Last modified: April 04, 2016
1.1 “Party” or “Parties” means you and Vivaster, either singularly or jointly;
1.3 “Service” means any kind of touristic services, such as sightseeing tours, leisure activities, all related properties, accommodations, other lodgings, transportation or travel services and any other service offered by Suppliers and listed on the Website;
1.4 “Supplier” means an individual or a company (a physical or a legal person) that has made his Services available for booking on the Website;
1.5 “Terms and Conditions” means these general terms and conditions;
1.6 “Vivaster” means Vivaster Limited, a limited liability company registered in the Republic of Ireland, company number 537671, with its registered address at Blair House, Upper O’Connell Street, Ennis, Co. Clare, Republic of Ireland;
1.7 “Website” means the www.vivaster.com website and/or any other platform that Vivaster shall make available for advertisement of the Services.
2Scope and Application
2.1 Vivaster through the Website provides you with an online platform to make bookings and reservations for the advertised Services and Vivaster will only be responsible for its obligations related to such advertising, as contained and described in the following Terms and Conditions. Vivaster makes available an online platform for you to meet online with the Suppliers and arrange for bookings of Services directly with them. To this extent, Vivaster is not an owner or operator of the Services, including, but not limited to, all related properties, accommodations, other lodgings or services, nor is it a provider of such Services.
2.2 Vivaster is not responsible for any and all information and representations related to the Services that are present on the Website, which are provided by the Suppliers and for which only the Suppliers are responsible and bear liability. As such, the Suppliers are given access to an extranet through which they are fully responsible for updating all rates, availability and other information that is displayed on the Website. Vivaster cannot guarantee that all information and representations are accurate, complete or correct, nor can Vivaster be held responsible for any errors (including manifest and typographical errors), any interruptions (whether due to any temporary and/or partial breakdown, repair, upgrade or maintenance of the Website or otherwise), inaccurate, misleading or untrue information or representations or non-delivery of information. Each Supplier remains responsible at all times for the accuracy, completeness and correctness of the information displayed on the Website.
2.3 The Website does not constitute and should not be regarded as a recommendation or endorsement of the quality, service level, qualification or rating of any Service made available. The Services listing posted on the Website do not constitute an offer of the Services by Vivaster and therefore Vivaster shall not be bound by your booking or use of the Services.
2.4 Vivaster’s responsibilities are limited to: (i) facilitating the availability of the Services through the Website and (ii) serving as the limited payment collection agent of each Supplier for the purpose of accepting payments from you on behalf of the Supplier.
2.5 These Terms and Conditions apply to all the Services directly or indirectly advertised by Vivaster on Website. BY BROWSING AND MAKING ANY KIND OF USE OF THE WEBSITE, INCLUDING REGISTERING YOUR ACCOUNT OR MAKING A BOOKING OF A SUPPLIER’S SERVICE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE TO HAVE READ, UNDERSTOOD AND AGREED TO COMPLY WITH, AND BE LEGALLY BOUND BY, THESE TERMS AND CONDITIONS, WHICH APPLY TO YOU AND REGULATE ANY AND ALL RELATIONSHIPS BETWEEN YOU AND VIVASTER. By browsing and making any kind of use of the Website you also agree to make a personal and lawful use of the Website, according to these Terms and Conditions. You undertake not to re-sell, deep-link, use, copy, monitor (e.g. spider, scrape), display, download or reproduce any content or information, software, products or services available on the Website for any commercial or competitive activity or purpose.
2.6 Any misuse of the Website and any use of it not in conformity with these Terms and Conditions will give Vivaster the right to cancel your existing account or to prevent you from registering on the Website and creating your account, and will expose you to civil penalties.
