Terms of Service
Last Updated: August 1, 2020
The following terms and conditions govern all use of all Switchbird websites, including but not limited to switchbird.com (collectively, the “Website”) and all content, services, dashboards and products contained or made available by Switchbird or at or through the Website (“Services”). The Website and Services are owned and operated by Junket Holdings, LLC and its affiliates (together, “Switchbird,” or “we,” “our,” or “us”).
By clicking “I Accept” or by accessing or using the Website or Services, you agree to all of the terms and conditions contained herein including the mandatory arbitration provision and class action waiver in the section below titled “Arbitration; Class Action Waiver.”
We may supply different or additional terms in relation to some of our Services, and those different or additional terms become part of your Agreement with us if you use those Services. If there is conflict between this Agreement and the additional terms, the additional terms will control for that conflict.
Lawful Use; Third-party Terms.
Switchbird provides marketing automation services, as well as integrations with related third-party services. By using these Services, you acknowledge that your use is subject to government law and may be subject to additional third-party terms and conditions. You further agree that it is your sole responsibility to know and comply with all applicable government laws and third-party terms and conditions. Switchbird does not control or endorse, and makes no representations or warranties regarding, your access to and use of our Services. Your use of Switchbird's Services is at your own risk.
Additionally, Switchbird is not affiliated with or endorsed by any of the third parties for which it may offer technical integrations, nor is it in a joint venture relationship or partnership with any of these third parties. Such third parties are not associated in any way with the Switchbird, the Website or Services. To the extent Switchbird uses any tradenames or trademarks associated with such third-parties, it does so solely to identify those companies and their services. Switchbird makes no claim as to ownership of such third-party trademarks.
Your Switchbird Account.
You may need to register for an account to access some or all of our Services or the Website. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You are solely responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the account. You agree to immediately notify us if you discover or suspect that someone has accessed your account or other Services without your permission including without limitation breaches of security. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. Switchbird may modify or revoke account privileges in its sole discretion.
Responsibility of Users; Representations and Warranties.
The Website and Services may allow you and other users to create resources including without limitation usernames, user accounts, phone numbers, email addresses, messaging channels, directories, seats and other material (collectively, “Account Resources”). You are solely responsible for the creation and use of your Account Resources, and Switchbird reserves the right to revoke or reclaim Account Resources, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those Account Resources.
Furthermore, the Website and Services may allow you and other users to create, post, store, comment, and share content, including without limitation messages, text, photos, videos, software, links and other material (collectively, “Content”). Except for the license you grant below, you retain all rights in and to your Content, as between you and Switchbird. You are entirely responsible in all respects for the Content of, and any harm resulting from, that Content. You may not create, post, store or share any Content that violates this Agreement or for which you do not have all rights necessary to grant us the license described below. Additionally, you represent and warrant that your Content, and our use of such Content as permitted by this Agreement, will not violate any rights of or cause injury to any person or entity.
You also represent and warrant that:
- you will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using the Website or Services;
- you will not use the Website or Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement;
- your actions, Account Resources and Content comply with the terms of service of any third-party websites or services with which you interact;
- you will not advertise or promote Account Resources via unwanted electronic messages such as spam links on newsgroups, email lists, other pages and web sites, and similar unsolicited promotional methods;
- you will not present Account Resources in a manner that misleads others into thinking that you are another person or company;
- the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
- the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
- the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
- the Content is not pornographic, does not contain threats or incite violence, and does not violate the privacy or publicity rights of any third party;
- you will not sell, resell or commercially use the Website or Services, except as contemplated in this Agreement;
- you will not copy reproduce, distribute, publicly perform or publicly display all or portions of the Website or Services, except as expressly permitted by us or our licensors;
- you will not modify the Website or Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Website or Services or that could damage, disable, overburden or impair the functioning of the Website or Services in any manner;
- you will not reverse engineer any aspect of the Website or Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the Website or Services;
- you will not use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from the Website or Services; and
- you will not develop or use any applications that interact with the Website without our prior written consent.
Control of Content.
By submitting Content to Switchbird, you grant Switchbird a perpetual, irrevocable, world-wide, royalty-free, non-exclusive, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your Content and any name, username or likeness provided in connection with your Content in all media formats and channels now known or later developed without compensation to you. You also hereby expressly grant Switchbird a perpetual, irrevocable, world-wide, royalty-free, non-exclusive, fully paid, and sublicensable license to reproduce, modify, adapt and publish your business name and related trademarks in connection with the operation and promotion of the Website or Services.
