Terms and Conditions of Use for Mass Cultural Council’s Web Site
Welcome to the Massachusetts Cultural Council’s (“MCC,” “We,” “Us,” “Our”) website (“site”). This Terms and Conditions of Use Agreement (“TCU” or “Agreement”) is made by and between Us and You, the user of this site. Use of the site and Our Affiliated Websites (as defined in Section 10) is provided to You subject to and governed by this Agreement, which may be updated from time-to-time at Our sole discretion. Unless it is stated otherwise, this TCU applies to Our site and to all services that We provide through it, including but not limited to sites such as ArtSake, Seen & Heard, massfolkarts.org, creativeyouthdevelopment.org, creativemindsoutloud.org, and other Affiliated Websites, whether controlled, administered, hosted, sponsored, funded, or created by Us, in whole or in part, or not. You hereby agree as follows:
BY USING OUR SITE FOR ANY REASON, INCLUDING BUT NOT LIMITED TO FOR INFORMATIONAL PURPOSES, SUBMITTING A GRANT APPLICATION TO US, OR TRANSMITTING OR RECEIVING ANY OTHER INFORMATION OR CONTENT TO/FROM US, YOU REPRESENT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE AND HAVE READ AND UNDERSTAND THIS AGREEMENT AND THE SITE’S PRIVACY POLICY, HEREBY INCORPORATED BY REFERENCE, AND EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS, WHICH MAY CHANGE FROM TIME TO TIME. THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AND FORCE AS A WRITTEN DOCUMENT SIGNED BY YOU.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, YOU MUST CEASE USING THIS SITE AND NOT SUBMIT YOUR ELECTRONIC GRANT APPLICATION OR OTHER INFORMATION THROUGH THE SITE, OUR AFFILIATED WEBSITES, OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. A VIOLATION OF THIS AGREEMENT CAN, IN CERTAIN CIRCUMSTANCES, RESULT IN LEGAL ACTION BEING TAKEN AGAINST YOU BY US OR OTHERS.
1. Access and License from Us. We grant You permission to access and use Our site pursuant to the terms and conditions set forth in this Agreement and for the purpose stated herein. There is no fee paid by You to do so. Your access to the site is provided by Us pursuant to a limited, free, non-exclusive, and revocable license.
2. Content. “Content” means any text, images, photos, audio, video, and all other forms of data or communication, regardless of form or function, and is construed broadly. “Your Content” means Content that You submit or transmit to, through, or in connection with the site or to Us, including but not limited to said Content and other content such as event registrations, e-mails, messages, comments, postings, threaded conversations, links, and information that You input into or through Your user profile or account. “User Content” means Content that other users submit or transmit to, through, or in connection with Our site.
3. Your Content. You understand and agree that You are solely responsible for Your Content. You are responsible and liable for what You select, input, and post to the site, whether for public dissemination or otherwise. As set forth in Section 26, there may be instances where We remove, modify, or restrict access to Your Content if We believe in Our sole discretion that it violates this TCU or Our policies, or may otherwise be illegal. You warrant and represent to Us that Your Content does not actually or potentially infringe intellectual property or proprietary rights (e.g., patent, copyright, trademark, trade secret, etc.), rights of privacy or publicity, moral rights, or other rights of any third party. You further warrant and represent that Your Content is owned by You or that You are authorized to act on the owner’s behalf without restriction or limitation.
You understand that some of Your Content may only be viewed by Us and Our agents. Other Content that You post or display on the site may be viewed and shared by other users, even if You do not believe this to be the case. We are not responsible or liable if any of Your Content is viewed, shared, or distributed widely by other users, whether on this site or on other websites or media, currently existing or hereafter invented, and if such users rely upon or take any actions with respect to it. Even if We have made settings available for You on the site to restrict or limit the viewing or sharing of certain content, We do not warrant or represent that Your Content will never be disclosed, shared, or disseminated by other users or third parties. As set forth in Our Privacy Policy and consistent with Our statutory, legal, or administrative obligations under certain public records and disclosure laws, particular aspects of Your Content may at times be disclosed, viewed, shared, disseminated, stored indefinitely, processed, and used by other parties.
4. License from You.
(a) Your Ownership. You retain full ownership of Your Content at all times; using or posting it on Our site does not affect its right, title, or interest. Nothing in this TCU affects or impairs Your ownership or transfers it to Us or to another party.