3.1 You shall not make an unlawful use of the Website or any other use that is not in conformity with these Terms and Conditions, including: (i) violate any communal, cantonal, federal (local, state, provincial, national), or other law or regulation, or any order of a court, including, without limitation, tax regulations; (ii) use manual or automated software, devices, scripts, robots or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Website; (iii) use the Website other than for your personal, non-commercial use; (iv) infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights; (v) damage the Website in any manner whatsoever and by any means; (vi) collect, store and make unauthorized use of information about any other member of the Website without express authorization by that member or Vivaster; (vii) register for more than one account or register for an account on behalf of an individual other than yourself; (viii) recruit or otherwise solicit any Supplier to join third-party services or websites that are competitive to Vivaster and the Website; and (ix) advocate, encourage, or assist any third party in doing any of the foregoing.
3.2 Vivaster reserves the right, at its sole discretion, to modify the Website or to modify these Terms and Conditions, at any time and without prior notice. In case Vivaster will modify these Terms and Conditions, Vivaster will post an appropriate notice on the Website and/or will notify you via your account. By continuing to access or use the Website after a modification of the Website or of the Terms and Conditions has taken place, you agree to the modified Website and Terms and Conditions.
4Account Registration, Suspension, Deactivation and Cancellation
4.1 In order to be able to use all the features of the Website, including the booking and payment functions, you may register to create your own account on the Website. After Vivaster receives all the information that it requests from you through the Website, either at time of registration or at the time of the booking of a Service Vivaster will provide you with access to your personal account, through which you will be able to take advantage of the booking platform for the Services.
4.2 You expressly agree to provide Vivaster with accurate, current and complete information during the registration process and to update such information and to keep it accurate, current and complete for the purposes of using the Website.
4.4 Vivaster reserves the right to limit, suspend, deactivate or cancel your account, at its sole discretion and without liability to you, with or without cause, with or without prior notice and at any time. If such discretion is used by Vivaster, without prior notice or explanation to you your Website account can be deactivated or suspended, your password can be disabled, and you may not be able to access the Website and any and all of the related services.
4.5 You may cancel or deactivate your account at any time via the specific feature of the Website or by sending an email to email@example.com. Please note that if your account is cancelled, we do not have an obligation to delete or return to you any content you have posted to the Website, including, but not limited to, any reviews or feedback.
5Bookings and Financial Terms
5.1 Vivaster, through the Website, provides you and Suppliers with an online platform to make bookings and reservations for the advertised Services.
5.2 If the chosen Service is listed as a “free sale” Service, after the booking and the payment are made, Vivaster will send you a confirmation, confirming your booking of Service with the Supplier. You shall give this booking confirmation to the Supplier in order to enjoy the purchased Service. If the chosen Service is listed as a “confirmation required” Service, Vivaster will send you the booking confirmation only after the payment for the Service is made and the Supplier confirmed the booking. The description of the Service on the Website will provide information about how much time the Provider has to confirm the booking.
5.3 You shall pay Vivaster, as payment collection agent for the relevant Supplier, the price of the Service for any booking requested in connection with your Vivaster account at the time of the booking. Depending on the terms of the Service you choose to book, at the time of the booking you may either be requested to pay the full price of the Service in advance or a portion of the Service price, with the balance of the Service price to be collected by the Supplier on the date when the Service is rendered. For certain Services you yourself may be given an opportunity to choose one of these two payment methods. The Suppliers, not Vivaster, are solely responsible for making available any Services reserved through the Website. By booking a Service, you agree and acknowledge that you are entering into an agreement with the Supplier, which is governed by terms, conditions, rules and restrictions associated with such Service and negotiated between you and the Supplier.
5.4 You acknowledge and agree that you, and not Vivaster, will be responsible for performing the obligations of any such agreements with the Supplier, that Vivaster is not a party to such agreements, and that, with the exception of Vivaster’s role in transferring your payment for Supplier’s Service to the Supplier, where applicable, Vivaster disclaims all liability arising from or related to any such agreements, for which you and the Suppliers will be the only liable parties.
