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HomeMy WebLinkAboutWESTERN STATES ARTS FEDERATION - CONTRACT - AGREEMENT MISC - CAFE SOFTWARE LICENSE AND TRANSACTION SERVICE AGREEMENTA Service of WESTAF ( 1743 Wazee Street Suite 300 l Denver, Colorado 80202 1 www.westaf.org 1 (303) 629.1166 CaFE' " SOFTWARE LIC.ENS.E AND TRANSACTION SERVICE AGREEMENT THIS AGREEMENT is made this .(. day of 2010, by and between WESTERN STATES ARTS FEDERATION, a Colorado nonprofit corporation, ("WESTA.F"), and the undersigned nonprofit organization, public agency or governmental organization ("Client") which is engaged in sponsoring contests or competitions for the selection of artists or art for display, acquisition or other use of such art objects ("Contests") and relates to an initial term starting on P:6>y2.U4.<y $5' 201Q and ending on ©x,�-36q*2016(the "License Period"), based upon the following agreed statements of fact: A. WESTAF is the owner of certain web based software known as CaFE''m Software which creates and manages a data base to accept applications from and to hold and manage the data to judge submissions by artists for entry into various contests or competitions for the selection of ail for display, acquisition or other use of such art objects by public agencies and other sponsors of such contests and competitions in online modules which include a browser interface and data encryption, transmission, access and storage ("the Software"). B. Client desires to acquire a license from WESTAF for the right to use the Software during the :License Period with respect to Client's Contests, as defined below, to lease certain digital imaging and retrieval equipment from WESTAF for use with the Software and, if indicated below, to retain WESTAF to process certain web based financial transactions associated with artist applications submitted through the Software. C. WESTAF is willing to license the Software, lease equipment and process web based financial transactions for Client and Client is willing to accept such licensing, leasing and provision of services from WESTAF upon the terms and conditions of this Agreement. ACCORDINGLY, the parties agree as follows: 1. License of Software. WESTAF hereby agrees to license to Client the Software for use with Client's Contests and Client hereby agrees to License the Software for use with Client's Contests from WESTAF during the License Period upon the terms, conditions and limitations set forth in the Standard Terms and Conditions for Ca.FETM Software attached to this Agreement as Attachment No. I and incorporated herein by this reference (the "Standard Terms and Conditions") and the other terms and conditions of this Agreement. As used throughout this Agreement, the term "Client's Contests" means the specific Contests to be described in addenda to this Agreement. In the event of any conflict between the terms of this Agreement and those of the Standard Terms and Conditions, the terms of this Agreement shall take precedence and shall control over the terms of the Standard Terms and Conditions. Initia qo-- shall have no obligation to maintain any Data stored in your account or to forward any Data to you or any third party. Security WESTAF attempts to protect your Data through certain security measures, including assigning employees to Security and using various third party and proprietary security technologies. You agree that WESTAF shall have no liability for any negligence or lack of due care in failing to protect the security of the Service, Content or Data. Please reference the appendix to see our current security data sheet, which is governed by the terms and conditions of this Agreement. Proprietary Rights Except for the license expressly granted herein, you have no right, title or interest in or to the Service or any Content and, including, without limitation, stories, articles, text, images, and other Multimedia data. WESTAF products and services referenced herein are either trademarks or registered trademarks of WESTAF. As used throughout this Agreement WESTAF means Western States Arts Federation. Indemnification To the extent permitted by law, you shall indemnify and hold WESTAF and each of its parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with your breach of this Agreement and, except to the extent such claims, costs, damages, losses, liabilities, and expenses are the result of any acts or emissions of WESTAF, your use of the Service (including the Content). Disclaimer of Warranties WESTAF MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT, WESTAF MAKES NO REPRESENTATION OR WARRANTY AND SPECIFICALLLY DISCLAIMS ANY REPRESENTATION AND WARRANTY THAT: (1) THE. USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR -FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (11) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (111) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (V) ERRORS OR DEFECTS WILL BE CORRECTED, (VI) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO You STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, Initial pl-- INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON -INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY WESTAF. Limitation of Liability WESTAF SHALL HAVE NO LIABILITY FOR ANY NEGLIGENCE OR LACK OF DUE CARE IN FAILING TO PROTECT THE SECURITY OF