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Ember & Ink MEMBERSHIP TERMS OF USE AGREEMENT

Acceptance of the Terms of Use

These terms of use are entered into by and between You and Paint Yourself Silly LLC, dba: Ember & Ink (the "Company”).  The following terms and conditions govern your membership to and use of the Company’s building, equipment, programs, events, website, resources, and services (collectively the "Terms of Use"). 

Please read these Terms of Use carefully before agreeing to become a member of the Ember & Ink.  By clicking to accept or agreeing to these Terms of Use, you accept and agree to become a member of the Company and, accordingly, are bound and agree to abide by these Terms of Use and our Policies, found at Ember & Ink’s website and membership hosting services, and incorporated herein by this reference. 

A membership is offered and available to individuals who are at least 18 years of age.  By agreeing to these Terms of Use, you represent and warrant that you are at least 18 years of age. Individuals under the age of 18 are also eligible for membership if the minor’s parent or guardian completes the membership form -and any subsequent liability waivers- on behalf of the minor.

Changes to the Terms of Use

The Company may revise and update these Terms of Use from time to time in its sole discretion.  All changes are effective immediately and apply to all access to and use of the Company’s building, equipment, website, programs, resources, and services.  Following any changes to these Terms of Use, your continued membership in the Company means that you accept and agree to the changes.  You may ask an employee of the Company for a copy of the most current Terms of Use so you are aware of any changes, as they are binding upon you.

Using the Company’s Resources and Account Security

The Company reserves the right to withdraw or amend its equipment, website, resources, and any service or material the Company provides to members, in its sole discretion, without notice.  The Company will not be liable if, for any reason, all or any part of the Company’s equipment, programs, website, resources, or any other service is unavailable at any time or for any period. 

To access certain resources as a member of the Company, you may be asked to provide certain registration details or other information. It is a condition of these Terms of Use that all of the information you provide is correct, current, and complete. You agree that all information you provide to register equipment, website, resources, and any service is governed by these Terms of Use and by our Policies, found on the website and you consent to all actions the company may take with respect to your information, consistent with these Terms of Use and our Policies.

If you choose, or are provided with, a user name, password,  membership identification number, or any other piece of “identifying information” as part of our security procedures, you must treat such information as confidential, and you must not share or disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Company’s equipment, website, resources, and any service or portions of it using your “identifying information”, or other security information. You agree to notify us immediately of any unauthorized access to, or use of “identifying information”, or any other breach of security. You also agree to ensure that you exit from your account at the end of each session or program.  You should use caution when accessing your account from our shared computers so that others are not able to view or record your membership information, or other personal information.

The Company has the right to disable any user name, password, membership identification number, or other identifier, whether chosen by you or provided by the Company, at any time in its sole discretion for any or no reason, including, if, in its opinion, you have violated any provision of these Terms of Use.

Intellectual Property Rights

The Company’s website, programs, patents and patent applications, copyrights, copyright registrations, applications for copyright registrations, copyrightable works, trade secrets, know-how, ideas, inventions, designs, developments, devices, methods and processes, computer software, and all other intellectual property rights are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws (collectively the “Intellectual Property Rights”).

These Terms of Use permit you to use the Company’s Intellectual Property Rights for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the Company’s Intellectual Property Rights.  

The following are acceptable uses of the Company’s Intellectual Property Rights under these Terms of Use:

·         Your personal computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials;

·         You may store files that are automatically cached by your web browser for display enhancement purposes; and

·         You may print or download a reasonable number of pages of the Company’s Intellectual Property Rights for your own personal, non-commercial use, and not for further reproduction, publication, or distribution.

If you print, copy, modify, download or otherwise use or provide any other person with access to any of the Company’s Intellectual Property Rights in breach of these Terms of Use, your right to membership in the Company will cease immediately and you must, at our option, return or destroy any of the Company’s equipment, Membership Contributions, software or materials you have in your possession.  No right, title or interest in or to the Company’s Intellectual Property Rights is transferred to you, and all rights not expressly granted herein are reserved by the Company.  Any use of the Company’s Intellectual Property Rights not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

Prohibited Actions

You may use the Company, its building, equipment, website, resources, and services only for lawful purposes and in accordance with these Terms of Use and the Company’s Policies. In addition, you agree not to use the Company’s building, equipment, website, resources, and services for any of the following reasons:

