2. You understand and agree that, whether or not you require a Visitor Access Password, other System users and members of the public who are searching the System under any search criteria may view Your name and other information relating to the status of Your bananatrips Website including, without limitation, its URL, whether it is open or closed and whether it is public or private.
3. You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not bananatrips, are entirely responsible for all Content that you upload, post or otherwise transmit via the Service.
4. You acknowledge that bananatrips does not pre-screen Content, but that bananatrips and its designees shall have the right (but not the obligation) in their sole discretion to refuse, or to remove, any Content that is available via the Service. Without limiting the foregoing, bananatrips and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
5. bananatrips does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content.
Confidentiality and Use of Your Content
6. The Rights applicable to certain subscribers may include the ability to keep confidential from the public all Content which You may elect to publish on your bananatrips Website (tm), by requiring a password ("Visitor Access Password") to be entered by visitors to Your bananatrips Website (tm) before your Content can be viewed.
7. Your Content that is uploaded to and/or published on your bananatrips Website at a time when you are entitled to, and do, require a Visitor Access Password, and for which You have continued without interruption to require a Visitor Access Password, is herein referred to as "Private Content".
8. Content that is uploaded to and/or published on Your bananatrips Website (other than Content associated with unpublished entries) under either of the following conditions is herein referred to as "Public Content":
The Content was uploaded to and/or published at a time when you were not entitled to require, or if entitled to did not opt to require, a Visitor Access Password; or
1. The Content was uploaded and/or published at a time when you required a Visitor Access Password, but you have since ceased to require a Visitor Access Password.
2. For greater certainty, and without limiting the generality of the foregoing, Content that is at any time Public Content cannot subsequently become Private Content, whether by the imposition of a Visitor Access Password or in any other manner whatsoever.
9. bananatrips does not claim ownership rights to any of Your Content. However, if any of Your Content is Public Content, You hereby grant to bananatrips in further consideration of Your access to the Rights during Your Term of Service, a non-exclusive, royalty-free, fully paid, worldwide license to use, copy, distribute, and display your Public Content and to provide Your Public Content to bananatrips' affiliates and on-line partners to use, copy, distribute, and display on a royalty-free, fully paid basis through their on-line and off-line facilities worldwide, both during Your Term of Service and thereafter.
10. Without limiting the generality of the foregoing, such license includes, but is not limited to:
1. the right to display or reproduce Your Public Content, in whole or in part and in any altered format which bananatrips or its affiliates or on-line partners, may, in their respective sole discretion, determine, in or through the "Best of bananatrips" system;
2. The right to display Your Public Content in or through keyword, user name, geographical and other searches for bananatrips Websites and Public Content generally;
3. the right to display or reproduce Your Public Content, in whole or in part and in any altered format which bananatrips or its affiliates or on-line partners, may, in their respective sole discretion, determine, in or through webpages, newsletters, magazines, produced by or on behalf of any of them;
4. the right to display or reproduce Your Public Content in connection with advertisements and other materials of a promotional nature;
5. the right to charge a fee to third parties for affording them the opportunity to display Your Public Content.
11. You waive any right or claim to any revenue earned or otherwise produced through the display of Your bananatrips Website or Your Public Content, whether in their original or in altered form, in accordance with the foregoing provisions, and further waive any right to prevent Us from so displaying, or allowing others to display, Your bananatrips Website and Your Public Content.
12. You understand and acknowledge that all persons to whom you circulate your Visitor Access Password will have unfettered access to your Content, and that in the event unintended persons acquire your Visitor Access Password, from whatever source, or after repeated attempts are able to enter your Visitor Access Password, such persons as well will have unfettered access to your Content. You understand that your Content is not protected by Internet-protocol secure server technology and is therefore inherently vulnerable to being accessed by unintended persons. You agree to therefore exercise caution not to post Content on your bananatrips Website (tm) which is of so personal or sensitive a nature that, if accessed by unintended persons, would cause you harm, loss or damage.
13. You further understand and agree that in the event you have Public Content, members of the public will have the ability to view such Public Content, whether in its original or an altered format. You agree to therefore exercise caution not to post Content on your bananatrips Website (tm) which is of so personal or sensitive a nature that, if accessed by members of the public, would cause you harm, loss or damage.
14. You further acknowledge and agree that your bananatrips Website (tm) may have been created by you after following a link from one of bananatrips affiliates who refer customers to our web site ("Affiliates") or by use of a promotional code that is particular to one of our Affiliates.
