Last Updated: May 13, 2020
Pacific Whale Foundation™ and PacWhale Eco-Adventures™ Website Terms and Conditions
Each end-user visitor to the Site (“user,” “you” or “your”) agrees to the terms of the Agreement, in their entirety, when she/he: (a) accesses or uses the Site; (b) accesses and/or downloads any of the blog posts, events calendar, research reports, publications, guides, text, audio, video, photographs, graphics, artwork, testimonials and/or other content featured on the Site (collectively, “Content”); (c) registers to receive the Company newsletter or other promotional information about the Company’s offerings (“Newsletter”); (d) accesses text, video, links and/or other information pertaining to career opportunities with Company including, where available, job listings (“Careers Content”); (e) accesses links to Pacific Whale Foundation’s™ social media pages/accounts on third-party social media websites, such as Facebook®, Instagram®, TripAdvisor®, Twitter®, Yelp® and YouTube® (collectively, “Social Media Pages”); (f) accesses links to third-party environmental and other resources and/or information (“Third-Party Links”); (g) purchases Company and third-party merchandise and/or Pacific Whale Foundation™ gift cards featured on the Site (collectively, “Merchandise”); (h) makes a donation to the Pacific Whale Foundation™ (“Donation Services”); (i) books a cruise or eco-outing as offered by PacWhale Eco-Adventures™ (“Booking Services”); (j) purchases a Pacific Whale Foundation™ membership (“Membership”); and/or (k) utilizes the various contact forms and/or contact information made available on the Site as a means to contact directly, or request to be contacted by, Company (collectively, the “Contact Services,” and together with the Site, Content, Newsletter, Careers Content, Social Media Pages, Third-Party Links, Merchandise, Donation Services and Booking Services, the “Site Offerings”).
PLEASE REVIEW THE TERMS OF THE AGREEMENT CAREFULLY. IF A USER DOES NOT AGREE WITH THE TERMS OF THE AGREEMENT IN THEIR ENTIRETY, THAT USER IS NOT AUTHORIZED TO USE THE SITE OFFERINGS IN ANY MANNER OR FORM.
THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER AGAINST COMPANY, AS WELL AS ITS PARENT, SUBSIDIARIES, RELATED PARTIES, THIRD-PARTY SERVICE PROVIDERS AND MARKETING PARTNERS (COLLECTIVELY, “COVERED PARTIES”), WHO ARE EXPRESS THIRD-PARTY BENEFICIARIES OF THE MANDATORY ARBITRATION PROVISION. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT.
NEW JERSEY STATE RESIDENTS ARE ENCOURAGED TO REVIEW THEIR RIGHTS UNDER THE AGREEMENT, AS PROVIDED UNDER THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT WARRANTY AND NOTICE ACT (“TCCWNA”).
Facebook® and Instagram® are registered trademarks of Facebook, Inc. (“Facebook”). TripAdvisor® is a registered trademark of TripAdvisor, Inc. (“TripAdvisor”). Twitter® is a registered trademark of Twitter, Inc. (“Twitter”). Yelp® is a registered trademark of Yelp, Inc. (“Yelp”). YouTube® is a registered trademark of Google, Inc. (“Google”). Please be advised that Company is not in any way affiliated with Facebook, Google, TripAdvisor, Twitter or Yelp, nor are the Site Offerings endorsed, administered or sponsored by any of the foregoing entities.
1. Scope; Modification of Agreement. The Agreement constitutes the entire and only agreement between users and Company with respect to users’ use of the Site Offerings, and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to same. We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site, and you should review the Agreement prior to using the Site Offerings. By your continued use of the Site Offerings, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
2. Requirements; Termination of Access to the Site Offerings; Necessary Equipment. The Site Offerings are available only to individuals who: (a) are over eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age); (b) can enter into legally binding contracts under applicable law; and (c) are either acting in their individual capacity or are acting in their capacity as duly authorized representatives of a valid business entity (“Entity”) (collectively, “Usage Requirements”). The Site Offerings are not intended for individuals who do not satisfy the Usage Requirements, including individuals under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age), individuals who cannot enter into legally binding contracts under applicable law and/or individuals attempting to register on behalf of an Entity who are not duly authorized representatives of that Entity. If a user does not satisfy the Usage Requirements in their entirety, that user does not have permission to access or use the Site Offerings.
