Terms of Service
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
IN PARTICULAR, HOSTS SHOULD UNDERSTAND HOW THE LAWS WORK IN THEIR RESPECTIVE CITIES. SOME CITIES HAVE LAWS THAT RESTRICT THEIR ABILITY TO HOST PAYING GUESTS FOR SHORT PERIODS. THESE LAWS ARE OFTEN PART OF A CITY’S ZONING OR ADMINISTRATIVE CODES. IN MANY CITIES, HOSTS MUST REGISTER, GET A PERMIT, OR OBTAIN A LICENSE BEFORE LISTING A PROPERTY OR ACCEPTING GUESTS. CERTAIN TYPES OF SHORT-TERM BOOKINGS MAY BE PROHIBITED ALTOGETHER. LOCAL GOVERNMENTS VARY GREATLY IN HOW THEY ENFORCE THESE LAWS. PENALTIES MAY INCLUDE FINES OR OTHER ENFORCEMENT. HOSTS SHOULD REVIEW LOCAL LAWS BEFORE LISTING A SPACE ON KINKBNB.
LastUpdated: February 08, 2017
TERMS OF SERVICE
If you are using the Site, Application or Services and you reside in the USA, you are contracting with KinkBNB, Inc. with respect to use of the KinkBNB Site, Application or Services, and any payments or payouts from or to you conducted through the Site, Application or Services. KinkBNB is hereinafter referred to as "KinkBNB", "we", "us", or "our").
THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH HOSTS (DEFINED BELOW) MAY CREATE LISTINGS (DEFINED BELOW) FOR ACCOMMODATIONS (DEFINED BELOW) AND GUESTS (DEFINED BELOW) MAY LEARN ABOUT AND BOOK ACCOMMODATIONS DIRECTLY WITH THE HOSTS. YOU UNDERSTAND AND AGREE THAT KinkBNB IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN HOSTS AND GUESTS, NOR IS KinkBNB A REAL ESTATE BROKER, AGENT OR INSURER. KinkBNB HAS NO CONTROL OVER THE CONDUCT OF HOSTS, GUESTS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY ACCOMMODATIONS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
means all Content that KinkBNB makes available through the Site,
Application, or Services, including any Content licensed from a
third party, but excluding Member Content.
“ Booking Request Period” means the time period starting from the time when a booking is requested by a Guest (as determined by KinkBNB in its sole discretion), within which a Host may decide whether to confirm or reject that booking request, as stated on the Site, Application or Services. Different Booking Request Periods may apply in different places.
“ Collective Content” means Member Content and KinkBNB Content.
“ Content” means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
“ Guest” means a Member who requests from a Host a booking of an Accommodation via the Site, Application or Services, or a Member who stays at an Accommodation and is not the Host for such Accommodation.
“ Host” means a Member who creates a Listing via the Site, Application and Services.
“ Listing” means an Accommodation that is listed by a Host as available for rental via the Site, Application, and Services.
“ Member” means a person who completes KinkBNB’s account registration process, including but not limited to Hosts and Guests, as described under “Account Registration” below.
“ Member Content” means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site, Application or Services.
“ Tax” or “Taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST), transient occupancy taxes, tourist or other visitor taxes, accommodation or lodging taxes, fees (such as convention center fees) that accommodation providers may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.
Certain areas of the Site and Application (and your access to or use of certain aspects of the Services or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application, Services, or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, Services, or Collective Content.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, VIA THE APPLICATION OR THROUGH THE SERVICES, OR BY PARTICIPATING IN THE REFERRAL PROGRAM, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE AND APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT OR TO PARTICIPATE IN THE REFERRAL PROGRAM. If you accept or agree to these 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 Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
KinkBNB reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site, Application or Services 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 Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services.
The Site, Application and Services are intended solely for persons who are 18 or older. Any access to or use of the Site, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that you are 18 or older.
How the Site, Application and Services Work
The Site, Application and Services can be used to facilitate the listing and booking of residential and other properties (“Accommodations”). Such Accommodations are included in Listings on the Site, Application and Services by Hosts. You may view Listings as an unregistered visitor to the Site, Application and Services; however, if you wish to book an Accommodation or create a Listing, you must first register to create an KinkBNB Account (defined below).
As stated above, KinkBNB makes available an online platform or marketplace with related technology for Guests and Hosts to meet online and arrange for bookings of Accommodations directly with each other. KinkBNB is not an owner or operator of properties, including, but not limited to, hotel rooms, motel rooms, other lodgings or Accommodations, nor is it a provider of properties, including, but not limited to, hotel rooms, motel rooms, other lodgings or Accommodations and KinkBNB does not own, sell, resell, furnish, provide, rent, re-rent, manage and/or control properties, including, but not limited to, hotel rooms, motel rooms, other lodgings or Accommodations or transportation or travel services. Unless explicitly specified otherwise in the KinkBNB platform, KinkBNB’s responsibilities are limited to: (i) facilitating the availability of the Site, Application and Services and (ii) serving as the limited payment collection agent of each Host for the purpose of accepting payments from Guests on behalf of the Host.