(b) License. In order for this site to function as intended and for Us and Our Affiliates and Affiliated Websites (as set forth in Section 10) to provide Our services, by providing any of Your Content to the site for any purpose, You hereby grant to the MCC and its authorized agents a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use, display, edit, remove, modify, reproduce, distribute, store, transmit, and prepare derivative works of Your Content, including for the purpose or promoting the site and Our services and for fulfilling Our legislative, statutory, and legal responsibilities. This broad license is necessary so that We may satisfy Our responsibilities and operate this site without potentially or actually infringing a user’s intellectual property rights. “Sub-licensable” is limited to a license that may be granted to Our Affiliates or Affiliated Websites only and not to any other third parties unrelated to the operation of this site and Our services or to Our legislative, statutory, and legal responsibilities. The license must also be “irrevocable” due to the potential for Our continued use as set forth in Subsection (d) herein, even if You delete Your Content.
(c) Legitimate Interests and Moral Rights. You also recognize Our legitimate interests in using Your Content as set forth in this Section, in accordance with the scope of this license, to the extent that it contains any personally identifiable information, as set forth in Our Privacy Policy. You further agree to waive and never to assert any moral rights or publicity rights against Us for using Your Content, even after termination or expiration of this Agreement. If You do not agree to this license, You must not provide or post Your Content to the site. If You have any questions about this Section, please contact Us via e-mail at dawn.heinen@mass.gov; or via first class mail at Mass Cultural Council, Attn: Dawn Heinen, 10 St. James Avenue, 3rd Floor, Boston, MA 02116.
(d) MCC Continued Use. Even if You cease using Our site or You delete or modify Your Content, We may continue to display, store, process, and otherwise use copies of Your deleted or modified Content for archival, administrative, or for other uses as We deem in Our sole discretion to be appropriate or otherwise consistent with fulfilling Our legislative, statutory, and legal responsibilities. If You have shared Your Content with other users prior to its modification or deletion, it may still continue to be available on Our site through those other users, or on Affiliated Websites, or on other websites that are not or have never been affiliated with Us.
(e) User Content. This license by You to Us does not grant any rights or permissions to any other User Content independently of the services that We provide, unless required by law. If You wish to make use of other User Content, You may need to contact that user directly for permission or a license to do so. We do not provide any advice or guidance about the use of any Content except Content that is owned by Us.
5. Domestic Use. Our site is intended for use by Massachusetts residents of the United States only. It is not intended for use by residents of other states or countries.
6. Availability. You understand and agree that the site may at times be unavailable, inaccessible, or inoperable for any reason without any liability to Us, including, but not limited to: (a) equipment or communications malfunctions; (b) maintenance, repairs, content updates, or administrative reviews which We may undertake; (c) suspensions or discontinuations of service; or (d) causes beyond Our control.
7. Changes to Site. We strive to continually improve Our site and its functionality. We may at times modify or discontinue portions of it to, among other things, make performance or security improvements; change functionality and features; make changes to comply with current law; or to prevent abuse, illegal conduct, or other inappropriate activities from taking place on it. These changes may affect You and how You use the site. We may sometimes provide notice to You when We make changes to Our site that can have an adverse impact on the use of Our service. However, We may also make such changes without notice, such as where We believe in Our sole discretion that certain actions improve the security and operability of Our service, prevent abuse, or comply with legal requirements.
8. Your Equipment. You will be solely responsible for providing, maintaining, and ensuring Your compatibility when using the site, including all hardware, software, electrical, and other physical requirements. This includes but is not limited to, devices and equipment to access Our site, telecommunications and internet connections, and software programs and web browsers required to use the site. While We attempt to make the site and its features compatible with various types of equipment and software, We cannot guarantee compatibility in all instances. It is Your sole responsibility to ensure that You have the proper equipment to utilize it in accordance with Your needs.
9. Password. You will: (a) Be solely responsible to choose a strong password and to keep it secure and confidential; (b) not allow any other entity or person to use Your password to gain access to the site and/or Your account; (c) solely liable for all actions taken by the user of Your password; and (d) promptly notify Us if Your password has been compromised and You are unable to change or reset it through the site.
10. Affiliates, Affiliated Websites, and Third Party Service Providers. We use one or more third party service providers (“Third Party Service Provider”) to assist Us in operating this site when providing Our services to You. We may also change Third Party Service Providers without notice to You, as We deem appropriate in Our sole discretion, or We may choose to provide a service without the assistance of a Third Party Service Provider. Any authorizations, consents, or permissions that You give to Us, whether express or implied, may be delegated or assigned to Our Third Party Service Providers as We deem necessary or appropriate when providing Our services to You.
