TERMS AND CONDITIONS
2.1 Access to Platform. Beginning on the Membership Start Date, Your Membership will provide You with Premium-level access to the Platform, including, but not limited to, discount information and pricing on hotels, car rentals, air travel, activities, and other travel services through the Platform only made available to Premium-level members, using Your own computers, tablets, and other compatible Internet-accessible devices using the login(s) and password(s) You establish through Your Platform account.
2.2 Updates and Messages. We may also provide You with periodic e-mails, text messages, or other communications to alert You to updates to the Platform, the expiration date of Your Membership, or opportunities available through the Platform (“Updates”). You agree that we may monitor and/or record Your telephone conversations with Welk for quality assurance and other purposes, and use automated telephone dialing, text messaging, pre-recorded messages, and e-mail to provide Updates to You about Your Membership. Welk will not be liable to You for message and data costs or for messages received by unintended recipients.
2.3 Free Trials. If Your access to the Platform started with a free trial, You will have access to Your same account (Welk Reward Credits, Your reservations, etc.) using the same login credentials You used during Your free trial period. If You do not purchase Your Membership before Your free trial expires, Your Premium-level Membership will automatically expire, and You will only be able to access non-Premium level information and pricing through the Platform, which does not include any discounted rates for travel services only made available to Premium-level members (“Standard Access”).
3.1 Term of Membership. Your Membership expires twelve (12) months after Your Membership Start Date (the “Term”). You may extend Your Membership for additional twelve (12) month periods by paying a $199.95 renewal fee, which amount is subject to change as set forth in this Agreement (the “Renewal Fee”) before Your Membership expires.
3.2 Ongoing Membership. YOUR MEMBERSHIP WILL CONTINUE YEAR-TO-YEAR AND AUTOMATICALLY RENEW UNLESS AND UNTIL YOU CANCEL YOUR MEMBERSHIP OR WELK TERMINATES IT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. YOU MUST HAVE INTERNET ACCESS AND PROVIDE US WITH A CURRENT, VALID, ACCEPTED METHOD OF PAYMENT, WHICH YOU MAY UPDATE FROM TIME TO TIME (YOUR “PAYMENT METHOD”) TO USE THE PLATFORM. WELK WILL BILL THE YEARLY RENEWAL FEE TO YOUR PAYMENT METHOD. YOU MUST CANCEL YOUR MEMBERSHIP BEFORE IT RENEWS AT THE END EACH TERM TO AVOID BILLING OF THE NEXT YEAR’S RENEWAL FEE TO YOUR PAYMENT METHOD. If You do not renew Your Membership, Your Premium-level Membership will automatically expire without notice, and You will only be granted Standard Access.
4.1 Recurring Billing. BY STARTING YOUR MEMBERSHIP AND PROVIDING OR DESIGNATING A PAYMENT METHOD, YOU AUTHORIZE WELK TO CHARGE YOU A RENEWAL FEE AT THE THEN CURRENT RATE, AND ANY OTHER CHARGES YOU MAY INCUR IN CONNECTION WITH YOUR USE OF THE PLATFORM, SUCH AS TAXES OR POSSIBLE TRANSACTION FEES, TO YOUR PAYMENT METHOD. TO STOP SUCH RECURRING CHARGES, YOU MAY CANCEL YOUR ACCOUNT AS SET FORTH IN THIS AGREEMENT. You acknowledge that the amount billed each year may vary from year-to-year for certain reasons, including, but not limited to, changes to the Renewal Fee or differing amounts due to promotional offers, and You authorize Welk to charge Your Payment Method for such varying amounts, which may be billed yearly in one or more charges.
4.2 Price Changes. Welk reserves the right to adjust pricing for memberships to access the Platform or any components thereof in any manner and at any time as Welk may determine in its sole and subjective discretion. Any price changes to Your Membership will take effect following e-mail notice to You by e-mail or other means, which Welk will provide to You within a reasonable time before Your Term expires.
4.3 Billing Cycles. The Purchase Price will be billed on Your Membership Start Date and each year thereafter unless and until You cancel Your Membership. Welk will automatically bill your Payment Method each year on the calendar day corresponding to Your Membership Start Date. Welk reserves the right to change the timing of its billing. In the event Your Membership Start Date is not contained in a given month in a given year, we may bill Your Payment Method on a day in the applicable month or such other day as we deem appropriate. Your renewal date may change due to changes in Your Membership.
