2210 Sycamore Drive Knoxville, TN 37921
TERMS OF SERVICE
Last Updated: April 24, 2020
Please read these Terms of Service (these "Terms") carefully, as they constitute a binding agreement between you – the individual user or entity accessing or otherwise using the GuestSmiles® Marketplace – and GuestSmiles.com, LLC ( "GuestSmiles®") governing your use of www.GuestSmiles.com, including all subdomains thereof (collectively, the "Website"), any mobile, tablet or other smart device applications related to the Website (the "Mobile Apps"), and any products or services offered on the Website or through the Mobile Apps (the "Services"). The Website, the Mobile Apps, and the Services are sometimes collectively referred to herein as "GuestSmiles® Marketplace". GuestSmiles® is sometimes referred to herein as "we" or "us".
PLEASE NOTE: THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES, LIMITATIONS ON LIABILITY, AND INDEMNIFICATION AND MANDATORY ARBITRATION CLAUSES
We reserve the right, in our sole discretion, to modify these Terms at any time without prior notice. If we make changes to these Terms, we will post the revised Terms on the Website and update the “Last Updated” date at the top of these Terms, and modifications will be effective immediately. You will not be provided with separate notification of any modification to the Terms, so it is important that you review these Terms periodically.
I. SCOPE OF SERVICES
- A. Purpose of GuestSmiles® Marketplace. The GuestSmiles® Marketplace is an online marketplace that enables property owners or managers (“Providers”) to offer vacation and short-term rental properties (each a “Property” or, if more than one, “Properties”) to actual or prospective renters (“Guests”) and to communicate and transact directly with Guests seeking to reserve a Property (a “Booking”). The GuestSmiles® Marketplace does so by permitting registered Providers to list their Properties on the Website (a “Listing”) for review and accept Bookings directly by Guests and by offering tools that facilitate communication and transactions between Providers and Guests. Providers and Guests are sometimes collectively referred to herein as the “Users”.
- B. Relationship Between GuestSmiles® and Users. GuestSmiles® does not own, create, sell, manage, or otherwise supply any Listings. Providers alone are responsible for their Listings. When Guests make or accept a Booking, they enter into a contract directly with the Provider. We do not become a party to or other participant in any contractual relationship between Providers and Guests. We do not act as an agent of any User in any capacity, or as a real estate broker with respect to any Property. The relationship between Providers and GuestSmiles® is that of an independent contractor, and no agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is created by these Terms or the Providers’ use of the GuestSmiles® Marketplace. Providers act on their own behalf and for their own benefit, and not on behalf or for the benefit of GuestSmiles®.
- C. No Guarentee. We have no control over and do not guarantee (i) the existence, quality, safety, suitability, or legality of any Listing or Property; (ii) the truth or accuracy of any Listing description or other materials, including but not limited to text and photographs, relating to Listings or otherwise posted on or uploaded to the GuestSmiles® Marketplace by or at the direction of Users (collectively, “User Content”); or (iii) the performance or conduct of any User. While we try to ensure that the content on the GuestSmiles® Marketplace is complete, up-to-date, readily available, and clearly explained, we do not pre-screen User Content and do not guarantee the accuracy of User Content. GuestSmiles® does not assume any responsibility for User Content or any liability resulting from your actions or inactions taken based on User Content.
- D. Verification Process. We do not assume responsibility for the confirmation or verification of any Property or any User’s identity. In the interest of minimizing fraudulent transactions or Listings, we have established a process to verify Users’ identities (the “Verification Process”), but such verification is not an endorsement, certification, or guarantee about any User. You should always exercise due diligence in assuring yourself of another User’s identity and the legitimacy of any Listing, before contracting for any services.
- E. Additional Services. GuestSmiles® may from time to time offer Users optional third-party services aimed at improving their experience with the GuestSmiles® Marketplace and/or other services provided by GuestSmiles® or otherwise related to, directly or indirectly, Users’ ownership, management, operations, or use of the Properties. These services may be subject to additional costs and fees not set forth above, the applicable amounts of which will be disclosed to Users at the time the User enrolls in such optional services.
- A. Age Requirement. You must be at least eighteen (18) years old and able to enter into legally binding contracts to use the GuestSmiles® Marketplace or complete a Booking. By accessing or using the GuestSmiles® Marketplace, you represent and warrant to GuestSmiles® that you are at least eighteen (18) years of age and are fully able to become bound by these Terms and any contract for Services.
