21.01.05 PSA - CaFE Service Agreement DOCUMENT EXPIRES ON Mar 05,2021
Plan Type: Small Plan Contract ID: 2021CAFE1655C01
CaFETM SERVICE AGREEMENT
WESTAF 11888 Sherman Street, Suite 3751 Denver, CO 80203 1(303) 629.11661 www.westaf.org
This Service Agreement is dated Jan-05-2021 "Effective Date")and entered into between Western States Arts
Federation, a Colorado nonprofit corporation ("WESTAF"), and the Town of Avon, a home rule municipality and a political
subdivision of the State of Colorado("Client")for an initial Access Term, as follows:
Term:An Access Term beginning on 01 /05/2021 and ending 12/31 /2021 ,for the Contest(s)described
as:
Town of Avon - Danita Dempsey
WESTAF and Client agree as follows:
1. Definitions.
1.1 "Access Term" means the term of each Contest that includes the actual life cycle of a Contest(the period of time that a
Contest is open through the time the Contest is concluded which may not exceed twelve months, unless extended as
provided for in Section 2.5).An Access Term is created for each specific Contest.
1.2"Artists" means any artists who use the CaFE Service to submit to or otherwise participate in a Client's Contest and
who have been supplied user identifications and passwords by WESTAF for this purpose.
1.3"CaFE Service"or"Service"means the web-based service owned and made available by WESTAF as described in
Section 2.4. The Service includes such features as are set forth on the CaFE website(callforentry.org)and in the
Documentation.WESTAF may change such features and URL address from time to time.
1.4"Contest"means a contest, call, competition, solicitation, and other artist and art-selection related events sponsored by
Client for the selection of artists or art for display, acquisition, or other use of such art objects by Client that is identified in a
written or electronic form that is submitted by Client to WESTAF and approved by WESTAF.WESTAF reserves the right, in
its sole discretion, to determine if a proposed Contest is an appropriate event for use of the CaFE Service.
1.5"Client Data" means the information, including content, images, reports,text, sound and video, input into the CaFE
Service by Client and by Artists with respect to their Submissions to and participation in a Client's Contest.
1.6"Documentation" means WESTAF's description of the Service and User Manual as provided on the CaFE website
through which the Service is made available, as updated from time to time. The user manuals are provided to Client in
connection with the CaFE Service in either electronic, online help files, or hard copy format.
1.7"Fees"have the meaning given in Section 3.1.
1.8"Financial Transaction Service"means the services described in Attachment 2.
1.9"Intellectual Property Rights" means all worldwide intellectual property rights, including without limitation, copyrights,
trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights, and all other
proprietary rights,whether registered or unregistered.
1.10"Submissions"has the meaning given in Section 2.3.
1.11 "Support" means WESTAF's standard technical support for Client's use and operation of the CaFE Service as
described in Attachment 1.
1.12"Term" has the meaning given in Section 4.1.
1.13"User Account" has the meaning given in Section 2.7.
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1.14"Users" means Client's employees and independent contractors who are authorized by Client to use the CaFE Service
for Client's Contest on behalf of Client and have been supplied user identifications and passwords by WESTAF for this
purpose.
2. Service.
2.1 Services. Subject to the terms and conditions of this Agreement and WESTAF's General Terms of Service, WESTAF
shall (a)make the CaFE Service available to Client in accordance with this Agreement, (b)provide Support as described in
Attachment 1 and other services as described in that Attachment, and (c)perform Financial Transaction Assistance, if
applicable, in accordance with Attachment 2. WESTAF's General Terms of Service means those terms of service published
online at https://www.westaf.org/termsandconditions.html and available through the CaFE website as such terms may
change from time to time.
2.2 Modules. Client's use of and access to the Service includes the following modules:Application and Jury Modules and
Image/Media Management Modules and any future modules added by WESTAF for which is does not charge an additional
fee.
2.3 Access and Use. Subject to the terms and conditions of this Agreement,WESTAF grants to Client, during the Term, a
non-exclusive, non-transferable, limited right to remotely access and use the CaFE Service solely for Client's Contests in
accordance with the Documentation, and the other terms and conditions of this Agreement. Client's right to use the CaFE
Service includes the right to solicit the submission of applications, information and materials from Artists through the CaFE
Service for Contests("Submissions"). Client shall access and use the CaFE Service through (a)the Artist's web interface
provided at callforentry.org and artist.callforentry.org and (b)the administrator web interface, provided at
admin.callforentry.org.
2.4 Service Description.The Service to which access will be provided under this Agreement will be the current release of
the WESTAF web-based service accessed at the URL address set forth in section 2.3, or any other address provided by
WESTAF, and known as CaFETM Service which creates and manages a database to accept applications from and to hold
and manage the data to judge Submissions by Artists for entry into various contests or competitions for the selection of art
for display, acquisition or other use of such art objects by public agencies and other sponsors in online modules which
include a browser interface and data encryption, and as part of the CaFE Service,transmission of, access to and storage of
Client Data.
