Introduction
These terms and conditions ("Terms of Service") govern your use of the VScape Media Management & Distribution Solution from VFM Leonardo Inc. ("VFM") as offered at no charge to your hotel. As used in these Terms of Service, the term "VScape" refers to the web-based "VScape Media Management & Distribution Solution" and to its underlying technology platform and the term "VScape Lite Service" refers to the VScape service offered at no charge by VFM to your hotel subject to the terms hereof.
The VScape Lite Service allows you, on behalf of the hotel property you represent ("Your Hotel"), to upload, review, manage, edit and distribute digital still images ("Images") and other content relating to Your Hotel (collectively, "Hotel Content") to VFM?s distribution partners such as online travel agency sites (OTAs), other travel-related websites, Pegasus Solutions and the global distribution systems (Amadeus, Galileo, Sabre and Worldspan, the "GDSs") (collectively, "Distribution Channels").
BY USING VSCAPE YOU SIGNIFY YOUR ASSENT TO THESE TERMS OF SERVICE. 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 Lite.
Terms of VScape Lite Service
The VScape Lite Service is being offered at no charge VFM to hotels worldwide and includes and is subject to the following:
(a) access to and use of VScape (including the use of a Web browser 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 Your Hotel; and (b) access to and use of VScape for the distribution of:
(i) up to ten (10) Images and related Metadata to the GDSs and Pegasus and their respective affiliates and powered websites;
(ii) up to five (5) Images and related Metadata to other VFM Distribution Channels, including major online travel agencies, travel research sites and other travel intermediaries;
(c) The maximum disk storage space provided under the VScape Lite Service for any Hotel Content will be ten (10) megabytes for Your Hotel; and
(d) The maximum number of "User Accounts" (that is, hotel 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 VFM at the Your Hotel Chain?s request) that will be able to access VScape will be two (2).
Ability and Authorization to Accept Terms of Service
You and Your Hotel affirm that:
(a) you are an authorized representative of Your Hotel entitled to you upload, edit, delete or otherwise modify any of Your Hotel?s Hotel Content;
(b) 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, its management company and/or owner, as applicable, to these Terms of Service; and
(c) any action taken by you or instruction given by you to VFM through VScape (such as the uploading, management, deletion, editing, and distribution of Hotel Content for Your Hotel) and any resulting action taken by VFM (such as changes to the Hotel Content distributed by VFM on behalf of Your Hotel) is duly authorized by and on behalf of Your Hotel.
Hotel Content Ownership & Licenses
By uploading or otherwise providing, modifying, or editing any Your Hotel?s Hotel Content for distribution by VFM through VScape or otherwise, you and Your Hotel:
(a) Represent and warrant to VFM (and acknowledge that VFM is relying upon such representations and warranties) that:
(i) Your Hotel (A) is the owner of all intellectual property rights and other proprietary rights in and to such Hotel Content and/or (B) has the necessary licenses, rights, consents and permissions to grant to VFM the license described in paragraph
(b) below;
(ii) Your Hotel 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 VFM of Your Hotel?s Hotel Content to/on VFM?s Distribution Channels as contemplated in these Terms of Service will not infringe any third-party?s intellectual rights in such Hotel Content; and
(b) Expressly grant VFM 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) any Hotel Content provided by You to VFM on behalf of Your Hotel for distribution through VScape, such license to terminate automatically 30 days following the date on which you either delete or disable the distribution of the Hotel Content in VScape;
(ii) grant limited sub-licenses to VFM?s Distribution Channels (including their affiliated websites) to permit them to similarly broadcast, perform and display any Hotel Content provided to them by VFM on behalf of Your Hotel, such sub-licenses to terminate 30 days following the date on which you either delete or disable the distribution of the Hotel Content in VScape; and
(iii) in the case of the GDSs and of Pegasus Solutions, grant them on behalf of Your Hotel and Your Hotel Chain 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 digital still images through them to their respective affiliates and other electronic channels powered by them.
These representations, warranties and licenses will survive these Terms of Service and your use of the VScape Service.
Responsibility for Hotel Content
You and Your Hotel have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any Hotel Content submitted by you for distribution by VFM through VScape and the consequences of submitting it for distribution by VFM. You and Your Hotel agree not to submit or otherwise transmit to VFM 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 is the owner of such rights or has permission from their rightful owner to distribute the Hotel Content and to grant VFM 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.
Distribution of Hotel Content to VFM Distribution Channels.
VFM is hereby authorized to arrange for the distribution, broadcast and display of any Hotel Content provided by You of Your Hotel for distribution through VScape. You may choose through the appropriate selection in VScape to cease distributing, broadcasting or otherwise displaying any Hotel Content, in which case, no later than 30 days following receipt of such request, VFM will cease the display of such Hotel Content and use its commercially reasonable best efforts to ensure that any Distribution Channel to which such Hotel Content has been distributed similarly ceases to display such Hotel Content.
VFM makes no warranties or guarantees whatsoever with respect to usage statistics, levels of impressions or "hits" which will be obtained by any Hotel Content. VFM reserves the right not to distribute any Hotel Content which VFM deems, in its sole discretion, not to be suitable or appropriate for distribution to VFM?s Distribution Channels.
Warranty Disclaimer
YOU AGREE THAT YOUR USE OF VSCAPE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, VFM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH VSCAPE AND YOUR USE THEREOF. VFM AND GALILEO MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF VSCAPE OR THE VSCAPE SERVICE AND ASSUMES 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.
Limitation of Liability
IN NO EVENT SHALL VFM OR GALILEO, THEIR RESPECTIVE 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.
Indemnity
You and Your Hotel agree to defend, indemnify and hold harmless VFM and its affiliates and their respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to VScape; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that any of your Hotel Content or the distribution thereof caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the VScape Service.
Confidentiality
VFM, Your Hotel and you shall each keep confidential all information in their possession or under their control relating to VScape, You and Your Hotel unless such information is or becomes generally available to the public other than as a result of a disclosure by the VFM, Your Hotel or You in violation of these Terms of Service.
Assignment
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you.
Amendment and Termination
VFM may amend these Terms of Services at any time by posting the amended terms in VScape or otherwise notifying you thereof. By continuing to access or use of VScape Lite Services after VFM makes any such revision, you agree to be bound by the revised Terms of Service.
VFM may terminate the VScape Lite Services at any time:
(a) for any reason whatsoever by providing you with sixty days? prior written notice thereof; and
(b) in the case of a breach of these Terms of Service by you without requirement for notice.
For greater certainty, proper written notice shall be deemed to have been given hereunder if such notice is delivered by e-mail to the e-mail address provided by you at the time of you registration for the VScape Service or thereafter changed in VScape regardless of whether such e-mail address is valid or functional at the time the notice is sent.
General
You and Your Hotel agree that: (i) VScape shall be deemed solely based in Ontario, Canada; and (ii) VScape shall be deemed a passive website that does not give rise to personal jurisdiction over VFM 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 you and VFM that arises in whole or in part from your 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 you and VFM, these Terms of Service, shall constitute the entire agreement between you and VFM concerning your 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 VFM's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
YOU AND VFM AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO VSCAPE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.