Terms & Conditions

Terms & Conditions

These Terms and Conditions were last modified on August 16, 2018.

Welcome to Chirpy Bird, LLC website, Chirpy Birdllc.com (the “Site”). These Terms and Conditions (“Terms”) are between Chirpy Bird, LLC (“Chirpy Bird”, “us”, “we”, or “our”) and a user who accesses the Site or uses Chirpy Bird’s Services (“you” or “your”). These Terms outline the terms and conditions of our relationship with you, as supplemented by our Privacy Policy. By using the Site or Chirpy Bird’s Services, you agree to be bound by the following terms and all applicable laws and regulations.

IMPORTANT! THESE TERMS AND ANY RELEVANT SPECIFIC TERMS GOVERN YOUR USE OF THE SITE AND USE OF OUR INTERNET-BASED SUBSCRIPTION MANAGEMENT AND BILLING SOFTWARE SERVICES (“Services”). THESE TERMS AND ANY RELEVANT SPECIFIC TERMS ARE SUBJECT TO CHANGE AT ANY TIME IN AT CHIRPY BIRD’S DISCRETION AND YOU ARE ENCOURAGED TO REVIEW THE MOST CURRENT TERMS AND ANY RELEVANT SPECIFIC TERMS EACH TIME YOU VISIT. YOUR CONTINUED USE OF THE SITE AFTER SUCH CHANGES ARE IMPLEMENTED CONSTITUTES YOUR ACKNOWLEDGMENT AND ACCEPTANCE OF THE CHANGES. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, DO NOT USE OR ACCESS THE SITE OR USE OUR SERVICES.

Your use or access of the Site in any way signifies your constructive and actual notice and knowledge of, and your agreement to be bound by, the most current version of the Terms as posted on the Site and our Privacy Policy. It is solely your responsibility to ensure that your use of any and all third-party website or content is in compliance with any and all third-party requirements.

Access to portions of the Site may require that you agree to additional terms (“Specific Terms”) that, together with these Terms, will govern your use of the relevant Site portions. Any relevant Specific Terms will be provided to you before you will be granted first access. Your continued access shall constitute your continued acceptance to any relevant Specific Terms.

OWNERSHIP & LIMITED LICENSE

For so long as you are our customer and paying the Service Fees required by these Terms, Chirpy Bird grants to you a non-exclusive right to use the Site and our Services, subject to the restrictions set forth in these Terms and any other restrictions communicated by us in writing. Nothing in these Terms shall prohibit Chirpy Bird from furnishing our Services to others, including your competitors.

Subject to the limited rights expressly granted hereunder, we reserve all rights, title, and interest in and to the Site and our Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services without our express written consent. The look and feel of the Site and our Services is copyright © 2018 Chirpy Bird, LLC. All rights reserved. You may not duplicate, copy or reuse any portion of the visual design elements without our express written consent.

RESTRICTIONS ON USE

You may use the Site only for purposes expressly permitted by the Site. You may not use the Site for any other purpose, including any other commercial purpose, without our express prior written consent. For example, you may not (and may not authorize any other party to) co-brand the Site or frame the Site without our express prior written permission.

USER REGISTRATION

To obtain full access to the Site and our Services, you will be required to complete a registration. You will be asked to (a) provide certain registration details or other information; (b) to establish an account specific to you (“Account”) by choosing the Service Plan to be provided by us under the terms and pricing set forth at Chirpy Bird.com/pricing; and (c) to pay an initial service fee. By signing up for your Account, you agree to pay the fees designated for the Service Plan you selected (“Service Fees”).

To create your Account, to login to the Site, and/or to participate in any Services offered by the Site, you must qualify and agree to the conditions set forth below. Failure to qualify and continuously abide by any of the following conditions constitutes a breach of these Terms and may result in the termination of your Account and authorization to use the Site and the Services. Specifically, you agree that:

  • You are either (a) the age of legal consent or (b) you are a minor over the age of eighteen (18) years old and have obtained your parent’s (or your legal guardian’s) permission, for accessing the Site under the laws of any jurisdictions that apply to you. We expressly reserve the right (but do not have the obligation) to request proof of your age, at any time;
  • You acknowledge that, in establishing your Account and using our Services, you have provided us with certain personally identifiable information about you or your customers. Please see our Privacy Policy for the subject matter of the information collected and the duration of retention of said information;
  • All information that you provide in your registration form with us for the purposes of establishing your Account is true and correct and you will promptly notify us of any changes to such information;
  • All information that you provide to us about your customers has been provided with the consent of your customers. You will use the information fields only to transmit information required to perform the Services requested and will not provide any additional personally identifiable information about you or your customers to us. It is a breach of these Terms for you to provide personally identifiable information to us which is not required to perform the Services requested;
  • Your Account is for your sole use only and must not be used by any third party. You shall not allow any third party to use your Account, password, login, or user ID to access or use the Site, to arrange, enter, and/or participate in Services, or for any other purposes. We take no responsibility for any third-party access to your Account. You shall notify us promptly of any unauthorized use of your password and identification and/or breach. You accept responsibility for all activities that occur under your Account, user ID, or password and all such use shall be deemed to be authorized by you;
  • You have verified and determined that your use of the Site and the Services does not violate any law or regulation in any jurisdiction that applies to you. It is your sole responsibility to ensure that this is the case;
  • You will not use the Site or the Services for fraudulent or otherwise illegal purposes;
  • You understand that we may detect your Internet access location, without creating an obligation to do so, and may use techniques which are intended to block or restrict access from a jurisdiction in which participation in the Site or Services is illegal or restricted;
  • You will not mask your identity in any way, including without limitation, IP masking or accessing the Site over any type of proxy server; and
  • You will ensure that all use of your Account fully complies with these Terms. We may suspend or terminate your access to the Site and the Services without notice to you in the event that you do not use the Site or the Services for an extended period of time.

