Terms & Conditions of Use

TERMS AND CONDITIONS OF USE FOR THE NEW ENGLAND FOUNDATION FOR THE ARTS WEBSITE - 7.12.13

Welcome to the New England Foundation for the Arts website ("site") administered and operated by the New England Foundation for the Arts ("NEFA," "We," "Us," "Our") in partnership with the state arts agencies of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. The purpose of this site is to serve as a resource for others in the artistic, cultural, and creative communities throughout the New England area, the nation, and internationally.

This Terms and Conditions of Use ("TCU" or "Agreement") is made by and between Us and You, the user of this site. Use of this site is provided to You subject to the terms of this Agreement, which may be updated, modified, or amended by us from time-to-time at Our sole discretion with or without prior notice to you. You hereby agree as follows:

BY CLICKING "I AGREE" IF YOU ARE A REGISTERED USER WHO CONTRIBUTES CONTENT, BY SUBMITTING A SEARCH REQUEST IF YOU ARE ONLY PERFORMING SEARCHES ON THE  SITE OR BY OTHERWISE ACCESSING OR USING THE SITE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THE NEW ENGLAND FOUNDATION FOR THE ARTS PRIVACY POLICY, INCORPORATED BY REFERENCE HEREIN, AND EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND THEREIN REGARDLESS OF HOW OFTEN YOU USE THIS SITE. THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AND FORCE AS A WRITTEN AND SIGNED DOCUMENT BY YOU.  IF YOU DO NOT AGREE WITH THE TCU, DO NOT USE OR ACCESS THE SITE.

IF YOU ARE A REGISTERED USER, YOU MAY BE NOTIFIED VIA E-MAIL IF THIS AGREEMENT IS AMENDED OR MODIFIED. IF YOU ARE A USER OF THE SITE WHO ONLY PERFORMS SEARCHES ON IT, WE WILL BE UNABLE TO NOTIFY YOU OF ANY CHANGES. REGARDLESS OF WHETHER YOU ARE REGISTERED OR NOT, HOWEVER, ANY USE OF THE SITE BY YOU AFTER ANY SUCH AMENDMENTS OR MODIFICATIONS TO THE AGREEMENT SHALL BE DEEMED ACCEPTANCE OF THE MOST CURRENT VERSION OF THIS AGREEMENT.

1. License. Subject to the terms and conditions set forth in this Agreement, We agree to provide You with access and use of Our site. There is no fee paid by You for access. Your access to the site is provided pursuant to a free, limited, revocable, and non-exclusive license provided by Us.

2. Accessibility. You understand and agree that the site may, at times, be inaccessible or inoperable for any reason, including, but not limited to: (i) equipment or communications malfunctions; (ii) periodic maintenance, repairs, content updates, or administrative reviews which We may undertake from time-to-time; or (iii) causes beyond Our control or which are not foreseeable by Us.

3. Equipment. You shall be solely responsible for providing, maintaining, and ensuring compatibility with the site, all hardware, software, electrical, and other physical requirements for Your use of Our site, including, but not limited to, telecommunications and internet access connections and links, web browsers or other equipment, and programs or services required to access and use the site.

4. Proprietary Rights. All portions of this site are proprietary to Us and may be protected by intellectual property laws and treaties, including, but not limited to, copyright, trademark, service mark, trade secret, and patent laws. You agree to use this site for Your own personal use only and shall not copy, duplicate, display, transmit, distribute, modify, reverse engineer, or prepare derivative works for any other purpose, whether commercial or otherwise, unless We give You express written permission to do so.

5. No Redistribution or Resale. You agree not to reproduce, duplicate, copy, sell, resell, lease, distribute, redistribute, or exploit any portion of the site, its use, or any access to it, for any purpose, commercial or otherwise.

6. No Interference or Circumvention. You agree that You shall not use, implement, or employ, or directly or indirectly aid, encourage, or solicit anyone else in using, implementing, or employing any automated or manual device, process, or program (e.g. robot, spider, spyware, adware, malware, etc.) designed to: (a) monitor, observe, track, gather, collect, aggregate, copy, or transmit any of the content, data, or user information contained on Our site, whether provided by Us or other users; or (b) deliver promotional, advertising, marketing, commercial, or non-commercial material to users (e.g. pop-up advertisements) without Our express written permission. You further agree that You shall not use, implement, or employ, or directly or indirectly aid, encourage, or solicit anyone else in using, implementing, or employing any automated or manual device, process, procedure, or program that interferes, circumvents, encumbers, or attempts to interfere, circumvent, or encumber the operation or administration of Our site.

