WE ALL ROAM LLC
TERMS OF SERVICE
Effective Date: November 15, 2017
Last Updated Date: November 15, 2017
1.1 OUR ROLE
We All Roam is a community of users that includes travelers and adventure seekers (collectively, “Travel Users”) and companies and other third parties offering tours, trips, and services related to travel (“Vendors”). However, we are not a travel product or service provider, travel vendor or an agent representative. Our Website and Services function solely as a neutral venue and forum and we have no control over the accuracy of listings on our Services or the ability of Vendors to provide items or services. We are not involved in or a party to any interaction or transaction that may occur between Users. We do not attempt to confirm, and do not confirm, any User’s purported identity. We do not investigate any User’s reputation, conduct, morality, criminal background or verify the information that any user submits to the Website.
1.2 TRAVEL USERS
If you are a Travel User, you acknowledge and agree that: (i) we do not provide any of the products or services advertised or offered by Vendors; (ii) we do not endorse any Vendor, nor do we guarantee the quality of their goods or services; (iii) any and all communications, correspondence, verbal or written, or any warranties or representations, made with regard to products and services offered through the Services are not provided by us and are specifically and solely between you and the Vendor; (iv) any transaction you enter into with a Vendor is strictly between you and the Vendor, and We All Roam is not a party to that transaction; and (v) any dispute you have with a Vendor is between you and the Vendor, and we will not be a party to that dispute. Our Services include the display of Reviews (defined below) to help you evaluate Vendors with whom you are considering transacting business, but we do not and cannot guarantee that information provided by or about Vendors on the Website is accurate (including in Reviews). You should use We All Roam as a starting point for identifying vendors to provide the accommodations and activities you would like to experience during your vacation or trip, then conduct your own research to ensure that vendors you choose to do business with are appropriate for you. You may wish to consider using a third-party service that provides additional user verification.
If you are a Vendor, you acknowledge and agree that:
a. we will not endorse you or your products or services;
b. we are in no way responsible for assisting you in reaching an agreement with Travel Users;
c. we not responsible for assisting you in providing goods and services to Travel Users;
d. while all Travel Users are required to give us accurate information about themselves, we cannot and will not verify this information;
e. any transaction you enter into with a Travel User is strictly between you and the Travel User, and we are not a party to that transaction;
f. any dispute you have with a Travel User is between you and the Travel User, and we will not be a party to that dispute. Vendors are solely responsible for compliance with all applicable laws, rules, regulations and local ordinances, including without limitation, necessary permits (collectively, “Regulations”), or other taxes and payments which may be applicable to services. You agree that you, as a Vendor, are solely responsible for your services and agree to indemnify, defend and hold harmless We All Roam from any claims, suits, losses, damages, costs and expenses (including reasonable attorneys’ fees) relating to or arising from your services, including any violation of any Regulations, or other taxes and payments which may be applicable to your services.
We do not currently charge fees to use our Website. Vendors may opt into certain paid services (“Premium Services”). We All Roam may list the prices for these Premium Services on the Website, but it reserves the right to change these prices and to offer discounts and temporary promotions. The fee and timing of payments for the Premium Services will be described separately as part of the Premium Services Agreement and additional terms are set forth in Section 9 below. As a Vendor, you may cancel Premium Services at any time. However, PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. Following any cancellation, however, you will continue to have access to the Premium Services through the end of your current billing period. In the event you, as a Vendor, are no longer receiving Premium Services, you agree and acknowledge that We All Roam shall be entitled to retain all basic directory information about you (e.g., business name, address and telephone number). Adventures, Trip Builder Features, Articles, and Reviews about you will not be Your Content or your personal information, and we retain the right to keep it on the site at our discretion, even if you are no longer receiving Premium Services.
2. RESPONSIBILITY FOR CONTENT
2.1 TYPES OF CONTENT
You acknowledge that all lists and other information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials (“Content”) accessible through the We All Roam Properties is the sole responsibility of the party from whom such Content originated. When we use the phrase “We All Roam Properties,” we mean the Website, the Services, and the information and content available on any of the foregoing. This means that you, and not We All Roam, are entirely responsible for all Content that you upload, post, e-mail, message, transmit or otherwise make available (“Make Available”) through the We All Roam Properties (“Your Content”), and other Users of the We All Roam Properties, and not We All Roam, are similarly responsible for all Content they Make Available through the We All Roam Properties (“User Content”). Your Content includes Content from a third party that you Make Available on the We All Roam Properties. Basically, make sure you have the right to add Content before you put that Content on our Service.
