Terms of Service
Please read these Terms of Service (“Terms”) carefully as they contain important information about your legal rights, remedies, and obligations. By accessing or using the Shack Platform, you agree to comply with and be bound by these Terms.
Please note: Section 19 of these Terms contains an arbitration clause and class action waiver that applies to all Shack Members. If your country of residence is the United States, this provision applies to all disputes with Shack. If your country of residence is outside of the United States, this provision applies to any action you bring against Shack in the United States. It affects how disputes with Shack are resolved. By accepting these Terms, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
Last Updated: July 26, 2019
Thank you for using Shack!
These Terms constitute a legally binding agreement ("Agreement") between you and Shack (as defined below) governing your access to and use of the Shack website, including any subdomains thereof, and any other websites through which Shack makes its services available (collectively, "Site"), our mobile, tablet and other smart device applications, and application program interfaces (collectively, "Application") and all associated services (collectively, "Shack Services"). The Site, Application and Shack Services together are hereinafter collectively referred to as the “Shack Platform”. Our Host Guarantee Terms, Guest Refund Policy, Nondiscrimination Policy and other Policies applicable to your use of the Shack Platform are incorporated by reference into this Agreement.
When these Terms mention “Shack,” “we,” “us,” or “our,” it refers to the Shack company you are contracting with. Your contracting entity will generally be determined based on your country of residence or establishment.
If your country of residence or establishment is the United States or any other country hereby, you are contracting with Shack Leasing LLC, 6017 Cocos Drive Fort Myers, FL 33908, United States.
If you change your country of residence or establishment, the Shack company you contract with will be determined by your new country of residence or establishment as specified above, from the date on which your country of residence changes.
Any and all payment processing services through or in connection with your use of the Shack Platform ("Payment Services") are provided to you by one or more Shack Payments entities (individually and collectively, as appropriate, "Shack Payments") as set out in the Payments Terms of Service ("Payments Terms").
Hosts alone are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to their Listings and Host Services (as defined below). For example, some cities have laws that restrict their ability to host paying guests for short periods or provide certain Host Services. In many cities, Hosts may have to register, get a permit or obtain a license before providing certain Host Services (such as preparing food, serving alcohol for sale, guiding tours or operating a vehicle). Host are alone responsible for identifying and obtaining any required licenses, permits, or registrations for any Host Services they offer. Certain types of Host Services may be prohibited altogether. Penalties may include fines or other enforcement. We provide some information in our Help Center to help you identify some of the obligations that apply to you. If you have questions about how local laws apply to your Listing(s) and Host Service(s) on Shack, you should always seek legal guidance.
Table of Contents
Booking Modifications, Cancellations and Refunds, Resolution Center
1. Scope of Shack Services
1.1 The Shack Platform is an online marketplace that enables registered users (“Members”) and certain third parties who offer services (Members and third parties who offer services are “Hosts” and the services they offer are “Host Services”) to publish such Host Services on the Shack Platform (“Listings”) and to communicate and transact directly with Members that are seeking to book such Host Services (Members using Host Services are “Guests”). Host Services may include the offering of vacation or other properties for use ("Accommodations"), single or multi-day activities in various categories (“Experiences”), access to unique events and locations (“Events”), and a variety of other travel and non-travel related services.
1.2 As the provider of the Shack Platform, Shack does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Listings or Host Services, nor is Shack an organizer or retailer of travel packages. Hosts alone are responsible for their Listings and Host Services. When Members make or accept a booking, they are entering into a contract directly with each other. Shack is not and does not become a party to or other participant in any contractual relationship between Members, nor is Shack a real estate broker or insurer. Shack is not acting as an agent in any capacity for any Member, except as specified in the Payments Terms.
1.3 While we may help facilitate the resolution of disputes, Shack has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Listings or Host Services, (ii) the truth or accuracy of any Listing descriptions, Ratings, Reviews, or other Member Content (as defined below), or (iii) the performance or conduct of any Member or third party. Shack does not endorse any Member, Listing or Host Services. Any references to a Member being "verified" (or similar language) only indicate that the Member has completed a relevant verification or identification process and nothing else. Any such description is not an endorsement, certification or guarantee by Shack about any Member, including of the Member's identity or background or whether the Member is trustworthy, safe or suitable. You should always exercise due diligence and care when deciding whether to stay in an Accommodation, participate in an Experience or Event or use other Host Services, accept a booking request from a Guest, or communicate and interact with other Members, whether online or in person. Verified Images (as defined below) are intended only to indicate a photographic representation of a Listing at the time the photograph was taken, and are therefore not an endorsement by Shack of any Host or Listing.
1.4 If you choose to use the Shack Platform as a Host or Co-Host (as defined below), your relationship with Shack is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Shack for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Shack. Shack does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms specifically, including in connection with your provision of the Host Services. You acknowledge and agree that you have complete discretion whether to list Host Services or otherwise engage in other business or employment activities.
1.5 To promote the Shack Platform and to increase the exposure of Listings to potential Guests, Listings and other Member Content may be displayed on other websites, in applications, within emails, and in online and offline advertisements. To assist Members who speak different languages, Listings and other Member Content may be translated, in whole or in part, into other languages. Shack cannot guarantee the accuracy or quality of such translations and Members are responsible for reviewing and verifying the accuracy of such translations. The Shack Platform may contain translations powered by Google. Google disclaims all warranties related to the translations, express or implied, including any warranties of accuracy, reliability, and any implied warranties for merchantability, fitness for a particular purpose and non-infringement.
1.6 The Shack Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Shack is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Shack of such Third-Party Services.
1.7 Due to the nature of the Internet, Shack cannot guarantee the continuous and uninterrupted availability and accessibility of the Shack Platform. Shack may restrict the availability of the Shack Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Shack Platform. Shack may improve, enhance and modify the Shack Platform and introduce new Shack Services from time to time.
