Terms of Service - Privacy Policy


Calflora Terms of Service
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. These Terms of Service constitute an agreement (this "Agreement") by and between: (i) Calflora, a California nonprofit corporation ("Calflora"), and (ii) the person executing this Agreement, or, if such person is using or will use Calflora on behalf of an entity, then such entity ("You"). This Agreement is effective as of the date You click the button indicating assent to these terms of service (the "Effective Date"). Your use of and Calflora's provision of Calflora's System (as defined below in Section 1.3) are governed by this Agreement. Each party acknowledges that it has read this agreement, understands it, and agrees to be bound by its terms.
1.DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1.	"Your Data" means data entered into the System by You, including observations and Weed Manger treatments.
1.2.	"Privacy Policy" means Calflora's privacy policy, currently posted at //www.calflora.org/tos.html#privacy
1.3.	"System" means Calflora's website at calflora.org, as well as the underlying database of observations and photographs of plants in California and any other websites or applications (including but not limited to the Calflora Pro application) used to access or submit information to the System.
1.4.	"Term" is defined in Section 9.1 below.
1.5.	"User" means any individual who uses the System on Your behalf or through Your account or passwords, whether authorized or not.
1.6.	"Public Data" means data that you have uploaded to the System and published, excluding images.
1.7.	"Private Data" means your email address and any other data you submit to Calflora that is not marked for publication.
2. SYSTEM FEES. Most portions of the Service are provided free of charge. For others, such as Weed Manager or other designated parts of the System, You may have to pay Calflora a fee for access, which will be set forth in a separate ordering method specifying the term and pricing. After they are paid, Calflora will not be required to refund such fees under any circumstances.
3. YOUR DATA AND PHOTOGRAPHS.
3.1.	Public Domain Grant Of Public Data. You agree to permanently relinquish your rights and dedicate the Public Data into the public domain (with a public license fallback) in and to the Public Data pursuant to the terms of the "Creative Commons Zero" CC0 Creative Commons 1.0 Universal, available at https://creativecommons.org/publicdomain/zero/1.0/legalcode. For existing users this grant pertains to data previously uploaded to the service and is intended as a clarification of the "I grant permission to the public to use data I contribute" phrasing that was part of the Calflora signup process.
3.2.	License To Photographs: Creative Commons By Default. For photographs that you upload to the Service, or have uploaded in the past (even if such photographs were uploaded pursuant to a different license), you agree to apply a Creative Commons BY-NC 4.0 license (legal language available at: https://creativecommons.org/licenses/by-nc/4.0/legalcode) to such photographs.
3.3.	Option To Select Calflora-Only License for Photographs. You may subsequently change the license for photographs in the preferences section of the website to be "Calflora use only", instead of Creative Commons BY-NC, in which case you have granted Calflora a perpetual, irrevocable, worldwide, royalty-free license to use the photograph in the System and in other uses by Calflora in the course of its mission to provide information about plants in California, such as use by Calflora staff in presentations and in Calflora publications. The license granted by this paragraph is transferable to another entity assuming control over the Calflora database or a successor to it. You may delete your photographs through the service, in which case Calflora will make reasonable efforts to discontinue its use. Changing the license as it is published does not terminate the Creative Commons license for persons that obtained it via the Service while it was published under such license.
3.4.	Depublication of Public Data. Your Public Data will be provided as part of the service to the public at large, including possibly copies of data provided to Calflora's partners. If You change the designation of an observation or other data from "published" to "unpublished" or "private", Calflora may depublish that data on the Service as a courtesy to you, but the public domain dedication and/or license in 3.1 will remain in effect.
3.5.	Calflora Use of Private Data. Unless it receives Your prior written consent, Calflora will make reasonable efforts to only access, process, or otherwise use Private Data as specified in the Calflora Privacy Policy. Calflora may also disclose Your Data as required by applicable law or by proper legal or governmental authority. Calflora will use your email address to give You prompt notice of any such legal or governmental demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure, at Your expense.
3.6.	Scope of Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third party website or service linked to the System or recommended or referred to through the System or by Calflora's staff.
3.7.	Risk of Exposure. You recognize and agree that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, You assume such risks. Calflora offers no representation, warranty, or guarantee that Your Data will not be exposed or disclosed through errors or the actions of third parties, or by Calflora itself. Notwithstanding anything in subsection 3.3, You acknowledge and understand that the primary purpose of Calflora is as a public database and it is not a suitable storage service for data that requires a high degree of security, and Calflora's liability for accidentally published or lost data is limited pursuant to section 8. In particular, Calflora does not assume any liability for the security of chemical treatment data Weed Manager users have submitted, or for the security of the locations of rare or endangered plants, or for any change in property value due to the publication of data relating to plants present on the property.
3.8.	Data Accuracy. The data provided by the system is as-is. Much of the data is provided by amateur volunteers and not verified by experts, and accordingly may be inaccurate. Calflora will have no responsibility or liability for the accuracy of data uploaded to the System, including without limitation Your Data and any other data uploaded by other Users. Weed Manager users should not rely solely on the summaries, reports, or analyses of Weed Manager, and the User assumes the ultimate responsibility for verifying the accuracy of the reports and the purposes for which such reports are suitable.
3.9.	Data Storage and Deletion. Except for paid subscriptions, Calflora does not assume any obligation to host your content for any period of time, and may delete some or all of your data at any time, in its sole discretion. For paid subscriptions, Calflora will make reasonable efforts to maintain your data while you are a paid subscriber.
3.10.	Aggregate & Anonymized Data. Calflora may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. "Aggregate Data" refers to Your Data with the following removed: personally identifiable information and the names and addresses of You and any of Your Users, and includes unpublished observations with such information removed.
4. YOUR RESPONSIBILITIES & RESTRICTIONS.
