Terms and Conditions for Custom Adventures

Last updated: 2024.01.01

IMPORTANT INFORMATION ABOUT THESE TERMS

When you receive Custom Adventure services, you become a Guest and you accept these Terms and Conditions (“Terms”) and any other terms and conditions that you are provided during the booking engagement process. These Terms include an agreement to mandatory binding individual arbitration, which means that you agree to proceeding in court. These Terms also include your waiver of any right to bring, or participate in, a class action and a jury trial waiver. If anything in these Terms is (or becomes) invalid or unenforceable, it will still be enforced to the fullest extent permitted by law and you will still be bound by everything else in these Terms. For all other terms and conditions, please refer to www.eatdrinkfun.com/terms-of-use.

Definitions

“Booking” means the Guest or Guest’s agent’s agreement to enter into a Contract with the Company.

“Booking Terms and Conditions” or “Terms” means these terms and conditions and the information contained in EDF brochures, its website and/or other information that will form the express terms of your Contract with EDF.

“Contract” means the agreement between EDF and the Guest for the Custom Adventure services as reflected in the engagement letter sent by EDF to Guest’s Travel Advisor or directly to Guest.

“Custom Adventure” means travel planning and advisory services, as well as any journey, experience, or tasting event offered by EDF, including but not limited to, Wine Adventures, Ski Adventures, Historical Adventures, and sommelier events.

“EDF” or the “Company” means Eat Drink Fun LLC and its owners, operators, parents, subsidiaries, affiliates, principals, agents, licensors, joint venturers, and all employees, officers, pilots, crew members and agents of such individuals, companies and entities. EDF’s address is 514 Americas Way, Suite 18320, Box Elder, South Dakota, 57719.

“Guest” or “Guests” means each person, including minors, named either on the booking confirmation, on the invoices, on a ticket issued for an EDF Custom Adventure, or who participates in a Custom Adventure.

“Minor” means any person under the age of 18.

“Refund” means a return of all or part of the fare paid and is applicable only on the conditions described herein. A Refund may, at EDF’s sole option, be issued in the form of a credit which shall have no cash value.

“Travel Advisor” means any travel agent or any website not owned or operated by EDF and used by the Guest to book their Custom Adventure.

“Website” means the set of related web pages, documents and hypertext links served from the web domain www.eatdrinkfun.com.

1. DEPOSIT / PAYMENT INFORMATION

A deposit may be required to confirm an engagement, which shall be determined at the time of the initial consultation. For engagements confirmed in U.S. Dollars, final payment in the form of a credit card or bank transfer must be received on the date determined at the time of the initial consultation. Failure to strictly comply with the deposit and final payment schedules, or any other applicable policies and procedures, will result in the automatic cancellation of pending services.

Payment Information:

PayPal (for credit card payments):

ACH Transfer (automated clearing house and bank wire transfers):

Please send a request for ACH information to info@eatdrinkfun.com.

2. INCLUDED IN CUSTOM ADVENTURES

All Custom Adventures include advisory services and expert recommendations curated by a certified sommelier.

The depth and complexity of each engagement depends on the Guest’s budget and goals.

Travel Planning:

Bespoke, custom tailored travel itinerary
Targeted research on the desired location or experience
Bespoke deliverables, which may include, but are not limited to, a trip itinerary, transportation and logistics recommendations, lodging recommendations, equipment rental recommendations, recommended restaurants, bars, and activities or experiences, and helpful insider tips and tools
Outreach to target lodging providers
Outreach to restaurants
Outreach to experience providers (e.g. vineyards, specialized tour operators)

Ski Sommelier Adventures

Navigation and guidance to locations on the tour
Complimentary tastings, including wine, beer, spirits, soft drinks, and water, subject to availability and terms of the engagement
Beverage recommendations
Food pairing recommendations
Language assistance

Beverage Tasting Adventures

Complementary, sommelier-curated selection of classic expressions of regional wines as advertised
Complementary, sommelier-curated selection of regional beers, spirits, and other beverages as advertised
Small bites to complement the tasting
Educational overview of certified tasting techniques
Detailed explanations of the history, significance, and unique attributes of the beverages offered

Historical Adventures

Sommelier-led tours of historical sites
Sommelier-curated recommendations on regional food and beverages
Travel-planning deliverables, which include an itinerary and recommendations regarding logistics, lodging, restaurants, and experiences.
Curated experiences with local experts (e.g., vineyard and winery owners, vintners, chefs, sommeliers, and historians).

All included services are subject to the terms of each guest engagement.

