Vacation Rental Technologies User License Agreement
This Agreement
shall govern your use of the Vacation Rental Technologies products, including the firmware,
software as a service delivered via Vacation Rental Technologies' applications (collectively
“Software”), hardware devices
(“Hardware”), and other related services along with any third-party software or
service contained therein (the “Solution”), provided by Vacation Rental
Technologies, LLC
(“Vacation Rental Technologies”). This is a legal agreement between you and
Vacation Rental Technologies.
Installing, using, or accessing the Solution or any part thereof means you agree to these terms,
so please read them carefully. For the avoidance of doubt, “you”, “your” and other pronouns used
to reference the user of the Solution under this Agreement shall include you to the extent you
are an individual and your company to the extent you are using it on behalf of an entity. Please
ensure that you have the authority to use the Solution and bind your company, if applicable,
prior to entering into this Agreement as set forth below.
This Vacation Rental
Technologies Solution License Agreement (“Agreement”) covers your rights to
use the Solution, restrictions on that use, Vacation Rental Technologies' right to automatically
renew and charge you for paid versions or features of the Solution, and your agreement to
arbitrate any dispute that may arise between us. Vacation Rental Technologies has included
links to additional terms, such as Vacation Rental Technologies' Privacy
Policy, at https://www.vacayrental.tech/privacy.html (the
“Website”). All of these terms are important and together create this legal
agreement that applies to you.
If you are under the age of 18, you are not permitted to
use the Solution or provide your personal information to Vacation Rental Technologies without
the consent of your
parent or guardian who must first accept this Agreement and administer the Solution on your
behalf.
1. By installing, accessing and/or using the
Solution, you agree unconditionally to be bound by this Agreement and acknowledge that it is
enforceable as a written contract signed by you. If you do not unconditionally agree to all of
these terms, do not install, use, or access this Solution. To the extent any translated version
of this Agreement conflicts with the English version, the English version controls. Vacation
Rental Technologies
MAY MODIFY THIS AGREEMENT, INCLUDING THE CONFIDENTIAL ARBITRATION AND DISPUTE RESOLUTION
PROVISION BELOW, FROM TIME TO TIME AT Vacation Rental Technologies' SOLE DISCRETION FOR ANY
REASON, AND SUCH
MODIFICATIONS WILL BE EFFECTIVE UPON YOUR NEXT USE OF THE SOLUTION. If Vacation Rental
Technologies
makes material changes to this Agreement, such changes will be effective only prospectively
until Vacation Rental Technologies communicates with you via the contact information you
provided (or through
other means) and gives you an opportunity to review and accept or reject the updated Agreement
within 30 days. It is very important that you keep your account information, including email
address and other contact information, current. If you do not agree to the Agreement as amended,
then you may continue to use the version of the Solution you purchased for the current term of
the Agreement, but you may not update the Solution or renew the Agreement. If you withdraw your
acceptance of this Agreement, you will need to uninstall and discontinue your use of the
Software.
2. Vacation Rental Technologies hereby grants you a nonexclusive, nontransferable, revocable,
limited license to
install the Solution for use in accordance with the terms and conditions of this Agreement. This
license is limited to monitoring the number of camera licenses you have purchased.
Vacation Rental Technologies, along with Vacation Rental Technologies' suppliers and partners,
retain ownership of our respective
Solution and all rights related to the Solution, including all intellectual property rights. The
only rights Vacation Rental Technologies grants you are those rights expressly stated in this
Agreement. Also, if
you provide Vacation Rental Technologies any comments, information, opinions, or suggestions,
which Vacation Rental Technologies
considers “Feedback,” you allow Vacation Rental Technologies to use your
Feedback without
restriction, for any purpose and without compensation to you. Your use of the Solution is
limited to devices, operating systems, and browsers Vacation Rental Technologies supports and
may be affected by
the performance and compatibility of your hardware, software and Internet access. Meeting system
requirements on Vacation Rental Technologies' website or in the documentation is your
responsibility and you are
responsible for the cost of your equipment, which may include obtaining updates or upgrades from
time to time in order to continue using the Solution.
