Access Terms and Conditions
BY AGREEING TO A DOCUMENT INCORPORATING THESE ACCESS VG, L.L.C. (“AVG”) TERMS AND CONDITIONS (“THE TERMS”) (AN “ORDERING DOCUMENT”) AVG AND ORGANIZATION LICENSING PRODUCTS AND SERVICES FROM AVG (“ORGANIZATION”) AGREE THAT THESE TERMS SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY AVG PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO ORGANIZATION AS SET FORTH IN SUCH ORDERING DOCUMENT. AS TO ANY PARTICULAR ORDERING DOCUMENT, THE ORDERING DOCUMENT, THE SERVICES DEFINITIONS AND SERVICE-SPECIFIC TERMS AND CONDITIONS, AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDERING DOCUMENT AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE ORDERING DOCUMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THESE TERMS WITH RESPECT TO SUCH AGREEMENT.
Organization and AVG agree as follows:
“AVG” or “Access Perks” means Access VG L.L.C or one of its affiliates, as set forth in the Ordering Document.
“Organization” means the party to whom Access Perks is to provide products or services pursuant to the Ordering Document (whether identified as “organizations”, “customer”, “client” or similar designation in the Ordering Document). If “Organization” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Organization” shall be binding on all such persons with respect to all rights and obligations under this Agreement, including but not limited to any renewal, extension, termination or modification of this Agreement.
1. SUBSCRIBED SERVICES, GRANT OF LICENSE
1.1. AVG agrees to provide to Organization the products and/or services set forth in the Ordering Document (the “Services”). The Services may include information (the “Licensed Materials”) access to and/or use of software or other technology (the “AVG Technology”), or other services including premium support. Specific Services may be defined by and are subject to the Services Definitions and Service-Specific Terms and Conditions included with the Ordering Document. AVG will make the Services available to the Organization via password-protected website and mobile app accessible by Organization, via AVG hosted website and mobile application or by an application programmer interface (“API”), or as otherwise mutually agreed by the parties. Subject to the terms and conditions herein, AVG grants to Organization a non-exclusive, non-transferable license to access and use the Services in accordance with this Agreement and during the Term of this Agreement. Outside of websites, applications and communication material included in the Services, any use of AVG names, brands, and marks/logos is expressly prohibited unless approved by AVG prior to publication. Any use of the brands, marks and logos of vendors participating in Services prior to approval by AVG is expressly prohibited. Organization agrees to abstain from contacting any vendor properties found within Services for any purpose relating to Services, or for building a wholesale benefit offering.
1.2. The Services will be provided as they exist and are updated and amended throughout the Term. Information provided as part of any Licensed Materials may be updated on an ongoing basis and provided according to the criteria used to define the scope of the subscribed Services. Organization understands and acknowledges that the contents of Licensed Materials will change over time as the data is updated, and that at any given time it has a right to access and use the data to which it is subscribed as it exists at that time. Features and functions of the AVG Technology are provided “as is” and as they may be modified, supplemented, or removed from time to time in AVG’s sole discretion. AVG shall have no liability to Organization for any modification to any Service, provided that the product or service provided substantially conforms to the description in the Ordering Document.
2. AUTHORIZED USE OF LICENSED MATERIALS AND AVG TECHNOLOGY, RESTRICTIONS
2.1. Authorized Users. Organization shall be entitled to designate persons as users of the Services (“Authorized Users”) up to the number of Authorized Users subscribed as stated in the Ordering Document. If Organization designates additional persons as Authorized Users beyond the number subscribed, such designation may be deemed by AVG, as Organization’s subscription to such additional number of Authorized Users and Organization will be charged a corresponding additional Subscription Fee in accordance with the Access Perks Monthly Subscription Rate Card set forth in the Ordering Document. It is the responsibility of the Organization to notify AVG once an Authorized User’s access to Services is to be revoked. AVG will suspend Authorized User access upon receipt of notice from Organization and subsequent billing will adjust in accordance with Ordering Document. Organization shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including, without limitation, the restrictions on use and transfer of Licensed Materials set forth herein. Organization acknowledges and agrees that Authorized Users may be required to accept an end-user license agreement agreeing to AVG’s privacy policy and representing that they are authorized to access the Services on Organization’s behalf. Organization agrees that AVG may email all users represented by, members of, or employees, or otherwise associates of Organization, as well as registered and engaged individuals, with content relevant to Services.