7. Linking and Framing. You agree not to bypass or attempt to bypass the home page of Our site and “deep link” to any other page in Our website, or frame Our content within another website or copy, or use it in another medium without Our express written permission. You hereby give Us the right, however, to create a deep link to certain pages on Your website for the purpose of offering access to content that We, in Our sole discretion, determine to be appropriate for the NEW ENGLAND FOUNDATION FOR THE ARTS site.
Our site or other users may also provide links to other websites in the content they post and contribute. Except for the CultureCount.org and MatchBook.org sites, these links are not intended to, and do not, imply any sponsorship or endorsement by Us, even if We work collaboratively or cooperatively with an organization or entity to which Our site links. We do not exercise any control over the content on, or the operation of, these other sites. We are not in any way responsible or liable, either directly or indirectly, for the availability or accessibility of these other websites, any transmissions initiated by or between You and the other site, any products or services sold on the other site (if any), any of the content posted on the other site, or Your use of or reliance upon such content or links.  Your use of any linked site, including the CultureCount.org and MatchBook.org sites, is subject to the terms and conditions of use of those sites.
If You discover a link on the site which makes illegal or infringing content available to Our users or other parties, please notify Us so that We may determine, in Our sole discretion and pursuant to Section 11, whether to remove, disable, or otherwise modify it.

8. License. By submitting any content to Our site, You grant to Us a perpetual, unlimited, irrevocable, royalty-free, non-exclusive, assignable, and worldwide license, to make, copy, perform, publish, display, distribute, transmit, translate, modify, prepare derivative works and use the content in other works in any form, media, or technology now known or hereinafter developed for the full term of any rights that may exist in that content. You also agree to waive and never assert any moral rights that You may have in the content submitted to Us.

9. Unacceptable Use and Content Policy. You are solely responsible for any and all acts and omissions that occur while You use this site, and You shall not engage in, or directly or indirectly assist anyone else in engaging in, any unacceptable, inappropriate or illegal uses, which includes, but is not limited to, use of the site to: (a) post, disseminate, store or transmit unsolicited messages, chain letters, or unsolicited commercial e-mail (also known as “spam”); (b) post, disseminate or transmit content that is abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, or malicious; (c) post, disseminate, store, or transmit files, text, graphics, software, or other content that actually or potentially infringes the copyright, trademark, patent, trade secret, intellectual property rights, or rights of privacy or publicity of any person, or instruct any person how to do so; (d) post, disseminate, or transmit any false, fraudulent, inaccurate, or deceptive information; (e) create a false identity or otherwise attempt to mislead any person as to the identity or origin of any communication; (f) impersonate any person or entity, including, but not limited to, a NEFA employee or agent; (g) export, re-export, or permit downloading or transfer of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions; (h) interfere, disrupt, or attempt to gain unauthorized access to other passwords or accounts on the site or on any other computer network; (i) post, disseminate, store, or transmit viruses, Trojan horses, or any other malicious or damaging code or program; (j) harm minors in any way; (k) solicit personal information from anyone under eighteen (18) years of age; (l) solicit, post, disseminate, or transmit any confidential information; (m) interfere with or disrupt the site, servers, or network connected to provide service to the site; (n) provide instructional information about illegal or unlawful products, services, or activities; (o) "stalk," bully, or otherwise harass another person; (p) intentionally or unintentionally violate any applicable local, state, national or international laws; (q) delete, modify, or revise any material posted by another party or user without authorization; and/or (r) engage in any other activity deemed by Us, in Our sole discretion, to be objectionable or unacceptable.

One or more violations of this policy may result in termination or suspension of Your access and ability to use this site, where applicable. In addition, as stated in more detail in Section 11, We may, in Our sole discretion, make changes to Your Content (as defined in Section 10) as We deem appropriate.