Our Affiliates include but are not limited to parties such as Third Party Service Providers. An “Affiliate” includes a natural person; partnership; corporation; association; governmental branch, agency, department, commission, or subdivision; or other legal entity with whom We contract; or have a direct relationship, association, partnership, or collaboration; or who performs services for Us or Our site in certain instances. A party with whom You interact, communicate with, or transmit or receive any Content may be an Affiliate even if it is separate or independent from the MCC, or You believe it to be.
An Affiliated Website includes but is not limited to those other websites which may be separate from Our site that: We directly control, administer, host, sponsor, fund, or create; may serve as an interface, platform, or portal for Our site when providing various services or functions; or support, perform, deliver, supplement, enhance, or provide any services in the operation of Our site. This does not include any website that merely refers to the MCC, Our services, or grant recipients; only provides or disseminates information about Us; or provides a link or directs users to Our site. A Third Party Service Provider or Affiliate may also own, operate, or provide an Affiliated Website.
11. Communications. By accessing or using the site, You consent to receive communications from Us through means including but not limited to e-mail, telephone calls, and via Your physical address. If any of Your information is incorrect or outdated, or We otherwise have difficulty contacting You, We may use other means or sources of information to communicate with You. If You provide Your contact information to one or more other users of the site, then these users may be able to contact You via the method contained in Your information to them.
12. Proprietary Rights. All or portions of this site are proprietary to Us and are protected by numerous intellectual property laws and/or treaties, including but not limited to copyright, trademark, service mark, trade secret, and patent laws. Our limited license to You as set forth in this Agreement does not affect or transfer any ownership right, title, or interest of Our site or Affiliated Websites, in whole or in part, or any of its Content to You.
13. Personal Use Only. You agree to use Our site and its Content for Your own individual personal and non-commercial use only. You shall not copy, duplicate, mirror, display, transmit, distribute, modify, republish, prepare derivative works, or publicly display for any other non-personal purpose, whether commercial or otherwise, unless We give You express written permission to do so by an agent of the MCC with specifically designated authority to grant said permission.
14. No Redistribution or Resale. You agree not to reproduce, duplicate, copy, sell, resell, lease, rent, distribute, redistribute, retransmit, republish, or exploit for any commercial or for-profit purposes, or any other purpose that is not Your own personal purpose, any Content or portion of the site, its use, access to it, or the services that We provide through it.
15. No Interference. You agree that You shall not use, implement, or employ, or directly or indirectly aid, encourage, or solicit anyone else from using, implementing, or employing any automated or manual device, process, or program, whether malicious or not (e.g. robot, spider, spyware, malware, etc.), designed to monitor, observe, track, gather, process, aggregate, copy, distribute, or transmit any Content, data, or User information of any nature contained on Our site or provided, serviced, or operated by Our Third Party Service Provider, whether provided by Us or Our users, without Our express written permission by an agent of the MCC with specifically designated authority to grant said permission. You further agree that You shall not use, implement, or employ, or directly or indirectly aid, encourage, or solicit anyone else from using, implementing, or employing any automated or manual device, process, or program that does or attempts to interfere with, impair, or hinder the operation of Our site.
16. Linking, Framing, and Simulation. You agree not to: (a) bypass or circumvent the home page of Our site and “deep-link” to any other websites, applications, or software; (b) frame Our Content within another website, application, or software, or in any other media; (c) display any page from Our site within a separate window or screen that is not the actual MCC site; or (d) otherwise simulate the appearance or function of Our site.
We or Our users may also post or disseminate links to other websites. These links are not intended to and do not imply sponsorship or endorsement by Us, even if We affiliate with or work collaboratively or cooperatively with an organization or entity to which the site links, or to another state or governmental agency. We do not exercise control over the content on or the operation of these other websites. We are not responsible or liable, either directly or indirectly, for the availability or accessibility of these other websites, any transmissions, uploads, or downloads initiated between You and the other website, any of the Content of whatever nature posted on said site, or Your reliance upon such Content or links.
