MAKOMI USER AGREEMENT
LAST UPDATED April 14, 2019
Makomi, Inc. (hereafter “MetroButler”, “Makomi” , “we” , “us” , “our”), a Delaware Corporation, provides services to individuals or entities who have accommodations available to rent, as well as certain services to guests seeking to rent such accommodations (collectively, “Services”). Makomi’s Services are accessible through Makomi’s website, www.Makomi.com (including that website’s directories, subdirectories, subdomains, mobile or app versions, linked pages, application programming interfaces, and any other websites and access points through which Makomi makes its Services available – collectively the “Site”). Makomi’s Services may also be made available, in whole or in part, over the phone and in the above-referenced accommodations themselves. Reference to the Services includes the use of the Site.
By using any of the Services, you agree to comply with, and be legally bound by, the terms and conditions of these Terms of Service (“Terms”, “Agreement”). These Terms govern your access to and use of the Services (as further defined below) and constitute a binding legal agreement between you and Makomi. Any access to, or use of, the Services by anyone under the age of eighteen (18) is expressly prohibited.
“Accommodation” means any residential listing or other property that may be booked in connection with the Services.
“Content” means any content – including text, graphics, images, music, software, audio, video, information, source code, or other materials – provided by Users, Makomi, or licensed third parties, that is available through the Services.
“Guest” means a User who requests a booking at, books, or stays at an Accommodation and is not the Homeowner of such Accommodation.
“HomeOwner” or “Host” means a User who enlists Makomi’s Services or owns or controls an Accommodation.
“Listing” means a Host’s Accommodation made available for rental in connection with the Services.
“Services” means services Makomi provides in assisting HomeOwners or Hosts with renting their homes. Such services may include, inter alia, listing creation or improvement on one or more OTAs, channels, or listing platforms; profile creation or improvement on one or more OTAs, channels, or listing platforms; listing distribution to more than one channel; cleaner management; maintenance management; guest communication; payment processing; claims management; supply restocking; listing provisioning; laundry; or guest screening. Please be advised that Makomi reserves the right, without limitation, to use third-parties and third-party systems in the provision of Services, and that your information may be shared with such third-parties as Makomi deems necessary or appropriate for the provision of such Services.
“Tax” means any sales tax, value added taxes (VAT), goods and services taxes (GST), personal or corporate income taxes, or any other municipal, state, or federal tax or withholding.
“User” means a person who uses Makomi’s Services.
“User Content” means all Content that a User posts, uploads, publishes, submits, or transmits to be made available through the Services.
Certain areas of the Site or Services may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. In the event of such a conflict between any such terms and these Terms, the former terms and conditions will take precedence with respect to your use of or access to those specific areas or Services.
Makomi reserves the right, in its sole discretion, to modify the Services or to modify these Terms, including fees, at any time and without prior notice. Should Makomi modify these Terms, we will post the modification on the Site or provide you with notice of the modification. By continuing to access or use the Services after we have posted a modification or have provided you with notice of the modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to immediately cease using the Services.
You may register to create an account with Makomi via the Site. We will create your Makomi account for your use of the Services based on your personal information. You agree to provide accurate, current, and complete information and Content during the registration process and to update such information to keep it accurate, current, and complete. Makomi reserves the right to suspend or terminate your Makomi Account in our sole discretion. You are responsible for safeguarding your password, and you agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Makomi Account, whether or not you have authorized such activities or actions. You further agree to notify Makomi immediately of any unauthorized use of your Makomi Account.
Limitation of Liability
Makomi is not an owner of any of the Accommodations. You understand and agree that Makomi is a service provider and is not a Host, real estate broker, agent, escrow company, insurer, remarketer, property manager, or concierge. Makomi enters into agreements with Hosts and provides Services to Guests and to HomeOwners, either directly or via third-party service providers, though Makomi has no direct control over the conduct of parties that are not Makomi employees. Accordingly, you agree that Makomi is not responsible for any liability related to any Services or Accommodations arising out of or in connection with the conduct of the HomeOwner, any Guest, or any third-party. By using the Services, you agree that any legal remedy or liability that you seek to obtain for acts or omissions of Users or third parties will be limited to claims against such particular Users or third parties and agree not to attempt to impose liability on, or seek any legal remedy from, Makomi with respect to acts or omissions of such users or third-parties.