2.5 Additional Contests; Termination and Extensions of Access Terms. If Client wishes to add additional Contests,
Client will submit a written or electronic request to WESTAF. Upon WESTAF's acceptance of the terms of any such
additional Contest, and payment of applicable fees,WESTAF shall make the CaFE Service available for the additional
Contest on the terms and conditions set forth in this Agreement. If Client wishes to extend the period of an existing Access
Term, it must submit a written or electronic request to WESTAF specifying the requested extension period.The Access
Term will be extended upon WESTAF's approval of Client's requested extension and Client's payment of applicable Fees.
Expiration of an Access Term without an extension of it terminates Client's right to continue to accept Submissions or jury
those Submissions for the Contest related to that Access Term. Client must be in good standing with payments owed to
WESTAF in order to activate a new Contest or to extend an existing Access Term.
2.6 Client Resources. Client shall be solely responsible for, at its own expense, acquiring, installing, and maintaining all
connectivity equipment, internet and network connections, hardware,third party software, and other equipment as may be
necessary for its Users to connect to and obtain access to the Service.
2.7 Users. Each User will be assigned a unique user identification name and password ("User ID")for access to and use of
the CaFE Service(a"User Account"). Client is responsible for ensuring the security and confidentiality of its User IDs, as
well as all activities that occur under Client's User Accounts. User IDs may not be provided to any individual who is not a
User.Access to the CaFE Service cannot be shared with anyone other than Client's Users and Artists. WESTAF is not
responsible for the consequences of: (a)any unauthorized access to or alteration of any of the following caused by Client or
its failure to prevent unauthorized access to the Service: (i)Client's transmissions or data, (ii)any material, information or
data sent or received through the Service, regardless of whether the data is actually received by WESTAF, or(iii)any
financial transactions entered into through the CaFE Service or(b)Client's failure to abide by this Agreement. Client will
use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify WESTAF promptly
of any such unauthorized access or use known to Client. Client agrees to submit accurate, current, and complete
information to CaFE and promptly update such information. Should CaFE suspect that such information is untrue,
inaccurate, not current, or incomplete,WESTAF shall have the right to suspend Client's use of the Service pending
resolution or termination of this Agreement.
2. 8 User Conduct. Client agrees to abide by all applicable local, state, national and foreign laws,treatises and regulations
in connection with the CaFE Service. Client agrees not to use and not to permit its Users or any third party to use the
Service to: (a)send unsolicited or unauthorized advertising, promotional materials,junk mail, spam, chain letters, pyramid
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schemes, or any other form of unsolicited messages,whether commercial or otherwise; (b)harvest, collect, gather or
assemble information or data regarding other users,without their consent; (c)transmit through or post on the Service any
material which is unlawful, libelous, abusive, harassing, tortious, defamatory,threatening, or invasive of another's privacy;
any material,which in WESTAF's sole discretion it determines, is harmful, vulgar, obscene or otherwise objectionable; or
any material,which in WESTAF's sole discretion it determines, is harmful to minors in any way; (d)transmit any material
that may infringe or violate the intellectual property rights or other rights of third parties, including trademark, copyright, or
right of publicity; (e)transmit any material that contains software viruses or other harmful or deleterious computer code; (f)
interfere with or disrupt servers or networks connected to the Service or violate the regulations, policies, or procedures of
such networks; (g)attempt to gain unauthorized access to the Service, other accounts, computer systems or networks
connected to the Service, through password mining or any other means; (h)harass or interfere with another user's use and
enjoyment of the CaFE Service; or(i)commit or aid in the commission of any unlawful or dishonest act, violate any
person's rights, or annoy, harass, harm,threaten or intimidate another person.
2.9 Restrictions on Use. Except as expressly permitted in this Agreement or as otherwise authorized by WESTAF in
writing, Client will not, and will not permit any User or third party to (a)copy,transmit, store, publicly display, modify, adapt,
alter,translate, or create derivative works with respect to the Service, except as required in accordance with this Agreement
and the limitations and restrictions included as part of the Service; (b)sublicense, lease, rent, loan, sell, resell, distribute,
make available or otherwise transfer the CaFE Service or access to or use of the Service to any third party for any purpose,
including to accept Submissions or to manage jury Submissions for any other person or for any other contest, competition,
solicitation or event other than Client's Contests, (c)reverse engineer, decompile, disassemble, or otherwise attempt to
derive the source code for the Service; or(d)otherwise use or copy the Service, or any component of it except as expressly
allowed by this Agreement.
