TERMS OF SERVICE
NOTICE REGARDING DISPUTE RESOLUTION: THESE TERMS OF SERVICE CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS YOU AND WE MAY HAVE AGAINST EACH OTHER ARE RESOLVED (SEE SECTION 22 BELOW), INCLUDING AN AGREEMENT AND OBLIGATION TO ARBITRATE DISPUTES, WHICH WILL, SUBJECT TO LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT TO CLAIMS YOU HAVE AGAINST US TO BINDING ARBITRATION, UNLESS YOU OPT OUT IN ACCORDANCE WITH SECTION 22(F). UNLESS YOU OPT-OUT OF ARBITRATION: (A) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND (B) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
1. ACCEPTANCE OF TERMS
Pacific Hospitality Group, its parents, subsidiaries, related companies and other controlled affiliates (collectively, “PHG,” “we,” “us,” and “our”) provide our service to you, including information about our hotel and resort properties (“Hotel(s)”) subject to the following Terms of Service (“Terms”). The Terms cover all information, data, and services available at www.pacifichospitality.com, www.meritagecollection.com, and any other websites and mobile applications operated by us that link to these Terms (collectively, the “Website”). Unless explicitly stated otherwise, any new features that augment or enhance the current Website shall be subject to these Terms. We reserve the right to provide additional terms that may govern your use of the Website (“Additional Terms”). Any Additional Terms that we may provide are hereby incorporated by reference into these Terms. To the extent any Additional Terms conflict with these Terms, the Additional Terms will control.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEBSITE. BY ACCESSING AND/OR USING THE WEBSITE (OTHER THAN TO READ THESE TERMS FOR THE FIRST TIME) YOU ARE AGREEING TO COMPLY WITH THESE TERMS, WHICH MAY CHANGE FROM TIME TO TIME AND WILL BE DEEMED EFFECTIVE AS SET FORTH IN SECTION 24 BELOW. IF YOU USE THE WEBSITE AFTER CHANGES TO THESE TERMS BECOME EFFECTIVE SUCH USE WILL SIGNIFY YOUR AGREEMENT TO BE BOUND BY THE CHANGES. YOU SHOULD CHECK THIS PAGE FREQUENTLY AND REVIEW THESE TERMS REGULARLY SO YOU ARE AWARE OF THE MOST CURRENT RIGHTS AND OBLIGATIONS THAT APPLY TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS OR USE THE WEBSITE.
The Website is only made available to users 18 years of age or older. If you are not 18 years old, please discontinue using the Website immediately. If you do not agree with all of the terms and conditions contained in these Terms, please discontinue using the Website immediately. By using or attempting to use the Website, you certify that you are at least 18 years of age and meet any other eligibility and residency requirements of the Website.
3.INFORMATION YOU PROVIDE
We may ask you for certain information in order to provide you with services you request, such as reservations or Hotel information. By providing information on our Website you agree to provide accurate and complete information as prompted (“User Data”) and maintain and promptly update your User Data to keep it accurate and complete. If you provide any information that is inaccurate or incomplete, or we have reasonable grounds to suspect that such information is inaccurate or incomplete, we may deny you access to areas of the Website or our services, at our sole discretion.
When you provide User Data, you may receive commercial communications from us related to content found on the Website. You may opt out of receiving these communications at any time by sending an email to firstname.lastname@example.org.
5.ACCOUNT PASSWORD AND SECURITY
The Website may contain features that require registration (“Restricted Areas”). You are not required to register to use the Website but may not be able to access some content without registration. At the time of registration for online account access, you will select a Username and Password to be used in conjunction with your account. You are responsible for maintaining the confidentiality of your Password and are fully responsible for all uses of your Password, whether by you or others. You agree to: (a) keep your Password confidential and not share them with anyone else; (b) immediately notify PHG of any unauthorized use of your Password or account or any other breach of security; and (c) use only your Password to access the Website’s Restricted Areas. PHG cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
You acknowledge and agree that PHG is authorized to act on instructions received through use of your Password, and that PHG may, but is not obligated to, deny access or block any transaction made through use of your Password without prior notice if we believe your Password is being used by someone other than you, or for any other reason.
