GABLE GUEST TERMS OF SERVICE
Last Updated: October 11, 2020
By clicking the "accept" button, or by otherwise accessing or using the Platform (as defined below), you acknowledge that you have read, understood, and agree that you ("Guest", "you" or "your") are entering into a legal agreement with Gable Inc., a Delaware company with a place of business at 450 Folsom street, San Francisco, CA, 94105 ("Company", "we", "us" and "our"), and you have understood and agree to comply with, and be legally bound by, these Guest Terms And Conditions (this "Agreement"), and any other supplemental terms and policies referenced below that are expressly stated to be incorporated into, and made a part of, this Agreement by reference. This Agreement constitutes a binding contract that is in full force and effect as of the date you accept this Agreement, or otherwise access or use the Platform ("Effective Date"). If you are acting on behalf of an entity, you represent that you have the right, authority, and capacity to act on behalf of, and bind to this Agreement, such entity.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE PLATFORM.
This Agreement (including its Schedules) represents the entire agreement between you and Company with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between you and Company with respect to such subject matter. You acknowledge and agree that in entering into this Agreement you have not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement. The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement, you hereby irrevocably waive, to the maximum extent legally permitted, any Law (as defined below) applicable to you requiring that the Agreement be localized to meet yours language (as well as any other localization requirements) or requiring an original (non-electronic) signature or delivery or retention of non-electronic records.
Company reserves the right to modify this Agreement at any time by posting the modified Agreement on the Site (as defined below). Such modifications will be effective five (5) days after such posting, and your continued use of the Platform shall constitute your acceptance of such modifications. In such cases, we will also update the "Last Updated" date set forth above. Please check the above webpage regularly for any modifications.
At Company's sole discretion, any Company obligation hereunder may be performed (in whole or in part), and any Company right or remedy may be exercised (in whole or in part), by a Company Affiliate (as defined below).
- DEFINITIONS AND INTERPRETATION
This Agreement contains a range of capitalized terms, some of which are defined in this Section 1, and some of which are defined elsewhere. The Section and sub-Section headings in this Agreement are for convenience of reading only, and may not to be used or relied upon for interpretive purposes.
"Book" or "Booking" means a booking of a Gable by a Guest via the Platform, by accepting the times, fees, and any additional terms or limitations of the applicable List. A "Booking" is only completed upon the receipt of a limited, temporary, revocable license to use a Gable, as confirmed through the Platform, that is subject to this Agreement and all limitations and other terms specified in the Listing. A Booking does not provide Guests with a lease or any rights other than to allow such Gests limited access to use the Gable or other service only as permitted in the Agreement and the Listing.
"Company Affiliate" means, with respect to Company, any person, organization or entity controlling, controlled by, or under common control with, Company, where "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities, by contract, or otherwise. "Content" means any text, data, information, plans, images, graphics, sounds, videos, audio clips, links, and/or other similar materials.
"Documentation" means any electronic manuals, specifications, and similar documentation made available by Company for use of the Platform.
"Feature" means any module, tool, and/or feature of the Platform (such as those providing for language translations, currency conversions, tax calculations).
"Gable" means a location or site where the co-working opportunity is taking place, that is made available for a Guest to use during specific times for co-working purposes, and subject to specific fees and any site-specific terms or limitations, available for Booking on the Platform.
"Host" means a person or entity offering Listings for Booking on the Platform.
"Host Content" means Content inputted or uploaded by a Host to the Platform (such as Booking descriptions and images, pricing, business plans and other information).
"Guest Content" means Content (whether or not proprietary to Guest) inputted by Guest to, or otherwise generated by, its Guest Account, and/or that is otherwise provided or made available by Guest to a Host or to the Company on the Platform (such as identification means and personal messages). "Host Content" shall include any Content collected, gathered or obtained from any publicly available source, in any way, (whether by Guest or Company) regarding the Guest, that is displayed on the Platform.
"Intellectual Property" means any and all inventions, discoveries, improvements, works of authorship, technical information, data, technology, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, computer software and programs (including object code, source code, APIs, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property, in any form and embodied in any media.
"Intellectual Property Rights" means any and all rights, titles, and interests in and to Intellectual Property (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered), and includes without limitation patents, copyright and similar authorship rights, personal rights (such as Moral Rights, rights of privacy, and publicity rights), architectural, building and location (and similar geography-based) rights, mask work rights, trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.
"Law" means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any applicable jurisdiction.
"List" or "Listing" means a posting of a Gable by a Host on the Platform by providing certain details about such Gable, including the Gable’s availability, amenities, working hours, and terms or limitations of use.
