Last Updated December 2021
TERMS AND CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING OR OBTAINING ANY CONTENT, PRODUCTS, OR MAKING ANY BOOKINGS OR PURCHASING ANY PRODUCTS AND SERVICES FROM ACTIVE INTERNATIONAL, INCLUDING THROUGH THIS WEBSITE OR FROM OUR RESERVATION CENTER.
1. CERTAIN DEFINITIONS
The below capitalized terms when used in these Terms shall have the respective meanings assigned below:
- "Active" or "we" or “our” means Active Media Services, Inc. d/b/a Active International and its subsidiaries and affiliates.
- “Book” or “Booking” means to reserve on a confirmed basis as indicated by receipt from the Site or Active’s Reservation Center of a written confirmation, i.e. a confirmation is issued by the relevant travel provider and provided by us to the Customer.
- "Content" means the text, documents, information, data, articles, images, photographs, graphics, software, applications, video recordings, audio recordings, sounds, designs, features, and other materials that are stored or otherwise available on the Site or otherwise available from our Reservation Center. "Content" also includes Marks and Products and Services.
- “Club” means Active’s Employee, Friends and Family Club, membership is automatic and required with any booking made by our Reservation Center for any person or entity that is not at the time of booking either a client of Active or employee of Active, together with any additional passenger(s), family member(s), and/or guest(s) traveling with a Club member.
- "Customer(s)" or “you” or “your” means purchaser(s) and/or traveler(s), including any client(s) or employee(s) of Active or any of its affiliates, or any member(s) of Active’s Club, together in each instance with any additional passenger(s) and/or guest(s) traveling with a Customer or Club member. Customers may be offered the opportunity to choose a User ID and a password for this Site.
- "Mark" means trademark, trade name, service mark, trade dress, logo, custom graphics, or icon.
- "Products and Services" means the hotel accommodations, cruises and/or other travel goods and/or services from time to time made available for booking/purchase through this Site and/or from our Reservation Center.
- "Provider(s)" means third-party travel supplier(s), information provider(s), and travel and leisure service provider(s) of Products and Services.
- “Reservation Center” means the travel department of Active which makes travel reservations on behalf of Customers via phone, email or this Site.
- "Site" means this website, together with the respective Content, Marks, Products and Services available from this Site, as well as the software used to operate the Site.
- “Terms” means these Terms & Conditions which apply to all purchases of Products and Services from Active through this Site or Active’s Reservation Center and are the terms that apply to any use of this Site.
- "User ID" means the e-mail address you use (with your password) to login to our Site.
2. CONSENT TO TERMS AND CONDITIONS
PLEASE READ THESE TERMS CAREFULLY. YOUR USE OF THIS SITE AND/OR BOOKING/PURCHASING OF ANY PRODUCTS AND SERVICES FROM ACTIVE INDICATES YOUR ACCEPTANCE OF THESE TERMS, INCLUDING THE POLICIES INCORPORATED INTO THEM BY REFERENCE. These Terms govern the use of this Site as well as the relationship between Active and You, including terms that restrict your rights and remedies and provide protection to Active, and also include warranty disclaimers and liability exclusions. These Terms are incorporated into any booking and/or purchase of Products and Services via the Site or the Reservation Center and no alterations to these Terms may be made by our Reservation Center.
IF THERE IS ANY PART OF THESE TERMS YOU DO NOT AGREE WITH OR ACCEPT, YOU MUST NOT USE THE SITE OR BOOK/PURCHASE ANY PRODUCTS AND SERVICES.
3. TRAVEL DOCUMENTS AND IDENTIFICATION REQUIREMENTS
It is the sole responsibility of each Customer to determine, obtain and carry the necessary travel documents, e.g. enhanced driver license, passport, visa and/or other documentation, required by applicable government regulations. Additionally, be advised that certain countries will not admit a traveler if their passport expires within six (6) months of the date of entry. Active is not responsible or liable for any loss incurred in the event of Customer’s failure to have any required travel documentation which may result in, among other things, denied boarding or an undue delay at an airport security checkpoint causing Customer to miss flight(s), and subsequent scheduled travel bookings on cruises and tours. It is Customer’s sole responsibility to determine, obtain and carry any required travel documentation.
When Customer receives any booking confirmation for Products and Services from this Site or the Reservation Center, it is Customer’s sole responsibility to review and verify promptly all such information and contact Active immediately if changes or corrections are required.
