Effective Date: August 1, 2019
These Terms and Conditions of Use (“Terms”) constitute a binding agreement between you and Bird Dog Express, LLC (“Company”, “we”, “us” or “our”), a limited liability company organized and existing under the laws of the State of Texas. These Terms govern your use of (1) the internet website having a homepage located at www.birddogexpress.com and www.birddogexpress.net, (collectively, the “Website”), (2) the Birddog Express Mobile Application (“Birddog App”), and (3) any and all social media pages (e.g., Facebook, YouTube, Instagram, Twitter, etc.) operated through a Company account on the particular social media platform (collectively, “Social Media Pages”). The Website, the Birddog App, and the Social Media Pages are referred to collectively herein as the “Services”.
You agree to read these Terms carefully before using any of the Services. You will be required to create an account (“User Account”) in order to use certain portions of the Services and may be required to memorialize your acceptance of and agreement to these Terms by clicking “I accept” when creating your User Account and/or installing the Birddog App. However, regardless of whether such memorialization occurs, your mere use of the Services, which includes but is not limited to accessing any of the Services in any manner whatsoever, whether through a User Account or not, signifies and constitutes your acceptance of and agreement to these Terms, and binds you to these Terms. If you do not agree with any term, condition, or thing stated in these Terms, you agree you will not continue using any of the Services. By using the Services, you represent and warrant you are 18 years of age or older, and have the legal capacity to agree to these Terms.
You agree Company has the right to change, modify, and/or revise these Terms, at any time and in Company’s sole discretion. Company may notify you of such changes, modifications, and/or revisions (collectively, “Revisions”) by any reasonable means, including, but not limited to, posting revised Terms containing the Revisions on any of the Services. Your use of any Services subsequent to any such Revisions signifies and constitutes your agreement to be bound by such revised Terms and the Revisions therein. You may reject any Revisions by ceasing your use of the Services after such Revisions. You should periodically visit this page to review the most current Terms. In addition, we may, at any time and without liability, modify or discontinue all or part of the Services (including access to any of the Services via third party links or otherwise); charge, modify, or waive any fees required for you to use any of the Services; or offer opportunities to some or all users of the Services.
Certain products, services, promotions, or other online offerings may be governed by separate or additional policies, terms, or conditions of third parties (collectively, “Third Party Terms”) and you agree to comply with such Third Party Terms. In the event of any conflict between these Terms and any Third Party Terms in connection with a particular product, service, promotion, or other online offering of a third party, the Third Party Terms of the particular product, service, promotion, or other offering will govern solely with respect to that particular product, service, promotion, or other offering.
The Services, including the Birddog App, are licensed to you by Company and are not sold to you. Subject to your compliance with these Terms, and solely for so long as you are permitted by Company to use the Website, you may view any portion of the Website, on any single device and solely for your personal use. Subject to your compliance with these Terms, and solely for so long as you are permitted by Company to use the Birddog App, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the Birddog App on a Mobile Device (as defined below) that you own or control.
If you fail to comply with any provision of these Terms, you must immediately cease using the Services and remove (that is, uninstall and delete) the Birddog App from your Mobile Device (as defined below). Further, your license to use the Services is non-transferable, non-sublicensable, and can be revoked by Company at any time, for any reason whatsoever or no reason at all. If Company revokes your license to use all or part of the Services, you agree not to contest Company’s revocation and agree there are zero grounds under which you could contest such revocation.
Company retains the right to strictly enforce these Terms against you through any legal avenue(s) that Company sees fit. You agree enforcement of these Terms is at the sole discretion of Company and Company is not obligated to enforce these Terms against you or any other users of the Services.
Please review our Privacy Policy for information about our privacy practices in connection with the Services.
Company reserves the right, but does not have any obligation, to monitor any area of the Services, and to monitor, alter, evaluate, or remove any content, Public Submissions (as defined below), or Lead Submission Materials (as defined below) before or after they appear on any part of the Services. Company furthers reserves the right to disclose any content, records, or electronic communication of any kind, including Public Submissions (as defined below) and/or Lead Submission Materials (as defined below), if required to do so by any law, rule, regulation, or court order, or if such disclosure is necessary or appropriate to operate the Services or to protect Company’s rights or property, or the rights of other Services users, or of Company’s Affiliates, our partners, sponsors, or licensors, or as otherwise permitted in our Privacy Policy. For purposes of the foregoing sentence and for the remainder of these Terms, “Company’s Affiliates” collectively means the following entities, each of which is organized under the laws of the State of Texas and each of which constitutes an “Affiliate”: CP Equity Builders, LLC, Sell Your Hive, LLC, Queen Bee Investments, LLC, and Trecenti Holdings, LLC.