YOUR ACCOUNT

Your Account must be registered under your current full legal name, your email address, and your current business address. It is your responsibility to keep your e-mail address current. If you need to update your email address, please contact Team@ChirpyBirdLLC.com.

To access the full functions of the Site, you must have a valid Account established. Further, you must meet all the conditions described throughout these Terms.

VERIFICATION OF ACCOUNT INFORMATION

We reserve the right (but do not undertake the obligation) to conduct a review, at any time, to validate your Account information and/or to ensure that your participation in the Site and use of the Services does not breach these Terms and/or any applicable law. You authorize us and our agents to make any inquiries of you and for us to use and disclose to any third party we consider necessary to validate this information. To facilitate the foregoing validation, you agree to provide sufficient information or documentation as we, in our discretion, may request. If you do not provide such information within thirty (30) days of our request, if your responses are incomplete or otherwise insufficient, or if we cannot verify the information applicable to your Account, your Account may be terminated.

PAYMENTS

Payments to us for Service Fees for your Account must be made using means of payment that we may approve from time to time. We currently require payments be made by a major credit card (i.e., VISA & MasterCard). Payments must be made from a payment source on which you are the named account holder. Payments are not refundable for any reason.

You will be charged in arrears for Services rendered at the end of each month (“Billing Date”). If we do not receive the full amount of your Service Fees within fifteen (15) days of the Billing Date, a late payment charge of one and a half percent (1.5%) per month may be added to your bill and immediately become due and payable. You agree to pay us all reasonable attorney’s fees and costs incurred by us to collect any past due amounts. Your Account will be deactivated without further notice if payment is past due, regardless of the dollar amount. If you do not pay the outstanding balance or otherwise contact us regarding reactivating your Account within thirty (30) days, we may suspend or terminate your Account and Services with or without notice. We may change our fee structure at any time with thirty (30) days notice.

You agree that we will not be liable for any loss caused by any unauthorized use of your credit card or any other method of payment by a third party in connection with the Site or the Services. You waive your right to dispute any payment made into your Account and you will bear all costs.

Any attempt to defraud, through the use of credit cards or other methods of payment in connection with the Site or the Services, or any failure by you to honor charges or requests for payment will result in immediate termination of your Account and may result in civil claims and/or criminal prosecution against you.

In the case of suspected or fraudulent payment, including the use of stolen credentials, by anyone, or any other fraudulent activity, we reserve the right to block your Account. We shall be entitled to inform any relevant authorities or entities (including credit reference agencies) of any payment fraud or other unlawful activity and may employ collection services to recover payments.

PROCESSING OF ACCOUNT PAYMENTS

We may use third-party electronic payment processors and/or financial institutions (“ESPs”) to process financial transactions. When initially setting up your Account, you will have the ability to decide which ESP you want to process your payments. By selecting the ESP, you authorize us, as necessary, to instruct such ESPs to handle such transactions. You authorize us to give such instructions on your behalf in accordance with your requests as submitted on the Site for the use of Services. You acknowledge that each ESP has its own terms and conditions of use and that we are not responsible for said terms and conditions. In the event or conflict between these Terms and the ESP’s terms and conditions regarding the Site or the Services, these Terms shall prevail.

RENEWALS

Our services are provided on a month-to-month basis. To provide continuous service, we automatically renew all paid subscriptions upon expiration (“Renewal Date”). By using the Site or the Services, you acknowledge that your Account will be subject to the above-described automatic renewals. In all cases, if you do not wish your Account to renew automatically, please follow the directions set out under the “Termination or Cancellations of Accounts & Refunds” section of these Terms.

TERMINATION OR CANCELLATIONS OF ACCOUNTS & REFUNDS

We may terminate these Terms, terminate your access to all or part of the Site and/or Services, or suspend any user’s access to all or part of the Site and/or Services, at any time, without notice to you, if we believe, in our sole judgment, that you or any user connected to you have breached or may breach any term or condition of these Terms, if we believe it is required by law, or otherwise. We may delete any Account Data or other materials relating to your use of the Site and/or our Services on our servers or otherwise in our possession. You acknowledge that we shall not be liable to you or to any third party for any termination of your access to the Site and/or our Services.

