What discount would you like to offer for last-minute bookings? *
Recommended, but not required.
1. PMC Agreement. This PMC Agreement governs your access to and use of the Whimstay website, including any subdomains, and any other websites through which Whimstay makes its services available (collectively, "Site"), our mobile, tablet and other smart device applications, and application program interfaces (collectively, the "App") and all associated services ( "Whimstay Services"). The Site, the App and Whimstay Services together are the “Whimstay Platform”. Our Privacy Policy and other policies (collectively, “Policies”) applicable to your use of the Whimstay Platform are incorporated by reference into this Agreement.
2. Whimstay Platform. The Whimstay Platform is an online platform that enables you to list and seek bookings for properties that you own or manage (“Properties”) and to communicate and transact directly with Whimstay Platform users that are seeking to book such Properties ( “Travelers”).
3.Your Relationship with Whimstay. When a Traveler makes a booking for a Property via the Whimstay Platform (“Booking”), they are entering into a contract directly with you. Whimstay is not and does not become a party to any contract between you and a Traveler, nor is Whimstay a real estate broker or insurer. Whimstay does not act as your agent, except as specified in this Agreement. You acknowledge and agree that, subject to this Agreement, you have complete discretion whether to publish Properties on the Whimstay Platform or otherwise engage in other business or employment activities.
4. Your Whimstay Account. You must register an account ("Whimstay Account") to access and use the Whimstay Platform. If you are registering a Whimstay Account for a company or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in this Agreement. You must provide accurate, current and complete information during the registration process, and you are responsible for maintaining the confidentiality and security of your Whimstay Account credentials. You must immediately notify Whimstay if you know or suspect that your credentials have been lost, stolen or otherwise compromised. You are liable for any and all activities conducted through your Whimstay Account, unless such activities are not authorized by you and occur after you have reported a compromise to us.
5. Whimstay Fees. Whimstay may charge fees ("Fees") in consideration for the use of the Whimstay Platform. You are responsible for paying any Fees that you owe to Whimstay. Fees for Last Minute Bookings are non-refundable, and Whimstay may deduct Fees from payouts due to you. During the Term, by notice to you, Whimstay may add or modify Fees.
6. Marketing Activities. To promote the Whimstay Platform and to increase the exposure of Properties to potential Travelers, you and Whimstay will discuss joint marketing initiatives to promote the visibility and use of your Properties and the Whimstay Platform.
7. Listing a Property. When submitting a Property to the Whimstay Platform you must (a) provide complete and accurate information about your Property; and (b) specify the per-night price (excluding any Taxes, if applicable, and Host Fees) (the “Nightly Rate”), and other fees, such as cleaning fees and pet fees (“Host Fees”, which in no event will be higher than the fees you charge on your site to Travelers); and (c) disclose all relevant rules, restrictions and requirements (such as minimum age) (together, “House Rules”). You must keep your Property information (including calendar availability) up-to-date at all times. You may also allow us to directly import certain information about your Property, including listing description, ratings and reviews, location, House Rules, Nightly Rate, and Host Fees from your systems. Whimstay does not guarantee any placement or ranking for your Properties in search results on the Whimstay Platform.
8. Nightly Rate and Total Rental Amount. Whimstay may apply the Discount Rate to the Nightly Rate to create an adjusted price for a Property (“Discounted Nightly Rate”). Whimstay may publish the Discounted Nightly Rate, unless the Discounted Nightly Rate is less than your specified “do not rent below” rate (“Minimum Nightly Rate”), in which case Whimstay will set the Discounted Nightly Rate to be the Minimum Nightly Rate. When a Traveler makes a Booking, the sum of the Nightly Rates (adjusted to the Discounted Nightly Rate, as applicable) for the Booking, plus the Host Fees, is the Total Rental Amount for the Booking.
9. Completed Bookings. When a Traveler completes a Booking on the Whimstay Platform, you enter into a legally binding agreement with the Traveler and are required to provide your Property to the Traveler, as described in this Agreement and your agreement with the Traveler (if applicable). Whimstay will provide you with a Booking confirmation for each completed Booking. Once a Traveler completes a Booking of a Property, you may not request that the Traveler pay a higher amount than the amount displayed on the Booking confirmation.
