GENERAL TERMS & CONDITIONS
By signing up for and/or otherwise accessing any of the services or products
offered by Vacations In Rhode Island, a corporation organized
and existing under the laws of the State of Rhode Island addressed
at PO Box 8976, Warwick, RI 02888 and you, or which has an ownership
interest in you. The effective date of this agreement shall be
the earlier of (1) the activation of your account or (2) your
receipt of an e-mail or written letter from Vacations In Rhode
Island confirming your order.
1. DEFINITIONS.
For the purposes of this Agreement:
1.1.
"Vacations In Rhode Island's Equipment" shall mean computer and telecommunications
device, Internet access and/or transmission rights owned, operated, and/or
maintained by Vacations In Rhode Island and/or Vacations In Rhode Island's agents or assigns which
function to provide the Vacations In Rhode Island Services.
1.2.
"Vacations In Rhode Island", "us," "we, "our" and
grammatical variants thereof shall collectively refer to Vacations In Rhode Island and
its assigns and successors in interest.
1.3.
"Vacations In Rhode Island Services" shall mean the products and
services provided by Vacations In Rhode Island at any given time, including
but not limited to property infomration listings, advertising and promotional
services, data research, and any associated support services, which services
may be changed, amended, and/or otherwise altered at any time in Vacations
In Rhode Island's sole discretion.
1.4.
"Vacations In Rhode Island Software" shall mean any software provided by Vacations In Rhode Island at any given time, whether downloaded to your computer, provided to
you on CD or another form of removable media, or utilized online as part of
the Vacations In Rhode Island Services. The Vacations In Rhode Island Software includes the program
and any and all copies or portions thereof, whether standing alone or in combination
with other programs, as well as the documentation and other materials delivered
in connection with the software, if any.
1.5.
"Bandwidth" shall refer to the rate of data transmission in bits
per second using Vacations In Rhode Island's Equipment.
1.6.
"Content" shall mean the downloadable files which are interpreted
by a client web browser for display with or without plug-ins.
1.7.
"Customer Service" shall refer to communication from us to you dealing
with problems or questions relating to services provided by us to you.
1.8.
"Fee" shall mean monies and other consideration you are obligated
to pay to Vacations In Rhode Island for the right to use the Vacations In Rhode
Island Services and Bandwidth subject to the terms and conditions of this Agreement
and of the particular Vacations In Rhode Island Services for which you have
purchased, as outlined on the then-current schedule of fees. Fees may be changed
at any time on thirty days notice.
1.9.
"Fee Schedule" shall mean the fees for the Vacations In Rhode Island Services
as published on the Vacations In Rhode Island web site, which may be modified at any
time in Vacations In Rhode Island's sole discretion pursuant to the provisions of 24.1.
1.10.
"Parties" shall collectively refer to Vacations In Rhode Island and you.
1.11.
"Suspend" or "Suspension" shall include the disabling of
your Property or Advertisement Listing.
1.12.
"Technical Support" shall refer to communications from us to you
dealing with problems or questions relating to technical matters involving
software or services provided by us to you.
1.13.
"Property or Advertisement Listing" shall mean a quantity of computer memory allocation,
as outlined in the program description for Your Services, generally located
on one or more computer storage devices and measured in units of megabytes
(MBs) wherein data comprising Property Listings is stored and is accessible by
Vacations In Rhode Island's web server equipment.
1.14.
"You", "your" and grammatical variants thereof shall mean
you, any other entity which has an ownership or other beneficial interest in
you, or any other entity in which you have an ownership or other beneficial
interest.
1.15.
"Property Listings" shall mean data transmittable via the Internet by
Vacations In Rhode Island which is stored in Property or Advertisement Listing.
1.16.
"Your Services" shall mean the specific Vacations In Rhode Island Services
for which you have contracted, subject to the limitations and specifications
of the particular service effective as of the date of contract and to the fees
for that pursuant to the current Fee Schedule.
2. DESCRIPTION
Subject to and conditioned upon Vacations In Rhode Island's retained rights and
all other terms and conditions set forth in this Agreement, Vacations In Rhode Island
offers the Vacations In Rhode Island Services as soon as practicable after registration
for and payment of any and all fees due. You will receive a password,
account and instructions upon completion of the registration process.
You are responsible for maintaining the confidentiality of both your password
and your account and are fully responsible for all activities that occur
under your password and your account. You agree to immediately notify
Vacations In Rhode Island of any unauthorized uses of the account or any other breaches
of security. Vacations In Rhode Island cannot and will not be liable for any loss
or damage from your failure to comply with this security obligation. You
acknowledge and agree that under no circumstances will Vacations In Rhode Island
be liable, in any way, for any acts or omissions by you, including any
damages of any kind incurred as a result of such acts or omissions. The
Vacations In Rhode Island Services are subject to the following conditions and restrictions:
2.1. Property Listings Services
2.1.1.
Vacations In Rhode Island shall provide to you a non-exclusive and limited
license to use the amount of Property or Advertisement Listing allocated to Your Services
for your non-exclusive use for the exclusive purpose of storing Property Listings data and disseminating said data via the Internet through the
use of Vacations In Rhode Island's Equipment for purposes consistent with this
Agreement.
2.1.2.
Vacations In Rhode Island, either directly or through its assignee or licensee,
shall provide Customer Service relating to Property Listings consisting
of replying to customer questions or complaints regarding services provided
by us to you relating to Property Listings. Vacations In Rhode Island is not obligated
to provide any Customer Service except as specified in this Section
2. Any and all requests for additional Customer Service may be refused
by Vacations In Rhode Island with or without reason. Any additional Customer Service
which Vacations In Rhode Island may subsequently agree to provide to you shall
be at Vacations In Rhode Island's sole discretion and once commenced, may be terminated
at any time by Vacations In Rhode Island without notice to you and without any
liability to Vacations In Rhode Island. Notwithstanding the foregoing, Vacations In Rhode Island at its sole discretion may at any time alter or cease providing
the Customer Service which it has agreed to provide to you relating
to Property Listings pursuant to this Agreement without any liability to
Vacations In Rhode Island.
