These terms and
conditions ("Terms of Service") govern the use of the VScape Lite
Service offered at no charge by VFM Leonardo Inc. ("VFML") to hotels and hotel chains. The VScape Lite Service allows you, on
behalf of the hotel property or properties you and/or your hotel chain
represent, to upload, review, manage, edit and distribute digital still images
and other content relating to Your Hotels to VFML's network of other
distribution partners such as online travel agency sites (OTAs) and other
global distribution systems (GDSs).
BY SUBMITTING HOTEL
CONTENT TO OR OTHERWISE USING THE VSCAPE SERVICE YOU ARE ENTERING INTO AN
AGREEMENT WITH VFML AND YOU ARE AGREEING TO ALL OF THESE TERMS OF SERVICE ON
BEHALF OF YOUR HOTEL(s). If you do not
agree to these terms or are not in the legal position to agree to any of these
terms, then please do not use VScape.
1.
Certain
Defined Terms
As
used in these Terms of Service, the following terms will have the following
respective meanings:
(a)
"Hotel Content" means Images (photos),
virtual tour images, video and other rich visual media and related textual
captions, descriptions, categories and other metadata, in each case, depicting
or relating to Your Hotel (collectively, "Hotel Content");
(b)
"Hotel Representative" means any person
that is given access/login to Your Hotel's or Your Hotel Chain's, as
applicable, VScape Service or is otherwise authorized by Your Hotel or Your
Hotel Chain to access VScape on Your Hotel's behalf;
(c)
"Images" means digital still images
(photos);
(d)
"VNetwork" means VFML's network of
existing and future partner travel and travel-related websites, travel
intermediaries and other electronic distribution channels (each a "VNetwork
Channel" and, collectively, "VNetwork") to which VFML distributes hotel visual
and other content, including Your Hotel's Hotel Content;
(e)
"VScape" means the Web-based
applications, technology and platform used in providing the VScape Service;
(f)
"VScape
Service" refers to the Web-based digital asset management and distribution
system and service provided by VFML to Your Hotel and, if applicable, Your
Hotel Chain pursuant to these Terms of Service that allows Your Hotel and/or
Your Hotel Chain on behalf of Your Hotel to upload, review, store, manage, edit
and distribute, as applicable, Hotel Content to VNetwork;
(g)
"Your Hotel" means the hotel or hotels (if more than one) that
you and/or Your Hotel Chain represent and on behalf of which you upload, edit,
delete or otherwise modify any Hotel Content through VScape or otherwise use
VScape; and
(h)
"Your Hotel Chain" means, if you
represent a hotel chain (including a hotel brand and a hotel representation or
marketing company) and are using the VScape Service on behalf of that hotel
chain to upload, review, manage, edit and/or distribute Hotel Content relating
to hotel properties belonging to such hotel chain, such hotel chain.
2. VScape
Service Overview
The VScape Service is
being offered at no charge by VFML to hotels and hotel chains and includes and
is subject to the following:
(a)
Access
to and use of VScape (including the use of a Web browser VScape Media Manager
interface to VScape) for the uploading, storage and management of up to ten
(10) Images and related metadata (such as image categories, captions, and
textual descriptions ("Metadata")) for each of Your Hotels; and
(b)
Access
to and use of VScape for the distribution of up to:
(i)
ten
(10) Images and related Metadata to certain premium VNetwork Channels including
the GDSs (Amadeus, Sabre, Travelport) and Pegasus and major OTAs Travelocity
and Orbitz; and
(ii)
up
to five (5) or up to ten (10) Images to other VNetwork Channels;
(c)
The
maximum disk storage space provided under the VScape Service for any Hotel
Content will be ten (10) megabytes for each of Your Hotels; and
(d)
The
maximum number of "User Accounts" (that is, hotel and hotel chain
employees, representatives, consultants, contractors or agents, who are
authorized to access and use VScape and have been supplied user identifications
and passwords by the hotel or by VFML at Your Hotel's or Your Hotel Chain's
request) that will be able to access VScape will be two (2).
3.
