END USER WEBSITE USE AGREEMENT
1. General Legal Terms.
In order to exercise the rights granted to you herein you must first agree to be bound by the terms and conditions of this Agreement, without counter offer, addition, deletion or variance, all of which are rejected by Vacation. Indicate your acceptance by clicking on "Accept" in this dialog box. If you view or use this site, or access any service from this site, or submit an account registration form or otherwise bid on any good or service from this site, then your viewing, use or that accessibility, registration or bidding is also your acceptances of the terms and conditions of this Agreement. Any of these actions will constitute your agreement to be bound by the terms and conditions of this Agreement (“Acceptance”) and will be enforceable in the same way as if you had executed this Agreement and returned your executed copy to Vacation. If you exit this dialog without clicking "Accept", or you click "Reject", and you do not use or make this site, do not access any service, do not register or make any bids, then you reject this Agreement.
1.1. We may amend this Agreement at any time by posting the amended terms on this site. Your Acceptance of the amendment is made in the same manner described above as your Acceptance of this Agreement. The amendment is effective upon your Acceptance.
1.2. This website is © 2006, 2007, 2008, 2009, 2010, 2011 and 2012, Vacation Auctions, Inc. Our fictitious names and trademarks include Florida Vacation Auctions, floridavacationauction.com and bidwinenjoy.com. W. Scott Robinson Florida License, AU1992 is our Auctioneer. Our Florida Auction Business License is AB2472. Vacation Auctions, Inc. is registered with the State of Florida as a Seller of Travel. Registration No. ST36408. In addition to our names and marks identified above in this Section 1.2, our site may contain, trademarks, trade names, service marks, logos, symbols or other proprietary designations of Vacation and unrelated third-parties.
1.3. The use on this site of any name, trade name, trademark, service mark, logo, symbol or other proprietary designation or marking of any third-party, and the availability of goods or services from any third-party through this site, is not an endorsement or sponsorship of this site by the third-party or of the third party or its site of its goods or services by us, or the participation by the third-party in our offering of goods, services or information through this site or our participation in the third parties’ offering of goods, services or information.
1.4. Nothing in this Agreement or on our website should be interpreted as an admission by us that our business is subject to registration or licensing as a seller of travel in any state, or as an auction business in any state. Our intention is to auction travel related goods and services that were acquired by us as payment to us for our advertising services. We own these items, they are fully paid for by us, we are not obligated to auction these items, and whether they get auctioned is not decided by us at the time we acquire the items. As such, we believe that these auctions are exempt from auction statutes. Nonetheless, at this time we have chosen voluntarily to comply with auction statutes without any prejudice to our position on our rights and obligations.
1.5. The patent,, copyright, trademark, trade secrets and other intellectual property and proprietary rights ("Rights") related to the content that makes up this site, the services offered on this site, and the data and information collected on this site (collectively, “Content”), which includes, but is not limited to, all information, data of all types and description collected or input from any source, software, photographs, text, video, graphics, button icons, logos, music, sounds, user interfaces, and methods, are owned or licensed by Vacation and third parties, including Vacation’s advertising clients, whose goods and services are offered for sale by them through active hyperlinks from this site.
1.6. Upon your Acceptance of this Agreement, and then for so long as this Agreement and or this license is not terminated as provided herein, Vacation grants to you a revocable license to: (i) use our website to view Content that we specifically display for viewing; (ii) register with us to bid on goods and services that we sell on the website, and to bid on those items; (iii) utilize the active hyperlinks that we include on our website to like to our advertisers and sponsors. The licensed activities are limited to legitimate activities for your personal use and benefit, and not to any speculative, false, malicious or fraudulent activities.
1.7. Other than the rights granted in Section 1.6, you have no other rights or licenses with respect to use of our website, any Content, or any other material, goods or services provided by Vacation and, without limiting the generality of the foregoing, you agree not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, unlock, decrypt or otherwise attempt to derive source code or view the code of any Content. You also agree to not remove, obscure, or alter any Content, or any Rights notices.
