Last updated: April 7, 2014
KOMFORTSTAY HOST GUARANTEE TERMS AND CONDITIONS
Komfortstay (hereafter referred to as “Komfortstay ”, “we”, “us”, or “our”) provides an online platform that connects hosts (hereafter referred to as “Host”, “ you ”, or “your”) who create listings for accommodations that are made available for booking by Guests(defined below) seeking to book such accommodations (collectively, the “Services”), which Services are accessible at http://www.Komfortstay.com and any other platform through which Komfortstay makes the Services available (collectively, the “Site”) and via applications for mobile devices (collectively, the “Application”). Komfortstay refers to Komfortstay Inc. if you reside in the USA, and to Komfortstay Pakistan if you reside outside of the USA. For purposes of these Host Guarantee Terms and Conditions, “Komfortstay”, “ we ”, “us” or “our” shall also include, as applicable, Komfortstay’s insurer under the Komfortstay Insurance Policy or Komfortstay’s insurance adjuster.
Whether, as a Host (defined further below) you have posted a single Listing (defined below) on one Komfortstay website or several Listings on multiple Komfortstay websites, you may benefit from the Komfortstay Host Guarantee program (the “ Komfortstay Host Guarantee ”), the terms, limitations and conditions for which are set forth below (the “Komfortstay Host Guarantee Terms”). Please read these Komfortstay Host Guarantee Terms carefully.
YOU ACKNOWLEDGE AND AGREE THAT, BY POSTING A LISTING OR OTHERWISE USING THE SITE, APPLICATION OR SERVICES AS A HOST, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE KOMFORTSTAY HOST GUARANTEE TERMS. If you accept or agree to these Komfortstay Host Guarantee Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Komfortstay Host Guarantee Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
YOU MUST COMPLY WITH ALL OF THE REQUIREMENTS AND CONDITIONS IN THE KOMFORTSTAY HOST GUARANTEE IN ORDER TO BE ELIGIBLE TO RECEIVE ANY PAYMENTS FOR COVERED LOSSES (DEFINED BELOW). YOUR FAILURE TO FULLY COMPLY WILL PREVENT YOUR RECOVERY FOR ANY COVERED LOSSES.
PLEASE CAREFULLY REVIEW THE DEFINITIONS OF “COVERED ACCOMMODATION,” “COVERED LOSSES,” “COVERED PROPERTY” AND “EXCLUDED PROPERTY” BELOW SO THAT YOU MAY IDENTIFY AND PROTECT PROPERTY NOT COVERED BY THE KOMFORTSTAY HOST GUARANTEE.
You acknowledge and agree to use your best efforts to communicate with the Responsible Guest (defined below) as soon as possible after you discover any physical loss or damage to your Covered Property. You must notify the Responsible Guest about your complaint and attempt to resolve the loss or damage with the Responsible Guest. If you and the Responsible Guest are unable to come to a resolution within seven (7) days after first contacting the Responsible Guest, you should complete and file an Komfortstay Host Guarantee Payment Request Form with Komfortstay as further described in Section V below.
You acknowledge and agree that any amount of Covered Losses payable to you under the Komfortstay Host Guarantee will be reduced by the amounts you have already collected for the same Covered Losses from a source other than the Komfortstay Host Guarantee, including without limitation: (i) amounts received under an insurance policy, guarantee or indemnity; (ii) a security deposit; or (iii) payment directly by the Responsible Guest or an Invitee (defined below), or other party or an insurer or guarantor of such party.
Except as permitted by law, these Komfortstay Host Guarantee Terms do not affect your statutory rights. If you would like a written copy of the Komfortstay Host Guarantee Terms, please contact Komfortstay at terms@Komfortstay.com.
I. The Komfortstay Host Guarantee
Komfortstay agrees to pay you, as a Host, to repair or replace your Covered Property damaged or destroyed as a result of a Covered Loss, subject to the limitations, exclusions and conditions in the Komfortstay Host Guarantee.
