Whimstay Terms of Service

Thank you for using Whimstay!

Last Updated: June 28, 2024

These Whimstay Terms of Service (“Terms”) constitute a legally binding agreement between you and Whimstay governing your access to and use of the Whimstay website, including any subdomains, and any other websites through which Whimstay makes its services available (collectively, "Site"), our mobile, tablet and other smart device applications, and application program interfaces (collectively, the "App") and all associated services (collectively, "Whimstay Services"). The Site, the App and Whimstay Services together are collectively the “Whimstay Platform”.

When these Terms use “Whimstay,” “we,” “us,” or “our,” it refers to Whimstay, Inc., 500 California Street, Suite 1200 San Francisco, CA 94104-1000 United States, and when these terms use “you” and “your” refer to the person that is registering for an account (“Whimstay Account”) to access and use certain features of the Whimstay Platform.

Our Privacy Policy and other policies (collectively, “Policies”) applicable to your use of the Whimstay Platform are incorporated by reference into these Terms. Our collection and use of personal information in connection with your access to and use of the Whimstay Platform is described in our Privacy Policy.

Capitalized terms used in these Terms are defined inline. Please read these Terms carefully as they contain important information about your legal rights, remedies and obligations. By accessing or using the Whimstay Platform, you agree to comply with and be bound by these Terms.

Any dispute between you and Whimstay is subject to a class action waiver and must be resolved by individual binding arbitration as described in Section 17 of these Terms. Please read the arbitration provisions as they affect your rights under these Terms.

1. Scope of Whimstay Services

1.1 The Whimstay Platform is an online platform that enables you to book properties (“Properties”) that are made available for short-term rental by hosts (“Hosts”).

1.2 When you book a Property you are entering into a contract directly with the Host. Whimstay is not and does not become a party to or other participant in any contractual relationship between you and a Host, nor is Whimstay a real estate broker or insurer. Whimstay is not acting as an agent in any capacity, except as specified in these Terms.

1.3 While we may help facilitate the resolution of disputes, Whimstay has no control over and does not guarantee (a) the existence, quality, safety, suitability, or legality of any Property, (b) the truth or accuracy of any Property descriptions, Ratings or Reviews, or (c) the performance or conduct of any Host or third party. Whimstay does not endorse any Property. Any description on the Whimstay site or the App is not an endorsement, certification or guarantee by Whimstay about any Host, including of the Host’s identity or background or whether the Host is trustworthy, safe or suitable. You should always exercise due diligence and care when deciding whether to stay in a Property, or communicate and interact with Hosts, whether online or in person.

1.4 The Whimstay Platform may contain links to third-party websites or resources (such as the property management systems of Hosts) (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Whimstay is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Whimstay of such Third-Party Services.

1.5 Due to the nature of the Internet, Whimstay cannot guarantee the continuous and uninterrupted availability and accessibility of the Whimstay Platform. Whimstay may restrict the availability of the Whimstay Platform in whole or in part, if we determine this to be necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Whimstay Platform. Whimstay may improve, enhance and modify the Whimstay Platform and introduce new Whimstay Services from time to time.

2. Eligibility, Verification, Using the Whimstay Platform

2.1 You must be at least 18 years old and able to enter into legally binding contracts to access and use the Whimstay Platform. By accessing or using the Whimstay Platform you represent and warrant that you are 18 or older and have the legal capacity and authority to enter into a contract.

2.2 For transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (a) ask you to provide a form of government identification or other information or undertake additional checks designed to help verify your identity or background, (b) screen your details against third party databases or other sources and request reports from service providers, and (c) 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).

2.3 The access to or use of certain areas and features of the Whimstay Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Whimstay Platform, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise.

2.4 If you access or download the App from the Apple App Store, you agree to Apple’s Licensed Application End User License Agreement. If you access or download the App from the Google Play Store, you agree to the Google Play Terms of Service. Some areas of the Whimstay Platform 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.

2.5 Whimstay partners with Booking.com to provide additional property inventory. By booking a property managed by Booking.com on Whimstay, you also agree to Booking.com's Customer Terms of Service.

3. Account Registration

3.1 You must register a Whimstay Account in order to access the Whimstay Platform. If you are registering a Whimstay Account for a company or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.

3.2 You must have a mobile phone number or email address to register and use a Whimstay Account. You may disable the connection between your Whimstay Account and your mobile phone number at any time, by contacting stay@whimstay.com.