You acknowledge, consent and agree that PHG may access, preserve and disclose your account information and content if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary: (i) to comply with legal process; (ii) to enforce the Terms; (iii) to respond to claims that any content violates the rights of third parties; (iv) to respond to your requests for customer service; or (v) to protect the rights, property, or personal safety of PHG, its users and the public.
6.WEBSITE ACCESS AND USE
By using the Website, you acknowledge and agree that the Website is provided for your information and for your personal, non-commercial use only. When using the Website, you agree to comply with all applicable federal, state, and local laws including, without limitation, copyright law. Except as expressly permitted in these Terms, you may not use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit the Website or any of its content, including any text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, or interactive features (collectively, the “Website Content”), for any purpose whatsoever without obtaining prior written consent from us or, in the case of third-party content, its respective owner. Without limiting the foregoing, you may not copy images from the Website and use them in promotions for property rentals or meetings. You may download or print one copy of Website Content for your personal, non-commercial use only, such as to view, print, or email the information, but you warrant that you will not, under any other conditions, reproduce, duplicate, copy, sell, trade, resell, modify, distribute, decompile, disassemble, or reverse engineer any portion of the Website. You also acknowledge that you do not acquire any ownership rights by downloading or printing Website Content.
Furthermore, except as expressly permitted in these Terms, you may not:
- remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice on the Website or Website Content;
- collect or harvest any personally identifiable information from the Website including, without limitation, user names, passwords, or email addresses;
- solicit other users to join or become members of any commercial online service or other organization without our prior written approval;
- circumvent, disable or otherwise interfere with security-related features of the Website including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of the Website or Website Content;
- use an automatic device (such as a robot or spider) or manual process to copy or “scrape” the Website or Website Content for any purpose without our express written permission. Notwithstanding the foregoing, we grant public search engine operators permission to use automatic devices (such as robots or spiders) to copy Website Content from the Website for the sole purpose of creating (and only to the extent necessary to create) a searchable index of Website Content that is available to the public. We reserve the right to revoke this permission (generally or specifically) at any time;
- transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses, spyware, or other potentially harmful programs or other material or information;
- forge any TCP/IP packet header or part of the header information in any email or newsgroup posting;
- attempt to or interfere with the working of the Website or impair, overburden, or disable the same;
- decompile, reverse engineer, or disassemble any portion of any the Website;
- use network-monitoring software to determine architecture of or extract usage data from the Website;
- encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity;
- affect us adversely or reflect negatively on us, the Website, our goodwill, name or reputation or cause duress, distress or discomfort to us or anyone else, or discourage any person, firm or enterprise from using all or any portion, features or functions of the Website, or from advertising, linking or becoming a supplier to us in connection with the Website;
- violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or
- engage in any conduct that restricts or inhibits any other user from using or enjoying the Website.
Furthermore, you agree to fully cooperate with us to investigate any suspected or actual activity that is in breach of these Terms.
7.MODIFICATION TO SERVICE
PHG reserves the right at any time to modify, discontinue or remove, temporarily or permanently, the Website and/or the Website Content (or any part thereof), including the Restricted Areas, with or without notice. You agree that PHG shall not be liable to you or any third party for any modification, suspension, removal or discontinuance of the Website.
