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July 5th, 2008
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CULTUREGRANTS ONLINE(sm) END USER TERMS AND CONDITIONS
By clicking "Yes" to the "I agree" option in the Terms of Use dialog box, the user agrees that the following terms and conditions (the "Agreement") apply between user and The Western States Arts Federation ("WESTAF"), a Colorado non-profit corporation, with respect to the user's use of the Web Site and CultureGrants Online (sm) Software, as defined below, including, but not limited to, use to submit digitized attachments and text to CultureGrants Online (sm) licensees ("Licensees") as an application for grant monies. 1.Certain Definitions. For purposes of this Agreement, the following definitions shall apply: "Agreement" shall mean this Agreement as agreed to and accepted by the Applicant's actions in clicking on the "I agree" option in the Terms of Use dialog box of the CultureGrants Online(sm) Software. "Application" means the information requested by Licensees concerning Applicant's data and history, training, education, experience and work which is submitted by the Applicant to Licensees through use of the CultureGrants Online (sm) Software. "Applicant" shall mean the individual user or organization identified taking action to accept the terms of this Agreement. "Attachments" shall mean digitized support materials uploaded to the CultureGrants Online(sm) Software which are tangible works created by Applicant in support of the Application, the copyright to which remains with the Applicant, and which the Applicant submits to Licensees for consideration as part of Applicant's Application under the terms of this Agreement. "CultureGrants Online (sm) Software" means the web based software which is used in conjunction with the Web Site. "Database" shall mean the database of Applications and digitized attachments maintained on the Web Site. "Web Site" shall mean the site on the World Wide Web through which Applicant last clicked to reach this Agreement and which is maintained under the CultureGrants Online(sm) trademark for the submission of Applications and Attachments by Applicants for purposes of allowing Applicants to apply for and have their Applications and Attachments evaluated by Licensees or the jury panel for possible funding by the Licensees. 2. Submission of Applications and Attachments. The Applicant's submission of Attachments and Applications through the CultureGrants Online (sm) Software shall, as between Applicant and WESTAF, be under and subject to the terms and conditions of this Agreement. The terms and conditions of Applicant's submission of Attachments and Applications to Licensees reached between Applicant and Licensees shall not alter or in any way change the terms of this Agreement. 3. WESTAF's Limited Obligations. WESTAF's obligation to Applicant is to transmit and store Applications and Attachments as described in the CultureGrants Online(sm) Software. WESTAF does not verify the completeness or quality of Applications or Attachments. 4. Grant of Limited Rights; No Copyright Transfer. Applicant hereby grants to WESTAF a nonexclusive license to use the Attachments and Application for the following limited purposes: (a) to permit WESTAF to facilitate the transmission of or to actually transmit the Applications, together with submitted Attachments, to Licensees and Licensee panelists to which Applicant has submitted Applications and (b) for storage of Applicant's Applications, together with submitted Attachments, in the non-public sections of the Database, subject to retrieval by Licensees and Licensee panelists. The limited rights and license granted under this Agreement do not include any assignment or transfer of the copyright in the Attachments and Applications and do not include any right to otherwise reproduce, digitize, edit, modify, distribute, or publicly display the Attachments and Attachments, in whole or in part. 5. Applicant represents and warrants to WESTAF, that (A) the Attachments was created exclusively by Applicant; (B) Applicant is the sole owner of all rights in the Attachments; (C) by entering into this Agreement and submitting the Application and Attachments through the CultureGrants Online (sm) Software, Applicant is not violating any agreement with any third party; and (D) the Attachments do not infringe upon any intellectual property, privacy, publicity, or other rights of any third party (the "Applicant's Representations"). The Applicant will provide WESTAF with appropriate documentation which establishes Applicant's Representations in the form reasonably requested by WESTAF. 