Direct Premium Seller Terms of Service
Last Updated: 30 January 2023
These Terms of Service (these “Terms”) constitute a binding legal agreement between Seller (as defined below) and Hospitable, Inc. (“Hospitable”) that governs a Seller’s (as defined below) use of the Services (as defined below) in connection with (a) the rental of real property (an “Accommodation”) for short-term rental by certain guests, including pursuant to confirmed reservations; and (b) the provision by Seller of services to Occupants (as defined below) in connection with their use of the Services and rental of an Accommodation. These Terms govern each Seller’s right to use the websites, applications, and other offerings made available by Hospitable from time to time, including the “marketplace” (the “Marketplace”) where Sellers connect with Guests (collectively, the “Services”).
A user of the Services who offers an Accommodation for short-term rental (a “Listing”) via the Services is referred to herein as a “Seller” or “you”, and individuals or entities that use the Services to make booking requests and/or purchase short-term rental offerings are referred to herein as “Guests” (Sellers and Guests collectively, the “Members”). When you receive a booking confirmation, you form a direct contract with the applicable Guests to provide hosting services with respect to a particular Accommodation (a “Reservation”).
Other terms and policies supplement these Terms, including Hospitable’s Privacy Policy, which can be found at https://hospitable.com/privacy/ (as may be modified from time to time, the “Privacy Policy”), which describes the collection and use of personal data.
General Terms
1.1. Use of Services.
In order to use the Services in your capacity as a Seller, you must first register a Hospitable Direct Premium account. You represent and warrant throughout the term of your use of the Services that (i) you are a legal entity, partnership, or a natural person who is at least eighteen (18) years of age, (ii) you are not a person or entity that is barred from using any of the Services under the laws of the United States or any other jurisdiction, and (iii) information that you provide to Hospitable is accurate, current, and complete. You may not register more than one account or transfer your account to someone else. You may only maintain one Listing per property, unless a single property has multiple, standalone places to stay. You are responsible for maintaining the confidentiality and security of your account credentials and may not disclose your credentials to any third party. You are responsible and liable for activities conducted through your Hospitable account, and also responsible for and need to secure your account and team account with a secure password. You agree to indemnify and hold Hospitable harmless from and against any losses incurred in connection with, activities conducted through your account. You agree to notify Hospitable immediately if you suspect that your credentials have been lost or stolen, or if you suspect that your account has otherwise been compromised. If and as permitted by applicable law, Hospitable may, but is not required to, (A) ask you to provide identification or other information, (B) undertake checks designed to help verify your identity or background, (C) screen you against third-party databases or other sources and request reports from service providers, and (D) obtain reports from public records of criminal convictions or sex offender registrations or their local equivalents.
By accessing the Services, you acknowledge that you have read and understand, and agree to be bound by, all terms, conditions, and policies set forth or referenced in these Terms (as they may be modified from time to time), as well as any additional terms, conditions, rules, or policies to which you agree in writing with a Guest with respect to an Accommodation.
Neither Hospitable nor Seller may (i) exercise control or supervision over the other party or its representatives or (ii) direct the operations of the other party or the manner of the other party’s performance under these Terms, and each of Hospitable and Seller disavows the right to do so. Seller has complete discretion regarding whether, when, and on which terms and pricing to provide services, including Accommodations, to Guests. These terms do not create, and will not be construed as creating, any agency, partnership, joint venture or other employment relationship. Neither Hospitable nor Seller shall have any right, power or authority to assume, create or incur any expense, liability, or obligation, express or implied, on behalf of the other, except as expressly provided herein. Notwithstanding the foregoing, Hospitable acts as a payment collection agent for Seller, as set forth herein.
1.2. Compliance with Law. You are responsible for understanding and complying with all applicable laws, rules, and regulations, as well as any agreements with Guests or any other third parties with respect to your use of the Services, including for the short-term rental of Accommodations. Hospitable encourages you to seek legal advice in connection with your provision of short-term rental of Accommodations, provision of services to Guests and other Occupants, and these Terms (and any policies that are implemented by Hospitable from time to time).
1.3. Compliance with Hospitable’s Policy. Hospitable may from time to time implement other or additional terms, conditions, or policies that supplement these Terms, and you will be responsible for complying with all such terms, conditions, or policies.
1.4. Seller’s Representation. Throughout the term of your use of the Services, you represent and warrant that you operate all of your Accommodations for short-term rental in accordance with all applicable laws and that you deliver a quality experience to Guests.
1.5. Supplemental Contracts. Any terms, policies or conditions that you include in any other supplemental contract with Guests must be consistent with these Terms, information provided in the Seller’s Listing, and such supplemental contract must be expressly and prominently disclosed in your Listing.
1.6. Seller’s Assumption of Risk. You acknowledge that serving as a host for Guests and other Occupants of an Accommodation carries inherent risks, and you agree that you assume the entire risk arising out of or related to your access to and use of the Services, offering services to Guests and other occupants of an Accommodation, and any interaction that you have with other Sellers, Guests, or other Occupants of an Accommodation, whether in person or online or via the Services. You agree that you have had the opportunity to investigate the Services and any laws, rules, regulations, and other obligations that may be applicable to your Listings or services as Seller, and you further agree that you are not relying upon any statement of law made by Hospitable when you agree to these Terms, use the Services, or offer or provide services as a Seller.