Ability and Authorization to
Accept Terms of Service
(a)
If
you are acting in the capacity of representative for Your Hotel Chain, you and Your
Hotel Chain affirm that:
(i)
you
are an authorized representative of Your Hotel Chain;
(ii)
you
and Your Hotel Chain are authorized representatives of each of Your Hotels for
which you upload, edit, delete or otherwise modify any Hotel Content;
(iii)
you
are fully authorized and competent to enter into the terms, conditions,
obligations, affirmations, representations, and warranties set forth in these
Terms of Service on behalf of Your Hotel Chain and to legally bind Your Hotel
Chain to these Terms of Service; and
(iv)
any
action taken by you or instruction given by you to VFML through VScape (such as
the uploading, management, deletion, editing, and distribution of Hotel Content
for any of Your Hotels) and any resulting action taken by VFML (such as changes
to the Hotel Content distributed by VFML on behalf of Your Hotel) is duly
authorized by and on behalf of Your Hotel Chain and Your Hotels.
(b)
If
you are acting in the capacity of representative for Your Hotel, you and Your
Hotel affirm that:
(i)
you
are an authorized representative of Your Hotel for which you upload, edit,
delete or otherwise modify any Hotel Content;
(ii)
you
are fully authorized and competent to enter into the terms, conditions,
obligations, affirmations, representations, and warranties set forth in these
Terms of Service on behalf of Your Hotel and to legally bind Your Hotel to
these Terms of Service; and
(iii)
any
action taken by you or instruction given by you to VFML through VScape (such as
the uploading, management, deletion, editing, and distribution of Hotel Content
for any of Your Hotels) and any resulting action taken by VFML (such as changes
to the Hotel Content distributed by VFML on behalf of Your Hotel) is duly
authorized by and on behalf of Your Hotel.
4.
Authorization of VFML Actions
VFML
is hereby authorized to arrange for the distribution, broadcast and display
to/by each VNetwork Channel of any Hotel Content provided by or on behalf of
Your Hotel for distribution through VScape. Any action taken by VFML based on an instruction given by a Hotel
Representative (such as changes to the Hotel Content distributed by VFML on
behalf of Your Hotel) is duly authorized by and on behalf of Your Hotel and/or
Your Hotel Chain, as applicable.
5.
Responsibility for Hotel Content
Your
Hotel and, if you represent Your Hotel Chain, Your Hotel Chain has/have sole
responsibility for the accuracy, quality, integrity, legality, reliability,
appropriateness, and intellectual property ownership or right to use of any
Hotel Content submitted on its/their behalf for distribution to the VNetwork by
VFML (including any Hotel Content previously submitted by or on behalf of Your
Hotel or Your Hotel Chain) and the consequences of its distribution to the
VNetwork by VFML. Your Hotel and, if you
represent Your Hotel Chain, Your Hotel Chain agrees/agree not to submit or
otherwise transmit to VFML any Hotel Content that:
(a)
is
copyrighted, protected by trade secret or otherwise subject to third party
proprietary rights, including privacy and publicity rights, unless Your Hotel or
Your Hotel Chain is the owner of such rights or has permission from their
rightful owner to distribute the Hotel Content and to grant VFML all of the
license rights granted herein;
(b)
contains
any unlawful, threatening, abusive, libelous, defamatory, obscene,
pornographic, profane or otherwise objectionable information of any kind,
including without limitation any transmissions constituting or encouraging
conduct that would constitute a criminal offense, give rise to civil liability,
or otherwise violate any local, state, national, or international law; or
(c)
contains a virus, worm, or other harmful
component.
Your
Hotel and, if you represent Your Hotel Chain, Your Hotel Chain hereby
acknowledge that VFML provides each VNetwork Channel with indemnities with
respect to, among other things, any damages, liabilities, costs and expenses
(including but not limited to reasonable attorney's fees) incurred by such
VNetwork Channel as a result of any threatened or actual suit of a third party
against such VNetwork Channel arising from or based upon the distribution to
and the display and broadcast by such VNetwork Channel of any Hotel
Content. To the extent that such claim
is a result of any breach of covenant, representation or warranty made by Your
Hotel Chain and/or Your Hotel pursuant to these Terms of Service, Your Hotel
and/or, if you represent Your Hotel Chain, Your Hotel Chain agrees/agree to
promptly indemnify, hold harmless and defend VFML, and each such VNetwork
Channel in accordance with Section 8 below.
6.
Hotel
Content Ownership & Licenses.