2.2. Fraudulent Activity. Organization acknowledges that the viability of the AVG vendor network is contingent on third-party payment processors which have implemented unique and sophisticated fraud management and loss prevention solutions which may result in blocked or declined transactions based upon any number of criteria over which AVG has no control. ORG agrees that declined or blocked transactions do not constitute a failure to render service to ORG or any of its members. ORG acknowledges that if at any time AVG discovers activity which appears to be fraudulent on the platform committed by ORG or any of ORG’s members, AVG reserves the right to disable access to the platform for those offending members until such time as the exposure risk is researched and mitigated. If AVG determines that a significant pattern of fraudulent transactions are being attempted or completed by ORG’s members, AVG will immediately notify ORG of such activity and may at AVG’s sole discretion disable ORG’s access to the platform in whole or in part until such time that ORG and AVG have remedied the fraudulent activity. ORG and AVG mutually agree to put forth their best efforts to address and resolve any such fraudulent activity as quickly as reasonably possible.Organization acknowledges that the viability of the AVG vendor network is contingent on third-party payment processors. If at any time AVG discovers fraudulent activity on the platform in connection with Organization or Authorized Users of Organization’s, AVG reserves the right to disable access to the platform for those offending Authorized Users until such time as the exposure risk is researched and mitigated. In the event that AVG determines that a significant pattern of fraudulent activity is being performed by Organization’s Authorized Users, AVG will immediately notify Organization of such activity and may at AVG’s discretion disable Organization’s access to the platform in whole or part until such time that Organization and AVG have remedied the fraudulent activity. Organization and AVG mutually agree to put forth their best efforts to address and resolve any such fraudulent activity as quickly as reasonably possible.
2.3 Organization understands that there may be additional fees that may be charged directly by a hotel property that are not included in the original hotel booking charge. These fees could include a resort fee, parking fee or other fees. In addition, for certain international properties a Goods and Services Tax (GST) may be charged based on the Member’s country of origin and the location of the hotel property. These fees are not reported by AVG as AVG has no knowledge of them in the transaction flow and they are not included in any margin allocation.
2.4 Organization understands and acknowledges the following concerning price variations that may exist between the search results page and the room details page: AVG is required by its hotel providers to make multiple API calls throughout the search process to obtain rate and availability data. There are two API calls made to obtain the hotel availability and pricing data separate from booking and confirmation. The first call enables users to see the list of exclusively priced available properties, which AVG’s partners may provide cached data on to lessen server loads. This data tends to be updated less frequently on their end. Once a member selects to see room details a second API call is performed wherein AVG’s hotel providers allow a real-time call to confirm data and pricing availability. This data may differ in certain markets from the first API call as to pricing increase, decrease or room availability. This impacts all AVG travel instances whether discount, points, cash back or other. AVG strives to provide the best deals, data and pricing to ORG’s members. However, these variances can occur and are not intentional in any way to lessen the member experience.
3. TERM AND TERMINATION
3.1. Term. The Initial Term of the Agreement is that which is set forth in the Ordering Document (together with any period of extension under Section 3.2 hereof, the “Term”). The Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to its Term.
3.2. Automatic Extension of the Term. On the date that is 30 days prior to the last day of the Term (the “Extension Date”), the Term will automatically extend for a period equal to the length of the Initial Term or one year, whichever is longer, unless either party, on or before the Extension Date, notifies the other in writing that the Term shall not so extend. In the event that the Term is extended under this paragraph: (1) Organization shall remain subscribed during such period of extension to the Services to which it was subscribed as of the Extension Date, and (2) the Subscription Fees to be paid to AVG for such Services during such period of extension shall be equal to the annualized amount of the Subscription Fee applicable to all Services to which Organization was subscribed as of the Extension Date, multiplied by the length of the term in years. Subscription Fees for the period of extension hereunder shall be due upon extension of the Term, and shall be payable as invoiced. AVG will invoice Subscription Fees for any period of extension in a manner substantially consistent with the payment schedule that applied to the Agreement as of the Extension Date.
