CaFÉTM TERMS AND CONDITIONS
Agreement Upon Use of CaFE Web Based Software and Data Base
1. Certain Definitions. For purposes of this Agreement, the following definitions shall apply:
"Application" means the information requested by a particular Sponsor for a Contest concerning Artist's personal data and history, training, education, experience and work as an artist and which is submitted by the Artist to the Sponsor through use of the CaFE Software.
"Artist" shall mean the individual user identified in the introductory paragraph of this Agreement as the person taking action to accept the terms of this Agreement.
"Artwork" shall mean the tangible works of art created by Artist, the copyright to which remains in Artist, and digitized images of which the Artist submits to a Sponsor for consideration as part of Artist's Application with respect to a particular Contest under the terms of this Agreement.
"Database" shall mean the database of Applications and digitized Images of Artwork maintained on the Web Site.
"Images" shall mean digitized images of the Artwork.
"Web Site" shall mean the site on the World Wide Web through which Artist last clicked to reached this Agreement and which is maintained under the CaFE trademark for the submission of Applications and Images by artists for purposes of allowing artists to apply for and have their Applications and Artwork evaluated by a Sponsor or a Sponsor's jury as part of the Artist's participation in that Sponsor's Contest.
"CaFE Software" means the web based software which is used in conjunction with the Web Site.
2. Submission of Applications and Images. The Artist's submission Applications and Images to Sponsors through the CaFE Software shall, as between Artist and WESTAF, be under and subject to the terms and conditions of this Agreement. The terms and conditions of Artist's submission of Applications and Images to Sponsors reached between Artist and the Sponsor shall not alter or in any way change the terms of this Agreement
3. WESTAF's Limited Obligations. WESTAF's obligation to Artist is to transmit and store Applications and Images as described in the CaFE Software. WESTAF does not verify the completeness or quality of Applications or Images.
4. Grant of Limited Rights; No Copyright Transfer. Artist hereby grants to WESTAF a nonexclusive license to use the Application, Artwork and Images for the following limited purposes: (A) to permit WESTAF to facilitate the transmission of or to actually transmit the Applications, together with submitted Images, to Sponsors and jurors of Sponsors to which Artist has indicated an Application is to be submitted and (B) for storage of Artist's Applications, together with submitted Images, in the non-public sections of the Database, subject to retrieval by the Sponsors and jurors of Sponsors to whom Artist has submitted Applications.
The limited rights and license granted under this Agreement do not include any assignment or transfer of the copyright in the Application, Artwork and Images and do not include any right to otherwise reproduce, digitize, edit, modify, distribute, or publicly display the Application, Artwork and Images, in whole or in part.
5. Artist's Representations. Artist represents and warrants to WESTAF that (A) the Artwork was created exclusively by Artist; (B) Artist is the sole owner of all rights in the Artwork and Images; (C) by entering into this Agreement and submitting the Application and Images through the CaFE Software, Artist is not violating any agreement with any third party; and (D) the Artwork and Images themselves and by their submission do not infringe upon any intellectual property, privacy, publicity, or other rights of any third party; and (E) the Artwork and Images do not include any content which is unlawful, harassing, libelous, abusive, tortious, defamatory, threatening, harmful, abusive, invasive of another's privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way (the "Artist's Representations"). The Artist will provide WESTAF with appropriate documentation which establishes the accuracy of Artist's Representations in the form reasonably requested by WESTAF.
6. Return of Images. WESTAF has no responsibility to Artist for the return of any Application or Images submitted through the CaFE Software, nor for any Sponsor's obligation to remove any Images from the Web Site.
7. Artist's Limited Rights. By using the CaFE Software and the Web Site, Artist acquires no rights in the CaFE Software, the Web Site and, except for Artist's Application, Artwork and Images 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 Artwork and Images from infringement or piracy. Artist 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 Artist further acknowledges that the publication of digitized data on the Internet necessarily makes it possible for Artwork and Images to be copied in some form and for dishonest people to attempt to profit from that copying. Artist 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 Artist's rights in the Application, Artwork and Images, 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 Artist's rights in the Application, Artwork and Images.
9. Limitation of Liability. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE WEB SITE AND CAFE 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 RESEPCT TO THE WEB SITE AND THE CAFE SOFTWARE. IN NO EVENT WILL WESTAF BE LIABLE TO ARTIST 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 ARTIST'S MORAL RIGHTS, IF ANY, IN THE ARTWORK AND IMAGES. ARTIST'S SOLE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY WESTAF FOR ANY UNAUTHORIZED PUBLICATION OF APPLICATIONS, ARTWORK OR IMAGES THROUGH THE WEB SITE AND FOR ANY OTHER CLAIMED HARM FROM USING THE CAFE SOFTWARE OR WEB SITE, WHETHER CAUSED OR ALLEGED TO BE CAUSED BY WESTAF, SHALL BE ARTIST'S ACTUAL DAMAGES, IF ANY, SUBJECT TO A LIMITATION OF $500 PER CLAIM OR $1,500 IN THE AGGREGATE FOR ALL CLAIMS UNDER THIS AGREEMENT.
10. Indemnification. The Artist agrees to indemnify, defend and protect WESTAF, for any cost and expense, including attorney's fees, incurred by WESTAF as a result of any breach of the Artist's Representations.
11. Agreement Modifications. All modifications to and amendments of this Agreement must be in writing and signed by both Artist 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.