Legalese
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY CLICKING ON THE "I ACCEPT TO THE AVIARY TERMS OF USE" CHECKBOX ANYWHERE ON THE WWW.AVIARYEDUCATION.COM WEBSITE, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK ON THE "I ACCEPT TO THE AVIARY TERMS OF USE" CHECKBOX AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES. AVIARY’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY AVIARY, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
The purpose of this website, www.aviaryeducation.com (the “Site”), owned and operated by Aviary, Inc. (“Aviary” or “we”), a Delaware corporation, is to provide Aviary’s collaborative artwork creation services (the “Services”) to educators and educational institutions for use in the classroom. Each educator or educational institution (“Educator”) that desires to use the Services in his/her classroom must register for an account and must agree to the terms herein. The Site is accessed by Educator under the following terms and conditions:
1. ACCESS TO THE SERVICES. Subject to the terms and conditions of this Agreement, Aviary may offer to provide the Services, as described more fully on the Site, and which are selected by Educator, solely for your Educator’s use in Educator’s classroom, and not for the use or benefit of any third party. Services shall include, but not be limited to, any services Aviary performs for Educator, as well as the offering of any content on the Site. Aviary may change, suspend or discontinue the Services at any time, including the availability of any feature, tool, database, or content. Aviary may also impose limits on certain features and services or restrict Educator’s access to parts or all of the Services without notice or liability. Aviary reserves the right, at its discretion, to modify these Terms and Conditions at any time by posting a notice on the Site, or by sending Educator a notice via e-mail. Educator shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Services following such notification constitutes Educator’s acceptance of the terms and conditions of this Agreement as modified.
Educator may permit students in Educator’s class (“Students”) to access the Services via sub-accounts to Educator’s accounts. Educator must inform Students not to provide any personally identifying information (e.g., full name, address and e-mail address) in connection with such sub-accounts. Educator must also inform Students about the restrictions and obligations set forth in this Agreement.
Educator certifies to Aviary that if Educator is an individual (i.e., not an educational institution) Educator is (a) of legal age to form a binding contract with Aviary and (b) not barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.
In any case the Site and Services are not intended for children under 13 without the written consent of a parent or legal guardian and constant supervision of the Educator. If Educator does not receive written consent of a parent or legal guardian for a Student to use the Site, Educator shall not permit such permit such Student to do so. Educator certifies that he/she is legally permitted to use the Services and access the Site, and Educator takes full responsibility for the selection and use of the Services and access of the Site. This Agreement is void where prohibited by law, and the right to access the Site is revoked in such jurisdictions. Aviary makes no claim that the Site may be lawfully viewed or that content may be downloaded outside of the United States. Access to the Content (as defined herein) may not be legal by certain persons or in certain countries. Access to the Site from outside the United States is done at Educator’s own risk and Educator is responsible for compliance with the laws of your jurisdiction.
Aviary will use reasonable efforts to ensure that the Site and Services are available twenty-four hours a day, seven days a week. However, there will be occasions when the Site and/or Services will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Every reasonable step will be taken by Aviary to minimize such disruption where it is within Aviary’s reasonable control. EDUCATOR AGREES THAT NEITHER AVIARY NOR THE SITE WILL BE LIABLE IN ANY EVENT TO EDUCATOR OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE SITE, THE SERVICES, YOUR USER CONTENT (AS DEFINED HEREIN) OR OTHER CONTENT. Aviary retains the right to create limits on use in its sole discretion at any time with or without notice.
Educator shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Site or otherwise use the Services, including, without limitation, modems, hardware, software, and long distance or local telephone service. Educator shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services.
2. SITE CONTENT. The Site and its contents are intended solely for the use of Educators and their Students (each a, “User”) and may only be used in accordance with the terms of this Agreement. All materials displayed or performed on the Site, other than content developed or posted by Users (“User Content”) including, but not limited to text, graphics, logos, tools, photographs, images, illustrations, audio and video, and animations (“Content”) are the property of Aviary and/or its licensors (“Aviary Content”) and are protected by United States and international copyright laws. As between Users and Aviary, however, the applicable User shall own and retain sole and exclusive right, title and interest in and to all of its applicable User Content. The Services may enable Users in a classroom to develop derivative works based on Aviary Content or User Content of another User in the same classroom. In the event Users use the Services to develop a derivative work of Aviary Content or another User’s User Content with that User’s permission, as between the User that develops the derivative work and the owner of the original work, the User that develops the derivative work own and retain sole and exclusive right, title and interest in and to such User’s derivative work, and the owner of the original work retains the sole and exclusive right, title and interest in and to the original work. All trademarks, service marks, and trade names which appear on the Site (other than those appearing in any User Content) are proprietary to Aviary and/or its licensors. Educator shall, and shall ensure that Students, abide by all copyright notices, information, and restrictions contained in any Content accessed through the Services.