17. Posting content. Some areas of Our site allow You to post Content (collectively, “Posts”) that may be seen, shared, and disseminated by users or third parties on a continual or limited basis, subject to Our Acceptable Use policy in Section 18 and Good Samaritan policy in Section 26. We may or may not review Your Posts after You submit them to Us and prior to Our posting them on Our site or an Affiliated Site, which depends upon many factors, including but not limited to whether We state that We moderate or review Content in certain instances. We reserve the right to delay the posting and display of any Posts, even for lengthy periods of time; refuse to publish any Posts; to take down any Posts, whether initially approved or accepted by Us or not; or to modify or block portions of Posts that We believe in Our sole discretion violate Sections 18 and/or 26 of this Agreement or any applicable regulation, law, or governmental or legal order.
18. Unacceptable Uses. You are solely responsible and liable for all of Your own acts and omissions that occur while You use the site, and agree not to engage in any unacceptable use of Our site or the services that We provide through it. This includes, but is not limited to, using the site to:
(a) Post, disseminate, store, or transmit unsolicited messages, chain letters, unsolicited commercial e-mail (also known as “spam”), or engage in other bulk or mass distributions to a large number of recipients;
(b) Post, disseminate, or transmit material that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, intimidating, or malicious;
(c) Post, disseminate, or transmit material that encourages, incites, or glorifies violence, bloodshed, suicide, or self-harm;
(d) Post, disseminate, store, or transmit files, graphics, software, material, 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;
(e) Post, disseminate, or transmit any false, fraudulent, untrue, or deceptive information to Us, whether in an electronic grant application or in any other submission;
(f) Post, disseminate, or transmit any unauthorized or unsolicited advertisements, sponsorships, or other promotional or commercial content for good or services;
(g) Create a false identity, profile, or account;
(h) Attempt to mislead any person as to the identity or origin of any communication, post, or other Content;
(i) Impersonate any person or entity, including but not limited to, an MCC employee or agent;
(j) Imply or state that You are affiliated with or endorsed by the MCC without Our express written consent;
(k) Run any contests or similar promotions through the site without Our express written consent;
(l) Export, re-export, or permit downloading 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;
(m) Interfere, disrupt, or attempt to gain unauthorized access to other passwords or accounts on the site or on any other computer network;
(n) Post, disseminate, store or transmit viruses, trojan horses, any other malicious code or program, or where to obtain or create such code;
(o) Access the site using any automated and non-manual means (such as robots, botnets or scrapers);
(p) Harm or harass minors in any way;
(q) Solicit or request personal information from anyone under eighteen (18) years of age;
(r) Solicit, post, disseminate, or transmit any information that is or deemed or alleged to be confidential or proprietary in nature;
(s) Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for Our site or for the services of any Third Party Service Provider that is not open source;
(t) Interfere with or disrupt the site or its servers, network, or communications which provides service to the site;
(u) Provide or post instructional information about unlawful or criminal activities;
(v) Stalk, track, bully, or otherwise harass another person;
(w) Intentionally or unintentionally violate any applicable local, state, national or international law; and/or
(x) Engage in any other activity deemed by Us, in Our sole discretion, to be unacceptable when using this site or in conflict with the intent of this Agreement or the services that We provide.
No failure or delay by Us in enforcing this Section on one or more occasions constitutes a waiver of it or of any right or remedy available to Us. If any part of this Section is deemed to be invalid, illegal, or unenforceable, it shall be disregarded and the remaining portions shall be enforceable to the fullest extent permitted by law. If any part of this Section shall for any reason be found to be excessively broad as to scope, activity, or subject matter, it shall be interpreted to extend over the maximum scope, activity, or subject matter as allowed by law to the fullest extent possible.
As stated in Our Privacy Policy, unless You provide Us with personally identifiable information, We will not routinely attempt to match it to Your usage of the site or to other information in Our possession, but We have the ability to do so. Some of Our Third Party Service Providers and Affiliated Websites may also possess this capability, but please review their applicable privacy policies or contact Us directly for more information at dawn.heinen@mass.gov.
However, 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 the site, as well as any other information related to Your use, may be located, correlated, processed, and disclosed to other parties as We deem appropriate or necessary. Such information may also be disclosed pursuant to any authorized law enforcement investigation, regardless of whether it was initiated by Us or another party.
19. Privacy. Your information is collected, stored, and utilized pursuant to Our Privacy Policy, incorporated by reference herein. We do not knowingly promote this site to, or collect any information from, children under the age of thirteen (13) years. This site is intended for use by adults only, i.e., over eighteen (18) years of age.