4.4 No Refunds. Except as otherwise expressly provided in Section 5.2 and Section 15 of this Agreement, and to the fullest extent permitted under applicable law, PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED MEMBERSHIP TERMS. Following any cancellation of Your Membership, however, You will continue to have access to the Platform for the remainder of the Term. At any time, and for any reason, Welk may provide a refund, discount, or other consideration to some or all of our members (“credits”). The amount and form of such credits, and the decision to provide them, are at Welk’s sole and subjective discretion. The provision of credits in one instance does not entitle You to credits in the future for similar instances, nor does it obligate Welk to provide credits in the future, under any circumstance.
4.5 Payment Methods. You may edit Your Payment Method information by visiting the Platform and clicking on the “My Account” link. If a payment is not successfully settled due to expiration, insufficient funds, or otherwise, and You do not edit Your Payment Method information or cancel Your Premium-level Membership, Your Membership will be cancelled, and You will remain responsible for any uncollected amounts. After Your Membership is cancelled, You will only be granted Standard Access.
4.6 Cancellation of Membership. You may cancel Your Membership at any time, and You will continue to have access to the Membership through the end of Your Term, after which time You will only be granted Standard Access. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 15 OF THIS AGREEMENT, WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-YEAR MEMBERSHIP PERIODS. To cancel, You may e-mail a written request for cancellation to email@example.com and provide the e-mail address, first name, last name and phone number associated with Your Membership.
5.1 Terms and Conditions for Purchases Made Using Platform. If You purchase air or sea transportation or other travel services using the Platform, all applicable terms and conditions will be provided to You in writing for You to agree to at the time of Your purchase. You agree to abide by the terms and conditions of any provider of travel products, benefits or services You purchase using the Platform.
5.2 Cancellation of Transportation and Travel Services. Upon cancellation of air or sea transportation or other travel services purchased using the Platform, where You are not at fault and have not cancelled in violation of any terms and conditions previously clearly and conspicuously disclosed and agreed to by You, all sums paid using the Platform for transportation or services not provided will be promptly paid to You, unless You advise Welk otherwise in writing, after cancellation. This provision does not apply where Welk or its third party vendor has remitted the payment to another registered wholesale seller of travel or a carrier, without obtaining a refund, and where the wholesaler or provider defaults in providing the agreed-upon transportation or service. In this situation, Welk will provide You with a written statement accompanied by reasonable proof of disbursement of the payment, and if disbursed to a wholesale seller of travel, proof of current registration of that wholesaler.
5.3 Restitution Fund. This transaction is covered by the California Travel Consumer Restitution Fund (TCRF) if the seller of travel was registered and participating in the TCRF at the time of sale and You were located in California at the time of payment. Eligible passengers may file a claim with TCRF if the passenger is owed a refund of more than $50.00 for transportation or travel services which the seller of travel failed to forward to a proper provider or such money was not refunded to You when required. The maximum amount which may be paid by the TCRF to any one passenger is the total amount paid on behalf of the passenger to the seller of travel, not to exceed $15,000.00. A claim must be submitted to TCRF within 12 months after the scheduled completion date of the travel. A claim must include sufficient documentation to prove Your claim and a $35.00 processing fee. Claimants must agree to waive their right to other civil remedies against a registered participating seller of travel for matters arising out of a sale for which You file a TCRF claim. You may request a claim form by writing to: Travel Consumer Restitution Corporation; P.O. Box 6001; Larkspur, CA 94977-6001; or by visiting TCRC’s website at: www.tcrcinfo.org.
5.4 Seller of Travel. Welk is registered in California as Seller of Travel No. 2126630-50. Registration as a seller of travel does not constitute approval by the State of California.
5.5 Bond Disclosure. Welk maintains a seller of travel bond issued by Westchester Fire Insurance Company in the amount of $30,000, and a discount buyer organization bond issued by Westchester Fire Insurance Company in the amount of $20,000. Copies of these bonds are filed with the California Secretary of State.
6.1 You may use the Platform in accordance with this Agreement until Your Membership expires or is terminated as provided in this Agreement.
6.2 You may access the Platform, including the data made available through the Platform, via the Internet and through the Experiences by Welk mobile application using Your own computers, tablets, and other compatible Internet-accessible devices using the login(s) and password(s) You establish through your Platform account. This limited license includes the right to download and temporarily store the data made available on the Platform to storage devices under Your exclusive control. You may create printouts or other hard copies of the data made available on the Platform and the Updates for Your personal use.