3. This Agreement is effective
for the subscription term you purchased unless terminated earlier as permitted below. For paid
versions of the Solution, if no term was specified, the default term is one year from the date
you first acquired the Solution. For any versions of the Solution and any feature therein that
Vacation Rental Technologies gives you for free, at no charge, on a trial, on courtesy or
evaluation basis, or
that is labeled as “Beta” or otherwise described as experimental, untested, or not fully
functional (“Trial Feature”), this Agreement is effective for as long as
Vacation Rental Technologies makes the Solution available to you, if no term was specified.
Vacation Rental Technologies may
terminate this Agreement at Vacation Rental Technologies' option if you fail to comply with its
terms and
conditions. You may also terminate this Agreement prior to the expiration of the term by
permanently erasing the Software from your devices and canceling your account with Vacation
Rental Technologies verbally or in writing and with confirmation from a
representative of Vacation Rental Technologies. If this Agreement terminates or expires, you
must stop using the
Software (including any internet based services), you must permanently erase all copies of the
Software on your devices to the extent you can and
Vacation Rental Technologies may cancel and/or close your account at Vacation Rental
Technologies' sole discretion. If the Solution
includes any Trial Feature, then this section of the Agreement applies and controls. All Trial
Features are provided as is, without any warranty, indemnity, updates, maintenance or support,
express or implied, subject to any statutory rights that cannot be excluded or limited by law.
You acknowledge that the Trial Features may contain bugs, errors and other problems that could
cause system or other failures and data loss, and use is at your own risk. You acknowledge that
Vacation Rental Technologies: (i) has not promised or guaranteed to you that Trial Features, or
similar or
compatible products will be announced or made available to anyone in the future, and (ii) has no
express or implied obligation to do so.
4. Automatic Renewal, Cancellation and Refund. You agree to allow Vacation
Rental Technologies to automatically collect payment using the payment method on file,
so that Vacation Rental Technologies can prevent an interruption in your
service. Cancelling will not retroactively refund payments, and
previously charged fees cannot be pro-rated based on cancellation date. Cancelling
a monthly subscription will stop the recurring fee going forward, and you will have access to
your subscription until the end of the 30-day period in which you notified Vacation Rental
Technologies of your cancellation.
You are responsible for ensuring that your billing
information is current, complete, and accurate. If Vacation Rental Technologies experiences a
problem processing payment using the information you originally provided, you authorize Vacation
Rental Technologies to complete your transaction if possible directly through your credit
account with your financial institution to prevent an interruption in service.
5. In order to provide services to you, Vacation Rental Technologies may collect
and process personal and machine data, including sensitive information (e.g. financial/billing
information, and geo-location) in accordance with the Privacy Policy. Vacation Rental
Technologies may transfer
and process such data in the United States and other countries where Vacation Rental
Technologies or Vacation Rental Technologies'
service providers have facilities. You agree that any use of the Solution and any collection,
processing, or sharing of information through the Solution is governed by Vacation Rental
Technologies' Privacy Notice in effect at the time of your use.
6. The Solution is licensed to you, not sold, and it is protected by national
and international laws and treaties in the United States and around the world. You do not have
any right to reproduce or distribute the Software without Vacation Rental Technologies'
permission, and if you do
so you may be subject to fines or any other penalties allowed by the civil and criminal laws of
your country. You may not: reverse-engineer or otherwise try to derive firmware,
source code from the Software, unless allowed by law; adapt or modify the Solution or create
derivative works based on the Solution; publish, copy (other than backup copies if permitted by
your subscription), sell, lend, give away, pledge, mortgage, alter, tamper with, rent,
sublicense, assign or in any other way transfer the Solution to anyone else; exploit the
Solution for any commercial purposes (excluding solely property management services where you or
your company received the Solution from a distributor, reseller or strategic business partner of
Vacation Rental Technologies, provided that you may not further resell or separate the Solution
unless you have a
written agreement to do so); attempt to circumvent technical protection measures in the
Solution; use the Solution to violate the law; or engage in any activity that interferes with
anyone else’s use of the Solution. If you have installed the Software on a device and you
transfer ownership of that device to someone else, you must ensure that any Software is deleted
from that device and that the device information is removed from your account with Vacation
Rental Technologies.
