Terms of Use

EVERYTHING BIRDS WEBSITE TERMS OF USE

Effective Date: September 13, 2018

These Terms of Use (“Terms of Use”) apply to all visitors who use the publicly available pages of the website located at https://www.everythingbirds.com/ (the “Site”). These Terms of Use are between you, as a user of any portion of the Site, (“you” or “your”) and CB Member, LLC (“Classic Brands”, “we” or “us”). The terms of the Everything Birds Privacy Policy, which can be found here, are hereby incorporated as part of these Terms of Use. Please read all of these Terms of Use carefully before using the Site, because it affects your legal rights and obligations.

1. Who Can Use Our Site

By using or otherwise accessing our Site, you hereby represent and warrant to us that you (i) are over the age of majority in your jurisdiction or otherwise have the power and authority to enter into and perform your obligations under these Terms of Use, including, if you are below the age of 18, but between 13 and 18 years of age, you have consent of a parent or guardian to access and use the Site; (ii) all information provided by you is truthful, accurate and complete; and (iii) you will comply with the terms and conditions of these Terms of Use and any other agreement to which you are subject that is related to your use of the Site or any part thereof. You may not use our Site if you are prohibited, either by the laws of the United States of America or any other country, from accessing the Site or receiving any services via our Site.

2. Your Acceptance to These Terms of Use

Access to and use of our Site is conditioned upon your agreement to these Terms of Use. You are deemed to accept to these Terms of Use when you use any available pages of the Site or each time you access the Site. These Terms of Use and the Everything Birds Privacy Notice are available on various pages of the Site. By using or otherwise accessing the Site, and/or posting or downloading content or any other information to or from the Site, you acknowledge that you have read, understand, and you hereby agree to, and shall be subject to, these Terms of Use. If you do not unequivocally agree, you may not use or otherwise access the Site.

3. Ownership of the Site; Intellectual Property

Our Site contain text, software, images, photographs, graphics, audio, video, applications, user interfaces, visual interfaces, logos, designs, product names, and technical specifications (“Content”) which are derived in whole or in part from information and materials supplied by us and other sources, and are protected by copyright, trademark, patent, and other applicable laws. The entire content of our Site is copyrighted as a collective work under United States copyright laws, and are protected by other laws. Trademarks, logos, and service marks displayed on our Sites are registered and/or unregistered trademarks of Classic Brands, its licensors or content providers, or other third parties. You acknowledge that Classic Brands is the exclusive owner of the Site and that the Site is the proprietary intellectual property of Classic Brands. Any unauthorized use of our intellectual property, including our marks, our copyrighted material, and our trade dress, is strictly prohibited and may be prosecuted to the fullest extent of the law.

4. Rights We Grant You

We hereby grant you a limited, non-exclusive, revocable, non-assignable, non-transferable authorization to view and use our Site and any Content contained on our Site for the purposes expressly authorized by us. Our Site is provided for your personal information and non-commercial use. Nothing in these Terms of Use is intended to, or may be construed as, conferring by implication, estoppel or otherwise any license or other grant of right to use any patent, copyright, trademark, service mark or other intellectual property of Classic Brands or any third party, except as expressly provided in these Terms of Use. You agree not to remove, obscure, or modify any trademark legend or copyright notice, author attribution, or other notice placed on or contained within any of the Content. All rights not otherwise expressly granted by these Terms of Use are reserved by us.

