WILDLIFE ACOUSTICS, INC.
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 AL THE TERMS, THEN YOU MAY NOT ACCESS THE WEB SITE OR USE THE CONTENT ON THE SITE. WAI'S 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 WAI, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
The Software, as that term is used in this Agreement, includes without limitation all programs, codes, files, databases, libraries and any additional programs, updates, modifications, fixes, patches, upgrades, and revisions provided to You, the associated media, any printed materials, and any online or electronic documentation (Documentation). Services may include, but are not limited to any use of the wildlifeacoustics.com web site (the "Web Site"), Software or Service, logging into an account, connecting with an online database, upload and download of files, import/export data, data storage, and data analysis.
By installing, copying, downloading, accessing, or otherwise using the Software or Services, You agree to be bound by the terms of this Agreement and You represent that you are authorized to accept the conditions of this Agreement individually and, if the Software or Services are to be used by your company, on behalf of your company. If you do not agree to the terms of this Agreement or if you do not have the authority to accept the terms of this Agreement, you may not use the Software or Services, and you should cease all use of the Software and Services.
You may not use the Software or Services and may not accept this Agreement if (a) you are not of legal age to form a binding contract with WAI, 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.
Any third party online service (e.g., Amazon Web Services) provided with or linked from WAI's Services that is subject to separate terms of service is made available to You under those terms of service. Any third party or other software provided along with WAI's Software that is associated with a separate user license agreement is licensed to You under the terms of that license agreement.
You will ensure that all of users who access your content on the Services or otherwise use the Services under your account (End Users) comply with your obligations under this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access by such End User to WAI's Services, and any related Third Party Services.
This Agreement may be amended from time to time by WAI with notification to you, including updates to the Software or posting on WAI's website (available at https://wildlifeacoustics.com/legal/), and you agree that you are given the opportunity to review any amendments to this Agreement by notification via updating the Software or posting on WAI's website. You agree to be bound to any amendment to this Agreement if you continue to use the Software or Services after any such notification described above.
Unless this Agreement or applicable law specifies otherwise, changes will be effective immediately upon notice. If you find any changes unacceptable, you have the right to cancel your Service(s) and discontinue use of the Software. However, if you continue to receive Service(s) or use the Software after the end of the notice period (the Effective Date) of the change, you will be considered to have accepted the changes.
1. CHARGES AND BILLING
You agree to pay all charges associated with the Services, including, but not limited to, monthly service charges, applicable federal, state, and local taxes and fees (however designated), and any fees or payment obligations imposed by governmental or quasi-governmental bodies for the sale, installation, use, or provision of the Services. We will give you thirty (30) days prior notice of any significant change to pricing or fees for the Services, unless such change is related to governmental or quasi-governmental taxes, fees, or assessments, in which case we may elect not to provide notice except where required by applicable law.
WAI price information is available at www.wildlifeacoustics.com (or an alternative site if we notify you). If you have agreed to a minimum term arrangement, your price for Service(s) is as specified in the minimum term arrangement. All fees payable by you are exclusive of taxes and duties, including, without limitation, VAT, Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax (Taxes). We may charge and you will pay applicable Taxes that we are legally obligated or authorized to collect from you.
Unless you are subject to a prepaid subscription or minimum term arrangement, Services are provided to you on a month-to-month basis. You will generally be billed monthly, in advance, for recurring service charges and fees. Your first bill may include pro-rated charges from the date you first begin receiving Services, as well as monthly recurring charges for the next month and charges for non-recurring services you have received.
You may be billed fees, charges, and assessments related to late or non-payments if for any reason (a) WAI does not receive payment for the Services by the payment due date or (b) you pay less than the full amount due for the Services. Overdue amounts shall be subject to interest at the rate of 1.5% per month, or if less, the highest amount allowed by law plus reasonable costs of collection. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. If you fail to pay the full amount due for any or all of the Services then WAI, at its sole discretion in accordance with and subject to applicable law, may suspend or disconnect any or all the Services you receive and delete all accounts and data. WAI may, but has no obligation to, provide 30 days notice prior to deleting your data. Once data is deleted, it may not be recoverable. If you resume a Service after any suspension, we may require you to pay a reinstatement fee. If you reactivate any or all Services after disconnection, we may require you to pay a service activation fee. These fees are in addition to all past due charges and other fees. Continuation of the Services is subject to our credit policies, this Agreement and applicable law.
