WESTAF | 1888 Sherman Street Suite 375 | Denver, Colorado
80203 | www.westaf.org
P (303) 629.1166 | F (303) 629.9717
This Service Agreement is made between the person registering with
the YouJudgeIt™ Service (as defined below) by selecting the “I Agree”
option on the https://youjudgeit.org/registerorg
page and hereafter known as the “Client”, and the Western States Arts
Federation, a Colorado nonprofit corporation (“WESTAF”). WESTAF and
Client agree as follows:
1.1 “Access Term” means the period of one (1) year for
which Client will have access to their profile and all materials
hosted on the YouJudgeIt.org website. This term can be adjusted by
Client opening a new “Call,” purchasing additional storage space, or
breaching this Agreement.
1.2 “User” means any person who is registered with WESTAF
to use the YouJudgeIt™ Service to submit to or otherwise participate
in Client’s Contests and who has been supplied a user identification
and password by WESTAF for this purpose. “User” includes any of
Client’s employees and independent contractors who are authorized by
Client to use the YouJudgeIt™ Service for Client’s Contests on behalf
of Client and who have been registered with WESTAF and have been
supplied user identifications and passwords by WESTAF for this
1.3 “Call” means a call for entry for Client’s Contest
that has a specified start and end date; there may be more than one
Call per Contest.
1.4 “YouJudgeIt™ Service” means the web-based service,
including the Software, that allows organizations and administrators
to manage User-application and jury processes related to Calls for
Contests using the Software hosted by WESTAF and as made available by
WESTAF as further described in Attachment 1.
1.5 “Client Data” means the information, including
images, text, and video, input into the YouJudgeIt™ Service by Client
and by Users with respect to their Submissions to and participation
in Client’s Contest.
1.6 “Media” means, but is not limited to, images,
documents, audio, and video being used within the YouJudgeItTM
1.7 “Contest” means a contest, competition, solicitation,
and other User and Client-selection related events for the selection
of Users or Media for display, acquisition or other use of such Media
objects sponsored by Client.
1.8 “Documentation” means the terms and conditions of
use, service agreement, and any user manuals provided to Client in
connection with the YouJudgeIt™ Service or Software in either
electronic, online help files or hard copy format.
1.9 “Fees” have the meaning given in Section 3.1.
1.10 “Financial Transaction Assistance” means the
financial transaction assistance services described in Attachment 3.
1.11 “Intellectual Property Rights” will mean all
worldwide intellectual property rights, including without limitation,
copyrights, trademarks, service marks, trade secrets, know how,
inventions, patents, patent applications, moral rights and all other
proprietary rights, whether registered or unregistered.
1.12 “Software” means the WESTAF computer software
programs described in Attachment 1, including all applicable
Documentation and any updates and new releases thereto made available
to Client pursuant to this Agreement.
1.13 “Submissions” has the meaning given in Section 2.2.
1.14 “Support” means WESTAF’s standard technical support
for Client’s use and operation of the YouJudgeIt™ Service described
in Attachment 2.
1.15 “Third Party Software” means any third party
computer software programs used by Client in conjunction with its use
of the YouJudgeIt™ Service.
1.16 “User Account” has the meaning given in Section 2.5.
2.1 Services. Subject to the terms and conditions of this
Agreement, WESTAF shall (a) make the YouJudgeIt™ Service available to
Client in accordance with this Agreement, (b) provide Support as
described in Attachment 2 and other services as described in
Attachment 1, and (c) perform Financial Transaction Assistance in
accordance with Attachment 3 if Client uses the YouJudgeIt™ Service
to collect monies from its Users.
2.2 Access and Use. Subject to the terms and conditions
of this Agreement, WESTAF grants to Client, during the access Term, a
non-exclusive, non-transferable, limited right to remotely access and
use the YouJudgeIt™ Service solely for Client’s Contests in
accordance with the Documentation, the limitations set forth in
Attachment 1 and the other terms and conditions of this Agreement.
Client’s right to use the YouJudgeIt™ Service includes the right to
solicit the submission of applications, information, media, and other
materials from Artists through the YouJudgeIt™ Service for Contests
2.3 Client Resources. Client shall be solely responsible
for, at its own expense, acquiring, installing and maintaining all
connectivity equipment, Internet and network connections, hardware,
Third Party Software and other equipment as may be necessary for it
and its Users to connect to and obtain access to the YouJudgeIt™
2.4 Users. Users must register with WESTAF and agree to
the terms of WESTAF’s standard User Agreement Upon Use of YouJudgeIt™
Web Based Software and Database. Each registered User will be
assigned a unique user identification name and password (“User ID”)
for access to and use of the YouJudgeIt™ Service (a “User Account”).