4. INDIVIDUAL ENTRY AND EXIT REQUIREMENTS
Each foreign country holds different views of past criminal offenses, whether within or outside of their boundaries. If you have a current or past offense or felony conviction, and you are unsure how the country you are traveling to (or through) views that offense, you are advised to contact that country directly for entry and exit requirements.
Although most travel is completed without incident, travel to certain destinations may involve greater risk than others, and/or specific COVID related requirements. Customer is strongly advised to check and review (and is solely responsible for checking and reviewing) prior to making any bookings (or traveling) all travel prohibitions, warnings, announcements and advisories, including any COVID/pandemic related requirements, including, without limitation, any testing, quarantines, mask requirements, or proof of vaccination, issued from time to time, in the case of domestic travel, any U.S. state and local governmental agencies and Providers for any states on Customer’s domestic travel itinerary, and in the case of any international travel, the U.S. Federal government and its agencies and any foreign country(ies), consulates and Providers on Customer’s international travel itinerary.
BY OFFERING FOR SALE TRAVEL TO PARTICULAR DESTINATIONS, ACTIVE DOES NOT REPRESENT OR WARRANT TO YOU THAT TRAVEL TO ANY SUCH DESTINATION(S) IS ADVISABLE, SAFE OR WITHOUT RISK, AND IN NO EVENT SHALL ACTIVE BE LIABLE FOR COSTS, DAMAGES, OR LOSSES THAT MAY RESULT FROM TRAVEL TO ANY SUCH DESTINATION(S) OR FOR ANY INCIDENT(S) OCCURRING DURING YOUR STAY.
6. USE OF THIS SITE AND INFORMATION PROVIDED; AGE LIMITATIONS
Customer must be 18 years or older to use this Site. Each Customer warrants that he/she is at least 18 years of age and possess the legal authority to make travel bookings to purchase Product and Services with Active by any means, including this Site or our Reservation Center in accordance with all Terms herein. Customer agrees to be financially responsible for all travel bookings. Minors (as defined under the laws of Customer’s jurisdiction or residence) are not eligible to register for, access or use this Site, or book any Products and Services available on the Site. The Site is not intended for children. Customer agrees to keep any minors listed under Customers name or account off of this Site. If you are under 13 you should not access this Site or provide to us any identifying information about yourself. Customer warrants that all information supplied by Customer or members of Customer’s household transacting business with Active is true and accurate. Each Customer is responsible for maintaining the secrecy of its User ID and password for this Site. In addition, Customer will be financially accountable for all use of this Site by Customer and anyone using Customer’s password and login information.
7. ADDITIONAL TERMS, CONDITIONS AND REQUIREMENTS OF PROVIDERS
Each Customer understands and agrees that Products and Services are provided subject to the terms, conditions and requirements of each Provider Customer selects (and as identified on Customer’s confirmation). Customer agrees to abide by the terms, conditions and requirements of each Provider as well as these Terms. As example, Providers of hotels accommodations have terms, conditions and requirements regarding, among other things, (i) cancellation and “late check-out”; (ii) presentation at check-in of a valid credit card and picture identification; (iii) check-out by the times indicated by the Provider, and (iv) payment of any amounts due the Provider at time of check-out. Additionally, due to Covid -19 (and its variants) Providers, e.g. hotels, airlines, rental car companies, etc., may also have issued additional requirements such as, among others, mask wearing, temperature or Covid testing, and social distancing. Each Customer is responsible for checking the terms, conditions and requirements of each Provider that pertain to your travel, and we strongly recommend that prior to traveling Customer check the Covid-19 related requirements issued by your Provider, as well as your state of residency, destination state or country.
8. TRAVEL INSURANCE
Active highly recommends that Customer(s) purchase appropriate travel insurance from a third party provider which includes coverage for medical treatment and, due to Covid-19, medical evacuation that does not exclude airborne pathogens. Without appropriate travel insurance, Customer understands and agrees that if Customer cancels or interrupts Customer’s travel for any reason, portions of the trip may not be refunded and Providers’ cancellation penalties will apply resulting in the loss of monies up to the full cost of Customer’s travel booking and related costs. The purchase of travel insurance is not required in order to purchase any Products and Services offered by Active. Active does not sell Travel Insurance and employees of Active are not qualified or authorized to: answer technical questions about benefits, exclusions, and conditions of any Travel Insurance, or evaluate the adequacy of any Customer’s prospective or existing Travel Insurance coverage.