Your account name and password for your User Account are for your personal use only. We may reject, or require that you change, any account name, password, or other information that you provide to us in creating your User Account. You are solely responsible for maintaining the confidentiality of the information you provide to us in creating your User Account, including, but not limited to, your User Account ID, your User Account password, and any related security questions and answers, and for restricting access to your computer and/or other devices you use to access your User Account or the Services. You further agree you are solely responsible for all activities, including, but not limited to, purchases that occur in connection with your User Account or password. Your User Account may not transfer to other websites owned or operated by Company or Company’s Affiliates, which may require you to create a separate account. You represent and warrant any information you provide in connection with creating your User Account is and will remain accurate, current, and complete, and that you will maintain and update such information as needed. By creating a User Account, you also agree to immediately notify us if you discover or otherwise suspect any security breaches related to your User Account and/or use of the Service under your User Account.
The Birddog App is used to identify, document, and give information about residential real estate properties that may be purchased and resold by Company, Company’s Affiliates, investors or persons other than you for a profit (singularly referred to as a “Lead” and collectively referred to as “Leads”). You can use the Birddog App only to submit Leads to Company for evaluation and, when doing so, you are acting as a “Birddog.” If Company or an Affiliate evaluates a Lead submitted by you and purchases the property identified in the Lead, you shall be paid in accordance with these Terms, as set forth below.
You agree not to use any of the Services and, in particular, the Birddog App, while operating a motor vehicle. Additionally, you agree that when using the Birddog App, you will pay attention to your surroundings, will use common sense, will follow the safety instructions for Birddogs presented in the “Safety Tips” video on the Birddog App under the “Training Videos” button, and will take all reasonable measures to avoid putting yourself in, or getting yourself out of, any situation that a reasonably prudent person would identify as possibly being dangerous.
You agree any and all use of the Birddog App under your User Account shall be by you personally, with you acting in a personal capacity, and your use of the Birddog App shall be solely for the purpose of the Birddog App set forth above. The Birddog App is intended to operate on a smart phone or similar mobile device (each a “Mobile Device”) which you own or which you are authorized to use and grant Company the permissions respecting such Mobile Device which you grant herein. You further agree you shall submit Leads using the Birddog App solely under your User Account and shall not allow anyone else to submit Leads under your User Account.
The Birddog App is intended to operate on a Mobile Device that has a camera feature with location services enabled. You consent to the Birddog App’s use of the camera feature on the Mobile Device and consent to Company using location information embedded within any Lead Submission Materials (as defined below) you submit to Company through the Birddog App.
“Lead Submission Materials” comprise any and all materials, information, and data about a Lead submitted to Company under your User Account through the Birddog App including, but not limited to, pictures of a Lead, the address of the property that is the subject of the Lead, a description of the property that is the subject of the Lead, information as to why the property qualifies as a Lead, information about your relationship (if any) to the owner of the property that is the subject of the Lead, and any other data or information about the property that is the subject of the Lead.
You agree all Lead Submission Materials are “works made for hire” as defined under 17 U.S.C. § 101 and Company shall be and is considered the “author” of those Lead Submission Materials pursuant to 17 U.S.C. § 201. To the extent any of the Lead Submission Materials are not or cannot be considered a work made for hire, you hereby assign to Company any and all rights, title, and interest you have in and to the Lead Submission Materials, including without limitation any and all copyrights thereto. The foregoing assignment includes any and all past and present rights, claims, and/or causes of action at law or in equity which have heretofore accrued in you.
You shall not, and agree not to, use any Lead Submission Materials for any purpose other than to submit a Lead to Company. You further agree (a) not to disclose any Leads and/or Lead Submission Materials to anyone other than Company, (b) to treat the Leads and Lead Submission Materials as confidential information of Company, and (c) to take all reasonable measures (i) to protect the secrecy of and avoid disclosure of Leads and/or Lead Submission Materials to anyone other than Company and (ii) to prevent the information from falling into the public domain or into the possession of persons other than those persons authorized by Company to have such information.
