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General Disclaimer
BirdBrain, Inc. does not represent or endorse the accuracy or reliability
of any of the information, content or advertisements (collectively,
the "Materials") contained on, distributed through, or
linked, downloaded or accessed from any of the services contained
on this website (the "Service"), nor the quality of any
products, information or other materials displayed, purchased, or
obtained by you as a result of an advertisement or any other information
or offer in or in connection with the Service (the "Products").
You hereby acknowledge that any reliance upon any Materials shall
be at your sole risk. BirdBrain, Inc. reserves the right, in its
sole discretion and without any obligation, to make improvements
to, or correct any error or omissions in any portion of the Service
or the Materials.
THE SERVICE AND THE MATERIALS ARE PROVIDED BY
BIRDBRAIN, INC. TECHNOLOGY, INC. ON AN "AS IS" BASIS,
AND BIRDBRAIN, INC. EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE
OR ANY MATERIALS AND PRODUCTS. IN NO EVENT SHALL BIRDBRAIN, INC.
BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES OF ANY KIND WHATSOEVER WITH RESPECT TO THE SERVICE, THE
MATERIALS AND THE PRODUCTS.
Warranties and Limitation of Liability
While BirdBrain, Inc. uses reasonable efforts to include accurate
and up-to-date information on its Network of web sites, it makes
no representations as to the accuracy, timeliness or completeness
of that information, and you should not rely upon it. In using the
web sites, you agree that its information and services are provided
"AS IS, AS AVAILABLE" without warranty, express or implied,
and that you use these sites at your own risk.
By accessing any portion of the BirdBrain, Inc.
Network of web sites, you agree not to redistribute any of the information
found therein. The services provided through links on this site
are independent of BirdBrain, Inc. and are for your convenience
only. BirdBrain, Inc. does not endorse or recommend the services
of any particular company or service, nor is BirdBrain, Inc. responsible
for any services or goods provided by such companies. BirdBrain,
Inc. shall not be liable for any damages or costs arising out of
or in any way connected with your use of any of the services or
companies accessed through this Network of web sites.
You further agree that BirdBrain, Inc. and any
other parties involved in creating and delivering the content on
the Network site have no liability for direct, indirect, incidental,
punitive, or consequential damages with respect to the information,
services, content, or advertisements contained on or otherwise accessed
through this Network of web sites.
BirdBrain, Inc. Terms of Service
(TOS)
IMPORTANT: READ CAREFULLY
The following is the Terms of Service ("TOS")
agreement between you and BirdBrain, Inc., a New York Corporation
located at 519 West 134ts Street, New York, NY 10031 ("BirdBrain,
Inc.").
1. ACCEPTANCE OF TERMS
BirdBrain, Inc. provides its services to you, subject to the following
Terms of Service ("TOS"), which may be updated by us from
time to time without notice to you. In addition, when using particular
BirdBrain, Inc. services, you shall be subject to any posted guidelines
or rules applicable to such services that may be posted from time
to time. All such guidelines or rules are hereby incorporated by
reference into the TOS.
2. DESCRIPTION OF SERVICE
BirdBrain, Inc. currently provides users with access to a collection
of on-line resources, including avian information, products, and
services, various communications tools (the "Service").
Unless explicitly stated otherwise, any new features that augment
or enhance the current Service, including the release of new BirdBrain,
Inc. properties, shall be subject to the TOS. You understand and
agree that the Service is provided "AS-IS" and that BirdBrain,
Inc. assumes no responsibility for the timeliness, deletion, mis-delivery
or failure to provide content or store any user communications.
In order to use the Service, you must obtain
access to the Internet/World Wide Web, either directly or through
devices that access web-based content, and pay any service fees
associated with such access. In addition, you must provide all equipment
necessary to make such connection to the Internet/World Wide Web,
including a computer and modem or other access device.
3. MEMBER ACCOUNT, PASSWORD AND
SECURITY
Some sections of the BirdBrain site require a password. If you request
you will receive a password and account designation upon completing
the 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 BirdBrain, Inc. 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. BirdBrain, Inc. cannot and will not be liable for any loss
or damage arising from your failure to comply with this Section
3.
4. YOUR REGISTRATION OBLIGATIONS
If you request certain services on this website that require a password
and designation to access you agree that in consideration of your
use of the Service, you agree to: (a) provide true, accurate, current
and complete information about yourself as prompted by the Service's
registration form (such information being 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 BirdBrain, Inc. has reasonable grounds to suspect that such information
is untrue, inaccurate, not current or incomplete, BirdBrain, Inc.
has the right to suspend or terminate your account and refuse any
and all current or future use of the Service (or any portion thereof).
