TERMS AND CONDITIONS OF USE FOR THE NEW ENGLAND FOUNDATION FOR THE ARTS WEBSITES - 10.28.21
The New England Foundation for the Arts ("NEFA," "we," "us," or "our") owns, administers and operates the nefa.org, creativeground.org and centerstageus.org websites ("Sites") and any grants application and reporting portal (“Portal”). The Sites and Portal (collectively, the “Services”) are provided in partnership with international, national, state, local and municipal arts agencies and other intermediary cultural organizations that assist NEFA in connection with their public responsibilities to promote and foster citizens’ interest in the arts, humanities, interpretive sciences, and other cultural and creative fields through advocacy, funding, and other operations and activities which support and serve the interests of the artistic, cultural, and creative community (collectively, our “Creative Community Partners”). These Creative Community Partners include, but are not limited to, the National Endowment of the Arts (“NEA”) and arts agencies and cultural organizations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. The purpose of the Services is to serve as a resource for others in the artistic, cultural, and creative communities throughout the New England area, the nation, and internationally.
These Terms and Conditions of Use ("TCU" or "Agreement") govern your use of the Services identified above. Other sites, content or online services owned or controlled by NEFA may have their own terms and conditions of use and should be reviewed.
NEFA may also offer promotions, sweepstakes, contests, services or features that have their own terms, and to the extent any portion of those special terms conflict with these TCU, the special terms will govern for that specific portion.
These TCU are a legal contract made by and between NEFA and you, the user of the Services. The Services are intended for adults 18 years of age or older. By accessing the Services, you represent that you are 18 years of age or older. Use of the Services is provided to you subject to the terms of this Agreement, which may be updated, modified, or amended by NEFA from time to time at our sole discretion with or without prior notice to you. You hereby agree as follows:
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 SERVICES WHO ONLY PERFORMS SEARCHES, NEFA WILL BE UNABLE TO NOTIFY YOU OF ANY CHANGES. REGARDLESS OF WHETHER YOU ARE REGISTERED OR NOT. HOWEVER, ANY USE OF THE SERVICES 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 from NEFA to You. Subject to the terms and conditions set forth in this Agreement, NEFA agrees to provide you with access to and use of our Services. There is no fee paid by you for such access and use. Your access to and use of the Services is provided pursuant to a free, limited, revocable, and non-exclusive right and license granted by NEFA.
2. Accessibility. You understand and agree that the Services 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 NEFA may undertake from time to time; or (iii) causes beyond NEFA’s control or which are not foreseeable by us.
3. Equipment. You shall be solely responsible for providing, maintaining, and ensuring compatibility with the Services, all hardware, software, electrical, and other physical requirements for your use of the Services 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 Services.
4. Proprietary Rights. Other than the exceptions referenced in these TCU or noted elsewhere, the major exception being user generated content which remains the property of the respective user of the Services that uploads or posts such content as set forth in Section 8, below, all portions of the Services are the property of NEFA including, but not limited to, all marks, logos, names, text, data, documents, messages, pictures, images, video, audio, graphics, links, software and its underlying code, domain names or other electronic files (referred hereafter as “NEFA Content”). Certain elements of the Services, including but not limited to, text, graphics, photos, images, video, audio, color selections, organization and layout, are copyright protected under United States and international copyright laws. Other NEFA Content may be protected by other intellectual property laws and treaties, including, but not limited to, trademark, service mark, trade secret, and patent laws. Any NEFA Content protected by intellectual property laws may not be copied, republished, posted, modified, edited, transmitted, distributed, used to create derivative works of, or reverse engineered without NEFA’s express written permission, except that you may print out one copy of each page on the Sites solely for non‑commercial personal or educational use. You acknowledge that you have no right, title or interest in or to the Services and/or NEFA Content. There may be other content located on or provided through the Services which is not owned by NEFA, and you should respect those property rights as well. All rights not expressly granted herein are reserved to NEFA.