2. Eligibility, Using the Shack Platform, Member Verification
2.1 In order to access and use the Shack Platform or register an Shack Account you must be an individual at least 18 years old or a duly organized, validly existing business, organization or other legal entity in good standing under the laws of the country you are established and able to enter into legally binding contracts.
2.2 You will comply with any applicable export control laws in your local jurisdiction. You also represent and warrant that (i) neither you nor your Host Service(s) are located or take place in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
2.3 Shack may make access to and use of the Shack Platform, or certain areas or features of the Shack Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, meeting Ratings or Reviews thresholds, or a Member’s booking and cancellation history.
2.4 User verification on the Internet is difficult and we do not assume any responsibility for the confirmation of any Member’s identity. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (i) ask Members to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of Members, (ii) screen Members against third party databases or other sources and request reports from service providers, and (iii) where we have sufficient information to identify a Member, obtain reports from public records of criminal convictions or sex offender registrations or an equivalent version of background or registered sex offender checks in your local jurisdiction (if available).
2.5 The access to or use of certain areas and features of the Shack Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions, before you can access the relevant areas or features of the Shack Platform. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Shack Platform, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise in the latter terms and conditions.
2.6 If you access or download the Application from the Apple App Store, you agree to Apple’s Licensed Application End User License Agreement. Some areas of the Shack Platform implement Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.
3. Modification of these Terms
Shack reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Shack Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the Shack Platform will constitute acceptance of the revised Terms.
4. Account Registration
4.1 You must register an account ("Shack Account") to access and use certain features of the Shack Platform, such as publishing or booking a Listing. If you are registering an Shack Account for a business, organization 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 these Terms.
4.2 You can register an Shack Account using an email address and creating a password, or through your account with certain third-party social networking services, such as Facebook or Google ("SNS Account"). You have the ability to disable the connection between your Shack Account and your SNS Account at any time, by accessing the "Settings" section of the Shack Platform.
4.3 You must provide accurate, current and complete information during the registration process and keep your Shack Account and public Shack Account profile page information up-to-date at all times.
4.4 You may not register more than one (1) Shack Account unless Shack authorizes you to do so. You may not assign or otherwise transfer your Shack Account to another party.
4.5 You are responsible for maintaining the confidentiality and security of your Shack Account credentials and may not disclose your credentials to any third party. You must immediately notify Shack if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Shack Account. You are liable for any and all activities conducted through your Shack Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
4.6 Shack may enable features that allow you to authorize other Members or certain third parties to take certain actions that affect your Shack Account. For example, we may enable Members to link their Shack Accounts to businesses and take actions for those businesses, we may enable eligible Members or certain third parties to book Listings on behalf of other Members, or we may enable Hosts to add other Members as Co-Hosts (as defined below) to help manage their Listings. These features do not require that you share your credentials with any other person. No third party is authorized by Shack to ask for your credentials, and you shall not request the credentials of another Member.
5.1 Shack may, at its sole discretion, enable Members to (i) create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the Shack Platform ("Member Content"); and (ii) access and view Member Content and any content that Shack itself makes available on or through the Shack Platform, including proprietary Shack content and any content licensed or authorized for use by or through Shack from a third party ("Shack Content" and together with Member Content, "Collective Content").
5.2 The Shack Platform, Shack Content, and Member Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the Shack Platform and Shack Content, including all associated intellectual property rights, are the exclusive property of Shack and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Shack Platform, Shack Content or Member Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Shack used on or in connection with the Shack Platform and Shack Content are trademarks or registered trademarks of Shack in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Shack Platform, Shack Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
5.3 You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Shack Platform or Collective Content, except to the extent you are the legal owner of certain Member Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Shack or its licensors, except for the licenses and rights expressly granted in these Terms.
5.4 Subject to your compliance with these Terms, Shack grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s); and (ii) access and view any Collective Content made available on or through the Shack Platform and accessible to you, solely for your personal and non-commercial use.
5.6 Shack may offer Hosts the option of having professional photographers take photographs of their Host Services, which are made available by the photographer to Hosts to include in their Listings with or without a watermark or tag bearing the words "Shackedu.com Verified Photo" or similar wording ("Verified Images"). You are responsible for ensuring that your Host Service is accurately represented in the Verified Images and you will stop using the Verified Images on or through the Shack Platform if they no longer accurately represent your Listing, if you stop hosting the Host Service featured, or if your Shack Account is terminated or suspended for any reason. You acknowledge and agree that Shack shall have the right to use any Verified Images in accordance with Section 5.5 for advertising, marketing and/or any other business purposes in any media or platform, whether in relation to your Listing or otherwise, without further notice or compensation to you. Where Shack is not the exclusive owner of Verified Images, by using such Verified Images on or through the Shack Platform, you grant to Shack an exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to use such Verified Images for advertising, marketing and/or any other business purposes in any media or platform, whether in relation to your Listing or otherwise, without further notice or compensation to you. Shack in turn grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to use Verified Images outside of the Shack Platform solely for your personal and non-commercial use.
5.7 You are solely responsible for all Member Content that you make available on or through the Shack Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available on or through the Shack Platform or you have all rights, licenses, consents and releases that are necessary to grant to Shack the rights in and to such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Shack's use of the Member Content (or any portion thereof) as contemplated under these Terms will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
5.8 You will not post, upload, publish, submit or transmit any Member Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (v) promotes illegal or harmful activities or substances; or (vi) violates Shack's Content Policy or any other Shack policy. Shack may, without prior notice, remove or disable access to any Member Content that Shack finds to be in violation of applicable law, these Terms or Shack's then-current Policies or Standards, or otherwise may be harmful or objectionable to Shack, its Members, third parties, or property.
5.9 Shack respects copyright law and expects its Members to do the same. If you believe that any content on the Shack Platform infringes copyrights you own, please notify us in accordance with our Copyright Policy.
6. Service Fees
6.1 Shack may charge fees to Hosts ("Host Fees") and/or Guests ("Guest Fees") (collectively, "Service Fees") in consideration for the use of the Shack Platform. More information about when Service Fees apply and how they are calculated can be found on our Service Fees page.