We reserve the right to terminate your Account for nonpayment if, by thirty (30) days after deactivation of your Account, you have not brought your Account balance current or contacted us regarding reactivation. If we terminate your Account, all of your Account Data may be deleted.

You may cancel at any time before the end of your first month, and you will not be charged for use of the Services. After the first month, you may cancel your Account before the Renewal Date, and your account will not be renewed, but you will be charged for the use of Services up to the date you cancel your Account.

DIRECTIONS FOR CANCELING YOUR ACCOUNT

  • Log in to your Chirpy Bird Account.
  • Click “Configuration,” then “Settings”.
  • In the left Subnavigation, click “Cancel Account.”
  • After reading the notes there, check the box and click “Send Cancelation Request”.

Your Account will be deactivated immediately upon cancellation

You agree that termination or cancellation will not relieve you of any obligation to pay any accrued charges unless otherwise stated above. You shall be charged the full amount of the fee for the month in which our Services were terminated. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of the Services.

Upon termination of your Account for any reason, we will return or delete any personal information regarding your Account at your request and choice.

SECURITY

We will implement appropriate technical and organizational measures to ensure a level of security appropriate to the information required for the performance of the Services. If you provide information to us that requires a higher level of security, such as special categories under the General Data Protection Regulation (“GDPR”), you assume the responsibility of properly securing said information and acknowledge that providing any such information to us which is not required for the performance of the Services is a violation of these Terms.

MODIFICATION & TERMINATION OF THESE TERMS

We may modify these Terms from time to time. We will notify you via email or posting on the Site of such modification and will note the date of the last modification. If you use the Site or the Services after those updates are posted, you are deemed to accept and agree to be bound by those changes. These Terms will continue to apply until terminated either by you or by us as previously described in these Terms.

SERVICE USE & LIMITATIONS

We will make commercially reasonable efforts to keep the website itself operational twenty-four (24) hours a day, seven (7) days a week, except for (a) planned downtime (for which we will provide at least eight (8) hours prior notice); or (b) any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays.

The Services are a subscription management and consulting service. You acknowledge and agree that: (a) we will not be processing payment transactions on your behalf or on behalf of your customers; (b) we are not a bank or other chartered depository institution; (c) we will not hold any monies for you or for your customers. Accordingly, you agree that we will not be responsible or liable for any amounts related to any credit card or online payment transaction.

We will be sending information to your payment gateway service provider; however, we make no representation as to the availability of your payment gateway service provider, and we are not responsible for any downtime or system outage of your payment gateway service provider. Furthermore, we make no guarantee that you will be successfully underwritten and approved by a merchant service provider. If you are not approved by a merchant service provider, you will be unable to take full advantage of our Site’s functionality or our Services.

NO WARRANTY; DISCLAIMER & LIMITATION OF LIABILITY

We have no obligation to check whether users are using the Site or the Services in accordance with these Terms or any other agreement.

You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses, or other code that may manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site and the Services for the reconstruction of any lost data. We do not assume any responsibility or risk for your use of the Internet.

OUR SERVICES AND ALL MATERIALS ON THE SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CHIRPY BIRD MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, OR SUITABILITY OF ANY OF THE MATERIAL ON THE SITE, OR ON ANY WEBSITE OR WEBSITES “LINKED” TO THE SITE. CHIRPY BIRD MAKES NO WARRANTY THAT THE SITE AND OUR SERVICES WILL BE AVAILABLE, UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL CHIRPY BIRD OR ITS AFFILIATES, CONTRACTORS, OR THEIR RESPECTIVE EMPLOYEES HAVE ANY LIABILITY TO YOU FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR OUR SERVICES OR YOUR INABILITY TO USE THE SITE, OUR SERVICES, SITE CONTENT, OR ANY PRODUCTS OR SERVICES, OR ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, EFFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE SYSTEM FAILURE, LOSS OF DATA, OR LOSS OF USE RELATED TO THE SITE, OUR SERVICES, OR ANY WEBSITE OPERATED BY ANY THIRD PARTY.

IF YOU ARE DISSATISFIED WITH US, THE SITE, OUR SERVICES, OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR USE OF THE SITE AND OUR SERVICES.

RELEASE

You agree that Chirpy Bird shall not be responsible or liable for any loss or damage of any sort incurred as the result of your use of the Site or our Services. You hereby release Chirpy Bird, its officers, employees, agents, and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to our Site or our Services.

If you are a Virginia resident, you waive Virginia 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.”

INDEMNIFICATION

You agree to defend, indemnify and hold Chirpy Bird, its subsidiaries, affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors (the “Indemnified Parties”) from and against any and all liability, loss or damage, cost or expense, including but not limited to court costs, attorneys’ fees, and any awards or damages caused by, relating to or incident to: (a) your use of our Services; (b) the Site; (c) claims by your customers or payment gateway service provider; or (d) the products and/or services offered through the Site.