20. Events, Meetings, and Activities.
(a) Registration. Our site may provide You with Content or information about certain in-person events, meetings, or activities where You are physically present (collectively, “Events”), as well as opportunities to register for and attend them. These Events may be organized or hosted by the MCC, other governmental agencies, other users, or third parties. You acknowledge and agree that: (1) We are not responsible or liable for what occurs at any Event or for the conduct or omissions of any organizers, sponsors, hosts, participants, attendees, users, or third parties; (2) We do not review or vet any of the Events, their subject matter, protocols of any nature, or their organizers, sponsors, hosts, participants, or attendees; and (3) unless expressly stated by Us otherwise, We do not any authorize, sanction, or endorse any Event.
(b) COVID-19 Waiver & Release. You acknowledge that COVID-19 is a contagious disease that can result in personal injury, illness, permanent disability, and death. YOU VOLUNTARILY AND FREELY ASSUME ALL RISKS that You could be exposed to or infected with COVID-19 or other infectious diseases if You attend any Events. YOU HEREBY RELEASE, WAIVE, AND FOREVER DISCHARGE ALL LIABILITY, CLAIMS, AND DEMANDS OF WHATEVER KIND OR NATURE AGAINST US, OUR OFFICERS, EMPLOYEES, AGENTS, AND INDEPENDENT CONTRACTORS, EITHER IN LAW OR EQUITY, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. THIS INCLUDES BUT IS NOT LIMITED TO DAMAGES OR LOSSES OF ANY KIND CAUSED BY THE NEGLIGENCE, FAULT, CONDUCT, OR OMISSIONS BY US, INCLUDING BUT NOT LIMITED TO DEATH, BODILY INJURY, ILLNESS, ECONOMIC OR PROPERTY LOSS, OR OUT-OF-POCKET EXPENSES, WHICH YOU, YOUR HEIRS, OR ASSIGNEES MAY HAVE OR WHICH MAY ACCRUE ON YOUR BEHALF, ARISING FROM YOUR PARTICIPATION, ATTENDANCE, OR PRESENCE AT AN EVENT.
21. Representations and Warranties. You represent and warrant the following: (a) You are over eighteen (18) years of age; (b) You have the right, power, and authority to enter into and perform Your obligations and duties under this Agreement; (c) You will not use Our services or site for any unacceptable uses, as listed in Section 18; (d) You will not use Our site or service to violate any federal, state, and/or local law; and (e) You will only use Our site or service to transmit and disseminate information and Content reasonably related to MCC business.
22. Disclaimer of Warranties. THIS SITE IS PROVIDED TO YOU “AS IS,” “AS AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW OR CUSTOM OF TRADE. USE OF THE SERVICE IS AT YOUR SOLE RISK. WE MAKE NO WARRANTIES INCLUDING, BUT NOT LIMITED TO:
(A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE;
(B) THAT THE SITE, ITS FEATURES, CONTENT, OR THE SERVICE PROVIDED BY US, WILL MEET YOUR REQUIREMENTS OR NEEDS;
(C) THAT THE SITE AND ANY TRANSMISSIONS SENT OR RECEIVED TO OR FROM IT AS A RESULT OF YOUR USE WILL BE TRANSMITTED, SECURE, CONFIDENTIAL, UNINTERRUPTED, ACCESSIBLE, OR ERROR-FREE;
(D) THAT ANY INFORMATION, DATA, POSTS, OR CONTENT OF ANY KIND OBTAINED FROM OR THROUGH THE SITE, WHETHER PROVIDED BY US, A USER, OR THIRD PARTY WILL BE: (1) ACCURATE, RELIABLE, OR COMPLETE; (2) FREE FROM VIRUSES OR OTHER TYPES OF MALICIOUS OR HARMFUL CODE; OR (3) FREE FROM ANY CLAIMS OF INFRINGEMENT OR VIOLATIONS OF ANOTHER PARTY’S INTELLECTUAL PROPERTY, PRIVACY, PUBLICITY, OR MORAL RIGHTS;
(E) THAT ANY OF YOUR CONTENT SUBMITTED OR POSTED TO THE SITE WILL BE ACCESSIBLE, AVAILABLE, UNMODIFIED, OR DELETED;
(F) THAT YOU HAVE A REASONABLE EXPECTATION OF PRIVACY WHEN USING OUR SITE AND/OR SUBMITTING ANY CONTENT TO IT;
(G) THAT YOUR PERSONAL INFORMATION SHALL NEVER BE DISCLOSED, PUBLISHED, TRANSFERRED, OR DISTRIBUTED TO ANY OTHER USER, THIRD PARTY, OR PRIVATE OR GOVERNMENTAL ENTITY.