Listings
2.1. Complete and Accurate Information. Each of your Listings must include complete and accurate information about its accommodations, prices, availability, additional charges, and any rules or requirements that apply to Guests or other occupants of the Accommodation, including pets (collectively with Guests, “Occupants”) that book or use a Listing, and you must keep your Listing information and content (such as photographs) up to date throughout the term of your use of the Services. You are responsible for delivering service under the terms and at the prices specified in each Listing.
2.2. Booking Requests. When accepting a booking request, or receiving a booking confirmation via the Services, you are entering into a contractual agreement directly with the applicable Guest. You agree to review and accept or decline booking requests presented to you via the Services within twenty-four (24) hours after receipt thereof. If you fail to review a booking request within such period, Hospitable has the right, but not the obligation, to cancel the booking request and void the authorization to charge the Guest therefor. When you receive a booking confirmation or if you accept a booking request within the required time period, the reservation becomes fully confirmed.
2.3. Receiving Payment from Guests. All amounts that you charge to Guests in connection with bookings and Reservations must be processed through Hospitable’s payment processing features, as in effect from time to time. If you charge, or attempt to charge, any amounts to Guests in connection with a booking or Reservation in any manner other than via the Services, such charges will not be binding or enforceable upon the Guest, and Hospitable may, in its sole discretion, review, suspend, or terminate your access to the Services.
2.4. Listings’ Legal Compliance. You are responsible for being aware of, understanding, and complying with any laws, rules, regulations, and agreements with third parties that apply to your Listings, including, but not limited to, homeowner association rules, restrictions on subletting and rentals in lease agreements, zoning restrictions, permit and license requirements, guest registration requirements, tenancy rights, and rent control requirements. Any information that Hospitable provides regarding legal requirements is for informational purposes only, and you must independently confirm your obligations. You are responsible for handling and using personal data of Occupants and others in compliance with all applicable privacy and other laws and these Terms. If you have any questions about how local laws, regulations, rules, or agreements apply you should always seek legal advice.
2.5. Personal Data of Guests. You are responsible for handling and using personal data of Guests and others in compliance with applicable privacy and other laws, regulations, rules, and agreements and these Terms, including the Privacy Policy.
2.6. Participation of Third Party in Providing Seller Services. You are responsible and liable for, and you will indemnify and hold Hospitable harmless with respect to claims arising from or related to, your own acts and omissions throughout the term of your use of the Services, and you are also responsible for, and will indemnify and hold Hospitable harmless with respect to claims arising from or related to, the acts and omissions of anyone you allow to participate in your provision of services to Occupants via the Services. You are responsible for setting your price, for establishing rules and requirements for your Listings, and for ensuring that such rules and requirements do not conflict with these Terms. You agree not to encourage Guests to create third-party accounts, submit reviews, provide their contact information, or take other actions outside the Marketplace in violation of any of Hospitable’s policies.
2.7. Seller as Team or Organization. If you work with a another host as part of a team, business, or other organization, each entity and individual that participates in Seller’s use of the Services or in providing Seller’s services to Occupants is responsible and liable as a Seller under these Terms. If you accept terms or enter into written agreements, you represent and warrant that you are authorized to enter into agreements on behalf of your team, business, or other organization, and thus bind your team, business, or other organization, and that each participating entity is in good standing under the laws of the jurisdictions in which it is required to be registered. If you perform other functions in connection with the Services or other services that you provide to Occupants, you represent and warrant that you are authorized to perform those functions. If you instruct Hospitable to transfer a portion of any amounts owed to you in connection with your use of the Services to any account other than Seller’s, you must be authorized to do so, and you are responsible and liable for the payment amounts and the accuracy of any payout information that you provide. If you are part of a team, business, or other organization, you must expressly disclose this in your Listing and/or make this information available to potential Guests or Guests who make Reservations.
Fees and Taxes
3.1. Hospitable Service Fee. Hospitable does not deduct any fees from the price set by the Seller. Instead, Hospitable charges Guests a service fee to cover Hospitable’s costs to provide the Services (e.g. payment processing fees, Guest vetting, and insurance). Hospitable collects payments directly from Guests on behalf of Seller, and Hospitable then pays Seller the amounts owed to Seller (generally within twenty-four (24) hours after the applicable Guest check-in). Before receiving any payment from Hospitable, you must fulfill all “Know Your Customer” requirements specified by Hospitable’s payment processing feature.
3.2. Remittance of Taxes. Hospitable collects all applicable sales and lodging taxes for each booking. Sales taxes are remitted directly by Hospitable, while lodging taxes may be remitted on behalf of Seller or passed through for remittance by Seller. You agree that you are required to comply with all local lodging tax laws and regulations.
You agree to timely remit any lodging taxes collected from applicable Guests by Hospitable and passed through to Seller. You must keep records of all taxes remitted, copies of which must be delivered to Hospitable upon Hospitable’s request. Depending on the jurisdiction of each Accommodation, Hospitable will either pass through collected lodging taxes or directly remit them (either under Hospitable’s name or on your behalf). You hereby instruct and authorize Hospitable to collect taxes on your behalf and/or to remit such taxes to the relevant tax authority.
