Terms & Conditions
Defined terms used herein and not otherwise defined have the definition ascribed thereto in the Travel Curator Collection Membership Agreement between Client and TC.
1. WARRANTIES
1.1 Client warrants that on the Effective Date and during the term of the Agreement the: (i) content developed by Client, or on its behalf, on the Client Site and the Client Marks do not and will not infringe any copyright, trademarks, or trade secrets of any third party and do not and will not constitute a defamation or invasion of the rights of privacy or publicity of any kind of any third party; (ii) the Client Site does not violate the laws, statutes or regulations of any jurisdiction; (iii) the Client Site does not include any material, and does not contain links to sites displaying any material, which is harmful, pornographic, abusive, hateful, obscene, threatening, defamatory, or which encourages illegal activity, or promotes software or services that deliver unsolicited email; and (iv) neither the Link nor TC’s use of Client Marks violates the rights of any third party, including without limitation, copyright, trademark, trade secret, privacy, publicity or other right.
2. LIMITATIONS
2.1 TC’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of this warranty shall be that TC shall use reasonable commercial efforts to promptly cure any such breach; provided, that if TC cannot cure such breach within a reasonable time (but no more than 60 days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 5 of the Agreement. This remedy shall not be available unless Client provides written notice of such breach within 30 days after acceptance of such Services by Client.
2.2 Each Party specifically disclaims all warranties regarding the other Party’s website, information, and services provided thereunder, express or implied, including without limitation, the warranties of merchantability or fitness for a particular purpose. In particular, and not by way of limitation, neither Party warrants that its respective website will operate error-free or without interruption. TC makes no warranties, express or implied, including without limitation any implied warranties of merchantability, fitness for infringement with respect to the TC Site.
2.3 LIMITATION OF LIABILITY. IN NO EVENT WILL TC BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THE AGREEMENT OR TO THE LINK TO THE CLIENT SITE, EVEN IF TC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF EITHER PARTY OR REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT OR ANY OTHER THEORY OF LIABILITY. NOTHING IN THE AGREEMENT SHALL OPERATE TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR FRAUD OR ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
2.4 IN NO EVENT SHALL TC’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO TC PURSUANT TO THE AGREEMENT.
3. INDEMNITY
Client agrees to defend, indemnity and hold harmless TC, its officers, directors, employees, and agents from and against all losses, liabilities, claims, demands, causes of action, proceedings, and judgments (including reasonable attorney’s fees, court costs, and administrative fines or penalties) (“Liabilities”) (i) arising from the Agreement or a claim brought by any third party or state or federal regulatory agency, (ii) arising from the Link, and/or (iii) in connection with any claimed or actual infringement of any intellectual property or proprietary right of the Client Site or Client Marks.
4. INTELLECTUAL PROPERTY
Except as expressly licensed under the Agreement, each party will retain all right, title, and interest in and to its own website, respective trademarks, copyrights, patents, logos, and other intellectual property rights.
5. CONFIDENTIALITY
Each Party acknowledges the confidential nature of the terms and conditions of the Agreement (the “Confidential Information”) and agrees that it shall not (a) disclose any of such Confidential Information to any person, except to such Party’s affiliates, employees, advisors, and other representatives who need to know the Confidential Information to assist such Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement, or (b) use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement. Each Party shall be responsible for any breach of this Section 5 caused by any of its affiliates, employees, advisors, or other representatives. Notwithstanding the foregoing, if any Confidential Information is permissibly and publicly disclosed, such information will no longer be deemed “Confidential Information” for purposes of this Section 5.
6. GENERAL
6.1 Assignment. Neither Party may sell, assign, transfer or otherwise convey any of its rights or delegate any of its obligations under the Agreement without the prior written consent of the other Party; except that either Party’s rights hereunder may be transferred to a successor of all or substantially all of such Party’s business and assets (no matter how the transaction or series of related transactions is structured). The Agreement is binding on and inures to the benefit of the Parties to the Agreement and their respective permitted successors and permitted assigns.
6.2 Entire Agreement. The Agreement including the TCC Terms and Conditions constitutes the entire understanding and agreement between the Parties and supersedes all previous agreements (whether written or oral) concerning the Services.
6.3 Governing Law. The Agreement and all matters arising out of or relating to the Agreement, whether sounding in contract, tort, or statute are governed by, construed in accordance with and enforced under the laws of the State of New York, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York.
6.4 Jurisdiction. Any legal suit, action, or proceeding relating to the Agreement must be instituted in the federal or state courts located in New York, New York. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other documents by certified mail to the address above will be effective service of process for any suit, action, or other proceeding brought in any such court.
6.5 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THE AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.6 Severability. If any provision of the Agreement is declared or found to be prohibited, unenforceable, or void, the Parties will negotiate in good faith to agree upon a substitute provision that is valid, binding, and enforceable and is as nearly as possible consistent with the intentions underlying the original provision. If the Parties are unable to agree upon such substitute provision, the original provision will be stricken. If the remainder of the Agreement is capable of substantial performance, then the invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of any other provision of the Agreement, which shall remain in full force and effect to the extent permitted by law.
6.7 Amendments. No amendment to or modification of, or rescission, termination, or discharge of the Agreement is effective unless it is in writing and signed by each Party; provided, however, that TC may amend or modify these TCC Terms and Conditions with no less than five days prior notice to Client.
6.8 Waiver. The failure of either Party to insist upon or enforce strict performance by the other
Party of any provision of the Agreement or to exercise any right under the Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance.
6.9 Independent Parties. Nothing in the Agreement shall be deemed to constitute, create, give effect to, or otherwise recognize a partnership, joint venture or formal business entity of any
kind or create a fiduciary or similar relationship between the Parties not in existence prior to the Effective Date of the Agreement. The rights and obligations of the Parties shall be limited to those expressly set forth herein and neither Party will have any right, power, or authority to incur any liability or obligation on behalf of or to otherwise bind the other Party.
6.10 No Third-Party Beneficiaries. The Agreement benefits solely the Parties to the Agreement and their respective permitted successors and assigns and nothing in the Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
6.11 Website Responsibility. Subject to the terms and conditions of the Agreement, each Party will be responsible, at its own expense, for the hosting and management of the content of its own website. Each Party will review, delete, edit, create, update, and otherwise manage all content
and services available on or through its own website, subject only to any restrictions set forth in the Agreement.
