Terms

PLEASE READ THESE TERMS OF USE CAREFULLY.  BY USING THIS WEBSITE, YOU AGREE TO ABIDE BY THESE TERMS AND CONDITIONS, WHICH WILL CONSTITUTE OUR AGREEMENT (“AGREEMENT”).  THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION CLAUSE THAT AFFECTS YOUR LEGAL RIGHTS

WelkResorts.com Terms of Use

Last Modified: July 27, 2016

  1. Acceptance of the Terms of Use

These terms of use are entered into by and between You and Welk Resort Group, Inc., its parent, subsidiaries, and affiliates (collectively, “Company”, “we” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Use”), govern your access to and use of https://welkresorts.com (the “Website”), including any content, functionality and services offered on or through the Website, whether as a guest, a Welk time-share owner, or a registered user.

Please read the Terms of Use carefully before you start to use the Website. By using the Website, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, found at https://welkresorts.com/privacy/, incorporated herein by reference. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Website.

This Website is offered and available to users who are 18 years of age or older. By using this Website, you represent and warrant that you are of legal age and capable of forming a binding contract with the Company.

  1. Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter.

Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page frequently so that you will be aware of any changes, as they are binding on you.

  1. Accessing the Website and Account Security

We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.

To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current and complete. You agree that all information you provide to register with this Website or otherwise, including but not limited to through the use of any interactive features on the Website, is governed by our Privacy Policy at https://welkresorts.com/privacy/, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you sign-out from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

  1. Intellectual Property Rights

The Website and its entire contents, features and functionality (including but not limited to all information, software, source code, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

These Terms of Use permit you to use the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your Web browser for display enhancement purposes.
  • You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication or distribution.
  • If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
  • If we provide social media features including links to social media web sites and/or applications with certain content, you may take such actions as are enabled by such features.

You must not:

  • Modify copies of any materials from this site.
  • Use any illustrations, photographs, video or audio sequences or any graphics separately from the Website and accompanying text.
  • Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this site.

You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.

If you wish to make any use of material on the Website other than that set out in this section, please e-mail your request to legal@welkgroup.com

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws.

  1. Trademarks

The Company name, logos, including without limitation, the Welk Resorts logo, and all related names, resort names, logos, product names, program names, and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.

  1. Prohibited Uses

You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website:

  • In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  • For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
  • To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
  • To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
  • To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website or expose them to liability.

Additionally, you agree not to:

  • Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
  • Use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
  • Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
  • Use any device, software or routine that interferes with the proper working of the Website.
  • Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website.
  • Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
  • Otherwise attempt to interfere with the proper working of the Website.
  1. User Contributions

The Website may contain message boards, blogs, photo bulletin boards, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Website.

All User Contributions must comply with the Content Standards set out in these Terms of Use.

Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you grant the Company (including its affiliates) the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose and in any form of media without limitations as to time or geographic location.

You represent and warrant that:

  • You own or control all rights in and to the User Contributions and have the right to grant the license granted above to the Company.
  • All of your User Contributions do and will comply with these Terms of Use.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.

We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Website.

  1. Monitoring and Enforcement; Termination

We have the right to:

  • Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
  • Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Use, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public or could create liability for the Company.
  • Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
  • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
  • Terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these Terms of Use.

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY/ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY/SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we may not undertake to review all material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

  1. Copyright Infringement

All notices regarding claimed copyright infringement must be sent to our designated copyright agent:

Steven P. Inman

Welk Resort Group, Inc.

300 Rancheros Dr., Ste. 450

San Marcos, CA 92069

Phone: (760) 652-4913

Email: steve.inman@welkgroup.com

 

We will respond to allegations of copyright infringement that are reported in accordance with the U.S. Digital Millennium Copyright Act, or applicable laws, promptly.

