These Terms of Service govern your access to and use of Birdsend.com's website (the “Site”), any information, text, graphics, or other materials created and/or provided by Birdsend.com and appearing on the Site (the “Content”), and any services provided through the Site or by Birdsend.com (the “Services”). These Terms of Service limit Birdsend.com's liability and obligations to you, grant Birdsend.com certain rights and allow Birdsend.com to change, suspend or terminate your access to and use of the Site, Content, and Services. Your access to and use of the Site, Content, and Services are expressly conditioned on your compliance with these Terms of Service. By accessing or using the Site, Content, and Services you agree to be bound by these Terms of Service.

YOU UNDERSTAND THAT BY USING THE SITE, CONTENT, AND SERVICES YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE, CONTENT, OR SERVICES. If you agree to these Terms of Service on behalf of a business, you represent and warrant that you have the authority to bind that business to these Terms of Service and your agreement to these terms will be treated as the agreement of the business. In that event, “you ” and “your” will refer and apply to that business.

Privacy

See Birdsend.com's Privacy Policy for information and notices concerning Birdsend.com's collection and use of your personal information.

Birdsend.com Property, Feedback, and Comments

 All right, title, and interest in and to the Site, Content, and Services are and will remain the exclusive property of Birdsend.com and its licensors, including all Intellectual Property Rights (as defined below) therein, even if Birdsend.com incorporates any of your Feedback (as defined below) into subsequent versions. The Site, Content, and Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Except as expressly permitted in these Terms of Service, you may not reproduce, modify or prepare derivative works based upon, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Site, Content, or Services. You may not copy or modify the HTML or other code used to generate web pages on the Site.

All feedback, comments, and suggestions for improvements (the “Feedback”) that you provide to Birdsend.com, in any form, and any contributions you make to the Site by posting content and communicating with other Birdsend.com users via posts including, but not limited to blog comments, and Bird Watching comments, on the site (“User Posts”) will be the sole and exclusive property of Birdsend.com. You hereby irrevocably transfer and assign to Birdsend.com and agree to irrevocably assign and transfer to Birdsend.com all of your right, title, and interest in and to all of your Feedback and User Posts, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, the “Intellectual Property Rights”) therein. At Birdsend.com's request and expense, you will execute documents and take such further acts as Birdsend.com may reasonably request to assist Birdsend.com in acquiring, perfecting and maintaining its Intellectual Property Rights and other legal protections for your Feedback and User Posts. You will not earn or acquire any rights or licenses in the Site, Content, and Services or in any Birdsend.com Intellectual Property Rights on account of these Terms of Service or your performance under these Terms of Service.

General Prohibitions

You agree not to do any of the following while using the Site, Content, Files or Services:

• Post, publish or transmit any text, graphics, or material that: (1) invades another's privacy; (2)  promotes bigotry, or racism; (3) infringes another's rights, including any intellectual property rights; or (4) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
• Access, tamper with, or use non-public areas of the Site (including but not limited to folders, files, and sections of the site that you have not been given permission to access), Birdsend.com's computer systems, or the technical delivery systems of Birdsend.com's providers;
• Attempt to probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;
• Attempt to access or search the Site, Content, Files or Services with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by Birdsend.com or other generally available third-party web browsers (such as Microsoft Internet Explorer or Mozilla Firefox), including but not limited to browser automation tools;
• Send unsolicited email, junk mail, “spam,” or chain letters, or promotions or advertisements for Birdsend.com products or services; claiming to be affiliated, or acting as a representative of Birdsend.com.
  
• Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Content, Files or Services to send altered, deceptive or false source-identifying information;
• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Content, Files or Services;
• Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site; or plant malware on Birdsend.com's computer system, those systems of Birdsend.com's providers, or otherwise use the Site, Content, Files or Services to attempt to distribute malware; or
• Impersonate or misrepresent your affiliation with any person or entity.

Birdsend.com will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Site security issues, to the fullest extent of the law. Birdsend.com may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that Birdsend.com has no obligation to monitor any user's access to or use of the Site, Content, Files and Services, but has the right to do so for the purpose of operating the Site and the Services, to ensure users' compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.

Digital Millennium Copyright Act Compliance

You will only upload, post, submit or otherwise transmit data and/or files: (1) that you have the lawful right to use, copy, distribute, transmit, or display; or (2) that does not infringe the intellectual property rights or violate the privacy rights of any third party (including, without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity). Birdsend.com has adopted and implemented a policy that permits the deletion of pictures or video uploaded to our comment sytem that violate this policy of users who infringe or are believed to be infringing the rights of copyright holders.

Links

The Site may contain links to third-party websites or resources. You acknowledge and agree that Birdsend.com is not responsible or liable for: (1) the availability or accuracy of such websites or resources; or (2) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Birdsend.com of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

Use of the Site at Your Own Risk

Your access to and use of the Site, Content, and Services is at your own risk. Birdsend.com will have no responsibility for any harm to your computer system, loss or corruption of data, loss of job, diciplinary action, marriage problems, becoming unfriended on Facebook, creating enimies with your co-workers, or other harm that results from your access to or use of the Site, Content, and Services.

Birdsend.com is available "AS-IS"

THE SITE, CONTENT, AND SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, BIRDSEND.COM EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. YOU ACKNOWLEDGE THAT USE OF THE SITE, CONTENT, AND SERVICES MAY RESULT IN UNEXPECTED RESULTS, TO INCLUDE MAIL BECOMING DAMAGED OR LOST, THE SITE MAY PRODUCE AN ERROR WHILE YOU ARE VISTING OUR SITE.

BIRDSEND.COM MAKES NO WARRANTY THAT THE SITE, CONTENT, OR SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. BIRDSEND.COM MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED THROUGH THE SITE, CONTENT, OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE, CONTENT, FILES OR SERVICES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BIRDSEND.COM OR THROUGH THE SITE, CONTENT, OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

Indemnity

You agree to defend, indemnify, and hold Birdsend.com, its creators, and employees harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable attorneys' fees and costs, arising out of or in any way connected with: (1) your access to or use of the Site, Content, and Services; (2) your violation of this Agreement; (3) your violation of any third party right, including without limitation any intellectual property right, including but not limited to right of attribution, publicity, confidentiality, property or privacy right; or (4) any claim that Your use of the Site, Content, and Services caused damage to a third party, including without limitation claims that Your use of the Site, Content, and Services, infringe the rights of another.

Limitation of Liability

 IN NO EVENT WILL BIRDSEND.COM BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM YOUR ACCESS TO USE, THE SITE, CONTENT, AND SERVICES, OR FOR ANY ERROR OR DEFECT IN THE SITE, CONTENT, OR SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT BIRDSEND.COM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT BIRDSEND.COM IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, BIRDSEND.COM WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICES, OR EXPOSED TO UNINTENDED THIRD PARTIES. 

Serverability

 In the event that any provision of these Terms of Service is held to be invalid or unenforceable, the remaining provisions of these Terms of Service will remain in full force and effect. 

Waiver

 The failure of Birdsend.com to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision. 

Controlling Law and Jurisdiction

These Terms of Service and any action related thereto will be governed by the laws of the State of Georgia without regard to its conflict of law provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the state and federal courts located in DeKalb County, Georgia, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. 

Entire Agreement

These Terms of Service are the entire and exclusive agreement between Birdsend.com and you regarding the Site, Content, and Services and these Terms of Service supersede and replace any prior agreements between Birdsend.com and you regarding the Site, Content, and Services.