VScape Lite Terms of Service - Leonardo

These terms and conditions (“Terms of Service”) govern the use of the VScape Lite Service offered at no charge by Leonardo Worldwide Corporation (formerly, VFM Leonardo Inc. and referred to her as “Leonardo”) to hotels and hotel chains. The VScape Lite Service allows your hotel or, if you are a hotel chain representing multiple hotels, your hotel chain on behalf of those hotels, as applicable, to upload, review, manage, edit and distribute digital still images and other content relating to your hotel(s) to Leonardo’s network of distribution partners such as the global distribution systems (GDSs), online travel agency sites (OTAs) and other travel-related websites around the world.

BY AGREEING TO THESES TERMS OF SERVICE AND/OR BY SUBMITTING ANY HOTEL CONTENT TO OR OTHERWISE USING THE VSCAPE SERVICE, THE HOTEL OR HOTEL CHAIN YOU REPRESENT (“CLIENT”) IS ENTERING INTO A LEGAL AGREEMENT WITH LEONARDO AND IS AGREEING TO ALL OF THESE TERMS OF SERVICE. If You do not agree to these Terms of Service or are not in the legal position to agree to any of these Terms of Service on behalf of Client, then please do not use VScape Lite.

1. Certain Defined Terms

As used in these Terms of Service, the following terms will have the following respective meanings:

  1. “Client” means the hotel(s) or hotel chain, as applicable, that You represent and on behalf of whom You have accepted these Terms of Service;
  2. “Client Hotel” or “Client Hotels” means the hotel or hotels (if more than one) that Client represents and on behalf of which Client uploads, edits, deletes or otherwise modify any Client Hotel Content through VScape or otherwise use VScape; and
  3. “Client Hotel Content” means Images, virtual tour images, video and other rich visual media and related textual captions, descriptions, categories and other metadata, in each case, depicting or relating to Client Hotel(s);
  4. “Images” means digital still images (photos);
  5. “VNetwork” means Leonardo’s network of existing and future partner travel and travel-related websites, travel intermediaries and other electronic distribution channels (each a “VNetwork Channel” and, collectively, “VNetwork”) to which Leonardo distributes hotel visual and other content, including Client Hotel Content;
  6. “VScape” means the Web-based applications, technology and platform used in providing the VScape Lite Service;
  7. “VScape Lite Service” refers to the Web-based digital asset management and distribution system and service provided by Leonardo to Client pursuant and subject to these Terms of Service that allows Client to upload, review, store, manage, edit and distribute, as applicable, Client Hotel Content to VNetwork;
  8. “You” means you, the person representing Client who accepts and agrees to these Terms of Service on behalf of Client;

2. VScape Lite Service Overview

The VScape Lite Service is being offered at no charge by Leonardo to hotels and hotel chains and includes and is subject to the following:

  1. Access to and use of VScape (including the use of a Web browser VScape Media Manager interface to VScape) for the uploading, storage and management of up to ten (10) Images and related metadata (such as image categories, captions, and textual descriptions (“Metadata”)) for each Client Hotel; and
  2. Access to and use of VScape for the distribution of up to:
    • (i) ten (10) Images and related Metadata to certain premium VNetwork Channels including the GDSs (Amadeus, Sabre, Travelport) and Pegasus; and
    • (ii) up to five (5) or up to ten (10) Images to other VNetwork Channels;
  3. The maximum disk storage space provided under the VScape Service for any Client Hotel Content will be ten (10) megabytes for each Client Hotel; and
  4. The maximum number of “User Accounts” (that is, hotel and hotel chain employees who are authorized to access and use VScape and have been supplied user by Leonardo at Client’s request) that will be able to access VScape will be one (1).

3. Ability and Authorization to Accept Terms of Service

You and Client affirm that:

  1. You are an employee of Client;
  2. If Client is a hotel chain, You and Client are authorized representatives of each of the Client Hotels in such hotel chain for which You upload (or otherwise submit or provide), edit, delete or otherwise modify any Client Hotel Content in VScape;
  3. You are fully authorized and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service on behalf of Client and to legally bind Client to these Terms of Service; and
  4. any action taken by You or instruction given by You to Leonardo through VScape (such as the uploading, management, deletion, editing, and distribution of Client Hotel Content for any Client Hotel) and any resulting action taken by Leonardo (such as changes to the Client Hotel Content distributed by Leonardo on behalf of Client) is duly authorized by and on behalf of Client and the Client Hotel(s).

