Terms and Conditions for User Generated Content - Auberge Resorts Collection

USER GENERATED CONTENT TERM & CONDITIONS

This User Generated Content Terms and Conditions Agreement (“Terms” or “UGC Agreement”) is between you (“user”, “you”) and Auberge Resorts LLC, including its affiliated companies within the Auberge Resorts collection of properties (“Auberge Resorts”, “we”, “our”, “us”), and governs our use of your User Generated Content, as defined below, that you post or share using third-party platforms or websites such as Instagram, Twitter, Facebook, LinkedIn, Pinterest, TikTok, Reddit, and others

 (“Third-Party Sites”) in which you tag or direct message Auberge Resorts, or which you upload directly to our website at aubergeresorts.com or any subdomain where these Terms are posted (“Auberge Resorts Sites”).  

By posting or sharing photos, text, graphics, audio, video, location information, comments and other materials (“User Generated Content” or “UGC”) on Third-Party Sites tagging or directly messaging Auberge Resorts, you are making a submission (“Submission”) to Auberge Resorts LLC and/or its affiliated properties, and you agree to the following Terms.

USER GENERATED CONTENT LICENSE
You retain any copyright or other intellectual property rights that you may have in your User Generated Content.  You hereby grant, and warrant and represent you have the right to grant,  to Auberge Resorts LLC and its related companies, agents, licensees, sublicensees, contractors, successors, legal representatives, assigns, and third-party service providers (collectively, the “Licensed Parties”) a worldwide, perpetual, irrevocable, royalty-free, fully-paid, non-exclusive, unrestricted, unconditional, unlimited, perpetual, cost-free, transferable, sublicensable right and license to use, copy, record, distribute, translate, modify, reproduce, disclose, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of  your User Generated Content (and derivative works thereof) in any manner to be determined in the Licensed Parties’ sole discretion, including but not limited to using, copying, recording, distributing, translating, reproducing, disclosing, sublicensing, publishing, exhibiting, reproducing, digitizing, modifying, adapting, creating derivative works from, publicly performing, publicly displaying, incorporating, and otherwise exploiting such User Generated Content in connection with the Auberge Resorts Sites for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any of the rights and license you grant in this User Agreement, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content. We reserve the right, in our sole discretion, to determine which User Generated Content to use. We may publish, review, modify or remove all or part of your User Generated Content at our sole discretion.

The Licensed Parties may assign or sublicense all or a portion of their rights under this agreement, including this license, without your prior consent or any payment to you.  You acknowledge and agree that: (a) the Licensed Parties have the right to arrange the posting of User Generated Content in any way in their sole discretion without your prior approval; (b) the Licensed Parties have no obligation to provide you with any credit or other attribution when using your User Generated Content, provided, however, if the Licensed Parties choose to provide you with credit, the size and placement of the credit shall be in their sole discretion; (c) any “moral rights” in your User Generated Content are waived; and (d) you are not entitled to any compensation or other payment from the Licensed Parties in connection with use of your User Generated Content. You agree that you will have no approval rights, no claim to compensation, no claim (including, without limitation, claims based upon breach of privacy, defamation or intellectual property infringement) against the Licensed Parties arising out of any use (in accordance with the terms hereof), blurring, alteration, editing, distortion, faulty reproduction, or use in any composite form of the User Generated Content.  

In connection with any use of your User Generated Content, you grant the Licensed Parties the right to use your username, real name, image, likeness, descriptions of you, location or other identifying information, including but not limited to your voice.

You acknowledge that by granting permission to use your User Generated Content it is deemed non-confidential and non-proprietary and will not be returned. Further, the Licensed Parties do not assume any obligation of any kind to you or any Third Party with respect to your User Generated Content, and the Licensed Parties have no obligation to maintain the confidentiality of any information contained in the User Generated Content, in whatever form, except pursuant to the Licensed Parties’ privacy policies which can be found here. If you do not agree to the collection, use and disclosure of your personal information in this way, you should use the hashtag #NoReuse in connection with any tag or direct message to Auberge Resorts, and you should refrain from otherwise providing the Licensed Parties with personal information.

 REPRESENTATION, WARRANTIES AND INDEMNIFICATION

You represent and warrant that:

(1) you are 18 years of age or older and you have the legal right and capacity to agree to these Terms;

(2) you are solely responsible for your User Generated Content;

(3) you own all rights in and to your User Generated Content and/or have obtained the appropriate rights and permissions from any and all other persons or entities who own, manage, or otherwise claim any rights with respect to such User Generated Content;

(4) the Licensed Parties’ use of your User Generated Content as described herein will not infringe upon, misappropriate or otherwise violate the rights of any other person or entity including, without limitation, copyright, trademark, patent, trade secret, privacy, publicity, moral, proprietary or other rights of any third party, or any applicable law, rule or regulation;

(5) the User Generated Content does not contain any content that is inappropriate, indecent, obscene, hateful, tortuous, defamatory, slanderous or libelous; unlawful, and/or is known by you to be false, inaccurate or misleading;

(6) the User Generated Content does not contain any advertising or other commercial content;

(7) you are responsible for all royalties, fees and other monies owed related to your User Generated Content; and

(8) you will adhere to the applicable terms and conditions of any Third-Party Sites where you have uploaded or posted your User Generated Content.

