Terms of Service
Last Modified: June 1, 2022
Welcome, and thank you for your interest in Folio Travel Inc. (“us,” “we,” “Folio,” or the “Company”), our websites at https://www.foliotravel.com, https://dashboard.folio.guide and https://folio.guide and various related services (collectively, the “Services” or the “Site”). The Services and their features are provided to you subject to your compliance with all the terms, conditions, and notices contained or referenced in this agreement (the “Agreement”).
1. User’s Acknowledgment and Acceptance of Terms
You are permitted to use the Services only if you: (1) are at least 18 years old and represent that you are able to form a binding contract in your jurisdiction; (2) comply with our Agreement; (3) will not copy or distribute any part of the Services in any medium without Company’s prior written authorization except as permitted through the Services' functionality and under this Agreement; (4) provide accurate and complete information when creating an account; (5) acknowledge you are solely responsible for the activity that occurs while signed in to or while using the Services; and (6) acknowledge your sole responsibility for your content submissions, including discussion posts, profile information and links, pictures and other such content.
YOUR USE OF THE SERVICES CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, PLEASE EXIT THE SERVICES NOW. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES, OR ANY PRODUCTS, CONTENT, OR OTHER INFORMATION AVAILABLE ON OR THROUGH THE SERVICES, IS TO STOP USING THE SERVICES AND/OR THOSE PARTICULAR PRODUCTS. YOUR AGREEMENT WITH US REGARDING COMPLIANCE WITH THIS AGREEMENT BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THE SERVICES.
In this Agreement, we use the terms “you” and “your” to mean any merchant using our Services to provide products or services to its customers. As used in this Agreement, “User(s)” refers to any individual using the Services. If you are agreeing to this Agreement on behalf of an organization or entity, you represent and warrant that you are authorized to agree to this Agreement on that organization’s or entity’s behalf and bind them to this Agreement (in which case, the references to “you” and “your” in this Agreement, except for in this sentence, refer to that organization or entity).
2. Account Information and Security
When you register, you provide us with some basic information, which may include an e-mail address, user ID, and password (“Account Information”). To use the Services, you agree to provide us with true, accurate, current, and complete information about yourself, and to keep your Account Information current and accurate. You agree to not allow others to access your account. You alone are responsible for anything that happens from your failure to maintain security and confidentiality, such as by sharing your Account Information with others, and we will not be liable for any loss or damage resulting from your failure to comply with these obligations. If someone is using your account, notify us immediately. You agree to immediately notify us of any unauthorized use of either your password or account or any other breach of security. Additionally, you acknowledge that internet transmissions are never completely private or secure and you understand that any message or information you send to the Services may be read or intercepted by others, even if it is encrypted.
3. Public and Private Applications
The Services enable you to create and share applications (“Applications”) that you can make available to your end users (“End Users”). As a default, each Application you create using the Services will be publicly available (a “Public App”). You can limit access by requiring that End Users enter a password to access an Application (a “Private App”).
Receipt of Application by End Users: Folio accepts no responsibility if one of your End Users fails to receive, open, or access the Application. It is your responsibility to ensure that your End Users have all the information they need to prepare for, and enjoy, their stay at one of your properties.
4. Intellectual Property
The entire content and materials contained on the Services, including, but not limited to, audio, video, images, text, user interface, scores, logos, the selection and arrangement of the Services and other intellectual property (the “Content”) are owned by or licensed to Folio to the fullest extent under the copyright laws of the United States and other countries. Images of people or places displayed on the Services are either the property of, or used with permission by, Folio. You may not reproduce, republish, transmit, upload, distribute, copy or publicly display any of the Content without our prior written consent. We neither warrant nor represent that your use of materials displayed on the Services will not infringe rights of third parties not owned by or affiliated with the Company. We may redesign the Services in our sole discretion at any time.
