FUNTAVO TERMS OF SERVICE
Funtavo.com are the electronic services offered on or via (1) the Funtavo website at http://www.Funtavo.com, (2) the guide reservation services made available by Funtavo through the Funtavo site, any Funtavo-branded application for your mobile or other device, (3) any Funtavo Application and (4) any other services or features made available by Funtavo through the Funtavo site or any Funtavo application. Together, the items in (1) through (4) are the "Services". These Services are offered and operated by Outdoor Reservation Management Group, Inc., having its registered offices at 2701 Little Elm Parkway Suite 100-447, Little Elm, Texas 75069 ("ORMG", the "Company", "we" or "us")
By accessing or using the Services or clicking "accept" or "agree" to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
ORMG may update or revise this Agreement (including any ORMG Polices) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click "accept" or "agree" to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by ORMG, any use of the Services (e.g., the use of the Reservation Services) is subject to the version of this Agreement in effect at the time of use.
By "ORMG" we mean the features and Services we make available, including but not limited to our website at Funtavo.com and any other Outdoor Reservation Management Group, Inc. branded or co-branded websites (including sub-domains, international versions, widgets, and mobile versions) now existing or later developed.
By "Guide" we mean the person, agency or company responsible for delivering and managing the fishing charter service rendered through Funtavo.com.
By "customer/you" we mean the person, agency or company paying for services delivered by the Guide through Funtavo.com.
By "service" we mean the reservation of fishing trips through Funtavo.com through which Guides can make their fishing trip services available online for reservation, and through which customers can make such fishing trip reservations with Guides. Funtavo does not own or sell the items listed on this site, so the actual contract for sale is directly between the sellers or the Guides and the buyers or the customers.
By "information" or "content" we mean facts and other information about a Guide, including anything you or other users post on Funtavo.com.
Part 1 - Reservation Services
The Services are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Unauthorized reproduction or distribution of the Services, or any portion of them, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. The Services are licensed, not sold.
Funtavo is a platform that connects fishing Guides providing fishing guide services ("Guide Services") with customers seeking such services. The Guides and customers are both users of the Services provided by Funtavo and are hereinafter referred to collectively as "Users."
Funtavo.com acts only as an agent on behalf of the Guides. By making a reservation through Funtavo.com, you are entering into a contract directly with the Guide and you will also be subject to their terms and conditions. The delivery terms and conditions of a Guide can be obtained directly with each relevant Guide, if requested, prior to a reservation being confirmed or along with your reservation confirmation. By confirming your reservation you are accepting the Guide’s terms and conditions and our terms and conditions.
Funtavo does not have control over the quality, suitability, reliability, timing, durability, legality, failure to provide, or any other aspect whatsoever of any Guide Services provided by Guides nor of the integrity, responsibility or any of the actions or omissions whatsoever of any Guides or customers. Funtavo makes no representations or warranties whatsoever with respect to Guide Services offered or provided by Guides or requested by customers through use of the Services, whether in public, private, or offline interactions, or about the accreditation, registration or licensing of any Guide. You understand that Funtavo does not routinely screen its Users, inquire into the background of its Users or attempt to verify information provided by any Users. Funtavo does not verify or confirm that any Users is who they claim to be or is accurately representing themselves and does not verify or confirm any representations with respect to Guide Services on the Services. Funtavo does not assume any responsibility for the accuracy or reliability of this information or any information provided through the Services.
Our Agreement with You sets out what you are legally entitled to expect from us when you book or reserve fishing trips through us.
From the point at which you make your reservation, we act solely as an intermediary between you and the Guide, transmitting the details of your reservation to the relevant Guide and sending you a confirmation email for and on behalf of the Guide.
We will do our best to assist you, but will have no liability in relation to the performance of the contract with the Guide. The Guide should be contacted directly regarding such performance.