THE SERVICE. CONTENT OR DATA AND YOU EXPRESSLY WAIVE ANY SUCH CLAIMS FOR NEGLIGENCE AND LACK OF DUE CARE BY WESTAF. IN NO EVENT SHALL WESTAF'S AGGREGATE LIABILITY EXCEED THE AMOUNT ACTUALLY PAID BY YOUTO WESTAF AS LICENSE FEES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM. IN NO EVENT SHALL WESTAF BE LIABLE TO ANYONE FOR ANY INDIRECT, ]'UNITIVE, SPECIAL. EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO YOUR USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, EVEN IF WESTAF HAS BEEN PREVIOUSLY ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES. Additional Rights Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you. Local Laws and Export Control WESTAF controls and operates this Service from its location in the United States of America and is subject to the United States Export Administration Laws and Regulations. WESTAF makes no representation that the Service is appropriate or available for use in other locations. If you use the Set -vice from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any inforniation acquired through the use of the Service, is or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor is or will it be used for nuclear activities, chemical biological weapons, or missile projects, unless specifically authorized by the United States Government for such purposes. You shall comply strictly with all United States export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Submissions WESTAF alone will own all right, title and interest, including all related intellectual property rights, to any suggestions, ideas, feedback, recommendations, or other information provided by you relating to the Service ("Submissions") and you agree to assign such Submissions to WESTAF free of charge. WESTAF may use such Submissions as it deems appropriate in its sole discretion. Notice WESTAF may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in account information, or by written communication sent by first class mail to your address on record in WESTAF's account information. You may give notice to WESTAF (such notice shall be deemed given when received by WESTAF) at any time by any of the following: electronic mail to staff@wcstaforg, with the subject line of your email referencing CaFE Software; letter sent by confirmed facsimile to WESTAF at the following fax number to the attention of WESTAF's Director of Technology: (303) 629.9717; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to WESTAF, Inc. at the following address: Western States Arts Federation., Attim Director of Technology, 1743 Wazee Street, Suite 300, Denver, CO 80202. Modification to Terms WESTAF reserves the right to change the terms and conditions of this Agreement or its policies relating to the Service at any time and shall notify you by posting an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes. General This Agreement will be governed by Colorado law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. You shall bring all disputes, actions, claims, or causes of action related to this Agreement or in connection with the Service only in the federal and state courts located in Denver, Colorado. No text or information set fortli on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement. The English language version of this Agreement shall control. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and WESTAF as a result of this Agreement or use of the Service. The failure of WESTAF to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing. Except for any other written agreement signed by WESTAF and referencing this Agreement, this Agreement comprises the entire agreement between you a»'l WESTAF and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. © Copyright 2005 Western Sales iris Federation. LW ail/ rights reserved Client (you): t... 711-r-1 % Its: Ct1 Date: 2 sl /o -- Tnitial 7 Attachment No. 2 Security Features Security and Backup Systems for CaFETM Software Redundancy, reliability and security are key issues to consider when it comes to securing an online database. WESTAF prides itself on its robust security and disaster recovery policies. Reliability Reliability is a key issue when you are selecting a server to host systems. All data that is accessed through the Internet is stored on computers called servers. They are called servers because they "serve up" information. There are a variety of different kinds of Internet servers, the most common being "Web" (like Apache) which allows the display of Web pages. Servers are physical computers that have a large capacity to retain information and programs. The CaFE*"m database will physically reside (be hosted) on a Linux server. A server needs an operating system to allow computer programs like the CAFETM database to run on them. An operating system is a computer program that acts as the central. system allowing other computer programs to operate. One familiar operating system is Microsoft Windows. Windows allows other programs such as Word and Excel to work together on your work or home PC. Similarly, the server's operating system will allow all the programs needed to create and operate the CAFETm database allowing it to "serve" information to Internet users and maintain security on the CAFETm database. The Linux operating system will be used to run the CAFETM database. The Linux operating