Agreement Upon Use of ZAPP® Service
1. Certain Definitions. For purposes of this Agreement, the following definitions shall apply:
“Agreement” shall mean this Agreement as agreed to and accepted by the Artist’s actions in clicking on the “I agree to the ZAPP® Terms and Conditions” box on the Register page of the Website.
“Application” shall mean the information requested by a particular Art Show concerning an artist’s personal data and history, training, education, experience and work as an artist and which is submitted by the artist to an Art Show through use of the ZAPP® Service.
“Art Show” shall mean an art fair, art festival, or other artist or art-related event or show which primarily presents visual and other fine arts and/or craft arts to the public. Art Show can also refer to the person sponsoring an Art Show.
“Artist” shall mean the individual user referred to in the introductory paragraph of this Agreement as the person taking action to accept the terms of this Agreement.
“Artwork” shall mean the tangible works of art and materials describing those works of art which are submitted to the ZAPP® Service. The copyright to Artworks submitted by Artist remains with Artist. Artwork may consist of Images, sound recordings, text, video and other information in any tangible form of expression.
“Database” shall mean the database of Applications and Artwork submitted by artists registered with the ZAPP® Service maintained as part of and accessible through the ZAPP® Service.
“Images” shall mean digitized images of Artwork.
“Website” shall mean the site on the World Wide Web through which Artist last clicked to reach this Agreement or such other URL address and website provided by ZAPP which is maintained under the ZAPP or ZAPPLICATION trademark, or both, for the submission of applications with images and other data related to works of art by artists for purposes of allowing artists to apply for and have their applications and works of art evaluated by an Art Show or an Art Show’s jury for possible acceptance and granting of the right to participate and show Artwork at an Art Show.
“ZAPP® Service” shall mean the web-based service, owned and made available by ZAPP through the Website, which creates and manages a database to accept applications with images and other data related to works of art from artists and to hold and manage the data to judge submissions by artists for entry into Art Shows through online modules which include a browser interface and data encryption, and as part of the service includes transmission of, access to and storage of such applications, Artwork and related data.
2. Submission of Applications and Artwork. The Artist’s submission of Artwork and Applications to Art Shows through the ZAPP® Service shall, as between Artist and ZAPP be under and subject to the terms and conditions of this Agreement. The terms and conditions of Artist’s submission of Artwork and Applications to Art Shows reached between Artist and the owner or sponsor of any Art Show shall not alter or in any way change the terms of this Agreement.
3. ZAPP’s Limited Obligations. ZAPP’s obligation to Artist is to transmit and store Applications and Artwork as described by the ZAPP® Service. ZAPP does not verify the completeness or quality of Applications or Artwork.
4. Grant of Limited Rights; No Copyright Transfer. Artist hereby grants to ZAPP a nonexclusive license to use the Artwork for the following limited purposes: (a) to permit ZAPP to facilitate the transmission of or to actually transmit the Applications, together with submitted Artwork, to the sponsors and jurors of Art Shows to which Artist has submitted Applications, including, without limitation, for such purposes to adapt, modify and translate Artwork and to create derivative works thereof; (b) to store, transmit and distribute the Artwork and Applications over public networks and in various media and to make such changes as are necessary to store, transmit and distribute such Artwork and Applications; and (c) to permit retrieval by the sponsors and jurors of Art Shows to which Artist has submitted Applications as contemplated by the ZAPP® Service. The limited rights and license granted under this Agreement do not include any assignment or transfer of the copyright in the Artwork and do not include any right to otherwise reproduce, digitize, edit, modify, distribute, or publicly display the Artwork, in whole or in part.
5. Artist’s Representations. Artist represents and warrants to ZAPP that (a) the Artwork was created exclusively by Artist; (b) Artist is the sole owner of all rights in the Artwork; (c) by entering into this Agreement and submitting the Application and Artwork through the ZAPP® Service, Artist is not violating any agreement with any third party; and (d) the Artwork does not infringe upon any intellectual property, privacy, publicity, or other rights of any third party (the “Artist’s Representations”). Artist will provide ZAPP with appropriate documentation which establishes Artist’s Representations in the form reasonably requested by ZAPP.
