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 A.VIARY.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, a.viary.com (the “Site”), owned and operated by Aviary, Inc. (“Aviary” or “we”), a Delaware corporation, is to provide collaborative artwork creation services and a platform for users to buy and sell artwork created through use of the Site (the “Services”). The Site is intended for persons and entities wishing to legally view, develop, market and acquire certain rights in and to artwork created using and offered through the Site. The Site is accessed by you (“User” or “you”) 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 you, solely for your own use, and not for the use or benefit of any third party. Services shall include, but not be limited to, any services Aviary performs for you, 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 your 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 (including, without limitation, changing the amount of the monthly subscription fees charged for Premium Memberships as described in Section 9 below) at any time by posting a notice on the Site, or by sending you a notice via e-mail. You shall be responsible for reviewing and becoming familiar with any such modifications.

Your use of the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified. You certify to Aviary that if you are an individual (i.e., not a corporate entity) you are (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. If you are under eighteen (18) years old, you may use the Site only with the consent and under the supervision of a parent or legal guardian.

In any case the Site is not intended for children under 13 without the constant supervision of a parent or legal guardian. If you are under 13 years of age and not under the constant supervision of a parent or legal guardian, then please do not use the Site. You certify that you are legally permitted to use the Services and access the Site, and you or your legal guardian take 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. If you access the Site from outside the United States, you do so at your own risk and you are 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. YOU AGREE THAT NEITHER AVIARY NOR THE SITE WILL BE LIABLE IN ANY EVENT TO YOU 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 and storage in its sole discretion at any time with or without notice.

You 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. You 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 Aviary Users 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 User (“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 third parties and are protected by United States and international copyright laws. As between you and Aviary, however, you own and retain sole and exclusive right, title and interest in and to all of your User Content (subject only to the limited license therein granted to Aviary under this Section 2). The Services may enable Users to develop derivative works based on other Users’ Content. In the event you use the Services to develop a derivative work of another User’s Content with that User’s permission, as between you and the User who developed the original work, you own and retain sole and exclusive right, title and interest in and to your derivative work, and the User who developed the original work retains the sole and exclusive right, title and interest in and to the original work. In the event you permit other Users to use the Services to develop derivative works based on your User Content, as between you and the User who developed the derivative work, you own and retain sole and exclusive right, title and interest in and to your original work, and the User who developed the derivative work retains the sole and exclusive right, title and interest in and to the derivative 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 third parties. You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Services.

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 Creative Commons license (as described below), you may not copy, modify, publish, transmit, upload, distribute, perform, display, or except as expressly provided in this Agreement, participate in the transfer or sale of, reproduce, or create derivative works based on, any of the Content, software, materials, or Services in whole or in part.

Notwithstanding the foregoing, certain of the Content made available on the Site, which may include User Content and/or Content owned by Aviary, is licensed to you under the terms of a Creative Commons License.

Except in the event that you purchase rights to Content displayed for sale on the Site (as described in Section 10 below), you may download or copy the Content, and other items displayed on the Site for download, for personal, noncommercial use only, provided that you maintain all copyright and other notices contained in such Content. Downloading, copying, or storing any Content for other than personal, noncommercial use is expressly prohibited without prior written permission from Aviary, or from the copyright holder identified in such Content's copyright notice. In the event you download 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 you by Aviary or third party licensors for your personal use, and no title to the Software shall be transferred to you. Aviary or third party licensors retain full and complete title to the Software and all intellectual property rights therein.

You acknowledge and agree that if you use any of the Services to contribute User Content to the Site in such manner as to make it available to all users or to permit third parties to contribute Content through your User account, Aviary will have a non-exclusive, worldwide, royalty-free, transferable, sublicensable (including, without limitation, by means of a Creative Commons License) right, under all of your intellectual property rights, to copy, cache, publish, display, perform, distribute, translate and store such User Content, and to allow third parties to do so in connection with the marketing or promotion of Aviary, the Site or the Services by such third parties. To the extent allowed by law, the foregoing includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “Moral Rights.” To the extent you retain any such Moral Rights under applicable law, you hereby ratify and consent to any action that may be taken with respect to such moral rights by Aviary and agree not to assert any Moral Rights with respect thereto. You warrant, represent and agree that you have the right to grant Aviary and the Site the rights set forth above. You represent, warrant and agree that you will not contribute 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 your 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 you may have breached the immediately preceding sentence ). You are responsible for all Content posted or developed under your username, including Content contributed by a third party whom you have authorized to post Content under your username (whether in the form of artwork, comments to a forum, or any other form). If you believe User Content residing on the Site infringes a copyright, please see our Copyright Policy . You agree that you will reuse all Content (other than any User Content which you have created) licensed by Aviary under the terms of a Creative Commons License in accordance with the terms of that license. To satisfy our attribution requirements, you should include a direct link back to a.viary.com and follow the attribution requirements set out in a.viary.com/faq.

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. You acknowledge that you are responsible for whatever material you submit, and you, not us, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.