Seller agrees to, and will, deliver to Hospitable, no later than the fifth (5th) day after the end of each calendar quarter, an affidavit signed by Seller that states the amounts of taxes that Seller has paid to each taxing jurisdiction during the immediately preceding calendar quarter. Each such affidavit will include a schedule of each Guest’s name, address, dates of stay, total amount received for each stay, and breakdown of the amount remitted to each taxing jurisdiction.
In the event that a taxing jurisdiction determines that Hospitable is responsible for remitting taxes attributable to a Guest’s stay at an Accommodation, you agree that (i) Hospitable can remit the taxes to the jurisdiction; or (ii) assign any refund to Hospitable, and in each case of (i) and (ii), you further agree to cooperate fully and to promptly take all necessary steps, to assist in securing all refunds, to pay Hospitable any amounts received by or refunded to you from local taxing jurisdictions, including in the event that a local jurisdiction asserts that Hospitable should have remitted an applicable local tax rather than Seller, including in the event that any refunds due to Hospitable must be assigned to Hospitable where it is determined by a local taxing jurisdiction that the tax should have been remitted by Hospitable rather than Seller.
3.3. Transaction Records of Taxes. Any taxes that are collected and/or remitted by Hospitable are identified to Sellers on their transaction records. Hospitable may seek additional amounts from you (including by deducting such amounts from future payouts) in the event that the taxes collected and/or remitted are insufficient to fully discharge your tax obligations, and you agree that your sole remedy for taxes collected by Hospitable is a refund from the applicable tax authority. You acknowledge and agree that we retain the right, with prior notice to affected Sellers, to cease the collection and remittance of taxes in any jurisdiction for any reason. You are responsible for accurate record keeping and you may be required to regularly submit evidence that lodging taxes transferred by Hospitable are being remitted in a timely manner. Failure to provide such documentation and attestations when requested by Hospitable, may result in a delay in your ability to pay out collected fees via the Services.
Cancellations, Refunds, and Modifications
4.1. Cancellations and Travel Problems.
If a Guest cancels a Reservation, the amount paid to Seller will be determined in accordance with the cancellation policy that applies to that Reservation (minus any amounts to which Hospitable is entitled pursuant to these Terms).
As a Seller, you agree not to cancel any Reservation unless cancellation is necessary due to Extenuating Circumstances (as defined in Section 4.2) or is required by applicable law. In the event of Seller cancellations of Reservations for any other reason, Hospitable may charge a cancellation fee to indemnify Hospitable for costs incurred by Hospitable in connection therewith (such as payment processing, Guest vetting, and insurance), and Hospitable reserves the right to take other actions with respect to Seller, including, but not limited to, review or suspension of Seller’s use of the Services.
Notwithstanding Section 4.1(a) and the terms of any cancellation policy that governs a Reservation, if (i) a Guest experiences a Travel Problem (as defined in Section 4.1(d)), (ii) an Extenuating Circumstance (as defined in Section 4.2) arises, or (iii) a Reservation is cancelled in accordance with Section 10, the amount you are paid will be reduced by the amount that Hospitable refunds or otherwise provides to the Guest, by any other reasonable costs that Hospitable incurs as a result of such cancellation, and by any other amounts owed to Hospitable pursuant to these Terms. If a Guest receives a refund after you have already been paid, or the amount of the refund and other costs incurred by Hospitable exceeds your payout, you agree to reimburse Hospitable (via Hospitable’s payment processing feature) for all such amounts, including, in Hospitable’s sole discretion, by offsetting the refund against future payments owed to you from Hospitable. You agree that these Terms preempt any conflicting terms to which you may agree with Guests. If Hospitable reasonably expects to provide a refund to a Guest under this Section 4.1, Hospitable may delay release of any payout for that Reservation until a refund decision is made.
For purposes of this Section 4.1, “Travel Problems” means any of the following, as determined in Hospitable’s sole discretion:
Seller cancels Reservation prior to check-in;
Seller fails to provide access to the Accommodation at check-in;
Seller fails to disclose in the Listing that the Seller, another person, or a pet will be present during the Occupants’ stay at the Accommodation;
The Accommodation is not reasonably clean and sanitary;
The Accommodation contains safety or health hazards or pests that make the Accommodation uninhabitable at check-in; or
The applicable Listing for the Accommodation contains a material inaccuracy, such as incorrect type or number of rooms (e.g. bedrooms, bathrooms, and kitchens) or amenities (e.g., swimming pool, free parking, or access to terraces or balconies).
4.2. Extenuating Circumstances. For purposes of Section 4.1(c), “Extenuating Circumstances” include emergency repairs, natural disasters that are not common enough to be foreseeable in the applicable jurisdiction, war, terrorism, government-declared emergencies and epidemics, government-imposed travel restrictions. If Seller reasonably believes that one of these situations applies, Seller must provide documentation or other support therefor. Hospitable will determine, in its sole discretion, whether to waive any fees and other consequences after evaluating the evidence.