1.8. Upon the termination, or during any suspension, of the of this Agreement or the license granted in Section 1.6, you must immediately cease all of the licensed activities.
1.9. Without limiting the generality of any other sub-section of this Section 1, any copying, modification, reproduction, performance, display, redistribution, retransmission, publication or incorporation of any Content into any other web site or other work of any downloaded material, or linking to, mirroring or framing our website, is prohibited. You agree not to use any "robot," "spider," or other automatic device, or a program, algorithm or methodology having similar processes or functionality, or any manual process having similar function or result, to monitor, copy get any data or other Content from our web site, or to interfere with the working of our site or to alter, remove or add to any Content or gather any email addresses. or to otherwise take any malicious act against our website or Content.
2. Bidding and Buying.
2.1. Our services are available only to individuals who can form legally binding contracts under applicable law, who have registered with us pursuant to this Section 2, and who are not otherwise in breach of any term of this Agreement. If you are a minor either in the state of Florida, or in your state of citizenship, residency or location, then you do not qualify to use our services. We may refuse to provide our services to you, or to accept bids from you, if you do not qualify for services from us, or are otherwise in breach of any provision of this Agreement.
2.2. To place bids with us you must register as a user, and provide us with all requested information, such as your name, address, telephone number, email address, and credit card information to be used for any winning bids. You agree promptly to update your registration information to keep it complete and accurate. WE PROSECUTE those that register or make any bids in a false name or with an invalid debit or credit card, and you agree that our systems may interrogate your computer to obtain information stored on it about you that can be used to verify your identity and other information, and to prosecute you if you commit any fraud.
2.3. You must choose your own password and identifiers to access your account with us. You are responsible for, and bear the risk of, the security and unauthorized use of your account with us, and you agree to hold us harmless against all liability related to any unauthorized use of your account, so please keep your password and id secure. You agree that we may rely on all bids submitted, and information and instructions provided, by anyone logging into your account with your password and id.
2.4. When you link to a Vacation advertiser using a “Buy Direct” link or other active hyperlink, you are dealing directly with the advertiser and not with Vacation. All interactions and transactions between you and the advertiser are independent from your dealings and agreement with us. You, on your behalf and on behalf of your successors, assigns, estate, heirs, executors, administrators, and insurers (each an “Indemnitor”), agree to defend (with counsel chosen by Vacation) and hold Vacation, its owners, officers, directors, agents, and all others with potential liability derivative of it (each a “Vacation Indemnitee”), harmless against all claims of every type asserted against any Vacation Indemnitee by any Indemnitor related to an advertiser’s performance or failure to perform in its dealings with you, regardless of whether litigation is commenced, and regardless of the reason for advertisers actions or inactions, or related to your use of the advertiser’s goods, services or facilities, whether you acquired them directly from advertiser or from Vacation..
2.5. If you enter a bid on an auctioned good or service on our site, and you have the highest bid at the end of the auction, at or above the minimum bid price, and your bid is accepted by Vacation, you then automatically are obligated to complete the transaction and pay for the bid on item immediately at the end of the auction. Once made, bids may not be cancelled, rescinded, terminated, or amended by you for any reason. All bids are made in U.S. dollars only to be paid with Visa, Mastercard, American Express or Discover cards that are pre-registered by you for payment of amounts that are due to Vacation. Your Acceptance of this Agreement constitutes your direction to Vacation to charge the amount of your successful bids, and all other amounts identified as being due in connection with the successful bid, to the card identified by you to Vacation during registration. Your credit card must be in your name unless the charges are pre-approved by the cardholder in a witting that is provided to us. This constitutes your payment instructions and is deemed to be your (or the cardholder's) signature on file for all charges. Other than charging your pre-approved credit card, no other forms of payment accepted. All winning bids will automatically be charged at the close of the auction to the credit card you place on file with us.
