Vantage Gold Card | Terms of Use

Terms of Use

VANTAGE GOLD CARD^TM END USER SOFTWARE LICENSE AND WARRANTY AGREEMENT WITH RESPECT TO ANY USAGE, INCLUDING ANY DOWNLOAD FROM THE APPLE iTUNES APP STORE (”EULA”)

THIS AGREEMENT WAS LAST UPDATED ON MAY 31, 2009.

IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE PLACING YOUR ORDER FOR THE CARD, DOWNLOADING OR REMOVING CARD MEDIA OR USING THE VANTAGE HOSPITALITY INC. ("VANTAGE") VANTAGE GOLD CARD^TM. THIS LICENSE IS A LEGAL AGREEMENT BETWEEN YOU, THE USER, AND VANTAGE™ FOR THE SOFTWARE PRODUCT DESCRIBED HEREIN AS THE "CARD". VANTAGE™ IS WILLING TO LICENSE THE CARD TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE USING THE CARD (REFERENCED BELOW AS THE "USER") ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS EULA. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND VANTAGE™. BY INSTALLING, COPYING, LOADING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE CARD, YOU, THE USER, AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT DOWNLOAD OR INSTALL OR USE THE CARD.

1. DEFINITIONS. The Vantage Gold Card^TM consists of the downloaded computer software, Card media and related Card documentation for those components listed in the User's relative Apple Canada, Inc. ("Apple") App Store order form as tendered by the User on the Apple, "App Store" Web site, (the "Order") and any updates, supplements or enhancements provided by Vantage, including without limitation, the data and information contained therein and any part or parts and any version or versions thereof (severally and collectively the "Card", as the case may be). In most configurations the Card is a Licensed Application component obtained by the User from the "Apple Canada, Inc. iTunes Application Store", which is for use on an Apple iPhone, which is primarily used by one individual at a time. The Card is distributed and supported by the licensor, Vantage Hospitality Inc. ("Vantage"). Vantage so distributes and supports the Card under an agreement with Apple Canada, Inc. Vantage has created and Vantage or its Supplier, (as hereinafter defined) associate or affiliate is the owner of the Card. The Card is provided to you, the user, ("User") being the original Card licensee, subject to the terms and conditions of this EULA. Vantage has all rights and privileges necessary to make and perform this Agreement with the User.

2. LICENSE.

2.1 Card License - The Card is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Card is licensed, not sold, as a single product. Its component parts may not be separated for use on more than one iPhone.

2.2 Nature of License - In consideration of the payment(s) set out in the relative order, and the User's agreement to be bound by the terms and conditions hereof, Vantage grants the User a nonexclusive license to use the proprietary Card as downloaded, including without limitation, all parts and versions thereof, any enhancements, updates, supplements, add-on components, or Internet-based services components additionally or subsequently provided by Vantage to the User, subject to and in accordance with the terms, conditions and limitations of this EULA (and the terms and conditions of any other agreement applicable to any such part, version, enhancement, update, supplement, add-on component, or Internet-based services component). Vantage reserves the right to discontinue any Internet-based services provided to the User or made available to the User through the use of the Card. The User may access and use the Card on a single Apple iPhone device, unless the EULA expressly covers multiple use of the Card. The User may move the Card from one of the User's Apple iPhones to another that it controls, so long as the Card is not installed and usable on more than a single Apple iPhone, or more or other systems than as are expressly specified by the EULA. The User will enter into any agreement with any supplier of property, products and/or services ("Supplier") that Vantage may, acting reasonably, require in order to ensure that the Card and the use thereof by the User are properly established and constituted, including without limitation, any such agreement with Apple Canada, Inc.

2.3 Restriction on License - The User may not: (a) copy the printed documentation which accompanies the Card; (b) allow the use of all or any part of the Card by a third person or party, with or without compensation, unless express prior written permission is obtained from Vantage; (c) sublicense, rent, lease or lend the Card in whole or in part; (d) resell, or otherwise transfer for value, the Card in whole or in part; or, (e) use the Card or any part thereof in any manner not authorized by this EULA.