The Price You Pay
You acknowledge that Funtavo.com makes available certain rates with Guides to facilitate the booking of reservations on your behalf. Each reservation is governed by this Agreement and the specific terms of the particular reservation which will be communicated to you during the check-out process. The rate displayed on the Website is a combination of the rate for Guide Services reserved on your behalf by Funtavo.com and the facilitation fee retained by us to compensate us for our Services. You authorize Funtavo.com to book reservations for the total reservation price, which includes the rate displayed on the Website and applicable service fees and charges, which are non-refundable. Upon submitting your reservation request you authorize Funtavo.com to facilitate reservations on your behalf.
Our fees are compensation for servicing your reservation. Our fees vary based on the Guide, total amount paid by customers and type of reservation.
The price of the Guide Services will be as quoted on the website, except in cases of obvious error.
Prices may change at any time, but changes will not affect reservations already accepted by our Guides.
Despite our best efforts, some of the services listed on the website may be incorrectly priced.
WE EXPRESSLY RESERVE THE RIGHT TO CORRECT ANY PRICING ERRORS ON OUR WEBSITE AND/OR ON PENDING RESERVATIONS MADE UNDER AN INCORRECT PRICE. IN SUCH EVENT, IF AVAILABLE, WE WILL OFFER YOU THE OPPORTUNITY TO KEEP YOUR PENDING RESERVATION AT THE CORRECT PRICE OR WE WILL CANCEL YOUR RESERVATION WITHOUT PENALTY.
A final price will be given prior to your trip being confirmed. Errors are rare but can occur in the pricing system and these cannot be honored.
Funtavo.com is under no obligation to provide services to you at an incorrect (lower) price, even after you have been sent confirmation of your reservation.
All prices are shown in United States dollars, unless otherwise stated.
Guide Rules and Restrictions
Separate terms and conditions, specific to the Guide you select, may apply to your reservation and purchase. Please read these separate terms and conditions carefully. You agree to abide by the terms and conditions of purchase imposed by any Guide with whom you elect to deal, including, but not limited to, payment of all amounts when due and compliance with the Guide’s rules and restrictions regarding availability and use of Services. We reserve the right to cancel your reservation if full payment is not received in a timely fashion. You acknowledge that some third-party Guides offering certain services and/or activities may require you to sign their liability waiver prior to participating in the service and/or activity they offer. You understand that any violation of any such Guide’s rules and restrictions may result in cancellation of your reservation(s), in your being denied access to the applicable service or product, and in your forfeiting any monies paid for such a reservation.
YOU AGREE THAT OUTDOOR RESERVATION MANAGEMENT GROUP INC., ITS GUIDES, OR ANY THIRD PARTIES MENTIONED ON THIS SITE, ARE NOT OBLIGATED TO DETERMINE WHETHER TAXES APPLY AND ARE NOT RESPONSIBLE TO COLLECT, REPORT, OR REMIT ANY TAXES ARISING FROM ANY TRANSACTION.
Facilitation fees are due and payable to ORMG on all referrals and/or reservations made through ORMG representatives, website, transaction system, e-newsletter, or any other ORMG marketing effort, whether such referrals or reservations are made through ORMG’s electronic Services or directly between the Guide and customer. All of the Guide Services require, at minimum, a deposit at the time of reservation for you to secure your fishing trip, while most require full payment. Any outstanding balance is due to be paid to the Guide prior to consuming Guide Services rendered by and reserved with your selected Guide. If you do not pay your balance prior to utilizing the Guide’s services, the Guide may cancel the reservation and charge any cancellation fees as set out in the Guide’s terms and conditions. If the Guide collects a deposit or payment for a reservation directly from the referred customer, the facilitation fee is due and payable to ORMG within 14 days of the time any such payments are received.
Funtavo.com may decline to commence any reservation process until one business day after our payment processor confirms your payment. You agree that we are not responsible for any failure of our payment processor to remit payment to us that you may make through them, or any failure on their part to notify us of payment, and that in such cases, it is your duty to resolve the matter directly with the payment processor before we will acknowledge any payment by you.
Payments of the deposit can be accepted by credit or debit cards.
