Terms & Conditions
Effective Date: October 23rd, 2018
Site Covered: https://www.mercecunningham.org
THE AGREEMENT: These Terms & Conditions (hereinafter the “Agreement”) are entered into by and between You and the Merce Cunningham Trust (hereinafter referred to as “Company”). Your use of this website (hereinafter referred to as the “Website”) and any service on the Website provided by the Company (the “Services”) are subject to the Agreement.
The parties referred to in this Agreement shall be defined as follows:
a) Company, Us, We: The Company, as the creator, operator, and publisher of the Website, makes the Website, and certain Services on it, available to users. Any references to Merce Cunningham Trust, Company, Us, We, Our, Ours and other first-person pronouns refer to the Company, as well as all employees and affiliates of the Company.
b) You, the User, the Client: You, as the user of the Website, will be referred to throughout this Agreement with second-person pronouns such as You, Your, Yours, or as User or Client.
c) Parties: Collectively, the parties to this Agreement (the Company and You) will be referred to as Parties.
2) ASSENT & ACCEPTANCE
By using the Website, You represent and warrant that You have read and reviewed this Agreement and that You agree to be bound by it. If You do not agree to be bound by this Agreement, please leave the Website immediately. The Company only agrees to provide use of the Website and Services to You if You assent to this Agreement.
The Website is not intended for children under 13 years of age. By using the Website, You represent and warrant that You are 13 years of age or older. If You are not 13 years of age or older, please leave the Website immediately.
3) INTELLECTUAL PROPERTY
MERCE CUNNINGHAM and CUNNINGHAM TECHNIQUE are United States registered trademarks owned by the Company, and you may not use such trademarks for any reason without express prior written permission of the Company. You agree that the Website, its entire contents, features, and functionality (including but not limited to any information, software, text, display, image, photograph, video or audio, other than Your Content (as defined below)) and all Services are owned by the Company or its licensors, including but not limited to all copyrights, trademarks (including but not limited to MERCE CUNNINGHAM and CUNNINGHAM TECHNIQUE), trade secrets, patents, and other intellectual property rights therein (the “Company IP”). This Agreement permits you to use the Website for your personal, non-commercial use only, and You have no other rights to use the Website or the Company IP. You agree not to otherwise use, reproduce, distribute, modify, create derivative works of, display, perform, republish, download, stream, broadcast, store or transmit any of the Company IP in any way, including but not limited to electronically or via registration of any new trademarks, trade names, service marks or Uniform Resource Locators (URLs) without express prior written permission from the Company. You agree that You will not use the Company IP for any unlawful or infringing purpose.
4) USER CONTRIBUTIONS
We may allow You to submit, post, upload, display or otherwise transmit content or materials provided by You (“Your Content”) on or through the Website or via email.
a) As consideration for Us making the Website and Services available to You, You hereby grant the Company and our affiliates a perpetual, irrevocable, royalty-free, non-exclusive, worldwide license to use, reproduce, distribute, modify, create derivative works of, display, perform, republish, download, stream, broadcast, store and transmit Your Content. For the avoidance of doubt, We have the right to share Your Content via third party platforms, including but not limited to Vimeo, Instagram, and Facebook. The Company does not claim ownership of Your Content.
b) You represent and warrant that (I) You own or control all rights in and to Your Content and have the right to grant the license granted above to Us and our affiliates, and (II) all of Your Content does and will comply with this Agreement.
c) You understand and acknowledge that You are responsible for any of Your Content, and You, not the Company, have full responsibility for such content, including but not limited to its legality, reliability, accuracy, and appropriateness. The Company is not responsible or liable to any third party for the content or accuracy of Your Content.
d) We have the right to (I) remove or refuse to post Your Content for any or no reason in Our sole discretion or (II) take any action with respect to Your Content that We deem necessary or appropriate in Our sole discretion, including if We believe that Your Content violates this Agreement.
e) Without limiting the foregoing, the Company has the right to cooperate fully with any law enforcement authorities or court order requesting or directing Us to disclose the identity or other information of anyone posting any content or material on or through the Website.
f) The Company does not accept responsibility for the security of Your Content. You agree that Your use of the Website or Services is at Your own risk.