- B. GuestSmiles® Account. You may browse the GuestSmiles® Marketplace and view content without registering with the GuestSmiles® Marketplace. You must register an account to access and use certain features of the GuestSmiles® Marketplace, such as posting a Listing, taking advantage of real-time online booking, and using certain software or tools offered on the GuestSmiles® Marketplace, including, but not limited to, the GuestSmiles® Reservation Management System and the Owners’ Club.
- C. Account Registration. You may only register one (1) account with the GuestSmiles® Marketplace, unless otherwise approved in writing by GuestSmiles®. You can register an account by using your email address to create a login identification and password (“Login Credentials”). You must provide current, accurate, and complete information during the registration process. If you provide any information that is inaccurate or incomplete, or if we have reasonable grounds to believe that such information is inaccurate or incomplete, we reserve the right to suspend or terminate your account and prohibit your use of the GuestSmiles® Marketplace in the future.
- D. Account Security. You are responsible for maintaining the confidentiality and security of your Login Credentials and may not disclose them to any third party other than authorized users of your account. You must notify us immediately and reset your Login Credentials if you have any reason to believe that your Login Credentials have been stolen, misappropriated, or otherwise compromised, or in the event of actual or suspected unauthorized use of your account. If we suspect any unauthorized access to your account, you agree to promptly change your Login Credentials upon notice from us, and to take any other actions as we may request. No third party is authorized by GuestSmiles® to ask for your credentials, and you shall not request the credentials of another User of the GuestSmiles® Marketplace.
YOU ARE LIABLE FOR ANY AND ALL ACTIVITIES CONDUCTED THROUGH YOUR ACCCOUNT AND AGREE THAT GUESTSMILES® WILL HAVE NO LIABILITY FOR UNAUTHORIZED TRANSACTIONS MADE USING YOUR LOGIN CREDENTIALS.
III. TERMS SPECIFIC TO GUESTS
- A. Negotiations, Fees, and Online Bookings. As a Guest, subject to meeting any requirements set by GuestSmiles® or the Provider, you can Book a Listing available on the GuestSmiles® Marketplace by following the applicable Booking process set forth in the Listing. When making an Online Booking, all applicable fees to be paid by you, including any Service Fees, security deposits, taxes, etc., will be shown on the checkout page presented to you before you finalize and confirm the reservation. If making a Direct Booking, it is your responsibility to negotiate with the Provider all fees and costs that will be owed by you in connection with such booking and to arrange for payment.
- B. Terms. By making a Booking, Guests agree to these Terms of Service and any Property Specific Terms and Policies. If the Property Specific Terms and Policies included in the Listing differ from the terms directly provided by a Provider, Guests acknowledge that the terms directly provided by the Provider shall govern.
IV. TERMS SPECIFIC TO PROVIDERS
- A. Offering Bookings. As a Provider, you have the option, in your Listing, to (i) require that Guests call or email you directly to negotiate rental terms and book reservations (“Direct Bookings”) or (ii) allow Guests to only book your Property online using the GuestSmiles® Marketplace’s online reservation system (“Online Booking”). When offering Online Bookings, you consent to automatic confirmation of the reservation without your prior approval. Providers are required to utilize a reservation software or channel management system that has real-time connection to the GuestSmiles® Marketplace.
- B. Account. When setting up an account as a Provider, you will be able to provide the reservation, cancellation, and damage deposit policies that apply to your Listings (“Property Specific Terms and Policies”). If Property Specific Terms and Policies are provided by the Provider, they will be included in the Listing. Providers agree to provide GuestsSmiles® with any updates to their Property Specific Terms and Policies within thirty (30) days of any modifications. It is the sole responsibility of Providers to furnish Guests with an official copy of their Property Specific Terms and Policies posted with the Listing. If the terms provided to Guests by a Provider differ from the Property Specific Terms and Policies posed with the Listing, the terms directly provided to the Guests by the Provider shall govern. GuestSmiles® shall not be deemed a party to, or to have accepted, any Property Specific Terms and Policies.
- C. Listings. When creating a Listing through the GuestSmiles® Marketplace, whether for Direct Booking or Online Booking, you, as the Provider, must (i) provide complete and accurate information about your Property; (ii) disclose any deficiencies, material defects, or other material information about the Property; (iii) provide any other pertinent information requested by Guests or GuestSmiles® about the Listing, the Property, or yourself; and (iv) provide any and all municipal, governmental, or regulator business tax or other license numbers or identifiers, if applicable. As a Provider, you are responsible for keeping your Listings (including calendar availability) up to date at all times.