2.6. If you are the successful bidder on any good or service item, we will email to you a receipt, that we also refer to sometimes as a voucher. The voucher is only a receipt and has no cash value. We assign a unique identifier to each winning bid for each auction conducted on our site. The id number will be printed on your voucher. You must present the id number, your name, personal identification (such as a drivers license or passport) and the voucher to make a reservation or claim your purchased item. All reservations and claims for the goods and services must be made directly with the supplier at the numbers and locations identified to you by Vacation. The supplier’s limitations on availability, cancellation or changing of reservations, quality of the service or good, and length of time within which the good or service must be claimed after purchase from us are disclosed to you at the time of bidding. Vacation may not waive the supplier’s limitations and restrictions. Once purchased from us, your purchase is non-refundable, and non cancelable. Your purchase includes all charges that have been identified in our description of the item, but no others. The supplier may not charge you any additional amounts for the item purchased from Vacation, however additional goods or services purchased by you directly from the supplier are subject to additional charges and the supplier can require a credit card be provided to assure payment of additional items. Vacation, not the supplier, will charge you for all sales, use, room and other applicable taxes on the item as purchased from Vacation.
2.7. We own the items being auctioned by us. We acquired the goods and services as partial payment to us for advertising services that we provided to our suppliers. We reserve the right to set minimum bids and to withdraw any item from auction at any time, and to postpone, delay, interrupt, or cancel any auction for any reason, at any time prior to acceptance of a high bid. Bids must be raised by the posted bidding increments. Use of software to automatically submit bids, or to be notified of bids of others, is used at your own risk.
4. No Warranty; Limitation of Liability.
4.2. In lieu of all other remedies, your sole remedy against Vacation for its breach of this agreement, or otherwise in contract, tort or by statute, is a refund of the bid amount paid by you to Vacation for a good or service as to which you were the high bidder and that Vacation fails to deliver to you as agreed. In the event that a third party provider of the good or service fails to provide the good or service as agreed, then at your election, the third party will provide you with a comparable or better good or service at no additional cost, or the third party or Vacation will provide you with a refund. If a good or service purchased by you is claimed by a third party before you claim the item, or there is any other dispute over whether you are entitled to claim the item, then Vacation will resolve the dispute in its sole discretion. If the confidential identification number for the item was obtained from you, either because you lost it, it was stolen or otherwise, and the item is claimed with the I.D., then you are liable for the loss and not entitled to a duplicate item or a refund. If we determine that the I.D. was obtained other than from you, then you will be provided the item or a refund within our discretion.
4.3. Other than as provided for in Section 4.2, Vacation shall not be liable to you, and you will have no remedy against Vacation for any loss, damage or expense of any kind, including but not limited to, consequential, special, incidental or punitive damages or loss of profits, damages for lost profits or for damages based upon strict or absolute liability in tort, damages in contract or by statute, damages for lost data, spamming, viruses, interrupted transmissions, or unauthorized access to your account with Vacation or your data stored by Vacation, caused directly or indirectly by Vacation’s performance or failure to perform hereunder, regardless of whether Vacation has been informed of the possibility of such damages. Some jurisdictions may not allow the exclusion or limitation of incidental or consequential damages, so the above exclusions shall only apply to the extent permissible under applicable law.
5. Term. You need not access or use our website or services, but if you do then this Agreement applies to your access and use and it may not be terminated by you. We may suspend your access to this site without notice, for any or no reason, within our sole discretion, including if you breach this agreement.
6. Terms and Conditions Florida Statutes Section 529.927(11) provides in part that “A vacation certificate does not include prearranged travel, tourist-related services, or tour-guide services when a seller of travel remits full payment for the cost of such services to the provider or supplier within 10 business days of the purchaser's initial payment to the seller of travel.” We receive prearranged travel from suppliers as partial payment for advertising services that we provide to the suppliers. The prearranged travel is fully paid for at the time it is provided to us, prior to our sale of the item to you and prior to your payment to us for the prearranged travel. As such, we do not sell “vacation certificates.” In the event that we were ever to offer or sell any vacation certificates those offers and sales would be done in accordance with the provisions of Florida Statutes Section 559.926 et seq. applicable to vacation certificates.