THIRD PARTY WEBSITES

We may provide links and pointers to Internet sites maintained by others who are independent from Chirpy Bird (“Third-Party Sites”). We have not reviewed all of the Third-Party Sites linked to the Site and are not responsible for the content of or any products or services offered on such Third-Party Sites. Chirpy Bird makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in any such website. Accessing any other website from the Site is at your own risk.

From time to time, Chirpy Bird may display or otherwise make available promotions, advertisements and/or offers provided by third parties (“Third-Party Promotions”). You understand and agree to hold Chirpy Bird harmless and agree that Chirpy Bird shall have no liability whatsoever for such Third-Party Promotions. If you participate in, click on, or otherwise link to such Third-Party Promotions you do so solely at your own risk. Your sole remedy in connection with such Third-Party Promotions will be with the third party.

UNITED STATES ONLY

All materials on the Site are provided solely for the purpose of promoting our operations and products in the United States and its territories. We make no representation that the products and services on the Site are appropriate or available for use in other locations. If despite these conditions, you use the Site or our Services from outside the United States, you are solely responsible for compliance with any applicable local laws.

DISPUTE RESOLUTION

YOU AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN REGARD TO SPECIFIC THIRD PARTY MATERIALS ON THE SITE IN ANY SPECIFIC TERMS APPLICABLE TO THOSE THIRD PARTY MATERIALS, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS, THE SITE, THE USER CONTENT, SITE CONTENT, AND THIRD PARTY MATERIALS (INCLUDING YOUR VISIT TO OR USE OF THE SITE) SHALL BE FINAL AND BINDING ARBITRATION, except that, to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark, or trade secret rights, or you have otherwise violated any of the user conduct rules set forth above, then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought before, during, or after the pendency of any arbitration proceeding brought pursuant to these Terms, or in lieu of such proceedings.

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules (collectively the “AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

The arbitration shall be held in Richmond, Virginia at a locale to be proposed by Chirpy Bird, and the allocation of costs and fees for the arbitration shall be determined in accordance with the AAA Rules and shall be subject to the limitations in these Terms. In rendering a decision, the arbitration panel shall follow the law of the United States and of the State of Virginia, and shall not use equitable or other principles which would permit the panel to ignore these Terms or the law. The arbitration panel’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction, provided, however, that errors of law may be appealed to a court of competent jurisdiction for review. Any award in arbitration shall be subject to all dollar and other limitations set forth in these Terms.

To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SITE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action, or proceeding by you related in any way to the Site (including your visit to or use of the Site) be instituted more than one (1) year after the cause of action arose.

GOVERNING LAW

These Terms shall be governed by the laws of the State of Virginia without giving effect to any choice or conflict of law or rule (whether of the State of Virginia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Virginia, provided, however, that disputes concerning patent, federal trademark, or federal copyright matters shall be governed by federal law. You consent to jurisdiction and venue in the state or federal courts of the State of Virginia.

TRADEMARKS, TRADE NAMES, AND SERVICE MARKS

Unless otherwise indicated, all logos, names, package designs, and marks on the Site are trademarks or service marks owned or used under license by us or our business partners. The use or misuse of any of these marks or other information is strictly prohibited.

We grant you permission to print individual pages from the Site, unless otherwise expressly noted, for your non-commercial use in learning about and evaluating the services or products offered on the Site. No other permission is granted to you to print, copy, reproduce, distribute, license, transfer, sell, transmit, upload, download, store, display in public, alter, modify, or create derivative works of these materials.

This grant of permission is not a transfer of title, and under this permission you may not: use the materials for any commercial purpose, or for any public display (commercial or non-commercial); remove any copyright, trademark, or other proprietary notations from the materials; or transfer the materials to another person or “mirror” the materials on any other server, except as permitted by law.

We make no warranties or representations to you that your use of any materials displayed on the Site will not infringe the rights of third parties. In addition, you may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the content. Modification or use of this content except as expressly provided in these Terms violates Chirpy Bird’s intellectual property rights. Neither title nor intellectual property rights are transferred to you by your access to the Site.

COPYRIGHT & INTELLECTUAL PROPERTY

Chirpy Bird understands the value and importance of intellectual property rights and makes every effort to respect the legitimate intellectual property rights of others. Chirpy Bird does not review all of the material posted on or submitted through the Site and has no responsibility for any content that you may find or access when using the Site, products, or the Services.

Chirpy Bird takes all concerns related to intellectual property seriously and it is our policy, at our discretion and in appropriate circumstances, to cancel, disable or terminate any user’s Account who infringes or appears to infringe the intellectual property rights of others.

If you believe that any material on this website infringes a copyright, or any valid intellectual property right, please provide the following information to our DMCA Agent at Hello@ChirpyBirdllc.com.

  • A physical or electronic signature that you are 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 at a single online site are covered by a single notification, a representative list of such works on our website;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and 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 an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please provide this information to Chirpy Bird’s DMCA Agent, who can be reached as follows:

 

By E-Mail: Hello@ChirpyBirdLLC.com

Due to IT concerns, attachments cannot be accepted on notices sent via email. Accordingly, any notification of infringement submitted electronically with an attachment will not be processed.

