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Erli Bird Customer Terms Of Use Agreement

This Customer Terms of Use Agreement ("Agreement") sets forth the legally binding terms and contract under which you (“Customer”) may access and use ErliBird services and software. ErliBird’s website and associated products, services, and software (“Services”) are found at the domain and associated subdomains of erlibird.com (“Website”). ErliBird products and services are provided by ErliBird Nest, Inc (hereafter described as "ErliBird", "we", "us", "our").

You agree to be bound and abide by this Agreement if you (a) sign up or use ErliBird as a customer; or (b) pay for any ErliBird product or service, or (c) otherwise use any of the ErliBird software for planning, submitting, or managing projects.

Your use of ErliBird is contingent upon your agreement to these terms. If you do not agree to these terms, you cannot use ErliBird Services.

1. Amendments and Modifications

ErliBird may modify this Agreement from time to time without prior notice, and any changes to the Agreement are immediately effective upon posting the Agreement to the ErliBird Website. You agree, and it is your responsibility, to review this Agreement regularly to ensure you are aware of any changes.

2. Eligibility

To use ErliBird Services, you must have the power and authority, personally and on behalf of any company you represent, to form a legally binding contract with ErliBird in compliance with all applicable laws and these terms of Agreement.

By using ErliBird Services, you represent and warrant that you (a) meet the requirements defined of this "Eligibility" section; (b) agree and abide by the requirements of the terms and conditions of this Agreement; (c) are financially responsible for your use of the Website; (d) will use ErliBird Services solely for the purpose of collecting ideas, feedback, and market research; (e) will use ErliBird Services and Deliverables in full compliance with all laws, requirements, and regulations; and (f) will may not maliciously use, upload viruses, attempt to circumvent the security procedures, hack, or otherwise violate the stability, security, and privacy of the website or the users of the websites or their systems.

3. Description of Website

The website allows Customers to collect ideas and feedback from users (“Participants”) through a focus group of one or more users (“Focus Group”). The primary function of the website is to help match Product Owners to Participants and facilitate the collection of market research data for clients.

Participants are independent service providers that use the Website to provide their services to clients.

4. Orders & Payments

Customers are granted a limited right to access and use the ErliBird website to plan, submit, and manage Focus Groups and other ErliBird Services. An order (“Order”) may be placed through the online order system or directly through separate signed project agreement with ErliBird.

The deliverables for each Order are the ideas and feedback provided by the Focus Group whether in text, video, audio, or any other communication format and any professional services provided by ErliBird (collectively, “Deliverables”). Upon completion of each Focus Group, Customer will be presented with the Deliverables for review and acceptance.

The costs for access and use of ErliBird Services and the scope of services provided are defined in each Order. Any invoices sent to Customer related to an Order must be paid within 30 days. If Customer disputes any fees on an invoice, this dispute must be made within 30 days of the invoice date. Customer access to ErliBird services may be terminated if any invoice remains unpaid beyond 30 days and was not disputed within the 30 day window. In such a case, any fees previously paid by Customer will not be refunded.

All Orders are governed by the terms in this Agreement.

5. Participants

The number of Participants defined through an Order is the agreed-upon number of Participants that will complete their requirements and be included in the Deliverables.

If fewer Participants are included in the Deliverables than ordered, or if the Deliverables for certain Participants do not meet the Focus Group requirements, within a timely manner (typically several days) Erli Bird will choose to, at the sole discretion of ErliBird, (1) source additional Participants at no additional cost to the Customer; or (2) provide a refund for the applicable portion of the Service.

Based on our historical data and best estimates, we accept extra Participants into each Focus Group as we expect some will not finish the requirements and therefore will not be included in the Deliverables. If the number of Participants included in the Deliverables exceed the quantity ordered, additional charges will apply and will be billed to the Customer at the end of the Focus Group, not to exceed 15% of the Order costs.

6. Bugs and Technical Issues

Participants may not be able to complete the Focus Group requirements and provide feedback in the event that bugs, crashes, or other technical issues (“Technical Issues”) present in the Customer’s initial product distribution prevent them from using the product as expected. In such cases, affected Participants are expected to report bugs and help validate if any fixes provided by Customer solve the problems. Participants affected by Technical Issues shall continue to count towards the Deliverables even if they are unable to complete the Focus Group requirements, and they will not be replaced with new Participants and the costs for these Participants will not be refunded.

7. Non-Disclosure Agreement Between Customer And Participants

Upon request from the Customer, ErliBird will facilitate the distribution and execution of a Non-Disclosure Agreement created by Customer for Participants’ execution prior to participating in a Focus Group.

8. Non-Disclosure Agreement Between Customer And ErliBird

For the purposes of this Agreement, “Confidential Information" shall mean any non-public and proprietary information or data disclosed to one party by the other or incorporated in materials or products provided to one party by the other and marked, labeled or otherwise indicated to be confidential.

"Authorized Representatives" means either party's affiliates, directors, officers, managers, partners, employees, contractors, agents, service providers, accountants, legal counsels, advisors, and associates.

