Service Agreement - What Orgs Agree To
WESTAF | 1888 Sherman Street Suite 375 | Denver, Colorado 80203 | www.westaf.org
P (303) 629.1166 | F (303) 629.9717 | email firstname.lastname@example.org
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 or Contest,” purchasing additional storage space, or breaching this Agreement.
1.2 “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.
1.3 “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.
1.4 “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.
1.5 “Documentation” means the terms and conditions of use, service agreement, and any user manuals provided to Client in connection with the YouJudgeIt™ Service in either reason; changes in Fees will not affect pending open Calls as electronic, online help files or hard copy format.
1.6 “Fees” have the meaning given in Section 3.1.
1.7 “Financial Transaction Assistance” means the financial transaction assistance services described in Attachment 3.
1.8 “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.
1.9 “Media” means, but is not limited to, images, documents, audio, and video being used within the YouJudgeIt™ Service.
1.10 “Submissions” has the meaning given in Section 2.2.
1.11 “Support” means WESTAF’s standard technical support for Client’s use and operation of the YouJudgeIt™ Service described in Attachment 2.
1.12 “Third Party Software” means any third party computer software programs used by Client in conjunction with its use of the YouJudgeIt™ Service.
1.13 “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 purpose.
1.14 “User Account” has the meaning given in Section 2.5.
1.15 “YouJudgeIt™ Service” or “Service” means the web-based service, owned and made available by WESTAF as described in Attachment 1, including all applicable Documentation and updates and new releases.
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 (“Submissions”).
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™ Service.
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 Service 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 Service, except as required to use the YouJudgeIt™ Service in accordance with this Agreement and the limitations and restrictions included as part of the YouJudgeIt™ Service; (b) sublicense, lease, rent, reason; changes in Fees will not affect pending open Calls as loan, sell, re-sell, distribute, make available or otherwise transfer the Service 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 Service; (e) do anything to modify or restrict any other person’s access to or use of the YouJudgeIt™ Service; (f) use or permit others to use the YouJudgeIt™ Service 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 except as expressly allowed under Section 2.1.
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 described on the “Pricing” page of the YouJudgeIt™ website. Client agrees to pay the transaction fees of 3.5% 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 and for any reason; changes in fees will not affect pending open Calls or Contests 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 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 Service, 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 YouJudgeIt™ 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 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 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 Service or Documentation or included as part of the YouJudgeIt™ Service.
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 proceeding.
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 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 this Agreement.
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 Agreement.
YouJudgeIt™ SERVICE DESCRIPTION AND FEES
1. Service Description. The Service to which access will be provided under this Agreement will be the current release of the WESTAF web based service accessed at the URL address set forth in paragraph 4 of this Attachment, or any other address provided by WESTAF, and known as YouJudgeIt™ Service 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 competitions.
2. Software Modules and Services. Client’s use of and access to the Service includes the following modules:
➥ Application/User, Admin, and Jury Modules
➥ Image/Media Management Modules
3. Financial Transaction Service. 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 YouJudgeIt™ Service using a Visa, Mastercard, Discover, or American Express.
4. Access. Client shall access and use the YouJudgeIt™ Service through the Client's website interface at the following URL address: http://www.youjudgeit.org/.
5. Fees. The following fees apply to Client’s access and use of the YouJudgeIt™ Service and can also be found at http://bit.ly/YJIInfo17. WESTAF reserves the right to adjust these Fees at anytime and for any reason without advance notification to User or Client.
|Create a Call||150||$150||**Get discount off call creation price, if bundled|
|Accept 1 Application||1||$1|
|Extra Storage||15||$15||Per 1 GB / Per Year; 500 MB included|
|Download Application Data||10||$10||Download applicant's data in spreadsheet|
|Download Worksamples||60||$60||Download applicant’s worksamples|
|Email Individual Applicants||1||$1||Per batch email to applicants, directly from the site|
|Unlimited Application Questions||-||$50||One-time fee. Unlimited application questions for all calls|
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 YouJudgeIt™ 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 YouJudgeIt™ 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
1. 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).
2. Service. In order to facilitate Client’s use of the YouJudgeIt™ 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 YouJudgeIt™ Service (“Eligible Entry Fee Payments”).
3. 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 YouJudgeIt™ Service. The Designated Merchant Account shall be a VISA or MasterCard merchant account maintained directly between WESTAF and a financial institution.
4. 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 YouJudgeIt™ 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.
5. 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.
6. 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.
7. 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 to Client.
8. Refunds. WESTAF shall not process refunds for fees as paid by the client as part of the YouJudgeIt™ Service, refer to payment terms. WESTAF will process refunds for Eligible Entry Fee Payments, if the applicant made an incorrect payment or is withdrawing from the Call or Contest. Refunds will be processed at the request of the Client and must be received in writing. WESTAF reserves the right to deny a refund request and turn the refund request back over to the Client for processing.
9. 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 YouJudgeIt™ 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 YouJudgeIt™ 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.