Last Updated: October 06, 2023
This Services Agreement (this “Agreement”) is a binding contract between you (“Customer,” “you,” or “your”) and ItinAFairy, LLC (“Provider,” “we,” or “us”). This Agreement governs your access to and use of the Services.
THIS AGREEMENT TAKES EFFECT WHEN YOU BEGIN ACCESSING OR USING THE SERVICES (the “Effective Date”). BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES
1. Definitions.
(a) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Services.
(b) “Documentation” means any end user documentation provided by Provider relating to the Services.
(c) “Provider IP” means the Services, the Documentation, and all intellectual property provided to Customer in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
(d) “Services” means the services provided by Provider under this Agreement that are detailed on Provider’s website available at https://www.Itinafairy.com.
(e) “Suppliers” means suppliers of hospitality services, including, but not limited to, recreational facilities, hotels, tourist attractions, resorts, event venues, cultural attractions, destination restaurants, cruises, airlines, and amusement parks.
(f) “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Services.
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on your payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services during the Term in accordance with the terms and conditions herein. You are responsible for maintaining adequate security and control of any and all user IDs, passwords, hints, personal identification numbers (PINs), or any other codes that you use to access the Services.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable license you to use the Documentation during the Term solely in connection with use of the Services.
(c) Use Restrictions. You shall not use the Services, any software component of the Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall use the Services for personal use only. You shall not use the Services for any commercial purpose. You shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Services, any software component of the Services, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
(d) [Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile data and information related to Customer’s use of the Services to be used by Provider in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. You acknowledge that Provider may compile Aggregated Statistics based on Customer Data input into the Services. You agree that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information].
(e) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Provider IP.
(f) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer is using the Provider IP for fraudulent or illegal activities; or (D) Provider’s provision of the Services to Customer is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 4 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Services Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
3. Customer Responsibilities.
(a) Terms of Use. The Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Provider’s Terms of Use (“TOU”) located at http://itinafairy.com/terms-conditions, as may be amended from time to time, which is incorporated herein by reference. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on http://itinafairy.com/terms-conditions from time to time, including the TOU.
(b) Account Use. You are responsible and liable for all uses of the Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
(c) Customer Data. You hereby grant to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
(d) Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
(e) Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
4. Memberships; Fees and Payment.
(a) Paid Membership. A paid membership (a “Membership”) is required to gain full access to and use of the Services. Memberships will have a monthly term and will renew automatically on a monthly basis, beginning on the date that you registered and created an account for access to the Services and ending on the date that you cancel your Membership and terminate this Agreement in accordance with the terms of this Agreement. You will be charged Membership fees (the “Fees”) on a monthly basis in accordance with the billing cycle set forth on your account upon registration for access to the Services.
(b) Membership Tiers. The Fees to access and use the Services hereunder vary and are dependent on the tier of Membership under which you are registered. Additional details about the tier of Membership under which you are enrolled, including the applicable charges, invoices, and the benefits associated with such tier, will be provided to you on your Membership account.
(c) Suspension for Nonpayment of Fees; Additional Amounts Payable. If you fail to make any payment when due, without limiting Provider’s other rights and remedies, Provider may, without refund, and without prior notice to Customer, suspend, in accordance with Section 2(f), Customer’s access to any portion or all of the Services until such amounts are paid in full. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
(d) Cancellation. You have the right to cancel your Membership at any time. You may cancel your Membership on your Membership account through the Services website. Upon cancellation, you will no longer have access to the Services. You will not be entitled to any refund of the Fees for any remaining days in the month in which you cancel your Membership.
5. Service Levels and Support.
(a) Service Levels. Provider’s website may be subject to downtimes and/or may not be available temporarily due to scheduled or unscheduled maintenance activity initiated by Provider. Provider reserves the right to occasionally suspend or restrict access to the Services to allow for repairs, maintenance or the introduction of new features or services regarding the Provider’s website.
(b) Support. This Agreement does not entitle Customer to any support for the Services.
6. Confidential Information. From time to time during the Term, Provider may disclose or make available to the Customer information that Provider considers sensitive or proprietary information (including, but not limited to, information about Provider’s security procedures), whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the Customer; (c) rightfully obtained by the Customer on a non-confidential basis from a third party; or (d) independently developed by the Customer. The Customer shall not disclose the Provider’s Confidential Information to any person or entity. Notwithstanding the foregoing, Customer may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Customer shall first have given written notice to the Provider and made a reasonable effort to obtain a protective order; or (ii) to establish Customer’s rights under this Agreement, including to make required court filings. Customer’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the Customer and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Privacy Policy. Provider complies with its privacy policy, available at http://itinafairy.com/Privacy-Policy (“Privacy Policy”), in providing the Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.
8. Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Services and (b) you own all right, title, and interest, including all intellectual property rights, in and to the Customer Data. If you or any of your agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
9. Limited Warranty and Warranty Disclaimer.
(a) Provider warrants that it provides Services using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) Customer Warranty. You warrant that both the Customer Data and your use of the Services are in compliance with the TOU.
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE SERVICES ARE PROVIDED “AS IS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10. Indemnification.
(a) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
11. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12. Term and Termination.
(a) Term. The term of this Agreement begins on the Effective Date and continues until terminated. Services that are specified to automatically renew will renew each month for one-month terms unless earlier terminated pursuant to this Agreement’s express provisions.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Provider may terminate this Agreement for any reason without prior written notice. You may terminate this Agreement for any reason upon written notice to Provider.
(ii) Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
(c) Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Provider IP. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) Survival. This Section 12(d), Sections 6, 10, 11, 14, 15, and 17, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
13. Modifications.
(a) You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through notifications or posts on http://itinafairy.com/terms-conditions or through direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. Provider may make such modifications in the sole discretion of Provider without prior notice to you, except where required by law.
(b) Provider may from time to time change prices, including recurring paid membership fees any other fees applicable to your Membership. Provider will inform you of any price changes in advance, including the effective date of such changes, and, if applicable, how to accept those changes or proceed with cancellation. Subject to app
14. Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services or the software or technology included in the Services to, or make the Services or the software or technology included in the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the software or technology included in the Services available outside the US.
15. Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of Maryland without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Maryland.
16. Arbitration. 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 in accordance with its Commercial Arbitration Rules. The arbitration shall take place in the City of Baltimore, in the State of Maryland. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
17. Miscellaneous.
(a) Travel Documents. You agree to review your itinerary and other travel documents for accuracy and to inform us promptly of any issues you encounter.
(b) Acts or Omissions of Suppliers. We are not responsible for the acts or omissions of any Suppliers, including but not limited to such Suppliers’ failure to adhere to their own schedules, provide services or refunds, financial defaults, or failure to honor trip credits. We have no special knowledge regarding the financial condition of the Suppliers and assume no liability with respect to the acts or omissions of such Suppliers.
(c) Risk of Travel and Release. Provider assumes no responsibility for and shall not be liable for the acts or omissions on the part of any other party not under Provider’s control, including but not limited to any acts or omissions of Suppliers covered in Section 17(b), or any acts of God, unsafe conditions, terrorism, health hazards including pandemics, illness, weather hazards, or the suitability for a disabled person of any portion of any trip. For information related to such risks and dangers, and for any relevant medical and health information related to such risks and dangers, we recommend consulting the websites of the applicable government agencies, including the State Department and the Centers for Disease Control. You have made your own investigation of the foregoing risks, understand these risks and assume them knowingly and willingly. YOU HEREBY EXPRESSLY ASSUME ALL OF THESE RISKS AND DANGERS, AND YOU HEREBY EXPRESSLY AGREE TO FOREVER RELEASE, AND HOLD US, AND OUR AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, AND CONTRACTORS HARMLESS AGAINST ANY AND ALL LIABILITY, ACTIONS, CAUSES OF ACTIONS, SUITS, CLAIMS, AND DEMANDS OF ANY KIND WHATSOEVER WHICH YOU NOW HAVE OR WHICH MAY HEREAFTER ARISE OUT OF OR IN CONNECTION WITH THESE RISKS AND DANGERS.
(d) Foreign Entry Rules. You assume full and complete responsibility for checking and verifying any and all passport, visa, vaccination, or other entry requirements of your destination and your connecting points, and all conditions regarding health, safety, security, political stability, and labor or civil unrest at such destination. Many countries require your passport to be valid for six months or more after your date of entry. Some countries will not admit persons convicted of a crime. Some countries require both parents’ consent for minors to travel.
(e) Supplier Prices. We are not responsible for fluctuations or variations in pricing of services provided by Suppliers. If a Supplier increases or decreases the trip price after booking, we are not responsible for such fluctuations or variations.
(f) Insurance. For your protection, we strongly recommend that you purchase trip cancellation and travel accident insurance. Please note that insurance policies may provide that such policies do not cover epidemics and pandemics, especially when travel warnings have been instituted. No representation or description of the insurance made by our staff constitutes a binding assurance or promise as to the adequacy of insurance. You agree to hold us harmless for your election not to purchase travel insurance or for any denial of claim by a travel insurer as it relates to COVID-19 or any other claim under the policy.
(g) Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(h) Notices; Communications. Any notices to us must be sent to our corporate headquarters address available at http://itinafairy.com/contactus and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
(i) Severability. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.
(j) Waiver. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches.
(k) Assignment. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.