"Moral Rights" means any rights of paternity or integrity, or any right to claim authorship of a work, to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, any work, whether or not such would be prejudicial to the honor or reputation of the creator of the work, and any similar right, existing under judicial or statutory Law of any jurisdiction, or under any treaty.
"Platform" means Company's proprietary online platform, called Gable, which is made available via the Site and on which you can offer a workspaces for users to work from along with a validated group of people or with their colleagues, for daily or monthly subscription for potential Guests. For the purposes of this Agreement, references herein to "Platform" shall also be deemed to include all related APIs and other technologies made available by Company to enable use of the Platform.
"Site" or "App" means https://www.gable.to/ (together with any of its subdomains) and any other websites through which Company makes its services available, including our mobile software application called "Gable" and available at: [add link], via tablets and any other smart device applications.
"Update" means an upgrade, update (such as a fix or patch), or other modification, improvement, enhancement or customization to or of the Platform.
- PLATFORM AND GUEST ACCOUNT
- Platform. You acknowledge and agree that: (i) the Platform is an online platform and location on which you can Book Listings directly from Hosts; (ii) Hosts act independently of Company; (iii) you are Listing Bookings from the respective Host only (and not from Company), and Company has no authority to act on behalf of the Host; and (iv) Company is not acting as an agent for you or for any Host.
- Guest Account. While you don’t need to register an account in order to browse the Site, in order to Book a Listing on the Platform, you must have to register for an account by submitting the information requested in the ‘guest onboarding flow’ on the App, or any other applicable web form ("Guest Account"). Each Guest is required to provide a valid phone number and email address and verify them to keep your Guest Account secure.
- Host verification on the internet is difficult, and we do not assume any responsibility for the confirmation of any Host's identity. Notwithstanding the forgoing, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (i) ask Guests and/or Hosts to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of Guests and/or Hosts, (ii) screen Hosts against third party databases or other sources and request reports from service providers, and (iii) where we have sufficient information to identify a Guest, obtain reports from public records of criminal convictions or sex offender registrations or an equivalent version of background or registered sex offender checks in your local jurisdiction (if available). You hereby authorize Company to conduct a criminal background check on you based on the information you provide to us or that we otherwise collect in connection with your use of the Platform, and you agree that we have the right to distribute information resulting from such background checks to other Guests or Hosts.
- You may close your Guest Account at any time by notifying us by email at [email protected], or by deleting the Guest Account on the Platform. You shall remain responsible for (i) all activity associated with your Guest Account made before it is closed including payment of fees or taxes; (ii) paying any remaining feed in full; and (iii) other liabilities caused by or resulting from use of the Platform. You understand that we may retain Guest Content you provide and continue to display and use any public Guest Content (including comments or reviews of Gables) provided to us prior to closing your Account.
- Subject to meeting any requirements (such as completing any verification processes) set by Company and/or the Host, you can Book a Listing available on the Platform by following the respective Booking process. The number of credits you are allowed to Book with no additional charges is indicated in your membership plan, and depends on your current usage and type of Gable Booked, as further detailed in Section 2.10 below. The number of credits and other benefits (if any) associated with each type of membership account is subject to change from time to time by Gable in its sole discretion.
- Upon receipt of a Booking confirmation from Company, a legally binding agreement for your use of the applicable Gable on the specified time and day is formed between you and the applicable Host, subject to any additional terms and conditions of the Host that apply, including in particular the Cancellation and Refund Policy, the Host Returns and Refunds Policy and any rules and restrictions specified in the Listing. A Booking does not provide you with access or use of the Gables other than the specified Booking time and as described in the Listing description.
You may not bring any additional individuals to a Gable unless specifically agreed in writing by the applicable Host. During your time at a Gable, you are responsible for (i) ensuring that your use does not exceed any limitations identified in the Booking, (ii) coordinating your estimated arrival time, (iii) respecting parking rules and limiting noise.
- You are responsible for and accept all liability for any damage you do to the Gables or any related amenities (whether intentional or not) and for your failure to comply with applicable Laws. You agree to share the Gable with the Host, if present, and other Guests and to leave the Gable in substantially the condition as provided to you. You agree to promptly notify Hosts of any damage done to the Gables or related amenities.
- Single pass. Subject to availability, Guests can pay a single use of a Gable, without having a subscription plan. Current rates are indicated on the Platform. The Guest will be automatically charged at the end of purchase.
- Membership Cycle. Your Gable membership starts on the date that you sign up for a subscription and submit payment via a valid payment method. If subscribing to a monthly pass, the Gable membership cycle is one month in length, and will automatically renew on the same date each month. Once your new month starts, you will receive the number of Credits for such new monthly cycle that is applicable to your membership plan. Please note that any credits not used during a monthly membership cycle are forfeited and will not be usable.