2.1.3.
Vacations In Rhode Island, either directly or through its assignee or licensee,
shall provide Technical Support relating to Property Listings consisting
of replying to communications from and to end users dealing with problems
or questions relating to technical matters involving software or services
provided by us to you. While Vacations In Rhode Island is not obligated to provide
any Technical Support except as specified in this Section 2, you may
contact us to request additional Technical Support on a fee for service
basis to be arranged between Vacations In Rhode Island and you. Any and all requests
for additional Technical Support may be refused by Vacations In Rhode Island with
or without reason, in its sole discretion. Any additional Technical
Support which Vacations In Rhode Island may subsequently agree to provide to you
shall be at Vacations In Rhode Island's sole discretion and once commenced, may
be terminated at any time by Vacations In Rhode Island without notice to you and
without any liability to Vacations In Rhode Island. Notwithstanding the foregoing,
Vacations In Rhode Island at its sole discretion may at any time alter or cease
providing the Technical Support which it has agreed to provide to you
relating to Property Listings pursuant to this Agreement without any liability
to Vacations In Rhode Island.
2.1.4.
All use of Property or Advertisement Listing and provision of services to you by
Vacations In Rhode Island shall be subject to all terms and conditions set forth
herein. You may not attempt to expand or alter these rights or Vacations In Rhode Island's services by entering into multiple agreements.
2.1.6.
Vacations In Rhode Island may suspend performance under or terminate this
Agreement, cease transmission of data associated with your Property Listing
immediately and without notice, and take any other actions it deems
necessary, in its sole discretion, to comply with the relevant laws
if it is informed or otherwise believes, in its sole discretion, that
your Property Listing violates the intellectual property rights of any third
party or is otherwise the subject of a dispute. As more completely set
forth in Sections 5, 6, and 9, you waive any and all clams you may have,
now and forever, against Vacations In Rhode Island relating to the content, use,
and operation of Property Listings and agree to indemnify and hold harmless
Vacations In Rhode Island from and against any such claims.
2.2. Property Listing Registration
2.2.1.
Should you choose to register a Property Listing through Vacations
In Rhode Island, Vacations In Rhode Island will store and display
over the Internet the Property Listing on your behalf.
The registration of your Property Listing is subject to the
terms and conditions provided herein.
Vacations In Rhode Island assumes no liability in the event
the Property Listing data provided by you is inaccurate, incorrect,
out dated, and does not warrant or guarantee that assigned
Property Listings do not infringe the rights of third parties,
or that the Property Listing
will be displayed with our service for any period of time.
Vacations In Rhode Island shall not own or otherwise legally control
any Property Listing registered on your behalf. You agree that
you are responsible for any and all fees and costs related
to the registration of your Property Listing, and you authorize
Vacations In Rhode Island to debit your credit card or invoice you directly for any
such fees and costs.
2.2.2.
You acknowledge and agree that Vacations In Rhode Island or its agents,
assignees or licensees may, upon registration of your Property Listing, associate
any data of any kind, in Vacations In Rhode Island's sole discretion, with the
Property Listing registered in association with Property Listings until you replace
such data with the Web Site.
2.2.3.
You represent and warrant that your Property Listing does not infringe
the copyright, trademark, or any other intellectual property rights
of any person or company and that your Property Listing is otherwise in compliance
with the terms of this agreement, in particular the provisions of Section
7.
2.2.4.
You shall inform Vacations In Rhode Island of any claim or potential
claim against your Property Listing, including but not limited
to the initiation of a dispute, within five days of notification of
same. You shall provide Vacations In Rhode Island of notice of any
negotiations with third parties with respect to the ownership
and/or intellectual property rights to your Property Listing within
five days of the commencement of such negotiations. Should you lose
your right to use a Property Listing which is used in connection with
the Vacations In Rhode Island Services, whether through expiration of
the Property Listing, judicial decree, or otherwise,
you agree to inform Vacations In Rhode Island immediately of
the party to whom the Property Listing is to be transferred and you
authorize Vacations In Rhode Island to take any and all action necessary
to effect such transfer.
2.2.5.
Vacations In Rhode Island will accept the termination of Your
Property Listings authorized by you or an agent on your behalf,
provided however, that you will be required to pay for any
termination fees upon your request. By
requesting the termination of your Property Listing you authorize
Vacations In Rhode Island to debit your credit card or invoice you directly for the
termination fee and any related fees or charges.
2.2.6.
Vacations In Rhode Island may suspend performance under or terminate
this Agreement, cease transmission of data associated with
your Property Listing immediately and without notice, and take
any other actions it deems necessary, in its sole discretion,
to comply with USA and RI laws if it is informed or otherwise
believes, in its sole discretion, that your Property Listing
violates the intellectual property rights or copyrights of
any third party or is otherwise the subject of a dispute. As more
completely set forth in Sections 5, 6, and 9, you waive any
and all clams you may have, now and forever, against Vacations
In Rhode Island relating to the registration, use, and subsequent
transfers of your Property Listing and agree to indemnify and
hold harmless Vacations In Rhode Island from and against any
such claims.
2.3. Software
2.3.1.
Vacations In Rhode Island may, in its sole discretion, provide you with
software (or scripts) in combination with Your Services. Upon payment
of all fees due and owing to Vacations In Rhode Island under this Agreement, Vacations In Rhode Island hereby grants, and you hereby accept, a nontransferable, and
non-exclusive license to use the software and all related documentation
during the term of this Agreement. Any rights not expressly granted
herein shall be reserved for Vacations In Rhode Island.
2.3.2.
Although the some software provided by Vacations In Rhode Island is generally provided
free of charge, Vacations In Rhode Island reserves the right to charge for the
software or any upgrades therefore at any time.