5. Your Content and Prohibited Usage
You may post, link, store, share and otherwise make available certain information, text, images, graphics, videos, or other material (“Your Content”) to/on the Applications that you create using the Service. This including information and/or links generated from the Google API. You are responsible for the Your Content, including its legality, reliability, and appropriateness. Where any third party owns any of the Your Content, you are also responsible for ensuring that you have all rights (including any licenses) needed to allow you to make available Your Content on an Application or while using the Services.
You grant us a license to use and display Your Content. By using the Services to share Your Content, you grant us the right and license to use, publicly display and distribute Your Content on and through the Services and you confirm that you have all third party rights and licenses necessary to post Your Content. You retain any and all of your rights to any of Your Content that you submit, post or display on or through the Service and you are responsible for protecting those rights.
Your Content is fully your responsibility. This means that you accept all liability that might arise out of an End User using and/or relying on Your Content. For the avoidance of doubt, Folio cannot be held responsible for any claim brought by one of your End Users in relation to Your Content contained in the relevant Application. For example, if an End User gets lost as a result of inaccurate driving directions in the relevant Application, Folio accepts no liability. Or, if an End User suffers food poisoning as a result of visiting one of the restaurants recommended through the relevant Application, Folio accepts no liability. These are just 2 examples to illustrate the point, they are not intended to be exhaustive. Once again, you are responsible for ALL of Your Content. It should also be noted that Folio is not acting as a means for you to save or store Your Content. We are not Dropbox or similar services. As such you must ensure that you maintain a copy of Your Content if you wish to use it in the future.
Folio offers an optional set-up service whereby we will use Your Content to create an Application on your behalf, under your direction. This service usually applies where you do not have the time or resource to create the Application yourself. However, you still maintain full responsibility for Your Content. It is expected and understood that you will review all Your Content contained in the relevant Application prior to sharing it with End Users. The sharing of the relevant Application with End Users is deemed to be acceptance by you of Your Content contained in the relevant Application. Folio may charge a fee to set up each Application. Any changes needed to Your Content after the set-up service is complete must be completed by you.
You agree that:
Your Content is yours (you own it) or you have the right to use it and grant us the rights and license as provided in these terms of service; and
the posting of Your Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any third party. Further, you agree that:Your
Content will not cause you or us to breach any law, regulation, rule, code or other legal obligation;
Your Content will not or could not be reasonably considered to be obscene, inappropriate, pornographic, defamatory, disparaging, indecent, seditious, offensive, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy. In some circumstances, Your Content which in one country would not infringe the previous requirements could do so in another country (and we reserve the right to take whatever action we think necessary in such circumstances including removing Your Content or restricting access to the Services);
Your Content will not be misleading or deceptive, be intended or designed to misinform, would be likely to misinform a reasonable person, and that you will not represent as fact something which is false;
Your Content will not be unsolicited, undisclosed or constitute unauthorized advertising or endorsements of any product;
Your Content does not contain software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware or telecommunications equipment; and
Your Content does not and is unlikely to bring us or the Services into disrepute.
You are responsible for maintaining the confidentiality of any login information associated with any account you use to access our Services. Accordingly, you are responsible for all activities that occur under your account/s.
Accessing (or attempting to access) any of our Services by any means other than through the means we provide, is strictly prohibited. You specifically agree not to access (or attempt to access) any of our Services through any automated, unethical or unconventional means.
The Services may be used to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. Except as and only to the extent expressly permitted in this Agreement or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of Folio or any part thereof. Folio performs technical functions necessary to offer the Services, including but not limited to reformatting Your Content to allow its use through the Services and using Your Content to make improvements to the Services and you hereby grant Folio a non-exclusive, perpetual, transferable, sublicensable, fully paid, worldwide license to use, copy, prepare derivative works of or otherwise fully exploit Your Content to provide these services and in accordance with this Agreement. If you post any content on a public portion of the Services (such as comments or a message board), you grant Folio a non-exclusive, irrevocable, perpetual, transferable, sublicensable, fully paid, worldwide license to use, copy, prepare derivative works of (including excerpting, in whole or in part), distribute and publicly display or otherwise fully exploit that content on the Services.