9. AIR TRAVEL AND GROUND TRANSFERS
ACTIVE DOES NOT BOOK AIRLINE RESERVATIONS OR GROUND TRANSFERS ON BEHALF OF CUSTOMERS. It is each Customer’s responsibility to make appropriate air arrangements, as well as transportation to and from the destination where the travel booking originates and returns. Active shall not be responsible for any air travel or ground transfers.
10. HEALTH/SECURITY/TRAVEL DOCUMENTATION REQUIREMENTS
It is the responsibility of each Customer to determine whether any immunizations or vaccinations and/or required documentation of same are required by any governmental entities prior to departure, upon landing or return for destinations on Customer’s travel itinerary. Active shall not be responsible or liable for any loss incurred in the event of your failure to have any required immunizations, vaccinations and/or required documentation of same for your journey.
11. CERTAIN ADDITIONAL RESTRICTIONS FOR CLUB MEMBERS
The Products and Services and any special offers or savings associated with such Products and Services offered through this Site are exclusively for the use and benefit of our Customers and are not available to the general public. Membership in Active’s Club is at the sole discretion of Active, and is limited to client(s) and prospects of Active, employees of Active and its client(s), and may be extended to include, at the discretion of Active, their respective family and/or friends (or such family and/or friends may be allowed, as authorized users, to utilize the Product and Services acquired by a Customer). Employees of Active, its affiliates or subsidiaries who are Customers will, at all times, remain responsible for ensuring that any of their friends and family members who are authorized users of Products and Services comply with these Terms and/or any additional terms and conditions applicable to such Products and Services.
Club members are subject to additional restrictions and requirements as follows: (i) to keep any savings realized by booking with the Club confidential as discussing savings and/or benefits acquired through the Club with any third parties, including, without limitation, travel agents, other guests/travelers or Providers, in each instance will damage our relationships with our Providers and will result in immediate membership termination; (ii) to not (or attempt to) resell/auction/transfer any Products and Services, including, without limitation on VRBO, Airbnb, SkyAuction, or EBAY; (iii) to only use Product and Services for personal, leisure use – no business travel is allowed; (iv) all reservation requests are subject to general availability at the time of receipt and certain other restrictions may apply, including blackouts (travel offers are subject to change and/or termination by Active at any time without notice): (v) all Product and Services are made available by Active strictly in its sole discretion, quantities are limited and provided on a strictly first come/ first serve basis, and Active may change, withdraw or terminate any offering(s) at any time; (vi) no travel purchased from Active may replace any pending reservation(s) or existing booking(s) any Club members may have with the same travel provider (even if cancelled by the Club member), i.e. you cannot cancel and rebook through Active to acquire savings; (vii) all reservation requests must be made directly and exclusively with Active’s Reservation Center M-F 8:30 am to 5:30 pm excluding all major holidays at 1-800-852-8864 or email@example.com (please do not contact any Provider(s) directly).
13. SERVICES AND CONTENT
We will use our reasonable commercial efforts to keep our Site available on a 24-hour/7-day-a- week basis, subject to necessary scheduled downtime for maintenance, unscheduled maintenance, and system outages. We cannot promise that access to the Site will be uninterrupted or available at all times. We assume no liability or responsibility for any delay, interruption, or downtime. Our Reservation Center is open M-F 8:30 am to 5:30 pm excluding all major holidays and may be contacted at 1-800-852-8864 or firstname.lastname@example.org
Through our Site, we provide an online platform through which you can browse different types of then available Products and Services and make and/or request to make a Booking, including making payment for such Bookings on line in advance with a credit card.
When rendering our services, the information that we disclose about Products and Services is based on the information provided to us directly or indirectly by Providers (or service providers engaged or licensed by us or Providers to provide information about Providers), including all rates, availability, description, pictures, booking conditions, accommodation policies and other information which is displayed on the Site. Although we will use commercially reasonable skill and care in performing our services we will not verify if, and cannot guarantee that, all information is accurate, complete, correct or up to date, nor can we be held responsible for any errors (including manifest and typographical errors), interruptions (whether due to any (temporary and/or partial) breakdown, repair, upgrade or maintenance of the Site or otherwise), inaccurate, misleading or untrue information or non-delivery of information. Additionally, changes in market conditions or circumstances may occur on short notice which may make information displayed on the Site inaccurate or outdated. We assume no liability or responsibility for any errors or omissions regarding information provided on the site about Products and Services or any Provider. You are responsible for evaluating the accuracy, completeness, and usefulness of any opinion, advice, or other content available through the Site.
