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1.1. Presenter and Host welcome you to Presenter’s community engagement portal at https://embarcaderoseawall.us.engagementhq.com (the “Site”). While all of the questions, surveys, forums, chat rooms, and other Content (defined below) on the Site is provided and controlled by Presenter, the Host owns and operates the Site and the underlying technology and software used to operate the Site. On the Site, you will be able to engage and communicate with Presenter and other interested parties.
2.2. Before you access the Site, it is important that you understand and agree to the TOU.
2.3. We may change the TOU from time to time without prior notice to you, but we will indicate there is an updated TOU by posting it to the Site and including a revised effective date
2.4. Please contact us at firstname.lastname@example.org, or 1434 Spruce Street, Suite 100, Boulder CO 80302 USA, if you see any activity or content that violates the TOU.
3.2. By using the Site, you agree that the Host and any of its subsidiaries or affiliates and any of their employees, directors, or agents are not responsible for:
a) The accuracy, completeness, appropriateness, or legality of the Content displayed or omitted from the Site or Linked Sites;
b) Any person's reliance on the Content presented on the Site or on Linked Sites;
c) Any loss in connection with the use of the Site or any Linked Site.
3.3 You have no expectation that your Content will be published on the Site.
4.1. In order to register for an account on the Site, you must be the older of: (a) 14 years and (b) the age required by law where you live to form a binding contract with Host. Note that you can browse the Site without registering, but you may not have access to all features and functionality. You will:
a) submit only true, accurate, current and complete information about yourself as prompted by the Site's registration procedure (the “Registration Data”); and
b) maintain and regularly update the Registration Data to keep it true, accurate, current and complete.
4.2. If you provide any information that is untrue, inaccurate, not current or incomplete, or we suspect that you have provided such information, we may suspend or terminate your account and refuse any and all current or future use of the Site, or part of it.
6.1. After you complete the user registration process at the Site, you will receive a user password and account name to access the Site. You:
a) are fully responsible for maintaining the confidentiality of your password and account;
b) are fully responsible for all activities that occur under your password or account;
c) must immediately notify Host if you are aware or suspect any unauthorized use of your password or account or any other breach of security;
d) must create no more than one user account at the Site;
6.2. We, or our agents, may require access to your user account to respond to service or technical issues.
6.3. We may communicate with you through your user account by sending messages, newsletters, and other information.
7.1 You understand and agree that:
a) all Content is the sole responsibility of the person who made the Content available, and you are solely liable and responsible for all Content you submit or upload to the Site;
b) you are prohibited from advertising or offering to sell or buy any goods or services.
c) you shall not:
i. post Content that: (a) infringes any patent, trade mark, trade secret, copyright or other proprietary rights of any party; (b) violates applicable law or is illegal; or (c) violates any third-party’s right, including right to privacy;
ii. transmit Content that is or includes unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," surveys, contests or any other form of solicitation;
iii. transmit Content that contains software viruses, trojan horses, worms, time bombs, cancelbots or any other computer code, files or programs designed to or that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
iv. transmit Content that harms minors in any way;
v. impersonate any person or entity, including without limitation a Bang the Table representative or another user of the Site, or falsely state or otherwise misrepresent your affiliation with a person or entity;
vi. create a false identity for the purpose of misleading others as to your identity or the originator of a message;
vii. interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site;
7.2. You also acknowledge and agree that:
a) we and our designated agents have the right (but not the obligation), in our sole discretion, to review and monitor Content you post on the Site, and we may refuse to post or remove, in our sole discretion, any Content that is available via the Site, including if it violates our Moderation Rules (see below). In some cases, Presenter has the right to review and approve Content before it is included on the Site. Note that neither we nor Presenter edit your Content.
b) you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, appropriateness, or usefulness of such Content.
c) all Content you provide will be seen by Presenter and may be made publicly available, subject to applicable open records laws.
7.3. You agree to and shall comply with our moderation rules for the Site, which can be found at https://embarcaderoseawall.us.engagementhq.com/moderation (“Moderation Rules”)
7.4. By accessing the Site, you expressly agree that: (a) the Site is not a public forum; and (b) the Content you post on the Site does not constitute protected speech under the First Amendment of United States Constitution.
8.1. You shall indemnify and hold Host, and its subsidiaries, affiliates, officers, agents, cobranders and other partners, and employees harmless from, and at Host’s request, defend any or all of the foregoing against, any claim, cause of action, proceeding or demand and all related costs, expenses, damages, and other liabilities, including reasonable legal fees, related to or arising out of:
a) Content you submit, post to or otherwise transmit through the Site;
b) Your use of or connection to the Site;
c) Your violation of the TOU; or
d) Your violation of any other's rights or applicable law.
9.1 You agree that Host has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Site.
9.2 You acknowledge and agree that Host:
a) is entitled to log off any account that is inactive for an extended period of time; and
b) may, in its absolute discretion, with or without notice to you, delete, modify or otherwise deal with any Content stored at the Site and any of your user profile information or account at the Site.
10.1. We reserve the right at any time and from time to time to modify or discontinue access to the Site (or any part), with or without notice, temporarily or permanently without liability to you or to any third party.