3.3 You must provide accurate, current and complete information during the registration process and always keep your Whimstay Account and public Whimstay Account profile page information up to date.

3.4 You may not register more than one Whimstay Account unless Whimstay authorizes you to do so. You may not assign or otherwise transfer your Whimstay Account to another party.

3.5 You are responsible for maintaining the confidentiality and security of your Whimstay Account credentials and may not disclose your credentials to any third party. You must immediately notify Whimstay if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Whimstay Account. You are liable for any and all activities conducted through your Whimstay Account, unless such activities are not authorized by you, and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).

4. Content

4.1 Whimstay may, at its sole discretion, enable you to (a) create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the Whimstay Platform ("Member Content"); and (b) access and view content that Whimstay itself makes available on or through the Whimstay Platform, including proprietary Whimstay content and any content licensed or authorized for use by or through Whimstay from a third party ("Whimstay Content"and together with Member Content, "Combined Content").

4.2 The Whimstay Platform, Whimstay Content, and Member Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the Whimstay Platform and Whimstay Content, including all associated intellectual property rights, are the exclusive property of Whimstay and/or its licensors or authorized third parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Whimstay Platform, Whimstay Content or Member Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Whimstay used on or in connection with the Whimstay Platform and Whimstay Content are trademarks or registered trademarks of Whimstay in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Whimstay Platform and Whimstay Content, are used for identification purposes only and may be the property of their respective owners.

4.3 You must not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Whimstay Platform or Combined Content, except to the extent you are the legal owner of certain Member Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Whimstay or its licensors, except for the licenses and rights expressly granted in these Terms.

4.4 Subject to your compliance with these Terms, Whimstay grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (a) download and use the App on your personal devices; and (b) access and view any Combined Content made available on or through the Whimstay Platform and accessible to you, solely for your personal and non-commercial use.

4.5 By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Member Content on or through the Whimstay Platform, during the term of this agreement, you grant to Whimstay a worldwide, royalty-free, irrevocable, sub-licensable and transferable license to such Member Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Member Content to provide and promote the Whimstay Platform, in any media or platform.

4.6 You are solely responsible for all Member Content that you make available on or through the Whimstay Platform. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all Member Content that you make available on or through the Whimstay Platform or you have all rights, licenses, consents and releases that are necessary to grant to Whimstay the rights in and to such Member Content, as contemplated under these Terms; and (b) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or our use of the Member Content (or any portion) will infringe, misappropriate or violate a thirdparty's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

4.7 You will not post, upload, publish, submit or transmit any Member Content that: (a) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (b) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (c) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (d) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (e) promotes illegal or harmful activities or substances; or (f) violates our Policies. Whimstay may, without prior notice, remove or disable access to any Member Content that Whimstay finds to be in violation of these Terms or our Policies, or otherwise may be harmful or objectionable to Whimstay, third parties, or property.

4.8 Whimstay respects copyright law and expects its users to do the same. If you believe that any content on the Whimstay Platform infringes copyrights you own, please notify us at stay@whimstay.com.

5. Service Fees

5.1 Whimstay may apply fees ("Service Fees") to Bookings (defined below). If you finalize the Booking, you agree to pay, and are liable to Whimstay for, the Service Fees.

5.2 All Bookings made on the Whimstay platform are subject to a non-refundable service fee.

6. Terms applicable to all Bookings

6.1 You may request a Booking by following the relevant booking process on the Whimstay Platform. Upon issuance of a Booking confirmation by Whimstay, a legally binding agreement is formed between you and your Host, incorporating terms and conditions specified by the Host (“House Rules”).

6.2 The Service Fees, Security Deposit (if required by a Host) and applicable Taxes (collectively, “Total Booking Amount”) will be presented to you prior to booking a Property. You agree to pay the Total Booking Amount for any completed Booking, and Whimstay will collect the Total Booking Amount at the time of the Booking. The Whimstay Platform may allow you to nominate other individuals to partially pay the Total Booking Amount for a Booking (“Split Payment”). If you opt to use the Split Payment functionality, you understand that the Booking will not be confirmed until the full Total Payment Amount is received by Whimstay.

6.3 For each Booking you must ensure that each additional guest meets any requirements set by the Host and is made aware of and agrees to these Terms and the House Rules. If you allow a guest that is a minor to access the Property, you represent and warrant that you are legally authorized to act on behalf of the minor. If you do not comply with the House Rules, Whimstay or the Host may cancel your Booking. All cancelations are subject to a non-refundable Whimstay service fee.

