1. ACCEPTANCE OF TERMS BirdingBirds, LLC ("BirdingBirds") welcomes you. BirdingBirds provides the BirdingBirds Services (defined below) to you subject to the following Terms of Service ("TOS"), which may be updated by us from time to time on the www.birdingbirds.com site without notice to you. By accessing and using the BirdingBirds Services, you accept and agree to be bound by the terms and provision of the TOS. In addition, when using particular BirdingBirds owned or operated services, you and BirdingBirds shall be subject to any posted guidelines or rules applicable to such services, which may be posted and modified from time to time. All such guidelines or rules (including but not limited to our Spam Policy) are hereby incorporated by reference into the TOS. BirdingBirds may also offer other services that are governed by different Terms of Service. For instance, different terms apply to purchases on Birdbarns.com.
2. DESCRIPTION OF BIRDINGBIRDS SERVICES BirdingBirds provides users with access to birding resources and applications, including without limitation "Bird-opedia" and "Journal" (the "BirdingBirds Services"). You also understand and agree that the BirdingBirds Services may include certain communications from BirdingBirds, such as service announcements, administrative messages and the BirdingBirds Newsletter, and that these communications are considered part of BirdingBirds membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current BirdingBirds Services, including the release of new BirdingBirds applications or content, shall be subject to the TOS. You also understand and agree that the BirdingBirds Services may include advertisements. You understand and agree that the BirdingBirds Services is provided "AS-IS" and that BirdingBirds assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user files or data. You are responsible for obtaining access to the BirdingBirds Services, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the BirdingBirds Services.
You understand that the technical processing and transmission of the BirdingBirds Services, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
3. YOUR REGISTRATION OBLIGATIONS In consideration of your use of the BirdingBirds Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the BirdingBirds Services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true and accurate information about yourself as prompted by the BirdingBirds Service's registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or BirdingBirds has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, BirdingBirds has the right to suspend or terminate your account and refuse any and all current or future use of the BirdingBirds Services (or any portion thereof).
5. MEMBER ACCOUNT, PASSWORD AND SECURITY You will receive a password and account designation upon completing the BirdingBirds Service's registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify BirdingBirds of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. BirdingBirds cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 5.
6. MEMBER CONDUCT You understand that all information, data, text, photographs, graphics, video, messages, sounds, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not BirdingBirds, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the BirdingBirds Services. BirdingBirds does not control all the Content posted via the BirdingBirds Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the BirdingBirds Services, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will BirdingBirds be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the BirdingBirds Services.
You agree to not use the BirdingBirds Services to:
You acknowledge that BirdingBirds may or may not pre-screen Content, but that BirdingBirds and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that is available via the BirdingBirds Services. Without limiting the foregoing, BirdingBirds and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by BirdingBirds or submitted to BirdingBirds and available in the BirdingBirds Services.
You acknowledge, consent and agree that BirdingBirds may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of BirdingBirds, its users and the public.
You understand that the BirdingBirds Services and software embodied within the BirdingBirds Services may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by BirdingBirds and/or content providers who provide content to the BirdingBirds Services. You may not attempt to override or circumvent any of the usage rules embedded into the BirdingBirds Services. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the BirdingBirds Services, in whole or in part, is strictly prohibited.
7. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE BIRDINGBIRDS SERVICES BirdingBirds does not claim ownership of Content you submit or make available for inclusion on the BirdingBirds Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the BirdingBirds Services, you grant BirdingBirds the following worldwide, royalty-free and non-exclusive license(s), as applicable:
With respect to Content, including but not limited to photos, graphics, audio or video, you submit or make available for inclusion on publicly accessible areas of BirdingBirds site, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.
"Publicly accessible" areas of the BirdingBirds Services are those areas of the BirdingBirds properties that are intended by BirdingBirds to be available to the general public. By way of example, publicly accessible areas of the BirdingBirds Services would include BirdingBirds Bird-opedia, Bird Journals, and forums that are open to both members and visitors.
8. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT BirdingBirds respects the intellectual property of others, and we ask our users to do the same. BirdingBirds may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please use the Report Problem links and forms available within the Services, or provide BirdingBirds the following information:
Notice of claims of copyright or other intellectual property infringement can also be sent by fax to (678) 248-9067.
9. CONTRIBUTIONS TO BIRDINGBIRDS By submitting ideas, suggestions, documents, and/or proposals ("Contributions") to BirdingBirds through its suggestion or feedback webpages, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) BirdingBirds is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) BirdingBirds shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) BirdingBirds may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of BirdingBirds without any obligation of BirdingBirds to you; and (f) you are not entitled to any compensation or reimbursement of any kind from BirdingBirds under any circumstances.
10. INDEMNITY You agree to indemnify and hold BirdingBirds and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit, modify or otherwise make available through the BirdingBirds Services, your use of the BirdingBirds Services, your connection to the BirdingBirds Services, your violation of the TOS, or your violation of any rights of another.
11. NO COMMERCIAL REUSE OF BIRDINGBIRDS SERVICES You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the BirdingBirds Services (including Content, advertisements, Software and your BirdingBirds ID).