11.1. You agree that Host may, in its sole discretion and with or without notice to you, terminate your password, account or use of the Site (or any part), and remove and discard any Content within the Site for any reason including without limitation, where a breach of copyright has been reported.
11.2. You agree that Host may in its sole discretion and at any time discontinue providing the Site, or any part, to you with or without notice, and without liability to you or any third parties.
11.3. You agree that termination of your access to the Site under any provision of these TOU may occur without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/ or bar any further access to such files or the Site.
11.4. If your account or access to the Site is terminated for any reason, you must immediately cease using the Site. Termination does not affect any of our accrued rights or liabilities.
12.1. Your communications or dealings with Presenter and third parties via the Site are solely between you and the relevant third parties.
12.2. You agree that Host is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Site.
13.1. You acknowledge and agree that:
a) the Site and any necessary software used in connection with the Site, including but not limited to the software known as Engagement HQ™, contain proprietary and confidential information protected by applicable intellectual property and other laws, and all of the foregoing is owed by Host; and
b) the Content presented to you via the Site or via third parties may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
13.2. Except as expressly authorized by Host, you shall not modify, rent, lease, loan, sell, distribute or create derivative works based on the Site, in whole or in part.
13.3. You shall not access the Site by any means other than through the website and interfaces that are provided by Host for use in accessing the Site.
13.4. You hereby grant Host a nonexclusive, perpetual, irrevocable, royaltyfree, paidup right and license to: (a) use your name or user/screen name and Content you post for Host’s business purposes, including on Host’s publicly facing website; and (b) sublicense your Content to Presenter for its business purposes.
14.1. You expressly understand and agree that:
a) Your access and use of the site is at your sole risk;
b) The site and all content is provided on an "As is" and "As available" basis.
14.2. To the fullest extent allowed by applicable law, we expressly disclaim all warranties of any kind arising from or related to the site or content, whether express or implied, including without limitation all implied warranties of merchantability, fitness for a particular purpose, title and noninfringement.
14.3. We make no warranty that:
a) the Site or Content will meet your requirements;
b) the Site will be uninterrupted, timely, secure, or error free;
c) the Content or other results that may be obtained from the use of the Site will be accurate or reliable;
d) the quality of any Content, products, services, information, or other material discussed on or introduced to you through the Site will meet your expectations; and
e) any errors in the Software will be corrected.
14.4. Any Content downloaded or otherwise obtained through the use of the Site is done at your own discretion and risk and you are solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
14.5. No advice or information, whether oral or written, obtained by you from us or through or from the Site shall create any warranty not expressly stated in the TOU.
15.1. To the maximum extent permitted by applicable law, we, our affiliates and the employees, directors, officers, and agents of each of the foregoing will not be liable for any indirect, incidental, special, consequential, or exemplary damages, economic or other loss or damage, including lost profits or revenues whether and even if we have been advised of the possibility of such damages, arising out of this agreement or the site, including, without limitation, in respect of:
a) The use of, or the inability to use the site;
b) Unauthorized access to or alteration of your transmissions or data;
c) Statements or conduct of any third party on the site; or
d) Any other matter relating to the site
e) You specifically acknowledge that we shall not be liable for user submissions or the defamatory, offensive, or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with you.
15.2. In no event will our aggregate liability to you arising from or related to the site or this tou exceed $50 u.S.
15.3. The limitations of this section 15 shall apply to any theory of liability, whether based on warranty, contract, statute, tort (including negligence) or otherwise, and whether or not we have been informed of the possibility of any such damage, and even if a remedy set forth herein is found to have failed of its essential purpose
16.1. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. So some of the limitations in the TOU may not apply to you.
17.1. If you wish to contact Host, please email us at email@example.com.
17.2. We may also provide notices of changes to the TOU or other matters by displaying notices or links to notices to you generally on the Site.
18.1. The Bang the Table trade mark, and other Bang the Table logos and product and service names, are trademarks of Bang the Table (the Bang the Table Marks).
18.2. You agree not to display or use the Bang the Table Marks in any manner without our prior permission.
19.2. Presenter complies with the Digital Millennium Copyright Act (“DMCA”). We will terminate copyright infringers when legally required or appropriate.
19.3. As used in this clause 19, information includes but is not limited to data, text, photographs, drawings, sound recordings, feedback, and any other information or data displayed or presented by you on the Site.
20.2. You will be subject to additional terms and conditions that may apply when you use the Linked Sites, affiliate services, third-party content or third-party software.
20.3. The TOU and the relationship between you and us is governed by the laws of the State of Colorado without regard to its conflict of law provisions. Any dispute or claim relating in any way to your use of the Site will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this TOU. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
20.4. Our failure to exercise or enforce any right or provision of the TOU must not be treated as a waiver of the right or provision.
20.5. If any provision of the TOU is found by a court of competent jurisdiction to be invalid, then such provision is deemed deleted, but the court should try to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOU shall remain in full force and effect.
20.6. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or the TOU must be filed within one (1) year after the claim or cause of action arose, or be forever barred.
20.7. Your rights and obligations under the TOU are personal and may not be assigned or dealt with in any way without our permission, and which may be withheld in our absolute discretion.
20.8. Headings in the TOU are for convenience only and do not affect interpretation.