Host Guarantee Terms and Conditions
Last updated: Jan 1, 2016
tripmagic HOST GUARANTEE TERMS AND CONDITIONS
tripmagic (hereafter referred to as “tripmagic”, “we”, “us”, or “our”) provides an online platform that connects hosts (hereafter referred to as “Host”, “you”, or “your”) who create listings for accommodations that are made available for booking by Guests (defined below) seeking to book such accommodations (collectively, the “Services”), which Services are accessible and any other platform through which tripmagic makes the Services available (collectively, the “Site”) and via applications for mobile devices (collectively, the “Application”). tripmagic refers to tripmagic Inc. if you reside in the USA, and to tripmagic Ireland if you reside outside of the USA. For purposes of these Host Guarantee Terms and Conditions, “tripmagic”, “we”, “us” or “our” shall also include, as applicable, tripmagic’s insurer under the tripmagic Insurance Policy or tripmagic’s insurance adjuster.
Whether, as a Host (defined further below) you have posted a single Listing (defined below) on one tripmagic website or several Listings on multiple tripmagic websites, you may benefit from the tripmagic Host Guarantee program (the “tripmagic Host Guarantee”), the terms, limitations and conditions for which are set forth below (the “tripmagic Host Guarantee Terms”). Please read these tripmagic Host Guarantee Terms carefully.
YOU ACKNOWLEDGE AND AGREE THAT, BY POSTING A LISTING OR OTHERWISE USING THE SITE, APPLICATION OR SERVICES AS A HOST, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE tripmagic HOST GUARANTEE TERMS. If you accept or agree to these tripmagic Host Guarantee Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these tripmagic Host Guarantee Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
YOU MUST COMPLY WITH ALL OF THE REQUIREMENTS AND CONDITIONS IN THE tripmagic HOST GUARANTEE IN ORDER TO BE ELIGIBLE TO RECEIVE ANY PAYMENTS FOR COVERED LOSSES (DEFINED BELOW). YOUR FAILURE TO FULLY COMPLY WILL PREVENT YOUR RECOVERY FOR ANY COVERED LOSSES.
PLEASE CAREFULLY REVIEW THE DEFINITIONS OF “COVERED ACCOMMODATION,” “COVERED LOSSES,” “COVERED PROPERTY” AND “EXCLUDED PROPERTY” BELOW SO THAT YOU MAY IDENTIFY AND PROTECT PROPERTY NOT COVERED BY THE tripmagic HOST GUARANTEE.
You acknowledge and agree to use your best efforts to communicate with the Responsible Guest (defined below) as soon as possible after you discover any physical loss or damage to your Covered Property. You must notify the Responsible Guest about your complaint and attempt to resolve the loss or damage with the Responsible Guest. If you and the Responsible Guest are unable to come to a resolution within seven (7) days after first contacting the Responsible Guest, you should complete and file an tripmagic Host Guarantee Payment Request Form with tripmagic as further described in Section V below.
You acknowledge and agree that any amount of Covered Losses payable to you under the tripmagic Host Guarantee will be reduced by the amounts you have already collected for the same Covered Losses from a source other than the tripmagic Host Guarantee, including without limitation: (i) amounts received under an insurance policy, guarantee or indemnity; (ii) a security deposit; or (iii) payment directly by the Responsible Guest or an Invitee (defined below), or other party or an insurer or guarantor of such party.
Except as permitted by law, these tripmagic Host Guarantee Terms do not affect your statutory rights. If you would like a written copy of the tripmagic Host Guarantee Terms, please contact tripmagic at terms@https://tripmagic.xyz.
I. The tripmagic Host Guarantee
tripmagic agrees to pay you, as a Host, to repair or replace your Covered Property damaged or destroyed as a result of a Covered Loss, subject to the limitations, exclusions and conditions in the tripmagic Host Guarantee.
II. Key Defined Terms
The following capitalized terms shall have the following meanings:
“Actual Cash Value” means the amount it would cost to repair or replace damaged or destroyed Covered Property as a result of a Covered Loss, measured on the date of occurrence of such Covered Loss, with material of like kind and quality, with proper deduction for obsolescence and physical depreciation.
“tripmagic Host Guarantee Payment Request Form” means tripmagic’s standard form as amended from time to time, accessible through the Site, that a Host uses to request payment from tripmagic pursuant to these tripmagic Host Guarantee Terms.
“tripmagic Insurance Policy” means an insurance policy issued by an insurer to tripmagic pursuant to which tripmagic is insured against losses arising under the tripmagic Host Guarantee.