You agree Company may use Leads you identify and/or any Lead Submission Materials you submit to Company in any and all manner(s) as Company, in its sole discretion, sees fit, including, without limitation, selling access to Leads and/or the Lead Submission Materials to third parties. You further agree Company is under no obligation to investigate or pursue any Lead included within Lead Submission Materials and you agree not to challenge, in any way, Company’s use of any Leads and/or Lead Submission Materials or Company’s disclosure of any Leads and/or Lead Submission Materials to others.
You agree Company may, at Company’s sole discretion, disclose information about you, including, but not limited to, your name, your contact information, your driver’s license number, your PayPal email, and your date of birth, to third parties who purchase access to Leads from the Website and who are interested in evaluating and/or purchasing any Lead or Lead Submission Materials submitted by you. Additionally, you agree Company may disclose to Company’s Affiliates any and all information you post, upload, submit, or otherwise make available on, through, or in connection with the Services.
You shall be paid a fee for each property purchased by Company or an Affiliate which was the subject of a Lead within Lead Submission Materials you submitted (“Hunting Fee”) subject to the following terms and conditions:
You shall be paid a Hunting Fee in the amount One Thousand Five Hundred and No/100 Dollars ($1500.00) if Company or an Affiliate purchases a property that is the subject of a Lead which you are the first Birddog to submit to Company, so long as the property has not been listed for sale at the time Company or an Affiliate purchases it and provided that Company and/or one or more of Company’s Affiliates has not already identified the property as a potential Lead at the time you submit the Lead Submission Materials for the property.
As indicated in the previous Section 14.1, you shall not be paid a Hunting Fee on any property that is the subject of a Lead if the property is listed for sale prior to Company or an Affiliate purchasing the property that is the subject of the Lead, regardless of whether the Company, Company’s Affiliates, or any third party lists the property that is the subject of the Lead. A property shall be deemed listed for sale on the date a listing agreement or similar agreement is signed.
There will be no payment of a Hunting Fee and no Hunting Fees shall be due if You delete or terminate Your User Account prior to the payment of any Hunting Fee. Deleting or terminating Your User Account prior to the payment of any Hunting Fee constitutes a voluntary waiver and an agreement to forego any and all Hunting Fees concerning any Leads you submitted prior to Your deletion and/or termination, regardless of whether any Hunting Fee is owed at the time of Your deletion and/or termination or if a property that is the subject of a Lead You submitted is purchased by Company or any of its Affiliates after Your deletion and/or termination.
Only a single Hunting Fee will be paid for a property that is the subject of a Lead. If a property qualifies for a Hunting Fee under these Terms, you agree the Hunting Fee shall be solely payable to the first Birddog to submit Lead Submission Materials that include the property as a Lead. Additionally, you agree only a single residential property under the recorded legal description of the property can qualify for a Hunting Fee, even if such property is identified in Lead Submission Materials with different addresses or forms of addresses. For example, a property identified as 111 Main Street, 111 Main, and 111 Main St. in Lead Submission Materials can qualify for only a single Hunting Fee if all three variations of the address refer to the same legally described property.
In order to be paid a Hunting Fee, you must provide to Company upon request, all documentation and information Company or its Affiliate requires to process and pay the Hunting Fee. In particular, you agree to email Company a complete and accurate W-9 form to the following email address: [email protected]. Once Company receives your completed W-9 form, Company intends (a) to print out a hard copy version of your completed W-9, (b) to place the hard copy version of your completed W-9 form in a secure filing cabinet, (c) to upload a copy of your completed W-9 to a third-party service provider which saves W-9 forms and issues 1099s at the request of Company and/or its Affiliates, and (d) to delete the electronic version of your completed W-9 form. Company further intends to retain the hard copy version of your completed W-9 form for so long as and in accordance with generally accepted accounting standards and practice. Additionally, you authorize Company to share the information and documentation you provide to Company under this Section 14.5 with any Affiliate who purchased the property that is the subject of a Lead you submit.
You agree Company and Company’s Affiliates are authorized to issue you an Internal Revenue Service Form 1099-MISC, or similar type form, at the end of each tax year for all Hunting Fees you have been paid by Company and/or Company’s Affiliates during that tax year. You further agree and authorize Company and/or Company’s Affiliates, whatever the case may be, to issue said form electronically, by emailing you a copy of same, to the email address you provided when setting up your User Account.