II. Key Defined Terms
The following capitalized terms shall have the following meanings:
“Actual Cash Value” means the amount it would cost to repair or replace damaged or destroyed Covered Property as a result of a Covered Loss, measured on the date of occurrence of such Covered Loss, with material of like kind and quality, with proper deduction for obsolescence and physical depreciation.
“Komfortstay Host Guarantee Payment Request Form” means Komfortstay’s standard form as amended from time to time, accessible through the Site at http://www.Komfortstay.com/incidents/new , that a Host uses to request payment from Komfortstay pursuant to these Komfortstay Host Guarantee Terms.
“Komfortstay Insurance Policy” means an insurance policy issued by an insurer to Komfortstay pursuant to which Komfortstay is insured against losses arising under the Komfortstay Host Guarantee.
“Booking Income Loss” is the loss of booking income from the booked portion of a Covered Accommodation (according to bona fide Komfortstay confirmed bookings, contracts or agreements in force prior to the established time of loss) by you, as a Host, resulting from a Covered Loss. Booking Income Loss does not include non-continuing charges and expenses or any loss of booking income during any period in which the Covered Accommodation would not have been tenantable for any reason other than a Covered Loss. The Booking Income Loss will be measured by Komfortstay’s insurer starting from the time of occurrence of the Covered Loss and ending when the Covered Accommodation can be made ready for habitation under the same or equivalent physical and operating conditions that existed prior to the damage.
“Covered Accommodation” means an accommodation located in the Territory that can be used as a residence and that is (i) owned or legally controlled by you as a Host during the period of the Responsible Guest’s stay at such accommodation and (ii) listed by you on the Site and booked by such Responsible Guest in compliance with the Komfortstay Terms of Service. A vehicle (including, but not limited to, automobiles, scooters, vespas, and motorcycles) or a watercraft (including, but not limited to, boats, yachts, jet skis and similar craft) booked through the Services constitutes a “Covered Accommodation” only to the extent it is stationary and used solely for lodging purposes.
“Covered Losses” means and is limited to direct physical loss or physical damage incurred by a Host to Covered Property of such Host located at a Covered Accommodation caused by the Responsible Guest or an Invitee of the Responsible Guest while staying at such Covered Accommodation booked by such Responsible Guest through the Services. Covered Losses do not include any losses or damage described under Excluded Losses below.
“Covered Property” means and is limited to the following property located at a Covered Accommodation, or within 1,000 feet thereof, to the extent of your interest in such property, unless such property constitutes Excluded Property (as defined below):
“Excluded Losses” has the meaning set forth in Section III below.
“Excluded Property” means any of the following:
“Fine Arts” means paintings; etchings; printed photos; pictures; tapestries; rare or art glass; art glass windows, valuable rugs; statuary; sculptures; antique furniture; antique jewelry; bric-a-brac; porcelains; and similar property of rarity, historical value, or artistic merit. “Fine Arts” does not include automobiles, coins, stamps, other collectibles, collections, furs, jewelry, precious stones, precious metals, watercraft, aircraft, money, or securities.
“Guest” means a Member who has completed Komfortstay’s account registration process, has agreed to the Komfortstay Terms of Service, and who books and stays on, at, or in a Covered Accommodation for the period of the Listing.
“Host” means a Member who has completed Komfortstay’s account registration process, has agreed to the Komfortstay Terms of Service, and who lists his/her Covered Accommodation(s) on the Site or Application.
“Invitee” means a person invited to be present at a Covered Accommodation by a Responsible Guest.
“Limit” means one million US dollars (US $1,000,000), or its equivalent in the currency where the Covered Accommodation is located at the exchange rate applicable on the date of payment by Komfortstay under these Komfortstay Host Guarantee Terms.
“Listing” means an Accommodation that is listed by a Host as available for booking via the Site or Application.
“Member” means a person who completes Komfortstay’s account registration process, including, but not limited to Hosts and Guests, as described under “Account Registration” in the Komfortstay Terms of Service.