7. Booking Properties

7.1 A completed booking of a property (a “Booking”) is a limited license granted to you by the Host to enter, occupy and use the Property for the duration of your stay, during which time the Host (only where and to the extent permitted by applicable law) retains the right to re-enter the Property, in accordance with your agreement with the Host.

7.2 You must leave the Property no later than the checkout time that the Host specifies in the House Rules, or such other time as mutually agreed upon between you and the Host. If you stay past the agreed upon checkout time without the Host's consent (“Overstay”), you no longer have a license to stay in the Property and the Host is entitled to make you leave in a manner consistent with applicable law. In addition, you agree to pay, if requested by the Host, for each 24 hour period (or any portion) that you Overstay, an additional nightly fee of up to 2 times the nightly rate posted by the Host to cover the inconvenience suffered by the Host, plus all applicable Service Fees, Taxes, and any legal expenses incurred by the Host to make you leave (collectively, "Overstay Fees"). Overstay Fees for late checkouts on the checkout date that do not impact upcoming Bookings may be limited to the additional costs incurred by the Host as a result of such Overstay. If you Overstay at a Property, you authorize Whimstay to charge the Overstay Fees to any payment method that you have previously provided to Whimstay. A Security Deposit, if required by a Host, may be applied to any Overstay Fees.

7.3 If a Host requires you to prepay an amount to protect against potential Damage Claims (“Security Deposit”) and there are no Damage Claims, you will receive a refund of the Security Deposit within 14 days after the checkout time or the end of the Overstay, whichever is later.

7.4 A Host or other third party may offer a damage waiver (“Damage Waiver”) in conjunction with a Booking. A Damage Waiver is a form of insurance that may cover (a) accidental damages to the Property during your Booking, (b) may have maximum coverage limits and exclusions and (c) is an arrangement between you and the Host or third party (as applicable). Whimstay is not a party to Damage Waiver. You should contact the Host or third party (as applicable) to get information regarding the terms of any Damage Waiver.

8. Booking Changes, Cancelations and Refunds

8.1 If you cancel a Booking, the amount refunded to you is determined by the cancelation policy that applies to that Booking. At 60 days from check-in, your booking with Whimstay is “Final Sale”. As a result, except as described in your Booking confirmation you will not receive a refund if you are unable to use the Property included in the Booking. Bookings more than 60 days away from check-in require an evaluation to determine if the property is eligible for cancelation. All cancelations are subject to a non-refundable Whimstay service fee.

8.2 In certain circumstances, Whimstay may decide, in its sole discretion, that it is necessary to cancel a Booking and make appropriate refund and payout decisions, including (a) where Whimstay believes in good faith, while taking the legitimate interests of both parties into account, this is necessary to avoid harm to Whimstay, third parties or property, or (b) for any of the reasons set out in these Terms.

8.3 If Whimstay cancels a Booking, Whimstay may, in its sole discretion, refund part or all of the Service Fees in accordance with our Policies. All cancelations are subject to a non-refundable Whimstay service fee.

8.4 If Whimstay, or the Host, decides to cancel a Booking due to your failure, or the failure of your guests, to comply with the House Rules, Whimstay, in its sole discretion, may refund part or all of the Service Fees. All cancelations are subject to a non-refundable Whimstay service fee.

8.5 In the event that Whimstay's cancelation policy and theHost's cancelation policy are contradicatory, Whimstay's policy will apply, superseding the Host's policy.

8.6 If you book a stay in the state of California at least 72 hours before check-in, you'll have 24 hours to cancel for a full refund, in accordance with CA SB 644.

9. Ratings and Reviews

9.1 Users of the Whimstay Platform may submit public reviews (“Reviews”) and star ratings (“Ratings”) about their experiences. Ratings or Reviews reflect the opinions of the submitter, and do not reflect the opinion of Whimstay. Ratings and Reviews are not verified by Whimstay for accuracy and may be incorrect or misleading.

9.2 Your Ratings and Reviews must be accurate and may not contain any offensive or defamatory language. Ratings and Reviews are subject to Section 4 and must comply with our Policies. Your Ratings and Reviews are part of your public profile and may also be displayed elsewhere on the Whimstay Platform (such as the Property page) together with other relevant information. In addition, Ratings and Reviews may be aggregated and used by Whimstay on other sites to promote the Whimstay Services.

9.3 You 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.

10. Damage to Properties

10.1 You must leave the Property (including any personal or other property located at the Property) 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 individuals that you invite to, or otherwise provide with access to, the Property, excluding the Host (and the individuals the Host invites to the Property, if applicable).

