Last Updated:September 14, 2016
These Terms constitute a contractual agreement between you (“you” or “your”) and Vacationality, LLC (“we,” “us” or “our”) regarding your use of the services covered by these Terms (“Web Services”). The Web Services include all of our websites, mobile websites, and other Internet enabled or wireless means by which we provide content to you or receive content from you, including without limitation, downloadable or preloaded software applications (including, without limitation, desktop, mobile and tablet applications, content and blog submission services, chat rooms, message boards, text/SMS messaging, email messaging, alert products and delivery of our content to you at your request). You should print a copy of these Terms for your records.
Please note: these Terms contain certain Disclaimers and Limitations on our Liability, and a binding Arbitration Clause and Class Action Waiver, which waives your right to sue in court or seek a jury trial for disputes relating to your use of the Web Services. These are found in Sections 10 and 11 below. Please read these terms carefully and make sure that you understand them before continuing with your use of the Web Services. If you do not agree to such terms, please do not use the Web Services.
Your failure to follow and abide by these Terms may result in immediate suspension or termination of your access to the Web Services in addition to our other remedies.
Please note that we may update and amend these Terms from time to time. All changes are effective immediately when we post them, and apply to all access to and use of the Web Services thereafter. However, any changes to the Arbitration and Governing Law sections will not apply to any disputes for which the parties have actual notice on or before the date the change is posted.
We reserve the right to modify or discontinue any of the Web Services or any aspect or feature of the Web Services at any time and without notice. From time to time, we may restrict access to the Web Services or any portion thereof, to users, including registered users, consistent with applicable law and any additional terms governing the particular Web Service.
By using any of the Web Services, you hereby agree to the terms of our Privacy Notice as set forth here: Privacy Notice.
- PURCHASES MADE VIA THE WEB SERVICES; OTHER TERMS AND CONDITIONS
Additional terms and conditions may apply to purchases of goods or services and to specific portions or features of the Web Services, including reservations, bookings, rewards programs or other similar features, all of which terms are made a part of these Terms by this reference. You agree to abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature. If there is a conflict between these Terms and the terms posted for or applicable to a specific portion of the Web Services or for any service offered on or through the Web Services, the latter terms shall control with respect to your use of that portion or the specific service.
- LINKS TO THIRD PARTY SITES
Except as otherwise specified in these Terms or pursuant to our express written consent, you may not establish a hyperlink to the Web Services or provide any links that state or imply any sponsorship or endorsement of your web site by us.
- USE OF THE WEB SERVICES & INTELLECTUAL PROPERTY RIGHTS
We control and (either ourselves and/or through our third-party host) operate the Web Services. All content available through the Web Services (“Content”), including, but not limited to, text, images, illustrations, graphics, logos, digital downloads, data, software, headers, icons, scripts, audio clips, and video clips, is our or our Providers” property, and is protected by copyrights, trademarks, service marks, and/or other intellectual property rights (which are governed by United States and worldwide copyright laws and treaty provisions, privacy and publicity laws, and communication regulations and statutes). The Content is owned and controlled by us or our affiliates, or by Providers that have licensed or otherwise made available their content or the right to market their products and/or services to us. Content made available through the Web Services is solely for your personal, non-commercial use, and may not be used in any manner that is likely to cause confusion of our customers, other users of the Web Services, or the general public. You agree to abide by all additional copyright notices, information, or restrictions contained in any Content. You may download or make a single copy of any Content contained on the Web Services, solely for your personal, non-commercial use, consistent with these Terms, provided that you maintain all copyright and other notices contained in such Content.
Except as otherwise specified above or permitted as fair use under the Copyright Act, you may not copy, reproduce, duplicate, republish, upload, post, transmit, distribute, sell and/or exploit the Content in any way (including by e-mail or other electronic means) for commercial use without the prior written consent of us or the Providers. You may request consent by faxing a request to our Legal Department at (407) 626-5222.