SUBMITTED INFORMATION

Except for Personal Data (as defined in our Privacy Policy), if you submit any other information to us, including any data, variables, comments, remarks, suggestions, ideas, notes, drawings, graphics, concepts, or other information, you are giving that information, and all your rights in it, to us free of charge, and that information will be treated as non-confidential and non-proprietary and may be used by us for any purpose, without your consent or any compensation to you or anyone else. This is true whether you submit such information to us by email, through a form on the Site, on a bulletin board, or in any other manner. We may from time to time monitor, review, and, in our sole discretion, modify or delete any postings you make on the Site, however, we are not obligated to do so. You agree not to submit or transmit any material that is unlawful, threatening, libelous, defamatory, obscene, pornographic, profane, or might in any other way violate any law, regulation, or rule, or these Terms. You are solely responsible for any material you submit to the Site. You further agree not to upload, email, post or transmit to, or distribute or otherwise publish through the Site any material which disrupts the normal operation of the Site or the Services, including posting or otherwise transmitting material that is not related to the subject at issue or otherwise restricts or inhibits any other user from using the Site or the Services. Through your usage of the Site and/or the Services, you may submit and/or we may gather certain limited information about you and your website usage in accordance with our Privacy Policy. Subject to the terms of our Privacy Policy, we are free to use such information for any purpose we deem appropriate, we will not be required to treat any such submission as confidential, and we may use any submission (including without limitation, for products or advertising) without incurring any liability for royalties or any other consideration of any kind, and will not incur any liability as a result.

MISCELLANEOUS TERMS

Our failure to strictly enforce any right against you shall not constitute a waiver thereof. If any provision of these Terms is deemed invalid, illegal, or unenforceable, such provision will be deemed amended to conform to applicable laws and the remainder of the Terms shall remain in full force and effect to the fullest extent permitted by law. Your use of the Site and our Services is subject to our Privacy Policy. These Terms and the Privacy Policy represent the full understanding and agreement of the parties with respect to the subject matter hereof and supersede all prior or contemporaneous oral or written communications with respect to the subject matter. Our relationship shall be that of independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created between us by these Terms. Neither party shall have the power to obligate or bind the other party.

 

BUSINESS ASSOCIATE AGREEMENT

 

HIPAA BUSINESS ASSOCIATE AGREEMENT BETWEEN <CLIENT NAME> AND CHIRPY BIRD, LLC THIS HIPAA BUSINESS ASSOCIATE AGREEMENT (the “Agreement”) between <CLIENT NAME> (“Covered Entity”) and CHIRPY BIRD, LLC a Business Associate of Covered Entity (“BA”), is effective as of the date of the Underlying Agreement as defined herein (the “Agreement Effective Date”).

 

WITNESSETH:

 

WHEREAS, Covered Entity and BA have entered into an agreement whereby BA provides certain services to the Covered Entity (the “Underlying Agreement”).

 

WHEREAS, to the extent permitted by law, Covered Entity wishes to disclose certain information to BA pursuant to the terms of the Underlying Agreement, some of which may constitute Protected Health Information (“PHI”);

 

WHEREAS, Covered Entity and BA intend to protect the privacy and provide for the security of PHI disclosed to BA pursuant to the Underlying Agreement in compliance with the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 as amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and the privacy rule and security standards promulgated thereunder by the U.S. Department of Health and Human Services as amended from time to time (“HIPAA”) and other applicable laws including health information privacy, security and breach notification laws implemented by the State of Texas, limited only to circumstances where BA meets the definition of a “business associate” under HIPAA and the other applicable laws referenced herein;

 

WHEREAS, the purpose of this Agreement is to satisfy certain standards and requirements of HIPAA applicable to BA if and only to the extent that it serves as a “business associate” in accordance with the Underlying Agreement’s terms including, but not limited to, Title 45, Section 164.504(e) of the Code of Federal Regulations (“C.F.R.”), as the same may be amended from time to time;

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

A. Definitions. For the purposes of this Agreement, the following terms have the meanings ascribed to them:

 (1) “Disclosure,” with respect to PHI, means the release, transfer, provision of access to or divulging in any other manner of PHI outside the entity holding the PHI.

(2) “Individual” shall mean the person who is the subject of the Protected Health Information.

(3) “Parties” shall mean Covered Entity and Business Associate.

(4) “Protected Health Information” or “PHI” means any information created or received by Covered Entity, whether oral or recorded in any form or medium: (i) that relates to the past, present or future physical or mental condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual, and (ii) that identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual.

(5) “Unsecured PHI” shall mean PHI that is not secured through the use of a technology or methodology specified by the Secretary of Health and Human Services.

 

B. Stated Purpose for Which BA May Use or Disclose PHI.

The Parties hereby agree that except as otherwise limited in this Agreement, BA shall be permitted to use or disclose PHI provided or made available from Covered Entity to perform any function, activity or service for, or on behalf of, Covered Entity as specified in the Underlying Agreement, provided that such use or disclosure would not violate HIPAA if done by Covered Entity.

