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CHIRP™ TERMS AND CONDITIONS

Welcome to www.hellochirp.com (the “Site”)! chirp is an online e-commerce platform that helps build desktop web browser extensions for online stores (“Extension(s)”) and provide related online services (collectively, with the Site and Extensions, the “Services”). These Terms are an agreement between you and chirp, its affiliates, and subsidiaries (“chirp”, “we”, “us” or “our”).

1. General Information

THESE TERMS CONTAIN A MANDATORY ARBITRATION AGREEMENT AND A CLASS ACTION WAIVER. PLEASE REVIEW SECTION 9 TO LEARN MORE ABOUT THESE PROVISIONS, INCLUDING HOW TO OPT OUT.By using our Services, which include any Account (as defined below) you sign up for, you confirm you areat least 16 years old and agree to be bound by these Terms, as well as our Privacy Policy. If you do not agree to these Terms or our Privacy Policy, please do not use our Services. If you have registered for an Account and/or installed our Extensions, please deactivate your Account and uninstall our Extension in accordance with Section 8.We reserve the right to make changes to these Terms and our Privacy Policy from time to time. Any changes will be posted on this page, the Privacy Policy, and any other places we deem appropriate. If you continue to use our Services after a change has been posted, you are agreeing to be bound by the changes. Therefore, we recommend you review these Terms and our Privacy Policy each time you use our Services.

2. Our Services

Our Services allow registered persons or entities (“Members”) to, among other things, design and operateExtensions and send and manage communications, including the delivery of coupons, through Extensionsat relevant moments (“Content”). Our Services also include aggregated data analytics and insights to help Members personalize their Content. By integrating their Shopify website or third-party e-commerce platform account with our Services, Members are able to drive more sales and gain a competitive edge with direct insights on their consumers (“Users”).

Note: These Terms govern only your interactions with chirp. Any interactions you have with our Members,including purchases you make on their websites, are subject to these Members’ separate terms and conditions and privacy policies.

Updates to our Services. We may change our Services at any time, including adding, deleting or modifying any feature or function, or releasing new versions of the Extension (collectively, “Updates”). These Updates help us better administer the Services and improve your experience. We may automatically make such Updates without notice to you. You agree that chirp and its Related Companies (as defined below) have no obligation to make any Updates and shall have no liability to you or anyone claiming through you as a result of implementing any Updates.

Account Registration. To become a Member and access certain features of our Services, you are required to have a valid Shopify or other third-party e-commerce platform account and create a chirp account (“Account”). Your Account and access to certain Services may be subject to additional terms (“Additional Terms”). These Additional Terms will be made available to you for your acceptance when you sign up for your Account. In the event of any conflict between these Terms and the Additional Terms,the Additional Terms shall control.

Feedback. You agree that any communication you send to us, including any data, questions, comments,or suggestions (collectively, “Feedback”), will be treated as non-confidential and non-proprietary. We mayuse your Feedback in any way, such as by updating our Services or developing and marketing other products or services, without any compensation to you.

Beta Services. chirp may invite you to use, on a trial basis, beta features that are in development and not yet available publicly (“Beta Services”). Beta Services may be subject to Additional Terms, which will be made available to you for your acceptance when you sign up to use such Beta Services.

3. Our Proprietary Rights

All information, content, and materials contained in our Services (collectively, “Materials”) may be protected by one or more copyrights, patents, trademarks, trade secrets, or other proprietary rights ownedby us, Members, our content suppliers or licensors. Unless such Materials are in the public domain, you may not modify, publish, create derivative works from, or in any way exploit the Materials.

Materials may also include trademarks, logos, and service marks (whether or not registered, collectively, the “Trademarks”) belonging to us, Members and/or third parties. You may not use the Trademarks in any way and nothing contained in our Services should be construed as granting to you, by implication, estoppel or otherwise, any license or right to use the Trademarks without written authorization by the owner(s) of the Trademarks. We are prepared to enforce our intellectual property rights to the fullest extent of the law, including seeking criminal prosecution where appropriate.

Digital Millennium Copyright Act (“DMCA”). chirp will reasonably cooperate with any party alleging thatany Material is infringing his or her intellectual property rights and shall take any steps required by law or otherwise reasonable and necessary to resolve such complaint. If you are aware of or believe there is any infringing Material within our Services, please notify us at legal@hellochirp.com. We respond to notices of alleged infringement that comply with the DMCA and other applicable intellectual property laws,which may include removing or disabling access to Material claimed to be infringing.

4. Unauthorized Access or Use of our Services

You agreed that you shall not and shall not attempt to:

  • gain unauthorized access to the Services’ systems,
  • interfere with the procedures or performance of the Services,
  • deliberately damage or undermine the Services,
  • use the Services by means of automatic, macro, programmed, or similar methods, or
  • commit fraud with regard to the Services.
If you violate any of the terms above, we may immediately terminate your right to use or access the Services.

In addition, you agree that chirp and its Related Companies (as defined below) are not responsible for, and expressly disclaim any liability for, any damage, loss, or injury you may incur as a result of actions taken by other users of our Services, including without limitation, damages resulting from hacking, tampering, cheating, or disseminating malware from the Services.