You agree that in order to be paid a Hunting Fee by Company and/or any Affiliate, you must provide a link to a PayPal account under which you can receive funds when requested by Company or an Affiliate, whichever the case may be, for such information. You further agree Company and Company’s Affiliates may freely disclose your PayPal account information between and among each other to facilitate payment of a Hunting Fee.
Any property that is the subject of a Lead you submit to Company which is purchased by any third party other than Company or Company’s Affiliates does not qualify for a Hunting Fee including, but not limited to, any property purchased after said third party reviews the Lead and/or the Lead Submission Materials for the property on the Website or otherwise. You agree Company and Company Affiliates are under no obligation to pay you a Hunting Fee or any other compensation whatsoever for a purchase of any property that is the subject of a Lead you submit to Company if said property is purchased by anyone other than Company or Company’s Affiliates.
You acknowledge and agree you cannot and will not engage in unlicensed real estate brokerage activity, and shall perform all services constituting aiding, offering, or attempting to aid in locating or obtaining real estate for purchase solely in the capacity as an attorney-in-fact authorized under a power of attorney to conduct a limited number of real estate transactions annually, with you acting on behalf of a member of Company or whatever Affiliate that purchases the property. A copy of the said power of attorney with your information included shall be retained in Company’s files. A copy of the applicable power of attorney may also be recorded in the property records with the property address and the Birddog’s name if a property that is the subject of a Lead the Birddog submitted qualifies for a Hunting Fee for that Birddog. You can request to see a copy of the power of attorney you are acting under after creating and logging into your User Account.
You agree that you can perform services as a Birddog on your own time, as your schedule permits, and you are independent contractor for the Company and/or any of Company’s Affiliates.
You agree any and all properties included in any and all Lead Submission Materials you submit to Company shall be and are confidential information belonging to the Company. Such confidential information shall include, but is not limited to, any and all information which identifies the location of the property, the fact that the property is a potential Lead, and/or any and all information which a reasonable person acting in good faith would deem pertinent to and/or indicative of any conclusion as to why the property qualifies or may qualify as a Lead.
Additionally, you agree any and all information Company discloses to you through the Birddog App and/or after you log-in to your User Account on the Website shall be, and is, confidential information belonging to Company. Such confidential information shall include, without limitation, information within any and all training videos, the form of the power of attorney under which a Birddog acts, and any other information concerning how to be a successful Birddog or how Company transacts its business.
You further agree (a) not to use any confidential information which belongs to Company for any purpose other than to benefit Company and/or an Affiliate and (b) to take all reasonable measures (i) to protect the secrecy of and avoid disclosure of Company’s confidential information to anyone other than Company and/or Company’s Affiliates and (ii) to prevent the Company’s confidential information from falling into the public domain or into the possession of persons other than those persons authorized by Company to have such information.
Any and all materials, including, but not limited to, comments, messages, text messages, postings, photos, graphics, videos, images, or other user-generated content, you post, upload, submit, or otherwise make publicly available to other users of the Services in one or more areas of the Services which do not require a User Account to view shall be deemed a “Public Submission.” A Public Submission includes, but is not limited to, anything you make available on interactive features of the Services, such as message boards, ratings, and reviews, and other forums or messaging functionality of the Services, or on third party social media platforms. You also agree not to ever include any Lead and/or any Lead Submission Materials in any Public Submissions you submit, post, upload, or otherwise make available on, through, or in connection with the Services.
For purposes of clarity, you retain ownership of any and all material within your Public Submissions that is not included within any Lead Submission Materials you submit to Company (“Non-Overlapping Materials”). For all NonOverlapping Materials, you hereby grant to Company a worldwide, royalty free, fully paid up, non-exclusive, perpetual, irrevocable, transferable, and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform, display (publicly or otherwise), create derivative works of, adapt, modify, and otherwise use and exploit such Non-Overlapping Materials (including any ideas, concepts, know how, techniques, or methodologies incorporated therein), in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials, and to develop, manufacture, and market products and other service(s)).
In addition, if you provide to us any ideas, proposals, suggestions, or other recommendations (“Feedback”), whether related to the Services or otherwise, such Feedback will be deemed a Public Submission, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Company and/or an Affiliate under any contractual, fiduciary, or other obligation to you or anyone else.