To the extent permitted by applicable law, Company may terminate your right to access the Site Offerings at any time where you: (i) are in any way in breach of the Agreement; (ii) are engaged in any improper conduct in connection with the Site Offerings; and/or (iii) are, at any time, conducting any unauthorized commercial activity by or through your use of the Site Offerings.
You shall be responsible, at all times, for ensuring that you have an Internet connection, computer/mobile device, up-to-date Internet browser versions, a functioning e-mail account, applicable software, applicable hardware and/or other equipment necessary to access the Site Offerings. Company does not guarantee the quality, speed or availability of the Internet connection associated with your mobile device and/or computer. Company does not guarantee that the Site Offerings can be accessed: (A) on all mobile devices; (B) through all wireless service plans; (C) in connection with all Internet browsers; or (D) in all geographical areas. Standard messaging, data and wireless access fees may apply to your use of the Site Offerings through your wireless device. You are fully responsible for all such charges and Company has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier.
3. Registration Forms. In order to utilize certain Site Offerings, including the Booking Services, Donation Services, Contact Services and Membership-related services, you may be required to submit one or more registration forms (each, a “Form”). The information that you must supply on a Form may include, without limitation: (a) your full name; (b) your mailing/billing address; (c) your e-mail address; (d) your telephone number; (e) your credit card information (where purchasing Merchandise, using the Donation Services, using the Booking Services and/or purchasing a Membership); and/or (f) any other information requested by us on the applicable registration form (collectively, “Registration Data”). You agree to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain it in up to date and accurate fashion.
4. Content. The Site contains Content which includes, but is not limited to, blog posts, events calendar, research reports, publications, guides, text, audio, video, photographs, graphics, artwork, testimonials and other information about Company. Although some of the Content made available to you on the Site is obtained and/or compiled from sources that Company believes to be reliable, Company cannot and does not guarantee the accuracy, validity, timeliness or completeness of any such Content. Reliance on any Content or other information made available to you by and through the Site Offerings is solely at your own risk. The Content is offered for informational purposes only and is at all times subject to the disclaimers contained herein and on the Site.
5. Donation Services. In connection with the Donation Services, you can make a charitable donation to the Pacific Whale Foundation™ by completing the applicable Form and providing the requisite Registration Data. Where you make a donation through the Donation Services, the credit card, debit card or Apple Pay® account (collectively, “Payment Method”) that you provide on the Form will be charged the amount selected by you. Pacific Whale Foundation is a non-profit tax-exempt IRSC 501(c)(3) organization, with federal tax ID number 99-0207417. Your donation is tax deductible in the United States, to the extent allowed by law. UNLESS OTHERWISE INDICATED, ALL DONATIONS ARE FINAL AND NON-REFUNDABLE. You understand and agree that Company is not responsible or liable in any manner whatsoever for your inability to use the Donation Services or otherwise submit a donation.
Apple® and Apple Pay® are registered trademarks of Apple, Inc. (“Apple”). Please be advised that Company is not in any way affiliated with Apple, and the Site Offerings are not endorsed, administered or sponsored by Apple.
6. Booking Services. You can book a cruise with PacWhale Eco-Adventures™ utilizing the Booking Services by and through the Site by completing the applicable Form and providing the requisite Registration Data. Where you book a cruise by and through the Booking Services, your designated Payment Method will be charged the amount listed for the applicable cruise (“Booked Cruise”), plus applicable sales tax. In some instances, you will be required to provide a deposit rather than the full price of the Booked Cruise. Where you cancel a Booked Cruise, you may be subject to certain penalties, including the loss of some or all of the deposit paid and/or an amount equal to the full price of the Booked Cruise, depending on how far in advance of the applicable sail date you cancel the Booked Cruise. UNLESS OTHERWISE INDICATED, ALL SALES OF BOOKED CRUISES ARE FINAL AND NON-REFUNDABLE.
7. Merchandise. You can purchase Company and third-party provided Merchandise (including Pacific Whale Foundation™ gift cards) by and through the Site by completing the applicable Form and providing the requisite Registration Data. Where you purchase Merchandise, your designated Payment Method will be charged the amount listed, plus applicable sales tax. UNLESS OTHERWISE INDICATED, ALL SALES OF MERCHANDISE ARE FINAL AND NON-REFUNDABLE.