2.4 Supporting iPhone - To use the Card, the User must have a properly functioning Apple iPhone, as specified in the user documentation, upon which such supporting iPhone the Card will properly operate.

2.5 Acceptance of Conditions of Use - The User expressly agrees to comply with these terms and conditions of use.

2.6 Content Updates Ð Certain Card content is updated from time to time ("Updates"). The User may obtain Updates for any period for which the User has purchased a subscription for Updates for the Card (including any subscription included with the User's original license of the Card).

2.7 Enhancements Ð To use a product identified as an enhancement to the Card, the User first must be licensed for the Card identified by Vantage as eligible for the enhancement. After enhancement, the User may no longer use the product that formed the basis for the User's enhancement eligibility. An enhancement may require that the User enter into a new and separate agreement with Vantage, failing which this Agreement will apply to any such enhancement.

3. CONFIDENTIAL INFORMATION. The Card contains proprietary secrets, ideas, and techniques. The User may use such proprietary information or its direct product only as permitted herein. The User may not reverse engineer, decompile, unlock, disassemble, modify, translate or make any attempt to discover the source code of the software comprised in the Card or any part thereof; permit any other person or party to do so; or, disclose all or any part of such proprietary information to any person or party. Nothing herein will permit the User to prepare derivative works from the software comprised in the Card or any part thereof. Except as expressly provided in this Agreement, the User may not otherwise make copies of the Card.

4. INSTALLATION AND RELATED SERVICES. The User will obtain the Card by way of the download process provided at the Apple Canada, Inc., iTunes Application Store Website at www. . For the period from the date on which the User purchased or acquired this Card license up to the date on which it terminates or expires, as the case may be, Vantage will provide the following maintenance services: (a) correction of reproducible program errors to allow the Card to conform substantially with its user documentation; (b) correction of material errors in the user documentation; and, (c) enhancement updates to the most current version of the Card, provided that the User will pay any fee or charge when payable for any such enhancement update released on terms for which Vantage requires an additional license or other fee or charge. Vantage will not be obligated to provide maintenance services if the User declines to install any enhancements made available to the User at no extra cost, or if the User has modified the operating Card beyond Vantage specifications.

5. EXPIRY AND TERMINATION.

5.1 Term and Termination - The license to use the Card hereby granted to the User and the term of this Agreement will commence on the earliest of the dates when the User receives, installs, copies, downloads, accesses or otherwise uses the Card ("Commencement Date"), and will end and cease to be in force and effect on the date on which it terminates or expires as set out in the Order and this EULA, whichever is the sooner. For all purposes of this Agreement, the Commencement Date will be and be deemed to be the date on which Vantage in any manner delivers the Card to the User. This Agreement and the license hereby granted will terminate at the sole and absolute option of Vantage if the User fails to pay any fees or moneys specified in the EULA, or breaches any term or condition of this EULA, provided that this right of termination will be in addition to all other rights and remedies available to Vantage with respect to this Agreement.

5.2 Consequential Matters - Upon the expiry or any termination of this license, the User must remove and destroy all parts and versions of the Card from all Apple iPhone devices where it was installed. In no event will Vantage refund all or any part of the license fee paid for the Card.

6. TITLE AND COPYRIGHT.

6.1 Intellectual Property Rights Ð Vantage warrants to the User that Vantage has the right and authority necessary to license the Card as provided in this Agreement. All proprietary and intellectual property rights, property, title and interests, including without limitation, copyright in and to the original and all copies of the Card and the related materials and documentation, and any changes or modifications made to the Card or related materials or documentation will be and remain that of Vantage and/or its Supplier, as the case may be. Title to and property in the Card, including without limitation, originals, copies, translations, compilations, partial copies and versions, if any, will not pass to the User. The User will not obliterate, alter or remove any copyright, intellectual property or other proprietary notice from the Card. Vantage expressly reserves all rights not expressly granted to the User by virtue of this License Agreement.