- D. Representations and Warranties. As a Provider, you represent and warrant that you have all necessary rights and authority to rent the Property in accordance with your Listings. You further represent and warrant that any Listing you post, any Booking of your Property, or any Guest’s stay at your Property (i) will not breach any agreement you have entered into with any third parties (such as landlords or homeowners’ associations); (ii) will comply with all applicable laws (including, without limitation, zoning laws, data privacy, and anti-discrimination), tax requirements, and other rules and regulations (including, without limitation, any permits, licenses, and registrations). You are also responsible for your own acts and omissions, as well as the acts and omissions of any individual who resides or is otherwise present at the Property at your request or invitation, including the Guest and anyone the Guest invites.
- F. Information Required. Upon request by GuestSmiles®, you, as a Provider, must furnish us with all information requested by us to allow us to ascertain your identity, authorization to bind an entity (if the Listing is made on behalf of such entity), the accuracy of the Listings, proof of ownership (or right to rent) any Property, or as otherwise deemed reasonably necessary by GuestSmiles® to complete its Verification Process. If you create a Listing on behalf of an entity, by creating such Listing you represent and warrant that you have the authority to bind the entity to these Terms and to any Property Specific Terms and Policies.
- G. Price Setting. As a Provider, you are solely responsible for setting the price (including taxes, if applicable, security deposits, cleaning fees, etc.) for your Listings. You are also solely responsible for determining your obligations to collect, report, remit, or include in your Listing fees any applicable sales tax, occupancy tax, and any other tax you may be subject to. All prices, costs, and fees payable by your Guests must be communicated to them prior to acceptance of any Booking, and must be shown in the Listing checkout page, if an Online Booking, or in any manner agreed upon between you and your Guest, if a Direct Booking.
- H. Merchant Account. All Providers are required to have a merchant account for accepting and processing Guest payments and be the merchant of record on such account. Providers shall maintain a credit card or ACH bank account number on file with GuestSmiles® for the payment of Provider Fees and Listing Fees, provided that all Provider Fees and Listing Fees shall be charged to, or withdrawn from, such Provider’s credit card or ACH account, as applicable, by GuestSmiles®. You hereby authorize us to make such charge or withdrawal.
- I. Provider Fees. All Online Bookings made on the GuestSmiles® Marketplace are subject to a fee (the “Provider Fee”). The Provider Fee shall be a set percentage of the net reservation fee, as set when the Provider signs up to be a Provider, unless a set percentage was previously agreed upon when Provider created their account. Provider Fees are non-refundable, unless Provider delivers to GuestSmiles® a copy of the cancelled reservation agreement within seven (7) days of the date of such cancellation. Provider Fees shall not be disclosed to Guests at checkout, and shall not be borne by the Guest, but shall be reported to Provider after a booking has been confirmed. The date of collection of Provider Fees shall be solely determined by GuestSmiles® and shall be due and payable on the 1st day of the month after a reservation becomes non-refundable to the Guest in accordance with the Provider’s Property Specific Terms and Policies.
- J. Listing Fees. All Direct Bookings listed on the GuestSmiles® Marketplace are subject to a non-refundable fee per property per month or per year (the “Listing Fee”). Listing Fees will be set in Provider’s Order Form, unless otherwise agreed upon when Provider created their account. Listing Fees shall not be disclosed to Guests at checkout and shall not be borne by the Guest. The date of collection of Listing Fees shall be solely determined by GuestSmiles®, but shall generally be due and payable on the 1st day of the month after a property is listed on GuestSmiles® Marketplace. GuestSmiles® shall charge for the total number of properties initially listed and for each additional property listed. Provider shall be able to change listed properties, without additional cost, as long as they do not exceed the total number of properties for which Listing Fees have been paid within a given year.
- K. Service Fee. All Bookings facilitated or generated by the GuestSmiles® Reservation Management System (whether a Direct Booking or an Online Booking) are subject to a non-refundable fee of a set percent of the total reservation amount, excluding any cleaning fees, security deposits, and taxes (the “Service Fee”). Service Fees shall be reflected on the total costs and fees presented to the Guest at checkout, if an Online Booking, or prior to confirmation of a booking, if a Direct Booking. Service Fees are due and payable after a reservation becomes non-refundable to the Guest in accordance with the Provider’s Property Specific Terms and Policies. The Service Fee is in addition to any Provider Fees or Listing Fees.
