General conditions of sale - Cruise Vacaya Caribbean Cruise January 2022 - from 10/01/2022 to 17/01/2022
FOR GUESTS WHO BOOKED JULY 10, 2020 OR LATER
The following Terms and Conditions apply to all travel and travel related Services offered for sale by VACAYA, LLC (“VACAYA”) and/or its officers, directors, employees, representatives, affiliates, agents, or subcontractors (hereinafter referred to as “VACAYA, “we,” or “us”). VACAYA is located at 2020 Pennsylvania Ave. NW Suite 290, Washington, DC 20006.
All bookings of Trips are subject to the Terms and Conditions of the Supplier of the Service(s) incorporated in a Trip. By placing an order with VACAYA, you agree to abide by all the Terms and Conditions of the applicable Suppliers without reservation, and to be bound by the limitations therein. If the Supplier’s Terms and Conditions are ever in conflict with the Terms and Conditions of VACAYA, VACAYA’s will control all issues relating to the liabilities and responsibilities of VACAYA.
These Terms and Conditions contain penalties for cancellation as well as certain limitations of liability. Please read these Terms and Conditions carefully, ask us any questions you have about them and/or consult an attorney before you agree to be bound by them. Guest acknowledges that they have taken note of these Terms and Conditions before making a booking and have accepted the same by:
- Clicking the online box labeled “I accept” during online booking, or,
- Digitally signing under MY TRIPS, or,
- Printing, signing, and sending back to us (if booked outside of our online system)
Booking with VACAYA is not possible without your acceptance to these Terms and Conditions.
- This VACAYA Guest Agreement and its terms and conditions are herein referred to as these “Terms and Conditions” or this “Agreement”.
- The term “Service(s)” as used herein encompasses: travel planning and consultation, passage on cruises, charters, and other water vessels, tours, leisure or adventure activities, hotels rooms, resorts, or other lodgings, air travel, spa services, equipment rentals, expeditions, restaurants or meal services, Trip insurance and any other travel or travel related products offered or sold by
- The term “Trip” is defined as any Service, or package of Services, offered or sold by
- “Supplier” or “Vendor” refers to any provider of the Services we
- “Itinerary” refers to the particularized schedule for a Trip as described in the Trip overview on our website or in our
- References herein to “Guest,” “Client,” or “you” shall apply to each and any of the following: a party participating in an offered Trip and/or the party who purchases (or attempts to purchase) a Trip for themselves and/or
The Services offered by VACAYA are available for purchase by residents of the United States while in the United States, its territories, possessions, and protectorates who have all the requisite power and authority to enter into and perform the obligations under these Terms and Conditions and may legally do so.
No unaccompanied minors (those under 18 years of age) will be accepted. The Guest who submits a Trip reservation for others must be over the age of 18 to purchase a Trip and agree to these Terms and Conditions. If travelling with a minor, the minor’s parent or guardian accompanying them must accept full responsibility for the minor.
The Services are also available for purchase by international Guests, as long as they recognize that this is U.S. business operated under U.S. laws. Any disputes that may arise will be decided pursuant to U.S. law according to our Mandatory Binding Arbitration provision and Choice of Law clause, below, et sec.
MODIFICATION OF OUR TERMS AND CONDITIONS
Our Terms and Conditions may be amended or modified by us at any time, without notice, on the understanding that such changes will not apply to Trips booked prior to the amendment or modification. It is therefore essential that you consult and accept our Terms and Conditions at the time of making a booking, particularly in order to determine which provisions are in operation at that time in case they have changed since the last time you booked a Trip with VACAYA or reviewed our Terms and Conditions.
