1. Your use of the Wildlife Acoustics Web Site
- 1.1 Your use of the wildlifeacoustics.com web site (the "Web Site") is subject to the terms of a legal agreement between you and Wildlife Acoustics. "Wildlife Acoustics" means Wildlife Acoustics, Inc., a Massachusetts corporation whose principal place of business is at 3 Mill and Main Place, Suite 210, Maynard MA 01754-2657, United States.
- 1.2 These terms and conditions form a legally binding agreement between you and Wildlife Acoustics in relation to your use of the Web Site. It is important that you take the time to read them carefully. This legal agreement is referred to herein as the "Terms".
2. Accepting the Terms
- 2.1 PLEASE READ THESE TERMS BEFORE ACCESSING THE WEB SITE. BY ACCESSING OR USING ANY PART OF THE WEB SITE OR ANY CONTENT ON THE WEB SITE, YOU AGREE TO BECOME BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL THE TERMS, THEN YOU MAY NOT ACCESS THE WEB SITE OR USE THE CONTENT ON THE SITE. WILDLIFE ACOUSTICS' ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THESE TERMS AND CONDITIONS, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY WILDLIFE ACOUSTICS, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
- 2.2 You can accept the Terms by: (A) clicking to accept or agree to the Terms, where this option is made available to you by Wildlife Acoustics in the user interface on the Web Site; or (B) by actually using the Web Site. In this case, you understand and agree that Wildlife Acoustics will treat your use of the Web Site as acceptance of the Terms from that point onwards.
- 2.3 You may not use the Web Site and may not accept the Terms if (a) you are not of legal age to form a binding contract with Wildlife Acoustics, or (b) you are a person barred from receiving the Web Site under the laws of the United States or other countries including the country in which you are resident or from which you use the Web Site.
- 2.4 Before you continue, you should print or save a local copy of the Terms for your records.
3. Provision of the Web Site by Wildlife Acoustics
- 3.1 You acknowledge and agree that the form and nature of the Web Site may change from time to time without prior notice to you. You acknowledge and agree that Wildlife Acoustics may stop (permanently or temporarily) providing the Web Site (or any features within the Web Site) to you or to users generally at Wildlife Acoustics' sole discretion, without prior notice to you.
4. Use of the Web Site by you
- 4.1 In order to access the Web Site, you may be required to provide information about yourself (such as identification or contact details). You agree that any information you give to Wildlife Acoustics will always be accurate, correct and up to date.
- 4.2 You agree to use the Web Site only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
- 4.3 You agree that you will not engage in any activity that interferes with or disrupts the Web Site (or the servers and networks which are connected to the Web Site).
- 4.4 You agree that you are solely responsible for (and that Wildlife Acoustics has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Wildlife Acoustics may suffer) of any such breach.
5. Privacy and your personal information
6. Content license from you
- 6.1 You confirm and warrant to Wildlife Acoustics that you own or have all the rights, powers, licenses, consents, permissions and authority necessary to publish the Content you submit to the Web Site and to grant the licenses in this Section 6 with respect to that Content. You further agree that Content you submit to the Web Site will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Wildlife Acoustics all of the license rights granted herein.
- 6.2 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Web Site.
- 6.3 By submitting, posting or displaying the Content you give Wildlife Acoustics a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Web Site.
- 6.4 You also hereby grant each other user of the Web Site a non-exclusive license to access your Content through the Web Site, and to use, reproduce, distribute, display and perform the Content as permitted through the functionality of the Web Site and under these Terms.
- 6.5 You agree that this license includes a right for Wildlife Acoustics to make such Content available to other companies, organizations or individuals with whom Wildlife Acoustics has relationships, and to use such Content in any way Wildlife Acoustics desires.
- 6.6 You understand that Wildlife Acoustics, in performing the required technical steps to provide the Web Site to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Wildlife Acoustics to take these actions.
- 6.7 You further agree that you will not submit to the Web Site any Content or other material that is contrary to applicable local, national, and international laws and regulations or for any purpose not reasonably intended by Wildlife Acoustics. By way of example, and not as a limitation, you agree not to use the Web Site: (i) to post or transmit any Content that is unlawful, infringing, libelous, defamatory, obscene, pornographic, abusive, offensive, threatening, abusive, harassing, tortuous, or defamatory, or content that contains homophobia, any other sexual discrimination, ethnic slurs or religious intolerance; (ii) to attempt to use the identity of another user or person; or (iii) to upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any website or computer or computer software or hardware or telecommunications equipment;
7. Content in the Web Site
- 7.1 You agree that you are solely responsible for (and that Wildlife Acoustics has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Web Site and for the consequences of your actions (including any loss or damage which Wildlife Acoustics may suffer) by doing so.
- 7.2 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Web Site are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content".
- 7.3 You should be aware that Content presented to you as part of the Web Site may be protected by intellectual property rights which are owned by the persons who provide that Content to Wildlife Acoustics. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by Wildlife Acoustics or by the owners of that Content, in a separate agreement.
- 7.4 Wildlife Acoustics does not pre-screen the Content posted by users. Wildlife Acoustics reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content, without notice. However, Wildlife Acoustics is under no affirmative obligation to monitor, review or remove any Content, is under no affirmative obligation to take any action in response to any Content (except as set forth in Section 12), and assumes no responsibility or liability arising from the content of any such Content, nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, threat or inaccuracy contained in any Content that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. Wildlife Acoustics will fully cooperate with any law enforcement authorities or court order requesting or directing Wildlife Acoustics to disclose the identity of anyone posting any such information or materials. Wildlife Acoustics reserves the right to deny in its sole discretion any user access to the Web Site or any portion thereof without notice.