- F. Fee Modifications. GuestSmiles® reserves the right to change Provider Fees, Listing Fees, Service Fees, and any other fees at any time, and will provide all registered Users of the GuestSmiles® Marketplace with reasonable notice before such fees become effective. GuestSmiles® also reserves the right to charge Provider Fees and Listing Fees at different rates for different Providers or types of Providers in accordance with policies enacted by GuestSmiles® from time to time. Any fee change shall not affect any Bookings made prior to the effective date of the change.
- M. Total Property Price. Any Provider who lists a Property on the Provider’s website in addition to listing such property on GuestSmiles®.com shall be responsible for ensuring that the total price (including, without , rent, taxes, and fees) for the Property as set forth on GuestSmiles®.com is never more than (i) with respect to Online Bookings, a maximum of nine percent (9%) of the total price as set forth on the Provider’s website, and (ii) with respect to Direct Bookings, a maximum of one percent (1%) of the total price as set forth on the Provider’s website.
- N. Termination. Provider may cancel and terminate the agreement at any time by providing email notification to email@example.com. GuestSmiles shall invoice for all fees due, as defined by the agreement and order form as of the date of the notification.
- A. Binding Agreement. Upon receipt of a booking confirmation from either GuestSmiles® or the Provider, as applicable, a legally binding agreement is formed between the Guest and the Provider, subject to any terms and conditions of the Provider that may apply, including, but not limited to, any Property Specific Terms and Policies. Any Property Specific Terms and Policies are in addition to these Terms, and Providers and Guests remain bound by these Terms. All Service Fees and other fees and costs associated with the Booking will be due and payable by the Guest at the time of Booking, unless the Listing provides otherwise or allows for installment payments. Providers must allow access to the Property in accordance with the Listing.
- B. Use of Information. Any identifying or non-identifying personal information that you receive from a Provider, Guest, or other User of the GuestSmiles® Marketplace may be used only for (i) Booking a Listing; (ii) solicited email communication regarding a Listing or the Services; and (iii) otherwise facilitating a transaction between you and the Provider, Guest, or other User related to the Services. Use of such information for any other purpose without consent is strictly prohibited.
- C. Modifications to Bookings. Providers and Guests are responsible for negotiating and agreeing on any modifications to bookings made on, or facilitated by, the GuestSmiles® Marketplace, and agree to pay any additional fees, including Service Fees and Provider Fees, that may be associated with such modifications. Booking cancellations and refunds are made in accordance with the applicable Listing, as set forth in the applicable Property Specific Terms and Policies, or as otherwise agreed upon between Providers and Guests; provided, however, that Service Fees and Provider Fees are non-refundable.
VI. THIRD-PARTY LINKS
- A. Third-Party Sites. The GuestSmiles® Marketplace may contain links to third-party websites or resources (“Third-Party Sites”). Services offered by Third-Party Sites may be subject to different terms and conditions and privacy policies, and you should review them prior to using or accessing such Third-Party Sites. GuestSmiles® does not own, operate, or control in any respect the Third-Party Sites and is not responsible or liable for the availability or accuracy of the services, contents, or products offered on the Third-Party Sites. Links to Third-Party Sites are not an endorsement by GuestSmiles® of the Third-Party Site or the services, products, or contents provided therein.
- B. Google Maps/Google Earth. Some areas of the GuestSmiles® Marketplace implement or provide links to Google Maps/Google Earth mapping services. Your use of Google Maps/Google Earth is subject to the Google Maps/Google Earth Additional Terms of Service.
VII. CONTENT & INTELLECTUAL PROPERTY
A. Content. GuestSmiles® allows registered Users to create, upload, post, send, receive, and store content, such as text, photos, or other User Content. GuestSmiles® also allows registered and unregistered Users to access and view User Content as well as content that GuestSmiles® makes available from time to time on or through the GuestSmiles® Marketplace, including proprietary content and any content licensed or authorized for use by or through GuestSmiles® from a third party (the “GuestSmiles® Content”). No licenses or rights are granted to you, by implication or otherwise and including but not limited to intellectual property rights, with respect to the GuestSmiles® Content, unless specifically set forth in these Terms.