Company does not warrant that the Merchandise descriptions are accurate, complete, reliable, current or error free. We have made every effort to display as accurately as possible the colors of the Merchandise that appear on the Site. However, as the actual colors you see will depend on your monitor/screen and other factors associated with your computer, mobile device or other device used to access the Site, as applicable, we cannot guarantee that the depiction of any color as viewed by you through your monitor/screen will be accurate.
In the event that Merchandise is listed at an incorrect price point due to a typographical error or an error in pricing information received from our suppliers, Company shall have the right to refuse or cancel any orders placed for the Merchandise so listed at the incorrect price. Company shall have the right to refuse or cancel any order whether or not the order has been confirmed and whether or not the applicable Customer paid for such Merchandise. If a Customer has already paid for Merchandise and that order is cancelled, Company shall immediately issue a credit to that Customer’s Payment Method in the amount of the subject charge.
Please be advised that Company does not itself manufacture or produce any of the third-party provided Merchandise (“Third-Party Merchandise”). The Third-Party Merchandise and associated descriptions, statements regarding efficacy and photographic images are provided directly by the Third-Party Merchandise manufacturers, and not Company, and are reprinted on the Site with the permission of the applicable Third-Party Merchandise manufacturers. As a result, Company has no control over: (i) the quality, safety or legality of the Third-Party Merchandise; and/or (ii) the truth or accuracy of the Third-Party Merchandise descriptions and associated claims regarding efficacy of, or other outcomes associated with, such the Third-Party Merchandise.
USE OF THE MERCHANDISE IS SOLELY AT YOUR OWN RISK. Company disclaims any and all liability for any loss, damage or injury arising from or related to any Merchandise. You understand and agree that Company is not responsible or liable in any manner whatsoever for: (a) your use of, or inability to use and/or qualify for, any Merchandise; (b) for any dispute between you and any Merchandise manufacturer, distributor or other third-party provider of Third-Party Merchandise, as applicable; or (c) any modification, suspension or discontinuation of any Merchandise.
8. Membership. You can purchase a Pacific Whale Foundation™ Membership by and through the Site by completing the applicable Form and providing the requisite Registration Data. Where you purchase a Pacific Whale Foundation™ Membership, your designated Payment Method will be charged the amount listed, plus applicable sales tax. UNLESS OTHERWISE INDICATED, ALL SALES OF MEMBERSHIPS ARE FINAL AND NON-REFUNDABLE. As list on the Site, Membership will entitle you to certain benefits including: (a) VIP boarding on Booked Cruises; (b) discounts on Booked Cruises; (c) discounts on Merchandise; (d) discounts at participating retail outlets; (e) a selected “Welcome Gift”; and (f) such other benefits as made available by Company to Pacific Whale Foundation™ Members from time-to-time (“Membership Benefits”). You understand and agree that Company is not responsible or liable in any manner whatsoever for you inability to use any Membership Benefits or otherwise purchase a Membership.
9. Billing Provisions. All prices appearing on the Site are quoted in U.S. Dollars, and are payable in U.S. Dollars. All charges incurred by and through the Site Offerings will appear on your Payment Method statement through the identifiers, “SP* Ocean Store,” “Pacific Whale Foundation” or “PacWhale Eco-Adventures.” Failure to use any Merchandise, Membership Benefits and/or take any Booked Cruise(s), as applicable, does not constitute a basis for refusing to pay any of the associated charges. Subject to the conditions set forth herein, you agree to be bound by the Billing Provisions of Company in effect at any given time. Upon reasonable prior written notice to you (with e-mail sufficing), Company reserves the right to change its Billing Provisions whenever necessary, in its sole discretion. Subsequent use of the Donation Services and/or Booking Services, and/or subsequent purchase of a Membership and/or Merchandise, after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any charges incurred prior to the applicable amendment or modification. Company’s authorization to bill for the applicable Site Offerings is obtained by way of your electronic signature or, where applicable, via physical signature and/or voice affirmation. Once an electronic signature is submitted, this electronic order constitutes an electronic letter of agency. Company’s reliance upon your electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively. Both laws specifically preempt all state laws that recognize only paper and handwritten signatures.