10. Cancellations, Extensions and Changes. The Whimstay Platform may permit a Traveler to cancel a Booking and obtain a refund if the cancellation occurs outside of the Last Minute Booking window. If a Traveler exercises this cancellation right, Whimstay will refund the Traveler, and you must reimburse Whimstay to the extent you have already received a payout for the Booking. Whimstay and the PMC will work together to establish processes to reasonably facilitate extensions and changes to Bookings subject to availability that are requested by Travelers. You may cancel a Booking if you determine that a Traveler has, or will, breach your House Rules including the limits you have set for number of adults and children, age of Travelers, number of vehicles allowed by law, and/or the type of event that may be hosted at the Property.
11. Security Deposit. Whimstay may offer you the ability, via the Whimstay Platform, to require a security deposit for Bookings made on a Property ("Security Deposit"). When a Security Deposit is paid for a Booking, you may not ask for any additional security deposit outside of the Whimstay Platform. You also may not attempt to apply a security deposit to any Booking after the Booking has been made. Whimstay will use commercially reasonable efforts to assist you to resolve claims for damage to the Property up to the amount of the Security Deposit, provided such claim is made through the Whimstay Platform within 5 business days of the applicable checkout time for the Booking. Whimstay may impose a Fee when collecting Security Deposits.
12. Compliance. You are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to your Properties, including all laws, rules, ordinances, regulations and other requirements relating to taxes, credit cards, data and privacy, permits or license requirements, zoning ordinances, safety compliance and compliance with all anti discrimination and fair housing laws, as applicable.
13. Stripe Account. Whimstay uses Stripe, Inc. (“Stripe”) to enable payouts to you for your Bookings. Stripe’s services are subject to the Connected Account Agreement, which include the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). Whimstay will create a Stripe account on your behalf when you register for a Whimstay Account, and you agree to: (a) be bound by the Stripe Services Agreement, as modified by Stripe from time to time; (b) provide Whimstay accurate and complete information about you and your business; and (c) authorize Whimstay to share your information with Stripe.
14. Payouts. Unless a different payout schedule is specified by Whimstay, Whimstay will initiate a payout for a Booking 24 hours after the scheduled check-in time for a Booking. The payout for a Booking will be to the bank account you nominate (“Payout Account”) for an amount equal to the total amount paid by the Traveler for the Booking, less Fees, any fees payable by the Traveler to Whimstay, and amounts owed by you under this Agreement.
15. Traveler Disputes. For disputes related to Bookings where you are the merchant of record, you are directly responsible for resolving the disputes. For Bookings where Whimstay is the merchant of record: (a) Whimstay will investigate the Traveler’s claim and seek to resolve the dispute; and (b) you must provide the assistance and materials requested by Whimstay (e.g. photographs, record of communications with Traveler, etc.) to enable Whimstay to contest the dispute.
16. Collection of Amounts Owed. Where you owe an amount under this Agreement, Whimstay may collect the amount (and, if applicable, remit the amount to the third party) by: (a) reducing your payouts by the amount owed; (b) invoicing you for the owed amount, in which case you must pay the invoiced amount within a specified time period; and (c) debiting your Payout Account, and you authorize Whimstay to initiate debits from your Payout Account for this purpose.
17. Taxes. You are solely responsible for determining your obligations to include and disclose indirect sales taxes, occupancy taxes, tourist or other visitor taxes, and any other taxes applicable to a Booking ("Taxes"), and for collecting and remitting such Taxes to relevant tax authorities. You acknowledge that tax regulations may require us to collect tax information from you, or to withhold Taxes from your payouts, or both. If you fail to provide us with tax documentation that we determine is sufficient to satisfy applicable tax regulations, we reserve the right to stop payouts, withhold such amounts as required by law, or to do both, until resolution.
18. Your Material. You authorize Whimstay to use and publish the information and materials that you provide or enable Whimstay to access in relation to this Agreement (including information about Properties) (“PMC Materials”). You are responsible for the accuracy and completeness of the PMC Materials, and you represent and warrant that Whimstay’s use and publication of the PMC Materials in accordance with this Agreement: (a) will not breach any agreements you have entered into with any third parties; and (b) will comply with all applicable laws, rules and regulations.
