Date of Last Revision: Dec. 28, 2020
“Diamond Resorts”, “we”, “us” or “our” means Diamond Resorts International Inc., a company incorporated in the State of Delaware in the United States of America and our main operating company in Europe is Diamond Resorts (Europe) Limited located in the United Kingdom, and their parents, subsidiaries and affiliates. We are pleased to provide you with our websites, social media applications, platforms and related sites and all related content, applications, services and features (each a “Site” and collectively “Sites”).
“You” or “your” means the individual or entity accessing or using the Site or Sites or any of their services or features (the “Services and Features”). If you are not a Registered User or Authorized User (as those terms are defined below), you may not access or use these Sites or any of the Services and Features.
B. Agreement. You represent to Diamond Resorts that you have read, understand and expressly agree to be bound by this Agreement whether: (i) you have created an account with us of any kind at which time you’ll be a “Registered User” or (ii) you otherwise access and use any of the Sites at which time you’ll be considered an “Authorized User”. If you create an account and become a Registered User, you may be further required to confirm your consent to be legally bound by this Agreement by clicking an "I Accept" button at the time you create your account or periodically thereafter. Please note the affirmative clicking of the “I Accept” button is not a perquisite for this Agreement to be binding and that your use of the Sites alone is enough. You warrant that you are at least 18 years of age and possess the legal authority to enter into this Agreement and to use the Sites and Services and Features in accordance with all terms and conditions herein. If you do not agree to the Agreement or any of its terms and/or conditions, you may not use the Sites.
C. Amendments. We reserve the right to change any portion of this Agreement at any time and from time to time, including to reflect new websites, platforms, products, services, features, content or terms or any changes in the law. Any change will be effective upon our uploading of the new or amended terms to our Sites or if we provide notice of the changes. You are responsible for periodically reviewing this Agreement for changes and by continuing to access and use any of the Sites and/or any of the Services and Features, you will be deemed to have agreed to and accepted any such amendments. Diamond Resorts’ customer service representatives are not authorized to modify any provision of this Agreement.
D. Accounts and Usage. Provided you comply with this Agreement, we grant Authorized Users the right to access our Sites for purposes of: (i) learning more about the Services and Features; (ii) registering to receive alerts, announcements and other materials; and (iii) registering to become a Registered User. If you are a Registered User, only you are permitted to use our Site to utilize your Registered User services and for limited other purposes relating to booking vacations and managing your account. Apart from these express rights to use our Sites, you may not use, copy, modify, distribute, or access our Sites, or any materials we have made available on our Sites.
E. Account Creation and Use. Some Services or Features offered by Diamond Resorts permit or require that you create an account to access or use those Sites or the Services and Features. You agree that any information you provide and maintain will be provided or maintained only by you personally and not by any other person, party, company or other entity (each a “Third Party”) and that it is accurate, current and complete, including your contact information for notices and other communications from us and your payment information. You agree not to allow any Third Party to impersonate, misrepresent or represent you or present or provide any information or false details on your behalf for any reason whatsoever. You agree that you will not impersonate or misrepresent or represent any other person, Authorized User, or Registered User in any way or present or provide any of their information or false details on their behalf for any reason whatsoever. You agree to be financially responsible for all of your use of the Sites. You also warrant that all information supplied by you in using the Sites and the Services and Features is true and accurate. You agree that the reservations facilities of the Sites shall be used only to make legitimate reservations or purchases for you. You will not transfer any of your rights or obligations under this Agreement to anyone else without our prior written consent which we may withhold or condition in our sole discretion.
F. Passwords and Security. Accounts may only be set up, used and managed by you personally and not by a Third Party. If you have been provided with a login and password, then any such login and password are for your personal use only. You are solely responsible for your registration information and for updating and maintaining it and for all activities under your account. You are responsible for maintaining the confidentiality and security of your login and password and accept responsibility for all activities that occur under your account or password. You must notify us immediately in the event that the security of your login or password has been breached or if you have provided your username, password or other account information to any Third Party. You may not reveal or provide your login or password to any Third Party or permit anyone else to use your login and password to access our Site. You will not sell, transfer, share, or assign your account, your username and password, or any account rights or information with or to any Third Party. For any dispute as to account creation or authenticity, we shall have the sole right, but are not be obligated, to resolve such dispute as we determine appropriate. We may reject the use of any password, username, or email address for any reason in our sole discretion. We reserve the right to require that you change your passwords or account verification questions or change the privacy and/or security requirements, including, but not limited to, your account verification criteria.
G. Termination or Suspension. You understand that any actual or suspected unauthorized use of the Sites or its facilities may result in your use or access to the Sites being restricted or prohibited entirely in our discretion. We may terminate or suspend your access to any Sites or their Services and Features and/or terminate this Agreement subject to survival of the terms set forth below, or if we have reason to believe you have used the Sites or any of their services or features in violation of any provision of this Agreement or any applicable law. We reserve the right at all times to disclose information we deem necessary to satisfy any applicable law, regulation, legal process, or governmental request.
