User Agreement

This page contains the User Agreement (“Agreement”) between you and South Dakota Health Technology Innovations Inc. (“SDHTI”), the publisher of this Handheld Birds Web Site (the “Site”). You may wish to print this page for reference.

This Agreement sets forth the terms and conditions for your use of this Site. Your use of the Site constitutes your agreement to these terms and conditions.

1. Your Rights

SDHTI grants you a non-exclusive, non-transferable, limited right to access, use, and display this Site and the materials provided hereon, and to download or print content displayed on our Site provided that you comply fully with this Agreement. The contents of the Site are only for your personal, noncommercial use. You agree not to interrupt, or attempt to interrupt, the operation of the Site or any part of it in any way.

2. Service Charges and Payment

SDHTI may charge you fees for certain products or services offered for sale through our Site. Certain Site services are available only through the purchase of a Site subscription ("Subscription-Based Services"), some of which, at your option, may be billed either monthly or once annually. The "View Subscription" page can be accessed through a link on the navigation. You will be sent a reminder notice before the expiration of your subscription term.

• (a) You agree to pay, using a valid payment card which SDHTI accepts, all fees and charges, including applicable taxes, you have incurred through your account, including the monthly or annual subscription charges to access the Subscription-Based Services. SDHTI reserves the right to increase fees and surcharges, including fees for Subscription-Based Services, or to institute new fees at any time, upon reasonable notice posted in advance on this Site or sent to you based on contact information you provide in your "View Subscription" page. If you purchase a Subscription-Based Service product your rate remains in effect throughout the subscription period, and is subject to increase only for subsequent subscription renewals.
• (b) In addition to the charges set forth above, you are responsible for all charges associated with connecting to the Site, including without limitation all telephone access lines (including long-distance charges, when applicable), telephone and computer equipment and any service fees necessary to access our Site, including the Subscription-Based Services.
• (c) For purposes of identification and billing, you agree to provide SDHTI with accurate, complete, and updated information required when purchasing a product or service on our Site, including registering for a Subscription-Based Service ("Registration Data"). Registration Data may include your name, address, telephone number(s), email address and applicable payment card data (e.g., payment card number and expiration date). Failure to comply with this provision (including without limitation falsification of any Registration Data) may, at SDHTI's option, result in immediate suspension or termination of your right to use our Site, including the Subscription-Based Services.
• (d) You agree to promptly update your password in your "Change Password" page if you know of or suspect unauthorized use of your Subscription-Based Service, or in the event of any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password. In the event of a breach of security on your part, you will remain liable for any unauthorized use of your subscription until you update your password. If your Subscription-Based Service is subject to use without your authorization, go to your "Change Password" page to update your password or contact Customer Service at support@mobileFieldGuides.com.

3. Copyright and Trademarks

All materials on the Site, including without limitation text, images, software, audio, and video clips, databases, and Subscription-Based Services (collectively, the "Content") are owned or controlled by SDHTI or the party credited as the provider of the Content. The respective owner retains all right, title, and interest in and to its Content. The Site and Content are protected by the copyright and trademark laws of the United States and other countries, international conventions, and other applicable laws.

You may not download, display, reproduce, create derivative works from, transmit, sell, distribute, or in any way exploit the Site or any portion thereof, including without limitation our images, audio, and text for any public and/or commercial use without the prior written permission of SDHTI.

You agree not to use any trademarks, service marks, names, logos, or other identifiers of SDHTI or its employees, licensors, independent contractors, providers and affiliates (collectively, "Affiliates") without the prior written permission of SDHTI or the relevant Affiliate. In addition, you may not use our trademarks:

• (a) in, as, or as part of, your own trademarks or those of any third parties;
• (b) to identify products or services that are not those of SDHTI;
• (c) in a manner likely to cause confusion; or
• (d) in a manner that implies that SDHTI sponsors or endorses or is otherwise connected with your own activities, products, and services or those of third parties.

Handheld Birds and other related marks used on this site are registered trademarks of South Dakota Health Technology Innovations, Inc. in the United States and other countries.

4. Your password

As part of the registration process for Subscription-Based Services you will receive a randomly generated password. This password is for your individual use only. You have the option to change your password using the “Change Password” page. You are solely responsible for maintaining the confidentiality of any password you use to access the Subscription-Based Services and other products and features, and agree that SDHTI will have no obligations with regard thereto.

5. Information Provided

You acknowledge that any reliance upon any advice, opinion, statement, or other information displayed or distributed through the Site is at your sole risk. SDHTI reserves the right, in its sole discretion and without notice, to correct any errors or omissions in any portion of the Site, or to deny access to the Site to anyone acting in violation of this User Agreement at any time. You acknowledge and agree that SDHTI is not responsible for any materials posted by users of the Site. Prior to purchasing any third-party products or services described on the Site, you are advised to verify pricing and other information. Neither SDHTI nor its Affiliates shall have any liability arising from your purchases of third-party goods or services based upon the information provided on the Site.