By
uploading or otherwise providing, modifying, or editing any Hotel Content for
distribution by VFML through VScape or otherwise, Your
Hotel and, if you represent Your Hotel Chain, Your Hotel Chain:
(a)
Represent
and warrant to VFML (and acknowledge that VFML is relying upon such
representations and warranties) that:
(i)
Your
Hotel or Your Hotel Chain, as applicable, is the owner of all intellectual
property rights and other proprietary rights in and to such Hotel Content
and/or has the necessary licenses, rights, consents and permissions to grant to
VFML the license described in paragraph (b) below;
(ii)
Your
Hotel or Your Hotel Chain, as applicable, has the written consent, release,
and/or permission of each and every identifiable actor, model, staff member or
other person who appears in such Hotel Content to use the likeness of each such
person in such Hotel Content and for such Hotel Content to be publicly
distributed by any means in the manner contemplated in these Terms of Service;
and
(iii)
The
distribution, transmission, performance and/or display by VFML of such Hotel
Content to/on the VNetwork as contemplated in these Terms of Service will not
infringe any third-party's intellectual rights in such Hotel Content; and
(b)
Expressly
grants VFML a non-exclusive, royalty-free, worldwide, license to:
(i)
use,
copy, store, modify (including standardize, optimize, crop or otherwise
reformat for distribution), distribute, broadcast, perform and display
(publicly or otherwise) such Hotel Content, such license to terminate
automatically thirty (30) days following the date on which it either deletes or
disables the distribution of the Hotel Content in VScape;
(ii)
grant
limited sub-licenses to each website, travel intermediary or other distribution
channel belonging to VNetwork to which VFML distributes such Hotel Content
(including their affiliated websites) to permit them to similarly broadcast,
perform and display such Hotel Content, such sub-licenses to terminate thirty
(30) days following the date on which Your Hotel either deletes or disables the
distribution of such Hotel Content in VScape; and
(iii)
in
the case of the Global Distribution Systems (Sabre, Galileo, Worldspan and Amadeus,
collectively, the "GDSs") and of Pegasus, grant them on behalf of Your Hotel
such standard license to use, copy, store, modify (including standardize,
optimize, crop or otherwise reformat for distribution), distribute, broadcast,
perform and display (publicly or otherwise) as they require from any hotel that
wishes to distribute Hotel Content through them to their respective affiliates
and other electronic channels powered by them.
7. Hotel Brand Control Over Client
Hotel Photos.
If Your Hotel is a property belonging to a hotel
brand ("Brand") that is also a client of VFML and such Brand so requires, VFML
will provide the Brand access to Your Hotel's VScape account and allow it to
overwrite Hotel Content distribution settings in conformance with their policies
(for example, to disable distribution of Hotel Content to those VNetwork
Channels that are not approved by the Brand).
8.
Indemnity
Your
Hotel and, if you represent Your Hotel Chain, Your Hotel Chain will indemnify,
hold harmless and defend VFML and each VNetwork Channel to which VFML
distributes Hotel Content on behalf of Your Hotel and their respective
officers, directors, employees and agents (the "Indemnified parties") for,
from, and against any and all claims damages, liabilities, costs and expenses
(including but not limited to attorney's fees) incurred by the Indemnified
parties as a result of any threatened or actual suit of a third party against
the Indemnified parties arising from: (i) any breach
of covenant, representation or warranty made by Your Hotel or Your Hotel Chain under,
and/or violation of, these Terms of Service, (ii) Your Hotel's or Your Hotel
Chain's improper use of VScape; (iii) Your Hotel's or Your Hotel Chain's
violation of any third party right, including without limitation any copyright,
property, or privacy right in any Hotel Content provided by Your Hotel for
distribution by VFML to VNetwork; or (iv) any claim that any Hotel Content or
the distribution thereof caused damage to a third party, provided, in each
case, that the Indemnified Party(ies) promptly
notifies Your Hotel or Your Hotel Chain, as applicable, in writing of any such
claim and that Your Hotel or Your Hotel Chain will have the right to control
and defend or settle any such claim at Your Hotel's or Your Hotel Chain's expense
and with Your Hotel's or Your Hotel Chain's choice of counsel. At Your Hotel's
or Your Hotel Chain's request, the Indemnified Parties will cooperate with Your
Hotel and Your Hotel Chain, at their expense, in defending or settling such
claim and the Indemnified Parties may join in defense with counsel of their
choice at their own expense.
