VAX VACATIONACCESS WEBSITE TERMS AND CONDITIONS
The goal of this Web Site is to provide You with access to information about VAX applications, products and services, and other related goods and services (the "Content"). The Terms are meant to protect all of Our visitors to this Web Site.
1. Definitions. For purposes of this Agreement, the following words and terms will have the following meanings:
"Booking" shall mean one (1) Booking of a reservation for a travel product VAX by the Travel Agency for a consumer, which Booking includes at least one (1) passenger.
"Cancellation" shall mean one (1) cancellation of a Booking for at least one (1) passenger.
"Confidential Information" shall mean all information and materials concerning a party's business, plans, pricing, customers, technology, and products that are confidential and of substantial value to such party, which value would be impaired if such information and materials were disclosed to third parties. No Confidential Information shall be deemed confidential unless so marked if given in writing or, if given orally, identified as confidential prior to disclosure; provided that for purposes of this Agreement all information and materials relating to the VAX Technology and all information and materials relating to the sale of travel products included in the VAX Inventory through VAX using VAX shall be deemed confidential.
"Affiliates" shall mean, with respect to a party, any entity controlled by, controlling, or under common control with such party. For purposes of the preceding sentence, a party shall be deemed to control an entity if such party directly or indirectly owns more than 50% of the voting interests in such entity.
"VAX Content" shall mean all materials and information (including without limitation all text, graphics, photographs, audio, video, pricing and delivery information and details of accommodations and travel arrangements) used by VAX to describe the travel products and services included in the VAX Inventory.
"VAX Inventory" shall mean the travel products and services from time to time offered through VAX.
"Net Bookings" shall mean the number of Bookings during a time period minus the number of Cancellations during that same time period.
"VAX" shall mean the VAX VacationAccess and VAXPRO technology owned by VAX that enables the Travel Agency to access the VAX Inventory and make purchases on behalf of their agency and/or customers.
"VAX Technology" shall mean VAX and all software and technology related thereto.
2. VAX Access. VAX agrees to (a) provide the Travel Agency electronic access to the travel products and services included in the VAX Inventory and (b) allow the Travel Agency to make purchases (subject to Paragraph 5, below) from the travel products and services included in the VAX Inventory using VAX.
3. Compliance with Rules. The Travel Agency shall comply with all of VAX's rules and regulations regarding use of VAX from time to time in effect, including without limitation the following. VAX reserves the right to change these rules and regulations at any time. In the event such rules and regulations are not followed VAX may prevent Agency access to VAX.
(a) The Travel Agency is responsible for any equipment and software necessary to access the VAX Technology.
(b) VAX utilizes specific authorization codes or passwords of limited life for VAX access. Provided that the Travel Agency is not in breach of this Agreement, VAX will provide the Travel Agency with the proper authorization code or password from time to time in effect to enable the Travel Agency to access VAX.
(c) The Travel Agency shall provide a site manager or site administrator responsible for maintaining and controlling access to VAX by the employees, or representatives of the Travel Agency. The site manager or site administrator shall be responsible for the distribution of authorization codes or passwords and purchases. The site manager shall provide VAX with information in connection with the access and use of VAX by the employees, Agency or representatives of the Travel Agency as VAX reasonably requests.
(d) The Travel Agency may only use VAX in connection with legitimate transactions. The Travel Agency may not use VAX to engage in speculative transactions.
(e) The Travel Agency must comply with all rules, procedures and requirements from time to time communicated by VAX in connection with the installation, training, maintenance and use of VAX.
(f) The Travel Agency will immediately inform VAX of any occurrence or circumstance that arises that could reasonably lead to a claim being asserted against VAX or any VAX Affiliate.
(g) VAX may restrict or discontinue the Travel Agency's access to VAX in the event of a breach of this Agreement by the Travel Agency, or in the event of any other circumstance warranting such action in VAX' sole discretion (even if the Travel Agency has not violated any provision of this Agreement); provided that if VAX discontinues access to VAX as aforesaid and the Travel Agency has not violated any provision of this Agreement, the Travel Agency may elect to terminate this Agreement upon written notice given to VAX at any time while such access remains unavailable to the Travel Agency.
(h) The Travel Agency must provide its customer with the terms and conditions of each travel supplier for travel products purchased. Such supplier's terms and conditions may not be modified except as agreed to by the supplier.