system is extremely reliable and stable. It allows multiple users (people who access information on the Internet) to access your information. Other operating systems may cease to work when they have too many users accessing data. Linux is known for its ability to accommodate large numbers of users with little loss of performance. This server will live at a high-speed broadband Internet -access facility. Many home PCs access the Internet through a dial -up connection. Dial -up connections are slower than high-speed broadband connections. The server has access to the Internet through a much larger connection. Think. of this as the highway to the database. The high-speed broadband is a six -lane highway; a DSL or Cable modem is a two-lane highway; and a dial -up connection is a dirt road. The high- speed broad -band connection means lower congestion and better speed for sending and receiving data to the CAFE'"' database. Redundancy CAFE''m's first level of redundancy is known as a RAID 5 (Redundant Array of Inexpensive Disks) configuration. This is the hard disk configuration the system will operate on. This means that the physical computer is made up of multiple hard drives instead of just one. The server will share redundant copies of the same data on separate physical hard drives. For example, your PC at home has only one hard drive. If your one hard drive breaks down, you can't get to your information, run programs or operate your computer. A server with several hard drives running would allow the server to continue operating, run programs and give out information even if one of its hard drives breaks down. Basically, the CAFE"m server has Initial �904_ multiple chances to survive before it cannot operate. It also allows for continued operations while the broken drives are being fixed. This configuration is known as "hot swappable disk drives". There is very little chance of down time due to drive failure. The second level of redundancy is back up. All the data on the CAFETM server is backed up every six hours off site, protecting precious data in case of fire, natural disaster, or electronic attacks. If the server were to have a catastrophic failure, we could reload the backup data onto a different server and resume operations very quickly. The third level of redundancy is back-up power. The CAFETM server is secured at a facility that has back-up power supplies. This back-up power will provide electricity to the server in case of black or brown outs. Security Transferring sensitive information over the Internet can be risky due to the following issues: * Who you are communicating with may not be who you think it is. * The data you are sending and receiving via your browser can be intercepted and read by an unauthorized third party. * If this party can intercept the data, they be able to modify it before it reaches the intended receiver. The latest TLS/SSL encryption standards are utilized to address the above issues and for account/ application access. This standard ensures that no confidential information can be easily intercepted during a user's session with CaFeTM. Our servers identify themselves using public keys. These public key certificates are issued by VeriSign, a leader provider of Internet security infrastructure. Security within our hosting environment is addressed in the following three areas. Physical security includes locking down and logging all physical access to servers at the data center. Operational security involves creating business processes that follow security best practices to limit access to confidential information and maintain tight security over time. System security involves locking down customer systems from the inside, starting with hardened operating systems and up-to-date patching. Physical Security *Data center access limited to Rackspace data center technicians * Biometric scanning for controlled data center access * Security camera monitoring at all data center locations * 24x7 on -site staff provides additional protection against unauthorized entry * Unmarked facilities to help maintain low profile * Physical security audited by an independent firm System Security * System installation using hardened, patched OS Initial a System patching configured by Rackspace to provide ongoing protection from exploits Dedicated firewall and VPN services to help block unauthorized system access Data protection with Rackspace managed backup solutions Optional, dedicated intrusion detection devices to provide an additional layer of protection against unauthorized system access Distributed Denial of Service (DDoS) mitigation services based on Rackspace proprietary Rackspace PrevenTier,rm system Operational Security * ISO I 7799-based policies and procedures, regularly reviewed as part of SAS70 Type 11 audit process All employees trained on documented information security and privacy procedures Access to confidential information restricted to authorized personnel only, according to documented processes Systems access logged and tracked for auditing purposes Secure document -destruction policies for all sensitive information Fully documented change -management procedures Independently audited disaster recovery and business continuity plans in place for Rackspace headquarters and ' support services Secure media handling and destruction