HERSCHEND RESERVES THE RIGHT TO REVISE THIS AGREEMENT AT ANY TIME AND UPON SUCH REVISIONS WILL REVISE THE "LAST UPDATED" DATE AT THE BOTTOM OF THIS AGREEMENT. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE CURRENT AGREEMENT.
1. General. By using the Sites, you, the user of the Sites ("User" or "You"), are subject to this Agreement. User may not use the Sites for any unlawful purpose. Herschend may change the terms in this Agreement at any time. The changes will appear in this Agreement, and the date of this Agreement will be updated accordingly. User's use of the Sites after the posting of any changes will constitute User's agreement to the modified terms. Therefore, User should read this Agreement prior to each use of the Sites and should check the "Last Updated" date to ensure familiarity with the terms of this Agreement. User may print a copy of this Agreement for reference.
3. Registration / Your Account. To use certain features of the Sites, You may be required to register an account ("Account") with Herschend on the form provided on the Sites ("Registration"). You agree (a) to provide true, accurate, current and complete information about yourself during 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 (including rating and feedback) to any third party. Herschend will have the right to rely upon any information received from any person using a password assigned to you and will incur no liability 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 SERVICES (OR ANY PORTION THEREOF). ANY ACTIVITIES THAT ARE ILLEGALLY CARRIED ON WITHIN THE SITES 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 email@example.com.
5. Fees and Charges. All product purchases are subject to the Terms of Sale located on the Check Out Page of the purchase process. With respect to any online transactions, 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. 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 applicable Site. From time to time, You may have the opportunity to purchase certain products and/or services that are advertised on the Sites and that are offered for sale through the Sites 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 third party's Submitted Content (as defined below). You agree and acknowledge that Herschend has no control over such 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 of services or products or any related transactions. The inclusion of any third party advertisements, including Submitted Content by other users on the Sites, 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 Sites. Any purchases that you make from such third parties or users who have advertised on or through the Sites are made at your own risk and Herschend expressly disclaims all warranties and guarantees, express or implied, with respect to such purchases. You acknowledge and agree that Herschend has no responsibility or liability to you for such purchases and/or transactions.
6. License to Submitted Content. Unless otherwise agreed to in writing by You and Herschend, you hereby grant to Herschend a cost free, royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use without restriction, all messages, files, text, pictures, drawings, photographs, artwork, opinions, ideas, suggestions, and other materials, content and feedback that you upload, post or submit to the Sites or send to use for display on the Sites, or which you send to other users on the Sites (collectively, "Submitted Content"). The foregoing license includes, without limitation, the right to copy, store, reproduce, modify, adapt, display, translate, transmit, perform, publish, create derivative works from, and to sublicense these rights to third parties, and the right to exploit any property rights in such Submitted Content, including but not limited to rights under copyright, trademark, service mark or patent Laws under any relevant jurisdiction. Nothing contained in this Agreement shall limit or otherwise affect these rights.
7. Modifications of Sites. User understands and agrees that Herschend may discontinue or change any of the Sites at any time, without notice. Also, User understands and agrees that Herschend may discontinue or restrict User's use of the Sites for any reason without notice.
8. Copyright Protection. The content, features and functions displayed on the Sites by Herschend, including without limitation, all such as text, graphics, logos, button icons, images, audio clips, video, data compilations, and software ("Herschend Content" and collectively with Submitted Content, the "Content"), is the property of Herschend or its third party licensors, and is protected by U.S. and international copyright and other intellectual property Laws.
9. Trademarks. The Sites contain trademarks and trade names of Herschend. Third party trademarks and trade names are the property of their respective owners. Nothing contained on the Sites should be understood as granting You a license to use any of the trademarks, service marks, or logos owned by Herschend or by any third party.
10. Herschend Content Use Limitations. User agrees not to copy, reproduce, modify, adapt, display, translate, transmit, perform, publish, create derivative works from, or store any Herschend Content on the Sites without the express prior written consent of Herschend. User also agrees not to distribute, transmit, broadcast or circulate any Herschend Content to others, without the express prior written consent of Herschend, except User may, on an occasional and irregular basis, reproduce, distribute, display or transmit an insubstantial portion of such Herschend Content, for a noncommercial purpose and without charge, to a limited number of individuals, provided User includes all copyright and other proprietary rights notices with that portion of the Herschend Content, in the same form in which the notices appear on the Sites, and the phrase "Used with permission from Herschend." User may not post any Herschend Content to any non-Herschend owned or controlled forums, newsgroups, mail lists, electronic bulletin boards, or other web sites, without the prior written consent of Herschend. Use of all Herschend Content is 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 SITE.