Educator shall ensure that all User Content created by his/her Students is only saved locally on the computer network at the Educator’s educational institution behind an industry standard firewall and is not made available on the internet.
The Site is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. Except to the extent the relevant Content is subject to the terms of a Creative Commons License, except as expressly provided in this Agreement, Users may not copy, modify, publish, transmit, upload, distribute, perform, display, or create derivative works based on, any of the Aviary Content, software, materials, or Services in whole or in part. Reuse of all Content licensed by Aviary under the terms of a Creative Commons License must be done in accordance with the terms of that license.
Users may download or copy the Aviary Content, and other items displayed on the Site for download, for personal, educational, noncommercial use only, provided that the User maintains all copyright and other notices contained in such Aviary Content. Downloading, copying, or storing any Aviary Content for other than personal, educational, noncommercial use is expressly prohibited without prior written permission from Aviary, or from the copyright holder identified in such Aviary Content's copyright notice. In the event Educator downloads software from the Site, the software, including any files, images incorporated in or generated by the software, and the data accompanying the software (collectively, the “Software”) is licensed to Educator by Aviary or third party licensors for Educator’s educational use, and no title to the Software shall be transferred to Educator. Aviary or third party licensors retain full and complete title to the Software and all intellectual property rights therein.
Educator represents, warrants and agrees that Educator will not contribute, and will ensure that Students do not use with the Services, any User Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party, (b) reveals any trade secret, unless you own the trade secret or have the owner’s permission to post it, (c) infringes any intellectual property right of another or on the privacy or publicity rights of another, (d) is libelous, defamatory, obscene, pornographic, abusive, indecent, threatening, harassing, hateful, offensive or otherwise violates any law or right of any third party, (e) contains a virus, trojan horse, worm, time bomb or other computer programming routine or engine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, or (f) remains posted after you have been notified that such User Content violates any of sections (a) to (e) of this sentence.
Aviary reserves the right to remove any User Content from the Site, suspend or terminate Educator’s right to use the Services at any time at its discretion, or pursue any other remedy or relief available to Aviary and/or the Site under equity or law for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content or if Aviary is concerned that Educator, or one or more of its Students, may have breached the immediately preceding sentence). Educator is responsible for all Content posted or developed under Educator’s account, including Content contributed by a Student whom Educator has authorized to post Content (whether in the form of artwork, comments to a forum, or any other form).
Any comments, suggestions, or feedback relating to the Site or the Services (collectively “Feedback”) submitted to Aviary shall become the property of Aviary or its designee. We will not be required to treat any Feedback as confidential, and will not be liable for any ideas (including without limitation, product, Site or advertising ideas) and will not incur any liability as a result of any similarities that may appear in our future Site, Services, or operations. Without limitation, we will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere. We will be entitled to use the Feedback for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Feedback. Educator acknowledges that it is responsible for whatever material Educator or its Students submit, and Educator, not us, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.
3. RESTRICTIONS. Educator is responsible for all of its and its Students’ activity in connection with the Services and accessing the Site. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of Educator’s right to the Services or to access the Site. Educator may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Aviary user.
Use of the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that are deemed threatening or obscene, or engage in any kind of illegal activity is expressly prohibited. Under no circumstances will Educator use, or permit Students to use, the Site or the Service to (a) send unsolicited e-mails, bulk mail, spam or other materials to users of the Site or any other individual, (b) harass, threaten, stalk or abuse any person or party, including other users of the Site, (c) create a false identity or to impersonate another person, or (d) post any false, inaccurate or incomplete material or delete or revise any material that was not posted by you or others you have authorized to post Content under your account.
4. WARRANTY DISCLAIMER. Aviary has no special relationship with or fiduciary duty to Educator. Educator acknowledges that Aviary has no control over, and no duty to take any action regarding: which Content Educator accesses via the Site; what effects the Content (including any Content which is a derivative work of a User’s User Content the creation of which Educator authorized) may have on Users; how Users may interpret or use the Content; or what actions Users may take as a result of having been exposed to the Content. Much of the Content of the Site is provided by and is the responsibility of the User who posted the Content. Aviary does not monitor the Content of the Site and takes no responsibility for such Content. Educator releases Aviary from all liability for Users having acquired or not acquired Content through the Site. Aviary makes no representations concerning any content contained in or accessed through the Site, and Aviary will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site.