- B. Rights to Content. You are solely responsible for all User Content that you make available on or through the GuestSmiles® Marketplace. Accordingly, you represent and warrant that (i) you either are the sole and exclusive owner of all User Content that you make available on or through the GuestSmiles® Marketplace, or you have all rights, licenses, consents, and releases that are necessary to use or grant the rights in and to such User Content; and (ii) neither the User Content and your posting, uploading, submitting, or transmitting of the User Content, nor GuestSmiles®’s use of the User Content under the license granted to GuestSmiles® in these Terms, will infringe, misappropriate, or violate a third party’s patent, copyright, trademark, or other proprietary or intellectual property rights, or result in the violation of any applicable law or regulation.
- C. Use of Content. You agree not to post, upload, publish, submit or transmit any text, photos, or other User Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information), or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar, or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (iv) is violent or threatening to, or promotes violence against, any person or animal; (v) promotes illegal or harmful activities or substances; or (vi) violates these Terms or any other policy found in the GuestSmiles® Marketplace. GuestSmiles® may, without prior notice, remove or disable access to any User Content that we find to be in violation of applicable law or these Terms, or that we find may otherwise be harmful or objectionable.
- D. Photographs. Any photograph posted, uploaded, or otherwise submitted as User Content shall primarily display the Property offered in the applicable Listing. No photograph shall contain images of any person without their legal consent or otherwise infringe on such person’s right to privacy or other intellectual property rights. By posting, uploading, or otherwise submitting a photograph, you represent and warrant to GuestSmiles® that (i) you hold all intellectual property rights in such photographs, (ii) that any persons depicted in such photographs have given consent for their likenesses to be used, and (iii) that such photographs fairly represent the Property or Listing, have not been altered, and are not misleading in any way.
- E. Intellectual Property. GuestSmiles® respects intellectual property law, including but not limited to copyright and trademark laws, and expects you to do the same. We do not tolerate the posting of any content that infringes another person’s intellectual property rights. You agree not to use, copy, adapt, modify, prepare derivative works of, or otherwise exploit the GuestSmiles® Marketplace, the User Content, or the GuestSmiles® Content. If you believe that any content on the GuestSmiles® Marketplace infringes on your intellectual property rights, please notify us. We may terminate, under appropriate circumstances, any User who repeatedly provides infringing content. See Section VIII DMCA NOTICE.
- F. Grant of License. By creating, uploading, posting or otherwise making available User Content by or through the GuestSmiles® Marketplace, you grant to GuestSmiles® a perpetual, worldwide, irrevocable, non-exclusive, fully paid-up license to use, copy, sublicense, distribute, display, reproduce, transmit, modify, and otherwise exploit any User Content provided on or through the GuestSmiles® Marketplace by you for any legitimate business purpose, including advertising and social media posts on platforms such as Facebook, Instagram, Twitter, and the like.
- G. GuestSmiles® Property. The GuestSmiles® Marketplace and all GuestSmiles® Content is the sole property of GuestSmiles®. Subject to prior written approval from GuestSmiles, you are hereby granted a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to access and view any User Content and GuestSmiles® Content on or through the GuestSmiles® Marketplace, solely for your personal and non-commercial use; however, you are not entitled to use, and you are strictly prohibited from using, GuestSmiles® Content or any intellectual property belonging to GuestSmiles® for any commercial purpose.
- H. Right to Prohibit Access. GuestSmiles® hereby reserves the right, but not the obligation, to review, disable access to, or edit any User Content to (i) operate, secure, and improve the GuestSmiles® Marketplace (including for fraud prevention purposes); (ii) ensure User Content complies with these Terms; (iii) comply with any applicable laws, court order, law enforcement order, or similar orders; or (iv) as otherwise permitted by these Terms or required by applicable law.
- I. Content and Intellectual Property Violations. Any liability resulting from User’s failure to comply with the provisions of this Section shall be subject to the terms of Section XI. LIMITATION ON LIABILITY and Section XII. INDEMNIFICATION.