 

C. BA Obligations. BA covenants and agrees that it shall:

(1) Not use or further disclose PHI other than as permitted or required under this Agreement or as required by applicable law or regulation.

(2) Implement administrative, physical, and technical safeguards, including but not limited to written policies and procedures, that reasonably and appropriately protect the confidentiality, integrity, and availability of the electronic PHI that it creates, receives, maintains, or transmits on behalf of the covered entity as required by law, other than as permitted under this Agreement.

(3) Maintain a written information security program consistent with HIPAA standards that includes administrative, technical, and physical safeguards to maintain the security of and prevent unauthorized access to Covered Entity’s PHI.

(4) Require any of its agents or subcontractors, or other third parties with which BA does business that create, receive, maintain or transmit PHI on behalf of Covered Entity, to agree, in writing, to adhere to the same restrictions and conditions on the use and disclosure of PHI that apply to BA under this Agreement. Such written agreement shall identify Covered Entity as a third party beneficiary with rights of enforcement and indemnification from such subcontractors or agents in the event of any violation of the written agreement.

(5) Report to Covered Entity any security incident of which BA becomes aware, including breaches of Unsecured PHI as required by 45 C.F.R. § 164.410.

(6) Make available to Covered Entity, or to an individual patient, within ten (10) days of receiving an oral or written request, such information as is necessary to fulfill Covered Entity’s or BA’s obligations to provide PHI: (a) pursuant to an individual’s right to obtain a copy of his or her PHI under 45 C.F.R. § 164.524(a); (b) that may be related to an individual’s right to amend his or her PHI under 45 C.F.R. § 164.526; and (c) that may be required to provide an accounting of disclosures pursuant to 45 C.F.R. § 164.528. BA shall also, as directed by Covered Entity, incorporate any amendments to PHI into copies of such PHI maintained by BA.

(7) To the extent BA carries out an obligation of Covered Entity under HIPAA, BA shall comply with the requirements of HIPAA that apply to Covered Entity in the performance of such obligation. (8) Make available to the Secretary of the U.S. Department of Health and Human Services all internal practices, books and records relating to the use and disclosure of PHI received from, or created by, BA on behalf of Covered Entity, for purposes of determining Covered Entity’s and BA’s compliance with federal privacy laws and regulations.

(9) During the term of the Agreement, notify Covered Entity as soon as possible of any suspected or actual breach of security, intrusion, or unauthorized use or disclosure of Unsecured PHI and/or any actual or suspected use or disclosure of data in violation of any applicable federal or state laws or regulations. Such notice may be supplemented as facts become available and shall include the identification of each individual whose Unsecured PHI has been, or is reasonably believed by BA to have been, accessed, acquired, or disclosed during such breach, and any other information that Covered Entity deems necessary to meet its breach notification obligations under HIPAA.

Notifications under this section C. will be provided to:

<CLIENT NAME>

Address

ATTN:_ __________________________

 

(10) Use and disclose to its subcontractors, agents or other third parties, and request from Covered Entity, only the minimum Protected Health Information necessary to perform or fulfill a specific function required or permitted by this Agreement.

 

D. Permitted Uses and Disclosures. BA agrees that it shall not use or disclose PHI in any manner, form, or in any means that is contrary to its obligations under the Underlying Agreement or this Agreement. Notwithstanding the foregoing, the Parties agree that pursuant to federal law, BA may:

(1) Use PHI in its possession for its proper management and administration and to fulfill any of its present or future legal responsibilities provided that such uses are permitted under state and federal confidentiality laws.

(2) Use PHI in its possession to provide data aggregation services relating to the health care operations of the Covered Entity, as provided for in 45 C.F.R. § 164.501.

(3) Disclose PHI in its possession to third parties for the purpose of its proper management and administration or to fulfill any of its present or future legal responsibilities provided that (i) the disclosures are required by law, as provided for in 45 C.F.R. § 164.501, or (ii) BA has received from the third party written assurances that the PHI will be held confidentially, that the PHI will only be used or further disclosed as required by law or for the purpose for which it was disclosed to the third party, and that the third party will notify BA of any instances of which it is aware in which the confidentiality of the information has been breached, as required under 45 C.F.R. § 164.504(e)(4) and consistent with Section 8., above.

 

E. Unilateral Termination. Notwithstanding any other provision under the Agreement and pursuant to federal law, the Parties agree that this Agreement and the Underlying Agreement may be terminated by either Party without penalty should a Party determine, in its sole discretion, that the other Party has violated a material obligation under this Agreement.