You agree that PHG may, in its sole and absolute discretion and without notice or liability to you or any third party, immediately terminate your access to the Website and/or the Restricted Areas. Grounds for such termination include, but are not limited to: (a) failing to comply with the letter or the spirit of the Terms, Additional Terms, or other agreements or guidelines; (b) requests by law enforcement or government agencies; (c) a request by you (self-initiated account deletions); (d) discontinuance or material modification of the Website (or any part thereof); (e) unexpected technical or security issues or problems; and (f) extended periods of inactivity. Termination of your access and/or account(s) may include: (i) removal of access to all offerings within the Website’s Restricted Areas; (ii) at PHG’s sole discretion, the deletion of all of your Website account information and other content associated with your Website account (or any part thereof); and (iii) barring further use of the Website’s Restricted Areas.
Any suspension or termination shall not affect your obligations to us under these Terms. The provisions of these Terms which by their nature should survive the suspension or termination of your access to or use of the Website, your account, or these Terms shall survive including, but not limited to the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, arbitration and dispute resolution, no class action, no trial by jury, and all of the miscellaneous provisions set forth below.
We may now or in the future permit users to post, upload, transmit through, or otherwise make available on the Website (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”). Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content. We do not guarantee any confidentiality with respect to User Content even if it is not published on the Website. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.
You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.
You represent, warrant, and covenant that you will not submit any User Content that:
- violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity;
- affects us adversely or reflect negatively on us, the Website, our goodwill, name or reputation or cause duress, distress or discomfort to us or anyone else, or discourages any person, firm or enterprise from using all or any portion, features or functions of the Website, or from advertising, linking or becoming a supplier to us in connection with the Website;
- impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise objectionable;
- encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;
- is an advertisement for goods or services or a solicitation of funds;
- includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references;
- contains a formula, instruction, or advice that could cause harm or injury; or
- results in the transmission of junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming” and “phishing.”
Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying the Website will not be permitted.
By submitting User Content to us, simultaneously with such submission you automatically grant, or warrant that the owner has expressly granted, to us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable, and transferable right and license to use, reproduce, distribute, create derivative works based upon (including, without limitation, translations), publicly display, publicly perform, transmit, and publish the User Content (in whole or in part) as we, in our sole discretion, deem appropriate including, without limitation (a) in connection with our business; and (b) in connection with the businesses of our strategic partners as well as the owners of Hotels, restaurants, and spa destinations (“Venues”) and their respective parents, subsidiaries, affiliates and other related companies that we manage but do not own, the owners and operators of Venues, and the owners and operators of certain residential properties associated with or located in proximity to various Venues (as well as the respective parents, subsidiaries, affiliates, related companies, and designees of any of the foregoing) (collectively, “Hotel Partners”). We may exercise this grant in any format, media or technology now known or later developed for the full term of any copyright or other intellectual property right that may exist in such User Content. Furthermore, you also grant other users permission to access your User Content and to use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, transmit, and publish your User Content for personal, non-commercial use as permitted by the functionality of the Website and these Terms.
By submitting User Content, you also grant us the right, but not the obligation to use your biographical information including, without limitation, your name and geographical location in connection with broadcast, print, online, or other use or publication of your User Content. You waive any and all claims you may now or later have in any jurisdiction to so-called “moral rights” or rights of “droit moral” with respect to the User Content.
We reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising and promotional purposes. You acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution partners and third-party service providers (including their downstream users).
10.DEALINGS WITH ADVERTISERS AND OTHER USERS
Your correspondence or business dealings with, or participation in promotions of, advertisers and other third parties found on or through the Website, including payment for and delivery of related goods and services, and any other Terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You agree that PHG 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 or third parties on the Website.
The Website may provide links to third-party websites, advertisements or resources. Because PHG has no control over such sites, advertisements, and resources, you acknowledge and agree that PHG 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 PHG 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.
All features, content, specifications, products and prices of products and services described or depicted on the Website are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. We make all reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services on the Website at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from the Website. By placing an order, you represent that the products ordered will be used only in a lawful manner. You may be presented with additional terms related to a specific purchase before you confirm the transaction (such as shipping terms for tangible goods). Those additional terms will also govern that transaction.