NO ADVICE OR INFORMATION OBTAINED FROM US, WHETHER IN ORAL, WRITTEN, OR ELECTRONIC FORM, RELATING TO YOUR USE OF THIS SITE OR ITS CONTENT SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
23. 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, THE SITE OR SERVICE, OR THE INTERNET GENERALLY, INCLUDING, BUT NOT LIMITED TO:
(A) YOUR USE OR INABILITY TO USE THE SITE;
(B) DEATH, PERSONAL INJURY, DISABILITY, OR DAMAGE OF WHATEVER FORM OR NATURE RESULTING FROM YOUR USE OF THE SITE AND/OR RELIANCE UPON ANY CONTENT CONTAINED ON IT OR ANY ACTIONS OR OMISSIONS THAT YOU TAKE AS A RESULT OF IT;
(C) ANY CHANGES TO OR INACCESSIBILITY OF THE SITE OR ITS FEATURES;
(D) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY TRANSMISSION, CONTENT, OR DATA;
(E) ANY CONTENT OR DATA TRANSMITTED OR RECEIVED OR NOT TRANSMITTED OR RECEIVED;
(F) ANY CONTENT OR DATA FOUND OR ACCESSED ON OR THROUGH THE SITE, WHETHER PROVIDED BY US, A USER, OR THIRD PARTY;
(G) THE REMOVAL OR UNAVAILABILITY OF ANY CONTENT, INCLUDING YOUR CONTENT;
(H) ANY VIRUSES, MALICIOUS CODE, OR OTHER THREATS TO SECURITY THAT ARE TRANSMITTED FROM, BY, THROUGH, OR DUE TO THE SITE;
THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH LIABILITY OR CLAIM IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE.
SOME STATES MAY 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 SHALL BE TO TERMINATE YOUR USE OF THIS SITE AND SERVICE.
24. Reliance on Limitations. YOU ACKNOWLEDGE THAT YOU AND WE HAVE ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES AS SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US. YOU 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.
25. Indemnification. You agree to fully indemnify, hold harmless, and defend Us, Our directors, 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, arising out of or relating to: (a) this Agreement and/or any alleged or actual breach by You thereof; (b) Your use of the site, including any Content, data, or information accessed, transmitted, posted, shared, or received by You; (c) any unacceptable or objectionable use of the site, as We determine in Our sole discretion; (d) any infringement or violation of another party’s intellectual property, privacy, publicity, or moral rights; (e) any negligent or willful misconduct by You; and (f) as otherwise provided in this Agreement.
26. Good Samaritan Content and Complaint Procedure Policy.
a. Policy. Parts of Our site may allow You to contribute and post Your Content. It is Our policy, however, not to allow any User Content or other Content or Posts which may constitute intellectual property infringement (e.g., copyright or trademark infringement); violations of federal, state, or local law; obscene or defamatory material, or may otherwise be unacceptable or inappropriate. Upon learning of such Content, You hereby give Us the right to possibly delete, edit, remove, disable, change, or restrict access to or the availability of Your Content, which We deem in Our sole discretion to be unacceptable or objectionable. We may or may not notify You about what action We take 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 or other mandatory obligation upon Us to undertake, or refrain from undertaking, any particular course of conduct.
b. Complaint Procedure. If You believe that another user or a third party has submitted Content or made Posts which violates this policy or the Acceptable Use policy set forth in Section 18, You may notify Us as follows: Via e-mail at dawn.heinen@mass.gov; or via first class mail (or other nationally-recognized courier) at: Mass Cultural Council, Attn: Dawn Heinen, 10 St. James Avenue, 3rd Floor, Boston, MA 02116. 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) The nature of the right infringed or violated, including any applicable registration numbers of the federally registered intellectual property allegedly infringed (such as copyright or trademark rights), if applicable, 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 identification of and specific location where said Content is located on the site;
(4) Any grounds to believe that the party or user which posted the Content was not authorized to do so and/or does not have a valid defense (including the defense of fair use), if applicable;
(5) If known, the identity or identifying information of the user or party who posted said Content;
(6) Your current e-mail and physical mailing addresses, as well as Your telephone number, and other contact information;
(7) In the case of an alleged copyright infringement claim whereby You allege that Your Content is being infringed, We will also need the following additional mandatory information: (i) A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (ii) a statement by You, made under pains and penalty of perjury, that the information contained in Your notice is accurate and that You are either the copyright owner or authorized to act on the copyright owner’s behalf.