4. Content and VAX Inventory. VAX will have sole control over the management of the VAX Technology including without limitation reviewing, editing, creating, deleting and updating the VAX Content. All travel products to be offered as part of the VAX Inventory from time to time shall be determined by VAX in its sole discretion. From time to time, VAX will create new editorial content and will periodically offer product specials. VAX controls and operates the Web Site. All Content on this Web Site, including, but not limited to, text, images, illustrations, advertisements, audio clips, and video clips, 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 VAX or VAX Affiliates, or by third party content providers, merchants, sponsors and licensors (collectively the "Providers") that have licensed their content or the right to market their products and/or services to VAX. Content on this Web Site or any Web site owned, operated, licensed or controlled by the Providers is solely for use related to Travel Agency business and Travel Agency consent to VAX provision of the same. Travel Agency agrees to abide by all additional copyright notices, information, or restrictions contained in any Content. You may download a single copy of any Content contained on this Web Site, solely for use related to Travel Agency business, consistent with these Terms, provided that Travel Agency maintain all copyright and other notices contained in such Content.
Travel Agency may not reproduce, republish, upload, post, transmit, distribute, disable, obscure and/or exploit the Content in any way (including by e-mail or other electronic means) without the prior consent of VAX or the Providers which may be withheld in our/their sole discretion. Your modification of the Content, use of the Content on any other web site or networked computer environment, or use of the Content for any purpose other than personal and/or commercial use related to Travel Agency travel business, without the prior consent of VAX or the Providers, violates the intellectual property rights and proprietary rights of the Content owners and is prohibited. Travel Agency may not use on Travel Agency web site any registered or unregistered trademarks, service marks or copyrighted materials appearing on this Web Site, including but not limited to any logos or characters, without the express written consent of the owner of the mark or copyright. You may not frame, deep link, or otherwise incorporate into another web site any of the Content or other materials on this Web Site without Our express prior written consent. Travel Agency recognizes that any reproduction or use of Content, except as authorized by these Terms, is considered intentional infringement.
5. Bookings made on VAX. VAX's sole responsibility with respect to VAX is to enable the Travel Agency to access the inventory of VAX's supplier network included in the VAX Inventory. Any Travel Agency utilizing VAX must have a business relationship with each supplier of travel products included in the VAX Inventory that such Travel Agency intends to make a Booking for on behalf of its customers. The Travel Agency is solely responsible for establishing, maintaining or otherwise enabling the business relationship with such suppliers. The Travel Agency is solely responsible for negotiating fees, commissions or other compensation from and arranging for the payment from any supplier of travel products.
6. Fees. Any fee, commission or compensation payable to the Travel Agency as the result of a Booking shall be determined and paid by the travel supplier offering the travel product or products included in such Booking. VAX reserves the right to charge the Travel Agency for access to VAX.
7. Travel Agency shall be solely responsible for all sales, use, privilege, ad valorem, excise and other taxes or assessments, however designated as may be levied or based on this Agreement, except for taxes based on net income, and Travel Agency shall reimburse VAX immediately in the event of payment thereof by VAX. Travel Agency shall be responsible for self assessing any such taxes.
8. Term; Termination. The term of this Agreement shall commence as of the date hereof and shall continue until terminated by Travel Agency upon not less than ninety (90) days prior written notice or by VAX immediately with or without notice. Upon termination for any reason, the parties shall have no further obligations hereunder except that Paragraphs 8, 9, 10, 11 and 12 shall survive such termination and each party shall be obligated to pay all amounts accruing prior to the termination date.
9. Proprietary Rights. VAX retains all right, title, and interest in the VAX Technology and any enhancements thereto, including without limitation graphical designs, names, icons, interfaces, and other design elements (i.e., the selection and arrangement of materials therein and the "look and feel" thereof). All information with respect to the purchase of the travel products included in the VAX Inventory that is collected by VAX and/or stored in VAX' systems software or hardware shall be jointly owned by VAX and the Travel Agency. Notwithstanding any provision in this Agreement to the contrary, (a) VAX shall have the right to provide, communicate, disclose, sell, license or transfer such information relating to VAX purchases to any third party on an aggregate basis such that individual customer information is not disclosed, and (b) the Travel Agency shall have the right to provide, communicate, disclose, sell, license or transfer such information relating to VAX purchases to any third party. Neither party shall be obligated to the other for an accounting of profits realized by reason of its use of such information relating to VAX purchases.