You may not use any registered or unregistered trademarks, service marks, copyrighted materials or other proprietary information or intellectual property appearing on the Web Services, including, but not limited to, any logos, images or characters, and also including any meta tags or similar code or hidden text or elements containing such information or property, without the express written consent of the owner of the mark or copyright. You may not frame any of our trademarks, service marks, copyrights, logos, images, text, or other proprietary information or intellectual property, or otherwise incorporate into another website or application any of the Content or other materials on the Web Services, without our express prior written consent. You may not deep link to any page or portion of the Web Services without our prior written consent.
Notice and Procedure for Making Claims of Copyright Infringement
If you believe that your work has been copied and posted on the Web Services in a way that constitutes copyright infringement, please provide our Agent for Notification of Claims of Copyright Infringement the information specified below.
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Web Services;
- Your address, telephone number, and e-mail 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; and
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
Written notification containing the information set forth above must be submitted to the following Agent for Notice of Claims of Copyright Infringement:
Susan L. Crane Wyndham Worldwide Corporation 22 Sylvan Way Parsippany, NJ 07054 Telephone Number of Designated Agent: (973) 753-6667 Facsimile Number of Designated Agent: (973) 753-6620 E-mail Address of Designated Agent: firstname.lastname@example.org
If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, please send a counter-notice to the Agent for Notice of Claims of Copyright Infringement.
- USER’S RESPONSIBILITIES
You warrant and represent to us that you will not use the Web Services for any purpose that is unlawful, illegal or prohibited by these Terms, including, without limitation, the sending, posting, transmitting, displaying, distributing or knowingly receiving of or searching for any threatening, harassing, libelous, defamatory, obscene, scandalous, inflammatory, sexually oriented, pornographic, or profane material, content or images, or other images, content or messages that might be considered lewd, lascivious, excessively violent or otherwise offensive. If you violate any of these Terms, your permission to use the Web Services immediately terminates without the necessity of any notice. We retain the right to deny access to anyone at our discretion for any legally permissible reason, including for violation of these Terms.
You are solely responsible for the content, accuracy and your use of your User Information, as defined herein, and we merely act as a passive conduit for your online publication of your User Information. As used in these Terms, “User Information” means any information or data that you submit to or through the Web Services and any information or data that is generated by the Web Services as a result of your use of or access to the Web Services. Special rules and/or restrictions may apply to your Personally Identifiable Information. For more information on these special rules and/or restrictions, please review our Privacy Notice .
In the event that you are provided with user identification numbers or codes, confirmation numbers, login credentials and/or passwords (as applicable) in the use of the Web Services (collectively, “Login Information”), you shall maintain such Login Information in confidence and you agree not to distribute or disclose the same to third parties. It is your responsibility to notify us if we need to change or discontinue any of your Login Information. It is also your responsibility to immediately notify us upon your knowledge or belief that such Login Information is, or may be, subject to a breach of confidentiality. We may suspend or terminate your access to the Web Services if we believe or have reason to believe a breach of these Terms has occurred including, without limitation, you having shared your Login Information with a third party.
You agree to provide true, accurate, current and complete User Information. If you provide any User Information that is untrue, inaccurate, not current or incomplete (or we have reasonable grounds to suspect that such User Information is untrue, inaccurate, not current or incomplete), we have the right to suspend or terminate your access and activity, and refuse any and all current or future use, of the Web Services.