(8) In the case of an alleged copyright infringement claim whereby You allege that a notice of copyright infringement has been improperly and wrongly submitted against You due to Your Content, You may submit a written Counter-Notice to Us as set forth in sections 512(g)(2) and (3) of the Digital Millennium Copyright Act (17 U.S.C. § 512) which contains the following:
(i) Your physical or electronic signature;
(ii) Identification of the Content which was removed or had its access disabled;
(iii) A statement under pains and penalty of perjury that You have a good faith belief that removing or disabling the Content was a mistake or that the Content was misidentified;
(iv) Your full name, e-mail address, mailing address, and a statement that You consent to the jurisdiction of the Federal District court: (A) in the judicial district where Your address is located if the address is in the United States; or (B) located in the Eastern District of Massachusetts (Suffolk County), if Your address is located outside the United States, and that You will accept service of process from the complainant submitting the notice or his/her authorized agent.
Please submit Your Counter-Notice to the person and address specified above in Subsection (b) herein. It is expressly understood that providing a false Counter-Notice is punishable under federal law and You can be sued and be held liable for Your actions.
c. Indemnification/Waiver of Certain Rights. By contacting Us and complaining of an alleged violation, You agree that Your complaint shall constitute a representation made under the pains and penalties of perjury. In addition, You agree, at Your own expense, to defend and fully indemnify Us and hold Us harmless against any and all claims which may be asserted against Us, and all losses, damages, or harms 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 users and other third parties which take place on or through Our site. By utilizing 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 WHICH APPEARS ON OR THROUGH 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 We receive. By reserving this right, We do not undertake any responsibility in fact to investigate complaints or to remove, edit, disable, or restrict access to the availability of Content. We will not act on complaints that We believe in Our sole discretion to be deficient, incomplete, unverified, of dubious origin, or otherwise questionable. If You believe that Content remains on the site which allegedly or actually 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 23, YOUR SOLE AND EXCLUSIVE REMEDY AGAINST US SHALL BE TO TERMINATE YOUR USE OF THIS SITE AND OUR SERVICE.
f. Digital Millennium Copyright Act Compliance. As set forth in Subsection (b) herein, 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 materially contributes to its infringement. It is Our policy in appropriate circumstances and when possible, to terminate the access rights of repeat infringers and other users who use Our site in an inappropriate or objectionable manner.
27. Integration and Conflicting Terms. This Agreement and the Privacy Policy constitute the complete and exclusive statement and agreement between You and Us pertaining to Your use of this site and Our services, and supersedes all prior or contemporaneous communications, representations, agreements, and understandings, whether in oral, written, or electronic form, between You and MCC relating to the site and Our services. The terms of this Agreement and the terms of the Privacy Policy shall be construed as being consistent with each other whenever possible, but if such construction is unreasonable due to conflicting terms, the terms of this Agreement shall govern and control.
Different areas or pages of Our site may contain certain explanatory or instructive Content posted by Us, including but not limited to answers to “frequently asked questions”; forums; message boards; online discussion groups; threaded conversations; or other postings made by MCC employees, contractors, or agents (collectively, “Explanatory Content”).” Any Explanatory Content found on Our site is not incorporated into or made a part of this Agreement and does not create, either expressly or by implication, any enforceable or legally binding terms or obligations upon Us that are separate or apart from those in this Agreement and Privacy Policy. Unless expressly stated in writing otherwise by an agent of the MCC with specifically designated authority, this Agreement shall govern and control at all times.
28. Modification and Amendment. This Agreement may change from time to time. We have the right in Our sole discretion, at any time and without notice, to modify or amend its terms and conditions. Your access to or use of the site after the date such modifications or amendments are made shall be deemed to constitute Your acceptance of such terms. No modification or amendment made by You shall be enforceable or binding upon Us unless it is made in writing and expressly signed by an agent of the MCC with specifically designated authority to do so.
29. 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, earthquake, significant adverse weather conditions, riot, insurrection, rebellion, mass violent acts, fire, contamination, blackout, discontinuation of electricity supply, judicial or governmental action, domestic or foreign hostilities, labor disputes, inability to obtain goods or services, embargo, pandemic, epidemic, plague, 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.
30. Severability. If any one or more of the provisions contained in this Agreement, or a part of any provision, shall for any reason be found to be invalid, illegal, or unenforceable in any respect, it shall be severed and struck out, and said finding shall not affect the validity or enforceability of the remaining parts or provisions, which shall be enforceable to the maximum extent permitted by law.