2. CHANGES TO SERVICES OR SOFTWARE
Subject to applicable law, we have the right to change our Services or Software at any time with or without notice. We also may rearrange, delete, add to, or otherwise change features or offerings contained in the Services or Software, including, but not limited to, functionality, hours of availability, file storage, data bases, import or export of files or data, and the upload or download of files. If we do give you notice, it may be provided on your monthly bill or other communication permitted under applicable law. If you find a change in the Services or Software unacceptable, you have the right to cancel your Service(s) and discontinue use of the Software. However, if you continue to receive Service(s) or use the Software after the change, this will constitute your acceptance of the change.
3. GRANT OF LICENSE AND PERMITTED USE
Subject to the terms and conditions of this Agreement and any other agreement between You and WAI that define the terms of the of the Software, which terms and conditions are incorporated herein by reference, WAI grants to You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license, for use of the Software, to install, operate, and use the Software for the term of this Agreement or to distribute to an user (User) that agrees to be bound by the terms of this Agreement as an integral part of, and solely in conjunction with, a product or software program distributed by WAI.
The order confirmation that was delivered with the Software or Services (of if none, the final sales quote) specifies the scope and duration of the license rights of the Software or Services that are permitted to You. Use of the Software or Services beyond the scope of the rights granted to You requires additional or modified license grants, and additional payment of applicable license and maintenance fees.
If you receive a copy of the Software or access to the Services, but have not purchased a license to use the Software or Services, You shall only have a limited non-transferable, non-exclusive license to install and use the Software or Services for your own internal use solely for purposes of evaluation for no more than fifteen (15) days (unless extended by WAI or an authorized vendor in writing). When the Software is used on an evaluation basis, it may not have the full functionality described in its accompanying documentation.
You acknowledge that the Software is protected by copyrights and other intellectual property and proprietary rights. WAI and its third-party licensors (Licensors) reserve all such rights with respect to the Software, except for the license expressly granted to you in this Section 3. Except for such express license, no right, title, interest or license in or to the Software, whether by implication, estoppel or otherwise, is granted, assigned or transferred to you. You agree not to take any action that interferes, in any manner, with WAI or its Licensors' rights with respect to the Software.
You will be responsible for and deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, the Software or the Services. You further agree that you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your account.
You may not use, or encourage, promote, facilitate or instruct others to use, the Services or any Third Party Services for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive..
You agree to use the Services (including the Web Site) only for purposes that are permitted by this Agreement and 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). 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).
You may not use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a System). Prohibited activities include:
- Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System.
- Monitoring of data or traffic on a System without permission.
- Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. The legitimate use of aliases and anonymous remailers is not prohibited by this provision.
You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include:
- Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.
- Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.
- Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
- Operating network services like open proxies, open mail relays, or open recursive domain name servers.
- Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.
You will not distribute, publish, send, or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like spam), including commercial advertising and informational announcements. You will not alter or obscure mail headers or assume a sender's identity without the sender's explicit permission. You will not collect replies to messages sent from another internet service provider if those messages violate this Agreement or the acceptable use policy of that provider.
We reserve the right, but do not assume the obligation, to investigate any violation of this Agreement or misuse of the Services or Web Site. We may:
- investigate violations of this Agreement or misuse of the Services or AWS Site; or
- remove, disable access to, or modify any content or resource that violates this Agreement or any other agreement we have with you for use of the Services or the AWS Site.
We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Agreement.
4. CONTENT RIGHTS AND RESPONSIBILITIES
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 Software or Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content".
You should be aware that Content presented to you as part of the Software or Services may be protected by intellectual property rights which are owned by the persons who provide that Content to WAI. 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 WAI or by the owners of that Content, in a separate agreement.
You agree that you are solely responsible for (and that WAI has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Software or Services and for the consequences of your actions (including any loss or damage which you may suffer) by doing so.
WAI does not pre-screen the Content posted by users. WAI 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, WAI 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 7), 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.
WAI will fully cooperate with any law enforcement authorities or court order requesting or directing WAI to disclose the identity of anyone posting any such information or materials. WAI reserves the right to deny in its sole discretion any user access to the Software or Services or any portion thereof without notice.