• In any way that violates any applicable federal, state, local or international law, or regulation;

• For the purpose of exploiting, harming, or attempting to exploit or harm adult persons or minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;

• To send, knowingly receive, upload, download, use or re-use any material which does not comply with these Terms of Use, the Company’s Policies, or the Company’s Technology Borrow Agreement, if applicable;

• To transmit, or procure the sending of, any advertising or promotional material, including any "junk mail", "chain letter" or "spam" or any other similar solicitation;

• To impersonate or attempt to impersonate the Company, a Company officer, director, or employee, another member or any other individual or entity; or

• To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Company, or which, as determined by us, may harm the Company or members of the Company or expose them to liability.

Member Contributions

The Company’s resources, equipment, programs, and services, may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, display, and other interactive features (collectively, "Interactive Services") that allow members to post, submit, publish, display or transmit to other members or other persons (hereinafter, "post") content or materials (collectively the "Member Contributions") on or through the Company’s resources.

Any Member Contribution you post to a Company’s resource will be considered non-confidential and non-proprietary.  By providing any Member Contribution on any of the Company’s resources, program or services, you grant the Company the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material.

You represent and warrant that:

• You own or control all rights in and to your Member Contributions and have the right to grant the license granted above to the Company and Company’s building, equipment, website, resources, and services; and

• All of your Member Contributions do and will comply with these Terms of Use.

You understand and acknowledge that you are responsible for any Member Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.  

The Company is not responsible, or liable to any third party, for the content or accuracy of any Member Contributions posted by you or any other member or individual.

Monitoring and Enforcement; Termination of Membership

                The Company has the right to:

• Remove or refuse to post any Member Contributions for any or no reason in its sole discretion;

• Take any action with respect to any Member Contribution that it deems necessary or appropriate in its sole discretion, including if the Company believes that such Member Contribution violates the Terms of Use, including the Policies, infringes any Intellectual Property Right or other right of any person or entity, threatens the personal safety of members of the Company or the public or could create liability for the Company;

• Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy;

• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Company’s building, equipment, website, resources, and services; or

• Terminate or suspend your membership to the Company without notice, for any or no reason, including without limitation, any violation of these Terms of Use.

Without limiting the foregoing, the Company has the right to fully cooperate with any law enforcement authorities or court order requesting or directing the Company to disclose the identity or other information of anyone violating these Terms of Use.

You waive and hold harmless The Company, its officers, directors or employees, its affiliates, licensees, and service providers (collectively the “Management”) from any claims resulting from any action taken by The Company, or Management during or as a result of its investigations and from any actions taken as a consequence of investigations by either The Company, or Management, or law enforcement authorities.

We cannot and do not undertake to review all material before it is posted on our Interactive Services, and cannot ensure prompt removal of objectionable material after it has been posted.  Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

Content Standards

These content standards apply to any and all Member Contributions and use of Interactive Services.  Member Contributions must in their entirety comply with all applicable federal, state, local and international laws, and regulations. Without limiting the foregoing,

Member Contributions must not:

• Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable;

• Promote explicit or pornographic material, as well as violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or any additional protected characteristics;

·         Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person;

•     Violate the legal rights of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Policies.

•     Be likely to deceive or harass any person;

•     Promote any illegal activity, or advocate, promote or assist any unlawful act;

•     Cause annoyance, inconvenience or needless anxiety to another person; or be likely to upset, embarrass, alarm or annoy any other person;

•     Impersonate any person, or misrepresent your identity or affiliation with any person or organization;

•     Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising; or give the impression that they emanate from or are endorsed by the Company or any other person or entity, if this is not the case.

Reliance on Information Posted

The information presented on or through the Company’s resources, equipment, programs, and services is made available solely for general information purposes. The Company does not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. The Company disclaims all liability and responsibility arising from any reliance placed on such materials by you or any third party, or by anyone who may be informed of any of its contents.

The Company’s resources, equipment, programs, and services may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. The Company is not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

Disclaimer of Warranties

You understand that the Company cannot and does not guarantee or warrant that files available for downloading from the internet or through the Company’s equipment, programs, resources or services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Interactive Services for any reconstruction of any lost data.

The Company will not be liable for any loss or damage caused by viruses or other technologically harmful material that may infect your personal computer, equipment, programs, data, or other proprietary material due to your use of The Company’s resources or any services or items obtained through The Company or to your download of any material through your membership in The Company.