15. You further acknowledge and agree that certain of bananatrips Affiliates ("White-Label Affiliates") have entered into agreements that enable them to offer certain customers the opportunity to create bananatrips Websites (tm) in our System which have a different "look and feel" from that which their bananatrips Websites (tm) would have if created without following such a link onto the System or entering such a promotional code. You further acknowledge and agree that, regardless of whether you have followed such a link or entered such a promotional code, and regardless of whether your bananatrips Website (tm) was created with the "look and feel" of a White-Label Affiliate your bananatrips Website (tm) may be accessed by persons initiating searches from the web sites of our White Label Affiliates, and further, that in certain circumstances your bananatrips Website (tm) may take on a "look and feel" of one of our White-Label Affiliates.
16. You agree to not use the Service to:
1. Upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
2. Access or attempt to access the editor functions on bananatrips Websites (tm) of other users of the Service unless you have been given express written consent by such user to do so;
3. Access or attempt to access other users' bananatrips Websites(tm) which such users have elected to designate as password-protected ("Private bananatrips Websites (tm)") unless you have been given express written consent by such user to do so;
4. Download, attempt to download, the Private bananatrips Website (tm) of another user, unless you have been given express written consent by such user to do so;
5. Upload, post or otherwise transmit any Content on, or otherwise tamper with or change, or attempt to tamper with or change, bananatrips Websites (tm) on which you are not the subscribing user, unless you have been given express written consent by such user to do so;
6. Harm minors in any way;
7. Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
8. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
9. Upload, post or otherwise transmit any Content that you do not have a legal right to transmit or that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
10. Upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
11. Transmit notices that you have updated your bananatrips Website ("Update notices") to, or enter into our system the names and email addresses of, persons who do not qualify as 'Friends'. From such person to qualify as a 'Friend', two conditions must be met: (a) you must have a personal relationship with that person or have received express permission from him or her to send 'Update Notices' to him or her; AND(b) that person must not have asked you or us not to receive further Update Notices from you;
12. Upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
13. Disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
14. Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
15. Intentionally or unintentionally violate any applicable local, provincial, state, national or international law;
16. "stalk" or otherwise harass another;
17. Collect or store personal data about other users;
18. Promote or provide instructional information about illegal activities, promote physical harm or injury against, or hatred toward, any group or individual, or promote any act of cruelty to animals;
19. Use your bananatrips Website (tm) as storage for remote loading or as a door or signpost to another web page, whether inside or beyond bananatrips; or
20. Engage in commercial activities without enrolling in bananatrips approved programs or otherwise without the express written consent of bananatrips. This includes, but is not limited to, the following activities:
1. Offering for sale any products or services;
2. Soliciting for advertisers or sponsors;
3. Conducting raffles or contests that require any type of entry fee;
4. Displaying a sponsorship banner of any kind, with the sole exceptions of banners expressly authorized by bananatrips; and
5. Displaying banners for services that provide cash or cash-equivalent prizes to users in exchange for hyperlinks to their web sites;
6. Build or attempt to build a link or hyperlink from your bananatrips Website (tm) to a web page outside of your bananatrips Website (tm).
Contact with bananatrips
17. You acknowledge and recognize that all contact with bananatrips in the first instance should be made via the online forms available on our web site or via our email address. You agree that bananatrips is not obliged to offer telephone support as part of your agreement.
DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY
18. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
1. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BANANATRIPS (INCLUDING, FOR GREATER CERTAINTY, ITS JOINT VENTURE PARTNER) EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
2. BANANATRIPS (INCLUDING, FOR GREATER CERTAINTY, ITS JOINT VENTURE PARTNER) MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL;
4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BANANATRIPS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
19. YOU EXPRESSLY UNDERSTAND AND AGREE THAT BANANATRIPS (INCLUDING, FOR GREATER CERTAINTY, ITS JOINT VENTURE PARTNERS) SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BANANATRIPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE; WHETHER WITHIN OR OUTSIDE THE CONTROL OF BANANATRIPS AND WHETHER OR NOT ATTRIBUTABLE TO THE NEGLIGENCE OF BANANATRIPS AND ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS.