“Ordinary Wear and Tear” means the deterioration in condition of property that occurs under normal use and conditions.
“Responsible Guest” means the Guest who booked your Covered Accommodation for the period during which you incurred the Covered Losses for which you request payment under these Komfortstay Host Guarantee Terms.
“Territory” means the countries for which the Komfortstay Host Guarantee is available, as announced by Komfortstay from time to time.
III. Limitations and Exclusions
The Komfortstay Host Guarantee pays Covered Losses only and does not pay for any of the following (“Excluded Losses”):
provided, that any physical damage resulting from any of the conditions listed above will be covered by the Komfortstay Host Guarantee if not otherwise excluded under the Komfortstay Host Guarantee.
IV. Conditions to the Komfortstay Host Guarantee
IN ORDER TO BE ELIGIBLE TO OBTAIN PAYMENT UNDER THESE KOMFORTSTAY HOST GUARANTEE TERMS, YOU MUST FULLY COMPLY WITH EACH OF THE FOLLOWING CONDITIONS. YOUR FAILURE TO FULLY COMPLY WILL PREVENT YOUR RECOVERY OF ANY COVERED LOSSES. IN ALL CASES, THE ONUS WILL BE UPON YOU TO DEMONSTRATE THAT YOU HAVE COMPLIED WITH THE FOLLOWING CONDITIONS.
You must have incurred Covered Losses.
The Covered Losses for which you seek payment must be covered under the Komfortstay Insurance Policy and payment to Komfortstay under such Komfortstay Insurance Policy, and Komfortstay in its sole discretion may make its payment of benefits under this Komfortstay Host Guarantee contingent upon the determination that any Covered Losses are covered under the Komfortstay Insurance Policy.
You must have used reasonable efforts in connection with the stay of the Responsible Guest at such Covered Accommodation to comply with Komfortstay’s safety guidelines as described at http://www.Komfortstay.com/safety.
You must inspect the applicable Covered Accommodation to determine whether there are any physical losses or damages to any Covered Property and complete and file an Komfortstay Host Guarantee Payment Request Form with Komfortstay within the earlier of (i) fourteen (14) days following the date of termination of the Responsible Guest’s booking of the applicable Covered Accommodation or (ii) the date by which the next subsequent booking of the same Covered Accommodation begins.
For all Covered Property which is damaged or destroyed due to a violation of law or criminal act or misdemeanor and for which you are filing an Komfortstay Host Guarantee Payment Request Form, you must file a police report listing such Covered Property and provide Komfortstay with a copy of such report, certified by you as true and correct.
You must provide Komfortstay with proof of ownership of, or legal responsibility for, the Covered Property in the form of receipts, photographs, videos, documents or other customary forms of proof (including, but not limited to, appraisal or valuation forms or notices addressed to you) certified by you as true and correct and reasonably acceptable to Komfortstay.
You must deliver a signed and sworn proof of loss to us within sixty (60) days after you have incurred the Covered Loss, unless we provide a written extension of such deadline. The proof of loss must state your knowledge and belief as to the following:
As part of the signed and sworn proof of loss described above, you must provide Komfortstay with all information reasonably requested by Komfortstay to enable Komfortstay’s insurer to determine the Actual Cash Value with respect to Covered Property, including: the original purchase price of such Covered Property, the date such Covered Property was acquired, the condition of such Covered Property and the estimated cost of repair or replacement of such Covered Property.
You must (i) protect and preserve damaged Covered Property from further loss or damages and (ii) promptly separate the damaged and undamaged Covered Property, put it in the best possible order, and furnish a complete inventory of the lost, destroyed, damaged and undamaged property showing in detail the quantities, costs, Actual Cash Value, and amount of loss claimed.