You acknowledge and agree that, to the maximum extent permitted by law, any and all risk arising out of or in connection with your access to and use of the Services, your Listing, or the use or booking of any Accommodation remains solely with you. Neither Makomi nor any other party involved in creating, producing, or delivering the Site, application, Services, or any content connected thereto will be liable for any incidental, consequential, special, or exemplary damages, including lost profits, loss of data, loss of goodwill, service interruption, computer dagage, system failure, or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and whether or not Makomi has been informed of the possibility of such damage.
Except for our obligation to pay amounts to applicable HomeOwners pursuant to these Terms, in no event will Makomi’s aggregate liability arising out of or in connection with these Terms and your use of the Services exceed the amounts you have paid or own for bookings in connection with the Services in the twelve (12) month period prior to the event giving rise to any alleged 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 Makomi and you.
Makomi makes no effort to review any User Content for any purpose, including, inter alia, for accuracy, legality, or non-infringement. Makomi is not responsible for any User Content, and you agree that any User Content you provide to Makomi may be used lawfully and without restriction by you and Makomi.
You understand, acknowledge, and agree that Makomi is entitled to service fees from HomeOwners and Guests in consideration for the Services. Makomi’s default fee from Hosts is the greater of 25% of all gross expected revenue from a booking including any upsells, extensions, and increases, exclusive of any reductions due to cancellation or modification fees, penalties, or refunds. Where applicable, Taxes may also be charged in addition to the Service fees, which Makomi may remit to applicable taxing authorities for the Accommodation or may remit to the Host for the Host to pay such authorities directly. Balances after Makomi’s deductions will be remitted by Makomi to HomeOwners as set forth in the section entitled “Payment Processing” herein. For certain specific services (such as cleaning), Makomi will collect service fees from Guests or HomeOwners, as applicable, and may remit balances due to the local service providers for such services directly. Please note that for any payments by Makomi in currencies other than U.S. dollars, Makomi may deduct foreign currency processing costs from such payments. Except as otherwise provided herein, Service fees are non-refundable, and any overages for specific line-item services (such as cleaning) shall vest in and remain the property of Makomi. Service fees are set by Makomi and are non-negotiable.
You agree that any payment collected by Makomi or an applicable channel on your behalf shall be transferred to Makomi, and that Makomi shall thereafter deduct its fees, as well as any applicable costs, expenses, or reimbursements, including payment transfer and processing fees incurred by Makomi in connection with your Accommodation, Listing, or Account. Makomi shall thereafter remit payment to you of any remaining balance within the later of fourteen (14) business days or with seven (7) days following the final disposition of any open claims in connection with the payment, regardless of source. Please note that some claims, such as credit card fee disputes, Airbnb claims, or Makomi internal claims, may arise after a payout. In the event that funds from a past reservation are clawed back or subject future payouts to offset, Makomi may, in its sole discretion, retain corresponding amounts and offset them from any of your future payouts. You authorize Makomi to make any expenditures necessary on your behalf in the interest of the safety, preservation, habitability, or hospitability of any of your listings as Makomi deems, in its sole discretion, necessary or appropriate, including, without limitation, furnishings, supplies, and incidentals including, inter alia, coffee, toilet paper, toiletries, and cleaning products. You agree that you are liable for any such expenditures in full, and you authorize Makomi to deduct any such expenses from any of your payouts. In the event of a shortfall under which any of your payouts is insufficient to cover Service-related expenses as set forth in this paragraph, you agree to promptly pay Makomi any shortfall amount requested upon request and in any event, no later than seven (7) business days following a request from Makomi for any such payment. Please be advised that certain channels and payment processors, including Airbnb and Stripe, may, in certain circumstances, withhold payouts at their sole discretion for extended periods, including for several weeks following the completion of a first reservation completed at a listing on Airbnb. In order to receive payment, you agree that you will furnish Makomi with, and will keep up to date, complete domestic payout information, including routing and account numbers for a U.S. based account at a major U.S. based bank, as well as the name of that bank, and the name of the account holder. The payout timetables set forth above shall not begin tolling until you have provided such information to Makomi and have provided Makomi with actual notice of the same. In the event that any of your payout or bank information on file with Makomi becomes inactive or out-of-date, the payout timetables set forth above shall be suspended during that time and shall restart upon your provision to Makomi of accurate, active, and up-to-date information with actual notice to Makomi of the same.