Your use of the Company’s resources and any services or items obtained through your membership in the Company is at your own risk. The Company does not make any warranties of any kind, either express or implied. Neither the Company, nor any person associated with the Company, makes any warranty or representation with respect to the completeness, security, reliability, quality, accuracy or availability of any of the Company’s resources or services.

Without limiting the foregoing, neither the Company nor anyone associated with the Company represents or warrants that the Company’s resources or any services or items obtained through your membership in the Company will be accurate, reliable, error-free or uninterrupted, that defects will be corrected, that the server that makes the Company’s resources and services available are free of viruses or other harmful components, or that the Company’s resources or any services or items obtained through your membership in the Company will otherwise meet your needs or expectations.

The Company hereby disclaims all warranties of any kind, whether express or implied, statutory or otherwise, including but not limited to any warranties of merchantability, noninfringement and fitness for particular purpose. The foregoing does not affect any warranties which cannot be excluded or limited under applicable law.

Limitation on Liability

In no event will The Company, its affiliates, or Management be liable for damages of any kind, under any legal theory, arising out of or in connection with your use, or inability to use, any and all equipment, software, resources, and services made available to you by The Company.  Including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of business, loss of use, loss of data, or any other omission whether caused intentionally or by other member responsibility including negligence, breach of contract, or otherwise, even if foreseeable.  The foregoing does not affect any liability which cannot be excluded or limited under applicable law.

Indemnification

You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms of Use or the Company’s Policies.

Governing Law and Venue

The validity of these Terms of Use, the construction of its terms and the determination of the rights and duties between You and the Company hereto shall be governed by and construed in accordance with the laws of the State of Nebraska. The exclusive venue for any dispute relating to or arising out of this Agreement shall be Lancaster County, Nebraska.

Waiver and Severability

Any term or provision of these Terms of Use that is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of these Terms of Use or affecting the validity or enforceability of any of the terms or provisions of these Terms of Use in any other jurisdiction. If any provision of these Terms of Use is so broad as to be unenforceable, the provision shall be interpreted to be only as broad as is enforceable.

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Makerspace Use Agreement and Waiver and Release of Liability

                To use the facilities and equipment at Ember & Ink (a trade name of Paint Yourself Silly LLC dba. Ember & Ink, hereinafter referred to as “Ember & Ink), visitors age 18 and older (“Adult User”) must review the Use Agreement and Waiver and Release of Liability (the “Agreement”), provide the Adult User information requested in Section 1 below, and sign and comply with the Agreement.

If the Adult User has a legal guardian or other person legally responsible to sign documents, the legal guardian (“Adult Responsible Party”) must review this Agreement, provide the information requested in Section 3 below, and sign the Agreement.

To use the facilities and equipment, a parent or legal guardian (“Minor Responsible Party”) of visitors under 18 years of age (“Minor User”) must review the Agreement, provide the information requested in Sections 2 and 3 below, and sign the Agreement.  Adult and Minor Users are individually and collectively referred to as “User” throughout the Agreement.  The Adult Responsible Party and Minor Responsible party are individually and collectively referred to as “Responsible Party” throughout this Agreement.

It is important that you read this document thoroughly before signing. 

Warning of Risk:  Despite careful and proper preparation of programs and facilities, and instruction, there is still a risk of injury when using facilities and equipment at Ember & Ink.  Understandably, not all hazards and dangers can be foreseen.  

Users of Ember & Ink's facilities and equipment must understand that depending upon the activity, certain risks, dangers, and injuries due to slips and falls, inadequate or defective equipment, failure in supervision or instruction, premises defects, horseplay, carelessness, lack of skill or technique, and all other circumstances inherently exist.

In this regard, it must be recognized that it is impossible for Ember & Ink to guarantee absolute safety. Please read this agreement carefully and be aware that you will be expressly assuming the risk and legal liability and waiving and releasing all claims for injuries, damages, or loss you or your child/ward might sustain as a result of using the makerspace facilities and equipment.

