Terms of Sale
These Terms of Sale (these “Terms”) apply to the purchase and sale of tickets, passes, season passes, parking passes, products and services (each, an “Item”) by you (or by another on your behalf from Herschend Entertainment Company, LLC d/b/a Herschend Family Entertainment or its subsidiaries (referred to herein as “Herschend”, “us”, “we”, or “our” as the context may require) whether the Item was purchased in person or through the telephone (an “On Site Purchase”), or through a website or a mobile application operated by Herschend (the “Online Service”). Purchases of Items from Herschend, whether an On Site Purchase or a purchase using the Online Service are referred to herein as a “Purchase” or “Purchases”. These Terms are subject to change by Herschend without prior notice at any time, in our sole discretion.
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, TO THE EXTENT PERMITTED BY LAW.
BY MAKING A PURCHASE OF AN ITEM FROM HERSCHEND (EACH, AN "ORDER"), YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS OF SALE. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS OF SALE.
- Modification of these Terms of Sale. We may revise these Terms from time to time, and you should review these Terms to which you are bound at the time of placement of an Order.
- Order Acceptance and Cancellation. You agree that your Order is an offer to buy, under these Terms, all Items listed in your Order. All Orders must be accepted by us or we will not be obligated to sell the Items to you. We may choose not to accept Orders at our sole discretion. For example, for Orders made using the Online Services, we may choose not to accept your Order even after we send you a written confirmation with your Order number and details of the Items you have Ordered, as your payment must be received by us before our acceptance of an Order.
- Prices and Payment Terms. Prices posted on the Online Service or at one location may be different from prices offered by us at other locations. All prices, discounts, and promotions posted are subject to change without notice. The price charged for an Item will be the price in effect at the time the Order is placed and will be set out in your written Order confirmation for Orders made using the Online Services . Price increases will only apply to Orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling, if applicable. All such taxes and charges will be added to your invoice, and will be itemized on your receipt or in your shopping cart and in your written Order confirmation for Orders made using the Online Services. We strive to display accurate price information; however, we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any Orders arising from such occurrences.
We may offer, from time to time, promotions that may affect pricing and that are governed by terms and conditions separate from, or in addition to, these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.
Terms of payment are within our sole discretion, and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an Order. We accept the payment methods displayed at the applicable location or on the Online Service at the time of placement of an Order. You represent and warrant that (i) the credit card or other payment information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card or other payment method for the purchase of the Items, (iii) charges incurred by you will be honored by your credit card company or any other third party required to effectuate payment, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted at the location or on the Online Service at the time of your Order.
- Additional Terms and Conditions. The following provisions apply to the Purchase of all Items at or related to the properties owned or operated by Herschend (each, a “Property” and collectively, the “Properties”) or during your participation in any activity led, organized, arranged, promoted, and/ or sponsored by Herschend, whether taking place on the Properties or elsewhere (collectively, “Herschend Activities”):
A. Ticketing Terms & Conditions:
- A ticket, pass, or season pass granting admission to a Property or participation in a Herschend Activity (a “Ticket”) is a revocable license which may be revoked by Herschend and such Ticket may be revoked or confiscated by Herschend with no refund of any amount paid therefor. Upon such revocation or confiscation, the applicable Ticket holder present on any of the Properties or participating in any Herschend Activities (each a “Guest”) and all members of their party shall have no right to remain in, on, or about the Property.
- Herschend reserves the right to deny admission, prevent entry, require an individual already admitted to leave, or ban individuals from the Properties or from participation in Herschend Activities, without refund, liability or compensation, for failure to comply with any of these Terms, for unsafe, illegal or offensive behavior, to ensure safety, security or order, or if we consider that the circumstances otherwise so require, in our sole and absolute discretion.
- Tickets are non-refundable, non-transferable, and will not be exchanged. Herschend is not responsible for duplicated, damaged, lost, or stolen Tickets. A replacement fee may apply in the event Herschend determines, in its discretion, to replace any duplicated, damaged, lost, or stolen Tickets.