Payments by credit or debit cards can only be made by the card holder or with the card holder’s approval. When making your payment by card, a handling fee may apply, please check this at time of making the reservation.
All payments must be processed successfully. If however, you do not complete your payment in full, all monies processed will be forfeited, and your reservation will be cancelled.
If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. (This includes retaining collection agencies and legal counsel.) In addition, you will be subject to a late fee of $100 plus interest assessed as 1.5% per month (18% annually) or the maximum amount allowed by law. ORMG, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit score.
Many of our Services are accessible to international Guides and customers. We may offer certain programs, tools and site experiences of particular interest to international Guides and customers. Guides and customers are responsible for complying with all laws and regulations applicable to the international sale and purchase of services.
Payment Card Information
By providing debit or credit card account information through the Services, you represent, warrant, and covenant that: (1) you are legally authorized to provide such information to us; (2) you are legally authorized to perform payments from the debit or credit card account(s); and (3) such action does not violate the terms and conditions applicable to your use of such debit or credit card account(s) or applicable law. When you authorize a payment using a debit or credit card account via the Services, you represent, warrant, and covenant that there are sufficient funds or credit available to complete a payment using the debit or credit card account.
You acknowledge and agree that ORMG is an independent contractor for all purposes and is not your agent or trustee. ORMG is not responsible, and has no liability for, the products or services that are paid for using the Services. ORMG is not responsible for any overcharges or other payment disputes with Guides. Customers must resolve payment and other disputes directly with the Guides.
ORMG is not liable for any payments that the Services do not complete because: (1) your debit or credit card account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit or overdraft protection of the debit or credit card account; (2) you have not provided us with correct payment account information; (3) your debit or credit card has expired; or (4) circumstances beyond our control (such as, but not limited to, power outages, interruptions of cellular service, or any other interferences from an outside force) prevent the execution of the transaction. To the extent that any amounts owed cannot be collected from your debit or credit card account through the Services, you are solely responsible for paying the applicable Guide(s) by other means.
If You Cancel or Change Your Reservation
Any cancellation or amendment request must be sent to the Guide and us in writing by the person making the reservation and will not take effect until received by us.
By making a reservation with a Guide, you accept and agree to the relevant cancellation and no-show policy of that Guide, and to any additional (delivery) terms and conditions of the Guide that may apply to your reservation, including for services rendered and/or products offered by the Guide (the delivery terms and conditions of a Guide can be obtained directly from the relevant Guide). The general cancellation and no-show policy of each Guide is made available on our website on the Guide information pages, during the reservation procedure and in the confirmation email. Please note that certain rates are not eligible for cancellation or change. Please check the Guide’s details thoroughly for any such conditions prior to making your reservation.
If you wish to review, adjust or cancel your reservation, please refer to the confirmation email and follow the instructions therein. You may cancel or change your prepaid reservation in accordance with the individual Guide`s selected cancellation policy. Please note that you may be charged for your change or cancellation in accordance with the Guide’s cancellation and no-show policy. We recommend that you read the cancellation and no-show policy of the Guide carefully prior to making a reservation.
Neither Funtavo.com nor its authorized representatives shall offer or pay any discounts or refunds for missed or unused services which were missed or unused by the Customer due to no fault of Funtavo.com, or our representatives, which shall include any termination of the Customer’s participation in the Service due to the Customer’s own fault, negligence or breach of these Terms.
Cancellation by Guides
Funtavo.com acts only in the capacity of an agent on behalf of the Guide that is providing Guide Services to you. As your contract is with the Guide, the Guide`s cancelation policy shall apply. Including reservations that are canceled prior to departure due to unsafe weather conditions.
We do not accept any liability for the acts, omissions or default, whether negligent or otherwise, of those Guides in connection with your reservation pursuant to a contract between the Guide and yourselves and over whom we have no direct control. We do not accept liability in contract or in tort (actionable wrong) for any injury, damage, loss, delay, additional expenses or inconvenience caused directly or indirectly by force or other events which are beyond our control, or which are not preventable by reasonable diligence on our part including, but not limited to war, civil disturbance, fire, floods, unusually severe weather, acts of God, acts of Government or of any other authorities, accidents to or failure of machinery or equipment or industrial action.