5.5 You acknowledge and agree that, notwithstanding the fact that Vivaster is not a party to the agreement between you and the Supplier, Vivaster acts as the Supplier’s payment collection agent for the limited purpose of accepting payment of the Service price from you on behalf of the Supplier, either in full or in part. At the time when you make a booking of a Service through the Website you shall pay the agreed price for such Service to Vivaster and Vivaster shall process such payment through a payment mechanism and the processing company chosen at its own discretion. Should the relevant Supplier decline to confirm the booking after the payment for the Service is made, the booking will be automatically cancelled and Vivaster will refund the related paid amount to you.
5.6 In order to establish a booking pending the applicable Supplier’s confirmation of your requested booking, you understand and agree that Vivaster (also through a payment mechanism and the processing company chosen at its own discretion), on behalf of the Supplier, reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the price of the Services or (ii) charge your credit card a nominal amount, in the currency in which you are transacting, to verify your credit card. Vivaster will then collect either the full Service price or a portion thereof, depending on the terms of a given Service. You hereby authorize Vivaster to collect the said amounts by charging the credit card you provided as part of your requesting the booking, either directly by Vivaster or indirectly, via a third-party online payment processor or by any other payment method chosen by Vivaster.
5.7 You acknowledge and agree that any and all communication in connection to the Services and to the bookings between you, VIVAster and the Suppliers, will be made through the Website, to the extent possible. Vivaster shall disclose Suppliers’ identity only after a booking is made and you have paid the related amount.
5.8 You acknowledge and agree that, notwithstanding the fact that the Services’ prices as listed on the Website may appear in different currencies, only a limited number of currencies are available for the payment and any such currency may not include the default currency in any given geographic location. You will be charged the amount and the currency indicated as the relevant amount/currency for a given Service.
5.9 Any amounts indicated in Swiss francs are reference prices, which are based on a daily exchange rate. The actual price to be paid in Swiss francs depends on the daily exchange rate set by the credit card issuer and/or possible bank charges, which may arise in connection with the currency conversion from the relevant foreign currency to Swiss Francs. Accordingly, you acknowledge and agree that the currency converter provided by the Website is for your reference only and it is not intended to calculate the exact price of the Services, the final amount of which may change in connection with currencies’ fluctuation and the conversion rate applied by the relevant payment processing company for the relevant currency. You further acknowledge and agree that Vivaster is not responsible for the currency calculation and it shall not be liable for any difference there might be between the Services’ prices listed on the Website and the final price actually charged on your account.
6.1 If you cancel a booking before confirmation by the Supplier, Vivaster will cancel any pre-authorization or will refund any amount charged on your credit card, in connection to the cancelled booking, within a commercially reasonable amount of time. For any cancellation you will make after a booking has been confirmed by the Supplier, including those for “free sale” Services, the Supplier’s cancellation policy will apply and Vivaster will abide to such cancellation policy with regard to refunds. Such Suppliers’ cancellation policy will be freely accessible on the Website for each Service listed therein.
6.2 If a confirmed booking is cancelled by the Supplier and if the payment has not been transferred to the Supplier yet, Vivaster will cancel any pre-authorization or will refund any amount charged on your credit card in connection to the cancelled booking, within a commercially reasonable amount of time. If the Supplier cancels a confirmed booking after Vivaster transferred the payment to the Supplier, Vivaster will reimburse you for the price of the cancelled booking within a commercially reasonable amount of time after the Supplier refunds the amount in question to Vivaster.
7Limitation of Liabilities
7.1 If you use the Website you do so at your sole risk. You acknowledge and agree that Vivaster does not have an obligation to conduct background checks on any member, including, but not limited to, any Supplier, but may conduct such background checks at its sole discretion. The Website, and any of its contents, are provided “as is”, without warranty of any kind, either express or implied. Without limiting the foregoing, Vivaster explicitly disclaims any warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement, and any warranties arising out of course of dealing or usage of trade and in any way related to the Services listed on the Website. Vivaster makes no warranty that the Website, including, but not limited to, the Services’ listings, will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Vivaster makes no warranty regarding the quality of any Service, listing and content or the accuracy, timeliness, truthfulness, completeness or reliability of any content obtained through the Website. You acknowledge and agree that Vivaster does not bear any liability for the Suppliers' or its other associates’ acts or omissions.