2.2 LICENSE TO YOUR CONTENT
You grant We All Roam a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sub-licensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, create derivative works of, derive revenue or other remuneration from, communicate to the public, and other exploit in any way, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in Your Content. You agree that you, not We All Roam, are responsible for all of Your Content that you Make Available on or in the We All Roam Properties and our use thereof. We will not be responsible or liable for any use of your Content by us in accordance with these Terms. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. If you want to publish Content of someone other than yourself, you must get permission from the individuals portrayed in the Content before using the content through our Services. The above licenses will continue unless and until you remove Your Content from the We All Roam Properties, in which case the licenses will terminate within a commercially reasonable period of time after such deletion.
Our “Reviews” consist of opinions and information left by other Users about Vendors. Reviews may include initial reviews from a Travel User and responses from a Vendor. As our Services are a neutral venue, we cannot, do not, and will not make any comments on behalf of any User. A key component of the Services is the ability of Users to leave Reviews about Vendors (whether positive, neutral or negative) AND for other Users to read and evaluate those Reviews and make voluntary choices based upon those Reviews. We do not make judgments on the veracity of opinions or statements. We may, but are not required to, take certain steps to ensure the Review is accurate, including proof that a User conducted business (or attempted to conduct business) with a Vendor. In order to protect the integrity of the Reviews, we will only consider removing a Review: (i) that contains profane, vulgar, discriminatory or contains adult material: (ii) for which we are provided with a binding ruling or settlement agreement from a valid and certified dispute resolution service, or is provided with a court order finding that the Review is slanderous, libelous, defamatory or otherwise illegal or the court order requires removal; (iii) that makes any reference to actions taken or purported to be taken by We All Roam or any law enforcement organization; (iv) that violates these Terms; (v) from a User that cannot be verified by use; or (vi) if required by law. Vendors may contact us to initiate a dispute over a Review. As a Vendor, you agree that you will not: (a) attempt to restrict in any way a User’s right to post a review, by contract or otherwise; (b) offer a User cash or other compensation in any form in exchange for a more favorable review; (c) post and/or cut and paste and/or copy the content of a Review from the Website to your own personal or business site, to any other third party website and/or to or on any of your own personal, business or third-party marketing/advertising materials, regardless of the form; (d) attempt to gain Reviews by receiving multiple Reviews from the same User; (e) post or attempt to post, in any manner or by any means, a Review on your own account; or (f) misrepresent or impersonate another User. You as a Vendor, agree and acknowledge that We All Roam shall be entitled to retain all Reviews associated with you (including any of your responses) as well as basic directory information about you (e.g. business name, address and telephone number). Reviews about you will not be Your Content or your personal information. At your request, however, we will, however, remove any other of Your Content (i.e., content that is not publicly available or included in reviews).
2.4 NO OBLIGATION TO PRE-SCREEN CONTENT
You acknowledge that We All Roam has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although We All Roam reserves the right in its sole discretion to pre-screen, refuse or remove any Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that We All Roam pre-screens, refuses or removes any Content, you acknowledge that We All Roam will do so for We All Roam’s benefit, not yours. Without limiting the foregoing, We All Roam shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
Unless expressly agreed by We All Roam in writing elsewhere, We All Roam has no obligation to store any of Your Content that you Make Available on the We All Roam Properties. We All Roam has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the We All Roam Properties. You agree that We All Roam retains the right to create reasonable limits on We All Roam’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by We All Roam in its sole discretion.
We reserve the right to commercialize Your Content in any way, including by including advertising in and around Your Content. As we do not control any advertising, you hereby agree and acknowledge to the juxtaposition of any advertising around Your Content. In addition, you acknowledge and agree that you will have no right to any revenue or fees we may obtain or receive in connection with Your Content.
2.7 YOUR CONTENT
In connection with your use of the We All Roam Properties, you shall not Make Available any Content that: (a) you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (b) infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights; (c) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (d) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (e) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (g) promotes illegal or harmful activities.
3. USE OF THE SERVICES AND WE ALL ROAM PROPERTIES
The We All Roam Properties are protected by copyright laws throughout the world. Subject to the Terms, We All Roam grants you a limited license to reproduce portions of the We All Roam Properties for the sole purpose of using the Services for your personal or internal business purposes.
You understand that the We All Roam Properties are evolving. As a result, We All Roam may require you to accept updates to the We All Roam Properties that you have installed on your computer or mobile device. You acknowledge and agree that We All Roam may update the We All Roam Properties with or without notifying you. You may need to update third-party software from time to time in order to use the We All Roam Properties.