Our prices are contractual tariffs. No claim relating to the price of the Trip will be considered once the reservation has become effective. Unless otherwise stated in the description of the offer, the following will NOT be included as part of the advertised price:
- items of a personal nature such as incidentals and laundry
- excess baggage charges
- port fees
- resort fees
- foreign government departure taxes
- costs of Passports or Visas
- inspection fees
- customs fees
- immigration and naturalization fees
- service fees
- travel insurance including health, accidents, lost baggage and trip cancellation
- airport parking
- tips and gratuities
- any other activities or items not explicitly advertised as included in the price of a Trip
- in the description of the offered Trip
All pricing featured on our website and in brochures are current at the time of publication and are subject to change without notice. Furthermore, VACAYA Itineraries, pricing, policies and procedures are constantly evolving. VACAYA strives to ensure all information listed is correct at the time of publication. However, any information contained herein, including but not limited to pricing, is subject to change without notice, and VACAYA reserves the right to refuse to honor any prices that were erroneously printed or quoted. VACAYA is not responsible for any misprints appearing in any online and/or printed media. All rates are subject to Fuel Supplement Charges and Currency Rate fluctuations at any time before or after final payment.
PRICES BASED ON DOUBLE OCCUPANCY
Our Trip fares are per person, based on two people occupying a room or cabin (unless otherwise noted). If you prefer single accommodations, and if they are available, most Trips have supplemental rates for single travelers, so refer to the Trip overview on our website or call one of our VACAYA Vacation Planners or your travel agent to learn more.
Promotions, coupons and/or discounts offered by cruise lines/resorts, travel agents, and other Suppliers do not apply to charter travel. Additionally, all accepted promotions, discounts and coupons offered by VACAYA apply only to the qualifying Guest(s).
PAYMENTS & CANCELLATION CHARGES
A per Guest payment of 10% of the total Trip Fare is due at time of booking. Payment to VACAYA is limited to credit card (Visa, MasterCard, and Discover). As a one-time courtesy, initial payments can be transferred to future Trips within 30 days of booking and prior to 240 days before the Trip.
VACAYA Breeze and The V List must be paid in full at time of purchase and are non-refundable.
Payment Schedule for all VACAYA trips (% of total) days before scheduled departure*:
Upon Booking – 10%
At 300 Days – 25%
At 240 Days – 50%
At 180 Days – 75%
At 120 Days – 100%
Cancellation Penalties for all VACAYA trips (% of total) days before scheduled departure*:
300 or More Days – 10%
From 299 to 240 Days – 20%
From 239 to 180 Days – 40%
From 179 to 120 Days – 60%
From 119 to 90 Days – 80%
From 89 to 0 Days – 100%
Percentages apply to the total cost of the Trip, including port charges and gratuities. The above chart represents our standard cancellation fees. However, some of our promotions are non- refundable and will be specifically noted on our website.
*”Scheduled Departure” refers to the advertised departure date for a scheduled Trip. A Scheduled Departure date being postponed due to forces outside of the control of VACAYA does not reset these Payment and Cancellation Charge schedules. Payment and Cancellation Charges will apply as measured from the originally scheduled departure date, not the postponed date on which your Trip actually departs. Therefore, regardless of the date of actual departure, for all Trips postponed or otherwise delayed due to forces outside of the control of VACAYA, full cancellation charges will apply to any cancellations less than 90 days before the originally scheduled departure date, etc.
CALIFORNIA & ILLINOIS RESIDENTS ONLY:
Upon cancellation of the transportation or travel services, where the Client is not at fault and has not canceled in violation of any terms and conditions previously clearly and conspicuously disclosed and agreed to by the Client, all sums paid to the seller of travel for services not provided will be promptly paid to the Client, unless the Client advises the seller of travel in writing, after cancellation. In California, this provision does not apply where the seller of travel has remitted the payment to another registered wholesale seller of travel or a carrier, without obtaining a refund, and where the wholesaler or provider defaults in providing the agreed-upon transportation or service. In this situation, the seller of travel must provide the Client with a written statement accompanied by bank records establishing the disbursement of the payment, and if disbursed to a wholesale seller of travel, proof of current registration of that wholesaler.
CANCELLATIONS AND/OR ALTERATIONS ATTRIBUTABLE TO VACAYA, SUPPLIERS, OR FORCE MAJEURE
Particularly as a result of causes beyond our control (ie. weather and travel conditions, river water levels, political or environmental changes, equipment failure, pandemic, flight schedule changes or rescheduling of air routes and times, referred to herein jointly as “Force Majeure”), we have on occasions had to make changes to and/or cancel confirmed bookings. While we always endeavor to avoid changes and cancellations, we must reserve the right to do so and to substitute alternative arrangements of comparable monetary value without compensation.