You must, as often as may be reasonably required, at such reasonable times and places that may be designated by Komfortstay’s insurer or its respective designees, (i) exhibit all that remains of any damaged Covered Property and sign the written records of examination; (ii) produce for examination all books of accounts, business records, bills, invoices, and vouchers (either originals or certified copies if originals are lost) and (iii) permit extracts and machine copies to be made of the above.
You must permit Komfortstay’s insurer or its designee(s) to make inspections of Covered Property at all reasonable times. However, the right to make inspections, the making of inspections, and any analysis, advice, or inspection report will not constitute an undertaking by Komfortstay’s insurer to determine or warrant that damaged Covered Property is safe or healthful. We will have no liability to you or any other person because of any inspection or failure to inspect.
You must cooperate with Komfortstay, including signing any documents, and timely responding to any reasonable requests by Komfortstay for additional information or documentation that Komfortstay or its insurer may require or request to process the applicable Komfortstay Host Guarantee Payment Request Form.
With respect to Covered Property subject to a loan, mortgage or other security interest, you must notify your lender/mortgagee in writing of any loss that exceeds fifty thousand US dollars (US $50,000), and provide Komfortstay with a copy of such notice. If the lender/mortgagee notifies you that the lender/mortgagee seeks insurance and/or reimbursement proceeds for the loss, you must notify Komfortstay in writing of the lender/mortgagee’s request and transmit a written copy of said request to Komfortstay, and provide all other information to enable Komfortstay to communicate directly with the lender. If such loss is determined to be a Covered Loss, we will pay the loss benefit(s) to the lender up to the value of the mortgage (subject to the exclusions, limitations and conditions herein), and we will not pay you unless and until your monetary obligation to the lender/mortgagee has been satisfied. This condition shall apply to the extent of applicable law in your jurisdiction.
You will have full rights to the possession and control of damaged Covered Property if proper testing is done to show which property is physically damaged. You, using reasonable judgment, will decide if the physically damaged Covered Property can be reprocessed or sold. If you determine that the Covered Property is unfit for reprocessing or sale, the property will not be sold or disposed of except by you or with your consent. Proceeds from the sale or other disposition of such Covered Property will go to (i) Komfortstay’s insurer at the time of the Covered Loss settlement, or (ii) you if such sale or disposition proceeds are received prior to Covered Loss settlement and such proceeds will reduce the amount of the Covered Loss payable to you.
V. Disposition of Host Payment Requests
Komfortstay Host Guarantee Payment Request Form
Komfortstay will complete its processing of any Komfortstay Host Guarantee Payment Request Form that you file within a reasonable period following the date you have (a) completed and filed an Komfortstay Host Guarantee Payment Request Form, and (b) provided Komfortstay with all information and materials that you are required to provide to comply with the conditions set forth in “Conditions to the Komfortstay Host Guarantee” above. In any event, we will use commercially reasonable efforts to complete processing of your Komfortstay Host Guarantee Payment Request Form within three (3) months after our receipt of such documents and information. If you receive an Approved Payment Request (as defined below), then as a condition to payment to you under the Komfortstay Host Guarantee, you will be required to execute and deliver to Komfortstay the “Komfortstay Host Guarantee Approved Payment Request Agreement ”, which includes your agreement:
The duration of the processing period of any Komfortstay Host Guarantee Payment Request Form that you file will depend on factors that include, but are not limited to: (i) the amount of payment that you are requesting for the Covered Loss; (ii) the location of the Covered Accommodation; (iii) the nature of the Covered Property and the nature of the Covered Losses; (iv) the completeness and type of documentation and information that you provide Komfortstay regarding the Covered Losses; and (v) the number of Komfortstay Host Guarantee Payment Request Forms that are currently being processed for other Hosts.