5. No Redistribution or Resale. Information provided through the Services is intended only as an educational and charitable resource for others in the artistic, cultural, and creative communities. You agree that you will only use the Services for their intended purposes, and you will not use the Services to reproduce, duplicate, copy, sell, resell, lease, distribute, redistribute, or exploit any portion of the Services, their use, or any access to them, 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: (i) monitor, observe, track, gather, collect, aggregate, copy, or transmit any of the content, data, or user information contained on the Services, whether provided by NEFA or other users; or (ii) deliver promotional, advertising, marketing, commercial, or non-commercial material to users (e.g. pop-up advertisements) without NEFA’s 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 the Services.
7. Linking and Framing. You agree not to bypass or attempt to bypass the home pages of our Sites and “deep link” to any other page in our Services, or frame NEFA Content within another website or copy, or use it in another medium without NEFA’s express written permission. You hereby give NEFA the right, however, to create a deep link to certain pages on your website for the purpose of offering access to content that NEFA, in our sole discretion, determines to be appropriate for the Services. Our Services and any user generated content (described in Section 8, below) also may include links to other websites or third-party online services. These links are not intended to, and do not, imply any sponsorship or endorsement by NEFA, even if we work collaboratively or cooperatively with an organization or entity to which our Services link. We do not exercise any control over the content on, or the operation of, these other external sites. We are not in any way responsible or liable, either directly or indirectly, for the availability or accessibility of these external sites, any transmissions initiated by or between you and such external 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 external site is at your own risk and is subject to the terms and conditions of use, privacy policies and other policies applicable to those external sites. If you discover a link on the Services which makes illegal or infringing content available to our users or other parties, please notify NEFA so that we may determine, in our sole discretion and pursuant to Section 12, whether to remove, disable, or otherwise modify it. NEFA may also allow interaction between the Services and other third-party services such as Facebook, Twitter, Instagram and other social media providers. This may include “Like” buttons or other interactions through third party plugins on the Services that, when used, may allow you to share content from the Services or other content with other persons on or through third-party sites or elsewhere. Please consult the privacy policies of these third-party services before using them to make sure you are comfortable with the level of sharing. NEFA has no control over these third-party services and you use these interaction functions at your own risk. NEFA is in no way liable for any harm to you as a result of using one of these interaction functions.
8. License from You to NEFA. The Services may allow you to upload, post, or otherwise transmit your own user generated content (“UGC”) in certain locations or as part of your use of the Services. Any UGC you transmit, post or otherwise make available on or through the Services, such as comments, pieces, ideas, information, material or content you make available in any form including, but not limited to, any visual or audio data, is made available to NEFA on a non-proprietary and non-confidential basis. By transmitting any UGC on or through our Services, you hereby grant to NEFA and our designees, until revoked by you, a worldwide, non-exclusive, royalty-free right and license to use, reproduce, distribute, modify, adapt, translate, create derivative works based on, publish, perform and/or display your UGC for non-commercial purposes and as reasonably necessary for the operation, administration and promotion of the Services, and/or for any other purposes to which you consent, without compensation to you or any other provider of UGC. This license includes any right of publicity rights that may be present in the UGC. NEFA does not accept unsolicited information, ideas or other content you may attempt to transmit to NEFA directly. As such, we take no responsibility for such transmitted content.
9. Regulatory Compliance. NEFA reserves the right to comply and cooperate with any and all legal requirements, legal or regulatory authorities, and/or law enforcement agencies regarding the investigation of, or request to disclose, information related to your UGC. You waive and hold NEFA harmless from any claims resulting from any action taken by NEFA during or as a result of an investigation and/or from any actions taken as a consequence of investigations by either NEFA or law enforcement.