2.3.3.
You recognize that the software provided by Vacations In Rhode Island and
all related information, including but not limited to any and all updates,
improvements, modifications, enhancements, and information in some cases
may be proprietary, and that all rights thereto, including copyright,
are owned by Vacations In Rhode Island. You further acknowledge that you have
been advised that the software, including updates, improvements, modifications,
enhancements, and information related to the software, in some cases
may constitute a trade secret of Vacations In Rhode Island, is protected by civil
and criminal law, and by the law of copyright, is valuable and confidential
to Vacations In Rhode Island, and that its use and disclosure must be carefully
and continuously controlled.
2.3.4.
Vacations In Rhode Island shall at all times retain title to all the software
and all related information, including all updates, improvements, modifications
and enhancements, furnished to you hereunder.
2.3.5.
Unless provided otherwise in the specifications for Your Services,
the software provided by Vacations In Rhode Island supplied
hereunder is for your business use. You shall not permit
any third party to use the software or allow access to the
software from sites outside of your business premises except
as specifically authorized in writing by Vacations In Rhode
Island. The Vacations In Rhode Island Software is to be used only for
the purposes specified in this Agreement and specifically as restricted
in the following three subparagraphs of this Section 2.
2.3.6.
While this Agreement is in effect, or while you have custody
or possession of any of the software, you will not: (i) copy or duplicate,
or permit anyone else to copy or duplicate, any of the software, whether
such software is in written, magnetic or any other form, except pursuant
to reasonable backup procedures, or for use in Property Listings or applications
pursuant to this Agreement, nor; (ii) provide or make the software available
to any person or entity other than your employees or agents who have
a need to know consistent with your use thereof under this Agreement,
nor; (iii) create or attempt to create, or permit others to create or
attempt to create, by disassembling, reverse engineering or otherwise,
the source programs or any part thereof from the object program or from
other information (whether oral, written, tangible or intangible) made
available to you under this Agreement, nor; (iv) copy for your own use
or the use of others operator manuals, system reference guides, training
materials and other user-oriented materials without the prior written
consent of Vacations In Rhode Island. In order to protect Vacations In Rhode Island's trade
secrets and copyrights in the software, you agree to reproduce and incorporate
Vacations In Rhode Island's trade secrets or copyright notice in any copies, modifications
or partial copies.
2.3.7.
You agree to notify Vacations In Rhode Island forthwith if you obtain information
as to any unauthorized possession, use or disclosure of any software
provided by Vacations In Rhode Island by any person or entity, and further agree
to cooperate with Vacations In Rhode Island at Vacations In Rhode Island's expense, in protecting
Vacations In Rhode Island's proprietary rights.
2.3.8.
Unless agreed otherwise in writing by Vacations In Rhode Island, the software
may be used only in relation to the Web Site for which it was assigned
to, and for the hosting account for which it was installed for.
2.3.9.
In the event of termination of this Agreement, or upon any act
which shall give rise to Vacations In Rhode Island's right to terminate, any and
all licenses granted under this Section 2.3 shall terminate automatically,
and you will remove, erase or destroy any software and documentation
provided by Vacations In Rhode Island and all copies thereof, wherever located, without
demand or notice.
3. FEES
3.1.
Certain Vacations In Rhode Island Services are subject to set-up, service,
and Property Listing service fees, pursuant to the Fee Schedule, and by registering
for such Vacations In Rhode Island Services you authorize Vacations In Rhode Island to debit your credit card or invoice you directly for any and all such fees.
3.2.
Vacations In Rhode Island agrees to host Property Listings in exchange for
your payment to Vacations In Rhode Island of a monthly Fee for service in any
given month, not later than the first of that month. In the event that
Vacations In Rhode Island determines that the services of a collection agency
are necessary or appropriate to collect amounts due under this paragraph,
which determination shall be made in Vacations In Rhode Island's sole and unfettered
discretion, any and all collection agency fees and other costs of collection
shall be added to the amount due under this provision.
3.3.
All Fees must be paid by major credit card in United States Dollars
in advance of the provision of services and are considered
earned and non-refundable. Vacations In Rhode Island will charge
the monthly fee and any additional fees to the credit card
account provided by you upon registration unless specifically
provided otherwise. You also agree that Vacations In Rhode
Island may automatically charge your credit card for any subsequent
renewal term, additional services, and any related Fees or
expenses applicable to Your Services or Property Listings,
including but not limited to fees for excessive bandwidth use
or other surcharges for services in excess of those included within
Your Services or Property Listings, without further authorization
from you. If payment in full is not received by Vacations In
Rhode Island from your credit card issuer or its agents, you agree to
pay all amounts due from you for our services to you upon demand by
Vacations In Rhode Island.
3.4.
In the event Vacations In Rhode Island must invoice you for the
collection of our fees for services provided to you, you will
accept and pay an administrative processing fee of $25 applied
to each occurrence.
3.5.
Vacations In Rhode Island may offer subsequent promotional rates
or special offers, the terms of which may or may not be more favorable
than the terms and conditions for Your Services. Any such promotions
or modifications shall not effect your obligations under this Agreement.
Promotional fees may be subject to additional terms and conditions which,
to the extent they conflict with the terms of this Agreement , shall
govern. Promotional fees and special offers may not be combined
3.6.
You shall pay all costs of collection, including reasonable attorney's
fees and costs, in the event any invoice requires collection
efforts. All accounts referred to a collection agency shall
be subject to an additional fee of $100, which must be paid
in full before the account is reactivated.
3.7.
Upon cancellation of this Agreement you are not refundable unless
provided otherwise by applicable local law. Vacations In Rhode Island may, in
its sole discretion, refund other amounts as it deems necessary or advisable.
4. NO EXPRESS OR IMPLIED AGREEMENT TO DISSEMINATE MATERIALS WHICH ARE
INCONSISTENT WITH YOUR WARRANTIES.