VACAYA reserves the right to adjust the Itinerary or change the modes of ground, sea, and air travel, change the quality of accommodations or otherwise change the Tour without prior notice. We accept no liability for loss of enjoyment as a result of these changes. VACAYA will attempt to provide advanced notice of any changes to Itinerary or Services to the extent possible.
Any additional charges incurred arising from the postponement, delay, or extension of a Trip or adjustment to the Itinerary due to Force Majeure will be the Participant’s responsibility. Participant accepts that cruise captains have full authorization to modify itineraries in the interest, enjoyment, and safety of the passengers and vessel.
VACAYA reserves the right in its sole discretion, and acting as intermediary or as agent for these Suppliers, to modify the Itinerary, components of the Itinerary, or the use of Suppliers that is best for the operation of a Trip. VACAYA is not responsible to any person for expense, loss of time, money, or other circumstances resulting from a failure of our Supplier, change in Itinerary, or change of Trip arrangements. VACAYA reserves the right to substitute at any time Services including, but not limited to: ships, ship staterooms, hotels, shows, airlines, restaurants, attractions, etc. Furthermore, your claim about these unforeseen changes has in no way an effect on your decision to cancel or in waiving cancellation penalties that will be imposed as a result of your cancellation.
Additionally, all particularized Service requests (such as flight seating, stateroom types, hotel room types, etc.) are requests that cannot be guaranteed by us, and your participation in a Trip in no way assumes that you have been given any guarantees as to particularized Services. NO representative of VACAYA can make claims of these guarantees to the contrary.
We also reserve the right to cancel any Trip prior to departure, and in such cases, all payments will be refunded without further obligation on our part. If a Guest leaves the Trip at any time, all return fares and other expenses will be assumed by the Guest. VACAYA reserves the right to retain up to its agency revenue in the event of cancellations for any reason described herein.
GUEST REPLACEMENTS (NAME CHANGES)
For a fee of $100 per person, Guest replacements can be made on paid-in-full reservations in which no refund of fare needs to be made. For changes to reservations with a balance due or where funds need to be refunded and repaid, a fee of 6% plus any difference between the original and current sales price will be payable in full at the time of the change. Changes are also subject to any additional fees imposed by suppliers, airlines, cruise lines, hotels/resorts, transportation companies, sightseeing companies, restaurants, etc. All Guest replacements must be handled directly with a VACAYA Vacation Planner at least 14 days prior to departure. Transferability of airline tickets varies by carrier and shall be your sole responsibility.
Before completing your online booking, be sure to check the spelling of your full legal name. Your name must match your passport/proof of citizenship exactly. If you’ve made a mistake, our Vacation Planners will be happy to help you correct it free of charge. However, that correction needs to be requested BEFORE the manifest for your Trip is generated (approximately 120 days out). Once the official cruise line’s/resort’s manifest has been generated, a name correction fee of $100 will be charged.
If your credit card is declined for any payment, VACAYA will reach out to you (or your agent) immediately to rectify the situation. If 7 business days go by without resolution, your reservation may be cancelled and all payments up to that point forfeited.
LEGAL NAMES & PROOF OF CITIZENSHIP
VACAYA requires you to give your full legal name, date of birth, and country of citizenship as it appears on your passport at the time of booking. Any changes in the spelling of your name after booking numbers have been issued will incur a $100 name correction fee. Passports, visas, and proof of citizenship could be required for travel. It is your responsibility to contact any authorities (U.S. Customs for Americans, or your Foreign Consulate office if you are not a U.S. citizen) to obtain any Passports, Visas, or Proof of Citizenship required. A valid passport must have six (6) months remaining on the passport after your planned return to the U.S. If it does not, you should renew your passport. VACAYA strongly advises that all Guests leaving the United States obtain a valid passport for travel. Some countries may deny entry due to current and/or past legal issues. It is your responsibility to check with the consulate to ensure any legal issues past and/or present do not prevent you from entering any countries you may be visiting on your Trip. Some countries/vendors (e.g., cruise lines, airlines, etc.) may deny entry, exit, or boarding due to past or present legal issues or past or present citizenship status. It is YOUR responsibility to confirm ANY of the above-mentioned matters with the proper government agency. This is your only notice about providing proof of citizenship, passports, and visas.