6.2 Trademarks - This Agreement does not grant the User any rights in connection with any trademarks or service marks of Vantage or its Supplier.

7. CHARGES AND PAYMENTS.

7.1 Card License Fee - The fees, charges and payments applicable to the use of the Card or any part thereof by the User are set out in the Order. Unless otherwise indicated, Apple will invoice the User for the initial license fee upon delivery of the Card to the User, and then invoice the User for each subsequent annual license fee on the first day of each and every month thereafter on a recurring basis during the currency of this Agreement, and the User will pay each and every such invoiced amount to Apple immediately upon such delivery or subsequent billing. All moneys payable hereunder are payable in immediately available United States funds.

7.2. If this Agreement applies to a non-revenue part or version of the Card, for which no such fees, charges or payments are applicable, the User expressly agrees that all terms and conditions hereof will apply to the Card and the User's use thereof mutatis mutandis.

7.3 Taxes and Other Charges - The User will pay all applicable sales, use, withholding and excise taxes, and any other assessments against the User in the nature of taxes, duties or charges however designated, on the Card or its license or use, under or resulting from this Agreement, exclusive of taxes based upon the net income of Vantage.

8. LIMITED WARRANTY.

8.1 The Card - The User assumes all responsibility for the selection of the Card and/or any part thereof to achieve the User's intended results, and for the installation of, use of, and results obtained from the Card. Vantage warrants that the Card will perform substantially in accordance with the functional specifications set out in the user documentation for the period from the date on which the User purchased this Card license up to the date on which it terminates or expires, as the case may be. Vantage's sole obligation and liability hereunder will be to use reasonable efforts to remedy any such functional nonconformance which is reported to Vantage in writing by the User within the warranty period. In the event Vantage cannot remedy such non-conformance, using reasonable efforts, Vantage will, in its sole and absolute discretion refund to the User the then current license fee and this Agreement will be automatically terminated.

8.2 The Media Ð Vantage warrants that the Card media will be free from defects in material and that the information contained on it will be readable by a properly functioning Apple iPhone device, configured with the necessary hardware and Card as specified by the Card documentation. This warranty will extend from the date on which the User purchased this Card license up to the date on which it terminates or expires, as the case may be. This warranty is voided if in the sole and absolute opinion of Vantage the Card media has been subjected to improper or abnormal use or has been altered or modified.

8.3 The Conduct of the User and the Owner or Operator of a Venue or establishment - Vantage and Vantage's Affiliates, successors or assigns (including Apple as the said Third Party) will not be liable to the User for any malfunction, unavailability or failure of, or delay in processing through the World Wide Web, direct connection or other devices or associated equipment operated by Vantage or others, or for the use or misuse of any Card or Cards by the User or any other user or users of the Card or any other person or person, or any guest or guests of the User or any other person or persons, or by any act or omission of any such person or persons, including without limitation, the conduct or behavior of any such person or persons in, at or with respect to any one or more venues or establishments or with respect to any person or property whatsoever, including without limitation any injury or death. The User hereby expressly acknowledges and agrees that the User uses the Card at any venue or establishment at the User's own risk and responsibility and that in so doing, the User will always be subject to the terms, conditions, rules and regulations imposed by the owner or operator of the venue or establishment, as the case may be, including without limitation, the imposition of periodic PIN number for such usage.

8.4 Limitation of Liability. IN NO EVENT WILL VANTAGE (INCLUDING APPLE AS THE THIRD PARTY). OUR AFFILIATES, SUCCESSORS OR ASSIGNS BE RESPONSIBLE OR LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECULATIVE, CONSEQUENTIAL SPECIAL PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, FRAUD, OR OTHERWISE, OR STATUTES, REGULATIONS, OR ANY OTHER THEORY) HOWSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF SUCH POTENTIAL DAMAGES. NEITHER YOU NOR WE WILL BE RESPONSIBLE TO THE OTHER FOR DAMAGES ARISING FROM DELAYS OR PROBLEMS CAUSED BY TELECOMMUNICATIONS CARRIERS OR THE WORLD WIDE WEB.

9. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY.

9.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES - TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET OUT IN SECTIONS 6 AND 8 HEREOF ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, AND THERE ARE NO OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED BY LAW (IN CONTRACT OR IN TORT) OR CUSTOM INCLUDING, WITHOUT LIMITATION, THOSE REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CORRESPONDENCE TO SAMPLE, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, DESIGN, CONDITION, OR QUALITY. WITHOUT LIMITING THE ABOVE, VANTAGE DOES NOT WARRANT THAT THE OPERATION OF THE CARD WILL BE FREE FROM INTERRUPTION OR ERRORS WHICH DO NOT ADVERSELY IMPACT THE CARD'S WRITTEN WARRANTED FUNCTIONALITY. THE WARRANTIES CONTAINED HEREIN ARE VOID IF FAILURE OF THE CARD HAS RESULTED FROM ACCIDENT, ABUSE, MISAPPLICATION, OR OTHER EXTERNAL CAUSE BY ANY PARTY OTHER THAN VANTAGE. THIS LIMITED WARRANTY GIVES THE USER SPECIFIC LEGAL RIGHTS. THE USER MAY HAVE OTHERS, WHICH VARY FROM PROVINCE/STATE/COUNTRY JURISDICTION TO PROVINCE/STATE/ COUNTRY JURISDICTION.

9.2 NO INDIRECT DAMAGES - TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET OUT HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL VANTAGE OR ITS LICENSORS BE LIABLE TO THE USER OR TO ANY OTHER PARTY FOR INDIRECT DAMAGES OR LOSSES (IN CONTRACT OR TORT) IN CONNECTION WITH THE CARD, SERVICES OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, DATA OR SAVINGS, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, EVEN IF CAUSED BY VANTAGE'S NEGLIGENCE AND EVEN IF VANTAGE HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. AS CERTAIN PROVINCES/ STATES/COUNTRY JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INDIRECT DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO THE USER.

9.3 LIMITS ON LIABILITY - IF FOR ANY REASON, VANTAGE BECOMES LIABLE TO THE USER OR ANY OTHER PARTY FOR ANY DIRECT OR OTHER DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (IN CONTRACT OR IN TORT), INCURRED IN CONNECTION WITH THIS AGREEMENT OR THE CARD OR SERVICES, THE AGGREGATE LIABILITY OF VANTAGE FOR ALL DAMAGES, INJURY, AND LIABILITY INCURRED BY THE USER AND ALL OTHER PARTIES IN CONNECTION WITH THE CARD OR SERVICES, WILL BE LIMITED TO THE LESSER OF AN AMOUNT EQUAL TO THE CHARGES AND FEES PAID TO VANTAGE FOR THE CARD OR SERVICES WHICH GAVE RISE TO THE CLAIM THEREFOR, OR TWO HUNDRED ($200.00) DOLLARS OF LAWFUL MONEY OF THE UNITED STATES OF AMERICA.

9.4 SEPARATE ENFORCEABILITY - SECTIONS 9.1, 9.2, 9.3 AND 9.4 ARE TO BE CONSTRUED AS SEPARATE PROVISIONS WILL EACH BE INDIVIDUALLY ENFORCEABLE. THEY WILL APPLY REGARDLESS OF WHETHER THE USER ACCEPTS THE CARD.

10. GENERAL.

10.1 Complete Agreement Ð This EULA also includes the Order and the Apple "Licensed Application End User License Agreement" (as set out in the "iTunes Store Terms and Conditions") (the "Apple Terms") constitutes the complete and exclusive statement of the agreement between Vantage and the User, and supersedes all oral or written proposals or representations, and prior or contemporaneous communications or agreements, between the Parties concerning the subject matter of this EULA. The terms and conditions of this EULA will be read together with the terms and conditions of the Order and Apple Terms, and in the event of any inconsistency between the EULA and the Apple Terms, the latter will prevail and govern.