Receipt by Vacations In Rhode Island of data for storage in Property or Advertisement Listing and/or
transmission via Vacations In Rhode Island's Equipment which are inconsistent with
your warranties set forth in Section 7 herein shall not constitute an
agreement by Vacations In Rhode Island to allow the Vacations In Rhode Island Services or
the Vacations In Rhode Island Equipment to be used to disseminate such information
or data in whole or in part, by any means, or if once disseminated via
the use of Vacations In Rhode Island's Services or Equipment, to continue to disseminate
such data.
5. NO WARRANTIES BY VACATIONS IN RHODE ISLAND.
THE VACATIONS IN RHODE ISLAND SERVICE AND VACATIONS IN RHODE ISLAND SOFTWARE
ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE
IS AT YOUR SOLE RISK. VACATIONS IN RHODE ISLAND DOES NOT WARRANT
THAT THE VACATIONS IN RHODE ISLAND SERVICES WILL BE UNINTERRUPTED
OR ERROR FREE, NOR DOES VACATIONS IN RHODE ISLAND MAKE ANY WARRANTY
AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE VACATIONS
IN RHODE ISLAND SERVICES. NO WARRANTY IS MADE BY VACATIONS IN
RHODE ISLAND REGARDING ANY INFORMATION, SERVICES OR PRODUCTS
PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND VACATIONS
IN RHODE ISLAND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES,
INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY,
QUALITY, QUANTITY, OR CONTENT OF SERVICES OR GOODS PROVIDED TO
YOU HEREUNDER, INCLUDING BUT NOT LIMITED TO YOUR SERVICES AND
PROPERTY LISTINGS; AND (2) ANY WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. VACATIONS IN RHODE ISLAND
DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR
OTHER MATERIAL ACCESSIBLE THROUGH THE VACATIONS IN RHODE ISLAND
SERVICES WILL BE FREE OF VIRUSES, "WORMS", "TROJAN
HORSES",
OR OTHER HARMFUL COMPONENTS. YOU AGREE AND ACKNOWLEDGE THAT NO
REPRESENTATIONS OF ANY KIND HAVE BEEN MADE TO YOU REGARDING THE
POTENTIAL VOLUME OF PATRONAGE OF PROPERTY LISTINGS OR ANY OTHER
PERSON'S OR ENTITY'S PROPERTY LISTINGS.
6. VACATIONS IN RHODE ISLAND'S LIMITED LIABILITY.
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE
YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT. IN NO CASE
SHALL VACATIONS IN RHODE ISLAND, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES,
AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR
OTHERWISE RELATING TO THE VACATIONS IN RHODE ISLAND SERVICES. SOME STATES
OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY
FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH STATES OR JURISDICTIONS,
VACATIONS IN RHODE ISLAND'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED
BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE
OR IN THIS AGREEMENT, VACATIONS IN RHODE ISLAND DOES NOT ENDORSE, WARRANT
OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED
USING THE VACATIONS IN RHODE ISLAND SERVICES, AND VACATIONS IN RHODE ISLAND
WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY
TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE VACATIONS
IN RHODE ISLAND FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN
EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF VACATIONS
IN RHODE ISLAND FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE
OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS
AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO VACATIONS
IN RHODE ISLAND IN THE SIX MONTHS PRECEDING SUCH ALLEGED BREACH, BUT IN
NO EVENT TO EXCEED $500.
7. YOUR ADDITIONAL OBLIGATIONS AND WARRANTIES.
7.1.
You agree and warrant that the contact information you have provided
to Vacations In Rhode Island is complete and accurate, and you further agree to
notify Vacations In Rhode Island within fifteen days of a change to any such contact
information. Contact information includes your name, e-mail address,
and mailing address and the name, mailing address, telephone number,
facsimile number, and e-mail address of the technical and administrative
contacts for your Property Listing, if any.
7.3.
You agree and warrant that your use of the Vacations In Rhode Island Services
and Vacations In Rhode Island's Equipment, and all sales and distributions, by
any and all means, of any type(s) of Content including, but not limited
to, executable files (such as .EXE), digitized audio/visual files (such
as MP3), or archived copies of copyrighted works (such as .ZIP); goods,
including, but not limited to, videotapes and CD-ROM products, and any
type of services by you, which are advertised and/or promoted by, or
are in any other way directly or indirectly associated with your use
of the Vacations In Rhode Island Services or Vacations In Rhode Island Equipment, shall
at all times comply with all applicable laws, including, but not limited
to, all federal, state and local laws throughout the United States of
America.
7.4.
You agree and warrant that you will neither store on nor allow
to be transmitted by Vacations In Rhode Island's Equipment any data or other matter
which constitutes any form of pornography or which involves depictions
of nudity or sexuality.
7.5.
You agree and warrant that all data, visual materials, advertising
and other matter you store on or allow to be transmitted by Vacations In Rhode Island's Equipment shall be solely for business, entertainment and/or
educational purposes and that you shall assume the sole responsibility
and duty to ensure that all such data, visual materials, advertising
and other matter shall be transmitted exclusively to willing adults
and only to places in which such materials comply with contemporary
community standards.
7.6.
You agree and warrant that all data, visual materials, advertising
and other matter you store on or allow to be transmitted by Vacations In Rhode Island's Equipment shall not violate any state or federal laws concerning
obscenity and shall not contain any depictions of urination or other
excretory functions, bestiality, "fisting", incest, rape,
sexual assault, actual physical violence, torture or disfigurement.
7.7.
You agree that you shall install and maintain appropriate and
effective screening devices and/or procedures on Property Listings to avoid
access to, or communication of, any harmful matter or indecent communications
to minors.
7.8.