10. Interactions. Users are solely responsible for their interactions (“Interactions”) with other individuals on Booked Cruises, including other users and third parties. In the event that you have a dispute with one or more users and/or third parties in connection with a Booked Cruise, you hereby release (to the fullest extent permissible by law) Company including, but not limited to, its officers, directors, members, agents, subsidiaries and employees, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way connected with, such disputes. Company reserves the right, but has no obligation, to monitor disputes between you and other users and third parties in connection with the Booked Cruises. Please use caution, common sense and safety when participating in any Booked Cruises.
11. Social Media Pages. The Site contains links to the various Company Social Media Pages. The Social Media Pages are hosted and made available on third-party websites (“Social Media Websites”) by third-party entities. Your use of Social Media Pages and Social Media Websites shall be governed by those Social Media Websites’ applicable agreements, terms and conditions. You understand and agree that Company shall not be liable to you, any other user or any third-party for any claim in connection with your use of, or inability to use, the Social Media Pages and/or Social Media Websites.
12. Representations and Warranties. Each user hereby represents and warrants to Company as follows: (a) the Agreement constitutes the legal, valid and binding obligation of user, which is fully enforceable against such user in accordance with its terms; (b) user understands and agrees that user has independently evaluated the desirability of utilizing the Site Offerings and that user has not relied on any representation and/or warranty other than those set forth in the Agreement; and/or (c) the execution, delivery and performance of the Agreement by user will not conflict with or violate: (i) any order, judgment or decree applicable to user; and/or (ii) any agreement or other instrument applicable to user.
13. Indemnification. Each user agrees to indemnify, defend and hold Company, its officers, directors, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and/or expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from and/or related to: (a) any dispute between that user and any other user and/or third parties; (b) that user’s breach of the Agreement and/or any representation or warranty contained herein; and/or (c) that user’s unauthorized and/or improper use of the Site Offerings. The provisions of this Section 13 are for the benefit of Company, its parent, subsidiaries and/or affiliates, and each of their respective officers, directors, members, employees, agents, shareholders, licensors, suppliers and/or attorneys. Each of these individuals and entities shall have the right to assert and enforce these provisions directly against users on its own behalf.
14. License Grant. Each user is granted a non-exclusive, non-transferable, revocable and limited license to access and use the Site Offerings. Company may terminate this license at any time for any reason. Unless otherwise expressly authorized by Company, users may only use the Site Offerings for their own personal, non-commercial use. No part of the Site Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. No user or other third party may use any automated means or form of scraping or data extraction to access, query or otherwise collect material from the Site Offerings except as expressly permitted by Company. No user or other third party may use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Site Offerings, or any portion thereof. No user or other third party may create any “derivative works” by altering any aspect of the Site Offerings. No user or other third party may use the Site Offerings in conjunction with any other third-party content. No user or other third party may exploit any aspect of the Site Offerings for any commercial purposes not expressly permitted by Company. Each user further agrees to indemnify and hold Company harmless for that user’s failure to comply with this Section 14. Company reserves any rights not explicitly granted in the Agreement.
15. Proprietary Rights. The Site Offerings, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to same, are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights. The copying, redistribution or publication by any user or other third party of any part of the Site Offerings is strictly prohibited. No user or other third party acquires ownership rights in or to any content, document, software, services or other materials viewed by or through the Site Offerings. The posting of information or material by and through the Site Offerings does not constitute a waiver of any right in or to such information and/or materials. The “Pacific Whale Foundation” and “PacWhale Eco-Adventures” names and logos, and all associated graphics, icons and service names, are registered trademarks of the Pacific Whale Foundation and PacWhale Eco-Adventures, respectively. The use of any trademark without the applicable trademark owner’s express written consent is strictly prohibited.
16. Legal Warning. Any attempt by any individual to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Site Offerings is a violation of criminal and civil law and Company will diligently pursue any and all remedies against any offending individual or entity to the fullest extent permissible by law and in equity.