Client shall be responsible for ensuring the security and
confidentiality of User IDs assigned to its employees and
contractors. User IDs may be shared within the Client’s organization
provided that User IDs may not be provided to any individual who is
not a registered User. Client will use commercially reasonable
efforts to prevent unauthorized access to, or use of, the YouJudgeIt™
Service, and notify WESTAF promptly of any such unauthorized use.
Access to the YouJudgeIt™ Service cannot be shared with anyone other
than Client’s employees and contractors who are registered Users.
2.5 Restrictions on Use. Client is responsible for all
activities that occur under the User Accounts assigned to Client and
Client’s employees and contractors. Except as expressly permitted in
this Agreement or as otherwise authorized by WESTAF in writing,
Client will not, and will not permit any User or third party to (a)
copy, transmit, store, publicly display, modify, adapt, alter,
translate, or create derivative works from the Software, except as
required to use the YouJudgeIt™ Service in accordance with this
Agreement and the limitations and restrictions included as part of
the Software and YouJudgeIt™ Service; (b) sublicense, lease, rent,
loan, sell, re-sell, distribute, make available or otherwise transfer
the Software or access to or use of the YouJudgeIt™ Service to any
third party for any purpose, including to accept Submissions or to
manage or jury Submissions for any other person or for any other
contest, competition, solicitation or other event other than Client’s
Contests, (c) reverse engineer, decompile, disassemble, or otherwise
attempt to derive the source code for the Software; (e) do anything
to modify or restrict any other person’s access to or use of the
YouJudgeIt™ Service or Software; (f) use or permit others to use the
YouJudgeIt™ Service or Software to commit any unlawful act, to
violate any person’s right, or to annoy, harass, harm, threaten or
intimidate another person; or (g) otherwise use or copy the
YouJudgeIt™ Service or Software except as expressly allowed under
2.6 Client Data. Client or Users own all Client Data and
WESTAF makes no claim of ownership in or to and does not exert any
control over Client Data.
3. Fees and Payment.
3.1 Fees. As consideration for use of the YouJudgeIt™
Service and the provision of Support and other services under this
Agreement, Client agrees to pay to WESTAF the fees set forth in the
“Pricing” page of the YouJudgeIt™ website. Client agrees to pay the
transaction fees set forth on the “Pricing” page of the YouJudgeIt™
website on the monies collected by WESTAF for Client through Client’s
authorization of User payments by voluntary submission of credit card
and billing information through the YouJudgeIt™ Service. WESTAF
reserves the exclusive right to change any Fee at any time, for any
reason; changes in Fees will not affect pending open Calls as
structured by Client prior to the change in Fees.
3.2 Payment Terms. All payments must be made in U.S.
dollars. All Fees are exclusive of, and Client will pay, all sales,
use and other taxes (other than taxes on WESTAF’s net income), export
and import fees, customs duties and similar charges applicable to the
transactions contemplated by this Agreement.
4. Term; Termination.
4.1 Term. The term of this Agreement shall be the period
of one (1) year, unless sooner terminated or extended as provided for
under this Agreement (the “Term”).
4.2 Termination. Either party may terminate this
Agreement if the other party breaches any material provision of the
Agreement and does not cure such breach within thirty (30) days after
receiving written notice thereof. This Agreement shall also terminate
upon the expiration of the last Access Term.
4.3 Effects of Termination. Upon termination of this
Agreement and subject to the last sentence of this Section 4.3, (a)
any amounts owed to a party under this Agreement before such
termination will be immediately due and payable, (b) all rights
granted in this Agreement will immediately cease to exist and (c)
unless otherwise permitted by WESTAF, Client must discontinue all use
of the YouJudgeIt™ Service and Software and return to WESTAF or
destroy all copies of the Documentation in Client’s possession or
control. Sections 1, 2.6, 3, 4.3, 5, 6, 7 and 8 together with any
accrued payment obligations and Attachment 3, if applicable, will
survive termination of this Agreement for any reason.
4.4 Client Data. Client has the right to remove Client
Data from the YouJudgeIt™ Service and database at any time prior to
termination. Any Client Data not so removed upon the termination of
this Agreement may be removed or destroyed (permanently and
irrevocably deleted) by WESTAF at any time after termination of this
Agreement and without notice to Client.