PLEASE NOTE THAT, AS STATED ABOVE, THE SITE, APPLICATION AND SERVICES ARE INTENDED TO BE USED TO FACILITATE HOSTS AND GUESTS CONNECTING AND BOOKING ACCOMMODATIONS DIRECTLY WITH EACH OTHER. KinkBNB CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY ACCOMMODATIONS. KinkBNB IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND ACCOMMODATIONS. ACCORDINGLY, ANY BOOKINGS WILL BE MADE AT THE GUEST’S OWN RISK.
In order to access certain features of the Site and Application, and to book an Accommodation or create a Listing, you must register to create an account (“KinkBNB Account”) and become a Member. You may register to join the Services directly via the Site or Application or as described in this section.
You can also register to join by logging into your account with certain third-party social networking sites (“SNS”) (including, but not limited to, Facebook; each such account, a “Third-Party Account”), via our Site or Application, as described below. As part of the functionality of the Site, Application and Services, you may link your KinkBNB Account with Third-Party Accounts, by either: (i) providing your Third-Party Account login information to KinkBNB through the Site, Services or Application; or (ii) allowing KinkBNB to access your Third-Party Account, as permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to KinkBNB and/or grant KinkBNB access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating KinkBNB to pay any fees or making KinkBNB subject to any usage limitations imposed by such third-party service providers. By granting KinkBNB access to any Third-Party Accounts, you understand that KinkBNB will access, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Site, Services and Application via your KinkBNB Account and KinkBNB Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts will be available on and through your KinkBNB Account on the Site, Services and Application. Please note that if a Third-Party Account or associated service becomes unavailable or KinkBNB’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your KinkBNB Account and your Third-Party Accounts, at any time, by accessing the “Settings” section of the Site and Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. KinkBNB makes no effort to review any SNS Content for any purpose, including but not limited to for accuracy, legality or non-infringement and KinkBNB is not responsible for any SNS Content.
We will create your KinkBNB Account and your KinkBNB Account profile page for your use of the Site and Application based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active KinkBNB Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. KinkBNB reserves the right to suspend or terminate your KinkBNB Account and your access to the Site, Application and Services if you create more than one (1) KinkBNB Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your KinkBNB Account, whether or not you have authorized such activities or actions. You will immediately notify KinkBNB of any unauthorized use of your KinkBNB Account.
As a Member, you may create Listings. To create a Listing, you will be asked a variety of questions about the Accommodation to be listed, including, but not limited to, the location, capacity, size, features, and availability of the Accommodation and pricing and related rules and financial terms. In order to be featured in Listings via the Site, Application and Services, all Accommodations must have valid physical addresses. Listings will be made publicly available via the Site, Application and Services. Other Members will be able to book your Accommodation via the Site, Application and Services based upon the information provided in your Listing. You understand and agree that once a Guest requests a booking of your Accommodation, you may not request the Guest to pay a higher price than in the booking request.
You acknowledge and agree that you are responsible for any and all Listings you post. Accordingly, you represent and warrant that any Listing you post and the booking of, or a Guest's stay at, an Accommodation in a Listing you post (i) will not breach any agreements you have entered into with any third parties, such as homeowners association, condominium, lease or rental agreements, and (ii) will (a) be in compliance with all applicable laws (such as zoning laws and laws governing rentals of residential and other properties), Tax requirements, and rules and regulations that may apply to any Accommodation included in a Listing you post (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties. Please note that KinkBNB assumes no responsibility for a Host’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. KinkBNB reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that KinkBNB, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms, or otherwise harmful to the Site, Application or Services.
If you are a Host, you understand and agree that KinkBNB does not act as an insurer or as your contracting agent. If a Guest requests a booking of your Accommodation and stays at your Accommodation, any agreement you enter into with such Guest is between you and the Guest and KinkBNB is not a party thereto. Notwithstanding the foregoing, KinkBNB serves as the limited authorized payment collection agent of the Host for the purpose of accepting, on behalf of the Host, payments from Guests of such amounts stipulated by the Host (including cleaning or other fees and/or Taxes).
When you create a Listing, you may also choose to include certain requirements which must be met by the Members who are eligible to request a booking of your Accommodation, including, but not limited to, requiring Members to have a profile picture or verified phone number, in order to book your Accommodation. Any Member wishing to book Accommodations included in Listings with such requirements must meet these requirements. More information on how to set such requirements is available via the “Hosting” section of the Site, Application and Services.
