Terms of Service

Effective Date: July 1, 2024

This website is operated by BLUE JAY BEACH, INC., a Delaware corporation (the "Company"). Throughout the site, the terms “we”, “us” and “our” refer to the Company. The Company offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.

By visiting our site, creating an account with us via the website, purchasing something from us, and/or and using any other services operated by the Company that reference these terms and conditions (“Terms of Service”, or “Terms”) you engage in our “Service(s)” and agree to be bound by the Terms, together with the other agreements and policies (such as the Company’s Privacy Policy (the “Privacy Policy”)) explicitly included as part of these Terms (collectively, the “Agreement”). These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services.

FURTHER THESE TERMS INCLUDE PROVISIONS (DESCRIBED IN MORE DETAIL BELOW) THAT LIMIT OUR LIABILITY AND REQUIRE INDIVIDUAL ARBITRATION FOR ANY POTENTIAL LEGAL DISPUTE.

Any new features or tools which are added to the current store available at birdygrey.com (or its redirect) shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. Subject to these Terms, we reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.

By agreeing to these Terms of Service, you represent and warrant to us that: (a) you are at least the age of majority in your state or province of residence (or at least 13 years old and your parent or guardian has agreed to the Terms on your behalf) and have the legal capacity to contract, (b) you have not previously been suspended or removed from any Services, and (c) your  use of the Services is and will comply with all applicable laws and regulations.

Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.

You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).

You must not transmit any worms or viruses or any code of a destructive nature. A breach or violation of any of the Terms will result in an immediate termination of our Services.

We reserve the right to refuse service to anyone or any order you place for any reason at any time. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address.

You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.

This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.

Our Services change frequently, and their form and functionality may change as we launch new products or features or make upgrades, patches or error corrections (“Updates”). We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) or to modify, suspend, discontinue or limit your access to or use of any part of the Services, temporarily or permanently, without notice at any time for any lawful reason. The Terms will apply to any and all Updates to the Services. We reserve the right, but have no obligation, to monitor any accounts and/or activities conducted through or in any way related to the Services and profiles of other users.

Prices for our products are subject to change without notice. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

Due to potential operational and logistical constraints, we reserve the right to change shipping service levels at any time.

Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.

To place an order through the Services, you must be a consumer - not a reseller. The Services are intended solely for the Company to sell products direct to end-consumers, and therefore purchase of products for resale is strictly prohibited. Purchase for resale means the purchase of Company product by someone who resells, or intends to resell, the Company product to others (consumers, businesses or any third party).  If the Company determines (in our sole judgment) that you are involved in purchase for resale, the Company reserves to take any action against you, including, without limitation, to restrict sales to you, cancel your orders, and/or suspend or close your account.  

We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.

We reserve the right, but are not obligated, to limit or cancel the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited. Additional e-commerce terms and conditions relating to refund, exchange, re-stocking, taxes, shipping may be provided at or near the point of purchase.

We may request additional information or documents from you in order to confirm that you are the holder of the payment instrument that was used to place the order or are otherwise authorized to place the order. If you do not reply to our request for information or documents, we reserve the right to cancel your order. 

We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

All products purchased from the Services are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier. Any products purchased from the Company via the Services and shipped internationally will generally be imported by the Company on your behalf. Accordingly, you as buyer authorize the Company to import such products on your behalf. Further, you agree that the Company may delegate the obligation to import the products to a subcontractor (e.g. customs broker). Unless otherwise specified you are responsible for paying any taxes or duties associated with the importation of the purchased products in addition to the purchase price.

If you use the Services and such use includes setting up an account and/or password(s), you are solely responsible for maintaining the confidentiality of your account and password(s) and for restricting access to your computer. The Company is not responsible for any errors or delays in responding to any inquiry or request caused by any incorrect, outdated, or incorrect information provided by you or any technical problems beyond the control of the Company. You acknowledge and agree that any login, identifier, or password issued in connection with the Services (each a “Password”) is confidential information. You must maintain the confidentiality of any Password, and you may not disclose such Password to any other person or entity or permit any other person or entity to access the Services using such Password. You agree to notify the Company immediately of any unauthorized use of any Password that is not issued directly to you or approved by us.

Upon termination of your account, you agree that: (a) any use rights or licenses provided to you under the Agreement will end, and (b) except to the extent prohibited by applicable law the Company may (but have no obligation to) permanently destroy all information associated with your or your account stored on servers controlled by the Company. The Company is not liable to you or any third party for compensation, reimbursement, or damages in connection with any termination or suspension of the Services or any deletion of information associated with you or your account.