- Payment Methods. When you open a Guest Account, you must provide us with a current, valid, accepted method of payment to use the Platform. Company may also (i) obtain a pre- authorization via your payment method for one (1) U.S. dollar, (ii) charge or authorize your payment method a nominal amount, to verify your payment method, or (iii) authenticate your account via a third-party payment service provider to verify your payment method. You may edit your payment method information in your account settings. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not edit your payment method information or cancel your Guest Account, you remain responsible for any uncollected amounts and authorize us to continue billing the payment method, as it may be updated. This may result in a change to your payment billing dates.
- Recurring Billing. By starting your monthly membership, you authorize us to charge you a monthly membership fee, at the then current rate, until your Guest Account is cancelled or terminated. We reserve the right to change the timing of our billing, in particular, as indicated below, if your payment method has not successfully settled. In the event your paying membership began on a day not contained in a given month, we may bill your payment method on a day in the applicable month or such other day as we deem appropriate. For example, if you started you’re your membership or became a paying member on January 31st, your next payment date is likely to be February 28th, and your payment method would be billed on that date. Your renewal date may change due to changes in your Membership
Subject to the terms and conditions of this Agreement, Company grants you a limited, non-exclusive, non-assignable, non-sublicensable, revocable right, during the Term (defined below), to access and use the Platform, solely for reviewing the possibility of Booking Gables (collectively, the "License").
- USAGE RESTRICTIONS; CONFIDENTIALITY
- You shall not (and shall not permit or encourage any third party to) do any of the following: (a) reproduce the Platform; (b) sell, assign, lease, lend, rent, distribute, or make available the Platform to any third party, or otherwise offer or use the Platform in a time-sharing, outsourcing, or service bureau environment; (c) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, decrypt, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying ideas, algorithms, structure, sequence, organization, and interfaces) of, the Platform; (d) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the Platform; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Platform; (f) copy, adapt, modify and/or make a derivative work of the Platform or any Gable or Listing, or use the Platform to develop any service or product that is the same as (or substantially similar to or competitive with) the Platform; (g) publish or transmit any robot, virus, malware, Trojan horse, spyware, crawler, scraper or other automated means or processes to access, collect data or other Content from the Platform or use any other similar malicious item intended (or that has the potential) to damage or disrupt the Platform or the Company’s business purposes; (i) take any action that imposes or may impose (at Company's sole discretion) an unreasonable or disproportionately large load on the Platform infrastructure, or otherwise interfere (or attempt to interfere) with the integrity or proper working of the Platform; and/or (j) use the Platform to infringe, misappropriate or violate any third party's Intellectual Property Rights, or any Law.
- Hosts and Guests may have access to certain non-public and/or proprietary information of Company or of its users (whether Host or Guests), in any form or media, including (without limitation) confidential trade secrets, and other information related to the products, software, technology, data, know-how, or business of Company or of its users (whether Hosts or Guests), whether written or oral, and any such other information that would reasonably be understood to be confidential, proprietary, or competitively sensitive given the nature of the information or material, or the circumstances surrounding its disclosure, regardless of the manner in which it is furnished ("Confidential Information"). Guest hereby agrees that it shall take any necessary measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect others’ Confidential Information from disclosure to any third party. Guest shall not use or disclose any Confidential Information it receives, or that it receives access to, via the Platform, except as expressly permitted under this Agreement or applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing party. Upon any termination or expiration of this Agreement, Guest shall return to Company, or permanently delete, any and all Confidential Information it has, and all copies thereof, in the possession, custody or control.
- Your full compliance with the above restrictions is a condition to the License, provided however, that such limitations shall not apply to the extent expressly permitted otherwise in this Agreement. You acknowledge and agree that a breach or threatened breach of this Section 4 may cause Company and/or a Company Affiliate to suffer irreparable harm or damage for which monetary damages will be inadequate, and accordingly, if Company or a Company Affiliate seeks an injunction, specific performance, or other equitable relief to enforce any provision under this Section, Company or the Company Affiliate (as the case may be) shall not be required to post a bond or to prove the likelihood of irreparable harm.
