Last Updated: July 19, 2019
Please read these Terms of Service (the “Agreement”) carefully. By using the Site (as defined below), or by clicking a box indicating that you accept or agree to the terms of this Agreement, you consent to be bound by this Agreement.
This Agreement is between you and Lindblad Expeditions, LLC (“Company” or “we” or “us”) concerning your use of (including any access to) Expeditions.com (together with any materials and services available therein, and successor site(s) thereto, and any related mobile software application(s) made available by us (together with any materials and services available therein, and successor application(s) thereto (the “App, collectively, the “Site”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by Company through the Site, or otherwise made available to you by Company, including the Reservation Terms & Conditions.
By using the Site, you affirm that you are of legal age to enter into this Agreement or, if you are not, that you have obtained parental or guardian consent to enter into this Agreement.”
If you are an individual accessing or using the Site on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual using the Site and to any such Organization.
This Agreement contains a mandatory arbitration provision that, as further set forth in Section 20 below, requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, or class actions of any kind.
1. Changes. We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Site. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your use of the Site following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Site (including access to the Site via any third-party links); charge, modify or waive any fees required to use the Site; or offer opportunities to some or all Site users.
3. Jurisdictional Issues. The Site is controlled or operated (or both) from the United States, and is not intended to subject Company to any non-U.S. jurisdiction or law. The Site may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Site is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Site’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
4. Rules of Conduct. In connection with the Site, you must not:
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Site.
5. Services. The Site may make available listings, descriptions, itineraries, brochures, videos and images of tours, expeditions or other products or services or related special offers or discounts (collectively, “Services”), as well as references and links to Services. Such Services may be made available by Company or by third parties, and may be made available for any purpose, including general information purposes. The availability through the Site of any listing, description, itinerary, brochure, video or image of a Service does not necessarily imply our endorsement of such Service or affiliation with the provider of such Service. We make no representations as to the completeness, accuracy, reliability, validity or timeliness of such listings, descriptions, itineraries, brochures, videos or images (including any features, specifications and prices contained therein). Such information and the availability of any Service (including the validity of any special offer or discount) are subject to change at any time without notice. Certain itineraries, visual depictions and similar information, descriptions and images (e.g., representations of wildlife interactions, experiences or sightings in connection with certain expeditions) are examples and are for convenience only. We make reasonable efforts to accurately depict the attributes of Services. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding your purchase, possession and use of, or activities in connection with, any Service.
6. Transactions. We may make available the ability to book, purchase or otherwise access or obtain certain Services through or in connection with the Site (a “Transaction”). If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address and your mailing address. You represent and warrant that you have the right to use any credit card that you submit in connection with a Transaction. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction. By making a Transaction, you represent that the applicable Services will be used only in a lawful manner.
Company reserves the right, including without prior notice, to limit the available quantity of or related to, or discontinue making available, any Service or any portion thereof; to impose conditions on the honoring of any special offer, discount or similar promotion; to bar any user from making any Transaction; and to refuse to provide any user with, including access to, any Service. Refunds, cancellations and exchanges will be subject to Company’s applicable refund, cancellation and exchange policies, including as set out in in the Reservation Terms & Conditions. You agree to pay all charges incurred by you or on your behalf through the Site, at the prices in effect when such charges are incurred, including all shipping, handling and/or processing charges, if any. In addition, you are responsible for any taxes applicable to your Transactions. While it is our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell, or complete a booking related to, a Service.
To the extent a Service requires shipment to you of any product or other materials, such product or materials will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions contained on the Site. All such shipments are made pursuant to a shipment contract and, as a result, risk of loss and title for any such product or materials passes to you upon delivery of such product or materials to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
7. Registration; User Names and Passwords. You may need to register to use all or part of the Site. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not Company, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Site account.
8. Profiles and Forums. Site visitors may make available certain materials (each, a “Submission”) through or in connection with the Site, including on profile pages or on the Site’s interactive services, such as message boards and other forums, and chatting, commenting and other messaging functionality. Company has no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. If you choose to make any of your personally identifiable or other information publicly available through the Site, you do so at your own risk.
9. Social Media Platforms. If you post or otherwise make available photographs, videos or other content using a Company-related hashtag (e.g., #lindbladexpeditions or #lindblad) through or in connection with a third-party social media platform (e.g., Facebook, Instagram, etc.), you hereby authorize us, or a third party acting on our behalf, to contact you for purposes of seeking your permission to use such content in connection with our business, including the Site. If you provide us with such permission, such content will be deemed a “Submission” for purposes of this Agreement and will be subject to the terms of this Agreement (including, without limitation, the license grant set forth in Section 10 below), and such other terms as may be set out in our request for permission to use such content.
10. License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
In addition, if you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Site, a Service or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Company under any fiduciary or other obligation.
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Site, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
12. Your Limited Rights. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Company to use the Site, you may view one (1) copy of any portion of the Site to which we provide you access under this Agreement, on any single device, solely for your personal, non-commercial use. The App(s) made available by Company is licensed (not sold) to end users. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Company to use the App(s), we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the App(s) on a mobile device that you own or control, solely for your personal, non-commercial use. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the App(s) and remove (that is, uninstall and delete) the App(s) from your mobile device.
13. Company’s Proprietary Rights. We and our suppliers own the Site, which is protected by proprietary rights and laws. Our trade names, trademarks and service marks include LINDBLAD EXPEDITIONS and THE EXHILARATION OF DISCOVERY and any associated logos. All trade names, trademarks, service marks and logos on the Site not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Site should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
14. Third Party Materials; Links. Certain Site functionality may make available access to information, products, services and other materials made available by third parties, including Submissions (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Company with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Site at any time. In addition, the availability of any Third Party Materials through the Site does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as terms of service or privacy policies of the providers of such Third Party Materials).