If you are a Host, KinkBNB makes certain tools available to you to help you to make informed decisions about which Members you choose to confirm for booking for your Accommodation. You acknowledge and agree that, as a Host, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who reside at or are otherwise present at the Accommodation at your request or invitation, excluding the Guest (and the individuals the Guest invites to the Accommodation, if applicable.)
KinkBNB recommends that Hosts obtain appropriate insurance for their Accommodations. Please review any insurance policy that you may have for your Accommodation carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Guests (and the individuals the Guest invites to the Accommodation, if applicable) while at your Accommodation.
KinkBNB does not endorse any Member or any Accommodation. Members are required by these Terms to provide accurate information, and although KinkBNB may undertake additional checks and processes designed to help verify or check the identities or backgrounds of users, we do not make any representations about, confirm, or endorse any Member or the Member’s purported identity or background.
Any references in the Site, Application or Services to a Member being “verified” or “connected” (or similar language) only indicate that the Member has completed a relevant verification process, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by KinkBNB about any Member, including of the Member’s identity and whether the Member is trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Site, Application and Services. We therefore recommend that you always exercise due diligence and care when deciding whether to stay with a Host or to accept a booking request from a Guest, or to have any other interaction with any other Member. We are not responsible for any damage or harm resulting from your interactions with other Members.
By using the Site, Application or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from KinkBNB with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Members on the Site and Services regarding any bookings or Listings made by you. This limitation shall not apply to any claim by a Host against KinkBNB regarding the remittance of payments received from a Guest by KinkBNB on behalf of a Host, which instead shall be subject to the limitations described in the section below entitled “Limitation of Liability”.
Bookings and Financial Terms
means the amounts that are due and payable by a Guest in exchange
for that Guest’s stay in an Accommodation. The Host alone, and
not KinkBNB, determines these amounts. The Host may in his or her
sole discretion decide to include in these amounts (i) a cleaning
fee or any other fee permitted on the KinkBNB platform, or (ii)
Taxes that the Host determines that he or she has to collect.
“ Guest Fees” means the fee that KinkBNB charges a Guest for the use of its online platform, which is calculated as a percentage of the applicable Accommodation Fees. The Guest Fees will be displayed to the Guest when the Guest is asked whether to send a booking request to a Host.
“ Host Fees” means the fee that KinkBNB charges a Host for the use of its online platform, which is calculated as a percentage of the applicable Accommodation Fees. The Host Fees will be displayed to the Host when the Host is asked whether to confirm or reject a booking request from a prospective Guest.
“ Service Fees” means collectively the Guest Fees and the Host Fees.
“ Total Fees” means collectively the Accommodation Fees and the Guest Fees (plus any Taxes in respect of Guest Fees, such as VAT in Europe).
Bookings and Financial Terms for Hosts
If you are a Host and a booking is requested for your Accommodation via the Site, Application and Services, you will be required to either confirm or reject the booking request within the Booking Request Period, otherwise the booking request will be automatically cancelled. When a booking is requested via the Site, Application and Services, we will share with you (i) the first and last name of the Guest who has requested the booking, (ii) a link to the Guest’s KinkBNB Account profile page, (iii) the names of any members of an SNS with whom you are “friends” or associated on the SNS if such individuals are also “friends” or associated with the Guest on such SNS, and (iv) an indication that the name that the Guest provided to KinkBNB when the Guest became a Member matches the name that the Guest provided to the SNSs to which the Guest has linked his or her KinkBNB Account, so that you can view such information before confirming or rejecting the booking request. If you are unable to confirm or decide to reject a booking request within the Booking Request Period, any amounts collected by KinkBNB for the requested booking will be refunded to the applicable Guest’s credit card and any pre-authorization of such credit card will be released. When you confirm a booking requested by a Guest, KinkBNB will send you an email or message via the Application confirming such booking, depending on the selections you make via the Site, Application and Services.
KinkBNB will collect the Total Fees at the time of booking confirmation (i.e. when the Host confirms the booking request) and will initiate payment of the Accommodation Fees (less KinkBNB’s Host Fees and any Taxes in respect of the Host Fees, such as VAT in Europe) to the Host within 24 hours of when the Guest arrives at the applicable Accommodation (except to the extent that a refund is due to the Guest). The time it takes for the Host to receive payouts may depend upon the method for receiving payouts chosen by the Host. Some methods involve the use of third-party payment processors, who may impose their own additional charges for the use of their services on the Host, including by deducting their charges from the payout amount.