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made.

For more detail, please review our Return Policy.

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.

Certain content, products and services available via our Service may include materials from third parties.

Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.

The Services and the content residing thereon are owned by the Company or its affiliates or business partners or are used by us with express permission. Such content includes the text, software, scripts, graphics, photos, sounds, interactive features, visual interfaces, design, compilation, information, data, computer code (including source code or object code), products, services, and the trademarks, service marks, trade names, and logos contained in the Services (collectively, “Company content”). Unless otherwise noted, the Services and Company content included on the Services, including images, illustrations, designs, icons, photographs, video clips and written and other materials, are subject to copyright, trademark, and other intellectual property rights under United States law, the law of the jurisdiction where you reside, and international conventions protected by United States and international copyright laws. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to the Company or the Services will, as between you and the Company, be and remain the sole and exclusive property of the Company. You may not display or reproduce the Company marks or other content in any manner without the prior written consent of the Company, and you may not remove or otherwise modify in any manner any trademark notices from any content offered or received through the Services.

If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send or post creative ideas, reviews, postings, suggestions, photographs, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “User Content”), you grant the Company a fully paid, perpetual, irrevocable, non-exclusive, worldwide right and license to host, store, transfer, display (publicly or otherwise), perform, reproduce, edit, modify, distribute, use, adapt, commercialize, create derivative works of and otherwise exploit such User Content (including any facts or concepts contained in User Content) for any business purpose (including marketing or advertising purposes) at any time. For avoidance of any doubt, this means that the Company may post, repost, share, and otherwise distribute and reproduce the User Content in all Company media, now known or hereafter devised, including alongside and in combination with promotions for third party brands and products. Notwithstanding the above, we will not make use of any of your User Content in a manner that is inconsistent with the privacy settings you establish within our Services. We are and shall be under no obligation (1) to maintain any User Content in confidence; (2) to pay compensation for any User Content; or (3) to respond to any User Content.

We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.

You waive to the full extent permitted by law any and all claims against us related to moral rights in the User Content. You represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish and exploit the User Content, for promotional purposes, including, without limitation, copyright, trademark, and rights of publicity and privacy and that your User Content will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your User Content will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You represent and warrant that you and any person whose image appears in the User Content are 18 years of age or older. You represent, and warrant that your User Content complies with all terms and conditions of any third-party website or application on which you post the User Content. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any User Content. You are solely responsible for any User Content you make and their accuracy. We take no responsibility and assume no liability for any User Content posted by you or any third-party.

If you believe that your User Content has been copied and posted on the website in a way that constitutes copyright infringement, please send us a notice of claimed infringement, including the information listed below, to the following address:

mail: BLUE JAY BEACH, INC.
1055 WEST 7TH STREET, 33RD FL
LOS ANGELES, CA 90017

email: sup@birdygrey.com

To be effective, the notice of claimed infringement should include the following information:

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; 
• Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a representative list of such works; 
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
• Information reasonably sufficient to permit us to contact the complaining party, such as the address, telephone, fax, and/or an email address at which the complaining party may be contacted;
• A statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

By using the Services you consent to the collection, use, and sharing of personal information (as described in the Privacy Policy), including the transfer of personal information to the United States and/or other countries for storage, processing, and use by the Company.

Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).

We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

Your right to access and use the Services and Company content is limited to use for your own personal, noncommercial purposes. In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) reproduce, copy, modify, create a derivative work from, reverse engineer, sell, assign, sublicense, attempt to derive the source code of, grant a security interest in, or otherwise commercially exploit any right in or portion of the Services or Company content; (j) use the Services to sell a product or service, increase traffic to your own website or a third-party website for commercial reasons, such as advertising sales, or otherwise undertake any endeavor aimed at deriving revenue; (k) access, monitor, scrape, or copy (via, for example, deep-link or any robot, spider, web crawler, extraction software, automated process, or other device) any Services data or material and/or incorporate it into a separate database, archive/cache it, etc.; (l) for any obscene or immoral purpose; or (m) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.

You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.

