use of the Bird Pay Services and delete any Customer Data obtained by us or a PSP (as applicable) through your use of the Bird Pay Service:
at any time and for no reason upon notification to you;
where we reasonably consider that your use of the Bird Pay Services presents an unacceptable level of credit risk or increases or may increase the potential or incidence of fraud in respect of the Bird Pay Services;
where you do not comply with any provisions of this Agreement or the Connected Account Agreement; or
upon request of the Payment Network, the PSP, or a card issuer.
Termination of the Connected Account Agreement may, at our discretion, result in a termination of the Bird Pay Services altogether. Termination of this Agreement shall entitle Bird to cause the PSP to terminate the Connected Account Agreement.
23.13 Data Protection & Privacy.
To provide the Bird Pay Services, it is necessary to process Personal Data. The legal basis for our processing of data as a controller is the contractual necessity to provide the Bird Pay Services, as set forth in this Agreement. We and, when applicable, the PSP act as independent data controllers for data processed as part of the Bird Pay Services. By accepting these Terms, you acknowledge and consent to our sharing of data, including Personal Data, between the PSP and us and our Affiliates as necessary to facilitate your application for and use of the Bird Pay Services. We bear no responsibility or liability for the processing of your data by a PSP. You acknowledge and agree to instruct us to process data, including Personal Data, as a data controller as described in this Agreement and our Privacy Statement.
The purposes for processing Personal Data include: a) Providing the Bird Pay Services to you and the cardholder, and facilitating our relationship with you and a PSP (where applicable); b) Enabling us to share data with our Affiliates, applicable third-party service providers, and a PSP (where applicable) as necessary for us and such parties to provide the Bird Pay Services to you; c) Enabling us to comply with all applicable laws; and d) All purposes set out in the Privacy Statement.
23.14 Bird Pay Fees.
You agree to pay the Fees for the Bird Pay Services as set out from time to time on our website and/or in the respective Order Form (“Bird Pay Fees”).
We reserve the right to change the Bird Pay Fees from time to time. Where we are required by applicable law to notify you of such Fee changes, we will take commercially reasonable steps to notify you of such changes taking effect which may be satisfied by notifying you via an in-application notice on the Site or otherwise. If you continue to use the Bird Pay Services following the Bird Pay Fees change notification, you will be deemed to have accepted the change in the Bird Pay Fees as stated in the notice.
The Bird Pay Fees include:
Subscription fees (“Bird Pay Subscription Fee”), which are collected by Bird pursuant to the terms of this Agreement; and
Transactional fees for payment activities, and any applicable pass-through costs from the PSP(s), Payment Network, or card issuer (collectively, “Payment Transactional Fees”), which you agree may be collected from you by us or by the PSP on our behalf in accordance with the Connected Account Agreement. Payment Transactional Fees shall be assessed at the time the transaction is processed and will be first deducted from your account. If these amounts are not sufficient to meet your obligations to us, we reserve the right to pursue the remedy outlined in Section 23.15(c) (Authorisation to Deliver Instructions, Deduct and Collect Per Transactions Fees) below. Your failure to fully pay the amounts that you owe us on demand will be a breach of this Agreement.
You remain liable for any penalties or fines incurred by you or us from any bank, money services business, payment network, financial institution, or other financial intermediary resulting from your use of the Bird Pay Services in violation of this Agreement, applicable law, or any Payment Network Rules.
23.15 Authorisation to Deliver Instructions, Deduct and Collect Per Transaction Fees. You acknowledge and agree that:
we are authorised to fully access your wallet or global account with the PSP for several purposes, including but not limited to (i) delivering information and instructions on your behalf to the PSP related to your PSP account; (ii) transferring funds from your wallet or global account with the PSP to another PSP account as deemed necessary for the provision of the Bird Pay Services under this Agreement; (iii) deducting all Payment Transactional Fees (see Bird Pay Fees); and
where a PSP is involved in all or any part of the provision of the Bird Pay Services, Bird and the PSP (as applicable in the circumstances) are authorised to deduct Payment Transactional Fees directly from all payments processed by the PSP and/or your wallet or your global account with the PSP. You acknowledge and agree that the PSP may directly deduct and remit such transactional fees to us.
