Terms and Conditions of Use for Massachusetts Cultural Council’s Local Cultural Council Web Site

These Terms and Conditions of Use (“TCU”/“Agreement”) are made between the Massachusetts Cultural Council (“MCC”/”we”/”us”/”our”) and any Local Cultural Council members and/or applicants to the LCC Program (“LCC”/”you”/”users”) who access this web site (“site”). This TCU is made by and between us and you, the user of this site. Use of this site is provided to you subject to this Agreement, which may be updated from time-to-time at our sole discretion. Unless it is stated otherwise, this TCU applies to all areas of our site and to all services that we provide to you through our site, including, but not limited to, the LCC Online Office and PatronMail. You hereby agree as follows:

BY USAGE OF THIS SITE, WHETHER YOU ARE USING THIS SITE FOR INFORMATIONAL PURPOSES OR SUBMITTING ANY OTHER INFORMATION TO US THROUGH THIS SITE, YOU REPRESENT THAT YOU 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 THE TERMS AND CONDITIONS CONTAINED THEREIN. THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AND FORCE AS A WRITTEN AND SIGNED DOCUMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS, YOU MUST CEASE USING THIS SITE AND NOT SUBMIT YOUR OTHER INFORMATION THROUGH THIS SITE. ANY VIOLATION OF THIS AGREEMENT CAN, IN CERTAIN CIRCUMSTANCES, RESULT IN LEGAL ACTION TAKEN BY US AGAINST YOU.

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 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) maintenance, repairs, content updates, or administrative reviews which we may undertake; or (iii) causes beyond our control.

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 or portions of this site are proprietary to us and are protected by intellectual property laws and/or treaties, including, but not limited to, copyright, trademark, service mark, and patent laws. You agree to use this site for your own personal use only and shall not copy, duplicate, display, transmit, distribute, modify, 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 for any commercial purposes, any portion of the site, its use, or any access to it.

6. 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 (e.g. robot, spider, spyware, malware, etc.) designed to monitor, observe, track, gather, aggregate, copy, or transmit any of the content or user information contained on our site, whether provided by us or our users, 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 from using, implementing, or employing any automated or manual device, process, or program that interferes or attempts to interfere with the operation of our site.

7. Linking and Framing. You agree not to bypass the home page of our site and "deep-link" to any other websites or frame our content within another website or other medium without our express written permission.

Our site or our users may also provide links to other web sites. These links are not intended to and do not imply sponsorship, affiliation, or endorsement, even if we work collaboratively or cooperatively with an organization or entity to which our site links to. 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 sites, any transmissions initiated by or between you and the other site, any of the content posted on the other site, or your reliance upon such content or links.

8. Posting content. Some areas of our site allow you to post certain content ("posts") that may be seen by users or third parties on a continuous basis, subject to our acceptable use policy in Section Nine (9) and Good Samaritan policy in Section Sixteen (16). We may or may not review your posts after you submit them to us and prior to our posting them on the site. We reserve the right to refuse to publish any posts, or to take down any posts, that in our sole discretion violate Sections 9 and/or 16 of this Agreement.

9. Unacceptable Uses. You are solely responsible for any and all acts and omissions that occur while you use this site, and you agree not to engage in unacceptable use of the site, 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 material that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, or malicious; (c) 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; (d) post, disseminate, or transmit any false, fraudulent, untrue, or deceptive information to us, whether in an electronic grant application or in any other submission; (e) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication or post; (f) impersonate any person or entity, including, but not limited to, an MCC employee or agent; (g) 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; (h) interfere, disrupt, or attempt to gain unauthorized access to other passwords or accounts on the site or to any other computer network; (i) post, disseminate, store or transmit viruses, trojan horses, or any other malicious 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 or the servers or network connected to provide service to the site; (n) provide or post instructional information about illegal or unlawful activities; (o) "stalk," bully, or otherwise harass another person; (p) intentionally or unintentionally violate any applicable local, state, national or international law; and/or (q) engage in any other activity deemed by us, in our sole discretion, to be unacceptable when using this site or in conflict with the spirit or intent of this Agreement.

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. 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 this site may, when possible, be disclosed to other parties as we deem appropriate. Such information may also be disclosed pursuant to any authorized law enforcement investigation, regardless of whether it was initiated by us or by another party.

10. Privacy. Your information is collected 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.

11. 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) You will not use our service or website for any unacceptable uses, as partially listed in Section Nine (9); (iv) You will not use our website or service to violate any federal, state, and/or local law; and (v) You will only use our site or service to transmit and disseminate information reasonably related to MCC or LCC business.