Although Switchbird has no obligation to screen, edit or monitor Content, we may at any time and for any reason with or without notice in our sole discretion (i) refuse or remove any Content that, in Switchbird’s sole discretion, violates any Switchbird policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website and Services to any individual or entity for any reason or no reason. Switchbird has no obligation to provide a refund of any amounts owed or previously paid.
As part of the Website or Services, we may offer a bundled offering that incorporates certain third-party products and services (“Bundled Offering”). As a condition to purchasing and using a Bundled Offering, we may require you to agree to additional terms and conditions (“Bundled Offering Terms”). The Bundled Offering Terms will become part of this Agreement upon the purchase or use of the Bundled Offering and all references to Services and the Agreement herein will henceforth include Bundled Offering and the Bundled Offering Terms respectively. Moreover, you agree to immediately report any failures or breaches of such Bundled Offering Terms to us. Certain additional restrictions and limitations may apply to each Bundled Offering. Additionally, Switchbird reserves the right to terminate access to or the provision of any Bundled Offering at any time without notice in its sole discretion.
Payment; Billing and Renewal; Non-payment and Suspension.
Charges and Payment of Fees.
You must pay all fees and charges to your account in accordance with the fees, charges, and billing terms in effect at the time such fee or charge is due and payable. The initial charges will be equal to the current subscription and any additional resources added, except as otherwise agreed to in writing. All payment obligations are noncancelable and all amounts owed or paid are nonrefundable. You acknowledge and agree that we will not refund any amount due to lack of usage of the platform or Services. Switchbird may require that you provide us with valid credit card as a condition to signing up for the Website or Services. An authorized administrator may add additional seats via the My Account tab in your account. Added seats will be subject to the following: (i) added seats will be coterminous with the preexisting subscription term (the initial term or renewal term, as applicable); (ii) the seat fee for the added seats will be the then current, generally applicable seat fee. Switchbird reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 14 days prior notice to you, which notice may be provided by e-mail or via the Website or Services. All pricing terms are confidential, and you agree not to disclose them to any third party.
All private-label setup fees are charged at time of setup and are non-refundable.
Billing and Renewal.
Switchbird charges and collects in advance for use of the Website and Services, as applicable. Switchbird will automatically renew and bill your credit card or issue an invoice to you.
Monthly subscriptions are due on the first calendar day of every month. Any resources added to the account during the month will be charged to the payment method on file immediately in accordance with this Agreement or as otherwise agreed to in writing.
Yearly subscriptions will be billed on each anniversary or as otherwise agreed to in writing. Any resources added to the account during the year will be charged to the payment method on file immediately in accordance with this Agreement or as otherwise agreed to in writing.
All private-label setup fees are charged at time of setup. Maintenance fees will be billed on each subsequent anniversary or as otherwise agreed to in writing. Any changes made to the branding or domain/subdomain of a private-labeled account will require additional or new setup and must be charged accordingly.
The renewal charge will be equal to the then-current subscription and number of total resources in effect during the prior term, unless Switchbird has given you at least 14 days prior written notice of a fee increase, which will be effective upon renewal and thereafter. Additional fees for Services will be charged as agreed to on a case-by-case basis.
You agree to provide Switchbird with complete and accurate billing and contact information. This information may include without limitation your legal name, company name (if applicable), street address, e-mail address, and name and telephone number of an authorized billing contact and authorized administrator. You agree to update this information promptly but in no event later than 30 days of any change to it. If the contact information you have provided is false or fraudulent, Switchbird reserves the right to terminate your access to the Website and Services in addition to any other legal remedies.
If you believe your bill is incorrect, you must contact us in writing within 10 days of the invoice date containing the invoice and amount in question to be eligible to receive an adjustment or credit. All adjustments and credits are determined by Switchbird in its sole discretion.
Non-payment and Suspension.
All Switchbird invoices are issued and are due on the first calendar day of every month. In addition to any other rights granted to Switchbird herein, Switchbird reserves the right to suspend or terminate this Agreement or your access to and use of the Website and Services if your account becomes delinquent. You will continue to be charged for your subscriptions and any add-ons during any period of suspension. When your account is brought to current status during your period of suspension, you must contact the Switchbird Customer Success Team either by phone (854-444-8398) or email (firstname.lastname@example.org) in order to remove the suspension on your account. Accounts that continue to be delinquent for 30 consecutive days may be cancelled in our sole discretion. Upon such cancellation, you agree that all amounts owed, accrued and contracted for will become immediately due and that Switchbird will not be responsible for any data lost as a result of such cancellation.