3. NOT INCLUDED IN CUSTOM ADVENTURES

Travel reservations and expenses to include, but not limited to, the following: airfare, transportation, guest transfers, and any taxes.
All insurances, to include travel insurance, ski insurance, health insurance, and any other coverage related to travel or dining experiences.
Equipment rentals, to include ski rentals, motorcycle rentals, and car rentals.
Food and beverages other than those provided in the Custom Adventures itinerary.
All gratuities, including any additional meals or activities to which an EDF guide is invited.

4. ITINERARIES

Itineraries are for guidance purposes only and may be adjusted due to unforeseen circumstances including but not limited to weather, wildlife, ice, mechanical and other malfunctions, medical emergencies and other conditions beyond EDF’s control at the sole discretion of the vendor service provider.

EDF reserves the right to modify program itineraries, including arranged sightseeing and featured experts. EDF will try to assist guests during exigent circumstances when guests must substitute accommodations, restaurants, or other vendor service providers due to unforeseen circumstances or circumstances beyond EDF’s control. Reasonable efforts will be made to operate itineraries as planned, but alterations may occur after the final itinerary has been issued.

5. TRAVEL EXPENSES

EDF is not a travel agency. EDF guests schedule their own air, ground, and seaborn transportation and porterage, as well as all lodging arrangements, based on their individual goals, personal preferences, and budgets.

6. BAGGAGE AND PERSONAL EFFECTS

Baggage and personal effects are at the owner’s risk throughout the Custom Adventure program, and EDF assumes no liability for lost, stolen or damaged baggage.

7. PRICES AND ARRANGEMENTS

Quoted Custom Adventure prices are set forth in the Guest engagement letter and correspondence. Although not expected, prices may be modified due to unexpected significant external factors not forecasted at the time of publishing. EDF is under no obligation to give a breakdown in costs of any Custom Adventure. Modification of program content to accommodate a smaller group size will not affect the published program price.

8. CHILD POLICY

All minor children under the age of eighteen (18) must be accompanied by an adult. Unless otherwise indicated herein the minimum age to participate in a Custom Adventure is sixteen (16) years old.

The permitted age of consumption varies from country to country. EDF will abide by local nation laws regarding the serving and consumption of alcoholic beverages.

The parent or guardian traveling alone with a child is recommended to carry documentation that proves their relationship to the child (e.g., birth certificate) and evidence that they have permission to travel with the child (e.g., consent letter). Guests traveling with children who are not related are recommended to carry documentation which provides evidence they have permission to travel with the child. Guests are advised to check with the appropriate government authority to determine the necessary documents required for travel with children. EDF cannot be held responsible should the guest, child or any member of the traveling party be denied entry to a country due to noncompliance with a country’s requirements.

9. ACTIVE ELEMENTS & FITNESS TO TRAVEL

The suppliers of some activities on Custom Adventures may require a minimum age or minimum/maximum height or weight to participate. Some active elements have been incorporated into select itineraries. To enjoy the Custom Adventure as intended, a minimum level of fitness is required.

By booking a Custom Adventure, Guest represents that Guest and Guest’s traveling party are physically and emotionally fit to travel and further warrants that such Guests have no medical or emotional condition that would endanger any Guest or result in a deviation of the Custom Adventure. Any Guest with special medical, physical, or other needs requiring medical attention or special accommodation during the Custom Adventure is requested to notify EDF in writing at the time of the booking of such special needs. Upon booking the Custom Adventure, Guests who have special needs are requested to contact EDF to discuss details of their special needs. EDF recommends that any Guest who is not self-sufficient should travel with a companion who shall take responsibility for any personal assistance needed during the Custom Adventure.

10. PASSPORTS AND VISAS

It is the Guest’s sole responsibility to obtain and have available when necessary the appropriate valid travel documents. All Guests are advised to check with the appropriate government authority to determine the necessary documents required for their travel. A valid passport is required for U.S. and Canadian citizens traveling to all international destinations. Passports must be valid for at least six (6) months AFTER completion of the Custom Adventure and should also have sufficient blank visa pages for entry and exit stamps. Many destinations also require a visa for U.S. and Canadian citizens; this will be indicated in Guest’s Pre-Travel Documentation. Citizens of other countries should contact the appropriate consular office for entry requirements pertaining to their Custom Adventure. A Guest may be refused boarding or disembarked from a plane, vessel or train without liability for refund, payment, compensation, or credit of any kind if the Guest does not have proper documentation, and the Guest will be subject to any fine or other costs incurred by EDF that result from improper documentation or noncompliance with applicable regulations. EDF shall not be responsible should any guest be denied entry to a country due to noncompliance with these requirements.