2. Restrictions on Your Use of the Sites
A. In addition to any other restrictions imposed upon you in this Agreement, you agree that as a condition of your use of the Sites and the Services and Features, you agree not to use any of them:
i. for any purpose that is unlawful under any applicable law or prohibited by this Agreement or for any purpose which damages or seeks to damage our business or brand determined at our sole discretion;
ii. if you have shared your member log in credentials with a Third Party or if you are using member log in credentials that do not personally belong to you;
iii. to commit or attempt to commit any act of fraud;
iv. to distribute or attempt to distribute any viruses or malware or other similar harmful software code;
v. if we've previously disabled or prohibited your use for violations of this Agreement;
vi. for purposes of promoting unsolicited advertising or sending spam;
vii. to seek to obtain access to any materials or information through "hacking" or through any other means that we have not intentionally made available to you through our Sites, including logging into a member account that does not belong to you;
viii. to simulate communications from us or another service or entity in order to collect identity information, authentication credentials, or other information (“phishing”);
ix. to allow any Third Party to simulate communications from you or access your account or account details for any purpose whatsoever.
x. in any manner that disrupts the operation of our Sites or business or the websites or business of any other entity;
xi. in any manner that harms minors;
xii. to promote any unlawful activity;
xiii. infringe any third party's copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy. Electronic materials – such as music, videos, games, images, and text in electronic form – can easily be copied, modified and sent over networks (such as the Internet). These materials may not be transmitted over our Site without the copyright owner's permission, or without a legitimate "fair use" justification for the transmittal.
xiv. to represent or suggest that we endorse any other business, product or service unless we have separately agreed to do so in writing;
xv. to gain unauthorised access to or use of computers, data, systems, accounts or networks; or
xvi. to attempt to circumvent password or user authentication methods.
3. Limitations and Monitoring
A. Limitations. You agree that you will not use any device, software or any other instrument to interfere or attempt to interfere with the proper working of our Sites, and that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. In addition, you agree that you will not use any robot, spider, other automatic device, or manual process to monitor, scrape, or copy our Sites or our information contained therein, or any aspect of our Sites or our information, without the prior express consent from our authorized representative. Furthermore, you agree that you will not use our Sites for any purpose that is illegal, unlawful, or prohibited by these Terms. You agree that you will not interrupt, disrupt, alter, destroy, impair, restrict, tamper, or otherwise affect the proper operation of our Sites in any way, including, without limitation, through the use of any malicious or unauthorised code, virus, worm, Trojan horse, malware, or program. You may not use our trademarks, logos or trade names unless we have given express written permission to you, via an officer of the company who has sufficient authority to bind us to any agreement.
B. Monitoring. You agree that we have no obligation to, but may, monitor and review information you transmit over our Sites. You agree that we may censor, edit, remove or prohibit the transmission or receipt of any information that we deem inappropriate or in violation of this Agreement, including, but not limited to, inappropriate comments or other postings on any of our social media applications or related platforms, and use any such information as necessary to protect our Sites or to protect our rights or our properties. You agree that we may also monitor and review stored information without restriction. By using our Sites, you hereby acknowledge and consent to such monitoring and reviewing. You agree that you will make only legitimate reservations in good faith for use by you and your invited guests only, and not for other purposes, including without limitation, reselling, impermissibly assigning or posting on Third Party Sites, or making speculative, false or fraudulent reservations, or any reservation in anticipation of demand.
A. Third Party Sites. Links to other sites we think may be of interest to you are provided for your convenience. By providing these links, we are not endorsing, sponsoring or recommending such sites or the materials disseminated by or services provided by them, and are not responsible for the materials, services or other situations at or related to or from any other site.
B. Links to Third Party Sites. Please exercise discretion while browsing the Internet and using our Sites and Services and Features. You should be aware that when you are using our Sites, you could be directed to other sites that are beyond our control. There are links to other sites from our Site pages that take you outside of our Sites. For example, if you "click" on a banner advertisement or a search result, the process of the "click" may take you off our Site. This includes links from advertisers, sponsors, and content partners that may use our logo(s) as part of any co-branding agreement. These other sites may send their own cookies to users, collect data, solicit personal information, or contain information that you may find inappropriate or offensive. In addition, advertisers on our Sites may send cookies to users that we do not control.
C. Right to Disable Links. We reserve the right to disable links from any third-party sites to our Site.
D. No Representations or Responsibility. We make no representations concerning the content of any third-party sites. Consequently, we cannot be held responsible for the accuracy, relevancy, copyright compliance, legality or decency of material contained in any such sites including those which may be linked to our Sites.
5. Sweepstakes and Promotions
Sweepstakes and other similar promotions that you enter on the Sites or integrated with the Sites with a third-party website, service, application, platform, and/or content (“Promotions”) may be subject to official rules and/or conditions that are supplemental to this Agreement, and which may provide details governing the the Promotion such as eligibility requirements, entry instructions, deadlines, prize information and restrictions. If you wish to participate in any Promotion, please first review the applicable promotion official rules and/or conditions. If a Promotion’s official rules and/or conditions conflict with this Agreement, the provisions contained in the official rules and/or conditions govern and control the Promotion.