You may not issue any instruction to the PSP or take any action which prevents or restricts a PSP or us from deducting and remitting fees properly due and payable to us under this Agreement. If and to the extent that any fees payable to us cannot be deducted and remitted by the PSP (due to insufficient funds or any other reason), you are liable for any amounts owed. In such an event, we may immediately withdraw such amounts from your PSP account. If your account does not hold sufficient funds, we may at our discretion suspend your account and you will be required to promptly add additional funds to your account to cover the owed amounts to release such suspension. We reserve the right to directly invoice you for any fees owing to us, which shall be payable in accordance with this Agreement. Failure to do so may result in collection efforts by Bird or a third party at your cost and expense.
23.16 No Warranties. YOU SPECIFICALLY ACKNOWLEDGE THAT WE DO NOT HAVE ANY CONTROL OVER THE PRODUCTS OR SERVICES THAT ARE PAID FOR WITH THE PAYMENT PROCESSING ACTIVITY, AND WE CANNOT ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR ARE AUTHORISED TO DO SO.
23.17 Liability and Indemnification in connection with Bird Pay Services.
IN NO EVENT SHALL BIRD ASSUME LIABILITY FOR (I) ANY UNAUTHORISED ACCESS TO OR USE OF THE BIRD PAY SERVICES AND/OR ANY AND ALL PERSONAL DATA STORED THEREIN; (II) ANY INTERRUPTION OR CESSATION OF TRANSMISSIONS TO OR FROM THE PSP; AND (III) ANY ERRORS, INACCURACIES OR OMISSIONS IN ANY CONTENT OR INFORMATION PROVIDED BY YOU OR EXCHANGED BETWEEN YOU AND THE PSP.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL LIABILITY IN RESPECT OF THE BIRD PAY SERVICES SHALL NOT EXCEED THE LOWER OF (I) THE AMOUNT SPECIFIED IN SECTION 9.2 (LIMITATION OF LIABILITY) OF THE GENERAL TERMS AND CONDITIONS AND (II) USD 200,000.
Your indemnity at Section 8.2 (Indemnification by You) of the General Terms and Conditions shall be deemed amended to include an indemnity to the Provider Indemnified Parties in respect of any Claims made by a PSP arising from or in connection with any breach by you of the Connected Account Agreement.
Insofar as we become liable to the PSP or any other third party for any fees, fines, penalties, disputes, reversals, returns, chargebacks, or any other liability we incur as a direct or indirect result of your acts or omissions under or in respect of the Connected Account Agreement, the Bird Pay Services, or the Payment Network Rules, you agree to indemnify and hold us and our Affiliates and their respective officers, directors and personnel harmless from and against any and all such liabilities.
24. CONNECTORS, INTEGRATIONS AND THIRD PARTY PRODUCTS
24.1 Integrations and Connectors. Customer acknowledges that the Services may integrate, interoperate with, facilitate the sending of messages or content to or be dependent on products and services of third parties (including via resale or intermediation by us of those products and services) (“Third-Party Products”), or import or export data and other content to or from Third-Party Products (all such Third Party Products being collectively, “Integrations”). Integrations include, without limitation, those messaging channels and services referenced in Sections 1 to 3 (and as incorporated in Section 4) and 13 to 23 (inclusive) of these Product Specific Terms. We may also make connectors and additional add-on features, functionality or services available on our Site to allow our Services to be used in connection with or supplemented by Third-Party Products through APIs or other connectors (“Connectors”).
24.2 How Integrations and Connectors may apply to you. You acknowledge and agree that if you adopt, apply, install or use any Integration or Connector with our Services: (i) you may be required to agree to, and be governed by, the terms and conditions of the third party in respect of your use of any Third Party Product (“Third Party Terms”) and to the extent required you explicitly authorize us to accept such Third Party Terms on your behalf and (ii) for the sole purpose of enabling and facilitating the Integration or Connector, your information (including Customer Data) may be made available to or shared by our Services with the relevant Third Party Product (and vice versa) and you consent to any such availability or sharing and to your data being used in accordance with this Agreement and the applicable Third Party Terms. You warrant that you and your Affiliates (as applicable) shall comply with applicable Third Party Terms. For clarity, our Services may use and incorporate artificial intelligence, including through use of Integrations or Connectors made available by or through third party AI platforms (including ChatGPT and otherwise). You acknowledge and agree to such use.