- Unauthorized sales or resales of Tickets is prohibited.
- Tickets are valid for the dates shown on the Ticket only and are good for all entertainment, shows, craft showcases, rides, attractions, and festivals, as applicable, but do not include games, parking, and separately ticketed concerts and attractions (provided, however, parking may be included when purchasing certain season passes at specific Properties, see the applicable website and description of the applicable Item for details).
- Tickets will be confiscated if altered in any way.
- Tickets allow Ticket holders admission to Properties only during operating hours of the applicable Property. Operating hours of Properties are subject to change without notice and without liability to Herschend.
- Properties, entertainment, shows, craft showcases, rides, attractions, and festivals, as applicable may be closed due to maintenance, special events, or weather without notice and without liability to Herschend.
- Special events, concerts, ticketed attractions, certain games, and parking may require a separate ticket.
- Each Guest grants Herschend the right to film, video, photograph, and take sound recordings of the Guest on Property or during participation in any Herschend Activity for any purpose without payment or consideration therefor.
- Herschend assumes no responsibility for accident or loss to any person in connection with the condition or use of a Property and attractions or their entrance into or departure from a Property.
- All persons, bags, and belongings in, on, or about the Property are subject to security and safety searches, including physical screening and metal detection procedures. Any person refusing to comply with security and safety searches will be refused entry to the Property.
- Weapons of any type and all items listed in the section below titled “Prohibited Items” are prohibited at the Property or during participation in any Herschend Activity.
- The use of illegal drugs is prohibited at the Property and at all times during participation in any Herschend Activity.
- Excessive consumption of alcohol is prohibited at the Properties and individuals showing signs of intoxication or any kind of substance impairment are prohibited at the Properties, each to be determined at the sole discretion of Herschend.
- Guests at the Properties or any Herschend Activity must comply with all posted signs and all instructions from Herschend personnel whether related to Property operations, rules, procedures, health and safety requirements, or otherwise.
- Guests shall not enter into any restricted areas, ride perimeters, animal enclosures, or designated employee areas.
- Guests must only use designated entrances and exits and only during operating hours of the Property.
- Guests must use designated walkways throughout the Properties. Guests may not cross any fences, chains, ropes, landscape areas, or other barriers.
- Guests must move about the Property in an orderly manner, remain attentive to their surroundings, and walk rather than run.
- Conduct that is threatening, disorderly, “horseplay”, unruly, disruptive, profane, graphic, obscene, or in poor taste is prohibited. Any form of harassment (including verbal harassment or abuse or threatening remarks or actions) whether directed at Guests, personnel, or animals is prohibited.
- Proper attire is required at the Properties at all times. Clothing or other articles with profane, graphic, or obscene words, phrases, or images are prohibited.
- Loitering, panhandling, shoplifting, fighting, vandalism, and line cutting are prohibited at the Properties.
- Soliciting for commercial or charitable purposes or distributing advertisements, pamphlets, handbills, or flyers without the prior written consent of Herschend is prohibited.
- Commercial photography, videotaping, and recording of any kind is prohibited.
- Weapons of any type, including without limitation, firearms, ammunition, tasers, pepper spray, mace, and knives (with a blade longer than 3.5 inches), any item designed to be utilized as a weapon, and any item that appears to be either of the foregoing.
- Explosives of any kind, including fireworks and water grenades (whether metal or plastic).
- Personal or commercial drones (unless approved by Herschend in advance in writing) or other unmanned vehicles or equipment whether piloted on or off of the Property.
- Alcoholic beverages of any type unless such beverage was sold to the guest within the Property by a vendor designated and approved by Herschend.
- Illegal drugs of any kind (including prescription drugs not properly prescribed by a health professional).
- Glass containers (other than baby food containers).
- Recreational devices with wheels, such as skateboards, hover boards, balance boards, scooters, inline skates or shoes with built-in wheels.