If You feel that any of Your intellectual property rights have been infringed or otherwise violated by the posting of information or media by another of Our users, please contact Us and let Us know.
5) ACCEPTABLE USE
You agree not to use the Website or Services for any unlawful purpose or any purpose prohibited under this clause. You further agree not to use the Website or Services in any way that could damage the Website, Services, or general business of the Company, including:
a) To harass, abuse, or threaten others or otherwise violate any person's legal rights;
b) To violate any intellectual property rights of the Company or any third party;
c) To upload or otherwise disseminate any computer virus or other software that may damage the property of another;
d) To perpetrate any fraud;
e) To engage in or create any unlawful gambling, sweepstakes, or pyramid scheme;
f) To publish or distribute any obscene or defamatory material;
g) To publish or distribute any material that incites violence, hate, or discrimination towards any group;
h) To unlawfully gather information about others;
i) To use the Website in any manner that could disable, overburden, damage or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website;
j) To use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, or to monitor or copy any of the material on the Website;
k) To use any manual process to monitor or copy any of the material on the Website for any unauthorized purpose without Our prior written consent;
l) To introduce any virus, Trojan horse, worm, logic bomb, or other material that is malicious or technologically harmful;
m) To attempt to gain unauthorized access to, interfere with, damage, or disrupt any part of the Website, the server on which the Website is stored, or any other server, computer, or database connected to the Website; or
n) To otherwise attempt to interfere with the proper working of the Website.
6) PRIVACY INFORMATION
Please see our Privacy Notice (https://www.mercecunningham.org/privacy-policy/) for details of our policies regarding collecting information, including personally identifying information, and uses of such information.
7) REVERSE ENGINEERING & SECURITY
You agree not to undertake any of the following actions:
a) Reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on the Website or Services;
b) Violate the security of the Website or Services through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user or network.
You agree to defend (at our request) and indemnify the Company and any of its affiliates (if applicable) and hold Us and our affiliates (if applicable) harmless from and against any and all claims, liabilities, damages, losses and expenses, including without limitation reasonable attorney’s fees and costs, arising from or relating to Your breach of this Agreement, Your use or misuse of the Website or Services, or Your Content. You agree that the Company shall be able to select its own legal counsel and may participate in its own defense, if the Company wishes.
9) SPAM POLICY
You are strictly prohibited from using the Website or any of the Services for illegal spam activities, including gathering email addresses and personal information from others or sending any mass commercial email.
10) THIRD-PARTY LINKS & CONTENT
The Company may occasionally post links to third party websites or other services. You agree that the Company is not responsible or liable for any loss or damage caused as a result of Your use of any third party service linked from Our Website.
11) MODIFICATION & VARIATION
The Company may, from time to time and at any time, modify this Agreement. You agree that the Company has the right to modify this Agreement and anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon posting on the Website and that modifications or variations will replace any prior version of this Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement.
a) To the extent any part or sub-part of this Agreement is held ineffective or invalid by any court of law, You agree that the prior, effective version of this Agreement shall be considered enforceable and valid to the fullest extent.
b) You agree to routinely monitor this Agreement and refer to the Effective Date posted at the top of this Agreement to note modifications or variations. You further agree to clear Your cache when doing so to avoid accessing a prior version of this Agreement. You agree that Your continued use of the Website after any modification to this Agreement is a manifestation of Your assent to such modification.
c) In the event that You fail to monitor any modification to or variation of this Agreement, You agree that such failure shall be considered an affirmative waiver of Your right to review the modified Agreement.
12) ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Parties with respect to any and all uses of this Website. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral, regarding the use of this Website.
13) SERVICE INTERRUPTIONS
The Company may need to interrupt Your access to the Website to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that Your access to the Website may be affected by unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for any damage or loss caused as a result of such downtime.