4. Authorization of Leonardo Actions

  1. Leonardo is hereby authorized to arrange for the distribution, broadcast and display to/by each VNetwork Channel of any Client Hotel Content provided by or on behalf of Client or approved by Client for distribution through VScape. Any action taken by Leonardo based on an instruction given by You (such as changes to the Client Hotel Content distributed by Leonardo on behalf of Client) is duly authorized by and on behalf of Client.
  2. Leonardo makes no warranties or guarantees whatsoever with respect to (i) whether any Client Hotel Content to be distributed by Leonardo to the VNetwork will in fact be accepted or otherwise displayed by any particular VNetwork Channel and (ii) what usage statistics, levels of impressions or “hits” which will be obtained by any Client Hotel Content. Leonardo reserves the right not to distribute any Client Hotel Content which Leonardo or any VNetwork Channel deems in its reasonable discretion, not to be suitable or appropriate for distribution to the VNetwork.

5. Responsibility for Client Hotel Content

  1. Client has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use (and the continuing right to use) of any Client Hotel Content submitted on its behalf for distribution to the VNetwork by Leonardo (including any Client Hotel Content previously submitted by or on behalf of Client or any Client Hotel) and the consequences of its distribution to the VNetwork by Leonardo. Client agrees not to submit or otherwise transmit to Leonardo and to immediately remove from VScape any Client Hotel Content that:
    • (i) is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless Client is the owner of such rights or has permission from their rightful owner to distribute the Client Hotel Content and to grant Leonardo all of the license rights granted herein;
    • (ii) contains any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national, or international law; or
    • (iii) contains a virus, worm, or other harmful component.
  2. UPON ACTIVATION OF CLIENT’S VSCAPE LITE ACCOUNT AND/OR ANY ACCEPTANCE OF THESE TERMS OF SERVICE, CLIENT IS RESPONSIBLE FOR REVIEWING ALL HOTEL CONTENT ALREADY CONTAINED IN VSCAPE (SUCH AS CONTENT PREVIOUSLY SUBMITTED BY OTHER REPRESENTATIVES OF THE SAME CLIENT HOTEL(S)) AND DELETING OR DEACTIVATING (REMOVING FROM DISTRIBUTION) ANY HOTEL CONTENT THAT IS COPYRIGHTED, PROTECTED BY TRADE SECRET OR OTHERWISE SUBJECT TO THIRD PARTY PROPRIETARY RIGHTS, INCLUDING PRIVACY AND PUBLICITY RIGHTS, UNLESS CLIENT IS THE OWNER OF SUCH RIGHTS OR HAS PERMISSION FROM THEIR RIGHTFUL OWNER TO DISTRIBUTE THE HOTEL CONTENT AND TO GRANT LEONARDO ALL OF THE LICENSE RIGHTS GRANTED HEREIN. ANY HOTEL CONTENT THAT IS NOT SO DELETED OR DEACTIVATED (REMOVED FROM DISTRIBUTION) WILL BE DEEMED TO HAVE BEEN PROVIDED BY CLIENT FOR DISTRIBUTION BY LEONARDO AND SUBJECT TO THE REPRESENTATIONS, WARRANTIES AND LICENSES SET OUT IN SECTION 6 BELOW.
  3. Client hereby acknowledges that Leonardo provides each VNetwork Channel with indemnities with respect to, among other things, any damages, liabilities, costs and expenses (including but not limited to attorney’s fees) incurred by such VNetwork Channel as a result of any threatened or actual suit of a third party against such VNetwork Channel arising from or based upon the distribution to and the display and broadcast by such VNetwork Channel of any Client Hotel Content. To the extent that such claim is a result of any breach of covenant, representation or warranty made by Client pursuant to these Terms of Service, Client agrees to promptly indemnify, hold harmless and defend Leonardo, and each such VNetwork Channel in accordance with Section 9 below and agrees that any such VNetwork Channel is an intended third party beneficiary of this obligation to defend, indemnify and hold harmless.