10. Confidentiality. Each party acknowledges that by reason of its relationship to the other party under this Agreement it will have access to the other party's Confidential Information. Each party agrees to maintain in confidence all Confidential Information received from the other, both oral and written, and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party. Each party agrees to use the Confidential Information only for the purpose of performing this Agreement.
11. DISCLAIMER OF WARRANTIES; NO DAMAGES. VAX DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUORY. YOU WILL NOT BE ENTITLED TO ANY DAMAGES. The sole obligation of VAX for a breach of the representations and warranties set forth in this paragraph 10 shall be to use reasonable efforts to promptly correct the condition that prevented the vax technology from operating properly. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS PARAGRAPH, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
12. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) FOR LOSS OF REVENUES OR PROFITS, OR OTHER FORMS OF ECONOMIC LOSS, OF ANY NATURE WHATSOEVER, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Indemnification. The Travel Agency hereby agrees to indemnify and hold VAX, the VAX Affiliates, their successors and assigns and their officers, directors, Agency and employees harmless upon demand from and against any and all claims, demands and suits, and all damages, losses, fines, judgments, costs and expenses incidental thereto, which may be suffered by, accrue against, be charged to or be recovered from any of them by reason of (i) the conduct of the Travel Agency of its business; (ii) any loss, damage, cost or expense incurred or suffered by a third party, arising out of any breach of this Agreement by the Travel Agency or any other act, error or omission of the Travel Agency, its officers, directors, Agency or employees.
14. Force Majeure. Neither VAX nor any VAX Affiliate shall have responsibility for or be liable for any delay or any other failure to perform for reasons beyond its reasonable control, including without limitation, accidents, strikes, work stoppages, labor trouble, illness, bad weather, shut down or delay or suppliers, governmental orders or regulations, telecommunications or computer failures or interruptions, transportation failures or delays, or inability to obtain labor, materials or fuels at customary commercial rates or prices. In the event of delay due to any such cause, VAX may, at its option, postpone service as long as reasonably necessary.
15. Governing Law; Forum Selection. This Agreement will be governed by the internal laws of the State of Wisconsin. In the event of a dispute relating to this Agreement, the Travel Agency and VAX agree that any proceeding instituted to resolve such dispute or to seek relief based on any theory of recovery whatsoever shall have as its forum a court of general jurisdiction situated in Milwaukee, Wisconsin. The Travel Agency hereby consents to the jurisdiction and venue of any such court and waives any objection based in improper or inconvenient jurisdiction or venue. In the event VAX is forced to enforce the terms herein or collect monies owed, it shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which it may be entitled including but not limited to interest on unpaid balances at the maximum amount permitted by law.
16. Notices. All notices and other communications hereunder shall be in writing and shall be hand delivered, or sent by certified mail, postage prepaid, return receipt requested, or transmitted by facsimile, to the parties at the addresses set forth above.
17. Assignment; Subcontracts. The Travel Agency shall not assign this Agreement or any of its rights hereunder without the prior written consent of VAX. VAX may assign this Agreement or any of its rights hereunder to one or more VAX Affiliates, or to any other party in connection with the sale, exchange or other disposition of VAX' or VAX Affiliates' business or the segment thereof to which this Agreement relates. All references to VAX in this Agreement shall be deemed to refer to VAX Affiliates, as appropriate in the context, if such an assignment shall occur. VAX may also subcontract any of its duties hereunder to one or more VAX Affiliates.
18. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersede all prior agreements, discussions and understandings, whether written or oral, concerning the subject matter hereof. This Agreement may be amended or modified only by a written document signed by the party against which the enforcement thereof is sought.
19. Responsibility for Other Parties. The Travel Agency shall advise its employees of all obligations and restrictions contained in this Agreement and shall be responsible for ensuring that all of its employees comply therewith. VAX is not responsible for the travel products sold from the VAX Inventory, it being understood that the suppliers thereof are solely responsible for fulfillment, customer service and all other issues that may arise relating thereto.
20. Publicity. You may not issue any press release describing or promoting the relationship described in this Agreement without the prior written consent of VAX (which consent will not be unreasonably withheld).
21. You agree to be liable and indemnify us for any and all purchases made (including but not limited to all credit card charge backs), fraudulently or otherwise, using your ARC number or pseudo ARC number whether such purchases are made by you or any of the following including but not limited to Agency’s outside travel agents, affiliates, employees, independents or consultants and any customer direct payments made whether the booking was made through your agency or on your agency’s affiliate website.
