TRACKS WEBSITE Terms of Use

Welcome to trackscommunity.com (the "Site"). The Site is operated by the Denver Zoological Foundation, Inc. and the National Aquarium in Baltimore, Inc. (collectively, the "Tracks Parties," "We" or "Us"). Please carefully read these Terms of Use. By using the Site you acknowledge and agree that you have read and agree to be bound by these Terms of Use (this "Agreement"). This Agreement is made between the Tracks Parties and You or, in the case that you represent and are using the Site on behalf of a company or other entity, that company or other entity ("You"). If you do not agree to be bound by this Agreement, please exit the Site now.

1. Use of the Site.

Until You apply for are approved as a registered user (a "Registered User") of the Site, your access to the Site will be limited to the public areas of the Site. Your approval as a Registered User is at the sole discretion of the Tracks Parties. Upon approval as a Registered User You will be asked to create a password-protected account to access the Site (an "Account"). You agree to keep your Account information and password confidential. You agree to notify Us immediately of any actual or suspected unauthorized use of your Account. You are solely responsible for all activities that occur through your Account, including, without limitation all fees and charges incurred through your Account. Neither of the Tracks Parties will be responsible for any loss to You caused by your failure to comply with these obligations. You may access and use the Site through your Account solely for lawful purposes and only in accordance with the terms of this Agreement.

2. Registration.

In connection with your application to become a Registered User, You will be asked to submit certain information about yourself ("Registration Information"). You represent and warrant that: (a) all Registration Information You have provided is true, accurate, current and complete; and (b) You will maintain and promptly update the Registration Information to keep it true, accurate, current and complete.

3. TERM AND TERMINATION.

This Agreement will be effective on the date You first use the Site and will continue until terminated. We may terminate this Agreement immediately, for any reason or no reason, with or without notice to You. You may terminate this Agreement upon written notice to Us, such termination effective 10 days following acknowledgement of receipt of such notice by Us. We may also suspend your use of the Site or direct You to cease using the Site with or without notice to You and with or without cause. Upon any termination of this Agreement all rights granted to You under this Agreement will cease, if You are a Registered User, your Account will be closed, and You must promptly discontinue all use of the Site. Sections 3, 4, 5, 7, 8, and 12 will survive termination or expiration of this Agreement for any reason.

4. Content.

The Site and the entire contents of the Site, including, but not limited to, text, files, images, graphics, illustrations, audio, video, and photographs on or offered through the Site (collectively, "Content") are protected by intellectual property rights, including, without limitation, copyrights, trademarks, patents and other proprietary and intellectual property rights ("Intellectual Property Rights") owned by the Tracks Parties and its business partners, affiliates and licensors ("Affiliates"). No ownership rights in or to the Site or Content are conveyed to You by this Agreement. You may use Content only for Your own personal, non-commercial use as expressly permitted by this Agreement. Except as expressly set forth in this Agreement, the Tracks Parties and their Affiliates grant You no licenses or rights, whether by implication, estoppel or otherwise, in or to the Site or Content, or any Intellectual Property Rights therein or related thereto, and You may not use, reproduce, perform, display, create derivative works from, republish, upload, download, post, transmit, or distribute any portion of the Site or Content without the prior written permission of the Tracks Parties.

5. Marks.

Unless otherwise labeled, all trademarks, service marks, logos, banners, and page headers displayed on this Site (collectively, the "Marks") are the property of the Tracks Parties and their Affiliates. Except as expressly set forth in this Agreement, You may not display, link to, or otherwise use the Marks without the prior written permission of the Tracks Parties.

6. Postings and Uploads.

The Site may include forums, bulletin boards, chat rooms, or other opportunities through which You may have the opportunity to provide or upload Content to the Site (such Content, "Provided Content"). You agree not to upload or provide any Provided Content that is: (1) libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (2) an infringement or misappropriation of the Intellectual Property Rights of any third party; (3) illegal in any way or that advocates illegal activity; or (4) an advertisement or solicitation of funds, goods, or services. You represent and warrant to the Tracks Parties and their Affiliates that You own all right, title, and interest in and to any Provided Content that You provide or upload to the Site, or that You have sufficient rights, whether by implication, estoppel, or otherwise, to grant the Tracks Parties the rights discussed in this Agreement. You will indemnify, defend, and hold harmless The Tracks Parties and their Affiliates from any and all third-party claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys' fees and court costs) that result from a breach or alleged breach of any representation or warranty set forth in this Agreement. By providing or uploading any Provided Content to the Site, unless otherwise stated in a separate agreement entered into by You and the Tracks Parties in connection with Your upload of any Provided Content, You grant the Tracks Parties a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, copy, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute, and display such Provided Content throughout the world in any form, media, software, or technology of any kind. In addition, you waive all moral rights in the Provided Content or warrant that all moral rights applicable to such content have been waived. You also grant the Tracks Parties the right to use Your name in connection with the reproduction or distribution of such material.