12. Disclaimer of Warranties. THIS SITE IS PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT YOUR SOLE RISK. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) THAT THE SITE, OR THE SERVICE PROVIDED BY US, WILL MEET YOUR REQUIREMENTS; (C) THAT THE SITE AND ANY TRANSMISSIONS SENT OR RECEIVED TO OR FROM IT AS A RESULT OF YOUR USE WILL BE TRANSMITTED, SECURE, UNINTERRUPTED, ACCESSIBLE, OR ERROR-FREE; AND/OR (D) THAT ANY INFORMATION, DATA, OR CONTENT OBTAINED FROM OR POSTED ON THE SITE, WHETHER BY US OR BY A USER, WILL BE ACCURATE, RELIABLE, COMPLETE, FREE FROM VIRUSES OR OTHER FORMS OF MALICIOUS CODE, OR FREE FROM ANY CLAIMS OF INFRINGEMENT OF ANOTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS. 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.

13. 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 SERVICE, 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 PARTY DISPLAYED OR 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 SHALL BE TO TERMINATE YOUR USE OF THIS SITE AND SERVICE.

14. 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.

15. Indemnification. You agree to 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 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, as we determine in our sole discretion; (d) any negligent or willful misconduct by you; and (e) as otherwise provided in this Agreement.

16. Good Samaritan Content and Complaint Procedures Policy.
a. Policy. We have provided opportunities for you to contribute content to our site. It is our policy, however, not to allow any content which may constitute intellectual property infringement; violations of federal, state, or local law; obscene or defamatory material, or may otherwise be unacceptable or inappropriate. Upon learning 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 the content, which in our sole discretion, is otherwise 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 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 Acceptable Use policy in Section Nine (9), You may notify Us as follows: (i) Via e-mail at dawn.heinen@art.state.ma.us; or (ii) via first class mail (or other nationally-recognized courier) at: Massachusetts 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), 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 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; 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 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 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, incomplete, or otherwise questionable. 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 THIRTEEN (13), YOUR SOLE AND EXCLUSIVE REMEDY AGAINST US SHALL BE TO TERMINATE YOUR USE OF THIS SITE AND SERVICE.

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 in appropriate circumstances, if possible, to terminate the access rights of repeat infringers and other users who use this site in an inappropriate or objectionable manner.

17. Integration and Conflicting Terms. This Agreement and the Privacy Policy constitute the complete and exclusive statement and agreement between you and us with respect to your use of this 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. The terms of this Agreement and the terms of the Privacy Policy 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, 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.

18. Modification and Amendment. We have the right, at any time and without notice, to add or modify the terms of this Agreement. Your access to or use of the site after the date such amended terms are added shall be deemed to constitute Your acceptance of such amended terms. No modification made by You shall be binding upon us unless it is made in writing and signed by us.

19. 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.

20. 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.

21. 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 shall be binding unless executed in writing by the party making the waiver. Nothing contained in this Agreement shall in any way: (a) be construed as a waiver by us or by the Commonwealth of Massachusetts to any claim or defense of immunity from suit, including, but not limited to, sovereign immunity; and/or (b) be construed as consent by us or by the Commonwealth of Massachusetts to any suit or cause-of-action in any court or legal forum where said consent is determined to be necessary and/or proper for said suit or cause-of-action to be initiated, commenced, supported, or maintained.

22. 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 subject matter jurisdiction and personal jurisdiction over you by the state courts in Massachusetts. You hereby irrevocably waive any and all objections which you may now or hereafter have to the exercise of personal and subject matter jurisdiction by the state courts in Massachusetts and to the venue of any such suit, action, or proceeding brought in any state court in Boston, Massachusetts.

23. 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 available remedies for such breach or threatened breach, including the recovery of monetary damages from you.

24. Notice. As we do not routinely collect Your e-mail address or other personally identifiable information unless you provide it to us, we will not provide you with notices about this site or any potential violations of this Agreement. However, in situations 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, this Agreement, or any breach thereof. In this instance, notice shall be deemed to be delivered when sent to your e-mail address, if possible. We also reserve the right to provide notice to you via mail or courier in some instances.

25. Survivability. The respective rights and obligations of the parties under Sections Eleven (11) through Fifteen (15), inclusive, and Sections Twenty-One (21) and Twenty-Two (22) and as otherwise provided in this Agreement, shall survive any termination or expiration of this Agreement.

26. 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.

27. 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.

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