Effective on February 26, 2014
The Oyster.com Web site (the “Site”) is an online information service provided by Smarter Travel Media, LLC (referred to herein as “STM” or “Oyster”), subject to your compliance with the terms and conditions set forth below. Please read this document carefully before accessing or using the Site. By accessing or using the Site, you agree to be bound by the terms and conditions set forth below. If you do not wish to be bound by these terms and conditions, you may not access or use the Site. STM may modify this agreement at any time, and such modifications shall be effective immediately upon posting of the modified agreement on the Site. You agree to review the agreement periodically to be aware of such modifications and your continued access or use of the Site shall be deemed your conclusive acceptance of the modified agreement.
1. Intellectual Property Ownership and Licenses
Copyright, Licenses and Idea Submissions. The entire contents of the Site are protected by international copyright and trademark laws. The owners of the copyrights and trademarks are Oyster, its affiliates or other third party licensors. You may not modify, copy, reproduce, republish, upload, post, transmit, or distribute, in any manner, the material on the Site, including text, graphics, code and/or software. You may print and download portions of material from the different areas of the Site solely for your own non-commercial use provided that you agree not to change or delete any copyright or proprietary notices from the materials. You agree to grant to Oyster a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products and services) you submit to any public areas of the Site (such as bulletin boards, forums and newsgroups) or by email to Oyster by all means and in any media now known or hereafter developed. You also grant to Oyster the right to use your name in connection with the submitted materials and other information as well as in connection with all advertising, marketing and promotional material related thereto. You agree that you shall have no recourse against Oyster for any alleged or actual infringement or misappropriation of any proprietary right in your communications to STM. Trademarks. Publications, products, content or services referenced herein or on the Site are the exclusive trademarks or service marks of STM. Other product and company names mentioned in the Site may be the trademarks of their respective owners.
2. Use of the Site
STM is a travel search and information provider. We do not sell travel products or services. We help you search for travel products and services and link you to third-party sites that may offer the products and services you seek. At the time we publish this information, we believe it to be valid. However, we have no control over the suppliers, and we therefore do not warrant or guarantee that their offers will not change or become unavailable. Nor are we responsible for their products, services or site content. Please see their sites for their most up-to-date offer information and all applicable terms and conditions.
You understand that, except for information, products or services clearly identified as being supplied by STM, STM does not operate, control or endorse any information, products or services on the Internet in any way. Except for STM-identified information, products or services, all information, products and services offered through the Site or on the Internet generally are offered by third parties that are not affiliated with STM. You also understand that STM cannot and does not guarantee or warrant that files available for downloading through the Site will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data.
You assume total responsibility and risk for your use of the Site and the Internet. STM provides the Site and related information “as is,” and shall not be liable for any cost or damage arising either directly or indirectly from use of the service, any merchandise information or service provided through the service or on the Internet generally. It is solely your responsibility to evaluate the accuracy, completeness and usefulness of all opinions, advice, services, merchandise and other information provided through the service or on the Internet generally. STM does not warrant that the service will be uninterrupted or error-free or that defects in the service will be corrected. You understand further that the Internet contains unedited materials, some of which may be offensive to you. Your access to such materials is at your risk. STM has no control over and accepts no responsibility whatsoever for such materials.
The Site may contain hyperlinks to Web sites operated by parties other than STM. Such hyperlinks are provided for your reference only. STM makes no representations whatsoever about any other Web site which you may access through this one or which may link to the Site. When you access non-STM Web sites, please understand that they are independent from STM. STM’s inclusion of hyperlinks to such Web sites does not mean that STM controls, endorses or accepts any responsibility for the content or the use of such Web sites, or imply any association with their operators. If you decide to access third-party Web sites, you do so at your own risk.
Limitation of Liability. THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PUBLISHED ON THE SITE AND/OR RELATED NEWSLETTERS OR PUBLICATIONS (THE “PUBLICATIONS”) MAY INCLUDE INACCURACIES OR ERRORS, INCLUDING BUT NOT LIMITED TO TYPOGRAPHICAL ERRORS.
STM DOES NOT GUARANTEE THE ACCURACY OF, AND DISCLAIMS ALL LIABILITY FOR, ANY ERRORS OR OTHER INACCURACIES RELATING TO THE INFORMATION AND DESCRIPTION OF THE HOTELS OR OTHER TRAVEL PRODUCTS DISPLAYED ON THIS WEB SITE (INCLUDING, WITHOUT LIMITATION, THE PRICING, PHOTOGRAPHS, LIST OF HOTEL AMENITIES, GENERAL PRODUCT DESCRIPTIONS, ETC.)
CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION DISPLAYED ON THE SITE. STM AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THE SITE AT ANY TIME.
