1.1 Description of Application. WhaleTrails is a smartphone application that allows You to collect data and store it on a web-based database (“WhaleTrails DB”, together referred to hereafter as “the Application” or “WhaleTrails”) subject to the limitations and conditions described below. You will have the ability to access the data You collect (and depending on your organizational status, view and access data from other users). You must first agree to be bound by these Terms of Service prior to using WhaleTrails. The owner cannot take responsibility and will not be held liable for your failure to comply with these Terms of Service.
1.2 Disclaimer . Given that the Application allows the submission and storage of user generated content Users recognize that the owner cannot independently guarantee the safe capture, storage and access of such data and that the Application is provided on an ‘As-Is’ basis.
WhaleTrails is intended for whale sighting capture purposes only. The owner is not liable for any loss or damage, including personal injury or death, resulting from use of WhaleTrails
1.3 Grant of License. WhaleTrails is licensed to You for your use only under the terms of this Agreement. The owner retains all title to and ownership of WhaleTrails and reserves all rights not expressly granted to You. The owner grants You the right to use WhaleTrails provided that (a) WhaleTrails may NOT be modified by You except as authorized in writing, in advance by the owner; (b) all trademarks notices are maintained on WhaleTrails; and (d) You agree to be bound by the terms of this Agreement.
1.4 Data and Imagery and Photography . WhaleTrails data may contain images and data overlays. Your use of this imagery and data is limited to the manner, form, format, and appearance as it is provided by the Application. You may not, nor may you allow others to, copy, distribute, display, alter, or otherwise use, this photographic imagery or data except as it is provided to you through the Application. The owner reserves the sole right and discretion to determine whether your submission of photographic images through the Application is in conformance with this Section, and also reserves the right to terminate or suspend your access to any such imagery and data at any time for any reason, without notice.
1.6 Warranty Disclaimer. The owner is providing the Application on an “as is” basis without warranty of any kind; The owner disclaims all express and implied warranties, including the implied warranties of merchantability or fitness for a particular purpose.
Upload, post, email or transmit or otherwise make available any inappropriate, defamatory, infringing, obscene, or unlawful Content;
Upload, post, email or transmit or otherwise make available any Content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless You are the owner of the Rights or have the permission of the owner to post such Content;
Restrict or inhibit any other user from using and enjoying WhaleTrails services;
Use WhaleTrails services for any illegal or unauthorized purpose;
Remove any copyright, trademark or other proprietary rights notices contained in or on WhaleTrails services;
Interfere with or disrupt WhaleTrails services or servers or networks connected to WhaleTrails services, or disobey any requirements, procedures, policies or regulations of networks connected to WhaleTrails services;
Use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of WhaleTrails services or collect information about users for any unauthorized purpose;
Submit Content that falsely expresses or implies that such Content is sponsored or endorsed by WhaleTrails ;
Create user accounts by automated means or under false or fraudulent pretenses;
Promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual; or
Transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.
International users agree to comply with their own local rules regarding online conduct and acceptable content, including laws regulating the export of data to Australia or your country of residence.
1.8 Indemnification. User hereby indemnifies, holds harmless and will defend the owner from and against any and all claims or lawsuits, including attorney’s fees and costs that arise, result from or are connected with the use or distribution of WhaleTrails in violation of this Agreement.
2.0 Proprietary Rights.
2.2 Your Rights. The owner advices that You or Your organization share all right, title and interest, including without limitation all Intellectual Property Rights, to the data collected by you and your organization using WhaleTrails (“Your data”) with the owner. The owner shall acquire the right to use Your Data for the purpose of research and publication only.
All use by You of the owners Brand Features (including any goodwill associated therewith) shall inure to the benefit of the owner. At no time during or after the Term shall You challenge or assist others to challenge the Brand Features of the owner (except to the extent such restriction is prohibited by law) or the registration thereof by the owner, nor shall You attempt to register any Brand Features (including domain names) that are confusingly similar in any way (including but not limited to, sound, appearance and spelling) to those of the owner.
3.0 DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK. THE APPLICATION IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE OWNER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. THE OWNER MAKES NO WARRANTY THAT (i) THE APPLICATION WILL MEET YOUR REQUIREMENTS, (ii) THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE APPLICATION IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE OWNER OR THROUGH OR FROM WHALETRAILS SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
4.0 LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE OWNER SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE OWNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE APPLICATION; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE APPLICATION; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE APPLICATION; OR (v) ANY OTHER MATTER RELATING TO THE APPLICATION.
5.0 EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 5 AND 6 MAY NOT APPLY TO YOU.
6.0 Term and Termination.
6.2 Termination. The owner may change any aspect of the Application, including their availability, at any time, and may suspend or terminate Your use of the Application at any time.
6.6 Remedies. You acknowledge that Your breach of service/license restrictions contained herein may cause irreparable harm to the owner, and services, the extent of which would be difficult to ascertain. Accordingly, You agree that, in addition to any other remedies to which the owner may be legally entitled, the owner shall have the right to seek immediate injunctive relief in the event of a breach of such sections by You or any of Your officers, employees, consultants or other agents.
7.0 GENERAL INFORMATION
Entire Agreement. The Terms of Service constitute the entire agreement between You and the owner and govern your use of the Application, superseding any prior agreements between You and the owner . You also may be subject to additional terms and conditions that may apply when You use or purchase certain other WhaleTrails services, affiliate services, third-party content or third-party software.
Waiver and Severability of Terms. The failure of the owener to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of WhaleTrails services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section headings in the Terms of Service are for convenience only and have no legal or contractual effect.
8.1 Your Consent
8.2 Active Information Collection
Some of the information that you submit may be identifiable information (that is, information that can be uniquely identified with your device, such as a unique ID number and your name). We will not share this information to third parties.