In no event shall an Agency offer any discounts, rebates, credits or any similar reductions off of any of The Mark Travel’s products without the approval of The Mark Travel Corporation.
23. Third Party Providers including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings are solely between the travel Agency and such Providers. The Travel Agency must have a business relationship with each Provider of travel products or services made available through the Third Party Provider if Travel Agency intends to make a purchase for or on behalf of its customers. The Travel Agency is responsible for establishing, maintaining or otherwise enabling the customers. The Travel Agency is responsible for establishing, maintaining or otherwise enabling the business relationship with such Providers. The Travel Agency agrees that VAX shall neither be responsible nor liable for any loss or damage incurred by Travel Agency as a result of any such dealings or as the result of the presence of such Providers on this Web Site.
24. Dealings with Advertisers. Travel Agency correspondence or business dealings with, or participation in promotions of, advertisers found on or through this Web Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings are solely between Travel Agency and such advertiser. Travel Agency agrees that VAX (and the Providers) shall neither be responsible nor liable for any loss or damage incurred by Travel Agency as the result of any such dealings or as the result of the presence of such advertisers on this Web Site.
25. Email and Public Communication. "Email" means an e-mail function offered as part of the Web Site. If Travel Agency uses Email within the Web Site, you must not: defame, abuse, harass or threaten others; make any bigoted, hateful or racially offensive statements;
advocate illegal activity or discuss illegal activities with the intent to commit them;
post or distribute any material that infringes and/or violates any right of a third party or any law; post or distribute any vulgar, obscene, discourteous or indecent language or images; advertise or sell to, or solicit others; or distribute any software or other materials which contain a virus or other harmful component. By submitting any materials to us by Email or otherwise, you automatically grant (or warrant that the owner of such materials expressly granted) us a perpetual, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, publicly perform and display, create derivative works from and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed throughout the universe.
28. Message Boards. In the event that VAX provides message boards or discussion forums on the VAX Web site (the "Forums"); Travel Agency agrees to use the Forums only in a noncommercial manner. Travel Agency shall not, without VAX’s express approval, distribute or otherwise publish any material containing any solicitation of funds, advertising, or written solicitation for goods and services. Travel Agency agrees that any uploaded materials may be republished without compensation to Travel Agency or any other person or entity. In addition, Travel Agency waives moral rights in any uploaded materials. We review the content of messages proposed for the Forums. Although VAX is not responsible for these messages, We reserve the right (but not the obligation) to delete, move, reject or edit messages that VAX, in our sole discretion, deem abusive, defamatory, obscene, in violation of copyright or trademark laws, or otherwise unacceptable. We do not endorse any Information posted on this Web Site. VAX agrees that Travel Agency must evaluate, and bear all risks and liability associated with, the use of any messages, Information, or Content, including any reliance on the accuracy, completeness, or usefulness of such messages, Information, or Content. In this regard, Travel Agency acknowledges that the Web site is provided “AS IS,” with all faults, and that Travel Agency use of the Web site, any Content VAX creates or information submitted to VAX by third parties, including without limitation, information in the Forums, and in all other parts of this Web site, is at Your sole risk and liability.
29. Miscellaneous. (a)Modification of Agreement. This Agreement may be modified only by VAX at any time without notice. The terms and conditions may be accessed via the Web Site. Any such modifications shall become effective immediately upon posting. By logging in, accessing, and/or using the Web Site, Travel Agency agrees to review this Agreement periodically to learn of and be in compliance with, any modified terms and conditions (b) Acceptance of Agreement. By selecting or clicking the “I AGREE” button below, or by accessing or using the Services, Travel Agency acknowledges and agrees that (1) an authorized representative of Travel Agency has read and understands this Agreement, (2) Agency accepts this Agreement in its present form and as it may be modified by VAX from time to time, (3) Agency agrees to be bound by the terms and conditions contained herein, as well as by the terms and conditions of any modified version(s) of this Agreement, and (4) Agency accepts this Agreement on behalf of itself and its employees and independent contractors, and will assure that the Agency and its independent contractors will comply with this Agreement. After clicking the “I AGREE” button below, Travel Agency may register to use VAX. The Web Site can then be accessed and Travel Agency may use VAX, subject to this Agreement. (c) Travel Agency does not agree to the Agreement if Travel Agency closes the Agreement box without selecting “I AGREE”. In doing so, Travel Agency is not authorized to access or use VAX.