2.10 Client Data. Client or Artists own all Client Data and WESTAF makes no claim of ownership in or to and, except for
access to the Service controlled by WESTAF and its use of Client Data to provide the Service, does not exert any control
over Client Data. Client or Artists have sole responsibility for the accuracy, quality, integrity, legality, reliability,
appropriateness and copyright of all Client Data and WESTAF shall not be responsible or liable for the deletion, correction,
destruction, damage, loss or failure to store any Client Data.WESTAF may access Client's account, including its Client
Data,to provide the Service and as provided for in this Agreement.
3. Fees and Payment.
3.1 Fees.As consideration for use of the CaFE Service and the provision of Support and other services under this
Agreement, Client agrees to pay to WESTAF applicable fees for the CaFE Service for each Contest("Fees"). Current Fee
rates for CaFE services are available on the CaFE website.
3.2 Payment Terms.All Fees for each Contest are due at the time WESTAF accepts the Contest as authorized for use with
the CaFE Service, except for Fees that are set off by and paid to WESTAF against Eligible Entry Fee Payments, as defined
and provided for in Attachment 2. Fees for extending the period of an Access Term are due at the time WESTAF agrees to
extend the Access Term. Client will pay all Fees within thirty(30)days after the date of WESTAF's applicable invoice.
WESTAF reserves the right(in addition to any other rights or remedies WESTAF may have)to suspend or terminate
Client's access to and use of the Service during any period Fees are past due.All payments must be made in U.S. dollars.
All Fees are exclusive of, and Client will pay, all applicable sales, use and other taxes(other than taxes on WESTAF's net
income), export and import fees, customs duties and similar charges applicable to the transactions contemplated by this
Agreement.
4.Term; Termination.
4.1 Term.The term of this Agreement shall be for a period starting on the beginning date of the Access Term identified in
the introductory(first) paragraph of this Agreement, continuing through the ending date of the Access Term last to expire,
including any Access Terms added to this Agreement for additional Contests or extended under Section 2.5, and through
any additional period of time that Client may continue to access all of its Contests both past and present, as set forth in the
Documentation (the"Term").
4.2 Renewals.After the expiration of the initial term or any subsequent term under this Agreement,WESTAF and Client
may renew the services provided for under this Agreement for an additional Term by entering into a written renewal
agreement(a"Renewal"). Fees for renewals accepted by WESTAF shall be at then-current rates for the CaFE Service.
4.3 Termination. Either party may terminate this Agreement if thc othcr party brcachcs any matcrial provision of thc
Agrccmcnt and docs not curt such br ach within thirty(30)days after rccciving providing written notice thereof. This
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Agreement shall also terminate as provided for in Section 5.1 and upon the expiration of the Term.
WESTAF Initial: RV
Client Initial: D.D.
4.4 Effects of Termination. Upon termination of the Term of this Agreement and subject to the last sentence of this Section
4.4, (a)any amounts owed to a party under this Agreement before such termination will be immediately due and payable;
(b)all rights granted in this Agreement will immediately cease to exist; and (c)unless otherwise permitted by WESTAF,
Client must discontinue all use of the CaFE Service and return to WESTAF or destroy all copies of the Documentation in
Client's possession or control. Sections 1, 2, 3,4.3,4.4, 5, 6, 7 and 8 together with any accrued payment obligations and
Attachment 2, if applicable,will survive termination of the Term of this Agreement for any reason.
5.Warranty Disclaimer.
5.1 Performance. During the Term,WESTAF warrants that the CaFE Service,when used as permitted by WESTAF and in
accordance with the instructions in the Documentation,will operate substantially as described in the Documentation (the
"Performance Warranty").WESTAF does not warrant Client's use of the CaFE Service will be error-free,timely, or
uninterrupted.WESTAF will, at its own expense and as its sole obligation and Client's exclusive remedy for any breach of
this Performance Warranty, use reasonable commercial efforts to correct any reproducible material error in the CaFE
Service reported to WESTAF by Client in writing during the Term, or, if not possible to do so within a reasonable period of
time or at a reasonable cost, return to Client the unearned portion of any Fees paid by Client and this Agreement will be
deemed terminated.
5.2 Disclaimers.THE EXPRESS WARRANTIES IN SECTION 5.1 AND SECTION 8.1 ARE IN LIEU OF AND WESTAF
HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE CAFE
SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTION 5.1 AND SECTION 8.1,ACCESS
TO AND USE OF THE CAFE SERVICE, IS PROVIDED"AS IS"AND WITH ALL FAULTS.