Please note that Guides have the ultimate responsibility for the safety of the crew and the people onboard. In the event that the trip is no longer safe due to any reason, the Guide has the right to cancel the whole or part of the trip (before or after departure).
As your contract is with the Guide, all complaints should be addressed to them but we will do our best to assist you with any queries or concerns you may have relating to your arrangements. If you have a problem or an issue arises during your fishing trip, reserved through us, you must report such problem or issue to the Guide, their local supplier or representative immediately. If you fail to follow this procedure there will be less opportunity to investigate and rectify your complaint. If you wish to communicate a problem or issue upon returning home, please contact the Guide directly. You will see their contact details on the confirmation documents we send you. We will of course do our best to assist you if required.
Insurance and Safety
It is a condition of your reservation with us that you and all other members of your party, including infants and children, are adequately insured. Some hazardous activities may require additional coverage – please check with your personal insurance provider. It may be a term of your contract with the Guide that you take out suitable insurance coverage and inform the Guide of whom you are insured with so that they can take down your Insurers information. ORMG nor Funtavo.com accept any responsibility for any costs you incur as a result of not being adequately insured. BY OFFERING SERVICES TO PARTICULAR INTERNATIONAL DESTINATIONS, Funtavo.COM DOES NOT REPRESENT OR WARRANT THAT TRAVEL TO SUCH POINTS IS ADVISABLE OR WITHOUT RISK, AND IS NOT LIABLE FOR DAMAGES OR LOSSES THAT MAY RESULT FROM TRAVEL TO SUCH DESTINATIONS.
Once you receive your confirmation e-mail, please check it carefully to make sure that all details are correct and ensure that the names given are the same as in the relevant ID documents you will present to the Guide. If you believe one or more details are not correct, please contact us immediately. Please ensure you check the information provided so that you are fully aware of timing, location, duration, departure among other details. If you are unsure about any aspect of your trip please contact the Guide or our Customer Service department.
Although every effort has been made to ensure that the information displayed is entirely complete and accurate, Funtavo.com (ORMG) accepts no liability for any injury to persons, or any loss or damage to property caused by errors or omissions in the data displayed, whether they result from negligence, accident or any other cause. We do not accept responsibility for any activity or procedure that may be necessary in order to enjoy the use of our Services, this is including but not limited to procuring or having in possession any passport or valid identification for travel. That is the sole responsibility of the Users.
Part - 2 Use of Our Website
We have made available various services, tools and functionality on this Website for your use. The information set out by us on these pages tells you how you can use these services (as well as those provided by our selected vendors), tools and functionality to find out about and make reservations, view content provided by us, interact with us and submit and share reviews with other customers.
Your use of this Website in these ways is subject to this Agreement that incorporate our Customer Review Rules which set out the terms upon which you are able to submit reviews and content.
