By purchasing, using, accepting, booking, redeeming, or participating in a Virgin Experience Gifts Experience ("Experience"), Virgin Experience Gifts Experience Voucher ("Experience Voucher"), Virgin Experience Gifts Gift Certificate ("Gift Certificate"), or any other product or voucher offered by Virgin Experience Gifts (formerly known as Cloud 9 Living) (collectively, the "Services") or by accessing, browsing and using virginexperiencegifts.com (formerly cloud9living.com) (the "Website") you agree to be subject to the following terms and conditions ("Terms and Conditions" or "Agreement") as well as all other applicable laws. The Services and Website are offered by Virgin Experience Gifts Inc. (formerly known as Cloud 9 Living Inc.) ("Virgin Experience Gifts"). IMPORTANT: This Agreement includes resolution of disputes by arbitration instead of in court.
Virgin Experience Gifts may amend these Terms and Conditions at any time by posting such amended Terms and Conditions on the Website. Such amended Terms and Conditions will be effective as of the date it is posted to the Website.
Purchasing and Redeeming
Follow the instructions for purchasing and redeeming an Experience Voucher or Gift Certificate found at the Website or in Virgin Experience Gifts sales literature. As a condition to redeeming an Experience Voucher or Gift Certificate, a recipient must first register for an account and accept these Terms and Conditions.
Experience Vouchers are issued and redeemable for a specific Experience offered through the Website (e.g., an Experience Voucher may be issued for a Hot Air Balloon Ride for 1 in Del Mar, CA). Experience Vouchers are not issued to customers in a specified or denominated dollar amount. Experience Vouchers cannot be redeemed or exchanged for services with any other merchant, entity or experience supplier. Experience Vouchers cannot be redeemed or exchanged for cash except where required by state or federal law. Experience Vouchers do not store any value electronically and value cannot be electronically added or subtracted to Experience Vouchers.
You may purchase an Experience Voucher for your own use or as a gift for another person. In no event shall Virgin Experience Gifts collect your mailing address or the recipient's mailing address. Virgin Experience Gifts will, however, collect your billing address in order to complete the transaction. Upon purchase, the Experience Voucher shall be delivered electronically by e-mail to you or to the recipient.
Experience Vouchers are redeemable through the Website for the specific Experience associated with the particular Experience Voucher. In particular, the recipient is required to enter the unique Experience Voucher number from the delivery e-mail at the Website, and then will be prompted to either create an account or login to an existing account. The recipient will then be guided through the remainder of the redemption and booking process. In the event the recipient wishes to purchase any available options associated with the Experience, he or she will need to pay for those options with another form of payment.
Except as explained in the below "Standard Purchaser Return and Refund Policy," all sales of Experience Vouchers are final. However, a recipient may exchange an Experience Voucher in accordance with the conditions discussed below in "Exchanges."
Gift Certificates are issued in a dollar-denominated amount ranging from $50 to $2,000. Gift Certificates can be redeemed for Experiences only through the Website, and cannot be redeemed or exchanged for goods or services with any other merchant, entity or experience supplier. Gift Certificates cannot be redeemed or exchanged for cash except where required by state or federal law. Gift Certificates do not store any value electronically and value cannot be electronically added or subtracted to Gift Certificates (other than through redemptions).
You may purchase a Gift Certificate for your own use or as a gift for another person. In no event shall Virgin Experience Gifts collect your mailing address or the recipient's mailing address. Virgin Experience Gifts will, however, collect your billing address in order to complete the transaction. Upon purchase, the Gift Certificate shall be delivered electronically by e-mail to you or to the recipient.
Gift Certificates are redeemable through the Website toward booking an Experience of the recipient's choosing. In particular, the recipient is required to enter the unique Gift Certificate number from the delivery e-mail at the Website, and then will be prompted to either create an account or login to an existing account. The recipient will then be guided through the remainder of the redemption and booking process.