6. Client Liability.Client's liability and obligations to WESTAF for use of the Service shall include, in addition to any other
remedies provided for by law or in equity: (a)liability for any damages incurred by WESTAF, other than as limited by
Section 7 of this Agreement, arising from Client's breach of this Agreement and (b)except to the extent a breach of the
Performance Warranty is the cause of WESTAF's damages, liability for damages,whether characterized as direct
(excluding exemplary and punitive damages), indirect, special, consequential, incidental or otherwise,for any harm caused
to or incurred by WESTAF through Client's use of the Service, including, but not limited to, any costs, reasonable attorney's
fees, or judgments incurred by WESTAF from any claims brought against it by any third party who entered a Contest,was
denied entry to a Contest, or whose work of art was submitted to Client as part of a Contest.
7. Limitation of Liability. EXCEPT AS PROVIDED FOR IN CLAUSE (B)OF SECTION 6, IN NO EVENT WILL EITHER
PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES,
INCLUDING ANY LOST DATA AND LOST PROFITS,ARISING FROM OR RELATING TO THIS AGREEMENT OR THE
USE OR AVAILABILITY OF THE CAFE SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. WESTAF'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND
THE CAFE SERVICE,WHETHER IN CONTRACT OR TORT OR OTHERWISE,WILL NOT EXCEED THE AMOUNT OF
FEES PAID TO WESTAF DURING THE TWELVE (12)MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO
SUCH LIABILITY.
8. Security and Privacy
8.1 Security Standards.WESTAF warrants that the CaFE Service will be compliant with Payment Card Industry Data
Security Standards("PCI DSS Compliant"). If the CaFE Service is not PCI DSS Compliant,then WESTAF shall do the
following as Client's sole remedy: (a)defend the Client against any third party claims arising out of and proximately caused
by the failure of the CaFE Service to be PCI DSS Compliant to the extent such a defense is actually covered by any policy
of insurance in effect for WESTAF's benefit, and (b)indemnify and hold harmless the Client from all damages(other than
consequential and indirect damages), including claims by third party claimants, arising out of and proximately caused by the
CaFE Service not being PCI DSS Compliant to the extent such damages are actually covered by any policy of insurance in
effect for WESTAF's benefit. WESTAF presently has and will use commercially reasonable efforts to maintain liability
insurance related to security breaches affecting the CaFE Service. The parties intend that WESTAF's obligations and
Client's rights under this Section 8 are limited solely to amounts actually available under policies of liability insurance
maintained by WESTAF.
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8.2 Privacy Policy.Access to and use of the CaFE Service is subject to WESTAF's privacy policy as published online at
www.westaf.org/privacy and available through the CaFE website as such policy may change from time to time.
9. General
9.1 Proprietary Rights.The CaFE Service, CaFE website, and Documentation, and all worldwide Intellectual Property
Rights therein, are the exclusive property of WESTAF.All rights in and to the CaFE Service not expressly granted to Client
in this Agreement are reserved by WESTAF. Client will not remove, alter, or obscure any proprietary notices(including
copyright notices)of WESTAF in the Documentation or included as part of the CaFE Service.
9.2 Advertising and Hyperlinks.Client may enter into correspondence with, purchase goods and/or services, or
participate in promotions of advertisers or sponsors showing their goods and/or services through the Service.Any such
activity, and any terms, conditions,warranties or representations associated with such activity, are solely between Client
and the applicable third party.WESTAF shall have no liability, obligation, or responsibility for any correspondence,
purchase, or promotion between Client and any such third party,.
9.3 Assignment. Neither party may assign or transfer, by operation of law or otherwise, any of its rights under the
Agreement(including the license rights granted to Client to access the CaFE Service)to any third party without the other
party's prior written consent,which consent will not be unreasonably withheld or delayed; except that either party may
assign this Agreement,without consent but upon written notice,to any successor to all or substantially all its business or
assets to which this Agreement relates,whether by merger, sale of assets, sale of stock, reorganization or otherwise.An
assignment by Client may increase Fees if it results in a change in Contest terms accepted by WESTAF.Any attempted
assignment or transfer in violation of this Section will be null and void.
9.4 Force Majeure. Except for any payment obligations, neither party shall be liable for any delay in performing or failing to
perform obligations resulting from acts of God, inclement weather,fire, explosion,floods, or riots or civil disturbances.
9.5. Export Control.WESTAF controls and operates this Service from its location in the United States and is subject to the
United States Export Administration Laws and Regulations.WESTAF makes no representation that the Service is
appropriate or available for use in other locations. If Client uses the Service from outside the United States, Client is solely
responsible for compliance with all applicable laws, including without limitation, export and import regulations of other
countries.Any use of the Service contrary to United States law is prohibited. Client shall comply strictly with all U.S. export
laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
9.6 Notices.All notices, consents, and approvals under this Agreement must be delivered in writing by courier, by
electronic facsimile(fax), electronic mail, or by certified or registered mail, (postage prepaid and return receipt requested)to
the other party at the address set forth beneath such party's signature to this Agreement and will be effective upon receipt
or when delivery is refused. Either party may change its address by giving written notice of the new address to the other
party.