In case of problems, our Reservation Center customer service will use its commercially reasonable efforts to assist you and serve as a point of contact with the Provider. Please note that Active’s inventory with Providers is finite, and that when a search result indicates that a particular Provider is not available through our Site, that means the room type is not available for reservation through us.
The Site does not constitute and should not be regarded as a recommendation or endorsement of (the quality, service level or rating of) any Providers or Products and Services listed on the Site. We hereby expressly disclaim any representation, warranty or undertaking in relation to the quality, status or adequacy of any Accommodation listed on the Site.
To the extent permitted by applicable law, we reserve the right to, and our discretion, refuse or cancel bookings in exceptional cases and will notify you of the refusal or cancellation by email to the address you provided when you made your booking. Typical reasons for rejecting or cancelling a booking include, but are not limited to: Provider request(s), actual or suspected violation of Club rules, e.g. reselling of any accommodations booked through the Site on an individual, breach of the Terms, force majeure events, trade or economic sanctions, embargoes, legal restrictions, closures (by reason of pandemic, e.g. Covid 19 or otherwise) (suspicions of) fraud or theft, suspected criminal activity, suspicious bookings, submission by you of misleading or erroneous information, payment instrument problems, inappropriate behavior, threats, insults, violence, refusal to supply information, practical obstacles, communication problems, obvious errors (see below), history, blacklisting by governments or international organizations, etc. If your booking is rejected or cancelled by Active and a payment has already been made, you will receive a refund of the total booking value, (except in the case of breach of the Terms wherein refund of the total booking value or any part thereof is not justifiable).
In rare cases, we may also have to cancel or reject a booking or make adjustments due to “obvious errors”, independent of the origin of such errors. For clarity, an obvious error is a mistake on the Site (e.g. in terms of price, conditions, points) which a reasonable person would not consider to be normal. If your booking is affected by an obvious error, we will notify you by email at the address you provided when you made the booking and will adjust the booking, and will, if relevant, refund some or all of the amount charged.
A star or other denoted ratings, or any reference on the Site to a rating on the Site are provided for your information only and are based on information we have received from Providers or services providing information about Providers to our Site. We do not independently verify star ratings. Please be aware that star ratings can vary greatly on the basis of location, available alternatives, local market conditions, practices or other circumstances.
A Word About Bookings
Your reservation is not Booked until and unless you receive a written confirmation issued by the Site or our Reservation Center. You should not take any action based on information on the Site until you have received a written confirmation of your Booking. A Booking request does not constitute a Booking until you receive a written confirmation. We endeavor to send written confirmations within 24 hours of receipt of your Booking request sent on the Site or via email to our Reservation Center; provided however, if you send a Booking request on a Saturday or Sunday, we send confirmations on the following Monday. If you have not received a confirmation of your Booking request via e-mail, first look into your "spam" or "junk" folder to verify that it has not been misdirected, and if still not found, please contact our Reservation Center. The contact information for the Reservation Center is provided below in Section 22 of these Terms.
We make reasonable attempts to exclude viruses from the Site, but cannot ensure that the Site will be at all times free from viruses or other destructive software. You are urged to take appropriate safeguards before downloading information from the Site. We assume no responsibility for any damages to computer equipment or other property that may result from use of the Site or downloading anything from the Site.
14. HOTEL ACCOMMODATIONS AND TAXES – TWO MODELS
Hotel accommodations marketed on our Site are offered pursuant to two different models. Under the first model, you will pay Active the prevailing room rate available to Active, including room taxes. Under the second model, you will pay Active the prevailing room rate, excluding room taxes. When room taxes are excluded, you will be required to pay all such applicable room taxes directly to the hotel at checkout.
15. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
Active makes no representation(s) or warranty(ies) of any kind or nature, including, without limiting the generality of the foregoing, regarding this Site, any Provider(s) or any Products and Services, all of which are provided on an "AS IS" basis. ACTIVE EXPRESSLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND AND NATURE, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MERCHANTABILITY, FITNESS FOR A PARTICULAR, SUITABILITY OF ANY PROVIDER(S), PRODUCTS AND SERVICES, OR TRAVEL DESTINATIONS, THE USE OF THIS SITE, INCLUDING THAT THIS SITE OR ITS CONTENT WILL BE FREE FROM ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT COMMUNICATIONS TO OR FROM THIS SITE WILL BE SECURE AND NOT INTERCEPTED.
The fact that Active is including or offering any Products and Services on the Site or through its Reservation Center is not an endorsement or a recommendation of any Provider(s) or Products and Services.
16. LIMITATIONS OF LIABILITY, DISCLAIMERS AND RELEASE
When booking Products and Services on this Site or through Active’s Reservation Center, Active is acting solely as a booking agent for each Provider (each of which is a disclosed principal), and Active is not the source or provider of the Products and Services. Each Provider is an independent entity with its own management, and is not subject to the control of Active Customer is advised that Providers whose names appear in travel documentation are those actually responsible for providing the travel services purchased, and consents to the use of those Providers, and understands and agrees that Customer is subject to each Provider’s terms and conditions which may be found on their respective Web sites or other travel documentation issued by Providers, and which govern each Provider’s Products and Services (including any booking made on your behalf by Active). All bookings are accepted by Active (either on this Site or through its Reservation Center) solely as agent for the relevant Providers on your travel confirmation or other documentation. All Products and Services provided by the identified Providers are subject to the respective Provider’s terms and conditions contained in any tickets, exchange orders or vouchers issued by them and/or their suppliers, including the terms and conditions on their respective Web sites.
EACH CUSTOMER (INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY GUEST(S) OR OTHER TRAVELER(S) ACCOMPANYING ANY CUSTOMERS) AGREES THAT ACTIVE IS NOT RESPONSIBLE OR LIABLE IN ANY WAY WHATSOEVER FOR ANY CLAIMS, LIABILITY, ACTIONS, CAUSES OF ACTION, AND/OR DAMAGES OF WHATSOEVER KIND OR NATURE (COLLECTIVELY “DAMAGES”), WHETHER FOR PERSONAL INJURY, PROPERTY LOSS, DEATH OR OTHER DAMAGES) ARISING OUT OF OR RELATED TO ANY ACT(S), OMISSION(S), NEGLIGENCE, REPRESENTATION (OR MISREPRESENTATION), BREACH, OR WARRANTY OF OR BY ANY PROVIDER(S) OR OTHER THIRD PARTY, E.G. ANY HOTEL(S), RESORT(S), CRUISE LINE(S), AIRLINE(S), RENTAL CAR COMPANY(IES), ETCETERA, INCLUDING WITHOUT LIMITATION, BY REASON OF ANY OVERBOOKING, DELAYS, CANCELATIONS, MISSTATEMENTS, STRIKE, FORCE MAJEURE EVENT (E.G. HURRICANE, FLOOD, PANDEMIC, ETC.) OR ERRORS IN THE PROVIDERS’ BROCHURES OR WEBSITE AND HEREBY EXPLICITLY RELEASE, DISCHARGES AND AGREES TO HOLD HARMLESS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACTIVE AND ITS SHAREHOLDERS, EMPLOYEES, AGENTS AND ASSIGNS, ONE AND ALL, FROM ALL SUCH DAMAGES, INCLUDING ALL “COSTS”.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT WILL ACTIVE BE LIABLE TO ANY CUSTOMER(S) OR ANY OTHER PARTY(IES) (INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY GUEST(S) OR OTHER TRAVELER(S) ACCOMPANYING ANY CUSTOMER(S)), FOR ANY DIRECT, PUNITIVE, SPECIAL CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (I.E. WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH: (I) ANY CONFIRMATION(S) AND/OR BOOKINGS OF PRODUCTS AND SERVICES ISSUED AND/OR MADE THROUGH THIS SITE OR ACTIVE’S RESERVATIONS CENTER; (II) ANY PRODUCTS AND SERVICES PROVIDED BY ANY PROVIDER(S) AND/OR ANY ACT(S), ERROR(S), OMISSION(S), NEGLIGENCE, MALFEASEANCE OR OTHER ACTION(S) OR ACTIVITIES OF ANY PROVIDER(S), OR OF ANY PROVIDERS’ EMPLOYEES OR REPRESENTATIVES, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY MISREPRESENTATION, BREACH, INJURY, LOSS, ACCIDENT, DELAY, OVERBOOKING, CANCELLATION, FAILURE OR OTHER DELAY IN PROVIDING PRODUCTS AND SERVICES, OR INADEQUATE DELIVERY OF ANY PRODUCTS AND SERVICES; (III) ANY USE OR INABILITY TO USE ANY PRODUCTS AND SERVICES; (IV) ANY USE OF THIS SITE; AND (V) ANY OTHER MATTERS OUTSIDE OF ACTIVE’S CONTROL, REGARDLESS IN EACH INSTANCE OF WHETHER ACTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO OR ARISING IN CONNECTION WITH ANY BOOKING MAY BE BROUGHT BY YOU MORE THAN SIX MONTHS AFTER THE EARLIER OF THE DATE OF SALE THE PRODUCTS AND SERVICES, COMPLETION OF TRAVEL, AND THE DATE THAT SUCH ACTION HAS ACCRUED.