Approved Payment Request
If you have filed an Komfortstay Host Guarantee Payment Request Form and such a payment request is approved in whole or in part for a Covered Loss (any such approved payment request, an “Approved Payment Request”), you will be paid the amount of the Covered Loss as calculated by Komfortstay’s insurer. The process for such calculation of Covered Losses is described under “Determination of the Amount of the Covered Loss” below. You will be notified by Komfortstay and, as a condition of payment hereunder, you will be required to deliver to Komfortstay an executed Approved Payment Request Agreement. Komfortstay may use third party service providers to assist in the processing of the Komfortstay Host Guarantee Payment Request Forms and Komfortstay’s insurer may use third party service providers to assist in the investigation and adjustment of payment requests relating thereto.
For an Approved Payment Request that involves Covered Losses for Covered Property that is owned by a party other than you, we reserve the right, in our sole discretion, to pay all or a portion of the amount covered in such Approved Payment Request either to you or directly to the owner of such Covered Property. If an Komfortstay Host Guarantee payment for all or a portion of such amount is made directly to the owner of such Covered Property, then you agree that such payment will be treated for purpose of the Approved Payment Request as being paid to you directly, and that you will be solely responsible for collecting from the owner of such Covered Property any portion of such payment to which you believe you are legally entitled. For clarity, your indemnification obligations set forth below under the paragraph entitled “Indemnification” will apply to claims arising from any payments made pursuant to the Komfortstay Host Guarantee, including without limitation any payments made directly to the owner of any Covered Property.
Determination of the Amount of the Covered Loss
The amount of Covered Losses will be computed as of the date of loss, at the location of the loss, and for not more than your interest, subject to the following:
YOU ARE NOT AN INSURED OR OTHER THIRD PARTY BENEFICIARY UNDER THE KOMFORTSTAY INSURANCE POLICY. TO THE EXTENT YOU DESIRE ADDITIONAL PROTECTION BEYOND THE COVERAGE AFFORDED BY THE KOMFORTSTAY HOST GUARANTEE, KOMFORTSTAY STRONGLY ENCOURAGES YOU TO PURCHASE SEPARATE INSURANCE THAT WILL COVER YOU AND YOUR PROPERTY FOR LOSSES CAUSED BY GUESTS OR GUESTS’ INVITEES IN THE EVENT KOMFORTSTAY OR ITS INSURER DECLINES COVERAGE FOR CLAIMS UNDER THE KOMFORTSTAY HOST GUARANTEE OR YOUR LOSS IS NOT OTHERWISE COVERED BY THE KOMFORTSTAY HOST GUARANTEE.
VI. Acknowledgments and Agreements by the Host
You acknowledge and agree that:
You acknowledge and agree that if you make a claim under this Host Guarantee, you give Komfortstay consent to review all communications between you and the allegedly Responsible Guest via the Site or Application.
Komfortstay reserves the right, at any time, to offset or deduct from the amounts payable or paid by Komfortstay to you under these Komfortstay Host Guarantee Terms, any amounts that it may have in its possession, or to subsequently collect, from any other person or entity who is obligated to compensate you for losses or damages.
Because these Komfortstay Host Guarantee Terms constitute a guarantee agreement, the theory of exoneration applies. Thus, if the Covered Property in question or the risk associated with that Covered Property changes materially, Komfortstay will be entitled to exoneration with respect to any potential guaranty obligation under these Komfortstay Host Guarantee Terms.
VII. Modification or Termination of Komfortstay Host Guarantee Terms
To the extent permissible by applicable law in your jurisdiction, Komfortstay reserves the right to modify or terminate these Komfortstay Host Guarantee Terms, at any time, in its sole discretion, and without prior notice. If Komfortstay terminates these Komfortstay Host Guarantee Terms in accordance with the foregoing, Komfortstay will provide you with notice of such termination and Komfortstay will continue to process all Komfortstay Host Guarantee Payment Request Forms that you filed prior to the effective date of termination, but your right to file any new Komfortstay Host Guarantee Payment Request Forms will immediately terminate. If Komfortstay modifies these Komfortstay Host Guarantee Terms, we will post the modification on the Site or via the Application or provide you with notice of the modification and Komfortstay will continue to process all Komfortstay Host Guarantee Payment Request Forms that you filed prior to the effective date of the modification. By continuing to access or use the Site, Application or Services as a Host after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Komfortstay Host Guarantee Terms. If the modified Komfortstay Host Guarantee Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services as a Host.