If you owe or agree to pay any amount via KinkBNB to KinkBNB (whether as a result of your bookings or actions as a Guest or otherwise), then KinkBNB may (but is not obliged to) withhold the amount owing to KinkBNB from any payout amounts due to you as a Host, and use the withheld amount to setoff the amount owed by you to KinkBNB. If KinkBNB does so, then your obligation to pay KinkBNB will be extinguished to the extent of the amount withheld by KinkBNB, and KinkBNB will cease to owe to you any obligations (including, but not limited to, any obligation to pay you) with respect to the amount withheld.
Appointment of KinkBNB as Limited Payment Collection Agent for Host
Each Host hereby appoints KinkBNB as the Host’s limited payment collection agent solely for the purpose of accepting the Accommodation Fees from Guests.
Each Host agrees that payment made by a Guest through KinkBNB, shall be considered the same as a payment made directly to the Host, and the Host will make the Accommodation available to the Guest in the agreed-upon manner as if the Host has received the Accommodation Fees. Each Host agrees that KinkBNB may, in accordance with the cancellation policy selected by the Host and reflected in the relevant Listing, (i) permit the Guest to cancel the booking and (ii) refund (via KinkBNB) to the Guest that portion of the Accommodation Fees specified in the applicable cancellation policy. Each Host understands that as KinkBNB accepts payments from Guests as the Host’s limited payment collection agent and that KinkBNB’ obligation to pay the Host is subject to and conditional upon successful receipt of the associated payments from Guests. KinkBNB does not guarantee payments to Hosts for amounts that have not been successfully received by KinkBNB from Guests. In accepting appointment as the limited authorized agent of the Host, KinkBNB assumes no liability for any acts or omissions of the Host.
Please note that KinkBNB does not currently charge fees for the creation of Listings. However, you as a Host acknowledge and agree that KinkBNB reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings. Please note that KinkBNB will provide notice of any Listing fee collection via the Site, Application and Services, prior to implementing such a Listing fee feature.
Bookings and Financial Terms for Guests
The Hosts, not KinkBNB, are solely responsible for honoring any confirmed bookings and making available any Accommodations reserved through the Site, Application and Services. If you, as a Guest, choose to enter into a transaction with a Host for the booking of an Accommodation, you agree and understand that you will be required to enter into an agreement with the Host and you agree to accept any terms, conditions, rules and restrictions associated with such Accommodation imposed by the Host. You acknowledge and agree that you, and not KinkBNB, will be responsible for performing the obligations of any such agreements, that KinkBNB is not a party to such agreements, and that, with the exception of its payment obligations hereunder, KinkBNB disclaims all liability arising from or related to any such agreements. You acknowledge and agree that, notwithstanding the fact that KinkBNB is not a party to the agreement between you and the Host, KinkBNB acts as the Host’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Host. Upon your payment of the Total Fees to KinkBNB, your payment obligation to the Host for the Accommodation Fees is extinguished, and KinkBNB is responsible for remitting the Accommodation Fees (less the Host Fees and any Taxes in respect of the Host Fees, such as VAT in Europe), in the manner described in these Terms. In the event that KinkBNB does not remit any such amounts as described in these Terms, such Host will have recourse only against such KinkBNB entity.
The Total Fees payable will be displayed to a Guest before the Guest sends a booking request to a Host. As noted above, the Host is required to either confirm or reject the booking request within the Booking Request Period, otherwise the requested booking will be automatically cancelled. If a requested booking is cancelled (i.e. not confirmed by the applicable Host), any amounts collected by KinkBNB will be refunded to such Guest, depending on the selections the Guest makes via the Site and Application, and any pre-authorization of such Guest’s credit card will be released, if applicable.
You as a Guest agree to pay KinkBNB for the Total Fees for any booking requested in connection with your KinkBNB Account if such requested bookings are confirmed by the applicable Host. In order to establish a booking pending the applicable Host’s confirmation of your requested booking, you understand and agree that KinkBNB, on behalf of the Host, reserve the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Total Fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which you are transacting (e.g. one euro or one British pound), to verify your credit card. Once KinkBNB receives confirmation of your booking from the applicable Host, KinkBNB will collect the Total Fees in accordance with these Terms and the pricing terms set forth in the applicable Listing. Please note that KinkBNB cannot control any fees that may be charged to a Guest by his or her bank related to KinkBNB’s collection of the Total Fees, and KinkBNB disclaims all liability in this regard.
In consideration for the use of KinkBNB’s online marketplace and platform, KinkBNB charges the Service Fees. Where applicable, Taxes (such as VAT in Europe) may also be charged in respect of the Host Fees and Guest Fees. KinkBNB deducts the Host Fees from the Accommodation Fees before remitting the balance to the Host as described in these Terms. Guest Fees are, as noted above, included in the Total Fees.