You shall pay all costs and charges, including phone charges and telecommunications equipment costs, that you incur in order to download, access or use the Services. You must adhere to all limitations on dissemination, usage and reproduction of anything that you download from our websites or mobile apps that are subject to such limitations. You agree to use our Services only to access, purchase, download, utilize or receive the services in an appropriate manner as related to the particular services being accessed or used by you. As some examples of improper activities when accessing or using our website and mobile apps, services, you agree that you shall not (except as otherwise expressly permitted herein):
- Collect, harvest, mine or engage in any other activity to obtain e-mail addresses, phone numbers, personal information or any other information about others;
- Promote any unlawful activity or purpose, including without limitation, any activity that could give rise to criminal or civil liability;
- Solicit any business from third party users of our website or mobile apps;
- Provide any false personal information, or create an account for anyone other than yourself;
- Share your user name or password, let anyone else access your profile, or do anything else that might jeopardize the security of your profile;
- Use or attempt to gain access to or use another’s account, user name, password or computer systems, whether through hacking, password mining or any other means;
- (a) Select or use as a user name or any name of another person with the intent of impersonating that person, (b) use as a user name any name subject to any rights of a person other than you without appropriate authorization, or (c) use as a user name any name that is offensive, vulgar or obscene;
- Remove or falsely add to any content any copyright, trademark or other legal or proprietary rights notices, author attributions or other information such as origin or source of the content;
- Access or attempt to access any content that you are not authorized to access or content through any means not intentionally made available through the Services;
- Use the Services in any manner that infringes any Intellectual Property Rights or other rights of any party;
- Disrupt or interfere with the security of, or otherwise cause harm to, the website or any services, or systems resources;
- Transmit unsolicited or bulk communications to any ORMG affiliated e-mail address or otherwise transmit or send spam emails or unsolicited emails to users of the Services;
- Contribute any name, material, opinion or information that is child pornography, defamatory, excessively violent, harassing, inappropriate, indecent, lascivious, lewd, obscene, profane, racist, unlawful or otherwise objectionable;
- Disrupt, interfere with or inhibit any other user from using and enjoying the Services or other affiliated or linked sites, content or services;
- Access or use the Services in any manner that could damage, disable, overburden or impair any ORMG server or the network(s) connected to any ORMG server;
- Violate any applicable laws or regulations related to the access to or use of the Services or any content or engage in any activity prohibited by these Terms;
- Prepare, compile, use, download or otherwise copy any user directory or other user or usage information or any portion thereof, or transmit, provide or otherwise distribute (whether or not for a fee) such directory or information to any third party;
- Violate the rights of ORMG or any third party (including rights of privacy and publicity) or abuse, defame, harass, stalk or threaten another; an
- Use any ORMG domain name as a pseudonymous return e-mail address.
- we think that you are creating problems or possible legal liabilities;
- we think that such restrictions will improve the security of ORMG’s community or reduce our or another ORMG’s customer’s exposure to financial liabilities;
- we think that you are infringing the rights of third parties;
- we think that you are acting inconsistently with the letter or spirit of this Agreement or our policies;
- despite our reasonable endeavors, we are unable to verify or authenticate any information you provide to us; or
- you fail to pay us all fees due for our services by your payment due date.
When a customer or a Guide issue arises we may consider the User’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement and to do the right thing for both buyers and sellers.
In registering for an Account, you agree to provide true, accurate, current and complete information about yourself as prompted by the registration process and as requested from time to time by Funtavo (such information, "Registration Data"). You further agree that, in providing such Registration Data, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Data via the Services, or otherwise advise us promptly in writing of any changes or updates to your Registration Data. You further consent and authorize us to verify your Registration Data as required for your use of and access to the Services.
Once you subscribe to the Services, you shall receive a unique user ID and password in connection with your Account (collectively referred to herein as "Account IDs"). You are required to select an appropriate and non-offensive user ID for your Account; we reserve the right to remove or reclaim any user ID if we believe, in our sole discretion, the user ID is inappropriate, offensive or confusing or potentially violates the rights of a third party (such as when a trademark owner provides notice that a user ID is similar to the trademark and the user ID does not closely relate to the User's actual name).
You agree to maintain your Account solely for your own use. You agree that you will not allow another person to use your Account IDs to access or use the Services under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your Account IDs and for any charges, damages, liabilities or losses incurred or suffered as a result of you failure to do so. We are not liable for any harm caused by or related to the theft of your Account IDs, your disclosure of your Account IDs, or your authorization to allow another person to access or use the Services using your Account IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your Account including any charges incurred relating to the Services. You agree to immediately notify us of any unauthorized use of your Account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Services cannot be guaranteed.
You can terminate your Account at any time; and ORMG reserves the right, in its sole discretion, to terminate your Account if you violate this Agreement or for any reason or no reason at any time.
Listing Rules for Guides
When registering with Funtavo and listing, submitting or engaging us to list a Guide and services offered, you agree to the following:
- The Guide is responsible for the accuracy and content of the listing offered.
- Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances).