3.3. Termination. Either party may terminate this Agreement immediately, without further obligation to the other party, in the event of a material breach of this Agreement by the other party that is not remedied within twenty-one (21) days after the breaching party’s receipt of written notice of such breach. The parties may terminate this Agreement at any time upon their mutual Agreement.
3.4. Effect of Termination.
3.4.1. Expiration or Termination for any Reason. Upon expiration or termination of this Agreement for any reason, Organization acknowledges and agrees that its access to the Licensed Materials may be automatically terminated, all passwords and individual accounts removed, and all information that has been uploaded into AVG’s systems by Organization destroyed. Upon expiration or termination of this Agreement for any reason, unless otherwise provided herein, Organization agrees to destroy any and all copies of Licensed Materials and any information it has obtained from the Licensed Materials, whether in hard copy or electronic form.
3.4.2. Termination by AVG. If this Agreement is terminated by AVG due to a material breach by Organization, all Subscription Fees payable to AVG for the remainder of the then-current Term shall be immediately due and payable to AVG, and Organization shall promptly remit all such fees to AVG.
3.4.3. Termination by Organization. If this Agreement is terminated by Organization due to an uncured material breach by AVG, AVG shall promptly refund the pro-rata amount of any pre-paid Subscription Fees attributable to periods after the date of such termination.
4. FEES
4.1. Organization shall pay all fees stated in the Ordering Document and any other fees applicable to its subscription to Services as provided hereunder (the “Subscription Fee”). All Subscription Fees are due upon execution of the Ordering Document, or notice of a deemed subscription as provided herein, and payable on the terms set forth therein. If no payment schedule is specified for any Subscription Fees, the entire amount shall be payable within 30 days of AVG’s transmission to Organization of an appropriate invoice. All amounts payable by Organization under this Agreement will be paid to AVG without setoff or counterclaim, and without any deduction or withholding. AVG’s acceptance of partial payment or any payment of less than the full amount payable at any given time shall not constitute a waiver or release of AVG’s right to unpaid amounts. Invoices will be sent at the beginning of each month and the credit card on file will be charged on the 15th of each month.
4.2. If Organization fails to timely make any payment of Subscription Fees, AVG may, in its sole discretion, take any or all of the following actions: (i) restrict or suspend Organization’s access to the Licensed Materials until all past-due payments are made, or (ii) terminate this Agreement. Restriction or suspension of Organization’s online access to the Licensed Materials during period of non-payment shall have no effect on the Term of this Agreement nor on Organization’s obligation to pay the Subscription Fee. Unpaid invoices greater than 90 days will result in the contract will be terminated and all unpaid invoices will be sent to collections.
4.3 AVG agrees to share with the Organization a percentage of Net Revenue resulting from completed purchases by Authorized Members made within the Organization’s Program as outlined in the Ordering Document. Net Revenue is defined as gross revenue of completed purchases adjusted for cancellations, refunds, applicable taxes and merchant processing fees. Any chargebacks, disputes or identified fraudulent bookings resulting in AVG not receiving payment will be deducted from the revenue share portion due. Organization will receive monthly payments in U.S. funds by the 20th of the following month. Payments may be made to Organization either by 1) Check or 2) by calling Access Accounting at (877) 428-4585 with ACH information.
5. DATA PROTECTION AND CONFIDENTIALITY
5.1. Organization acknowledges and agrees that AVG will operate in accordance with its published Privacy Policy (available at https://www.accessdevelopment.com/privacy-policy or as AVG may otherwise indicate), which is incorporated herein by reference.
5.2 Organization shall not market, sell, distribute, or make available directly or indirectly, through itself or through others any of the AVG Program/content/offers to any of the following companies or any of their affiliates or agents: AAA, AON, Bluegreen Resorts, RCI, StrategyCorps., Wyndham or the National Education Associations (NEA) State Affiliates. In addition, individual discount offers provided by AVG cannot be published to any individual that is not an end user or member of Organization.