5. Warranty Disclaimer.
5.1 Performance. During the Term, WESTAF warrants that
the YouJudgeIt™ Service, including the Software, when used as
permitted by WESTAF and in accordance with the instructions in the
Documentation, will operate substantially as described in the
Documentation. WESTAF does not warrant the Client’s use of the
YouJudgeIt™ Service will be error-free or uninterrupted. WESTAF will,
at its own expense and as its sole obligation and Client’s exclusive
remedy for any breach of this warranty, use reasonable commercial
efforts to correct any reproducible material error in the YouJudgeIt™
Service reported to WESTAF by Client in writing during the Term or,
if not possible to do so within a reasonable period of time, return
to Client the unearned portion of any Fees paid by Client and this
Agreement will be deemed terminated.
5.2 Disclaimers. THE EXPRESS WARRANTIES IN SECTION 5.1
AND SECTION 7.1 ARE IN LIEU OF AND WESTAF HEREBY DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE
AND YOUJUDGEIT™ SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTION 5.1 AND SECTION
7.1, ACCESS TO AND USE OF THE YOUJUDGEIT™ SERVICE, INCLUDING THE
SOFTWARE, IS PROVIDED “AS IS” WITH ALL FAULTS.
6. Limitation of Liability. IN NO EVENT WILL EITHER PARTY
BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR
INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING
FROM OR RELATING TO THIS AGREEMENT OR THE USE OR AVAILABILITY OF THE
YouJudgeItTM SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. WESTAF’S TOTAL CUMULATIVE LIABILITY IN
CONNECTION WITH THIS AGREEMENT, THE YOUJUDGEIT™ SERVICE AND THE
SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED
THE AMOUNT OF FEES PAID TO WESTAF DURING THE TWELVE (12) MONTH PERIOD
PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
7. Security and Privacy
7.1 Security Standards. WESTAF warrants that the
YouJudgeIt™ Service will be compliant with Payment Card Industry Data
Security Standards as published by PCI Security Standards Council,
LLC (https://www.pcisecuritystandards.org/) (“PCI DSS Compliant”). If
the YouJudgeIt™ Service is not PCI DSS Compliant, then WESTAF shall
do the following as Client’s sole remedy: (a) defend the Client
against any third party claims arising out of and proximately caused
by the failure of the YouJudgeIt™ Service to be PCI DSS Compliant to
the extent such a defense is actually covered by any policy of
insurance in effect for WESTAF’s benefit, and (b) indemnify and hold
harmless the Client from all damages (other than consequential and
indirect damages), including claims by third party claimants, arising
out of and proximately caused by the YouJudgeIt™ Service not being
PCI DSS Compliant to the extent such damages are actually covered by
any policy of insurance in effect for WESTAF’s benefit. WESTAF
presently has and will use commercially reasonable efforts to
maintain liability insurance related to security breaches affecting
the YouJudgeIt™ Service. The parties intend that WESTAF’s obligations
and Client’s rights under this Section 7 are limited solely to
amounts actually available under policies of liability insurance
maintained by WESTAF.
8.1 Proprietary Rights. The YouJudgeIt™ Service, Software
and Documentation, and all worldwide Intellectual Property Rights
therein, are the exclusive property of WESTAF and its licensors. All
rights in and to the YouJudgeIt™ Service and Software not expressly
granted to Client in this Agreement are reserved by WESTAF and its
licensors. Client will not remove, alter, or obscure any proprietary
notices (including copyright notices) of WESTAF or its licensors on
the Software or Documentation or included as part of the YouJudgeIt™
8.2 Third Party Software. If Third Party Software
included with the YouJudgeIt™ Service is subject to additional terms
and conditions imposed by WESTAF’s third party licensors, then Client
agrees to comply with all such applicable terms and conditions.
8.3 Assignment. Neither party may assign or transfer, by
operation of law or otherwise, any of its rights under the Agreement
(including the license rights granted to Client to access the
YouJudgeIt™ Service) to any third party without the other party’s
prior written consent; except that either party may assign this
Agreement, without consent, to any successor to all or substantially
all its business or assets to which this Agreement relates, whether
by merger, sale of assets, sale of stock, reorganization or
otherwise. An assignment may increase Fees if it results in a change
in Contest terms. Any attempted assignment or transfer in violation
of the foregoing will be null and void.