 

F. Return or Destruction of PHI. Upon termination, cancellation, or expiration of the Underlying Agreement, BA shall return to Covered Entity any and all PHI received from or created by, BA on behalf of Covered Entity that is maintained by BA in any form whatsoever, including any copies or replicas. If returning the PHI to Covered Entity is not feasible, BA shall destroy any and all PHI maintained by BA including any copies or replicas. Should the return or destruction of the PHI be determined by BA to be not feasible, the Parties agree that the terms of this Agreement shall extend to the PHI for as long as BA maintains the PHI, and any further use or disclosure of the PHI by BA shall be limited to that purpose which renders the return or destruction of the PHI infeasible. Destruction of PHI must be in accordance with HHS standards and processes for rendering PHI unusable, unreadable, or indecipherable to unauthorized individuals so that it is no longer Unsecured PHI.

 

G. Amendment to Comply with Law. The Parties acknowledge that state and federal laws relating to electronic data security and privacy are rapidly evolving and that amendment of this Agreement may be required to ensure compliance with such developments. Specifically, HITECH, as implemented by the HIPAA Omnibus Rule (78 Fed. Reg. 5566 (January 25, 2013)), imposes new requirements on business associates and covered entities with respect to privacy, security, and breach notification. Applicable HIPAA and HITECH provisions, together with any guidance issued by the Secretary, and any applicable amendments to federal and state privacy law, are hereby incorporated by reference and will become part of this Agreement as if set forth in their entirety, effective as of the applicable effective date/s.

 

H. No Third Party Beneficiaries. Nothing express or implied in the Agreement is intended to confer, nor shall anything herein confer, upon any person other than Covered Entity, BA, and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.

 

I. Term. This Agreement shall become effective on the Agreement Effective Date and shall expire when all of the PHI provided by Covered Entity to BA is destroyed or returned to Covered Entity pursuant to Section F. The Parties agree that Sections B, C, and D of the Agreement shall survive the termination or expiration of the Agreement.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed and delivered by their duly authorized representatives, as of the Agreement Effective Date. Each person signing this Agreement represents and warrants that he or she is duly authorized and has the legal capacity to execute and deliver this Agreement.

 

 

<CLIENT NAME> CHIRPY BIRD, LLC
By: By:
Print Name: _________________ Print Name: ________________
Print Title: _________________ Print Title: _ ________________

 

(1) “Disclosure,” with respect to PHI, means the release, transfer, provision of access to or divulging in any other manner of PHI outside the entity holding the PHI.

(2) “Individual” shall mean the person who is the subject of the Protected Health Information.

(3) “Parties” shall mean Covered Entity and Business Associate.

(4) “Protected Health Information” or “PHI” means any information created or received by Covered Entity, whether oral or recorded in any form or medium:

(i) that relates to the past, present or future physical or mental condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual, and (ii) that identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual.

(5) “Unsecured PHI” shall mean PHI that is not secured through the use of a technology or methodology specified by the Secretary of Health and Human Services.

B. Stated Purpose for Which BA May Use or Disclose PHI. The Parties hereby agree that except as otherwise limited in this Agreement, BA shall be permitted to use or disclose PHI provided or made available from Covered Entity to perform any function, activity or service for, or on behalf of, Covered Entity as specified in the Underlying Agreement, provided that such use or disclosure would not violate HIPAA if done by Covered Entity.

C. BA Obligations. BA covenants and agrees that it shall:

(1) Not use or further disclose PHI other than as permitted or required under this Agreement or as required by applicable law or regulation.

(2) Implement administrative, physical, and technical safeguards, including but not limited to written policies and procedures, that reasonably and appropriately protect the confidentiality, integrity, and availability of the electronic PHI that it creates, receives, maintains, or transmits on behalf of the covered entity as required by law, other than as permitted under this Agreement.

(3) Maintain a written information security program consistent with HIPAA standards that includes administrative, technical, and physical safeguards to maintain the security of and prevent unauthorized access to Covered Entity’s PHI.

(4) Require any of its agents or subcontractors, or other third parties with which BA does business that create, receive, maintain or transmit PHI on behalf of Covered Entity, to agree, in writing, to adhere to the same restrictions and conditions on the use and disclosure of PHI that apply to BA under this Agreement. Such written agreement shall identify Covered Entity as a third party beneficiary with rights of enforcement and indemnification from such subcontractors or agents in the event of any violation of the written agreement.

(5) Report to Covered Entity any security incident of which BA becomes aware, including breaches of Unsecured PHI as required by 45 C.F.R. § 164.410.

(6) Make available to Covered Entity, or to an individual patient, within ten (10) days of receiving an oral or written request, such information as is necessary to fulfill Covered Entity’s or BA’s obligations to provide PHI: (a) pursuant to an individual’s right to obtain a copy of his or her PHI under 45 C.F.R. § 164.524(a); (b) that may be related to an individual’s right to amend his or her PHI under 45 C.F.R. § 164.526; and (c) that may be required to provide an accounting of disclosures pursuant to 45 C.F.R. § 164.528. BA shall also, as directed by Covered Entity, incorporate any amendments to PHI into copies of such PHI maintained by BA.

(7) To the extent BA carries out an obligation of Covered Entity under HIPAA, BA shall comply with the requirements of HIPAA that apply to Covered Entity in the performance of such obligation.