A Gift Certificate may be redeemed for an Experience of a lesser or greater value. If the chosen Experience has a lesser value than the Gift Certificate, the additional balance will be available to the recipient and may be used toward future Experience bookings. If the chosen Experience has a greater value than the Gift Certificate, the recipient must pay the difference with another form of payment.
Except as explained in the below "Standard Purchaser Return and Refund Policy," all sales of Gift Certificates are final.
Experience Vouchers and Gift Certificates Do Not Expire
Effective March 1, 2012, Experience Vouchers and Gift Certificates do not expire. If you previously purchased an Experience Voucher or Gift Certificate that has expired, please contact Virgin Experience Gifts at 1-866-525-6839 to request reinstatement and to have your expiration date lifted.
The availability, type, and price of the Experiences that we offer on the Website may vary over time. Although Experience Vouchers do not expire, any Experience Voucher that is redeemed more than nine (9) months from the date of original purchase will be subject to the current availability of such specific Experience on the Website, and you are responsible for paying for any increase in price for such Experience at the time of redemption. In the event the specific Experience is no longer available at the Website, the Experience Voucher may be redeemed for an Experience then-available at the Website equal to or less than the original purchase price of the Experience Voucher. An unredeemed Experience Voucher may also be exchanged in accordance with the below "Exchanges" section.
Third-Party Gift Certificates/Gift Codes
From time to time, the Website may offer gift certificates or gift codes that are redeemable by a third party that is not affiliated with Virgin Experience Gifts. Such third-party gift certificates/gift codes may either be available for direct purchase on the Website, or may be obtained by redeeming a Gift Certificate or Experience Voucher. In any case, the third party with which the gift certificate/gift code is redeemable shall be considered the issuer, and sole obligor, of such certificates/codes. You acknowledge that Virgin Experience Gifts shall have no liability to you with respect to these certificates/codes.
Standard Purchaser Return and Refund Policy
If you wish to return a Gift Certificate or Experience Voucher you must do so within 30 days of your purchase. All refunds must be requested by the original purchaser and will be made only to the original purchaser in accordance with the original payment method. If the Gift Certificate or Experience Voucher has been registered at virginexperiencegifts.com by someone other than the purchaser, the registered owner must contact Virgin Experience Gifts to authorize a refund to the purchaser. If the Gift Certificate or Experience Voucher has been delivered by Virgin Experience Gifts to someone other than the purchaser, the recipient must contact Virgin Experience Gifts to authorize a refund to the purchaser. No refunds are allowed once an Experience is booked in accordance with booking requirements found at the Website.
Recipients may exchange unredeemed or redeemed but unbooked Experiences at any time free of charge.
Should the recipient choose to exchange for a more expensive Experience, he or she will simply need to pay the price difference. Should he or she exchange for a less expensive Experience, the remainder will constitute an unredeemed balance remaining on such Experience Voucher or Gift Certificate, which will be applied to the recipient's account. Such unredeemed balances may only be redeemed toward future bookings of Experiences at the Website and are not redeemable for cash.
Experience Cancellations & Rescheduling
Once you have booked an Experience and received a booking confirmation, any cancellation and/or rescheduling is subject to the cancellation and rescheduling policies for your specific Experience as listed at Website regarding the description of your Experience. If you fail to appear on your booked date or to cancel and rebook in accordance with the cancellation and rescheduling policy listed for your specific Experience, (i) Virgin Experience Gifts shall have no further obligation to you, (ii) you shall not be entitled to a refund or exchange, and (iii) your Experience will be considered fully redeemed and booked.
All Experiences are subject to availability and shall be booked in advance in accordance with the requirements found at the Website. Virgin Experience Gifts makes no claim or guarantee as to the availability of any specific Experience. In the event that Virgin Experience Gifts no longer offers or otherwise terminates or withdraws an Experience or Experience location, you shall be entitled to exchange the Experience for another Experience of equal or lesser value.
