GO SMART™ 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 (defined below as the Applicant) and The Western States Arts Federation ("WESTAF"), a Colorado non-profit corporation, with respect to the Applicant's use of the Web Site and GO Smart Service, as defined below.
1. Certain Definitions. For purposes of this Agreement, the following definitions shall apply:
"Agreement" means 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 GO Smart Service.
"Application" means the information requested by a Licensee and provided by an Applicant concerning the Applicant's personal identifying information and relevant history, training, education, experience and Work Samples which are submitted by the Applicant to the Licensee through use of the GO Smart Service.
"Applicant" means the individual user or organization identified as taking action to accept the terms of this Agreement.
"GO Smart Service" means the online grant application and management service which is available exclusively through the Web Site; the GO Smart Service accepts Applications and associated Work Samples from persons applying for grants and holds and manages the Applications and associated Work Samples in an interactive data base.
"Database" means the database of Applications and associated Work Samples maintained through the GO Smart Service.
"Licensee" means a grant awarding organization that has licensed the right from WESTAF to accept and/or manage its grant applications and grant awards online through the GO Smart Service.
"Web Site" means the site on the World Wide Web through which Applicant last clicked to reach this Agreement and through which the GO Smart Service is accessed.
"Work Samples" means tangible works created by Applicant (the copyright to which remains with the Applicant) and any other materials in support of an Application which the Applicant submits to Licensees in a digital form through the GO Smart Service under the terms of this Agreement for consideration as part of Applicant's Application.
2. Submission of Applications and Work Samples. The Applicant's submission of Applications and Work Samples through the GO Smart Service shall, as between Applicant and WESTAF, be under and subject to the terms and conditions of this Agreement. By submitting Applications and Work Samples through the GO Smart Service, Applicant acknowledges that WESTAF is the owner of the GO Smart Service and that Applicant has only the limited license and right to use the GO Smart Service under the terms of this Agreement. The terms and conditions of Applicant's submission of Applications and Work Samples 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 Work Samples as described in the GO Smart Service. WESTAF does not verify the completeness or quality of Applications or Work Samples.
4. Grant of Limited Rights; No Copyright Transfer. Applicant hereby grants to WESTAF a nonexclusive, royalty free license to use the Applications and Work Samples submitted through the GO Smart Service by Applicant for the following limited purposes: (a) to permit WESTAF to facilitate the transmission of or to actually transmit the Applications, together with submitted Work Samples, to Licensees and Licensee panelists to which Applicant has submitted Applications and (b) for storage of Applicant's Applications, together with submitted Work Samples, in the non-public sections of the Database, subject to retrieval by Licensees and Licensee panelists. The limited rights and license granted by Applicant under this Agreement do not include any assignment or transfer of the copyright in the Applications and Work Samples and do not include any right to otherwise reproduce, digitize, edit, modify, distribute, or publicly display the Applications and Work Samples, in whole or in part.
5. Applicant's Representations and Warranties. Applicant represents and warrants to WESTAF, that (A) the Work Samples were created exclusively by Applicant; (B) Applicant is the sole owner of all rights in the Work Samples; (C) by entering into this Agreement and submitting the Application and Work Samples through the GO Smart Service, Applicant is not violating any agreement with any third party; and (D) the Work Samples 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 Work Samples. WESTAF has no responsibility to Applicant for the return of any Work Samples submitted through the GO Smart Service, nor for Licensees' use of Work Samples or Licensees' obligation, if any, to remove any Work Samples from the GO Smart Service or Web Site.
7. Applicant's Limited Rights. By using the GO Smart Service and the Web Site, Applicant acquires no rights in the GO Smart Service, the Web Site and, except for Applicant's Applications and Work Samples 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 GO Smart Service and Web Site, but does not warrant that either the GO Smart Service or the Web Site will be able to protect Applications and Work Samples from infringement, unauthorized access or disclosure or piracy. The Applicant agrees that WESTAF will have used reasonable efforts to control the security of the GO Smart Service and Web Site if they are maintained in compliance with the Payment Card Industry Data Security Standards as published by PCI Security Standards Council, LLC (https://www.pcisecuritystandards.org/) ("PCI Compliant"), although WESTAF does not warrant that it will maintain the GO Smart Service and Web Site in a PCI Compliant manner. 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 Work Samples 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 GO Smart Service and the Web Site and Applicant's rights in the Applications and Work Samples, but, subject to the other limitations of Section 10 of this Agreement, WESTAF shall be liable for any gross negligence and intentional wrongdoing on its part with respect to the security of the GO Smart Service and the Web Site and the protection of the Applicant's rights in the Applications and Work Samples.
9. General Term of Service and Privacy. The Applicant's use of the GO Smart Service and the Web Site are subject to WESTAF's General Terms of Service and Privacy Policy which are found at http://www.westaf.org/termsandconditions.html and http://www.westaf.org/privacy.html, respectively, and made a part of this Agreement. WESTAF may modify its General Terms of Service and Privacy Policy applicable to all Applicants at any time and such modified terms and/or policy shall become a part of this Agreement thirty (30) days after being prominently posted at any of the foregoing URL addresses or any other URL address of which the Applicant is given notice through any of the foregoing URL addresses.
10. Limitation of Liability. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE WEB SITE AND GO SMART SERVICE 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 GO SMART SERVICE. 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 WORK SAMPLES. APPLICANT'S SOLE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY WESTAF, FOR ANY UNAUTHORIZED PUBLICATION OF WORK SAMPLES THROUGH THE WEB SITE AND FOR ANY OTHER CLAIMED HARM FROM USING THE GO SMART SERVICE 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.
11. Indemnification. The Applicant agrees to indemnify, defend and protect WESTAF, for any cost and expense, including attorney's fees, incurred by or as a result of any breach of the Applicant's Representations.
12. Agreement Modifications. All modifications to and amendments of this Agreement must be in writing and signed by both Applicant and WESTAF.
13. 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 provisions 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. Applicant shall not have the right to join and shall not join with other Applicants using the GO Smart Service to bring or maintain and WESTAF shall not be required to participate and does not agree to participate in an arbitration proceeding involving multiple claimants against WESTAF. 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.
14. 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 Section 4 of this Agreement do not include any assignment or transfer of the copyright in the Applications and Work Samples and do not include any right to otherwise reproduce, digitize, edit, modify, distribute, or publicly display the Applications and Work Samples, in whole or in part.