The Solution may contain enforcement technology that limits the size of bandwidth consumption,
or the number of devices on which the Solution may be installed or that allows Vacation Rental
Technologies to
suspend your access to the Solution if this Agreement terminates or expires.
7. Support, Updates & Product Lifecycle. Users with unexpired, paid
subscriptions will receive support in accordance with Vacation Rental Technologies' current
standard support offerings, policies, and procedures as described on the Website. Vacation
Rental Technologies' standard support offerings, policies, and procedures may change from
time to time at Vacation Rental Technologies' sole discretion
and may vary by country. Any obligation Vacation Rental Technologies may have to support the
previous version of the Solution ends when an upgrade, modified or later version, or other
update to the Solution (“Update”)
becomes available. For your convenience and to ensure that the Solution includes new features
that Vacation Rental Technologies develops, by agreeing to this Agreement you give Vacation
Rental Technologies permission to
install Updates on your devices automatically when available, to the extent that it is possible
for Vacation Rental Technologies to run such background installations. Any Updates or technical
support provided
for free versions of the Solution or for Trial Features that may be provided are provided at
Vacation Rental Technologies' sole discretion and may be discontinued at any time. From time to
time, at
Vacation Rental Technologies' sole discretion, Vacation Rental Technologies may elect to
discontinue certain Solution or particular
features of the Solution. “End of Support” refers to the date when Vacation
Rental Technologies
no longer provides automatic fixes, updates or technical assistance for particular Solution.
For the avoidance of doubt, all Software delivered via SaaS methodology may be modified, updated
and improved at Vacation Rental Technologies' sole discretion.
8. Binding Arbitration and Class Action Waiver.
8.1 Agreement to Arbitrate Disputes. Any claim, dispute or
controversy (“Claim”) by either you or Vacation Rental Technologies against the
other arising
from, relating to or in any way concerning the Agreement, the Solution, or any Hardware,
equipment, products, or services you receive from Vacation Rental Technologies (or from any
advertising for any
such products or services) shall, at the demand of either party, be resolved by confidential
binding arbitration. This agreement to arbitrate also includes claims relating to the
enforceability or interpretation of any of these arbitration provisions. However, Vacation
Rental Technologies
will not demand arbitration pursuant to this Agreement in connection with any individual claim
that you properly file and pursue in a small-claims court of your state or municipality, so long
as the claim is pending only in that court and the claim is on an individual (non-class,
non-representative) basis. This agreement to arbitrate includes all controversies and claims of
any kind, regardless of the type of claim or legal theory or remedy (damages, injunctive relief,
or declaratory relief). The disputes subject to this arbitration agreement include not only
claims by you, but also made on your behalf or connected with you, such as an employee,
representative, agent, predecessor, successor, heir, assignee, or trustee in bankruptcy.
Disputes subject to this arbitration agreement include not only claims that relate directly to
Vacation Rental Technologies, but also to Vacation Rental Technologies' parent, affiliates,
successors, assignees, employees, and
agents. This agreement to arbitrate includes claims made as part of a class action, private
attorney general or other representative action, it being expressly understood and agreed to
that the arbitration of such claims must proceed on an individual (non-class,
non-representative) basis and the arbitrator may award relief only on an individual (non-class
and non-representative) basis. You and Vacation Rental Technologies agree that no class action,
private attorney
general or other representative claims may be pursued in arbitration, nor may such action be
pursued in court if either you or Vacation Rental Technologies elects arbitration. By accepting
this arbitration
agreement, you agree to waive the right to initiate or participate in a class action,
representative action, private attorney general litigation or consolidated arbitration related
to this Agreement.