“Booking Income Loss” is the loss of booking income from the booked portion of a Covered Accommodation (according to bona fide tripmagic confirmed bookings, contracts or agreements in force prior to the established time of loss) by you, as a Host, resulting from a Covered Loss. Booking Income Loss does not include non-continuing charges and expenses or any loss of booking income during any period in which the Covered Accommodation would not have been tenantable for any reason other than a Covered Loss. The Booking Income Loss will be measured by tripmagic’s insurer starting from the time of occurrence of the Covered Loss and ending when the Covered Accommodation can be made ready for habitation under the same or equivalent physical and operating conditions that existed prior to the damage.
“Covered Accommodation” means an accommodation located in the Territory that can be used as a residence and that is (i) owned or legally controlled by you as a Host during the period of the Responsible Guest’s stay at such accommodation and (ii) listed by you on the Site and booked by such Responsible Guest in compliance with the tripmagic Terms of Service. A vehicle (including, but not limited to, automobiles, scooters, vespas, and motorcycles) or a watercraft (including, but not limited to, boats, yachts, jet skis and similar craft) booked through the Services constitutes a “Covered Accommodation” only to the extent it is stationary and used solely for lodging purposes.
“Covered Losses” means and is limited to direct physical loss or physical damage incurred by a Host to Covered Property of such Host located at a Covered Accommodation caused by the Responsible Guest or an Invitee of the Responsible Guest while staying at such Covered Accommodation booked by such Responsible Guest through the Services. Covered Losses do not include any losses or damage described under Excluded Losses below.
“Covered Property” means and is limited to the following property located at a Covered Accommodation, or within 1,000 feet thereof, to the extent of your interest in such property, unless such property constitutes Excluded Property (as defined below):
- A. Real property, including new buildings and additions under construction located at the site of such Covered Accommodation, in which you have an insurable interest.
- B. Personal property that is:
- owned by you, including your interest as a tenant in improvements and betterments.
- not owned by you, but is in your custody and for which you are under obligation to keep the personal property insured for physical loss or damage.
- not owned by you, but is in your custody and for which you have legal liability for physical loss or damage to the property.
“Excluded Losses” has the meaning set forth in Section III below.
“Excluded Property” means any of the following:
- Currency, money, precious metal in bullion form, notes or securities.
- Land, water or any other substance in or on land; except this exclusion does not apply to (i) land improvements consisting of landscape gardening, roadways and pavements, but not including any fill or land beneath such property, or (ii) water that is contained within any enclosed tank, piping system or any other processing equipment.
- Animals, including, but not limited to, livestock and pets.
- Standing timber; growing crops.
- Watercraft (including, but not limited to, boats, yachts, jet skis, and similar craft), aircraft, spacecraft, and satellites. This watercraft exclusion does not apply with respect to any watercraft which is a Covered Accommodation. However, this exclusion does apply to vessels that, at the time of the loss, are in transit, or are moving greater than 10 feet from their usual fixed location and moving faster than one mile per hour.
- Vehicles (including, but not limited to, automobiles, scooters, vespas, and motorcycles). This exclusion does not apply with respect to any vehicle that is a Covered Accommodation. However, this exclusion does apply to vehicles that, at the time of the loss, are in transit, or are moving greater than 10 feet from their usual fixed location and moving faster than one mile per hour.
- Underground mines or mine shafts or any property within such mine or shaft.
- Dams, dikes and levees.
- Property in transit, except as otherwise provided by these tripmagic Host Guarantee Terms.
- Transmission and distribution lines beyond 1,000 feet of the Covered Accommodation.
- Any damage to any property that is not in, at, or on a Covered Accommodation.
- Real property owned by a party other than you and that you do not control.
“Fine Arts” means paintings; etchings; printed photos; pictures; tapestries; rare or art glass; art glass windows, valuable rugs; statuary; sculptures; antique furniture; antique jewelry; bric-a-brac; porcelains; and similar property of rarity, historical value, or artistic merit. “Fine Arts” does not include automobiles, coins, stamps, other collectibles, collections, furs, jewelry, precious stones, precious metals, watercraft, aircraft, money, or securities.
“Guest” means a Member who has completed tripmagic’s account registration process, has agreed to the tripmagic Terms of Service, and who books and stays on, at, or in a Covered Accommodation for the period of the Listing.
“Host” means a Member who has completed tripmagic’s account registration process, has agreed to the tripmagic Terms of Service, and who lists his/her Covered Accommodation(s) on the Site or Application.
“Invitee” means a person invited to be present at a Covered Accommodation by a Responsible Guest.
“Limit” means one million US dollars (US $1,000,000), or its equivalent in the currency where the Covered Accommodation is located at the exchange rate applicable on the date of payment by tripmagic under these tripmagic Host Guarantee Terms.
“Listing” means an Accommodation that is listed by a Host as available for booking via the Site or Application.
