Website Terms of Use

****Make sure anyone submitting information through the website has to affirmatively agree to this before they are able to submit information to you on any form, and track their acceptance.****

The Buncombe County Tourism Development (BCTDA) and the Explore Asheville Convention & Visitors Bureau (EACVB) (“we,” “us,” “ours”) is the provider of its website at exploreasheville.com and the website content (collectively, “Services”).  The Services made available to you are merely licensed, and not sold, to you for use only under the terms of these Terms of Use (“Terms”).  BCTDA/EACVB reserves all rights not expressly granted to you herein.

1. Ownership:  BCTDA/EACVB is the owner of the Services and all associated intellectual property rights.  This includes but is not limited to any and all trademarks, service marks, graphics, or images, or licenses to make use of the same from third parties; instructions or statements in machine-readable format, including source code; related databases in machine-readable format; related materials, including documentation, whether in machine-readable or printed form; and any derivatives and copies of the foregoing.

2. Your Use:  By accessing the Services, you agree to be bound by these Terms.  Should you refuse to agree to any of the terms herein, we do not authorize you to make use of the Services. 

3. Restrictions on Use:
   1. You will not copy or duplicate, or permit anyone else to copy or duplicate, any of the Services, whether such Services is in written, graphic, magnetic, executable, or any other form.
   2. You will not create or attempt to create, or permit or facilitate others to create or attempt to create, any content based on or similar to that we provide through the Services by disassembling, reverse engineering, or otherwise, the source programs, the logic design, or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under these Terms.
   3. You agree to notify BCTDA/EACVB in a timely manner if you obtain information as to any unauthorized possession, use, or disclosure of the Services by any person or entity, and further agree to cooperate with us at our expense in protecting our proprietary rights.
   4. You represent, warrant, and covenant that you will not upload, post, transmit, distribute, or otherwise publish through the Services any materials which restrict or inhibit any other user from using and enjoying the Services; are unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, or indecent; constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate the law; violate, plagiarize, or infringe the rights of any third party including, without limitation, copyright, trademark, patent, rights of privacy or publicity, or any other right of any third party; contain a virus or other harmful or potentially harmful component; contain any information advertising of any kind; and/or constitute or contain false or misleading indications of origin or statements of fact.

4. Maintenance and Updates:  BCTDA/EACVB may provide normal and reasonable maintenance and updates of the Services at its sole discretion and we may, at our sole discretion, require that you install or otherwise accept the updates in order to continue your use of the Services.  If we have reason to believe that such updates may interfere with your use of the Services, we will make best efforts to notify you in advance.

5. Authorization:  To the extent which you submit to us comments, reviews, images, or other user generated content through the Services, you warrant that you own such content or are a licensee with the authority to grant to us a license as described herein and you grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully paid-up, royalty-free, fully sublicensable and transferable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, display, and perform such content and any of your personal information associated with such content in whole or in part, in any media, format or technology, whether now known or hereafter discovered, and in any manner including, but not limited to, all promotional, advertising, marketing, publicity, and commercial uses and ancillary uses thereof, without any further notice or payment to or permission needed from you (except where prohibited by law).  You also agree to waive any applicable moral rights to such content and information.

6. Contests:  Any contests, sweepstakes or other promotions made available through the Service may be governed by rules that are separate from these Terms.  If you participate in any of our promotions, please review the applicable rules as well as our Privacy Policy.  If the rules for a promotion conflict with these Terms, the promotion rules will apply.

7. Third Party Services: The Services may enable or require access to third party services, including internet services providers and websites and including but not limited to third parties as identified in our Privacy Policy.  Your use of such third-party services may require you to agree to the terms of use of those third parties.  You acknowledge that your use of third-party services is at your own sole risk, and BCTDA/EACVB shall not have any liability to you for your use of such services. 

8. Copyright:  We respect the intellectual property rights of others.  It is our policy to respond to any claim that content shared through the Service infringes on the copyright or other intellectual property rights of any person or entity.  If you are a copyright owner, or authorized on behalf of one, and you believe that a copyrighted work has been copied in a way that constitutes copyright infringement, please submit your claim via email to ___________, with the subject line: "Copyright Infringement" and include in your claim a detailed description of the alleged infringement.  Specifically, you should submit the following information in writing:  an electronic or physical signature of the copyright owner or the person authorized to act on behalf of the owner of the copyright's interest; a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work; identification of the URL or other specific location on the Service where the material that you claim is infringing is located; your address, telephone number, and email address; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

9. NO WARRANTY: The Services we provide are for informational purposes only and should not be understood or construed to be professional advice of any kind.  Our Services are not a substitute for advice from professionals who are knowledgeable regarding your specific circumstances, and we encourage you to seek advice from competent professionals.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY SERVICES PERFORMED OR PROVIDED BY US ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BCTDA/EACVB HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. BCTDA/EACVB DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES OR ASSOCIATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES OR SERVICES WILL BE CORRECTED.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BCTDA/EACVB OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.  SHOULD THE SERVICES OR REQUIREMENTS SERVICES PROVE DEFECTIVE, YOU ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. 