5. General Disclaimer; Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL CHIRP, ITS PRINCIPALS, EMPLOYEES, CONSULTANTS, OFFICERS, DIRECTORS, MEMBERS, AGENTS, SUBSIDIARIES, OR AFFILIATES, OR ITS PARENT COMPANY AND ITS PRINCIPALS, PARENT COMPANY, EMPLOYEES, OFFICERS, CONSULTANTS, DIRECTORS, MEMBERS, AGENTS, SUBSIDIARIES, OR AFFILIATES (COLLECTIVELY “RELATED COMPANIES”) BE LIABLE FOR ANY DAMAGES OR LOSSES OF ANY KIND AND BASED ON ANY THEORY OF LAW, EQUITY, CONTRACT, TORT OR OTHERWISE ARISING FROM YOUR USE OR INABILITY TO USE THE SERVICES INCLUDING, WITHOUT LIMITATION, DAMAGES TO YOUR SYSTEMS AND/OR DATA, COMPUTER FAILURE OR MALFUNCTION, COMPUTER VIRUS TRANSMISSION, PERFORMANCE DELAYS OR COMMUNICATION FAILURES OR SECURITY BREACHES.IN NO EVENT SHALL CHIRP OR ITS RELATED COMPANIES BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO OR USE OF THE SERVICES, OR FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED ON OR THRUGH THE SERVICES, EVEN IF CHIRP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CHIRP’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO $500.00 (FIVE HUNDRED UNITED STATES DOLLARS).

6. Warranties

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES ARE AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF NON-INFRINGEMENT AND FREEDOM FROM VIRUSES, AND ANY WARRANTY IMPLIED THROUGH COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, BUT TO BE CLEAR, CHIRP NEITHER WARRANTS NOR REPRESENTS THAT YOUR USE OF THE MATERIALS WILL NOT INFRINGE RIGHTS OF THIRD PARTIES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OR ALLOF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

7. Indemnification

By using the Services, you agree to indemnify, defend, and hold chirp and its Related Companies harmless from and against any and all losses, damages, liabilities and costs (including, without limitation, settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by all or any such parties in connection with any claim arising out of your useof the Services or any breach by you of these Terms.

8. Removal

If you do not agree to these Terms, our Privacy Policy, or any changes made herein, you must immediately stop using our Services. If you have registered for an Account, please deactivate your Account by sending an email to support@hellochirp.com. If you have installed any Extensions, please uninstall the Extension by following the instructions herefor Google Chrome and here for Mozilla Firefox.

9. Mandatory Arbitration Agreement and Class Action Waiver

Most user concerns can be resolved quickly and to the user’s satisfaction by contacting us at the email address below in Section 11. If, however, there is an issue that needs to be resolved, PLEASE READ THIS SECTION CAREFULLY TO LEARN HOW BOTH OF US WILL PROCEED. ANY CLAIM OR DISPUTE BETWEEN YOU AND CHIRP ARISING OUT OF OR RELATING TO OUR SERVICES AND/OR THESE TERMS SHALL BE RESOLVED BY FINAL BINDING ARBITRATION. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. This obligation applies regardless of whether the dispute arises after you stop using our Services, and regardless of whether the claim or dispute involves a tort, fraud, breach of contract, misrepresentation, product liability, negligence, violation of a statute, or any other legal or equitable theory. Any party who intends to proceed with a claim or dispute against the other must first send a written notice of dispute describing the nature and basis of the claim or dispute and setting forth the specific relief sought (“Notice”). All Notices to chirp shall be sent by email to legal@hellochirp.com. chirp will send a Notice to you at the email address we have on file for you, if any, or otherwise by a reasonable method. Upon receipt of such Notice, the parties will have thirty (30) days to resolve the claim, and, thereafter, may commence arbitration proceedings if the claim has not been fully satisfied. Arbitration will be conducted by one arbitrator in Travis County, Texas. The state or federal courts located in Travis County, Texas shall have exclusive jurisdiction and venue over any appeals of or motions regarding an arbitration award. You acknowledge and agree that each party will pay the fees and costs of its own counsel, experts, witnesses, and filing fees. The cost of the arbitrator will be split evenly between the parties. WE EACH AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER IN AN INDIVIDUAL CAPACITY ONLY AND NOT IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING, REGARDLESS OF WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT. All arbitrations shall be conducted on an individual basis and an arbitrator shall have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibit you from commencing arbitration proceedings as a representative of others or joining in any arbitration proceedings brought by any other person. YOU HAVE THE RIGHT TO OPT OUT OF THIS ARBITRATION AGREEMENT AND CLASS ACTION WAIVER WITHIN THIRTY (30) DAYS FROM THE DATE YOU FIRST USED OUR SERVICES BY SENDING AN EMAIL TO LEGAL@HELLOCHIRP.COM. Untimely opt-outs will not be valid and you must then pursue your claim through arbitration under these Terms. Nevertheless, should you send a timely opt-out, the sole and exclusive forum, jurisdiction, and venue for any such disputes shall be in courts of competent jurisdiction located in Travis County, Texas, and you hereby submit to and irrevocably waive all objections to such jurisdiction, forum, and venue.

10. Miscellaneous

These Terms will be governed and construed in accordance with the laws of the State of Delaware, irrespective of any principles of conflicts of law, and the Federal Arbitration Act, 9 U.S.C. § 1 et seq. These Terms, our Privacy Policy, and any applicable Additional Terms constitute the entire agreement between you and chirp with respect to your use and access to our Services and can only be modified by chirp in accordance with Section 1. If any portion of these Terms is deemed void or unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of the remaining provisions.

11. Contact Information

If you have any questions, concerns, or comments, you may contact us at support@hellochirp.com,

Last Updated: May 26, 2021