You confirm and warrant to WAI 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 or Services and to grant the licenses in this Section 4 with respect to that Content. You further agree that Content you submit to the Software or Services 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 WAI all of the license rights granted herein.
You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Software or Services. Content may include proprietary content that is hosted by us or third party servers but intended only for your own internal use (Proprietary Content), shared content that you designate may be shared with users invited by you (Shared Content), and public content that is accessible to anyone by placing documents in a PUBLIC folder or posting it to a public webpage, such as comments to a blog or user posts on a discussion forum (Public Content).
By submitting, posting or displaying the Public Content you give WAI a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Public Content which you submit, post or display on or through, the Software or Services. You also hereby grant each other user of the Software or Services a non-exclusive license to access your Public Content through the Software or Services, and to use, reproduce, distribute, display and perform the Content as permitted through the functionality of the Software or Services and under these Terms. You agree that this license includes a right for WAI to make such Public Content available to other companies, organizations or individuals with whom WAI has relationships, and to use such Public Content in any way WAI desires.
You understand that WAI and its service providers, in performing the required technical steps to provide the Software or Services 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 WAI to take these actions.
You further agree that you will not submit to the Software or Services 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 WAI. By way of example, and not as a limitation, you agree not to use the Software or Services: (i) to post or transmit any Content that is unlawful, infringing, libelous, defamatory, obscene, pornographic, abusive, offensive, threatening, abusive, harassing, tortuous, or defamatory; (ii) to attempt to misappropriate or 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.
5. INTELLECTUAL PROPERTY RESTRICTIONS AND OTHER LIMITATIONS
WAI has and shall have sole and exclusive ownership of all right, title, and interest in and to the Software and Services and all portions and copies thereof. In addition, WAI shall have sole and exclusive ownership of any additional programs, updates, modifications, fixes, patches, upgrades, and revisions provided to You for the Software or provided online as part of its Services. No title is transferred by this Agreement or by the payment of any fee. If title to the Software or Services or any part thereof does not, by operation of law, vest in WAI, You hereby assign to WAI, or its designee all right, title and interest in and to the Software or Services.
The Services and Software, including, but not limited to, any software used to provide the Services, are protected by trademark, copyright, patent and/or other intellectual property laws and international treaty provisions. You are granted a revocable license to use such Services or Software in the form provided (without making any modification thereto) strictly in accordance with this Agreement. You acknowledge and understand that you are not granted any other license to use the Software or Services.
WAI does not claim any ownership of any data or content that you store, transmit or distribute using the Services. By using the Services to store, transmit, or distribute data or content, you (1) warrant that the material or content complies with the provisions of this Agreement, (2) consent to and authorize WAI, its agents, suppliers, and affiliates to use, reproduce, distribute, and display the content in order to provide the Services; and (3) warrant that you have the right to provide this authorization.
WAI and its suppliers reserve the right both during the term of this Agreement and upon its termination to delete your data, files, or other information that is stored on WAI's or its suppliers' servers or systems, in accordance with our storage policies.
Except as otherwise expressly provided in this Agreement, You shall not take any action nor allow anyone else to take any action that will: (i) reverse compile, disassemble, reverse engineer, or otherwise attempt to derive the source code from the binary code of the Software, in whole or in part; or (ii) adapt, alter, modify, translate, or create derivative works based on the Software or Services, in whole or in part.
You may make a reasonable number of copies of the licensed Software for non-production, backup purposes only. Except as expressly permitted herein or as otherwise agreed in writing, copying the Software for use in testing, development, disaster recovery, or training environments requires separate licenses subject to payment of Software maintenance and license fees.
You shall not utilize the Software or Services in conjunction with any Public Software in a manner which would require the Software to be disclosed or distributed in source code form or made available at no charge. Public Software means any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models.
You may not (i) sell, assign, distribute, lease, market, rent, lend, sublicense, transfer, make available, publish, disclose, or otherwise grant rights to the Software or Services, in whole or in part, to any third party in any form; or (ii) electronically transfer the Software or Services, in whole or in part, from one computer to another over a network except as is necessary to load, operate and use the Software or Services.