Balances will be remitted by KinkBNB to Hosts via check, Bitcoin, direct deposit or other payment methods described on the Site or via the Application, in the Host’s currency of choice, depending upon the selections the Host makes via the Site, Application and Services. Amounts may be rounded up or down as described the “Rounding Off” section below.
Please note that KinkBNB, may impose or deduct foreign currency processing costs on or from any payments or payouts by KinkBNB in currencies other than U.S. dollars. More information on any such costs or deductions will be available via the Site and Application. More information on any such costs or deductions will be available via the Site and Application. More information on Services Fees can be found at http://www.KinkBNB.com/help. Except as otherwise provided herein, Service Fees are non-refundable.
General Booking and Financial Terms
Cancellations and Refunds
If, as a Guest, you cancel your requested booking before the requested booking is confirmed by a Host, KinkBNB will cancel any pre-authorization to your credit card and/or refund any nominal amounts charged to your credit card in connection with the requested booking within a commercially reasonable time. If, as a Guest, you wish to cancel a confirmed booking made via the Site, Application and Services, either prior to or after arriving at the Accommodation, the cancellation policy of the Host contained in the applicable Listing will apply to such cancellation. Our ability to refund the Accommodation Fees and other amounts charged to you will depend upon the terms of the applicable cancellation policy. Details regarding refunds and cancellation policies are available via the Site and Application. The Guest Fee is non-refundable regardless of the cancellation policy selected by the Host.
If a Host cancels a confirmed booking made via the Site, Services, and Application, (i) KinkBNB will refund the Total Fees for such booking to the applicable Guest within a commercially reasonable time of the cancellation and (ii) the Guest will receive an email or other communication from KinkBNB containing alternative Listings and other related information. If the Guest requests a booking from one of the alternative Listings and the Host associated with such alternative Listing confirms the Guest’s requested booking, then the Guest agrees to pay KinkBNB the Total Fees relating to the confirmed booking for the Accommodation in the alternative Listing, in accordance with these Terms. If a Host cancelled a confirmed booking and you, as a Guest, have not received an email or other communication from KinkBNB, please contact KinkBNB at http://www.KinkBNB.com/contacts.
If, as a Host, you cancel a confirmed booking, KinkBNB may apply penalties or consequences to you or your Listing, including (i) publishing an automated review on your Listing indicating that a reservation was cancelled, (ii) keeping the calendar for your Listing unavailable or blocked for the dates of the cancelled booking, or (iii) imposing a cancellation fee (to be withheld from your future payouts). You will be notified of the situations in which a cancellation fee applies before you decide to cancel.
Payment Processing Errors
We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payout to or payment by you, so that you end up receiving or paying the correct amount.
Tax regulations may require us to collect appropriate tax information from our Hosts, or to withhold taxes from payouts to Hosts, or both. For instance, IRS regulations stipulate that we must collect an IRS Form W-9 from our US Hosts, and an appropriate IRS Form W-8 (e.g. Form W-8BEN) from non-US hosts with at least one Listing in the US. You as a Host are solely responsible for keeping the information in your tax forms current, complete and accurate. If you as a Host fail to provide us with documentation that we determine to be sufficient to alleviate our obligation (if any) to withhold payments to you (e.g. where you are a US Host and you fail to provide us with a completed IRS Form W-9), we reserve the right in our sole discretion to freeze all payouts to you until resolution, to withhold such amounts as required by law, or to do both.
You as a Host understand and agree that you are solely responsible for determining (i) your applicable Tax reporting requirements, and (ii) the Taxes that should be included, and for including Taxes to be collected or obligations relating to applicable Taxes in Listings. You are also solely responsible for remitting to the relevant authority any Taxes included or received by you. KinkBNB cannot and does not offer Tax-related advice to any Members.
Where applicable, or based upon request from a Host, KinkBNB may issue a valid VAT invoice to such Host.
You understand and acknowledge that appropriate governmental agencies, departments or authorities (the “Tax Authority”) where your Accommodation is located may require Taxes to be collected by Hosts from Guests on the amount paid for the right to use and/or occupancy of accommodations, and to be remitted to the respective Tax Authority. The laws in jurisdictions may vary, but these taxes are generally required to be collected and remitted as a percentage of the rent or Accommodation Fees set by Hosts, a set amount per day, or other variations, and are sometimes called “occupancy taxes,” “hotel taxes,” “lodging taxes,” “transient taxes,” “sales and use taxes,” “value added taxes,” “room taxes” or “tourist taxes” (hereafter, "Occupancy Taxes").