6. Hotel Content Ownership & Licenses.

By uploading or otherwise providing, modifying, or editing any Client Hotel Content for distribution by Leonardo through VScape or otherwise, Client:

  1. Represents and warrants to Leonardo (and acknowledge that Leonardo is relying upon such representations and warranties) that:
    • (i) Client is the owner of all intellectual property rights and other proprietary rights in and to such Client Hotel Content and/or has the necessary licenses, rights, consents and permissions to grant to Leonardo the license described in paragraph (b) below;
    • (ii) Client (or Client Hotel to which Client Hotel Content relates) has the written consent, release, and/or permission of each and every identifiable actor, model, staff member or other person who appears in such Client Hotel Content to use the likeness of each such person in such Client Hotel Content and for such Client Hotel Content to be publicly distributed by any means in the manner contemplated in these Terms of Service; and
    • (iii) The distribution, transmission, performance and/or display by Leonardo of such Client Hotel Content to/on the VNetwork as contemplated in these Terms of Service will not infringe any third-party’s intellectual or other rights in such Client Hotel Content; and
  2. Expressly grants Leonardo a non-exclusive, royalty-free, worldwide, irrevocable, perpetual license to:
    • (i) use, copy, store, modify (including standardize, optimize, re-size, crop or otherwise reformat for distribution), distribute, broadcast, perform and display (publicly or otherwise) such Client Hotel Content; and
    • (ii) grant limited sub-licenses to each website, travel intermediary or other distribution channel belonging to VNetwork to which Leonardo distributes such Client Hotel Content (including their affiliated websites) to permit them to similarly broadcast, perform and display such Client Hotel Content.

7. Hotel Brand Control Over Client Hotel Photos.

If a Client Hotel is a property belonging to a hotel brand (“Brand”) that is also a client of Leonardo and such Brand so requires, Leonardo will provide the Brand access to Client Hotel’s VScape account and allow it to overwrite Client Hotel Content distribution settings in conformance with their policies (for example, to disable distribution of Client Hotel Content to those VNetwork Channels that are not approved by the Brand).

8. Limitation of Use of VScape by Third Parties

THE FREE VSCAPE SERVICE PROVIDED TO CLIENT PURSUANT TO THESE TERMS OF SERVICE IS INTENDED FOR THE EXCLUSIVE USE OF CLIENT. IN PARTICULAR, ONLY CLIENT EMPLOYEES MAY ACCESS VSCAPE ON BEHALF OF CLIENT. CLIENT MAY NOT HIRE OR PROVIDE ACCESS TO ITS VSCAPE ACCOUNT TO A THIRD PARTY THAT IS NOT AN EMPLOYEE OF CLIENT TO ACCESS VSCAPE AND UPLOAD OR MANAGE ANY HOTEL CONTENT ON BEHALF OF CLIENT. ACCESS TO CLIENT’S VSCAPE ACCOUNT BY A NON-EMPLOYEE WILL RESULT IN A TERMINATION OF THE VSCAPE SERVICE AND REMOVAL OF ALL CLIENT HOTEL CONTENT FROM DISTRIBUTION ON THE VNETWORK.

