User Agreement Upon Use of YouJudgeItTM Web Based Software and Database
between user and Western States Arts Federation, a Colorado nonprofit corporation ("WESTAF"), with respect to the user's use of the Web site and
YouJudgeItTM Software, as defined below, including, but not limited to, use to submit digitized images of art objects and text as an application to
participate in contests or competitions for the selection of art for display, acquisition or other use of such art objects ("Contests") by public agencies
and other sponsors of Contests ("Sponsors").
Certain Definitions. For purposes of this Agreement, the following definitions shall apply:
box of the Web site.
1.2 "Application" means the information requested by a particular Sponsor for a Contest concerning User's personal data and history, training, education,
experience and work as an User and which is submitted by the User to the Sponsor through use of the YouJudgeItTM Software and Web site.
1.3 "User" shall mean the individual User identified in the introductory paragraph of this Agreement as the person taking action to accept the terms of
1.4 "Artwork" shall mean the tangible works of art created by User; Including, but not limited to, images, audio, video, and documents. The copyright to
which remains with the User, and digitized images of which the User submits to a Sponsor for consideration as part of User's Application with respect to a
particular Contest under the terms of this Agreement.
1.5 "Database" shall mean the database of Applications and digitized Images of Artwork maintained on the Web site.
1.6 "Images" shall mean digitized images of the Artwork; Including, but not limited to, images, audio, video, and documents.
1.7 "Web site" shall mean the site on the World Wide Web through which User last clicked to reached this Agreement and which is maintained under the
YouJudgeIt™ trademark for the submission of Applications and Images by Users for purposes of allowing Users to apply for and have their Applications and
Artwork evaluated by a Sponsor or a Sponsor's jury as part of the User's participation in that Sponsor's Contest.
1.8 "YouJudgeIt™ Software" means the web based software which is used in conjunction with the Web site.
Submission of Applications and Images. The User's submission of Applications and Images to Sponsors through the YouJudgeItTM Software and Web site shall,
as between User and WESTAF, be under and subject to the terms and conditions of this Agreement. The terms and conditions of User's submission of
Applications and Images to Sponsors reached between User and the Sponsor shall not alter or in any way change the terms of this Agreement.
WESTAF's Limited Obligations. WESTAF's obligation to User is to transmit and store Applications and Images as described on the Web site through the
YouJudgeItTM Software. WESTAF does not verify the completeness or quality of Applications or Images.
Grant of Limited Rights; No Copyright Transfer. User 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 and distribute the Applications, together with
submitted Images, on WESTAF’s servers and over various public networks and to make such changes to Images as are necessary to conform and adapt them to the
technical requirements of connecting networks, devices, and media, to Sponsors and jurors of Sponsors to which User has indicated an Application is to be
submitted and (B) for storage of User's Applications, together with submitted Images, in the nonpublic sections of the Database, subject to retrieval by
the Sponsors and jurors of Sponsors to whom User 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.
User's Representations. User represents and warrants to WESTAF that (A) the Artwork was created exclusively by User; (B) User 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 YouJudgeItTM Software and Web
site, User 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 "User's Representations"). The User will provide WESTAF with
appropriate documentation which establishes the accuracy of User's Representations in the form reasonably requested by WESTAF.
Return of Media. WESTAF has no responsibility to User for the return of any Application or Images submitted through the YouJudgeItTM Software and Web site,
nor for any Sponsor's obligation to remove any Media from the Database and Web site.
User's Limited Rights. By using the YouJudgeItTM Software and the Web site, User acquires no rights in the YouJudgeItTM Software, the Web site and, except
for User's Application, Artwork and Images submitted as part of his or her Application, the content of the Database.
Duty of Care. WESTAF will use reasonable efforts to control the security of the Web site, but does not warrant that the YouJudgeItTM Software or Web site
will be able to protect Applications, Artwork, Images and any other content uploaded by User from disclosure to unauthorized persons, infringement or
piracy. User 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 User further acknowledges that the publication of digitized data on the
Internet necessarily makes it possible for Applications, Artwork and Images to be copied in some form and for dishonest people to attempt to profit from
that copying. User 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
User's rights in the Application, Artwork, Images and any other content, but, subject to the other limitations 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 User's rights in the
Application, Artwork, Images and any other content.
Limitation of Liability. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE WEB SITE AND YouJudgeItTM 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 YouJudgeItTM SOFTWARE. IN NO EVENT WILL WESTAF BE LIABLE TO User OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL,
CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE OF PROPERTY, HARM TO REPUTATION OR
OFFENDED MORAL RIGHTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WESTAF SHALL HAVE NO OBLIGATION TO PROTECT User'S MORAL RIGHTS, IF ANY, IN THE
ARTWORK AND IMAGES. User'S SOLE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY WESTAF FOR ANY UNAUTHORIZED PUBLICATION, USE OR APPROPRIATION OF APPLICATIONS,
ARTWORK OR IMAGES THROUGH THE WEB SITE AND FOR ANY OTHER CLAIMED HARM FROM USING THE YouJudgeItTM SOFTWARE OR WEB SITE, WHETHER CAUSED OR ALLEGED TO BE
CAUSED BY WESTAF, SHALL BE User'S ACTUAL DAMAGES, IF ANY, SUBJECT TO A LIMITATION OF $250 PER CLAIM OR $750 IN THE AGGREGATE FOR ALL CLAIMS UNDER THIS
Indemnification. The User 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 User's Representations.
Agreement Modifications. All modifications to and amendments of this Agreement must be in writing and signed by both User and WESTAF.
published by WESTAF on the Web site (“Other Terms”).
Governing Law; Dispute Resolution. WESTAF’s servers supporting the Web site are located exclusively or, in some instances, primarily, in the United States
of America and you agree that WESTAF will perform its obligations under this Agreement from within the United States of America. 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 ecommerce 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.
Language and Currency. The parties reached agreement using the English language and the English language version of this Agreement is the only version of
this Agreement which reflects the agreement of the parties. Any proceedings to enforce this Agreement, including, without limitation, any arbitral
proceedings, shall be conducted in the English language. Any reference to currency in this Agreement is a reference to United States of America dollars,
unless expressly stated otherwise.
Service of Process. The parties each consent to service of process by mail, postage prepaid, sent through a government sponsored mail system, provided the
mail service used provides for and the party serving process uses a service to obtain a receipt for delivery to the party served by mail and,
simultaneously with the service of process by governmental mail service, notice of such service is given by electronic mail at the electronic mail address
of WESTAF published on the Web site and User’s electronic mail address in her or his profile. Service of process under this paragraph is effective for both
court and arbitral proceedings.
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.
Entire Agreement; Conflict in Terms. This Agreement represents the entire agreement between the parties concerning its subject matter and there are no
other agreements, representations, promises or inducements made to or to be received by either party, except as expressly provided for or referred to in
this Agreement. In the event of any conflict between any terms or provisions included in the YouJudgeItTM Software, Web site or the Other Terms and the
terms of this Agreement, then the terms of this Agreement shall control.