11. PUBLIC HEALTH: COMMUNICABLE OR INFECTIOUS DISEASES

“Communicable Disease” means any disease or illness caused by microorganisms such as bacteria, viruses, parasites, or fungi that can be spread, directly or indirectly, from one person to another. “Infectious Disease” means any disease or illness caused by microorganisms such as bacteria, viruses, parasites, or fungi that enter the body, multiply, and can cause an infection. Guest agrees, understands, and acknowledges, that an inherent risk of exposure to Communicable and Infectious Diseases such as, for example, COVID-19 (as defined by the World Health Organization and any strains, variants, or mutations thereof) and SARS-CoV-2 (the virus that can cause COVID-19) (collectively, “COVID-19”), exists in any public place where people are present, including a cruise ship.

Extremely contagious Communicable Diseases can lead to severe illness and death. No precautions can eliminate the risk of exposure to them, and the risk of exposure applies to everyone. According to the Centers for Disease Control and Prevention (“CDC”), older adults (people 65 years and older) and people of any age who have underlying medical conditions are at higher risk for severe illness and death from COVID-19. Relevant public health authorities, including but not limited to the CDC and others worldwide, are referred to herein as “Public Health Authorities.” Guests acknowledge that the risk of exposure to Communicable or Infectious Disease, such as COVID-19, includes the risk that Guests will expose others that Guests encounter, even if Guests are not experiencing or displaying any symptoms of illness.

Guest acknowledges and agrees to voluntarily assume any and all risks in any way related to exposure to any Communicable or Infectious Disease, such as COVID-19, including illness, injury, or death of Guest or others. Guest acknowledges that participation in a Custom Adventure is entirely voluntary. By participating in a Custom Adventure, Guest attests that Guest is knowledgeable about his or her individual risk of developing severe illness if Guest is exposed to and/or infected with highly contagious or communicable illnesses or diseases such as COVID-19. Guests must make an informed decision about traveling and are strongly encouraged to consult with a medical provider before deciding to participate in a Custom Adventure based on Guest’s individual risk.

Each Guest further acknowledges and agrees to abide by, and consent to, all public health rules, regulations, mandates and safety protocols issued by EDF and/or Public Health Authorities worldwide, including but not limited to:

(a) Submission to mandatory testing at such times and frequency as required by Public Health Authorities or EDF, which may include testing before, during and after a Guest’s Custom Adventure;

(b) submission to enhanced health screening for signs and symptoms of or known exposure to Communicable or Infectious Diseases such as COVID-19;

(c) denial of participation due to signs and symptoms of a possible infection or known exposure to Communicable or Infectious Diseases such as COVID-19 as determined by EDF at its sole discretion, according to technical instructions or orders by Public Health Authorities; (

(d) participation in contact tracing and data collection for Communicable or Infectious Disease surveillance;

(e) mandatory isolation and/or quarantine;

(f) mandatory daily temperature checks;

(g) mandatory use of face coverings/face masks according to Public Health Authorities’ guidelines, and

(h) following EDF physical distancing requirements.

The Guest further acknowledge that the public health rules, regulations, mandates, and safety protocols issued by EDF and/or Public Health Authorities and/or other governing bodies are subject to change. EDF reserves the right to change any of its health and safety protocols, including, but not limited to, requirements on vaccinations, masks, and physical distancing at its sole discretion, without notice. It is the Guest’s sole responsibility to confirm any changes to any health and safety protocols that may be applicable at any destination worldwide and ensure compliance with all health and safety protocols.

It is the responsibility of the Guest to become informed about the most current travel advisories and warnings by referring to the U.S. State Department or their respective government agencies. In the event of an active State Department or government agency travel warning against travel to the specific destination location(s) of the Custom Adventure, should the Guest still choose to travel, notwithstanding any travel advisory, the Guest assumes all risk of personal injury, death or property damage that may arise out of the events like those advised or warned against. Guests are also strongly encouraged to review any CDC travel advisory, warning, or recommendation relating to travel prior to making Guest’s Custom Adventure reservation at https://www.cdc.gov, and to visit the U.S. State Department’s website at http://travel.state.gov.

12. CANCELLATION CHARGES

Cancellations will be effective on the date of receipt by EDF whether by phone or email. Cancellations received by EDF may be subject to the following cancellation fees:

Cancellation feed for in-person experiences

In-person experiences include tastings and guided tours.