- The appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
- the customer’s location, search query, browsing site and history,
- the guide’s location, listing format, price, terms of service, time and date, history and relevance to customer’s query,
- customer’s reviews and feedback regarding a Guide,
- number of Guides matching the customer’s query and
- membership type.
Accordingly a listing may not appear in some search and browse results regardless of the sort order chosen by the customer.
Customer Review Rules
By submitting reviews and contributions, you are granting Funtavo.com a nonexclusive, perpetual, royalty-free, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, distribute and display such content throughout the world via any media.
By submitting your review you represent and warrant that:
- you own or control the content of your review and it is your own original work. Reviews should be genuine experiences and content should be relevant and helpful to other users of the website;
- the content is not defamatory and does not infringe any applicable laws content – this means you should not submit reviews that contain words, language or content that is or may be considered unlawful, defamatory, libelous, abusive, racially or sexually offensive or obscene;
- Harmful content – Reviews shall not contain viruses, worms, Trojan horses or other computer program that may damage or affect any system or data;
- Reviews that contain questions or comments aimed at other contributors or website users or our staff and/or representatives will not be published;
- you will indemnify and hold harmless Outdoor Reservation Management Group for all damages, costs and expenses incurred for breach of these warranties.
We reserve the right not to publish reviews, to amend content of reviews at any time and to remove reviews from this website without notice after publication at our sole discretion.
If there is any conflict between these Terms and other terms appearing elsewhere on this website then the latter shall prevail.
Since Funtavo.com is offered and operated by ORMG, with its primary offices located in the State of Texas, U.S.A., these Terms shall be governed by and in accordance with the laws of the State of Texas, U.S.A. and any disputes arising shall be subject to the non-exclusive jurisdiction of the courts in the State of Texas, U.S.A. These Rules are not exhaustive and we reserve the right to vary them from time to time.
Publication of these reviews and their content does not signify that we agree with the views and content given.
When providing us with content or posting content using ORMG’s services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademarks, database rights and intellectual property rights you have in the content, in any media known now or in the future. Further, to the fullest extent permitted under applicable law, you waive your moral rights and agree not to assert such rights against us, our sublicensees or assignees.
You represent and warrant that none of the following infringe any intellectual property right: your provision of content to us, your posting of content using the Services, and our use of such content (including of works derived from it) in connection with the service.
We may offer catalogs of stock images, descriptions and product specifications that are provided by third-parties (including Funtavo Users). You may use catalog content solely in connection with your Funtavo services including but not limited to profiles, reviews, and listings.
While we try to offer reliable data, we cannot guarantee that the catalogs will always be accurate and up-to-date, and you agree that you will not hold our catalog providers or us responsible got inaccuracies in the catalogs. The catalog may include copyrighted, trademarked or other proprietary materials. You agree not to remove any copyright, proprietary or identification markings included within the catalogs or create any derivative works based on catalog content (other than by including them in your profiles, reviews, and listings).
Authorization to contact you
- To contact you for reasons relating to your account or your use of our Services (such as to collect a debt, resolve a dispute, or to otherwise enforce our Marketplace Agreement) or as authorized by applicable law
This Website may contain links to other external websites operated by our selected vendors, partners or other third party websites.
Occasionally as you browse, book reservations or use the functionality on this Website we may provide you with links or connect you to websites which may be our branded or third party branded sites. These links or connections are made available so you can search for and purchase additional services and find out further information on our services. Please note that we are not responsible for nor do we endorse the content of these websites and your access and use of these websites will be subject to the terms and conditions of those websites.
Maintenance of Website
Due to maintenance work, we reserve the right to alter, update, or cancel our Service at any time. We may conduct such maintenance for security reasons, intellectual property, service improvements/changes, or other reasons at our discretion, and we are not required to explain such modifications.
Part 4 – Terms for All Services
Communications from ORMG
Modifications to Services
ORMG reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Funtavo site, Application, Guides, and/or Merchants. ORMG shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgement of such changes and satisfaction with all the Services.