16. Disclaimer of Warranties. To the fullest extent permitted under applicable law: (a) the Site and any Services and Third Party Materials are made available to you on an “As Is,” “Where Is” and “Where Available” basis, without any warranties of any kind, whether express, implied or statutory; and (b) Company disclaims all warranties with respect to the Site and any Services and Third Party Materials, including the warranties of merchantability, fitness for a particular purpose, non-infringement and title. All disclaimers of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Company and its affiliates and their respective shareholders, directors, officers, employees, affiliates, agents, representatives, licensors, suppliers and service providers (collectively, the “Affiliated Entities”), and their respective successors and assigns.
While we try to maintain the timeliness, integrity and security of the Site, we do not guarantee that the Site is or will remain updated, complete, correct or secure, or that access to the Site will be uninterrupted. The Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any such alteration, contact us at email@example.com with a description of such alteration and its location on the Site.
17. Limitation of Liability. To the fullest extent permitted under applicable law: (a) Company and the Affiliated Entities will not be liable for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind, under any contract, tort (including negligence), strict liability or other theory, including damages for loss of profits, use or data, loss of other intangibles, loss of security of Submissions (including unauthorized interception by third parties of any Submissions), or any damages or losses resulting from any act or omission by company or any of the affiliated entities, whether before, during or after travel in connection with any services, including personal injury, death or damage to property, even if company or any of the affiliated entities are or have been advised in advance of the possibility of such damages or losses; (b) without limiting the foregoing, Company and the affiliated entities will not be liable for damages of any kind resulting from your use of or inability to use the Site or from any services or Third Party Materials, including from any Virus that may be transmitted in connection therewith; (c) your sole and exclusive remedy for dissatisfaction with the Site or any Services or Third Party Materials is to stop using the Site or such Services or Third Party Materials; and (d) the maximum aggregate liability of Company and the affiliated entities for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, shall be Twenty Dollars ($20.00), unless such damages, losses or causes of action arise out of or relate to an expedition booked by you in connection with your use of the Site, in which case the maximum aggregate liability of Company and the affiliated entities will be One Thousand Dollars ($1,000). All limitations of liability of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Company and the Affiliated Entities, and their respective successors and assigns.
18. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Company and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Site (including all Submissions and any Services); and (b) any violation or alleged violation of this Agreement by you.
19. Termination. This Agreement is effective until terminated. Company may terminate or suspend your use of the Site at any time and without prior notice, for any or no reason, including if Company believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Site will immediately cease, and Company may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Sections 2–5, 7–11 and 13–28 shall survive any expiration or termination of this Agreement.
20. Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of New York, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. Except for disputes that qualify for small claims court, all disputes arising out of or related to this Agreement or any aspect of the relationship between you and Company, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury and you agree that Company and you are each waiving the right to trial by a jury. Such disputes include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability or validity of the arbitration provision or any portion of the arbitration provision. All such matters shall be decided by an arbitrator and not by a court or judge.
You agree that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action.
The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
21. Filtering. We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that Company does not endorse any of the products or services listed on such site.
22. Information or Complaints. If you have a question or complaint regarding the Site, please send an e-mail to explore@ expeditions.com. You may also contact us by writing to 96 Morton Street, 9th Floor, New York, New York 10014, or by calling us at 1-800-397-3348. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
23. Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Site infringe your copyright, you (or your agent) may send to Company a written notice by mail, e-mail or fax, requesting that Company remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to the Legal Department as follows: By mail to Legal Department, Lindblad Expeditions, LLC, 96 Morton Street, 9th Floor, New York, New York 10014; or by e-mail to firstname.lastname@example.org. The Legal Department’s phone number is (212) 261-9060.
We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
24. Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
25. Forward Looking Statements. Certain matters discussed in any press release of Company are “forward-looking statements” intended to qualify for the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995. Such forward-looking statements include Company’s financial projections and may also generally be identified as such because the context of such statements will include words such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “will,” “would” or words of similar import. Similarly, statements that describe Company’s financial guidance or future plans, objectives or goals are also forward-looking statements. Such forward-looking statements are subject to certain risks and uncertainties that could cause results to differ materially from those expected, including the following: (a) changes adversely affecting the business in which Company is engaged; (b) management of Company’s growth and its ability to execute on its planned growth; (c) general economic conditions; (d) Company’s business strategy and plans; (e) unscheduled disruptions in our business due to weather events, mechanical failures, or other events; (f) compliance with laws and regulations; (g) compliance with the financial and/or operating covenants in Company’s third amended and restated credit agreement; (h) adverse publicity regarding the cruise industry in general; (i) loss of business due to competition; (j) the result of future financing efforts; (k) the inability to meet revenue and adjusted EBITDA projections; (k) delays and costs overruns with respect to the construction and delivery of newly constructed vessels; and (l) those risks described in Company’s filings with the SEC. Stockholders, potential investors and other readers are urged to consider these factors carefully in evaluating the forward-looking statements and are cautioned not to place undue reliance on such forward-looking statements. Any forward-looking statements are made only as of the date of the applicable press release and Company undertakes no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise. More detailed information about factors that may affect Company’s performance may be found in its filings with the SEC, which are available at http://www.sec.gov or at http://www.expeditions.com in the “Investor Relations” section of Company’s website.
26. Important Note to New Jersey Consumers. If you are a consumer residing in New Jersey, the following provisions of this Agreement do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act); (b) the limitations of liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnify Company and its Affiliated Entities (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) the New York governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
27. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Company. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Company relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Company relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Site or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Company will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
28. Apple-Specific Terms. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to Company in accordance with the “Information or Complaints” section above. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service, except that the App may also be accessed and used by other accounts associated with you via Apple’s Family Sharing or volume purchasing programs. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, Company’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.
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