10. Unacceptable Use and Content Policy. By using the Services, you may need to interact with other users of the Services and their respective UGC. You are solely responsible for any and all interactions, acts and omissions that occur while you use the Services and any UGC, and you agree to use the Services in a manner that is legal, respectable and consistent with these TCU. You agree that 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 Services to: (i) post, disseminate, store or transmit unsolicited messages, chain letters, or unsolicited commercial e-mail (also known as “spam”); (ii) post, disseminate or transmit UGC or other content that is abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, or malicious; (iii) post, disseminate, store, or transmit UGC, files, text, graphics, software, or other content that actually or potentially infringes the copyright, trademark, patent, trade secret, intellectual property rights, contract rights or rights of privacy or publicity of any person or entity, or instruct any person on how to do so; (iv) post, disseminate, or transmit any false, fraudulent, inaccurate, or deceptive information; (v) create a false identity or otherwise attempt to mislead any person as to the identity or origin of any communication; (vi) impersonate any person or entity, including, but not limited to, a NEFA employee or agent or any of our Creative Community Partners; (vii) 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; (viii) interfere, disrupt, or attempt to gain unauthorized access to other passwords or accounts on the Services or on any other computer network; (ix) post, disseminate, store, or transmit viruses, Trojan horses, or any other malicious or damaging code or program; (x) harm minors in any way; (xi) solicit personal data from anyone under eighteen (18) years of age; (xii) solicit, post, disseminate, or transmit any confidential information; (xiii) interfere with or disrupt the Services, servers, or network connected to provide service to the Services; (xiv) provide instructional information about illegal or unlawful products, services, or activities; (xv) "stalk," bully, or otherwise harass another person; (xvi) intentionally or unintentionally violate any applicable local, state, national or international laws; (xvii) delete, modify, or revise any material posted by another party or user without authorization; and/or (xviii) engage in any other activity deemed by NEFA, in our sole discretion, to be objectionable or unacceptable. You acknowledge and agree that NEFA may refuse, alter, edit, delete, or disclose any UGC in whole or in part without cause and without notice for any legitimate purpose including, but not limited to, to address any UGC that NEFA determines is inappropriate or disruptive to the Services or to any other user of the Services. NEFA has no obligation or duty to, and does not represent that it will, monitor, change, or remove any UGC.
One or more violations of the prohibitions in this policy may result in termination or suspension of your access to and ability to use the Services, where applicable. The previous list of prohibitions is not exclusive. NEFA reserves the right to terminate your access to any portion of the Services for any reason.
Our Sites are being hosted by Pantheon, a third-party service provider, which may also have an acceptable use policy to which NEFA is bound. This policy, if applicable, is expressly incorporated by reference herein to the extent that it applies to your conduct while using our Services. 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: https://pantheon.io/.
11. No Pre-Screening. You understand that NEFA is a passive conduit for any online distribution and publication of information or content submitted by you and other users on or through the Services, and that, although we reserve the right to do so, NEFA does not screen information, UGC or other content in advance of submission. We do not pre-screen any users who provide information to you (or information that you provide to them) or may otherwise respond to you. Such communication between you and other users occurs without NEFA’s knowledge or intervention at that time. We have not verified, confirmed, investigated, or corroborated any information exchanged between you and other users. You assume sole risk and responsibility for contributing information to other users of the Services and for answering, contacting, investigating, meeting, interacting with, soliciting, and/or transacting business with any other users of the Services or other respondents to your information. NEFA is not responsible for the conduct of any other user who may interact with you, regardless of whether such interaction occurs through the Services. UNDER NO CIRCUMSTANCES WILL NEFA BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE ASSOCIATED WITH ANY INFORMATION OR CONTENT CONTRIBUTED, DISSEMINATED, RECEIVED, OR RELIED UPON BY YOU OR OTHER USERS OF THE SERVICES.
12. Complaint Procedures Policy.
a. Policy. It is NEFA’s policy not to allow any content on the Services which may constitute: (i) intellectual property infringement; (ii) violations of federal, state, or local law; (iii) obscene or defamatory material; or (iv) may otherwise be unacceptable, inappropriate, or inaccurate. Upon learning of the existence of such problematic content, NEFA will attempt to delete, edit, remove, disable, change, or restrict access to or the availability of content, which, in NEFA’s sole discretion, is unacceptable, objectionable, or inaccurate. NEFA may or may not notify you about what action is taken with respect to the problematic 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 NEFA to undertake, or refrain from undertaking, any particular course of conduct.
b. Complaint Procedures. If you believe that any content available on or through the Services violates this policy or the Unacceptable Use and Content Policy in Section10, you may notify NEFA as follows: (i) via e-mail at firstname.lastname@example.org; (ii) via any contact form available at the bottom of pages on our Sites; or (iii) via first class mail (or other nationally-recognized courier) at: New England Foundation for the Arts, 1000 Washington St., 2nd Floor, Boston, MA, 02118, Attn: Communications Department.