11. Additional Use Limitations. You are prohibited from violating or attempting to violate any security features of the Sites, including, without limitation, (i) accessing content or data not intended for You, or logging onto a server or account that You are not authorized to access; (ii) attempting to probe, scan, or test the vulnerability of the Sites, or any associated system or network, or to breach security or authentication measures without proper authorization; (iii) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Sites, overloading, "flooding", "spamming", "mail bombing", or "crashing"; (iv) using the Sites 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 the Sites 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 Services; (vii) introducing any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (viii) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Herschend in providing the Sites. Any violation of system or network security may subject You to civil and/or criminal liability.
Our Services may be used only for lawful purposes. Transmission, posting, distribution or storage of material or conduct in violation of any Laws strictly prohibited. You agree not to use the Sites in any manner which causes any Infringement Violations of Herschend or any third party. You shall be solely responsible for any violations of any Laws and for any Infringement Violations of Herschend or any third party rights caused by You. The burden of proving that your activities in connection with the Sites do not violate any Laws or cause any Infringement Violations rests solely with You.
12. Violations. Herschend may investigate reports of abuse or misuse and, if appropriate, limit or prohibit Your use of the Sites or modify Your user profile to reflect its determinations. You agree that we may access Your Account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized use of the Sites. Herschend does not intend to disclose the existence or occurrence of such an investigation unless required by law, but Herschend reserves the right to terminate Your Account or Your access to the site immediately, with or without notice to You, if we believe You have violated any terms of this Agreement, furnished Herschend with false or misleading information, or interfered with use of the Sites by others. All determinations are final and are made at Herschend's sole discretion. In agreeing to this Agreement, You agree to participate in investigations and be bound by Herschend's determinations. If Herschend, in its sole discretion, determines that a violation of this Agreement has occurred, or if Herschend believes that Your actions may cause legal liability for You, our users or us, Herschend may take any actions or pursue any legal remedies that it believes are necessary or prudent, including, but not limited to, issuing a warning, filing a complaint, deleting any posted material from our Sites, suspending or canceling Your Account, releasing User Information, filing a report with the appropriate authorities and/or excluding any person(s) who may have violated any terms of this Agreement. Herschend may cooperate with any investigation by any federal, state, or local body or any court or tribunal. Such cooperation may be with or without notice to You. We will take each reported Account into consideration during the investigation process before making a decision.
15. LIMITATION OF LIABILITY. BY USING THE SITES, THE CONTENT OR THE SERVICES, USER IS AGREEING THAT UNDER NO CIRCUMSTANCE WILL HERSCHEND OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, PARTNERS AND AFFILIATES BE RESPONSIBLE FOR (I) ANY INFORMATION (REGARDLESS OF PROVIDED OR OMITTED BY HERSCHEND, ITS PARTNERS, OR OTHER THIRD PARTIES (INCLUDING OTHER USERS)) CONTAINED IN, DISPLAYED ON OR OMITTED FROM THE SITES; (II) ANY PERSON'S RELIANCE ON ANY CONTENT (REGARDLESS OF WHETHER PROVIDED BY HERSCHEND, ITS PARTNERS, OR OTHER THIRD PARTIES (INCLUDING OTHER USERS) OR SERVICES, WHETHER OR NOT THE CONTENT OR SERVICES ARE CORRECT (OR ADEQUATELY PERFORMED), CURRENT OR COMPLETE; (III) THE CONSEQUENCES OF ANY ACTION USER OR ANY OTHER PERSON TAKES OR FAILS TO TAKE BASED ON THE CONTENT OR SERVICES BY OR AS A RESULT OF THE USE OF THE SITES; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF USER'S TRANSMISSIONS OR DATA, OR (V) THE LOSS OF ANY PERSONAL DATA THROUGH THE SITES OR (VI) OR DAMAGES CAUSED BY ANY ITEM OR SERVICE BOUGHT THROUGH THE SITES. USER SPECIFICALLY AGREES THAT IN NO EVENT SHALL HERSCHEND OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, PARTNERS AND AFFILIATES BE LIABLE FOR ANY CONDUCT BY ANY USER ASSOCIATED WITH THE SITES, INCLUDING WITHOUT LIMITATION ANY SURVEYS, CHAT ROOMS, MESSAGE BOARDS OR OTHER SERVICES CURRENTLY OFFERED OR OFFERED IN THE FUTURE. IN NO EVENT SHALL HERSCHEND OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARENTS, SUBSIDIARIES, PARTNERS AND AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SITES, FROM ANY SERVICES PROVIDED BY OR THROUGH THE SITES, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE PROPERTY, EVEN IF HERSCHEND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN THE EVENT HERSCHEND IS FOUND LIABLE, ITS LIABILITY TO USER OR ANY THIRD PARTIES IS LIMITED TO $50. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY OT APPLY TO USER. These limitations apply among other things to any third-party claims against Herschend. The provisions of Sections 13-16 represent a reasonable allocation of the risks under this Agreement. Herschend's willingness to allow you to access and use the Sites reflects this allocation of risk and the limitations of liability specified herein.
16. WAIVER OF CLAIMS. BY USING THE SITES, THE CONTENT, OR THE 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 USE OF THE SITES, REGARDLESS OF THE NATURE OF THE ACTION, WHETHER IN LAW OR EQUITY, AND SUCH CLAIMS ARE FOREVER BARRED.
17. Indemnity. User agrees to defend, indemnify and hold harmless Herschend and (as applicable) its officers, directors, employees, agents, parents, subsidiaries, partners and affiliates against any and all claims and expenses, including attorneys' fees, resulting from or otherwise arising out of User's use of the Sites or breach of the Agreement, including, but not limited to: forum postings; communications between You, Herschend, other Users, our business partners, and/or other third parties; and Infringement Violations and violation of Laws by You.
18. Revocation of Access. Herschend reserves the right to revoke User's access to the Sites or any use authorizations relating to the Sites granted to User.
19. Use of Software. We may make certain software available to You from the Sites. If You download software from the Sites, 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. Such download does not transfer either the title or the intellectual property rights to the Software, and we 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. All trademarks and logos are owned by Herschend or its licensors and You shall not copy or use them in any manner.
21. Applicable Law. User acknowledges that the Herschend Content contained in the Sites is controlled in and originates from the United States. Herschend makes no representation that any of the Content is appropriate or available for use in other locations. Herschend has no responsibility for any access to this web site from territories where the Content may be illegal or otherwise prohibited. Users who choose to access the Sites from other locations do so at their own risk and are responsible for compliance with applicable local laws. Any claim relating to the use of the Sites and any Content shall be governed by the internal substantive laws of the State of Georgia, without regard to its conflicts of laws rules. User expressly consents to the jurisdiction of the state and federal courts of Georgia for any such claim. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
23. General. This Agreement constitutes the entire agreement between Herschend and You with respect to Your use of the Sites, and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral with respect to this subject matter. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section. If any part of this Agreement is deemed invalid or void, that part of the Agreement shall be deemed severable and shall not affect the validity or enforceability of any of the remaining conditions. Herschend's failure to act with respect to a breach by You or others does not waive our right to act with respect to subsequent or similar breaches. No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. Sections 6, 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 21, 22, and 23 shall survive any expiration or termination of this Agreement.
24. Infringement Policy. Pursuant to § 201.38 and 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. 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 site are covered by a single notification, a list of such works at that site; 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 the 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, Bryan Hardman, firstname.lastname@example.org, 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. A sample counter-notification letter is available at www.chillingeffects.org/dmca/counter512.pdf. Please contact Herschend's Designated Agent to Receive Notification of Claimed Infringement at the following address:
Designated Agent (updated March 31, 2012)
Herschend Family Entertainment
Attn: Bryan Hardman
5445 Triangle Parkway, Suite 200
Peachtree Corners, GA 30092
Last Updated on September 6, 2012