8.2 Notice of Dispute. If either of us intends to seek arbitration,
the party seeking arbitration must first notify the other party of the dispute in writing at
least 30 days in advance of initiating arbitration. Notice should be sent to Vacation Rental
Technologies, 957 Cherrywood Dr, Baldwin, NY 11510, USA. The notice must
include your name, address, and contact information, the facts giving rise to the dispute, and
the relief requested. You and Vacation Rental Technologies will attempt to resolve any dispute
through informal
negotiation within 60 days from the date of the Notice of Dispute is sent. After 60 days, you or
Vacation Rental Technologies may commence arbitration.
8.3 Administration of Arbitration. If you and Vacation Rental Technologies do not resolve any
dispute by informal negotiation or in small claims court, any
other effort to resolve the dispute will be conducted exclusively by binding arbitration
governed by the Federal Arbitration Act (“FAA”). YOU ARE GIVING UP THE RIGHT TO
LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR
JURY. Instead, all disputes will be resolved before a single, neutral arbitrator and the
proceeding shall be confidential. The arbitrator will be either a lawyer admitted to practice
law in his or her jurisdiction and with at least ten years’ experience or a retired or former
judge selected in accordance with the rules of the AAA. The arbitrator is bound by the terms of
this Agreement, and the arbitration shall be governed by the Commercial Arbitration Rules and
Supplementary Procedures for Consumer Related Disputes of the AAA, as modified by this Agreement
(the “Arbitration Rules”). For more information, see adr.org or call
1.800.778.7879. Unless the disclosed claims or counterclaims are less than $25,000, the
arbitrator shall issue a reasoned, written decision sufficient to explain the essential findings
and conclusions on which the award is based. All arbitration proceedings shall be conducted in
English, and the United States FAA shall apply to the Agreement and the binding arbitration. The
award shall be confidential and only disclosed as is necessary to obtain judgment or as
otherwise required by law. Where authorized by applicable law, the arbitrator’s award may
include attorneys’ fees and other expenses. The arbitration award shall determine the rights and
obligations between the named parties only, and only in respect of the claims in arbitration,
and shall not have any bearing on the rights and obligations of any other dispute.
8.4 Costs. The party initiating the arbitration shall pay the initial filing fee. If you file the
arbitration and an award is rendered in your favor, Vacation Rental Technologies will reimburse
you for your
filing fee. If there is a hearing, Vacation Rental Technologies will pay the fees and costs for
the first day of
that hearing. All other fees and costs will be allocated in accordance with the arbitration
rules. However, Vacation Rental Technologies will advance or reimburse filing and other fees if
the arbitrator
rules that you cannot afford to pay them or if you ask Vacation Rental Technologies and Vacation
Rental Technologies determines
there is a good reason for doing so. Each party shall bear the expense of their respective
attorneys, experts, and witnesses and other expenses, regardless of who prevails, but a party
may recover any or all expenses from another party if the arbitrator, applying applicable law,
so determines.
8.5 Right to Resort to Provisional Remedies Preserved. Nothing herein
shall be deemed to limit or constrain Vacation Rental Technologies' right to resort to self-help
remedies or to
comply with legal process, or to obtain provisional remedies such as injunctive relief,
attachment, or garnishment by a court having appropriate jurisdiction; provided, however, that
you or Vacation Rental Technologies may elect to arbitrate any dispute related to such
provisional
remedies.
8.6 Conflicting Terms. In the event of a conflict between the arbitration
rules and this arbitration agreement, this arbitration agreement shall govern.
8.7 WAIVER OF JURY TRIAL. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH
ARBITRATION, YOU AND Vacation Rental Technologies AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU
AND Vacation Rental Technologies
UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE THAT IN ANY WAY RELATES TO OR
ARISES OUT OF THE AGREEMENT OR FROM ANY SOLUTION, SOFTWARE, HARDWARE, PRODUCTS AND SERVICES YOU
RECEIVE FROM Vacation Rental Technologies (OR FROM ANY ADVERTISING FOR ANY SUCH PRODUCTS OR