- PROHIBITED ACTIVITIES
You are specifically prohibited from any use of the Web Services, and you agree not to use or permit others to use the Web Services, to do any of the following: (a) take any action that imposes an unreasonable or disproportionately large load on, or waste of valuable time for, the Web Services” infrastructure or resources, including, but not limited to, sending or promoting the distribution of “spam,” “junk mail,” chain letters, or other such unsolicited or unlawful mass e-mailing techniques; (b) disclose to, or share with, any unauthorized third parties, your Login Information for any unauthorized or prohibited purpose, or otherwise allow or facilitate others to gain access to our information technology systems, environments, networks, files, data or accounts through the use of your Login Information; (c) access or attempt to access our information technology systems, environments, networks, files, data or accounts to which express authorization has not been obtained (including access to data not intended for you), or log into a server or account that you are not authorized to access; (d) attempt to decipher, decompile, disassemble, modify, remove or reverse engineer any of the software or HTML code comprising or in any way making up a part of the Web Services; (e) interfere with, disrupt, disable or damage (or attempt to interfere with, disrupt, disable or damage), in an unauthorized manner, the use or operation of the Web Services or our, our affiliated or related entities” or the Providers” systems, equipment or applications, or service to any user, host, or network, including by use of any programs, scripts, commands, robots, spiders, scrapers, viruses, worms, web bugs, harmful code, Trojan horses, other contaminants, or otherwise, which includes “denial of service” attacks, “flooding” of networks, deliberate attempts to overload a service or to burden excessively a service” resources, attempts to “crash” a host, and/or modifying or rerouting any Content or services provided via the Web Services; (f) attempt to circumvent or subvert system or network security (i.e., authentication) mechanisms, or probe the security of any system, network, or account, associated or used in conjunction with the Web Services; (g) upload, post, email or otherwise transmit any User Information, Content, or proprietary material that you do not have a right to transmit under these Terms, any law or other contractual or fiduciary relationships; (h) violate any applicable local, state, national or international law; and, (i) use, permit another person or entity to use, or assist another person or entity in using any robot, spider, intelligent agent, meta-searching, scraper, script or other automatic device or means, or manual process to access, use, search, monitor or copy the Web Services” pages, domain, or the Content without our prior written permission, provided that generally available third party web browsers such as Microsoft Internet Explorer® may be used without such permission.
- INFORMATION POSTED TO THE WEB SERVICES
With respect to all User Information you elect to post to publicly accessible areas of the Web Services, you agree that we have the right to use, reproduce, copy, modify, publish, distribute, create derivative works of, perform and display such User Information (in whole or part) on a worldwide basis, without notice or compensation to you, provided that such use is in accordance with the terms of our Privacy Notice.
You acknowledge and agree that we may preserve User Information and may also disclose User Information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any User Information violates the rights of third-parties; or (d) protect the rights, property, or personal safety of our business, employees, Providers, affiliated or related entities, users, and/or the public.
- ELECTRONIC COMMUNICATIONS
When you visit the Web Services or send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically, either by email or by posting notices on the Web Services. To the maximum extent permitted by law, you agree that all terms, notices, disclosures and other communications that we provide to you via such electronic means satisfy any legal requirement that such communications be in writing.
- DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION
< strong>Disclaimer of Warranties. We take reasonable steps to provide secure, timely, accurate and complete information on the Web Services. However, it is possible that information contained or made available on the Web Services may be incorrect or not current. Further, the Internet has inherent risks and we cannot guarantee that your access to and use of the Web Services will be uninterrupted or error free or that the Web Services will be free from loss, corruption, attack, interference, hacking or other security intrusion.
If you notice any errors or omissions in the information contained on the Web Services or other concerns, please report them to us for investigation.
The materials and information provided on thE web sERVICES are provided ON AN "as is" AND “AS AVAILABLE” BASIS. No warranty of any kind, implied, expressed, or statutory, including but not limited to the warranties of non-infringement of third party rights, title, merchantability, fitness for a particular purpose, and freedom from computer virus, is given with respect to the web services, THE CONTENTS THEREOF, or their hyperlinks to other Internet resources.
Limitation of Liability. Vacationality, LLC, its parents, subsidiaries, affiliates, officers, directors, employees and agents (the “Vacationality Parties”) shall not be liable for damages or losses of any kind arising out of or in connection with your use of the Web Services or any information provided on the Web Services, including but not limited to, damages caused by your reliance on the accuracy or timeliness of information provided on the Web Services or your provision of User Information to the Web Services, except that the foregoing shall not preclude recovery of damages for personal injury, loss or damage to personal property, or unauthorized use or disclosure of personally identifiable information caused by the Vacationality Parties’ negligence, gross negligence, recklessness, fraud or other willful, unconscionable or intentional misconduct. Nothing herein shall be construed to limit the clearly established legal right of a consumer to recover attorneys” fees or other remedies afforded by statute or other law.