7.1. Notices required to be given herein, and otherwise between the parties, may be given to Vacation at its customer support email address identified in its website and to you at the email address provide by you when registering with us, or may be given by certified mail return receipt request, or by personally delivery by a nationally recognized delivery service such as Fed-X. Notice is deemed given upon delivery.
7.2. This Agreement constitutes the entire Agreement and understanding between the parties as to the subject matter hereof, and supersedes and replaces all prior or contemporaneous agreements, written or oral, as to the subject matter. Information on Vacation’s website is promotional in nature is not an agreement by Vacation. This Agreement may be amended only by Vacation through the Acceptance procedure discussed elsewhere herein.
7.3. Neither this Agreement nor any provision hereof may be released, discharged, waived, abandoned, or modified in any manner, except by an instrument in writing executed by both parties. Any waiver of a default or condition hereof by either party shall not be deemed a continuing waiver of such default or condition. Any delay or omission by either party to exercise any right or remedy under this Agreement shall not be construed to be a waiver of any such right or remedy or any right hereunder
7.4. Vacation and its advertisers, other suppliers of prearranged travel, and other third parties to whom there are active hyperlinks on our website, are not partners, joint venturers , and there is no other type of agency between them, and none may hold itself out as such, or as having any authority to bind or create obligations or liabilities for the other.
7.5. Headings are inserted only for the purpose of convenient reference and it is recognized that they may not adequately or accurately describe the contents of the provisions which they head. Such headings shall not be deemed to govern, limit, modify or in any other manner affect the scope, meaning or intent of the provisions of this Agreement or any part or portion thereof, nor shall they otherwise be given any legal effect.
7.6. Where the context of this Agreement requires, singular terms shall be considered plural, and plural terms shall be considered singular, and masculine, feminine and neuter pronouns shall be equivalent in meaning
7.7. You may not assign this Agreement or any of your rights or obligations hereunder, in whole or in part, without our written consent. Any purported assignment or delegation without our written consent shall be void. Subject to the foregoing, this Agreement is binding on and benefits the parties and their respective successors and assigns, heirs, estates, executors and other personal administrators.
7.8. In the event that Vacation is unable to perform any of its obligations hereunder due to any cause beyond its control, such as wars, acts of God, weather, strikes, or failures of third-party suppliers to fulfill their agreements with Vacation (each a "Force Majeure"), then Vacation’s performance hereunder shall be excused until such time as the applicable Force Majeure has ended. In the event that Vacation must cancel an accepted high bid for an auctioned item due to a Force Majeure, then the amount paid by you on the bid shall be refunded and no other amounts will be due to you.
7.9. This Agreement shall be deemed to have been made in Fort Meyers, Florida, and all licenses hereunder granted there, for all purposes and shall be governed exclusively by and construed in accordance with the laws of the State of Florida, without regards to conflict of laws, and the parties expressly opt out of all applicable international treaties and conventions that may impact the making, performance or enforcement of this Agreement. Notwithstanding the foregoing, the federal laws of the United States, all foreign laws and all international treaties and conventions that provide Vacation with protections and/or rights in connection with Vacation's intellectual property and trade secrets shall apply. All actions relating to the making or performance of this Agreement shall be brought in the courts, state or federal, sitting in Lee County, Florida, and the parties hereby consent to the jurisdiction and venue of such courts. Notwithstanding the foregoing, Vacation may bring suit in any court or before any other body if it deems it necessary to enforce or protect its intellectual property or confidential information, or to enforce its rights or Reseller's obligations under this Agreement. This Agreement shall be interpreted in English only and all proceedings of any type related to this Agreement shall be conducted in English only. All amounts under this Agreement are in United States Dollars.
7.10. If any part of this Agreement is found by a court of competent jurisdiction to be unlawful, invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provisions, and the remainder of this Agreement will remain in full force.