In the case of a delinquent invoice on a white-label dashboard, we will contact you via email informing you of such a delinquency. If no response is received or the white-label dashboard continues to be delinquent past the next billing cycle, it will be cancelled accordingly. In the event of a cancelled white-label dashboard due to non-payment, Switchbird is not responsible for any data lost in this process. A new dashboard setup will be billed at the full amount at that time.
You agree and acknowledge that Switchbird has no obligation to retain your data, information or Content (collectively, “Customer Data”) and that such Customer Data may be irretrievably deleted if your account is cancelled for any reason.
If termination of this Agreement or your access to and use of the Website or Services occurs, all balances owed or due on your account will become immediately due and must be paid in accordance with this Agreement. You agree that Switchbird may charge any such amount to your credit card or otherwise bill you for such unpaid amounts.
Third Party Materials.
The Website and Services may display, include, or make available third-party content, including without limitation data, information, applications, third-party links, websites and webpages, and other products, services, activities, events, and materials (collectively, “Third Party Materials”) that is owned and controlled by third parties. Switchbird has not reviewed, and has no obligation to review, any Third Party Materials. You agree that Switchbird is not responsible for Third Party Materials, including without limitation their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Switchbird does not control or endorse, and makes no representations or warranties regarding any Third Party Materials. Moreover, Switchbird does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials thereto are provided solely as a convenience to you and your access and use them is entirely at your own risk. You acknowledge that Third Party Materials may be subject to a third parties' terms and conditions. Your dealings or correspondence with third parties and your use or interaction with any Third Party Materials are solely between you and the third party. You are solely responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content.
Copyright Infringement and DMCA Policy.
If you believe that material located on or linked to by Switchbird violates your intellectual property or the intellectual property of others, you are encouraged to notify Switchbird in accordance with Switchbird’s Digital Millennium Copyright Act (“DMCA”) Notice. Switchbird will respond to such notices and will remove the such infringing material and will disable links to any infringing material identified as required or as Switchbird finds appropriate. Switchbird may terminate access to and use of the Website and Services for any reason or no reason in their sole discretion. In the case of such termination, Switchbird will have no obligation to provide a refund of any amounts paid or owed to Switchbird.
This Agreement does not transfer from Switchbird to you any Switchbird intellectual property, and all right, title and interest in and to such property will remain (as between you and Switchbird) solely with Switchbird. Switchbird, the Switchbird logo, and all other trademarks, service marks, graphics, slogans and logos used to identify Switchbird, the Website or Services are trademarks or registered trademarks of Switchbird or Switchbird’s licensors. Other trademarks, service marks, graphics, slogans and logos used on the Website or in Services may be the trademarks of other third parties. Your use of the Website and Services grants you no right or license to reproduce or otherwise use any Switchbird or third-party trademarks. All trademarks and trade names are the property of their respective owners. Switchbird reserves the right to remove any Content or Third Party Materials that breach this Agreement.
Switchbird reserves the right to display advertisements and other Content on your page without any payment or any other consideration to you.
Switchbird reserves the right to display attribution links such as ‘Powered by Switchbird,’ theme author, font and image attribution, credits, and other similar statements and disclosures (“Credits”) in and on your page. Certain Credits, as determined by Switchbird at its sole discretion, may not be removed regardless of upgrades purchased.
If you are registering a domain name, using or transferring a previously registered domain name, you acknowledge and agree that use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers (“ICANN”), including their Registration Rights and Responsibilities. Switchbird reserves the right to remove any domain or subdomain integration that breaches this Agreement.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Switchbird or the Website or Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Switchbird’s sole discretion. You understand that Switchbird may treat Feedback as nonconfidential
Switchbird may terminate your access to all or any part of the Website or Services at any time, with or without cause, with or without notice, in its sole discretion. Upon such termination, all amounts owed, accrued and payable will become immediately due. You have the right to stop using the Website or Services at any time; however, you will be obligated to pay any amounts contracted for or otherwise owed, accrued or payable to Switchbird. If you wish to terminate this Agreement or your Switchbird account (if you have one)or have questions or would like to pay your account in full, please contact Switchbird customer service. Upon termination of access: (i) all rights granted to you under this Agreement will terminate immediately; and (ii) you must cease all use of the Website and Services. Termination will not limit any of Switchbird’s rights or remedies under this Agreement or at law or in equity. We are not responsible for any loss harm or other liability related to your inability to access or use the Website or Services.