You agree that if, in Vacations In Rhode Island's sole and exclusive judgment,
Vacations In Rhode Island concludes that Property Listings displays or contains any
harmful matter or indecent materials or communications which are available
to, or accessible by, minors, or displays or contains any material that
consists of child pornography or which could otherwise result in harm
to minors; then Vacations In Rhode Island may, without prior notice to you and
in Vacations In Rhode Island's sole and exclusive discretion, either remove and
erase the material from Property Listings, and/or disable public access
to the material on Property Listings, and/or cease hosting Property Listings,
without any liability of any kind to Vacations In Rhode Island from either you
or any third party.
7.9.
You agree that in the event that Vacations In Rhode Island is informed
by any party that your Property Listing or any material on Property Listings
infringes the copyright of any party, or violates the right of publicity
or privacy of any party, or consists of any other claim or violation
of intellectual property rights of any kind, then Vacations In Rhode Island may,
without prior notice to you and in Vacations In Rhode Island's sole and exclusive
discretion, either remove the material from Property Listings, and/or disable
public access to your Property Listing or the material on Property Listings,
and/or terminate this Agreement, without any liability of any kind to
Vacations In Rhode Island from either you or any third party. As more completely
set forth in Sections 5, 6 and 9, you waive any and all clams you may
have, now and forever, against Vacations In Rhode Island relating to any action
taken in response to the claim that you have infringed the intellectual
property rights of a third party, and agree to indemnify and hold harmless
Vacations In Rhode Island from and against any such claims.
7.10.
You affirmatively represent, agree and warrant that you have
and at all times shall have all necessary intellectual property rights,
including, but not limited to, all copyrights, trademark and service
mark rights and rights of publicity, both in the United States and throughout
the world, to reproduce and disseminate, via the Internet, all data
which you store in Property or Advertisement Listing or which you otherwise promote, advertise,
disseminate and/or distribute to anyone by your direct or indirect use
of the Vacations In Rhode Island Services or Vacations In Rhode Island's Equipment, including,
without limitation, all advertising and promotional materials, prior
to and at all times during the time such materials are promoted, advertised,
disseminated or distributed through any direct or indirect use of the
Vacations In Rhode Island Services or Vacations In Rhode Island's Equipment.
7.11.
You agree and warrant that no data or other matter you store
on or allow to be transmitted by Vacations In Rhode Island's Equipment shall constitute
or contain material which is libelous, slanderous, defamatory, or which
will violate or infringe upon or will otherwise give rise to any adverse
claim with respect to any common law or other right of any person or
other entity, including, without limitation, privacy rights and all
other personal and proprietary rights. You agree not to collect the
personally identifiable data of any person without that person's consent,
records of which shall be maintained throughout the term of this Agreement
and for three years afterward. If you collect this data through Property Listings you shall do so only pursuant to a posted privacy policy disclosing
any and all uses of such identifiable data and in compliance with applicable
law.
7.12.
You agree and warrant that no data or other matter you store
on or allow to be transmitted by Vacations In Rhode Island's Equipment shall contain
any material which is harmful, violent, threatening, abusive or hateful.
7.13.
You agree and warrant that any and all material(s) of every kind
which you store in Property or Advertisement Listing or transmit using Vacations In Rhode Island's
Services or Equipment shall at all times be free from any and all damaging
software defects, including, but not limited to, software "viruses", "worms", "Trojan
Horses," and other source code anomalies, which may cause software
or hardware disruption or failure, reduced computer operating speed,
or compromise any security system. You agree that you will not attempt
to access the Vacations In Rhode Island Equipment or web site or another customer's
web site without authorization.
7.14.
You agree and warrant that you shall not use any form of mass
unsolicited electronic mail solicitations, news group postings, IRC
posting or any other form of "spamming" or "mail bombing," and
Vacations In Rhode Island reserves the right to block mail from any source which
Vacations In Rhode Island believes, in its sole discretion, is being used to send
such unsolicited e-mail, including but not limited to open mail relays.
7.15.
You agree and warrant that you shall not engage in any false,
deceptive or fraudulent activities in association with your use of the
Vacations In Rhode Island Services or Vacations In Rhode Island's Equipment.
7.16.
You shall at all times use Property or Advertisement Listing exclusively as a conventional
web site. All use of Property or Advertisement Listing and Vacations In Rhode Island's Services and
Equipment shall at all times be in a manner consistent with this Agreement
and shall not in any way impair the functioning or operation of Vacations In Rhode Island's Equipment or network. Should your use of the Vacations In Rhode Island
Services result in an overly high load on the Vacations In Rhode Island Equipment,
in Vacations In Rhode Island's sole discretion, Vacations In Rhode Island may suspend your
account until the cause of any such overload is determined and resolved.
7.17.
You agree and warrant that all applicable taxes have been paid
or will be paid in full by you when due regarding all businesses and
employees associated with your use of the Vacations In Rhode Island Services and
that no taxing authorities shall have any claim against Vacations In Rhode Island
or any persons affiliated therewith for the payment of such taxes.
7.18.
You represent and warrant that you are over eighteen years of
age (twenty one in places where eighteen years is not the age of majority)
and are fully competent to enter into this Agreement.
8. CONFIDENTIALITY
During the course of this Agreement you may gain access to certain confidential,
proprietary and trade secret business or technical information belonging
to Vacations In Rhode Island in connection with Vacations In Rhode Island's performance of
the Vacations In Rhode Island Services ("Confidential Information"). You
agree to preserve the confidentiality of all Confidential Information
that is provided in connection with the Agreement, and shall not, without
the prior written consent of Vacations In Rhode Island, disclose or make available
to any person, or use for your own or any other person's benefit, other
than as necessary in performance of your obligations under this Agreement,
any Confidential Information of Vacations In Rhode Island. Vacations In Rhode Island retains
all right and title to such Confidential Information.