(8) Make available to the Secretary of the U.S. Department of Health and Human Services all internal practices, books and records relating to the use and disclosure of PHI received from, or created by, BA on behalf of Covered Entity, for purposes of determining Covered Entity’s and BA’s compliance with federal privacy laws and regulations.

(9) During the term of the Agreement, notify Covered Entity as soon as possible of any suspected or actual breach of security, intrusion, or unauthorized use or disclosure of Unsecured PHI and/or any actual or suspected use or disclosure of data in violation of any applicable federal or state laws or regulations. Such notice may be supplemented as facts become available and shall include the identification of each individual whose Unsecured PHI has been, or is reasonably believed by BA to have been, accessed, acquired, or disclosed during such breach, and any other information that Covered Entity deems necessary to meet its breach notification obligations under HIPAA.

Notifications under this section C.(9) will be provided to:

<CLIENT NAME>

5955 Carnegie Blvd., Suite 300

Charlotte, NC 28209

 

ATTN:___________________________

 

(10) Use and disclose to its subcontractors, agents or other third parties, and request from Covered Entity, only the minimum Protected Health Information necessary to perform or fulfill a specific function required or permitted by this Agreement.

  1. Permitted Uses and Disclosures. BA agrees that it shall not use or disclose PHI in any manner, form, or in any means that is contrary to its obligations under the Underlying Agreement or this Agreement. Notwithstanding the foregoing, the Parties agree that, pursuant to federal law, BA may:
  • (1) Use PHI in its possession for its proper management and administration and to fulfill any of its present or future legal responsibilities provided that such uses are permitted under state and federal confidentiality laws.
  • (2) Use PHI in its possession to provide data aggregation services relating to the health care operations of the Covered Entity, as provided for in 45 C.F.R. §164.501.
  • (3) Disclose PHI in its possession to third parties for the purpose of its proper management and administration or to fulfill any of its present or future legal responsibilities provided that (i) the disclosures are required by law, as provided for in 45 C.F.R. § 164.501, or (ii) BA has received from the third party written assurances that the PHI will be held confidentially, that the PHI will only be used or further disclosed as required by law or for the purpose for which it was disclosed to the third party, and that the third party will notify BA of any instances of which it is aware in which the confidentiality of the information has been breached, as required under 45 C.F.R. § 164.504(e)(4) and consistent with Section 8., above.

 

E. Unilateral Termination. Notwithstanding any other provision under the Agreement and pursuant to federal law, the Parties agree that this Agreement and the Underlying Agreement may be terminated by either Party without penalty should a Party determine, in its sole discretion, that the other Party has violated a material obligation under this Agreement.

 

F. Return or Destruction of PHI. Upon termination, cancellation, or expiration of the Underlying Agreement, BA shall return to Covered Entity any and all PHI received from, or created by, BA on behalf of Covered Entity that is maintained by BA in any form whatsoever, including any copies or replicas. If returning the PHI to Covered Entity is not feasible, BA shall destroy any and all PHI maintained by BA including any copies or replicas. Should the return or destruction of the PHI be determined by BA to be not feasible, the Parties agree that the terms of this Agreement shall extend to the PHI for as long as BA maintains the PHI, and any further use or disclosure of the PHI by BA shall be limited to that purpose which renders the return or destruction of the PHI infeasible. Destruction of PHI must be in accordance with HHS standards and processes for rendering PHI unusable, unreadable, or indecipherable to unauthorized individuals so that it is no longer Unsecured PHI.

 

G. Amendment to Comply with Law. The Parties acknowledge that state and federal laws relating to electronic data security and privacy are rapidly evolving and that amendment of this Agreement may be required to ensure compliance with such developments. Specifically, HITECH, as implemented by the HIPAA Omnibus Rule (78 Fed. Reg. 5566 (January 25, 2013)), imposes new requirements on business associates and covered entities with respect to privacy, security, and breach notification. Applicable HIPAA and HITECH provisions, together with any guidance issued by the Secretary, and any applicable amendments to federal and state privacy law, are hereby incorporated by reference and will become part of this Agreement as if set forth in their entirety, effective as of the applicable effective date/s.

 

H. No Third Party Beneficiaries. Nothing express or implied in the Agreement is intended to confer, nor shall anything herein confer, upon any person other than Covered Entity, BA, and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.

 

I. Term. This Agreement shall become effective on the Agreement Effective Date and shall expire when all of the PHI provided by Covered Entity to BA is destroyed or returned to Covered Entity pursuant to Section F. The Parties agree that Sections B, C, and D of the Agreement shall survive the termination or expiration of the Agreement.

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed and delivered by their duly authorized representatives, as of the Agreement Effective Date. Each person signing this Agreement represents and warrants that he or she is duly authorized and has the legal capacity to execute and deliver this Agreement.

 

<CLIENT NAME>                                                                     CHIRPY BIRD, LLC

 

By:                                                                                               By:

 

Print Name: _________________                                Print Name: _________________

 

Print Title: _________________                                   Print Title: _________________

 

 

 

 

 

 

 

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