You agree all Public Submissions and/or Lead Submission Materials (collectively “User Submissions”) you post, upload, submit, or otherwise make available to other users of the Services through, on, or in connection with the Services shall comply with to the Rules of Conduct set forth in Section 21 below. You agree Company has no control over User Submissions that do not comply with the Rules of Conduct set forth in Section 21 below (“Non-Compliant User Submissions”), and you agree Company is not responsible for and shall not be liable for any Non-Compliant User Submissions you or any third party submits through, on, or in connection with the Services. You further agree Company is also not responsible for any use or misuse (including any distribution) by any third party of your User Submissions.
All information you post, upload, submit, or otherwise make available to other users of the Services through, on, or in connection with the Services in any Public Submission will be in public view and may be publically disclosed, used, and/or distributed. Additionally, Company, in its sole discretion, may make Lead Submission Materials available to other users of the Services who pay for access to such materials and the Leads reported therein, such as potential investors who may be interested in purchasing the property that is the subject of a Lead. As such, you should take the necessary precautions to avoid posting, submitting, or otherwise making available private information about you (e.g., social security, birthdate, home address, etc.) in User Submissions if you do not want this information to be used, disclosed, or distributed in public, or available to other users of the Services. IF YOU CHOOSE TO POST, UPLOAD, SUBMIT, OR
OTHERWISE MAKE AVAILABLE ANY PRIVATE OR OTHER INFORMATION ABOUT YOU THROUGH, ON, OR IN CONNECTION WITH THE SERVICES, YOU DO SO AT YOUR OWN RISK.
You agree you will not violate any rule, regulatory standard, law, contract, intellectual property, or other third party right, or commit any tort or other actionable conduct against any person or entity, and that you are solely responsible for your conduct, while accessing or using any of the Services. You are prohibited from and agree not to do any of the following through, on, or in connection with the Services:
• Grant access to any part of the Services to any person or party, including, but not limited to, by authorizing use of (1) any device you can use to access
the Services, (2) any of your User Account information (e.g., login credentials, password, user identification, etc.), or (3) any other information assigned to you by Company.
• Use any of the Services for any purpose that is deceptive, illegal, fraudulent, or otherwise tortious or unlawful.
• Publish, post, transmit, or otherwise make available through, on, or in connection with any of the Services any User Submission (including without limitation words, images, graphics, or videos) that are or may be: (a) threatening, harassing, degrading, hateful, intimidating, or otherwise disrespectful of the rights and dignity of others; (b) false, defamatory, libelous, slanderous, fraudulent, or otherwise tortious; (c) pornographic, obscene, indecent, or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy, or any other proprietary right, without the express prior written consent of the applicable owner.
• Post, transmit, or otherwise make available through, on, or in connection with any of the Services any malware, virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is actually or potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any device, hardware, software, or equipment.
• Interfere with or disrupt the operation of the Services, or the servers or networks used to make the Services available, including by hacking or defacing any portion of the Services; or violate any requirement, procedure, or policy of such servers or networks.
• Limit, restrict, prevent, or inhibit any other authorized user from using and/or accessing the Services.
• Systematically download and store content available through, on, or in connection with the Services.
• Alter, reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute, or otherwise exploit any portion of (or any use of) the Services except as expressly authorized herein, without Company’s express, hand-signed, prior written consent.
• Reverse engineer, decompile, or disassemble any portion of the Services, except where such restriction is expressly prohibited by applicable law.
• Frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services, into any advertisement, product, or service, without Company’s express hand-signed, prior written consent.
• Use any bot, spider, robot, site search/retrieval application, or other manual or automatic device to retrieve, index, “scrape,” “data mine,” or otherwise gather or reproduce any of the Services’ content, or circumvent the navigational structure or presentation of the Services, without Company’s express, hand-signed prior written consent.
• Compile, gather, harvest, or collect information about users of the Services.
• Remove any copyright, trademark, or other proprietary rights notice from the Services and/or any content available thereon.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that material available on the Services infringes your copyright, you may send to Company a written notice requesting Company remove such material or block access to it. If you believe in good faith that someone has wrongly sent Company a notice of copyright infringement pertaining to you, the DMCA permits you to send to Company a counter-notice. Notices and counter-notices must meet the then current statutory requirements imposed by the DMCA. See www.copyright.gov for details. Notices and counter-notices must be sent in writing to Company as follows: by mail to P.O. Box 3398, San Antonio, Texas 78265; or by e mail to [email protected]. You may want to consult with an attorney prior to sending a DMCA notice or counter-notice.