VACAYA is not responsible for your lack of proper identification or denied entries/denied boarding.
Any hotel that requires Guests to pay a “Resort Fee,” “Tourist Tax,” or “City Tax” upon arrival at the hotel will be the responsibility of the Guest to be paid to the hotel in local currency upon arrival. In cases where VACAYA is unable to pre-pay these taxes & fees on behalf of Client, VACAYA shall not be held liable to any traveler for reimbursement of these taxes & fees.
OPTIONAL PRE/POST TOURS
Optional pre/post tours may require a minimum number of passengers in order to operate. Should VACAYA cancel an optional pre/post tour, you will be refunded in full. Any cancellations initiated by you will be subject to current cancellation penalties.
Reservations on optional tours are non-transferable and non-refundable after booking, including, but not limited to, cancellation of port by Cruise Line or weather issues. By booking an optional tour, you acknowledge that excursions cannot be canceled for any reason including but not limited to, regret of purchase, etc. Additionally, while no revisions of the itinerary are anticipated, VACAYA reserves the right to change any tour, schedule, or price, or to substitute stops and attractions on any tour without notice, and to use substitute equipment as necessary. You must contact your Travel Insurance provider to insure your optional tour purchase (or any other additional purchases made to the reservation). Do not assume that tours are insured because you have a policy on your base cruise or resort travel arrangements. VACAYA will not be held responsible for tours not insured by your insurance provider. We reserve the right to require a minimum number of passengers to operate any tour. Any tour canceled by VACAYA will be promptly refunded. VACAYA highly recommends that you review optional tours offered by the cruise line/vendor as well as their terms and conditions to ensure you choose the Optional Tours that best fit your travel needs. Additionally, please review your signed passenger information agreement and our general terms and conditions for the Trip. That agreement applies to any optional tours you purchase from VACAYA. VACAYA is acting as intermediary or as an agent for Suppliers, airlines, cruise lines, hotels, motor coach, restaurants, sightseeing companies, other travel agencies, etc., in selling Services or in accepting reservations or bookings for Services which are not directly supplied by us. Therefore, VACAYA shall not be held responsible for any intentional or unintentional or careless actions or omissions on part of such Suppliers which will result in any loss, damage, delay, or injury to you or your travel companions or group members. By participating in our Optional Tour program, you confirm that you will not, at any time, dispute any charges or process a chargeback with your credit card company. Should a credit card dispute or chargeback occur, you agree to pay VACAYA for any costs involved in said dispute or chargeback, including but not limited to Bank fees, Legal fees and administrative costs.
Should you have to cancel your Trip because of illness, injury or death to you or an immediate family member, depending on the type of coverage purchased, Trip cancellation insurance may protect some or all deposits and payments for both air and Trip costs. Trip cancellation and interruption penalties can be significant. Purchasing Trip cancellation insurance is usually required within 14 days of booking.
We highly suggest all Guests purchase third-party travel protection insurance, which offers benefits for Trip cancellation/interruption and more.Please read related travel protection Plan Documents carefully. It is recommended that you compare and review other travel protection before purchase. VACAYA does not own or operate any travel protection provider, nor has any influence on the outcome of any claim. It is a Guest’s responsibility to understand the limitations of their insurance coverage and purchase additional insurance as needed. It is the Guest’s sole responsibility to research, evaluate, and purchase appropriate coverage. Guest agrees that VACAYA in not responsible for any uninsured losses. Because of interstate insurance regulations, VACAYA cannot recommend coverage or answer any specific policy questions.
From time to time, VACAYA may offer charter flight opportunities. Once VACAYA issues any airline ticket, said ticket will be 100% non-refundable/non-changeable/non-transferable.