5.2. “Confidential Information” of a party means such party’s (or its affiliate’s): inventions, discoveries, improvements, and copyrightable material not yet patented, published, or copyrighted; special processes and methods, whether for production purposes or otherwise, and special apparatus and equipment not generally available or known to the public; current engineering research, development, design projects, research and development data, technical specifications, plans, drawings and sketches; business information such as product costs, vendor and customer lists, lists of approved components and sources, price lists, production schedules, business plans, and sales and profit or loss information not yet announced or not disclosed in any other way to the public; and any other information or knowledge not generally available to the public. “Confidential Information” does not include the Licensed Materials (which are subject to other restrictions under this Agreement) nor otherwise include business contact or firmographic information regarding third parties. All business terms of this Agreement, including, but not limited to, pricing and access, shall be considered Confidential Information of AVG.
5.3. Each party shall keep in confidence all Confidential Information of the other party obtained prior to or during the Term of this Agreement, and shall protect the confidentiality of such information in a manner consistent with the manner in which such party treats its own confidential material, but in no event with less than reasonable care. Without the prior written consent of the other party, a party shall not disclose or make available any portion of the other party’s Confidential Information to any person, firm, association, or corporation, or use such Confidential Information, directly or indirectly, except for the performance of this Agreement. The foregoing restrictions shall not apply to Confidential Information that: (a) was known to such party (as evidenced by its written record) or was in the public domain prior to the time obtained by such party; (b) was lawfully disclosed to such party by a third party who did not receive it directly or indirectly from such party and who is under no obligation of secrecy with respect to the Confidential Information; or (c) became generally available to the public, by publication or otherwise, through no fault of such party. The parties shall take all necessary and appropriate steps in order to ensure that its employees and subcontractors adhere to the provisions of this section. All Confidential Information shall be returned to the disclosing party or destroyed upon receipt by the receiving party of a written request from the disclosing party.
5.4. Personal Information. To the extent that either party transmits or receives personal information under this Agreement, such party shall comply with all applicable laws, rules, and regulations regarding privacy and the lawful processing of personal information.
6. REPRESENTATIONS AND WARRANTIES
6.1. Each party represents and warrants that: (1) it is duly organized and validly existing and authorized to do business in the jurisdictions where it operates; and (2) it has the requisite power and authority to enter this Agreement and entering and complying with its obligations under this Agreement does not violate any legal obligation by which such party is bound.
6.2. Organization represents and warrants, and covenants that it will not, in connection with this Agreement, including its use of or access to the Services, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or any right of any third party.
7. INDEMNIFICATION
7.1. Organization agrees to indemnify, defend, and hold harmless AVG and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with (1) Organization’s access or use of the Licensed Materials in violation of any law, (2) Organization’s violation of any provision of this Agreement, (3) the use of any Licensed Materials or AVG Technology by any third party to whom Organization has granted access (including access obtained through use of the usernames and passwords assigned to Organization and its personnel).
7.2. AVG agrees to indemnify, defend, and hold harmless Organization and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with any claims or actions arising in any way out of AVG’s breach of duties or obligations set forth in this agreement.
8. LIMITATION OF LIABILITY
8.1. Notwithstanding the foregoing, neither party will be liable for any indirect, incidental, special, exemplary, consequential, punitive or lost profits damages of any kind, even if a party has been advised of the possibility of such damages, except for any act or omission of either party constituting gross negligence, bad faith or willful misconduct. Organizations’s sole and exclusive remedy for any uncured breach by avg of its obligations under this agreement is termination by written notice to avg, and refund of a prorated portion of the subscription fees that org has paid. avg’s maximum liability to org shall be the amounts actually paid to avg by org under this agreement in the three (3) months preceding the event giving rise to organization’s cause of action.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR INSTANCES OF A PARTY’S OR ITS AGENT’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, EXEMPLARY, MULTIPLE, INDIRECT, CONSEQUENTIAL, SPECIAL, OR LOST PROFITS DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORGANIZATION’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY AVG OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS TERMINATION BY WRITTEN NOTICE TO AVG, AND REFUND OF A PRORATED PORTION OF THE SUBSCRIPTION FEES THAT ORGANIZATION HAS PAID. AVG’S MAXIMUM LIABILITY TO ORGANIZATION SHALL BE THE AMOUNTS ACTUALLY PAID TO AVG BY ORGANIZATION UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO ORGANIZATION’S CAUSE OF ACTION. EXCEPTING LIABILITY ARISING FROM ORGANIZATION’S OR ITS AGENT’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OR ORGANIZATION’S INDEMNIFICATION OBLIGATIONS HEREUNDER, ORGANIZATION’S MAXIMUM LIABILITY TO AVG HEREUNDER SHALL BE TWO TIMES (2X) THE AMOUNT OF THE SUBSCRIPTION FEE.