THE SERVICES, CONTENT, SITE AND ANY SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. AVIARY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SITE, THE SERVICES, INCLUDING ANY REPRESENTATION OR WARRANTY THAT THE USE OF THE SITE OR SERVICES WILL (A) BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) BE FREE FROM ERRORS OR THAT DEFECTS WILL BE CORRECTED, (D) BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
TO THE FULLEST EXTENT ALLOWED BY LAW, AVIARY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, RELIABILITY, AVAILABILITY, COMPLETENESS, LEGALITY OR OPERABILITY OF THE MATERIAL OR SERVICES PROVIDED ON THIS SITE. BY USING THIS SITE, YOU ACKNOWLEDGE THAT AVIARY IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM RESULTING FROM (1) USE OF THE SITE; (2) DOWNLOADING INFORMATION CONTAINED ON THE SITE INCLUDING BUT NOT LIMITED TO DOWNLOADS OF CONTENT POSTED BY USERS WITHOUT PAYMENT IN VIOLATION OF THESE TERMS AND CONDITIONS; (3) UNAUTHORIZED DISCLOSURE OF IMAGES, INFORMATION OR DATA THAT RESULTS FROM THE UPLOAD, DOWNLOAD OR STORAGE OF CONTENT POSTED BY USERS; (4) THE TEMPORARY OR PERMANENT INABILITY TO ACCESS OR RETRIEVE ANY USER CONTENT FROM THE SITE, INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES, WORMS, TROJAN HORSES, OR ANY SIMILAR CONTAMINATION OR DESTRUCTIVE PROGRAM; (5) CONTENT POSTED IN ANY FORUM OR COMMUNITY AREA OF THE SITE; AND (6) UNAUTHORIZED DISCLOSURE OF IMAGES, INFORMATION OR DATA THAT RESULTS FROM THE UPLOAD, DOWNLOAD OR STORAGE OF POSTED CONTENT.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
5. REGISTRATION AND SECURITY. As a condition to using Services, Educator will be required to register with Aviary and select a username and password. Educator shall provide Aviary with accurate, complete, and updated registration information, including Educator’s e-mail address. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of Educator’s account. Educator may not (a) select or use as a username a name of another person with the intent to impersonate that person; or (b) use as a username a name subject to any rights of a person other than you without appropriate authorization. Educator shall be responsible for maintaining the confidentiality of Educator’s Services password. Educator is solely responsible for any use of or action taken under Educator’s account and accept full responsibility for all activity conducted through your account and agree to and hereby release the Site and Aviary from any and all liability concerning such activity. Educator agrees to notify Aviary immediately of any actual or suspected loss, theft, or unauthorized use of Educator’s account or password. The Site will take reasonably security precautions when using the internet, telephone or other means to transport date or other communications, but expressly disclaims any and all liability for the accessing of any such data communications by unauthorized persons or entities. For clarity, registering for an Aviary Education account does not grant Educator or its students access to any other Aviary site or services, which are subject to their own respective terms and conditions.
6. INDEMNITY. Educator will indemnify and hold Aviary, its directors, officers and employees (the “Aviary Indemnified Parties”), harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services, Educator violation of this Agreement, or the infringement by Educator, its Students, or any third party using Educator’s account, of any intellectual property or other right of any person or entity.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL AVIARY, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES OR MEMBERS BE LIABLE WITH RESPECT TO THE SITE OR THE SERVICES FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, USER CONTENT OR OTHER INTANGIBLES; (C) DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF THE SITE, ERRORS OR OMISSIONS; OR (D) DAMAGES RELATED TO DOWNLOADING OR POSTING CONTENT. AVIARY’S AND THE SITE'S COLLECTIVE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THREE HUNDRED UNITED STATES DOLLARS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO EDUCATOR.
8. MEMBERSHIP LEVELS AND PAYMENT. Use of the Service is currently provided at no charge. Aviary reserves the right to institute new membership plans and levels, including paid plans in the future at its sole discretion, with reasonable notice.
9. TERMINATION. Either party may terminate the Services at any time by notifying the other party by any means. Aviary may also terminate or suspend any and all Services and access to the Site immediately, without prior notice or liability, if Educator breaches any of the terms or conditions of this Agreement. Upon termination of Educator’s account, Educator’s right to use the Services, and access the Site and any Content will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Site and the Services shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability which you otherwise may have to Aviary or the Site, including without limitation any indemnification obligations contained herein.
10. PRIVACY. Please review our Privacy Policy, which governs the use of personal information on the Site and to which you agree to be bound as a user of the Site.
11. MISCELLANEOUS. This Agreement (including the Privacy Policy), as modified from time to time, constitutes the entire agreement between you, the Site and Aviary with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Aviary shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Aviary’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Educator except with Aviary’s prior written consent. Aviary may assign this Agreement in whole or in part at any time without your consent.
This Agreement shall be governed by and construed in accordance with the laws of the state of New York without regard to the conflict of laws provisions thereof. 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 Aviary in any respect whatsoever. Any notice to the Site that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by confirmed e-mail to support@aviary.com or when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to Aviary, Inc., 243 W 30th St, New York NY 10001, Attn: Legal Dept.