You acknowledge and agree that you will not: (i) obscure, remove or alter any of the trademarks, trade names, logos, patent or copyright notices, or other proprietary notices, legends, symbols or labels in or on the Software or Services; (ii) add any other notices or markings to the Software or Services; or (iii) use the Software or Services in any manner to aid in the violation of any third-party intellectual property rights, including without limitation copyrights, trademarks, trade secrets, and patents, or the applicable laws of the jurisdictions in which you are using the Software, including without limitation libel, defamation, obscenity, and privacy-related torts.
You further acknowledge and agree that you will not: (a) attempt to circumvent or disable the Software or Services or any technology features or measures contained therein by any means or in any manner; (b) attempt to not reverse engineer, decompile, or disassemble the Software or Services or any portion thereof or otherwise obtain or attempt to obtain the source code for the Software or Services or any portion thereof.
The Software or Services licensed hereunder may include Open Source software (computer software that is distributed under a licensing arrangement, which provides that the computer code can be shared, viewed, and modified by the public). The restrictions of this Section 5 only apply to any such Open Source software when and to the extent that they do not conflict with any terms of the Open Source software's respective license(s).
7. COPYRIGHT POLICY
It is WAI's 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 terminate the accounts of repeat infringers.
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(c)(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.
WAI's 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 WAI customer service at . You acknowledge that if you fail to comply with all of the above requirements, your DMCA notice may not be valid.
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, WAI 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 WAI's sole discretion.
8. SUPPORT; UPDATES; LICENSE VALIDATION; ACCURACY OF DATA
No product support for the Software or Services is provided unless a separate written support agreement is entered into by You and WAI or an authorized vendor. If the Software or Services is an upgrade or update to a previous version, You must possess a valid license to such previous version in order to use such upgrade or update. After You install such upgrade or update, You may continue to use any such previous version in accordance with its license agreement only if (a) the upgrade or update and all previous versions are installed on the same device, (b) the previous versions or copies thereof are not transferred to another party or device and (c) You acknowledge that any obligation WAI may have to support the previous version(s) may be terminated upon the availability of the upgrade or update. No other use of the previous version(s) is permitted after installation of an upgrade or update. Upgrades and updates may be licensed to You by WAI with additional or different terms.
The Software or Services may contain technological measures that are designed to prevent its unlicensed or illegal use. The Software or Services may require activation as explained during installation or in the Documentation. If any such applicable activation procedure(s) is not followed, then the Software or Services may only operate for a finite period of time or not operate at all. If activation is required, and not completed as explained during installation or in the Documentation, then the Software or Services will cease to function until activation has been completed, at which time functionality will be restored. If You have any problem with the activation process, You should contact WAI or an authorized vendor.
WAI does not guarantee the accuracy, completeness, timeliness or results provided by the Software or Services. WAI shall have no liability for any error or omission, or for the use of, or the results obtained from the use of the Software. In addition, Users should not rely on nor make decisions or comparisons based solely on the data or results provided by the Software, but should conduct additional independent verification and due diligence.
9. THIRD PARTY SOFTWARE AND SERVICES
Your use of WAI's Software or Services may allow you to download and use third-party software or link to third-party content, data or services (collectively, Third-Party Services). You also acknowledge that all Third-Party Services is the property of the applicable owners and may be protected by copyright and other intellectual property rights. Neither this Agreement nor your use of WAI's Software or Services gives you any rights to such Third Party Services except as expressly provided by the applicable service provider (Service Provider).
You may not use any Third Party Services in any manner that has not been authorized by the applicable Service Provider. It is your responsibility to ensure that your use of the Software or Services to access, reproduce, display or otherwise use Third Party Services does not infringe any third-party intellectual property rights. You acknowledge that you may be required to enter into a separate agreement with a Service Provider for any Third Party Services, or comply with a Service Provider's terms or conditions of use in order to access or have the right to access any Third Party Services.
Specifically, WAI Services may provide you with a link or access to Amazon's online services. You agree that all your End Users will comply with all of the terms and conditions of the AWS Customer Agreement posted at https://aws.amazon.com/agreement/ and any successor or related policy or terms as may be provided or amended from time to time.
No third-party products are covered by any warranty obligation of WAI and are not covered by any maintenance or service provision by WAI. If no such agreement is provided, such products are provided AS-IS. Users shall have recourse only to such Service Provider, not WAI, for all such warranty, service, or support obligations.