6. Return of Images. ZAPP has no responsibility to Artist for the return of any Images or other Artwork submitted through the ZAPP® Service, nor for any Art Show’s obligation to remove any Images or other Artwork from the Website or the Art Show’s website.
7. Artist’s Limited Rights. By using the ZAPP® Service, Artist acquires no rights in the ZAPP® Service, the Website and, except for Artist’s Images and other Artwork submitted as part of his or her Application, the content of the Database.
8. Duty of Care. ZAPP will use reasonable efforts to control the security of the ZAPP® Service, but does not warrant that the ZAPP® Service or Website will be able to protect Artwork and Images from infringement or piracy. Artist acknowledges that technological advances of those trying to break codes and encryption devices may outpace the technology of encryption and security and that there is no such thing as an absolutely secure web-based service or website. Artist further acknowledges that the publication of digitized data on the Internet necessarily makes it possible for Artwork to be copied in some form and for dishonest people to attempt to profit from that copying. Artist agrees that ZAPP shall have no liability for any negligence or lack of due care in failing to protect the security of the ZAPP® Service or Website and Artist’s rights in the Artwork and Images, but, subject to the other limitations of Section 9 of this Agreement, ZAPP shall be liable for any gross negligence and intentional wrongdoing on its part with respect to the security of the ZAPP® Service or Website and the protection of the Artist’s rights in the Artwork and Images.
9. Limitation of Liability; Disclaimers of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE WEBSITE AND ZAPP® SERVICE ARE PROVIDED AS-IS AND WITHOUT ANY WARRANTIES. ZAPP HEREBY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE WEBSITE AND THE ZAPP® SERVICE. IN NO EVENT WILL ZAPP BE LIABLE TO ARTIST FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR OFFENDED MORAL RIGHTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ZAPP SHALL HAVE NO OBLIGATION TO PROTECT ARTIST’S MORAL RIGHTS, IF ANY, IN THE ARTWORK AND IMAGES. ARTIST’S SOLE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY ZAPP, FOR ANY UNAUTHORIZED PUBLICATION OF ARTWORK THROUGH THE WEBSITE AND FOR ANY OTHER CLAIMED HARM FROM USING THE ZAPP® SERVICE OR WEBSITE, WHETHER CAUSED OR ALLEGED TO BE CAUSED BY ZAPP, SHALL BE ARTIST’S ACTUAL DAMAGES, IF ANY, SUBJECT TO A LIMITATION OF $250 PER CLAIM OR $750 IN THE AGGREGATE FOR ALL CLAIMS UNDER THIS AGREEMENT.
10. Indemnification. Artist agrees to indemnify, defend and protect ZAPP for any cost and expense, including attorney’s fees, incurred by ZAPP as a result of any breach of the Artist’s Representations.
11. Agreement Modifications. Modifications to and amendments of this Agreement shall only be made: (a) in a writing signed by both Artist and ZAPP, or (b) by ZAPP posting on the Website or through the ZAPP® Service a modified or amended form of this Agreement which is accepted by Artist. Artist’s acceptance of any modified or amended form of this Agreement posted on the Website or through the ZAPP® Service by ZAPP shall be by Artist’s action: (i) in clicking on the “I agree to the ZAPP® Terms and Conditions” box on the Register page of the Website when offered in relation to such modified or amended form of this Agreement, or (ii) in continuing to use the Website or ZAPP® Service after such an amended or modified form of the Agreement has been posted on the Website or through the ZAPP® Service by ZAPP for at least thirty (30) days.
12. Governing Law; Dispute Resolution. This Agreement shall be governed by the laws of the state of Colorado, excluding its conflict of laws principles. Except as provided 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.
13. Liberal Construction. This Agreement is between commercially sophisticated parties and may not be construed and interpreted for or against either party. Each party is aware that each is free to seek independent professional guidance or legal counsel regarding this Agreement. Each party has either sought such guidance or legal counsel or decided, after reviewing the Agreement carefully, to waive such right. The limited rights and license granted under this Agreement do not include any assignment or transfer of the copyright in the Artwork and Images and do not include any right to reproduce, digitize, edit, modify, distribute, or publicly display the Artwork and Images, in whole or in part, for any purpose other than in conjunction with the ZAPP® Service and as expressly set forth in Section 4 of this Agreement.