VACATIONED welcomes YOU! VACATIONED, LLC (“VACATIONED”), a Florida limited liability, is pleased to provide YOU with its services (the “Services”).
PLEASE READ THESE TERMS CAREFULLY BEFORE USING VACATIONED’S SERVICES. THESE TERMS GOVERN YOUR USE AND OUR PROVISION OF THE SERVICES, PARTICULARLY SECTIONS 9-10 (BINDING ARBITRATION AND JURY TRIAL AND CLASS ACTION WAIVER), WHICH AFFECT YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN THE PARTIES. BY USING THE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS.
1. CONTRACT BETWEEN YOU AND VACATIONED
This is a contract between YOU and VACATIONED, its agents, affiliates, service providers, successors, and assigns (collectively the “Parties”). YOU must read and agree to these terms (the “Agreement”) before using the Services. If YOU do not agree to these terms, YOU may not use the Services. The terms in this Agreement describe the limited basis on which the Service is made available to YOU and supersede prior agreements or arrangements.
2. VACATIONED’S DUTIES AND SERVICES
The Services consist of VACATIONED’S Consultation Service and a minimum one-year subscription to the Concierge Service.
The Consultation Service consists of providing YOU advice and assistance towards the resolution of YOUR vacation membership (“Membership”) issues and education regarding how to use and maximize YOUR Membership. VACATIONED’S duties with respect to the Consultation Service consist of (1) contacting YOU within 24 hours of YOU accepting this Agreement to schedule an initial consultation; (2) holding an initial consultation with YOU to discuss YOUR Membership and any issues YOU may have with YOUR Membership; (3) contacting YOUR resort developer to resolve any Membership issues discussed during the initial consultation; and (4) returning all customer calls and e-mails promptly.
The Concierge Service consists of providing YOU advice and assistance towards understanding and maximizing YOUR Membership. VACATIONED’s duties with respect to the Concierge Service consist of (1) contacting YOU within 24 hours of You accepting this Agreement to schedule an initial call; (2) holding an initial call with YOU to discuss YOUR Membership and vacation goals; (3) returning all customer calls and e-mails promptly; and (4) providing YOU recommendations on experiential vacations while maximizing YOUR Membership, including a curated experiential vacation itinerary.
By signing this Agreement, YOU expressly acknowledge and agree that VACATIONED does not offer legal services or legal advice. VACATIONED is not a law firm and does not provide any legal advice.
3. CUSTOMER’S DUTIES
YOUR duties consist of (1) providing VACATIONED accurate information regarding YOUR Membership; (2) remaining available for conference calls with VACATIONED regarding YOUR Membership; (3) executing a limited power of attorney authorizing VACATIONED to speak with the resort developer on YOUR behalf; and (4) paying VACATIONED’S Service Fee.
4. AGREEMENT TO PAY SERVICE FEE
The Service Fee (“Service Fee”) is $49.00 per month, which includes the cost of the Consultation Service and the annual subscription to the Concierge Service. The total Service Fee is $588. The Service Fee is paid each month and becomes immediately non-refundable as provided below in section 5 (right to cancel).
YOU authorize VACATIONED to automatically charge YOUR payment method(s) for the Service Fee. YOU also authorize VACATIONED to store YOUR payment method(s) and automatically charge that payment method(s) at the beginning of each month the $49.00 until YOU cancel.
If YOUR primary payment method fails, YOU authorize VACATIONED to charge any other payment method in YOUR account. If YOU have not provided VACATIONED a backup payment method(s) and YOU fail to provide payment, or if all payment methods in YOUR account fail, VACATIONED may suspend the Services.
5. RIGHT TO CANCEL THIS AGREEMENT
This Agreement is effective as of the date YOU accept the terms and any cancellation period begins on the date YOU sign. YOU may cancel the Service twelve (12) months after accepting these terms by contacting customer support at notice@vacationed-us.com. After any cancellation, YOU will continue to have access to the Services through the end of that month’s billing period.
There are no refunds or credits for partially used periods. At any time and for any reason, VACATIONED may provide a refund, discount, or other consideration to some or all our users (“credits”). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle YOU to credits in the future for similar instances, nor does it obligate VACATIONED to provide credits in the future under any circumstance.
6. CALL RECORDING
YOU agree that VACATIONED, its agents, representatives, affiliates, or anyone calling on its behalf may contact YOU on a recorded line.
7. TCPA CONSENT
YOU expressly consent and agree that VACATIONED may use written, electronic, or verbal means to contact YOU. This consent includes, but is not limited to, contact by manual calling methods, prerecorded, or artificial voice messages, text messages, emails, or automatic telephone dialing systems. YOU agree that vacation may use any e-mail addresses or any telephone numbers YOU provide now or in the future, including a number for a cellular phone or wireless device regardless of whether YOU incur charges as a result.
8. PRE-SUIT NOTICE
Prior to initiating any litigation or arbitration, YOU must send a notice of dispute to VACATIONED, notice@vacationed-us.com. VACATIONED will send its notice of dispute to YOU at the contact information VACATIONED has for YOU. YOU and VACATIONED will attempt to resolve a dispute through informal negotiation within sixty (60) days from the date the notice of dispute is sent. After that sixty (60) day period, YOU or VACATIONED may commence an arbitration proceeding.