6.2 Any applicable Service Fees (including any applicable Taxes) will be displayed to a Host or Guest prior to publishing or booking a Listing. Shack reserves the right to change the Service Fees at any time, and will provide Members adequate notice of any fee changes before they become effective. Such fee changes will not affect any bookings made prior to the effective date of the fee change.
6.3 You are responsible for paying any Service Fees that you owe to Shack. The applicable Service Fees (including any applicable Taxes) are collected by Shack Payments. Shack Payments will deduct any Host Fees from the Listing Fee before remitting the payout to the Host. Any Guest Fees are included in the Total Fees collected by Shack Payments. Except as otherwise provided on the Shack Platform, Service Fees are non-refundable.
7. Terms specific for Hosts
7.1 Terms applicable to all Listings
7.1.1 When creating a Listing through the Shack Platform you must (i) provide complete and accurate information about your Host Service (such as listing description, location, and calendar availability), (ii) disclose any deficiencies, restrictions (such as house rules) and requirements that apply (such as any minimum age, proficiency or fitness requirements for an Experience) and (iii) provide any other pertinent information requested by Shack. You are responsible for keeping your Listing information (including calendar availability) up-to-date at all times.
7.1.2 You are solely responsible for setting a price (including any Taxes if applicable, or charges such as cleaning fees) for your Listing (“Listing Fee”). Once a Guest requests a booking of your Listing, you may not request that the Guest pays a higher price than in the booking request.
7.1.3 Any terms and conditions included in your Listing, in particular in relation to cancellations, must not conflict with these Terms or the relevant cancellation policy for your Listing.
7.1.4 Shack may enable certain Hosts to participate in its “Open Homes Program.” The Open Homes Program enables Hosts to provide Listings to certain Guests, such as refugees or evacuees, for free. You acknowledge that if you choose to participate in the Open Homes Program, your ability to restrict your Listing to certain Guests, such as Guests with previous positive Reviews, may be limited.
7.1.5 Pictures, animations or videos (collectively, "Images") used in your Listings must accurately reflect the quality and condition of your Host Services. Shack reserves the right to require that Listings have a minimum number of Images of a certain format, size and resolution.
7.1.6 The placement and ranking of Listings in search results on the Shack Platform may vary and depend on a variety of factors, such as Guest search parameters and preferences, Host requirements, price and calendar availability, number and quality of Images, customer service and cancellation history, Reviews and Ratings, type of Host Service, and/or ease of booking. More information about the factors that determine how your Listing appears in search results can be found on our help center.
7.1.7 When you accept or have pre-approved a booking request by a Guest, you are entering into a legally binding agreement with the Guest and are required to provide your Host Service(s) to the Guest as described in your Listing when the booking request is made. You also agree to pay the applicable Host Fee and any applicable Taxes.
7.1.8 Shack recommends that Hosts obtain appropriate insurance for their Host Services. Please review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Guests (and the individuals the Guest has booked for, if applicable) while staying at your Accommodation or participating in your Experience, Event or other Host Service.
7.2 Listing Accommodations
7.2.1 Unless expressly allowed by Shack, you may not list more than one Accommodation per Listing.
7.2.2 If you choose to require a security deposit for your Accommodation, you must specify this in your Listing ("Security Deposit"). Hosts are not allowed to ask for a Security Deposit (i) after a booking has been confirmed or (ii) outside of the Shack Platform.
7.2.3 You represent and warrant that any Listing you post and the booking of, or a Guest's stay at, an Accommodation will (i) not breach any agreements you have entered into with any third parties, such as homeowners association, condominium, or other agreements, and (ii) comply with all applicable laws (such as zoning laws), Tax requirements, and other rules and regulations (including having all required permits, licenses and registrations). As a Host, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who reside at or are otherwise present at the Accommodation at your request or invitation, excluding the Guest and any individuals the Guest invites to the Accommodation.
7.3 Listing Experiences, Events and other Host Services
Hosts who list Experiences, Events and Host Services other than Accommodations agree to and are subject to the Additional Terms for Experience Hosts.
7.4.1 Shack may enable Hosts to authorize other Members (“Co-Hosts”) to administer the Host’s Listing(s), and to bind the Host and take certain actions in relation to the Listing(s) as permitted by the Host, such as accepting booking requests, messaging and welcoming Guests, and updating the Listing Fee and calendar availability (collectively, “Co-Host Services”). Any agreement formed between Host and Co-Host may not conflict with these Terms, the Payments Terms, or any other Policies applicable to your Host Service(s). Co-Hosts may only act in an individual capacity and not on behalf of a company or other organization, unless expressly authorized by Shack. Shack reserves the right, in our sole discretion, to limit the number of Co-Hosts a Host may invite for each Listing and to limit the number of Listings a Co-Host may manage.
7.4.2 Hosts should exercise due diligence and care when deciding who to add as a Co-Host to their Listing(s). Hosts remain solely responsible and liable for any and all Listings and Member Content published on the Shack Platform, including any Listing created by a Co-Host on their behalf. Further, Hosts remain responsible and liable for their own acts and omissions, including, but not limited to, conduct that causes harm or damage to the Co-Host(s). Co-Hosts remain responsible and liable for their own acts and omissions when engaging in their roles and responsibilities as a Co-Host, including, but not limited to, conduct that causes harm or damage to the Host. In addition, both Host and Co-Host are jointly responsible and severally liable for third party claims, including Guest claims, arising from the acts and omissions of the other person as related to hosting activities, communications with Guests, and the provision of any Co-Host Services.
7.4.3 Unless agreed otherwise by Host and Co-Host, Host and Co-Host may terminate the Co-Host agreement at any time. In addition, both Host and Co-Host acknowledge that their Co-hosting relationship will terminate in the event that Shack (i) terminates the Co-Host service or (ii) terminates either party’s participation in the Co-Host service. When the Co-Host agreement is terminated, the Host will remain responsible for all of the Co-Host’s actions prior to the termination, including the responsibility to fulfill any pending or future bookings initiated prior to the termination. When a Member is removed as a Co-Host, that Member will no longer have access to any Host or Guest information related to the applicable Host’s Listing(s).
