These Terms of Service (“Terms”) govern access to and use of the Services made available by Birdie (Philo Labs). By using our Services, you agree to be bound by these Terms. If you use our Services on behalf of an entity or organization, you are binding that organization to these Terms, and you represent that you have the authority to do so.
1. Birdie’s Services
1.1 Registration. Birdie provides video messaging services for customer service teams. Upon registration, a user must either create a new Workspace or join an existing Workspace. When a user creates a new Workspace on behalf of an organization (such as the user’s employer), the organization is the Customer. Customers can invite Users to their Workspace and must designate at least one User to be an Administrator, who will manage and control the Workspace. All Customers, Administrators, and Users must comply with these Terms.
1.2 Access. During the Subscription Term, Customer may access and use, and may allow Users to access and use the Services for its business purposes in accordance with these Terms.
1.3 Software. Birdie may make Software available as part of the Services. Subject to these Terms, Birdie to Customer and its Users a limited non-exclusive, non-transferable, non-sublicensable license to use the Software to the extent necessary to use the Services. To the extent a component of the Software contains any open source software, the open source license for that software will govern with respect to that component.
1.4 Restrictions. Customer will not and will ensure Users do not: (a) reproduce, modify, adapt, or create derivative works of the Services; (b) rent, lease, distribute, sell, transfer, or sublicense the Services to a third party except as permitted in these Terms; (c) interfere with, disrupt, or circumvent any security measures or mechanisms designed to protect the Services; (d) reverse engineer, disassemble, decompile, or seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs of Services; (e) remove or obscure any proprietary or other notices contained in the Services; (f) harass, threaten, or cause distress, unwanted attention, or discomfort to a person or entity; (g) impersonate or falsely state or misrepresent an affiliation with anyone; (h) use the Services to transmit any viruses, worms, trojan horses, or other harmful or malicious code or programs; (i) use the Services to build competitive products; or (j) misuse the Services in any way, including in violation of these Terms or applicable law. Any use of data mining, robots, or similar data gathering and extraction tools or framing all or any portion of the Services without Birdie’s permission is strictly prohibited. Customer will prevent, terminate, and notify Birdie of any unauthorized or illegal use of or access to its or any User account or the Services.
1.5 Corporate Domains. If a user creates a Workspace using an email address belonging to their employer or organization, that account will be added to the organization's Workspace, in which case Birdie will provide notice to the user or Administrator of the account. The Administrator of the Workspace will have the ability to control that account, which includes being able to access, modify, or remove information from the account, modify user roles, and delete or restrict access to the account. Customers and Users agree to comply with their organization’s terms and policies regarding use of the Service.
2. Customer Responsibilities
2.1 Users. Customer is responsible for Users’ use of the Services and their compliance with these Terms. Customer will ensure that all Users are over the age of 13 or the applicable age of digital consent, whichever is older. Customer represents that it has obtained all consents necessary for Customer and its Users’ use of the Services, including Customer’s ability to convert accounts previously registered by individuals using Customer’s business email domain into User accounts.
2.2 Customer Data. Customer is responsible for ensuring all Customer Data and any other content or information provided to Birdie or recorded, or transmitted to the Services complies with these Terms. If any Customer Data violates these terms, Birdie may ask Customer to remove or edit the Customer Data so it is no longer in violation, or Birdie may, but is not obligated to, remove the Customer Data or take action as needed to resolve the issue.
2.3 Third-Party Apps. Third-Party Apps are subject to their own terms and privacy policies. Customer is responsible for reviewing those terms and policies before using Third-Party Apps. Birdie is not responsible for Third-Party Apps and does not warrant or support them. By enabling a Third-Party App that uses or accesses Customer Data, Customer authorizes the transfer of that data to the Third-Party App and, if applicable, will ensure that there is a legally valid data transfer mechanism for the transfer or onward transfer, in accordance with all applicable privacy and data protection laws.