9. BINDING ARBITRATION, CHOICE OF LAW, ATTORNEY’S FEES
YOU and VACATIONED agree to arbitrate all disputes—except any individual action brought in small claims court or YOUR state’s equivalent court unless such action is transferred, removed, or appealed to a different court—not resolved informally. The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., shall govern the interpretation and enforcement of this provision.
The dispute shall be resolved by binding arbitration before the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (“AAA Rules”) in effect at the time the arbitration is brought.
The arbitration hearing shall take place in Orlando, Florida. All fees and expenses of the arbitrator and administrative fees and expenses of the arbitration shall be paid by the Parties as provided by the AAA Rules governing the proceeding, or by specific ruling by the arbitrator or by Agreement of the Parties.
The Parties agree that this Agreement shall be interpreted in accordance with the laws of Florida, without regard to any choice of laws or principles.
The prevailing Party shall be entitled to all reasonable attorneys’ fees and costs and expenses of any litigation up through and including any appellate proceeding as determined by a court of competent jurisdiction.
10. BINDING JURY TRIAL AND CLASS ACTION WAIVER
EACH PARTY HERETO KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, CROSS-CLAIMS, COUNTER-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR BETWEEN THE PARTIES TO THIS AGREEMENT, THEIR AFFILIATES, SUBSIDIARIES, SUCCESSORS, OR ASSIGNS AND IRRESPECTIVE OF WHETHER SUCH LITIGATION ARISES OUT OF THIS AGREEMENT, BY STATUTE, OR AS A MATTER OF TORT LAW.
FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION.
11. DISCLAIMERS AND LIMITATION OF LIABILITY
VACATIONED’s liability under this Agreement is strictly limited to the amount paid, if any, by YOU during the three (3) month period prior to any cause of action arising. VACATIONED shall not be liable for indirect, incidental, special, consequential damages, including lost profits and property damage, or punitive damages even if VACATIONED were advised of the possibility of such damages, nor shall VACATIONED be held liable for delay or failure in performance resulting from causes beyond our reasonable control.
12. DOCUSIGN SYSTEM
VACATIONED has entered into an agreement with DocuSign to make the DocuSign electronic signing system available to facilitate YOUR receipt, review, and electronic signature of electronic Documents. YOUR use of the DocuSign system is subject to DocuSign’s Terms of Use available at www.docusign.com/company/terms-of-use. VACATIONED and DocuSign are not affiliated with each other. VACATIONED is not responsible for the DocuSign system, and VACATIONED disclaims any representations and all warranties regarding the DocuSign system. YOUR use of the DocuSign system is entirely YOUR choice and solely YOUR responsibility.
13. MERGER/INTEGRATION
This Agreement incorporates all the Terms of Use as if fully set forth herein. This Agreement and the Terms of Use supersede all prior discussions and Agreements among the Parties with respect to the subject matter of this Agreement and the transactions set forth in this Agreement and constitutes the sole and entire Agreement of the Parties with respect thereto. Any representation, inducement, promise, or Agreement, whether oral or written, among the Parties with respect to the transaction described herein that are not embodied herein shall be of no force and effect. The terms of this Agreement are contractual and not merely a recital.
14. SEVERABILITY
If any provision of this Agreement is held void, voidable, invalid, or unenforceable, that provision shall be considered omitted from this Agreement without affecting the validity or enforceability of the remainder of this Agreement.
15. INDEPENDENT REVIEW/ADVICE BINDING AGREEMENT
YOU are legally capable and authorized to sign this Agreement and are fully satisfied with its terms. By signing this Agreement, YOU acknowledge that YOU have had the opportunity to obtain independent legal advice. All terms of this Agreement become binding after YOU sign it, and no Service Fee amounts will be refunded except as specifically set forth herein.
16. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their responsive successors and assigns. YOU cannot assign YOUR rights under this Agreement without VACATIONED’s written consent, which VACATIONED may withhold. VACATIONED may assign this Agreement or all or any part of its rights and obligations hereunder to one or more Parties without the consent of the CUSTOMER.
17. WAIVER
No provision is waived by the failure of a party to enforce it. No waiver of any provisions of this Agreement shall be deemed or constitute a continuing waiver. No waiver shall be binding unless set forth in writing and signed by the Party making the waiver.
18. SURVIVAL
The provisions of this Agreement that by their nature should survive the termination of this Agreement shall survive such termination.
19. AMENDMENTS AND CORRECTIONS
VACATIONED may amend this Agreement. Any such amendment will be effective thirty (30) days following either our dispatch of a notice to YOU or our posting of the amendment on the Services. If YOU do not agree to any change to this Agreement, YOU must discontinue using the Services. Our CUSTOMER Service representatives are not authorized to modify any provision of this Agreement, either verbally or in writing. YOU give VACATIONED the right to correct any clerical or other non-material errors in this Agreement or related documents.