Makerspace Use Agreement and Waiver and Release of Liability

Conditions of Use

By signing below, the User or Responsible Party affirms and agrees that: (1) they are not aware of any health or fitness restrictions that preclude the User’s visit to Ember & Ink and the User is capable of operating the equipment they are requesting, and participating in Ember & Ink activities (as defined below); (2) User agrees to read the Safety/Regulations and Guidelines/Use Policy attached to this Agreement as Appendix “A”, and will read and adhere to any safety notations posted by equipment in the facility (3) User shall comply with all Ember & Ink terms of use and safety procedures, including all policies, guidelines, and instructions; (4) User or Responsible Party shall be responsible to pay any Ember & Ink charges or fees for use of tools, equipment, and materials and for damage, loss, or clean-up of Ember & Ink property, which may be valued and billed to User’s or Responsible Party’s account or by other means, in discretion of Ember & Ink; and (4) all insurance of the User or Responsible Party applicable to any injuries or claims arising out of the use of Ember & Ink facilities (defined below) shall be primary with any applicable business insurance being secondary.

Assumption of Risk

The facilities and equipment at Ember & Ink include, but are not limited to,  3D –(three-dimensional) printing machines, computer equipment, plastic materials, finishing tools and equipment, and other 3D working related items.  Ceramic Kilns, glass fusion kilns, pottery throwing wheels, and other fired arts working related items.  Laser-cutter, heat-press, and smart-cutting machines, as well as their accessories.  Sewing machines, embroidery machines, and their working related items.

Users may work alone or share workspace, tools, and equipment with other Users and/or Ember & Ink staff.  Ember & Ink may require Users to wear specified safety gear, and/or undergo training, but safety gear and training may not always be available without appointment.  Surfaces of floors, work benches, and tables in the area may have debris, dust, liquids, and sharp objects.  While Ember & Ink staff will strive to supervise the facilities, not all activities of User or other Users can be supervised at all times.  All above-referenced and other use of work areas, facilities, tools, and equipment, whether alone or with others, whether supervised or not, and whether performed according to Ember & Ink policies, procedures, and safety rules, or not, shall be referred to as “Makerspace Activities.”  The undersigned User and/or Responsible Party acknowledges, understands and agrees that the Makerspace Activities involve various hazards, dangers, and risks, including without limitation, and by way of example, the risk of trips, slips, and falls; cuts, broken bones, burns, and other wounds to hands, head, feet, eyes, and other body parts; electrical shock; exposure to dust, fumes, smoke, noise, and vibrations; and accidents due to negligence of other users or staff or vendors, or due to defective or inadequate facilities, equipment, tools, machinery, or due to inadequate maintenance or repair, training, instructions, supervision, first aid and medical treatment or safety gear.  The risks also include other risks arising from User’s involvement in the Makerspace Activities, including unpredictable risks and risks inherent in the use of the work areas, facilities, tools, and equipment used in Makerspace Activities.

Each User and/or Responsible Party agrees that such User’s participation in Makerspace Activities involves risks of accidents and serious personal injury and illness, paralysis, permanent disability, and even possibly death, of the User.  All above-referenced risks and other risks arising from the Makerspace Activities are referred to herein as the “Risks.”  The undersigned User and/or Responsible Party, as well as personal representatives expressly acknowledges, accepts and assumes, all Risks associated with the use of the Makerspace facilities and equipment and all Risks arising from the User’s participation in Makerspace Activities, whether those Risks are known or unknown, or are predictable or unpredictable, or are Risks inherent in the Makerspace Activities.

Waiver and Release

I and/or my minor child/ward agree to waive, release and discharge from all liability the Ember & Ink its appointed and elected officials, president and trustees, officers, agents, employees and volunteers, from any and all claims, rights, damages, causes of action and demands of whatsoever kind or nature, whether known or unknown, which I and/or my minor child/ward may have or claim to have, or in any way associated with my own and/or my minor child/ward’s voluntary participation in Makerspace Activities.

Indemnify and Defense, Waiver and Release of all Claims and Assumption of Risk

I acknowledge that there are certain risks of physical injury to attendees in their participation in Makerspace Activities, and I agree to assume full risk of any and all injuries, damages or loss, that I and/or my minor child/ward may sustain as a result of said attendance and/or participation in Makerspace Activities.

I further agree to waive and relinquish all claims I and/or my minor child/ward may have (or accrue to me/us) because of my/our participation in Makerspace Activities against Paint Yourself Silly LLC dba. Ember & Ink, and each of them. I hereby release, waive, and covenant not to sue, and further agree to indemnify, defend and hold harmless Ember & Ink and its Affiliates and each of them with respect to any liability, claim, demand, cause of action, damage, loss or expense (including court costs and reasonable attorney’s fees) of any kind or nature which may arise out of, result from, or relate in any way to my participating in Makerspace Activities, including claims for liability caused in whole or in part by the negligent acts or omissions of the released parties or others.

