Updated: April 2015
PLEASE READ CAREFULLY BEFORE USING THE BIRDGENIE APP OR THE BIRDGENIE WEBSITE (TOGETHER, THE “BIRDGENIE PRODUCTS”): THIS TOU IS A LEGAL AGREEMENT BETWEEN PRINCETON UNIVERSITY PRESS (“PUP”) AND THE USER OF THE BIRDGENIE PRODUCTS (“YOU”). THIS TOU CONTAINS RIGHTS AND RESTRICTIONS ASSOCIATED WITH USE OF THE ACCOMPANYING BIRDGENIE PRODUCTS. BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE BIRDGENIE PRODUCTS YOU AGREE TO THE TERMS AND CONDITIONS OF THIS TOU AND REPRESENT (I) THAT YOU ARE AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF THE OWNER OR USER(S) ON WHICH COMPUTER OR MOBILE DEVICE THIS SOFTWARE PRODUCT WILL BE INSTALLED, AND (II) THAT YOU INTEND TO BE PERSONALLY BOUND TO THE TERMS OF THIS TOU. IF YOU DO NOT ACCEPT THE TOU, YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE PRODUCT.
SCOPE OF LICENSE. The BirdGenie Products is comprised of a mobile app and a website, and each include two types of computer software: (1) software that is owned by PUP (including all software, components and documentation) (“PUP Software”), and (2) other software provided by third parties and used with the Software Product, as described more fully in the “Credit” section below (“Third Party Software”) (collectively PUP Software and Third Party Software form the “BirdGenie Products”). PUP grants you the following non-exclusive rights provided you agree to and comply with all terms and conditions of this TOU:
Authorized Use. You may use one (1) copy of the BirdGenie Products on your own computer or mobile device, or a computer or mobile device that you are authorized to use, for your own personal, noncommercial purposes. You do not have the right to distribute the BirdGenie Products to any third parties. You agree to only use the BirdGenie Products as expressly permitted herein and solely in connection with the application
Reservation of Rights. The BirdGenie Products are licensed, not sold, to you by PUP. PUP and its suppliers own all right, title and interest in and to the BirdGenie Products and reserve all rights not expressly granted to you in this TOU. You agree to refrain from any action that would diminish such rights or would call them into question.
Third Party Software. PUP grants rights in this TOU only in the BirdGenie Products, and not in any Third Party Software incorporated therein. Use of the Third Party Software that is provided as part of the BirdGenie Products is licensed to you subject to the terms and conditions set forth in this subsection.
Support. Under the terms of this TOU, you are not entitled to support from PUP. Any support shall be provided at PUP’s sole discretion and is provided “AS IS” and without any warranties, pursuant to Section 7 below. Proper operation of the BirdGenie Products may be dependent upon third parties such as wireless carriers, device manufacturers and app stores. PUP is not responsible for the acts or omissions of such third parties.
Rights in User Submissions. To avoid potential copyright infringement, you must only use the BirdGenie Products to submit photos, recordings or images taken or recorded by you (each, a “User Submission”). By submitting a User Submission, you grant an irrevocable, perpetual, royalty-free, fully paid up, transferable, sublicensable license to PUP to display, transmit, copy, reproduce, modify, use, and create derivative works of your User Submission and to incorporate it into other media and platforms, owned by either PUP or other third parties, including but not limited to websites or for educational purposes, for any purpose.
ADDITIONAL SOFTWARE. This TOU applies to modifications, updates, or supplements to the original BirdGenie Products provided by PUP unless PUP provides other terms along with such modification, update, or supplement. In case of a conflict between such terms and the terms herein, the other terms will prevail. PUP may automatically upgrade or modify the BirdGenie Products remotely and without prior notice to you at any time. In addition, PUP may add, remove, modify or disable features of the BirdGenie Products at any time. Such changes may interfere with the proper operation of the BirdGenie Products or be incompatible with a particular computer or mobile device.
TRANSFER AND ACCESS
Third Party. The BirdGenie Products may not be transferred to another end user.
Access. You may be provided with or create personal login credentials in order to access certain portions of the BirdGenie Products. You will not share these credentials with any other individual or entity, or allow any other individual access to the BirdGenie Products, including on any hardware on which you have installed a copy of the BirdGenie Products.
Acceptable Use: If any of your User Submissions are or become publicly available (whether released to the public by you, BirdGenie, or any third party), you represent and warrant that such User Submissions will not include any content that infringes the rights of any third parties, will not violate any laws, will not be indecent, defamatory, discriminatory or promote violence or other illegal or immoral behavior. PUP reserves the right to remove or delete any User Submission at any time.
PROPRIETARY RIGHTS. All intellectual property rights in the BirdGenie Products and user documentation are owned by PUP or its suppliers and are protected by law, including but not limited to copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions. Any and all modifications, enhancements and derivative works of the BirdGenie Products shall remain the sole and exclusive property of PUP. The structure, organization and code of the BirdGenie Products and all intellectual property rights embodied therein are the valuable trade secrets and confidential information of PUP and its suppliers. You shall not remove any product identification, copyright notices or proprietary restrictions from the BirdGenie Products.