You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE Company and its indirect or direct subsidiary, parent, or affiliate companies or any of their employees, officers, directors, licensors, and agents (collectively, with company, the “Company Entities”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) LOSS OF PROFITS, REVENUE, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES; (C) DAMAGES RELATING TO YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES; (D) DAMAGES RELATING TO ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OR USER USING THE SERVICES, INCLUDING WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR CONTENT; (E) DAMAGES IN ANY MANNER RELATING TO ANY THIRD PARTY SERVICES ACCESSED VIA THE SERVICES; AND/OR (F) DAMAGES RELATING TO ANY UNAUTHORIZED ACCESS TO OR USE OF COMPANY’S SYSTEMS OR ANY AND ALL PERSONAL INFORMATION OR FINANCIAL INFORMATION STORED ON THOSE SYSTEMS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS LIMITATION APPLIES TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT Company HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND FURTHER WHERE A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF THE COMPANY ENTITIES, FOR ANY CLAIM UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE GREATER OF FIFTY DOLLARS (US $50.00) OR THE AMOUNT YOU PAID US IN CONNECTION WITH YOUR USE OF THE APPLICABLE SERVICE(S) OR PRODUCTS DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.

To the fullest extent permitted by applicable law, you acknowledge and agree that we offer the Services and any goods and services offered on the Services in reliance upon the warranty disclaimers, releases, and limitations of liability set forth in the Terms. To the extent permitted by applicable law, you also acknowledge and agree that these warranty disclaimers, releases, and limitations of liability reflect a reasonable and fair allocation of risk between you and us and that these warranty disclaimers, releases, and limitations of liability form an essential basis of the bargain between you and us. We would not be able to provide the Services to you on an economically reasonable basis without these warranty disclaimers, releases, and limitations of liability.

Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

If you are a resident of California: You waive your rights with respect to California Civil Code Section 1542, which says “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.” TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, YOU ALSO WAIVE ANY PROTECTION THAT MAY EXIST UNDER ANY COMPARABLE OR SIMILAR STATUTES OR PRINCIPLES OF COMMON LAW APPLICABLE IN JURISDICTIONS OTHER THAN CALIFORNIA.

If you are a resident of New Jersey: Notwithstanding anything herein to the contrary, nothing in these Terms limits or excludes our responsibility for losses or damages caused by our own fraud, recklessness, gross negligence or willful misconduct.

You agree to indemnify, defend and hold harmless the Company Entities harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

Upon termination of these Terms or your account those terms that by their nature are intended to survive termination (such as intellectual property ownership, disclaimers, arbitration obligations and class action waiver, indemnification obligations, limitations of liability, and payment obligations owed to the Company that accrued prior to the termination and any other amounts owed by you under the Agreement, including claims, fines, penalties, and other liability incurred by the Company caused by your use of the Services) will survive.

The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.

These Terms of Service and any policies or other terms, conditions or agreements referenced herein or referencing the Terms of Service constitute the entire agreement and understanding between you and us with respect to your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).

You may not transfer or assign your account or your obligations under the Agreement without the Company’s prior written consent. The Company may transfer or assign any or all part of its rights under the Agreement without restriction and has the right to delegate or use third-party contractors to fulfill our duties and obligations under these Terms and in connection with the Services.

Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of California, USA.

Under California Civil Code Section 1789.3, users of the web site from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

You can review the most current version of the Terms of Service at any time at this page.

The Company may amend the Terms at any time with notice that we deem to be reasonable under the circumstances (each a “Revised Version”) by (i) posting revised Terms via the Services, and/or (ii) notifying you of material changes, generally via email where practicable, and otherwise through the Services. The Revised Version will be effective as of the time it is communicated but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any dispute between the parties that arose before the effective date of a Revised Version is governed by the Terms (including the binding individual arbitration clause) that was in place when the dispute arose.

ANY CLAIM OR CAUSE OF ACTION RELATING TO, ARISING UNDER OR OUT OF YOUR USE OF THE SERVICES, INCLUDING ANY SALES MADE THROUGH THIS WEB SITE, MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.

YOU AND THE COMPANY AGREE  THAT ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, YOUR VISIT TO THE WEBSITE, OR TO ANY PURCHASE, TRANSACTION, RETURN OR OTHER INTERACTION WITH THE COMPANY (INCLUDING CLAIMS RELATING TO THE COMPANY’S ADVERTISEMENTS AND DISCLOSURES, EMAIL AND MOBILE SMS MESSAGES SENT BY THE COMPANY, OR THE COMPANY’S COLLECTION OR USE OF YOUR INFORMATION) (“DISPUTES”) SHALL BE RESOLVED THROUGH BINDING ARBITRATION, RATHER THAN IN COURT.

To the fullest extent permitted by applicable law, you and the Company further agree that any Dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.

Arbitration shall be conducted in accordance with the Consumer Arbitration Rules of the American Arbitration Association (“AAA”). Please visit www.adr.org for more information about arbitration. This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. Either party may seek enforcement of this provision in any court of competent jurisdiction.