4.3. Modifications. Sellers and Guests are responsible for any booking or Reservation modifications they agree to make via the Services or that they request Hospitable customer service representatives to make on their behalf, and Seller agrees to pay any additional amounts, fees, or taxes associated with a booking or Reservation modification.
4.4. Overstay of Occupants. Hospitable will charge Guests two (2) times the average nightly rate of their reservation if an Occupant is overstaying at the Accommodation past the Guest’s agreed check-out time. That amount is acquired for the entire day, at the discretion of the Seller, starting from one (1) hour after the agreed check-out time, and for every additional day at the same time. The Seller agrees to comply with all applicable law, rules, and regulations in its efforts to evict an overstaying Occupant.
Quality Control of Hospitable’s Services
5.1. Seller’s Acknowledgement. Hospitable is responsible for the booking experience via its Services, but Hospitable is not responsible for the Reservation or the Accommodation itself or for any of the services that are provided by Seller or its representatives in connection with a Reservation. While Hospitable endeavors to provide quality experiences to its Members, Hospitable does not and cannot control the conduct of Guests, other Occupants, or Sellers. You are solely responsible for the Accommodation, including all services that you provide to Occupants and all terms to which you and Guests agree outside of these Terms. You acknowledge that Hospitable has the right, but does not have any obligation, to monitor the use of the Marketplace and to verify information provided by Sellers. For example, Hospitable may review, disable access to, remove, or edit any information that is or becomes available via its Services to: (a) operate, secure and improve the Marketplace or its other Services (including for fraud prevention, risk assessment, investigation and customer support purposes); (b) ensure Guests and Sellers’ compliance with these Terms; (c) comply with applicable law, regulation, rule, court order, or requirement of any court, law enforcement or other administrative agency or governmental body; (d) address content that Hospitable determines is harmful or objectionable; (e) take actions not prohibited by these Terms; and (f) maintain and enforce any quality or eligibility criteria, including by removing Listings that fail to meet any quality and eligibility criteria that Hospitable may adopt from time to time, including those criteria set forth in Section 5.3.
5.2. Acceptable Use. Access to the Services is restricted to Sellers that operate short-term rentals (i.e., less than thirty (30) days) and mid-term rentals (i.e., between thirty (30) days and three (3) months) of properties within the United States (provided the Guest does not acquire a tenancy right) in accordance with all applicable laws and regulations. At Hospitable’s request, Seller will provide evidence to Hospitable of compliance with local regulations in order to obtain and maintain access to Hospitable’s payment processing features or payouts. Hospitable may not be able to support properties in all United States jurisdictions. The sale of any goods (including illegal content) not associated with your provision of services to Guests, including the Accommodation, is prohibited and may result in review, suspension, or termination of your access to the Services. In particular, rentals by hour, rentals of properties for any other purpose than Accommodation, and rentals for events or parties are prohibited without Hospitable’s prior written consent. Any Content maintained by Seller shall not: infringe or violate the intellectual property rights of any third parties, illegal acts, or harmful activities or substances; be fraudulent, false, pornographic, misleading, deceptive, defamatory, obscene, vulgar, or offensive; promote or condone discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; be violent or threatening, or promote violence or actions that may be threatening to any person or entity; or violate, or encourage conduct that would violate, any applicable law or regulation or give rise to liability. Hospitable reserves the right to modify any Content in connection with the optimization of the Seller’s Listing and activity in the Marketplace and to remove Content that violates the standards for acceptable use that are set forth in this Section 5.2, as determined in Hospitable’s sole discretion.
5.3. Quality Standards. Hospitable sets certain minimum quality standards for Accommodations that are offered to Guests via the Services, including the accuracy of information and quality of the accommodations offered to Guests via the Services. Hospitable may, in its sole discretion, take any actions that it deems reasonable necessary to maintain and enforce any quality and eligibility criteria that it establishes from time to time, including as set forth in Section 5.1, if an Accommodation or Listing fails to meet any such criteria. Listings shall not contain any material inaccuracy in the description of the Accommodations, including, but not limited to: (a) incorrect home type (e.g. entire home, private room, or shared room); (b) incorrect type or number of rooms (e.g. bedrooms, bathrooms, and kitchens) or amenities (e.g., swimming pool, free parking, or access to terraces or balconies); (c) incorrect location of the Accommodation; (d) absence or failure to function of special amenities or features described in the Listing (e.g. pool, hot tub, toilet, shower, bathtub, kitchen, sink, stove, refrigerator or other major appliance, electrical, heating, or air conditioning systems); (e) whether the Accommodation is shared or for exclusive use by a Guest, including, but not limited to, failure to disclose that Seller, another person, or a pet will be present during the stay or the maximum capacity number in line with standard expectations of comfort for that destination; and (f) whether the Accommodation is habitable at check-in, including if the Accommodation is not clean, sanitary, pest-free, or free of health or safety hazards. Guest complaints to Hospitable for their Reservations secured via the Services, repeated cancellations of confirmed Reservations without a valid reason, chargeback claims from Guests (for reasons associated with a consumer dispute), or a low aggregate guest satisfaction score may trigger a review of your account and inventory by Hospitable and possible termination of your access to the Services. Hospitable monitors the aggregate guest satisfaction score reported across connected third-party listing channels and may use that data when deciding to restrict certain properties’ access to the Marketplace. Hospitable may, in its sole discretion, charge you, and you agree to indemnify Hospitable, for any fees actually incurred by Hospitable as the result of complaints from Guests, including attorney fees, and damages sought against Hospitable.