procedures for all customer data PCI Data Security Standard (PCI DSS) CaFEI'm is a PCI DSS Compliant system, meeting the highest level of transactional security standards today. The PCI DSS, a set of comprehensive requirements for enhancing payment account data security, was developed by the founding payment brands of the PCI Security Standards Council, including American Express, Discover Financial Services, JCB International, MasterCard Worldwide and Visa Inc. Inc. International, to help facilitate the broad adoption of consistent data security measures on a global basis. The core of the PCI DSS is a group of principles and accompanying requirements, around which the specific elements of the DSS are organized: Build and .Maintain a Secure Network Install and maintain a firewall configuration to protect cardholder data Do not use vendor -supplied defaults for system passwords and other security parameters Protect Cardholder Data Protect stored cardholder data Encrypt transmission of cardholder data across open, public networks Maintain a Vulnerability Management Program Initia vld- * Use and regularly update anti -virus software * Develop and maintain secure systems and applications Implement Strong Access Control Measures * Restrict access to cardholder data by business need -to -know * Assign a unique ID to each person with computer access * Restrict physical access to cardholder data Regularly Monitor and Test Networks * Track and monitor all access to network resources and cardholder data * Regularly test security systems and processes Maintain an Information Security Policy * Maintain a policy that addresses information security 2. Licensed Modules, Services and Security. a. Modules and Services. The Client hereby licenses the following modules of the Software and agrees to retain WESTAF to provide the related service: [CHECK ALL moDui-r-.s THAT ARE LICENSED] Application Modules linage Management/Jurying Modules Financial Transaction Assistance, as described in paragraph 7, below, Client further agrees that if any modules are later licensed from WESTAF, then those modules shall be licensed under the terms of this Agreement, including the Standard Terms and Conditions. b. Securities Features. WESTAF's current securities features for the online use of the Software are set forth in an attachment to the Standard Terms and Conditions (the "Security Features"). WESTAF reserves the right to change the Securities Features for the Software upon thirty (30) days notice to Client and to change the Securities Features at any time without notice if the change is to improve security or upgrade existing technology. Any change to the Security Features which requires notice to Client and which decreases the Securities Features of the Software below a standard deemed reasonable within the web based software industry for similar functionality to the Software shall permit Client to terminate its license of the Software and receive a pro rated refund of any license fee for the current annual license term within thirty (30) days of WESTAF's notice of the change in Securities Features. C. Applicable Limitations. USE OF THE SOFTWARE IS SUBJECT TO LIMITATIONS AND CONDITIONS OF THE STANDARD TERMS AND CONDITIONS AND SECURITIES FEATURES, INCLUDING, BUT NOT LIMITED TO, CERTAIN LIMITATIONS OF WARRANTIES AND LIABILITY License and Related Software Fees. a. Set Up and License Fees. The following license and related fees apply to the license of the Software during the License Period: One Time Set Up Fee $750.00 (the "Set Up Fee") $500.00 (discounted rate) Application & Jury Module License Fee $450.00 per Client Contest, for up to 150 artist profiles submitted Application & Jury Module License Fee $3.00 per artist profile submitted (over 150 artist profiles per client Contest) Image Management Per linage Fee $0-14 per image processed; and Financial Transaction Assistance (if applicable) 3.25% of Eligible Entry Fee Payments processed by WESTAF The Software is only available to the Client on a per Contest basis and then only upon the parties agreeing in writing to add a specific Client Contest as an addendum to this Agreement. Initial'?)Z- -/ Z/ - b. Technical Support and Operational Assistance. WESTAF technical support is provided for under paragraph 5 of this Agreement ("Standard Technical Support"). Technical support not included within the Standard Technical Support, including, but not limited to, all on -site technical support and all assistance to the Client in its use and operation. of the Software beyond those services included as part of WESTAF's standard set up services will be provided based on mutual scheduling between WESTAF and Client at WESTAF's then -standard rates and terms. Contact WESTAF for standard rates and terms. C. Payment of License and Other Fees. Any license fees and fees for support and other services provided by WESTAF to Client relating to the Software or charges against remitted Eligible Entry Fee Payments, as defined and described in paragraph 8 of this Agreement, shall be due within thirty (30) days of the date of WESTAF's invoice to Client, except WESTAF reserves the right to charge and receive license fees in advance of the Software being made available for the specific Client Contest to which the license fee relates and to change its credit terms to Client based on its actual payment history. 