SERVICES). IN THE
EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
9. Limited Warranties; Disclaimer of Other Warranties.
9.1 Warranties. For sixty (60) days after the purchase date,
for paid versions of the Solution only, Vacation Rental Technologies warrants that the Solution
licensed under
this Agreement (including Updates provided during the warranty period but only until the
warranty lapses) will perform substantially in accordance with the documentation provided by
Vacation Rental Technologies in connection with that Solution at the time of purchase. Vacation
Rental Technologies does not warrant
or guarantee that any particular mobile device or computer will be compatible with or function
with the Solution, nor does Vacation Rental Technologies warrant or accept any liability for the
operation of your
personal equipment that is used to access the Solution. Your sole remedy, and Vacation Rental
Technologies and its
suppliers’ entire liability, in case of any breach of this limited warranty is that Vacation
Rental Technologies
will, at its option, refund the price you paid for the Solution upon your return thereof, or
provide an alternative remedy as required by local consumer law in your jurisdiction. These
remedies may not be available in some countries to the extent that Vacation Rental Technologies
is subject to
restrictions under applicable export-control laws and regulations.
9.2 Exclusions. THE ABOVE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES. THEY REPLACE ALL OTHER WARRANTIES,
REPRESENTATIONS, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, PERFORMANCE, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NON-INFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTY IN THIS SECTION, THE SOLUTION IS PROVIDED AS
IS. YOU ARE RESPONSIBLE FOR SELECTING THE SOLUTION TO ACHIEVE YOUR INTENDED RESULTS, FOR
INSTALLING, ACCESSING AND USING THE SOLUTION, AND FOR THE RESULTS OBTAINED. VACATION RENTAL
TECHNOLOGIES DOES NOT WARRANT OR GUARANTEE THE SOLUTION’S USE OR PERFORMANCE. VACATION RENTAL
TECHNOLOGIES DOES NOT WARRANT OR GUARANTEE THAT THE SOLUTION’S OPERATION WILL BE FAILSAFE,
UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS,
THAT THE SOLUTION WILL PREVENT TICKETS, FINES OR OTHER COSTS ASSOCIATED WITH A NOISE OR OTHER
COMPLAINT, THAT THERE WILL BE NO MALFUNCTIONS OR OTHER ERRORS IN THE SOLUTION CAUSED BY VIRUS,
INFECTION, WORM OR SIMILAR MALICIOUS CODE NOT INTRODUCED BY VACATION RENTAL TECHNOLOGIES, OR
THAT THE SOLUTION WILL MEET YOUR REQUIREMENTS. VACATION RENTAL TECHNOLOGIES IS NOT LIABLE
FOR ANY DOWNTIME OR SERVICE INTERRUPTION, FOR ANY LOST DATA OR SYSTEMS, OR FOR ANY OTHER
DAMAGES ARISING OUT OF OR RELATING TO ANY NOISE
ALERTS. VACATION RENTAL TECHNOLOGIES DOES NOT MAKE ANY WARRANTY THAT THE PRODUCTS WILL DETECT OR
REPORT OCCUPANCY VIOLATIONS AND
ANY STATEMENTS REGARDING OCCUPANCY VIOLATIONS OR FACIAL RECOGNITION ARE ESTIMATES ONLY AND
MAY NOT BE RELIED ON FOR DISPUTING OCCUPANCY VIOLATIONS, INSURANCE OR ANY OTHER CLAIMS. AS
SUCH, YOU AGREE THAT THE VACATION RENTAL TECHNOLOGIES SOLUTION, ITS USER INTERFACE, DATA
OR REPORTS ARE NOT INTENDED TO BE USED AS EVIDENCE
IN A LEGAL PROCEEDING AND VACATION RENTAL TECHNOLOGIES SHALL HAVE NO OBLIGATION OR INVOLVEMENT
THEREIN. The
Solution is not fault-tolerant and is not designed or intended for high-risk activities such as
use in hazardous environments requiring failsafe performance, including nuclear-facilities
operations, air traffic communication systems, weapons systems, direct life-support machines, or
any other application in which the failure of the Solution could lead directly to death,
personal injury, or severe physical or property damage. This warranty does not cover defects,
damage or failure of Hardware caused by misuse, accident, unauthorized modification, improper
use or maintenance, a force majeure event (e.g., earthquake, lightning, flood, fire, etc.),
inspection, reverse engineering (which is expressly prohibited) or any other damage or failure
caused by a third party or a third party product. This warranty is void if product or part
identification labels are removed from the Hardware without written authorization from
Vacation Rental Technologies. Further, this warranty is void if additional Software
is installed on the Sofware without written authorization from Vacation Rental Technologies,
or if any tampering is detected with the Software.