We attempt to ensure that information on the Website is complete, accurate and current. Despite our efforts, the information on the Website may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currentness of any information on the Website. For example, products included on the Website may be unavailable, may have different attributes than those listed or may actually carry a different price than that stated on the Website. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
The Website may allow you to make payments using a number of different payment sources, like credit cards and debit cards. When you provide a payment source to us, you confirm that you are permitted to use that payment source. You also authorize us to collect and store it, along with other related transaction information. When you make a payment, you authorize us (and our designated payment processor) to charge the full amount to the payment source you designate for the transaction. If you pay by credit or debit card, we may obtain a pre-approval from the issuer of the card for an amount up to the amount of the purchase. We will bill your card at the time of purchase or shortly thereafter. If you cancel a transaction before completion, that pre-approval may result in your funds not otherwise being immediately available. If you pay by debit card and your payment results in an overdraft or other fee from your bank, you alone are responsible for that fee.
If you believe that an unauthorized or otherwise problematic transaction has taken place under your account, you agree to notify us immediately so that we may take action to attempt to prevent financial loss. To the fullest extent permitted by law, you waive all claims against us related to payments unless you submit the claim to us within 30 days after the charge. You are responsible for and agree to reimburse us for all reversals, charge-backs, claims, fees, fines, penalties and other liability incurred by us (including costs and related expenses) that were caused by or arising out of payments that you authorized or accepted.
Your only remedy for a technical failure or interruption of service is to request that your transaction be completed at a later time.
13.CONTESTS, PROMOTIONS, AND SWEEPSTAKES
From time to time, we, or our service providers, suppliers, advertisers, and other third parties may conduct promotions on or through the Website, including, without limitation, contests and sweepstakes (“Promotions”). Each Promotion may have official rules which will be posted or otherwise made available to you and, for purposes of each Promotion, will be deemed incorporated into and form a part of these Terms.
You agree to indemnify, defend, and hold PHG and its parent, subsidiaries, related companies, controlled affiliates, members, officers, directors, employees, agents, partners, licensors, service providers, strategic partners, Hotel Partners, and distribution partners (collectively, the “Indemnified Entities”), harmless from all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys’ fees and costs) made by any third party arising out of, related to, or that may arise in connection with: (a) your use of the Website; (b) any transaction resulting from use of the Website, your connection to the Website; (c) your actual or alleged breach of any of the representations, warranties, covenants, or provisions of these Terms or any applicable law or regulation; (d) your submission, posting, or transmission of personally identifiable information or other data to the Website; (e) your violation of any rights of another; or (f) your other acts and omissions.
All title, ownership and intellectual property rights in and to the Website and the Website Content (and any derivative works or enhancements of the same) are owned by PHG or its licensors. You acknowledge and agree that the Website contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by PHG, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Website or the Website Content, in whole or in part. Except for the limited use rights granted to you in these Terms, you shall not acquire any right, title or interest in the Website or any Website Content. Any rights not expressly granted in these Terms are expressly reserved.