4. .License Period; Rate Adjustments. The license of the Software under this Agreement shall be for the License Period which may be terminated by either party upon at least thirty (30) days written notice to the other parry. Additionally, your use of the Service shall be deemed to be your agreement to abide by this Agreement. The license of the Software may be terminated at any time during the License period on the grounds set forth elsewhere in this Agreement and in the Standard Terms and Conditions. Set Up Services and Training; Technical Support. a. Set Up Services and Training. WESTAF will provide the services, necessary to assist and train Client to integrate Client's Contest related information with the Software and in the basic functioning of the Software, consisting of standard training, web based documentation, and extended technical support (the "Set Up Services"). Client shall assign and have available a project coordinator and sufficient personnel to assist in the timely and orderly implementation of the Software. Standard training shall be provided to two of Client's personnel, in one joint session, which may or may not include representatives of other clients, shall be conducted at WESTAF's Denver, Colorado, site or through online teleconferencing, or a combination of each as determined by WESTAF. Client shall be responsible for the cost of travel to and from Denver and accommodations and meals while attending training in Denver. b. Standard Technical Support. 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 available by toll free number (within the U.S. and Canada) during the License Period. WESTAF will respond to 90% of support requests received between 9:00 a.m. and 1:00 p.m. on the same business day and to 90% of support requests received between 1: 00 p.m. and 5:00 p.m. on the next business day between 9:00 a.m. and 1:00 p.m. and will respond to all support requests no later than two business days of receiving a request. Standard Technical Support is limited as follows: during the License Period for a Software module, to one hour per business day, but no more than two hours per week and three hours per month for the first three months and thereafter to no more than one hour per day and two hours per month, and after the License Period for a r Initial/ �... i Software module, to one hour per day, but not to exceed two hours per month. Standard Technical Support may include, at WESTAF's option, support through a sponsored listserv. Requests for technical support beyond that included as part of Standard Technical Support will be provided based on mutual scheduling between WESTAF and Client at WESTAF's then - standard rates and terms. 6. System Support Requirements. In order to properly utilize the Software, Client must have computers with access to the World Wide Web and have available a current operating systern and an Internet browser to use the Software. The responsiveness and availability of features, or the convenience of using certain features of the Software, is dependent on the user's computer, operating system and browser software and may vary. 7. Financial Transaction Assistance. If indicated in paragraph 2.a., above, and in order to facilitate Client's use of the Software, WESTAF will act as Client's collection agent as provided for in this paragraph for the purpose of collecting and remitting to Client all application, imaging, jurying and other fees due from the artists 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 Software ("Eligible Entry Fee Payments"). a. 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 Software or Service (as defined in the Standard Terms and Conditions). The Designated Merchant Account shall be a VISA or MasterCard merchant account maintained directly between WESTAF and a financial institution. b. 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 to create and maintain as part of the Software or Service protocols which are standard in the industry for the collection of credit card payments through web based software and to remit to Client all such payments which are captured through such protocols. C. Term of Agency. WESTAF shall act as Client's limited collection agent for the License :Period and, thereafter, only as expressly agreed to between WESTAF and Client. d. Ultimate Collection Not Guaranteed. WESTAF promises to act in a commercially reasonable manner in acting as Client's limited collection agent under this paragraph 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. e. 