10.2 Force Majeure - Dates or times by which either Party is required to perform under this Agreement, excepting the payment of any fees or charges due hereunder, will be postponed automatically to the extent that any Party is prevented from meeting them by causes beyond its reasonable control. This subsection 10.2 will not apply to any obligation of the User to pay money to Vantage by virtue of this Agreement or the EULA.

10.4 Status of Parties - This Agreement does not establish a partnership or joint venture between Vantage and the User and does not confer upon the User any right to incur any liability or obligation on behalf of or binding upon Vantage

10.5 Notices - All notices and requests in connection with this Agreement will be given or made upon the respective Parties in writing and will be deemed given as of the third (3rd) day following the day the notice is faxed, providing a hard copy acknowledgement of such successful faxed notice transmission is retained. Notice may also be deposited in the United States Postal Service or Canada Post Corporation mail, postage pre-paid, certified or registered, return receipt requested and addressed to the other Party at the address set out on the face hereof.

10.5 Governing Law - This Agreement and performance hereunder will be governed by the laws of the Province of Ontario and the laws of Canada applicable therein.

10.6 Non-Assignable - This Agreement is not assignable by the User unless express prior written permission is obtained from Vantage. Any assignment without such permission will be void.

10.7 Survival - Sections 3, 6.1, 6.2, 9.1, 9.2, 9.3, 9.4, and 10.3 of this Agreement will survive any termination and the expiry of the Agreement.

10.8 U.S. Government Restricted Rights Ð RESTRICTED RIGHTS LEGEND - The Card software and documentation are provided with restricted rights. The Card is commercial in nature. The Card software and documentation are "Commercial Items" as that term is defined in 48 C.F.R. Vantage Hospitality Inc. and/or its Supplier are the manufacturer and owner of the Card, and Vantage has its registered office at 1500-One Lombard Place, Winnipeg, Manitoba, Canada, R3B 0X3. Apple Canada, Inc. is the distributor of the Card on behalf of Vantage under license and has its registered office at . Vantage Hospitality Inc. is the licensor of the Card and has its executive office at 404-250 McDermot Avenue, Winnipeg, Manitoba, Canada, R3B 0S5.

10.9 Export Restrictions - The User will not, either directly or indirectly, export or re-export the Card to any country, person, entity or end user subject to Canadian or U.S. export restrictions. The User specifically agrees not to export or re-export the Card; (a) to any country to which Canada or the U.S. has embargoed or restricted the export of goods or services, which, as regards the U.S., currently include, but are not necessarily limited to those entities on the Denied Parties List and other lists promulgated by the United States Federal Government, or to any national of any such country, wherever located, who intends to transmit or transport the Card back to such country; (b) to any end user who the User knows or has reason to know will utilize the Card or a portion thereof in the design, development or production of nuclear, chemical or biological weapons; or, (c) to any end user who has been prohibited from participating in U.S. or Canadian export transactions by any federal agency of the Canadian or U.S. Government.

10.10 Severable - If any one or more of the provisions contained in this EULA should be invalid, illegal or unenforceable in any respect in any jurisdiction, the validity, legality and enforceability of such provision will not in any way be affected or impaired thereby in any other jurisdiction and the validity, legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.

10.11 Enurement - The benefits and obligations of this EULA will enure to the benefit of and be binding upon the Parties hereto and their respective heirs, executors, administrators, successors and legal representatives, and the assigns of Vantage, and the permitted assigns of the User. Apple, and Apple's subsidiaries, are third party beneficiaries under this EULA, and Apple will have the right to enforce this EULA against the User in that capacity.

Vantage Gold Card™, and Vantage Hospitality are Trademarks of Vantage Hospitality Inc.