9.7 Governing Law and Venue.
9.7.1 In General. Except as provided for in Section 9.7.2,this Agreement will be governed by and interpreted in
accordance with the laws of the State of Colorado,without reference to its choice of laws rules.Any action or proceeding
arising from or relating to this Agreement shall be brought in a federal or state court in Denver, Colorado, and each party
irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
9.7.2 Governmental Entities. If Client is a governmental entity or agency,then this Agreement will be governed by
and interpreted in accordance with the laws of the state under which Client is organized or created without reference to
such state's choice of laws rules.Any action or proceeding arising from or relating to this Agreement shall be brought in a
federal or state court in such state in a judicial district in which Client's executive offices are located and each party
irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
9.8 Remedies. Except as exclusive obligations and remedies are expressly provided for in this Agreement,the parties'
rights and remedies under this Agreement are cumulative. Client acknowledges that the CaFE Service contains valuable
trade secrets, Intellectual Property, and other proprietary information of WESTAF, that any actual or threatened breach of
Section 2 of this Agreement will cause immediate and irreparable harm to WESTAF for which monetary damages would be
an inadequate remedy, and that injunctive relief without necessity of any bond being posted or proof or irreparable harm
being required is an appropriate remedy for such breach. If any legal action is brought by a party to interpret or enforce this
Agreement,then the prevailing party will be entitled to receive from the other party its reasonable attorneys'fees and court
costs, in addition to any other relief it may receive.
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9.9 Waivers.All waivers must be in writing.Any waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.10 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to
accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining
provisions will continue in full force and effect. Without limiting the generality of the foregoing, Section 7 will remain in effect
notwithstanding the unenforceability of any provision in Section 5.2 or Section 8.1 of this Agreement.
9.11 Construction.The headings of Sections of this Agreement are for convenience and are not to be used in interpreting
this Agreement.As used in this Agreement, the word "including"means"including but not limited to"and references to
"Sections"and"Attachments,"without further modification refer to the Sections and Attachments to this Agreement.
9.12 Entire Agreement.This Agreement(including all attachments, and Town of Avon's Municipal Addendum A)
constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or
contemporaneous agreements, understandings, and communication,whether written or oral.The terms of any purchase
order or similar document submitted by Client to WESTAF concerning this Agreement or the CaFE Service will have no
effect.
WESTAF Initial: RV
Client Initial: D.D.
9.13. Modification.This Agreement may be amended or modified only upon written consent of both parties.
10.Attachments.There are two Attachments to this Agreement,Attachments 1 and 2, (each referred to as an
"Attachment"and its number).Attachment 1 is part of this Agreement, and Attachment 2 is part of this Agreement only if a
fee is required for an applicant to apply to any Contest.All Attachments which are a part of this Agreement are incorporated
into this Agreement as if set forth in full in this Section 10.Words used in an Attachment that are not defined in the
Attachment have the meaning given to them in this Agreement.
The duly authorized representatives of WESTAF and Client have executed this Service Agreement as of the Effective Date.
CLIENT: Town of Avon VENDOR:WESTAF(Western States Arts Federation)
Signature: DClh i Vaupsey Signature: ,\\
Name: Danita Dempsey � Name: Raquel Vasquez
Title: Cultural,Arts&Special Events Manager Title: Program Manager, CaFETM
Address: P.O. Box 975,Avon, CO 81620 Address: 1888 Sherman St, Ste 375 Denver, CO 80203
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ATTACHMENT 1
SETUP AND SUPPORT
1.Setup Services and Training.WESTAF will provide the services necessary to assist and train Client to integrate Client's Contest-
related information with the Service and in the basic functioning of the CaFE Service, consisting of standard training,web-based
documentation, and standard technical support as defined in Section 2 of this Attachment. Client shall assign and have available a
project coordinator and sufficient personnel to assist in the timely and orderly implementation of the Service. Standard training shall be
provided to no more than two of Client's personnel, in one joint session,which may or may not include representatives of other clients,
shall be conducted through electronic communication and email support, or a combination of each as determined by WESTAF.
Additional training beyond the standard setup training can be purchased at WESTAF's then-current standard rate of$100 per hour.
2.Support.
2.1 Standard technical support is provided Monday through Friday(U.S. national holidays excepted)from 8:30 a.m.through 5:00 p.m.
Mountain Time(a"business day")and consists of email support and telephone support(within the U.S. and Canada)during the Term.
Extended technical support will only be provided and arranged if mutually agreed upon by WESTAF and Client at WESTAF's then-
current standard rates. Standard technical support may include, at CaFE's discretion, support through a sponsored listserv.