4.1.	Acceptable Use. You shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System or reproduce a significant portion of the System or underlying database; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service. In the event that it suspects any breach of the requirements of this Section 4.1, Calflora may suspend Your access to the System without advance notice, in addition to such other remedies as Calflora may have. This Agreement does not require that Calflora take any action against You or any User or other third party for violating this Section 4.1 or this Agreement, but Calflora is free to take any such action it sees fit.
4.2.	Unauthorized Access. You shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting Your passwords and other log-in information. You shall notify Calflora immediately of any known or suspected unauthorized use of the System or breach of its security.
4.3.	Compliance with Laws. In Your use of the System, You shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Your Data.
4.4.	Users & System Access. You are responsible and liable for: (a) any use of the System through Your account, whether authorized or unauthorized; and (b) any use of the System by Users performing services for You.
5. IP & FEEDBACK.
5.1.	IP Rights to the System. Calflora retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant You any intellectual property license or rights in or to the System or any of its components. You recognize that the System and its components are protected by copyright and other laws.
5.2.	Feedback. Calflora has not agreed to and does not agree to treat as confidential any Feedback (as defined below) You or Users provide to Calflora, and nothing in this Agreement or in the parties' dealings arising out of or related to this Agreement will restrict Calflora's right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting You or the User in question. "Feedback" refers to any suggestion or idea for improving or otherwise modifying any of Calflora's products or services.
6. REPRESENTATIONS & WARRANTIES.
6.1.	Each party represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 13 years or older, or another entity authorized to do business pursuant to applicable law.
6.2.	Warranty Disclaimers. You accept the system "as is" and as available, with no representation or warranty of any kind, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, or noninfringement of intellectual property rights, or any implied warranty arising from statute, course of dealing, course of performance, or usage of trade. Without limiting the generality of the foregoing: (a) Calflora has no obligation to indemnify or defend you or users against claims related to infringement of intellectual property; (b) Calflora does not represent or warrant that the system will perform without interruption or error; and (c) Calflora does not represent or warrant that the system is secure from hacking or other unauthorized intrusion or that your data will remain private or secure.
7. INDEMNIFICATION. You shall defend, indemnify, and hold harmless Calflora and the Calflora Associates (as defined below) against any "Indemnified Claim," meaning any third party claim, suit, or proceeding arising out of or related to Your alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Your Data, caused by Your action or inaction; (b) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Your account, including without limitation by Your Data; and (c) claims that use of the System through Your account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Calflora's negligence. Your obligations set forth in this Article 7 include retention and payment of attorneys and payment of court costs, as well as settlement at Your expense and payment of judgments. Calflora will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The "Calflora Associates" are Calflora's officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
8. LIMITATION OF LIABILITY.
8.1.	Dollar Cap. CALFLORA'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $250.
8.2.	Exclusion of Consequential Damages. IN NO EVENT WILL CALFLORA BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
8.3.	Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 8 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF CALFLORA IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 8, Calflora's liability will be limited to the maximum extent permissible. For the avoidance of doubt, Calflora's liability limits and other rights set forth in this Article 8 apply likewise to Calflora's affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
9. Term & Termination.
9.1.	Term. The term of this Agreement (the "Term") will commence on the Effective Date and continue until terminated.
9.2.	Termination for Cause. Either party may terminate this Agreement for the other's material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
9.3.	Termination for Convenience. Either party may terminate this agreement for convenience on thirty days' notice.
9.4.	Effects of Termination. Upon termination of this Agreement, You shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of You to pay fees incurred before termination; (b) Sections 3 (Your data and Photographs), 5 (IP & Feedback), 6.2 (Warranty Disclaimers), 7 (Indemnification), and 8 (Limitation of Liability); 10 (Miscellaneous) and (d) any other provision of this Agreement that must survive to fulfill its essential purpose.
10. MISCELLANEOUS.
10.1.	Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf.
10.2.	Notices. Calflora may send notices pursuant to this Agreement to Your email address provided as part of your registration for the Service, and such notices will be deemed received 24 hours after they are sent. You may send notices pursuant to this Agreement to Calflora, 1700 Shattuck Ave. #198, Berkeley CA 94709 by trackable overnight courier, and such notices will be deemed received 72 hours after they are received at such address.
10.3.	Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control.
10.4.	Assignment & Successors. You may not assign this Agreement or any of its rights or obligations hereunder without Calflora's express written consent. Calflora may assign this Agreement and its rights or obligations to another party without your prior written consent. Except to the extent forbidden in this Section 10.4, this Agreement will be binding upon and inure to the benefit of the parties' respective successors and assigns.
10.5.	Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
10.6.	No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
10.7.	Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties' rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts in Alameda, California. This Section 10.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
10.8.	Class Action and Jury Trial Waiver. You acknowledge and agree that You and Calflora are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both You and Calflora otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding.
10.9.	Conflicts. In the event of any conflict between this Agreement and any Calflora policy posted online, including without limitation the Privacy Policy, the terms of this Agreement will govern.
10.10.	Technology Export. You shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Calflora or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, You shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo.
10.11.	Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
10.12.	Amendment. Calflora may amend this Agreement from time to time by posting an amended version at its Website and sending You written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the "Proposed Amendment Date") unless You first give Calflora written notice of rejection of the amendment.