  1. Reliance on Information Posted

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

This Website may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

  1. Changes to the Website

We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

  1. Links from the Website

This Website contains links to other sites and resources provided by third parties not affiliated with the Company.  These links are provided for your convenience only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

  1. Mobile Network

When you access this Website through a mobile network, your network or other provider’s data and/or roaming rates may apply.

  1. Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

  1. Limitation on Liability

IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

  1. Indemnification

You agree to indemnify, defend, and hold harmless Welk Resort Group, Inc., its parent, subsidiaries, and affiliates, and their respective owners, shareholders, officers, directors, employees, representatives, and agents from and against any claims, causes of action, demands, losses, fines, penalties, damages or other costs or expenses of any kind or nature (including attorneys’ fees) arising out of or relating to (i) your conduct, and/or that of your guests, (ii) your use of this website, (iii) your breach of these Terms of Use, (iv) your breach of any of the terms and conditions applicable to any purchases or reservations made using this website, and/or (iv) your violation of any law or the rights of a third party.

  1. Governing Law and Jurisdiction

All matters relating to the Website and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction).

  1. Dispute Resolution

Resolving customer concerns where reasonably possible to do so is important to us. If your concern has not been resolved, you may contact our customer service center at (760) 650-4358. If we cannot agree, then any dispute must be resolved as set forth below:

Any dispute, claim, suit, demand or controversy arising out of or relating to the use of your Welk timeshare (e.g., Auditions or Platinum Points), or these Terms of Use, 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 provision 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 the Company, without impairing the right to appeal such decision, this entire provision (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 you use of this Website, the purchase and/or use of Auditions or Platinum Points, your participation in any activities/events sponsored, organized, or made available by the Company, and your use of the products, benefits, and/or services purchased on this website.

The arbitration shall be administered by Judicial Arbitration and Mediation Service (“JAMS”). 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, the Company 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.) and 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 have sole authority to determine the scope of the arbitration provision in this paragraph. In the event that a Dispute involves both issues that are subject to arbitration and issues that are not subject to arbitration, the parties unequivocally agree that any legal proceeding regarding the issues not subject to arbitration shall be stayed pending resolution of the issues subject to arbitration. Should either party bring a Dispute involving issues subject to arbitration in a forum other than arbitration, the court or the arbitrator shall have the authority to award reasonable costs, fees and expenses, including reasonable attorneys’ fees, incurred by the other party in successfully staying or dismissing, in whole or in part, such other proceeding or in otherwise enforcing compliance with this arbitration provision.

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 these Terms of Use, then these Terms of Use 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.

You may reject this arbitration provision by sending a written notice which gives your name, address, and Auditions or Platinum contract number (if any), and states that you reject this arbitration provision.  The rejection notice must be sent by certified mail, return receipt requested, or reliable overnight delivery service with proof of delivery (e.g. UPS or FedEx) to WELK RESORT GROUP, INC.  300 RANCHEROS DRIVE STE. 100, SAN MARCOS, CA, 92069 ATTN: ARBITRATION OPT-OUT.  Your rejection notice must be signed and received by us within thirty (30) days after your acknowledgment of these Terms of Use.  Rejection of arbitration will not affect any other term of these Terms of Use.

Further information about arbitration may be obtained from JAMS online at www.jamsadr.org, by calling (619) 236-1848 or writing to JAMS, 401 B Street, Suite 2100, San Diego CA 92101.

  1. Waiver of Jury Trial

TO THE EXTENT A CLAIM IS NOT SUBJECT TO THE ARBITRATION PROVISION OR TO THE EXTENT AN OTHERWISE ARBITRABLE CLAIM IS LITIGATED IN COURT, THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH OF THE PARTIES HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

  1. Waiver and Severability

No waiver of by the Company of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

  1. Your Comments and Concerns

This website is operated by Welk Resort Group, Inc., which has its principal place of business at 300 Rancheros Dr., Suite 450, San Marcos, CA 92069.

All communications relating to the Website should be directed to legal@welkresorts.com.