Effective as of May 25, 2018
LICENSE – the Service is licensed, not sold to you, and you may use the Service only as set forth in these Terms (as set forth in Section XI).
NO WARRANTY – to the fullest extent permitted by law, the Service is provided “AS IS” and “AS AVAILABLE” without warranties of any kind and GayStay’s liability to you is limited (as set forth in Sections XVII and XVIII).
The Service provides a peer to peer online marketplace for users (“Users,” “you,” or “your”) to list, browse, and book accommodations locally. The Company is committed to offering welcoming and safe accommodations to the LGBTQ community with guests and hosts (“Hosts”) from a diverse range of lifestyles. We hope you will find it to be a fresh way to travel and connect with the global LGBTQ community!
REGISTRATION; RULES FOR USER CONDUCT AND USE OF THE SERVICE
THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY THE COMPANY. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by accessing or using the Service, you affirm that either you are at least 18 years of age or you have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age.
If you are a User who signs up for the Service, you will create a personalized account, which includes a unique username and a password to access the Service and to receive messages from the Company. You agree to notify us immediately of any unauthorized use of your password and/or account. The Company will not be responsible for any liability, losses, or damages arising out of the unauthorized use of your member name, password and/or account.
When becoming a Host, it’s important to understand how the laws work in your city and/or state. Some cities have laws governing or relating to the hosting of paying guests for short periods of time (“Hosting Laws”). These laws are often part of a city’s zoning or administrative codes. In some cities, you must register, get a permit, or obtain a license before you list your property or accept guests. Local governments vary greatly in how they enforce these laws and penalties may include fines or other enforcement.
GayStay recommends our hosts use Avalara, a tax collecting and reconciling service to address local tax and VAT regulations. Avalara charges a small monthly fee for this service. For more information, please visit Avalara’s website at https://mylodgetax.avalara.com/taxcenter/lookup
Please review your local laws before listing your space on GayStay. You can check your locality’s governmental website for more detailed information.
FEES AND PAYMENT
Fees. The fees associated any accommodations booked will be displayed to you on the Service, and include expenses that may be incurred by the Host in the normal course of hosting you within the accommodations you have booked (collectively, “Fees”). GayStay reserves the right to modify the Fees at any time. Please review the GayStay FAQ for more information on pricing and fees. The current Fees due to GayStay from Users for use of the Service are:
- Hosts: $0 for each listing and 0% of the price of each booking of such Host’s listing on the Service; and
- Guests: 15% of the price of each booking made by a guest through the Service.
Payment. Unless otherwise agreed, the Company accepts payment through our third party payment processor. Fees are due at the time of booking your accommodation. If you cancel your booking, you may be assessed with a cancellation fee. Please refer to our Cancellation Policy for details.
Payment Processor. Users make their contracts directly with other users, not with GayStay. Fees (including Base Fees) for using the Service will be processed via the Company’s third party payment processor. Our payment processor may require you to read and agree to its standard terms and conditions. The Company reserves the right, in its sole discretion (but not the obligation), to (i) place on hold any payment; or (ii) refund, provide credits or arrange for our payment processor to do so. Users are liable for any taxes (including sales tax, if applicable) required to be paid on their use of the Service or on any related payment received (other than taxes on the Company’s income).
USE RESTRICTIONS; CONDUCT RESTRICTIONS
Your permission to use the Service is conditioned upon the following Use Restrictions and Conduct Restrictions: You agree that you will not under any circumstances:
- post any information or User Content that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;
- use the service for any unlawful purpose or for the promotion of illegal activities;
- attempt to, or harass, abuse, or harm another person or group of people;
- use another User’s account without permission;
- provide false or inaccurate information when registering an account;
- interfere or attempt to interfere with the proper functioning of the Service;
- make any automated use of the system, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
- bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology, or device to scrape, spider, or crawl the Service or harvest or manipulate data;
- publish or link to malicious content intended to damage or disrupt another User’s browser or computer;
- attempt to do any of the acts described in this Section VI or assist or permit any person in engaging in any of the acts described in this Section VI.
POSTING AND CONDUCT RESTRICTIONS.
When you create your own personalized account, you may be able to provide material, images, documents, or other material (“User Content”). You are solely responsible for the User Content that you post, upload, link to or otherwise make available via the Service. You agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. The Company, however, reserves the right to remove any User Content from the Service at its sole discretion.
The following rules pertain to User Content. By transmitting and submitting any User Content while using the Service, you agree as follows:
- You are solely responsible for your account and the activity that occurs while signed in to or while using your account;
- You will not post information that is malicious, false or inaccurate;
- You will not submit content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such content; and
- You will not post any information, images, depictions or other content which is, or may, violate the laws of the United States or the jurisdiction in which you reside;
- your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate; and
ONLINE CONTENT DISCLAIMER
Opinions, advice, statements, offers, or other information or content made available through the Service, but not directly by the Company, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. The Company does not guarantee the accuracy, completeness, or usefulness of any information on the Service and neither does the Company adopt nor endorse, nor is the Company responsible for the accuracy or reliability of any opinion, advice, or statement made by parties other than the Company. The Company takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. Under no circumstances will the Company be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the Service, or transmitted to Users.
