The following User Agreement (the "Agreement") governs the use of the www.whereivebeen.com online service (the "Service"), including, without limitation, the creation of travel profiles therewith, as provided by Where I've Been LLC (the "Service Provider" or "us" or "we"). Please read the Terms and Conditions contained in this Agreement carefully. Your use of and/or registration with the Service will constitute your ongoing acceptance of this User Agreement. If you cannot accept this Agreement, please do not use the Service. This Agreement may be modified from time to time; the date of the most recent revisions will appear on this page. Continued access of the Service by you will constitute your acceptance of any changes or revisions to the Agreement.
Your failure to abide by this Agreement or any other terms or conditions posted anywhere within the Service may result in suspension or termination of your access to the Service, without notice, in addition to Service Provider's other remedies.
Registration and Account Creation
1. Registration Information
Service Provider may at times require that you register and/or set up an account to use certain portions of the Service, or the Service as a whole. In order to do so, you may be provided, or required to choose, a password, User Id, and/or other registration information (collectively, the "Registration Information"). You agree and represent that all Registration Information provided by you is accurate and up-to-date. If any of your Registration Information changes, you must update it by editing your profile on the Service.
For additional information regarding use of personal information you supply or communicate to the Service, please see our Privacy Policy.
2. Maintenance of Registration Information
If you register and/or set up an account on the Service, you will be solely responsible for maintaining the confidentiality of your Registration Information. You may not authorize others to use the Service, and you are responsible for all use by you and those you allow to access the Service using Registration Information you have provided. You may not sub-license, transfer, sell or assign your Registration Information and/or this Agreement to any third party without our written approval. Any attempt to do so will be null and void and shall be considered a material breach of this Agreement.
If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your Registration Information), you must promptly change the affected Registration Information and notify Service Provider of the problem by e-mailing us as described on our Contact Us page.
Use of the Service
Unless otherwise specified, the Service is intended for your personal, noncommercial use only. You agree to use the Service only for lawful purposes and you acknowledge that your failure to do so may subject you to civil and criminal liability.
Intellectual Property
1. Use of Material
The Service contains material that is protected by state, national and international copyright, trademark and other intellectual property laws. You may not modify, copy, reproduce, republish, upload, post, transmit or distribute in any way any material, including code and software, from the Service. You may download material from the Service and may use the Service for your personal, non-commercial use only, provided you keep intact all copyright and other proprietary notices.
2. Ownership and Control
The content, organization, graphics, text, images, video, design, compilation, advertising and all other material on the Service, including without limitation, the "look and feel" of this website, are protected under applicable copyrights and other proprietary (including but not limited to intellectual property) rights and are the property of Service Provider or its licensors. The copying, rearrangement, redistribution, modification, use, or publication by you, directly or indirectly, of any such matters or any part of the website, including but not limited to the removal or alteration of advertising, except for the limited rights of use granted hereunder, is strictly prohibited.
3. Compliance with Law and Agreement
You may not in any way make commercial or other unauthorized use, by publication, re-transmission, distribution, performance, caching, or otherwise, of material obtained through the Service, except as permitted by the Copyright Act or other law or as expressly permitted in writing by this Agreement, Service Provider, or the Service.
4. Interference
You agree not to disrupt, overwhelm, attack, modify, or interfere with the Service or its associated software, hardware and/or servers in any way, and you agree not to impede or interfere with others' use of the Service. You further agree not to alter or tamper with any information or materials on or associated with the Service. Other than connecting to Service Provider's servers by http requests using a Web browser, you may not attempt to gain access to Service Provider's servers by any means - including, without limitation, by using administrator passwords or by masquerading as an administrator while using the Service or otherwise.
5. Linking to Other Sites
You acknowledge that Service Provider has not reviewed and does not endorse the content of all sites linked to from this Service and is not responsible for the content or actions of any other sites linked to from this Service. Your linking to any service or site is at your sole risk.
Indemnification
You agree to indemnify Service Provider and its affiliates, employees, agents, representatives and third party service providers, and to defend and hold each of them harmless, from any and all claims and liabilities (including attorneys fees) which may arise from your submissions, from your unauthorized use of material obtained through the Service, or from your breach of this Agreement, or from any such acts through your use of the Service.
Disclaimer Of Warranty And Limitation Of Liability
YOU ACKNOWLEDGE THAT YOU ARE USING THE SERVICE AT YOUR OWN RISK. THE SERVICE IS PROVIDED "AS IS", AND THE SERVICE PROVIDER, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE PROVIDERS HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED THEREIN OR PROVIDED BY THE SERVICE. SERVICE PROVIDER, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE SERVICE WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES WILL BE TRANSMITTED ON THE SERVICE.
WITHOUT LIMITATION, SERVICE PROVIDER DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY INFORMATION INCLUDED IN ANY PROFILE CREATED THROUGH THE SERVICE. USERS ARE SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL INFORMATION INCLUDED IN SUCH PROFILES, AND SERVICE PROVIDER SHALL UNDERTAKE NO RESPONSIBILITY FOR DAMAGES CAUSED BY THE INCLUSION OF ERRONEOUS, INCOMPLETE, OR OUTDATED INFORMATION IN SUCH PROFILES.
SERVICE PROVIDER, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE PROVIDERS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ALLEGEDLY SUSTAINED ARISING OUT OF THIS AGREEMENT, THE PROVIDING OF SERVICES HEREUNDER, THE SALE OR PURCHASE OF ANY GOODS OR MERCHANDISE, YOUR ACCESS TO OR INABILITY TO ACCESS THE SERVICE, INCLUDING FOR VIRUSES ALLEGED TO HAVE BEEN OBTAINED FROM THE SERVICE, YOUR USE OF OR RELIANCE ON THE SERVICE OR ANY OF THE MERCHANDISE, INFORMATION OR MATERIALS AVAILABLE ON THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES IN THE UNITED STATES OF AMERICA DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
YOU HEREBY AGREE TO RELEASE SERVICE PROVIDER, ITS AFFILIATES AND THIRD-PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THIS SITE. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR".
Termination Or Suspension Of Access To The Service
Service Provider has the right to terminate and/or suspend your ability to access the Service or any portion thereof, for any or no reason, without notice.
Dispute Resolution
1. General Information
If a dispute arises between you and Service Provider, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Service Provider agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (each, a "Claim") in accordance with one of the subsections below or as Service Provider and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution.
2. Law and Forum for Disputes
This Agreement will be governed in all respects by the laws of the State of Illinois as they apply to agreements entered into and to be performed entirely within Illinois between Illinois residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Service Provider must be resolved by a court located in Cook County, Illinois, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Cook County, Illinois, for the purpose of litigating all such claims or disputes.
3. Arbitration
For any claim (excluding claims for injunctive or other equitable relief), Service Provider may elect to resolve the dispute through binding non-appearance-based arbitration. In the event Service Provider elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider and such arbitration shall be conducted in accordance with such provider's rules for non-appearance-based arbitration.
4. Improperly Filed Claims
All claims you bring against Service Provider must be resolved in accordance with this Dispute Resolution Section. All claims filed or brought contrary to the Dispute Resolution Section shall be considered improperly filed. Should you file a claim contrary to the Dispute Resolution Section, Service Provider may recover attorneys' fees and costs up to $1000, provided that Service Provider has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
General Provisions
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. In our sole discretion, we may assign this Agreement. Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.
Effective Date
This Agreement is effective beginning on April 28, 2008.