5. Restrictions on Use of the Site

By using and accessing our Site, you acknowledge and agree that you must NOT:

a) use our Site for any illegal or unauthorized purpose, including using our Site in a manner that intentionally or unintentionally violates any applicable local, state, national or international law and these Terms of Use, or for any purpose that infringes any patent, trademark, trade secret, copyright, right of publicity or other proprietary right of any party;

b) use our Site for any purpose that may be deemed by us to be threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy (including stalking), tortious, explicit or graphic descriptions or accounts of sexual acts (including sexual language of a violent or threatening nature directed at another individual or group of individuals) or otherwise in violation of these Terms of Use;

c) use our Site for any purpose that victimizes, harasses, degrades or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability, or use our Site to harm or exploit minors in any way;

d) engage in any activity or use any device, software, or routine that interferes with or disrupts our Site (or the servers and networks which are connected to our Site), or a user’s access to our Site, or our Site’ operations, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature, or by injecting content or code or otherwise alter or interfere with the way any part of our Site is rendered or displayed in a user’s browser or device;

e) attempt to decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of our Site;

f) impersonate any person or entity, including any employee or representative of us or otherwise misrepresent your affiliation with a person or entity;

g) frame or otherwise simulate the appearance or functions of the Site or any portion thereof;

h) modify, copy, sell, resell, rent, lease, loan, sublicense, redistribute, or create any derivative work of, any portion of our Site, including any Site included on our Site;

i) use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on our Site, deep-link to any feature or content on our Site, bypass, circumvent, disable or otherwise interfere with our robot exclusion headers or other measures we may use to prevent or restrict access to our Site or copying of any Content or enforce limitations on use of our Site and the Content on our Site;

j) collect or store personal data about other users without permission; and

k) use our Site for any purpose that constitutes unauthorized or unsolicited advertising, junk or bulk e-mail, chain letters, any other form of unauthorized solicitation or any form of lottery or gambling.

6. Suspension; Modification; Termination

We may, from time to time and at our sole discretion, discontinue or alter all parts or any aspect of the Site, remove Content from the Site, or restrict the time the Site is available. You acknowledge and agree that we may, under certain circumstances, immediately suspend and/or terminate your access to the Site or any part thereof, including, without limitation, for the following reasons: (a) your or another user’s breach or violation of these Terms of Use or other agreements or guidelines referenced in these Terms of Use; (b) our discontinuance or modification to the Site; (c) unexpected technical or security issues or problems; (d) extended periods of inactivity; and/or (e) engagement by you or another user in fraudulent or illegal activities. You further agree that any such actions may be taken without notice to you, in our sole discretion, and without liability to you or any third party.

At any time and for any or no reason, Classic Brands may add or remove features, products, services, or functionalities to our Site. We may also suspend or stop providing the Site altogether. We may also terminate or suspend your access to all or part of our Site, without notice, for any conduct that we, in our sole discretion, believe is disruptive to our Site (or other users) or is in violation of any applicable law or these Terms of Use. We may not provide you with any notice beforehand when we take any of these actions. Classic Brands shall in no way be held liable for any consequence which results from any decision to modify or discontinue providing the Site.

Classic Brands may prohibit you from using or accessing the Site by placing a temporary hold or freeze on your account if we suspect you are violating the terms of this Agreement. If no violation is found, we will remove the hold and you may continue using the Site.

7. User Content and Feedback

Content posted or provided by users via our Site (collectively, “User Content”) is the intellectual property of the specific users of our Site who post such User Content. By your submission, posting or delivering of User Content to us, you hereby grant to us a transferable, nonexclusive, worldwide, perpetual, royalty-free license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense, and create derivative works and compilations incorporating your User Content. We do not generally monitor or otherwise remove User Content after it is posted on our Site, except as required or permitted by law or otherwise in our sole discretion. We reserve the right to remove any and all material that we feel is actually or potentially inappropriate, offensive, illegal or harmful in any respect or which may violate these Terms of Use. We are not responsible for the timeliness, deletion, mis-delivery or failure to store any User Content. We do not make any warranties or representations regarding any of the User Content. We do not approve, endorse, sanction, encourage, verify or agree with any message, profile, or other content posted by our users or otherwise embodied in the Content. You understand and agree that any User Content you submit may be viewed by other users of our Site. For purposes of these Terms of Use, references to “post” or “posting” shall refer to any manner of posting, transmitting, uploading, providing, making available or otherwise transferring material or information.