In certain jurisdictions, KinkBNB may decide in its sole discretion to facilitate collection and remittance of Occupancy Taxes from Guests on behalf of and in-lieu of Hosts, if such tax jurisdiction asserts KinkBNB or Hosts have a tax collection and remittance obligation. In any jurisdiction in which we decide to facilitate collection and remittance of Occupancy Taxes, whether you are a Guest or Host you hereby instruct and authorize KinkBNB to collect Occupancy Taxes from Guests on behalf of and in lieu of Hosts at the time Accommodation Fees are collected, and to remit such Occupancy Taxes to the Tax Authority. When KinkBNB facilitates collection or remittance of Occupancy Taxes in a jurisdiction for the first time, KinkBNB will provide notice to existing Hosts with Listings for Accommodations in such jurisdictions. The amount of Occupancy Taxes collected and remitted through facilitation by KinkBNB, if any, will be visible to and separately stated to both Guests and Hosts on their respective transaction documents. Guests and Hosts agree that in any jurisdiction where KinkBNB facilitates collection and remittance of Occupancy Taxes on behalf of and lieu of Hosts, such Hosts are not permitted to also collect and/or remit such taxes on any portion of the Accommodation Fees. Hosts and Guests acknowledge and agree that in some jurisdictions, KinkBNB may not be able to facilitate collection and remittance of Occupancy Taxes. In any jurisdiction in which we have not provided notice of, or are not facilitating collection and remittance of Occupancy Taxes to the Tax Authority in your jurisdiction, Hosts and Guests remain solely responsible and liable for the collection and/or remittance of any and all Occupancy Taxes that may apply to Accommodations. For any jurisdiction in which we facilitate collection and remittance of Occupancy Taxes, Hosts and Guests expressly grant us permission to transfer data and other information relating to Occupancy Taxes, if any, collected and remitted relating to your transactions.
Whether you are a Guest of Host, you agree that any claim or cause of action relating to collection and remittance of Taxes shall not extend to any supplier or vendor that may be used by KinkBNB in connection with collection and remittance of Occupancy Taxes, if any. Guests and Hosts agree that we may seek additional amounts from you in the event that the Taxes collected or remitted are insufficient to fully discharge your obligations to the Tax Authority, and agree that your sole remedy for Occupancy Taxes collected is a refund of Occupancy Taxes collected by KinkBNB from the applicable Tax Authority in accordance with applicable procedures set by that Tax Authority.
Damage to Accommodations
As a Guest, you are responsible for leaving the Accommodation in the condition it was in when you arrived. You acknowledge and agree that, as a Guest, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals whom you invite to, or otherwise provide access to, the Accommodation. In the event that a Host claims otherwise and provides evidence of damage, including but not limited to photographs, you agree to pay the cost of replacing the damaged items with equivalent items. After being notified of the claim and given forty eight (48) hours to respond, the payment will be charged to and taken from the credit card on file in your KinkBNB Account. KinkBNB also reserves the right to charge the credit card on file in your KinkBNB Account, or otherwise collect payment from you and pursue any avenues available to KinkBNB in this regard, including using Security Deposits, in situations in which you have been determined, in KinkBNB’s sole discretion, to have damaged any Accommodation, including, but not limited to, in relation to any payment requests made by Hosts under the KinkBNB Host Guarantee, and in relation to any payments made by KinkBNB to Hosts. If we are unable to charge the credit card on file or otherwise collect payment from you, you agree to remit payment for any damage to the Accommodation to the applicable Host or to KinkBNB (if applicable).
Both Guests and Hosts agree to cooperate with and assist KinkBNB in good faith, and to provide KinkBNB with such information and take such actions as may be reasonably requested by KinkBNB, in connection with any complaints or claims made by Members relating to Accommodations or any personal or other property located at an Accommodation (including, without limitation, payment requests made under the KinkBNB Host Guarantee) or with respect to any investigation undertaken by KinkBNB or a representative of KinkBNB regarding use or abuse of the Site, Application or the Services. If you are a Guest, upon KinkBNB’s reasonable request, and to the extent you are reasonably able to do so, you agree to participate in mediation or similar resolution process with a Host, at no cost to you, which process will be conducted by KinkBNB or a third party selected by KinkBNB, with respect to losses for which the Host is requesting payment from KinkBNB under the KinkBNB Host Guarantee.
If you are a Guest, you understand and agree that KinkBNB reserves the right, in its sole discretion, to make a claim under your homeowner’s, renter’s or other insurance policy related to any damage or loss that you may have caused or been responsible for or to an Accommodation or any personal or other property located at an Accommodation (including without limitation amounts paid by KinkBNB under the KinkBNB Host Guarantee). You agree to cooperate with and assist KinkBNB in good faith, and to provide KinkBNB with such information as may be reasonably requested by KinkBNB, in order to make a claim under your homeowner’s, renter’s or other insurance policy, including, but not limited to, executing documents and taking such further acts as KinkBNB may reasonably request to assist KinkBNB in accomplishing the foregoing.