8.4 Force Majeure. Except for any payment obligations,
neither party shall be liable hereunder by reason of any failure or
delay in the performance of its obligations hereunder for any cause
which is beyond the reasonable control of such party.
8.5 Notices. All notices, consents, and approvals under
this Agreement must be delivered in writing by courier, by electronic
facsimile (fax), electronic mail or by certified or registered mail,
(postage prepaid and return receipt requested) to the other party at
the address and will be effective upon receipt or when delivery is
refused. WESTAF’s address is as set forth in this Agreement or on the
YouJudgeIt™ website; Client’s address is as set forth in its
registration information provided to WESTAF through the YouJudgeIt™
website. Either party may change its address by giving notice of the
new address to the other party.
8.6 Governing Law and Venue.
8.6.1 In General. Except as provided for in Section
8.6.2, this Agreement will be governed by and interpreted in
accordance with the laws of the State of Colorado, without reference
to its choice of laws rules. Any action or proceeding arising from or
relating to this Agreement shall be brought in a federal or state
court in Denver, Colorado, and each party irrevocably submits to the
jurisdiction and venue of any such court in any such action or
8.6.2 Governmental Entities. If Client is a governmental
entity or agency, then this Agreement will be governed by and
interpreted in accordance the laws of the state under which Client is
organized or created without reference to such state’s choice of law
provisions. Any action or proceeding arising from or relating to this
Agreement shall be brought in a federal or state court in such state
in a judicial district in which Client’s executive offices are
located and each party irrevocably submits to the jurisdiction and
venue of any such court in any such action or proceeding.
8.7 Remedies. Except as exclusive obligations and
remedies are expressly provided for in this Agreement, the parties’
rights and remedies under this Agreement are cumulative. Client
acknowledges that the Software and YouJudgeIt™ Service contain
valuable trade secrets, Intellectual Property and other proprietary
information of WESTAF, that any actual or threatened breach of
Section 2 of this Agreement will cause immediate and irreparable harm
to WESTAF for which monetary damages would be an inadequate remedy,
and that injunctive relief without necessity of any bond being posted
is an appropriate remedy for such breach. If any legal action is
brought by a party to interpret or enforce this Agreement, then the
prevailing party will be entitled to receive from the other party its
reasonable attorneys’ fees, court costs, and other collection
expenses, in addition to any other relief it may receive.
8.8 Waivers. All waivers must be in writing. Any waiver
or failure to enforce any provision of this Agreement on one occasion
will not be deemed a waiver of any other provision or of such
provision on any other occasion.
8.9 Severability. If any provision of this Agreement is
unenforceable, such provision will be changed and interpreted to
accomplish the objectives of such provision to the greatest extent
possible under applicable law and the remaining provisions will
continue in full force and effect. Without limiting the generality of
the foregoing, Section 6 will remain in effect notwithstanding the
unenforceability of any provision in Section 5.2 or Section 7.1 of
8.10 Construction. The headings of Sections of this
Agreement are for convenience and are not to be used in interpreting
this Agreement. As used in this Agreement, the word “including” means
“including but not limited to” and “Section” reference to Sections
and subsections of this Agreement with any reference to a Section
including all subsections under that Section.
8.11 Entire Agreement. This Agreement (including all
exhibits and attachments) constitutes the entire agreement between
the parties regarding the subject hereof and supersedes all prior or
contemporaneous agreements, understandings, and communication,
whether written or oral. This Agreement may be amended only by a
written document signed by both parties. The terms of any purchase
order or similar document submitted by Client to WESTAF concerning
this Agreement or the YouJudgeIt™ Service will have no effect.
9. Attachments. There are three Attachments to this
Agreement, Attachments 1, 2, and 3, (each referred to as an
“Attachment” and its number). Attachments 1 and 2 are part of this
Agreement, and Attachment 3, Financial Transaction Assistance, is a
part of this Agreement if Client uses the YouJudgeIt™ Service to
collect monies from Users. All Attachments which are a part of this
Agreement are incorporated into this Agreement as if set forth in
full in this Section 9. Words used in an Attachment which are not
defined in the Attachment have the meaning given to them in this
YouJudgeItTM SERVICE DESCRIPTION AND FEES
1. Software Description. The Software to which access
will be provided under this Agreement will be the current release of
the WESTAF web based software accessed at the URL address set forth
in paragraph 4 of this Attachment, or any other address provided by
WESTAF, and known as YouJudgeIt™ Software which creates and manages a
database to accept applications from and to hold and manage the data
to judge Submissions by Users for entry into various contests or
2. Software Modules and Services. Client’s use of and
access to the Software includes the following modules:
➥ Application/User, Admin, & Jury Modules
➥ Image/Media Management Modules
3. Financial Transaction Assistance, WESTAF agrees to
provide and Client retains WESTAF to provide Financial Transaction
Assistance as described in Attachment 3 to the extent Client requires
an entry fee or other fee from Users - and payment is processed
through the YouJudgeItTM Service using a Visa, Mastercard, Discover,
or American Express.