9. YOUR INDEMNIFICATION OF VACATIONS IN RHODE ISLAND.
You agree that you shall fully defend and indemnify Vacations In Rhode Island,
including its officers, directors, owners, managing agents, attorneys,
shareholders, related entities, heirs, and assigns, from any and all claims,
demands, actions, suits, losses, liabilities, damages, injuries, fines
penalties, costs and expenses, attorneys' fees, arbitration fees, mediation
fees, expert expenses, and all other consequences of every kind, directly
or indirectly resulting from any and all failure(s) of you or your agent(s)
to fully comply with all duties, obligations and other provisions set
forth in this Agreement, including, but not limited to, your warranties
set forth in Section 7 or your violation of a third party's intellectual
property rights. You further agree to defend, indemnify and hold harmless
Vacations In Rhode Island, including its officers, directors, owners, managing agents,
attorneys, shareholders, related entities, heirs, and assigns, from and
against any and all claims, demands, actions, suits, loses, liabilities,
damages, injuries, fines, penalties, costs and expenses, including, without
limitation, reasonable attorneys' fees, arising out of any property damage
or recoverable economic loss incurred by a third party, to the extent
such damage or loss is caused by any act or omission of you or your agents
in connection with the performance of this Agreement. You agree that Vacations In Rhode Island shall have the right to participate in the defense of any such
claim through counsel of its own choosing at your expense.
10. NO JOINT VENTURE OR PARTNERSHIP
Nothing in this Agreement is intended by the Parties to create or constitute
an agency, joint or collaborative venture, or partnership of any kind
between Vacations In Rhode Island and you, nor shall anything in this Agreement
be construed as constituting or creating any such agency, joint or collaborative
venture, or partnership between Vacations In Rhode Island and you. Vacations In Rhode Island
shall have no control or ownership interests of any kind in your business.
Vacations In Rhode Island shall have no direct financial or other interest in, nor
in any way "own" any online "store" or other online
venture pertaining to your use of the Vacations In Rhode Island Services or Vacations In Rhode Island's Equipment. Vacations In Rhode Island's relationship to you shall be restricted
to matters pertaining to the provision of the Vacations In Rhode Island Services
as set forth in this agreement.
11. VACATIONS IN RHODE ISLAND Island HAS MADE NO REPRESENTATIONS REGARDING
SUCCESS, MARKETS OR PROFITABILITY
11.1.
You confirm that you have unilaterally decided to advertise your
Property Listings with Vacations In Rhode Island. You further
confirm, understand, acknowledge and expressly agree that neither
Vacations In Rhode Island, any agent or representative of Vacations
In Rhode Island, nor any other person is currently representing
or otherwise directly or indirectly communicating in any manner
herein or otherwise, nor has at any time in the past, represented
to you or has otherwise directly or indirectly communicated
in any manner to you any guarantee, reassurance or any other
communication of any kind regarding:
11.1.1.
the potential profitability or likelihood of success of your
endeavors through the use of the Vacations In Rhode Island
Services or Vacations In Rhode Island's Equipment as set forth
herein or otherwise;
11.1.2.
the possibility or likelihood that use of any products and/or
services provided by Vacations In Rhode Island pursuant to this Agreement can
or will result in the recoup of any funds expended by you for any purpose;
or
11.1.3.
the existence, nonexistence, size or any other characteristics
of any market for any products or services which involve your use, in
any manner, of the Vacations In Rhode Island Services or Vacations In Rhode Island's Equipment
pursuant to this Agreement.
11.2.
You expressly acknowledge and agree that the success of any business
endeavors which involve your use, in any manner, of the Vacations In Rhode Island
Services and/or Vacations In Rhode Island's Equipment pursuant to this Agreement,
like any other business endeavor, is subject to numerous factors, such
as the effectiveness of its advertising and promotion, your administrative
capabilities, etc., and that the ultimate success or failure of your
business rests with you and not Vacations In Rhode Island. You further expressly
agree not to raise any claim of any kind against Vacations In Rhode Island and
to hold Vacations In Rhode Island harmless from any claim of financial investment
loss to you directly or indirectly resulting from your decision to use
the Vacations In Rhode Island Services and/or Vacations In Rhode Island's Equipment pursuant
to this Agreement.
12. SERVICES RENDERED ON A NON-EXCLUSIVE BASIS.
Any and all services which are or may be provided to you by Vacations In Rhode Island
pursuant to this Agreement, including the licensure of rights herein,
are not exclusive and nothing in this Agreement shall limit or restrict
Vacations In Rhode Island from providing similar services and granting similar licenses
to third parties regardless of whether such third parties are competitors
of you. Nothing in this Agreement shall limit or restrict Vacations In Rhode Island
from engaging in any activities similar to yours or in competition with
you.
13. NO EDITORIAL CONTROL BY VACATIONS IN RHODE ISLAND.
Vacations In Rhode Island and you agree that, consistent with the strict policy
of Vacations In Rhode Island, and in reliance on your express warranties regarding
the substantive content of data, advertisements, communications, messages
and other materials which you shall store in Property or Advertisement Listing, and/or otherwise
disseminate via the use of Vacations In Rhode Island's Services or Equipment, Vacations In Rhode Island shall neither have nor exert any editorial or other subjective
control over the substantive content of such data, advertisements, communications,
message or other materials. Vacations In Rhode Island shall not engage in any monitoring
of the substantive content comprising Property Listings or Property or Advertisement Listing.
Vacations In Rhode Island exercises no control over information which is found on
the internet, except for its own web site, and cannot be held responsible
for the accuracy, correctness, or legality of such information. You are
solely responsible for the content of Property Listings and for verifying
the accuracy and suitability of information and services you obtain from
third parties via the internet.
14. TERM AND TERMINATION.
14.1.
Unless sooner terminated pursuant to other terms of this Agreement,
and except as otherwise provided in this Agreement, this Agreement shall
be for an initial term of one month and shall be automatically renewed
each month for additional one month periods unless and until sooner
terminated pursuant to the provisions of this Section 14. Vacations In Rhode Island
may accept prepayment for services to be provided under this Agreement,
but such acceptance shall not modify or extend the term of this Agreement.