10.2 If a Host claims and provides evidence that you have damaged a Property or any personal or other property at a Property ("Damage Claim"), the Host can seek payment from you. If a Host refers a Damage Claim to Whimstay, you will be given an opportunity to respond. If you agree to pay the Host, or Whimstay determines in its sole discretion that you are responsible for the Damage Claim, Whimstay may collect from you and/or deduct from the Security Deposit (if applicable) such sums as are required to cover the Damage Claim. Whimstay also reserves the right to otherwise collect payment from you and pursue any remedies available to Whimstay in this regard in situations in which you are responsible for a Damage Claim.

10.3 You must cooperate with and assist Whimstay in good faith, and provide Whimstay with such information and take such actions as may be reasonably requested by Whimstay, in connection with any Damage Claims or other complaints or claims made by Hosts in relation to your Bookings. You will, upon our reasonable request, participate in mediation or a similar resolution process with a Host, which process will be conducted by Whimstay or a third party selected by Whimstay or its insurer, with respect to Damage Claims that are made against you.

11. Taxes

11.1 Depending where a Property is located, a Booking may be subject to sales taxes, occupancy taxes, tourist or other taxes ("Taxes"). These Taxes may be called "transient occupancy taxes," "hotel taxes," "lodging taxes," "city taxes," "room taxes" or "tourist taxes".

11.2 In certain jurisdictions, Whimstay may decide in its sole discretion to facilitate collection and remittance of Taxes that you are required to pay ("Collection and Remittance"). In any jurisdiction in which we decide to facilitate direct Collection and Remittance, you hereby instruct and authorize Whimstay to collect and remit such Taxes to the relevant tax authority. The amount of Taxes, if any, collected and remitted by Whimstay will be visible to and separately stated in your transaction documents. We may cease Collection and Remittance in any jurisdiction at any time.

11.3 We may seek additional amounts from you in the event that the Taxes collected by us are insufficient to fully discharge your obligations to a relevant tax authority. Your sole remedy for Taxes that are collected and remitted in error is a refund of Taxes collected by Whimstay from the applicable Tax Authority in accordance with procedures set by that Tax Authority.

12. Prohibited Activities

12.1 You are solely responsible for compliance with any and all laws, rules, regulations, and Taxes that may apply to your use of the Whimstay Platform. In connection with your use of the Whimstay Platform, you will not and will not assist or enable others to:

(a) breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or any Policies or community standards established by Whimstay for the Whimstay Platform;

(b) use the Whimstay Platform or Combined Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Whimstay endorsement, partnership or otherwise misleads others as to your affiliation with Whimstay;

(c) copy, store or otherwise access or use any information, including personally identifiable information, contained on the Whimstay Platform in any way that is inconsistent with our Privacy Policy or these Terms or that otherwise violates the privacy rights of third parties;

(d) use the Whimstay Platform in connection with the distribution of unsolicited commercial messages (otherwise known as "spam");

(e) unless Whimstay explicitly permits otherwise, make a Booking if you will not actually be using the Property yourself;

(f) contact a Host for any purpose other than asking a question related to your own Booking or your use of the Whimstay Platform, including recruiting or otherwise soliciting any Host to join third-party services, applications or websites, without our prior written approval;

(g) use information obtained from the Whimstay Platform to request or make a Booking independent of the Whimstay Platform, in order to circumvent any Service Fees or for any other reason;

(h) make any payment for Service Fees outside of the Whimstay Platform. If you do so, you acknowledge and agree that you: (i) will be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold Whimstay harmless from any liability for such payment;

(i) discriminate against or harass anyone based on race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior;

(j) use, display, mirror or frame the Whimstay Platform or Combined Content, or any individual element within the Whimstay Platform, our name, any Whimstay trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Whimstay Platform, without our express written consent;

(k) dilute, tarnish or otherwise harm the Whimstay brand in any way, including through unauthorized use of Combined Content, registering or using Whimstay or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Whimstay domains, trademarks, taglines, promotional campaigns or Combined Content;

(l) use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Whimstay Platform for any purpose;

(m) avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Whimstay or any of our providers or any other third party to protect the Whimstay Platform;

(n) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Whimstay Platform;

(o) take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Whimstay Platform;

(p) export, re-export, import, or transfer the App except as authorized by United States law and any other applicable laws; or

(q) violate or infringe anyone else’s rights or otherwise cause harm to anyone.