Our site is being hosted by Digital Loom, a third party service provider, which may also have an acceptable use policy to which We are bound. This policy, if applicable, is expressly incorporated by reference herein to the extent that it applies to Your conduct while using Our site. Any violation of this acceptable use policy, if any, by You shall constitute a violation of this section. For more information, You may view the host’s website at: http://www.digital-loom.com/.

As stated in Our Privacy Policy, in instances where We, in Our sole discretion, suspect or determine that the site is being used for any unacceptable, inappropriate, or illegal purposes, personally identifiable information relating to Your use of this site may be disclosed to other parties as We deem appropriate. Such information may also be disclosed pursuant to any authorized law enforcement investigation or other judicial process, regardless of whether it was initiated by Us or by another party. Unless expressly required by law, We have no obligation to inform You if We receive a subpoena or other authorized judicial or legal process compelling the disclosure of Your personally identifiable or other information. We may, however, in Our sole discretion, choose to inform You in certain instances.

10. No Pre-Screening. You understand that We are a passive conduit for the on-line distribution and publication of information and content submitted by You and other users to the NEW ENGLAND FOUNDATION FOR THE ARTS site, and that, although we reserve the right to do so, We do not screen information or content in advance of submission. We do not pre-screen any users who provide information or content to You (or You to them) or may otherwise respond to Your listings, postings, e-mails, statements, solicitations, or requests (collectively, "Content"). Said Content is contributed without Our knowledge or intervention at that time. We have not verified, confirmed, investigated, or corroborated any of the Content contributed by You or by other users. You assume sole risk and responsibility for contributing Content and for answering, contacting, investigating, meeting, interacting with, soliciting, and/or transacting business with any other users or other respondents to Your Content. UNDER NO CIRCUMSTANCES WE WILL BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE ASSOCIATED WITH THE CONTENT CONTRIBUTED, DISSEMINATED, RECEIVED, OR RELIED UPON BY YOU.

11. Good Samaritan Content and Complaint Procedures Policy.

a. Policy. We have provided opportunities for You to contribute Content to the NEW ENGLAND FOUNDATION FOR THE ARTS site. It is Our policy, however, not to allow any Content at this site which may constitute intellectual property infringement; violations of federal, state, or local law; obscene or defamatory material, or may otherwise be unacceptable, inappropriate, or inaccurate. Upon learning of the existence of such Content, We will attempt, and You hereby give Us the right, to delete, edit, remove, disable, change, or restrict access to or the availability of Content, which, in Our sole discretion, is otherwise unacceptable, objectionable, or inaccurate. We may or may not notify You about what action is taken with respect to the disputed Content. The provisions of this section are intended to implement this policy but are not in any way intended to impose a contractual obligation upon Us to undertake, or refrain from undertaking, any particular course of conduct.

b. Complaint Procedures. If You believe that another user or other third party has posted Content which violates this policy or the Unacceptable Use and Content Policy in Section 9, You may notify Us as follows: (i) Via e-mail at  info@nefa.org; or (ii) via first class mail (or other nationally-recognized courier) at: New England Foundation for the Arts, 145 Tremont Street, 7th Floor, Boston, MA 02111-1214, Attn: Communications Department.

In order to allow Us to respond effectively, please provide Us with as much information as possible in Your e-mail or correspondence, including: (1) identification of the right infringed or violated (including the registration numbers of any registered trademarks or patents allegedly infringed) or the unacceptable or inappropriate content; (2) all facts which lead You to believe that a right has been violated or infringed, if applicable; (3) the precise location where the offending content is located; (4) any grounds to believe that the party or user which posted the content was not authorized to do so or did not have a valid defense (including the defense of fair use), if applicable; (5) if known, the identity of the party or user who posted the infringing, offending, or inappropriate content, if applicable; and (6) in the case of alleged copyright infringement claims, information sufficient to identify the work and Your claims to ownership.

c. Indemnification/Waiver of Certain Rights. By contacting Us and complaining of an alleged violation, You agree that the substance of Your complaint shall constitute a representation made under the pains and penalties of perjury pursuant to the laws of the Commonwealth of Massachusetts. In addition, You agree, at Your own expense, to defend and indemnify Us and hold Us harmless against all claims which may be asserted against Us, and all losses incurred, as a result of Your complaint and/or Our response to it.

