GO™: GRANTS ONLINE END USER TERMS AND CONDITIONS
1. Certain Definitions.For purposes of this Agreement, the following definitions apply whether used with or without capitalization:
"Application" shall mean the information requested by a Subscriber soliciting applications through the GO™ Service concerning an Applicant and which is submitted by an Applicant to a Subscriber through use of the GO™ Service.
"Applicant" shall mean the individual user referred to in the introductory paragraph of this Agreement as the person taking action to accept the terms of this Agreement, and, when used in the plural, shall mean two or more persons who have each taken such action.
"Database" shall mean the database of applications and related media data maintained on the website.
"GO™ service" or "Service" shall mean the web-based service, owned and made available by WESTAF through the website, which creates and maintains a database to accept applications and to hold and manage the data to review applications in online modules which includes a browser interface; data encryption; and transmission of, access to, and storage of such applications and related data.
"Media data" shall mean digital media, including, but not limited to, images, audio, video, and document (such as PDF, Word or Excel) files, uploaded by Applicants through the GO™ Service as part of their applications and which include tangible works and materials describing those works which are submitted through the GO™ Service. The copyright to works submitted by Applicant remains with Applicant.
“Subscriber” shall mean an awarding body or agency which has acquired rights from WESTAF to accept and manage its applications and awards online through the GO™ Service and includes such awarding body’s or agency’s users of the Service.
"Website" shall mean the site on the World Wide Web through which Applicant last clicked to reach this Agreement or such other URL address and website provided by WESTAF which is maintained under the GO™: GRANTS ONLINE or GO™ trademarks, or both, for the submission of applications and related media data by Applicant.
2. Submission of Applications and Media Data. Applicant's submission of applications and media data through the GO™ Service 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 applications and media data to a Subscriber reached between the Applicant and such Subscriber shall not alter or in any way change the terms of this Agreement.
3. WESTAF's Limited Obligations. WESTAF’s obligation to the Applicant is to transmit and store applications and media data as described by the GO™ Service. WESTAF does not verify the completeness or quality of applications or media data.
4. Grant of Limited Rights; No Copyright Transfer. Applicant hereby grants to WESTAF a nonexclusive license to use Applicant’s applications and media data for the following limited purposes: (a) to permit WESTAF to transmit the applications and media data, to the Subscribers to which Applicant has submitted applications; (b) to store, transmit, and distribute such applications and media data over public networks and in various media; and (c) to permit their retrieval and use by such Subscribers through the GO™ Service (the "limited license"). The use of Applicant’s applications and media data includes the right to adapt, change, modify, and translate the applications and media data and to create derivative works of them to carry out the purposes of the limited license. The limited license granted does not include any assignment or transfer of the copyright in Applicant's applications and media data to WESTAF and does not include any right to otherwise reproduce, digitize, edit, modify, distribute, or publicly display the the applications and media data, in whole or in part.
5. Applicant’s Representations. Concerning the applications and media data submitted or uploaded by Applicant through the GO™ Service, Applicant represents and warrants to WESTAF that (a) the media data were created exclusively by Applicant; (b) Applicant is the sole owner of all rights in the media data or Applicant has the right to use the media data as presented and the media data accurately attributes ownership of and copyright in included works not owned by the Applicant; (c) by entering into this Agreement and submitting applications and media data through the GO™ Service, Applicant is not violating any agreement with any third party; and (d) the applications and media data do not infringe upon any intellectual property, privacy, publicity, or other rights of any third party (the "Applicant’s Representations"). Applicant will provide WESTAF with appropriate documentation which establishes Applicant's Representations in the form reasonably requested by WESTAF.
6. Return of Media Data. WESTAF has no responsibility to Applicant for the return of any media data submitted through the GO™ Service, nor for any Subscriber’s obligation to Applicant to remove any media data from the website.
7. Applicant's Limited Rights. By using the GO™ Service, Applicant acquires no rights in the GO™ Service or website, and, except for Applicant's applications and media data submitted as part of an application, the content of the database.
8. Duty of Care.WESTAF will use reasonable efforts to control the security of the GO™ Service but does not warrant that the GO™ Service or website will be able to protect applications and media data from infringement, unauthorized disclosure, 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 website. Applicant further acknowledges that the publication of digitized data on the Internet necessarily makes it possible for media data 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™ Service and website and Applicant's rights in the application and media data, 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 GO™ Service or website and the protection of Applicant's rights in the applications and media data. WESTAF has no responsibility for any Subscriber’s use or misuse of Applicant’s applications or media data.
10. Disclaimer of Warranties; Limitation of Liability.EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE GO™ SERVICE AND WEBSITE ARE PROVIDED AS IS AND WITHOUT ANY WARRANTIES. WESTAF HEREBY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE GO™ SERVICE AND WEBSITE. IN NO EVENT SHALL 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 MORAL RIGHTS, IF ANY, IN THE APPLICATIONS AND MEDIA DATA. APPLICANTS SOLE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY WESTAF, FOR ANY UNAUTHORIZED PUBLICATION OF APPLICATIONS OR MEDIA DATA THROUGH THE WEBSITE AND FOR ANY OTHER CLAIMED HARM FROM USING THE GO™ SERVICE OR WEBSITE, WHETHER CAUSED OR ALLEGED TO BE CAUSED BY WESTAF, SHALL BE APPLICANT'S ACTUAL DAMAGES, IF ANY, SUBJECT TO A LIMITATION OF $250 PER CLAIM OR $750 IN THE AGGREGATE FOR ALL CLAIMS UNDER THIS AGREEMENT.
11. Indemnification.Applicant agrees to indemnify, defend, and protect WESTAF for any cost and expense, including reasonable attorney's fees, incurred by WESTAF as a result of any breach of the Applicant's Representations.
13. Governing Law; Dispute Resolution.This Agreement shall be governed by the laws of the state of Colorado, excluding its conflict of laws principles. Except as provided later in this section, any claim, dispute or controversy arising out of or relating to this Agreement shall be submitted by the parties to binding arbitration. The arbitration shall 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 and shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. The parties shall be entitled to standard discovery as provided for in the Colorado Rules of Civil Procedure, subject to any limitation made in the arbitrator’s discretion. The cost of arbitration shall be borne equally by the parties. Nothing in this Section shall preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction within the City and County of Denver, Colorado. WESTAF shall not be compelled to arbitrate in any one proceeding the claims of more than one applicant.
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 this Agreement do not include any assignment or transfer of the copyright in media data and do not include any right to reproduce, digitize, edit, modify, distribute, or publicly display the media data, in whole or in part, for any purpose other than in conjunction with the GO™ Service and as expressly set forth in Section 4 of this Agreement.