VACAYA does not pay ANY airline imposed fees for Baggage, Seating Assignments, Check-In Fees, etc. TSA requires that names on Airline tickets MUST MATCH the name as it appears on your passport. Having an incorrectly spelled name could result in additional fees, a new ticket being purchased, and/or denied boarding. ANY costs involving a name change to an airline ticket will be the responsibility of the traveler. VACAYA is not responsible if an airline delays a flight for any reason, including weather. If you are unable to make your departure, it is your responsibility to work with an alternate carrier to reach your destination. VACAYA is not responsible for any additional expenses you may incur prior to joining your Trip. VACAYA does not participate in, nor can we assist in any frequent flyer programs.
We welcome Guests with special needs. Guests who have any medical, physical, or other special needs should contact VACAYA within 60 days of departure to initiate additional assistance through us. Guest are also encouraged to contact the cruise line or resort directly as well. Guest should be aware that each country has its own standards of accessibility for persons with disabilities. Before you travel, visit travel.state.gov/destination and enter a country or area to find information for mobility-impaired travelers in the Special Laws & Circumstances Section. For flying with disabilities, we recommend calling the Transportation Security Administration’s (TSA) toll free helpline for travelers with disabilities and medical conditions: 855-787-2227, or check TSA’s website, TSA Cares. They can answer questions about screening policies, procedures, and the security checkpoints.
No pets or other animals, except for certain necessary service animals of a disabled Guest, are allowed onboard the ship/at the resort. Guests wishing to bring a service animal with them must notify Cruise Line/Resort directly at the time of booking to receive written approval. VACAYA has no part in obtaining service animal waivers as this is the sole responsibility of the Guest. VACAYA Vacation Planners will refer you directly to the Cruise Line/Resort.
VACAYA staff photographers and videographers (separate from cruise line/resort photographers/videographers) will be onboard and at the resorts to capture the spirit of the events for our future promotional and publicity purposes. You may encounter VACAYA staff photographers/videographers in two ways:
- VACAYA staff photographers/videographers (wearing name badges) may from time to time request that you be the main focus of a promotional photo or video shot. They will announce themselves and invite you into the shot. If you prefer not to be the focus of a promotional shot, please let them know at that time and they will immediately honor your request. Our photo shoots are very obvious and avoiding them (if you so choose) will be easily
- VACAYA staff photographers/videographers may inadvertently capture you in the background of a shot they are capturing for our promotional purposes. In this case, you may not be provided with individual notice nor will we seek your
By participating in a VACAYA vacation, you and all Guests traveling on your reservation grant and authorize VACAYA the right to capture, edit, alter, copy, exhibit, publish, distribute and make use of any and all pictures or video taken of you to be used in and/or for legally promotional materials including, but not limited to, newsletters, flyers, posters, brochures, advertisements, fundraising letters, annual reports, press kits, websites, social networking sites, and other print and digital communications, without payment or any other consideration. This authorization shall continue globally and into perpetuity. You understand and agree that these materials shall become the property of VACAYA and will not be returned. You hereby hold harmless, and release VACAYA from all liability, petitions, and causes of action which you, your heirs, representative, executors, administrators, or any other persons may make while acting on your behalf or on behalf of your estate.
YOUR TRAVEL AGENT
Travel agents and all other agents are declared to be solely your agents for the purposes of your travel arrangements with VACAYA and all further documents concerning the vacation or arrangements made by the agent for any related travel, lodging, shore excursions, and tours.
VACAYA shall not be responsible for any representation or conduct of your travel agent, including but not limited to, any failure to remit your deposit or other funds to VACAYA, for which you shall at all times remain liable to VACAYA, or any failure to remit a refund from VACAYA to you. Further, receipt by your travel agent of these travel arrangements, terms and conditions, or any other communications, notices, or information from VACAYA shall constitute receipt of such materials by you.
PROPER CONDUCT REQUIRED OF GUEST
All Guests will be required to agree to the Code of Conduct of the Cruise Supplier for their Trip and follow those guidelines to the best of their abilities. Guest understands that their participation in a Trip may be terminated at any time if Guest is disciplined by any civil or criminal authorities, our Suppliers, or if VACAYA, in its sole discretion, determines that Guest’s conduct or behavior is incompatible with the interests, safety, or welfare of other Guests, our Suppliers, their employees, or independent contractors.