Certain Experiences are very weather dependent. You should not assume that weather conditions will result in a cancellation of a booked Experience. If you fail to appear for a booked Experience that has not actually been cancelled by you or the Experience Provider, (i) Virgin Experience Gifts shall have no further obligation to you, (ii) you shall not be entitled to a refund or exchange, and (iii) your Experience will be considered fully redeemed and booked. Always contact the Experience Provider with any questions regarding weather conditions. All Experiences cancelled by the Provider due to weather conditions will be re-booked, subject to availability, without any further charge to you. Virgin Experience Gifts shall not be responsible for any losses, damages, expenses or liabilities you incur in connection with a cancelled Experience.
Providers may cancel booked Experiences without notice for reasons including but not limited to weather, mechanical or equipment problems, malfunctions or unavailability, or venue issues. In such an event, you shall be entitled to re-book or exchange such Experience in accordance with these Terms and Conditions. Virgin Experience Gifts shall not be responsible for any losses, damages, expenses or liabilities you incur in connection with a cancelled Experience.
On occasion, certain entities including but not limited to corporations, partnerships, other business entities, or non-profit entities (hereinafter "Corporate Customers") will make purchases from the Company for the purpose of either (i) resale in the ordinary course of Customer's business, or (ii) non-resale redistribution to Customer's individual customers or employees. For such Corporate Sales, the Corporate Customer agrees that (a) under no circumstances shall it be considered the owner of any Certificates purchased from the Company, (b) it shall not use or redeem the Certificates itself, and (c) it is purchasing the Certificates strictly for either (i) resale in the ordinary course of Customer's business, or (ii) non-resale redistribution to Customer's individual customers or employees. Any specific information regarding such resale or subsequent redistribution of Certificates is proprietary to Customer, and Customer shall not provide it to the Company in any form except as otherwise expressly provided in this Agreement. The Company agrees that it shall not request such information from Customer unless required by law to do so.
Disputes and Dispute Resolution
By visiting, accessing, using or browsing the Website, or by purchasing or redeeming a Gift Certificate or Experience Voucher, or by booking an Experience, you agree that the laws of Colorado, without regard to principles of conflict of laws, shall govern the conditions of use and such use will be construed in accordance with the laws of Colorado, including all matters of construction, validity and performance.
Mandatory Binding Individual Arbitration. Please read this section carefully. It affects legal rights that you may otherwise have and requires individual final and binding arbitration of most disputes instead of resolution in court.
You and Virgin Experience Gifts agree that any and all claims or disputes, whether at law or equity, in any way related to or concerning this Agreement or your purchase, acceptance or use of a Gift Certificate or Experience Voucher, or your purchase of or participation in an Experience or your use of the Website, regardless of the date of accrual of such dispute, shall be resolved in its entirety by individual (not classwide or collective) binding arbitration, except that you or Virgin Experience Gifts may take claims to a small claims court if such claims qualify for hearing by a small claims court. This agreement to arbitrate extends to claims that you assert against other parties, including without limit claims against Virgin Experience Gifts and its affiliates. The Agreement evidences a transaction in interstate commerce and the Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate.
This agreement to arbitrate shall survive termination of this Agreement.
Arbitration is the submission of a dispute to a neutral arbitrator, instead of a judge or jury, for a final and binding decision, known as an "award," and court review of an arbitration award is limited. An arbitrator may award on an individual basis the same damages and relief that a court can award under the law (including injunctive or declaratory relief and attorneys' fees).
Notwithstanding the above, you may choose to pursue your claim in court instead of arbitration if you opt of this arbitration agreement. To opt out, call (866) 525-6839. To be effective, you must opt out within 14 days from the date of your purchase, acceptance or use of a Gift Certificate or Experience Voucher or your purchase of or participation in an Experience, whichever is earlier.
