ACCEPTANCE OF AND CHANGES TO TERMS AND CONDITIONS. Please review these terms and conditions carefully before accessing or using the Site. BY CLICKING “I ACCEPT,” VISITING, USING, DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING, RESERVING, AND/OR PURCHASING SOMETHING ON THE SITE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND AS A CONDITION TO YOUR USE OF THE SITE, AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, including, without limitation to, all the terms and conditions, policies, and agreements incorporated or referenced herein and/or available by hyperlink (together, the “Terms”). If you do not agree with any terms, conditions, disclaimers, limitations, or other provisions of these Terms, do not use our Site for any purpose and/or any of its features and leave the Site immediately.
MODIFICATION. Balboa Bay Resort reserves the right, at its sole and absolute discretion to change, modify, suspend, add, discontinue, or remove (temporarily or permanently), the Site or portions of the Site and its Terms at any time without notice and, unless otherwise indicated, such changes will become effective immediately.
ARBITRATION NOTICE. Except for certain kinds of disputes, you agree that disputes arising under these Terms will be resolved by binding arbitration, and BY ACCEPTING THESE TERMS, YOU AND BALBOA BAY RESORT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. See DISPUTE RESOLUTION AND ARBITRATION section below.
ELIGIBILITY. The Site is available only to individuals and entities that can form legally binding contracts under applicable law. By agreeing to the Terms, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence, and you have given us your consent to allow any of your minor dependents to use this Site. If you do not qualify, you may not use this Site.
If you provide information to Balboa Bay Resort through the Site, you represent and warrant that you are eighteen (18) years of age or older. Balboa Bay Resort does not knowingly collect information from children under the age of eighteen (18). If you are under the age thirteen (13) you are not permitted to use the Site or to submit any personally identifiable information to the Site. If you are under the age of eighteen (18), you may contact Balboa Bay Resort directly for assistance. You also warrant that you are legally authorized to make reservations and/or purchases for either yourself or for another person for whom you are authorized to act. You may only use this Site to make legitimate reservations and shall not use this Site for any other purposes, including without limitation, to make any speculative, false or fraudulent reservations, or any reservation in anticipation of demand.
Balboa Bay Resort reserves the right to cancel or modify reservations where it appears that a customer has engaged in fraudulent or inappropriate activity or under other circumstances where it appears that the reservations contain or resulted from a mistake or error, or from an attempt to circumvent Balboa Bay Resort’s policies, terms, or conditions.
You may not use the Site for any illegal or unauthorized purpose nor may you, in the use of the Site, violate any laws in your jurisdiction (including but not limited to copyright laws). You must not transmit any worms or viruses or any code of a destructive nature. A breach or violation of any of the Terms or abuse of the reservation facilities of this Site may result in you being denied access to such facilities.
GENERAL. We reserve the right to refuse service to anyone for any reason at any time.
ACCOUNTS AND REGISTRATION. When you register for an account, you may be required to provide us with some information about yourself, such as your e-mail address or other contact information. You agree that the information you provide us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, immediately notify us at: firstname.lastname@example.org.
ACCURACY OF BILLING AND ACCOUNT INFORMATION. The storage of credit card information on the Site (if available) is entirely optional. You will be solely responsible for updating any credit card information that you provide. You acknowledge that Balboa Bay Resort may communicate this information for the purpose of facilitating reservations or as requested by you. Balboa Bay Resort may, in its sole discretion, limit or cancel reservations. These restrictions may include reservations placed by or under the same customer account, the same credit card, and/or orders that use the same billing address. In the event that we make a change to or cancel a reservation, we may attempt to notify you by contacting the e-mail and/or billing address or phone number provided at the time the reservation was placed. We reserve the right to limit or prohibit reservations that, in our sole judgment, appear to be placed fraudulently.
You agree to provide current, complete and accurate account information for all reservations made at the Balboa Bay Resort location or through our Site. You agree to promptly update your account and other information, including your e-mail addresses and credit card number and expiration dates so that we can complete your transactions and contact you as needed.