VACAYA has zero tolerance for any non-consensual sexual contact, harassing of other Guests or Suppliers, or threatening behavior by its Guests. Termination for conduct violations will result in mandatory disembarkation from the ship/removal from the resort with no refund for any unused portion of the fare or other pre-purchased items including your excursions, pre/post accommodations, and return airfare. Guest is responsible for arranging and paying for their own substitute travel and accommodations, if necessary.
You shall not solicit other Guests for commercial purposes or advertise goods and services onboard the ship or at the resort without VACAYA’s prior written permission. Solicitation in any form will result in mandatory disembarkation from the ship/removal from the resort with no refund for any unused portion of the fare or other pre-purchased items including your excursions, pre/post accommodations, and return airfare.
LEGAL COMPLIANCE REQUIRED
All Guests must obey the local laws and regulations of the places they visit on their Trip, including their medicinal and/or recreational drug laws and restrictions regarding alcohol consumption. VACAYA is not liable or responsible for any damages, costs and/or added expenses incurred as a result of Guest’s failure to obey any local or federal laws. If Guest is detained, arrested, or otherwise held for failing to meet these requirements, Guest is responsible for arranging and paying for their own substitute travel and Accommodations, if necessary.
VACAYA is not responsible for the costs of any medical treatment you may require during a Trip and assumes no liability regarding provision of medical care or lack thereof that you may receive while on the Trip. YOU ARE RESPONSIBLE FOR RISKS ASSOCIATED WITH, AND COSTS, OF ANY AND ALL MEDICAL TREATMENTS AND EVACUATIONS YOU MAY
REQUIRE OR RECEIVE DURING YOUR TRIP. Guest releases VACAYA from any liability relating to any such medical care, whether secured by a Service provider on behalf of Guest, or otherwise, and agrees to be responsible for any and all expenses incurred for said medical care. Additionally, all ship physicians, nurses, and other medical personnel are independent contractors. VACAYA neither supervises nor controls the actions of these independent contractors, nor makes any representation, whether express or implied, as to their suitability. You agree that VACAYA assumes no responsibility, does not guarantee performance, and in no event shall be liable for any negligent or intentional acts or omissions, loss, damage, injury or delay to you and/or your property in connection with these services. These services are provided only as a convenience for you; use them at your own risk.
By booking a Trip, you acknowledge the inherent risk of possible exposure to certain illnesses that may exist in any public place where people are present. You voluntarily assume all risks related to exposure and agree not to hold VACAYA or any of VACAYA’s affiliates, directors, officers, employees, agents, contractors, or Suppliers liable for any illness, injury, or death.
Any notices required or permitted hereunder shall be given:
- If to VACAYA, via certified mail, return receipt requested, addressed to:
2020 PENNSYLVANIA AVE. NW SUITE 290
WASHINGTON, DC 20006
And via email to: email@example.com
- If to Guest, at the email or physical address provided by Guest during the registration process.
- Such notice shall be deemed given: upon personal delivery; if sent by electronic mail, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, three (3) days after the date of
SELLER OF TRAVEL REGISTRATION INFORMATION
VACAYA is registered with the California Department of Justice. CST# 2133954
Registration as a seller of travel does not constitute approval by the State of California. California law requires certain sellers of travel to have a trust account or bond to protect consumer’s money. VACAYA LLC has a bond in the amount of $10,000.00 with Suretec Insurance Company.
Florida CST# ST41322
Iowa CST# 1459
Hawaii CST# TAR-7310
Washington CST# 604-242-268
MARKETING MATERIALS AND ILLUSTRATIVE PHOTOS
VACAYA endeavors to illustrate the Services it offers using photographs or illustrations that provide a realistic representation of the Services. However, please note that photographs and illustrations appearing in descriptions are for illustrative purposes only. They are not contractual nor are they to be construed as guarantees of the conditions of the Services pictured at the time of your Trip.