2.4 Prohibited Content. Customer will not and will ensure Users do not record, or transmit any harmful, offensive, unlawful, or otherwise objectionable content to Birdie or the Services, including content that: (a) is threatening, abusive, harassing, defamatory, vulgar, obscene, discriminatory, or hateful; (b) infringes any patent, trademark, trade secret, copyright or other intellectual property right or violates the rights of others in any way; (c) contains pornography or sexually explicit material; (d) is harmful to minors; or (e) promotes or provides instructional information about illegal activities or promotes physical harm or injury to any group or individual.
3. Data Protection
3.1 Processing of Customer Data. Birdie will only process and use Customer Data: (a) to provide, protect, and update the Services, (b) to enforce these Terms and exercise its rights hereunder, (c) as required by law, and (d) as otherwise instructed by Customer. Birdie may collect and use Customer Data on an aggregated and/or anonymized basis for Birdie’s internal business purposes; provided that Birdie will not not use or share this data in a way that identifies any individual or Customer as the source of the data.
3.2 Data Processing Addendum. Birdie will process Personal Data in accordance with its Data Processing Addendum, which is incorporated into these Terms.
3.3 Security. Birdie will maintain an industry-standard information security program that consists of technical and organizational safeguards designed to protect Customer Data, including Birdie’s Security Measures. Notwithstanding the foregoing, Customer is responsible for maintaining the security and confidentiality of Administrator and User accounts, including account credentials such as usernames and passwords.3.4 Subcontractors. Birdie may hire subcontractors to assist in providing the Services, provided that: (a) subcontractors who receive Customer Data will be subject to confidentiality obligations no less protective than those in these Terms; (b) Birdie will remain responsible for its obligations under these Terms and for subcontractors’ use of Customer Data; and (c) Birdie’s Data Processing Addendum will govern any subprocessing of personal data.
4. Payment
4.1 Fees. Customer agrees to pay the Fees in accordance with the payment terms set forth on the Order. Customer is responsible for paying applicable Taxes.
4.2 Renewals. Unless otherwise stated on an Order, each Subscription Term will automatically renew, unless Customer cancels their subscription at least 1 day prior to renewal. Customer authorizes Birdie to charge Customer’s credit card on file or invoice Customer for each renewal until Customer cancels their subscription.
4.3 Downgrades. If Customer fails to pay Fees when they are due, Birdie may downgrade Customer to a free plan upon reasonable notice. If Customer is downgraded, Customer will lose access to certain features or functionality, but these Terms will continue to apply.
4.4 Price Changes. If Birdie increases its pricing, Birdie will provide at least 30 days’ prior notice, and the new pricing will go into effect on renewal. If Customer does not terminate its subscription before renewal, Customer authorizes Birdie to collect payment for the increased pricing.
5. Confidentiality
5.1 Use. If the parties disclose Confidential Information to each other, the recipient will only use the disclosing party's Confidential Information to exercise its rights and fulfill its obligations under these Terms. The recipient will use at least reasonable care to protect Confidential Information.
5.2 Nondisclosure. The recipient will not disclose Confidential Information to anyone except to its affiliates, employees, agents, or contractors who need to know it and who are bound by confidentiality obligations at least as protective of Confidential Information as those described in this section. The recipient will be responsible for those parties’ breach of this section. A breach of this section may cause irreparable harm and entitle the disclosing party to injunctive relief.
5.3 Required Disclosure. The recipient may disclose Confidential Information to the extent required by law, provided that the recipient uses reasonable efforts to notify the disclosing party in advance and gives them an opportunity to contest the disclosure (except as described in Section 8). Confidential Information disclosed pursuant to this section will otherwise still be subject to the confidentiality obligations described above.
6. Intellectual Property Rights
6.1 Ownership. Except as expressly stated, these Terms do not grant any rights, implied or otherwise, to any intellectual property. Customer owns and will continue to own all intellectual property rights in Customer Data, and Birdie owns and will continue to own all intellectual property rights in the Services.