CANCELLATION POLICY. All reservations are subject to the cancellation policy set forth by Balboa Bay Resort. Please review the applicable cancellation policy during the reservation process.
ERRORS, INACCURACIES, AND OMISSIONS. Occasionally, there may be information on our Site that contain typographical errors, inaccuracies, or omissions that may relate to products, services, promotions, offers, charges, rates, fees, stay details, availability, and other information or offerings by Balboa Bay Resort. Balboa Bay Resort takes no responsibility or liability for such errors, inaccuracies, or omissions. Balboa Bay Resort reserves the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel reservations if any information on our Site is inaccurate at any time and without prior notice (including after you have completed your reservation).
We undertake no obligation to update, amend, or clarify information on the Site, including, without limitation, products, services, promotions, offers, charges, rates, fees, stay details, availability, and other information or offerings by Balboa Bay Resort, except as required by law. No specified update or refresh date applied on the Site should be taken to indicate that all information on the Site has been modified or updated.
“AS-IS”. The information on the Site is “as is” and we make no representations or warranties, express or implied, with respect to the content provided on this website or on any third-party website which may be accessed by a link from the Site, including any representations or warranties as to accuracy, timeliness, or completeness. The material on the Site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. We will not be liable for any losses, injuries, or damages from the display or use of the information or content on the Site. Any reliance on the material on the Site is at your own risk.
OWNERSHIP. All content included on the Site is and shall constitute to be the property of Balboa Bay Resort or its content suppliers and is protected under applicable copyright, patent, trademark, and other proprietary rights. Any copying, redistribution, use or publication by you of any such content or any part of the Site is prohibited, except as expressly permitted herein. Under no circumstances will you acquire ownership rights or other interest in any content by or through your use of this Site.
INTELLECTUAL PROPERTY. All content on the Site – including text, software, scripts, codes, designs, graphics, photos, sounds, music, audios, videos, applications, interactive features, articles, new stories, sketches, animations, stickers, general artwork, data, charts, maps, software, and other information and materials (collectively, the “Content”) – is owned by Balboa Bay Resort, its affiliated companies, and/or third-party licensors. Content on the Site is protected by copyright trademark, patent, and other laws.
No material from the Site or any internet site owned, operated, licensed, or controlled by Balboa Bay Resort or its affiliates may be copied, “scraped,” reproduced, republished, uploaded, posted, transmitted, sold, or distributed, in any way without Balboa Bay Resort’s prior written consent.
All Content included in the Site is the copyright and proprietary of Balboa Bay Resort or its licensors and protected by U.S. copyright laws. Permission is granted to electronically copy and print hard copy portions of the Site for the sole purpose of using the Site as a personal or internal resource or otherwise for its intended purposes. Any other use, including the reproduction, modification, distribution, transmission, republication, display or performance, of the Content of the Site, is strictly prohibited.
All trademarks, service marks, logos, slogans, trade names, and trade dress are propriety to Balboa Bay Resort or its licensors and may not be used by anyone for any other purpose without the Balboa Bay Resort’s prior written consent. You do not acquire a license or any ownership rights to any trademarks, service marks, or trade names through your access or use of the Site. You may not frame or utilize framing techniques to enclose any of Balboa Bay Resort’s trademarks, logos, or other proprietary information (including images, texts, page layout, form, etc.) without Balboa Bay Resort’s prior written consent. You may not use meta tags or any other “hidden text” utilizing Balboa Bay Resort’s name, trademarks or other proprietary information without Balboa Bay Resort’s express written consent.
Balboa Bay Resort reserves all rights not expressly described in these Terms. Other product, services, and company names mentioned on the Site may be trademarks of their respective owners. Balboa Bay Resort’s use of any third-party names or trademarks referenced in the Site do not constitute or imply affiliation, endorsement, or recommendation by Balboa Bay Resort, or of Balboa Bay Resort by the third-party.