7.4.4 As a Co-Host, you will not be reviewed by Guests, meaning that your Co-Host activities will not affect your Reviews or Ratings for other Listings for which you are a Host. Instead, the Host of such Listing(s) will be reviewed by Guests (including potentially on the basis of the Co-Host’s conduct and performance). Hosts acknowledge that Reviews and Ratings from Guests for their Listing(s) may be impacted by a Co-Host’s conduct and performance.
8. Terms specific for Guests
8.1 Terms applicable to all bookings
8.1.1 Subject to meeting any requirements (such as completing any verification processes) set by Shack and/or the Host, you can book a Listing available on the Shack Platform by following the respective booking process. All applicable fees, including the Listing Fee, Security Deposit (if applicable), Guest Fee and any applicable Taxes (collectively, “Total Fees”) will be presented to you prior to booking a Listing. You agree to pay the Total Fees for any booking requested in connection with your Shack Account.
8.1.2 Upon receipt of a booking confirmation from Shack, a legally binding agreement is formed between you and your Host, subject to any additional terms and conditions of the Host that apply, including in particular the applicable cancellation policy and any rules and restrictions specified in the Listing. Shack Payments will collect the Total Fees at the time of the booking request or upon the Host’s confirmation pursuant to the Payments Terms. For certain bookings, Guests may be required to pay or have the option to pay in multiple installments.
8.1.3 If you book a Host Service on behalf of additional guests, you are required to ensure that every additional guest meets any requirements set by the Host, and is made aware of and agrees to these Terms and any terms and conditions, rules and restrictions set by the Host. If you are booking for an additional guest who is a minor, you represent and warrant that you are legally authorized to act on behalf of the minor. Minors may only participate in an Experience, Event or other Host Service if accompanied by an adult who is responsible for them.
8.1.4 Shack may enable a Guest who is booking a Listing on behalf of one or more additional guests (the “Organizer”) to split the payment of the Total Fees for an eligible booking on a pro-rata basis between the Organizer and at least one other additional guest (each a “Co-Payer”) (the “Group Payment Service”). In order to participate in the Group Payment Service, each Co-Payer must have or register an Shack Account prior to making a payment. All payments via the Group Payment Service are handled by Shack Payments and are subject to the Group Payment Terms of Service.
8.2 Booking Accommodations
8.2.1 You understand that a confirmed booking of an Accommodation (“Accommodation Booking”) is a limited license granted to you by the Host to enter, occupy and use the Accommodation for the duration of your stay, during which time the Host (only where and to the extent permitted by applicable law) retains the right to re-enter the Accommodation, in accordance with your agreement with the Host.
8.2.2 You agree to leave the Accommodation no later than the checkout time that the Host specifies in the Listing or such other time as mutually agreed upon between you and the Host. If you stay past the agreed upon checkout time without the Host's consent (“Overstay”), you no longer have a license to stay in the Accommodation and the Host is entitled to make you leave in a manner consistent with applicable law. In addition, you agree to pay, if requested by the Host, for each twenty-four (24) hour period (or any portion thereof) that you Overstay, an additional nightly fee of up to two (2) times the average nightly Listing Fee originally paid by you to cover the inconvenience suffered by the Host, plus all applicable Guest Fees, Taxes, and any legal expenses incurred by the Host to make you leave (collectively, "Overstay Fees"). Overstay Fees for late checkouts on the checkout date that do not impact upcoming bookings may be limited to the additional costs incurred by the Host as a result of such Overstay. If you Overstay at an Accommodation, you authorize Shack (via Shack Payments) to charge you to collect Overstay Fees. A Security Deposit, if required by a Host, may be applied to any Overstay Fees due for a Guest’s Overstay.
8.3 Booking Experiences, Events and other Host Services
8.3.1 You should carefully review the description of any Experience, Event or other Host Service you intend to book to ensure you (and any additional guests you are booking for) meet any minimum age, proficiency, fitness or other requirements which the Host has specified in their Listing. At your sole discretion you may want to inform the Host of any medical or physical conditions, or other circumstances that may impact your and any additional guest’s ability to participate in any Experience, Event or other Host Service. In addition, certain laws, like the minimum legal drinking age in the location of the Experience, Event or other Host Service, may also apply. You are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to your participation in an Experience, Event or other Host Service.
8.3.2 Before and during an Experience, Event or other Host Service you must at all times adhere to the Hosts’ instructions.
8.3.3 You may not bring any additional individuals to an Experience, Event or other Host Service unless such an individual was added by you as an additional guest during the booking process on the Shack Platform.
8.4 Shack Travel Credits
Shack Travel Credits may be redeemed for eligible bookings via the Shack Platform as specified in the terms and conditions provided with the Travel Credit. You may only redeem Shack Travel Credits after the Shack Travel Credits are reflected in your Shack Account.
9. Booking Modifications, Cancellations and Refunds, Resolution Center
9.1 Hosts and Guests are responsible for any modifications to a booking that they make via the Shack Platform or direct Shack customer service to make ("Booking Modifications"), and agree to pay any additional Listing Fees, Host Fees or Guest Fees and/or Taxes associated with such Booking Modifications.
9.2 Guests can cancel a confirmed booking at any time pursuant to the Listing’s cancellation policy set by the Host, and Shack Payments will refund the amount of the Total Fees due to the Guest in accordance with such cancellation policy. Unless extenuating circumstances exist, any portion of the Total Fees due to the Host under the applicable cancellation policy will be remitted to the Host by Shack Payments pursuant to the Payments Terms.