WAI's Software may be bundled with third party software, which use and distribution is subject to restrictions as provided in Addendum A hereto (Third Party Licenses).
No third-party software or services are covered by any warranty obligation of WAI and are not covered by any maintenance or service provision by Licensor. If no such agreement is provided, such products are provided "AS-IS". You shall have recourse only to such manufacturer, not Licensor, for all such warranty, service, or support obligations.
10. TERMINATION OF THIS AGREEMENT
Unless you have signed a minimum term arrangement, you may terminate this Agreement for any reason at any time by notifying WAI in one of three ways: (1) send a written notice to WAI's postal address; (2) send an electronic notice to the email address specified on www.wildlifeacoustics.com; or (3) call WAI's customer service department during normal business hours. If you have a minimum term arrangement, you may terminate this Agreement by providing notice of non-renewal at least thirty days prior to the end of the minimum term or any subsequent renewal term.
Subject to applicable laws, all fees and charges for the Services and Software will accrue until this Agreement has terminated, the Services are disconnected, and all data is deleted. We will refund all prepaid monthly service fees charged for Services after the date of termination (less any outstanding amounts due WAI for the Services, affiliate services, or other applicable fees and charges). The foregoing refund does not apply to minimum term arrangements.
WAI reserves the right, subject to applicable law, to immediately and without notice terminate or suspend the Services and/or to remove from the Services any information or data transmitted by or to any authorized users if WAI reasonably believes: (1) payment for Services has not been paid when due; (2) your use of the Service does not conform with the requirements set forth in this Agreement or the terms of any Third Party Services, (3) your use of the Service interferes with WAI's ability to provide the Services to others, or (4) your use of the Service may violate any laws, regulations, or written and electronic instructions for use. WAI's action or inaction under this Section 8 shall not constitute review or approval of your or any other users' use of the Services or information transmitted by or to you or users.
Termination of this Agreement shall not relieve either party of any obligation or liability accrued hereunder prior to such termination, nor affect or impair the rights of either party arising under this Agreement prior to such termination, except as expressly provided herein. Upon termination, you agree to cease using the Software and Services and delete or uninstall the Software and all copies thereof.
11. DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY PROVIDED BY WAI, THE SERVICES AND SOFTWARE ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER WAI NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS WARRANT THAT THE SOFTWARE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.
12. LIMITATION OF LIABILITY
NEITHER WAI NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS, ANY OTHER HARMFUL FEATURE, OR FROM ANY ATTEMPT TO REMOVE IT.
YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM PRIOR TO SUCH ACTIVITIES. YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP FILES. NEITHER WAI NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE, FILES, OR DATA.
EXCEPT AS SPECIFICALLY PROVIDED BY WAI, NEITHER WAI NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT OR CONTRACT) HAVE ANY LIABILITY TO THE CUSTOMER OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS:
(1) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES, OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH (a) YOUR RELIANCE ON OR USE OF THE SERVICES OR SOFTWARE; OR (b) THE INSTALLATION, MAINTENANCE, FAILURE, OR REMOVAL OF THE SOFTWARE OR SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE SERVICE, THE SOFTWARE, OR THE CUSTOMER DEVICES, OR ANY OTHER MISTAKES, OMISSIONS, LOSS OF CALL DETAIL, EMAIL, VOICEMAIL, OR OTHER INFORMATION OR DATA); OR
(2) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE SOFTWARE OR SERVICES BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU ACKNOWLEDGE AND UNDERSTAND THAT WE MAY USE THIRD PARTIES TO PROVIDE COMPONENTS OF THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR SERVICES, EQUIPMENT, INFRASTRUCTURE, OR CONTENT. WAI IS NOT RESPONSIBLE FOR THE PERFORMANCE (OR NON-PERFORMANCE) OF THIRD-PARTY SERVICES, EQUIPMENT, INFRASTRUCTURE, OR CONTENT, WHETHER OR NOT THEY CONSTITUTE COMPONENTS OF WAI'S SERVICES OR SOFTWARE. WAI SHALL NOT BE BOUND BY ANY UNDERTAKING, REPRESENTATION OR WARRANTY MADE BY AN AGENT, OR EMPLOYEE OF WAI OR OF OUR UNDERLYING THIRD-PARTY PROVIDERS AND SUPPLIERS IN CONNECTION WITH THE INSTALLATION, MAINTENANCE, OR PROVISION OF THE SERVICES OR SOFTWARE, IF THAT UNDERTAKING, REPRESENTATION, OR WARRANTY IS INCONSISTENT WITH THE TERMS OF THIS AGREEMENT.