6.2 License. Customer grants Birdie a worldwide non-exclusive license to access, use, process, copy, modify, distribute, perform, export, and display Customer Data solely to provide the Services or as otherwise described in these Terms. Customer represents and warrants that it has secured all necessary licenses to provide the foregoing license.
6.3 Feedback. If Customer or Users provide Feedback to Birdie, Birdie may use it without restriction or obligation.
7. Term & Termination
7.1 Term. These Terms will continue in effect until terminated as described below.
7.2 Termination for Convenience. Customer may terminate these Terms at any time by deleting Customer’s account, including all associated Administrator and User accounts.
7.3 Termination for Breach. Either party may terminate these Terms for material breach if the other party fails to cure the breach within 30 days’ notice.
7.4 Effect of Termination. Upon termination, Birdie may delete or anonymize all Customer Data within a commercially reasonable period of time, and each party will return or delete any other Confidential Information in its possession. Birdie will only provide a prorated refund of prepaid fees for the remainder of the Subscription Term if Customer terminates these Terms for Birdie’s material breach in accordance with Section 7.3.
7.5 Suspension. Birdie may suspend Customer’s access to the Services: (a) to the extent required by law, (b) to prevent injury, death, or a credible risk of harm to Birdie, the Services, or its users, or (c) for repeated violations of our terms and policies. If practicable, Birdie will use reasonable efforts to contact Customer and give Customer the opportunity to resolve the issue prior to suspension.
7.6 Survival. Terms that are intended by their nature to survive termination will survive, including confidentiality obligations, limitations of liability, and disclaimers.
8. Legal ProcessIf Birdie receives a request from law enforcement or another third party to provide data or information about Customer or its Users, Birdie will only respond to valid Legal Process to the extent required by law. Birdie will notify Customer of the request unless legally prohibited or notification would threaten the safety of an individual.
9. Warranty and Disclaimer
9.1 Limited Warranty. The Services will perform materially in accordance with Birdie’s Documentation. If Customer believes that this warranty has been breached, Customer must notify Birdie no later than 10 days following the date of the alleged breach. Customer’s sole and exclusive remedies for breach of this warranty are those described in Sections 7.
9.2 Disclaimer. EXCEPT AS STATED IN THIS SECTION, THE SERVICES, DOCUMENTATION AND SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY. BIRDIE MAKES NO GUARANTEES AS TO UPTIME OR AVAILABILITY OF THE SERVICE. TO THE EXTENT PERMITTED BY LAW, BIRDIE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BIRDIE IS NOT RESPONSIBLE FOR THE CONTENT, INFORMATION, OR MATERIALS POSTED BY THIRD PARTIES TO THE SERVICES OR ANY DAMAGE RESULTING FROM LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, INCLUDING INTERNET CONGESTION, VIRUS ATTACKS, AND DENIAL OF SERVICE ATTACKS.
9.3 Beta Services. Customer may choose to use Beta Services in its sole discretion. Notwithstanding anything to the contrary, Beta Services: (a) may not be supported and may be changed or discontinued at any time; (b) may not be as reliable or available as the Services; (c) have not been subjected to the same security or compliance reviews as the Services; (d) are Birdie’s Confidential Information; and (e) ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY, INDEMNITY, OR SUPPORT AND BIRDIE’S LIABILITY FOR BETA SERVICES WILL NOT EXCEED FIFTY DOLLARS.
10. Indemnification
10.1 Indemnification by Birdie**.** Birdie will defend Customer from and against any third-party claim, action, demand, or proceeding alleging that Customer’s use of the Services as permitted under these Terms infringes or misappropriates a third party’s intellectual property rights, and will indemnify and hold Customer harmless for reasonable attorney’s fees incurred as well as damages and other costs finally awarded against Customer or agreed in settlement by Birdie resulting from the claim; provided, however, that Birdie will have no liability under this section if a claim arises from (a) Customer Data or any third-party product or service; (b) any modification, combination, or development of the Services that is not performed by or on behalf of Birdie; (c) Customer’s breach of these Terms; or (d) Beta Services or other services offered for free or evaluation use.