STM AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES CONTAINED ON OR OBTAINED THROUGH THIS WEB SITE AND/OR THE PUBLICATIONS FOR ANY PURPOSE, OR THE RESULTS THAT MAY BE OBTAINED FROM USING THE SITE AND/OR THE PUBLICATIONS.
THE INCLUSION OR OFFERING OF ANY PRODUCTS OR SERVICES ON THIS WEB SITE DOES NOT CONSTITUTE ANY ENDORSEMENT OR RECOMMENDATION OF SUCH PRODUCTS OR SERVICES BY STM. ALL SUCH PUBLICATIONS, INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
STM DISCLAIMS ALL WARRANTIES AND CONDITIONS THAT THIS WEB SITE, ITS SERVERS OR ANY EMAIL SENT FROM THEM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
IN NO EVENT SHALL STM (OR ITS OFFICERS, DIRECTORS, AFFILIATES, SUPPLIERS) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO, DISPLAY OR USE OF THE SITE (INCLUDING, BUT NOT LIMITED TO, YOUR RELIANCE UPON OPINIONS APPEARING ON THE SITE) AND/OR THE PUBLICATIONS OR WITH THE DELAY OF OR INABILITY TO USE THE SITE AND/OR THE PUBLICATIONS, OR FOR ANY COMPUTER VIRUSES, INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH THE SITE AND/OR THROUGH THE PUBLICATIONS OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF STM OR ANY OF ITS AFFILIATES OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
THESE TERMS AND CONDITIONS AND FOREGOING LIABILITY DISCLAIMER, DO NOT AFFECT MANDATORY LEGAL RIGHTS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
The limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose. The limitations of liability provided in these terms inure to the benefit of STM.
3. Indemnification
You agree to defend and indemnify STM and its affiliates and any of their officers, directors, employees and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought by third parties as a result of:
- your breach of this agreement or the documents referenced herein;
- your violation of any law or the rights of a third party; or,
- your use of this Site.
4. Third Party Rights
The provisions of paragraphs 2 (Use of the Site) and 3 (Indemnification) are for the benefit of STM and its officers, directors, employees, agents, licensors, suppliers, and any third party information providers to the service. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.
5. Copyright and Trademark Notices
COPYRIGHT COMPLAINT POLICY
Infringement Notification:
If you believe in good faith that materials hosted by us infringe your copyright, please provide the written information requested below. The procedure outlined below is exclusively for notifying SmarterTravel that your copyrighted material has been infringed.
Please provide the following information in the following format (including Section Numbers):
1. A clear identification of the copyrighted work you claim was infringed.
2. A clear identification of the material you claim is infringing the copyrighted work, and information that will allow us to locate that material on the Website, such as a link to the infringing material.
3. Your contact information so that we can reply to your complaint, preferably including an email address and telephone number.
4. Include the following statement: “I have a good faith belief that the material that is claimed as copyright infringement is not authorized by the copyright owner, its agent, or the law.”
5. Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and I am the copyright owner, or am authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.”
6. The notice must be signed by the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Notices of claims of copyright infringement on this website should be emailed or mailed to:
- Smarter Travel Media LLC., Attn: SmarterTravel.com, 1 Washington Mall #1150 Boston MA 02108
- Email: copyrightagent@smartertravel.com
- Phone Number: 781-247-5573
We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, please note that you may be liable for damages (including costs and attorneys fees) if you make a false claim of copyright infringement.
We will review and address all notices that comply with the requirements above.
REPEAT INFRINGER POLICY
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, SmarterTravel has adopted a policy of terminating, in appropriate circumstances and at SmarterTravel’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. SmarterTravel may also at its sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
6. Termination
This agreement may be terminated by either party without notice at any time for any reason. The provisions of paragraphs 1 (Intellectual Property Ownership and Licenses), 2 (Use of the Site), 3 (Indemnification), 4 (Third Party Rights), 7 (Governing Law, Arbitration and Jurisdiction) and 11 (Miscellaneous) shall survive any termination of this agreement.
7. Governing Law, Arbitration and Jurisdiction
You recognize that, although the Internet can be accessed from anywhere in the world, the Site is located in the Commonwealth of Massachusetts, United States of America, and that when you access the Site, you are doing so in the Commonwealth of Massachusetts, United States of America. These Terms of Use shall be governed by and construed in accordance with the internal substantive laws of the Commonwealth of Massachusetts without giving effect to any principles of conflict of law and the federal laws of the United States of America. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its commercial arbitration rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You further agree that any arbitration action brought by you arising out of or relating to these Terms of Use or the Site shall be filed only in Suffolk County, Boston, Massachusetts, and you hereby consent and submit to the personal jurisdiction and venue in Suffolk County, Boston, Massachusetts.