9.3 If a Host cancels a confirmed booking, the Guest will receive a full refund of the Total Fees for such booking. In some instances, Shack may allow the Guest to apply the refund to a new booking, in which case Shack Payments will credit the amount against the Guest’s subsequent booking at the Guest’s direction. Further, Shack may publish an automated review on the Listing cancelled by the Host indicating that a booking was cancelled. In addition, Shack may (i) keep the calendar for the Listing unavailable or blocked for the dates of the cancelled booking, and/or (ii) impose a cancellation fee, unless the Host has a valid reason for cancelling the booking pursuant to Shack's Extenuating Circumstances Policy or has legitimate concerns about the Guest’s behavior.
9.4 For Experiences, Events and other Host Services, if weather poses a safety risk to Guests, or if it prevents a Host from carrying out a Host Service that takes place primarily outdoors, Hosts may cancel the Host Service. Hosts may also cancel the Host Service if other conditions exist that would prevent the Host from offering the Host Service safely.
9.5 In certain circumstances, Shack may decide, in its sole discretion, that it is necessary to cancel a pending or confirmed booking and initiate corresponding refunds and payouts. This may be for reasons set forth in Shack's Extenuating Circumstances Policy or (i) where Shack believes in good faith, while taking the legitimate interests of both parties into account, this is necessary to avoid significant harm to Shack, other Members, third parties or property, or (ii) for any of the reasons set out in these Terms.
9.6 If a Guest who books an Accommodation suffers a Travel Issue as defined in the Guest Refund Policy, Shack may determine, in its sole discretion, to refund the Guest part or all of the Total Fees in accordance with the Guest Refund Policy. If a Guest who books an Experience, Event or other Host Service suffers a Travel Issue as defined in the Experiences Guest Refund Policy, Shack may determine, in its sole discretion, to refund the Guest part or all of the Total Fees in accordance with the Experiences Guest Refund Policy.
9.7 If a Guest or Shack cancels a confirmed booking, and the Guest receives a refund in accordance with the Guest Refund Policy, Experiences Guest Refund Policy, Extenuating Circumstances Policy, or the applicable cancellation policy set by the Host and mentioned in the Listing, after the Host has already been paid, Shack Payments will be entitled to recover the amount of any such refund from the Host, including by subtracting such refund amount out from any future Payouts due to the Host.
9.8 Except as otherwise set out in these Terms, Members may use the Resolution Center to send or request money for refunds, additional Host Services or Damage Claims related to bookings. You agree to pay all amounts sent through the Resolution Center in connection with your Shack Account, and Shack Payments will handle all such payments.
10. Ratings and Reviews
10.1 Within a certain timeframe after completing a booking, Guests and Hosts can leave a public review (“Review”) and submit a star rating (“Rating”) about each other. Ratings or Reviews reflect the opinions of individual Members and do not reflect the opinion of Shack. Ratings and Reviews are not verified by Shack for accuracy and may be incorrect or misleading.
10.2 Ratings and Reviews by Guests and Hosts must be accurate and may not contain any offensive or defamatory language. Ratings and Reviews are subject to Section 5 and must comply with Shack's Content Policy and Extortion Policy.
10.3 Members are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party to write a positive or negative Review about another Member.
10.4 Ratings and Reviews are part of a Member’s public profile and may also be surfaced elsewhere on the Shack Platform (such as the Listing page) together with other relevant information such as number of bookings, number of cancellations, average response time and other information.
11. Damage to Accommodations, Disputes between Members
11.1 As a Guest, you are responsible for leaving the Accommodation (including any personal or other property located at the Accommodation) in the condition it was in when you arrived. You are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals whom you invite to, or otherwise provide access to, the Accommodation, excluding the Host (and the individuals the Host invites to the Accommodation, if applicable).
11.2 If a Host claims and provides evidence that you as a Guest have damaged an Accommodation or any personal or other property at an Accommodation ("Damage Claim"), the Host can seek payment from you through the Resolution Center. If a Host escalates a Damage Claim to Shack, you will be given an opportunity to respond. If you agree to pay the Host, or Shack determines in its sole discretion that you are responsible for the Damage Claim, Shack via Shack Payments will, after the end of your stay, collect any such sums from you and/or against the Security Deposit (if applicable) required to cover the Damage Claim pursuant to the Payments Terms. Shack also reserves the right to otherwise collect payment from you and pursue any remedies available to Shack in this regard in situations in which you are responsible for a Damage Claim, including, but not limited to, in relation to any payment requests made by Hosts under the Shack Host Guarantee or Japan Host Insurance.
11.3 Members agree to cooperate with and assist Shack in good faith, and to provide Shack with such information and take such actions as may be reasonably requested by Shack, in connection with any Damage Claims or other complaints or claims made by Members relating to (i) Accommodations or any personal or other property located at an Accommodation (including, without limitation, payment requests made under the Shack Host Guarantee or Japan Host Insurance), (ii) Experiences, (iii) Co-Host agreements, or (iv) a Group Payment Booking. A Member shall, upon Shack's reasonable request and at no cost to the Member, participate in mediation or a similar resolution process with another Member, which process will be conducted by Shack or a third party selected by Shack or its insurer, with respect to losses for which a Member is requesting payment from Shack (including but not limited to payments under the Shack Host Guarantee or payment under Japan Host Insurance).
11.4 If you are a Guest or a Co-Host, you understand and agree that Shack may make a claim under your homeowner's, renter's or other insurance policy related to any damage or loss that you may have caused, or been responsible for, to any personal or other property (including an Accommodation) of the Host (including without limitation amounts paid by Shack under the Shack Host Guarantee. You agree to cooperate with and assist Shack in good faith, and to provide Shack with such information as may be reasonably requested by Shack, to make a claim under your homeowner's, renter's or other insurance policy, including, but not limited to, executing documents and taking such further acts as Shack may reasonably request to assist Shack in accomplishing the foregoing.