- THIRD PARTY SOFTWARE
The Platform may include third party software components that are subject to open source and/or pass-through commercial licenses and/or terms and conditions ("Third Party Software" and "Third Party Software Terms and Conditions", respectively). To the extent legally required, Company may make available a current list of such Third Party Software and Third Party Software Terms and Conditions in the Documentation. Company will reasonably comply with any valid written request submitted by you to Company for exercising any rights you may have under such Third Party Software Terms and Conditions. You acknowledge that your use of the Platform is also governed by such Third Party Software Terms and Conditions, and that to the extent of any conflict between this Agreement and any Third Party Software Terms and Conditions, the latter shall control. Any undertakings, representations, warranties, guarantees, conditions, indemnities or other commitments made by Company in this Agreement concerning the Platform (if any), are made by Company and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software. Notwithstanding the foregoing sentence or anything in this Agreement to the contrary, Company does not make any representation, warranty, guarantee, or condition, and does not undertake any defense or indemnification, with respect to any Third Party Software.
- THIRD PARTY CONTENT AND SOURCES
- HOST CONTENT
You acknowledge and agree that each Host is solely responsible and liable for its Host Content and Gables, and for the way in which they are used or relied upon by others (including you). Without limiting the generality of the foregoing sentence, you acknowledge and agree that when accessing and using the Platform: (i) you will be exposed to Content from a variety of other users, and that Company is not responsible for the accuracy, usefulness, safety, or Intellectual Property Rights of, or relating to, such Content; and (ii) you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable. You hereby irrevocably waive any legal or equitable rights or remedies you may have against Company with respect to such Content.
In respect of each Gable Listed on the Platform, Company makes no representation, warranty, guarantee, or condition that: (i) Host is an authorized seller of the Gable (and has obtained any and all licenses, permissions, consents, approvals, and authorizations required to List the Gable), and that its Listing does not, and will not, infringe, misappropriate, or violate any third party's Intellectual Property Rights, or any Law; (ii) the Gable is authorized for Booking, and not stolen, a counterfeit, or acts in an illegal manner; and (iii) the Gable matches the corresponding Gable description (and other Host Content) associated with such Gable;. You hereby irrevocably waive any legal or equitable rights or remedies you may have against Company with respect to such Content and Gable.
- RATINGS AND REVIEWS
- Guests can leave a public review ("Review") and submit a star rating ("Rating"). Ratings or Reviews reflect the opinions of individual Guest or Hosts and do not reflect the opinion of Company. Ratings and Reviews are not verified by Company for accuracy and may be incorrect or misleading.
- You agree that Ratings and Reviews you provide will be accurate and will not contain any offensive or defamatory language. Company reserves the right to remove Ratings and Reviews to its sole discretion.
- Hosts and Guests are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party to write a positive or negative Review about another Host. Ratings and Reviews will be removed if the Guest never stayed at the Host's Gable.
- Ratings and Reviews are part of a Guest and Host Accounts and may also be surfaced elsewhere on the Platform (such as the Listing page) together with other relevant information such as number of bookings, number of cancellations, average response time and other information.
- BOOKINGS AND PAYMENT
- Bookings. You acknowledge and agree that, as between Host and Company, Host shall be the "merchant of record" for Bookings, and each Booking shall be conducted via the designated payment feature available on the Platform. For each Booking, you will transfer the applicable fees to be held in reserve until the Booking is approved and confirmed, after which the payment will be transferred to the Host, minus the Success Fee (as defined below) and applicable fees to be deducted in accordance with the pricing terms specified in the pricing form attached hereto as Exhibit A (the "Pricing and Taxes Form") attached hereto and incorporated into this Agreement. While the Host (and not you) is required to pay the Success Fee, you may not attempt to bypass Company in any way, or solicit convince or advise the Host to do so, and are subject to the following Section 10.2. Guests are solely responsible for any damage they do to the Gables during their Booking, and agree to reimburse the applicable Host for all costs and expenses incurred in remediating any such damage. Any use of a Gable in excess of the time period specified in the Booking is subject to overage fees, and to the extent applicable, any punitive damages and other remedies available under applicable Laws. You understand and agree that Company does not provide you with any advice or guidance of any kind or nature regarding Taxes and that you have been advised to consult with your tax advisor for any required advice or guidance regarding Taxes
- Non-Circumvention. Guest undertakes that any Booking of a Gable will be conducted via the Platform, and will immediately notify Company if a Booking is not, or cannot be, conducted via the Platform. In any event, the Parties agree that Company shall be entitled to receive, without limitation of other remedies, the Success Fee for any Booking of a Gable in any way, regardless of whether such Booking is conducted via the Platform, or not. To that end, Guest undertakes to provide, at Company's request, any information or record to ensure the fulfillment of the terms of this Section 10.2, and to the extent permitted under applicable law, Guest hereby grants Company unrestricted permission to access any public and non-public information regarding the Guest, as necessary to ensure the fulfillment of the terms of this Agreement.
