By using or allowing others to use the software, materials, interactive features, and website associated with the Octopus Initiative Software (“OIS”), you (“you”, “your”, “User”) are agreeing to be bound by these legal terms and conditions (“Agreement”). Any person interacting with OIS in any way are Users for the purposes of this Agreement. If you do not agree to the terms and conditions of this Agreement, do not use OIS. If you are dissatisfied with OIS, any OIS content, or the terms or conditions of this Agreement, you agree that your sole and exclusive remedy is to discontinue your use of OIS. You acknowledge and accept that your use of OIS is at your sole risk. You represent you have the legal capacity and authority to accept these legal terms and conditions on behalf of yourself and any party you represent. Certain terms of this Agreement may not apply to your use of OIS however all applicable terms are nonetheless binding. As the rightful owner of OIS, the Museum of Contemporary Art Denver (“MCA”) reserves the right to change or terminate the terms of this Agreement at any time and from time to time without any notice to you by posting said changes on the OIS website. Any such changes are hereby incorporated into this Agreement by reference as though fully set forth herein.
A. General Provisions
- Indemnification. You, the User of OIS, agree to indemnify and hold MCA, its subsidiaries, affiliates, and assigns, and each of their directors, officers, agents, contractors, partners, and employees, harmless from and against any loss, liability, claim, demand, damages, costs, and expenses, including reasonable attorneys’ fees, arising out of this Agreement or in connection with any use of OIS including, but not limited to, with respect to damage to any property or loss of any data arising from the possession, use, or operation of OIS by the User or any others, or arising from transmission of information or the lack thereof connected with OIS as described in this Agreement.
- Termination. This Agreement shall remain in effect until terminated. This Agreement may be terminated at MCA’s sole discretion and without prior notice, by mutual written agreement between the parties, but not by the User. MCA may suspend, terminate, or delete your access to OIS without prior notice and in MCA’s sole discretion and MCA shall not be liable for any such suspension, termination, or deletion or its effects, including but not limited to interruption of business, loss of data or property, property damage, or any other hardship, losses, or damages. MCA may unilaterally and without notice terminate this Agreement and/or your access to OIS if you or any other person or entity using OIS violates any provision of this Agreement. MCA shall not be liable to you or to any third party for any termination. Upon termination you or any other person or party using OIS shall cease to use OIS at your sole cost and expense.
- Updates. At its option, from time to time, MCA may create updated versions of OIS and may make such updates available to you either for a fee or for free. Unless explicitly stated otherwise, any such updates will be subject to the terms of this Agreement including any amendments to this Agreement, to be determined in MCA’s sole discretion.
- Proprietary Materials. All content available through OIS, including designs, text, graphics, pictures, information, applications, software, and other files, and their selection and arrangement (“Site Content”), as well as all software and materials contained in or related to OIS are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. You hereby agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from such content or materials. Systematic retrieval of data or other content from OIS to create or compile, directly or indirectly, a collection, compilation, recreation, database, or directory of OIS materials is prohibited except as provided for herein. Use of OIS content or materials for any purpose not expressly provided for herein is prohibited.
- Disclaimer of Warranty. OIS is provided “as is”, with all faults and without warranty of any kind. MCA HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO OIS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. MCA DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION THAT THE OIS CONTENT IS ACCURATE, RELIABLE, OR CORRECT OR THAT IT WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT OIS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT OIS IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. You assume the entire risk as to the quality, results, and performance of OIS as well as the entire risk and cost of all service, repair, or correction related to your use of OIS. No oral or written information, advice, suggestions, or recommendations given by MCA, its representatives or employees shall create a warranty or in any way increase the scope of this Agreement and you may not rely on any such information, advice, suggestions, or recommendations. Some jurisdictions do not allow the exclusion or limitation of certain warranties or consumer rights so some exclusions and limitations may not apply to you.
- Limitation of Liability. You hereby agree that MCA, its subsidiaries, affiliates, and assigns, and each of their directors, officers, agents, contractors, partners, and employees, shall not be liable to you or any third party for any indirect, special, consequential, or incidental damages including but not limited to damages for loss of funds or property, business interruption, loss of business opportunity, loss of data, or any other hardship, damages, or losses arising out of or related to: the use or inability to use OIS, however caused; unauthorized or accidental access to or alteration of data; statements or conduct of any third party; or any matter relating to the use of OIS; and even if MCA has been advised of the possibility of such damages. Some jurisdictions do not allow the exclusion or limitation of certain remedies or damages so some exclusions and limitations may not apply to you.
- Severability. If any provision of this Agreement is held to be ineffective, unenforceable, or illegal for any reason, MCA may reform such provision to the extent necessary to make it effective, enforceable, and legal or such provision may be deemed severed and in either case this Agreement with such provision reformed or severed shall remain in full force and effect to the fullest extent permitted by law.
- Governing Law. This Agreement will be governed by the laws of the State of Colorado and the parties hereby consent to the exclusive jurisdiction of the courts located in Denver, Colorado. In the event of any legal action to enforce the terms of this Agreement, the prevailing party may collect its reasonable costs and expenses incurred in connection with such action.
- Entire Agreement. This Agreement constitutes the entire agreement between MCA and the User relating to the subject matter hereof and supersedes all prior understandings, promises, and undertakings, if any, made orally or in writing with respect to the subject matter hereof. No modification, amendment, waiver, termination, or discharge of any portion of this Agreement shall be binding unless executed and confirmed in writing by MCA.