RESTRICTIONS. You may not modify, translate, reverse engineer, decompile or otherwise disassemble the BirdGenie Products in any way or allow others to do so. You may not create derivatives of the BirdGenie Products or allow others to do so. You further agree not to access or attempt to access the BirdGenie Products by any means other than the interface provided by PUP. You agree not to access the BirdGenie Products in order to create a competitive product or service. You may not host, rent, lease, sublicense, or otherwise distribute the BirdGenie Products to any third party; or offer the BirdGenie Products in connection with timesharing, facility management, or service bureau usage.
TERM. This TOU is effective unless terminated by either party upon notice, except that this TOU cannot be terminated by you if you continue to use the BirdGenie Products. This TOU will also terminate immediately and without additional notice in the event you breach this TOU and/or fail to comply with any term or condition of this TOU. Upon any termination, you must immediately remove and delete the BirdGenie Products from any computer or mobile device on which you have installed it.
DISCLAIMER OF WARRANTIES.
YOU AGREE THAT THE USE OF THE BIRDGENIE PRODUCTS IS AT YOUR SOLE RISK AS TO SATISFACTORY QUALITY PERFORMANCE, ACCURACY AND EFFORT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PUP, THE BIRDGENIE PRODUCTS, AND THIRD PARTY SOFTWARE ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND WITHOUT ANY OTHER WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON-INFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF VIRUSES ALL WITH REGARD TO THE BIRDGENIE PRODUCTS AND THIRD PARTY SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PUP OR A PUP AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. PUP DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE BIRDGENIE PRODUCTS WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE BIRDGENIE PRODUCTS (OR ANY THIRD PARTY HARDWARE OR SOFTWARE CONTAINED THEREIN) WILL BE UNINTERRUPTED OR ERROR FREE OR THAT SUCH ERRORS WILL BE CORRECTED. COMPUTER AND APPLICATION SOFTWARE IS INHERENTLY SUBJECT TO BUGS AND POTENTIAL INCOMPATIBILITY WITH OTHER COMPUTER SOFTWARE AND HARDWARE. YOU SHOULD NOT USE THE BIRDGENIE PRODUCTS FOR ANY APPLICATIONS IN WHICH FAILURE COULD CAUSE ANY SIGNIFICANT DAMAGE OR INJURY TO PERSONS OR TANGIBLE OR INTANGIBLE PROPERTY. Some states or jurisdictions do not allow exclusion of implied warranties or limitations on the duration of implied warranties, so the above disclaimer may not apply to you in its entirety. To the extent applicable law requires PUP to provide warranties, you agree that the scope and duration of such warranty shall be to the minimum extent permitted under such applicable law.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PUP OR ANY OF ITS AFFILIATES BE LIABLE TO YOU FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, FOR LOSS OF DATA OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR VIOLATION OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE BIRDGENIE PRODUCTS OR HARDWARE USED WITH THE BIRDGENIE PRODUCTS, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS TOU), EVEN IF PUP OR SUCH THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Some states or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. In no event shall PUP’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one hundred dollars ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
INDEMNITY. You agree to indemnify and hold PUP and its affiliates, and their respective officers, directors, employees and licensors harmless from any claim or demand (including but not limited to reasonable legal fees) made by a third party due to or arising out of or related to your use of the BirdGenie Products, your violation of this TOU, your violation of any laws, regulations or third party rights or your negligent act, omission or willful misconduct.
CREDIT. BirdGenie is published by Princeton University Press, Copyright © 2015. All Rights Reserved. Core Software Copyright © 2012-15. Stephen Travis Pope, FASTLab and BirdsEar, Inc. Species Training Data Copyright © 2010-15. Tom Stephenson and BirdsEar, Inc. Data collection and training consulting by Scott Whittle. Portions (CSL) Copyright © 1998-2009. The Regents of the University of California. . Portions (JUCE) Copyright © 2015. Raw Material Software Ltd. (Thanks a million, Jules!) Portions (FFTReal) Copyright © 1995. Laurent de Soras (http://ldesoras.free.fr/prod.html). Portions (The Amazing Audio Engine) Copyright (C) 2012-2013 A Tasty Pixel. Portions (Gaussian Mixture Model) by Fionn Murtagh; public domain; see http://www.classification-society.org /csna/mda-sw. Portions (FANN) Copyright © 2003-13. Steffen Nissen (http://leenissen.dk/fann/wp). Portions (Point class) Copyright © 2002. softSurfer (www.softsurfer.com). Portions (Bird species data) licensed from the Cornell University Ornithology Laboratory.
ENTIRE AGREEMENT. This TOU is the entire agreement between you and PUP relating to the BirdGenie Products and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the BirdGenie Products or any other subject matter covered by this TOU. To the extent the terms of any PUP policies or programs for support services conflict with the terms of this TOU, the terms of this TOU shall control. If any provision of this TOU is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provision of the TOU will remain in force and effect. Section 1 and Sections 4 through 12 shall survive termination of this TOU. This TOU is governed by the laws of the State of New Jersey, and each party consents to the exclusive jurisdiction and venue of the courts located in New Jersey for all matters. PUP MAY CHANGE THE TERMS OF THIS TOU AT ANY TIME AT ITS SOLE DISCRETION; CONTINUED USE OF THE BIRDGENIE PRODUCTS CONSTITUTES ACCEPTANCE OF ANY SUCH REVISED TERMS.
If you have any questions about the terms of this TOU, please contact us at firstname.lastname@example.org.