Aerulean Terms of Service

INTERNET SERVICES AGREEMENT

READ THESE TERMS CAREFULLY BEFORE USING THE SERVICE DESCRIBED BELOW. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR OTHERWISE USE THESE SERVICES. YOUR CONTINUED USE OF THE SERVICES INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS AND CONDITIONS

This Internet Services Agreement (the “Agreement”) is between you and Aerulean Plant Identification Systems, Inc., a corporation organized and existing under the laws of the State of California (“AERULEAN”). Use of the Service signifies your agreement to the terms and conditions set forth in this Agreement.

1. Grant of Rights. AERULEAN grants you a non-exclusive, non-transferable, limited right to access, use and display the Internet access services provided by AERULEAN, including, without limitation, “Beta Test” plant identification, plant selection, plant encyclopedia tools, and any other tools which AERULEAN may offer (collectively, the “Service”) on any machine(s) of which you are the primary user. A Service account may not be transferred to another party or entity without prior written approval from AERULEAN, and any such transfer of a Service account is subject to any limits established by AERULEAN.

2. Proprietary Materials. Materials accessible to you through the AERULEAN Service are the subject of intellectual property rights, including without limitation, patents, copyrights, trademarks and trade secrets. Except as expressly permitted by AERULEAN, you may not (i) reproduce, redistribute, retransmit, publish, or otherwise transfer, or commercially exploit, any such material, (ii) make derivative works or compiled works of the Materials, (iii) redistributing data without permission or authorization from AERULEAN, or (iv) using the data for commercial or for-profit use. If you have a need or desire to reprint or republish any image or text data from this site, please contact AERULEAN with a specific request. 

3. Prohibited Uses. You expressly agree not to use the AERULEAN Service in a manner prohibited by any law or regulation, or to facilitate the violation of any law or regulation. You acknowledgment that prohibited conduct includes, but is not limited to, (i) violating the security of the Service, or (ii) attempting to utilize another user’s account without authorization from that user and AERULEAN.

4. Distribution and Use. AERULEAN is not responsible for the use or misuse of the data provided, and, the data provided by AERULEAN is made available with the understanding that its use will not lead to the harm of wild species.

5. System Resources. You agree not to use any technology, method or devise to maintain a constant connection with the Service.

6. Robots and Spiders. Robots and spiders are not allowed on this site with the exception of legitimate search engines. Other types of spiders typically overload our server with requests and degrade the server performance for others. Server performance is critical to our customers. If you have a need to index or otherwise utilize data from this site, please contact AERULEAN with a specific request. We remind you that all plant text data and images on this site are copyrighted and cannot be reproduced without permission. If you do not follow respect AERULEAN’s copyrights, you will be banned from this site.

7. Charges and Payments.

(a) You are responsible for all charges associated with connecting to the Service, including without limitation, all telephone access lines, cable coaxial lines, telephone equipment, cable equipment and computer equipment necessary to access the services.

(c) In the event of a breach of security, you will remain liable for any unauthorized use of your account with the Service until you notify AERULEAN by emailing admin@aerulean.com.

(d) AERULEAN reserves the right to modify the user agreement, charge monthly subscription and use fees or to institute new fees at any time upon thirty (30) days prior notice. AERULEAN may reduce these fees at any time without notice to you.

8. User Information.

(a) You certify to AERULEAN that you are not a minor, i.e., that you are at least eighteen (18) years of age;

(b) For purposes of identification and marketing, you agree to provide AERULEAN with accurate, complete and updated information required by the registration to the Service (“Registration Data”), including your legal name, an active email address, and zip code. You agree to notify AERULEAN within thirty (30) days of any changes in your Registration Data. Failure to comply with this provision may result in immediate suspension or termination or your right to use the Service.

(c) You are solely responsible for maintaining the confidentiality of your passwords, and agree that AERULEAN will have no obligation with regards thereto.

(d) AERULEAN reserves the right to reveal any Registration Data or other information in its possession regarding users of the Service in cooperation with a request or investigation by any governmental body or governmental agency.

9. No Expectation of Privacy. You acknowledge that transmissions made by means of the Service are not confidential and that your communications may be read or intercepted by others. You acknowledge that materials transmitted by means of the Service create no confidential, fiduciary, contractually implied or other relationship between you and AERULEAN.

10. Warranty and Indemnification. You represent and warrant to AERULEAN that your use of the Service will at all times comply with al applicable laws, rules and regulations. Your hereby agree to indemnify, defend and hold harmless AERULEAN and its employees, licensors, independent contractors, providers, subsidiaries and affiliates (collectively, the “Affiliates”), from and against any and all liability and costs incurred by the Affiliates in connection with any claim arising out of any breach by you of the foregoing representations, warranties and covenants, including without limitation, attorneys’ fees and costs. You shall cooperate as fully as reasonably required in the defense of any claim. AERULEAN reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without written consent of AERULEAN.

11. Disclaimer of Warranty. THE SERVICE (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF) IS PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF WARRANTIES OF NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, AERULEAN MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OF OR ERROR IN THE SERVICE UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, AERULEAN’S NEGLIGENCE.

12. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL AERULEAN BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICE, EVEN IF AERULEAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL AERULEAN’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE TOTAL DOLLAR VALUE OF FEES YOU HAVE PAID FOR THE SERVICE.

13. Termination. In addition to any other rights of the parties set forth herein, either you or AERULEAN may terminate this Agreement at any time upon notice. AERULEAN also reserves the right to restrict, suspend or terminate the Service in whole or in part, without notice, with respect to any breach or threatened breach of Sections 2 or 3, or based on a breach of any of your warranties in Section 8. If AERULEAN terminates your subscription pursuant to this Section 11, AERULEAN reserves the right to deny access to the Service in whole or in part, including, without limitation, refusing to provide the Service to you following such termination.

14. Modifications to Agreement. AERULEAN has the right to modify this Agreement. Any modification is effective immediately upon either a posting on the AERULEAN website (aerulean.com), or upon notice by electronic mail, or U.S. mail. Your continued use of the AERULEAN Service following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s). Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of AERULEAN in providing the Service, including, without limitation, (i) any change in the content of the Service, or (ii) any change in the amount or type of fee for the Service, is to terminate the Agreement by delivering notice to AERULEAN. Such notice will be effective upon receipt by AERULEAN.

15. General. This Agreement constitutes the entire agreement between you and AERULEAN with respect to the AERULEAN Service and supersedes all prior agreements between you and AERULEAN. Failure by AERULEAN to enforce any provision of this Agreement shall not be construed as a waiver of any provision or right. Interpretation and enforcement of this Agreement shall be governed by the laws of the State of California (excluding its choice of law rules). You consent to personal jurisdiction in the federal and state courts of San Mateo County, California for any action arising out of or related to your use of the AERULEAN Service. The federal and state courts of San Mateo County, California shall have exclusive jurisdiction over all such actions. In any such action, the prevailing party shall be entitled to recover legal expenses incurred in connection with the action, including, but not limited to, its costs, both taxable and non-taxable, and reasonable attorneys’ fees. In the event that any portion of this Agreement is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect.

Last Updated: April 12, 2015