The foregoing Disclaimer of Warranties, Limitation of Liability and Indemnification provisions shall apply to the fullest extent permitted by law.
THE FOLLOWING TERMS TO WHICH YOU ARE CONSENTING CONSIST OF A BINDING ARBITRATION PROVISION AND A CLASS-ACTION AND JURY TRIAL WAIVER.
To the fullest extent permitted by law, by using the Web Services, you agree that if a dispute arises between you and the VACATIONALITY Parties, BOTH YOU AND THE VACATIONALITY PARTIES SHALL SUBMIT TO BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION. ANY ARBITRATION COMMENCED BETWEEN YOU AND THE VACATIONALITY PARTIES MUST BE ARBITRATED IN FLORIDA. ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR THE VACATIONALITY PARTIES MAY JOIN CLAIMS IN ARBITRATION WITH OR AGAINST OTHER USERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS. YOU UNDERSTAND THAT BY AGREEING TO ARBITRATION YOU ARE WAIVING CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE IN COURT, THE RIGHT TO A JURY TRIAL, AND THE RIGHT TO BRING, OR BE PART OF, A CLASS ACTION CASE. The foregoing shall not apply to suits to enjoin infringement or other misuse of intellectual property rights, and you or the Vacationality Parties may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
RULES FOR THE AMERICAN ARBITRATION ASSOCIATION ARE AVAILABLE AT: https://www.adr.org.
- GOVERNING LAW
We operate the Web Services from our offices within the State of Florida, USA (which may be subject to change from time to time in our sole discretion). The Web Services can be accessed from all 50 U.S. states, as well as from other countries around the world. As each of these places has laws that may differ from those of Florida, by accessing the Web Services, you agree that these Terms and your use of the Web Services shall be governed in all respect by the internal substantive laws of the State of Florida, without regard to any conflict of laws provisions, and shall not be governed by the United Nations Convention on the International Sale of Goods. You further agree to submit to the exclusive jurisdiction and venue in the state and federal courts located in Orange County, Florida, and the Middle District of Florida, Orlando Division, respectively, for all disputes, cases and controversies regarding this website, your use of this website, and your relationship with us. Although the Web Services can be accessed outside the United States, we make no representation that materials on the Web Services are appropriate or available for use in other countries, and accessing them from jurisdictions where the Content is illegal is prohibited. Those who choose to access the Web Services from other countries do so at their own risk and are responsible for compliance with local laws, including laws regarding the transmission of technical data exported from the United States or the country in which you reside.
- MESSAGE BOARDS
In the event that we provide message boards, web logs or blogs, or discussion forums on the Web Services (the “Forums”), you agree to use the Forums only for personal purposes in a noncommercial manner. You shall not, without our express approval, distribute or otherwise publish any material containing any solicitation of funds, advertising, or written solicitation for goods and services. You agree that any uploaded materials may be republished without compensation to you or any other person or entity. In addition, you warrant that you have all necessary rights and permissions to post any uploaded materials and that all moral rights in any uploaded materials have been waived. While we do not and cannot review every message posted by you or any other user in the Forums, and although we are not responsible for these messages, we reserve the right (but not the obligation) to delete, move, or edit messages that we, in our sole discretion, deem abusive, defamatory, obscene, in violation of privacy, copyright or trademark laws, in violation of these Terms, or otherwise unacceptable. We do not endorse any User Information posted on the Web Services.
You agree that you must evaluate, and bear all risks associated with, the use of any messages or other Content posted by other Users of the Web Services.
- LOCATION-BASED SERVICES
Your device may be location-enabled, meaning that the device is capable of accessing Content or services that make use of a user’s location using location technology such as Global Positioning Satellite (GPS), wireless network location, or other location technology. In the event the Web Services use a location-based API for real-time route guidance (including, but not limited to, third-party turn-by-turn route guidance and other routing that is enabled through the use of a sensor), YOUR USE OF ANY SUCH REAL TIME ROUTE GUIDANCE APPLICATION IS AT YOUR SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE.
- APPLE INC.