VIII. DMCA NOTICE
- A. GuestSmiles® prohibits the submission of any copyrighted material without the user first obtaining the prior written consent of the copyright owner. In particular, if you are a copyright owner or an agent thereof and believe that any Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works at the Site;
(iii) Identification of the material on the Site that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- B. The person or entity that posted the material subject to your complaint is allowed under the law to send GuestSmiles® a counter-notification. We may publish or produce the notice and counter-notification with third parties in our sole discretion (in addition to producing them pursuant to a subpoena or other legal discovery request). Anyone making a false or fraudulent notice or counter-notice may be liable for damages under the DMCA, including costs and attorneys’ fees. Any person who is unsure of whether certain material infringes a copyright held by such person or a third party should contact an attorney.
- C. Our designated Copyright Agent to receive notifications of claimed infringement can be reached at firstname.lastname@example.org, or 2210 Sycamore Drive Knoxville, TN 37921. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to customer service at email@example.com. You acknowledge that if you fail to comply with all the requirements of this section, your DMCA notice may not be valid.
IX. PROHIBITED ACTIVITIES
- B. You shall not use the GuestSmiles® Marketplace, any User Content, or any GuestSmiles® Content for any commercial or other purposes not expressly permitted by these Terms.
- D. You shall not use the GuestSmiles® Marketplace in connection with the distribution of spam or contact another User for any purpose unrelated to a Listing or your or such other User’s use of the GuestSmiles® Marketplace.
- E: You shall not use the GuestSmiles® Marketplace to promote third-party services, applications, or websites without our prior written approval.
- F. You shall not circumvent, or attempt to circumvent, any Service Fees, Provider Fees, Listing Fees, or other fees applicable to a Listing.
- G. You shall not discriminate against or harass anyone on the basis of race, national origin, religion, gender, disability, sexual orientation, or otherwise engage in any violent, harmful, abusive, or disruptive behavior.
- H. You shall not use any robots, spider, crawler, scraper or other automated means or processes to access or collect data or any other content from, or otherwise interact with, the GuestSmiles® Marketplace.
- I. You shall not take any action that (i) imposes or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (ii) interferes or attempts to interfere with the proper working of the GuestSmiles® Marketplace or any activities conducted on or facilitated by the GuestSmiles® Marketplace; or (iii) bypasses any measures we may use to prevent or restrict access to the GuestSmiles® Marketplace.
- J. You shall not take any action that would infringe on GuestSmiles®’s, or any User’s intellectual property rights, including any action that would dilute, tarnish, or otherwise harm the GuestSmiles® brand or that would attempt to reverse engineer any of the software integrated into the GuestSmiles® Marketplace.
- K. You shall not violate or infringe on any Provider, Guest, or third-party rights.
- A. These Terms require that all User Content on the GuestSmiles® Marketplace be accurate and reliable. We cannot and do not, however, guarantee the accuracy of any User Content or GuestSmiles® Content and we have not and do not undertake a duty to update the GuestSmiles® Marketplace or any content found therein. If you choose to use the GuestSmiles® Marketplace, including any User Content or GuestSmiles® Content, you do so voluntarily and at your sole risk. The GuestSmiles® Marketplace is provided “as is, where is, and with all faults,” without warranty of any kind, either express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. You assume full responsibility for the choices you make in connection with the Services offered on the GuestSmiles® Marketplace.
- B. GuestSmiles® further disclaims warranties of any kind, express or implied, that our Verification Process will identify prior misconduct by a User, or that any User may not engage in misconduct in the future.
- C. The foregoing disclaimers apply to the maximum extent permitted by law.
XI. LIMITATION ON LIABILITY
A. If you are dissatisfied with the GuestSmiles® Marketplace for any reason, your sole and exclusive remedy is to discontinue use of the GuestSmiles® Marketplace and terminate this agreement in accordance with the terms hereof . To the maximum extent allowed by applicable law, in no event will GuestSmiles®’s aggregate liability to you exceed ten dollars ($10.00).
- B. 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 GuestSmiles® Marketplace, any Listings, your stay in any Property, or any other interaction you may have with other Users of the GuestSmiles® Marketplace remains with you. In no event will GuestSmiles® or any third party involved in creating, producing, or providing the GuestSmiles® Marketplace or the GuestSmiles® Content be liable for any direct, indirect, punitive, incidental, special, or consequential damages, including, without limitation, lost profits, loss of data, service interruption, or other injury arising out of, based on, or resulting from: (i) your use of (or inability to use) the GuestSmiles® Marketplace or the Services; (ii) these Terms; (iii) any User Content or GuestSmiles® Content, including any information you post, upload, or otherwise submit as User Content; (iv) any communications or interactions you may have with other Users; (v) Listing or Booking of a Listing; (vi) any interaction between GuestSmiles® and any Third-Party Site; and (vii) your use of any optional services provided by third-parties, whether or not facilitated by the GuestSmiles® Marketplace. These limitations and exclusions apply without regard to whether the damages are based on warranty, contract, tort, negligence, or any other legal theory. Some jurisdictions may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitations or exclusions may not apply to you.