“Member” means a person who completes tripmagic’s account registration process, including, but not limited to Hosts and Guests, as described under “Account Registration” in the tripmagic Terms of Service.
“Ordinary Wear and Tear” means the deterioration in condition of property that occurs under normal use and conditions.
“Responsible Guest” means the Guest who booked your Covered Accommodation for the period during which you incurred the Covered Losses for which you request payment under these tripmagic Host Guarantee Terms.
“Territory” means the countries for which the tripmagic Host Guarantee is available, as announced by tripmagic from time to time.
III. Limitations and Exclusions
The tripmagic Host Guarantee pays Covered Losses only and does not pay for any of the following (“Excluded Losses”):
- any losses caused by a Guest or Invitee after the expiration of the booking period shown in the applicable Listing.
- losses or damages for Covered Property, which arise out of any one booking of a Covered Accommodation by a Responsible Guest, in excess of the Limit.
- in the case of Fine Arts, losses or damages if the Fine Arts cannot be replaced with other of like kind and quality and any loss or damage from any repairing, restoration or retouching process.
- any losses, damages, cost or expense of whatsoever nature, directly or indirectly, caused by, relating to or resulting from any of the following:
- (i) Excluded Property;
- (ii) acts of nature, including, but not limited to, earthquakes and weather related events such as hurricanes and tornadoes;
- (iii) excessive use of electricity, gas, fuel, water or other utilities provided for the Covered Accommodation;
- (iv) indirect or remote causes;
- (v) interruption of business, loss of market and/or loss of use, except that the tripmagic Host Guarantee does cover Booking Income Loss;
- (vi) loss, damage, or deterioration arising from any delay;
- (vii) mysterious disappearance, loss, or shortage disclosed on taking inventory, or any unexplained loss of inventory;
- (viii) enforcement of any law or ordinance (i) regulating the construction, repair, replacement, use or removal of any property, including removal of debris, or (ii) requiring the demolition of any property, including the cost of removing its debris;
- (ix) animals, including injuries to animals, veterinary care, boarding, medications, and all other services associated with animals; or
- (x) identity theft or identity fraud.
- any losses, damages, cost or expense of whatsoever nature, directly or indirectly, caused by or resulting from any of the following, regardless of any other cause or event contributing thereto:
- (i) any hostile act or act of war, terrorism, insurrection or rebellion;
- (ii) actual or threatened malicious use of poisonous biological or chemical materials;
- (iii) nuclear reaction or radiation or radioactive contamination;
- (iv) seizure or destruction under quarantine or custom regulation, or confiscation by order of any governmental or public authority;
- (v) contraband, or illegal transportation or trade;
- (vi) any dishonest act, including but not limited to theft, committed by you or any persons or entities retained by you to do anything in connection with Covered Property, unless such persons or entities are a Responsible Guest or Invitee and such act is done without your knowledge; or
- (vii) lack of electricity, fuel, water, gas, steam, refrigerant, sewerage, telephone or internet services due to external factors.
- the following conditions:
- (i) faulty workmanship, material, construction or design from any cause;
- (ii) deterioration, depletion, rust, corrosion or erosion, inherent vice or latent defect;
- (iii) Ordinary Wear and Tear;
- (iv) settling, cracking, shrinking, bulging, or expansion of foundations, floors, pavements, walls, ceilings or roofs;
- (v) changes of temperature or relative humidity; or
- (vi) damage caused by insects, animals or vermin (including pets);
provided, that any physical damage resulting from any of the conditions listed above will be covered by the tripmagic Host Guarantee if not otherwise excluded under the tripmagic Host Guarantee.
- any losses, damages, claims, costs, expenses or other sums directly or indirectly arising out of or relating to mold, mildew, fungus, spores or other microorganism of any type, nature, or description, including but not limited to any substance whose presence poses an actual or potential threat to human health. This exclusion applies even if there is (i) any physical loss or damage to Covered Property; (ii) any peril or cause covered hereunder, whether or not contributing concurrently or in any sequence; (iii) any loss of use, occupancy, or functionality; or (iv) any action required, including but not limited to, repair, replacement, removal, cleanup, abatement, disposal, relocation, or steps taken to address medical or legal concerns.
- any fees that may be charged to a Guest by a Host for additional individuals invited to, or otherwise provided access to, the Covered Accommodation who are not included in the Guest’s booking of such Covered Accommodation.
IV. Conditions to the tripmagic Host Guarantee
IN ORDER TO BE ELIGIBLE TO OBTAIN PAYMENT UNDER THESE tripmagic HOST GUARANTEE TERMS, YOU MUST FULLY COMPLY WITH EACH OF THE FOLLOWING CONDITIONS. YOUR FAILURE TO FULLY COMPLY WILL PREVENT YOUR RECOVERY OF ANY COVERED LOSSES. IN ALL CASES, THE ONUS WILL BE UPON YOU TO DEMONSTRATE THAT YOU HAVE COMPLIED WITH THE FOLLOWING CONDITIONS.