CLASS ACTION WAIVER. You and Virgin Experience Gifts agree that any proceedings under this Agreement, whether in arbitration or small claims court, will be conducted on an individual basis and that class, mass, consolidated or combined actions or arbitrations or proceeding as a private attorney general are not permitted. If a court or arbitrator determines in an action between you and us that this class action waiver is unenforceable, the arbitration agreement will be void as to you.
JURY TRIAL WAIVER. If a claim proceeds in court rather than through arbitration, You and Virgin Experience Gifts agree to waive the right to trial by jury.
Arbitration shall be conducted by JAMS in accordance with its Streamlined Arbitration Rules and Procedures (the "JAMS Rules"). The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To begin an arbitration proceeding, you must serve Virgin Experience Gifts's registered agent for service of process at 11101 West 120th Ave., Suite 150, Broomfield, CO 80021, United States.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, except that for claims of less than $1,000, you will be obligated to pay $25 and Virgin Experience Gifts will pay all other administrative costs and fees. In addition, for claims of less than $1,000, Virgin Experience Gifts will reimburse you for the $25 fee if the arbitrator rules in your favor. Reasonable attorneys' fees and expenses will be awarded only to the extent such allocation or award is available under applicable law.
Any arbitration will take place in or near the county where claimant resides and will be determined by a single arbitrator; provided, however, that upon request by either party, the arbitration shall be conducted via telephone to the extent permitted by the JAMS Rules. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief).
Judgment on the award may be entered in any court of competent jurisdiction.
Lost or Stolen Certificates
Virgin Experience Gifts shall not be responsible for the loss of, theft of, or damage to any Experience Voucher or Gift Certificate. Virgin Experience Gifts shall not be responsible for the loss of any Experience Voucher or Gift Certificate as a result of identity theft or fraud.
We believe that Experience Vouchers and Gift Certificates make great gifts. Accordingly, you may assign any Experience Voucher or Gift Certificate to any third party prior to the booked date of such Experience. Any such assignee shall be subject to and legally bound by these Terms and Conditions as well as terms and conditions and participant requirements associated with the Experience as specified by the Provider.
Accuracy of Experience Descriptions & Website Content
Virgin Experience Gifts reserves the right to delete, add to or otherwise change the description, terms and conditions and the prices for any Experience without prior notice. Virgin Experience Gifts shall use commercially reasonable efforts to update the Website to reflect any deletions, additions or other changes to the description or price for any Experience; however, the Experience Provider shall be ultimately responsible for the accuracy of the description of the relevant Experience(s), including without limitation, the exact location, estimated duration, waiting times, instruction requirements, minimum and maximum number of other participants and any other limitations, restrictions or requirements related to the relevant Experience, such as age, height, physical condition, weather or other limitations, restrictions or requirements. Pictures and descriptions of Experiences included at the Website are strictly for illustrative purposes and might not accurately reflect the actual Experience.
Virgin Experience Gifts makes reasonable efforts to ensure the accuracy and completeness of the material and information contained at the Website; however, the Website may contain technical inaccuracies or typographical errors. Virgin Experience Gifts makes no warranties or representations as to its accuracy and assumes no liability or responsibility for any errors or omissions in the material or content contained in the Website. Virgin Experience Gifts provides such content and material, including the text, graphics and links, to you "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR FREEDOM FROM COMPUTER VIRUSES.
No Liability for Providers of Experiences
All providers of Experiences (the "Providers") are independent and unaffiliated to Virgin Experience Gifts. Virgin Experience Gifts is not responsible for any matters related to the Providers, including without limitation, the actions or omissions of any Providers. Virgin Experience Gifts makes no warranties or representations OF ANY KIND, EITHER EXPRESS OR IMPLIED, regarding any Experiences or the Providers thereof, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT ALL EXPERIENCES ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE RELEVANT PROVIDER AND YOU SHALL LOOK SOLELY TO THE RELEVANT PROVIDER FOR ANY MATTERS OR COMPLAINTS RELATED TO THE EXPERIENCE.