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Site, Application, Services and Collective Content. In connection with your use of the Site, Application, Services and Collective Content, you may not and you agree that you will not:
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and Tax regulations;
- use manual or automated software, devices, scripts, robots or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Site, Application, Services or Collective Content;
- use the Site, Application, Services or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms;
- copy, store or otherwise access any information contained on the Site, Application, Services or Collective Content for purposes not expressly permitted by these Terms;
- infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
- interfere with or damage our Site, Application or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- use our Site, Application or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
- use our Site, Application, Services or Collective Content in connection with the distribution of unsolicited commercial email ("spam") or advertisements unrelated to lodging in a private residence;
- "stalk" or harass any other user of our Site, Application, Services or Collective Content, or collect or store any personally identifiable information about any other user other than for purposes of transacting as an KinkBNB Guest or Host;
- offer, as a Host, any Accommodation that you do not yourself own or have permission to rent as a residential or other property (without limiting the foregoing, you will not list Accommodations as a Host if you are serving in the capacity of a rental agent or listing agent for a third party);
- offer, as a Host, any Accommodation that may not be rented or subleased pursuant to the terms and conditions of an agreement with a third party, including, but not limited to, a property rental agreement;
- register for more than one KinkBNB Account or register for an KinkBNB Account on behalf of an individual other than yourself;
- unless KinkBNB explicitly permits otherwise, request or book a stay at any Accommodation if you will not actually be staying at the Accommodation yourself;
- contact a Host for any purpose other than asking a question related to a booking, such Host’s Accommodations or Listings;
- contact a Guest for any purpose other than asking a question related to a booking or such Guest’s use of the Site, Application and Services;
- recruit or otherwise solicit any Host or other Member to join third-party services or websites that are competitive to KinkBNB, without KinkBNB’s prior written approval;
- impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
- use automated scripts to collect information from or otherwise interact with the Site, Application, Services or Collective Content;
- use the Site, Application, Services or Collective Content to find a Host or Guest and then complete a booking of an Accommodation independent of the Site, Application or Services, in order to circumvent the obligation to pay any Service Fees related to KinkBNB’s provision of the Services or for any other reasons;
- as a Host, submit any Listing with false or misleading price information, or submit any Listing with a price that you do not intend to honor;
- post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
- systematically retrieve data or other content from our Site, Application or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- use, display, mirror or frame the Site, Application, Services or Collective Content, or any individual element within the Site, Application, Services or Collective Content, KinkBNB’s name, any KinkBNB trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Site, Application or Services, without KinkBNB’s express written consent;
- access, tamper with, or use non-public areas of the Site, Application or Services, KinkBNB’s computer systems, or the technical delivery systems of KinkBNB’s providers;
- attempt to probe, scan, or test the vulnerability of any KinkBNB system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by KinkBNB or any of KinkBNB’s providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;
- forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
KinkBNB has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
KinkBNB may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against KinkBNB or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with users, such as these Terms (see http://www.kinkbnb.com/terms-of-service), (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of KinkBNB , its users, or members of the public . You acknowledge that KinkBNB has no obligation to monitor your access to or use of the Site, Application, Services or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating and improving the Site, Application and Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. KinkBNB reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that KinkBNB, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.
The Site, Application, Services, and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Application, Services and Collective Content, including all associated intellectual property rights, are the exclusive property of KinkBNB and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Application, Services, or Collective Content.
Subject to your compliance with these Terms, KinkBNB grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Furthermore, with respect to any App Store Sourced Application (defined below), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. KinkBNB reserves all rights in the Application not expressly granted to you by these Terms.
KinkBNB Content and Member Content License
Subject to your compliance with the terms and conditions of these Terms, KinkBNB grants you a limited, non-exclusive, non-transferable license, to (i) access and view any KinkBNB Content solely for your personal and non-commercial purposes and (ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Services, or Collective Content, except 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 KinkBNB or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, Application and Services, you hereby grant to KinkBNB a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, by means of or to promote or market the Site, Application and Services. KinkBNB does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to KinkBNB the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or KinkBNB’s use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’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.
