TERMS OF SERVICES
Last updated January 1, 2015
Please read these Terms of Service ("Terms") carefully before using the website and services offered by Etravel Applications LLC ("Company"). This Agreement sets forth the legally binding terms and conditions between you, an individual or entity ("you") for your use of the website at hoteltap.com (the "Site") and all services provided by the Company in connection with the Site ("Services"), and all text, graphics, images, music, software, audio, video, information or other materials available through the Site and Services ("Content").
IF YOU DO NOT AGREE TO THESE TERMS, THE COMPANY IS UNWILLING TO LICENSE USE OF THE SERVICE TO YOU. YOU AGREE THAT YOUR USE OF THE SERVICE ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
All amended terms automatically take effect 10 days after they are initially posted on this site. Your use of the Services following the effective date of any modifications to this agreement will constitute acceptance of the Terms, as modified. You agree that notice on the Site of modifications is adequate notice.
SOLE AND EXCLUSIVE JURISDICTION FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE IN AN APPROPRIATE STATE OR FEDERAL COURT LOCATED IN ALAMEDA COUNTY, STATE OF CALIFORNIA AND THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL.
Acceptance and Eligibility
By accessing, browsing, and/or using the Site you accept and agree to be bound to these Terms. You may use the Services only if you can form a binding contract with the Company, and only in compliance with these Terms and all applicable, local, state, national and international laws, rules and regulations. The Service is not available to any users previously removed form the Site and or Services by the Company.
You may be required to create an account and provide certain information about yourself in order to use some of the features that are offered through the Services. You are responsible for maintaining the confidentiality of your account password. You are also responsible for all activities that occur in connection with your account. You agree to notify the Company immediately of any unauthorized use of your account.
If you purchase any Services that the Company offers for a fee, either on a one-time or subscription basis ("Subscription Services"), you agree to the Company storing your payment information. You also agree to pay the applicable fees for the Subscription Services as they become due plus all related taxes, and to reimburse the Company for all collection costs and interest for any overdue amounts. Failure to pay may result in the termination of your Subscription Services. Your obligation to pay fees continues through the end of the subscription period during which you may cancel your subscription. You may cancel or suspend your Subscription Services through the method provided on the Site. You also acknowledge that the Company's Subscription Services are subject to this Agreement and any additional terms related to the provision of the Subscription Service.
The Company may change the price for the Subscription Services from time to time, and will communicate any price changes to you. Price changes for Subscription Services will take effect at the start of the next subscription period following the date of the price change. By continuing to use the Services after the price change takes effect, you accept the new price.
The Company may use a third party service ("Third-party Provider") to handle and process your online credit or debit card payments for Subscription Services. The Company shall not be liable for any payment or similar issues that arise due to the Third-party Provider. The Company may change the Third-party Provider from time to time.
Consent to the Collection and Use of End User Data
Use of the Services entails the collection and use of data pertaining to visitors of your website including ("End User Data").
You hereby represent and warrant that (a) any personally identifiable information, including without limitation if such information is in aggregate form, about your end users that you provide to the Company, directly or indirectly, hereunder was, is, and will be collected with the informed consent of such end users, (b) you have obtained all necessary rights, releases, and permissions to provide such End User Data to the Company, and (c) the collection, use, and disclosure of such information by you does not violate any laws or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and is not inconsistent with the terms of any applicable privacy policies.
The Company takes no responsibility and assumes no liability for any End User Data that you or any other user or third party provides, posts, publishes or transmits through the Services. You shall be solely responsible for End User Data and the consequences of using, disclosing, or transmitting it, and you agree that the Company is only acting as a passive conduit.
The Company and its licensors exclusively own all right, title and interest in and to the Site, Services and Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or Content.
End User Data. You expressly grant, and you represent and warrant that you have all rights necessary to grant, to the Company, a royalty-free, sub licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, develop, transmit, distribute, modify, reproduce, publically display, and create derivative works of any End User Data for the purposes of (a) providing the Services (b) developing, maintaining, supporting, and improving the Services; (c) marketing, promoting and advertising the Services; and (d) creating and distributing reports.
User Feedback and Improvements. You may choose to submit comments, suggestions, feedback, or ideas about the Services, including without limitation how to improve the Services ("Feedback"). By submitting any Feedback, You agree that such submissions are gratuitous, unsolicited and without restriction and will not place the Company under any fiduciary or other obligation, and that the Company is free to use the Feedback without any additional compensation to You, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, the Company does not waive any rights to use similar or related ideas previously known to us, or developed by the Company's employees, or obtained from sources other than You.