9. Indemnity

Client will indemnify, hold harmless and defend Leonardo and each VNetwork Channel to which Leonardo distributes Client Hotel Content on behalf of Client and their respective officers, directors, employees and agents (the “Indemnified parties”) for, from, and against any and all claims damages, liabilities, costs and expenses (including but not limited to attorney’s fees) incurred by the Indemnified parties as a result of any threatened or actual suit of a third party against the Indemnified parties arising from: (i) any actual or alleged breach of covenant, representation or warranty made by Client under, and/or violation of, these Terms of Service, (ii) any actual or alleged improper access to and use of VScape by Client; (iii) any actual or alleged violation by Client (and/or any of its agents, licensees, representatives or any party acting on their behalf) of any third party right, including without limitation any copyright, property, or privacy right in any Client Hotel Content provided by or on behalf of Client for distribution by Leonardo to VNetwork; or (iv) claim that any Client Hotel Content or the distribution or display thereof caused damage to a third party, provided, in each case, that Leonardo promptly notifies Client in writing of any such claim and that Client will have the right to control and defend or settle any such claim at Client’s expense and with Client’s choice of counsel and that the Indemnified Parties may join in defense with counsel of their choice at their own expense. Leonardo may, but shall not be obligated to, require Client to assume the defense of any such claim or, if they do not do so, to advance Leonardo sufficient funds as required to pay all of the Leonardo Indemnified Parties’ costs of such defense. At Client’s request, the Leonardo Indemnified Parties will cooperate with Client, at Client’s expense, in defending or settling such claim and the Leonardo Indemnified Parties may join in defense with counsel of their choice at their own expense. For greater certainty, Client’s obligation to indemnify, hold harmless and defend Leonardo under this Section with respect to any actual or threatened claim will be absolute and will not depend on whether any such claim has actual legal or factual merit and shall be enforceable by the Leonardo Indemnified Parties prior to the determination or disposition of such claim. In the event that the tendered defense of the Leonardo Indemnified Parties is not immediately accepted by Client, then it is agreed that the Leonardo Indemnified Parties shall have the right to select counsel of their own choice, at the expense of Client, and that such counsel selected by the Leonardo Indemnified Parties will continue to represent the Leonardo Indemnified Parties at the expense of Client, until such time as the Leonardo Indemnified Parties shall determine in their own sole discretion. The duty to indemnify, defend and hold harmless specified in this Section shall arise immediately upon tender, and that duty will arise notwithstanding any allegation, claim or ultimate proof of concurrent negligence or other legal responsibility of any Leonardo indemnified Party, except that no duty to pay any judgment rendered after Client having provided the defense shall be owed by Client if the judgment is solely the result of the sole misconduct of the Leonardo Indemnified Parties. If Client fails to defend any or all of the Leonardo Indemnified Parties after tender of such defense, and if it is then the judgment of a court of competent jurisdiction that such defense should have been provided pursuant to the terms of this Agreement, then it is agreed that Client shall be liable to the Leonardo Indemnified Parties for any and all actually incurred attorney’s fees, costs, expenses, internal costs and expenses and any judgment or settlement rendered against the Leonardo Indemnified Parties, even if any such monetary amounts are paid by insurance of the Leonardo Indemnified Parties. In the event that any equitable relief (such as injunctive relief, writ of mandamus, etc.) is ordered against any Leonardo Indemnified Party by reason of the claims against any Leonardo Indemnified Party as to which they (or any of them) are to be defended, indemnified and held harmless, then Client shall bear all expenses of adherence to any such order of the court granting equitable relief against any Leonardo Indemnified Party. This duty to indemnify, defend and hold harmless the Leonardo Indemnified Parties shall survive the expiration or termination of this Agreement.

10. Warranty Disclaimer

CLIENT AGREES THAT ITS USE OF VSCAPE SHALL BE AT ITS SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, LEONARDO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH VSCAPE AND CLIENT’S USE THEREOF. LEONARDO MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF VSCAPE OR THE VSCAPE LITE SERVICE AND ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CLIENT’S ACCESS TO AND USE OF VSCAPE OR THE DISTRIBUTION OF YOUR HOTEL’S HOTEL CONTENT THROUGH VSCAPE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM VSCAPE, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CLIENT HOTEL CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CLIENT HOTEL CONTENT POSTED, TRANSMITTED, DISTRIBUTED OR OTHERWISE MADE AVAILABLE VIA VSCAPE.

11. Limitation of Liability

IN NO EVENT SHALL LEONARDO, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO CLIENT FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES IN OF CLIENT HOTEL CONTENT OR ITS DISTRIBUTION, DISPLAY OR PERFORMANCE THEREOF, (II) PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CLIENT’S ACCESS TO AND USE OF VSCAPE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF LEONARDO’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM VSCAPE, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY HOTEL CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF CLIENT’S USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA VSCAPE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

12. Survival

The provisions of Sections 6, 9, 10 and 11 of these Terms of Service as well as any provision hereof which by its nature and intent should survive the expiration of termination of these Terms of Service shall so survive.

13. Assignment

The Agreement entered into trough these Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by Client.

14. General

For all purposes relating to these Terms of Service, VScape shall be deemed solely based in Ontario, Canada and shall be deemed a passive website that does not give rise to personal jurisdiction over Leonardo or VScape, either specific or general, in jurisdictions other than Ontario. These Terms of Service shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein without respect to its conflict of laws principles. Any claim or dispute between Client and Leonardo that arises in whole or in part from their use of VScape shall be decided exclusively by a court of competent jurisdiction in the Province of Ontario. Unless superseded by a separate written agreement between Client and Leonardo, these Terms of Service, shall constitute the entire agreement between Client and Leonardo concerning their use of VScape. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Leonardo’s failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. These Terms of Service constitute the entire agreement between the Parties and supersede all communications, negotiations, arrangements and agreements (including prior versions of these Terms of Service), whether oral or written, between the Parties with respect to the subject matter of these Terms of Service. Leonardo reserves the right to amend or terminate these Terms of Service and/or the VScape Lite Service at its sole discretion at any time.

Leonardo