Each party may provide Confidential Information to the other party. The receiving party agrees to retain in confidence all Confidential Information disclosed by the other and shall limit dissemination of the Confidential Information to its Authorized Representatives who are required to have access to the Confidential Information to fulfill the performance of this Agreement.

Notwithstanding anything to the contrary, Confidential Information shall not include information which (a) was publicly known or generally available at the time of disclosure through no fault of the receiving party; (b) is already rightfully known to the recipient at the time of disclosure; (c) is received from a third party without a restriction on disclosure or use; or (d) was independently conceived by the receiving party without reference to the other party’s Confidential Information.

Notwithstanding anything to the contrary, each party may disclose Confidential Information to the extent required by law, provided reasonable efforts are made to notify the other party to provide them with the opportunity to seek a protective order prior to disclosure.

9. Ownership of Deliverables

Any Deliverable provided to Customer which is subject to copyright is a “work made for hire” and the Customer is to be considered the author and owner of such Deliverable. To the extent that any Deliverable is not considered a “work made for hire” under the law, ErliBird hereby (a) assigns to Customer for no additional consideration, all right, title, interest and ownership of copyrights of such Deliverable, and (b) agrees to assist Customer at Customer’s cost in all reasonable efforts to protect such rights.

10. Intellectual Property

Customer grants ErliBird a non-exclusive, temporary, and revocable license to use all software, applications, content, and any other information made available to ErliBird as needed to provide the Services, only while such information is required for the performance of ErliBird’s obligations to the Customer.

Notwithstanding anything to the contrary, ErliBird intellectual property (including but not limited to software code, reports, designs, methodologies, and inventions) included within a Deliverable shall remain the sole property of ErliBird. To the extent that ErliBird intellectual property is included in a Customer Deliverable, ErliBird grants Customer a nonexclusive, royalty-free, worldwide, perpetual license to use such intellectual property for internal business reasons.

11. Term

The term of this Agreement shall commence on the earliest date a Customer (a) signs up or use ErliBird as a customer; or (b) submits an Order for any ErliBird product or service, or (c) otherwise uses any of the ErliBird software for planning, submitting, or managing the collection of feedback and other market research data. The term of this Agreement shall continue until terminated by either party as provided for under the terms of sections 11 or 12.

12. Termination For Convenience

Either party may terminate this Agreement with written notice to the other party. In such an event, (a) ErliBird shall continue to deliver until completion any Orders initiated prior to termination; and (b) Customer shall continue to be obligated to pay ErliBird fully for any Orders prior to termination even if these Services have not been fully delivered prior to termination.

13. Termination For Cause

If either party materially defaults in the performance of any Order or the provisions of this Agreement then the non-defaulting party shall be entitled to terminate the Agreement or applicable Order if written notice is provided and the default is not cured within 30 days after of receiving the notice.

Upon such termination of an Order for cause, ErliBird will deliver to Customer any undelivered Deliverables whether complete or work-in-progress, and Customer will continue to be obligated to pay ErliBird fully for Services performed prior to the termination.

14. Taxes

All Order costs and other amounts payable to ErliBird are net of taxes and are payable in full to ErliBird without deduction. Customer shall be solely responsible for all taxes including sales, use, ad valorem, excise, privilege, and other taxes, withholdings, VAT, tariffs, duties or any other governmental assessments, however designated. Customer shall reimburse ErliBird immediately in the event of payment thereof by ErliBird.

In the event that ErliBird is required by a taxing jurisdiction to collect sales tax directly, such taxes will be separately stately on any invoices or Order forms and included as a distinct line item labeled “Sales Tax”.

15. Non Solicitation

For a term of one year Customer may not solicit or hire any Participant outside of the ErliBird platform for the purpose of providing market research, testing, or feedback services.

ErliBird reserves the right to review all communication through the website between each Customer and Participant.

16. Personally Identifiable Information

“Personally Identifiable Information” is any data which, by itself or in combination with other data, could potentially identify a specific individual. Personally Identifiable Information includes, but is not limited to a person’s name, address, email, birthday, age, gender, social security number, phone number, and credit card number.

While providing the Services, ErliBird may make certain Personally Identifiable Information of each Participant available to the Customer for the sole purpose of facilitating communication between each party and delivering the Deliverables. This Personally Identifiable Information should be used solely for the limited purpose stated above, and only during the limited term that the Focus Group is active, and shall not be collected or processed outside of the ErliBird website in any way.

Except for the limited purpose stated above, ErliBird shall not be used for aggregating, processing, or storing any Personally Identifiable Information.

Customer releases all liability and agrees to hold ErliBird harmless from any losses, claims, or other damage whatsoever, of every kind and nature, arising out of or in any way related to Customer’s collection, processing, use, or transfer of Participant’s Personally Identifiable Information.

Notwithstanding anything to the contrary, Personally Identifiable Information shared, accessed, or otherwise processed in connection with this Agreement or Orders performed under this Agreement even if such information is not marked, labeled, or otherwise indicated to be confidential, shall be deemed Confidential Information and obligations to retain in confidence and limit dissemination of such information survive and continue indefinitely regardless of the term or expiration of this Agreement.