- Fulfillment. Following a Booking, you acknowledge and agree that the Host (and not Company) shall be solely responsible and liable for fulfillment of the Booking (including, but not limited to, organizing the Gable for the Guest ). Guest shall comply with all applicable Laws regarding Gables, including any applicable permanent or temporary regulations, such as COVID-19 related government instructions. Immediately following actual execution of the Booking, Host shall notify Company via the functionality in the Platform.
- Cancellations, Returns and Refunds. You acknowledge that your Bookings are subject to our Cancellation and Refund Policy attached hereto as Exhibit B (the "Cancellation and Refund Policy") attached hereto and incorporated into this Agreement. Notwithstanding the foregoing in this paragraph, Company reserves the right (but not the obligation) to communicate to you certain status updates regarding any cancellations, returns, or refunds.
- Payment. You acknowledge that your payment of Bookings through your Guest Account will be via the Site. Furthermore, you agree that Company may set off any amounts that you owe to Company and/or the Host, against any amounts that Company and/or the Host owe to you. You are responsible for all applicable fees and Taxes associated with the Booking.
- All references herein to the "Platform" shall be deemed to include its Features as well. Company reserves the right to remove, modify, and/or add Features at any time, without any notice or obligation to you, and for any reason whatsoever. Some Features may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Company in its sole discretion. Moreover, if Company determines that you are in breach of any provision of this Agreement, Company reserves the right to block you from certain Features. Company makes Features available because it believes it enhances the user experience of the Platform, and may provide you with such information via the Platform; but you acknowledge and agree that just because Company makes a Feature available, it does not mean Company endorses, or can otherwise controls, every manner in which such Feature is used. A new or modified Feature may be accompanied by separate or additional terms and conditions, in which case such terms will (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. Company may in its sole discretion charge for new Features.
- Beta Features. Company may from time to time make available, in "beta" mode, new versions of the Platform and/or new Features that are still undergoing internal development and testing (each, a "Beta Feature"). Beta Features may be time-limited, feature-limited, and/or functionality-limited. Company may also decide to only make a Beta Feature available to closed list of Hosts, Guests or users. If Company makes a Beta Feature available to Guest, Guest may use it on the following conditions: (i) Guest only uses it for evaluation purposes; (ii) Guest complies with any specific guidelines issued by Company in respect of the Beta Feature, which may include a requirement that Guest provide Feedback (defined below) and participate in surveys about the Beta Feature; and (iii) Guest does not publicize the fact that there is a Beta Feature, and does not show, display, or otherwise make available the Beta Feature to any other person (which includes, but is not limited to, making such disclosures to traditional or social media). For the avoidance of doubt, the provisions of this Agreement that apply to the Platform (such as the Usage Restrictions, and the Disclaimers) shall also apply to Beta Features
All references herein to the "Platform" shall be deemed to include any Updates made available as well. Company may from time to time provide Updates, but shall not be under any obligation to do so. Such Updates will be supplied according to whatever then-current policies Company may have in place, and some Updates may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Company in its sole discretion. Some Updates may include automatic updating or upgrading without any notice or obligation to you, and you consent to any such automatic updating or upgrading of the Platform. An Update may be accompanied by separate or additional terms and conditions, in which case such terms will (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. Company may in its sole discretion charge for Updates. Company is under no obligation to provide any technical support for the Platform.
- OWNERSHIP AND CONTENT LICENSE
- Platform. Host hereby acknowledges that the Platform is or may be protected by Intellectual Property Rights (and similar) Laws, treaties, and conventions. Any rights not expressly granted herein are hereby reserved by Company and its licensors. As between you and Company (and except for the License), Company is the sole and exclusive owner of all Intellectual Property Rights in and to the Platform, the Documentation, and all Content generated or otherwise provided or appearing on or in the Platform.
- Feedback. If you provide Company with any ideas, suggestions, or similar feedback about performance of the Platform and/or for improving the Platform ("Feedback"), you hereby grant Company and all Company Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), irrevocable, and perpetual license, in any media format and through any media channels (now known or hereafter developed), to access, use, reproduce, distribute, publish, broadcast, make available to the public, modify, adapt, edit, create derivative works of, publicly display, publically perform, and otherwise commercially exploit such Feedback (the "Feedback License"). You hereby represent and warrant that: (i) your Feedback does not, and will not, infringe, misappropriate or violate any third party's Intellectual Property Rights, or any Law; and (ii) you have obtained, and will maintain during and after any termination of this Agreement, all licenses, permissions, consents, approvals, and authorizations required to grant the Feedback License. The Feedback License shall survive any termination of this Agreement.