In addition to and without limiting Komfortstay’s rights set forth above in the immediately preceding paragraph, Komfortstay reserves the right to modify or terminate these Komfortstay Host Guarantee Terms generally or in any jurisdiction, at any time, in its sole discretion, if: (i) these Komfortstay Host Guarantee Terms are construed to be an offer to insure or constitute insurance or an insurance contract or insurance service agreement by any governmental or regulatory authority in any jurisdiction; (ii) Komfortstay is required to obtain a license or permit of any kind to continue to provide these Komfortstay Host Guarantee Terms in any jurisdiction; or (iii) Komfortstay determines or a court or arbitrator holds that the provisions of these Komfortstay Host Guarantee Terms violate applicable law. If Komfortstay modifies or terminates these Komfortstay Host Guarantee Terms in accordance with the foregoing, Komfortstay will process all Komfortstay Host Guarantee Payment Request Forms that you file prior to or as of the effective date of such modification or termination unless such processing is prohibited by law, regulation, ordinance, order, or decree of any governmental or other authority.
Komfortstay’s obligations hereunder are contingent upon the availability of insurance proceeds under the Komfortstay Insurance Policy. The applicable terms and conditions of such policy will be the terms and conditions in effect on the date of the Covered Loss, and not the terms and conditions in effect on the date that the Responsible Guest booked or reserved the applicable Covered Accommodation or the date on which the Host listed the Covered Accommodation. If the policy terms and conditions change in any material respect between the date of the Listing and the first date of the Guest’s stay, Komfortstay will use its best efforts to notify you of the change(s) pursuant to the procedures set forth above in this section.
Komfortstay and/or Komfortstay’s insurer have the right to subrogate against any person or entity whatsoever who allegedly is responsible for causing the losses or damages in question, even if that person or entity is you. Further, you hereby agree that, with respect to any payments made under the Komfortstay Host Guarantee by, or on behalf of, Komfortstay, you will assist in and cooperate fully with Komfortstay regarding any and all efforts at subrogation.
IX. Disclaimers and Limitations of Liability
IF YOU CHOOSE TO USE THE SITE, APPLICATION, OR SERVICES AS A HOST, YOU DO SO AT YOUR SOLE RISK. THE KOMFORTSTAY HOST GUARANTEE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, KOMFORTSTAY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. KOMFORTSTAY MAKES NO WARRANTY THAT THE KOMFORTSTAY HOST GUARANTEE WILL MEET YOUR REQUIREMENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KOMFORTSTAY OR THROUGH THE SITE, APPLICATION, OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION AND SERVICES, AND YOUR LISTING OF ANY ACCOMMODATIONS VIA THE SITE, APPLICATION AND SERVICES REMAINS WITH YOU. NEITHER KOMFORTSTAY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION AND SERVICES 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 FOR ANY DAMAGES FOR (1) PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE KOMFORTSTAY HOST GUARANTEE TERMS, (2) FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION OR SERVICES, (3) FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, OR (4) FROM YOUR LISTING OF ANY ACCOMMODATION VIA THE SITE, APPLICATION AND SERVICES. KOMFORTSTAY WILL NOT BE LIABLE FOR ANY SUCH DAMAGES DESCRIBED ABOVE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KOMFORTSTAY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR KOMFORTSTAY’S OBLIGATION TO PAY AMOUNTS TO YOU PURSUANT TO AN APPROVED PAYMENT REQUEST UNDER THESE KOMFORTSTAY HOST GUARANTEE TERMS, IN NO EVENT WILL KOMFORTSTAY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH (A) THESE KOMFORTSTAY HOST GUARANTEE TERMS; (B) YOUR USE OF OR INABILITY TO USE THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, POSTING A LISTING, (C) ANY ACCOMMODATION AND (D) YOUR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS PAID BY KOMFORTSTAY TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED DOLLARS ($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 KOMFORTSTAY AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION FOR CERTAIN LIMITATIONS OF LIABILITY, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
X. General Provisions
You agree to release, defend, indemnify, and hold Komfortstay and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with the Komfortstay Host Guarantee and these Komfortstay Host Guarantee Terms.