d. Waiver of Claims and Remedies. We expect all users of Our site to take responsibility for their own actions and cannot and do not assume liability for any acts of third-parties which take place at Our site. By taking advantage of the Good Samaritan procedures set forth herein, YOU WAIVE ANY AND ALL CLAIMS OR REMEDIES WHICH YOU MIGHT OTHERWISE BE ABLE TO ASSERT AGAINST US UNDER ANY THEORY OF LAW (INCLUDING, BUT NOT LIMITED TO, INTELLECTUAL PROPERTY LAWS) THAT ARISE OUT OF OR RELATE IN ANY WAY TO THE CONTENT AT THIS SITE OR OUR RESPONSE, OR FAILURE TO RESPOND, TO A COMPLAINT.

e. Investigation/Liability Limitation. You agree that We have the right, but not the obligation, to investigate any complaint received. By reserving this right, We do not undertake any responsibility in fact to investigate complaints or to remove, edit, disable, or restrict access to or the availability of content. We will not act on complaints that We believe, in Our sole discretion, to be deficient or incomplete. If You believe that content remains on this site which violates Your rights, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE AGAINST THE USER OR OTHER PARTY RESPONSIBLE FOR SAID CONTENT, NOT AGAINST US. AS STATED IN SECTION 14, YOUR SOLE AND EXCLUSIVE REMEDY AGAINST US SHALL BE TO TERMINATE YOUR USE OF THIS SITE AND SERVICE.

f. Digital Millennium Copyright Act Compliance. As set forth in Subsection (b), You must contact Our agent if You believe that a work protected by a U.S. Copyright which You own has been posted on Our site without authorization or that Our site, in some material way, contributes to its infringement. It is Our policy to terminate, in appropriate circumstances, the access rights of repeat infringers and other users who use this site in an inappropriate or objectionable manner.

12. Representations and Warranties. You represent and warrant the following: (i) You are over eighteen (18) years of age; (ii) You have the right, power, and authority to enter into and perform this Agreement; (iii) The information that You provided when registering to use Our site is accurate, truthful, reliable, and current; (iv) You will not use Our service or site for any unacceptable uses, as listed in Section 9; and (v) You will not use Our website or service to violate any federal, state, and/or local law.

13. Disclaimer of Warranties. THIS SITE IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SITE IS AT YOUR SOLE RISK. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANOTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (B) THAT THE SITE WILL MEET YOUR REQUIREMENTS; (C) THAT THE SITE AND ANY TRANSMISSIONS SENT OR RECEIVED TO OR FROM IT WILL BE SECURE, UNINTERRUPTED, ACCESSIBLE, OR ERROR-FREE; AND/OR (D) THAT ANY INFORMATION, DATA, OR CONTENT OBTAINED FROM OR POSTED ON THE SITE WILL BE ACCURATE, RELIABLE, COMPLETE, TIMELY, OR FREE FROM VIRUSES OR OTHER FORMS OF DESTRUCTIVE CODE. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US, WHETHER IN ORAL, WRITTEN, OR ELECTRONIC FORM, RELATING TO YOUR USE OF THIS SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

14. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THIS SITE, OR THE INTERNET GENERALLY, INCLUDING, BUT NOT LIMITED TO: (A) YOUR USE OR INABILITY TO USE THE SITE; (B) ANY CHANGES TO OR INACCESSIBILITY OF THE SITE; (C) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY TRANSMISSION OR DATA; (D) ANY CONTENT OR DATA TRANSMITTED OR RECEIVED (OR NOT TRANSMITTED OR RECEIVED); AND (E) ANY CONTENT OR DATA FROM, OR POSTED BY, A USER OR OTHER THIRD PERSON ACCESSED ON OR THROUGH THE SITE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. YOUR SOLE AND EXCLUSIVE REMEDY AT LAW AND IN EQUITY SHALL BE TO TERMINATE YOUR USE OF THIS SITE.

15. Reliance upon Limitations. THE PARTIES ACKNOWLEDGE THAT THEY HAVE ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMER OF WARRANTIES AND DAMAGES AS SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

16. Indemnification. You agree to indemnify, hold harmless, and defend Us, Our directors, officers, employees, and agents from and against any action, cause, claim, damage, debt, demand, or liability, including reasonable costs and attorney's fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement and/or any breach or threatened breach by You thereof; (b) Your use of the site, including any data, Content, or material transmitted, posted, or received by You; (c) any unacceptable or objectionable use of the site by You; (d) any negligent or willful misconduct by You; and (e) as otherwise provided in this Agreement.