16.DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE, THE WEBSITE CONTENT AND ALL PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT OF THE LAW, THE INDEMNIFIED ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING ANY: (A) WARRANTIES THAT THE WEBSITE, WEBSITE CONTENT, OR ANY PRODUCTS OR SERVICES PURCHASED ON OR THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS; (B) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE WEBSITE, WEBSITE CONTENT, OR ANY PRODUCTS OR SERVICES PURCHASED ON OR THROUGH THE WEBSITE; (C) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (D) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OUR WEBSITE OR ACCESSED THROUGH THE WEBSITE; (E) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE; (F) WARRANTIES THAT YOUR USE OF THE WEBSITE WILL BE SECURE OR UNINTERRUPTED; AND (G) WARRANTIES THAT ERRORS IN THE WEBSITE WILL BE CORRECTED. PHG ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO PROVIDE ANY CONTENT OR TO STORE ANY PERSONALIZATION SETTINGS OR USER MATERIALS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE WEBSITE IS DOWNLOADED AND USED AT YOUR SOLE DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PHG OR THROUGH OR FROM THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
17.LIMITATION ON LIABILITY
UNDER NO CIRCUMSTANCES SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE ABOVE LISTED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH: (A) THE USE OR THE INABILITY TO USE THE WEBSITE; (B) 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 WEBSITE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (E) ANY OTHER MATTER RELATING TO THE WEBSITE OR THESE TERMS. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE INCLUDING, WITHOUT LIMITATION, THE WEBSITE CONTENT IS TO STOP USING THE WEBSITE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE WEBSITE OR ANY LINKS ON THE WEBSITE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE WEBSITE OR ANY LINKS ON THE WEBSITE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY CONTENT POSTED BY A THIRD-PARTY OR CONDUCT OF A THIRD-PARTY ON THE WEBSITE. FURTHERMORE, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH ANY OF THE WEBSITE OR THESE TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
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 MAY NOT APPLY TO YOU.
Pacific Hospitality Group, The Meritage Collection, Vista Collina, The Meritage Resort and Spa, Estancia La Jolla Hotel and Spa, Paséa Hotel & Spa, and Ko`a Kea Hotel & Resort are trademarks and service marks of PHG (the “PHG Marks”). All intellectual property rights to the PHG Marks are owned by PHG. You shall not acquire any right, title or interest in or to the PHG Marks. Any rights not expressly granted in these Terms are expressly reserved. You agree that you will not display the PHG Marks, or use the PHG Marks in any manner, without the prior written permission of PHG.
19.CHOICE OF LAW
The Terms and the relationship between you and PHG shall be governed by the laws of the State of California without regard to its conflict of law provisions.
20.NO THIRD PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in the Terms, there shall be no third party beneficiaries to these Terms.
We respect the intellectual property rights of others and expect users to do the same. In appropriate circumstances and at our sole discretion, we may terminate and/or disable the access of users suspected to be infringing the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, we may remove or disable access to material on any of our websites or hosted on our systems that may be infringing or the subject of infringing activity.
In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). Our Designated Agent may be reached via email at: email@example.com, and via regular mail at: Pacific Hospitality Group, Attention: Copyright Agent, 2532 Dupont Drive, Irvine, California 92612.
If you are a copyright owner (or authorized to act on behalf of the copyright owner) and have a good faith belief that your work’s copyright has been infringed, please report your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, such as a specific URL address.
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Please note that Section 512(f) of the Digital Millennium Copyright Act may impose liability for damages on any person who knowingly sends meritless notices of infringement. Please do not make false claims.
Any information or correspondence that you provide to us may be shared with third parties, including the person who provided us with the allegedly infringing material. Upon receipt of a bona fide infringement notification by the Designated Agent, it is our policy to remove or disable access to the infringing material, notify the user that it has removed or disabled access to the material, and, for repeat offenders, to terminate such user’s access to the service. If you believe that your content should not have been removed for alleged copyright infringement, you may send our Designated Agent a written counter-notice with the following information:
- Identification of the copyrighted work that was removed, and the location on this Website where it would have been found prior to its removal;
- A statement, under penalty of perjury, that you have a good faith belief that the content was removed as a result of a mistake or misidentification; and
- Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
If a counter-notice is received by the Designated Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at our discretion.
PLEASE READ THIS FOLLOWING CLAUSE CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Initial Dispute Resolution. We are available by email at firstname.lastname@example.org to address any concerns you may have regarding your use of the Website. Most concerns may be quickly resolved in this manner. We and you (each a “party” and together, the “parties”) shall use best efforts to settle any dispute, claim, question or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Agreement to Binding Arbitration. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 22(a) above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms (including their formation, construction, validity, interpretation, performance and enforceability), the parties’ relationship with each other and/or your use of the Website shall be finally settled by binding arbitration administered by the American Arbitration Association on a confidential basis in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including but not limited to any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of this agreement shall be governed by the Federal Arbitration Act.