12. GENERAL PRACTICES REGARDING USE AND STORAGE You acknowledge that BirdingBirds may establish general practices and limits concerning use of the BirdingBirds Services, including without limitation the maximum number of days that photos, forum postings or other uploaded Content will be retained by the BirdingBirds Services, the maximum size of any phot uploaded into an account on the BirdingBirds Services, the maximum disk space that will be allotted on BirdingBirds's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the BirdingBirds Services in a given period of time. You agree that BirdingBirds has no responsibility or liability for the deletion or failure to store any Content you upload or transmit by the BirdingBirds Services. You acknowledge that BirdingBirds reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that BirdingBirds reserves the right to modify these general practices and limits from time to time.
13. MODIFICATIONS TO BIRDINGBIRDS SERVICES BirdingBirds reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the BirdingBirds Services (or any part thereof) with or without notice. You agree that BirdingBirds shall not be liable to you or to any third party for any modification, suspension or discontinuance of the BirdingBirds Services (or any part thereof).
14. TERMINATION You may terminate your BirdingBirds account, any associated email address and access to the BirdingBirds Services by submitting such termination request to BirdingBirds.
You agree that BirdingBirds may, without prior notice, immediately terminate, limit your access to or suspend your BirdingBirds account and access to the BirdingBirds Services. Cause for such termination, limitation of access or suspension shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b)requests by law enforcement or other government agencies, (c) discontinuance or material modification to the BirdingBirds Services (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity, and/or (f) engagement by you in fraudulent or illegal activities. Further, you agree that all terminations, limitations of access and suspensions for cause shall be made in BirdingBirds's sole discretion and that BirdingBirds shall not be liable to you or any third party for any termination of your account or access to the BirdingBirds Services.
Termination of your BirdingBirds account may include any or all of the following: (a) removal of access to all or part of the offerings within the BirdingBirds Services, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring of further use of all or part of the BirdingBirds Services.
15. DEALINGS WITH ADVERTISERS Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the BirdingBirds Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that BirdingBirds shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the BirdingBirds Services.
16. LINKS The BirdingBirds Services may provide, or third parties may provide, links to other World Wide Web sites or resources. You acknowledge and agree that BirdingBirds is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that BirdingBirds shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
17. BIRDINGBIRDS'S PROPRIETARY RIGHTS You acknowledge and agree that the BirdingBirds Services and any necessary software used in connection with the BirdingBirds Services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in advertisements or information presented to you through the BirdingBirds Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly permitted by applicable law or as authorized by BirdingBirds or the applicable licensor (such as an advertiser), you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the BirdingBirds Services, such Content or the Software, in whole or in part. BirdingBirds grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the BirdingBirds Services. You agree not to access the BirdingBirds Services by any means other than through the interface that is provided by BirdingBirds for use in accessing the BirdingBirds Services.
18. DISCLAIMER OF WARRANTIES YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
19. LIMITATION OF LIABILITY YOU EXPRESSLY UNDERSTAND AND AGREE THAT BIRDINGBIRDS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, 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 BIRDINGBIRDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE BIRDINGBIRDS SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE BIRDINGBIRDS SERVICE; OR (e) ANY OTHER MATTER RELATING TO THE BIRDINGBIRDS SERVICE.
20. EXCLUSIONS AND LIMITATIONS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 19 AND 20 MAY NOT APPLY TO YOU.
21. NO THIRD-PARTY BENEFICIARIES You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.
22. NOTICE BirdingBirds may provide you with notices, including those regarding changes to the TOS, including by but not limited to email, regular mail, postings on the BirdingBirds Services, or other reasonable means now known or hereafter developed. Such notices may not be received if you violate this TOS by accessing the BirdingBirds Services in an unauthorized manner. Your agreement to this TOS constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed the BirdingBirds Services in an authorized manner.
23. TRADEMARK INFORMATION You agree that all of BirdingBirds’ trademarks, trade names, service marks and other BirdingBirds' logos and brand features, and product and service names are trademarks and the property of BirdingBirds Inc. (the "BirdingBirds' Marks"). Without BirdingBirds' prior permission, you agree not to display or use in any manner the BirdingBirds' Marks. BirdingBirds and BirdBarns are trademarks and Barnstorm is a registered trademark of BirdingBirds, LLC.
24. INTERSTATE NATURE OF COMMUNICATIONS ON BIRDINGBIRDS NETWORK By agreeing to this TOS, you acknowledge that use of the service results in interstate data transmissions.
25. SPECIAL ADMONITIONS FOR INTERNATIONAL USE AND EXPORT AND IMPORT COMPLIANCE Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Use of the BirdingBirds Services and transfer, posting and uploading of files and data via the BirdingBirds Services may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations.
26. GENERAL INFORMATION Entire Agreement. The TOS constitutes the entire agreement between you and BirdingBirds and governs your use of the BirdingBirds Services, superseding any prior version of this TOS between you and BirdingBirds with respect to the BirdingBirds Services. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other BirdingBirds services, affiliate services, third-party content or third-party software.
Choice of Law and Forum. You and BirdingBirds each agree that the TOS and the relationship between the parties shall be governed by the laws of the State of Georgia without regard to its conflict of law provisions and that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the TOS, or the relationship between you and BirdingBirds, shall be brought exclusively in the courts located in the county of Fulton, Georgia. You and BirdingBirds agree to submit to the personal jurisdiction of the courts located within the county of Fulton, Georgia, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
Waiver and Severability of Terms. The failure of BirdingBirds to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
No Right of Survivorship and Non-Transferability. You agree that your BirdingBirds account is non-transferable and any rights to your BirdingBirds ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the BirdingBirds Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in the TOS are for convenience only and have no legal or contractual effect.
Last updated April 29, 2010