You agree to keep all records necessary to establish that Your Content does not violate any of the requirements of this Section 5 and make such records available upon our reasonable request.
We are under no obligation to regularly monitor the accuracy or reliability of Your Content incorporated into the Services. We reserve the right to modify or remove any of Your Content at any time.
You acknowledge and agree that all Your Content you provide on or through the Services may be publicly available information and you bear the risks involved with such public disclosures.
We can use Your Content to promote Folio. We may choose to feature Your Content (but not your registered trademarks or personal information unless you agree in writing) on our websites or otherwise to promote the Services. You grant to us a royalty-free, worldwide, perpetual license to use Your Content for such purposes.
6. Folio Intellectual Property Rights
(a) Site Content. All content and materials available on the Site, including but not limited to text, graphics, website name, code, images and logos are the intellectual property of the Company, and are protected by applicable copyright and trademark law. Any inappropriate use, including but not limited to the reproduction, distribution, display or transmission of any content on this site is strictly prohibited, unless specifically authorized by the Company.
(b) Your Content. The Service allows Users to submit, post, display, provide, or otherwise make available content such as profile information, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “User Content”).
We claim no ownership rights over User Content created by you. The User Content you create remains yours. However, you understand that certain portions of the Service may allow other Users to view, edit, share, and/or otherwise interact with your User Content. By providing or sharing User Content through the Service, you agree to allow others to view, edit, share, and/or interact with your User Content in accordance with your settings and this Agreement. Company has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to the Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and the Company’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
We do not assume any liability for any content posted by you or any other third-party users of our website. However, any content posted by you using any open communication tools on our website, provided that it doesn’t violate or infringe on any third party copyrights or trademarks, becomes the property of the Company and as such, gives us a perpetual, irrevocable, worldwide, royalty-free, exclusive license to reproduce, modify, adapt, translate, publish, publicly display and/or distribute as we see fit.
7. Feedback
We always appreciate feedback and are always on the lookout for ways to improve. For feedback, comments, questions, or concerns, you can contact us at support@foliotravel.com and we will return your e-mail at the soonest opportunity possible. In the event that you provide comments, suggestions, paid enhancements to the Service as part of a statement of work, or recommendations to Folio with respect to the Services (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Services) (collectively, “Feedback”), you hereby grant to Folio a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Service.
8. Cost of Services
The Services may be free or we may charge a fee for using the Services. If you are using a free version of the Services, we will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services. Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.
Paid Services. Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of this Agreement.
Billing. To the extent that we will bill you for your use of Paid Services, we use a third-party payment processor (the “Folio Account Payment Processor”) to bill you through a payment account linked to your account on the Services (your “Folio Account”). The processing of such payments will be subject to the terms, conditions and privacy policies of the Folio Account Payment Processor in addition to this Agreement. Currently, we use Stripe, Inc. as our Folio Account Payment Processor. You can access Stripe’s terms of service at https://stripe.com/us/checkout/legal and their privacy policy at https://stripe.com/us/privacy. We are not responsible for error by the Folio Account Payment Processor. By choosing to use Paid Services, you agree to pay us, through the Folio Account Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and you authorize us, through the Folio Account Payment Processor, to charge your chosen payment provider (your “Folio Account Payment Method”). You agree to make payment using that selected Folio Account Payment Method. We reserve the right to correct any errors or mistakes that the Folio Account Payment Processor makes even if it has already requested or received payment. For clarity, the foregoing only applies to our billing procedures with respect to your use of the Paid Services as Folio’s customer.
Payment Method. The terms of your payment will be based on your Folio Account Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Folio Account Payment Method. If we, through the Folio Account Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Folio Account upon demand.
Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR FOLIO ACCOUNT PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR FOLIO ACCOUNT PAYMENT METHOD, PLEASE CONTACT US AT SUPPORT@FOLIOTRAVEL.COM.
Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR FOLIO ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR FOLIO ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR FOLIO ACCOUNT PAYMENT PROCESSOR IF YOUR FOLIO ACCOUNT PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR ACCOUNT INFORMATION. CHANGES TO SUCH INFORMATION CAN BE MADE BY CONTACTING US AT SUPPORT@FOLIOTRAVEL.COM. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR FOLIO ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
Change in Amount Authorized. If the amount to be charged to your Folio Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Folio Account Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
Auto-Renewal for Paid Services. Unless you opt out of auto-renewal, which can be done by contacting us at support@foliotravel.com, any Paid Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or terminate your Paid Services at any time, please contact us at support@foliotravel.com. If you terminate a Paid Service, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE PAID SERVICE BY CONTACTING US AT SUPPORT@FOLIOTRAVEL.COM TO TERMINATE YOUR FOLIO ACCOUNT BEFORE THE END OF THE RECURRING TERM. PAID SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, FOLIO WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Folio Account Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us at support@foliotravel.com.
Variable Pricing. Certain Paid Services may include pricing that is based on app utilization (e.g., based on the total number of End Users of your Applications). You acknowledge and agree that you are responsible for all fees associated with such Paid Services, even in cases where the utilization of your Applications exceeds your utilization expectations. In cases of such excess utilization, (i) Folio may in its sole discretion elect to provide you with a non-refundable credit (but Folio is under no obligation to do so), and (ii) Folio will not provide refunds under any circumstances.
9. Referral Program
From time to time Folio may offer rewards or incentives for referring others to the Services. The referring user (“Referrer”) may refer individuals or entities who are neither current customers of Folio nor registered users of the Services (“Referee”). A registered user is a person or entity that already has an existing account with Folio. There is no limit to the number of referrals that Referrer can make, nor the cumulative rewards or incentives that the Referrer may receive through such special offer, unless otherwise indicated. Referrer will receive the stated reward or incentive for each Referee sent by the Referrer that completes the required action described in that specific offer (such as signing up for an account or making a purchase). All Referees must be first-time recipients of the offer, and multiple referrals to the same individual or entity will be disregarded. Folio reserves the right to modify or terminate any special offers at any time and to revoke from Referrer and Referee the special offer at Folio’s discretion for any reason or for no reason whatsoever. If Folio determines that Referrer or Referee is attempting to obtain unfair advantage or otherwise violate the terms or spirit of such special offer, Folio reserves the right to (a) revoke any rewards or incentives issued to either Referrer or Referee and/or (b) charge the Referrer or Referee for any rewards or incentives (1) used by Referrer or Referee prior to such revocation or (2) issued by Folio to any ineligible Referrer or Referee. All special offers are subject to any other terms, conditions and restrictions set forth on the Services or presented in connection with the special offer.
10. Location-Based Services Consent
You hereby expressly consent to our use of location-based services and expressly waive and release Folio from any and all liability, claims, causes of action or damages arising from your use of the Services or in any way relating to the use of the precise location and other location-based services.
11. Guarantee and Warranty; Limitation of Liability
By using our Site, you understand and agree that all Services we provide are “as is” and “as available”. The Company makes no representations or warranties that:
the use of our Services will meet your needs or requirements;
the use of our Services will be uninterrupted, timely, secure or free from errors;
the information obtained by using our Services will be accurate or reliable; and
any defects in the operation or functionality of any Services we provide will be repaired or corrected.
Furthermore, you understand and agree that (i) any content downloaded or otherwise obtained through the use of our Services is done at your own discretion and risk, and that you are solely responsible for any damage to your computer or other devices for any loss of data that may result from the download of such content, and (ii) no information or advice, whether expressed, implied, oral or written, obtained by you from the Company or through any Services we provide shall create any warranty, guarantee, or conditions of any kind, except for those expressly outlined in this User Agreement.
USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, THE COMPANY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
FURTHER, THE COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND THE COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
To the maximum extent permitted by applicable law, in no event shall The Company, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service. Under no circumstances will The Company be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your account or the information contained therein.