B. End User Terms and Conditions
- Ownership. OIS and all associated materials provided by MCA are the solely owned or appropriately licensed property of MCA. OIS is licensed, not sold, to you under the terms of this Agreement. MCA does not sell any title, ownership right, or interest in or to OIS. By using OIS, you are agreeing only to a non-exclusive, nontransferable license to use, according to the terms of this Agreement, OIS and any software programs or other proprietary material of third parties that are incorporated into OIS. MCA reserves and retains all applicable right, title, and interest (including but not limited to copyrights, patents, trademarks, and service marks and other intellectual property rights) in and to OIS and all associated materials. Any remuneration paid for this product constitutes a license fee for the use of OIS.
- The copying, reproduction, duplication, translation, reverse engineering, adaptation, decompilation, disassembly, reverse assembly, modification, or alteration of OIS or any portion thereof is expressly prohibited without the prior written consent of MCA except as provided for herein. The merger or inclusion of OIS or any portion thereof with any computer program, and the creation of derivative works or programs from OIS or any portion thereof, is also expressly prohibited without the prior written consent of MCA.
- Neither OIS nor any part thereof may be rented, leased, sold, assigned, transferred, re-licensed, sub-licensed, or conveyed by you for any purpose. Any attempted rental, lease, sale, assignment, transfer, re-license, sub-license, conveyance, gift, or other disposition of OIS by you in violation of this Agreement is null and void.
- Programs or software developed and/or owned by entities other than MCA and included with or incorporated into OIS (“Third Party Software”) is subject to and its use is governed by this Agreement. The use of Third Party Software for any purpose other than its intended use in conjunction with OIS is prohibited and you hold MCA harmless from and against the results of any such use.
- Registration and Identifying Information. You hereby represent and warrant that any and all information provided by you to MCA shall be complete, true, accurate, and current in all respects and that you shall update MCA regarding any changes to such information as soon as such changes occur. As related to your use of OIS, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your account. You agree to accept responsibility for all activities that occur under your account and password.
- Third Party Sites and Content. OIS may contain (or may send you through or to) links to other websites (”Third Party Sites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (”Third Party Content”). MCA does not check such Third Party Sites or Third Party Content for accuracy, appropriateness, or completeness and MCA is not responsible for any Third Party Sites accessed through use of OIS or for any Third Party Content posted on, available through, or installed from OIS, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third Party Sites or the Third Party Content. Inclusion of, linking to, or permitting the use or installation of any Third Party Site or any Third Party Content does not imply approval or endorsement thereof by MCA. MCA shall have no responsibility or liability whatsoever for any Third Party Sites or Third Party Content accessed through the use of OIS.
- User Conduct. You represent, warrant, and agree that no materials of any kind submitted through your account or otherwise created, used, posted, transmitted, or shared by you or others through you on or through OIS will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity, or other personal or proprietary rights, or contain libelous, defamatory, or otherwise unlawful material. You further agree not to use OIS to:
- collect email addresses or other contact information of other users from OIS;
- send unsolicited communications to other users of OIS;
- take any unlawful or unauthorized actions or in any way damage, disable, overburden, or impair OIS or the intellectual property rights owned or licensed by MCA as described elsewhere herein;
- upload, post, transmit, share, store, or otherwise make available any content that MCA, in its sole discretion, deems harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, fraudulent, invasive of privacy or publicity rights, or otherwise objectionable;
- misrepresent yourself or your affiliation with any person or entity;
- upload, post, transmit, share, or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials or any other form of solicitation;
- upload, post, transmit, share, store, or otherwise make publicly available through OIS any private information of any third party;
- upload, post, transmit, share, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- upload, post, transmit, share, store, or otherwise make available content that would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law;
- use or attempt to use another's account, service, or system or create a false identity on OIS;
- interfere with or disrupt OIS or servers or networks connected to OIS, or disobey any requirements, procedures, policies, or regulations of networks connected to OIS;
- upload, post, transmit, share, store, or otherwise make available content that infringes any proprietary rights of any party or defames, slanders, or libels any party, or otherwise violates any law of the United States or the jurisdiction in which you reside; or
- upload, post, transmit, share, store, or otherwise make available content that, in the sole judgment of MCA, is objectionable or which restricts or inhibits any other person from using or enjoying OIS, or which may expose MCA or its users to any harm or liability of any type.
- User Content. You are solely responsible for the profiles (including any name, image, or likeness), messages, notes, text, information, listings, and other content that you upload, publish, or display on or through OIS (“User Content”). Posting, transmitting, or sharing User Content through OIS that you did not create, that you do not have the rights to, or that you do not have permission to post is prohibited. You understand and agree that MCA may, but is not obligated to, review and may delete or remove (without notice) any User Content in its sole discretion, for any reason or no reason, including User Content that in MCA’s sole judgment violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others. You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on OIS or provide to MCA. When you post User Content, you authorize and direct MCA to make such copies thereof as MCA deems necessary in order to facilitate the posting, storage, and use of the User Content.
- Copyright. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide MCA with the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- A description of the copyrighted work or other intellectual property that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the site;
- Your address, telephone number, and email address;
- 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;
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Legal Age. YOU AGREE BY USING OIS THAT YOU ARE AT LEAST 13 YEARS OF AGE, YOU ARE LEGALLY ABLE TO ENTER INTO A CONTRACT, AND YOU AGREE TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS. Minors are not eligible to use OIS and may not submit any personal information to or through OIS or MCA.
MCA’s agent of claims of copyright or other intellectual property infringement can be reached as follows:
write to us at:
1485 Delgany St.
Denver, CO 80211