You understand and agree that Makomi incurs substantial fees in the onboarding of your Account and each in the creation or modification of your Profile and each Listing connected therewith. Accordingly, you agree that Makomi is entitled to a setup fee of $250.00 per profile and $250.00 per listing for which Makomi provides any assistance or work. Such fees may be waived by Makomi, in its sole discretion, in accordance with the waiver provisions of these Terms. In addition to setup and onboarding fees, you understand and agree that cancellations of reservations can have a severely detrimental effect on the viability of your Listing, Accommodation, and Profile, and that such detrimental effects can also harm Makomi. Accordingly, you agree that for any cancellation you request or effect, including by asking Makomi to cancel a reservation on your behalf, you will pay Makomi a fee of $250.00 per cancellation, as either a deduction or offset from any future payouts, or upon request from Makomi, and in any event, no later than seven (7) days from such request, by cash, credit card, or any other such reasonable form requested by Makomi. Should any fees inhere in any such payment, such as credit card processing fees, you agree that you will be solely liable for the payment of such fees and shall include them in any related payment to Makomi.
You understand and agree that you are solely responsible for compliance with any and all laws, rules and governmental regulations that may apply to your use of the Services. In connection with your use of our Services, you may not and you agree that you will not:
Violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and Tax regulations;
Use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Site, Application, Services or Content;
Use the Services for any commercial or other purposes that are not expressly permitted by these Terms;
Copy, store or otherwise access any information contained in the Services for purposes not expressly permitted by these Terms;
Infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
Offer, as a HomeOwner, any Accommodations that you do not yourself own or have permission to rent as a residential or other property;
Offer, as a HomeOwner, any Accommodation that may not be rented or subleased pursuant to the terms and conditions of an agreement with a third party, including, but not limited to, a property rental agreement;
Recruit or otherwise solicit any HomeOwner or other User to join third party services or websites that are competitive to Makomi, without Makomi’s prior written approval;
Attempt to circumvent Makomi’s fees by soliciting third party service providers that you know or have reason to know are utilized by Makomi in providing the Services;
Use the Services to find a HomeOwner or Guest and then complete a booking of an Accommodation transaction independent of the Services in order to circumvent the obligation to pay any fees related to Makomi’s provision of the Services;
Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
Use, display, mirror or frame the Services, or any individual element within the Services, Makomi’s name, any Makomi trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without Makomi’s express written consent;
Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services; or advocate, encourage, or assist any third party in doing any of the foregoing.
Makomi will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Makomi reserves the right, at any time and without prior notice, to remove or disable access to any Content that Makomi, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms, or otherwise harmful to the Company, Site, or Services.
The Services (and Content) are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Services, including all associated intellectual property rights, are the exclusive property of Makomi and its licensors. You will not remove, misappropriate, alter, or obscure any copyright, trademark, service mark, trade secret, know how, show how, or other proprietary rights incorporated in or accompanying the Services. Notwithstanding the foregoing, you understand that agree that any Accommodation or Listing for which you request Makomi’s Services belongs to you, and you assume and agree to bear all risk associated with the listing of any such Listing or Accommodation. In the event of termination of the professional relationship between you and Makomi, whether initiated by you or by Makomi, you agree that Makomi may cancel all current and future reservations associated with any of your Listings or Profiles and may close, terminate, or delete any such listings without any further obligations to you. Should you desire to retain any such reservations, or should you desire to purchase any proprietary Makomi content, including photos, copy, or descriptions, please contact firstname.lastname@example.org to discuss terms. Any attempts by you to use any Makomi generated content without Makomi’s express written authorization are expressly prohibited.
Makomi Content and User Content License
Subject to your compliance with the terms and conditions of these Terms, Makomi grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Content solely for your personal and noncommercial purposes and (ii) access and view any User Content to which you are permitted access, solely for your personal and noncommercial purposes. You have no right to sublicense the license rights granted in this section. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Makomi or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Services, you hereby grant to Makomi a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access and view such User Content on, through, or by means of the Services. Makomi does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content. You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to Makomi the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Makomi’s use of the User Content (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. Notwithstanding the foregoing, should you furnish Makomi with photos to be used in connection with any Listing or for any other purpose, you agree that Makomi is permitted to edit such photos, and the edited result shall constitute a derivative work that you agree is the sole and exclusive property of Makomi and for which you agree that you forfeit any copyright claims against Makomi, whether past, present, or future, threatened, or actual.