9.3 Hardware Service. You will supply all Hardware and Vacation Rental Technologies will not
be held responsible for any Hardware updates, malfunction or defective Hardware.
10. Indemnity and Limitation of Liability.
10.1 Vacation Rental Technologies Indemnification. VACATION RENTAL TECHNOLOGIES WILL INDEMNIFY,
DEFEND, AND HOLD YOU HARMLESS FROM ALL THIRD PARTY CLAIMS AND LAWSUITS WHICH ARE CAUSED BY THE
PRODUCT’S INFRINGEMENT OF A U.S. COPYRIGHT, U.S. TRADEMARK, U.S. TRADE SECRET, OR U.S. PATENT OF
SUCH THIRD PARTY UNDER UNITED STATES LAW. VACATION RENTAL TECHNOLOGIES' INDEMNIFICATION
OBLIGATION IS SUBJECT TO:
(A) YOU PROVIDING VACATION RENTAL TECHNOLOGIES WITH PROMPT WRITTEN NOTICE OF ANY CLAIM OR
LAWSUIT, (B) VACATION RENTAL TECHNOLOGIES
HAVING SOLE CONTROL OF THE DEFENSE AND ALL NEGOTIATIONS FOR SETTLEMENT OR COMPROMISE THEREOF AND
(C) YOU REASONABLY COOPERATING IN THE DEFENSE OF SUCH CLAIM OR LAWSUIT. VACATION RENTAL
TECHNOLOGIES AGREES TO PAY
ALL SETTLEMENTS ENTERED INTO BY VACATION RENTAL TECHNOLOGIES, JUDGMENTS FINALLY AWARDED AGAINST
YOU, AND ALL
ATTORNEYS’ FEES AND EXPENSES FOR COUNSEL HIRED BY VACATION RENTAL TECHNOLOGIES. YOU MAY ELECT TO
PARTICIPATE IN
ANY SUCH ACTION WITH COUNSEL OF ITS OWN CHOICE AND EXPENSE. VACATION RENTAL TECHNOLOGIES WILL
HAVE NO LIABILITY IF
THE ALLEGED INFRINGEMENT IS BASED UPON: (I) A COMBINATION OF NON-VACATION RENTAL TECHNOLOGIES
PRODUCTS; (II) USE
FOR A PURPOSE OR IN A MANNER NOT PRESCRIBED BY VACATION RENTAL TECHNOLOGIES; (III) USE OF ANY
OLDER VERSION OF A
PRODUCT WHEN USE OF NEWER PRODUCT WOULD HAVE AVOIDED INFRINGEMENT; (IV) ANY MODIFICATION NOT
MADE WITH VACATION RENTAL TECHNOLOGIES' WRITTEN APPROVAL OR ANY MODIFICATION MADE BY VACATION
RENTAL TECHNOLOGIES DUE TO YOUR
SPECIFIC INSTRUCTIONS; (V) LICENSED COMPONENTS SOURCED THROUGH THIRD PARTIES OR (VI) ANY
INTELLECTUAL PROPERTY RIGHT OWNED OR LICENSED BY YOU, YOUR COMPANY (IF YOU ARE USING FOR BENEFIT
OF AN ENTITY), ITS END USERS OR ANY OF ITS/THEIR AFFILIATES. THE PROVISIONS OF THIS SECTION 10.1
SET FORTH VACATION RENTAL TECHNOLOGIES' SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND
EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS OF ANY KIND.