8. Privacy Policy
By agreeing to these Terms of Use, you also agree to our Privacy Policy. Like these Terms of Use, the Privacy Policy is subject to change from time to time. Your continued use of the Site constitutes your acceptance to any changes to the Privacy Policy.
9. Widgets
Oyster grants third parties (EXCEPT hotel booking engines, hotel referral sites, online travel agents, hotel lead generation sites and all other entities that sell travel-related products or services, such as Expedia, Hotels.com, etc.) a non-exclusive, non-assignable, and non-transferable license to use and display any material that may be downloaded or embedded from the Site, including, but not limited to, “widgets”. You agree not to alter the appearance or functionality of the downloaded material. Your use of Oyster widgets and other downloaded material is otherwise subject to our standard Terms of Use, and you agree to maintain all copyright and other notices contained within. You can use the widget on your site for commercial or non-commercial purposes, as long as you agree not to sublicense, assign, or otherwise transfer this license or the downloaded material. Acceptable commercial use entails: use on a site that has advertising or sponsored links; and use on a site that sells a product or service (EXCEPT as outlined above).
10. Accounts
You must create an Oyster account to gain full access to Oyster’s services. You will be able to view a preview of the Site and then will be prompted to create an account or log in. You may never use another user’s account without permission. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure.
The user can also log in using Facebook Connect. You must have an active Facebook account in order to access the service through Facebook Connect, and you hereby represent and warrant that you have read and agreed to be bound by all applicable Facebook policies and will act in accordance with those policies, in addition to your obligations under this agreement. If you sign into Oyster through Facebook Connect, you will provide your Facebook account credentials to Oyster, and you are consenting to have the information in that account transmitted to your Oyster account, and you agree that you shall use only Facebook accounts owned by you, and not by any other person or entity.
By providing STM your email address, you consent to our using that email address to send you newsletters and other announcements, such as information about new destinations, changes to features, and special offers. If you do not want to receive such email messages, you may unsubscribe directly from the emails. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers. Please note that if you do not want to receive legal notices from us, including without limitation a notification that this agreement has changed, those legal notices will still govern your use of the service. We will post legal notices to the service, and you are responsible for reviewing such legal notices for changes.
11. Miscellaneous.
STM reserves the right to change the terms, conditions and notices under which the Site is offered. STM provides information on, accepts advertising from, and provides links to third-party vendors. Offers from these vendors that may be mentioned on the Site or in the Publications are often subject to change at any time, and may have many additional restrictions and limitations. Users of STM’s content agree to confirm all aspects of third-party offers with the offering party, and to hold STM (and its affiliates) harmless for any circumstances that may arise from interactions with a third party.
You agree that no agency, joint venture, partnership, employment or agency relationship exists between you and STM as a result of this agreement or use of the Site or the Publications.
STM’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of STM’s right to comply with law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by STM with respect to such use. To the extent allowed by applicable law, you agree that you will bring any claim or cause of action arising from or relating to your access or use of the Site within one (1) year from the date on which such claim or action arose or accrued or such claim or cause of action will be irrevocably waived.
If any part of this agreement 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 the remainder of the agreement shall continue in effect.
This agreement (and any other terms and conditions referenced herein) constitutes the entire agreement between the user and STM with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and STM with respect to the Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Fictitious names of companies, products, people, characters, and/or data mentioned on the Site are not intended to represent any real individual, company, product, or event.
Although most travel, including travel to international destinations, is completed without incident, travel to certain destinations may involve greater risk than others. STM urges passengers to investigate and review travel prohibitions, warnings, announcements and advisories issued by the United States Government and destination country governments prior to booking travel to international destinations. Information on conditions in various countries and the level of risk associated with travel to particular international destinations can be found at www.state.gov, www.tsa.gov, www.dot.gov, www.faa.gov, www.cdc.gov, www.treas.gov/ofac and www.customs.gov.
BY LISTING INFORMATION RELEVANT TO TRAVEL TO PARTICULAR INTERNATIONAL DESTINATIONS, STM DOES NOT REPRESENT OR WARRANT THAT TRAVEL TO SUCH POINTS IS ADVISABLE OR WITHOUT RISK, AND IS NOT LIABLE FOR DAMAGES OR LOSSES THAT MAY RESULT FROM TRAVEL TO SUCH DESTINATIONS.
Any rights not expressly granted herein are reserved.
Oyster’s failure to insist upon or enforce strict performance of any provision of this agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this agreement. Oyster may assign its rights and duties under this agreement to any party at any time without notice to you.