You must have incurred Covered Losses.
The Covered Losses for which you seek payment must be covered under the tripmagic Insurance Policy and payment to tripmagic under such tripmagic Insurance Policy, and tripmagic in its sole discretion may make its payment of benefits under this tripmagic Host Guarantee contingent upon the determination that any Covered Losses are covered under the tripmagic Insurance Policy.
You must have used reasonable efforts in connection with the stay of the Responsible Guest at such Covered Accommodation to comply with tripmagic’s safety guidelines as described at https://tripmagic.xyz/trust_safety.
You must inspect the applicable Covered Accommodation to determine whether there are any physical losses or damages to any Covered Property and complete and file an tripmagic Host Guarantee Payment Request Form with tripmagic within the earlier of (i) fourteen (14) days following the date of termination of the Responsible Guest’s booking of the applicable Covered Accommodation or (ii) the date by which the next subsequent booking of the same Covered Accommodation begins.
For all Covered Property which is damaged or destroyed due to a violation of law or criminal act or misdemeanor and for which you are filing an tripmagic Host Guarantee Payment Request Form, you must file a police report listing such Covered Property and provide tripmagic with a copy of such report, certified by you as true and correct.
You must provide tripmagic with proof of ownership of, or legal responsibility for, the Covered Property in the form of receipts, photographs, videos, documents or other customary forms of proof (including, but not limited to, appraisal or valuation forms or notices addressed to you) certified by you as true and correct and reasonably acceptable to tripmagic.
You must deliver a signed and sworn proof of loss to us within sixty (60) days after you have incurred the Covered Loss, unless we provide a written extension of such deadline. The proof of loss must state your knowledge and belief as to the following:
- The time, cause and origin of the Covered Loss, and evidence and proof such loss in the form of receipts, photographs, videos, documents and other verifiable forms of proof.
- The ownership, leasehold or other interest of you and all other parties in the Covered Property for which Covered Loss is claimed.
- The Actual Cash Value and replacement value of each item of the Covered Property, as well as the current appraised value in the case of Fine Arts articles, that is the subject of the Covered Loss and the amount of such loss or damage to each item of such Covered Property.
- All liens, encumbrances, mortgages, guarantees and all other contracts of insurance, whether valid or not, covering the Covered Property that is the subject of the Covered Loss.
- Any changes in the title, use, occupation, location, possession, or exposures of the Covered Accommodation since the date of the Listing.
- The identity of and other information known about the Responsible Guest, any Invitee and any other party present at or using the Covered Accommodation where the Covered Property is located for which the Covered Loss is claimed on the date of the Covered Loss, and the purpose for which such Covered Accommodation was being used by such parties on such date and whether or not it then stood on leased ground.
- The date when you contacted the Responsible Guest to request payment for the loss you are claiming, and the date on which the Responsible Guest declined or failed to pay for the loss.
As part of the signed and sworn proof of loss described above, you must provide tripmagic with all information reasonably requested by tripmagic to enable tripmagic’s insurer to determine the Actual Cash Value with respect to Covered Property, including: the original purchase price of such Covered Property, the date such Covered Property was acquired, the condition of such Covered Property and the estimated cost of repair or replacement of such Covered Property.
You must (i) protect and preserve damaged Covered Property from further loss or damages and (ii) promptly separate the damaged and undamaged Covered Property, put it in the best possible order, and furnish a complete inventory of the lost, destroyed, damaged and undamaged property showing in detail the quantities, costs, Actual Cash Value, and amount of loss claimed.
You must, as often as may be reasonably required, at such reasonable times and places that may be designated by tripmagic’s insurer or its respective designees, (i) exhibit all that remains of any damaged Covered Property and sign the written records of examination; (ii) produce for examination all books of accounts, business records, bills, invoices, and vouchers (either originals or certified copies if originals are lost) and (iii) permit extracts and machine copies to be made of the above.
You must permit tripmagic’s insurer or its designee(s) to make inspections of Covered Property at all reasonable times. However, the right to make inspections, the making of inspections, and any analysis, advice, or inspection report will not constitute an undertaking by tripmagic’s insurer to determine or warrant that damaged Covered Property is safe or healthful. We will have no liability to you or any other person because of any inspection or failure to inspect.
You must cooperate with tripmagic, including signing any documents, and timely responding to any reasonable requests by tripmagic for additional information or documentation that tripmagic or its insurer may require or request to process the applicable tripmagic Host Guarantee Payment Request Form.