24.3 Third Party Products. Integrations and Connectors are made available by third party providers of the Third Party Products. Any use of any Third-Party Products, whether through an Integration, Connector or otherwise, is solely at the Customer’s own risk. We make no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the operation, content or use of, or correspondence with, any such Third-Party Products, or any transactions completed, and any contract entered into by you or your Affiliates, with any provider of such Third-Party Products. We do not endorse or approve any Third-Party Products nor the content of any of the Third-Party Products made available via the Services. WE PROVIDE INTEGRATIONS AND CONNECTORS “AS IS” WITHOUT WARRANTY OF ANY KIND.
24.4. Bird’s intermediary role. Where you use our Services to call, connect with or send messages (in this Section 24.4 “communication(s)”) via our platform to a subscriber or user of a Third Party Product, we act as an intermediary in the provision of such Services. We facilitate the transmission of communication(s) from you to the third party provider(s) of the Third Party Product. As an intermediary, our role and responsibility is to ensure the successful handoff of your communication(s) to the third party provider(s) of the Third Party Product for onward delivery, with such third party provider(s) being solely responsible for ensuring the transmission and delivery of your communication(s) to the chosen recipient. This Section 24.4 does not limit or affect Sections 24.1 to 24.3.
25. AI FUNCTIONALITY (GENERATIVE AI, AI-POWERED CHATBOT(S) ETC.)
25.1 AI Functionality. In the provision of our Services, we may offer you access to features or functionality driven or enhanced by third party artificial intelligence (“AI”), such as third party natural language models and third party data sets (“AI Functionality”). By way of example, AI Functionality may enable the design of AI-powered chatbots, or various types of generative AI use cases, such as assistance with information retrieval and content creation for a dedicated FAQ, and/or other tasks in connection with the Services provided to you.
25.2. Disclaimer regarding AI. You acknowledge and agree that the AI Functionality relies on complex algorithms and machine learning techniques, which may occasionally produce inaccurate, incomplete, or inappropriate information, including but not limited to details about people, places, or facts. We do not guarantee the accuracy, reliability, freedom from third party rights (for example intellectual property rights), or general suitability of the information provided by the AI Functionality for any particular purpose, and the customer should independently verify any information or content provided by the AI Functionality before relying on it. To the fullest extent permitted by applicable law, we disclaim any and all liability arising out of or in connection with the use of, or reliance upon, the AI Functionality or the information provided by the AI Functionality.
25.3. AI Improvements. We shall use commercially reasonable efforts to continually improve the AI Functionality and its underlying algorithms, and to promptly address any known issues or inaccuracies brought to our attention. We encourage customers to report any inaccuracies or issues with the AI Functionality to us, to facilitate improvements and better serve their needs.
25.4 Compliance and Prohibited Use. Customer is responsible for complying with all applicable laws, regulations, licenses, and industry standards applicable to you when using the AI Functionality, including but not limited to data protection, privacy, and intellectual property laws and licenses. You agree to use the AI Functionality in a responsible and ethical manner and shall not use or allow your users to use it for (a) any illegal, harmful, misleading, or offensive purposes, or (b) any use that would be classified as “unacceptable risk” or “high risk” under applicable law or is otherwise subject to regulatory oversight by, or requires clearance or approval from, an applicable regulatory authority. To the extent you use the AI Functionality to interact with third parties (for example, your customers and/or end users), you agree to (i) be transparent about your use of the AI Functionality to the extent required by applicable law and not to be misleading about whether the data or other information generated by the AI Functionality was solely human generated, and (ii) if and solely to the extent required by applicable law, obtain informed consent from such third parties prior to any interaction with the AI Functionality, maintain appropriate records of such consent, and promptly provide evidence of such consent upon our request.