12. Rounding off
Shack generally supports payment amounts that are payable from or to Guests or Hosts to the smallest unit supported by a given currency (i.e., U.S. cents, Euro cents or other supported currencies). Where Shack's third-party payment services provider does not support payments in the smaller unit supported by a given currency, Shack may, in its sole discretion, round up or round down the displayed amounts that are payable from or to Guests or Hosts to the nearest whole functional base unit in which the currency is denominated (i.e. to the nearest dollar, Euro or other supported currency); for example, Shack may round up an amount of $101.50 to $102.00, and round down an amount of $101.49 to $101.00.
13.1 As a Host you are solely responsible for determining your obligations to report, collect, remit or include in your Listing Fees any applicable VAT or other indirect sales taxes, occupancy tax, tourist or other visitor taxes or income taxes ("Taxes").
13.2 Tax regulations may require us to collect appropriate Tax information from Hosts, or to withhold Taxes from payouts to Hosts, or both. If a Host fails to provide us with the required documentation under applicable law (e.g., a tax number) that we determine to be sufficient to alleviate our obligation (if any) to withhold Taxes from payouts to you, we reserve the right to withhold payouts up to the tax-relevant amount as required by law, until resolution.
13.3 You understand that any appropriate governmental agency, department and/or authority ("Tax Authority") where your Accommodation is located may require Taxes to be collected from Guests or Hosts on Listing Fees, and to be remitted to the respective Tax Authority. The laws in jurisdictions may vary, but these Taxes may be required to be collected and remitted as a percentage of the Listing Fees set by Hosts, a set amount per day, or other variations, and are sometimes called "transient occupancy taxes," "hotel taxes," "lodging taxes," "city taxes," "room taxes" or "tourist taxes" ("Occupancy Taxes").
13.4 In certain jurisdictions, Shack may decide in its sole discretion to facilitate collection and remittance of Occupancy Taxes from or on behalf of Guests or Hosts, in accordance with these Terms ("Collection and Remittance") if such jurisdiction asserts Shack or Hosts have an Occupancy Tax collection and remittance obligation. In any jurisdiction in which we decide to facilitate direct Collection and Remittance, you hereby instruct and authorize Shack (via Shack Payments) to collect Occupancy Taxes from Guests on the Host's behalf at the time Listing Fees are collected, and to remit such Occupancy Taxes to the Tax Authority. In other jurisdictions Shack may decide in its sole discretion to collect Occupancy Taxes and remit such Taxes to eligible and qualifying Hosts, based on tax information supplied by the Host, for ultimate reporting and remittance by such Host to the Tax Authority (“Pass-Through Tax Feature”). Such Hosts using the Pass-Through Tax Feature will be solely responsible for informing Shack about the correct Occupancy Tax amount to be collected from the Guest in accordance with applicable law and directly remitting the Occupancy Taxes to the relevant Tax Authority. Shack
does not assume any liability for the failure of a participating Host to comply with any applicable tax reporting or remittance obligations. The amount of Occupancy Taxes, if any, collected and remitted by Shack will be visible to and separately stated to both Guests and Hosts on their respective transaction documents. Where Shack is facilitating Collection and Remittance, Hosts are not permitted to collect any Occupancy Taxes being collected by Shack relating to their Accommodations in that jurisdiction.
13.5 You agree that any claim or cause of action relating to Shack's facilitation of Collection and Remittance of Occupancy Taxes shall not extend to any supplier or vendor that may be used by Shack in connection with facilitation of Collection and Remittance, if any. Guests and Hosts agree that we may seek additional amounts from you in the event that the Taxes collected and/or remitted are insufficient to fully discharge your obligations to the Tax Authority, and agree that your sole remedy for Occupancy Taxes collected is a refund of Occupancy Taxes collected by Shack from the applicable Tax Authority in accordance with applicable procedures set by that Tax Authority.
13.6 Shack reserves the right, with prior notice to Hosts, to cease the Collection and Remittance in any jurisdiction for any reason at which point Hosts and Guests are once again solely responsible and liable for the collection and/or remittance of any and all Occupancy Taxes that may apply to Accommodations in that jurisdiction.
14. Prohibited Activities
14.1 You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Shack Platform. In connection with your use of the Shack Platform, you will not and will not assist or enable others to:
breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms, Policies or Standards;
use the Shack Platform or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Shack endorsement, partnership or otherwise misleads others as to your affiliation with Shack;
use the Shack Platform in connection with the distribution of unsolicited commercial messages ("spam");
offer, as a Host, any Accommodation that you do not yourself own or have permission to make available as a residential or other property through the Shack Platform;
unless Shack explicitly permits otherwise, book any Listing if you will not actually be using the Host Services yourself;
contact another Member for any purpose other than asking a question related to a your own booking, Listing, or the Member's use of the Shack Platform, including, but not limited to, recruiting or otherwise soliciting any Member to join third-party services, applications or websites, without our prior written approval;
use the Shack Platform to request, make or accept a booking independent of the Shack Platform, to circumvent any Service Fees or for any other reason;
request, accept or make any payment for Listing Fees outside of the Shack Platform or Shack Payments. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold Shack harmless from any liability for such payment;
discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior;
misuse or abuse any Listings or services associated with the Shack Open Homes program as determined by Shack in its sole discretion.
use, display, mirror or frame the Shack Platform or Collective Content, or any individual element within the Shack Platform, Shack's name, any Shack trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Shack Platform, without Shack's express written consent;
dilute, tarnish or otherwise harm the Shack brand in any way, including through unauthorized use of Collective Content, registering and/or using Shack or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Shack domains, trademarks, taglines, promotional campaigns or Collective Content;
use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Shack Platform for any purpose;
avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Shack or any of Shack's providers or any other third party to protect the Shack Platform;
attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Shack Platform;
take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Shack Platform;
export, re-export, import, or transfer the Application except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
violate or infringe anyone else’s rights or otherwise cause harm to anyone.