14.2.
Notwithstanding the provisions of Paragraph 14.1. to the contrary,
Vacations In Rhode Island offers certain Advertising Packages
for which the initial term of this Agreement shall be either
semi-annual, or annual, at the end of which this Agreement
shall renew automatically for an identical term of service
unless otherwise no longer offered as a packaged service by
Vacations In Rhode Island. Any and all service fees for the
semi-annual or annual Advertising Packages are due and payable
for the entire initial term thereof, and should you terminate,
attempt to terminate, or otherwise default on this Agreement
prior to the end of the initial term you authorize Vacations
In Rhode Island to charge your credit card for all such fees
and charges for the remainder of such initial term. For the
purposes of this Section, any modification of the Advertising
Package shall be deemed a termination and shall entitle Vacations
In Rhode Island to the fees owing on semi-annual or annual
Advertising Package. Fees paid for semi-annul or annual Advertising
Packages are considered earned and not refundable unless this
Agreement is terminated by Vacations In Rhode Island without
cause pursuant to Section 14.3. or as otherwise agreed to in
writing by Vacations In Rhode Island in its sole discretion.
14.3.
Vacations In Rhode Island may terminate this Agreement at any time for
any reason, with or without cause, upon thirty days' written notice.
Vacations In Rhode Island may suspend performance under or terminate this Agreement
and cease transmission of data associated with Property Listings immediately
and without notice:
14.3.1.
if Vacations In Rhode Island, in its sole discretion, deems that you have
breached any part of this Agreement, including, without limitation,
any warranty or obligation set forth in Section 7,
14.3.2.
if your credit card issuer refuses payment of fees or charges
or you refuse authorization for same, or
14.3.3.
if payment for the Vacations In Rhode Island Services is more than fifteen
days overdue.
14.4.
You further agree that in the event that Vacations In Rhode Island
believes, in its sole discretion, that you have breached any
provision(s) of Section 7 of this Agreement, or any of its
subparts, by linking to or allowing material such as that described
in the aforementioned Section 7, or any of its subparagraphs,
to be transmitted by Vacations In Rhode Island's Equipment,
that Vacations In Rhode Island may without any liability to
you, and in addition to any other remedies, erase or purge
such Property Listings from Vacations In Rhode Island's Equipment
without prior notice to you.
14.5.
After termination, you will no longer have access to your account
and all information or content, including but not limited to
Property Listings, databases, or other data files associated
with your account may be deleted. Vacations In Rhode Island
accepts no liability for such deleted information or content.
Vacations In Rhode Island may, in its sole discretion, make such information
or content available to you to the extent it has not been deleted.
15. PRIVACY.
15.1.
It is Vacations In Rhode Island's policy to respect your privacy. Vacations In Rhode Island will not monitor, edit, or disclose any personal information
about you or your account, including its contents, without your prior
consent unless Vacations In Rhode Island deems it necessary, in its sole discretion,
to:
15.1.1.
comply with legal process or other legal requirements, including
but not limited to responding to subpoenas or other requests for information
from law enforcement officials;
15.1.2.
protect and defend the rights or property of Vacations In Rhode Island
or its officers, agents, affiliates, and licensees;
15.1.3.
enforce this Agreement; or
15.1.4.
protect the interests of other Vacations In Rhode Island customers.
15.2.
VACATIONS IN RHODE ISLAND RESERVES THE RIGHT (SUBJECT TO APPLICABLE
LOCAL LAW), IN ITS SOLE DISCRETION, TO MONITOR YOUR ACCOUNT, INCLUDING
BUT NOT LIMITED TO THE USE OF A USER'S MAIN ACCOUNT AND ANY SUB-ACCOUNTS,
FOR THE PURPOSE OF INVESTIGATING VIOLATIONS OF THIS AGREEMENT
OR TO ASSIST WITH CRIMINAL OR CIVIL INVESTIGATIONS.
15.3.
Your IP address is transmitted and recorded with each message
you send using the Vacations In Rhode Island Services. Vacations In Rhode Island does provide
certain information in aggregate form collected from and relating to
you to third persons such as advertisers. For a more detailed description
of the types and uses of personal information collected from you, please
read the Vacations In Rhode Island Privacy Policy.
16. SEVERABILITY.
In case any one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceable shall not affect
any other provision hereof, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision(s) had never been included.
The invalidity or unenforceable of any provision(s) of this Agreement
shall not affect the validity or enforceability of any other provision.
17. NON-ENFORCEMENT DOES NOT CONSTITUTE WAIVER.
Failure of Vacations In Rhode Island at any time to enforce any of the specific
provisions of this Agreement shall not preclude any other or further enforcement
of such provision(s) or the exercise of any other right hereunder. No
waiver of a breach of this Agreement shall be valid unless made in writing
and signed by duly authorized representative of Vacations In Rhode Island.
18. NOTICES.
18.1.
Vacations In Rhode Island may provide notice to you via e-mail sent to
the e-mail address provided by you upon registration or as subsequently
provided by you to Vacations In Rhode Island. Such notice is deemed effective
whether you receive it or not.
18.2.
You may provide notice to Vacations In Rhode Island in one of the following
ways:
18.2.1.
by personal delivery;
18.2.2.
by addressing the notice as indicated below and depositing the
same by registered or certified mail, postage prepaid, in the United
States mail,
Vacations In Rhode Island
PO Box 8976
Warwick, RI 02888
18.2.3.
by Federal Express;
18.2.4.
by facsimile transmission; or
18.2.5.
by e-mail and registered or certified mail.
18.3.