- Wheeled mobility devices with less than 3 wheels; Segways; devices that cannot maintain stability and balance when stopped, unpowered, or unoccupied, without training wheels or similar modifications; devices powered by any means other than manually or electrically; devices that travel faster than walking pace; multi-rider devices or devices that exceed 36 inches in width or 52 inches in length.
- Costume masks. (except for special events as designated by the Property)
- Pets or animals of any kind other than approved service animals (e.g. dogs). Service animals must be under the control of the owner at all times and should remain on a leash or harness at all times while at the Property. Due to the nature of some attractions, service animals may not be permitted to ride or enter certain attractions. If and when available, Herschend personnel, pursuant to the rules and policies of the applicable Property, will assist you with kennel accommodations for service animals in cases where they are not permitted to enter rides or attractions.
- Any other items that Property personnel determines, in its discretion, to be suspicious or potentially harmful, unsafe or disruptive.
- Shipments; Delivery; Title and Risk of Loss. We will arrange for shipment of the Items to you, if applicable. Please check specific delivery options available for each Item. You will pay all shipping and handling charges specified during the Ordering process. Title and risk of loss pass to you upon our transfer of the Item to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
- Returns and Refunds. Unless specifically designated as cancellable or refundable, we will not accept a cancellation of, or a refund for, any Items once we accept your Order. Notwithstanding, exceptions may be made under limited circumstances in Herschend’s sole discretion.
- Disclaimers of Warranties. We do not provide any warranties with respect to the Purchase of Items. ALL ITEMS OFFERED ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
- Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE ITEMS YOU HAVE ORDERED. The limitation of liability set forth above shall: (i) only apply to the extent permitted by law and (ii) not apply to (A) liability resulting from our gross negligence or willful misconduct and (B) death or bodily injury resulting from our acts or omissions.
- Safety Measures Related to COVID-19 & Other Infectious and/or Communicable Diseases. We have implemented a number of new safety measures based on guidance from health authorities, such as the Centers for Disease Control and Prevention (the "CDC"), health organizations, appropriate government agencies, and applicable state and local governments. You must follow all posted instructions while visiting the Properties and during your participation in any Herschend Activities. The added safety measures include the following:
A. Vaccination Definitions. As used herein, the term “Fully Vaccinated” refers to a Guest who, no less than two (2) weeks prior to entry to the applicable Property or participation in the applicable Herschend Activity, received a one dose COVID-19 vaccine (such as the COVID-19 vaccine manufactured by Johnson & Johnson) or the second dose of a two-dose COVID-19 vaccine (such as the COVID-19 vaccines manufactured by Pfizer or Moderna). In order to be considered Fully Vaccinated, the vaccinations must be current in accordance with the applicable manufacturer’s guidelines, including timing of vaccine shots and booster requirements. The term “Non-Fully Vaccinated” refers to a Guest who does not meet the definition of Fully Vaccinated.
B. Entry Criteria.
i. Non-Fully Vaccinated Guests who are over twelve (12) years of age must, prior to admittance to any of the Properties or participation in any Herschend Activities, notify Herschend personnel if they fail to meet any of the health screening criteria posted at the Property (“Entry Criteria”). Any individual who reports that they fail to meet any Entry Criteria will be directed to an additional location for assistance and may be prohibited entry to the applicable Property or from participating in the applicable Herschend Activity. Refunds or rain checks may be offered, at the discretion of Herschend. By purchasing a Ticket and entering the Properties or participating in any Herschend Activities, you are acknowledging and confirming on your behalf, and on behalf of any individual who uses the Ticket you purchased (including any minor children), that you will, in good faith, review such Entry Criteria and report any failed Entry Criteria or questions relating to such Entry Criteria to Herschend personnel prior to entry to the Property or participation in any Herschend Activity.
ii. Guests that are Fully Vaccinated or are twelve (12) years of age or under do not have to comply with these requirements related to Entry Criteria.