10. Limitation of Liability: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL BCTDA/EACVB BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF BCTDA/EACVB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.  In no event shall BCTDA/EACVB’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount paid by you to obtain the license granted herein.  The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

11. Notice of Rights:  CERTAIN COUNTRIES, STATES, AND/OR PROVINCES PROHIBIT THE EXCLUSION OR LIMITATION OF CERTAIN CONDITIONS, WARRANTIES, OR GUARANTEES, AND/OR DO NOT ALLOW PRODUCTS OR SERVICES TO BE SOLD WITH NO WARRANTIES OR GUARANTEES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE SECTIONS ABOVE ENTITLED “NO WARRANTY” AND “LIMITATION OF LIABILITY” MAY NOT APPLY TO YOU.  ONLY THOSE EXCLUSIONS AND LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, BCTDA/EACVB’S LIABILITY WILL BE LIMITED ONLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.  THE ENFORCEABILITY OF THESE LIMITED WARRANTIES MAY VARY BASED ON THE LOCAL LAWS APPLICABLE TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS DEPENDING ON WHERE YOU LIVE.

THESE TERMS ARE NOT INTENDED TO AND DOES NOT: (I) CHANGE OR EXCLUDE ANY STATUTORY CONSUMER RIGHTS THAT CANNOT BE LAWFULLY CHANGED OR EXCLUDED; OR (II) LIMIT OR EXCLUDE ANY RIGHT YOU HAVE AGAINST THE PERSON WHO SOLD THE PRODUCT TO YOU IF THAT PERSON HAS BREACHED ANY SALES CONTRACT WITH YOU. YOU AGREE TO USE THE SERVICES IN COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING LOCAL LAWS OF THE COUNTRY OR REGION IN WHICH YOU LIVE OR IN WHICH YOU DOWNLOAD OR USE THE SERVICES.

NOTHING IN THESE TERMS EXCLUDES, RESTRICTS, OR MODIFIES ANY CONDITION, WARRANTY, GUARANTEE, RIGHT, OR REMEDY IMPLIED OR IMPOSED BY ANY APPLICABLE LAWS WHICH CANNOT LAWFULLY BE EXCLUDED, RESTRICTED, OR MODIFIED. If any condition, warranty, or guarantee is implied into these Terms or imposed on BCTDA/EACVB under applicable laws and cannot be excluded, but we have a choice of a remedy, then our liability for breach of the condition, warranty, or guarantee is limited to one or more of the following, at our sole option: (a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, or refunding the payment for the goods if it would be unreasonable to expect the products to be repaired; or (b) in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.

12. Privacy:  BCTDA/EACVB is committed to protecting your privacy.  Our privacy practices are described in the BCTDA/EACVB Privacy Policy.  By using the Services or providing us with your personal information, you are accepting and consenting to the practices, terms, and conditions described in our Privacy Policy, which is incorporated by reference into these Terms and can be viewed here: _________________.  You also acknowledge that you alone control whether and to what extent any personally identifiable data is incorporated into the Services.  Accordingly, should removal of such information be desired, that shall remain your sole responsibility and obligation.

13. Miscellaneous:
    1. Waiver. No waiver of any breach of these Terms will form a waiver of any subsequent breach of the same or any other provision.

2. Severability. If any provision of these Terms is declared or found illegal, unenforceable, or void, then all parties will be relieved of all obligations arising under such provision to the extent that such provision is illegal, unenforceable, or void, it being the intent and Terms of the parties that these Terms will be deemed amended by modifying the provision to the minimum extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefor another provision that is legal and enforceable and achieves the same objective.  If the remainder of these Terms will not be affected by the declaration or finding and can be substantially performed, then each provision not so affected will be enforced to the extent permitted by law.

3. Amendment. These Terms may be amended by BCTDA/EACVB at any time for any reason.  Notice of the same will be provided through posting the revised Terms to the Website.

4. Interpretation. Headings used in these Terms are for convenience only and will not be deemed to be operative text. Terms of gender will be deemed interchangeable, as will singular and plural terms, in each case unless the context otherwise requires.

5. Applicable Law. These Terms will be governed by the internal law of the State of North Carolina without regard to conflict of law.

6. Arbitration. Any dispute arising out of or relating to these Terms, or a breach thereof, shall be solely and exclusively determined by arbitration administered by the American Arbitration Association in accordance with its International Arbitration Rules. Any such arbitration shall take place exclusively in Buncombe County, North Carolina, and the language of the arbitration shall be English. The arbitration shall be conducted by a single arbitrator and the decision of the arbitrator shall be final, conclusive and binding on the parties.  Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.  BCTDA/EACVB and you shall each pay one-half of the costs and expenses of any arbitration, and the substantially non-prevailing party, as determined by outcome of the arbitration, shall be liable for both parties’ attorneys’ fees and costs.  You acknowledge that, without this provision, you would have had a right to litigate a dispute through a court before a jury or judge and that you have expressly and knowingly waived those rights, instead agreeing to resolve disputes exclusively through binding arbitration.  {{You don’t have to include binding arbitration if you don’t like it.  It’s the hardest for your users, blocking them from filing a class action.}}

7. Indemnification.  To the extent which you breach these Terms in such a way as to cause harm to a third-party (e.g., copyright infringement), you shall indemnify, hold harmless, and defend BCTDA/EACVB from any costs, expenses (including reasonable attorney fees), losses, damages, or liability incurred due to such harm.

8. Further Assurances. The parties will perform all such further acts, provide such further documents or written assurances, and execute such further documents as they reasonably require or deem necessary to carry out the acts and transactions contemplated by these Terms.

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