5.4. Guest Screening. Hospitable uses a third-party vetting service to screen Guests. Only Guests who complete successful identity verification may make bookings in the Marketplace. Hospitable may block Guests that have passed identity verification but have been identified as high-risk or potentially fraudulent by such vetting service.
Insurance. All bookings which are processed through the Marketplace are covered by a comprehensive damage protection up to $5,000,000. You must carefully review policy terms and conditions including coverage details and exclusions. All Accommodations are required to carry valid Home/Property and Liability insurance.
Content. Parts of the Marketplace may enable you to provide feedback, text, photos, audio, video, information, and other content (collectively, “Content”). By providing Content, in whatever form and through whatever means, you grant Hospitable a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable license and/or sublicense to copy, modify, prepare derivative works of, distribute, publish and otherwise exploit, that Content, without limitation. If Content includes personal information, the Privacy Policy describes the manner in which Hospitable uses that personal information. Where Hospitable pays for the creation of Content or facilitates its creation, Hospitable may own that Content, in which case supplemental terms or disclosures will govern such ownership. You are solely responsible for all Content that you provide and warrant that you either own it or are authorized to grant Hospitable the rights described in these Terms. You are responsible and liable for, and you agree to indemnify and hold Hospitable harmless from and against any losses incurred in connection with, any Content’s violation or infringement of the intellectual property or privacy rights of any third party. Content must comply with the policies that Hospitable has in place from time to time and must not include, among other things, discriminatory, obscene, harassing, deceptive, violent, or illegal content. You agree that Hospitable may make available services or automated tools to translate Content and that your Content may be translated using such services or tools. Hospitable does not guarantee the accuracy or quality of translations and Members are responsible for confirming the accuracy of such translations.
Fees. Hospitable will charge Guests a service fee, which covers, but is not limited to: payment processing fees and fees for guest verification, insurance, compliance services, and other services to enhance the security of Reservations and improve the Guest and Seller experience. You agree that you are not entitled to receive any part of this additional fee, and such amounts will be deducted from payments received by Guests prior to delivering amounts owed to Seller with respect to a Guest’s payment. Hospitable reserves the right to change the service fees that it charges to Guests at any time, and Hospitable will provide notice to Seller of any fee changes before they become effective. Fee changes will not affect bookings made prior to the effective date of the fee change. If you disagree with a fee change, you may terminate your agreement to these Terms in accordance with Section 10.
Additional Obligations.
9.1. Rules. At all times during the term of your use of the Services, you agree not to, and not to assist or induce others to: (a) scrape, hack, compromise, decipher, decompile, disassemble, impair, or reverse engineer any of the Services or any of the software or hardware used to provide the Services; (b) use bots, crawlers, scrapers, or other automated means to access or collect data or other content from or otherwise interact with any of the Services; (c) hack, avoid, remove, impair, or otherwise attempt to circumvent any security or technological measure used to protect the Services or Content; (d) take any action that could damage or adversely affect the performance or proper functioning of any of the Services; (e) use another Member’s personal information for any purposes, except as expressly permitted by these Terms and the Privacy Policy; (f) utilize the Services or accept any payment outside of the Services to avoid paying fees or taxes; or (g) use the name, logo, branding, or trademarks of Hospitable or others without Hospitable’s prior written consent.
9.2. Reporting Violations. If you believe that a Member, Listing, or Content poses an imminent risk of harm to a person or property, you must immediately contact local authorities before contacting Hospitable. In addition, if you believe that a Member, Listing, or Content has violated these Terms or any other policies that Hospitable implements from time to time, please report your concerns to Hospitable. If you believe that Content on the Marketplace infringes copyrights or otherwise violates a third party’s intellectual property rights, you will provide prompt notice thereof to Hospitable. Except as required by law, you agree that Hospitable is not required to take action in response to any report made pursuant to this Section 9.2.
Termination, Suspension and Other Measures.
10.1. Term. The agreement between you and Hospitable reflected by these Terms will be effective as of the time that you first access the Marketplace and will remain in effect until either you or Hospitable terminates your agreement to these Terms in accordance with these Terms.
10.2. Termination.
You may terminate your agreement to these Terms at any time by sending an email to Hospitable at [email protected] or by deleting your account.
Hospitable may terminate your agreement to these Terms and your access to the Services for any reason or no reason upon thirty (30) days’ prior written notice via email or using any other contact information that you have provided to Hospitable. Notwithstanding the foregoing, Hospitable may, in its sole discretion, (i) suspend, terminate your agreement to these Terms and your access to and use of the Services; (ii) suspend or remove any of your Listings, reviews, or other Content; (iii) cancel any of your pending or confirmed bookings or Reservations; or (iv) suspend or revoke any special status associated with your account, in each case immediately and without notice, and may immediately terminate your access to the Services, if (A) you breach these Terms or any policies that Hospitable implements from time to time; (B) you violate any applicable law, regulation, or order or requirement of any court, law enforcement, or other administrative agency or governmental body; (C) Hospitable reasonably believes that termination is necessary to protect Hospitable, its Members, or third parties; or (D) such immediate termination is otherwise expressly permitted by these Terms. If your account has been inactive for more than two (2) years, Hospitable may terminate your account at any time, without prior notice.
