Terms of Use

Last Updated April 1, 2013

I. Introduction

Welcome to Bowerbird Software Company’s (“Bowerbird” or the “Company”) website ("Site"). Bowerbird is a division of ArtistCommons, Inc., a Delaware corporation. This Terms of Use Agreement ("Agreement") sets forth the agreement between Bowerbird ("Company" or "we") and each user ("you" or "user") governing your use of this Site. Please read this Agreement carefully before using this Site. By using this Site, you agree to be bound by the terms and conditions contained in this Agreement. If you do not agree to the terms and conditions contained in this Agreement, you are not authorized to access or otherwise use this Site.

We may, in our sole discretion, modify this Agreement at any time and from time to time with or without notice to you. The "Last Updated" date at the top of this Agreement will indicate when the latest modifications were made. By continuing to access and use the Site after this Agreement has been modified, you are agreeing to such modifications. Therefore, you should review this Agreement prior to each use of the Site. In addition, when using particular Site services or features, you are subject to any then applicable posted guidelines or policies. All such guidelines or policies are hereby incorporated by reference into this Agreement.

License and Site Access

Bowerbird hereby grants you a limited, nonexclusive, nontransferable license to view, bookmark, download, and print the pages within this Site and the documents, graphics, and media incorporated on those pages. You are solely responsible for obtaining, paying for, repairing, and maintaining all of the equipment, telephone lines, and other material that you need to access this Site. The pages within this Site may be used solely for personal and informational purposes. You may not modify, copy, distribute, transmit, post, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any pages, data, information, software, products, or services obtained from this Site, unless you have obtained the Company’s prior written permission or you are using a service available through this Site. All rights not expressly granted herein are reserved by Bowerbird, which expressly reserves the right to monitor any and all use of this Site.

Unless you have obtained Bowerbird’s prior written permission, you, and any other users and sites, may not:

  • Copy, modify, or display Bowerbird’s name, logo, trademarks, text, or graphic images in any way, except as set forth herein. To obtain express written permission, you may send us an e-mail at support@bowerbird.co;
  • Redeliver any of the pages, text, images, or content of this Site using "framing" technology;
  • Modify or use the pages, text, images, or content from this Site for any other purpose-doing so is a violation of the Company’s copyrights and other proprietary rights;
  • Use devices (including software) that are designed to provide repeated automated access to this Site, other than those made generally available by Bowerbird, or probe, scan, or test the vulnerability of any system or network related in any way to this Site, without proper authorization. Bowerbird reserves the right to take all measures necessary to prevent such access, probing, scanning, or testing, including denial or termination of service; and
  • Include "Bowerbird," any Bowerbird service mark or trademark, any Bowerbird executive's name, or any variation of any of the foregoing, as a meta-tag, hidden textual element, or any other indicator that may create an impression of affiliation, sponsorship, or endorsement between any user and/or site and Bowerbird.
Code of User Conduct

Your use of this Site constitutes your agreement to:

  • Refrain from using the services provided on the Site (“Services”) to invade the privacy of others, or to collect and use an individual’s personal and private information, or to gain, or attempt to gain, unauthorized access to computer systems of www bowerbird.co or third parties via the Site;
  • Refrain from using the Services to create a false identity or to impersonate another person;
  • Refrain from attempting to gain unauthorized access to any portion or feature of the Site, or any other systems or networks, or to any of the Services offered on or through the Site, by hacking, password mining or any other illegitimate means; and
  • Refrain from using any device, software or routine to interfere or attempt to interfere with the proper working of the Site and any transaction being conducted on the Site, or with any other person’s use of the Site.
Your Account

Nothing provided on this Site replaces your responsibility for maintaining the confidentiality of any account information, user names, access permissions, and passwords that you use to access this Site or any product or service available through this Site. You are also solely responsible for restricting access to your computer(s). You agree to accept responsibility for all activities occurring under your accounts, user names, or passwords that are due to your conduct, inaction, or negligence. If you become aware of any suspicious or unauthorized conduct concerning your account, you agree to contact us immediately.

You must register and be a current member of Bowerbird to post material to your account. At all times, you are solely responsible for the content of any material you post on your Bowerbird account. You may not post or transmit any material that contains a virus or other harmful component. You warrant and agree that, while using the Site and the various services and features offered on or through the Site, you shall not: (a) post or transmit any material which is an invasion of privacy of another party or which infringes on the copyright, trademark or other intellectual property right of another party, or (b) use the Site or the Site’s services in violation of applicable law.

Bowerbird does not, and is not responsible for screening material posted on Bowerbird.com for defamation; fraud; falsity or inaccuracy; obscenity; invasion of privacy; copyright or trademark infringement, intellectual property. You may not post or transmit any such offensive materials. Bowerbird, in its sole discretion, may terminate the registration of any Bowerbird user who directly or indirectly violates any of the terms and conditions listed herein.

By posting material of any kind on Bowerbird.com, you grant to Bowerbird, or warrant that the owner of the copyright in such material expressly has granted to Bowerbird a perpetual, world-wide, non-exclusive, and royalty-free license to store such material, in its original or edited form, in connection your account. You also warrant that all "moral rights" in such material have been waived by the owner of any such rights.