With respect to Covered Property subject to a loan, mortgage or other security interest, you must notify your lender/mortgagee in writing of any loss that exceeds fifty thousand US dollars (US $50,000), and provide tripmagic with a copy of such notice. If the lender/mortgagee notifies you that the lender/mortgagee seeks insurance and/or reimbursement proceeds for the loss, you must notify tripmagic in writing of the lender/mortgagee’s request and transmit a written copy of said request to tripmagic, and provide all other information to enable tripmagic to communicate directly with the lender. If such loss is determined to be a Covered Loss, we will pay the loss benefit(s) to the lender up to the value of the mortgage (subject to the exclusions, limitations and conditions herein), and we will not pay you unless and until your monetary obligation to the lender/mortgagee has been satisfied. This condition shall apply to the extent of applicable law in your jurisdiction.
You will have full rights to the possession and control of damaged Covered Property if proper testing is done to show which property is physically damaged. You, using reasonable judgment, will decide if the physically damaged Covered Property can be reprocessed or sold. If you determine that the Covered Property is unfit for reprocessing or sale, the property will not be sold or disposed of except by you or with your consent. Proceeds from the sale or other disposition of such Covered Property will go to (i) tripmagic’s insurer at the time of the Covered Loss settlement, or (ii) you if such sale or disposition proceeds are received prior to Covered Loss settlement and such proceeds will reduce the amount of the Covered Loss payable to you.
V. Disposition of Host Payment Requests
tripmagic Host Guarantee Payment Request Form
tripmagic will complete its processing of any tripmagic Host Guarantee Payment Request Form that you file within a reasonable period following the date you have (a) completed and filed an tripmagic Host Guarantee Payment Request Form, and (b) provided tripmagic with all information and materials that you are required to provide to comply with the conditions set forth in “Conditions to the tripmagic Host Guarantee” above. In any event, we will use commercially reasonable efforts to complete processing of your tripmagic Host Guarantee Payment Request Form within three (3) months after our receipt of such documents and information. If you receive an Approved Payment Request (as defined below), then as a condition to payment to you under the tripmagic Host Guarantee, you will be required to execute and deliver to tripmagic the “tripmagic Host Guarantee Approved Payment Request Agreement”, which includes your agreement:
- to assign to tripmagic or its insurer any rights and remedies you may have to recover amounts paid to you with respect to an Approved Payment Request (defined below) from the Responsible Guest or from an Invitee or from any other party that is financially responsible for the Approved Payment Request;
- to reasonably cooperate with us, including, at our request, appearing as a witness in any court, arbitration or like proceeding, if we seek to recover the amount paid to you with respect to an Approved Payment Request from the Responsible Guest or from an Invitee or from any other party;
- to release and hold harmless tripmagic and its insurer and all officers, directors, employees, contractors and agents of tripmagic from any further liability or obligations with respect to the facts and circumstances of the matters and incident set forth in the tripmagic Host Guarantee Payment Request Form;
- to treat as “confidential information” the contents and existence of such tripmagic Host Guarantee Payment Request Form and Approved Payment Request Payment Agreement; and
- to refund to us any amounts that are erroneously paid to you with respect to an Approved Payment Request, such determination by us to be based upon factors including, but not limited to, documentation in our possession, your actions, and police reports, if applicable.
The duration of the processing period of any tripmagic Host Guarantee Payment Request Form that you file will depend on factors that include, but are not limited to: (i) the amount of payment that you are requesting for the Covered Loss; (ii) the location of the Covered Accommodation; (iii) the nature of the Covered Property and the nature of the Covered Losses; (iv) the completeness and type of documentation and information that you provide tripmagic regarding the Covered Losses; and (v) the number of tripmagic Host Guarantee Payment Request Forms that are currently being processed for other Hosts.
Approved Payment Request
If you have filed an tripmagic Host Guarantee Payment Request Form and such a payment request is approved in whole or in part for a Covered Loss (any such approved payment request, an “Approved Payment Request”), you will be paid the amount of the Covered Loss as calculated by tripmagic’s insurer. The process for such calculation of Covered Losses is described under “Determination of the Amount of the Covered Loss” below. You will be notified by tripmagic and, as a condition of payment hereunder, you will be required to deliver to tripmagic an executed Approved Payment Request Agreement. tripmagic may use third party service providers to assist in the processing of the tripmagic Host Guarantee Payment Request Forms and tripmagic’s insurer may use third party service providers to assist in the investigation and adjustment of payment requests relating thereto.