You agree you are responsible for obtaining, maintaining, and paying for all devices, telecommunications, hardware, and third party services needed to access and use the Services.
Parties other than Company, including our sponsors and Company’s Affiliates, may make other service(s), products, and content available on the Services. For example, Company may provide links to third party websites and other resources for your convenience. Such third party service(s), products, content, websites, and other resources, including User Submissions of third parties, are referred to collectively herein as “Third Party Materials.” Company neither controls nor endorses, and is not responsible for, Third Party Materials, including their accuracy, integrity, quality, legality, usefulness, and safety, and any intellectual property rights therein. Nothing in these Terms shall be deemed a representation or warranty by Company with respect to any Third Party Materials. Company has no obligation to monitor Third Party Materials, and may block or disable access to any Third Party Materials (in whole or part) on, in connection with, or through the Services at any time. You agree Third Party Materials are provided for your convenience, and their availability through the Services does not imply Company’s endorsement of, or affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
COMPANY DOES NOT ASSUME ANY RESPONSIBILITY FOR (1) ANY CONTENT OF, (2) ANY TECHNOLOGY IMPLEMENTED BY, OR (3) THE PRIVACY PRACTICES OF, ANY THIRD PARTY. YOUR USE OF ANY THIRD PARTY MATERIALS OR SERVICE(S) IS AT YOUR OWN RISK, AND IS SUBJECT TO APPLICABLE THIRD PARTY TERMS, CONDITIONS, AND POLICIES.
The Services (including all content therein and the compilation of such content, including, but not limited to, all images, photos, videos, content, text, graphics, data, and data compilation) is owned by Company and/or its licensors and is subject to trademark, service mark, copyright, and/or other intellectual property rights. Any and all words, terms, names, symbols, devices, or any combination thereof, including, but not limited to, the terms “Bird dog,” “Bird Dog Express,” and variants thereof, which are used to identify and distinguish the Services and/or any portion of the Services, including, but not limited to, names, slogans and/or logos pertaining to, referring to, and/or indicating the source of the Services, are trademarks and/or service marks belonging to Company. All other trademark and/or service marks of any third party that may appear on the Services are the property of the respective third party. Nothing contained on the Services grants any rights to use any trade name, trademark, service mark, logo, or other intellectual property without the express, hand-signed prior written consent of the owner.
Company shall seek to ensure the information on the Services is accurate, current, and complete. However, there may be instances when information about Company, or a program, product, or service that we offer contains inaccurate or incomplete information. Company does not warrant or guarantee the information on the Services is error free, complete, or current. Company reserves the right to correct errors and/or to update the content or information on the Services at any time without notice or liability.
By requesting or creating a User Account, using the Services, sending an e-mail to us, or otherwise electronically requesting we contact you, you consent to receive communications from us electronically, and agree that we may communicate with you by e-mail or by posting notices on the Services.
The Services are controlled and operated from the State of Texas within the United States and are not intended to subject Company to any non-Texas and/or non-U.S. personal jurisdiction or law. The Services may not be appropriate or available for use in some non-Texas and/or non-U.S. jurisdictions. Your use of the Services is at your own risk, and in using the Services, you must comply with all applicable laws, rules, and regulations, and you agree you bear sole risk and responsibility for any of your violations of applicable rules, laws, and regulations. We may limit the availability of the Services at any time, in whole or part, to any person, geographic area, or jurisdiction that we choose.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY IS NOT AND SHALL NOT BE RESPONSIBLE FOR THE CONSEQUENCES OF YOUR USE OF THE SERVICES, OR YOUR RELIANCE ON ANY MATERIALS (INCLUDING THIRD PARTY MATERIALS) AVAILABLE THROUGH OR SUBMITTED TO THE SERVICES, OR ANY PRODUCTS OR OTHER SERVICE(S) AVAILABLE THROUGH THE SERVICES, AND THE RISK OF DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. THE SERVICES AND ALL SUCH MATERIALS, PRODUCTS, AND OTHER SERVICE(S) ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. YOU AGREE COMPANY SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES (INCLUDING LOST PROFITS AND/OR DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY, OR LOSS OF USE OF THE SERVICES AND/OR SUCH MATERIALS, PRODUCTS, OR OTHER SERVICE(S)) ARISING OUT OF OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICES AND/OR SUCH MATERIALS, PRODUCTS, OR OTHER SERVICE(S), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
WITHOUT LIMITING THE FOREGOING, THE MAXIMUM AGGREGATE LIABILITY OF COMPANY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY) ASSOCIATED WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE SERVICES, FOR ANY REASON WHATSOEVER, SHALL BE LIMITED TO ONE HUNDRED AND NO/100 DOLLARS ($100
US). IF LAWS OF CERTAIN JURISDICTIONS WHICH DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES APPLY TO SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS, THEN CERTAIN OF SUCH DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE CERTAIN ADDITIONAL RIGHTS.