II. Privacy

Use of this Site is subject to the then applicable terms of our Privacy Policy at http://www.bowerbird.co/privacy, which is hereby incorporated into and made part of this Agreement. Please carefully review our Privacy Policy. By using this Site, you agree to be bound by the terms of our Privacy Policy. We reserve the right, and you authorize us, to use information regarding your use of this Site and any other personal information provided by you in accordance with our Privacy Policy.

III. Copyright; Trademarks

You acknowledge that all materials on the Site, including without limitation the Site's design, graphics, text, sounds, pictures, software and other files and the selection and arrangement thereof (collectively, "Materials"), are the exclusive property of the Company and/or its licensors, and are subject to and protected by United States and international copyright and other intellectual property laws and rights. The compilation of all content on this Site is the exclusive property of the Company and is protected by U.S. and international copyright laws. All software used on this Site is the exclusive property of the Company or its software suppliers and is protected by U.S. and international copyright laws and other laws. All rights to Materials not expressly granted in this Agreement are reserved to their respective intellectual property rights owners. Except as expressly authorized by this Agreement or on the Site, you may not and it shall be a legal violation if you copy, reproduce, distribute, republish, download, perform, display, post, transmit, exploit, create derivative works or otherwise use any of the Materials in any form or by any means, without the prior written authorization of Company or the respective intellectual property rights owners. Company authorizes you to view and download the Materials only for personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices contained in the original Materials. You may not modify or adapt the Materials in any way or otherwise use them for any public or commercial purposes. The trademarks, service marks, trade names, other intellectual property rights, marks and notices, trade dress and logos (collectively, "Marks") contained or described on this Site (including, without limitation, Bowerbird) are the sole property of the Company and/or its licensors and may not be copied, imitated or otherwise used, in whole or in part, without the prior written authorization of Company and/or its licensors. In addition, all page headers, custom graphics, button icons and scripts are Company Marks and may not be copied, imitated or otherwise used, in whole or in part, without the Company’s prior written authorization. The Company will enforce its intellectual property rights to the fullest extent of the law.

IV. Links; Third Party Websites

Links on the Site to third party websites are provided only as a convenience to you. If you use these links, you will leave the Site. Company does not control or endorse any such third party websites. You agree that Company and its affiliates will not be responsible or liable for any content, goods or services provided on or through these outside websites or for your use or inability to use such websites. You will use these links at your own risk. You are advised that other websites on the Internet, including third party websites linked from this Site, might contain material or information that some people may find offensive or inappropriate; or that is inaccurate, untrue, misleading or deceptive; or that is defamatory, libelous, infringing of others' rights or otherwise unlawful. Company expressly disclaims any knowledge of or responsibility for the content, legality, decency or accuracy of any information or for any products and services, that appear on any third party website.

Without limiting the foregoing, your correspondence or business dealings with, or participation in promotions of advertisers found on or through the use of the Site, including without limitation payment for and delivery of related non-Company goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that the Company and its affiliates are not responsible or liable for any legal inability, expense, loss or damage incurred by you as the result of any such dealings or as the result of the presence of such advertisers on the Site.

V. Disclaimer; Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE AND THE MATERIALS CONTAINED HEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY AND ITS AFFILIATED COMPANIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES (COLLECTIVELY, "COMPANY AND ITS AFFILIATES") EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY AND ITS AFFILIATES MAKE NO WARRANTY THAT (I) THE SITE WILL MEET YOUR NEEDS OR REQUIREMENTS, (II) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SITE WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SITE OR DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY AND ITS AFFILIATES OR ON OR THROUGH THE SITE SHALL CREATE ANY WARRANTY OR OTHER OBLIGATION NOT EXPRESSLY STATED IN THIS AGREEMENT.

COMPANY AND ITS AFFILIATES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE, INCLUDING ANY LIABILITY (I) AS A PUBLISHER OF INFORMATION, (II) FOR ANY INCORRECT OR INACCURATE INFORMATION, (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR USE, TRANSMISSIONS OR DATA, (IV) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE, OR (VII) FOR ANY OTHER MATTER RELATING TO THIS SITE OR ANY THIRD PARTY WEBSITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES, COSTS AND/OR EXPENSES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOOD WILL, LOSS OF USE, LOSS OF DATA, COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR INFORMATION, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN AND AGREEMENT BETWEEN THE COMPANY AND YOU. THE INFORMATION AND SERVICES OFFERED ON AND THROUGH THE SITE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF THE COMPANY AND ITS AFFILIATES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL (SHOULD THE COMPANY BE HELD LIABLE BY A COURT OF COMPETENT JURISDICTION) BE LIMITED TO THE AMOUNT PAID BY YOU TO COMPANY ON THIS SITE.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE EXCLUSIONS AND LIABILITY ARE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

VI. Indemnification

You agree to indemnify, defend and hold harmless the Company and its affiliates from and against any and all claims, demands, causes of action, losses, expenses, damages and costs, including without limitation any reasonable attorneys' fees and expenses, resulting or arising from or relating to your use of or conduct on the Site, any activity related to use of the Site by you, any material that you submit to, post on or transmit through the Site, your breach of this Agreement, your infringement or violation of any rights of another, or termination of your access to the Site.