17. Privacy. Your information is collected and utilized pursuant to Our Privacy Policy, incorporated by reference herein. We do not knowingly collect information from children. This site is intended for use by adults over the age of eighteen (18) years.

18. Integration and Conflicting Terms. This Agreement, the Privacy Policy, and any other terms expressly incorporated by reference herein constitute the complete and exclusive statement and agreement between You and Us with respect to use of the NEW ENGLAND FOUNDATION FOR THE ARTS site and supersedes any and all prior or contemporaneous communications, representations, statements, agreements, and understandings, whether in oral, written, or electronic form, between You and Us concerning the use of the site and Our service. This Agreement, the Privacy Policy, and other terms expressly incorporated by reference shall be construed as consistent with each other whenever possible, but if such construction is unreasonable due to conflicting terms, the terms of this Agreement shall control. To the extent that Our site contains any content posted by Us, including but not limited to answers to "frequently asked questions" ("FAQs"), which may conflict with the terms of: (a) this Agreement, this Agreement shall control; and/or (2) the Privacy Policy, the Privacy Policy shall control.

19. Modification and Amendment. We have the right, at any time, to modify or amend the terms of this Agreement. As stated above, should this Agreement be modified or amended, we may choose to notify you via e-mail if You are a registered user of this site. Any use of the site by You after any such notification shall constitute Your acceptance of the modified or amended terms. No modification made by You shall be binding upon Us unless it is made in writing and signed by Us.

20. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, or any other causes beyond the control of either party, that party shall be excused to the extent that it is prevented, hindered, or delayed by such causes.

21. Severability. If any one or more of the provisions contained in this Agreement shall for any reason be found to be invalid, illegal, or unenforceable in any respect, said finding shall not affect the remaining provisions of this Agreement, which shall be enforceable to the fullest extent permitted by law.

22. Waiver. No waiver of any term, provision or condition of this Agreement and/or the Privacy Policy, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver by Us shall be binding unless executed in writing by Us and signed by an authorized agent.

23. Governing Law and Forum. This Agreement is made in, and shall be governed by, the laws of the Commonwealth of Massachusetts, excluding its conflicts-of-law provisions. All actions, claims, or disputes arising under or relating to this Agreement shall be brought in the state courts of Boston, Massachusetts exclusively. You irrevocably submit and consent to the exercise of personal jurisdiction over You by the state courts in Massachusetts.

24. Remedies. In order to avoid irreparable injury to Us, in the event of any breach or threatened breach by You of the provisions of this Agreement, We shall be entitled to an injunction and/or other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting Us from pursuing any other remedies available to Us for such breach or threatened breach, including the recovery of monetary damages from You.

25. No Third Party Beneficiaries. No provision of this Agreement is intended to create, and does not create, any rights in or benefits to any third party.

26. Notice. All notices relating to the site or Your use thereof shall be deemed to be delivered when sent to You: (1) by either first class or non-profit postage to the physical address provided by You when registering to use the site; or (2) via e-mail to the address provided by You when registering to use the NEW ENGLAND FOUNDATION FOR THE ARTS site. Except as may be provided elsewhere in this Agreement, all notices to Us shall be sent via first class mail or other nationally recognized courier, whereby receipt is recorded, to: New England Foundation for the Arts, 145 Tremont Street, 7th Floor, Boston, MA 02111-1214.

27. Termination. Either party may terminate this Agreement at any time without notice to the other party. Upon termination, Your access and use of the site may be discontinued and terminated.

28. Survivability. The respective rights and obligations of the parties pursuant to Sections 10 through 18, inclusive, Sections 23 and 24, and as otherwise provided elsewhere in this Agreement, shall survive any termination or expiration of this Agreement.

29. Neutral document. No provision of this Agreement or the Privacy Policy shall be interpreted or construed against Us because We were the drafter thereof.

30. Headings and Order. The headings and sequential order of the sections contained in this Agreement are for convenience or reference only and shall have no substantive or procedural effects in construing the provisions of this Agreement.