9.
Warranty Disclaimer
YOUR HOTEL AND, IF YOU REPRESENT YOUR
HOTEL CHAIN, YOUR HOTEL CHAIN AGREE THAT YOUR USE OF VSCAPE SHALL BE AT YOUR
SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, VFML, ITS OFFICERS,
DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,
IN CONNECTION WITH VSCAPE AND YOUR USE THEREOF. VFML MAKES NO WARRANTIES OR
REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF VSCAPE OR THE VSCAPE
SERVICE AND ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES,
OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY
NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF VSCAPE OR THE DISTRIBUTION
OF YOUR HOTEL'S HOTEL CONTENT THROUGH VSCAPE, (III) ANY UNAUTHORIZED ACCESS TO
OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED
THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM VSCAPE,
AND/OR (V) ANY ERRORS OR OMISSIONSIN ANY HOTEL CONTENT OR FOR ANY LOSS OR
DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY HOTEL CONTENT POSTED,
TRANSMITTED, DISTRIBUTED OR OTHERWISE MADE AVAILABLE VIA VSCAPE.
10.
Limitation of Liability
IN
NO EVENT SHALL VFML, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE
TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR
INACCURACIES IN OF HOTEL CONTENT OR ITS DISTRIBUTION, DISPLAY OR PERFORMANCE
THEREOF, (II) PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR
ACCESS TO AND USE OF VSCAPE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR
SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) ANY
INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM VSCAPE, AND/OR (V) ANY
ERRORS OR OMISSIONS IN ANY HOTEL CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND
INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED,
OR OTHERWISE MADE AVAILABLE VIA VSCAPE, WHETHER BASED ON WARRANTY, CONTRACT,
TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL
APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
11.
Survival
The
provisions of Sections 6, 8, 9 and 10 of these Terms of Service as well as any
provision hereof which by its nature and intent should survive the expiration
of termination of these Terms of Service shall so survive.
12.
Limitation of Use of VScape by
Third Parties
The
free VScape Service provided to Your Hotel and Your Hotel Chain pursuant to
these Terms of Service is intended for the exclusive use of Your Hotel Chain
and Your Hotel. In particular, only
employees of Your Hotel and/or Your Hotel Chain may access VScape on behalf of
Your Hotel or Hotel Chain. Your Hotel
and Your Hotel Chain may not hire or provide access to its VScape account to a
third party that is not an employee of Your Hotel or Your Hotel Chain to access
VScape and upload or manage any Hotel Content on behalf of Your Hotel or Your
Hotel Chain. Access to Your Hotel's or
Your Hotel Chain's VScape account by a non-employee will result in a
termination of the VScape Service and removal of all Your Hotel's Hotel Content
from distribution on the VNetwork.
13.
Assignment
These
Terms of Service, and any rights and licenses granted hereunder, may not be
transferred or assigned by you.
14.
General
For
all purposes relating to these Terms of Service, VScape shall be deemed solely
based in Ontario, Canada and shall be deemed a passive website that does not
give rise to personal jurisdiction over VFML or VScape, either specific or
general, in jurisdictions other than Ontario. These Terms of Service shall be
governed by the laws of the Province of Ontario and the federal laws of Canada
applicable therein without respect to its conflict of laws principles. Any
claim or dispute between Your Hotel or Your Hotel Chain and VFML that arises in
whole or in part from their use of VScape shall be decided exclusively by a
court of competent jurisdiction in the Province of Ontario. Unless superseded
by a separate written agreement between Your Hotel and/or Your Hotel Chain and
VFML, these Terms of Service, shall constitute the entire agreement between Your
Hotel and/or Your Hotel Chain, as applicable, and VFML concerning their use of
VScape. If any provision of these Terms of Service is deemed invalid by a court
of competent jurisdiction, the invalidity of such provision shall not affect
the validity of the remaining provisions of these Terms of Service, which shall
remain in full force and effect. No waiver of any term of this these Terms of
Service shall be deemed a further or continuing waiver of such term or any
other term, and VFML's failure to assert any right or provision under these
Terms of Service shall not constitute a waiver of such right or provision.