By using or accessing the GuestSmiles® Marketplace, you agree to release, defend (at GuestSmiles®’s option), indemnify, and hold GuestSmiles® and its affiliates, officers, directors, employees, and agents harmless from and against any and all claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal fees arising out of or in any way connected with (i) your breach of these Terms or any policies enacted by GuestSmiles® from time to time; (ii) your use of the GuestSmiles® Marketplace; (iii) your interaction with any Provider, Guest, or other User, including, without limitation, any injuries, losses, or damages (whether compensatory, direct, incidental, consequential, or otherwise); or (iv) your breach of any applicable laws, regulations, or third-party rights.
XIII. ARBITRATION; CHOICE OF LAW; VENUE
A. Any dispute, claim, or controversy between you and GuestSmiles® arising out of or relating, directly or indirectly, to these Terms or your access to or use of the GuestSmiles® Marketplace (“Dispute”) shall be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with their Commercial Arbitration Rules (the “AAA Rules”).
B. You and we hereby waive our respective rights to a trial by jury as to all arbitrable Disputes and to otherwise go to court to assert or defend our rights. Our rights will be determined by neutral arbitrators and not a judge or jury.
C. You and we further agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, or other representative proceeding as to all Disputes. Further, unless you and we agree in writing, the arbitrator may not consolidate mre than one party’s claims and may not otherwise preside over any form of any class or representative proceeding.
D. Prior to initiating arbitration, you agree to notify GuestSmiles® of a Dispute and to attempt to negotiate an informal resolution. If resolution is not achieved, you may file a claim with the AAA in accordance with the AAA Rules. The arbitration shall be held before one (1) arbitrator selected in accordance with the AAA Rules. If no AAA Rule governs the selection of arbitrators at such time, then the arbitrator shall be selected from a panel of arbitrators acceptable to GuestSmiles®. All costs associated with arbitration will be paid by the party initiating the arbitration; provided, however, that the prevailing party in any arbitration shall be entitled to recover its reasonable attorney’s fees. The arbitrator shall not have the power to award damages in connection with any dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive, or exemplary damages, and you and we irrevocably waive any claim thereto.
- E. The venue for any arbitration shall be Knoxville, Tennessee, and any judgment upon an award rendered by the arbitrator may be entered in any court of competent jurisdiction in Knoxville, Tennessee.
- F. These Terms will be interpreted in accordance with the laws of the State of Tennessee without regard to conflict-of-laws provisions. If at any time these arbitration provisions are deemed unenforceable, or if any Dispute is deemed non-arbitrable, judicial proceedings must be brought in the state and federal courts in Knoxville, Tennessee, unless you and we agree to another location. You and we consent to venue and personal jurisdiction in Knoxville, Tennessee.
XIV. GENERAL PROVISIONS
A. Amendments and Modifications. These Terms and the other terms, policies, and agreements referenced herein, in each case as they may be amended or otherwise modified from time to time, constitute the entire agreement between you and GuestSmiles® with respect to the subject matter hereof, and supersede all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between you and GuestSmiles®.
- B. Relationship. No joint venture, partnership, employment, or agency relationship exists between you and GuestSmiles® as a result of these Terms or your use of the GuestSmiles® Marketplace.
- C. If any part of these Terms is determined to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.
- D. Rights Reserved. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms or the GuestSmiles® Marketplace to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. All rights not expressly granted herein are reserved.
- E. No Transfer of Rights. You may not assign, transfer, or delegate these Terms and your rights and obligations hereunder without GuestSmiles®’s prior written consent. GuestSmiles® may assign these Terms in its sole discretion without notice and without your prior consent.
- F. Unless specified otherwise, any notices or other communications between GuestSmiles® and you shall be made electronically to the e-mail provided by you in your GuestSmiles® Marketplace account.
- G. Questions. If you have any questions about these Terms, please contact us.
PLEASE PRINT AND RETAIN A COPY OF THESE TERMS FOR YOUR RECORDS.