To the maximum extent permitted by applicable law, The Company assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the ServiceS; (vii) User Content or the defamatory, offensive, or illegal conduct of any third party; (viii) any act, omission, transaction, or exchange of services by and between Users; (ix) injury or harm resulting from or in connection with advice, counseling, or services given by Providing Users to Client Users. In no event shall The Company, its affiliates, agents, directors, employees, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to The Company hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if The Company has been advised of the possibility of such damage.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE COMPANY AND ITS SUBSIDIARIES, AGENTS, LICENSORS, MANAGERS, AND OTHER AFFILIATED COMPANIES, AND THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS AND DIRECTORS (THE “INDEMNIFIED PARTIES”), FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS OR DEBT, AND EXPENSES INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES (EACH, A “CLAIM”) ARISING FROM: (I) YOUR USE OF AND ACCESS TO THE SERVICES, INCLUDING ANY DATA OR CONTENT TRANSMITTED OR RECEIVED BY YOU; (II) YOUR VIOLATION OF ANY TERM OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES ABOVE; (III) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY RIGHT OF PRIVACY OR INTELLECTUAL PROPERTY RIGHTS; (IV) YOUR VIOLATION OF ANY APPLICABLE LAW, RULE OR REGULATION; (V) USER CONTENT OR ANY CONTENT THAT IS SUBMITTED BY YOU INCLUDING WITHOUT LIMITATION MISLEADING, FALSE, OR INACCURATE INFORMATION; (VI) YOUR WILLFUL MISCONDUCT; OR (VII) ANY OTHER PARTY’S ACCESS AND USE OF THE SERVICE WITH YOUR UNIQUE USERNAME, PASSWORD OR OTHER APPROPRIATE SECURITY CODE.
This User Agreement does not apply to the websites or services of any other person or entity. We may provide, or third parties may provide, links to other worldwide websites or Services. You acknowledge and agree that we are not responsible for the availability of such external sites or Services, and do not endorse (and are not responsible or liable for) any content, advertising, products, or other materials on or available from such websites or Services. You further acknowledge and agree that, under no circumstances, will the Company be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, advertisements, products or other Services available on any other website (regardless of whether we directly or indirectly link to such content, advertisements, products or other Services). You should direct any concerns with respect to any other website to that website’s administrator or webmaster.
The Company cares about the integrity and security of your personal information. The Company uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
13. Dispute Resolution and Arbitration
In the interest of resolving disputes between you and Folio in the most expedient and cost-effective manner, you and Folio agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and is subject to very limited (if any) review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms (including Privacy Policy), whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FOLIO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION.
Arbitrator
Any arbitration between you and Folio will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Folio at support@foliotravel.com.
Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Folio’s address for Notice is:
Folio Travel, Inc.
175 Varick Street
New York, NY 10014
The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Folio may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Folio must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Folio will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Folio in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Fees and Procedure
The parties to the arbitration shall each pay an equal share of the costs and expenses of such arbitration, and each party shall separately pay for its respective counsel fees and expenses; provided, however, that the arbitrator shall award attorneys’ fees and costs to the prevailing party, except as prohibited by law. If you commence arbitration in accordance with this Agreement, Folio will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Folio for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The arbitrator may grant injunctions and other relief. The arbitrator shall administer and conduct any arbitration in accordance with the law of the jurisdiction in which the dispute arose, including civil procedure rules, and the arbitrator shall apply the substantive and procedural law of the jurisdiction in which the dispute arose. To the extent that the AAA Rules conflict with local law, local law shall take preference. The decision of the arbitrator shall be final, conclusive, and binding on the parties to the arbitration. The parties agree that the prevailing party in any arbitration shall be entitled to injunctive relief in any court of competent jurisdiction to enforce the arbitration award.