THE AAA’S RULES GOVERNING THE ARBITRATION MAY BE ACCESSED AT WWW.ADR.ORG OR BY CALLING THE AAA AT 1.800.778.7879. TO THE EXTENT THE FILING FEE FOR THE ARBITRATION EXCEEDS THE COST OF FILING A LAWSUIT, WE WILL PAY THE ADDITIONAL COST. A REQUEST FOR PAYMENT OF FEES SHOULD BE SUBMITTED TO AAA ALONG WITH YOUR FORM FOR INITIATING THE ARBITRATION, AND WE WILL MAKE ARRANGEMENTS TO PAY ALL NECESSARY FEES DIRECTLY TO THE AAA. IF THE ARBITRATOR FINDS THE ARBITRATION TO BE NON-FRIVOLOUS, WE WILL PAY ALL OF THE ACTUAL FILING AND ARBITRATOR FEES FOR THE ARBITRATION, PROVIDED YOUR CLAIM DOES NOT EXCEED $75,000. THE ARBITRATION RULES ALSO PERMIT YOU TO RECOVER ATTORNEYS’ FEES IN CERTAIN CIRCUMSTANCES.
THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAT IN COURT.
Class Action and Class Arbitration Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in section 22(b) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exceptions – Intellectual Property Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief under law or in equity (including without limitation preliminary or other injunctive relief) in any court of competent jurisdiction for disputes or claims arising out of the alleged infringement of either party’s intellectual property rights.
Exceptions – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in small claims court for disputes or claims within the scope of that court’s jurisdiction.
30 Day Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in sections 22(b), 22(c), 22(d) and 22(e) by sending written notice of your decision to opt-out to the following address: Pacific Hospitality Group, Attention: Legal Department, 2532 Dupont Drive, Irvine, California 92612. The notice must be sent within thirty (30) days after your first use of the Website, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in section 22(b) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in State of California, Orange County (except for small claims court actions which may be brought in the county where you reside, provided that we are subject to jurisdiction there). The parties expressly consent to exclusive jurisdiction in the State of California, Orange County for any litigation other than small claims court actions. The parties also expressly agree that, to the extent that the arbitration provisions set forth in section 22(b) do not apply, these Terms shall be construed in accordance with the laws of the State of California without regard to its conflict of laws rules that would result in the application of the laws of a jurisdiction other than the State of California. The parties also expressly agree that, to the extent that the arbitration provisions set forth in section 22(b) do not apply, the parties expressly waive the right to trial by jury.
All renderings, photos, simulated views, graphic images, drawings and all other information depicted on the Website are illustrative only and may not reflect the final design of the depicted Hotel, or the features, furnishings and amenities of the Hotel. The final design of certain facilities, including certain Hotels, spas and other recreational facilities, may have not been completed. Accordingly, the possibility exists that changes and/or modifications will be made to the development, design and layout.
Access to and rights to use recreational and hotel amenities within the Hotels may be subject to payment or use fees, membership requirements, or other limitations.
We may update these Terms by posting a new version on the Website and on the homepage of any other Website to which these Terms apply. Your continued use of the Website after any such update constitutes your binding acceptance of such changes. If you do not agree to be bound by relevant changes, you should not continue to access the Website. Unless explicitly stated otherwise, any new features that augment or enhance the current Website shall be subject to these Terms.
Entire Agreement. The Terms constitutes the entire agreement between you and PHG with respect to the Website and supersedes any prior agreements, oral or written, between you and PHG.
Waiver and Severability of Terms. The failure of PHG to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Website or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Section Titles. The section titles in the Terms are for convenience only and have no legal or contractual effect.
You agree that you will report any violations of the Terms to us by email at email@example.com or by mail at Pacific Hospitality Group, Attention: Legal Department, 2532 Dupont Drive, Irvine, California 92612.