For any User Content that you post via the Site, you also hereby represent and warrant that: (a) you are owner of all User Content or otherwise have the right to grant us the licenses stated above; (b) you have secured all consents or permissions necessary to post the User Content and to grant the licenses stated above; (c) the User Content does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and the User Content does not contain any personally identifiable information about third parties in violation of such parties’ rights; and (d) the use of any User Content will not result in harm or personal injury to any third party.

Should you provide us with comments, feedback, information, or data about our Site, our Content, or use of our services, such as ideas, suggestions, or questions, (collectively, “Feedback”), your Feedback will not be given confidential treatment. By sending us any Feedback, you agreed to assign and you hereby assign such Feedback (along with any underlying or related ideas, concepts, techniques, know-how, and intellectual property rights) to Classic Brands without charge. You further agree to take all acts reasonably requested by Classic Brands to confirm Classic Brands’ ownership of such Feedback. As the sole and exclusive owner of such Feedback, we will be free to reproduce, make, copy, use, disclose, sell, distribute, and otherwise exploit such Feedback, for any commercial or non-commercial purposes (including into Classic Brands’ products, services, Site, or other offerings of Classic Brands), without any obligation or compensation to you of any kind.

8. Notice and Procedure for Making Claims of Copyright Infringement

We respect the intellectual property rights of others. If you believe that any Content of our Site may infringe your copyrights or other intellectual property rights, please provide Classic Brands the written information specified below. Please note that this procedure is exclusively for notifying Classic Brands if you believe that your intellectual property rights have been infringed.

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property interest;
  • A description of the intellectual property right that you claim has been infringed;
  • A description of where the material that you claim is infringing is located on our Site;
  • Your address, telephone number, and e-mail address;
  • A statement by you that you have a good faith belief that the disputed use is not authorized by the intellectual property owner, its agent, or the law;
  • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the intellectual property owner or authorized to act on the intellectual property owner’s behalf.

Classic Brands’ agent for notice of claims of copyright infringement or other intellectual property infringement on our Site can be reached as follows:

Copyright Agent
CB Member, LLC
3600 S. Yosemite St., Ste. 1000
Denver, CO 80237 US
privacy@everythingbirds.com

9. Disclaimer of Warranties

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, AND MATERIALS CONTAINED IN OR ON, ACCESSED VIA, OR DESCRIBED ON THE SITE, IS AT YOUR OWN RISK, AND THAT ALL SUCH INFORMATION, CONTENT, PRODUCTS, SERVICES, AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, CLASSIC BRANDS MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO THE AVAILABILITY, OPERATION AND USE OF THE SITE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES IN OR ON OR ACCESSED VIA THE SITE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, CLASSIC BRANDS DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE SITE IS ACCURATE, COMPLETE OR CURRENT, AND IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM YOUR RELIANCE ON ANY ASPECT OF THE SITE. PLEASE BE AWARE THAT INTERNET DATA TRANSMISSION IS NOT ALWAYS SECURE AND WE CANNOT WARRANT THAT INFORMATION YOU TRANSMIT UTILIZING THE SITE IS SECURE. CLASSIC BRANDS MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SITE WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS.

10. Limitation of Liability

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL CLASSIC BRANDS OR ITS AFFILIATES, OR ITS OR THEIR MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF RMS OR ITS AFFILIATES (THE “CLASSIC BRANDS PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, INABILITY TO USE OR IMPROPER USE OF THE SITE OR ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SITE AVAILABLE THEREON (INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL OR REVENUE, BUSINESS INTERRUPTION, OR LOSS OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE.

IN THE EVENT THE CLASSIC BRANDS PARTIES ARE NONETHELESS HELD LIABLE TO YOU FOR ANY DIRECT DAMAGES, THEN SUCH DAMAGES SHALL BE CAPPED AT THE GREATER OF: (I) THE FEES PAID BY YOU TO CLASSIC BRANDS TO ACCESS OR USE THE SITE (IF ANY) OR (II) US$500.00.

IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR RESPONSIBILITY TO HAVE INTERNET CONNECTION TO ACCESS THE SITE VIA THE INTERNET AND THAT CLASSIC BRANDS WILL NOT BE LIABLE TO YOU IF YOU ARE UNABLE TO ACCESS THE SITE DUE TO ANY POWER OR INTERNET DATA CONNECTION FAILURE.

11. Exclusions and Limitations

NOTHING IN THESE TERMS OF USE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN SECTIONS 10 AND 11 WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND CLASSIC BRANDS’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

12. Release and Indemnification

12.1 Release. You agree to release the Classic Brands Parties (as defined in Section 10) from any and all liability and obligations whatsoever in connection with or arising from your use of the Site. If at any time you are not satisfied with the Site or object to any Content or other material within or on the Site, your sole and exclusive remedy is to immediately stop using and otherwise accessing the Site.

12.2 Indemnification. You agree to indemnify and hold the Classic Brands Parties (as defined in Section 11) harmless from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees, disbursements and court costs) arising from or in connection with (i) the use of our Site or any Content or other information, materials, products or services contained, displayed or available in or on our Site by you or any other person accessing our Site on your behalf; (ii) your breach or violation of these Terms of Use or any other guidelines or agreements referenced in these Terms of Use, (iii) any information you provide to Classic Brands (including any information your provide to us as part of a registration process, contact form, or Feedback or User Content); or (iv) your violation of any rights of any third party.

12.3 Release by California Residents. If you are a California resident or could otherwise claim the protections of California law, you further expressly waive the provisions of section 1542 of the California civil code, which reads as follows: “a general release does not extend to the claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release which, if known by him or her, must have materially affected his or her settlement with the debtor.” You acknowledge that you have read and understand section 1542 of the California civil code, and you hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to your release of any claims you may have against Classic Brands.

13. Third-Party Websites & Content

As an accommodation to you and our other visitors, our Site may contain links to third-party websites, advertisers, services, special offers or other events or activities (collectively, “Third-Party Websites”) that are not owned or controlled by Classic Brands. We have no control over, and assume no responsibility for, the content, privacy policies, or practices of any Third-Party Websites nor do we endorse such sites. Classic Brands does not endorse, support, sanction, encourage, verify, or necessarily agree with the comments, opinions, or statements of third parties displayed on or transmitted via Third-Party Websites. If you access a Third-Party Website in the course of using the Site, you do so at your own risk, and you understand that these Terms of Use and our Classic Brands Privacy Notice do not apply to your use of such Third-Party Websites. You expressly relieve the Classic Brands Parties (as defined in Section 10) from any and all liability arising from your use of any Third-Party Website or third party-owned content.

Classic Brands does not endorse, support, sanction, encourage, verify, or necessarily agree with the comments, opinions, or statements of third parties displayed on or transmitted via our Site (“Third Party Content”). Any Third Party Content placed on the Site is the views and responsibility of those who post those comments, opinions, or statements, and do not necessarily represent the views of Classic Brands.

14. Arbitration; Class-Action Waiver

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU AND CLASSIC BRANDS TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.

For any dispute you have with any Classic Brands Party (as defined in Section 11), you agree to first contact Classic Brands and attempt to resolve the dispute with Classic Brands informally. Unless resolved by mutual efforts of you and us, any disputes or claims that may arise out of or in connection with these Terms of Use and for which either party shall seek equitable relief, all differences, disputes or claims arising in connection with these Terms of Use or any transaction or occurrence contemplated hereby shall be finally settled under the Commercial Rules of the American Arbitration Association in Denver, CO, by one or more arbitrators appointed in accordance with such rules except that no punitive damages may be awarded. It is understood that the decision in such arbitration shall be binding on both parties, that the prevailing party shall be entitled to recover its costs and reasonable attorney’s fees and that a judgment upon any award rendered may be entered in any court having jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from a court for matters related to data security, intellectual property or unauthorized access to or use of the Site. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY IN ARBITRATION, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS CLASSIC BRANDS AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS OF USE, YOU AND CLASSIC BRANDS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION LAWSUIT.