20. IN PARTICULAR, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE THAT BANANATRIPS SHALL, UNDER NO CIRCUMSTANCES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF BANANATRIPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN PARTICULAR (WITHOUT LIMITING THE GENERALITY OF THE FOREGOING) BANANATRIPS WILL NOT BE LIABLE FOR LOSS OR DAMAGE ARISING FROM THE FOLLOWING:
1. SUSPENSION OR LOSS OF YOUR BASIC RIGHTS OR ADDITIONAL RIGHTS;
2. INTERRUPTION OF YOUR TRIP OR BUSINESS ACTIVITIES;
3. ACCESS DELAYS OR INTERRUPTIONS TO ANY WEB SITES ACCESSED BY YOU OR BY PERSONS ATTEMPTING TO ACCESS YOUR BANANATRIPS WEBSITE(tm);
4. ACCESS NON-DELIVERY, MISDELIVERY, CORRUPTION, DESTRUCTION, OR MODIFICATION OF DATA;
5. ACCESS TO A BANANATRIPS WEBSITE(tm) WHICH YOU HAVE ELECTED TO DESIGNATE AS PRIVATE, IN ANY MANNER BY A PERSON WHO WAS NOT INTENDED TO GAIN ACCESS THERETO.
WHETHER WITHIN OR BEYOND THE REASONABLE CONTROL OF BANANATRIPS AND WHETHER OR NOT ATTRIBUTABLE TO THE NEGLIGENCE OF BANANATRIPS ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS.
21. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THE FOREGOING SECTIONS MAY NOT APPLY TO YOU.
22. IN THE EVENT AND TO THE EXTENT THAT THE AFORESAID LIMITATIONS OR EXCLUSIONS OF LIABILITY MAY NOT APPLY, BANANATRIPS (INCLUDING, FOR GREATER CERTAINTY ITS JOINT VENTURE PARTNERS') MAXIMUM AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF:
1. THE TOTAL AMOUNT PAID BY YOU FOR YOUR SUBSCRIPTION TO THE RELEVANT BANANATRIPS WEBSITE(tm), INCLUDING ANY UPGRADES AND EXTENSIONS THEREOF; AND
23. You agree to indemnify and hold bananatrips and its affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your Content, your use of the Service, your connection to the Service, your violation of this Agreement, or your violation of any rights of another.
Modifications, limitations on usage and termination of Service
24. You acknowledge that bananatrips may establish general practices and limits concerning use of the Service, and that these practices may vary from time to time without notice being given to users of bananatrips Websites(tm). We reserve the right to impose limitations on the numbers of journal text entries posted or the numbers of photos and/or movie clips uploaded to or saved as part of bananatrips Premium Websites in the event that we, in our sole and unfettered discretion, determine that such data are not being posted and uploaded in the course of normal use by travelers in the ordinary course of their travels. In particular, and without limiting the generality of the foregoing, you will be considered to be posting journal text entries, uploading photos or movie clips or transmitting data other than in the ordinary course of travels in any of the following circumstances:
1. In the course of a commercial enterprise; or
2. If doing so would violate any of the terms hereof.
25. bananatrips reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that bananatrips shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
26. You agree that bananatrips in its sole discretion, may terminate your password, bananatrips Website (tm), use of the Service or use of any other bananatrips or bananatrips (tm)service, and remove and discard any Content within the Service, for any reason, including, without limitation, if bananatrips believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. bananatrips may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that bananatrips may immediately deactivate or delete your bananatrips Website (tm) and all related information and files in your bananatrips Website (tm) and account and/or bar any further access to such files or the Service. Further, you agree that bananatrips shall not be liable to you or any third-party for any termination of your access to the Service.
Advertisements, promotions and links
27. bananatrips may run advertisements and promotions through the bananatrips System. The manner, mode and extent of advertising by bananatrips is subject to change. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that bananatrips shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the bananatrips System.
28. The Service may include, or third parties may provide, links to other web sites or resources. Because bananatrips has no control over such sites and resources, you acknowledge and agree that bananatrips is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that bananatrips shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
Changes to this Agreement
29. You acknowledge that bananatrips business is an evolving one and that bananatrips may modify this Agreement as bananatrips in its sole discretion, considers necessary or advisable from time to time. Your continued use of your bananatrips Website(s) (tm) constitutes acceptance of this Agreement and all amendments. If at any time, you do not agree to such changes, you agree that your sole remedy is to request that your bananatrips Website (tm) be discontinued.
30. This agreement and the relationship between you and bananatrips shall be governed by the laws of the Portuguese Republic. You and bananatrips agree to submit to the exclusive jurisdiction of the courts of city of Oporto located in the Portuguese Republic in respect of any matters arising from or relating to this Agreement or a bananatrips Website (tm). The failure of bananatrips to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the balance of terms herein contained shall have full force and effect.
31. The section titles and headings contained in this Agreement are for convenience only and have no legal or contractual effect.
32. You agree that bananatrips may assign this Agreement at any time to any person without obtaining your prior consent. Your subscription for an bananatrips Website (tm) constitutes your acceptance of any assignment of this Agreement by bananatrips and your agreement to deal with all of bananatrips successors and assigns as if they were primary contracting party hereunder.