C. Physical Distancing.
i. Non-Fully Vaccinated Guests who are over twelve (12) years of age must, to the extent possible, maintain a physical distance of at least six feet from any individual that is not a part of their immediate household ("Physical Distancing"). Non-Fully Vaccinated Guests who are over twelve (12) years of age are required to follow the directional signage which has been installed to assist Guests to responsibly move throughout the Properties and any ground markings which will help promote proper Physical Distancing when queuing is needed at a location.
ii. Guests that are Fully Vaccinated or are twelve (12) years of age or under do not have to comply with these requirements related to Physical Distancing.
i. Non-Fully Vaccinated Guests who are over twelve (12) years of age must wear face coverings as set forth herein or as directed by signage or Herschend personnel when visiting the Properties and while participating in any Herschend Activities. Non-Fully Vaccinated Guests who are over twelve (12) years of age must wear face coverings at all times when indoors (including, without limitation, when in common areas of hotels, restrooms, theaters, giftshops, merchandise shops, restaurants (except when eating or drinking)) or other similar situations where Physical Distancing is not possible or practical or the natural flow of air is restricted. Guests are generally not required to wear face coverings when not indoors, except that Non-Fully Vaccinated Guests who are over twelve (12) years of age must wear face coverings at all times when Physical Distancing is not possible or practical or the natural flow of air is restricted, examples include: while riding or using trams or conveyance vehicles, during entry screening, when going through ticketing points, turnstiles, queues, lines or other points where people congregate, and while on rides. The use of face coverings should not be seen as a substitute for Physical Distancing.
ii. The use of masks and face coverings is optional for Guests that are Fully Vaccinated or are twelve (12) years of age or under.
Express Assumption of Risk & Release of Liability. Please note the CDC advises that older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19. Guests should evaluate their risk in determining whether to attend the Properties or participate in any Herschend Activities. People who show no symptoms can spread COVID-19 if they are infected, any interaction with the general public poses an elevated risk of being exposed to COVID-19, and we cannot guarantee that you will not be exposed during your visit to the Properties or participation in any Herschend Activities.
This Section 9 is an acknowledgement and voluntary express assumption of risk and release of liability as it relates to the risks of being exposed to or contracting COVID-19 (as defined by the World Health Organization and any strains, variants, or mutations thereof), the Coronavirus that causes COVID-19, or any other communicable and/or infectious disease, while visiting the Properties or participating in any Herschend Activities. By purchasing a Ticket and entering the Properties or participating in any Herschend Activities, you are acknowledging and confirming on your behalf, and on behalf of any individual who uses the Ticket you purchased to enter the Properties or participate in any Herschend Activities (including any minor children), both now and in the future, that you understand and voluntarily expressly assume the risk that during your visit or participation you may be exposed to COVID-19,the Coronavirus that causes COVID-19, or other communicable and/or infectious diseases. You expressly understand that these risks include contracting COVID-19 or other communicable and/or infectious diseases and the associated dangers, medical complications and physical and mental injuries, both foreseen and unforeseen, that may result from contracting COVID-19 or other communicable and/or infectious diseases. You further acknowledge and understand that any interaction with the general public poses an elevated, inherent risk of being exposed to and contracting communicable and/or infectious diseases, including, but not limited to, COVID-19 and the Coronavirus that causes COVID-19, that Herschend cannot guarantee that you will not be exposed during your visit to the Properties or during participation in any Herschend Activities, and that as such, potential exposure to or contraction of COVID-19 or any other communicable and/or infectious diseases are risks inherent in your decision to visit the Properties or participate in any Herschend Activities and cannot be eliminated. You further acknowledge and understand that if you are infected with COVID-19, the Coronavirus that causes COVID-19, or any other communicable and/or infectious disease, you may infect others you subsequently come in to contact with, even if you are not experiencing or displaying any symptoms of illness yourself, and that the risk of spreading COVID-19 to others remains even after the you depart the Properties and after the end of any Herschend Activities. The same is true for many other communicable and/or infectious diseases you may be exposed to during your visit.