3.3 CERTAIN RESTRICTIONS
The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the We All Roam Properties or any portion of the We All Roam Properties, including the Website, (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the We All Roam Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other We All Roam Properties (including images, text, page layout or form) of We All Roam; (d) you shall not use any metatags or other “hidden text” using We All Roam’s name or trademarks; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the We All Roam Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the We All Roam Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the We All Roam Properties. Any future release, update or other addition to the We All Roam Properties shall be subject to the Terms. We All Roam, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the We All Roam Properties terminates the licenses granted by We All Roam pursuant to the Terms.
3.4 THIRD-PARTY MATERIALS
As a part of the We All Roam Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for We All Roam to monitor such materials and that you access these materials at your own risk.
4.1 REGISTERING YOUR ACCOUNT
In order to access certain features of the We All Roam Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account with We All Roam (“Account”).
4.2 REGISTRATION DATA
In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the We All Roam Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the We All Roam Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify We All Roam immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or We All Roam has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, We All Roam has the right to suspend or terminate your Account and refuse any and all current or future use of the We All Roam Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. We All Roam reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the We All Roam Properties if you have been previously removed by We All Roam, or if you have been previously banned from any of the We All Roam Properties.
4.3 NECESSARY EQUIPMENT AND SOFTWARE
You must provide all equipment and software necessary to connect to the We All Roam Properties, including but not limited to, a mobile device that is suitable to connect with and use the We All Roam Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the We All Roam Properties.
5.1 WE ALL ROAM PROPERTIES
Except with respect to Your Content and User Content, you agree that We All Roam and its suppliers own all rights, title and interest in the We All Roam Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the We All Roam Properties.
We All Roam and other related graphics, logos, service marks and trade names used on or in connection with the We All Roam Properties or in connection with the Services are the trademarks of We All Roam and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the We All Roam Properties are the property of their respective owners.
5.3 OTHER CONTENT
Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the We All Roam Properties.
5.4 YOUR CONTENT
We All Roam does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the We All Roam Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the We All Roam Properties, you hereby expressly permit We All Roam to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
5.6 YOUR ACCOUNT
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of We All Roam.
5.7 YOUR PROFILE
Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s permission.
You agree that submission of any ideas, suggestions, documents, and/or proposals to We All Roam through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that We All Roam has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to We All Roam a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub-licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the We All Roam Properties.
6. INTERACTIONS WITH OTHER USERS
6.1 USER RESPONSIBILITY
You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that We All Roam reserves the right, but has no obligation, to intercede in such disputes. You agree that We All Roam will not be responsible for any liability incurred as the result of such interactions.
6.2 YOUR CONTENT
We All Roam is not responsible for and does not control how other Users use Your Content once exported or downloaded from the We All Roam Properties. Any such use of Your Content by such other Users (including any modification or derivative works thereof) is not subject to our Terms. We All Roam has no way to review or monitor, and does not approve, endorse or make any representations or warranties with respect to the use of Your Content. You provide Your Content at your own risk.
6.3 CONTENT PROVIDED BY OTHER USERS
The We All Roam Properties may contain User Content provided by other Users. We All Roam is not responsible for and does not control User Content. We All Roam has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk. We may delete User Content in our discretion.
7. THIRD-PARTY SERVICES
The We All Roam Properties may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”). When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left the We All Roam Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of We All Roam. We All Roam is not responsible for any Third-Party Websites & Ads. We All Roam provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8. PAYMENTS AND COMMISSIONS
8.1 WE ALL ROAM COMMISSIONS
Travel Users and Vendors may use the Website and Services to complete certain paid transactions between one another, such as booking a tour, booking a trip/expedition, reserving rental gear, booking accommodation or any combination thereof (each, a “Paid Transaction”). Following We All Roam’s receipt of applicable payments in connection with a Paid Transaction, We All Roam (via its third party payment processor) will remit to the Travel User or Vendor such payments less We All Roam’s commission (a “We All Roam Commission”), with percentage as agreed upon between We All Roam and the Travel User or Vendor. You acknowledge and agree that you will not receive interest or other earnings on the funds held of We All Roam prior to disbursement of funds/fees to you. If you are a Vendor, We All Roam reserves the right to seek reimbursement from you, and you will reimburse We All Roam, if we suspect fraud or criminal activity associated with your payment or withdrawals, or if we discover erroneous or duplicate transactions, or if we supplied Services in accordance with the Terms yet receive any chargeback from a Travel User’s credit card company, bank, PayPal or other payment method used by you or the Travel Users. You agree that we have the right to obtain such reimbursements by instructing our third party payment processor to charge your account, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your credit card, or obtaining reimbursement from you by any other lawful means. Failure to pay for reimbursements or chargebacks is cause for termination of these Terms.