If, despite the foregoing limitation of liability, Active is found liable by a court of competent jurisdiction for any loss or damage which arises out of or is in any way connected with any of the occurrences described in the limitation above, then Active's liability will in no event exceed, in total, the sum of the cash amount actually paid by a Customer to Active as the purchase price for the Products and Services purchased from Active.
You agree to defend and indemnify Active and its officers, directors, employees and agents from and against any claim, cause of action or demand, including without limitation reasonable legal and accounting fees, in excess of the liability described above, in any action filed or commenced by any third party against Active as a result of (i) your breach of these Terms, or (ii) your violation of any law or the rights of a third party.
18. DISPUTES; ARBITRATION
All Customers irrevocably agree that binding arbitration in New York, New York before one (1) arbitrator shall be the exclusive method (rather than a civil trial, with or without a jury) to resolve any dispute, claim or controversy arising between Active and any Customer, including, without limiting the generality of the foregoing, under these Terms, and/or any Booking of Products and Services made on this Site or through Active’s Reservation Center, or any breach, termination, enforcement, interpretation or validity thereof. In addition to all other matters, the arbitrator shall have exclusive authority to determine any and all issues and matters relating to the scope of the arbitration, the arbitrability of any claim or dispute, the validity of the agreement to arbitrate, and the arbitrator’s jurisdiction. The arbitration and the selection of the arbitrator shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, including the Recommended Arbitration Discovery Protocols for Domestic Commercial Cases as set forth in Rules 16.1 and 16.2, as amended. The arbitrator shall have authority to hold hearings at any location or in any jurisdiction in aid of obtaining information and testimony from third parties. Judgment on the award or any interim award may be entered in any court having jurisdiction. In any arbitration hereunder, the arbitrator shall award to the prevailing party, if any, the reasonable attorneys’ fees and costs reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines that a party prevails on some, but not all, of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. The arbitrator selected shall be a former judge or an attorney with experience as a partner of a major law firm and have at least ten (10) years’ experience with business matters, business relationships and related financial matters. This clause shall not preclude parties from seeking provisional remedies from any court of competent jurisdiction in jurisdiction as may be necessary to preserve the status quo and in aid of arbitration. This arbitration provision shall be governed and interpreted solely in accordance with the Federal Arbitration Act, 9 U.S.C. §§1 et seq.
19. INTELLECTUAL PROPERTY RIGHTS
This Site (including the programming for the Site) and its Content is the sole and exclusive property of Active or its licensors. Active and its licensors retain all right, title and interest (including all copyright, trademark, patent, trade secrets, and all other intellectual property rights) in the Site and its Content. The Site is protected by copyright, trademark, patent, trade secrets, unfair competition, and other laws of worldwide, through the application of local laws or international treaties. Any unauthorized use, reproduction or modification of this Site may violate such laws.
Your Comments and Submissions
Any communications or materials you transmit to Active, through the Site, by electronic mail or otherwise, including any data, question, comments, rating of a property or attraction, suggestion, idea, or the like ("Communications or Materials") will be treated as non-confidential and non-proprietary. By voluntarily submitting to us, or by posting on the Site any Communications or Materials, you grant Active, and all users of the Site, a worldwide, non-exclusive, royalty free, perpetual, irrevocable, and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from distribute, and display such Communications or Materials in any form, media or technology. We assume no responsibility for any Communications or Materials posted or submitted, or for the return or such Communications or Materials. We want your feedback and appreciate your ideas and suggestions, but we are unable to answer every comment individually. Active grants you a limited, personal, nontransferable, non-sublicensable, revocable license to access and use the Site 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 Site; 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 Site only for your personal, non-commercial use, and not to provide services to a third party.