You and Herschend further agree that we both intend this Section 9 to be a binding and full release of liability for negligence and/or the inherent risks associated with visiting the Properties or participating in any Herschend Activities during an epidemic or pandemic with respect to any controversy, claim or dispute that may arise out of or during your visit to the Properties or participation in any Herschend Activities that is related to exposure to or the contraction of any communicable and/or infectious disease, including, but not limited to, COVID-19 or the Coronavirus that causes COVID-19. Specifically, you agree that:
YOU, ON BEHALF OF YOURSELF AND YOUR PERSONAL REPRESENTATIVES, HEIRS, SPOUSE, GUARDIANS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, ASSIGNS AND NEXT OF KIN) HEREBY FOREVER RELEASE, DISCHARGE, AGREE TO INDEMNIFY AND DEFEND, AND COVENANT NOT TO SUE THE RELEASED PARTIES AS DEFINED BELOW WITH RESPECT TO ANY CLAIM, LIABILITY OR DEMAND OF WHATEVER KIND OR NATURE, EITHER IN LAW OR IN EQUITY (INCLUDING, WITHOUT LIMITATION, FOR PERSONAL INJURIES OR WRONGFUL DEATH) THAT MAY ARISE IN CONNECTION WITH, OR RELATE IN ANY WAY TO, EXPOSURE TO OR CONTRACTION OF A COMMUNICABLE AND/OR INFECTIOUS DISEASE, INCLUDING BUT NOT LIMITED TO, COVID-19 (OR THE CORONAVIRUS THAT CAUSES COVID-19), DURING YOUR VISIT TO THE PROPERTIES, OR DURING YOUR PARTICIPATION IN ANY HERSCHEND ACTIVITIES, INCLUDING, WITHOUT LIMITATION, THOSE CLAIMS THAT ARISE AS A RESULT OF: (I) THE NEGLIGENCE OF ANY OF THE RELEASED PARTIES, AND/OR (II) THE INHERENT RISKS ASSOCIATED WITH VISITING THE PROPERTIES OR PARTICIPATION IN THE HERSCHEND ACTIVITIES DURING ANY EPIDEMIC OR PANDEMIC, INCLUDING THE COVID-19 PANDEMIC. YOU FURTHER AGREE THAT THE FORGOING RELEASE OF LIABILITY, INDEMNIFICATION AND COVENANT NOT TO SUE EXTENDS TO AND ENCOMPASSES ANY AND ALL CLAIMS, LIABILITIES OR DEMANDS THAT RELATE IN ANY WAY TO EXPOSURE TO OR CONTRACTION OF A COMMUNICABLE OR INFECTIOUS DISEASE, INCLUDING BUT NOT LIMITED TO, COVID-19, BY ANY OTHER INDIVIDUAL, INCLUDING BUT NOT LIMITED TO YOUR MINOR CHILDREN AND/OR FAMILY MEMBERS, AS A RESULT OF THEIR VISITING THE PROPERTIES OR PARTICIPATION IN HERSCHEND ACTIVITIES USING TICKETS YOU PURCHASED OR AS A RESULT OF THEM BEING EXPOSED TO SUCH DISEASES BY YOU AFTER YOUR VISIT TO THE PROPERTIES OR PARTICIPATION IN HERSCHEND ACTIVITIES. TO THE EXTENT PERMITTED BY LAW, YOU FURTHER AGREE THAT IT IS YOUR INTENTION THAT THE FOREGOING RELEASE OF LIABILITY, INDEMNIFICATION, AND COVENANT NOT TO SUE IS BEING ENTERED IN TO ON YOUR BEHALF, AS SET FORTH ABOVE, AND ALSO ON BEHALF OF ANY OTHER INDIVIDUAL WHO USES A TICKET PURCHASED BY YOU TO ENTER THE PROPERTIES OR PARTICIPATE IN HERSCHEND ACTIVITIES .