10.2 Indemnification by Customer. Customer will defend Birdie from and against any third-party claim, action, demand, or proceeding resulting from Customer Data or a violation of these Terms by Customer or its Users, and will indemnify and hold Birdie harmless for reasonable attorney’s fees incurred as well as damages and other costs finally awarded against Birdie or agreed in settlement by Customer resulting from the claim.
10.3 Possible Infringement. If the Services infringe or are alleged to infringe a third party's intellectual property rights, Birdie may: (a) obtain the right for Customer, at Birdie’s expense, to continue using the Services; (b) provide, at no additional charge, a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe. If Birdie does not believe the options above are commercially reasonable, Birdie may terminate Customer's use of the affected Services and provide Customer a prorated refund of prepaid fees for the remainder of the Subscription Term. Birdie will have no liability under this section if Customer continues the allegedly infringing activity after being notified and provided with a non-infringing functionally equivalent replacement.
10.4 Procedures. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement that does not include a complete release of the indemnified party from all liability or that imposes any admission, obligation, or restriction on the indemnified party requires prior written consent, not to be unreasonably withheld or delayed and (b) the indemnified party may join in the defense with its own counsel at its own expense. The indemnities above are Customer’s only remedy for infringement of third-party intellectual property rights.
11. Limitation of Liability
11.1 Indirect Damages. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF SECTIONS 1.4 OR 2.4, NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, FOR ANY LOSS OF USE, LOST PROFITS, INTERRUPTION, OR LOSS OF BUSINESS OR DATA OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.11.2 Total Liability. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF SECTIONS 1.4 OR 2.4, EACH PARTY'S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL NOT EXCEED IN AGGREGATE OF THE GREATER OF FIFTY DOLLARS OR THE AMOUNT PAID BY CUSTOMER TO BIRDIE IN THE 12 MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING DISCLAIMER WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS ABOVE.THIS SECTION WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Disputes; Class-Action Waiver
12.1. Jurisdiction and Venue. These Terms are subject to French law. Failing amicable settlement, any difficulties related to their interpretation or validation, and any dispute between us will be the exclusive jurisdiction of the Paris courts, France, notwithstanding multiple defendants or third party claim.
12.2 Informal Resolution. Before filing a claim, Birdie must first be contacted through the notice procedures below. If a dispute is not resolved within 30 days of notice, a formal proceeding may be brought in accordance with this section.
12.3 Mandatory Arbitration. Any claims or disputes relating to these Terms or the Services must be resolved through final and binding arbitration, except as set forth below.
12.4 Exceptions. A lawsuit may be filed in the Paris courts, France , California solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of intellectual property rights without first engaging in the informal dispute resolution process described above.
12.5 NO CLASS ACTIONS. Disputes with Birdie may only be resolved on an individual basis and neither Customer nor any user will bring a claim in a class, consolidated, or representative action. The parties expressly waive any class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations.
12.6. Opt-Out. To opt out of these arbitration provisions (including the waiver of class and representative claims), Birdie must be notified by email at privacy@birdie.so no later than 30 days after account registration, unless a longer period is required by applicable law.
13. Miscellaneous
13.1 Entire Agreement. These Terms supersede any prior agreements or understandings between the parties and constitutes the entire agreement between the parties related to access and use of the Services. The terms of the Order will control over these Terms to the extent there is a conflict. Any amendments must be in writing and signed by the parties. Notwithstanding anything to the contrary, no other terms or conditions in any Customer documentation or online vendor portals will apply to Birdie’s provision of the Services to Customer, unless expressly agreed to in writing by an authorized Birdie representative.