17. Warranty Disclaimer

ERLIBIRD IS PROVIDED "AS-IS" AND "AS AVAILABLE" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. ERLIBIRD TRIES TO KEEP THE WEBSITE SAFE, SECURE, BUG-FREE, AND AVAILABLE, BUT WE DO NOT GUARANTEE THAT THE ErliBird WEBSITE WILL BE SAFE, SECURE, AVAILABLE, OR BUG-FREE. YOU USE THE WEBSITE AT YOUR OWN RISK. ERLIBIRD DOES NOT WARRANT OR GUARANTEE THE QUALITY, RELIABILITY, ACCURACY, AVAILABILITY AND SECURITY OF THE ERLIBIRD WEBSITE, OR CONTENT ON THE WEBSITE.

THE ERLIBIRD WEBSITE IS DEVELOPED AND CONTROLLED IN THE UNITED STATES OF AMERICA. WE DO NOT GUARANTEE THAT THE WEBSITE IS AVAILABLE OR SUITABLE IN OTHER JURISDICTIONS AND THOSE THAT ACCESS THE SITE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE SOLELY RESPONSIBLE TO COMPLY WITH ALL APPLICABLE UNITED STATES AND LOCAL LAWS.

APPLICABLE LAW IN SOME JURISDICTIONS DOES NOT ALLOW FOR ALL LIMITATIONS ON IMPLIED WARRANTIES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

18. Limitation of Liability

YOU AGREE THAT IN NO EVENT SHALL ERLIBIRD OR OUR THIRD PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANY OTHER MEMBER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF PROFITS, DISCLOSURE OF CONFIDENTIAL INFORMATION, LOSS OF PRIVACY, OR LOSS OF GOODWILL, ARISING OUT OF OR RELATED TO YOUR USE OF THE ERLIBIRD WEBSITE OR SERVICE, EVEN IF ERLIBIRD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, ERLIBIRD’S AGGREGATE LIABILITY TO YOU FOR ANY CAUSE OR CLAIM RELATED TO THE ERLIBIRD WEBSITE OR SERVICE WILL AT ALL TIMES NOT EXCEED THE TOTAL SERVICE FEES PAID BY YOU TO ERLIBIRD DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF LIABILITY.

APPLICABLE LAW IN SOME JURISDICTIONS DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. ERLIBIRD’S LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW.

19. Release of Liability from Damages

In the event that you have a dispute with another party on ErliBird, you affirmatively agree to hold ErliBird, and our officers, directors, managers, employees, and agents, harmless from any losses, claims, or other damage whatsoever, whether actual or consequential, of every kind and nature, arising out of or in any way related to such dispute.

You expressly waive Section 1542 of the California Civil Code, and any similar law in any other jurisdiction, which provides that: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected his settlement with the debtor."

20. Indemnity

You agree to indemnify, defend, and hold ErliBird, its officers, managers, and employees harmless from any claim, demand, action, loss or damages, including reasonable attorney's fees, brought by a third party against ErliBird arising out of, relating to, or resulting from (a) your use of the Website or services provided by ErliBird; (b) any and all payment obligations incurred through the use of the Website, or your failure to pay any invoice or dispute of any payment; (c) your decision to submit personal financial information or credit card information through the Website; (d) your decision to submit projects, extend or accept offers from service providers; (e) any claims or breach of contract made by service providers which you worked with through the Website; (f) any claims or liabilities related to the payment and reporting of taxes for any payments made through the Website; (g) your breach of this Agreement; or (h) any intentional wrongdoing by any other user on the Website whom with you interacted.

We will notify you in writing of any such claim or liability or threat thereof, cooperate with you in the defense or settlement, and allow you to control the defense or settlement. We shall be at liberty to partake in the defense at our own expense through our own council.

21. General Terms

This Agreement is a complete and exclusive statement of the entire agreement between you and ErliBird concerning the Website.

If any portion of this Agreement is found to be illegal or unenforceable, neither the validity nor enforceability of the remainder of the Agreement shall be affected. The failure of ErliBird to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.

This contract shall be governed and construed in accordance with the laws of Illinois, excluding that State’s choice of law principles, and all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of Illinois, excluding that State’s choice-of-law principles.

You consent to the exclusive jurisdiction and venue of the federal and state courts located in the state of Illinois in any action arising out of or relating to this Agreement. You waive any objection you might have to jurisdiction or venue of such forums or that the forum is inconvenient. You agree not to bring any such action in any other jurisdiction or venue to which either party might be entitled by domicile or otherwise.

You may not assign or transfer all or any part of your rights under this Agreement without the express written consent of ErliBird.

Notwithstanding anything to the contrary, the following sections survive any termination of this Agreement: 4, 7, 8, 10, 14 (for a period of 3 years after termination), 16, 11, 17, 18, 19, 20, 21.

The captions and bold paragraph headings included in this Agreement are for convenience only and shall not be given any legal or contractual effect.