Nothing in the Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a)bring an individual action in small claims court; (b) seek injunctive relief in a court of law; or (c) to file suit in a court of law to address an intellectual property infringement claim.

A party who intends to seek arbitration must first send a written notice of the Dispute to the other party by certified mail, or by courier or, only if the other party has not provided a current physical address, then by electronic mail (“Notice”). The Notice must: (a) describe the nature and basis of the Dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the Dispute directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding.

Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure), then the payment of all fees will be governed by the AAA rules. In that case, you will reimburse the Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA rules. Regardless of how the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

You also acknowledge and understand that, with respect to any Dispute between you and any Company Entity, including any claims relating in any way to these Terms or the Services, or any other aspect of our relationship: (a) You are giving up your right to have a trial by jury; (b) You are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit involving any such Dispute; and (c) any action or proceeding by you relating to such Dispute must commence within one year after the cause of action accrues or it is forever barred.

 If the Company changes this arbitration provision, you may reject the change by sending the Company written notice within 30 days of the change, in which case your account with the Company will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. If all or any part of this arbitration section is found to be unenforceable, then the remaining provisions of these Terms will remain in effect, and the exclusive jurisdiction and venue described above will govern any action arising out of or related to the Terms.

If this arbitration provision is found to be null and void, then all Disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in Los Angeles, California, and you and we hereby submit to the personal jurisdiction and venue of these courts. In the event of any litigation or arbitration arising from or related to the Agreement, or the Services provided, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys' fees, and all other related expenses incurred in such litigation or arbitration.

If you are a resident of the European Union, then notwithstanding anything in these Terms to the contrary, if there is a Dispute that you and the Company cannot resolve, you have the right to submit a complaint through http://ec.europa.eu/consumers/odr. In addition, nothing in these Terms limits your rights to bring an action against The Company in the local courts of your place of domicile. All disputes arising under the Terms between you and the Company will be subject to the non-exclusive jurisdiction of the courts located in your place of domicile, or the courts located in the Netherlands, and you and we hereby submit to the personal jurisdiction and venue of these courts.

The Company will not be liable or responsible to you for any failure or delay in fulfilling or performing any of its obligations related to the Services when and if failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Company including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes, or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

Questions about the Terms of Service should be sent to us at sup@birdygrey.com.

The Company may provide disclosures and notices regarding the Services, the Agreement, or your account to you electronically by posting it to the Services, or by emailing it to an email address listed in an applicable user account. Those electronic disclosures and notices will have the same meaning and effect as if you were provided with physical copies. Those disclosures and notices are considered received by you within 48 hours of the time posted or emailed to you unless the Company receives notice of non-delivery. To withdraw consent to receiving disclosures and notices electronically, contact sup@birdygrey.com.

You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you. You may opt-out of receiving communications by following the unsubscribe options we provide to you in those communications. You acknowledge that opting out of receiving communications may impact your use of the Services.

If you are not a United States resident and accessing our Services from outside the United States, you agree to the transfer of certain information outside your country to us and that your information may be stored and processed in the United States.

We make the Services available for an international community of users. However, our operations are located primarily in the United States, and our policies are based primarily on United States law. Because of this, users located outside of the United States that use the Services consent to the following: (i) the transfer, storage, and processing of your information, including but not limited to User Content and any personal information, to and in the United States and/or other countries; (ii) if you are using the Services from a location embargoed by the United States, or are on the United States Treasury Department’s list of “Specially Designated Nationals,” you are not authorized to access the Services; and (iii) you agree to comply with all local laws and regulations in effect in the location of your residence and the location from which you access the Services. The Services are not intended for use by any person in any jurisdiction where such use would be contrary to law or regulation, or which that would subject Birdy Grey to any registration requirement within such jurisdiction. Further:

Residents of EU: Notwithstanding anything in these Terms to the contrary, please note that certain jurisdictions may not allow the waiver or limitation of certain warranties, liabilities or damages and some of the exclusions and limitations in these Terms may not apply to you. Nothing in these Terms limits or excludes our responsibility for (1) our fraudulent representations (2) death or personal injury caused by our negligence or willful misconduct, or (3) non-execution of any material contractual obligation.

Resident of Germany, France, Austria or Finland: Notwithstanding anything in these Terms to the contrary, the qualifier "to the fullest extent permitted by law" (and other qualifiers of similar effect) wherever it appears in the Terms shall be deemed deleted and have no force and effect.