Effective March 29, 2010
PLEASE READ THIS USER AGREEMENT AND THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING OR OBTAINING ANY MATERIALS, INFORMATION, OR SERVICES THROUGH THIS WEB SITE.
This website is the owned and operated by Phonalytics.com® except where noted otherwise, all material on this website is Copyright © 2010 Phonalytics.com®. In addition, the brand name, trademarks, logos and service marks displayed on this website (collectively, the "Trademarks") are the registered and common law intellectual property of Phonalytics.com®. Nothing contained on this website should be construed as granting express, implied or otherwise, any license or right to use any of the Trademarks without the written permission of Phonalytics.com®.
These Terms govern your use of all Content, Products or Services available through the website. You agree to be bound by these Terms, and to use the website in strict compliance with all applicable laws, rulings and regulations, and in a manner that does not negatively reflect on the goodwill or reputation of Phonalytics.com®.
3. USE OF WEBSITE.
Phonalytics.com® grants you a limited, personal, nontransferable, non-sublicensable, revocable license to access and use the website only as expressly permitted in these Terms. Except for this limited license, we do not grant you any other rights or license with respect to this website; any rights or license not expressly granted herein are reserved. Unless we have granted you permission in advance and in writing, you may use the website only for your personal, non-commercial use, and not to provide services to a third party.
You shall not use this website for any other purposes, including without limitation, to make any speculative, false or fraudulent reservation or any reservation in anticipation of demand with our customers. This website and the content provided in this website, including the text, graphics, button icons, audio and video clips, digital downloads, data compilations and software, may not be copied, reproduced, reconstructed, decompiled, republished, uploaded, posted, transmitted or distributed for any commercial use without the written permission of Phonalytics.com®, except that you may download, display and print one copy of the materials presented on this website for your personal, non-commercial or educational use only. You may not use any "robot," "spider" or other automatic device, or a program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor or copy any of the web pages, data or content found on this website, in any case, without the prior written permission of Phonalytics.com®. You agree that you will not transmit, attempt to transmit or otherwise transfer any web pages, data or content found on this website to any other computer, server, web site, or other medium for mass distribution or for use in any commercial enterprise. You agree that you will not aid, encourage or enable others to transmit, attempt to transmit or otherwise transfer any web pages, data or content found on this website to any other computer, server, website, or other medium for mass distribution or for use in any commercial enterprise. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of this website. You agree that you will not take any action that imposes a burden or load on our infrastructure that Phonalytics.com® deems in its sole discretion to be unreasonable or disproportionate to the benefits Phonalytics.com® obtains from your use of the site. Unauthorized use of this website or the materials contained on this site may violate applicable state, federal and international copyright, trademark or other intellectual property laws or other laws. You must retain all copyright and trademark notices, including any other proprietary notices, contained in the materials, and you must not alter, obscure or obliterate any of such notices. The use of such materials on any other website or in any environment of networked computers is prohibited. You are prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. In addition, you are prohibited from posting or transmitting any information which (a) infringes the rights of others or violates their privacy or publicity rights, (b) is protected by copyright, trademark or other proprietary right, unless with the express written permission of the owner of such right, (c) contains a virus, bug or other harmful item, or (d) is used to unlawfully collude against another person in restraint of trade or competition. You shall be solely liable for any damages resulting from any infringement of copyright, trademark, or other proprietary right, or any other harm resulting from your use of this website.
4. AGE AND RESPONSIBILITY.
If you use this website, you are responsible for maintaining the confidentiality of your account information and your password. You agree to accept responsibility for all activities that occur under your account or password. You may be of any age to use this website for browsing but you represent that you are of sufficient legal age to create binding legal obligations for any liability you may incur as a result of the use of this website. You understand that you are financially responsible for all uses of this website by you and those using your login information.
6. REVIEW OF CONTENT.
Phonalytics.com® may, from time to time monitor and review any information transmitted or received through this website and reserves the right to censor, edit, remove or prohibit the transmission or receipt of any information that Phonalytics.com® deems inappropriate or in violation of these terms and conditions. During monitoring, the information may be examined, recorded or copied, and your use of this website constitutes your consent to such monitoring and review. You agree that if you submit suggestions, ideas, comments or questions or post any other information on this website, you grant Phonalytics.com® and its affiliates a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, and fully sublicenseable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display such content in any form, media or technology. Phonalytics.com® takes no responsibility and assumes no liability for any content posted or submitted by you.
7. EXCLUSION OF WARRANTY.
PHONALYTICS.COM® AND ITS OFFICERS, DIRECTORS, CONSULTANTS, PARTNERS, AGENTS AND EMPLOYEES MAKES NO WARRANTY OF ANY KIND REGARDING THIS WEBSITE AND/OR ANY CONTENT, DATA, MATERIALS, INFORMATION, PRODUCTS OR SERVICES PROVIDED ON THIS WEBSITE, ALL OF WHICH ARE PROVIDED ON AN "AS IS" BASIS. PHONALYTICS.COM® EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THIS WEBSITE WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED. WE FURTHER DISCLAIM ANY WARRANTY AS TO THE ACCURACY, COMPLETENESS AND TIMELINESS OF ANY CONTENT OR INFORMATION FOUND ON THIS SITE. PHONALYTICS.COM® EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. PHONALYTICS.COM® MAKES NO WARRANTY THAT THIS WEBSITE, ITS SERVERS OR ANY EMAIL SENT FROM PHONALYTICS.COM® ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC RIGHTS, WHICH VARY FROM STATE TO STATE. IN THOSE STATES THAT REJECT OR RESTRICT THE SCOPE OF DISCLAIMED WARRANTIES, THIS CLAUSE WILL BE ENFORCED ONLY TO THE EXTENT THAT IS DEEMED ENFORCEABLE.