31. Waiver. A waiver by Us of any term, provision, or condition of this Agreement and/or the Privacy Policy in one or more instances, whether by conduct, course of dealing, or otherwise, shall not be deemed to be a waiver of any other term, provision or condition hereof, whether or not similar, or a relinquishment of any rights; nor shall such a waiver by Us one or more times constitute a continuing waiver. A waiver by Us shall not be binding unless expressly executed in writing by an agent of the MCC with specifically designated authority to grant said waiver.
32. Immunity. Nothing contained in this Agreement shall in any way: (a) be construed as a waiver or relinquishment by Us or the Commonwealth of Massachusetts or any of its agencies, branches, or departments, to any claim or defense of immunity from suit, including but not limited to, sovereign immunity or other forms of constitutional, statutory, or legal immunity; and/or (b) be construed as consent or acquiescence by Us or the Commonwealth of Massachusetts to any suit, or cause-of-action in any court or legal forum where said consent is found to be necessary and/or proper for said suit or cause-of-action to be initiated, maintained, or prosecuted. This Section shall apply to any and all lawsuits, legal claims, or causes-of-action including but not limited to those related to copyright and/or asserted under 17 U.S.C. § 101 et seq. In the event of any ambiguity or conflicting language relating to the availability or applicability of said immunity, consent, or acquiescence, this Section shall be construed in favor of and to the benefit of MCC and/or the Commonwealth of Massachusetts.
33. Governing Law and Forum. This Agreement is made pursuant to, and shall be governed by, the laws of the Commonwealth of Massachusetts, excluding its conflicts-of-law principles and provisions. All actions, lawsuits, claims, or disputes arising under or relating to this Agreement or Your use of the site shall be brought solely and exclusively in the state courts of Boston, Massachusetts. You irrevocably submit and consent to the exercise of personal jurisdiction over You by the state courts in Boston, Massachusetts and irrevocably waive all objections that You may now or hereafter have to the exercise of personal jurisdiction by said courts and to the venue, including but not limited to forum non conveniens.
34. No Joint Venture. No joint venture, partnership, employment, agency, special, heightened, or fiduciary relationship or duty arises due to this Agreement or its provisions.
35. Assignment. The terms of this Agreement and its rights, duties, or obligations hereunder are not assignable, transferable, or sublicensable by You except with Our prior express written consent, but may be assigned or transferred by Us without restriction or limitation. Any attempted assignment by You shall violate this Agreement and will be null, void, and of no legal effect.
36. Remedies. In order to avoid irreparable injury to Us, in the event of any breach or threatened breach by You of certain provisions of this Agreement, We shall be entitled in a legal action, claim, or proceeding to seek and obtain an injunction and/or other equitable relief restraining such breach, without the posting of any security, bond, or other collateral by Us. We shall also be entitled to pursue any and all other available remedies for such breach or threatened breach, including the recovery of monetary damages from You, without affecting or diminishing any of Our other rights hereunder.
37. Notice. As We do not routinely collect Your e-mail address or other personally identifiable information unless You provide it to Us as part of Your Content, or through the electronic granting process, through Posts, or otherwise, We are not obligated to provide You with notices about this site or any potential violations of this Agreement. However, where You voluntarily provide Us with Your e-mail address or other personally identifiable information, We reserve the right to provide You with notice as We deem necessary relating to Your use of this site, Your submissions to Us, Your Content, Your grants or grant applications, events, this Agreement, or any breach or potential breach thereof. In this instance, notice shall be deemed to be delivered when sent to Your e-mail address, if possible.
It is Your sole responsibility to update and change Your contact information as needed, including Your e-mail address, and to monitor Your spam filter for possible communications from Us. We also reserve the right to provide notice to You via regular postal mail or courier in some instances, without waiving any other rights herein, if We have Your mailing address as part of Your Content.
38. Survivability. The respective rights and obligations of the parties under Sections 21 through 25, inclusive, and Sections 31 through 33, inclusive, and as otherwise provided or reasonably construed in this Agreement, shall survive any termination or expiration of the Agreement.
39. Headings and Order. The headings and sequential order of the sections contained in this Agreement are for convenience and reference only and shall have no substantive or procedural effects in construing or interpreting the provisions of this Agreement.
40. Third Party Beneficiaries. Unless expressly stated otherwise in this Agreement, no provision of this TCU is intended to create, and does not create, any rights in or benefits to any third party.