For minor violations of these Terms that do not rise to the level of breach, or if otherwise appropriate, in each case as determined in Hospitable’s sole discretion, Hospitable will provide written notice to you of any measure that Hospitable intends to take as a result of such violation and will provide you with a reasonable opportunity to cure the issue (as determined in Hospitable’s sole discretion). If a Reservation is cancelled under this Section 10.2, the amounts paid to Seller therefor will be reduced by the amount that Hospitable refunds or otherwise provides to the applicable Guest, by any other costs that Hospitable incurs as a result of the cancellation, and by any other amounts owed to Hospitable pursuant to these Terms.
10.3. Legal Mandates. Notwithstanding anything in these Terms to the contrary, Hospitable may take any action it determines is reasonably necessary to comply with applicable law, regulation, or requirement or request of a court, law enforcement, or other administrative agency or governmental body, including the measures described in Section 10.2.
10.4. Effect of Termination. Upon termination of your access to the Services and your agreement to these Terms, any of your pending or confirmed bookings or Reservations will be automatically cancelled, and subject to the limitations set forth in Hospitable’s terms and policies, applicable Guests will receive a full refund. Upon termination of your access to the Services and your agreement to these Terms, you will not be entitled to a restoration of your account or to any of your Content. If your access to or use of the Services has been limited, or your Hospitable account has been suspended, or your agreement to these Terms has been terminated by Hospitable, you will not register a new account or access or use the Services through an account of another Member.
Survival. Notwithstanding the termination of your agreement to these Terms in accordance with the terms hereof, sections of these Terms that by their nature survive termination, will survive termination of your agreement to these Terms, including Section 3, Section 11, this Section 12, and Section 13 through Section 19.
Modification. Hospitable may modify these Terms at any time. When Hospitable makes material changes to these Terms, Hospitable will post the revised Terms in the Hospitable Marketplace and update the “Last Updated” date at the top of these Terms. Hospitable will also provide you with notice of any material changes by email at least thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate your agreement to these Terms in accordance with these Terms. If you do not terminate your agreement to these Terms before the date the revised Terms become effective, your continued access to or use of the Services will constitute acceptance of the revised Terms.
Disclaimer of Warranties. Hospitable provides its Services and Content and information provided in connection therewith “as is”, without warranty of any kind, and Hospitable expressly disclaims all warranties, whether express or implied. Hospitable does not endorse or warrant the existence, conduct, performance, safety, quality, legality or suitability of any Occupant, Listing, Accommodation, or third party; Hospitable does not warrant the performance or non-interruption of any of the Services; and Hospitable does not warrant that verification, identity or background checks conducted on Listings or Guests (if any) will identify past misconduct or prevent future misconduct. Any references to a Guest, Seller, or Listing being “verified” (or similar language) indicate only that the Guest, Seller, Listing, or Hospitable has completed a relevant verification or identification process and nothing else. The disclaimers in these Terms apply to the maximum extent permitted by law. If you have statutory rights or warranties Hospitable cannot disclaim, the duration of any such statutorily required rights or warranties, will be limited to the maximum extent permitted by law.
Limitations on Liability.
14.1. Limitations on Liability. Neither Hospitable (including its affiliates and personnel) nor any other party involved in creating, producing, or delivering any of the Services or any Content will be liable for any incidental, special, exemplary, or consequential damages, including lost profits, diminution in value, loss of data, loss of goodwill, service interruption, computer damage or system failure, the cost of substitute products or services, or any damages for personal or bodily injury or emotional distress arising out of or in connection with (a) these Terms; (b) the use of or inability to use any of the Services or any Content; (c) any communications, interactions or meetings you may have with someone you interact or meet with through, or as a result of, your use of any of the Services; (d) publishing a Listing, including the provision or use of services provided by Seller; (e) any Guest’s failure to pay the amounts owed pursuant to such Guest’s Reservation; (f) any Occupant’s use of, or presence at, any Accommodations; or (g) any agreements between Seller and any Guests, or any other agreements to which Seller is a party and to which Hospitable is not a party, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Hospitable has been informed of the possibility of such damage, even if a limited remedy set out in these Terms is found to have failed of its essential purpose.
14.2. Aggregate Liability. Except for Hospitable’s limited obligation to transmit payments to Sellers in accordance with these Terms, in no event will Hospitable’s aggregate liability for any claim or dispute arising out of or in connection with these Terms, your interaction with any Members, or your use of or inability to use any of the Services or any Content or information provided in connection therewith, exceed the amount you paid to Hospitable as a Seller during the twelve (12)-month period prior to the event giving rise to the liability. These limitations of liability and damages are fundamental elements of the agreement between you and Hospitable and of Hospitable’s decision to permit you to use the Services.