Such notice, statement or other document so delivered to Vacations In Rhode Island, except as this Agreement expressly provides otherwise, shall
be conclusively deemed to have been given when first personally delivered,
on the date of delivery or on the first date of receipt. Notice by e-mail
to Vacations In Rhode Island shall be deemed ineffective, null and void unless
a copy of such notice is also sent by registered or certified mail,
and postmarked not more than five days subsequent to the giving of e-mail
notice. Any such e-mail notice to Vacations In Rhode Island shall be deemed effective
as of the date on which Vacations In Rhode Island receives the certified or registered
mail notice
19. FORCE MAJEURE.
19.1.
In the event of "force majeure" (as defined below), Vacations In Rhode Island may terminate this Agreement without liability to you. For purposes
of the Agreement, "force majeure" shall mean circumstances or
occurrences beyond Vacations In Rhode Island's reasonable control, whether or not
foreseeable at the time of entering into the Agreement, in consequence
of which Vacations In Rhode Island cannot reasonably be required to perform its
obligations hereunder or otherwise perform its obligations under the Agreement.
Such circumstances or occurrences include, but are not limited to: acts
of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics,
governmental regulations and/or similar acts, embargoes, termination or
temporary unavailability of any computer hardware or software, server,
or network on which the Vacations In Rhode Island Services are located or maintained
or through which the Vacations In Rhode Island Services are provided, and non-availability
of any permits, licenses and/or authorizations required by governmental
authority.
19.2.
Vacations In Rhode Island reserves the right at any time and from time
to time to modify or discontinue, temporarily or permanently, the Vacations In Rhode Island Services (or any part thereof) with or without notice, including
the right to cease all business operations in the United States and
Canada. You agree that Vacations In Rhode Island shall not be liable to you or
to any third party for any modification, suspension or discontinuance
of the Vacations In Rhode Island Services.
20. NO ASSIGNMENT BY YOU; ASSIGNMENT BY VACATIONS IN RHODE ISLAND
This Agreement and the rights pertaining hereto may not be assigned,
resold, or otherwise transferred in whole or in part by you without Vacations In Rhode Island's prior written consent. In particular, you may not sell accounts
or sub accounts to third parties. Notwithstanding the above, this Agreement
shall be binding upon your successors and assigns, if any. Vacations In Rhode Island
may assign or license any or all of its rights and/or obligations hereunder
in its free, sole, and unfettered discretion.
21. ARBITRATION AND WAIVER OF JURY TRIAL.
21.1.
Any and all disputes as to the interpretation of or any performance
under this Agreement which are not first resolved informally, shall
be determined by binding arbitration in Rhode Island in accordance with
the rules of the American Arbitration Association. The final award in
any such arbitration proceeding shall be subject to entry as a judgment
by any court of competent jurisdiction, provided that such judgment
does not conflict with the terms and provisions hereof. The jurisdiction
of the arbiter (or arbiters) with respect to legal matters shall be
limited only by the statutory and common law of the State of Rhode Island
and the federal law of the United States of America.
21.2.
Nothing in this paragraph shall preclude Vacations In Rhode Island from
seeking and obtaining any injunctive relief or attachment and expedited
discovery.
21.3.
In addition to the foregoing, you hereby agree that as a part
of the consideration for this Agreement, you waive the right to a trial
by jury for any dispute arising between you and Vacations In Rhode Island that
is in any way related to the subject matter of this Agreement, and that
such waiver shall be enforceable up to and including the day that trial
is to start, and even if the arbitration provisions of this paragraph
are waived. Should any legal fees, costs, or other expenses be incurred
by any party with regard to enforcement of this arbitration and jury
waiver provision, Vacations In Rhode Island shall be entitled to recover such
legal fees, costs, or other expenses without regard to whether Vacations In Rhode Island prevails in the underlying case.
22. CHOICE OF LAW; VENUE.
This Agreement shall be construed in accordance with the laws of the
State of Rhode Island governing contracts executed and performed therein
and the laws of the United States of America, and shall be binding upon
and inure to the benefit of the Parties' respective heirs, personal representatives,
executors, administrators, successors and assigns. The Parties agree that
the State of Rhode Island shall be the proper place of jurisdiction for
the determination of any disputes arising from this Agreement, and the
Parties irrevocably consent to jurisdiction of the local, state and federal
courts located in the state of Rhode Island. Should any legal fees, costs,
or other expenses be incurred by Vacations In Rhode Island in attempting to enforce
this choice of venue, Vacations In Rhode Island shall be entitled to recover such
legal fees, costs, or other expenses without regard to whether Vacations In Rhode Island prevails in the underlying case.
23. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the Parties with respect
to the subject matter hereof, and supersedes and cancels all other prior
agreements, discussion, or representations, whether written or oral. No
officer, employee or representative of Vacations In Rhode Island or you has any
authority to make any representation or promise in connection with this
Agreement or the subject matter thereof which is not contained expressly
in this Agreement, and Vacations In Rhode Island and you hereby acknowledge and
agree that neither Vacations In Rhode Island nor you have executed this Agreement
in reliance upon any such representation or promise.
24. MODIFICATION.
24.1.
This Agreement may be materially altered by Vacations In Rhode Island by
posting the new version of the Agreement at www.Vacations In Rhode Island.net and if posted
in this manner, shall be effective immediately upon posting such notice.
In the event that Vacations In Rhode Island does materially change the terms of
this Agreement, you accept and shall be bound by such changed terms
unless you opt to terminate the Agreement within thirty days of receipt
of notice of such change.
24.2.
You may not modify this Agreement, in whole or in part, and any
such modification or attempt to modify shall not be enforceable unless
reduced to writing and signed by a duly authorized representative of
Vacations In Rhode Island. No additional or conflicting term in any other document
used by you will have any legal effect.
25. STATUTE OF LIMITATIONS.
You agree that regardless of any statute or law to the contrary, any
claim or cause of action arising out of or related to use of the Service
or this Agreement must be filed within one year after such claim or cause
of action arose or be forever barred.
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