For an Approved Payment Request that involves Covered Losses for Covered Property that is owned by a party other than you, we reserve the right, in our sole discretion, to pay all or a portion of the amount covered in such Approved Payment Request either to you or directly to the owner of such Covered Property. If an tripmagic Host Guarantee payment for all or a portion of such amount is made directly to the owner of such Covered Property, then you agree that such payment will be treated for purpose of the Approved Payment Request as being paid to you directly, and that you will be solely responsible for collecting from the owner of such Covered Property any portion of such payment to which you believe you are legally entitled. For clarity, your indemnification obligations set forth below under the paragraph entitled “Indemnification” will apply to claims arising from any payments made pursuant to the tripmagic Host Guarantee, including without limitation any payments made directly to the owner of any Covered Property.
Determination of the Amount of the Covered Loss
The amount of Covered Losses will be computed as of the date of loss, at the location of the loss, and for not more than your interest, subject to the following:
- On exposed films, records, manuscripts, and drawings, the value blank plus the cost of copying information from back-up or from originals of a previous generation. Costs of research, engineering, or restoring or recreating lost information will not be paid.
- On Fine Arts articles, the lesser of (i) the reasonable and necessary cost to repair or restore such property to the physical condition that existed on the date of loss; (ii) the cost to replace the article; and (iii) the current appraised value. If the Fine Arts article is part of a pair or set, you will not be paid (1) for the cost of replacing any undamaged or remaining items that form part of such pair or set, (2) more than the proportion that the loss or damaged item bears to the insured value of such pair or set, or (3) the cost of replacing or repairing any undamaged parts of the Fine Arts articles which form part of a pair, set or suite or part of a common design or function when the loss or damage is restricted to a clearly identifiable area or to a specific part.
- For all Covered Property (other than that described in paragraphs A and B above), the loss amount will not exceed the lesser of: (i) the cost to repair such damaged Covered Property; (ii) the cost to rebuild or replace such Covered Property on the same site with new materials of like size, kind, and quality; (iii) the cost to rebuild, repair, or replace on the same or another site, but not to exceed the size and operating capacity that existed on the date of the Covered Loss; (iv) the cost to replace unrepairable electrical or mechanical equipment, including computer equipment, with equipment that is the most functionally equivalent to that damaged or destroyed, even if such equipment has technological advantages and/or represents an improvement in function and/or forms part of a program of system enhancement; or (v) the Actual Cash Value if such property is not repaired, replaced, or rebuilt on the same or another site within two years from the date of loss.
- Any amount of any Covered Losses payable under the tripmagic Host Guarantee will be reduced by the amount already paid to you or for your benefit by a Responsible Guest, Invitee or other source (such as an insurer or other responsible party) for the same Covered Loss.
- Covered Losses will be paid in the currency of the United States of America unless, in tripmagic’s sole discretion, tripmagic elects to pay losses in a different currency. If currency conversions are required, we use a system-wide rate, known as the base exchange rate, for currency conversion using data from one or more third parties, such as OANDA (www.oanda.com).
YOU ARE NOT AN INSURED OR OTHER THIRD PARTY BENEFICIARY UNDER THE tripmagic INSURANCE POLICY. TO THE EXTENT YOU DESIRE ADDITIONAL PROTECTION BEYOND THE COVERAGE AFFORDED BY THE tripmagic HOST GUARANTEE, tripmagic STRONGLY ENCOURAGES YOU TO PURCHASE SEPARATE INSURANCE THAT WILL COVER YOU AND YOUR PROPERTY FOR LOSSES CAUSED BY GUESTS OR GUESTS’ INVITEES IN THE EVENT tripmagic OR ITS INSURER DECLINES COVERAGE FOR CLAIMS UNDER THE tripmagic HOST GUARANTEE OR YOUR LOSS IS NOT OTHERWISE COVERED BY THE tripmagic HOST GUARANTEE.
VI. Acknowledgments and Agreements by the Host
You acknowledge and agree that:
- The tripmagic Host Guarantee is a guarantee of obligations of a Responsible Guest to you and is dependent upon you pursuing any rights and remedies you may have to recover amounts paid by tripmagic to you with respect to an Approved Payment Request from the Responsible Guest or from an Invitee or from any other party that is financially responsible for the Approved Payment Request.
- tripmagic provides Hosts with the tripmagic Host Guarantee benefits described herein solely for the purpose of promoting use of the Site, Application and Services by building customer loyalty and strengthening customer confidence as to use of the Site, Application and Services.
- These tripmagic Host Guarantee Terms are not intended to constitute an offer to insure, do not constitute insurance or an insurance contract, and do not take the place of insurance obtained or obtainable by you. Furthermore, these tripmagic Host Guarantee Terms are not an insurance service agreement as defined in a standard ISO renter’s or homeowner’s insurance policy.
- The benefits provided under these tripmagic Host Guarantee Terms are solely as set forth in the paragraph entitled “tripmagic Host Guarantee” above and such benefits are not assignable or transferable by you, including without limitation any transfer or assignment by operation of law or in connection with your divorce or death.
