Last Updated: January 1, 2023
LICENSE. If you agree to the TOU and (1) are of sufficient age and capacity to use AUG and be bound by the TOU, or (2) use AUG on behalf of a business, thereby binding that business to the TOU, we grant you a limited, revocable, non-exclusive, non-assignable license to use AUG in compliance with the TOU; unlicensed use is unauthorized. You agree not to display, “frame,” make derivative works, distribute, license, or sell, content from AUG, excluding postings you create. You grant us a perpetual, irrevocable, unlimited, worldwide, fully paid/sublicensable license to use, copy, display, distribute, and make derivative works from content you post.
USE. Unless licensed by us in a separate written or electronic agreement, you agree not to use or provide software (except our App and general purpose web browsers and email clients) or services that interact or interoperate with AUG, e.g. for downloading, uploading, creating/accessing/using an account, posting, flagging, emailing, searching, or mobile use. You agree not to copy/collect AUG content via robots, spiders, scripts, scrapers, crawlers, or any automated or manual equivalent (e.g., by hand). Misleading, unsolicited, and/or unlawful postings/communications/accounts are prohibited, as is buying or selling accounts. You agree not to post content that is prohibited by any of AUG’s policies or rules referenced above (“Prohibited Content”). You agree not to abuse AUG’s flagging or reporting processes. You agree not to collect AUG user information or interfere with AUG. You agree we may moderate AUG access/use in our sole discretion, e.g., by blocking, filtering, re-categorizing, re-ranking, deleting, delaying, holding, omitting, verifying, or terminating your access/license/account. You agree (1) not to bypass said moderation, (2) we are not liable for moderating or not moderating, and (3) nothing we say or do waives our right to moderate, or not. Unless licensed by us in a separate written or electronic agreement, you agree not to (i) rent, lease, sell, publish, distribute, license, sublicense, assign, transfer, or otherwise make available AUG, (ii) copy, adapt, create derivative works of, decompile, reverse engineer, translate, localize, port or modify the App, any website code, or any software used to provide AUG, (iii) combine or integrate AUG with any software, technology, services, or materials not authorized by us, (iv) circumvent any functionality that controls access to or otherwise protects AUG, or (v) remove or alter any copyright, trademark or other proprietary rights notices. You agree not to use AUG in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
LIQUIDATED DAMAGES. You further agree that if you violate the TOU, or you encourage, support, benefit from, or induce others to do so, you will be jointly and severally liable to us for liquidated damages as follows for: (A) collecting/harvesting AUG users’ information, including personal or identifying information – $1 per violation; (B) publishing/misusing personal or identifying information of a third party in connection with your use of AUG without that party’s express written consent – $1,000 per violation; (C) misrepresenting your identity or affiliation to anyone in connection with your use of AUG – $1,000 per violation; (D) posting or attempting to post Prohibited Content – $4 per violation; (E) posting or attempting to post Prohibited Content in any paid section of AUG – the price per post applicable to that section of AUG; (F) sending an unauthorized/unsolicited email to an email address obtained from AUG – $25 per violation; (G) using AUG user information to make/send an unauthorized/unsolicited text message, call, or communication to a AUG user – $500 per text/call/communication; (H) creating a misleading or unlawful AUG account or buying/selling a AUG account – $4 per violation; (I) abusing or attempting to abuse AUG’s flagging or reporting processes – $1 per violation; (J) distributing any software to facilitate violations of the USE Section – $1,000 per violation; (K) aggregating, displaying, framing, copying, duplicating, reproducing, making derivative works from, distributing, licensing, selling, or exploiting AUG content for any purpose without our express written consent – $3,000 for each day you engage in such violations; (L) requesting, viewing, or accessing more than 1,000 pages of AUG in any 24-hour period – $0.25 per page during the 24 hour period after the first 1,000 pages; (M) bypassing or attempting to bypass our moderation efforts – $4 per violation. You agree that these amounts are (1) a reasonable estimate of our damages (as actual damages are often difficult to calculate), (2) not a penalty, and (3) not otherwise limiting on our ability to recover under any legal theory or claim, including statutory damages and other equitable relief (e.g., for spam, we can elect between the above liquidated damages or statutory damages under the anti-spam statute). You further agree that repeated violations of the USE section will irreparably harm and entitle us to injunctive or equitable relief, in addition to monetary damages.
FEES. When you make a paid posting (theavianunderground.com/posting_fees), you authorize us to charge your account. Any tax is additional. Fees are non-refundable, even for posts we remove, delay, omit, re-categorize, re-rank, or otherwise moderate. We may refuse any posting.
DISCLAIMER & LIABILITY. To the full extent permitted by law, Ayreshire LLC, DBA The Avian Underground, and its officers, directors, employees, agents, licensors, affiliates, and successors in interest (“AUG Entities”) (1) make no promises, warranties, or representations as to AUG, including its completeness, accuracy, availability, timeliness, propriety, security or reliability; (2) provide AUG on an “AS IS” and “AS AVAILABLE” basis and any risk of using AUG is assumed by you; (3) disclaim all warranties, express or implied, including as to accuracy, merchantability, fitness for a particular purpose, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice; and (4) disclaim any liability or responsibility for acts, omissions, or conduct of you or any party in connection with AUG. AUG Entities are NOT liable for any direct, indirect, consequential, incidental, special, punitive, or other losses, including lost profits, revenues, data, goodwill, etc., arising from or related to AUG, and in no event shall such liability exceed $100 or the amount you paid us in the year preceding such loss. Some jurisdictions restrict or alter these disclaimers and limits, so some may not apply to you.
CLAIMS & INDEMNITY. Any claim, cause of action, demand, or dispute arising from or related to AUG (“Claims”) will be governed by the internal laws of Idaho, without regard to conflict of law provisions, except to the extent governed by US federal law. Any Claims will be exclusively resolved by courts in Boise, ID (except we may seek preliminary or injunctive relief anywhere). You agree to (1) submit to the personal jurisdiction of courts in Boise, ID; (2) indemnify and hold AUG Entities harmless from any Claims, losses, liability, or expenses (including attorneys’ fees) that arise from a third party and relate to your use of AUG; and (3) be liable and responsible for any Claims we may have against your officers, directors, employees, agents, affiliates, or any other party, directly or indirectly, paid, directed or controlled by you, or acting for your benefit.
MISC. Unless you have entered into a separate written or electronic agreement with us that expressly references the TOU, this is the exclusive and entire agreement between us and you, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral. Users complying with prior written licenses may access AUG thereby until authorization is terminated. Our actions or silence toward you or anyone else does not waive, modify, or limit the TOU or our ability to enforce it. The USE, LIQUIDATED DAMAGES, and CLAIMS & INDEMNITY sections survive termination of the TOU, and you will remain bound by those sections. If a TOU term is unenforceable, it shall be limited to the least extent possible and supplemented with a valid provision that best embodies the intent of the parties. The English version of the TOU controls over any translations.