VII. Site Usage; Termination of Usage

If you provide information on this Site, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the Site, and (b) as permitted, maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is false, inaccurate, outdated or incomplete, or Company has reasonable grounds to suspect that such information is false, inaccurate, outdated or incomplete, Company has the right to suspend or terminate your access to this Site and prohibit any and all current or future use of the Site (or any portion thereof) by you.

You agree to use this Site only for lawful purposes, and that you are responsible for your use of and communications on the Site. You agree not to post on or transmit through this Site any unlawful, infringing, threatening, harassing, defamatory, vulgar, obscene, profane, indecent, offensive, hateful or otherwise objectionable or illegal material of any kind, including any material that encourages criminal conduct or conduct that would give rise to civil liability, infringes others' intellectual property rights or otherwise violates any applicable local, state, national or international law. You agree not to use this Site in any manner that interferes with its normal operation or with any other user's use and enjoyment of the Site.

The Company makes no representation that Materials contained on the Site are appropriate or available for use in jurisdictions outside the United States, or that this Agreement complies with the laws of any other country. Visitors who use the Site and reside outside the United States do so on their own initiative, at their own risk and are responsible for compliance with all applicable laws. You agree that you will not access this Site from any location where its contents are illegal, and that you, and not the Company and its affiliates, are responsible for compliance with applicable laws.

This Agreement is effective unless and until terminated by either you or the Company. You may terminate this Agreement at any time, provided that you discontinue any further use of this Site. The Company also may terminate or suspend this Agreement at any time without notice, and accordingly deny you access to the Site, if in the Company's sole discretion you fail to comply with any term or provision of this Agreement or your use is harmful to the general public, the interests of another user or Company and its affiliates. Upon any termination of the Agreement by either you or us, you must promptly destroy all materials downloaded or otherwise obtained from this Site, as well as all copies of such materials, whether made under these Terms of Use or otherwise.

The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Site (or any part thereof) with or without notice. Except as otherwise expressly stated in this Agreement, you agree that the Company and its affiliates shall not be liable to you or to any third party for any modification, suspension or discontinuation of the Site.

You agree that the Company may terminate or suspend your access to all or part of this Site, without notice, for any conduct that the Company, in its sole discretion, believes is in violation of this Agreement or any applicable law or is harmful to the interests of another user or the Company and its affiliates.

Sections II, III and V through X shall survive any termination of this Agreement.

VIII. Applicable Law; Jurisdiction; Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of the State of California in the United States, without regard to its conflict of laws and choice of law provisions. You agree to submit to personal jurisdiction in the State of California and further agree that any cause of action or claim arising from or relating to the use of this Site or this Agreement shall be brought exclusively in the Federal or State Courts residing in San Francisco.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND THE COMPANY HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING OR LITIGATION BROUGHT AGAINST THE OTHER WITH RESPECT TO THIS AGREEMENT OR THE SITE. IN ADDITION, NEITHER YOU NOR THE COMPANY SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER SITE USERS, OR LITIGATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.

IX. Severability; Interpretation

If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining provisions shall not be affected. When used in this Agreement, the term "including" shall be deemed to be followed by the words "without limitation."

X. Entire Agreement

This Agreement constitutes the entire and only Agreement between the Company and each user of this Site with respect to the subject matter of this Agreement and supersedes any and all prior or contemporaneous Agreements, representations, warranties and understandings, written or oral, with respect to the subject matter of this Agreement. The rights granted to you herein terminate immediately upon any violation by you of these Terms of Use. The Company reserves the right to terminate your access to this Site at any time, without notice, for any reason whatsoever. You agree that the Company shall not be liable to you or any third party for any termination of your access to this Site.

Miscellaneous

The failure of the Company and/or its affiliates to insist upon strict adherence to any term of this Agreement shall not constitute a waiver of such term and shall not be considered a waiver or limit that party's right thereafter to insist upon strict adherence to that term or any other term of this Agreement.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising from or relating to use of this Site or this Agreement must be filed within one (1) year after such claim or cause of action arose, or will be forever barred. The "Disclaimer; Limitation of Liability" provisions of this Agreement are for the benefit of the Company and its affiliates as defined herein, and each of these individuals or entities shall have the right to assert and enforce these provisions directly against you on its own behalf.

Because of the global nature of the Internet, you agree to comply with all local rules regarding online conduct, including all laws, rules, codes, and regulations of the country in which you reside and the country from which you access this Site. In addition, you agree to comply with all applicable laws, rules, codes, and regulations regarding the transmission of technical data exported from the United States.

Contact Information

If you have any comments, questions, or complaints regarding this Agreement, or wish to report any violation of this Agreement, please contact us.

We will address any issue to the best of our abilities as soon as possible.