If booked through third-party applications (e.g. Viator, Trip Advisor), third-party cancellation terms and conditions shall apply.

If booked directly through EDF, the following cancellation terms apply:

30 calendar days prior to start: 50% of the program price
15 calendar days prior to start: 75% of the program price
7 calendar days prior to departure 100% of the program price

Additional cancellation fees may apply to Guests when EDF incurs additional supplier costs due to a cancellation (e.g., private charters; private tours and experts; exclusive private use of accommodations or venues; itineraries that fall over holiday or festival season).

Changes to the Itinerary:

Guests will be responsible for any changes or cancellations made to the itinerary at their request or beyond their control, before or during travel, including expenses incurred due to a change, delay or cancellation of any flights.

13. FORCE MAJEURE

Force majeure means unusual and unforeseeable circumstances beyond EDF's control or the control of our suppliers, the consequence of which neither EDF, nor its suppliers, could avoid even with all due care, including, but not limited to, war or threat of war; riot; civil strife; terrorist activity (actual or threatened); industrial dispute; technical problems with transport, machinery or equipment; outages or power failures; natural or nuclear disaster; fire, flood, drought or adverse weather conditions; pandemics, epidemics or outbreaks of illness; and ice conditions in oceans and level of water in rivers.

In the event of a cancellation or material alteration to the Custom Adventure as a result of the circumstances as described in this clause, EDF shall have no liability whatsoever for any travel related costs incurred by the Guest, including but not limited to air, insurance, visas and other travel arrangements of any kind.

14. PHOTOGRAPHY DURING TRAVEL

EDF reserves the right to take photographs and video of Guests during the operation of any Custom Adventure or part thereof and to use, re-use, publish, and republish their image, identity likeness, voice, interview, statements, video clips and sound recordings, and/or photographic portraits or pictures in which Guest(s) may be included (an “Image”), for promotional purposes during the program and thereafter. By booking a Custom Adventure with EDF, Guests acknowledge that EDF is the owner of the photographs and video and agree to allow their Image to be used in such photographs and videos, which may thereafter be used by EDF. Guests who prefer that their images not be used must (1) identify themselves at the beginning of their Custom Adventure; and (2) notify their EDF point of contact by email, not later than thirty (30) days following the end of the Guest’s Custom Adventure. In the event the Guest fails to comply with both obligations, the Guest shall not be exempt from this section. If such written notice is not timely provided, the Guests, individually and on behalf of any Minor traveling with them, have granted unrestricted rights and permission for EDF to use the Images.

15. LIMITS ON EDF’S RESPONSIBILITY AND FOR THIRD PARTIES WHO PROVIDE GOODS AND SERVICES

EDF may purchase transportation (by aircraft, coach, train, vessel or otherwise), hotel and other lodging accommodations, restaurant, ground handling and other services from various independent suppliers (including, from time to time, other affiliates of EDF). Neither EDF nor its parent company, affiliates or subsidiaries, nor any of their respective employees, shareholders, officers, directors, successors, representatives, agents and assigns (collectively the “EDF Parties”), own or operate any transportation, lodging accommodations on land, restaurants, ground transport and other goods and services for the Guest’s Custom Adventure. All such persons and entities are independent contractors. As a result, the EDF Parties are not liable for any injury to Guest, including any negligent or willful acts of any such person or entity or of any third person providing such goods and services.

In addition and without limitation, the EDF Parties are not responsible for any injury, financial or physical loss, death, inconvenience, delay or damage to personal property in connection with the provision of any goods or services whether resulting from but not limited to acts of God or force majeure, illness, disease, acts of war, civil unrest, insurrection or revolt, animals, strikes or other labor activities, criminal or terrorist activities of any kind, overbooking or downgrading of services, food poisoning, mechanical or other failure of aircraft or other means of transportation or for failure of any transportation mechanism to arrive or depart on time.

There are many inherent risks in adventure travel of the type involved here, which can lead to illness, injury, or even death. These risks are increased by the fact that Custom Adventures may take place in remote locations, far from medical facilities. Guests assume all such risks associated with participating in the Custom Adventure.