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 Artist 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 Initial O-Al Charge Back which amount shall. then be due and payable as other fees are due and payable under this Agreement. f. WESTAF Merchant Fees and Costs. For its services in acting as Client's limited collection agent under this Agreement, WESTAF shall be entitled to pass through and collect from Client all merchant and other fees charged by the financial institution which maintains the Designated Merchant Account for its services in forwarding and collecting credit card payments consisting of the Eligible Entry Fee Payments ("Merchant Fees"). If the amount of the Merchant Fees are not arithmetically ascertainable due to the Designated Merchant Account being given the benefit of a volume discount or being burdened by volume transaction charges because more than just Client's credit card payments are collected and remitted through the Designated Merchant Account, then WESTAF shall reasonably estimate the amount of Merchant Fees fairly chargeable to Client. All Per Application Fees and Merchant Fees 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 as other fees are due and payable under this Agreement. g. Remittances. WESTAF shall remit the net amount of the Eligible Entry Fee Payments collected to Client within 15 days of the close of the application period for Client's Contest, or sooner or more often if mutually agreed to in writing, by 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 Charge Backs, Merchant Fees and wire transfer fees for that remittance period. h. Limited Arbitration. In the event of any dispute between WESTAF and Client concerning WESTAF's estimate of the amount of Merchant Fees fairly chargeable to Client under subparagraph Tf. of this Agreement, then the parties agree to submit that dispute to binding arbitration in Denver, Colorado, under the auspices of the American Arbitration Association in accordance with the American Arbitration Association's then - pertaining rules for the resolution of small commercial disputes. No other dispute under this Agreement is agreed to be submitted to arbitration. 8. Late Payments; Effect on Service. Fees and other charges due from Client to WESTAF which are not paid within thirty (30) days of the date due shall bear interest at eighteen percent (18%) per annum. Client shall pay all costs of collection of any fees and other charges due from Client to WESTAF under this Agreement, including reasonable attorney's fees. The Service, as described in the Standard Terms and Conditions, will not be available to Client at any time Client is in arrears in the payment to WESTAF of any fees or other charges due under this Agreement. WESTAF shall have the right to change its credit terms and to terminate the License Period upon ten (.10) days written notice to Client if Client is in arrears in the payment to WESTAF of any fees or other charges due under this Agreement. 9. Miscellaneous Provisions. a. Modifications. Except as otherwise expressly provided, this Agreement may be amended and observance of any provision of this Agreement may be waived (either generally or in any instance, retroactively or prospectively) -only upon written consent of the Initial Olt- parties. Waivers and amendments shall be effective only if made by a written, non —pre—printed document, clearly understood by both parties to be an amendment or waiver, which expressly references this Agreement. b. Governing Law. This Agreement shall be governed by and construed under the laws of Colorado. C. Compliance with Law. Each party shall in all material respects comply with all applicable laws and regulations which apply to any aspect of its execution, performance, non—performance and/or enforcement of this Agreement. d, Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. e. Notices. Notices under this Agreement shall be sufficient only if personally delivered, delivered by a major commercial overnight delivery courier service with tracking capabilities (such as Federal Express, DHL or UPS) or mailed by certified or registered United States mail, return receipt requested to a party at its addresses provided for in this Agreement or as amended by notice pursuant to this Agreement. Notice by mail shall be deemed received three (3) days after deposit in the U.S. mails. Notice to WESTAF shall be at the following address or at such other address as WESTAF may designate by notice Linder this Agreement: c/o Western States Arts Federation Atta.: Deputy Director 1743 Wazee Street, Suite 300 Denver, CO 80202 Notice to Client shall be at the address provided by Client below or at such other address as Client may designate by notice under this Agreement. f. Complete Agreement. This Agreement (including all Attachments and Exhibits thereto) supersedes all proposals, oral or written, all negotiations, memoranda of understanding, letters of intent, conversations, or discussions between or among parties relating to the subject matter of this Agreement and all past dealing or industry custom. Each Attachment and Exhibit is incorporated herein as if set forth in full in this Agreement. 9. Invalid Provisions. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in .full force and effect and enforceable. h. Force Majeure. Neither party will be liable for any delay in performing or for failing to perform obligations resulting from acts of God; inclement weather; fire; explosions; floods; or riots or civil disturbances. Initial 04- TI-r- L) I- A OJ) _1,uoriu(, Z:A 01 OOZJ=�- - -D) TOark m P-) 14L) 15 �; T-4 -rEFV1 -7 IL e),OL) blrr4 THIS AGREEMENT IS EXECUTED by the parties on the dates indicated below each party's signature. WESTAF: CLIENT: WESTERN STAT,S ARTS FEDERATION or F�&7 (�4L-Lnus fPwa Color Pit corpor ia o A-) � C-,-rP,4L-- C 0 By: By: 0 C- TV /Z Sh,' non. u Nam - 1� V, a=Nz��� Deputy D!*yector Title: -4- Or,� k-- /-( Cn L Date: Date: Client's Address for Notice: L,.-) r: T34 r-,::. 