We All Roam has no obligation to provide refunds or credits to you, either as a Travel User or as a Vendor, but may grant them in extenuating circumstances, for instance to correct any errors made by We All Roam, in each case at We All Roam’s sole discretion.
You, as a Travel User or as a Vendor, will be liable for all transaction taxes on the Services under these Terms (other than taxes based on We All Roam’s income).
You must notify us in writing within ten (10) days after receiving your credit card statement (if you are a Travel User) or receiving payment of funds (if you are a Vendor), if you dispute any charges (as a Travel User) or the Travel User’s nonpayment or underpayment (as a Vendor). Upon receipt of such a notice, We All Roam will notify the other party that there is a dispute to be resolved between the parties.
8.5 THIRD PARTY PAYMENT PROCESSORS
You agree to indemnify and hold We All Roam, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “We All Roam Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the We All Roam Properties or any other User’s Content; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; (e) your violation of any applicable laws, rules or regulations; or (f) your interactions with any other User. We All Roam reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with We All Roam in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the We All Roam Properties.
10. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WE ALL ROAM PROPERTIES IS AT YOUR SOLE RISK, AND THE WE ALL ROAM PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. WE ALL ROAM PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
A. WE ALL ROAM PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WE ALL ROAM PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE WE ALL ROAM PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WE ALL ROAM PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE WE ALL ROAM PROPERTIES WILL BE CORRECTED.
B. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE WE ALL ROAM PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE WE ALL ROAM PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
C. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. WE ALL ROAM MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
D. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM WE ALL ROAM OR THROUGH THE WE ALL ROAM PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
10.2From time to time, We All Roam may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at We All Roam’s sole discretion. The provisions of this section apply with full force to such features or tools.
10.3NO LIABILITY FOR CONDUCT OF THIRD PARTIES
YOU ACKNOWLEDGE AND AGREE THAT WE ALL ROAM PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD WE ALL ROAM PARTIES LIABLE, FOR THE CONDUCT OF OTHER USERS OR OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU UNDERSTAND THAT WE ALL ROAM DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE WE ALL ROAM PROPERTIES.
11. LIMITATION OF LIABILITY
11.1DISCLAIMER OF CERTAIN DAMAGES
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL WE ALL ROAM PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WE ALL ROAM PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WE ALL ROAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE WE ALL ROAM PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM:
I. THE USE OR INABILITY TO USE WE ALL ROAM PROPERTIES;
II. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE WE ALL ROAM PROPERTIES;
III. UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
IV. STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WE ALL ROAM PROPERTIES; OR
V. ANY OTHER MATTER RELATED TO THE WE ALL ROAM PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
11.2CAP ON LIABILITY
UNDER NO CIRCUMSTANCES WILL WE ALL ROAM PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF:
I. TWENTY FIVE U.S. DOLLARS ($25.00); AND
II. ANY AMOUNTS PAID BY YOU TO WE ALL ROAM FOR PREMIUM SERVICES IN THE THREE (3) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
WE ALL ROAM PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
11.4BASIS OF THE BARGAIN
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WE ALL ROAM AND YOU.
11.5EXCLUSION OF DAMAGES
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
It is We All Roam’s policy to terminate access privileges of any User who repeatedly infringes copyright upon prompt notification to We All Roam by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the We All Roam Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the We All Roam Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for We All Roam’s Copyright Agent for notice of claims of copyright infringement is as follows: firstname.lastname@example.org.
13. TERM AND TERMINATION
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the We All Roam Properties, unless terminated earlier in accordance with the Terms.
Notwithstanding the foregoing, if you used the We All Roam Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the We All Roam Properties (whichever is earlier) and will remain in full force and effect while you use the We All Roam Properties, unless earlier terminated in accordance with the Terms.
13.3TERMINATION OF SERVICES BY US
We have the right to modify, suspend or terminate any Services provided to you at any time without or without reason. You agree that all terminations for cause shall be made in our sole discretion.
13.4TERMINATION OF SERVICES BY YOU
If you want to terminate the Services provided by We All Roam, you may do so by notifying We All Roam at any time. Your notice should be sent, in writing, to We All Roam’s address set forth below.