3. RESTRICTIONS. You are responsible for all of your activity in connection with the Services and accessing the Site. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to the Services or to access the Site. You 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 you 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 you. You acknowledge that Aviary has no control over, and no duty to take any action regarding: which Users gain access to the Site; which Content you access via the Site; what effects the Content (including any Content which is a derivative work of your User Content the creation of which you authorized) may have on you; how you may interpret or use the Content; or what actions you 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. You release Aviary from all liability for your having acquired or not acquired Content through the Site. The Site may contain, or direct you to sites containing, information that some people may find offensive or inappropriate. 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.

ALTHOUGH AVIARY AND THE SITE WILL MAKE REASONABLE EFFORTS TO STORE AND PRESERVE THE MATERIAL RESIDING ON THE SITE, NEITHER AVIARY NOR THE SITE IS RESPONSIBLE OR LIABLE IN ANY WAY FOR THE FAILURE TO STORE, PRESERVE OR ACCESS CONTENT OR OTHER MATERIALS YOU TRANSMIT OR ARCHIVE ON 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. THIRD PARTY WEBSITES. Users of the Site may gain access from the Site to third party sites on the Internet through hypertext or other computer links on the Site. Third party sites are not within the supervision or control of Aviary or the Site. Unless explicitly otherwise provided, neither Aviary nor the Site make any representation or warranty whatsoever about any third party site that is linked to the Site, or endorse the products or services offered on such site. Aviary and the Site disclaim: (a) all responsibility and liability for content on third party websites and (b) any representations or warranties as to (i) the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and (ii) the functionality of third party sites if you export User Content onto them. You hereby irrevocably waive any claim against the Site or Aviary with respect to such sites and third party content.

6. REGISTRATION AND SECURITY. As a condition to using Services, you will be required to register with Aviary and select a username and password. You shall provide Aviary with accurate, complete, and updated registration information, including your e-mail address. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You 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. You shall be responsible for maintaining the confidentiality of your Aviary password. You are solely responsible for any use of or action taken under your password 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. You agree to notify Aviary immediately of any actual or suspected loss, theft, or unauthorized use of your 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.

7. INDEMNITY. You 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, your violation of this Agreement, or the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity.

8. 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 USER.

9. 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.

10. SALE OF USER CONTENT. As a Premium Member, you may elect to offer a portion or all of your User Content (your "Offered Content") for sale to other Users. The Billing Services supported by the Site may be changed from time to time at the sole discretion of the Site, upon prior notice to you. All sales of User Content made by you using the Services of the Site shall be subject to a percentage fee of the gross sale amount. The percentage fee will be posted at such time as a section of Aviary’s website dedicated for sales between Users becomes publically accessible. Aviary prohibits the use of Contributor and Subscriber contact information obtained from the Site to complete transactions outside of the Site.

With respect to each work contained in your Offered Content you will need to select from a list provided by the Site the price for such work. YOU HEREBY ACKNOWLEDGE AND AGREE THAT ANY PURCHASE OR SALE MADE OVER THE SITE WILL BE BETWEEN YOU AND THE PURCHASER OF SUCH OFFERED CONTENT AND THEREFORE NEITHER THE SITE NOR AVIARY WILL BE A PARTY TO ANY SUCH TRANSACTION AND YOU HEREBY AGREE TO INDEMNIFY THE SITE AND THE INDEMNIFIED AVIARY PARTIES AGAINST ANY COST, EXPENSE OR LOSS ASSOCIATED WITH SUCH TRANSACTION.

In the event that you wish to purchase rights to Offered Content displayed on the Site for sale by other Users, you will have to register with the Site and, by the time of purchase, provide valid credit card information. As a condition to acquiring any rights in any of the Offered Content, you hereby agree and acknowledge as follows: (i) any transaction that occurs with respect to the Offered Content is solely between you and the User posting such Offered Content, and (ii) neither the Site nor Aviary make any representations or warranties with respect to the ownership, copyright, trademark, infringement or other intellectual property rights associated with the Offered Content; and You hereby agree to indemnify the Aviary Indemnified Parties against any cost, expense or other loss incurred by the Aviary Indemnified Parties with respect to any claim of a third party that your use of the Offered Content violates their intellectual property rights.

If you purchase rights to any Offered Content from the Site, you hereby authorize Aviary to reveal to the User offering the Content and/or a Billing Service such portion of your registration information as is necessary or desirable to consummate such purchase. You hereby agree to indemnify the Aviary Indemnified Parties against any cost, expense or other loss incurred by the Aviary Indemnified Parties in connection with revealing such information; provided however you will have no obligation to indemnify the Aviary Indemnified Parties if such cost, expense or loss is a direct result of Aviary’s gross negligence.

11. 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 you breach any of the terms or conditions of this Agreement. Upon termination of your account, your 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.

12. 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.

13. 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 you 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@a.viary.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., 1135 Railroad Ave, Hewlett, NY 11557, Attn: Legal Dept.