2.2 WESTAF will respond to 90%of support requests received between 8:30 a.m. and 1:00 p.m.on the same business day and to
90%of support requests received between 1:00 p.m. and 5:00 p.m. on the next business day between 8:30 a.m. and 1:00 p.m. and will
respond to all support requests no later than two business days of receiving a request.
2.3 After receiving standard training, Client's support is limited to one hour per business day, but no more than two hours per week and
three hours per month for the first three months and,thereafter,to no more than one hour per day and two hours per month.
2.4 Support does not include any on-site technical support or any assistance to Client in its use and operation of the CaFE Service
beyond those services included as part of WESTAF's standard setup services.Any additional services may be provided based on
mutual scheduling between WESTAF and Client at WESTAF's then-current standard rates and terms.
2.5 CaFE management provides Client with a User Manual that outlines all functionality of CaFE. The User Manual should be
referenced prior to Client calling for technical support.
I have read and understand: D.D.
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ATTACHMENT 2
FINANCIAL TRANSACTION SERVICE
If Client requires a fee from Artists in order to apply to Client's Contest, Client agrees to accept and pay for the following services from
WESTAF for the collection and processing of payments with respect to its Contest(s)through the CaFE Service as set forth in this
Attachment(the"financial transaction services")and WESTAF agrees to provide the financial transaction services to Client with
respect to Client's Contest(s)as set forth in this Attachment. Undefined terms used in this Attachment have the meaning given to them
in the CaFE Service Agreement(to which this Attachment is attached) (the"Agreement").
1.Service. In order to facilitate Client's use of the CaFE Service, WESTAF will act as Client's collection agent as provided for in this
Attachment for the purpose of collecting and remitting to Client all application, imaging,jurying and other fees due from the Artists who
both submit applications to participate in the Client's Contest(s)and make payment of the associated Fees to Client through a credit
card payment made by accessing the CaFE Service("Eligible Artist Payments").
2.Available Merchant Account.All Eligible Artist Payments shall be made, captured, and credited to the Designated Merchant
Account, as defined below, using the protocols and systems provided for by WESTAF as part of the CaFE Service.The Designated
Merchant Account shall be a VISA or MasterCard merchant account maintained directly between WESTAF and a financial institution.
3.Agent Only.WESTAF is acting as Client's limited agent in collecting Eligible Artist Payments and has no obligation to undertake any
effort to collect Eligible Artist Payments other than, as part of the CaFE Service,to create and maintain protocols which are standard in
the industry for the collection of credit card payments through web-based software and, subject to the terms of this Attachment,to
remit to Client all such payments which are captured through such protocols.
4.Term of Agency. WESTAF shall act as Client's limited collection agent for the Term and, thereafter, only as agreed to between
WESTAF and Client.
5. Ultimate Collection Not Guaranteed.WESTAF promises to act in a commercially reasonable manner in acting as Client's limited
collection agent and makes no promise, representation, or warranty of collection or the collection of any actual Eligible Artist Payment
or any specific amount of such payments.
6.Charge Backs. If an Eligible Artist Payment is credited to the Designated Merchant Account and later,through no fault of WESTAF,
the credit is reversed or a charge is made to the Designated Merchant Account because a previous credit for an Eligible Artist Payment
is disallowed (a"Charge Back"),then WESTAF shall have no obligation to remit the involved Eligible Artist Payment to Client or, if
previously remitted to Client, shall have the right to charge future remittances due to Client in the amount of the involved Charge Back
or, if no further remittances are due Client,to charge Client for the amount of the involved Charge Back,which amount shall then be
due and payable as other Fees are due and payable under the Agreement.
7. Financial Transaction Services Fee. For its services in acting as Client's limited collection agent and otherwise providing financial
transaction services, WESTAF shall be entitled to charge Client and withhold from remittances of Eligible Artist Payments an amount
equal to three and 25/100th percent(3.25%)of all Eligible Artist Payments processed by WESTAF through the CaFE Service (the
"Financial Transaction Service Fee").The Financial Transaction Service Fee is inclusive of per-transaction and percentage fees
charged by the financial institutions and third-party payment service providers providing the Designated Merchant Account, except to
the extent that any financial institutions or third-party payment service providers providing the Designated Merchant Account increases
its per-transaction fee to WESTAF or increases any service charge or merchant fee which is a function of the amount of collected
payments(a"percentage fee")after the date of the Agreement, then the amount of such increased per-transaction fee over the per-
transaction fee paid by WESTAF on the date of the Agreement shall be added to the Financial Transaction Service Fee and the
increased percentage fee over the percentage fees incurred by WESTAF as of the date of the Agreement shall be charged to Client by
WESTAF adding those increased percentage fees to the Financial Transaction Service Fee.