If you rent (rather than own) the accommodation that you list as a Covered Accommodation, the immediately preceding paragraph applies specifically to any dispute between you and the owner of the accommodation. You are fully responsible for securing the lessor’s permission to list the accommodation with Komfortstay and complying with the scope of any permission granted.
These Komfortstay Host Guarantee Terms constitute the entire and exclusive understanding and agreement between Komfortstay and you regarding the Komfortstay Host Guarantee and these Komfortstay Host Guarantee Terms, and supersede and replace any and all prior oral or written understandings or agreements between Komfortstay and you regarding the Komfortstay Host Guarantee.
You may not assign or transfer these Komfortstay Host Guarantee Terms, by operation of law or otherwise, without Komfortstay’s prior written consent. Any attempt by you to assign or transfer these Komfortstay Host Guarantee Terms, without such consent, will be null and of no effect. Komfortstay may assign or transfer these Komfortstay Host Guarantee Terms, at its sole discretion, without restriction. Subject to the foregoing, these Komfortstay Host Guarantee Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Komfortstay Host Guarantee Terms, will be in writing and given by Komfortstay (i) via e-mail (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
These Komfortstay Host Guarantee Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to its conflict-of-law provisions.
General. You and Komfortstay agree that any dispute, claim or controversy arising out of or relating to these Komfortstay Host Guarantee Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site or Application (collectively, “Disputes ”) will be settled by binding arbitration. You acknowledge and agree that you and Komfortstay are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Komfortstay otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Komfortstay Host Guarantee Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at http://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/si.asp?id=3477 and a separate form for California residents at http://www.adr.org/si.asp?id=3485.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Komfortstay otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Komfortstay submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. 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 having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Disclaimers and Limitations of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Komfortstay will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Arbitration Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Komfortstay will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the “Modification or Termination of Komfortstay Host Guarantee Terms” section above, if Komfortstay changes this “Dispute Resolution” section after the date you first accepted these Komfortstay Host Guarantee Terms (or accepted any subsequent changes to these Komfortstay Host Guarantee Terms), you may reject any such change by sending us written notice (including by email to terms@Komfortstay.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Komfortstay’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Komfortstay in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Komfortstay Host Guarantee Terms (or accepted any subsequent changes to these Komfortstay Host Guarantee Terms).
Waiver and Severability
The failure of Komfortstay to enforce any right or provision of these Komfortstay Host Guarantee Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Komfortstay. Except as expressly set forth in these Komfortstay Host Guarantee Terms, the exercise by either party of any of its remedies under these Komfortstay Host Guarantee Terms will be without prejudice to its other remedies under these Komfortstay Host Guarantee Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Komfortstay Host Guarantee Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Komfortstay Host Guarantee Terms will remain in full force and effect.
XI. Contacting Komfortstay
If you have any questions about these Komfortstay Host Guarantee Terms, please contact Komfortstay at terms@Komfortstay.com.
XII. Additional Clauses for Users Contracting with Komfortstay Pakistan
The following paragraphs will apply if you are contracting with Komfortstay Pakistan.
The Controlling Law clause shall be removed and replaced with the following:
" Controlling Law and Jurisdiction
These Komfortstay Host Guarantee Terms will be interpreted in accordance with Irish law. You and we agree to submit to the non-exclusive jurisdiction of the Irish courts for resolving any dispute between the parties. If Komfortstay wishes to enforce any of its rights against you, we may elect to do so in the Irish courts or in the courts of the jurisdiction in which you are resident."
The Dispute Resolution clause shall be removed and is not applicable.