Data Provider Terms and Conditions

DATA PROVIDER AGREEMENT

This Data Provider Agreement (this “Agreement”) contains the terms and conditions that govern your access and use of the eMammal Program services, consisting of a web site on the domain eMammal.org with the home page www.eMammal.org (the “Web Site”) and is an agreement between you or the entity you represent (“Provider” or “you”) and the Smithsonian Institution (“SI”). eMammal Program services include project management capability (i.e. volunteer management and communication, deployment assignment and tracking, expert review of data prior to acceptance into repository), SI curation of digital repository, and a website page dedicated to your project providing public access to project information, favorite photos, and metadata and images (after provider set embargo).  This agreement takes effect when you click an “I Accept” button presented with these terms.  By providing your image and metadata (the “Data”) to the eMammal Program by any means or media whatsoever, you agree to and are bound by the following terms and conditions.  When using the Web Site and/or the software on the Web Site (the “Software”), you will be asked to agree to the terms and conditions contained in the Data, Software, and Web Site User Agreement. 

I. GOALS

The aim of the eMammal Program is to facilitate the sharing of camera trap images and data for research and education purposes.  eMammal provides the public a query tool, allowing a user to access and share camera trap information from a variety of projects. eMammal encourages collaboration with other institutions and individuals. eMammal recognizes the power of camera trap sampling to collect data on the distribution and abundance of a broad range of terrestrial and semi-terrestrial birds and mammals, often beyond the goals and objectives of a single research project. 

II. DATA

1.  Ownership of Data.  Provider represents and warrants that it owns the Data and/or possesses all rights in the Data necessary to consent to this Agreement and that no part of the Data will infringe or violate any copyright, trade secret, trademark, patent, invention, or other proprietary or personal right of any third party. If SI reasonably believes that any of your Data violates the law, infringes the rights of any third party, or violates this Agreement, SI may remove or disable access to the violating Data or suspend services to the extent that SI is not able to remove the violating data.

2.  Accuracy.  Provider represents and warrants that the Data will be true, accurate, and complete to the best of its knowledge.

3.  No Viruses.  Provider certifies that, to the best of its knowledge, nothing in the Data or its mode or medium of transmission will contain any virus, time bomb, worm, lock, drop-dead device, Trojan horse, trap door, malware, or other similar component of software or electronically stored information that is intended in any manner to (a) damage, destroy, alter, or adversely affect the operation of the Software, the Web Site, or any other software, firmware, hardware or service in connection with which the Data is used, or (b) reveal, damage, or alter any data or other information.

4.  Metadata; Placement of Restrictions.  The Data provided by Provider must be registered on the Web Site and must contain certain metadata (the “Metadata”) for purposes of accurate identification, attribution, and terms and conditions for use of Data by others.  In the Metadata, Provider must state clear and comprehensive terms and conditions for the use of its Data.  The eMammal Program has adopted a Creative Commons “Attribution-NonCommercial-ShareAlike” license (to the largest extent legally and practically feasible), meaning the Data is publically available following the Provider-set embargo periods.

5.  Acknowledgment.  SI will acknowledge each institutional Provider of Data to the Web Site in an equal manner, without regard to the specific number or quality of Data provided.  Provider hereby grants SI a license to use Provider’s name and, if applicable, logo for the sole purpose of acknowledging Provider on the Web Site and in promotional and publicity materials related thereto.  Any other use of Provider’s name and/or logo by SI shall require Provider’s prior written consent.

6.  Public Availability of Data; Sensitive Data.  Provider agrees that all Data that it provides to the Web Site, will eventually be publicly available through the website.  Provider agrees that any images of humans will not be available at the public website but will reside within the digital repository for review by the Provider.  With respect to images that include IUCN endangered or critically endangered species, Provider may provide the Data to the Web Site; however, SI will obscure the geographic location of the image so that the precise location of the image cannot be determined from the Data. Users of the Web Site or the Software and/or access Data and who seek additional information on images that include IUCN endangered or critically endangered species, will be advised to contact the eMammal staff or Provider directly with any requests.  Permission and access to use and download IUCN Red List critically endangered and endangered species will be given on a case by case basis by SI to ensure data will be used per the goals of the eMammal. Users may also select species of concern that will have geographic locations restricted.

7.   Research Embargo Period. Provider’s actively collecting data for a project may request an embargo of metadata for a limited period of up to 3 years. During the embargo period images from the project may be displayed but no associated metadata.  Data will be available to public and Provider through the website. Provider can also request downloads of data through the eMammal Program Manager.  Once the Provider is no longer actively providing data, data will remain accessible, but SI reserves the right to shift webpage into “inactive project” status and reduce its visibility at the website. 

 

III. LICENSES

1.  License to Use Data.  Provider hereby grants to SI the royalty-free, nonexclusive, worldwide right, but not the obligation, to use, reproduce, publish, distribute, or otherwise use all Data (including, without limitation, to aggregate it with other data to create new products, to copy it, to cache it and to incorporate it into other works in any form, media or technology now known or later developed), and to sublicense such rights to third parties for purposes within the scope of the Data, Software and Web Site User Agreement (Attachment).  Provider hereby grants to SI the right to obfuscate geographic locations of any images provided by Provider that include IUCN endangered or critically endangered species or species designated by the Provider.