13.2 Modifications. Birdie may update these Terms by posting the updates to the Birdie website. If an update materially impacts Customer’s or its Users’ rights or obligations, Birdie will provide at least 30 days’ notice before the updated Terms go into effect. Any other revisions will become effective on the date the updated Terms are posted by Birdie. Continued use of or access to the Services after the updated Terms go into effect will constitute acceptance of those Terms.
13.3 Publicity. Upon prior written approval from Customer, Birdie may include Customer’s name and logo on its website or in other marketing materials or channels solely to reference Customer as Birdie customer, and subject to any trademark usage guidelines provided to Birdie. Customer may revoke its approval at any time.
13.4 Waiver and Severance. A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention, but only to the extent necessary to make them enforceable, and the remaining provisions will remain in full effect.
13.5 Notices. Notices must be sent via first class post, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable Administrator account email address and are deemed given when sent. Notices to Birdie must be sent to 46 quai Henri IV, 75004 Birdie, attn: Birdie by Philo Labs, Legal, with a copy to privacy@birdie.so
13.6 Assignment. These Terms may not be assigned without the prior written consent of the other party, except Birdie may assign these Terms to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any other attempt to transfer or assign is void.
13.7 Governing Law. These terms will be governed by the laws of France without regard to its conflict of laws principles.
13.8 Force Majeure. Except for payment obligations, no party will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (such as, natural disaster, terrorism, governmental action, or Internet disturbance).
13.9 Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, joint venture, agency, fiduciary, or employment relationship between the parties.
14. Definitions
“Administrator” means an User designated by Customer to manage and control Customer’s and Users’ accounts.
“User(s)” means Customer’s employees, agents, or other third parties authorized by Customer to access or use the Services.
“Beta Service” means early access trials or releases of new features or services identified as “alpha,” “beta,” “preview,” “early access,” “evaluation,” or other words or phrases with similar meanings.
“Confidential Information” means information exchanged by the parties that would reasonably be understood to be confidential given the nature of the information and manner of disclosure, including business, product, technology, and marketing information, Orders, discounts, non-public payment terms, audit reports, and Customer Data. Confidential Information does not include information that (a) is or becomes publicly known through lawful means; (b) was known to the recipient prior to disclosure without confidentiality obligations; (c) is received from a third party without breach of confidentiality obligations; or (d) was independently developed by the recipient without use of or access to any Confidential Information.
“Customer” means the individual or organization agreeing to these Terms, as described in Section 1.1.
“Customer Data” means all video, audio, or transcription data, images, comments, emoji reactions, user support communications, or other content or information submitted or uploaded to the Services by or collected, stored, or processed by Birdie on behalf of Customer or its Users.
“Documentation” means any documentation or materials provided to Customer as part of the Services.
“Feedback” means any feedback or suggestions about the Services.
“Fees” means the fees for the Services displayed on the Order, plus any applicable Taxes.
“Legal Process” means an information disclosure or access request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other legal authority, legal procedure, or similar valid process.
“Order” means the order form agreed to by the parties or the applicable Birdie check-out webpage to purchase the Services.
“Personal Data” means personal data or personal information (each as defined in the Data Processing Addendum) contained within Customer Data.
“Security Measures” means the technical and organizational safeguards.
“Services” means Birdie’s video messaging services and website, including the Software, Documentation, tools, and services ordered by or provided to Customer in connection with the Services.
“Software” means Birdie’s client software provided as part of the Services, such as mobile or desktop applications or browser extensions.
“Subscription Term” means the applicable initial or renewal term for Customer’s provision of the Services identified in an Order.
“Taxes” means all government-imposed taxes, levies, or duties, including value-added, sales, use, or withholding taxes, except for taxes based on Birdie’s net income.
“Third-Party Apps” means any third-party applications, integrations, websites, products, or services that are linked in or that interact or interoperate with the Services.
“Workspace” means the workspace in a Birdie account as described on Birdie’s website.
If you have any questions or concerns email us at: privacy@birdie.so.