ALL REPRESENTATIONS, WARRANTIES, INDEMNIFICATIONS, AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT; AND ANY OTHER OBLIGATIONS OF THE PARTIES HEREUNDER SHALL ALSO SURVIVE, IF THEY RELATE TO THE PERIOD BEFORE TERMINATION OR IF, BY THEIR TERMS, THEY WOULD BE EXPECTED TO SURVIVE SUCH TERMINATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL WAI'S LIABILITY EXCEED THE AMOUNT OF FEES PAID UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE EVENTS GIVING RISE TO A CLAIM OR, IF LESS, $100 (WHETHER SUCH LIABILITY ARISES FROM BREACH OF WARRANTY, BREACH OF THIS AGREEMENT, OR OTHERWISE, AND WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY). IN NO EVENT MAY ANY ACTION BE BROUGHT AGAINST WAI ARISING OUT OF THIS AGREEMENT MORE THAN ONE YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES, DETERMINED WITHOUT REGARD TO WHEN YOU LEARNED OF THE ALLEGED DEFECT, INJURY, OR LOSS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS SECTION 10 WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS WAI AND ITS EMPLOYEES, AFFILIATES, SUPPLIERS, AGENTS AND CONTRACTORS AND SHALL REIMBURSE US FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND COSTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, AND CAUSES OF ACTION ARISING OUT OF (a) YOUR USE OF THE SERVICES OR SOFTWARE; (b) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM YOUR USE OF THE SERVICE OR ANY UNAUTHORIZED APPARATUS OR SYSTEM; AND (c) YOUR BREACH OF ANY PROVISION OF THIS AGREEMENT.
a. Entire Agreement. This Agreement and any other documents incorporated by reference constitute the entire agreement and understanding between you and WAI with respect to the subject matter of this Agreement, and replace any and all prior written or verbal agreements. If any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect.
b. Modification and Waiver. Any modification, amendment, supplement, or other change to this Agreement must be in writing and signed by a duly authorized representative of WAI and You. All waivers must be in writing. The failure of WAI to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, shall not be deemed to be a waiver of the future performance or exercise of such provision or right, and no waiver of any provision or right shall affect the right of the waiving party to enforce any other provision or right herein.
c. WAI's Information and Trademarks. All Service information, documents, and materials on our websites are protected by copyright or trademark, other intellectual property laws, and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively Trademarks) of WAI and its affiliates are and shall remain the exclusive property of WAI. Nothing in this Agreement shall grant you the right or license to use any Trademarks.
d. Retention of Rights. Nothing contained in this Agreement shall be construed to limit WAI's rights and remedies available at law or in equity. Upon termination of this Agreement for any reason, WAI and its suppliers reserve the right to delete all your data, files, electronic messages or other Customer information that is stored on WAI's or its suppliers' servers or systems. In the event you cancel the Services without downloading or porting your data to another server, we shall have no liability whatsoever as the result of the loss of any such data.
e. Remedies. The parties agree that any breach of this Agreement would cause irreparable injury for which no adequate remedy at law exists; therefore, the parties agree that equitable remedies, including without limitation, injunctive relief and specific performance, are appropriate remedies to redress any breach or threatened breach of this Agreement, in addition to other remedies available to the parties. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently, and shall not be deemed exclusive except as otherwise provided. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive. You hereby waive any right or claim to which You may be entitled to immunity or exemption from liability.
f. Force Majeure. Neither party will be responsible for any failure to fulfill its obligations due to causes beyond its reasonable control, including without limitation, acts or omissions of government or military authority, acts of God, materials shortages, transportation delays, fires, floods, labor disturbances, riots, wars, or inability to obtain any export or import license or other approval of authorization of any government authority.