In order to allow NEFA to respond effectively, please provide us with as much information as possible in your e-mail or correspondence, including: (i) identification of the right(s) infringed or violated (including the registration numbers of any registered trademarks, copyrights or patents allegedly infringed) or the unacceptable or inappropriate content; (ii) all facts which lead you to believe that a right has been violated or infringed, if applicable; (iii) the precise location where the offending content is located; and (iv) any grounds to believe that the posting of such content was not authorized, if applicable.
c. DMCA Notice Procedure. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on or through the Services infringe your copyright, you (or your authorized agent) may send NEFA a notice requesting that the material be removed, or that access to it blocked. Notices and counter-notices must meet the then current statutory requirements imposed by the DMCA (see http://copyright.gov/ for details). Notices and counter-notices with respect to the Services should be sent to NEFA’s designated agent for notice of claims of copyright infringement at
New England Foundation for the Arts
1000 Washington St., 2nd Floor
Boston, MA 02108
Attn: Copyright Agent
By Email – email@example.com
Under the DMCA, notices must include all of the following details:
- An electronic or physical signature of the copyright owner or of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work(s) claimed to have been infringed or, if multiple works at a single online location are covered by a single notice, a representative list of such works at such location;
- A description of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit NEFA to locate the material, such as its URL;
- Information reasonably sufficient to permit NEFA to contact you as the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
- A statement, made under the penalty of perjury, that the information in the notice is accurate, and that the complaining party is the copyright owner or is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
NEFA takes copyright and other intellectual property issues seriously, and will terminate access to the Services for any accounts and/or users that are connected to valid and repeat copyright infringement complaints.
d. Investigation/Liability Limitation. You agree that NEFA has the right, but not the duty or obligation, to investigate any complaint received. By reserving this right, NEFA does not undertake any responsibility in fact to investigate complaints or to remove, edit, disable, or restrict access to or the availability of content. NEFA will not act on complaints that we believe, in our sole discretion, to be deficient or incomplete. NEFA also reserves the right to comply and cooperate with any and all legal requirements, legal authorities, and/or law enforcement agencies regarding the investigation of, or request to disclose, information related to your use of the Services. BY ACCEPTING THESE TCU, YOU WAIVE AND HOLD HARMLESS NEFA FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY NEFA DURING OR AS A RESULT OF NEFA’S INVESTIGATION AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER NEFA OR LAW ENFORCEMENT RELATED TO YOUR USE OF THE SERVICES. IF YOU BELIEVE THAT CONTENT REMAINS ON THE SERVICES WHICH VIOLATES YOUR RIGHTS OR THESE TCU, AS STATED IN SECTION 15, YOUR SOLE AND EXCLUSIVE REMEDY AGAINST NEFA SHALL BE TO TERMINATE YOUR USE OF THE SERVICES.
13. Representations and Warranties. You represent and warrant that: (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 the Services is accurate, truthful, reliable, and current; (iv) you will not use the Services for any unacceptable uses, as listed in Section 10; and (v) you will not use our Services to violate any federal, state, and/or local law. You represent and warrant to NEFA that any UGC you make available on or through the Services is original to you and you own all right, title and interest, including the intellectual property rights, to such UGC, or you have obtained all permissions, releases, rights or licenses from the respective owner that are required to grant the rights and licenses granted herein without obtaining any further releases or consents. You further represent and warrant that you will not make any UGC available on or through the Services that infringes third-party rights including, but not limited to, any intellectual property rights, privacy rights, publicity rights, contract rights, or any other rights of any person or entity. You shall be solely liable for any damages, royalties, or fees resulting from any infringement of rights or any other harm resulting from any UGC you make available on or through the Services.