- tripmagic and/or its insurer reserve the right to independently investigate (or to have independently investigated) at our sole discretion and expense, the facts and circumstances of a payment request set forth in any tripmagic Host Guarantee Payment Request Form that you file with tripmagic, notwithstanding your delivery of all information and materials that you are required to provide tripmagic in order to comply with the conditions set forth in the paragraph entitled “Conditions to the tripmagic Host Guarantee.”
You acknowledge and agree that if you make a claim under this Host Guarantee, you give tripmagic consent to review all communications between you and the allegedly Responsible Guest via the Site or Application.
tripmagic reserves the right, at any time, to offset or deduct from the amounts payable or paid by tripmagic to you under these tripmagic Host Guarantee Terms, any amounts that it may have in its possession, or to subsequently collect, from any other person or entity who is obligated to compensate you for losses or damages.
Because these tripmagic Host Guarantee Terms constitute a guarantee agreement, the theory of exoneration applies. Thus, if the Covered Property in question or the risk associated with that Covered Property changes materially, tripmagic will be entitled to exoneration with respect to any potential guaranty obligation under these tripmagic Host Guarantee Terms.
VII. Modification or Termination of tripmagic Host Guarantee Terms
To the extent permissible by applicable law in your jurisdiction, tripmagic reserves the right to modify or terminate these tripmagic Host Guarantee Terms, at any time, in its sole discretion, and without prior notice. If tripmagic terminates these tripmagic Host Guarantee Terms in accordance with the foregoing, tripmagic will provide you with notice of such termination and tripmagic will continue to process all tripmagic Host Guarantee Payment Request Forms that you filed prior to the effective date of termination, but your right to file any new tripmagic Host Guarantee Payment Request Forms will immediately terminate. If tripmagic modifies these tripmagic Host Guarantee Terms, we will post the modification on the Site or via the Application or provide you with notice of the modification and tripmagic will continue to process all tripmagic Host Guarantee Payment Request Forms that you filed prior to the effective date of the modification. By continuing to access or use the Site, Application or Services as a Host after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified tripmagic Host Guarantee Terms. If the modified tripmagic Host Guarantee Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services as a Host.
In addition to and without limiting tripmagic’s rights set forth above in the immediately preceding paragraph, tripmagic reserves the right to modify or terminate these tripmagic Host Guarantee Terms generally or in any jurisdiction, at any time, in its sole discretion, if: (i) these tripmagic Host Guarantee Terms are construed to be an offer to insure or constitute insurance or an insurance contract or insurance service agreement by any governmental or regulatory authority in any jurisdiction; (ii) tripmagic is required to obtain a license or permit of any kind to continue to provide these tripmagic Host Guarantee Terms in any jurisdiction; or (iii) tripmagic determines or a court or arbitrator holds that the provisions of these tripmagic Host Guarantee Terms violate applicable law. If tripmagic modifies or terminates these tripmagic Host Guarantee Terms in accordance with the foregoing, tripmagic will process all tripmagic Host Guarantee Payment Request Forms that you file prior to or as of the effective date of such modification or termination unless such processing is prohibited by law, regulation, ordinance, order, or decree of any governmental or other authority.
tripmagic’s obligations hereunder are contingent upon the availability of insurance proceeds under the tripmagic Insurance Policy. The applicable terms and conditions of such policy will be the terms and conditions in effect on the date of the Covered Loss, and not the terms and conditions in effect on the date that the Responsible Guest booked or reserved the applicable Covered Accommodation or the date on which the Host listed the Covered Accommodation. If the policy terms and conditions change in any material respect between the date of the Listing and the first date of the Guest’s stay, tripmagic will use its best efforts to notify you of the change(s) pursuant to the procedures set forth above in this section.
tripmagic and/or tripmagic’s insurer have the right to subrogate against any person or entity whatsoever who allegedly is responsible for causing the losses or damages in question, even if that person or entity is you. Further, you hereby agree that, with respect to any payments made under the tripmagic Host Guarantee by, or on behalf of, tripmagic, you will assist in and cooperate fully with tripmagic regarding any and all efforts at subrogation.