13.5EFFECT OF TERMINATION
Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination may include deletion of your password and certain information, files and Content associated with your Account (or any part thereof), excluding Reviews and directory information about you. Upon termination of any Service, your right to use such Service will automatically terminate immediately. We will not have any liability whatsoever to you for any suspension or termination, including for deletion or non-deletion of Your Content. All provisions of the Terms, which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
If We All Roam becomes aware of any possible violations by you of the Terms, We All Roam reserves the right to investigate such violations. If, as a result of the investigation, We All Roam believes that criminal activity has occurred, We All Roam reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. We All Roam is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the We All Roam Properties, including Your Content, in We All Roam’s possession in connection with your use of the We All Roam Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Terms, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of We All Roam, its Users or the public, and all enforcement or other government officials, as We All Roam in its sole discretion believes to be necessary or appropriate.
In the event that We All Roam determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the We All Roam Properties, We All Roam reserves the right to: (i) warn you via e-mail (to any e-mail address you have provided to We All roam) that you have violated the Terms; (ii) delete any of Your Content; (iii) discontinue your registration(s) with the any of the We All Roam Properties, including any Services or any We All Roam community; (iv) notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (v) pursue any other action which We All Roam deems to be appropriate.
14.3NO SUBSEQUENT REGISTRATION
If your registration(s) with or ability to access the We All Roam Properties, or any other We All Roam community is discontinued by We All Roam due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the We All Roam Properties or any We All Roam community through use of a different user name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those We All Roam Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, We All Roam reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
15. GENERAL PROVISIONS
The communications between you and We All Roam use electronic means, whether you visit the We All Roam Properties or send We All Roam e-mails, or whether We All Roam posts notices on the We All Roam Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from We All Roam in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that We All Roam provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
You hereby release We All Roam Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the We All Roam Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the We All Roam Properties. 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 favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without We All Roam’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
We All Roam shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
If you believe that We All Roam has not adhered to the Terms, please contact We All Roam by emailing us at email@example.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
YOU AND WE ALL ROAM AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE WE ALL ROAM PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE
15.6.1 YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
15.7ARBITRATION AGREEMENT; CLASS WAIVER; WAIVER OF TRIAL BY JURY
Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with We All Roam and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
A. APPLICABILITY OF ARBITRATION AGREEMENT
All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by We All Roam that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and We All Roam, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
B. NOTICE REQUIREMENT AND INFORMAL DISPUTE RESOLUTION
Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to We All Roam should be sent to: firstname.lastname@example.org. After the Notice is received, you and We All Roam may attempt to resolve the claim or dispute informally. If you and We All Roam do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
C. ARBITRATION RULES
Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
D. ADDITIONAL RULES FOR NON-APPEARANCE BASED ARBITRATION
If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
E. AUTHORITY OF ARBITRATOR
If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and We All Roam, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and We All Roam.
F. WAIVER OF JURY TRIAL
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and We All Roam in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WE ALL ROAM WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
G. WAIVER OF CLASS OR CONSOLIDATED ACTIONS
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
I. RIGHT TO WAIVE
Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Arbitration Agreement.
J. SURVIVAL OF AGREEMENT
This Arbitration Agreement will survive the termination of your relationship with We All Roam.
K. SMALL CLAIMS COURT
Notwithstanding the foregoing, either you or We All Roam may bring an individual action in small claims court.
L. EMERGENCY EQUITABLE RELIEF
Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in California, for such purpose.
The Terms and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Virginia, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
15.9CHOICE OF LANGUAGE
It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
Where We All Roam requires that you provide an e-mail address, you are responsible for providing We All Roam with your most current e-mail address. In the event that the last e-mail address you provided to We All Roam is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, We All Roam’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to We All Roam at the following e-mail address: email@example.com. Such notice shall be deemed given when received by We All Roam through email service at the above e-mail address.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
15.13 EXPORT CONTROL
You may not use, export, import, or transfer the We All Roam Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the We All Roam Properties, and any other applicable laws. In particular, but without limitation, the We All Roam Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the We All Roam Properties, you represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the We All Roam Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by We All Roam are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer We All Roam products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
15.14 CONSUMER COMPLAINTS
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
15.15 ENTIRE AGREEMENT
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
16. INTERNATIONAL PROVISIONS
The We All Roam Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that We All Roam intends to announce such Services or Content in your country. The We All Roam Properties are controlled and offered by We All Roam from its facilities in the United States of America. We All Roam makes no representations that the We All Roam Properties are appropriate or available for use in other locations. Those who access or use the We All Roam Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
16.1 UNITED KINGDOM
A third party who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
Notwithstanding anything to the contrary in Section 13, We All Roam is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).