4. Access. Client shall access and use the Software and YouJudgeItTM
Service through the Client's website interface at the following URL
5. Fees. The Fees found at https://youjudgeit.org/pricing
apply to Client’s access and use of the Software and YouJudgeItTM
Service for each Call during an Access Term. WESTAF reserves the
right to adjust these Fees at anytime and without warning to User or
SETUP AND SUPPORT
1. Set Up Services and Training. WESTAF will provide the
services necessary to assist and train Client in the basic
functioning of the YouJudgeItTM Service, consisting of standard
training, and standard technical support. Standard training shall be
provided in one joint session, which may or may not include
representatives of other clients, shall be conducted through
electronic communication and email support, or a combination of each
as determined by WESTAF.
2.1 Standard technical support is provided Monday through
Friday (U.S. national holidays excepted) from 9:00 a.m. through 5:00
p.m. Mountain Time (a “business day”) and consists of email support
and telephone support (within the U.S. and Canada) during the Term.
Extended technical support, as determined in WESTAF’s good faith
judgement, will only be provided and arranged if mutually agreed by
WESTAF and Client at WESTAF’s then the-current standard rates.
2.2 WESTAF will respond to all support requests no later
than two business days of receiving a request.
2.3 Support does not include any on-site technical
support or any assistance to the Client in its use and operation of
the Software or any other aspect of the YouJudgeItTM Service beyond
those services included as part of WESTAF’s standard set up services.
Any additional services may be provided based on mutual scheduling
between WESTAF and Client at WESTAF’s then-standard rates and terms.
FINANCIAL TRANSACTION ASSISTANCE
Client agrees to accept and pay for the following
services from WESTAF for the collection and processing of payments
with respect to its Contests as set forth in this Attachment (the
“financial transaction assistance services”) and WESTAF agrees to
provide the financial transaction assistance services to Client with
respect to Client’s Contests as provided for in this Attachment.
Undefined terms used in this Attachment have the meaning given to
them in the Agreement (to which this Attachment is attached).
Service. In order to facilitate Client’s use of the
YouJudgeItTM Service, WESTAF will act as Client’s collection agent as
provided for in this Attachment for the purpose of collecting and
remitting to Client all application, imaging, jurying and other fees
due from the Users who both submit applications to participate in the
Client’s Contests and make payment of the associated fees to Client
through a credit card payment made by accessing the YouJudgeItTM
Service (“Eligible Entry Fee Payments”).
Available Merchant Account. All Eligible Entry Fee
Payments shall be made, captured and credited to the Designated
Merchant Account, as defined below, using the protocols and systems
provided for by WESTAF as part of the YouJudgeItTM Service. The
Designated Merchant Account shall be a VISA or MasterCard merchant
account maintained directly between WESTAF and a financial
Agent Only. WESTAF is acting as Client’s limited agent in
collecting Eligible Entry Fee Payments and has no obligation to
undertake any effort to collect Eligible Entry Fee Payments other
than, as part of the YouJudgeItTM Service, to create and maintain
protocols which are standard in the industry for the collection of
credit card payments through web based software and, subject to the
terms of this Attachment, to remit to Client all such payments, less
Fees due WESTAF, which are captured through such protocols.
Term of Agency. WESTAF shall act as Client’s limited
collection agent for the Term and, thereafter, only as agreed to
between WESTAF and Client.
Ultimate Collection Not Guaranteed. WESTAF promises to
act in a commercially reasonable manner in acting as Client’s limited
collection agent and makes no promise, representation or warranty of
collection or the collection of any actual Eligible Entry Fee Payment
or any specific amount of such payments.