14. Disclaimer of Warranties. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE EXTENT PERMITTED BY LAW, THE SITES, PORTAL AND RELATED CONTENT, INCLUDING ANY GOODS, SERVICES OR INFORMATION PROVIDED ON OR THROUGH THE SITES OR PORTAL, ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND, TO THE EXTENT PERMITTED BY LAW, WITHOUT WARRANTIES OF ANY KIND, WITHER EXPRESS OR IMPLIED. TO THE EXTENT PERMITTED BY LAW, NEFA AND/OR ITS AFFILIATES MAKE NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WITH RESPECT TO THE SITES, PORTAL AND ANY GOODS OR SERVICES OFFERED ON OR THROUGH THE SITES OR PORTAL. TO THE EXTENT PERMITTED BY LAW, NEFA AND/OR ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SECURITY, COMPLETENESS, TIMELINESS, APPROPRIATENESS, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANOTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS. TO THE EXTENT PERMITTED BY LAW, THIS DISCLAIMER OF WARRANTIES APPLIES TO THE SITES, PORTAL, NEFA CONTENT AND ANY GOODS OR SERVICES OFFERED ON OR THROUGH THE SITES OR PORTAL. NEFA AND/OR ITS AFFILIATES DO NOT WARRANT THAT THE SITES AND PORTAL WILL MEET YOUR REQUIREMENTS, OR THAT THE SITES AND PORTAL AND ANY TRANSMISSIONS SENT TO OR RECEIVED FROM THE SITES OR PORTAL WILL BE SECURE, UNINTERRUPTED, ACCESSIBLE, OR ERROR-FREE. TO THE EXTENT PERMITTED BY LAW, NEFA AND/OR ITS AFFILIATES DO NOT WARRANT THAT ANY INFORMATION, DATA, OR CONTENT OBTAINED FROM OR POSTED ON THE SITES OR PORTAL WILL BE ACCURATE, RELIABLE, COMPLETE, TIMELY, OR FREE FROM VIRUSES OR OTHER FORMS OF DESTRUCTIVE CODE. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM NEFA, WHETHER IN ORAL, WRITTEN, OR ELECTRONIC FORM, RELATING TO YOUR USE OF THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY REPAIRS IN THE EVENT YOU EXPERIENCE ANY LOSS OR DAMAGE ARISING FROM THE USE OF THE SITES, PORTAL, OR ANY GOODS OR SERVICES RELATED TO THE SITES OR PORTAL. TO THE EXTENT PERMITTED BY LAW, NEFA AND/OR ITS AFFILIATES MAKE NO WARRANTIES THAT YOUR USE OF THE SITES AND/OR PORTAL WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY FOR SUCH INFRINGEMENT.
15. Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL NEFA OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, ATTORNEYS, AND/OR BUSINESS PARTNERS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE SITES OR PORTAL, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, ACTUAL OR OTHER INDIRECT DAMAGES, INCLUDING LOSS OF REVENUE OR INCOME, LOST DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, PAIN AND SUFFERING, EMOTIONAL DISTRESS OR SIMILAR DAMAGES, EVEN IF NEFA AND/OR ANY OF THE AFOREMENTIONED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SITES, THE PORTAL, THE SERVICES, OR THE INTERNET GENERALLY INCLUDING, BUT NOT LIMITED TO: (1) YOUR USE OR INABILITY TO USE THE SERVICES; (2) ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICES; (3) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY TRANSMISSION OR DATA; (4) ANY CONTENT OR DATA TRANSMITTED OR RECEIVED (OR NOT TRANSMITTED OR RECEIVED); (5) ANY CONTENT, DATA OR OTHER MATTER FROM, OR POSTED BY, A USER OR OTHER THIRD PARTY WHICH IS ACCESSED ON THE SITES, PORTAL OR THROUGH THE SERVICES; (6) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SERVICES; AND/OR (7) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR INACCURACIES ON THE SERVICES, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF NEFA OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, ATTORNEYS, AND/OR BUSINESS PARTNERS, OR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE SITES OR PORTAL, TO ANY PARTY, REGARDLESS OF THE TYPE OF ACTION WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF $100.00 OR THE AMOUNT YOU PAID TO NEFA AND/OR THE AFOREMENTIONED PARTIES FOR THE APPLICABLE GOOD OR SERVICE OUT OF WHICH THE LIABILITY AROSE. IF YOU ARE DISSATISFIED WITH THESE TCU OR THE SERVICES, OR ANY GOOD OR SERVICE OFFERED ON OR THROUGH THE SITES OR PORTAL, YOUR SOLE AND EXCLUSIVE REMEDY AT LAW AND IN EQUITY SHALL BE TO DISCONTINUE YOUR USE OF THE SERVICES. ALL PROVISIONS IN THESE TCU ARE APPLICABLE TO THE EXTENT PERMITTED BY LAW.