2.  Request to Remove Data.  Provider may request, in writing, that SI remove all, or individual camera trap project Data from the Web Site.  Upon receipt of a written request, SI will endeavor to remove the Data from the Web Site as soon as reasonably possible, and will notify Provider when the removal has been completed.  Provider acknowledges and agrees that the removal of Data from the Web Site does not impact the rights of SI or any third party sublicensee with respect to any Data that was accessed, downloaded and/or used, reproduced, published or distributed by such third party prior to its removal from the Web Site.

 

IV. SOFTWARE AND WEB SITE

1.  Disclaimer.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, SI WILL HAVE NO LIABILITY RELATED TO THE DATA, OR USE OF THE DATA BY SI OR ANY THIRD PARTY, ARISING UNDER INTELLECTUAL PROPERTY RIGHTS, LIBEL, PRIVACY, PUBLICITY, OBSCENITY OR OTHER LAWS.  SI ALSO DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO THE MISUSE, LOSS, MODIFICATION, OR UNAVAILABILITY OF ANY DATA BY SI OR ANY THIRD PARTY.

2.  Limitation of Liability.  IN NO EVENT SHALL SI, ITS REGENTS, OFFICERS,  EMPLOYEES, INDEPENDENT CONTRACTORS,  OR AGENTS BE LIABLE TO PROVIDER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND, OR ANY DAMAGES OR LOSSES WHATSOEVER, INCLUDING THOSE RESULTING FROM MISUSE OF DATA, OR FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT FORESEEABLE OR EVEN IF SI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, AND ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH: (1) ANY INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED; AND (2) ANY FAILURE TO STORE OR LOSS OF DATA OR OTHER CONTENT.

3.  Indemnification.  Provider agrees to indemnify, defend and hold harmless SI and its REGENTS, officers, employees, independent contractors and agents from any and all third-party claims, including reasonable attorneys' fees, due to or arising from: (a) Data that PROVIDER may submit, post to or transmit to SI (including a third party’s use of such Data or content (e.g. reliance on the accuracy, completeness or usefulness of PROVIDER’s Data)); (b) Provider’s violation of this Agreement; and (c) Provider’s infringement of any third party’s copyright, trademark, or other proprietary rights, violation of privacy rights or publicity rights, and libel or violation of any other law in connection with this Agreement.

4. Scheduled Maintenance. SI or its service providers may apply upgrades, patches, bug fixes or other maintenance to the eMammal Program. SI will use reasonable efforts to provide prior notice of any scheduled maintenance and Providers agrees to use reasonable efforts to comply with maintenance requirements that SI or its service provider notifies Provider about.

5. Refunds. There is no refund of monies paid. Startup fees are used to establish project. Project access is purchased in units of camera months and can be renewed at any time.

6.  Privacy. Personal information that we obtain from Provider during project setup will be stored in accordance with SI’s privacy policy, available at http://www.si.edu/Privacy.

7. Uploaded information is being stored by Amazon Web Services. Please read their privacy policy here: http://www.amazon.com/gp/help/customer/display.html?nodeId=468496.

V.  GENERAL

1.  Venue/Choice of Law.  The Web Site is controlled, operated and administered by SI from its offices within the United States of America.  SI reserves the right to seek equitable or injunctive relief in any jurisdiction in the world. This Agreement shall be governed by federal law and the law of the District of Columbia, without reference to conflict of law rules.

2.  International Users.  The Web Site is controlled, operated and administered by SI from its offices within the United States of America. SI makes no representation that the Software or the Web Site are appropriate or available for use at other locations outside the United States, and access to the Web Site from territories where the Software or the Web Site are illegal is prohibited. If Provider accesses the Web Site from a location outside the United States, Provider is responsible for compliance with all local laws.

3.  Modification.  SI may, in its sole discretion, modify portions of this Agreement at any time. SI may notify you of any changes by posting notice of such modifications on the Web Site or sending notice via e-mail, postal mail or other means. Your continued use of the eMammal program and the Web Site following notice of such modifications shall be deemed to be your acceptance of any such modifications to the Agreement.

4.  Notice. SI may provide notice to Provider by posting a notice on the eMammal website or sending a message to the email address them associated with Provider’s account.  It is Provider’s responsibility to keep its email address current. To give notice to SI, contact emammal@si.edu

5. Relationship of the Parties.  You agree that no joint venture, partnership, employment or agency relationship exists between you and SI as a result of this Agreement or provision of Data to the eMammal program.

6. Severability.  In the event that any portion of this Agreement is deemed to be invalid of unenforceable pursuant to applicable law including, but not limited to the warranty disclaimers and liability limitations set forth herein, the remaining provisions of this Agreement shall remain in full force and effect.

7. No Waiver.  SI’s failure to exercise or enforce any right or provision contained in this Agreement shall not constitute a waiver of that right or provision.

8.  Titles.  Section headings within this Agreement are for convenience only.

9.  Entire Agreement.  This Agreement constitutes the entire agreement between Provider and SI and supersedes all prior or contemporaneous understandings, communications or agreements, written or oral, regarding such subject matter.