Virgin Experience Gifts shall not be liable for punitive, special, consequential, incidental or indirect damages of any kind or nature, including without limitation, lost profits, regardless of whether such liability is asserted on the basis of contract, tort, strict liability or otherwise, which relate to or are otherwise connected to any Experience or the actions or omissions of any Provider in connection with the same even if Virgin Experience Gifts has been advised of the possibility of such damages.
By purchasing and/or redeeming an Experience, Experience Voucher, or Gift Certificate, you hereby RELEASE AND FOREVER DISCHARGE and promise not to sue or assert against VIRGIN EXPERIENCE GIFTS AND ITS SUBSIDIARIES, PARENTS AND AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, OFFICERS, AUTHORIZED REPRESENTATIVES AND AGENTS, EMPLOYEES FROM ANY AND ALL CLAIMS, causes of action, damages, losses, liabilities, EXPENSES AND COSTS whatsoever THAT YOU OR YOUR HEIRS, SUCCESSORS, EXECUTORS, ADMINISTRATORS OR OTHER PERSONAL OR LEGAL REPRESENTATIVES MAY HAVE, including WITHOUT LIMITATION, all claims at law or in equity of every nature and kind, known and unknown, suspected or unsuspected, presently existing or which may arise in the future caused by, arising from, related to or otherwise attributable to THE ACTIONS OR OMISSIONS ON THE PART OF ANY PROVIDER OR OTHERWISE ARISING IN CONNECTION WITH YOUR PURCHASE, REDEMPTION, BOOKING, CANCELLATION, EXCHANGE AND/OR PARTICIPATION IN AN EXPERIENCE.
SOME JURISDICTIONS MAY NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; THUS, SOME OF THE DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS AND CONDITIONS MAY NOT APPLY TO YOU.
You may be required to execute a separate waiver and release of liability in form and substance satisfactory to the Provider before being permitted to participate in an experience.
PROVIDERS MAY OR MAY NOT BE COVERED BY LIABILITY AND/OR PROPERTY DAMAGE INSURANCE, AND EVEN WHEN A PROVIDER MAY HAVE OBTAINED SUCH INSURANCE, YOUR PARTICIPATION IN THE PROVIDER'S EXPERIENCE MAY NOT BE COVERED BY SUCH INSURANCE.
Restrictions on Use Of the Website
Website use is restricted to persons 18 years old or older.
By accessing, using or browsing the Website, you agree not to use any device, software or other tool or process to interfere or attempt to interfere with the operation of the Website and not to take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Website. In addition, you agree not to use any robot, spider or other software, device, tool or process to monitor or copy the pages or the material or content of this Website without the prior written consent of Virgin Experience Gifts. Virgin Experience Gifts typically grants such consent to operators of standard Internet search engines that employ customary technology to direct Internet users to this Website from their search engine websites.
By accessing, using or browsing the Website, you agree that the information you provide to Virgin Experience Gifts via the Website will not contain 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 data or information.
By accessing, using or browsing the Website, you agree that Virgin Experience Gifts may unilaterally terminate your rights of access to this Website without prior notice in the event that Virgin Experience Gifts determines, in its sole discretion, that (a) you have violated these Terms and Conditions or have otherwise abused, misused or otherwise sought to damage the Website, Virgin Experience Gifts or its other customers; (b) Virgin Experience Gifts receives a bona fide request from law enforcement officials or officials from other government agencies; (c) Virgin Experience Gifts experiences unexpected technical or security issues or problems; and (d) you have not visited the Website for an extended period of time. Such termination may entail the deletion of your password and account designation and all related information associated with the same; and a permanent or indefinite suspension of your rights to access, use or browse this Website.