For purposes of this Section 9, you and Herschend agree that the “Released Parties” shall include (a) Herschend, Entertainment Company, LLC d/b/a Herschend Family Entertainment, (b) Herschend Entertainment Company, LLC d/b/a Herschend Family Entertainment’s parent, subsidiary and affiliated companies; (c) the respective employees, agents, shareholders and officers of the entities described in (a)-(b) above; and (d) the licensees, successors, assigns and heirs of the entities and individuals referred to in (a)-(c) above.
This acknowledgement and express assumption of risk and release of liability is intended to be as broad and inclusive as is permitted by law. If any part of this provision is held to be invalid or legally unenforceable for any reason, the remainder of this provision shall not be affected thereby and shall remain valid and fully enforceable.
- Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, or other public health emergencies, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
- Dispute Resolution and Binding Arbitration. You agree and understand that this Section is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act, satisfies the “writing” requirement of that act, applies to your purchase of an Item, and governs all claims, disputes, or controversies between you and Herschend and each and all of Herschend Entertainment Company, LLC d/b/a Herschend Family Entertainment, its subsidiaries, affiliates, providers, or its and their respective officers, directors, partners, shareholders, employees, contractors, agents, licensors, suppliers, service providers, advertisers, instructors, staff, successors or assigns, including but not limited to tort and contract claims, claims based upon any federal, state, or local statute, law, order, ordinance, or regulation, and claims over the applicability of this arbitration provision (collectively “Claims”). This Section can only be changed or terminated upon mutual agreement.
You understand and agree that all Claims shall be resolved by final and binding arbitration using the American Arbitration Association's (“AAA”) Commercial Arbitration Rules (“AAA Rules”) in effect on the date of initiation of the arbitration, except as to those AAA Rules that conflict with or differ from these Terms, by one or more arbitrators appointed in accordance with said rules at a location within Fulton County, Georgia. Any controversy concerning whether a dispute is arbitral shall be determined by the arbitrator(s) and not by the court. In arbitration, as with a court, the arbitrator must honor the terms of these Terms and may award the prevailing party damages and other relief (including attorneys’ fees).
HOWEVER, WITH ARBITRATION: (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED.
Each party to the arbitration will have the right, at its own expense, to be represented by an attorney or other advocate of its own choosing. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but, if applicable arbitration rules or laws require Herschend to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then Herschend will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator’s decision must consist of a written statement stating the disposition of each Claim of the dispute and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
NO CLASS ACTION MATTERS. You agree that disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party, such as class action claims or private attorney general representative actions, with the exception of representative claims solely for injunctive relief brought under unfair competition law. If any provision of this arbitration provision is deemed unlawful, void or unenforceable, that provision shall be severable from the remainder of this paragraph, which shall remain fully enforceable. AGREEMENT TO THESE TERMS CONSTITUTES AN AGREEMENT TO PURSUE YOUR CLAIM FOR ALLEGED DAMAGES ONLY ON AN INDIVIDUAL BASIS AND A WAIVER OF THE ABILITY TO PURSUE YOUR CLAIM IN A CLASS ACTION.
You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
- Governing Law and Jurisdiction. All disputes arising out of or related to the Purchase and sale of Items and these Terms, as permitted following the mandatory arbitration described above, shall be brought in the state courts in Atlanta, Georgia, or federal courts in the Northern District of Georgia, and you hereby irrevocably consent to the exclusive jurisdiction and venue thereof. These Terms will be construed in accordance with the laws of the State of Georgia without regard to its conflict of law principles.
- Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 14 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
- No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Herschend.
- No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
To You. Any notice from Herschend that is directed to you shall be delivered (i) by posting to the Online Service, (ii) by mail to the mailing address you provided us at the time of Registration, or (iii) by email to the email address you provided us at the time of Registration. Notice shall be deemed given immediately upon posting to the Online Services, (ii) twenty four (24) hours after email is sent, unless we are notified that the email address is invalid or, (iii) in the case of notice sent via mail, three (3) business days after the date of mailing.
- Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.