8. Payments of Amounts Due WESTAF.All Fees and the Financial Transaction Services Fees due to WESTAF shall be set off by
WESTAF against the Eligible Artist Payments collected by WESTAF and if not set off against such payments shall be due and payable
from Client to WESTAF as other Fees are due and payable under the Agreement.
9. Remittances.WESTAF shall remit to Client the net amount of the Eligible Artist Payments collected by WESTAF within thirty(30)
days of the close of the application period for Client's Contest(s), or sooner or more often if mutually agreed to in writing, by check or
other means as mutually agreed to by Client and WESTAF.As used in this subparagraph,the"net amount of the Eligible Artist
Payments" means the gross amount of Eligible Artist Payments collected by WESTAF during the applicable period, less all Fees and
other outstanding balances then owed to WESTAF and Charge Backs and the Financial Transaction Service Fees incurred in the
period during which those Eligible Artist Payments have been collected by WESTAF.
I have read and understand: D.D.
Document Ref:PBHUU-GSV84-GHDJL-L7VLE Page 8 of 12
DOCUMENT EXPIRES ON Mar 05,2021
Choose your payment option
I am paying upfront by Check for this pricing plan: Small Plan
If paying by card,you will be emailed an invoice to pay online.
Make checks payable to WESTAF and mail to 1888 Sherman St, Ste 375,Denver, CO 80203.
Payment must be received prior to setup and activation.All other fees due will be auto-deducted at the end of the call,if applicable.
Delay in payment may result in delayed processing and activation.
Select your plan below
Service Price Qty Subtotal
Set Up and Activation Fee $175.00 1 $175.00
Base cost. Includes onboarding,training,and access to account.
SMALL PLAN $300.00 1 $300.00
Base cost. Includes one(1)application module.
Additional Post-deadline Fees per Call
• $2.00 Per Application Received
• $3.00 Per Audio and Video Media Received
STANDARD PLAN $525.00 1 $525.00
Base cost. Includes one(1)application module.
Additional Post-deadline Fees per Call
• $2.00 Per Application Received over 250
Purchase additional calls and get 50.00 off per call.
Calls must be used within the next 12 months and do not rollover.
Optional Add-ons
Additional terms are applicable.
L Smart CallTM $225.00 1 $225.00
Starting rate to have CaFE input your call for entry details,per call
Letters of Reference Module $200.00 1 $200.00
Enable feature to accept confidential letters of reference,per call
Additional Training and Support $100.00 $100.00
Starting rate for up to 60 minutes of support time.
This is not a bill. I understand I will approve the invoiced amount before payment. D.D.
Estimate $475.00
Notes
• Additional calls may be purchased anytime during the term.
• All plans have an effective 12 month term.Annual renewals enjoy continued access and service benefits.
• Expired and closed accounts can re-subscribe by selecting a current pricing plan.
• Unused calls do not roll over to the next term and are non-refundable.
• All plans include up to 20 media per applicant,6 of which may be audio or video media.
• All plans include a 3.25%Service Transaction Fee of Eligible Entry Fee payments processed by CaFE.
Document Ref:PBHUU-GSV84-GHDJL-L7VLE Page 9 of 12
DOCUMENT EXPIRES ON Mar 05,2021
CUSTOMER INFORMATION
Contact and Billing Information
Primary Contact Danita Dempsey
Organization Town of Avon
Website avon.org
Email ddempsey@avon.org Phone 970-748-4065
Enter below name of person to receive invoices,statements, and remittance payments.
Remittance check payments are made payable only to authorized Client.
Billing Contact Danita Dempsey
Organization Town of Avon
Email ddempsey@avonlorg Phone 970-48-4065
Mailing Address P.O. Box 975
City Avoon State CO Zip 81620
Remittances
Will you be charging an entry fee? No If you answer yes, be sure billing address is correct.
Document Ref:PBHUU-GSV84-GHDJL-L7VLE Page 10 of 12
DOCUMENT EXPIRES ON Mar 05,2021
TOWN OF AVON MUNICIPAL ADDENDUM A
Municipal Addendum A:
1. No Waiver of Governmental Immunity: Nothing in this Agreement shall be construed to waive,limit,or otherwise modify any governmental immunity that may
be available by law to the Client,its officials,employees,contractors,or agents,or any other person acting on behalf of the Client and,in particular,governmental
immunity afforded or available pursuant to the Colorado Governmental Immunity Act,Title 24,Article 10,Part 1 of the Colorado Revised Statutes.
2. Affirmative Action: WESTAF will not discriminate against any employee or applicant for employment because of race,color,religion,sex or national origin.