Disclaimer of Warranties.
The use of the Website and Services including any third-party products and services is at your sole risk. Except as otherwise provided in writing by us, the Website and Services and any third-party products and services are provided “as is” and “as available” without warranties of any kind, express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Additionally, Switchbird does not represent or warrant that the Website or Services and any third-party products or services are accurate, complete, reliable, current or error-free. While Switchbird attempts to make your use of the Website and Services safe, we cannot and do not represent or warrant that the Website or Services or any third-party products or services are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Website and Services and any third-party products or services. Switchbird further makes no guarantee that access to the Website or Services or any third-party products or services will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content, Third Party Materials or services through, the Website or Services at your own discretion and risk.
Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Switchbird OR ITS OFFICERS, DIRECTORS, EMPLOYEES, PERSONNEL, AGENTS, REPRESENTATIVES, OR ANY OF ITS RESPECTIVE LICENSORS OR SERVICE PROVIDERS (COLLECTIVELY, “Switchbird PARTIES”) BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE, FOR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES INCLUDING WITHOUT LIMITATION PERSONAL INJURY, PROPERTY DAMAGE, LOSS OF DATA, COST OF COVER OR LOST PROFITS, EVEN IF Switchbird OR THE Switchbird PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
THE TOTAL LIABILITY OF Switchbird AND Switchbird PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE WEBSITE OR SERVICES, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO $100.
THE LIMITATIONS SET FORTH HEREIN WILL NOT LIMIT OR EXCLUDE LIABILITY FOR GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Switchbird and Switchbird Parties from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Website or Services or any third-party products or services ; (b) your Content or Feedback or Customer Data distributed to Yext or Yext Publisher Sites (if applicable); (c) your violation of this Agreement; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Website or Services or any third-party products or services. You agree to promptly notify Switchbird or Switchbird Parties, as applicable, of any third-party Claims, cooperate with Switchbird and Switchbird Parties, as applicable, in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the Switchbird or Switchbird Parties, as applicable, will have control of the defense or settlement, at Switchbird' sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Switchbird or the other Switchbird Parties.
Transfer and Processing of Data.
In order for us to provide the Website and Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
Governing Law and Venue.
Any dispute arising from this Agreement and your use of the Website or Services will be governed by and construed and enforced in accordance with the laws of New Jersey, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of New Jersey or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of New Jersey and the United States, respectively, sitting in Morris County, New Jersey.
Arbitration; Class Action Waiver.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Switchbird and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
No Representative Actions. You and Switchbird agree that any dispute arising out of or related to this Agreement or the Services is personal to you and Switchbird and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes.
Except for small claims disputes in which you or Switchbird seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Switchbird seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Switchbird waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement or the Services resolved in court. nstead, for any dispute or claim that you have against Switchbird or relating in any way to the Services, you agree to first contact Switchbird and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Switchbird by email at email@example.com or by certified mail addressed to 37 Green Hill Road, Kinnelon, New Jersey 07405. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Switchbird cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Morris County, New Jersey or may be conducted telephonically or via video conference for disputes alleging damages less than $50,000, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and Switchbird agree that this Agreement affects interstate commerce and that the enforceability of this binding arbitration provision will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrator, Switchbird, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and Switchbird agree that for any arbitration you initiate, you will pay the filing fee and Switchbird will pay the remaining JAMS fees and costs. For any arbitration initiated by Switchbird, Switchbird will pay all JAMS fees and costs. You and Switchbird agree that the state or federal courts of the State of New Jersey and the United States sitting in Morris County, New Jersey have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to this Agreement or the Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Switchbird will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Agreement by contacting Switchbird via email at firstname.lastname@example.org or via certified mail addressed to 37 Green Hill Road, Kinnelon, New Jersey 07405. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with the reset of this agreement.
If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions, so long as you first obtain the prior written consent of Switchbird, which will not be unreasonably withheld. Switchbird may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
This Agreement constitutes the entire agreement between Switchbird and you concerning the subject matter hereof. This Agreement may only be modified as set forth herein or by a written amendment signed by an authorized executive of Switchbird.