LIMITATION OF LIABILITY
VACAYA is acting as intermediary or as an agent for Suppliers, airlines, cruise lines, hotels/resorts, transportation companies, sightseeing companies, restaurants, etc., in selling Services or in accepting reservations or bookings for Services which are not directly supplied by VACAYA. Furthermore, VACAYA cannot control the circumstances, causes, effects, mechanical failure, weather, strikes, bankruptcies, etc., of our Suppliers. It is absolutely clear in your acceptance of participation in this Trip that VACAYA cannot guarantee airlines, flight times, hotels, attractions, shows, restaurants, motor coach vendors, etc., and any unforeseen changes that might occur in the future. Therefore, IN NO EVENT SHALL VACAYA BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR ANY LOSS OF OPPORTUNITY OR OTHER PECUNIARY LOSS, EVEN IF VACAYA HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES OR LOSSES, WHETHER SUCH LIABILITY IS BASED UPON CONTRACT, TORT, NEGLIGENCE OR OTHER LEGAL THEORY. IN NO EVENT SHALL VACAYA’S TOTAL AGGREGATE LIABILITY TO THE GUEST FOR CLAIMS ARISING UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY THE GUEST TO VACAYA UNDER THIS AGREEMENT.
VACAYA OFFERS VARIOUS SERVICES PROVIDED BY THIRD PARTY VENDORS. VACAYA RETAINS NO OWNERSHIP INTEREST, MANAGEMENT, OR CONTROL OF THOSE THIRD PARTY VENDORS. TO THE FULLEST EXTENT PERMITTED BY LAW, VACAYA DOES NOT ASSUME LIABILITY FOR ANY ILLNESS, INJURY, DAMAGE, DEATH, LOSS, ACCIDENT OR DELAY DUE TO AN ACT OR OMISSION OF ANY THIRD PARTIES (INCLUDING THIRD PARTY VENDORS), GOVERNMENTAL AUTHORITY, OR ACTS ATTRIBUTABLE TO YOU YOURSELF, INCLUDING, WITHOUT LIMITATION, NEGLIGENT OR RECKLESS ACTS.
DISCLAIMER OF WARRANTIES
UNLESS OTHERWISE STATED, ALL GOODS AND SERVICES OFFERED BY VACAYA ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, VACAYA DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY FOR A PARTICULAR PURPOSE, TITLE, UNINTERRUPTED SERVICE, AND ANY WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE FOR ALL GOODS AND SERVICES SOLD BY/THROUGH VACAYA. Applicable law in your jurisdiction may not allow the exclusion of implied warranties, so the above exclusions may not apply to you.
VACAYA shall not be responsible for failure to perform any of its obligations under this Agreement during any period in which such performance is prevented or delayed due to Force Majeure. “Force Majeure” refers to any event beyond VACAYA’s reasonable control, including but not limited to severe weather, fire, flood, mudslides, earthquakes, war, labor disputes, strikes, political unrest, natural or nuclear disaster, epidemics, pandemics, World Health Organization’s advisories and/or alerts, Center for Disease Control’s advisories and/or alerts, U.S. State Department’s advisories and/or alerts, any order of any local, provincial or federal government authority, interruption of power Services, terrorism or any other causes beyond the control of VACAYA or deemed by VACAYA to constitute a danger to the safety and well-being of Guests. VACAYA reserves the right to cancel any Services described in an Itinerary due to Force Majeure.
INDEMNIFICATION AND RELEASE
Except as otherwise set forth herein, Guest hereby releases VACAYA from any and all liability, loss, expense, damages, or claims arising out of or resulting from Guest’s participation in a Trip, whether caused by the negligent or reckless conduct of Guest, a Supplier, a provider of Accommodations, another third party, or otherwise.
Guest hereby also agrees to indemnify, defend and hold harmless VACAYA from and against any and all damages, losses, claims, liabilities, deficiencies, costs, fees (including reasonable attorneys’ fees) and expenses, arising out of any claim brought against VACAYA regarding, resulting, or arising from Guest’s participation in a Trip or Guest’s performance of this Agreement.
RESOLUTION OF DISPUTES: Binding Arbitration, Governing Law, Jurisdiction, Venue, etc.
These Terms and Conditions and the relationship between you and VACAYA will be governed by the laws of Delaware without regard to its conflict of law provisions.