You agree to defend, indemnify, and hold Company and Company’s Affiliates harmless from and against any and all suits, claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including attorneys’ fees and litigation expenses) relating to or arising out of (a) your access to or use of (i) the Services and/or (ii) your use of any materials (including Third Party Materials), products, or other service(s) available through the Services; (b) any User Submissions you make; and/or (c) any violation or alleged violation by you of these Terms. YOU FURTHER AGREE THE FOREGOING INDEMNITY AGREEMENT EXPRESSLY INCLUDES BUT IS NOT LIMITED TO ANY NEGLIGENT ACT OR OMISSION OF COMPANY AND/OR
COMPANY’S AFFLIATES.
You agree any and all disputes arising out of or related to these Terms, Your use of any part the Services, and/or payment or non-payment of any Hunting Fee shall be decided in binding arbitration in Bexar County, Texas, or in another location within the State of Texas provided that such other location is mutually agreeable to the You and Company. An award of arbitration may be confirmed in a court of competent jurisdiction.
You agree the laws of the State of Texas, without regard to its conflict of laws, will govern these Terms and any dispute of any sort between you and Company or an Affiliate which arises under or is related to these Terms. Any suit, action, or proceeding relating to or arising out of, directly or indirectly, these Terms or your use of the Services must be brought in the state or federal courts located in Bexar County, Texas, and by accessing the Services, you consent to the exclusive personal jurisdiction of such courts. You further agree not to challenge venue being in such courts under any theory including, but not limited to, claiming such venue is not proper and/or not convenient.
These Terms are effective until terminated by Company. We may terminate or suspend your access to and/or your use of the Services, or any portion thereof, at any time and without prior notice, for any reason whatsoever or no reason at all, and especially if we believe you have violated or acted inconsistently with these Terms, the Rules of Conduct in Section 21, or Company standards. Upon any such termination or suspension, your right to use the Services will immediately cease and you must immediately uninstall and delete the Birddog App from your mobile device, and Company may, without liability to you or any third party, immediately deactivate or delete your user name, password, and any other information or materials associated with your User Account, without any obligation to provide you any further access to the Services, your User Account, or and information or materials associated with your User Account.
You agree Company has the unfettered right to terminate or suspend operation of the Services, or any portion thereof, and to restrict your access to the Services, or any portion thereof, at any time, without prior notice to you, and you agree not to challenge or dispute Company’s exercise of these rights.
You further agree your obligations concerning Company’s confidential information, your use of the Birddog App, Company’s Intellectual Property, and Section 28-32 shall survive any termination of these Terms and/or the Services.
We hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to content or material which is available on, through, or in connection with the Services and which is, or may be, harmful to minors. Information identifying current providers of such protections may be available from Safe Online Child (http://www.safeonlinechild.com/resources/, last visited April 3, 2019) and OnGuard Online (www.onguardonline.gov, last visited April 3, 2019). Company does not endorse any of the products or services listed on such websites. Your use of the these or any other filtering services is at your own risk and you agree Company shall not be liable for content or material that is harmful to minors which appears through, on, or in connection with the Services, regardless of whether you choose to utilize such a third-party filtering service or not.
These Terms do not, and shall not be construed to, create any partnership, joint venture, employer/employee, agency, or franchisor/franchisee relationship between you and Company. If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. You may not assign, transfer, or sublicense any or all of your rights or obligations under these Terms without Company’s express prior hand-written consent. We may assign, transfer, or sublicense any or all of our rights and/or obligations under these Terms without any restriction whatsoever. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in these Terms shall be construed as if followed by the phrase “without limitation.” These Terms are the entire agreement between you and Company relating to the subject matter hereof, and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and Company relating to such subject matter. Notices to you (including notices of changes to these Terms) may be made via posting to the Services or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Company will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
Please let us know if you have any questions about, or would like a copy of these Terms. A copy will be provided to you free of charge. Simply email us at [email protected].