10.2 Your Indemnification of Vacation Rental Technologies. YOU WILL INDEMNIFY VACATION
RENTAL TECHNOLOGIES AND, AT
ITS OPTION, DEFEND ANY ACTION BROUGHT AGAINST VACATION RENTAL TECHNOLOGIES TO THE EXTENT THAT IT
IS BASED UPON A
THIRD PARTY CLAIM ARISING OUT OF (I) THE UNAUTHORIZED OR UNLICENSED USE OF THE PRODUCTS; (II)
YOUR INTELLECTUAL PROPERTY OR PRODUCTS VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY
RIGHTS, PRIVACY RIGHTS OR ANY VIOLATION OF APPLICABLE LAW; (III) YOUR GROSS NEGLIGENCE OR
WILLFUL ACTS RESULTING IN THE DEATH, DISABILITY OR DAMAGE OR REAL PROPERTY OF SUCH THIRD PARTY;
OR (IV) VACATION RENTAL TECHNOLOGIES' COMPLIANCE WITH YOUR DESIGNS, SPECIFICATIONS, OR
INSTRUCTIONS WHERE SUCH
CLAIM WOULD HAVE BEEN AVOIDED BUT FOR SUCH COMPLIANCE WITH YOUR REQUEST, AND WILL PAY ANY COSTS,
DAMAGES AND REASONABLE ATTORNEYS' FEES ATTRIBUTABLE TO SUCH CLAIM THAT ARE AWARDED AGAINST
VACATION RENTAL TECHNOLOGIES, PROVIDED THAT VACATION RENTAL TECHNOLOGIES (A) NOTIFIES YOU IN
WRITING OF THE CLAIM WITHIN TEN (10)
DAYS AFTER BECOMING AWARE OF SUCH CLAIM; (B) GRANTS YOU SOLE CONTROL OF THE DEFENSE AND
SETTLEMENT OF THE CLAIM, IF YOU ASSUME SUCH DEFENSE; AND (C) PROVIDES YOU WITH ALL ASSISTANCE,
INFORMATION AND AUTHORITY REASONABLY REQUIRED FOR THE DEFENSE AND SETTLEMENT OF THE
CLAIM.
10.3 Limitation of Liability. UNDER NO CIRCUMSTANCES ARE VACATION RENTAL TECHNOLOGIES OR ITS
SUPPLIERS LIABLE TO YOU FOR ANY: (A) INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES,
INCLUDING THOSE RESULTING FROM DEATH, DISABILITY, INJURY, OR DAMAGE TO TANGIBLE PROPERTY; (B)
THEFT OF PERSONALLY IDENTIFIABLE INFORMATION, VIOLATION OF ANY LAWS BY YOU INCLUDING PRIVACY
LAWS, OR COST OF PROCURING SUBSTITUTE SOLUTION OR SERVICES, AND (C) DAMAGES FOR LOSS OF PROFITS,
LOSS OF GOODWILL, LOSS OF PERSONNEL SALARIES, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION,
LOSS OF DATA, OR NEGLIGENCE OF ANY KIND, OR FOR ANY OTHER INDIRECT DAMAGE OR LOSS. IN NO EVENT
WILL VACATION RENTAL TECHNOLOGIES, VACATION RENTAL TECHNOLOGIES AFFILIATES’ OR VACATION RENTAL
TECHNOLOGIES SUPPLIERS’ AGGREGATE LIABILITY TO YOU FOR
DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE PRICE YOU PAID FOR THE APPLICABLE SOLUTION, OR US
$100 (OR THE EQUIVALENT AMOUNT IN NATIONAL CURRENCY) IF YOU USED A FREE VERSION OF THE SOLUTION.