13.1 These Terms will be effective upon your acceptance and will remain in effect until canceled in accordance with these Terms.

13.2 You may terminate these Terms by sending us an email to stay@whimstay.com. Unless prohibited by applicable law, Whimstay may terminate these Terms for convenience at any time by giving you 30 days’ notice via email to your registered email address.

13.3 Whimstay may immediately, without notice, terminate these Terms or stop providing access to the Whimstay Platform if (a) you materially breach your obligations under these Terms, our Policies or any community standards established by Whimstay, (b) you violate applicable laws, regulations or third party rights, or (c) Whimstay believes in good faith that such action is reasonably necessary to protect the personal safety or property of Whimstay or third parties (for example in the case of your fraudulent behavior).

13.4 In addition, Whimstay may immediately terminate your account in any of the following circumstances: (a) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, (b) you have provided inaccurate, fraudulent, outdated or incomplete information during the Whimstay Account registration, listing process or thereafter, (c) Whimstay becomes aware of or has received complaints about your performance or conduct or (d) Whimstay believes in good faith that such action is reasonably necessary to protect the personal safety or property of Whimstay or third parties, or to prevent fraud or other illegal activity. In case of non-material breaches and where deemed appropriate by Whimstay, you will be given notice of our intent to terminate your account, and an opportunity to resolve the issue prior to termination.

13.5 If your access to or use of the Whimstay Platform has been limited or your Whimstay Account has been suspended or these Terms have been terminated by us, (a) you will not be entitled to any refund or compensation for pending or incomplete Bookings that are canceled and (b) you may not register a new Whimstay Account or access and use the Whimstay Platform through a Whimstay Account of another person.

13.6 If you or we terminate these Terms, the clauses of these Terms that reasonably should survive termination will remain in effect.

14. Disclaimers

14.1 If you choose to use the Whimstay Platform or Combined Content, you do so voluntarily and at your sole risk. The Whimstay Platform and Combined Content is provided “as is”, without warranty of any kind, either express or implied.

14.2 You agree that you have had whatever opportunity you deem necessary to investigate the Whimstay Services, laws, rules, or regulations that may be applicable to the Properties and that you are not relying upon any statement of law or fact made by Whimstay relating to a Property.

14.3 You understand that your use of the Whimstay Platform to make Bookings may carry inherent risk, and by using the platform you choose to assume those risks voluntarily. You assume full responsibility for the choices you make before, during and after your Bookings. If you bring a minor to a Property, you are solely responsible for the supervision of that minor throughout the duration of your Booking and to the maximum extent permitted by law, you agree to release and hold harmless Whimstay from all liabilities and claims that arise in any way from any injury, death, loss or harm that occurs to that minor during the Booking.

14.4 Hosts alone are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to their Properties, including any and all laws, rules, ordinances, regulations or other requirements relating to privacy, permits or license requirements, zoning ordinances, safety compliance and compliance with all anti-discrimination and fair housing laws. For example, some cities have laws that restrict their ability to rent properties for short periods. In many cities, Hosts may have to register, get a permit or obtain a license before accepting Bookings. The Hosts are alone responsible for identifying and obtaining any required licenses, permits, or registrations for their Properties. If you have questions about how local laws apply to a Property on Whimstay, you should always seek legal guidance.

14.5 The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.

15. Liability

15.1 To the maximum extent permitted by law, the entire risk arising out of your access to and use of the Whimstay Platform and Combined Content, your booking of any Property via the Whimstay Platform, your stay at any Property or any other interaction you have Hosts whether in person or online remains with you.

15.2 Neither Whimstay nor any other party involved in creating, producing, or delivering the Whimstay Platform or Combined Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for 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 the Whimstay Platform or Combined Content, (c) any communications, interactions or meetings with Hosts or other persons with whom you communicate, interact or meet with as a result of your use of the Whimstay Platform, or (d) your booking of a Property, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Whimstay has been informed of the possibility of such damage, even if a limited remedy set forth in these Terms is found to have failed of its essential purpose.

15.3 In no event will our aggregate liability arising out of or in connection with these Terms and your use of the Whimstay Platform including from your booking of any Property via the Whimstay Platform, or from the use of or inability to use the Whimstay Platform or Combined Content and in connection with any Property or interactions with Host or other persons with whom you communicate, interact or meet with as a result of your use of the Whimstay Platform, exceed the amounts you have paid or owe for Bookings in the 12 month period prior to the event giving rise to the liability, or US$100, if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Whimstay and you.