14.2 You acknowledge that Shack has no obligation to monitor the access to or use of the Shack Platform by any Member or to review, disable access to, or edit any Member Content, but has the right to do so to (i) operate, secure and improve the Shack Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Members’ compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to Member Content that it determines is harmful or objectionable; or (v) as otherwise set forth in these Terms. Members agree to cooperate with and assist Shack in good faith, and to provide Shack with such information and take such actions as may be reasonably requested by Shack with respect to any investigation undertaken by Shack or a representative of Shack regarding the use or abuse of the Shack Platform.
14.3 If you feel that any Member you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Shack by contacting us with your police station and report number (if available). You agree that any report you make will not obligate us to take any action (beyond that required by law, if any).
15. Term and Termination, Suspension and other Measures
15.1 This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or Shack terminate the Agreement in accordance with this provision.
15.2 You may terminate this Agreement at any time by sending us an email. If you cancel your Shack Account as a Host, any confirmed booking(s) will be automatically cancelled and your Guests will receive a full refund. If you cancel your Shack Account as a Guest, any confirmed booking(s) will be automatically cancelled and any refund will depend upon the terms of the Listing’s cancellation policy.
15.3 Without limiting our rights specified below, Shack may terminate this Agreement for convenience at any time by giving you thirty (30) days' notice via email to your registered email address.
15.4 Shack may immediately, without notice, terminate this Agreement and/or stop providing access to the Shack Platform if (i) you have materially breached your obligations under these Terms, the Payments Terms, our Policies or Standards, (ii) you have violated applicable laws, regulations or third party rights, or (iii) Shack believes in good faith that such action is reasonably necessary to protect the personal safety or property of Shack, its Members, or third parties (for example in the case of fraudulent behavior of a Member).
15.5 In addition, Shack may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, the Payments Terms, our Policies or Standards, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the Shack Account registration, Listing process or thereafter, (iv) you and/or your Listings or Host Services at any time fail to meet any applicable quality or eligibility criteria, (v) you have repeatedly received poor Ratings or Reviews or Shack otherwise becomes aware of or has received complaints about your performance or conduct, (vi) you have repeatedly cancelled confirmed bookings or failed to respond to booking requests without a valid reason, or (vii) Shack believes in good faith that such action is reasonably necessary to protect the personal safety or property of Shack, its Members, or third parties, or to prevent fraud or other illegal activity:
refuse to surface, delete or delay any Listings, Ratings, Reviews, or other Member Content;
cancel any pending or confirmed bookings;
limit your access to or use of the Shack Platform;
temporarily or permanently revoke any special status associated with your Shack Account;
temporarily or in case of severe or repeated offenses permanently suspend your Shack Account and stop providing access to the Shack Platform.
In case of non-material breaches and where appropriate, you will be given notice of any intended measure by Shack and an opportunity to resolve the issue to Shack reasonable satisfaction.
15.6 If we take any of the measures described above (i) we may refund your Guests in full for any and all confirmed bookings that have been cancelled, irrespective of preexisting cancellation policies, and (ii) you will not be entitled to any compensation for pending or confirmed bookings that were cancelled.
15.7 When this Agreement has been terminated, you are not entitled to a restoration of your Shack Account or any of your Member Content. If your access to or use of the Shack Platform has been limited or your Shack Account has been suspended or this Agreement has been terminated by us, you may not register a new Shack Account or access and use the Shack Platform through an Shack Account of another Member.
15.8 Sections 5 and 16 to 22 of these Terms shall survive any termination or expiration of this Agreement.
If you choose to use the Shack Platform or Collective Content, you do so voluntarily and at your sole risk. The Shack Platform and Collective Content is provided “as is”, without warranty of any kind, either express or implied.
You agree that you have had whatever opportunity you deem necessary to investigate the Shack Services, laws, rules, or regulations that may be applicable to your Listings and/or Host Services you are receiving and that you are not relying upon any statement of law or fact made by Shack relating to a Listing.
If we choose to conduct identity verification or background checks on any Member, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Member or guarantee that a Member will not engage in misconduct in the future.
You agree that some Experiences, Events, other Host Services, or the Group Payment Service may carry inherent risk, and by participating in such services, you choose to assume those risks voluntarily. For example, some Host Services may carry risk of illness, bodily injury, disability, or death, and you freely and willfully assume those risks by choosing to participate in those Host Services. You assume full responsibility for the choices you make before, during and after your participation in a Host Service or the Group Payment Service. If you are bringing a minor as an additional guest, you are solely responsible for the supervision of that minor throughout the duration of your Host Service and to the maximum extent permitted by law, you agree to release and hold harmless Shack from all liabilities and claims that arise in any way from any injury, death, loss or harm that occurs to that minor during the Host Service or in any way related to your Host Service.
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.
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 Shack Platform and Collective Content, your publishing or booking of any Listing via the Shack Platform, your stay at any Accommodation, participation in any Experience or Event or use of any other Host Service, participation in the Group Payment Service, or any other interaction you have with other Members whether in person or online remains with you. Neither Shack nor any other party involved in creating, producing, or delivering the Shack Platform or Collective Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the Shack Platform or Collective Content, (iii) from any communications, interactions or meetings with other Members or other persons with whom you communicate, interact or meet with as a result of your use of the Shack Platform, or (iv) from your publishing or booking of a Listing, including the provision or use of a Listing’s Host Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Shack has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Except for our obligations to pay amounts to applicable Hosts pursuant to these Terms or an approved payment request under the Shack Host Guarantee or Japan Host Insurance, in no event will Shack's aggregate liability arising out of or in connection with these Terms and your use of the Shack Platform including, but not limited to, from your publishing or booking of any Listings via the Shack Platform, or from the use of or inability to use the Shack Platform or Collective Content and in connection with any Accommodation, Experiences, Event, other Host Service, the Group Payment Service, or interactions with any other Members, exceed the amounts you have paid or owe for bookings via the Shack Platform as a Guest in the twelve (12) month period prior to the event giving rise to the liability, or if you are a Host, the amounts paid by Shack to you in the twelve (12) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Shack and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. If you reside outside of the U.S., this does not affect Shack's liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.