Indemnification. To the maximum extent permitted by applicable law, you agree to release (and do hereby release), defend (at Hospitable’s option), indemnify, and hold Hospitable (including its employees, directors, and affiliates, and their respective personnel) harmless from and against any claims, liabilities, damages of any kind (whether compensatory, direct, incidental, consequential, or otherwise), losses, and expenses, including, but not limited to, reasonable legal and accounting fees, arising out of or in any way connected with: (a) your breach of these Terms (including any supplemental or additional terms or policies that apply to a product or feature or that Hospitable may implement from time to time); (b) your improper use of any of the Services; (c) your or your representative’s interaction with any Member; (d) any Occupant’s stay at or use of an Accommodation; (e) your or your representative’s provision of services to Occupants; (f) personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms or (ii) any Occupant’s use of, or presence at, any Accommodation; (g) any agreements between Seller and any Guests, or any other agreements to which Seller is a party and to which Hospitable is not a party; (h) your or your representative’s failure, or Hospitable’s failure at your direction, to accurately report, collect, or remit Taxes, or (i) your or your representative’s breach of any laws, regulations, or third-party rights such as intellectual property or privacy rights in connection with any of the Services (or your use thereof) or Content.
United States Governing Law and Venue. These Terms will be interpreted in accordance with the laws of the State of Delaware and the United States of America, without regard to any conflict-of-laws provisions. Judicial proceedings (other than small claims actions) that are excluded from the arbitration agreement in Section 17 must be brought in state or federal court in the State of Delaware, unless you and Hospitable agree in writing to a different location. You and Hospitable both consent to venue and personal jurisdiction in state or federal court in the State of Delaware.
United States Dispute Resolution and Arbitration Agreement.
17.1. Application. This Section 17 is referred to herein as the “Arbitration Agreement”.
17.2. Overview of Dispute Resolution Process. Hospitable is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom this Section 17 applies: (a) an informal negotiation directly with Hospitable’s customer service team (as set forth in Section 17.3), and if necessary, (b) a binding arbitration administered by the American Arbitration Association (“AAA”). You and Hospitable each have the right to seek relief in small claims court as an alternative to arbitration.
17.3. Mandatory Pre-Arbitration Dispute Resolution and Notification. At least thirty (30) days prior to initiating an arbitration, you and Hospitable each agree to notify the other party of the dispute in writing and attempt in good faith to negotiate an informal resolution. You must send your notice of dispute to Hospitable by mailing such notice to Hospitable, Inc., 4 Embarcadero Center, Suite 1400 #85, San Francisco, CA, 94111-4164. Hospitable will send its notice of dispute to the email address associated with your Hospitable account. A notice of dispute must include: the party’s name and preferred contact information, a brief description of the dispute, and the relief sought. If the parties are unable to resolve the dispute within the 30-day period, only then may either party commence arbitration by filing a written Demand for Arbitration (available at www.adr.org) with the AAA and providing a copy to the other party as specified in the AAA Rules (available at www.adr.org).
17.4. Agreement to Arbitrate. Except as set forth in Section 17.2, you and Hospitable mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or any use of the Services or any services provided by a Seller (collectively, “Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to Hospitable’s Dispute, you and Hospitable agree that the arbitrator will decide that issue.
17.5. Exceptions to Arbitration Agreement. You and Hospitable each agree that the following causes of action and/or claims for relief are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction in accordance with these Terms: (a) any claim or cause of action alleging actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (b) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); (c) a request for the remedy of public injunctive relief; or (d) any individual claim of sexual assault or sexual harassment arising from your use of the Services or your provision of services to Guests and any other Occupants. You and Hospitable agree that the remedy of public injunctive relief will proceed after the arbitration of all arbitrable claims, remedies, or causes of action, and will be stayed pending the outcome of the arbitration pursuant to section 3 of the Federal Arbitration Act.
17.6. Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and the Federal Arbitration Act governs all substantive and procedural interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules”) then in effect, except as modified here. The AAA Rules are available at www.adr.org. In order to initiate arbitration, a completed written demand (available at www.adr.org) must be filed with the AAA and provided to the other party, as specified in the AAA rules.
17.7. Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Hospitable agrees that any required arbitration hearing may be conducted, at your option: (a) in the U.S. county where you reside; (b) via phone or video conference; or (c) if all parties agree, by solely the submission of documents to the arbitrator.
17.8. Attorney’s Fees and Costs. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Hospitable will pay all arbitration fees and expenses. You or Hospitable may make a request that the arbitrator award attorneys’ fees and costs upon proving that the other party has asserted a claim, cross-claim or defense that is groundless in fact or law, brought in bad faith or for the purpose of harassment, or is otherwise frivolous, as allowed by applicable law and the AAA Rules.
17.9. Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award any relief allowed by law or the AAA Rules, but declaratory or injunctive relief may be awarded only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
17.10. Jury Trial Waiver. You and Hospitable each waive, to the fullest extent permitted by applicable law, the right to a trial by jury with respect to these Terms, including with respect to any Disputes.