VACATION RENTAL TECHNOLOGIES SHALL HAVE NO LIABILITY OR OBLIGATION FOR ANY DAMAGES THAT ARISE
FROM THE USE OF
HARDWARE AS PART OF OR IN COMBINATION WITH ANY DEVICES, PARTS OR THIRD PARTY PRODUCTS THAT ARE
NOT PROVIDED BY VACATION RENTAL TECHNOLOGIES AND ARE INCONSISTENT WITH THE DESIGNED PURPOSE OF
THE VACATION RENTAL TECHNOLOGIES SOFTWARE. You agree to the limitations of liability in
this Section 10.3 and acknowledge that
without your agreement to this term, the fee charged for the Solution would be higher. Nothing
in this Agreement limits any rights you may have under existing consumer-protection statutes or
other applicable laws, that may not be waived by contract in your jurisdiction.
11.
Government End Users and Export Control. The Software is commercial computer
software under DFARS Section 217.7202, the Defense Federal Acquisition Regulations Supplement
(codified under Chapter 2 in Title 48, Code of Federal Regulations). The accompanying
documentation (if any) is commercial-computer-software documentation under FAR Section 12.212,
the Federal Acquisition Regulations (codified in Title 48 of the United States Code of Federal
Regulations). Any use, modification, reproduction, release, performance, display, or disclosure
of the Software and accompanying documentation by the United States Government is governed
solely by this Agreement and is prohibited except to the extent expressly permitted by this
Agreement. Your use of the Solution and its related documentation, including technical data, may
not be exported or re-exported in violation of the U.S. Export Administration Act, its
implementing laws and regulations, the laws and regulations of other U.S. agencies, or the
export and import laws of the jurisdiction in which you obtained the Solution. Export to a
particular individual, entity, or country may be prohibited by law. Information about import
restrictions can be found at websites maintained by OFAC.
12. Third Party
Programs. Some third-party materials included with the Solution may be subject to
other terms and conditions, which are typically found in a “Read Me” or an “About” file
accompanying the Solution. Those third-party materials may include software source code licensed
by third parties under one or more open-source or free-software licenses, including the GNU
General Public License (GPL), which are considered “Open Source Software.” The
Open Source Software is licensed under terms and conditions different from this Agreement and
may, in some cases, conflict with the terms of this Agreement and will apply instead of the
terms of this Agreement. If an Open Source Software license requires Vacation Rental
Technologies to distribute
any source code related to the Software or any modifications to the Software, Vacation Rental
Technologies will
make the source code available on request.
13. General. Vacation Rental Technologies
does not waive any provision of this Agreement unless done so in a signed writing. If any part
of this Agreement is for any reason held to be unenforceable, that part is, to that extent,
deemed omitted, and the rest of it remains fully enforceable; PROVIDED HOWEVER, THAT THE
ARBITRATION AGREEMENT SHALL NOT APPLY TO ANY CLAIMS AS TO WHICH THE LIMITATIONS ON CLASS ACTIONS
OR CONSOLIDATED ARBITRATION ARE NOT PERMITTED BY APPLICABLE LAW. This Agreement, including
Vacation Rental Technologies' Privacy Policy, which is incorporated in this Agreement,
constitutes the entire
agreement between you and Vacation Rental Technologies and governs your use of the Solution.
This Agreement
completely replaces any prior agreements between you and Vacation Rental Technologies in
relation to the Solution,
and any other communications, representations, or advertising relating to the Solution. This
Agreement operates to the fullest extent permissible by law. Except as provided in below, this
Agreement, the use of the Solution, the relationship of the parties, and any disputes arising
out of, concerning, or relating to the Agreement, including any disputes between you and
Vacation Rental Technologies, will be governed by and construed in accordance with the laws of
the State of New York, excluding its conflict of law principles, except that the FAA governs all provisions
relating to arbitration. The United Nations Convention on Contracts for the International Sale
of Goods and the Uniform Computer Information Transactions Act do not apply to the Solution. You
are responsible for any charges incurred with your data or mobile service provider in connection
with your use of the Solution, including any overage and penalties assessed for exceeding your
data or minute allowance, or use of domestic or international short message service. You are
responsible for knowing your country’s privacy laws and whether or not the use of the Vacation
Rental Technologies
Solution will violate applicable law.
14. Local Law. The subsections
below contain information regarding the local laws of certain jurisdictions that will apply to
this Agreement and may supersede certain provisions as referenced herein.