COPYRIGHTS AND COPYRIGHT AGENT. Please consult your legal advisor before filing a notice with us. If you believe your work has been copied onto the Site in a way that constitutes copyright infringement, please provide a notice containing all of the following information:
- (a) Name, address, telephone number, e-mail address, and an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- (b) A description of the copyrighted work that you claim has been infringed;
- (c) A description of where the material that you claim is infringing is located on the Site;
- (d) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- (e) A statement by you, made under penalty of perjury (depending on applicable law), that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Please send Notice of claims of copyright infringement on the Site to:
USER CONTENT LICENSE. Use of our Site grants you a limited, revocable, nonexclusive license to use the Site solely for your own personal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. You agree not to copy materials on the site, reverse engineer or break into the Site, or use materials, products or services in violation of any law. Your use of this Site is at the discretion of Balboa Bay Resort. We may terminate your use of the Site at any time.
USE RESTRICTIONS. While using the Site you agree to comply with all applicable laws, rules, and regulations. In addition, we expect users of the Site to respect the rights and dignity of others. Your use of the Site is conditioned on your full compliance with these Terms, including, without limitation, the rules of conduct set forth in this section; your failure to comply with such rules may result in termination of your access to the Site pursuant to these Terms. This list is not meant to be exhaustive, and Balboa Bay Resort reserves the right to determine what types of conduct it considers to be inappropriate use of the Site. You agree that when using the Site, you will not:
- Use the Site for any illegal purpose or in violation of any local, state, national, or international law;
- Post, upload, publish, distribute, disseminate, submit, or transmit any content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is inappropriate, profane, indecent, defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, stalking, or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; (vii) promotes illegal or harmful activities or substances;
- Transmit by any means any software, virus, malware, program, code, file, or other material intended to interrupt, disrupt, alter, destroy, or limit any part of the Site;
- Access, tamper with, or use non-public areas of the Site, our computer systems, or the technical delivery systems of our providers;
- Attempt to probe, scan, or test the vulnerability of any of our systems or networks or breach any security or authentication measures;
- Use any robot, spider, script, or any manual or automated application or means to extract, download, retrieve, index, mine, scrape, reproduce, or circumvent the presentation, operation, protection of, or intended use of any feature, function, or part of the Site, other than the software and/or search agents provided by us or other generally available third-party web browsers;
- Use the Site to send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation;
- Use, display, frame or mirror the Site or any individual element of the Site (including the layout and design of any page or form contained on a page within the Site), Balboa Bay Resort’s name, any Balboa Bay Resort logo or trademark, or any other proprietary information of Balboa Bay Resort, without Balboa Bay Resort’s express prior written consent;
- Force any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site to send altered, deceptive, or false source-identifying information;
- Attempt to modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the software used to provide the Site;
- Copy, download, distribute, transmit, upload, or transfer content from the Site without our prior written permission or authorization;
- Take any action that imposes or may impose (as determined in our sole discretion) an unreasonable or disproportionately large load on our infrastructure or otherwise interferes with the functioning of the Site;
- Use the Site to make unsolicited offers, requests, advertisements, or spam;
- Use the Site for any commercial purpose for the benefit of any third party or in any manner not permitted by these Terms;
- Impersonate or pretend to be anyone else but you or falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Site;
- Express or imply that we endorse any statement you make;
- Violate or infringe upon the privacy, publicity, intellectual property, or other proprietary rights of third parties;
- Engage in any activity that is criminal or tortious in nature or otherwise violates the law or rights of another, including, without limitation, hacking, phishing, fraud, stalking, defaming, abusing, harassing, or threatening;
- Collect or store any personally identifiable information from the Site about other users of the Site without their express permission;
- Violate any applicable law or regulation;
- Do anything else that we determine, in our sole discretion, misuses or otherwise negatively impacts the Site;
- Engage in any act that, in the Balboa Bay Resort’s sole discretion, exposes it or any third-party to potential liability or determinant of any type; or
- Encourage or enable any individual to do any of the following.
We reserve the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the Site, but that we have the right to do so for the purpose of operating the Site, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.
COMPLIANCE WITH LAWS. You agree to comply with all applicable laws regarding your use of the Site. You further agree that the information provided by you is truthful and accurate to the best of your knowledge.