17.11. No Class Actions or Representative Proceedings. You and Hospitable acknowledge and agree that, to the fullest extent permitted by law, you and Hospitable are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative or consolidated proceeding. Unless you and Hospitable agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If there is a final judicial determination that applicable law precludes enforcement of the waiver contained in this Section 17.11 as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy, and only that claim, cause of action or requested remedy, will be severed from this agreement to arbitrate and will be brought in a court of competent jurisdiction. In the event that a claim, cause of action or requested remedy is severed pursuant to this Section 17.11, then you and Hospitable agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator.
17.12. Severability. Except as provided in Section 17.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision will be severed to the minimum extent required to make such provision enforceable, and all remaining provisions of the Arbitration Agreement will remain in full force and effect.
17.13. Changes to Agreement to Arbitrate. If Hospitable modifies this Section 17 after the date on which you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject that change by sending Hospitable a written notice (including by email) within thirty (30) days after the effective date of such change. Rejecting a new change does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and Hospitable (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and Hospitable.
17.14. Exceptions to Arbitration Requirement. Notwithstanding the foregoing requirement to submit all disputes to binding arbitration in accordance with these Terms, you and Hospitable both retain the right to pursue: (a) in small claims court in the county in which the Accommodation is located, any claim that is within that court’s jurisdiction, and you and Hospitable consent to the personal jurisdiction and venue of such court, and Hospitable further consents to your appearance by telephone or video in lieu of personal appearance, if allowed under applicable court rules; and (b) a suit in any court with jurisdiction to enjoin (whether by temporary, preliminary, or permanent injunctive relief) infringement or other misuse of intellectual property rights.
Miscellaneous.
18.1. Other Terms Incorporated by Reference. All policies provided or made available by Hospitable from time to time (including as modified from time to time), including the Privacy Policy,are incorporated herein by reference and form part of your agreement to these Terms with Hospitable.
18.2. Interpreting these Terms. Except as they may be supplemented by additional terms, conditions, policies, guidelines, standards, and in-product disclosures, these Terms (including those items incorporated by reference) constitute the entire agreement between Hospitable and you pertaining to your access to or use of the Services and supersede any and all prior oral or written understandings or agreements between Hospitable and you. These Terms do not and are not intended to confer any rights or remedies upon anyone other than you and Hospitable. If any provision of these Terms is held to be invalid or unenforceable, except as otherwise indicated in Section 17.12 above, such provision will be struck and will not affect the validity and enforceability of the remaining provisions. The use of the word “will” is in these Terms connotes an obligation with the same meaning as “shall” and vice versa.
18.3. No Waiver. Hospitable’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless Hospitable expressly acknowledges and agrees to such waiver in writing. Except as expressly set forth in these Terms, the exercise by Seller or Hospitable of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or under applicable law.
18.4. Assignment. You may not assign, transfer or delegate this agreement or your rights and obligations hereunder without Hospitable’s prior written consent. Hospitable may, in its sole discretion and without restriction, assign, transfer, or delegate these Terms, and any rights or obligations hereunder, upon thirty (30) days’ prior written notice.
18.5. Notice. Unless specified otherwise, any notices or other communications that are made to Seller pursuant to these Terms will be provided by Hospitable or its representatives via email, Marketplace notification, messaging service (including SMS) or any other contact method that Hospitable designates from time to time.
18.6. Third-Party Services. The Marketplace or Hospitable’s websites may contain links to third-party websites, applications, services, or resources (“Third-Party Services”) that are subject to additional or different terms and privacy practices. Hospitable is not responsible or liable for any aspect of such Third-Party Services, and links to such Third-Party Services do not constitute an endorsement.
18.7. Google Terms. Some areas of the Marketplace implement Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.
18.8. Apple Terms. If you access or download Hospitable’s application from the Apple App Store, you agree to Apple’s Licensed Application End User License Agreement.
18.9. Hospitable Marketplace Content. Content made available through the Services may be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge that all intellectual property rights for all Content are the exclusive property of Hospitable and/or its licensors, and you agree that you will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices. You may not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit any Content accessed via the Services, except to the extent you are the legal owner of that Content or as expressly permitted by these Terms. Subject to your compliance with these Terms, Hospitable grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s); and (ii) access and view the Content made available via the Services and accessible to you, solely for your personal and non-commercial use.
18.10. Force Majeure. Hospitable shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, pandemics, epidemics or disease, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.11. Emails and SMS. You will receive administrative communications from Hospitable using the email address or other contact information you provide for your Hospitable account. Enrollment in additional email subscription programs will not affect the frequency of these administrative emails, though you should expect to receive additional emails specific to the program(s) to which you have subscribed. You may also receive promotional emails from Hospitable. No fee is charged for these promotional emails, but third-party data rates could apply. You can control whether you receive promotional emails using the notification preferences in your account settings. Please note that you will not be able to take advantage of certain promotions if you disable certain communication settings or do not have an Hospitable account. In the United States, if you consent to receive SMS (text messages) from Hospitable, you will be subject to Hospitable’s SMS Terms.
18.12. Conflicts. In the event of a conflict between these Terms and any other terms or policies that Hospitable has in place as of the date hereof, these Terms shall control.