No Class Actions
YOU AND FOLIO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR MEMBER OF ANY CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING except that users may bring a proceeding as a private attorney general, if and as allowed by law. Further, unless both you and Folio agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Nothing in this Agreement infringes upon any rights a User may have under the Sarbanes-Oxley Act, including any rights prohibiting compulsory arbitration.
Modifications to this Arbitration Provision
If Folio makes any future change to this arbitration provision, other than a change to Folio’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Folio’s address for Notice, in which case your account with Folio will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Right to Opt Out of Arbitration
You may submit a statement notifying Folio that you wish to opt out and not be subject to arbitration under this section. Should you desire to opt out, you must notify Folio of your intention to opt out by submitting a written notice, which may be via email to support@foliotravel.com, stating that you are opting out of this section. In order to be effective, your opt-out notice must be provided within thirty (30) days of your agreeing to these Terms. Should you timely opt out of this section, you may pursue available legal remedies and will not be required to arbitrate claims.
14. Choice of Law
These Terms are governed by and construed in accordance with the laws of the State of Delaware, United States of America, without giving effect to any conflict of law principles, except as may be otherwise provided in supplemental terms applicable to your region. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in the State of Delaware, United States of America.
15. Termination of Service
You may terminate this Agreement at any time by contacting Folio at support@foliotravel.com; please refer to the Privacy Policy, as well as the licenses herein, to understand how we treat information you provide to us after you have stopped using the Services.
Folio may also terminate your privilege to use or access the Services immediately and without notice for any reason whatsoever. Upon such termination, you must immediately cease accessing or using the Services and agree not to access or make use of, or attempt to use, the Services. Furthermore, you acknowledge that Folio reserves the right to take action — technical, legal or otherwise — to block, nullify or deny your ability to access the Services. You understand that Folio may exercise this right in its sole discretion, and this right shall be in addition to and not in substitution for any other rights and remedies available to Folio. All provisions of this Agreement which by their nature should survive termination shall survive the termination of your access to the Services, including, without limitation, provision regarding ownership, warranty disclaimers, indemnity, and limitations of liability.
16. Restrictions on Use
You may not use the Services or contents set forth therein for any illegal purpose or in any manner inconsistent with this Agreement. You agree not to use, transfer, distribute, or dispose of any information contained in the Services in any manner that could compete with the business of Company. You may not copy, reproduce, recompile, disassemble, decompile, reverse engineer, distribute, modify, publish, display, perform, upload to, create derivative works from, frame transmit, or in any way exploit any part of the Service, you may not recirculate, redistribute or publish the analysis and presentation included in the Service without Company’s prior written consent.
Modification of Company’s content is a violation of the copyrights and other proprietary rights of Company or its subsidiaries. Additionally, you may not monetize or offer any part of the Services for sale or distribute it over any other medium including but not limited to a computer network or hyperlink framing on the internet without the prior written consent of Company. The Services and the information contained therein may not be used to construct a database of any kind. The Services and content contained therein may not be stored (in its entirety or in any part) in databases for access by you or any third party or to distribute.
In the absence of a contrary agreement, you may not use any of the trademarks, trade names, service marks, copyrights, or logos of Company or its subsidiaries suppliers or affiliates in any manner which creates the impression that such items belong to or are associated with you or, except as otherwise provided herein, are used with Company’s consent, and you acknowledge that you have no ownership rights in and to any of such items. You will not use the Services or the information contained therein in unsolicited mailings or spam material. You will not use any trademarks, trade names, service marks, copyrights, or logos of Company or its subsidiaries in unsolicited mailings or spam material. You will not spam or send unsolicited mailings to any person or entity using the Services.
17. No Agency
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between you and Folio is intended or created by this Agreement. Users are not Folio’s representative or agent, and may not enter into an agreement on Folio’s behalf.
18. Digital Millennium Copyright Act
We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Services, you may contact our Designated Agent at the following address:
Folio Travel, Inc.