14) TERM, TERMINATION & SUSPENSION
The Company may terminate this Agreement with You at any time for any reason, with or without cause. The Company specifically reserves the right to terminate this Agreement if You violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of the Company or a third party, failing to comply with applicable laws or other legal obligations, or publishing or distributing illegal material. At the termination of this Agreement, any provision that would be expected to survive termination by their nature (including without limitation Section 8, Section 15, and Section 16) shall remain in full force and effect.
15) NO WARRANTIES
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK AND THAT ANY SERVICE PROVIDED BY US ARE ON AN "AS IS" BASIS. THE COMPANY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THE IMPLIED WARRANTY OF MERCHANTABILITY. THE COMPANY MAKES NO WARRANTIES THAT THE WEBSITE OR SERVICES WILL MEET YOUR NEEDS OR THAT THE WEBSITE OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. THE COMPANY ALSO MAKES NO WARRANTIES AS TO THE RELIABILITY OR ACCURACY OF ANY INFORMATION ON THE WEBSITE OR OBTAINED THROUGH THE SERVICES. YOU AGREE THAT ANY DAMAGE THAT MAY OCCUR TO YOU, THROUGH YOUR COMPUTER SYSTEM, OR AS A RESULT OF LOSS OF YOUR DATA FROM YOUR USE OF THE WEBSITE OR SERVICES IS YOUR SOLE RESPONSIBILITY AND THAT THE COMPANY IS NOT LIABLE FOR ANY SUCH DAMAGE OR LOSS.
16) LIMITATION ON LIABILITY
THE COMPANY IS NOT LIABLE FOR ANY DAMAGE THAT MAY OCCUR TO YOU AS A RESULT OF YOUR USE OF, OR INABILITY TO USE, THE WEBSITE OR SERVICES, TO THE FULLEST EXTENT PERMITTED BY LAW. THIS SECTION APPLIES TO ANY AND ALL CLAIMS BY YOU, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, CONSEQUENTIAL OR PUNITIVE DAMAGES, NEGLIGENCE, STRICT LIABILITY, FRAUD, OR TORTS OF ANY KIND.
17) GENERAL PROVISIONS:
a) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
b) JURISDICTION, VENUE & CHOICE OF LAW: You agree that the laws of the State of New York shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between You and the Company, without regard to its conflict of law provisions. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the state and federal courts of the following county: New York, New York. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non conveniens or similar doctrine.
c) ARBITRATION: In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute in good faith through friendly consultation. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in the following county: New York. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing Federal law as well as the law of the following state: New York. Each Party shall pay their own costs and fees. Claims necessitating arbitration under this section include, but are not limited to: contract claims, tort claims, claims based on Federal and state law, and claims based on local laws, ordinances, statutes or regulations. Intellectual property claims brought by the Company will not be subject to arbitration and may, as an exception to this sub-part, be litigated. The Parties, in agreement with this sub-part of this Agreement, waive any right they may have to a jury trial in regard to arbitral claims.
d) ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by You. Should this Agreement, or the rights granted hereunder, by assigned, sold, leased or otherwise transferred by the Company, the rights and liabilities of the Company will bind and inure to any assignee, administrator, successor, and executor.
e) SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and sub-parts will be enforced to the maximum extent possible. In such condition, the remainder of this Agreement shall continue in full force.
f) NO WAIVER: In the event that We fail to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of such provision or of any other provision. Waiver of any part or sub-part of this Agreement will not constitute a waiver of any other part or sub-part.
g) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and sub-parts under this Agreement are for convenience and organization only. Headings shall not affect the meaning of any provisions of this Agreement.
h) NO AGENCY, PARTNERSHIP OR JOINT VENTURE: No agency, partnership, or joint venture has been created between the Parties as a result of this Agreement. No Party has any authority to bind the other to third parties.
i) FORCE MAJEURE: The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
j) ELECTRONIC COMMUNICATIONS PERMITTED: Electronic communications, including by e-mail or fax, are permitted under this Agreement. For any questions or concerns, please email Us at the following address: email@example.com.