If Guests decide to participate in any activities including, but not limited to, any excursions involving animals, riding on animals, scuba diving, snorkeling, boating, hot air ballooning, helicopter flights, ziplining, high altitude treks, hiking, climbing, quad biking, parasailing, parachuting, kayaking, whitewater rafting, jet boat rides, polar plunge, skiing, snowboarding, snowshoeing, sledding, tobogganing, snowmobiling, primate tracking and any other activity which EDF considers to carry inherent risk of serious illness, injury or death (“Activities”), then Guests fully understand and acknowledge that Activities carry with them various inherent risks, including serious illness, injury or death, and Guests take complete responsibility for their own health and safety and agree to assume all risks of injury, illness or death, whether foreseen or unforeseen, that may befall Guests as a result of participating in any Activities and agree to release the EDF Parties from any liability whatsoever related thereto.

Further, as consideration for being permitted to participate in the Activities; Guests release the EDF Parties, whether known or unknown, from, and agree not to sue or make claim against the EDF Parties for, property damage, cancellation of any Activities for any reason, illness, negligent rescue operations or procedures, personal injury, or death arising out of Guest participation in the Activities, and any activity related thereto, including transportation to and from the site of the Activities, regardless of whether such property damage, illness, personal injury, or death results from the negligence of the EDF Parties and/or from any defect in equipment. Guests further agree to indemnify and hold the EDF Parties harmless with respect to any claim made against the EDF Parties by anyone else (a) related to Guest participation in any trip or any Activities, or (b) which would be subject to the above release and covenant not to sue if Guest had made the claim directly. Upon receipt of notice of the assertion of a claim, the EDF Parties reserve the right to approve, or withdraw approval of, counsel, in its sole discretion.

16. AMENDMENTS

EDF reserves the right to correct any errors or omissions in its published materials and to amend these Terms at any time. All amended Terms shall automatically be effective upon being posted by EDF to the Website. Guests should check the Website prior to travel in order to ensure they are aware of any changes.

17. IMPORTANT LIMITATIONS ON THE COMPANY’S LIABILITY

Nothing in these Terms shall limit or deprive EDF of the benefit of any applicable statutes or laws of the United States of America or any other country; or any international convention providing for release from, or limitation of, liability. In the event multiple statutes, laws or conventions may apply, EDF shall be entitled to any or all such limitations unless there is a conflict between such statutes, laws or conventions, in which case EDF shall be entitled to invoke the limitation which provides the most favorable limitation to EDF.

(A) Time Limits For Claims

EDF shall not be liable for any claims whatsoever unless full particulars in writing are given to EDF within thirty (30) days after the Guest completes the Custom Adventure. Legal proceedings to recover on any claim whatsoever other than for personal injury, illness or death shall not be maintainable unless commenced within six (6) months after the date Guest completes the Custom Adventure, and unless served upon EDF within 120 days after commencement. Guest expressly waives all other potentially applicable state or federal limitation periods for claims which include, but are not limited to, allegations concerning any and all civil rights, the Americans with Disabilities Act (ADA), trade practices and/or advertising.

(B) Small Claims under $12,000

(C) Arbitration for All Claims Over $12,000

Any and all disputes, claims, or controversies whatsoever whether brought based on contract, tort, statutory, constitutional or other legal rights, including but not limited to alleged violation of civil rights, discrimination, consumer or privacy laws, or for any losses, damages or expenses, relating to or in any way arising out of or connected with these Terms and the booking of the Custom Adventure, no matter how described, pleaded or styled, between the Guest and EDF, in which Guest or any other claimant asserts damages for more than $12,000.00 (excluding attorney fees, costs, and interest, which are not included to determine the amount at issue) shall be referred to and resolved exclusively by binding arbitration pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958), 21 U.S.T. 2517, 330 U.N.T.S. 3, 1970 U.S.T. LEXIS 115, 9 U.S.C. §§ 202-208 (“the Convention”) and the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq., (“FAA”) solely in Pennington County, South Dakota, U.S.A. to the exclusion of any other forum. Guest hereby consents to such exclusive jurisdiction and waives any jurisdictional, venue or other objection that may be available to any such arbitration proceeding in Pennington County, South Dakota. The arbitration shall be administered by National Arbitration and Mediation (“NAM”) under its comprehensive dispute resolution rules and procedures and the fee schedule in effect at the time of initiating the proceeding with NAM, which are deemed to be incorporated herein by reference. Each party shall bear their own costs and fees associated with any such filing. If Guest has a question about the arbitration process or wants to obtain a current copy of the comprehensive dispute resolution rules and procedures and/or fee schedule, guest may contact NAM at: National Arbitration and Mediation, attention Claims Department, 990 Stewart Street, First Floor, Garden City, NY 11530, telephone number (800) 358-2550. Neither party will have the right to a jury trial or to engage in pre-arbitration discovery except as provided in the applicable arbitration rules and herein, or otherwise to litigate the claim in any court (other than small claims court in Pennington County, Illinois). The arbitrator’s decision will be final and binding.