YOU HEREBY AGREE TO INDEMNIFY AND HOLD THE LICENSED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL THIRD-PARTY CLAIMS, ACTIONS OR PROCEEDINGS OF ANY KIND AND FROM ANY AND ALL DAMAGES, LIABILITIES, COSTS AND EXPENSES RELATING TO OR ARISING OUT OF ANY BREACH OR ALLEGED BREACH OF ANY OF THESE WARRANTIES AND REPRESENTATIONS.

Privacy Policy

The Licensed Parties will use any personal data they receive in connection with their use of the UGC in accordance with these Terms and the applicable Privacy Policy. You consent to their collection of any personal data you provide in your UGC. If you do not agree to the collection, use and disclosure of your personal information in this way, please do not provide the Licensed Parties with personal information or agree to these terms. You agree to such collection, use, disclosure, transfer and processing of your information in accordance with these Terms and the applicable Privacy Policy.

DELETION OF USER GENERATED CONTENT

To request removal of your User Generated Content, or if you have questions regarding these Terms or requests concerning your personal information, please contact us by email at privacy@aubergeresorts.com and inform us of the State or Country outside of the United States where you reside.

You may request that we remove your User Generated Content from the Auberge Resorts Sites and we will take commercially reasonable steps to delete your User Generated Content.  Notwithstanding the foregoing, you acknowledge that we may be unable to fully delete all of your User Generated Content, for example, we may be unable to remove User Generated Content that is posted to third party websites.  We reserve the right to retain copies of User Generated Content as necessary for legal or compliance purposes.

You acknowledge and agree that the Licensed Parties have no obligation to use your User Generated Content, or any portion thereof, and have the right (but not the obligation), in their sole discretion, to pre-screen, review and remove User Generated Content from the Auberge Resorts Sites.  You further understand and agree that, in their sole discretion, the Licensed Parties may remove any User Generated Content from the Auberge Resorts Sites at any time, for any reason, with or without notice to you.

AUBERGE RESORTS’ INTELLECTUAL PROPERTY RIGHTS

THE AUBERGE RESORTS SITES MAY BE PROTECTED BY COPYRIGHT, TRADEMARK, AND OTHER INTELLECTUAL PROPERTY LAWS.  YOU ACKNOWLEDGE AND AGREE THAT BY AUTHORIZING USE OF YOUR USER GENERATED CONTENT YOU DO NOT ACQUIRE ANY OWNERSHIP OR OTHER RIGHTS IN INTELLECTUAL PROPERTY OR OTHER PROPRIETARY INFORMATION OWNED BY AUBERGE RESORTS.

LIMITATION OF LIABILITY & DAMAGES

You hereby agree that: (a) any and all disputes, claims, and causes of action arising out of or connected with the User Generated Content or these Terms shall be resolved individually, without resort to any form of class action; (b) any and all claims, judgments and awards in your favor shall be limited to actual out of pocket costs incurred, including costs associated with Submitting the User Generated Content, but in no event will your attorneys’ fees be recoverable; and (c) under no circumstances, including for negligence, will any Licensed Party be liable to you for punitive, incidental or consequential damages, lost data, lost profits and/or any other damages. You acknowledge and agree that neither the Licensed Parties nor any of their officers, directors, or employees are responsible for any costs, injuries, losses, or damages of any kind arising from or in connection with the User Generated Content (including, without limitation, claims, costs, injuries, losses and damages related to personal injuries, death, damage to, loss or destruction of property, or any claims, costs, injuries, losses, or damages related to or based on your rights of publicity or privacy, or a claim for defamation). Under no circumstances will any of the Licensed Parties be held liable for any damage to computer systems, phone line, hardware, software or program malfunctions, or other errors, failures, delayed computer transmissions or network connections that are human or technical in nature, or for the incorrect or inaccurate capture of information, or the failure to capture any information.  

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT WILL ANY OF THE LICENSED PARTIES’ TOTAL LIABILITY (IN THE AGGREGATE) TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USER GENERATED CONTENT WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE EXCEED FIVE HUNDRED DOLLARS ($500.00).

MODIFICATIONS TO THE TERMS

From time to time we may need to make changes to these Terms, including to address changes in technology or law, and we encourage you to review these Terms each time you grant us permission to use your User Generated Content.  We reserve the right to alter these Terms at any time without advance notice to you by posting a revised Terms and Conditions. Any changes or modifications will be effective immediately upon posting.

SEVERABILITY

If any part of these Terms is found to be invalid, unlawful or unenforceable by a court of competent jurisdiction, the invalid, unlawful or unenforceable part shall be construed to reflect, as nearly as possible, the original intentions of the parties.  All other provisions of these Terms shall remain in full force and effect.
GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of the State of California in the United States of America, notwithstanding any conflict of law rules.  To the fullest extent permitted by applicable law, you agree to submit to the personal jurisdiction of the state courts in or for Marin County, California, and Federal District Court in the Northern District of California for the purpose of litigating all such claims or disputes arising under this agreement.

These Terms are personal to you and may not be assigned or transferred by you for any reason whatsoever without Auberge Resorts’ prior written consent.

Last updated:  June 1, 2023