- As a Guest, you are responsible for leaving the Gable (including any personal or other property located at the Gable) in the condition it was in when you arrived. You are responsible for your own acts and omissions and are also responsible for the acts and omissions of any pet you may come with (to the extent permitted by the Host).
- THE PLATFORM, DOCUMENTATION, AND ANY CONTENT WHATSOEVER ARE PROVIDED AND MADE AVAILABLE TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET POSSESSION, TITLE, QUALITY OF SERVICE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY COMPANY AND ITS LICENSORS AND SUPPLIERS.
- IN ADDITION, NEITHER COMPANY NOR ITS LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION:
- REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE PLATFORM, DOCUMENTATION, OR SUCH CONTENT;
- THAT YOUR USE OF, OR RELIANCE UPON, THE PLATFORM, DOCUMENTATION, OR SUCH CONTENT WILL MEET HOST'S REQUIREMENTS OR EXPECTATIONS;
- THAT THE PLATFORM, DOCUMENTATION, OR SUCH CONTENT WILL BE UNINTERRUPTED, SECURE, ERROR-FREE OR VIRUS-FREE, OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED; OR
- REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.
- Some jurisdictions' Laws do not allow the disclaimer of certain implied warranties or conditions, and to the extent applicable to you, Company limits the duration of such warranties and conditions to maximum extent permitted under applicable law.
- YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 14 IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY.
- LIMITATION OF LIABILITY
- IN NO EVENT SHALL COMPANY, ANY COMPANY AFFILIATE, OR ANY OF ITS LICENSORS OR SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
- ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
- ANY LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
- ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR
- THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
- THE COMBINED AGGREGATE LIABILITY OF COMPANY AND ALL COMPANY AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT EQUAL TO THE COMMISSIONS ACTUALLY PAID BY GUEST TO COMPANY (IF ANY)UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE..
- THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF COMPANY OR A COMPANY AFFILIATE HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT OR TORT LIABILITY.
- THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY TO ANY COMPANY LIABILITY ARISING: (A) FROM DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; OR (B) FROM FRAUD.
- Some jurisdictions' Laws do not allow the exclusion or limitation of incidental or consequential damages, or of other damages, and to the extent applicable to you, such exclusions and limitations shall not apply.
- YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 15 IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY.
- If any third party (including, but not limited to, a regulatory or governmental authority, and a Host) brings any kind of demand, claim, suit, action or proceeding against Company, a Company Affiliate, and/or any of our respective directors, officers, employees, or representatives (each, an "Indemnitee"), and it is based upon or arises from: (i) Your use of the Platform; and/or (ii) Your breach of any provision of this Agreement, (each of the foregoing, an "Indemnity Claim") then, upon written request by Company (to be decided in its sole discretion), you agree to assume full control of the defense and settlement of the Indemnity Claim, provided, however, that: (i) Company reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases you agree to reasonably cooperate with Company's defense activities at your own cost and expense; and (ii) you shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s).
- In addition, and regardless of whether (or the extent to which) you controlled or participated in the defense and/or settlement of an Indemnity Claim, you agree to indemnify and hold harmless the Indemnitee(s) for and against: (i) any costs and expenses (including reasonable attorneys' fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (ii) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including without limitation any fines or penalties).
- TERM AND TERMINATION
- Term. This Agreement commences on the Effective Date and shall continue in full force and effect until terminated in accordance herewith (the "Term").
- Termination for Convenience by Company. Company reserves the right to immediately terminate this Agreement, or otherwise modify, suspend or discontinue your access to and use of the Platform (or any part thereof), for any reason whatsoever, at any time, upon notice to you, and you agrees that Company shall have no liability to you for any such termination, modification, suspension, or discontinuance.
- Termination for Convenience by Guest. You may terminate your Guest Account at any time, provided you do not have any active Bookings for future dates. If you do have active Bookings for future dates, you must cancel such Booking and carry the applicable Cancellation Fee and only then you may terminate your Guest Account. In any event you must give Company seven (7) days' prior written notice, at [email protected] or via the Platform. If you object to any term or condition of this Agreement or any subsequent changes thereto, or becomes dissatisfied with the Platform in any way, your sole remedy is to terminate this Agreement.
- Termination for Breach. Each party may terminate this Agreement immediately upon written notice to the other party: (i) if the other party commits a material breach under this Agreement and fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach; and/or (ii) if the other party is declared bankrupt by a judicial decision, or, in the event an involuntary bankruptcy action is filed against such other party, it has not taken, within sixty (60) days from service of such action to such party, any possible action under applicable law for such filed action to be dismissed.