- 7.5 You understand that by using the Web Site you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Web Site at your own risk.
8. Proprietary rights
- 8.1 You acknowledge and agree that Wildlife Acoustics owns all legal right, title and interest in and to the Web Site, including any intellectual property rights which subsist in the Web Site (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
- 8.2 Nothing in the Terms gives you a right to use any of Wildlife Acoustics' trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
- 8.3 Other than the limited license set forth in Section 6, Wildlife Acoustics acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Web Site, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You agree that you are responsible for protecting and enforcing those rights and that Wildlife Acoustics has no obligation to do so on your behalf.
- 8.4 You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Web Site.
- 8.5 You agree that in using the Web Site, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
9. EXCLUSION OF WARRANTIES
- 9.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE WEB SITE IS AT YOUR SOLE RISK AND THAT THE WEB SITE IS PROVIDED "AS IS" AND "AS AVAILABLE."
- 9.2 IN PARTICULAR, WILDLIFE ACOUSTICS, ITS AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE WEB SITE WILL MEET YOUR REQUIREMENTS,
(B) YOUR USE OF THE WEB SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE WEB SITE WILL BE ACCURATE OR RELIABLE.
- 9.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEB SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- 9.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WILDLIFE ACOUSTICS OR THROUGH OR FROM THE WEB SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
- 9.5 WILDLIFE ACOUSTICS FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
- 10.1 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 10.3, YOU EXPRESSLY UNDERSTAND AND AGREE THAT WILDLIFE ACOUSTICS, ITS AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR WEB SITE, OR OTHER INTANGIBLE LOSS;
(B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(I) ANY CHANGES WHICH WILDLIFE ACOUSTICS MAY MAKE TO THE WEB SITE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE WEB SITE (OR ANY FEATURES WITHIN THE WEB SITE);
(II) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE WEB SITE;
(III) YOUR FAILURE TO PROVIDE WILDLIFE ACOUSTICS WITH ACCURATE INFORMATION;
- 10.2 THE LIMITATIONS ON WILDLIFE ACOUSTICS' LIABILITY TO YOU IN PARAGRAPH 10.1 ABOVE SHALL APPLY WHETHER OR NOT WILDLIFE ACOUSTICS HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
- 10.3 YOU AND WILDLIFE ACOUSTICS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEB SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR THE CAUSE OF ACTION IS PERMANENTLY BARRED.
- 10.4 NOTHING IN THESE TERMS, INCLUDING SECTIONS 9 AND 10, SHALL EXCLUDE OR LIMIT WILDLIFE ACOUSTICS' WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless Wildlife Acoustics, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Web Site; (ii) your violation of any term of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content or use of the Web Site caused damage to a third party. This defense and indemnification obligation will survive these Terms and your use of the Web Site.
12. Copyright policies
- 12.1 It is Wildlife Acoustics' policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminating the accounts of repeat infringers.
- 12.2. Digital Millennium Copyright Act
(I) Notice - If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 USC 512©(3) for further detail):
- A physical or electronic signature of a person 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 at that site;
- 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 the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- 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.
(II) Wildlife Acoustics' designated Copyright Agent to receive notifications of claimed infringement is Pete Mellor, email: , fax: +1 (781) 207-5523. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Wildlife Acoustics customer service at . You acknowledge that if you fail to comply with all of the requirements of this Section 12.2, your DMCA notice may not be valid.
(III) Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent: Your physical or electronic signature; Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Boston, Massachusetts, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Wildlife Acoustics may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Wildlife Acoustics' sole discretion.
13. Other content
- 13.1 The Web Site may include hyperlinks to other Web Sites or content or resources. Wildlife Acoustics may have no control over any Web Sites or resources which are provided by companies or persons other than Wildlife Acoustics.
- 13.2 You acknowledge and agree that Wildlife Acoustics is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such Web Sites or resources.
- 13.3 You acknowledge and agree that Wildlife Acoustics is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such Web Sites or resources.
14. Changes to the Terms
- 14.1 Wildlife Acoustics may make changes to the Terms from time to time. When these changes are made, Wildlife Acoustics will make a new copy of the Terms available on the Web Site.
- 14.2 You understand and agree that if you use the Web Site after the date on which the Terms have changed, Wildlife Acoustics will treat your use as acceptance of the updated Terms.
15. General legal terms
- 15.1 Sometimes when you use the Web Site, you may (as a result of, or through your use of the Web Site) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals.
- 15.2 The Terms constitute the whole legal agreement between you and Wildlife Acoustics and govern your use of the Web Site (but excluding any services which Wildlife Acoustics may provide to you under a separate written agreement), and completely replace any prior agreements between you and Wildlife Acoustics in relation to the Web Site.
- 15.3 No agency, partnership, joint venture, or employment is created as a result of the Terms and you do not have any authority of any kind to bind Wildlife Acoustics in any respect whatsoever.
- 15.4 You agree that Wildlife Acoustics may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Web Site.
- 15.5 You agree that if Wildlife Acoustics does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Wildlife Acoustics has the benefit of under any applicable law), this will not be taken to be a formal waiver of Wildlife Acoustics' rights and that those rights or remedies will still be available to Wildlife Acoustics.
- 15.6 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
- 15.7 You agree that: (i) the Web Site shall be deemed solely based in Massachusetts; and (ii) the Web Site shall be deemed a passive website that does not give rise to personal jurisdiction over Wildlife Acoustics, either specific or general, in jurisdictions other than Massachusetts. The Terms, and your relationship with Wildlife Acoustics under the Terms, shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. You and Wildlife Acoustics agree to submit to the exclusive jurisdiction of the courts located within Suffolk County of the Commonwealth of Massachusetts to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Wildlife Acoustics shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
January 29, 2013