6.3 You will not copy, republish, post, transmit, distribute, or otherwise use the data made available on the Platform and in the Updates except as expressly permitted by this Agreement, or with Welk’s prior written permission, or as allowed under the fair use provision of the United States Copyright Act, 17 U.S.C. § 107.
6.4 You will not sell, license, or distribute the data available on the Platform and in the Updates to third parties or use the data available on the Platform of any material offered for sale, license, or distribution without Welk’s prior written consent.
6.5 You will not remove or obscure any proprietary notices, including, without limitation, any and all copyright, trademark, and patent designations from the Platform, the data made available on the Platform, or the Updates.
6.6 You will not reverse engineer, decompile, disassemble, or otherwise attempt to discern source code of the components of the Platform, or reproduce all or any portion of the components of the Platform.
8.1 You are responsible for maintaining the confidentiality of Your password.
8.2 You will immediately notify Welk of any known or suspected breach of security, including loss, theft, or unauthorized disclosure of Your password. Welk reserves the right to place any account on hold anytime with or without notification to the Member in order to protect itself and its partners from what it believes to be fraudulent activity.
8.3 You are responsible for all usage and activity associated with Your Membership, including, without limitation, use of Your Membership by any third party authorized by You to use Your Membership, password, and login identification. You are responsible for any and all unauthorized use of Your Membership. Any fraudulent, abusive, or otherwise illegal activity shall be a breach of this Agreement and may be grounds for termination of this Agreement, at Welk’s sole discretion.
8.4 Welk or its third-party vendors will take reasonable security measures to protect against loss, misuse and/or alteration of any information or Content under its control that is on, or accessible from, the Platform or in the Updates, including security procedures intended to prevent hacking or other unauthorized access to the Platform. While “perfect security” on the Internet does not exist, Welk or its third-party vendors will take reasonable steps to secure the Platform and the Content available on the Platform. Welk urges You to be mindful of any communication requesting that You submit credit card or other information. Providing Your information in response to these types of communications can result in identity theft. Always access Your sensitive account information by going directly to the Platform and not through a hyperlink in an e-mail or any other electronic communication, even if it looks official.
8.5 You are responsible for updating and maintaining the truth and accuracy of the information You provide to Welk relating to Your Membership account.
12.1 Any dispute, claim, suit, demand or controversy arising out of or relating to the use of Your Membership, this Agreement, the Platform, the Platform website and its Content, the Updates, and Content available on the Platform, including without limitation the breach, termination, enforcement, interpretation, or validity thereof, and/or the scope or applicability of this arbitration agreement, (“Dispute”), shall be determined exclusively and finally by arbitration. Arbitration is a process whereby a dispute is submitted to an arbitrator, for a final and binding determination, known as an award. The arbitrator is an individual, similar to a judge, who reviews and weighs evidence provided by both Parties, and renders an award enforceable in court. Decisions by an arbitrator are as enforceable as any court order and are subject to very limited review by a court. By agreeing to mandatory and binding arbitration, You are agreeing to waive the right to go to court to enforce or defend Your rights, and to waive Your rights to a jury trial and to litigate claims on a class-wide or class-action basis. The parties’ rights will be determined by a neutral arbitrator. If any part of this Section 12 other than the class action waiver in this paragraph is declared unenforceable, the remainder shall be enforceable. If the class action waiver is declared unenforceable in a proceeding between You and Welk, without impairing the right to appeal such decision, this entire Section 12 (except for this sentence) shall be null and void in such proceeding. It is intended that this agreement to arbitrate be broad and comprehensive and includes, without limitation, any Dispute arising out of or related to Your use of Your Membership, the Platform, the Platform website and its Content, the Updates, and Content available on the Platform Your participation in any activities/events sponsored, organized, or made available by Welk or its affiliates, and Your use of the products, benefits, and/or services accessed through or purchased using the Platform.