The Site, Application and Services may contain links to third-party websites or resources. You acknowledge and agree that KinkBNB is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by KinkBNB of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of KinkBNB used herein are trademarks or registered trademarks of KinkBNB. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Services (“Feedback”). You may submit Feedback by emailing us at feedback @KinkBNB.com or through the “Contact” (http://www.KinkBNB.com/contact_us) section of the Site and Application. You acknowledge and agree that all Feedback will be the sole and exclusive property of KinkBNB and you hereby irrevocably assign to KinkBNB and agree to irrevocably assign to KinkBNB all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At KinkBNB’s request and expense, you will execute documents and take such further acts as KinkBNB may reasonably request to assist KinkBNB to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
KinkBNB respects copyright law and expects its users to do the same. It is KinkBNB’s policy to terminate in appropriate circumstances the KinkBNB Accounts of Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
Suspension, Termination and KinkBNB Account Cancellation
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your KinkBNB Account. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your KinkBNB Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Site, Application, Services, your KinkBNB Account, your Member Content, or receive assistance from KinkBNB Customer Service, (b) any pending or accepted future bookings as either Host or Guest will be immediately terminated, (c) we may communicate to your Guests or Hosts that a potential or confirmed booking has been cancelled, (d) we may refund your Guests in full for any and all confirmed reservations, irrespective of preexisting cancellation policies, (e) we may contact your Guests to inform them about potential alternate Accommodations with other Hosts that may be available on the Site, Application and Services, and (f) you will not be entitled to any compensation for reservations or bookings (even if confirmed) that were cancelled as a result of a suspension, deactivation or termination of your KinkBNB Account. You may cancel your KinkBNB Account at any time via the “Cancel Account” feature of the Services or by sending an email to service @KinkBNB.com. Please note that if your KinkBNB Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Site, Application and Services, including, but not limited to, any reviews or Feedback.
IF YOU CHOOSE TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT KinkBNB DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, GUESTS AND HOSTS, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT AND REFERRAL PROGRAM ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, KinkBNB EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. KinkBNB MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY ACCOMMODATIONS, OR THE REFERRAL PROGRAM WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. KinkBNB MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, ACCOMMODATIONS, THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATION, SERVICES OR REFERRAL PROGRAM.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KinkBNB OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY HOSTS OR GUESTS. YOU UNDERSTAND THAT KinkBNB DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICES OR TO REVIEW OR VISIT ANY ACCOMMODATIONS. KinkBNB MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, GUESTS AND HOSTS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY KinkBNB. NOTWITHSTANDING KinkBNB’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF THE HOSTS FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM GUESTS ON BEHALF OF THE HOSTS, KinkBNB EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY GUEST OR OTHER THIRD PARTY.
Limitation of Liability
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, SERVICES AND COLLECTIVE CONTENT, YOUR LISTING OR BOOKING OF ANY ACCOMMODATIONS VIA THE SITE, APPLICATION AND SERVICES, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF KinkBNB WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER KinkBNB NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION, SERVICES, OR COLLECTIVE 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 THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, 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, SERVICES, OR FROM YOUR LISTING OR BOOKING OF ANY ACCOMMODATION VIA THE SITE, APPLICATION AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KinkBNB 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 OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE HOSTS PURSUANT TO THESE TERMS OR AN APPROVED PAYMENT REQUEST UNDER THE KinkBNB HOST GUARANTEE, IN NO EVENT WILL KinkBNB’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR BOOKING OF ANY ACCOMMODATION VIA THE SITE, APPLICATION AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT AND IN CONNECTION WITH ANY ACCOMMODATION OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE SITE, APPLICATION AND SERVICES AS A GUEST IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A HOST, THE AMOUNTS PAID BY KinkBNB TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (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 KinkBNB AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold KinkBNB 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 (a) your access to or use of the Site, Application, Services, or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) booking of an Accommodation, or (iii) creation of a Listing; (d) the use, condition or rental of an Accommodation by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a rental, booking or use of a Accommodation.
If you stay with or host anyone who you feel is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to KinkBNB by contacting us with your police station and report number at support@KinkBNB.com; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
These Terms constitute the entire and exclusive understanding and agreement between KinkBNB and you regarding the Site, Application, Services, Collective Content, and any bookings or Listings of Accommodations made via the Site, Application and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between KinkBNB and you regarding bookings or listings of Accommodations, the Site, Application, Services, and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without KinkBNB’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. KinkBNB may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these 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 Terms, will be in writing and given by KinkBNB (i) via email (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.
Controlling Law and Jurisdiction
These 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. You and we agree to submit to the personal jurisdiction of a state court located in San Francisco County, San Francisco, California or a United States District Court, Northern District of California located in San Francisco, California for any actions for which the parties retain the right to seekinjunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.
You and KinkBNB agree that any dispute, claim or controversy arising out of or relating to these 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 , except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and KinkBNB 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 KinkBNB 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 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/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://adr.org/aaa/ShowPDF?doc=ADRSTG_004314.) 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 KinkBNB 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 KinkBNB 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 “Limitation 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. KinkBNB 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.
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, KinkBNB 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” section above, if KinkBNB changes this “Dispute Resolution” section after the date you first 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 to service @KinkBNB.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of KinkBNB’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 KinkBNB in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of KinkBNB to enforce any right or provision of these 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 KinkBNB. 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. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.