THIRD-PARTY LINKS. Please exercise discretion while browsing the Internet and using the Site. When using the Site, you could be directed to other sites that are beyond our control. There may be links to other sites from the Site pages that take you outside of the Site. By providing these links, we are not endorsing, sponsoring, or recommending such sites or the materials disseminated by, or services provided by them, and we are not responsible for the materials, services, or other situations at or related to or from any other site. Please review the third-party’s policies and practices and make sure you understand them before you engage in any transaction with such third-party website. These third-party sites may send their own cookies to users, collect data, solicit personal information, or contain information that you may find inappropriate or offensive. Third-party links on the Site may direct you to third-party websites that are not affiliated with us. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. We are not liable for any harm or damages related to the purchase of use goods, services, resources, content, or any other transactions made in connection with any third-party websites.
DISCLAIMER OR WARRANTIES. THE SITE AND ALL MATERIALS, CONTENT, AND SERVICES AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. BALBOA BAY RESORT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS, CONTENT, PRODUCTS, AND/OR SERVICES AVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, FREEDOM FROM COMPUTER VIRUS, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. BALBOA BAY RESORT DOES NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS, CONTENT, PRODUCTS, AND/OR SERVICES OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR ANY MATERIALS, CONTENT, PRODUCTS, AND/OR SERVICES AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF BALBOA BAY RESORT AND ITS RELATED COMPANIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SITE, YOUR DEALING WITH ANY OTHER SITE USER, AND ANY MATERIALS, CONTENT, PRODUCTS, AND/OR SERVICES AVAILABLE THROUGH THE SITE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SITE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS, CONTENT, PRODUCTS, AND/OR SERVICES THROUGH THE SITE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SITE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL BALBOA BAY RESORT AND ITS AFFILIATED COMPANIES AND/OR ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE THE SITE OR ANY MATERIALS OR CONTENT ON THE SITE OR ANY PORTION OF THE SITE, OR YOUR RELIANCE UPON THE SITE OR THE SERVICES, CONTENT, OR MATERIALS IN, OR FUNCTIONS OF, THE SITE, OR FAILURE TO PROVIDE SERVICES, OR INFORMATION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BALBOA BAY RESORT HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. BALBOA BAY RESORT HAS NO DUTY TO UPDATE THE SITE OR THE CONTENTS THEREOF.
WITHOUT LIMITING THE FOREGOING, THE MAXIMUM AGGREGATE LIABILITY OF BALBOA BAY RESORT AND/OR ITS AFFILIATED COMPANIES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SITE, ITS MATERIALS, CONTENT, PRODUCTS, AND/OR SERVICES IS LIMITED TO THE GREATER OF (A) THE AMOUNT YOU HAVE PAID TO BALBOA BAY RESORT FOR ACCESS TO AND USE OF THE SITE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM; OR (B) ONE HUNDRED DOLLARS ($100).
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISOINS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS PROVISION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Exclusions and Limitations: Because some jurisdictions do not allow limitations on how long an implied warranty lasts, or the exclusion or limitations of liability for consequential or incidental damages, the above limitations may not apply to you. This Limitation of Liability shall be to the maximum extent permitted by applicable law.
INDEMNITY. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS BALBOA BAY RESORT, ITS SUBSIDIARIES, AFFILIATES, PARTNERS, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, LICENSORS, SERVICE PROVIDERS, SUBCONTRACTORS, SUPPLIERS, INTERNS, EMPLOYEES, AND OTHERS ACTING IN CONCERT WITH IT HARMLESS FROM ANY AND ALL ALLEGATIONS, DEMANDS, CLAIMS, LOSS, LIABILITIES, FINES, PENALTIES, OR COSTS OF WHATSOEVER NATURE, INCLUDING WITHOUT LIMITATION TO INJURY TO PERSON OR PROPERTY, ILLNESS, OR DEATH, AND REASONABLE ATTORNEYS’ FEES, MADE BY YOU OR ON YOUR BEHALF OR BY ANY THIRD-PARTY DUE TO OR ARISING OUT OF (A) YOUR CONNECTION OR SUBMISSION TO OR USE OF THE SITE OR THE CONTENT; (B) THE SERVICES PROVIDED TO YOU BY THE SITE; OR (C) YOUR VIOLATION OR BREACH OF THESE TERMS, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD-PARTY.