12.2 The arbitration shall be administered by Judicial Arbitration and Mediation Service (“JAMS”), JudicateWest, or ADR Services, Inc. (as chosen by the party initiating the arbitration). The arbitration shall be held in San Diego County unless another location has been agreed to by the parties in writing. The parties can appear at the arbitration in person, via telephone, or via video conference (if available). Either party may submit its position for decision on the papers (solely by written presentation) in a format that is fair to both parties and acceptable to the Arbitrator. If You initiate the arbitration, Welk will pay all administrative and arbitrator fees that exceed the amount of the filing fees that You would have to pay if You had brought a lawsuit in state court (in San Diego County). The arbitration shall be held before a single arbitrator and shall be conducted pursuant to this Agreement, the Federal Arbitration Act (9 U.S.C. § 1 et. Seq.) (“FAA”) and the JAMS Streamlined Rules and Procedures. The arbitrator shall follow applicable substantive law consistent with the FAA, apply applicable statutes of limitations, honor valid claims of privilege, and issue a written reasoned decision which will be final and binding except for any review under the FAA. The arbitrator may award all remedies that would apply in an individual court action (subject to constitutional limits that would apply in court). The arbitrator shall resolve the Dispute as quickly as possible, within one hundred eighty (180) calendar days from the commencement date where reasonably possible. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class-action basis. The arbitrator shall be entitled to award any damages provided for under applicable law.
12.3 The arbitration award shall be final and binding on the parties, and if the arbitrator’s award is equal to or less than Five Thousand Dollars ($5,000.00) there shall be no right of appeal. Judgment on the arbitrator’s award may be entered in any state or federal court of competent jurisdiction. In the event of a conflict between the applicable arbitration rules and this Agreement, then this Agreement shall govern. The parties retain the right to commence
an action in a small claims court that is within the scope of the California small claims court’s jurisdiction unless: (i) that small claims action is transferred, removed or appealed to a different court; (ii) the Dispute is already
in a pending arbitration proceeding; or (iii) the Dispute has already been resolved in arbitration.
13.1 Default by You. You are in default under this Agreement if (i) You do not pay any amounts due to Welk under this Agreement; (ii) You do not perform or You violate your obligations under this Agreement; or (iii) any information You provided in this Agreement or in any other written statement You have made to Welk is false or misleading. If You default under this Agreement, Welk may pursue any or all of the remedies available to Welk, including, but not limited to, giving You written notice that Your Membership will be terminated and then terminating Your Membership. After termination of Your Membership, Welk will keep all money You paid under this Agreement through the Purchase Price and any Renewal Fees as liquidated damages and not as a penalty.
13.2 Default by Welk. If Welk does not materially comply with this Agreement, Welk’s only obligation is to refund to You any Purchase Price and/or Renewal Fees that You have paid for Your Membership, at which time the Agreement automatically terminates. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU WAIVE ALL RIGHTS AND REMEDIES THAT MIGHT OTHERWISE BE AVAILABLE TO YOU AT LAW OR IN EQUITY.
14.1 Acceptance by Welk. This Agreement shall be deemed to be accepted by Welk upon (i) the Member’s providing Welk a valid Payment Method for payment of the Purchase Price and/or Renewal Fee, as applicable, and (ii) Welk’s providing You Premium-level access to the Platform.
14.3 Governing Law; Jury Trial Waiver. Except as otherwise prescribed below in this Section 14.3, this Agreement shall in all respects be construed, interpreted, and enforced in accordance with the laws of the State of California, without regard to its conflicts or choice of laws principles. The Parties agree that this Agreement evidences a transaction involving interstate commerce so as to ensure the applicability of the FAA. In the event of a conflict
between California law and the FAA, the FAA shall govern. The parties unequivocally agree that all Disputes (defined above) between the Parties shall be brought exclusively within the County of San Diego, State of California.
14.4 Attorneys’ Fees. The prevailing party in any Dispute (including without limitation a legal action for injunctive relief or to enforce an award) between You and Welk shall be entitled to collect, in addition to any other judgment or award, all of the its reasonable attorneys’ fees and other actual litigation costs, fees and expenses incurred in connection therewith.
14.6 Severability. If any provision of this Agreement is determined to be void, invalid, unenforceable or illegal, that shall not affect the validity and enforceability of any remaining provisions.
14.7 Notice. Any notice to us must be sent to Welk Resort Group, Inc. at firstname.lastname@example.org or any other address we provide to You in writing. If any of Your Membership Information changes, including Your mailing address or e-mail address, You agree to notify us within a reasonable time.
14.8 Assignment. Your Membership cannot be sold, assigned, or transferred by You to a third party. Welk may transfer or assign its rights under this Agreement.
14.9 Counterparts. This Agreement may be completed in counterparts and may be executed manually or electronically. If this Agreement is manually executed, Welk may convert its paper copy into electronic form. As between You and Welk, any copy of this Agreement (including electronic copies) have the same legal effect as an original.
14.10 Auto-Renewals. Please see Sections 3.2 and 4 of these Terms and Conditions for automatic renewal terms and how to cancel Your Membership.