9. DISCLAIMER OF WARRANTIES
9.1. EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, THE LICENSED MATERIALS, AVG TECHNOLOGY, AND ANY OTHER SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
10. DISPUTE RESOLUTION CHOICE OF LAW; MEDIATION; LITIGATION
10.1. Mandatory This Agreement shall be governed by and construed in accordance with the laws of the State of Utah. It is the intent of the parties to attempt to resolve any claim, demand dispute, controversy or other difference concerning this Agreement through mediation prior to a party initiating litigation. The parties shall agree on a single mediator approved by the Alternative Dispute Resolution department of the Utah courts, and the mediation shall take place in Salt Lake City, Utah. The parties shall equally pay for all mediation expenses, but each party shall pay for its own legal representation separately. In the event that the mediation is unsuccessful, then the dispute or controversy shall be resolved through litigation. State and/or federal courts located within the state of Utah, in Salt Lake City will have exclusive jurisdiction over any and all disputes between the parties hereto, whether in law or equity, arising out of or relating to this agreement and its exhibits. The parties consent to and agree to submit to the exclusive jurisdiction of such courts. each of the parties hereby waives, and agrees not to assert in any such dispute, to the fullest extent permitted by applicable law, any claim that (i) such party is not personally subject to the jurisdiction of such courts, (ii) such party and such party’s property is immune from any legal process issued by such courts or (iii) any litigation commenced in such courts is brought in an inconvenient forum. Arbitration. Any dispute, claim, or controversy arising out of or relating to this Agreement, including, without limitation (1) claims relating to the breach, termination, enforcement, interpretation or validity thereof, (2) claims alleging tortious conduct (including negligence) in connection with the negotiation, execution, or performance thereof, or (3) the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration administered by American Arbitration Association pursuant to its Commercial Arbitration Rules and in accordance with the Expedited Procedures in those Rules or pursuant to American Arbitration Association’s Streamlined Arbitration Rules and Procedures. The arbitration shall be heard by a single arbitrator and shall be conducted in the State of Utah. Judgment on the Award may be entered in any court having jurisdiction. This section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (1) punitive, exemplary, or multiple damages under any legal theory; (2) mandatory or prohibitory injunctive relief, except for temporary relief in aid of the arbitration or to secure the payment of an award; or (3) any damages in excess of the limits set forth in this section or Section 7 (Limitation of Liability) of this Agreement.
11. MISCELLANEOUS PROVISIONS
11.1. Assignment. Either party hereto may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock sale, or asset sale) without the other party’s consent, provided however that (1) Organization’s assignment hereof shall be effective only after fourteen (14) days’ written notice to AVG, and (2) Organization may not assign this agreement to any competitor of AVG without AVG’s express written consent. No rights or obligations under this Agreement may be assigned or delegated except as provided in this section without the prior written consent of the other party, and any assignment or delegation in violation of this section shall be void.
11.2. Governing Law, Jurisdiction. This Agreement shall be construed in accordance with and governed for all purposes by the laws of the State of Utah without regard to choice of laws principles. Each party irrevocably consents to the personal jurisdiction of the state and federal courts located in the State of Utah for purposes of any lawsuit seeking to enforce this Agreement. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the foregoing, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
11.3. Entire Agreement. This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired subscription set forth in any Ordering Document or agreement between the parties for access to AVG Services shall be governed by the terms hereof.
11.4 Survival of Clauses. All provisions regarding indemnification, confidentiality and/or protection of trademark, service mark, copyright and trade name rights shall survive termination of this Agreement.
11.5 No Partnership, Enforceable Provisions. Both parties acknowledge that this Agreement does not constitute a partnership or joint venture, and the parties shall remain independent contractors. If any provision of this Agreement shall be prohibited by or invalid pursuant to applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement11.6 Force Majeure. Neither AVG nor any of its affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war. Neither AVG nor any of its affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.