16. 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 LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
17. Indemnification. You agree to indemnify, hold harmless, and defend NEFA, including our directors, officers, employees, affiliates, agents, licensors, representatives, attorneys and partners (collectively, the “Indemnified Parties”) from and against any and all actions, causes, claims, damages, debts, losses, costs, demands, judgments, liabilities, awards and expenses (including attorneys’ fees, costs of defense, and direct, indirect, punitive, special, individual, consequential, or exemplary damages) NEFA or any of the Indemnified Parties suffer in relation to, arising out of, or for the purpose of avoiding, any claim or demand from a third party that relates to: (i) this Agreement and/or any breach or threatened breach by you of these TCU; (ii) your use of the Services, including goods and services related to the Services and any data or material transmitted, posted, or received by you; (iii) any unacceptable or objectionable use of the Services by you or any person using your password and/or account information; (iv) any negligent or willful misconduct by you; (v) any violation of an applicable law or regulation by you; and (vi) as otherwise provided in this Agreement. Your indemnification obligations shall survive the termination of these TCU.
20. U.S. Geographic Limitation. NEFA operates the Services from its headquarters in the United States. If you use the Services outside the United States, you are responsible for following your applicable local laws and determining, among other things, whether your use of the Services violates any of those local laws. By using the Services, you agree and acknowledge that information about you, including personal data, may be transmitted to, processed in, and stored in the United States. Certain software elements of the Services may be subject to U.S. export laws and controls. As such, no software may be downloaded or exported to any country or foreign citizen that is under a U.S. embargo or that would otherwise violate U.S. law or regulations.
21. Feedback from California Residents. In compliance with your rights under California Civil Code § 1789.3, California residents have the right to contact NEFA with any complaints or to seek additional information. You may email NEFA at firstname.lastname@example.org. You may also call 617.951.0010. For any physical documents, you may send mail to New England Foundation for the Arts, 1000 Washington St., 2nd Floor, Boston, MA, 02118. If California users have any questions or complaints about NEFA they may also contact The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs through writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834 95834, or by telephone at (800) 952-5210. Hearing impaired persons may call (800) 735-2929 via TTY device.
22. Modification and Amendment. NEFA has 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 the Services. Any use of the Services 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 NEFA unless it is made in writing and signed by an authorized agent of NEFA.
23. 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.
24. 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.
26. Governing Law and Forum. This Agreement is made in, and shall be governed by, the laws of the Commonwealth of Massachusetts, excluding any conflict 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. You hereby irrevocably and unconditionally consent to waive any objection to the venue of any such litigation in the state courts of Massachusetts. You hereby irrevocably and unconditionally agree not to plead or claim in any Massachusetts state court that such litigation brought therein has been brought in an inconvenient forum.
27. Remedies. In order to avoid irreparable injury to NEFA, in the event of any breach or threatened breach by you of the provisions of this Agreement, NEFA shall be entitled to an injunction and/or other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting NEFA from pursuing any other remedies available to us for such breach or threatened breach, including the recovery of monetary damages from you.
28. 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.
29. Notice. All notices relating to the Services or your use thereof shall be deemed to be delivered when sent to you by either: (i) by first class or non-profit postage to the physical address you provided when registering to use the Services; or (ii) via e-mail to the address you provided when registering to use the Services. Except as may be provided elsewhere in this Agreement, all notices to NEFA shall be sent via first class mail or other nationally recognized courier, whereby receipt is recorded, to: New England Foundation for the Arts, 1000 Washington St., 2nd Floor, Boston, MA 02118.
30. Termination. Either party may terminate this Agreement at any time without notice to the other party. Upon termination, your access to and use of the Services may be discontinued and terminated.
31. Survivability. The respective rights and obligations of the parties pursuant to Sections 4 and 5, Sections 11 through 18, inclusive, Sections 26 and 27, and as otherwise provided elsewhere in this Agreement, shall survive any termination or expiration of this Agreement.
33. 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.