To access certain Services via the Site, we may permit or require you to register for a Makomi user account. If you choose to register, you agree to provide us with true, accurate, current, and complete information, and to update such information if it changes. You agree (1) to safeguard your Makomi login identification and password; (2) not to disclose your login identification or password to any third party without our express written permission; (3) to take sole responsibility for any activity taken under your Makomi account, whether or not you specifically authorized the activity; and (4) to notify us immediately and select new a login identification and password if you believe your password for a Makomi account or an email account you have used to register with Makomi has been compromised, or if we notify you that we suspect unauthorized activity on your account. We reserve the right to terminate any user account, at any time, in our sole discretion.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Makomi used herein are trademarks or registered trademarks of Makomi. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (“Feedback”). You may submit Feedback by emailing us at email@example.com.
You may cancel your Makomi Account at any time via the “Cancel Account” feature of the Services or by sending an email to firstname.lastname@example.org. If you cancel your Makomi Account you will still be obligated to pay your financial responsibilities under this Agreement. Please note that if your Makomi Account is cancelled, we do not have an obligation to delete or return to you any User Content you have posted to the Services, including, but not limited to, any reviews or Feedback.
IF YOU CHOOSE TO USE THE SERVICES, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT MAKOMI DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY USER, INCLUDING, BUT NOT LIMITED TO, GUESTS AND HOMEOWNERS. THE SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, MAKOMI EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. MAKOMI MAKES NO WARRANTY THAT THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY ACCOMMODATIONS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. MAKOMI MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, ACCOMMODATIONS, THE SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MAKOMI OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
You agree to release, defend, indemnify, and hold Makomi and its affiliates and subsidiaries, and their officers, directors, employees and agents (specifically including HomeOwners), harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Application, Services, or Content or your violation of these Terms; (b) your User Content; (c) your (i) interaction with any User, (ii) booking of an Accommodation, (iii) creation of a Listing or (iv) the use, condition or rental of an Accommodation by you, including, but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a rental, booking or use of a Accommodation.
If any term of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
These Terms constitute the entire and exclusive understanding and agreement between Makomi and you regarding the Services and any bookings or Listings of Accommodations made via the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Makomi and you regarding the Services.
You may not assign or transfer these Terms, by operation of law or otherwise, without Makomi’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Makomi may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
We may change, add to, or otherwise modify these Terms in the future without prior notice. We will list the date of the last revision to these Terms at the top of this page, and any revisions will take effect upon posting. You agree that your continued use of or access to the Site or Services after any revision constitutes your acceptance of the revised version of these Terms. Be sure to visit this page periodically to review the most current version of these Terms.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Makomi (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Any notices or demands made to or of Makomi shall be sent to Makomi, ATTN: Legal, 137 W. 25th Street, Fl. 11, New York, NY 10001.
Notification of Copyright Infringement
Makomi respects the intellectual property rights of others and expects its users to do the same. Makomi may, in appropriate circumstances and at its discretion, disable and/or terminate the account or access of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Makomi will respond expeditiously to claims of copyright infringement committed using the Services, that are reported to Makomi’s Designated Copyright Agent, identified in the sample notice below.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site and Application by completing the following DMCA Notice of Alleged Infringement and delivering it to Makomi’s Designated Copyright Agent. Upon receipt of the Notice as described below, Makomi will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Site and Services.
DMCA Notice of Alleged Infringement ("Notice")
Identify the copyrighted work that you claim has been infringed, or - if multiple copyrighted works are covered by this Notice - you will provide a comprehensive list of the copyrighted works that you claim have been infringed.
Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Site and Application where such material may be found.
Provide your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:
"I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."
"I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Airbnb’s Designated Copyright Agent:
137 W. 25th Street, Fl. 11
New York, NY 10001
Governing Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of New York and the United States of America, without regard to conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in New York County, New York State, or a United States District Court located in New York County, New York State, as the case may be.
The failure of Makomi to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms, please contact Makomi at email@example.com.