17. Disclaimer of Warranties. THE SITE OFFERINGS AND ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME ARE PROVIDED TO USERS ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, COMPANY MAKES NO WARRANTY THAT THE SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME: (A) WILL, AS APPLICABLE, MEET ANY USER’S REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; (D) WILL RESULT IN ANY SPECIFIC TRAVEL-RELATED OUTCOME OR RESULT; AND/OR (E) WILL BE ACCURATE OR RELIABLE. THE SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. COMPANY WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE SITE OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM COMPANY OR OTHERWISE THROUGH OR FROM THE SITE OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
18. Limitation of Liability. EACH USER EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE TO THAT USER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR INABILITY TO USE THE SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS OR SERVICES PURCHASED OR OBTAINED FROM OR THROUGH THE SITE OFFERINGS; (C) ANY DISPUTE BETWEEN ANY USERS AND/OR THIRD PARTIES; (D) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY REGISTRATION DATA; (E) THE FAILURE TO REALIZE ANY SPECIFIC TRAVEL-RELATED OUTCOME OR RESULT; AND (F) ANY OTHER MATTER RELATING TO THE SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. EACH USER HEREBY RELEASES COMPANY FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF COMPANY TO ANY USER UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME, MAY BE BROUGHT BY ANY USER OR COMPANY MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN EACH USER AND COMPANY. ACCESS TO THE SITE OFFERINGS WOULD NOT BE PROVIDED TO USERS WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF COMPANY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
19. Third Party Websites. The Site Offerings contain links to other websites on the Internet that are owned and operated by third parties including, without limitation, the Social Media Website and/or Third-Party Links. Company does not control the information, products or services made available on, by or through these third-party websites. The inclusion of any link does not imply endorsement by Company of the applicable website or any association with the website’s operators. Because Company has no control over such websites and/or resources, each user agrees that Company is not responsible or liable for the availability or the operation of such external websites, for any material located on or available from or through any such websites or for the protection of any user’s data privacy by third parties. Each user further agrees that Company shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on, by or through any such site.
20. Editing, Deleting and Modification. Company reserves the right, in its sole discretion, to edit and/or delete any documents, information or Content appearing on the Site.
22. Dispute Resolution Provisions. The Agreement shall be treated as though it were executed and performed in New York, NY and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). You hereby agree to arbitrate all claims that may arise under the Agreement that you may have against Company or any of the Covered Parties, who are express third-party beneficiaries of the mandatory arbitration provision. Without limiting the foregoing, should a dispute arise between you and Company and/or any Covered Party including, without limitation, any matter concerning the Site Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) you agree to submit the dispute for resolution by arbitration before the American Arbitration Association in New York, New York, in accordance with the then current Commercial Arbitration rules of the American Arbitration Association (the “AAA”); and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found Here. We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”). If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration before the AAA, in your county of residence, by filing a separate Demand for Arbitration, which is available Here. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit and/or class arbitration as to any claim, dispute or controversy that you may have against any Covered Entity and/or Company (including its employees, officers, directors, members, representatives and/or assigns). You agree to the entry of injunctive relief to stop such a class action lawsuit and/or class arbitration, as applicable, or to remove you as a participant in the suit and/or class arbitration, as applicable. You agree to pay the attorney’s fees and court costs that Company and/or any Covered Party incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits and/or class arbitrations: (i) does not constitute a waiver of any of your rights or remedies to pursue a claim individually, and not as a class action or class arbitration, in binding arbitration as provided above; and (ii) is an independent agreement. You may opt-out of these dispute resolution provisions by providing written notice of your decision within thirty (30) days of the date that you first access the Site.
23. Miscellaneous. To the extent that anything in or associated with the Site Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. Company’s failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. Company may assign its rights and obligations under the Agreement, in whole or in part, to any party at any time without notice to you. The Agreement may not, however, be assigned by you, and you may not delegate your duties under it. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
24. Contact Us. If you have any questions about the Agreement, Site Offerings or the practices of Company, you may utilize the contact method applicable to the subject matter of your inquiry, as set forth on the “Contact Us” page of the Site, or you can e-mail us at: [email protected]; call us at: (808) 249-8811; or send us mail to: Pacific Whale Foundation, 300 Maʻalaea Road, Suite 211, Wailuku, HI 96793.
Aloha, We Are Open! Our PacWhale Eco-Adventures are open for booking as we welcome visitors back to Maui. Quarantine restrictions were lifted on Oct. 15th for those following the state’s pre-arrival COVID-19 testing requirements.