175 Varick Street
New York, NY 10014
Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
A description of the copyright-protected work or other intellectual property right that you claim has been infringed;
A description of the material that you claim is infringing and where it is located on the Service, with sufficient detail so that Folio is capable of finding and verifying its existence;
Your address, telephone number, and, if available, email address;
A statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Folio will promptly terminate without notice the accounts of users that are determined by Folio to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had user content removed from the Services at least twice.
19. Links to and Use of Other Sites and Materials
As part of using the Services, Folio may provide you with links to third party website(s) (“Third Party Sites”) as well as content or items belonging to or originating from third parties (the “Third Party Applications, Software or Content”). Folio has no control over, and assumes no responsibility for, Third Party Sites and Third Party Applications, Software, or Content or the promotions, materials, information, goods or services available on these Third Party Sites or Third Party Applications, Software, or Content. Such Third Party Sites and Third Party Applications, Software, or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Folio, and Folio is not responsible for any Third Party Sites accessed through the Services or any Third Party Applications, Software, or Content posted on, available through or installed from the Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to, or permitting the use or installation of any Third Party Site or any Third Party Applications, Software, or Content does not imply approval or endorsement thereof by Folio. If you decide to leave the Services and access the Third Party Sites or to use or install any Third Party Applications, Software or, Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Services or relating to any Applications you use or install from the site.
20. Privacy
Folio’s current privacy policy is available on the Services and at our website (www.foliotravel.com) (the “Privacy Policy”), which is incorporated herein by this reference. In accordance with the Privacy Policy, we may collect information about the location of your device each time you use the Services, or when you otherwise consent to the collection of this information. Please review the Privacy Policy closely.
21. Electronic Communications
The communications between you and Company use electronic means, whether you use the Services or send us emails, or whether Company posts notices on the service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.
22. Notice
Communications made through the Service’s e-mail and messaging system, will not constitute legal notice to Company or any of its officers, employees, agents or representatives in any situation where notice to Company is required by contract or any law or regulation.
Any such notice must be sent to:
Folio Travel, Inc.
175 Varick Street
New York, NY 10014
Under California Civil Code Section 1789.3, California users of the Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254.
23. Changes and Amendments to Terms
This Agreement is effective as of the “Last Modified” date identified at the top of this page. We expressly reserve the right to change this Agreement from time to time without notice to you. You acknowledge and agree that it is your responsibility to review the Services and this Agreement from time to time and to familiarize yourself with any modifications. Your continued use of the Services after such modifications will constitute acknowledgement of the modified Agreement to abide and be bound by the modified Agreement. However, for any material modifications to this Agreement or in the event that such modifications materially alter your rights or obligations hereunder, such amended Agreement will automatically be effective upon the earlier of (i) your continued use of the Services with actual knowledge of such modifications, or (ii) 30 days from publication of such modified Agreement on the Services. Notwithstanding the foregoing, the resolution of any dispute that arises between you and us will be governed by the Agreement in effect at the time such dispute arose.
24. General Terms
If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be limited or eliminated, to the minimum extent necessary, so that this Agreement shall otherwise remain in full force and effect and enforceable. The remaining portions will remain in full force and effect. Any failure on the part of Company to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement. Except as expressly set forth herein, you and Folio agree there are no third-party beneficiaries intended under these Terms.
The Company may assign or delegate this Agreement and/or Company’s Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent, including, but not limited, to a subsidiary or an acquirer of assets. You may not assign or delegate any rights or obligations under this Agreement or Privacy Policy without Company’s prior written consent, and any unauthorized assignment and delegation by you is void and of no force and effect.
You acknowledge that you have read this Agreement, and understand and agree to be bound by the terms and conditions herein. You further acknowledge that this Agreement together with the Privacy Policy represent the complete and exclusive statement of the agreement between us and that it supersedes and cancels any proposal or prior agreement oral or written, and any other communications between us related to the subject matter contained in this Agreement and Privacy Policy.
25. Contact Information
If you have any questions or comments about this Agreement as outlined above, you can contact us at:
Email us at: support@foliotravel.com