No Copy, Distribution, or Sale
You may download, display, or print one (1) copy of any portion of the Content. If you do so, you may not modify the Content in any way.
Except as provided above, you may not:
- Copy, reproduce, upload, post, display, republish, distribute, transmit, any part of the Content in any form whatsoever;
- Use a frame or border environment around the Site, or other framing technique to enclose any portion or aspect of the Site, or mirror or replicate any portion of the Site;
- Modify, translate into any language or computer language, or create derivative works from, any Content or any part of this Site;
- Reverse engineer any part of this Site; or
- Sell, offer for sale, transfer, or license any portion of the Site in any form to any third parties.
Unless otherwise provided within these Terms, or unless specific applicable law requires Active to allow you to do so, you may not do any of the following without the prior written consent of Active:
- Use any robot, spider, other automatic device, or manual process to monitor Content;
- Use the Site other than to make legitimate reservation requests;
- Use the Site to make any false, fraudulent or speculative reservation, or any reservation in anticipation of demand;
- Use or access the Site in any way that, in our reasonable judgment, adversely affects the performance or function of the Site, or any other computer systems or networks used by Active, other Site users or Customers;
- Upload or transmit to the Site or use any device, software or routine that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, interfere or attempt to interfere with, intercept, the normal operation of our Site, or appropriate the Site or any system, or take any action that imposes an unreasonable load on our computer equipment, or that infringes upon the rights of a third party;
- Use any device, software, or routine that interferes, or attempts to interfere, with the normal operation of our site, or take any action that impose an unreasonable load on our equipment; or
- Disguise the origin of the information transmitted through the Site.
Access to certain areas of the Site is only available to registered Customers. If you believe your password has been stolen or is otherwise being used without your authorization, please immediately notify Active and change your password by logging in to the Site and clicking “change password” under the “My Account” link located on the main menu.
Active, in its sole discretion, may, at any time and without advance notice or liability, terminate or restrict your access to all or any component of our Site, even if access continues to be allowed to others. Upon such termination or suspension, you must immediately discontinue use of the Site, and destroy any copy you have made of any portion of the Site. Accessing the Site after such termination, suspension, or discontinuation shall constitute an act of trespass.
20. COPYRIGHT POLICY
You may not use the Site or any Products and Services to post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary materials belonging to others without obtaining the prior written consent of the owner of such proprietary materials. It is Active’s policy to terminate privileges of any Customer or other user of the Site who infringes the copyright of others upon receipt of prompt notification to Active 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 Site in a way that constitutes copyright infringement, please review and utilize our procedures for protecting your rights as set forth below.
In accordance with the Digital Millennium Copyright Act, 17 U.S.C. 512, Active has adopted the following policy concerning copyright infringement. Active respects the legitimate rights of copyright owners and their agents and representatives. Customers and others who use any part of the Site are required by these Terms to respect the legal protections provided by applicable copyright law.
Procedure for Reporting Copyright Infringements. If you believe that your work has been copied on this Site in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide us with the following information:
- A description of the copyrighted work or other intellectual property that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Site (including the specific URL of each item in dispute, which should help us to quickly locate the Content);
- Your address, telephone number, and email address;
- A 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
- A statement by you made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner's behalf.
FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC URLS WHERE CONTENT MAY BE FOUND, WILL RESULT IN A DELAY OF THE PROCESSING OF THE DMCA NOTIFICATION AND MAY RESULT IN YOUR HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS.
Notice and Takedown
If Active receives proper notification of claimed copyright infringement, it will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. Active will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below. Active may, at its discretion, deny access to this Site by, or disable and/or terminate the accounts of, Customers or other users who may be infringers.
Notice of claims of copyright or other intellectual property infringement can be delivered as follows, by email, fax or standard mail:
Active Media Services, Inc.
One Blue Hill Plaza
Pearl River, NY 10965
Attn: Dayna Frank, General Counsel
Fax: (845) 735-2342
Email: email@example.com, with a required copy to firstname.lastname@example.org Upon receipt of proper notification of claimed infringement, Active will follow the procedures outlined herein and in the DMCA.