You and VACAYA shall attempt in good faith to resolve any dispute concerning, relating, or referring to a Trip, Services sold by us, VACAYA’s website, any literature or materials concerning VACAYA, and these Terms and Conditions or the breach, termination, enforcement, interpretation or validity thereof, (hereinafter a “Dispute”) through preliminary negotiations. If the Dispute is not resolved through good faith negotiation, all Disputes shall be resolved exclusively by binding arbitration held in Delaware and presided over by one (1) arbiter. The arbitration shall be administered by JAMS or a similar ADR organization pursuant to JAMS Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. The arbitrator’s decision shall be final and binding and judgment may be entered thereon. In the event a party fails to proceed with arbitration the other party is entitled of costs of suit including a reasonable attorney’s fee for having to compel arbitration. Nothing herein will be construed to prevent any party’s use of injunction, and/or any other prejudgment or provisional action or remedy. Any such action or remedy shall act as a waiver of the moving party’s right to compel arbitration of any dispute.
You and VACAYA agree to submit to the personal jurisdiction of the federal and state courts located in Delaware with respect to any legal proceedings that may arise in connection with, or relate to, our Binding Arbitration clause and/or a Dispute. The Client and VACAYA agree the exclusive venue for any and all legal proceedings that may arise in connection with, or relate to, our Binding Arbitration clause and/or a Dispute, shall be the federal and state courts located in Delaware, and to irrevocably submit to the jurisdiction of any such court in any such action, suit or proceeding and hereby agrees not to assert, by way of motion, as a defense or otherwise, in any such action, suit or proceeding, any claim that (i) he, she or it is not subject personally to the jurisdiction of such court, (ii) the venue is improper, or (iii) this agreement or the subject matter hereof may not be enforced in or by such court. YOU RECOGNIZE, BY AGREEING TO THESE TERMS AND CONDITIONS, YOU AND VACAYA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO THE CLAIMS COVERED BY THIS MANDATORY BINDING ARBITRATION PROVISION. You further agree that you will not file any complaints through any Better Business Bureau or similar organization prior to completing the Dispute resolution procedures described above (mandatory binding arbitration, etc.) Should you file a complaint through any Better Business Bureau or similar organization, this action will void any potential claim and/or any compensation reimbursements that may have previously been decided. In addition, you fully understand and agree that the defense of any complaint filed with the Better Business Bureau or similar organization will result in the defense of the contract with all costs being the responsibility of the Client as outlined above.
ATTORNEY’S FEES, COSTS, AND EXPENSES OF SUIT
If any act of law or equity, including any Arbitration Proceeding or an action for declaratory relief, is brought to enforce, interpret or construe the provisions of these Terms and Conditions, a Trip, or any literature or materials concerning VACAYA or your Trip, the prevailing party shall be entitled to recover actual reasonable attorney’s fees, costs, and expenses.
SEVERABILITY AND SURVIVABILITY
If any provision, or portion of a provision, in these Terms and Conditions shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions. Guest and VACAYA agree to substitute for such provision a valid provision which most closely approximates the intent and economic effect of such severed provision.
Notwithstanding any other provisions of this these Terms and Conditions, or any general legal principles to the contrary, any provision of these Terms and Conditions that imposes or contemplates continuing obligations on a party will survive the expiration or termination of these Terms and Conditions.
INUREMENT AND ASSIGNMENT
This Agreement shall ensure to the benefit of and be binding upon the parties hereto, and each of them, and their respective heirs, executors, administrators and assigns, though guest may not assign his rights or obligations hereunder without the prior written consent of VACAYA.
No delay or failure by either party to exercise or enforce at any time any right or provision hereof will be considered a waiver thereof of such party’s rights thereafter to exercise or enforce each and every right and provision hereof. No single waiver will constitute a continuing or subsequent waiver. VACAYA does not guarantee it will take action against all breaches of these Terms and Conditions. No waiver, modification, or amendment of any provision hereof will be effective unless it is in a writing signed by both the parties.
Upon acceptance of our Terms and Conditions, Guest agrees to be responsible for any error in the accuracy of information they provide us, and warrants that the Guest, after consideration and with an opportunity to consult legal counsel, shall be bound by these Terms and Conditions, including the limitations of liabilities and cancellation policies herein. This is a fully enforceable and legally binding agreement.