16. Indemnification

16.1 You release, defend (at our option), indemnify, and hold Whimstay and its affiliates, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including reasonable legal and accounting fees, arising out of or in any way connected with (a) your breach of these Terms or our Policies or any community standards established by Whimstay for use of the Whimstay Platform, (b) your improper use of the Whimstay Platform or any Whimstay Services, (c) your interaction with any Host or other person with whom you communicate, interact or meet with as a result of your use of the Whimstay Platform, (d) your stay at a Property, including any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, stay, participation or use, (e) our Collection and Remittance of Taxes, or (e) your breach of any laws, regulations or third party rights.

17. Dispute Resolution and Arbitration Agreement

This Dispute Resolution and Arbitration Agreement shall apply if your (a) Country of Residence is in the United States; or (b) your Country of Residence is not in the United States but bring any claim against Whimstay in the United States (to the extent not in conflict with Section 19).

17.1 Overview of Dispute Resolution Process. Whimstay is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process: (a) an informal negotiation directly with customer support, and (b) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section 17 and except as provided in Section 17.5). Specifically, the Consumer Arbitration Rules provide:

17.2 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Whimstay each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact customer support by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.

17.3 Agreement to Arbitrate. You and Whimstay mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement or interpretation of these Terms, or to the use of the Whimstay Platform or the Combined Content (Collectively, “Disputes”) will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Whimstay agree that the arbitrator will decide that issue.

17.4 Exceptions to Arbitration Agreement. You and Whimstay each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (a) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (b) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).

17.5 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the 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 or by calling the AAA at 1–800–778–7879.

17.6 Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Whimstay agrees that any required arbitration hearing may be conducted, at your option, (a) in Contra Costa County; (b) via phone or video conference; or (c) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.

17.7 Attorney’s Fees and Costs. You will be responsible for payment of any initial filing fee under the AAA Rules. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the AAA rules. Whimstay retains all rights it may have under applicable law or the AAA Rules, to recover attorneys’ fees and expenses if it prevails in arbitration.

17.8 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 declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

17.9 Jury Trial Waiver. You and Whimstay acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.

17.10 No Class Actions or Representative Proceedings. You and Whimstay acknowledge and agree that we 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 proceeding as to all Disputes. Further, unless you and Whimstay both otherwise 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 this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.

17.11 Severability. Except as provided in Section 17.12, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.

17.12 Changes. Notwithstanding Section 19, if Whimstay changes this Section 17 after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Whimstay in accordance with the provisions of the “Dispute Resolution and Arbitration Agreement” section as of the date you last accepted these Terms (or accepted any subsequent changes to these Terms).

17.13 Survival. Except as provided in Section 17.12 this Section 17 will survive any termination of these Terms and will continue to apply even if you stop using the Whimstay Platform or terminate your Whimstay Account.

18. Feedback

18.1 We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Whimstay Platform (“Feedback“). You may submit Feedback by emailing us, through the “Contact” section of the Whimstay Platform, or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.

19. General Provisions

19.1 These Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to conflict-of-law 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 Martinez, California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Martinez, California.

19.2 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire agreement between Whimstay and you pertaining to its subject matter and supersede any and all prior oral or written understandings or agreements between Whimstay and you in relation to the access to and use of the Whimstay Platform.

19.3 Whimstay reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Whimstay Platform and update the “Last Updated” date at the top of these Terms. If you disagree with the revisions, you may terminate Terms with immediate effect. If you do not terminate these Terms before the date the revisions become effective, your continued access to or use of the Whimstay Platform will constitute acceptance of the revisions.

19.4 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.

19.5 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions. No provision of these Terms will be construed against any party on the basis of that party being the drafter. References to “includes” or “including” mean “includes, without limitation” and “including, without limitation,” respectively.

19.6 Our failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.

19.7 You may not assign, transfer or delegate these Terms and your rights and obligations under these Terms without our prior written consent. Whimstay may without restriction assign, transfer or delegate these Terms and any rights and obligations under these Terms, at its sole discretion, with 30 days prior notice. Your right to terminate these Terms at any time remains unaffected.

19.8 Unless specified otherwise, any notices or other communications permitted or required under these Terms will be provided electronically and given by Whimstay via email, Whimstay Platform notification, or messaging service (including SMS). The date of receipt will be deemed the date on which Whimstay transmits the notice.

19.9 If you have any questions about these Terms, please email us at stay@whimstay.com.