To the maximum extent permitted by applicable law, you agree to release, defend (at Shack's option), indemnify, and hold Shack and its affiliates and subsidiaries, including but not limited to, Shack Payments, 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 (i) your breach of these Terms or our Policies or Standards, (ii) your improper use of the Shack Platform or any Shack Services, (iii) your interaction with any Member, stay at an Accommodation, participation in an Experience, Event or other Host Service, participation in the Group Payment Service, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, stay, participation or use, (iv) Shack's Collection and Remittance of Occupancy Taxes, or (v) your breach of any laws, regulations or third party rights.
19. Dispute Resolution and Arbitration Agreement
19.1 This Dispute Resolution and Arbitration Agreement shall apply if your (i) country of residence or establishment is in the United States; or (ii) your country of residence or establishment is not in the United States, but bring any claim against Shack in the United States (to the extent not in conflict with Section 21).
19.2 Overview of Dispute Resolution Process. Shack is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom Section 19.1 applies: (1) an informal negotiation directly with Shack's customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section 19 and except as provided in Section 19.6). Specifically, the Consumer Arbitration Rules provide:
Claims can be filed with AAA online (www.adr.org);
Arbitrators must be neutral and no party may unilaterally select an arbitrator;
Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
Parties retain the right to seek relief in small claims court for certain claims, at their option;
The initial filing fee for the consumer is capped at $200;
The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
19.3 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Shack each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact Shack's customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
19.4 Agreement to Arbitrate. You and Shack mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or to the use of the Shack Platform, the Host Services, the Group Payment Service, or the Collective Content (collectively, “Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Shack agree that the arbitrator will decide that issue.
19.5 Exceptions to Arbitration Agreement. You and Shack each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
19.6 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
19.7 Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Shack agrees that any required arbitration hearing may be conducted, at your option, (a) in the county where you reside; (b) in San Francisco County; (c) in any other location to which you and Shack both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
19.8 Modification of AAA Rules - Attorney’s Fees and Costs. You and Shack agree that Shack will be responsible for payment of the balance of any initial filing fee under the AAA Rules in excess of $200 for claims of $75,000 or less. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the AAA rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, Shack agrees it will not seek, and hereby waives all rights it may have under applicable law or the AAA Rules, to recover attorneys’ fees and expenses if it prevails in arbitration.
19.9 Arbitrator’s Decision. 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 with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
19.10 Jury Trial Waiver. You and Shack acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
19.11 No Class Actions or Representative Proceedings. You and Shack acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding as to all Disputes. Further, unless you and Shack both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this Section 19.11 is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in court. If the “private attorney general action” waiver or the “representative proceeding” waiver in this Section 19.11 is held unenforceable with respect to any Dispute, those waivers may be severed from this Arbitration Agreement and you and Shack agree that any private attorney general claims and representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitrable claims in the Dispute in individual arbitration.
19.12 Severability. Except as provided in Section 19.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
19.13 Changes. Notwithstanding the provisions of Section 3 (“Modification of these Terms”), if Shack changes this Section 19 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Shack's email to you notifying you of such change. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and Shack (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and Shack.
19.14 Survival. Except as provided in Section 19.12 and subject to Section 15.8, this Section 19 will survive any termination of these Terms and will continue to apply even if you stop using the Shack Platform or terminate your Shack Account.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Shack Platform (“Feedback“). You may submit Feedback by emailing us, through the “Contact” section of the Shack Platform, or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
21. Applicable Law and Jurisdiction
21.1 If your country of residence or establishment is the United States, these Terms will be interpreted in accordance with the laws of the State of Florida and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 19 must be brought in state or federal court in Fort Myers, Florida, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Fort Myers, Florida.
21.2 If your country of residence or establishment is China these Terms will be interpreted in accordance with the laws of China (“China Laws”). Any dispute arising from or in connection with this Agreement shall be submitted to the China International Economic and Trade Arbitration Commission (CIETAC) for arbitration in Beijing which shall be conducted in accordance with CIETAC’s arbitration rules in effect at the time of applying for arbitration, provided that this section shall not be construed to limit any rights which Shack may have to apply to any court of competent jurisdiction for an order requiring you to perform or be prohibited from performing certain acts and other provisional relief permitted under China Laws or any other laws that may apply to you. The arbitration proceedings shall be conducted in English. The arbitral award rendered is final and binding upon both parties.
21.3 If your country of residence or establishment is outside of the United States and China, these Terms will be interpreted in accordance with Irish law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. The choice of law does not impact your rights as a consumer according to the consumer protection regulations of your country of residence. If you are acting as a consumer, you agree to submit to the non-exclusive jurisdiction of the Irish courts. Judicial proceedings that you are able to bring against us arising from or in connection with these Terms may only be brought in a court located in Ireland or a court with jurisdiction in your place of residence. If Shack wishes to enforce any of its rights against you as a consumer, we may do so only in the courts of the jurisdiction in which you are a resident. If you are acting as a business, you agree to submit to the exclusive jurisdiction of the Irish courts.
22. General Provisions
22.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between Shack and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Shack and you in relation to the access to and use of the Shack Platform.
22.2 No joint venture, partnership, employment, or agency relationship exists between you and Shack as a result of this Agreement or your use of the Shack Platform.
22.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
22.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
22.5 Shack's failure to enforce any right or provision in these Terms 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 these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
22.6 You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without Shack's prior written consent. Shack may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
22.7 Unless specified otherwise, any notices or other communications to Members permitted or required under this Agreement, will be provided electronically and given by Shack via email, Shack Platform notification, or messaging service (including SMS and WeChat). If your booking is in respect of a Listing in Japan, you agree and acknowledge that such notifications via electronic means in lieu of a written statement, satisfies Shack's obligations under Article 59 Paragraph 1 of the Japanese Housing Accommodation Business Act.
22.8 If you have any questions about these Terms please email us.