BALBOA BAY RESORT RESERVES THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY SUBJECT MATTER TO YOUR INDEMNIFICATION, AT YOUR EXPENSE, AND IN SUCH CASE YOU WILL COOPERATE WITH BALBOA BAY RESORT’S DEFENSE OF SUCH CLAIM.
DISPUTE RESOLUTION AND ARBITRATION. In the event that there is a dispute, claim, or controversy between you and us, arising out of ore relating to federal or state statutory claims, common law claims, these Terms, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope of applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Newport Beach, California.
- Generally. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BALBOA BAY RESORT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Balboa Bay Resort will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org or by contacting Balboa Bay Resort. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. The use of the word “arbitrator” in herein shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA Rules will govern the number of arbitrators that may preside over an arbitration conducted under this “Dispute Resolution” section. The Federal Arbitration Act will govern the interpretation and enforcement of this “Dispute Resolution” section.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). Balboa Bay Resort’s address for Notice is: Balboa Bay Resort, 1221 W. Coast Highway, Newport Beach, CA 92663. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Balboa Bay Resort may commence an arbitration proceeding. All parties participating in arbitration shall have the right, at their own expense, to be represented by a spokesperson of their own choosing. During the arbitration, the amount of any settlement offer made by you or Balboa Bay Resort must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Balboa Bay Resort will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Balboa Bay Resort in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
- Fees. You and Balboa Bay Resort agree that, in accordance with the AAA Rules, the amount of the filing fee associated with the arbitration that is payable by you is capped at $200, and Balboa Bay Resort will be responsible for payment of the balance of such filing fee in excess of $200 and other administrative and arbitrator fees associated with the arbitration. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Balboa Bay Resort will pay as much of your share of the filing fee as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
- No Class Actions. YOU AND BALBOA BAY RESORT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Balboa Bay Resort agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. If Balboa Bay Resort makes any future change to this arbitration provision (other than a change to Balboa Bay Resort’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to Balboa Bay Resort’s address for Notice, in which case your account with Balboa Bay Resort will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
FORCE MAJEURE. Balboa Bay Resort shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control or unforeseen circumstances such as acts of nature or God, fire, flood, earthquake, accidents, strikes, war, terrorism, governmental act, failure of or interruption in common carriers (including without limitation internet service providers and web hosting providers) or utilities, or shortages of transportation facilities, fuel, energy, labor or materials.
NOTICE TO CALIFORNIA RESIDENTS. The name, address, and telephone number of the provider of this Site is Balboa Bay Resort, 1221 West Coast Hwy, Newport Beach, CA 92663, (949)645-5000
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Site or to receive further information regarding use of the Service.
INTERNATIONAL USE. The Site is intended for use within the United States. We make no representation that the Site is appropriate or available for use outside of the United States. Access to the Site from countries or territories or by individuals where such access is illegal is prohibited.
SEVERABILITY. If any provision of these Terms shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the remainder these Terms will otherwise remain in full force and effect.
ELECTRONIC COMMUNICATIONS. By using the Site, you agree to receive certain electronic communications from us, subject to applicable law. You agree that any notice, agreement, disclosure, or other communication that we send electronically will satisfy any legal communication requirements, including that such communications be in writing.
TERMINATION. We may terminate these Terms and our Service at any time, with or without notice, for any reason.
ENTIRE AGREEMENT. The failure of us to exercise any right or provision of these Terms shall not constitute a waiver of such right or provision.
These Terms and any policies or operating rules posted by us on this Site or in respect or reference to the Terms constitutes the entire agreement and understand between you and us and govern your use of the Site, superseding any prior or contemporaneous agreements, communications, and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms). Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
SURVIVAL. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, ANY PROVISION OF THESE TERMS THAT IMPOSES OR CONTEMPLATES CONTINUING OBLIGATIONS ON YOU OR BALBOA BAY RESORT WILL SURVIVE THE TERMINATION OF THESE TERMS.