By accessing the Web Services through a device made or marketed by Apple, Inc. (“Apple”), you specifically acknowledge and agree that: (i) these Terms are between us and you; Apple is not a party to these Terms; (ii) Apple and its subsidiaries are third party beneficiaries of these Terms and upon your acceptance of the terms and conditions of this Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you; (iii) the license granted to you hereunder is limited to a non-transferable right to use the Web Services on the Apple device(s) authorized by Apple that you own or control and as permitted by the Usage Rules set forth in Apple’s App Store Terms of Service; (iv) Apple has no obligation whatsoever in connection with the functionality or content of the Web Services, or to furnish any maintenance or support services with respect to the Web Services; (v) in the event of any failure of the Web Services to conform to any applicable warranty, you may notify Apple, and Apple may refund the amount you paid for the Web Services, if any (to the maximum amount permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Web Services); (vi) Apple is not responsible for addressing any claims by you or a third party relating to the Web Services or your possession and/or use of the Web Services, including, without limitation, (a) product liability claims; (b) any claim that the Web Services fail to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; (vii) in the event of any third party claim that the Web Services or your possession and use of the Web Services infringes such third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement and/or discharge of such claim; (viii) you represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties; and (ix) you further represent and warrant that, to the extent your use of the Web Services requires your compliance with third-party terms and conditions, you shall cply with such third-party terms and conditions at all times during your use of the Web Services.
- GOOGLE, INC.
By accessing the Web Services through a device made or marketed by Google, Inc. (“Google”), you specifically acknowledge and agree that: (i) these Terms are between us and you; Google is not a party to these Terms; (ii) Google and its subsidiaries are third party beneficiaries of these Terms and upon your acceptance of the terms and conditions of these Terms, Google will have the right (and will be deemed to have accepted the right) to enforce these Terms against you; (iii) the license granted to you hereunder is limited to a non-transferable right to use the Web Services on the Google device(s) authorized by Google that you own or control and as permitted by the Google Android Market Terms of Service; (iv) Google has no obligation whatsoever in connection with the functionality or content of the Web Services, or to furnish any maintenance or support services with respect to the Web Services; (v) in the event of any failure of the Services to conform to any applicable warranty, you may notify Google, and Google may refund the amount you paid for the Services, if any (to the maximum amount permitted by applicable law, Google will have no other warranty obligation whatsoever with respect to the Web Services); (vi) Google is not responsible for addressing any claims by you or a third party relating to the Web Services or your possession and/or use of the Web Services, including, without limitation (a) product liability claims; (b) any claim that the Web Services fail to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; (vii) in the event of any third party claim that the Web Services or your possession and use of the Web Services infringes such third party’s intellectual property rights, Google is not responsible for the investigation, defense, settlement and/or discharge of such claim; (viii) you represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties; and (ix) you further represent and warrant that, to the extent your use of the Web Services requires your compliance with third-party terms and conditions, you shall comply with such third-party terms and conditions at all times during your use of the Web Services.
- OTHER GENERAL PROVISIONS
These Terms are for the benefit each of us, our affiliated, managed or related entities and the Providers, and each of our and their respective officers, directors, employees, affiliates, agents, or any person or entity involved in the creation, production, distribution and/or hosting of the Web Services. Each of these individuals or entities shall have the right to assert and enforce these Terms directly against you on its (or their own) behalf. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and the remaining provisions enforced. Headings are for reference purposes only.
You and we are dealing at arms” length, creating a commercial relationship. We are not your agent or your fiduciary. Many of our businesses and facilities are independently owned and operated by third parties. In such cases, these third parties manage and operate the facilities, and they engage the employees and entities who work at the facilities. These third parties are independent from us, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by these Terms.
The provisions and conditions of these Terms, and each obligation referenced herein, represent the entire agreement between us (including the Providers), our affiliated or related entities, and you relating to the subject matter hereof, and supersede any prior agreements or understandings not incorporated herein.
If you have any questions or concerns about the Web Services or these Terms, please contact us at:
Vacationality, LLC Attn: Legal Department 6277 Sea Harbor Drive Orlando, FL, 32821