Intellectual Property Rights and Grant of Rights to Users
The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the "ORMG Content") are provided to Users by ORMG or its partners or licensors solely to support User’s permitted use of the Services. The Funtavo content may be modified from time to time by ORMG in its sole discretion. Except as expressly set forth herein, no license is granted to Users for any other purpose, and any other use of the Services or the Funtavo Content by Users shall constitute a material breach of this Agreement. ORMG and its partners or licensors retain all rights in the Services and Funtavo content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of ORMG or any third party is granted under this Agreement.
Subject to the terms and conditions of this Agreement, ORMG grants Users a non-exclusive, non-transferable, revocable license to use the mobile applications, in object code form only, on User’s compatible mobile devices, solely to support User’s permitted use of the Services.
Government End Users
The Services constitute a "commercial item" as defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any Funtavo mobile application with only those rights set forth therein.
You may not use, export, or re-export any Funtavo mobile application or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a "terrorist supporting" country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
ORMG may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, ORMG may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any ORMG or Funtavo Policies), if we receive excessive chargebacks on the debit or credit card associated with your Account. After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account. You agree that ORMG shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which ORMG will have no liability whatsoever.
Your Representations and Indemnity
You represent and warrant that you own or otherwise control all of the rights to any Users content submitted by you; that all Users content submitted by you is accurate; and that exploitation of such Users content by ORMG and its other Users, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at ORMG’s request) defend ORMG, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the "ORMG Parties") from and against all claims resulting from (1) any Users content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement.
TO THE MAXIMUM EXTENT PERMITTED BY LAW IN NO EVENT SHALL THE ORMG PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT, (2) ANY USE OF THE SERVICES, THE ORMG CONTENT, OR THE USERS CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE RESERVATION SERVICES), OR (4) YOUR USE OF ANY GUIDE OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY GUIDE OR MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO ORMG SITES BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USERS FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE ORMG CONTENT. ORMG IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY GUIDE FOR WHICH A USERS HAS MADE A RESERVATION.
You and ORMG understand and agree that the disclaimers, exclusions, and limitations in this Section are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that ORMG would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Disclaimer of Warranties
THE SERVICES, ALL ORMG CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USERS ON AN "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND. ORMG EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. ORMG DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ORMG WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. ORMG SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ORMG.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Links to Third-Party Websites
The Services may contain hypertext links to websites operated by parties other than ORMG. Such hypertext links are provided for User’s reference only, and ORMG does not control such websites and is not responsible for their content. ORMG’s inclusion of any hypertext links to such websites does not imply any endorsement of the material on such websites or any association with their operators. ORMG assumes no liability whatsoever for any such third-party websites or any content, features, products, or services made available through such third-party websites.
Guides and Merchants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs ("Claims") suffered by you as a result of your (or such recipient’s) interaction with or visit to any Guide or Merchant or from any product or service of any Guide or Merchant. You hereby release the ORMG Parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the ORMG Parties pertaining to the subject matter of this paragraph.
Notify Us of Infringers
If you believe any of the Services violate your copyright, notify our us in writing.
In order for us to take action, you must do the following in your notice:
(a) provide your physical or electronic signature;
(b) identify the copyrighted work that you believe is being infringed;
(c) identify the item that you think is infringing your work and include sufficient information about where the material is located so that we can find it;
(d) provide us with a way to contact you, such as your address, telephone number, or email;
(e) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used in connection with the Services; and
(f) provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury) you are authorized to act on behalf of the copyright owner whose work is being infringed.
Again, we cannot take action unless you give us all the required information.
If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by Users, but may be freely transferred, assigned, or delegated by ORMG.
Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the ORMG Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association ("AAA"). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the "Rules and Procedures").
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and ORMG must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR ORMG MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, ORMG will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) ORMG also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or ORMG may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Dallas or Tarrant County, Texas. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Dallas or Tarrant County, Texas in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Dallas or Tarrant County, Texas for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor ORMG shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Dallas or Tarrant County, Texas.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
Choice of Law
This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Texas, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.