7. CONDUCT.

You will not and will not permit any third party to use Your Account to (1) use the Site to harvest or collect e-mail addresses or other contact information of other users from the Site by electronic or other means for the purposes of sending unsolicited e-mails or other unsolicited communications; (2) use the Site in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site; (3) use automated scripts to collect information from or otherwise interact with the Site; (4) use the Site to intimidate or harass any other people or entities; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or method of operation of the Site; (6) remove, bypass or circumvent any electronic protection measures on the Site; (7) remove, alter, or obscure any copyright or other proprietary rights notices included on the Site; or (8) upload to the Site or provide to the Tracks Parties any code or device capable of or intended to interrupt, harm or damage the Site or the operation of the Site.

8. Representations And Warranties.

You hereby represent, warrant and covenant for the benefit of the Tracks Parties and their Affiliates that: (1) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (2) You have the legal right and authority to perform Your obligations under this Agreement; (3) all information You provide to the Tracks Parties in connection with this Agreement and Your access to the Site is correct and current.

9. Disclaimer And Limitation Of Liability.

9.1 Disclaimer. THE SITE IS PROVIDED BY THE TRACKS PARTIES "AS IS" and "AS AVAILABLE" WITH NO WARRANTIES WHATSOEVER. YOU AGREE THAT YOUR ACCESS TO THE SITE IS AT YOUR OWN RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE YOU INCUR THROUGH ACCESS TO THE SITE. EACH OF THE TRACKS PARTIES EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SECURITY, RELIABILITY AND PERFORMANCE OF THE SITE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU RECOGNIZE THAT THE CURRENT STATE OF TECHNOLOGY DOES NOT ALLOW FOR ERROR-FREE ACCESS TO THE SITE AND INTERRUPTIONS, CRASHES AND DOWNTIME BEYOND OUR CONTROL MAY OCCUR FROM TIME TO TIME. THE TRACKS PARTIES' only obligation and ANY remedy in the event of a failure of THE SITE will be at the sole discretion of the TRACKS PARTIES.

9.2 Limitation. IN NO EVENT WILL EITHER OF THE TRACKS PARTIES BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IN CONNECTION WITH YOUR ACCESS TO THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE TRACKS PARTIES' total aggregate liability for any damages arising out of or related to this Agreement will not exceed $100.

10. Indemnification.

You will indemnify, defend and hold harmless the Tracks Parties and their Affiliates, employees, agents, contractors, assigns, licensees and successors in interest ("Indemnified Parties"), from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) which result from any claim or allegation against any Indemnified Party arising from Your accessing the Site or Your breach of any term of this Agreement. The Tracks Parties will provide You with notice of any such claim or allegation, and either of the Tracks Parties will have the right to participate in the defense of any such claim at its expense.

11. Privacy Policy.

Our privacy policy, a copy of which is available at trackscommunity.com/privacy (the "Privacy Policy"), is incorporated in this Agreement by reference. By accepting this Agreement, You expressly consent to the use and disclosure of your personally identifiable and other information as described in the Privacy Policy.

12. Linked Sites.

The Site may contain links to third-party sites that are not under the control of the Tracks Parties. We are not responsible for any content on any linked site. If you access a third-party site from the Site, then you do so at your own risk. We provide links only as a convenience and the inclusion of the link does not imply that We endorse or accept any responsibility for the content on those third party sites.

13. Notices.

Except as expressly stated otherwise, any notices required or allowed under this Agreement will be given to the Tracks Parties by postal mail at the address for the Tracks Parties listed on the Site. If applicable law requires that the Tracks Parties accept email notices (but not otherwise), then You may send the Tracks Parties an email notice at support@trackscommunity.com. With respect to our notices to You, We may provide notice of amendments by posting them in the Site and You agree to check for changes. In addition, or in lieu thereof, We may give notice by sending email to the email address You provide during registration for the Site. Notice shall be deemed given 24 hours after it is posted or an email is sent, unless (as to email) the sending party is notified that the email address is invalid.

14. General Terms.

14.1 Third Party Beneficiaries. Our Affiliates are intended third-party beneficiaries under this Agreement with the right to enforce the provisions that directly concern Content to which they have rights.

14.2 Non-Assignment. You may not assign or transfer any of Your rights hereunder and any attempt to do so will be null and void.

14.3 Integration. This Agreement sets forth the entire understanding of the parties and supersedes any and all prior oral and written agreements or understandings between the parties regarding the subject matter of this Agreement. This Agreement may not be modified except upon mutual written agreement of both parties. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

14.4 Severability. If for any reason any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability, without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.

14.5 Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Colorado, excluding its conflict of laws principles. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The parties hereby irrevocably consent to jurisdiction and venue in the state and federal courts sitting in Denver, Colorado. In any such dispute, the prevailing party will be entitled to recover its reasonable attorneys' fees and expenses from the other party.