g. Notices. You agree that Wildlife Acoustics may provide you with notices, including those regarding changes to this Agreement. We will provide you notice of changes to this Agreement consistent with applicable law. If you find the change unacceptable, you have the right to use of the Software or cancel the Services. However, if you continue to use the Software or Services after the change, we will consider this your acceptance of the change. WAI may deliver any required or desired notice to you in any of the following ways, as determined in our sole discretion: (1) by posting it on www.wildlifeacoustics.com or another website about which you have been notified, (2) by sending notice via first class U.S. postal mail or overnight mail to the postal address on WAI's account records; (3) by sending notice to the email address on WAI's account records, or (4) by hand delivery. You agree that any one of the foregoing will constitute sufficient notice and you waive any claims that these forms of notice are insufficient or ineffective. Because we may from time to time notify you about important information regarding the Services and this Agreement by these methods, you agree to regularly check your postal mail, email and all postings at www.wildlifeacoustics.com or on another website about which you have been notified or you bear the risk of failing to do so. Notices to WAI shall be addressed as follows: Wildlife Acoustics, Inc., 3 Mill and Main Place, Suite 210, Maynard, MA 01754-2657.
h. Language; Governing Law; Currency. This Agreement shall be signed by the parties in the English language. In the event of any translation, the English language version as signed by the parties shall be determinative. The validity, performance and construction of this Agreement shall be governed by the law of the Commonwealth of Massachusetts, USA applicable to contracts executed in and performed entirely within such Commonwealth, without reference to any choice of law principles of such Commonwealth. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be commenced in a federal or state court in Massachusetts, and each party hereto irrevocably submits to the non-exclusive jurisdiction and venue of any such court in any such suit, action, or proceeding. The application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. All amounts of money payable hereunder shall be payable in U.S. dollars unless otherwise expressly stated or otherwise agreed.
i. U.S. Government Rights. The Software is provided with restricted rights. Use, duplication, or disclosure by the U.S. government is subject to restrictions as set forth in subparagraph (b)(3)(i) of The Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. The manufacturer is Wildlife Acoustics, Inc., 3 Mill and Main Place, Suite 210 Maynard, MA 01754-2657. If you are a branch or agency of the U.S. Government, then you acknowledge that the Software is a commercial item as that term is defined at 48 C.F.R. 2.101, consisting of commercial computer software and commercial computer software documentation as such terms are used in 48 C.F.R. 12.212. Any technical data provided with the Software is commercial technical data as defined in 48 C.F.R. 12.211. Consistent with 48 C.F.R. 12.211 through 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, and 48 C.F.R. 252.227-7015, all U.S. Government end users acquire the Software with only the rights set forth in this Agreement.
j. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives and successors and assigns of the parties hereto. Notwithstanding the foregoing statement, this Agreement and the rights and obligations of the parties hereunder shall not be assignable by You without prior written consent of WAI. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Wildlife Acoustics in any respect whatsoever.
k. Export Control. You shall not export or allow the export or re-export of the Software or any portions thereof without compliance with all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including without limitation, the Export Administration Regulations of the U.S. Department of Commerce, Bureau of Export Administration, and, if applicable, relevant foreign laws and regulations
l. Survival of Terms. The provisions of paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 (and any other provision which so indicates) as well as the introductory paragraphs shall survive termination of this Agreement.
THIRD PARTY LICENSES
WAI's Software may be bundled with any of the following Open Source Software. The source code and licenses for these software components can be found at the links below:
libcurl version 7.53.1
Copyright © 1996 - 2017, Daniel Stenberg,
libfftw version 3.3
Copyright © 2003, 2007-11 Matteo Frigo
Copyright © 2003, 2007-11 Massachusetts Institute of Technology
(Wildlife Acoustics has a commercial license from M.I.T.)
libxml2 version 2.9.4
Copyright © 1998-2012 Daniel Veillard. All Rights Reserved.
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is fur- nished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
mbedtls version 2.4.0
Copyright © 2006-2015, ARM Limited.
Licensed under the Apache License, Version 2.0 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at http://www.apache.org/licenses/LICENSE-2.0
md5c (RSA Data Security, Inc. MD5 Message-Digest Algorithm)
Copyright © 1991-2, RSA Data Security, Inc.
wxWidgets version 3.0.2
Copyright © 1998-2005 Julian Smart, Robert Roebling et al
END OF TERMS AND CONDITIONS