IX. Disclaimers and Limitations of Liability
IF YOU CHOOSE TO USE THE SITE, APPLICATION, OR SERVICES AS A HOST, YOU DO SO AT YOUR SOLE RISK. THE tripmagic HOST GUARANTEE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, tripmagic EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. tripmagic MAKES NO WARRANTY THAT THE tripmagic HOST GUARANTEE WILL MEET YOUR REQUIREMENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM tripmagic OR THROUGH THE SITE, APPLICATION, OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION AND SERVICES, AND YOUR LISTING OF ANY ACCOMMODATIONS VIA THE SITE, APPLICATION AND SERVICES REMAINS WITH YOU. NEITHER tripmagic NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION AND SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR (1) PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE tripmagic HOST GUARANTEE TERMS, (2) FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION OR SERVICES, (3) FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, OR (4) FROM YOUR LISTING OF ANY ACCOMMODATION VIA THE SITE, APPLICATION AND SERVICES. tripmagic WILL NOT BE LIABLE FOR ANY SUCH DAMAGES DESCRIBED ABOVE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT tripmagic 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 tripmagic’S OBLIGATION TO PAY AMOUNTS TO YOU PURSUANT TO AN APPROVED PAYMENT REQUEST UNDER THESE tripmagic HOST GUARANTEE TERMS, IN NO EVENT WILL tripmagic’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH (A) THESE tripmagic HOST GUARANTEE TERMS; (B) YOUR USE OF OR INABILITY TO USE THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, POSTING A LISTING, (C) ANY ACCOMMODATION AND (D) YOUR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS PAID BY tripmagic TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED DOLLARS ($100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN tripmagic AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION FOR CERTAIN LIMITATIONS OF LIABILITY, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
X. General Provisions
You agree to release, defend, indemnify, and hold tripmagic and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with the tripmagic Host Guarantee and these tripmagic Host Guarantee Terms.
If you rent (rather than own) the accommodation that you list as a Covered Accommodation, the immediately preceding paragraph applies specifically to any dispute between you and the owner of the accommodation. You are fully responsible for securing the lessor’s permission to list the accommodation with tripmagic and complying with the scope of any permission granted.
These tripmagic Host Guarantee Terms constitute the entire and exclusive understanding and agreement between tripmagic and you regarding the tripmagic Host Guarantee and these tripmagic Host Guarantee Terms, and supersede and replace any and all prior oral or written understandings or agreements between tripmagic and you regarding the tripmagic Host Guarantee.
You may not assign or transfer these tripmagic Host Guarantee Terms, by operation of law or otherwise, without tripmagic’s prior written consent. Any attempt by you to assign or transfer these tripmagic Host Guarantee Terms, without such consent, will be null and of no effect. tripmagic may assign or transfer these tripmagic Host Guarantee Terms, at its sole discretion, without restriction. Subject to the foregoing, these tripmagic Host Guarantee Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these tripmagic Host Guarantee Terms, will be in writing and given by tripmagic (i) via e-mail (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
These tripmagic Host Guarantee Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to its conflict-of-law provisions.
General. You and tripmagic agree that any dispute, claim or controversy arising out of or relating to these tripmagic Host Guarantee Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site or Application (collectively, “Disputes”) will be settled by binding arbitration. You acknowledge and agree that you and tripmagic 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 tripmagic 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 tripmagic Host Guarantee Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at http://www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/si.asp?id=3477 and a separate form for California residents at http://www.adr.org/si.asp?id=3485.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and tripmagic 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 tripmagic submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Disclaimers and Limitations of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. tripmagic will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Arbitration Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, tripmagic will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the “Modification or Termination of tripmagic Host Guarantee Terms” section above, if tripmagic changes this “Dispute Resolution” section after the date you first accepted these tripmagic Host Guarantee Terms (or accepted any subsequent changes to these tripmagic Host Guarantee Terms), you may reject any such change by sending us written notice (including by email to terms@https://tripmagic.xyz) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of tripmagic’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 tripmagic in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these tripmagic Host Guarantee Terms (or accepted any subsequent changes to these tripmagic Host Guarantee Terms).
Waiver and Severability
The failure of tripmagic to enforce any right or provision of these tripmagic Host Guarantee Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of tripmagic. Except as expressly set forth in these tripmagic Host Guarantee Terms, the exercise by either party of any of its remedies under these tripmagic Host Guarantee Terms will be without prejudice to its other remedies under these tripmagic Host Guarantee Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these tripmagic Host Guarantee Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these tripmagic Host Guarantee Terms will remain in full force and effect.
XI. Contacting tripmagic
If you have any questions about these tripmagic Host Guarantee Terms, please contact tripmagic at terms@https://tripmagic.xyz.
XII. Additional Clauses for Users Contracting with tripmagic Ireland
The following paragraphs will apply if you are contracting with tripmagic Ireland.
The Controlling Law clause shall be removed and replaced with the following:
"Controlling Law and Jurisdiction
These tripmagic Host Guarantee Terms will be interpreted in accordance with Irish law. You and we agree to submit to the non-exclusive jurisdiction of the Irish courts for resolving any dispute between the parties. If tripmagic wishes to enforce any of its rights against you, we may elect to do so in the Irish courts or in the courts of the jurisdiction in which you are resident."
The Dispute Resolution clause shall be removed and is not applicable.