WESTAF will take affirmative action to ensure applicants are employed,and employees are treated during employment without regard to their race,color,religion,
sex or national origin. Such action shall include,but not be limited to the following: employment,upgrading,demotion or transfer;recruitment or recruitment
advertising;layoff or termination;rates of pay or other forms of compensation;and selection for training,including apprenticeship.
3. No Third Party Beneficiaries:Nothing contained in this Agreement is intended to or shall create a contractual relationship with,cause of action in favor of,or
claim for relief for,any third party,including any agent,sub-consultant or sub-contractor of WESTAF.Absolutely no third party beneficiaries are intended by this
Agreement. Any third-party receiving a benefit from this Agreement is an incidental and unintended beneficiary only.
4. Article X,Section 20(TABOR):The parties understand and acknowledge that Avon is subject to Article X,Section 20 of the Colorado Constitution('TABOR").
The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement.It is understood and agreed that this Agreement
does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and,therefore,notwithstanding anything in this
Agreement to the contrary,all payment obligations of the Avon are expressly dependent and conditioned upon the continuing availability of funds beyond the
term of the Avon s current fiscal period ending upon the next succeeding December 31. Financial obligations of Avon payable after the current fiscal year are
contingent upon funds for that purpose being appropriated,budgeted,and otherwise made available in accordance with the rules,regulations,and resolutions of
Avon,and other applicable law.Upon the failure to appropriate such funds,this Agreement shall be terminated.
5. Governing Law,Venue and Enforcement: This Agreement shall be governed by and interpreted according to the law of the State of Colorado.Venue for any
action arising under this Agreement shall be in the appropriate court for Eagle County,Colorado. The Parties agree that the rule that ambiguities in a contract
are to be construed against the drafting party shall not apply to the interpretation of this Agreement.
6. Survival of Terms and Conditions: The parties understand and agree that all terms and conditions of the Agreement that require continued
performance,compliance,or effect beyond the termination date of the Agreement shall survive such termination date and shall be enforceable in the event
of a failure to perform or comply.
7. Assignment and Release: All or part of the rights,duties,obligations,responsibilities,or benefits set forth in this Agreement shall not be assigned by
WESTAF without the express written consent of Avon. Any written assignment shall expressly refer to this Agreement,specify the particular rights,duties,
obligations,responsibilities,or benefits so assigned,and shall not be effective unless approved by Avon.No assignment shall release the Applicant from
performance of any duty,obligation,or responsibility unless such release is clearly expressed in such written document of assignment.
8. Severability: Invalidation of any of the provisions of this Agreement or any paragraph,sentence,clause,phrase,or word herein or the application thereof in
any given circumstance shall not affect the validity of any other provision of this Agreement.
9. Incorporation of Documents: Unless otherwise stated in this Agreement,all exhibits,applications,or documents referenced in this Agreement,shall be
incorporated into this Agreement for all purposes. In the event of a conflict between any incorporated exhibit and this Agreement,the provisions of this
Agreement shall govern and control.
Document Ref:PBHUU-GSV84-GHDJL-L7VLE Page 11 of 12
DOCUMENT EXPIRES ON Mar 05,2021
WESTAF SECTION ONLY
INITIAL PAYMENT
Upfront cost for service.
PLAN TYPE: Small Plan CONTRACT ID: 2021CAFE1655C01
Fee Type Amount Disc Payment Status Details
4410 Setup and Access Fee 175.00 Card Paid upfront 2021-274
4420 App Mod Fee 300.00- 1 call Card Paid upfront 2021-274
4440 Per Artist/Media Fee Not Collecting Rev...
4900 Other
(support,smart call,letters of ref)
FINANCE INITIALS: `.eu.4/24/24
CaFE Notes: Finance Notes:
ADDITIONAL PAYMENTS
For each new additional purchase, insert a new cost table below.
INSTRUCTIONS:Click the+sign,go to Content Library,choose New Cost Table.
Document Ref:PBHUU-GSV84-GHDJL-L7VLE M Page 12 of 12
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PLAN TYPESmall Plan CONTRACT ID2021CAFE1655C01
Fee Type Amount Disc Payment Status Details
4410 Setup and
Access Fee
4420 App Mod Fee 300.00 50.00 Card Paid Upfront 2021-320
4440 Per Artist/Media Not collecting rev.
Fee
4900 Other
(support,smart call,letters of ref)
TODAY'S DATE:01 / 26 / 2021
FINANCE INITIALS.4/28/2024
Notes:
PLAN TYPE: Small, Standard, or Access-only
CONTRACT ID: 15-digit number
Amount: $ + Qty. Cost before discount eg. 1050.00 (2 calls)
Discount: % or$
Payment: Auto-deduct, Card, Check, Waived, N/A
Status: Auto-deduct, Paid upfront, Awaiting Check, Waived, N/A
Details: Inv. # PP/CH/GP