If Content you posted on the Site was removed for copyright or intellectual property infringement and you would like to dispute that removal, the process for counter-notifications is governed by Section 512(g) of the Digital Millennium Copyright Act:
- To file a counter-notification with us, you must provide a written communication that sets forth the items specified below.
- Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of Customers who are infringers. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney.
Elements of Counter-Notification
To expedite our ability to process your counter-notification, please use the following format (including section numbers):
- Identify the specific URLs of material that Active has removed or to which Active has disabled access.
- Provide your full name, address, telephone number, email address and the Customer name of your Active account.
- Provide a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or New York County, New York; if your address is outside of the U.S.A.), and that you will accept service of process from the person who provided notification to Active in accordance with the process outlined above or an agent of such person.
- Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
- Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following address:
Active Media Services, Inc.
One Blue Hill Plaza
Pearl River, NY 10965
Attn: Dayna Frank, General Counsel
Fax: (845) 735-2342
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes any of your Identifying Information set forth in the counter-notification. By submitting a counter-notification, you consent to having such Identifying Information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Site. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).
Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of Customers who are infringers. So, if you are not sure whether Content you posted on the Site is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States. If you do wish to file a counter-notice, you should follow the process set forth above under the heading “Elements of Counter-Notification.”
DISCLAIMER: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.
- “Active is registered with the State of Florida as a seller of travel under Registration No. ST40180.”
- Your acceptance of these Terms and your use of the Site do 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. 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, such Term will be enforced to the fullest extent permitted by applicable law and the other Terms will remain valid and enforceable. The headings in these Terms are for your convenience and reference; they do not limit or affect these Terms. These Terms, together with those items made a part of these terms by reference, make up the entire agreement between us relating to your use of our site, and replaces any prior understandings or agreements (whether oral or written) regarding your use of our site.
- The laws of the New York, without regard to its conflict of law rules, will govern these Terms and any Bookings made by Customers on this Site or through Active’s Reservation Center.
- If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and agreement shall continue in effect.
- These Terms (and any other terms and conditions referenced herein) constitute the entire agreement between the Customer and Active with respect to travel bookings made on this Site or Active’s Reservation Center, and supersede all prior or contemporaneous communications and proposals as well as Terms displayed on this Site prior to the date first set forth above, whether electronic, oral, or written, between Customer and Active.
- Active reserves the right, in its sole discretion, to update or modify these Terms, impose new conditions, or make any other additions, deletions, modifications or changes to any part of the Site at any time without prior notice. Such changes, modifications, additions or deletions will be effective immediately upon posting on the Site. Your use of the Site following any such changes constitutes your agreement to follow and be bound by the revised Terms. For this reason, we encourage you to review these Terms, before you use this Site, to see if these Terms changed.
- “Force Majeure” means, in relation to Active, any circumstances beyond the reasonable control of Active, (including, but without limitation, acts of God, explosion, flood, tempest, forceful wind, fire or accident, war or threat of war declared or undeclared, acts of terrorism, sabotage, insurrection, riots, strikes, civil disturbance, requisition, sickness, pandemic/epidemic, including without limitation Covid 19 and its variants, quarantine, government intervention, weather conditions, defects in machinery and vehicles, delay, wildlife, or other untoward occurrences). Active shall not be deemed to be in breach of these Terms or otherwise be liable to you, by reason of delay in performance, or by non-performance, of any of its obligations hereunder to the extent that any such delay or non-performance is due to any Force Majeure.
- You may preserve these Terms in written form by printing them for your records, and you waive any other requirement that these Terms be evidenced by a written document.
- To the extent that we may need to contact you, you agree that we may do so via any electronic means, included but not limited to communication posted on the Site, email, or instant messaging.
22. CONTACT INFORMATION
If you have any questions or concerns about these Terms or if you need further assistance with respect to access to or use of the Site or any Booking or Products and Services offered by Active, you may contact our Reservation Center M-F 8:30 am to 5:30 pm excluding all major holidays by calling us at 1-800-852-8864 or emailing at email@example.com. We will attempt to respond to your questions or concerns promptly after we receive them.
Mailing address: c/o Active Media Services, Inc.
One Blue Hill Plaza
Pearl River, New York 10965-8705