Calflora Privacy Policy

Last updated: September 18, 2018

Information We Collect

The Website may collect the following Personally Identifiable Information ("PII") from users who use our services:

Name, e-mail address, list of user groups you belong to (e.g., your company), address, amounts of donations or payments, and other information you submit voluntarily as part of an interaction with us (e.g., content of emails). Search queries are kept, but only in association with an IP address, not other PII. The Website uses cookies, and may store the above-listed information (except search queries) in one or more cookies. The Website may use IP address and/or http session information to track your path through the website.

The "Observer Pro" Android phone application uses a third party service (Crashlytics) that collects information that may be used to identify you.

How We Use Your Information

Email Communications.
Calflora will use your email address to communicate with you about news and updates to the Website, and about Calflora as an organization, such as events and new projects. You can unsubscribe from receiving these emails by clicking on the "unsubscribe" link in the footer of these emails. Calflora will not share your email address with any other third party besides its email communications service provider, which is currently Constant Contact. Calflora may share your email with another email communications service provider if it changes the one it uses. Calflora will not share your email with any other category of company, or with a person or company that would re-share your email address, without your permission.

Calflora may send emails to the address you provide for other types of communications you elect to receive, such as "alert" emails for new results pertaining to a search you specify, or notifications of activity in user groups you belong to.

Calflora staff may also communicate with you about specific observations that you have made: for example, to encourage you to publish certain of your observations of public interest, or to request follow-up information on your observations of particular scientific or other interest.

Your name (as provided by you during registration) will be associated with any observations that you make and publish, including photographs. By default, your email address is not provided to other Calflora users. You may choose to provide your email address to other registered Calflora users in the preferences section of the website.

Calflora uses IP address and/or HTTP session information to understand how you use the Website (such as what pages you visit), and to generate aggregate reports about our userbase from information that is transmitted in the normal course of HTTP client-server interactions.

Email Regarding Comments on Your Records
When you make a new account, a preference is automatically set for you to receive email about comments on your records on a weekly basis. This means that if you add an observation and publish it, and if another user comments on it, you will receive an email about their comment.

You may subsequently change this preference in the preferences section of the website so that these emails are sent on an hourly basis, a daily basis, or not at all.

Because comments on observation records are an important part of Calflora's quality control effort, we encourage you to continue to receive email about comments on your records, and to respond to those comments as appropriate.