0 iz Pj 6 rr C,4L T6 " EL t- r-^ 4.,z T-r Pj PO-Izl-clo I, I T�Ilvs C 6*-,- PC) Ad Initial Y-1 M WESTAF CaFETM Software Standard Terms and Conditions Western States Arts Federation, a Colorado nonprofit corporation ("WESTAF") will provide the undersigned client ("you") with use of WESTAF's CaFET. ONLINE MODULES, including a browser interface and data encryption, transmission, access and storage through the www.callforentry.org site and otherwise (the "service"). Your right to use the Service shall be governed by these Standard Terms and Conditions (this "Agreement"), your acceptance of which is indicated by your signature on the last page of this Agreement. Additionally, your use of the Service shall be deemed to be your agreement to abide by this Agreement. IMPORTANT, PLEASE READ. IF YOU ARE not be paid). You agree that. WESTAF may bill you for EXECUTING THIS AGREEMENT ON BEHALF OF A such unpaid fees. COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THE TERMS OF THIS AGREEMENT. THE TERM "YOU" REFERS TO BOTH THE INDIVIDUAL AND LEGAL ENTITY, AS APPLICABLE, THAT EXECUTES THIS AGREEMENT. Price and Payment You will pay all fees or charges billed to your account in accordance with the license fees, charges, and billing terms in effect at the time a fee or charge is made and clue. Fees charges and billing terms in effect will be those tinder any separate, written agreement between you and WESTAF or, in the absence of such an agreement, those determined by WESTAF's published rates and terms. You must also report and pay any applicable taxes to the appropriate governmental agency. Purchase orders may be subject to credit approval. Charges Payment for the initial annual term of Service is due before Service is available, unless otherwise agreed to by WESTAF. WESTAF will automatically charge your account and issue an invoice to you for an annual license fee upon the expiration of the initial annual term of Service and then at each subsequent anniversary of the expiration of that initial term. Unless otherwise provided under the terms of a separate, written agreement between you and WESTAF: (i) the renewal license fee shall be equal to the original user license fee, unless WESTAF notifies you in advance to the contrary, (ii) you will have 30 days after the date that any renewal license fee is posted to notify WESTAF that you do not wish to continue Service for a new annual term and (iii) all invoices shall be due and payable within 30 days after the invoice date. Non -Payment If timely payment of any charge is not received, WESTAF reserves the right to either suspend or terminate your access to the Service and account and terminate this Agreement. if WESTAF receives a cancellation notice from you, you will be obligated to pay the balance due on your account (except upon cancellation of the next annual term of Service within the first 30 days of an annual term, the amount of the license fee charge for the next annual term of Service need .Initial Non -Transferable Use WESTAF grants to you a personal, non-exclusive, non- transferable license to use and display the audio and visual information, documents, products and software contained in or made available through the Service (the "Content") solely for your own internal business purposes in operating and/or managing contests or competitions for the selection of art for display, acquisition or other use of such art objects ("Calls for Entry"), Your right to use the Service includes the right to solicit the submission of applications, information and materials through the Service in response to your Calls for Entry ("Submissions"). All rights not expressly granted by WESTAF to you are retained by WESTAF. Restrictions You are permitted to store, manipulate, analyze, print, and display the Content only for your own internal business purposes and use solely for the purpose of operating and/or managing Calls for Entry. You are permitted to post your own Data, as defined below, as part of the Content on the portions of the www.callforentry.org web site reserved for that purpose and on your own web site linked to the www.callforentry.org website through the Service ("User Con t" . You are solely responsible for all User Content and shall indemnify, defend and protect WESTAF from any claim, loss or expense, including reasonable attorney's fees, incurred by WESTAF as a result of your posting User Content on the www.callforentry.org web site. Unauthorized use of the Service, or the resale of the Services (directly or though its use to provide services to others), is expressly prohibited. You shall not take any action which restricts or modifies or attempts to restrict or modify the terms and conditions of any other person's use of the Service. You shall not copy, license, sell, transfer, make available, distribute, or assign this license or the Content to any third party. You also shall not "mirror" any Content contained on, or accessible from, this Service on any other server or Internet -based device. Third Party interaction In your use of the Service, you may enter into correspondence with, purchase goods and/or services, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the applicable third -party. WESTAF shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third -party. WESTAF does not sponsor any such third persons or their products and/or service and has not authorized any such third persons to act for or to bind