- CONSEQUENCES OF TERMINATION; SURVIVAL
Upon termination of this Agreement, the License will automatically terminate and be deemed revoked, and you shall immediately cease use of the Platform, except to the extent strictly necessary for you to receive any Orders purchased before the termination effective date. Sections 4.2 (Confidentiality), 10.2 (Non-Circumvention), and 13 (Ownership and Content License) through 2020 (Miscellaneous) shall survive termination or expiration of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive, or that by its nature ought to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination or expiration.
- GOVERNING LAW
- This Agreement (including without limitation its validity and formation) shall be governed by, and construed in accordance with, the laws of the state of California, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy under, or otherwise in connection with, this Agreement shall be subject to the exclusive jurisdiction and venue of the courts located in San Francisco, California, and you hereby irrevocably and unconditionally submit to the personal jurisdiction of such courts and waive any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue. Furthermore, to the maximum extent permitted under applicable law, you: (a) agree that any proceedings to resolve or litigate any claim, dispute or controversy will be conducted solely on an individual basis (and not in any class action or class-wide proceeding), and that you may initiate such proceedings only on your own behalf; (b) hereby irrevocably waive the right to litigate such claims, disputes, or controversies in court before a jury; and (c) agree not to participate in claims, disputes, or controversies brought in an attorney general or representative capacity, or in consolidated claims, disputes, or controversies involving another person's Guest Account.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAUSE OR CAUSE OF ACTION ARISING OUT OF, OR RELATED TO, THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR ELSE YOU AGREE THAT SUCH CLAIM OR CAUSE OF ACTION WILL BE PERMANENTLY BARRED.
- Assignment. Company may assign this Agreement (or any of its rights and/or obligations hereunder) without your consent, and without notice or obligation to you. This Agreement is personal to you, and you may not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without Company's express prior written consent. You may not register more than one (1) Host Account. Any prohibited assignment shall be null and void. Subject to the foregoing, this Agreement binds and benefits each party and its respective successors and assigns.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (i) the remaining provisions of this Agreement shall remain in full force and effect; and (ii) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
- Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
- Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by you, emails will be acceptable; for waivers by Company, the writing must be duly signed by an authorized representative of Company), and shall be valid only in the specific instance in which given.
- Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
- No Storage. The Platform is not intended to, and will not, operate as a data storage product or service, and you agree not to rely on the Platform for the storage of any Guest Account Content whatsoever. You are solely responsible and liable for the maintenance and backup of all Guest Account Content. Notwithstanding the foregoing, Company reserves the right to automatically download Guest Account Content to Company's cloud-based database(s).
- Notices. You agree that Company may send you notices by email, via your Guest Account, by regular mail, and/or via postings on or through the Platform. Except as stated otherwise in this Agreement or provided by the functionality of your Guest Account, you agree to send all notices to Company, to [email protected] expect for termination notices under Section 17 which Guest must send to [email protected] or by closing your Guest Account in accordance with the terms of this Agreement.
- No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Company Affiliates, Company's licensors and suppliers, and Indemnitees), (i) there shall be no third-party beneficiaries of or under this Agreement, and (ii) a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
- Force Majeure. Company shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) epidemic, pandemic, war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond Company's reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Platform shall not be deemed within Company's reasonable control.
- 20.10.Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
Exhibit A—Pricing and Taxes Form
- Host Fees. We charge Hosts a 20% service fee from any Booking (the "Host Fee") to help Gable provide a high-quality service to Hosts, including managing the Platform, Bookings and payments. Except as otherwise provided on the Platform, Host Fees are non-refundable.
- Taxes. You are solely responsible for payment of all taxes, levies, penalties, and other costs imposed by any taxing authority or government agency related to Listing or Booking Gables, including any sales or occupancy tax, indirect taxes such as valued added tax (VAT) or goods and services tax (GST), usage or permitting fees, duties, and other taxes imposed by municipalities, states, or governments through regulation, ordinance, law, or judicial or regulatory interpretation (collectively "Taxes").
- Except as required by Law, Company will not calculate, track or pay Taxes or submit Tax reporting on your behalf. You are responsible for all Taxes owed for Booking or Listing a Gables, including, without limitation, accurate calculation of Taxes due, timely remittance of Taxes to the appropriate taxing authority and maintenance of any required records and accounts. If any taxing authority demands that we pay such Taxes on your behalf, you are immediately liable to us for such Taxes and will reimburse or pay Company for such Taxes upon demand. You are also responsible for (i) any penalties assessed by governmental authorities arising from your failing to comply with this Agreement, including those issued by regulatory or taxing authorities, law enforcement, fire code or safety agencies, and (ii) losses we or other Guests and/or Hosts incur that are based on your failing to comply with this Agreement or misuse of the Platform, services, Gables, or Features. Guests are solely responsible for any damage they cause to the Gables during their Booking, and agree to reimburse the applicable Host for all costs and expenses incurred in remediating any such damage. Hosts must notify us at [email protected],to within 3 days of a Guest exceeding the permitted use of the Gable. Any use of a Gable in excess of the time period specified in the Booking is subject to overage fees. You understand and agree that Company does not provide you with any advice or guidance of any kind or nature regarding Taxes and that you have been advised to consult with your tax advisor for any required advice or guidance regarding Taxes.