7.2 You are solely responsible for all of your communications and interactions with other users of the Website and with other persons with whom you communicate or interact as a result of your use of the Website. You expressly acknowledge that Vivaster will not verify, review or make any assessment whatsoever of the statements conveyed through the Website to you, or by you, by/to any Supplier, member or third party and that, to this extent, Vivaster disclaims any and all liability in connection with such statements and their content.
7.3 You acknowledge and agree that, to the maximum extent permitted by law, Vivaster disclaims any and all liability arising out of your use of the Website. Neither Vivaster nor any other party involved in the creation, production, or operation of the Website will be liable for any indirect, incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress, whether in contract or in tort or any other legal theory, arising out of or in connection with these Terms and Conditions, from the use of or inability to use the Website, from any communications or interactions with Suppliers or other users of the Website or third parties with whom you communicate or interact as a result of your use of the Website.
7.4 You acknowledge and agree that any and all liabilities borne by Vivaster according to these Terms and Conditions due to an attributable shortcoming of Vivaster’s obligations in respect to the Website, will not be more in value than the aggregate cost of your booking as set out in the confirmation email.
8Reviews and Comments
8.1 The Website may contain review services or other areas in which you or third parties may post, upload and store reviews of travel experiences, messages, materials or other content on the Website (“Comments Areas”). If Vivaster provides such Comments Areas, you are solely responsible for your use of such Comments Areas and use them at your own risk. By using any Comments Areas, you expressly agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Website any of the following:
8.1.1 any message, data, information, text, music, sound, photos, graphics, code or any other material (“Content”) that is unlawful, libelous, defamatory, obscene, pornographic, indecent, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
8.1.2 Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of Vivaster and any third party, or that would otherwise create liability or violate any local, state, national or international law;
8.1.3 Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of Vivaster and any third party;
8.1.4 Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, including Vivaster;
8.1.5 unsolicited promotions, political campaigning, advertising, contests, raffles, or solicitations;
8.1.6 personal information of any third party, including, without limitation, surname (family name) addresses, phone numbers, email addresses, social security numbers and credit card numbers;
8.1.7 viruses, corrupted data or other harmful, disruptive or destructive files;
8.1.8 Content that is unrelated to the topic of the Comments Area(s) in which such Content is posted; or
8.1.9 Content or links to content that, in the sole judgment of Vivaster, (a) violates the previous subsections herein, (b) is objectionable, (c) which restricts or inhibits any other person from using or enjoying the Comments Areas or the Website, or (d) which may expose Vivaster or its affiliates or its users to any harm or liability of any type.
8.2 You expressly warrant to Vivaster that by uploading, posting or storing the Content on the Website, you are not infringing any third party’s intellectual property right and that you were granted the licence and/or permission to post, upload or store such third-party Content on the Website.
8.3 Vivaster is not liable for any statements, representations or Content provided by its users in any public forum, personal home page or other Comments Area. In particular, Vivaster bears no responsibility and assumes no liability for any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is Vivaster liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter.
8.4 Vivaster reserves the right, and has absolute discretion, to remove, screen, translate or edit without notice any Content posted or stored on the Website at any time and for any reason, or to have such actions performed by third parties on its behalf, and you are solely responsible for creating backup copies of and replacing any Content you post or store on the Website at your sole cost and expense.
9Third Party Websites
9.1 This Website may, from time to time, contain links to and from the websites of Vivaster’s partner networks, advertisers and affiliates. If you follow a link to any of these websites, please note that these websites have their own privacy policies and that Vivaster does not accept any responsibility or liability in relation to their policies and the use they make of your personal information.
10.1 You agree to release, defend, indemnify, and hold Vivaster and its affiliates, subsidiaries and assignees, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (a) your access to or use of the Website; (b) any violations of these Terms and Conditions; (c) the content you upload to the Website, including instances when such content violates other persons’ intellectual property rights; (d) your interaction with any other person or entity that will use the Website or your booking of a Service; and (e) the purchase and any use of a Service by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a booking and purchase of a Service.