8. THIRD-PARTY CONTENT.
Phonalytics.com® permits the submission of videos, articles and other content submitted by leisure travel advertisers, travel writers and other users ("Third-Party Content") and the hosting, sharing, and/or publishing of such Third-Party Content. Whether or not such Third-Party Content is published, Phonalytics.com® does not guarantee any confidentiality with respect to any submissions.
With the exception of some paid travel articles, Phonalytics.com® does not the own Third-Party Content published on our Web site. Third-Party Content publishers represent and warrant to Phonalytics.com® that they are the sole owner of the Work that they submit and that no copyright, contract or property right is violated by their use. Our Third-Party Content publishers affirm, represent, and warrant that: (i) they own or have the necessary licenses, rights, consents, and permissions to use and authorize Phonalytics.com® to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Third-Party Content to enable inclusion and use of the Third-Party Content in the manner contemplated by the Web site and these Terms of Service; and (ii) they have the written consent, release, and/or permission of each and every identifiable individual person made a part of the Third-Party Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the Third-Party Content in the manner contemplated by the Web site and these Terms of Service.
Where Third-Party Content publishers retain ownership rights in their Third-Party Content, they have granted Phonalytics.com® a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Third-Party Content in connection with Phonalytics.com® and Phonalytics.com’s® (and its successor's) business, including without limitation for promoting and redistributing part or all of the Phonalytics.com® (and derivative works thereof) in any media formats and through any media channels. Furthermore, Third-Party Content publishers hereby grant each user of Phonalytics.com® a non-exclusive license to access Third-Party Content through the Internet, and to use, reproduce, distribute, prepare derivative works of, display and perform said Third-Party Content as permitted through the functionality of the Web site and under these Terms of Service. The foregoing license granted by Third-Party Content publishers terminates once the Third-Party Content is deleted or removed from public sections of Phonalytics.com.®
9. LIMITATION OF LIABILITY.
PHONALYTICS.COM® AND ITS CONSULTANTS, PARTNERS, AGENTS AND EMPLOYEES ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE TO WEBSITE USERS FOR ANY AND ALL CLAIMS, LOSSES, EXPENSES, INJURIES, OR DAMAGES, OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THIS WEBSITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, DOCUMENTS, IMAGES, VIDEO OR AUDIO FROM THE WEBSITE. IN NO EVENT SHALL PHONALYTICS.COM® BE LIABLE TO WEBSITE USERS FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS, LOSS OF USE AND COSTS OF REPLACEMENT), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH (I) ANY USE OF THIS WEBSITE OR CONTENT FOUND HEREIN, (II) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO THE USE OF OR INABILITY TO USE ANY COMPONENT OF THIS WEBSITE FOR RESERVATIONS OR TICKETING), OR (III) THE PERFORMANCE OR NON PERFORMANCE BY PHONALYTICS.COM®, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO SUCH PARTIES OR ANY OTHER PARTY.
If, notwithstanding the foregoing, Phonalytics.com® or any third party provider or distributor should be found liable for any loss or damage which arises out of or is in any way connected with any of the above described functions or uses of this website or its content, the liability of Phonalytics.com® shall in no event exceed, in the aggregate, the sum of US$50.00. At its sole discretion, in addition to any other rights or remedies available to Phonalytics.com® and without any liability whatsoever, Phonalytics.com® at any time and without notice may terminate or restrict your access to any component of this site. Some states do not allow limitation of liability, so the foregoing limitation may not apply to you. In those states that reject or restrict the scope of limitations of liability, this clause will be enforced only to the extent that it is deemed enforceable.
Every user of the Phonalytics.com® website agrees to indemnify and hold Phonalytics.com®, its officers, directors, consultants, partners, agents and employees harmless against any and all loses, claims, damages or liabilities to which Phonalytics.com® may become subject and to reimburse Phonalytics.com® for any reasonable legal or other expenses incurred in connection with the defense of any actions brought by or on your behalf in excess of the liability described herein as a result of your use of this site.
This site contains links to other websites that we do not operate or control. Phonalytics.com®, its officers, directors, consultants, partners, agents and employees shall not be responsible for the content of any other websites and make no representation or warranty regarding any other websites or the contents or materials on such websites. If you decide to access other websites, you do so at your own risk.
The headings in this Terms and Conditions statement are for your convenience and reference. These headings do not limit or affect these Terms. Your acceptance of these Terms and use of this website does not create a joint venture, partnership, employment or agency relationship with us. You may not assign, delegate or transfer your rights or obligations under these Terms. We may modify these Terms, at any time. Your continued use of our website will be subject the Terms in effect at the time of your use. Other terms and conditions may apply to your reservations, bookings and purchases of travel services through our website and to your use of other portions of our website. You will observe these other terms and conditions. If we fail to act with respect to your breach or anyone else's breach on any occasion, we are not waiving our right to act with respect to future or similar breaches. If a court finds any of these Terms to be unenforceable or invalid, that Term will be enforced to the fullest extent permitted by applicable law and the other Terms will remain valid and enforceable. These Terms, together with those items incorporated into these terms by reference, make up the entire agreement between Phonalytics.com® and its website users relating to your use of our site, and replaces any prior understandings or agreements (whether oral or written) regarding your use of our website. You agree that the laws and jurisdiction of the State of Minnesota (USA) will govern these terms and conditions, as well as your and our observance of them. If you take any legal action relating to your use of our website or these Terms, you agree to file such action only in the state and federal courts located in Ramsey County, Minnesota (USA) and that you will never seek removal to any other state or federal jurisdiction. In any such action or any action we may initiate, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to costs, both taxable and non-taxable, and reasonable attorneys' fees.
13. FORCE MAJEURE.
Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected. Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused (I) by causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under this Agreement. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.