15. Updates to These Terms of Use

Classic Brands reserves the right to make changes at any time to our Site or these Terms of Use. Any modifications to these Terms of Use will be effective upon posting. Your continued use of the Site following posting of any revised Terms of Use will constitute your binding acceptance of the modified Terms of Use. If you do not agree to those modifications, you must immediately stop using and otherwise accessing the Site.

16. General

16.1 Term and Termination. These Terms of Use are effective unless and until terminated by Classic Brands or you. Classic Brands may, in its sole discretion, terminate your use of the Site or any part thereof if you fail to comply with any term of provision of these Terms of Use. You may terminate these Terms of Use at any time by discontinuing all use of the Site. Termination or cancellation of these Terms of Use shall not affect any right or relief to which either Classic Brands or you may be entitled at law or in equity. Upon termination, you must terminate all use of the Site and destroy all materials, including any Content, obtained using the Site and all copies thereof.

16.2 Access from Outside of the United States. Our Site and the Content is hosted in the United States and is governed by United States law. Our products and services, and other Content, on our Site are only directed at those located within the United States. If you are using our Site from outside the United States, please be aware that your information may be transferred to, stored and processed in the United States where our servers are located and our central database is operated. The data protection and other laws of the United States and other countries might not be as comprehensive as those in your country. By using the Site in any way, you hereby consent to the transfer of your data and information to, and the storage and processing of such data and information in, the United States of America.

16.3 Assignment. You may not assign or otherwise transfer these Terms of Use or any rights or obligations hereunder without Classic Brands’ prior, written consent. Any assignment in violation of this Section is null and void.

16.4 Entire Agreement/Severability. These Terms of Use, together with the Everything Birds Privacy Policy, any amendments and any additional agreement you may enter into with Classic Brands in connection with the Site, shall constitute the entire agreement between you and Classic Brands concerning the Site and supersede any prior or contemporaneous communications, representations, or agreements, whether oral or written, between you and Classic Brands with respect to such subject matter. If any portion of this Agreement is deemed unlawful, void or unenforceable, that portion will be deemed severable and will not affect the validity or enforceability of the remaining provisions.

16.5 No Waiver. No waiver of any term in these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and Classic Brands’ failure to assert any right or provision under these terms shall not constitute a waiver of such right or provision.

16.6 Section Headings. The section headings appearing in these Terms of Use have been inserted for the purpose of convenience and ready reference. They do not purport to, and shall not be deemed to, define, limit or extend the scope or intent of the clauses to which they pertain.

16.7 Survival of Certain Provisions. Those provisions outlined here that normally would survive after you cease using the Site and Content and all provision indicating an ongoing obligation, which include but are not limited to Section 9 (Disclaimer of Warranties); Section 10 (Limitation of Liability); Section 12 (Release and Indemnity); Section 14 (Arbitration; Class-Action Waiver) and Section 16 (General), shall survive any termination or expiration of these Terms of Use, but shall not imply or create any continued right to use the Service after the termination of these Terms of Use.

16.8 Governing Law. The laws of the State of Colorado will govern these Terms of Use, without giving effect to any principles of conflicts of laws. To the extent the parties are permitted under these Terms of Use to initiate litigation in a court, you agree that any action arising out of the Terms of Use or your use of the Site shall be brought in state or federal court in Denver, Colorado, and you consent to the jurisdiction of such courts.

16.9 Contact Us. If you have any questions relating to these Terms of Use, the Site or Classic Brands, please contact:

CB Member, LLC
3600 S. Yosemite St., Ste. 1000
Denver, CO 80237 US
privacy@everythingbirds.com