6. Return of Attachments. WESTAF has no responsibility to Applicant for the return of any Attachments submitted through the CultureGrants Online(sm) Software, nor for Licensees' obligation, if any, to remove any Attachments from the Web Site. 7. Applicant's Limited Rights. By using the CultureGrants Online(sm) Software and the Web Site, Applicant acquires no rights in the CultureGrants Online(sm) Software, the Web Site and, except for Applicant's Applications and Attachments submitted as part of his or her Application, the content of the Database. 8. Duty of Care. WESTAF will use reasonable efforts to control the security of the Web Site, but does not warrant that the Web Site will be able to protect Applications and Attachments from infringement or piracy. Applicant acknowledges that technological advances of those trying to break codes and encryption devices may outpace the technology of encryption and security and that there is no such thing as an absolutely secure web site. The Applicant further acknowledges that the publication of digitized data on the Internet necessarily makes it possible for Attachments to be copied in some form and for dishonest people to attempt to profit from that copying. Applicant agrees that WESTAF shall have no liability for any negligence or lack of due care in failing to protect the security of the Web Site and Applicant's rights in the Applications and Attachments, but, subject to the other limitations of Section 9 of this Agreement, WESTAF shall be liable for any gross negligence and intentional wrongdoing on its part with respect to the security of the Web Site and the protection of the Applicant's rights in the Applications and Attachments. 9. Limitation of Liability. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE WEB SITE AND CULTUREGRANTS ONLINE (sm) SOFTWARE ARE PROVIDED AS-IS AND WITHOUT ANY WARRANTIES. WESTAF HEREBY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE WEB SITE AND THE CULTUREGRANTS ONLINE (sm) SOFTWARE. IN NO EVENT WILL WESTAF BE LIABLE TO APPLICANT FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR OFFENDED MORAL RIGHTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WESTAF, SHALL HAVE NO OBLIGATION TO PROTECT APPLICANT'S COPYRIGHTS OR MORAL RIGHTS, IF ANY, IN THE APPLICATIONS AND ATTACHMENTS. APPLICANT'S SOLE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY WESTAF, FOR ANY UNAUTHORIZED PUBLICATION OF ATTACHMENTS THROUGH THE WEB SITE AND FOR ANY OTHER CLAIMED HARM FROM USING THE CULTUREGRANTS ONLINE(sm) SOFTWARE OR WEB SITE, WHETHER CAUSED OR ALLEGED TO BE CAUSED BY WESTAF, SHALL BE APPLICANT'S ACTUAL DAMAGES, IF ANY, SUBJECT TO A LIMITATION OF $500 PER CLAIM OR $2,500 IN THE AGGREGATE FOR ALL CLAIMS UNDER THIS AGREEMENT. 10. Indemnification. The Applicant agrees to indemnify, defend and protect WESTAF, for any cost and expense, including attorney's fees, incurred by as a result of any breach of the Applicant's Representations. 11. Agreement Modifications. All modifications to and amendments of this Agreement must be in writing and signed by both Applicant and WESTAF. 12. Governing Law; Dispute Resolution. This Agreement shall be governed by the laws of the state of Colorado, excluding its conflict of law principles. Except as provided in the following sentence of this Section, any claim, dispute or controversy arising out of or relating to this Agreement shall be submitted by the parties to binding arbitration in accordance with the commercial rules of the American Arbitration Association, to be held in Denver, Colorado, by a single arbitrator who shall be a lawyer with at least five years of experience in intellectual property law or online e-commerce law. Nothing in this Section shall be deemed as preventing either party from seeking equitable relief from the courts as necessary to protect its name, copyrights, proprietary information, trade secrets, or any other appropriate provisional remedy prior to or pending the outcome of any arbitration proceeding. Judgment on an arbitration award may be entered in any court having jurisdiction thereof. The parties shall be entitled to standard discovery as provided for in the Colorado Rules of Civil Procedure. The cost of arbitration shall be borne equally by the parties. 13. Liberal Construction. This Agreement is between commercially sophisticated parties and may not be construed and interpreted for or against either party. Each party is aware that each is free to seek independent professional guidance or legal counsel regarding this Agreement. Each party has either sought such guidance or legal counsel or decided, after reviewing the Agreement carefully, to waive such right. The limited rights and license granted under this Agreement do not include any assignment or transfer of the copyright in the Attachments and Attachments and do not include any right to otherwise reproduce, digitize, edit, modify, distribute, or publicly display the Attachments and Attachments, in whole or in part.