19. Ratings and Reviews. You must make reasonable efforts to provide reviews (“Reviews”) and star ratings (“Ratings”) for your Properties, including by submitting Reviews and Ratings directly on the Whimstay Platform and enabling us to import Reviews and Ratings from your systems and the systems of your partners. Reviews and Ratings must be accurate and not contain any offensive or defamatory language. You must not manipulate the Ratings and Reviews system in any manner, such as instructing a third party to write a positive or negative Review. Contact us promptly if you believe you see a Review or Rating about your Properties on the Whimstay Platform which is malicious or untrue. Whimstay is not obliged to edit or delete any Rating or Review about your Properties, but we may decide to do so where we determine this is in the best interests of the Whimstay Platform. Ratings and Reviews may be displayed on the Whimstay Platform, and may also be aggregated and used by Whimstay on other sites to promote the Whimstay Services.
20. Feedback. You may provide feedback, comments and suggestions for improvements to the Whimstay Platform (“Feedback“). All Feedback is deemed to be provided on a non-confidential basis, and you grant Whimstay a non-exclusive, worldwide, royalty-free, irrevocable, sub licensable, perpetual license to use, publish and exploit Feedback for any purpose, without compensation to you.
21. Prohibited Activities. In connection with your use of the Whimstay Platform, you will not and will not assist others to: (a) breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or terms, Policies or any community standards established by Whimstay for the Whimstay Platform; (b) use the Whimstay Platform for any purposes that are not expressly permitted by this Agreement or in a manner that falsely implies endorsement, partnership or affiliation with Whimstay; (c) copy, store or otherwise access or use any information, including personally identifiable information about any Traveler, contained on the Whimstay Platform in any way that is inconsistent with this Agreement; (d) use the Whimstay Platform in connection with the distribution of unsolicited commercial messages ("spam"); (e) offer any Property that you do not yourself own or have permission to make available through the Whimstay Platform; (f) recruit or otherwise solicit any Traveler to join a third-party service, application or website that is a competitor to the Whimstay Platform; (g) request or accept any Booking payment outside of the Whimstay Platform; (h) use, display, mirror or frame the Whimstay Platform, or any individual element within the Whimstay Platform, our name, any Whimstay trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Whimstay Platform, without our prior written consent; (i) dilute, tarnish or otherwise harm the Whimstay brand in any way, including by registering or using Whimstay or derivative or similar terms in domain names, trade names, trademarks or other source identifiers; (j) use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from the Whimstay Platform; (k) circumvent any technological measure implemented by Whimstay or any of our providers or any other third party that is intended to protect the Whimstay Platform, or attempt to reverse engineer any of the software used to provide the Whimstay Platform; (l) take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Whimstay Platform; or (m) violate or infringe anyone else’s rights or otherwise cause harm to anyone.
22. Term. This Agreement commences on the Effective Date. Either party may terminate this agreement at any time upon a ten-day notice.In the event of termination by the PMC, all bookings prior to termination will be honored and processed accordingly.
23. Termination for Breach. A party may terminate this Agreement if: (a) the other party materially breaches this Agreement and fails to cure the breach within 14 days of being notified of such breach; (b) the other party violates applicable laws, regulations or third party rights.
24. Whimstay Account Termination and Suspension. Whimstay may suspend or terminate your account: (a) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, (b) if you have provided inaccurate, fraudulent, outdated or incomplete information, (c) you repeatedly receive poor Ratings or Reviews or Whimstay otherwise receives multiple complaints about your performance or conduct, or (d) Whimstay believes in good faith that such action is reasonably necessary to protect the integrity of the Whimstay Platform, to prevent harm, or to prevent fraud or other illegal activity. If your Whimstay Account is suspended or terminated: (x) we may cancel your pending Bookings and refund your Travelers in full for Bookings that have been cancelled, irrespective of preexisting cancellation policies, and you will reimburse us for such refunds, and (y) you will not be entitled to any compensation for Bookings that are cancelled.
