All disclaimers, releases, limitations of liability, waivers, exclusions of damages, caps on liability, and other risk allocations set forth in this Section 6 are intended to apply to the maximum extent permitted by applicable law and shall be construed as separate and independent provisions.
If any provision of this Section 6, or any application thereof, is held invalid, unenforceable, or contrary to public policy as applied to a particular claim, jurisdiction, statute, or category of damages, such determination shall not affect the validity or enforceability of any other provision, nor shall it render this Section 6 or the Terms of Service as a whole unenforceable.
Any invalid or unenforceable provision shall be severed solely to the minimum extent required by law, and the remaining provisions shall remain in full force and effect.
To the maximum extent permitted by applicable law, Aphina Limited (“the Company “) (including its owners, officers, directors, employees, contractors, agents, representatives, affiliates, successors, and assigns) (collectively, the “Company Parties”) shall not be liable for any injury, illness, disease, loss, death, damage, delay, inconvenience, accident, cost, expense, or other harm of any kind, including without limitation personal injury, death, property damage, or loss of or damage to baggage or other personal property, arising out of or related to any program, itinerary, or services, including but not limited to the use of this website, whether resulting from, including without limitation: acts of God or force majeure; epidemics or pandemics; illness or 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 failures of aircraft or other means of transportation; or the failure of any transportation mechanism to arrive or depart on time.
The Company does not own or operate aircraft, motor coaches, ships, hotels, lodges, restaurants, or other third-party service providers used in connection with any program. All such suppliers and providers are independent third parties. The Company acts solely as an intermediary/booking agent for the convenience of the customer and does not control the acts or omissions of any third party. Accordingly, customer agrees that the Company Parties shall not be responsible or liable for any act, error, omission, negligence, default, failure to perform, or breach of any third party, including without limitation air carriers, hotels, tour operators, excursion operators, transportation providers, medical personnel, restaurateurs, or other providers of services or facilities.
As-is / as-available; no warrantiesAll programs, itineraries, information, recommendations, website content, and services are provided “as is” and “as available.” To the fullest extent permitted by law, the Company Parties disclaim all warranties, express or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose, accuracy, title, and non-infringement, and any warranties arising from course of dealing or usage of trade. The Company does not warrant that any program, itinerary, website, or information will meet customer’s requirements or be available, timely, secure, uninterrupted, or error-free.
General releaseTo the fullest extent permitted by applicable law, customers and users of this website (on behalf of themselves and their family, heirs, executors, administrators, successors, and assigns) hereby release, waive, and discharge the Company Parties from any and all claims, demands, causes of action, damages, losses, costs, or liabilities of every kind and nature, whether known or unknown, suspected or unsuspected, foreseeable or unforeseeable, arising out of or relating to any program, itinerary, website information, or services, including without limitation claims based on contract, tort (including negligence), strict liability, warranty, misrepresentation, or other legal theory, except to the extent such release is prohibited by applicable law or applies to non-waivable statutory claims.
Privacy / tracking technologies / pixels / session replay — limitation of liability and releaseWithout limiting any other disclaimer, release, or limitation in these Terms, and subject to the express limitations set forth below, customers and users acknowledge and agree that the Company uses cookies, pixels, tags, SDKs, analytics tools, advertising attribution tools, session replay or interaction analytics technologies, and similar tools (“Tracking Technologies”) in connection with the operation of the website and online services.
(a) Disclosure and AcknowledgmentCustomers and users acknowledge that Tracking Technologies may involve the collection,
recording, transmission, or analysis of information relating to website interactions, and that certain Tracking Technologies may be provided, hosted, or operated by independent third-party service providers.
(b) Limitation of Liability To the maximum extent permitted by applicable law, and except as expressly provided in subsection (c) below, the Company Parties shall not be liable for claims or damages arising out of or relating to (a) the use or operation of the Company’s website, booking pages, forms, or online services; (b) the use of cookies, pixels (including Meta Pixel), tags, SDKs, web beacons, analytics, advertising attribution tools, log files, or session replay technologies (collectively, “Tracking Technologies”); (c) any alleged collection, recording, sharing, “sale,” disclosure, transfer, interception, or “eavesdropping” of information in connection with Tracking Technologies; (d) any alleged invasion of privacy, intrusion upon seclusion, misappropriation of likeness, or violation of publicity rights; and/or (e) any alleged violation of any privacy, data protection, electronic communications, marketing, or consumer protection law arising from or related to the foregoing, to the extent such limitation or release is permitted by law.
(c) Jurisdictional exceptionsNotwithstanding the foregoing, nothing in this Section 6.5 shall be construed to:
- waive, limit, or release liability for any statutory claim, statutory damages, or civil penalties that are non-waivable as a matter of applicable law;
- limit liability for claims arising under penal statutes or statutes enacted for the protection of the public interest, where such limitation is prohibited.
To the extent any limitation or release set forth in this Section 6.5 is determined to be unenforceable as applied to a specific statute or jurisdiction, such limitation or release shall be deemed inapplicable solely for that purpose, without affecting the enforceability of this Section 6 as a whole or its application to other claims or jurisdictions.
Customers and users acknowledge that Tracking Technologies may be provided or hosted by third parties (including analytics and advertising providers) and agrees that any such third parties are independent entities and not under the Company’s control.
Exclusion of damagesTo the maximum extent permitted by law, in no event shall the Company Parties be liable for any indirect, incidental, special, exemplary, punitive, or consequential damages, or for any loss of profits, revenue, business, goodwill, or data, or for any emotional distress, mental suffering, or psychological injury of any kind, whether based in contract, tort (including negligence), strict liability, warranty, statute, or any other theory, even if advised of the possibility of such damages, excluding any statutory damages or civil penalties that cannot be limited by contract under applicable law.
Cap on liabilityTo the maximum extent permitted by law, the Company Parties’ aggregate liability arising out of or relating to any program, itinerary, or these Terms (including but not limited to any claim for negligence) shall not exceed the total amount paid by customer or user to the Company for the specific program giving rise to the claim, excluding amounts paid to third-party suppliers, taxes, fees, insurance premiums, and gratuities.
Time limit to bring claimsTo the maximum extent permitted by law, any claim or cause of action arising out of or relating to a program or these Terms must be commenced within six (6) months after the event giving rise to the claim, or it is forever waived and time-barred.
Cancellation / delay / force majeure — sole remedyIn the event of cancellation, delay, interruption, or rescheduling due to a force majeure event or other circumstance beyond the Company’s control, the customer shall have the option of accepting in lieu of the original program such rescheduled program or other substituted program(s) as may be offered, or else receiving a refund of as much of such advance program expenditures as the Company can recover on the customer’s behalf from carriers, third-party vendors, etc., less any non-refundable deposits or unrecoverable expenses incurred. The Company shall not have any obligation or liability to the customer beyond the foregoing.
The Company reserves the right to make alterations to program itineraries and substitute hotels, vehicles, ships, or activities if required. The Company reserves the right to cancel, delay, or reschedule any program before departure. If such cancellation is not the result of circumstances beyond the Company’s control, customer shall be entitled to a refund of monies paid to that point, less any non-refundable deposits or unrecoverable expenses incurred, as further addressed in the cancellation policies.