11.1 Unless stated otherwise, the software required for our services or available at or used by the Website and the intellectual property rights (including the copyrights and the trade marks) of the contents and information of and material on the Website are owned by Vivaster, the Suppliers or other providers.
11.2 Vivaster exclusively retains ownership of all rights, titles and interest in and to all intellectual property rights of the Website, including its contents (e.g. including the Customers’ reviews and translated Content), its look and feel and infrastructure. You are therefore not entitled to copy, scrape, (hyper-/deep)link to, publish, promote, market, integrate, utilize, combine or otherwise use the content (including any translations thereof and the guest reviews) of the Website or Vivaster’s brand without Vivaster’s express written permission.
11.3 To the extent that you would (wholly or partly) own any intellectual property rights in the Website or any (translated) content or guest reviews, you hereby assign, transfer and set over all such intellectual property rights to Vivaster.
12No Agency or Partnership
12.1 The Parties agree that the relationship between you and Vivaster and between Vivaster and the Suppliers is that of principal to principal and no agency or partnership shall be directly or indirectly established as a result of these Terms and Conditions or under any other agreement that you or Vivaster shall agree upon with the Suppliers. To this extent, except as otherwise expressly agreed, you acknowledge and agree that you, Vivaster and the Suppliers shall not, and do not, act, directly or by implication, as an agent of the others or in any manner assume or create, or attempt to assume or create, any obligation on behalf of, or in the name of the others, except as provided for in Article 5.5 above.
13.1 These Terms and Conditions constitute the entire and exclusive understanding and agreement between Vivaster and you regarding the use of the Website and any booking of Services made via the Website, and these Terms and Conditions supersede and replace any and all prior oral or written understandings or agreements between Vivaster and you regarding the same subject matter.
13.2 In the event of a dispute about the contents or interpretation of these Terms and Conditions or inconsistency or discrepancy between the English version and any other language version of these Terms and Conditions, the English language version shall apply, prevail and be conclusive.
13.3 If any provision of these Terms and Conditions is or becomes invalid, unenforceable or non-binding, you shall remain bound by all other provisions hereof. Such invalid provision shall be replaced by a provision with a similar effect as the invalid, unenforceable or non-binding provision, taking into account the contents and purpose of these Terms and Conditions.
13.4 No failure or delay on the part of Vivaster in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
13.5 Any purported modification to these Terms and Conditions shall have no effect unless expressly agreed upon in writing by Vivaster. You acknowledge and agree that Vivaster has the right to modify these Terms and Conditions at its sole discretion.
13.6 You may not assign or transfer these Terms and Conditions or any of your obligations or rights arising thereof, by operation of law or otherwise, without Vivaster’s prior written consent. Vivaster may assign or transfer these Terms and Conditions and any and all other relationships between you and Vivaster created in connection with your use of the Website, at its sole discretion and without restriction, to third parties. Subject to the foregoing, these Terms and Conditions will bind the successors and permitted assigns of the Parties.
13.7 The language throughout these Terms and Conditions will in all cases be construed as a whole according to its fair meaning and without implying a presumption that the terms hereof will be more strictly construed against one Party as opposed to the other by reason of the rule that a document is to be construed more strictly against the Party who has prepared the same. Except where the context requires otherwise, words denoting the singular include the plural and vice versa; words denoting any gender include all genders; words denoting persons include firms, companies, their successors and permitted assignees or transferees and vice versa.
14Applicable Law and Dispute Resolution
14.1 These Terms and Conditions will be governed by and construed in accordance with the substantive laws of Switzerland, without regard to its conflict-of-law provisions.
14.2 The Parties expressly agree that any dispute, claim or controversy arising out of or relating to these Terms and Conditions, including the breach, termination, enforcement, interpretation or validity thereof, shall be resolved exclusively by the courts of Zurich 1, Switzerland.