I further agree that if, despite this Agreement, I, or anyone on my or my minor child/ward’s behalf, makes a claim for liability against any of the released parties, I will indemnify, defend, and hold harmless each of the released parties from any such liabilities which may be incurred as the result of such claim.

I have read and fully understand the above important information, warning of risk, notice, assumption of risk and waiver and release of all claims. I further agree to indemnify, hold harmless and defend Ember & Ink and its Affiliates and each of them, from any and all claims, rights, demands and/or causes of action of whatsoever kind or nature, whether known or unknown, which I and/or my minor child/ward may have or claim to have, arising out of, connected with, or in any way associated with my own and/or my minor child/ward’s participation in Makerspace Activities and any activities related to or associated with said Makerspace Activities.

Claims Against Me and/or My Minor Child/Ward

I agree that any claim or suit that is pursued against me and/or my minor child/ward as a result of my own and/or my minor child/ward’s participation in Makerspace Activities specified herein, including but not limited to, claims of property damage, personal injury, and intentional tort, are my sole responsibility.

Direction/Conduct

I and/or my minor child/ward agree to: (1) follow any and all guidance, decisions and directions from the Ember & Ink official(s), employee(s) and officer(s) with whom I and/or my minor child/ward are interacting with as part of Makerspace Activities, including without limitation any direction to remain at or to leave any location, to cease any activity, or any other direction given to me by said official(s), employee(s) or officer(s). I understand and agree that the Ember & Ink official(s), employee(s) and officer(s) have complete authority to terminate me and/or my minor child/ward from Makerspace Activities at any time and for any reason and that I and/or my minor child/ward have no expectation of continued participation in Makerspace Activities.

Admissibility, Severability and Binding Effect

I agree that this Agreement shall be admissible in evidence in any proceeding or litigation in which the terms of this Agreement are sought to be enforced. I agree that the indemnity, waiver, release of all claims and assumption of risk provisions of this Agreement are intended to be as broad and inclusive as permitted by the laws of Nebraska, and that if any provision hereof is held invalid, I agree that the balance thereof will, notwithstanding, continue in full legal force and effect. I agree that this Agreement, including but not limited to the indemnity, waiver, release of all claims and assumption of risk provisions of this Agreement shall inure to the benefit of, and shall be binding upon my and /or my child/ward’s heirs, legatees, transferees, assigns, personal representatives, owners, insurers, agents, servants, employees, administrators, executors, representatives and/or successors in interest of any kind whatsoever.

Consent to Medical Treatment

If User is injured or becomes ill while involved in Makerspace Activities, reasonable efforts will be made to contact User’s parent/guardian or emergency contact. In the event no contact can be made, the User and/or Responsible Party hereby authorizes Ember & Ink and its employees, volunteers, agents, and representatives to obtain and consent to, on the User’s behalf, medical care, including without limitation, medical treatment, hospitalization, ambulance transportation, anesthesia, and X-ray and other exams and tests. The undersigned User and/or Responsible Party agrees to pay all costs of such medical care and transportation.

Miscellaneous

The User and/or Responsible Party agrees that Ember & Ink provides no warranties of merchantability or fitness for particular purpose or use concerning any project or items made using makerspace equipment, tools, or materials. If any provision of this document is determined to be invalid for any reason, such invalidity shall not affect the validity of any other provisions, which other provisions shall remain in full force and effect as if this Agreement had been executed with the invalid provision eliminated. By signing below the undersigned person agrees that this document is intended to be as broad and inclusive as permitted under applicable law.

By my signature below, User acknowledges that having carefully read this Agreement, and have been offered the additional “Terms of Use” document, to read in its entirety and have understood it, and User voluntarily agrees to all statements and provisions of this Agreement, including the indemnity, waiver, release of all claims and assumption of risk provisions of this Agreement.

I am sufficiently informed about the Makerspace Activities and Risks involved to decide whether to sign this Agreement. I attest that I am eighteen (18) years of age or older. I understand that this is a legal document and that I have a right and option of having an attorney review the document before signing it.

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