25. Disclaimers. If you choose to use the Whimstay Platform, you do so voluntarily and at your sole risk. The Whimstay Platform is provided “as is”, without warranty of any kind, either express or implied. Due to the nature of the Internet, Whimstay cannot guarantee the continuous and uninterrupted availability and accessibility of the Whimstay Platform. Whimstay may restrict the availability of the Whimstay Platform to preserve its security and integrity, and to carry out maintenance. Whimstay may improve, enhance and modify the Whimstay Platform and introduce new Whimstay Services from time to time. Whimstay does not own or manage rental properties, and we are not responsible for the management of your Properties or for costs or expenses that you incur in relation to your Properties. Whimstay is not responsible for damage to your Properties or for the conduct of Travelers, unless we expressly agree in writing to the contrary, and you are responsible for ensuring compliance with the House Rules. The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
26. Liability. To the maximum extent permitted by law, the entire risk arising out of your access to and use of the Whimstay Platform, your publication of any Property via the Whimstay Platform, or any interaction you have with Travelers whether in person or online remains with you. Neither Whimstay nor any other party involved in creating, producing, or delivering the Whimstay Platform will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (a) this Agreement; (b) the use of or inability to use the Whimstay Platform; (c) any communications, interactions or meetings with Travelers or other persons with whom you communicate, interact or meet with as a result of your use of the Whimstay Platform; or (d) your publication of a Property, whether based on contract, tort (including negligence), product liability or any other legal theory, and whether or not Whimstay has been informed of the possibility of such damage. Except for our obligations to make payouts pursuant to this Agreement, in no event will our aggregate liability arising out of or in connection with this Agreement and your use of the Whimstay Platform including from your publishing any Property via the Whimstay Platform, or from the use of or inability to use the Whimstay Platform and in connection with any Property or interactions with any Travelers, exceed the Services Fees paid by you in the 12 month period prior to the event giving rise to the liability. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Whimstay and you.
27. Indemnification. Each party (the “Indemnifying Party”) will defend, indemnify, and hold the other party (the “Indemnified Party”) and its affiliates, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including reasonable legal and accounting fees, arising out of or in any way connected with (a) the Indemnifying Party’s breach of this Agreement; (b) the Indemnifying Party’s interaction with any Traveler, including, where you are the Indemnifying Party, any Traveler’s stay at a Property, including any injuries, losses or damages arising in connection with or as a result of such interaction or stay, or (c) you’re the Indemnifying Party’s breach of any laws, regulations or third party rights.
28. Applicable Law and Jurisdiction. This Agreement is governed by the laws of the State of California and the United States of America, without regard to conflict of law provisions. Judicial proceedings must be brought in state or federal courts located in Martinez, California, unless we both agree to another location. You and we both consent to venue and personal jurisdiction in Martinez, California.
29. Entire Agreement. This Agreement constitutes the entire Agreement between Whimstay and you pertaining to its subject matter and supersedes any and all prior oral or written understandings or agreements between Whimstay and you in relation to the access to and use of the Whimstay Platform.
30. Force Majeure. Whimstay will not be liable for any losses, damages, or costs you suffer, or delays in our performance or non-performance, to the extent caused by an event that is beyond our reasonable control.
31. Survival. If you or we terminate this Agreement, the clauses of this Agreement that reasonably should survive termination of the Agreement will remain in effect.
32. Collection Costs. You are liable for all costs Whimstay incurs during collection of any amounts you owe under this Agreement, in addition to the amounts you owe. Collection costs may include attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, applicable interest, and any other related cost.
33. Validity. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions. Our failure to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise permitted under law.
34. Assignment. You may not assign, transfer or delegate this Agreement or your rights and obligations under this Agreement without our prior written consent, which will not be unreasonably withheld. Whimstay may without restriction assign, transfer or delegate this Agreement and any rights and obligations under this Agreement, at its sole discretion. 35. Notices. Unless specified otherwise, any notices or other communications to permitted or required under this Agreement may be provided electronically to a party’s specified email address. Emails are deemed received on the send date, unless the sender receives a send error.
36. Interpretation. No provision of this Agreement will be construed against any party based on that party being the drafter. References to “includes” or “including” mean “includes, without limitation” and “including, without limitation,” respectively. The section headings of this Agreement are for convenience only, and have no interpretive value.