LINKS TO OTHER SITES AND/OR MATERIALS
As part of the Service, the Company may provide you with convenient links to third party web site(s) (“Third Party Services”) as well as content or items belonging to or originating from third parties (the “Third Party Applications, Software or Content”). These links are provided as a courtesy to Service subscribers. The Company has no control over Third Party Services and Third Party Applications, Software or Content or the promotions, materials, information, goods or services available on these Third Party Services or Third Party Applications, Software or Content. Such Third Party Services and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by the Company, and the Company is not responsible for any Third Party Services accessed through the Service or any Third Party Applications, Software or Content posted on, available through or installed from the Service, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third Party Services or the Third Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Service or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by the Company. If you decide to leave the Service and access the Third Party Services or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Service or relating to any applications you use or install from the site.
- MESSAGES; LOCATION BASED SERVICES
The Service may allow you to send messages to other Users through the Service at your direction. You represent and warrant that (a) you will only send messages to others who have given you their express consent to receive such messages; (b) by using the Service, you are knowingly taking actions to initiate and send messages, and that the Company is merely a technology provider that plays no active role whatsoever in initiating and/or sending messages; and (c) you will indemnify and hold the Company harmless, to the fullest extent permitted by law, from any and all claims and losses arising out of your sending messages to others through the Service. Without limiting the foregoing, you are solely responsible for all fees and charges associated with your sending any messages through the Service, including, without limitation, any fees or charges imposed by your mobile carrier.
Some of the features of the Service may enable the Company to access your location in order to tailor your experience with the Service based on your location (“Location-based Services”). In order to use certain Location-based Services, you must enable certain features of your mobile phone, which enable the Company to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available. If you choose to disable any Location-based Services on your device, you may not be able to utilize certain features of the Service. By enabling Location-based Services, you agree and acknowledge that: (a) device data we collect from you is directly relevant to your use of the Service; (b) the Company may provide Location-based Services related to and based on your then-current location; and (c) the Company may use any such information collected in connection with provision of the Service.
COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT
Users and copyright owners may view the Company’s Digital Millennium Copyright Act Compliance and Repeat Infringer Policy at the following URL: https://www.gaystay.com/privacypolicy-dmca.
By posting any User Content via the Service, you expressly grant, and you represent and warrant that you have a right to grant, to the Company a royalty-free, sub licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, username, voice, and/or likeness as contained in your User Content, if applicable, in whole or impart, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant the Company an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
EMAIL MAY NOT BE USED TO PROVIDE NOTICE
Except for Notice given pursuant to Section XXI, communications made through the Service’s e-mail and messaging system will not constitute legal notice to the Company or any of its officers, employees, agents or representatives in any situation where notice to the Company is required by contract or any law or regulation.
USER CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM
We may also use your email address to send you other messages, including information about the Company and special offers. You may opt out of such email by changing your account settings or sending an email to GayStay. Opting out may prevent you from receiving messages regarding the Company or Special Offers.
TERM AND TERMINATION
The Company reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICE.
YOU FURTHER ACKNOWLEDGE THAT THE COMPANY OFFERS NO WARRANTY WITH RESPECT TO THE QUALITY OF ANY ACCOMMODATIONS BOOKED THROUGH THE SERVICE, OR WITH RESPECT TO THE CONDUCT OF ANY OTHER USER.
LIMITATION OF LIABILITY; RELEASE
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR USER CONTENT; (B) YOUR USE OR INABILITY TO USE THE SERVICE; (C) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH THE COMPANY OR ANY OTHER USER OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUD INGNEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IF YOU HAVE A DISPUTE WITH ONE OR MORE USERS OR A HOST, YOU RELEASE US (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) TO THE FULLEST EXTENT PERMITTED BY LAW FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
DISPUTE RESOLUTION AND ARBITRATION
Generally. In the interest of resolving disputes between you and the Company in the most expedient and cost effective manner, you and the Company agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. These Terms to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, AND THAT THESE TERMS WILL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
Exceptions. Notwithstanding the foregoing, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and the Company will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting the Company. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or electronic mail (“Notice”). The Company’s address for Notice is: GayStay, Inc., P.O. Box 20175 New York, NY 10014 or email@example.com. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or the Company must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, the Company will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by the Company in settlement of the dispute prior to the arbitrator’s award; or (iii) $15,000.
Fees. If you commence arbitration in accordance with these Terms, the Company will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse the Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If the Company makes any future change to this arbitration provision, other than a change to the Company’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to the Company’s address for Notice, in which case your account with the Company will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability. If the class action waiver above is found to be unenforceable or if the entirety of this Section XX is found to be unenforceable, then the entirety of this Section XX will be null and void.
Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
NOTICE REGARDING APPLE