Charge Backs. If an Eligible Entry Fee Payment is
credited to the Designated Merchant Account and later, through no
fault of WESTAF, the credit is reversed or a charge is made to the
Designated Merchant Account because a previous credit for an Eligible
Entry Fee Payment is disallowed (a “Charge Back”), then WESTAF shall
have no obligation to remit the involved User Entry Fee Payment to
Client or, if previously remitted to Client, shall have the right to
charge future remittances due to Client in the amount of the involved
Charge Back or, if no further remittances are due Client, to charge
Client for the amount of the involved Charge Back which amount shall
then be due and payable to WESTAF 30 days following WESTAF’s invoice
Financial Transaction Assistance Fee. For its services in
acting as Client’s limited collection agent and otherwise providing
financial transaction assistance services, WESTAF shall be entitled
to charge Client and withhold from remittances of Eligible Entry Fee
Payments an amount equal to three and 50/100th percent (3.50%) of all
Eligible Entry Fee Payments processed by WESTAF through the
YouJudgeItTM Service, plus $0.30/transaction (the “Financial
Transaction Assistance Fee”). WESTAF has the right to change the
Financial Transaction Assistance Fee at any time for any reason with
such changed fee being applicable to all transactions processed for
Calls registered with WESTAF after the changed fee amount is posted
on the “Pricing” page of the YouJudgeItTM website. ALL FEES AND THE
FINANCIAL TRANSACTION ASSISTANCE FEES DUE TO WESTAF SHALL BE SET OFF
BY WESTAF AGAINST THE ELIGIBLE ENTRY FEE PAYMENTS COLLECTED BY WESTAF
AND IF NOT SET OFF AGAINST SUCH PAYMENTS SHALL BE DUE AND PAYABLE
FROM CLIENT TO WESTAF 30 DAYS FOLLOWING WESTAF’S INVOICE TO CLIENT.
Remittances. WESTAF shall remit the net amount of the
Eligible Entry Fee Payments collected to Client within 30 days of the
close of the application period for Client’s Call, or sooner or more
often if mutually agreed to in writing, by electronic payment, check
or other means as mutually agreed to by Client and WESTAF. As used in
this subparagraph, the “net amount of the Eligible Entry Fee
Payments” means the gross amount of Eligible Entry Fee Payments
collected by WESTAF during the remittance period, less any Fees then
due WESTAF, the Financial Transaction Assistance Fee due with respect
to the Eligible Entry Fee Payments being remitted and Charge Backs
for that remittance period.
User Agreement Upon Use of YouJudgeIt™ Service and Database
between user and Western States Arts Federation, a Colorado nonprofit corporation ("WESTAF"), with respect to the user's use of the Website and
YouJudgeIt™ Service, 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 Website.
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 YouJudgeIt™ Service and Website.
1.3 "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.
1.4 "Database" shall mean the database of Applications and digitized Images of Artwork maintained on the Website.
1.5 "Images" shall mean digitized images of the Artwork; Including, but not limited to, images, audio, video, and documents.
1.6 "User" shall mean the individual User identified in the introductory paragraph of this Agreement as the person taking action to accept the terms of
1.7 "Website" 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™ Service" or "Service" shall mean the web-based service, owned and made available by WESTAF through the website, which creates and manages a database to accept applications and to hold and manage the data to judge Submissions by Users for entry into various contests or competitions.
Submission of Applications and Images. The User's submission of Applications and Images to Sponsors through the YouJudgeIt™ Service and Website 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 Website through the
YouJudgeIt™ Service. 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 YouJudgeIt™ Service and Website, 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 YouJudgeIt™ Service and Website,
nor for any Sponsor's obligation to remove any Media from the Database and Website.
User's Limited Rights. By using the YouJudgeIt™ Service and the Website, User acquires no rights in the YouJudgeIt™ Service, the Website 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 Website, but does not warrant that the YouJudgeIt™ Service or Website
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 Website. 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 Website 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 Website and the protection of the User's rights in the
Application, Artwork, Images and any other content.
Limitation of Liability; Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE WEBSITE AND YOUJUDGEIT™ 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 WEBSITE AND THE YOUJUDGEIT™ SERVICE. 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 WEBSITE AND FOR ANY OTHER CLAIMED HARM FROM USING THE YOUJUDGEIT™ SERVICE OR WEBSITE, 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.
published by WESTAF on the Website (“Other Terms”).
Governing Law; Dispute Resolution. WESTAF’s servers supporting the website 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 laws principles. Except as provided in the last 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. 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. 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.
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.
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 YouJudgeIt™ Service, Website or the Other Terms and the
terms of this Agreement, then the terms of this Agreement shall control.