- Payment of Fees and Taxes. You will timely and fully pay all fees, Taxes, or other amounts you owe under this Agreement. If you owe amounts and we are unable to receive payment through the Platform for any reason, then we may require that you pay through other means (such as direct debit, wire transfer, or cashiers' check). We may set-off any amounts owed to us through collection of funds that would otherwise be payable to you through the Platform. You are responsible for any costs or expenses associated with our recovering fees, Taxes, or other amounts owed, including our attorneys' fees or expenses.
- Receiving Payment. Acceptance and payment of funds between Guests and/or Hosts or Company on the Platform ("Payment Processing") is provided by Stripe. Your use of Payment Processing is subject to the Stripe Connected Account Agreement that includes the Stripe Services Agreement as may be modified by Stripe from time to time (collectively, the "Stripe Agreement"), and Company is not in any way responsible or liable for Payment Processing and/or for any damages in connection thereto. As a condition using Payment Processing, you must provide accurate and complete information about you and/or your business and you authorize us to share this information to Stripe. You agree to provide all information requested by Company and/or Stripe in connection with enabling payment processing, verifying your identity, satisfying IRS reporting obligations and complying with any other legal or compliance requirements, including but not limited to your bank account and routing numbers and Tax ID or Social Security Number. You shall promptly notify Company and/or Stripe of any change or update to any information previously provided to Company and/or Stripe (as applicable). All bank and credit card information is sent directly to and stored with Stripe using their security protocols. Company does not store your payment information on its systems and shall not have any responsibility for the safety or security of that information. Your use of Payment Processing is conditioned upon your compliance with the Stripe Agreement, and if the Stripe Agreement is terminated you may not be able to use the Company Platform.
- You acknowledge that Company is not a party to your agreements with Stripe and that Company is not an affiliate of Stripe. You further acknowledge that Company does not control Stripe or its performance of payment processing services, and that Company shall have no liability of any kind to you for any act or omission (including negligence) of Stripe or any claim, demand, suit, damage, judgment, liability, loss, expense or cost incurred by you in relation to the performance or non-performance of payment processing services by Stripe, other than to the extent to which any of the foregoing may directly arise from the gross negligence or willful misconduct of Company.
- We may change or add other payment processing services at any time upon notice to you, for which you may agree to additional terms or conditions in order to continue using the Platform.
- Payout. Payments to Hosts for Booking (each, a "Payout") is calculated as follow: The rate of a Gable is defined by either a daily rate or the membership type purchased by the Guest. Company reserves the right to change the subscription rate at any time, and will provide Guests and/or Hosts with a written notice at least 1 week ahead of any price changes before they become effective. Company will generally initiate Payouts to the Host's selected Payout method on the same day each month. Company may delay or cancel any Payout for purposes of preventing unlawful activity or fraud, risk assessment, security, or investigation.
- Cancellation and Refund Policy. You are responsible for all Fees and Taxes associated with the Booking. All Bookings are subject to our Cancellation and Refund Policy.
Exhibit B— Cancellation and Refund Policy
Important: It is your responsibility to verify the Cancellation and Refund Policy before Booking a Gable, and you agree to pay any cancellation fee and/or change of Booking fee that you incur. Company will not be held responsible for any of these fees.
Cancellation and Refund for Guests:
- If a Guest cancels a Booking date via the Platform up to 72 hours prior to a Booking – it shall be entitled to receive a full refund from the Host of amounts paid for such Booking.
- If a Guest cancels a Booking date via the Platform between 72 and 24 hours prior to a Booking – it shall be entitled to receive a 50% refund from the Host of the amounts paid for such Booking.
- Less than 24 hours prior to a Booking date – Guest will not be entailed to receive any refund
Any cancelled Booking on behalf of a Host will require the Host to pay a cancellation fee in the sum that Company had to pay its service providers (such as the payment processing company), for such Booking and in addition a punitive fee in the amount equal to the fee the Guest was to pay for the applicable booking (the carry that we pay to Stripe) (the "Cancellation Fee")