WESTAF in any matter. Links to Third Party Sites WESTAF does not endorse any sites on the Internet, which are linked through the Service. WESTAF is providing these links to you only as a matter of convenience, and in no event shall WESTAF be responsible for any content, products, or other materials on or available from such sites. User Accounts A user account is required to access the Service. One user account will be issued per license fee paid and may be accessed and used only by you and, if you are a company, by your authorized personnel. WESTAF reserves the right to require that the authorized personnel of company - licensees be registered with WESTAF. To open a user account, you or your company must complete the registration process by providing WESTAF with current, complete and accurate information as prompted by the registration form. In registering for the Service, you and your company's authorized personnel agree to submit accurate, current and complete information about you and your organization, and promptly update such information. Should WESTAF suspect that such information is untrue, inaccurate, not current or incomplete, WESTAF has the right to suspend or terminate your usage of the Service. You will choose a personal, non -transferable password. User Responsibilities You are also solely responsible for any and all activities that occur under your account and ensuring that you exit or log -off from your account at the end of each session of use. You shall notify WESTAF immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. You shall also use your best efforts to stop immediately any copying or distribution of Content that is known or suspected by you. WESTAF is not responsible for any unauthorized access to, or alteration of, your transmissions or data, any material, information or data sent or received, regardless of whether the data is actually received by WESTAF, or any transactions entered into through the Service or failure to abide by this Agreement. Account Information, Privacy, and Data WESTAF will not own any data, information or material that you submit to the Service ("Data"), unless we specifically tell you otherwise before you submit it. WESTAF will not monitor, edit, or disclose any information regarding you or your account, including any Data, without your prior permission except: (i) in accordance with this Agreement and (ii) as otherwise required to provide the Service. Please be aware that WESTAF does provide certain user registration and statistical information such as usage or user traffic patterns r l.-.- lnitial in aggregate form to third parties, but such information will not include personally identifying information and your Internet protocol address is not transmitted with each message sent from your WESTAF account. WESTAF may access your account, including its Data, to respond to service or technical problems or as stated in this Agreement. You, and not WESTAF, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data and WESTAF shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data. Use, Storage and Other Limitations WESTAF reserves the right to establish or modify general practices and limits concerning use of the Service, including without limitation the maximum number ofdays that Content will be retained by the Service and the maximum disk space that will be allotted on WESTAF's servers on your behalf. User Conduct You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with the Service. In addition, without limitation, you agree not to use the Service to: (a) use information from the Service in connection with sending unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) harvest, collect, gather or assemble infornation or data regarding other users, including e-mail addresses, without their consent; (c) transmit through or post on the Service unlawful, harassing, libelous, abusive, harassing, tortious, defamatory, threatening, harmful, abusive, libelous, 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; (d) transmit or allow to be transmitted any Submissions or any other material that may infringe the intellectual properly rights or other rights of third parties, including trademark, copyright or right of publicity; (e) transmit any material that contains software viruses or other harniful or deleterious computer code, files or programs such as trojan horses, worms, time bombs, cancelbots; (f) interfere with or disrupt servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (g) attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means; or (h) harass or interfere with another user's use and enjoyment of the Service. Termination WESTAF, in its sole discretion, may suspend, without notice to you, and terminate, upon five (5) days notice to you, your password, account or use of the Service and remove and discard any Data within the Service if you fail to comply with this Agreement. You may tenninate your right to use the Service upon notice to WESTAF at any time. Upon termination and provided you have so requested at the time of your termination notice or within five (5) days of WESTAF's termination notice, WESTAF shall make available to you a file of your Data within (30) days of termination. Except for the obligation to provide a file of your Data as provided in the preceding sentence, WESTAF