(D) Jurisdiction, Venue and Jury Trial Waiver

Except as provided above and only if the above-referenced arbitration clause is ruled unenforceable by a court of law, it is agreed by and between the Guest and EDF that all disputes and matters whatsoever related to, arising under, in connection with or incident to these Terms, shall be litigated, if at all, before the United States District Court For The District of South Dakota in Rapid City or, as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Pennington County, South Dakota, U.S.A. to the exclusion of the courts of any other county, state or country. Guest hereby consents to such exclusive jurisdiction and waives any jurisdictional, venue or other objection that may be available. If a matter is brought in the federal courts of the United States and no diversity jurisdiction exists, then the matter must proceed under the court’s admiralty jurisdiction and Guests may not be allowed a trial by jury. If a matter proceeds under the court’s admiralty jurisdiction, then the carrier consents to a trial by jury pursuant to Federal Rule of Civil Procedure 39(C). Guest acknowledges and understands that a federal court presiding over the matter under admiralty jurisdiction may not grant a trial by jury despite carrier and Guest’s request for a trial by jury, and in such event, Guest knowingly and voluntarily waives a trial by jury.

(E) Arbitration Rules and Jury Trial Waiver

Neither party will have the right to a jury trial or to engage in pre-arbitration discovery except as provided in the applicable arbitration rules and herein, or otherwise to litigate the claim in any court. The arbitrator’s decision will be final and binding. Other rights that guest or carrier would have in court also may not be available in arbitration. An award rendered by an arbitrator may be entered in any court having jurisdiction under the Convention or FAA. Carrier and guest further agree to permit the taking of a deposition under oath of the guest asserting the claim, or for whose benefit the claim is asserted, in any such arbitration. In the event this provision is deemed unenforceable by an arbitrator or court of competent jurisdiction for any reason, then and only then the provisions of section 22(d) above governing venue and jurisdiction shall exclusively apply to any lawsuit involving claims described in this clause.

(F) Governing Law

EDF bookings are deemed to be contracts made in the state of South Dakota and are governed by South Dakota law.

(G) Class Action Waiver

Guest hereby agrees that these Terms provide for the exclusive resolution of disputes through individual legal action on each Guest’s behalf rather than any class, collective or representative action. A Guest may only bring claims against EDF in the Guest's individual capacity. Even if the applicable law provides otherwise, the Guest agrees that any arbitration or lawsuit against EDF whatsoever shall be litigated by the Guest individually and not as a member of any class or as part of a class or representative or action, and the Guest expressly agrees to waive any law entitling guest to participate in a class action. If the Guest’s claim is subject to arbitration as provided in section above, the arbitrator shall have no authority to arbitrate claims on a class action basis. The Guest agrees that this section shall not be severable under any circumstances from the arbitration clause set forth above, and if for any reason this class action waiver is unenforceable as to any particular claim, then and only then such claim shall not be subject to arbitration. The validity and effect of this class action waiver may be determined only by a judge or court of law and not by an arbitrator. The Guest agrees that the carrier can receive immediate judicial assistance to enforce this class action waiver.

(H) Claims for Emotional Distress

EDF shall not be liable to the Guest for any emotional distress, mental anguish or psychological injury of any kind, except where said emotional distress, mental anguish or psychological injury was the result of either (a) physical injury to the Guest caused by the negligence or fault of EDF or (b) the Guest having been at actual risk of physical injury and such risk was caused by the negligence or fault of EDF.

(I) Claims of Improper Performance or Breach of the Contract

EDF’s liability for improper performance or breach of the Contract shall be limited to a maximum of two times the price which the Guest paid for their Custom Adventure services.

(J) No Consequential, Indirect or Punitive Damages

Notwithstanding anything to the contrary elsewhere in these Terms, in no event shall EDF or its members, partners, shareholders, directors, officers, managers, employees or agents be liable for any indirect, consequential, incidental or punitive damages (including but not limited to damages for lost profits, loss of revenue, loss of use, loss of contract or other opportunity, for any other consequential or indirect loss or damage of a similar nature) arising out of the transaction contemplated herein.

18. MODIFICATIONS

These Terms may be revised from time to time without prior notice.

19. PRIVACY NOTICE

See the EDF Privacy Notice, which can be found at www.eatdrinkfun.com/privacy, and which is incorporated herein.