Name and Logo. You expressly grant, and represent and warrant that you have all rights necessary to grant, to Company, a royalty-free, sub licensable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, and distribute your name, logo, or any other identifying words or marks used by and/or associated with you to identify you ("Your Marks"), in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service to identify you as a customer of Company. Without limiting the foregoing, the preceding license shall apply to identifying you as a customer of Company in connection with any marketing, promotion, or advertising of the Services, providing customer references regarding the Services to other users or prospective users, identifying you in case studies relating to your use of the Services. Unless otherwise approved in writing by you, we will not remove, obscure, or alter any of Your Marks. Company acknowledges that all goodwill generated through our use of any of Your Marks will inure to your benefit and we hereby assign and will assign to you any and all goodwill generated through our use of any of Your Marks, without any payment or other consideration of any kind to us.
You may post, upload, publish, submit or transmit text, graphics, images, music, software, audio, video, information or other materials to be made available through the Site and Services ("User Content"). By making available any User Content through the Site and Services, you hereby grant to the Company a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of the Site and the Services. The Company does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Site or Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Site or Services or you have all rights, licenses, consents and releases that are necessary to grant to the Company the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or the Company's use of the User Content (or any portion thereof) on, through or by means of the Site and the Services will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree not to do any of the following while using the Site, Services or Content:
Post, upload, publish, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
Use, display, mirror or frame the Site, or any individual element within the Site, Company's name, any Company trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without the Company's express written consent;
Access, tamper with, or use non-public areas of the Site.
Attempt to probe, scan, or test the vulnerability of any Company system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by the Company or any other third party (including another user) to protect the Site, Services or Content;
Attempt to access or search the Site, Services or Content or download Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by the Company or other generally available third party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing the Company's trademark, logo URL or product name without the Company's express written consent;
Use the Site, Services or Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
We will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. The Company may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that the Company has no obligation to monitor your access to or use of the Site, Services or Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. The Company reserves the right, at any time and without prior notice, to remove or disable access to any Content, including, any User Content, that we, in the Company's sole discretion, consider to be in violation of these Terms or otherwise harmful to the Site or Services.
Third Party Services and Linked Website
The Site may contain links to third-party websites or resources. You acknowledge and agree that the Company is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the Company of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Termination of Use; Modification of the Services
If you violate any provision of these Terms, your permission to use the Services will terminate automatically. The Company also reserves the right to modify the Services at any time (including, without limitation, by limiting or discontinuing certain features of the Services) without notice to you.
THE SITE, SERVICES AND CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, THE COMPANY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY MAKES NO WARRANTY THAT THE SITE, SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THE COMPANY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE COMPANY OR THROUGH THE SITE, SERVICES OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES. YOU UNDERSTAND THAT THE COMPANY DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITE OR SERVICES, NOR DOES THE COMPANY MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE OR SERVICES. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
Each party will indemnify and hold harmless the other party and its successors and their respective affiliates, officers, directors and employees against and from all third party: claims, actions, demands, damages, liability and expenses (including, without limitation, court costs and reasonable attorneys' fees) (together, "Claims") arising out of or in connection with the indemnifying party's breach or alleged breach of Sections 5, 8, or 9 of this Agreement. You will further indemnify and hold harmless the Company and the Company's successors and affiliates, officers, directors and employees against and from all Claims arising out of or in connection with the Customer Sites, including without limitation any violation or alleged violation of any law or third-party rights by the Customer Sites or any data, content, or information contained therein or transferred thereby. The indemnifying party's obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any Claim for which the indemnified party is seeking indemnity (provided however, the failure to give timely notice shall not relieve the indemnifying party of its obligations under this section except to the extent that such untimely notice materially impairs the ability of the indemnifying party to defend); (ii) granting complete control of the defense and settlement to the indemnifying party (provided however, the indemnified party may participate with counsel of its choosing at its own expense); and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party's expense, in defense and settlement of such Claim. The indemnifying party shall not, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect to which indemnified party is or could be indemnified hereunder unless such settlement either (a) includes an unconditional release of the indemnified party from all liability on all Claims that are the subject matter of such proceeding or (b) is consented to in writing by the indemnified party (which consent shall not be unreasonably withheld).
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND CONTENT REMAINS WITH YOU. NEITHER THE COMPANY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO THE COMPANY FOR USE OF THE SITE, SERVICES OR CONTENT, IF ANY, OR ONE HUNDRED DOLLARS ($100), IF YOU ARE USING THE SITE AND SERVICES FOR FREE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms constitute the entire and exclusive understanding and agreement between the Company and you regarding the Site, Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between the Company and you regarding the Site, Services and Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without the Company's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. The Company may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given either: (i) by the Company via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The following provisions shall survive termination of these Terms: Sections 3, 5 through 10 and 12 through 15.
The failure of the Company to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of the Company. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.