6. Ownership; Reservation of Rights.
All information, software, artwork, text, video, audio, pictures, logos, and other content on our Sites, including all associated intellectual property rights, are the property of Diamond Resorts and its licensors, and are protected by copyright and other intellectual property laws, or are included based on principles of "fair use." Diamond Resorts retains all rights with respect to our Sites except those given to you in this Agreement.
7. Binding Arbitration and Class Action Waiver
A. Agreement to Arbitrate; Class Acton Waiver. PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ON AN INDIVIDUAL BASIS. Neither you nor Diamond Resorts will seek to have a Dispute heard as a class action or private attorney general action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitrations or proceedings. You and Diamond Resorts agree to arbitrate, as provided below, all disputes between you and Diamond Resorts that are not resolved informally, except disputes relating to the ownership or enforcement of intellectual property rights. “Dispute” means any dispute, action, or other controversy, whether based on past, present, or future events, between you and us concerning the Sites, the Services and Features and/or this Agreement, whether in contract, tort, warranty, statute, regulation, or other legal or equitable basis. You and Diamond Resorts empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these terms or the formation of this contract, including the arbitrability of any dispute and any claim that all or any part of this Agreement are void or voidable.
B. Arbitration Requirements. If you and Diamond Resorts do not resolve a Dispute by informal negotiation or in small claims court, the dispute shall be resolved by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act. YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY. Arbitration will be administered by JAMS Mediation, Arbitration and ADR Services (“JAMS”) in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). The JAMS Rules and instructions about how to initiate an arbitration are available at www.jamsadr.com or 1-800-352- 5267. Arbitration may be conducted in person, through the submission of documents, by phone, or online. Proceedings that cannot be conducted through the submission of documents, by phone, or online, will take place in either Las Vegas, Nevada or Orlando, Florida, whichever is more convenient for you; provided, however, that if circumstances prevent you from traveling to Las Vegas or Orlando, JAMS may hold an in-person hearing in your hometown area. You and Diamond Resorts agree to submit to the exclusive jurisdiction of the federal or state courts located in either Las Vegas, Nevada or Orlando, Florida, whichever is more convenient for you, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The arbitrator may award damages to you individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim. In accordance with the JAMS Rules, the party initiating the arbitration (either you or Diamond Resorts) is responsible for paying the filing fee. However, if the arbitrator issues you an award of damages and: (a) that award is greater than the amount of our last written settlement offer; or (b) if we did not make a settlement offer, then in addition to paying for any JAMS Case Management Fees and all professional fees for the arbitrator's services, we will reimburse you for the filing fees you incurred. Except as provided above with respect to jurisdiction in Las Vegas, Nevada and Orlando, Florida, nothing in this arbitration provision shall be construed as consent by Diamond Resorts to the jurisdiction of any other court with regard to disputes, claims or controversies unrelated to the Sites, Services and Features or this Agreement.
8. Additional Provisions
A. Choice of Forum. You agree that any action at law or in equity arising out of or relating to this Agreement that is not subject to arbitration shall be filed, and that venue properly lies, only in the state or federal courts located in either Las Vegas, Nevada in Clark County or Orlando, Florida in Orange County, United States of America and you consent and submit to the personal jurisdiction of such courts for the purposes of litigating such action.
B. Choice of Law. This Agreement is governed by and construed in accordance with the laws of the State of Las Vegas and the laws of the United States, without giving effect to any conflict of law principles.
C. Disclaimer of Warranty. THE SITES AND SERVICES AND FEATURES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES NOT EXPRESSLY SET OUT IN THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.
D. LIMITATION OF LIABILITY. IN NO EVENT SHALL DIAMOND RESORTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS OR DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING OUT OF THE USE OR PERFORMANCE OF THE SITES OR THE SERVICES OR FEATURES, OR THE PERFORMANCE OR NON-PERFORMANCE BY DIAMOND RESORTS OR ANY THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES RELATED TO THE SITES, THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE CLAIM ASSERTED IS BASED ON CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY OF RECOVERY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
E. Electronic Notice. You consent to receive notices, including agreements, disclosures and other communication electronically from us at the email address you have provided. You agree that these electronic notices satisfy any legal requirements that such communications be in writing.
F. No Third Party Beneficiaries. This Agreement does not confer any third-party beneficiary rights. All of Diamond Resorts’ rights and obligations under this Agreement are freely assignable by Diamond Resorts in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
G. Feedback. We always appreciate your feedback and other suggestions about our products and services. But you should know that we may use them without any restriction or obligation to compensate you, and we are under no obligation to keep them confidential.
H. Severability. If any provision of this Agreement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
I. Survival. The provisions of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination, including but not limited to, Sections 6, 7, and 8.
J. Waiver. No waiver of any provision of this Agreement by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.