Updated as of July 28, 2020
2. Registration / Your Account. To use certain features of the Online Services, you may be required to register an account (“Account”) with Herschend (“Registration”). You agree to provide true, accurate, current and complete information about yourself during the Registration and to maintain and promptly update the information you provide to keep it true, accurate, current and complete. You agree not to: (i) select a username that, to your knowledge, is already used by another person; (ii) use a username in which another person has rights without such person’s authorization; or (iii) use a username or password that Herschend, in its sole discretion, deems offensive or inappropriate. It is your responsibility to maintain the confidentiality of the password issued by Herschend to you, and you agree to accept responsibility for all activities that occur under your Account. You may not transfer, assign or sell your Account to any third party. Herschend has the right to rely upon any information received from any person using a password assigned to you, and you agree that Herschend is not responsible for any liabilities arising out of such reliance.
Herschend has no obligation to verify the authenticity of any Registration information. PLEASE NOTE: IF YOU PROVIDE ANY INFORMATION THAT IS FALSE, MISLEADING, INACCURATE, NOT CURRENT OR INCOMPLETE DURING REGISTRATION OR OTHERWISE, WE HAVE THE RIGHT TO SUSPEND OR TERMINATE YOUR ACCOUNT AND REFUSE ANY AND ALL CURRENT OR FUTURE USE OF THE ONLINE SERVICES (OR ANY PORTION THEREOF) BY YOU. ANY ACTIVITIES THAT ARE ILLEGALLY CARRIED ON IN CONNECTION WITH THE ONLINE SERVICES WILL BE REPORTED TO THE APPROPRIATE FEDERAL, STATE OR LOCAL AUTHORITIES. For questions related to updating or changing your Account information, please send an e-mail to firstname.lastname@example.org.
4. Fees and Charges. All purchases of products and/or services are subject to the additional terms presented to you during the purchase process (e.g., terms of sale located at newportaquarium.com/Terms-of-Sale) (the “Terms of Sale”). We reserve the right to change or discontinue, temporarily or permanently, some or all of our services at any time with or without notice. In the event we introduce a new service, the fees for that service, if any, are effective at the launch of the service. We may also choose to temporarily lower the fees for any service-based fees for promotional events, and such changes are effective when we post information about the promotional event on the Online Services. With respect to any online transactions, however, we will not charge your credit card until you have first had an opportunity to review and accept the amounts to be charged to your credit card. From time to time, you may have the opportunity to purchase certain products and/or services that are advertised on the Online Services but are offered for sale by third parties. YOU MUST BE 18 YEARS OF AGE OR OLDER TO MAKE ANY SUCH PURCHASES. Additionally, Herschend may post, on behalf of third parties or other users, coupons, incentives, rebates, and other promotional offers. We assume no responsibility for, and you are solely responsible for confirming, the availability, appropriateness, accuracy, sufficiency, correctness, veracity, completeness, reliability and timeliness of any such materials posted on behalf of a third party and any third party’s Submitted Content (as defined below). You agree and acknowledge that Herschend has no control over any such materials posted on behalf of a third party or any third party’s Submitted Content, and as such, has no responsibility or liability to you, your assignee or designee, or anyone acting on your behalf in connection with any such offers or sales of services or products or any related transactions. The inclusion of any third party advertisements, including Submitted Content by other users on the Online Services, does not imply endorsement or sponsorship by Herschend, and Herschend expressly disclaims any and all liability related thereto. You are solely responsible for any and all consequences of any such activities, transactions and relationships that you may conduct or form with others regardless of whether such transactions were introduced, contemplated, or completed as a result of the Online Services. Any purchases that you make from such third parties or users who have advertised on or through the Online Services are made at your own risk, and Herschend expressly disclaims all warranties and guarantees, express or implied, with respect to such purchases.
6. Modifications to the Online Services. You understand and agree that Herschend may discontinue or change any of the Online Services at any time without notice. Also, you understand and agree that Herschend may discontinue or restrict your use of the Online Services for any reason without notice.
7. Copyright Protection. The content, features and functions displayed on the Online Services by Herschend, including without limitation text, graphics, logos, button icons, images, audio clips, video, data compilations, and software (“Herschend Content” and, collectively with Submitted Content, the “Content”), are the property of Herschend or its third party licensors, and are protected by U.S. and international copyright and other intellectual property Laws.
8. Trademarks. The Online Services contain trademarks and trade names of Herschend. Third party trademarks and trade names are the property of their respective owners. Nothing contained on the Online Services grants, or should be understood or construed as granting, you a license to use any of the trademarks, service marks, or logos owned by Herschend or by any third party.