Disclaimer and Limitation of Liability
You are accessing, using or browsing the Website at your own risk. VIRGIN EXPERIENCE GIFTS AND ITS SUBSIDIARIES, PARENTS AND AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, OFFICERS, AUTHORIZED REPRESENTATIVES AND AGENTS AND EMPLOYEES assume no liability or responsibility for any viruses that may infect your computer equipment or other property as a result of you accessing, using or browsing the Website or downloading any materials or content contained in the Website. In addition, VIRGIN EXPERIENCE GIFTS AND ITS SUBSIDIARIES, PARENTS AND AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, OFFICERS, AUTHORIZED REPRESENTATIVES AND AGENTS AND EMPLOYEES assume no liability or responsibility for any interruptions, defects, delays in operation or transmission or any access line or system failure. Neither VIRGIN EXPERIENCE GIFTS AND ITS SUBSIDIARIES, PARENTS AND AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, OFFICERS, AUTHORIZED REPRESENTATIVES AND AGENTS AND EMPLOYEES nor any third party involved in the creation, development, production or hosting of this Website will be liable to you for punitive, special, consequential, incidental, or indirect damages of any kind or nature whether such liability is asserted on the basis of contract, tort or otherwise, even if Virgin Experience Gifts has been advised of the possibility of such damages. To the maximum extent allowed by law, Virgin Experience Gifts's total, cumulative liability to you under this Agreement shall not exceed the amount paid to Virgin Experience Gifts for the applicable Services or $100.00 USD, whichever is higher.
Costs and Expenses of any Subsequent Legal Action
In the event you or Virgin Experience Gifts institutes any legal action to enforce or construe any of these Terms and Conditions (including in any arbitration or mediation), the non-prevailing party shall pay to the prevailing party the reasonable costs and expenses (including legal fees) incurred by such prevailing party in connection therewith.
There shall be no third party beneficiaries with respect to these Terms and Conditions or your use of the Website; provided, however, that recipients of Experience Vouchers and/or Gift Certificates shall become subject to these Terms and Conditions upon the redemption of such Experience Vouchers or Gift Certificates.
You shall indemnify, defend and hold harmless Virgin Experience Gifts and its subsidiaries, parents and affiliates and their respective members, managers, officers, authorized representatives and agents and employees from and against all losses, expenses, liability, damages and costs, including legal fees and costs, resulting from your violation of these Terms and Conditions and/or your access, use or browsing of this Website.
In the event that any of these Terms and Conditions is found to be illegal or unenforceable, such terms shall be null and void and shall be deemed deleted from these Terms and Conditions, and all the remaining Terms and Conditions shall remain in full force and effect.
You represent and warrant that you have the legal right, power and authority to agree to these Terms and Conditions. You further agree that your access, use or browsing of this Website constitutes an electronic signature as defined by the Electronic Signatures in Global and National Commerce Act ("E-Sign") and the Uniform Electronic Transactions Act ("UETA") and that you have validly entered into and accepted the terms of and otherwise authenticated your agreement with these Terms and Conditions and acknowledged and agreed that such agreement is an electronic record for purposes of E-Sign, UETA and the Uniform Computer Information Transactions Act and as such is completely valid, has legal effect, is enforceable, and is binding against you and is irrevocable and irrefutable by you.
Privacy and Redemption of Data
Copyright Terms and Conditions
The copyright to all materials and content contained in the Website is owned or licensed by Virgin Experience Gifts unless otherwise set forth and may not be used by you except as set forth in these Terms and Conditions. You may only download material and content contained in the Website for non-commercial, personal use provided you do not remove or alter the copyright notices set forth therein. You may not use, alter, modify, distribute, transmit or re-post the material and content contained in this Website for public or commercial purposes without the prior written consent of Virgin Experience Gifts.
Trademark Terms and Conditions
"Virgin Experience Gifts", the "Virgin Experience Gifts" logo, "Cloud 9 Living", the "C9" logo, and Virgin Experience Gifts' other trademarks and service marks and other logos and product and service names are trademarks of Virgin Experience Gifts. You may not copy, use or display in any manner such trademarks and service marks without the prior written consent of Virgin Experience Gifts.