6. No-Commercial Use Policy

You agree to use the Site, Forums and products and services you purchase through out Site, including the Subscription-Based Services, only in a noncommercial manner. You specifically agree not to post, transmit or otherwise distribute to the Site (including without limitation to any Forum) any material containing any solicitation of funds, advertising or solicitation for goods or services.

7. Links to Other Sites

The Site may contain links and pointers to other sites on the Internet which may be maintained by third parties. Such links do not constitute an endorsement by SDHTI or its Affiliates of any third-party site or any materials contained therein. SDHTI and its Affiliates do not control, and are not responsible for, the availability, accuracy, privacy policy, or currency of such third-party sites or any information, content, products or services accessible from such third-party sites.

8. Age Restrictions

You represent and warrant to SDHTI that you are at least eighteen (18) years old and that you possess the legal right and ability to enter into this Agreement and to use the Site in accordance with this Agreement.

9. Financial Responsibility

You agree not to assign, transfer or sublicense your rights as a subscriber to the Subscription-Based Services. You agree to be financially responsible for all usage or activity on your Subscription-Based Services account.

10. Indemnification

You hereby agree to indemnify, defend and hold harmless SDHTI and its Affiliates from and against any and all liability and costs incurred by SDHTI or the Affiliates in connection with any claim arising out of any breach or alleged breach of any of your representations, warranties or obligations set forth in this Agreement. You shall cooperate as fully as reasonably required in the defense of any claim. SDHTI 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 the written consent of SDHTI.

11. DISCLAIMER OF WARRANTY

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SITE (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, SUBSCRIPTION-BASED SERVICES OR OTHER PAID PRODUCTS OR SERVICES, MATERIALS AND INFORMATION MADE AVAILABLE THEREON OR ACCESSED BY MEANS THEREOF) ARE PROVIDED "AS IS" AND "AS AVAILABLE." SDHTI DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR THE SUBSCRIPTION-BASED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR SUBSCRIPTION-BASED SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY, OR THAT THE SITE, INCLUDING FORUMS OR THE SERVER(S) ON WHICH THE SITE IS OPERATED, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SDHTI AND ITS AFFILIATES DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT THE PURPOSE HAS BEEN DISCLOSED), COMPATABILITY, SECURITY, ACCURACY, OR NON-INFRINGEMENT.

12. LIMITATION OF LIABILITY

USE OF THIS SITE IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, COMMUNICATIONS, CONTENT, OR OTHER MATERIAL (INCLUDING WITHOUT LIMITATION SOFTWARE) ACCESSED THROUGH OR OBTAINED BY MEANS OF THIS SITE.

UNDER NO CIRCUMSTANCES SHALL SDHTI OR ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, OR ANY THIRD-PARTY PROVIDER OF TELECOMMUNICATIONS OR NETWORK SERVICES, SITE SOFTWARE OR SITE CONTENT FOR SDHTI OR ITS AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR PERSONAL INJURY AND/OR DEATH, LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO YOUR USE OF OR INABILITY TO USE THIS SITE OR THE SUBSCRIPTION-BASED SERVICES, EVEN IF SDHTI, ITS AFFILIATES, OR THEIR PROVIDERS OF TELECOMMUNICATIONS OR NETWORK SERVICES, CONTENT OR SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY.

THE TOTAL LIABILITY OF SDHTI AND ITS AFFILIATES HEREUNDER IS LIMITED TO THE AMOUNT, IF ANY, ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE SUBSCRIPTION-BASED SERVICES. YOU HEREBY RELEASE SDHTI AND ITS AFFILIATES FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR THESE KINDS OF DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

13. Termination

In addition to any other rights of the parties set forth herein, SDHTI may cancel or terminate this Agreement at any time. SDHTI also reserves the right to restrict, suspend or terminate your access to the Site and/or the Subscription-Based Services in whole or in part, without notice, with respect to any breach or threatened breach by you of any portion of this Agreement. If SDHTI terminates this Agreement (and therefore your access to the Site) based on a breach of any portion of this Agreement, SDHTI reserves the right to refuse to provide access to the Site or a subscription or any Subscription-Based Services to you in the future.

14. Modifications

• (a) To the Agreement.

  SDHTI has the right to modify this Agreement and any policies affecting the Site. Any modification is effective immediately upon posting to the Site or distribution to you via electronic mail or conventional mail. Your continued use of the Site following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s).

• (b) To the Site.

  SDHTI has the right to modify, suspend or discontinue the Site or any portion thereof at any time, including the availability of any area of the Site and the Subscription-Based Services. SDHTI may also impose limits on certain features and services or restrict your access to parts or all of the Site without notice or liability.

15. General

This Agreement constitutes the entire agreement between you and SDHTI with respect to the Site and to your purchase of SDHTI’s products and services offered through this Site, if applicable, including the Subscription-Based Services, and supersedes all prior agreements between you and SDHTI. Failure by SDHTI 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 South Dakota (excluding its choice of law rules). 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.