9. Content Use Limitations. You agree not to copy, reproduce, modify, adapt, display, translate, transmit, perform, publish, create derivative works from, or store any Content on the Online Services without the express prior written consent of Herschend. You also agree not to distribute, transmit, broadcast or circulate any Content to others, without the express prior written consent of Herschend, except you may, on an occasional and irregular basis, reproduce, distribute, display or transmit an insubstantial portion of such Content, for a noncommercial purpose and without charge, to a limited number of individuals, provided you include all copyright and other proprietary rights notices with that portion of the Content, in the same form in which the notices appear on the Online Services, and the phrase “Used with permission from Herschend.” You may not post any Content to any non-Herschend owned or controlled forums, newsgroups, mail lists, electronic bulletin boards, or other websites, without the prior written consent of Herschend. Any use of the Content pursuant to this Section shall be for non-commercial purposes only. Herschend Content includes information, tips, facts, views, and opinions Herschend deems worthy of publication. HERSCHEND DOES NOT GIVE TECHNICAL, BUSINESS, OR ANY OTHER PROFESSIONAL ADVICE THROUGH OR IN CONNECTION WITH THE ONLINE SERVICES.
10. Additional Use Limitations. You are prohibited from taking, or attempting to take, any actions that may compromise the security features of the Online Services, including, without limitation: (i) accessing any Content not intended for you, or logging onto a server or account that you are not authorized to access or use; (ii) probing, scanning, or testing the vulnerability of the Online Services or any associated system or network, or breaching security or authentication measures without proper authorization; (iii) interfering with services to any user, host, or network, including, without limitation, by means of submitting a virus to the Online Services, overloading, “flooding”, “spamming”, “mail bombing”, or “crashing”; (iv) using the Online Services to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (v) using any automatic or manual process to monitor or copy any portion of Herschend’s websites or the Online Services without Herschend’s prior written permission; (vi) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Online Services; (vii) introducing any viruses, Trojan horses, worms, time bombs, cancelbots or other computer scripts or programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (viii) modifying, reverse-engineering, decompiling, disassembling, or otherwise reducing to a human-perceivable form any of the source code used by Herschend in providing the Online Services. Any violation of system or network security may subject you to civil and/or criminal liability.
Our Online Services may be used only for lawful purposes. Transmission, posting, distribution or storage of material or conduct in violation of any Laws is strictly prohibited. You agree not to use the Online Services in any manner which causes, or may cause, any Infringement Violations with respect to the property of Herschend or any third party. You shall be solely responsible for any violations of any Laws and for any Infringement Violations with respect to the property of Herschend or any third party rights caused by you. The burden of proving that your activities in connection with the Online Services do not violate any Laws or cause any Infringement Violations rests solely with you.
15. WAIVER OF CLAIMS. BY USING THE ONLINE SERVICES, YOU SIGNIFY YOUR AGREEMENT TO AND DO THEREBY WAIVE ALL CLAIMS WHICH HAVE NOT BEEN FILED BUT MAY HAVE ACCRUED AGAINST HERSCHEND OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, PARTNERS AND AFFILIATES PRIOR TO OR AS OF THE DATE OF YOUR ACCESS TO OR USE OF THE ONLINE SERVICES, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO YOUR ACCESS TO OR USE OF THE ONLINE SERVICES, WHETHER IN LAW OR EQUITY, AND SUCH CLAIMS ARE FOREVER BARRED.
17. Revocation of Access. Herschend reserves the right, at any time and at its sole discretion, to suspend or revoke your access to the Online Services or any use authorizations relating to the Online Services granted to you.
18. Use of Software. We may make certain software available to you from the Online Services. If you download software from the Online Services, the software, including all files and images contained in or generated by the software, and accompanying data (collectively, “Software”), are deemed licensed to you by Herschend, for your personal, noncommercial, home use only. You acknowledge and agree that your access to and use of the Software may be subject to additional terms. Such download does not transfer either the title or the intellectual property rights to the Software, and we and/or our third party licensors retain full and complete title to the Software as well as all intellectual property rights therein. You shall not sell, redistribute, or reproduce the Software, nor shall you decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form. You agree to comply with all United States and other applicable Laws relating to the export, re-export, or transshipment of the Software. All trademarks and logos are owned by Herschend or its licensors, and you shall not copy or use them in any manner.
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.
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.
24. Infringement Policy. Pursuant to § 201.38 and the Digital Millennium Copyright Act (the “DMCA”), Herschend respects the intellectual property of others, and we ask our users to do the same. Herschend may, in appropriate circumstances and at its discretion, cancel postings and/or terminate the Accounts of users who may be causing Infringement Violations.
If you have found that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been violated, please submit the following information to our Designated Agent as identified below.
A. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; B. Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online website are covered by a single notification, a list of such works at that website; C. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Herschend to locate the material; D. Information reasonably sufficient to permit Herschend to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; E. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and F. A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
DMCA COUNTER-NOTIFICATION PROCEDURE (FOR COPYRIGHTED WORKS ONLY): After Herschend notifies a user that it has removed or disabled access to the user’s post because it contains material that allegedly infringes a third party’s copyright, the user may give Herschend a statutory counter-notification pursuant to the DMCA in an effort to have the material in question restored. Any counter-notifications must be given in writing by email, fax or regular mail (see below) to Herschend’s Designated Agent as identified below and must contain the following elements:
A. Your physical or electronic signature; B. A description of the material that was taken down; C. The URL of the material before it was taken down; D. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the item to be removed or disabled; E. Your name, address and telephone number; and F. A statement that you consent to the jurisdiction of the federal district court where your address is located (or if you reside outside the United States, that you consent to jurisdiction in Gwinnett County, Georgia), and that you will accept service of process from the person who provided notification under 17 U.S.C. Section 512(c)(1)(C) or an agent of such person.
Note that you may be found liable for damages (including costs and attorneys’ fees) if you materially misrepresent that a product or activity does not infringe the copyrights of others. If you are unsure whether certain material may infringe another’s copyright, we recommend that you first discuss this issue with legal counsel.
Please note that Herschend enforces a policy that provides for the termination of users who are repeat infringers in appropriate circumstances. Please contact Herschend’s Designated Agent to Receive Notification of Claimed Infringement at the following address:
Designated Agent (updated July 28, 2020)
Herschend Family Entertainment Corporation
Attn: Bryan Hardman
5445 Triangle Parkway, Suite 200
Peachtree Corners, GA 30092
25. 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 (CDC), health organizations, and appropriate government agencies. You must follow all posted instructions while visiting Herschend properties (collectively, the "Properties”). The added safety measures include the following at each of the Properties: A. Touchless temperature screenings will be conducted prior to admittance. Anyone displaying a temperature of 100. 40 Fahrenheit or above will be directed to an additional location for rescreening and assistance. Guests with a fever exceeding 100.40 Fahrenheit will not be permitted entry. Refunds or rain checks may be offered at the sole discretion of Herschend. By purchasing an admission ticket(s) and/or pass(es) and entering the Properties, you are acknowledging and confirming on your behalf, and on behalf of any individual who uses the admission ticket(s) and/or pass(es) you purchased to enter the Properties (including any minor children), that you submit to your temperature being taken prior to entry. B. All Guests ages 3 and older are required to wear face coverings when visiting the Properties. Guests are required to wear face coverings at all times, except in specific situations as identified on the Properties. The use of face coverings should not be seen as a substitute for physical distancing. C. Directional signage has been installed to assist Guests to responsibly move throughout the Properties. Additionally, ground markings will help promote proper physical distancing when queuing is needed at a location.
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. 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.
This Section 25 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. By purchasing an admission ticket(s) and/or pass(es) and entering the Properties, you are acknowledging and confirming on your behalf, and on behalf of any individual who uses the admission ticket(s) and/or pass(es) you purchased to enter the Properties (including any minor children), both now and in the future, that you understand and voluntarily expressly assume the risk that during your visit 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, 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 and cannot be eliminated. You further acknowledge and understand that if 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. 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 25 to be a binding and full release of liability for negligence and/or the inherent risks associated with visiting the Properties 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 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 RELEASE AND DISCHARGE, AGREE TO INDEMNIFY AND DEFEND, AND COVENANT NOT TO SUE HERSCHEND AND THE ADDITIONAL RELEASED PARTIES NOTED 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 RELATED ACTIVITIES ARRANGED, PROMOTED AND/OR SPONSORED BY HERSCHEND, 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 DURING ANY EPIDEMIC OR PANDEMIC, INCLUDING THE COVID-19 PANDEMIC. YOU FURTHER AGREE THAT THE FORGOING RELEASE OF LIABILITY, AGREEMENT TO INDEMNIFY AND DEFEND, 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 USING TICKET(S) AND/OR PASS(ES) YOU PURCHASED OR AS A RESULT OF THEM BEING EXPOSED TO SUCH DISEASES BY YOU AFTER YOUR VISIT TO THE PROPERTIES. TO THE EXTENT PERMITTED BY LAW, YOU FURTHER AGREE THAT IT IS YOUR INTENTION THAT THE FOREGOING RELEASE OF LIABILITY, AGREEMENT TO INDEMNIFY AND DEFEND, AND COVENANT NOT TO SUE IS BEING ENTERED INTO ON YOUR BEHALF, AS SET FORTH ABOVE, AND ALSO ON BEHALF OF ANY OTHER INDIVIDUAL WHO USES AN ADMISSION TICKET AND/OR PASS PURCHASED BY YOU TO ENTER THE PROPERTIES.
For purposes of this Section 25, you and Herschend agree that the “Released Parties” shall include (a) Herschend Entertainment Company, LLC, (b) Herschend Entertainment Company, LLC’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.