5. MEMBER CONDUCT (Bulletin boards
& Online forums, chat, et al)
As a condition of your use of the Service, you warrant to BirdBrain,
Inc. that you will not use the Service for any purpose that is unlawful
or prohibited by these terms, conditions and notices. You understand
that all information, data, text, software, music, sound, photographs,
graphics, video, messages or other materials ("Content"),
whether publicly posted or privately transmitted, are the sole responsibility
of the person from which such Content originated. This means that
you, and not BirdBrain, Inc., are entirely responsible for all Content
that you upload, post, email or otherwise transmit via the Service.
BirdBrain, Inc. does not control the Content posted via the Service
and, as such, does not guarantee the accuracy, integrity or quality
of such Content. You understand that by using the Service, you may
be exposed to Content that is offensive, indecent or objectionable.
Under no circumstances will BirdBrain, Inc. be liable in any way
for any Content, including, but not limited to, for any errors or
omissions in any Content, or for any loss or damage of any kind
incurred as a result of the use of any Content posted, emailed or
otherwise transmitted via the Service.
The Service is provided to individuals and
for personal use only. You agree to abide by all applicable local,
state, national and international laws and regulations and are solely
responsible for all acts or omissions that occur under your account
or password, including the content of your transmissions through
the Service. You agree to not use the Service to:
• upload, post, email or otherwise
transmit any Content that is unlawful, harmful, threatening, abusive,
harassing, tortious, defamatory, vulgar, obscene, libelous, invasive
of another's privacy, hateful, or racially, ethnically or otherwise
objectionable;
• harm minors in any way;
• impersonate any person or entity,
including, but not limited to, a BirdBrain, Inc. official, forum
leader, guide or host, or falsely state or otherwise misrepresent
your affiliation with a person or entity;
• forge headers or otherwise manipulate
identifiers in order to disguise the origin of any Content transmitted
through the Service;
• upload, post, email or otherwise
transmit any Content that you do not have a right to transmit under
any law or under contractual or fiduciary relationships (such as
inside information, proprietary and confidential information learned
or disclosed as part of employment relationships or under nondisclosure
agreements);
• upload, post, email or otherwise
transmit any Content that infringes any patent, trademark, trade
secret, copyright or other proprietary rights ("Rights")
of any party;
• upload, post, email or otherwise
transmit any unsolicited or unauthorized advertising, promotional
materials, "junk mail," "spam," "chain
letters, "pyramid schemes," or any other form of solicitation,
except in those areas (such as shopping rooms) that are designated
for such purpose;
• upload, post, email 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 computer software or hardware
or telecommunications equipment;
• disrupt the normal flow of dialogue,
cause a screen to "scroll" faster than other users of
the Service are able to type, or otherwise act in a manner that
negatively affects other users' ability to engage in real time exchanges;
• interfere with or disrupt the Service
or servers or networks connected to the Service, or disobey any
requirements, procedures, policies or regulations of networks connected
to the Service;
• intentionally or unintentionally
violate any applicable local, state, national or international law,
including, but not limited to, regulations promulgated by the U.S.
Securities and Exchange Commission, any rules of any national or
other securities exchange, including, without limitation, the New
York Stock Exchange, the American Stock Exchange or the NASDAQ,
and any regulations having the force of law; or
• "stalk" or otherwise harass
another.
You acknowledge that BirdBrain, Inc. does
not pre-screen Content, but that BirdBrain, Inc. and its designees
shall have the right (but not the obligation) in their sole discretion
to refuse or move any Content that is available via the Service.
Without limiting the foregoing, BirdBrain, Inc. 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 BirdBrain, Inc. or submitted to BirdBrain,
Inc..
You acknowledge and agree that BirdBrain,
Inc. may preserve Content and may also disclose Content if required
to do so by law or in the good faith belief that such preservation
or disclosure is reasonably necessary to: (a) comply with legal
process; (b) enforce the TOS; (c) respond to claims that any Content
violates the rights of third-parties; or (d) protect the rights,
property, or personal safety of BirdBrain, Inc., its users and the
public.
You understand that the technical processing
and transmission of the Service, 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.
6. INDEMNITY
You agree to indemnify and hold BirdBrain, Inc., and its subsidiaries,
affiliates, officers, agents, co-branders or other partners, and
employees, 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 to or transmit through the Service, your
use of the Service, your connection to the Service, your violation
of the TOS, or your violation of any rights of another.
7. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit
for any commercial purposes, any portion of the Service, use of
the Service, or access to the Service.
8. MODIFICATIONS TO SERVICE
BirdBrain, Inc. reserves the right at any time and from time to
time to modify or discontinue, temporarily or permanently, the Service
(or any part thereof) with or without notice. You agree that BirdBrain,
Inc. shall not be liable to you or to any third party for any modification,
suspension or discontinuance of the Service.
9. TERMINATION
If you have a password and designation you agree that BirdBrain,
Inc., in its sole discretion, may terminate your password, account
(or any part thereof) or use of the Service, and remove and discard
any Content within the Service, for any reason, including, without
limitation, for lack of use or if BirdBrain, Inc. believes that
you have violated or acted inconsistently with the letter or spirit
of the TOS. BirdBrain, Inc. may also in its sole discretion and
at any time discontinue providing the Service, or any part thereof,
with or without notice. You agree that any termination of your access
to the Service under any provision of this TOS may be effected without
prior notice, and acknowledge and agree that BirdBrain, Inc. may
immediately deactivate or delete your account and all related information
and files in your account and/or bar any further access to such
files or the Service. Further, you agree that BirdBrain, Inc. shall
not be liable to you or any third party for any termination of your
access to the Service.
10. DEALINGS WITH ADVERTISERS
Your correspondence or business dealings with, or participation
in promotions of, advertisers found on or through the Service, 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 BirdBrain, Inc. 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 Service.
11. THIRD PARTY LINKS
The Service may provide, or third parties may provide, links to
other Internet/World Wide Web sites or resources. Because BirdBrain,
Inc. has no control over such sites and resources, you acknowledge
and agree that BirdBrain, Inc. 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 BirdBrain, Inc. 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.
12. PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software
used in connection with the Service ("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 sponsor advertisements or information
presented to you through the Service or advertisers is protected
by copyrights, trademarks, service marks, patents or other proprietary
rights and laws. Except as expressly authorized by BirdBrain, Inc.
or advertisers, you agree not to modify, rent, lease, loan, sell,
distribute or create derivative works based on the Service or the
Software, in whole or in part.
BirdBrain, Inc. 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 of, 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, or to use
modified versions of the Software, including (without limitation)
for the purpose of obtaining unauthorized access to the Service.
You agree not to access the Service by any means other than through
the interface that is provided by BirdBrain, Inc. for use in accessing
the Service.
13. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE
RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS. BIRDBRAIN, INC. EXPRESSLY DISCLAIMS ALL WARRANTIES
OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT.
(b) BIRDBRAIN, INC. MAKES NO WARRANTY THAT
(i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL
BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS
THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE
OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION,
OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE
WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE
WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE
OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION
AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE
TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD
OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL
OR WRITTEN, OBTAINED BY YOU FROM BIRDBRAIN, INC. OR THROUGH OR FROM
THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE
TOS.
14. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT BIRDBRAIN, INC. SHALL NOT
BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL
OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR
LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES
(EVEN IF BIRDBRAIN, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE
THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND
SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES
PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED
INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR
ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT
OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING
TO THE SERVICE.
15. 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
17 AND 18 MAY NOT APPLY TO YOU.
16. NOTICE
Notices to you may be made via either email or regular mail. The
Service may also provide notices of changes to the TOS or other
matters by displaying notices or links to notices to you generally
on the Service.
17. TRADEMARK INFORMATION
BirdBrain, Inc., the BirdBrain, Inc. logo, all trademarks and service
marks, and other BirdBrain, Inc. logos and products and services
names are trademarks of BirdBrain, Inc. (the "BirdBrain, Inc.
Marks"). Without BirdBrain, Inc.'s prior permission, you agree
not to display or use in any manner, the BirdBrain, Inc. Marks.
18. GENERAL INFORMATION
The TOS constitute the entire agreement between you and BirdBrain,
Inc. and govern your use of the Service, superceding any prior agreements
between you and BirdBrain, Inc.. You also may be subject to additional
terms and conditions that may apply when you use affiliate services,
third party content or third party software. The TOS and the relationship
between you and BirdBrain, Inc. shall be governed by the laws of
the State of California without regard to its conflict of law provisions.
You and BirdBrain, Inc. agree to submit to the personal and exclusive
jurisdiction of the courts located within the county of Los Angeles,
California. The failure of BirdBrain, Inc. 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. 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
Service 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. |
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