Vacation Rental Covid-19 Host Cancellation Policy Campaign Terms & Conditions
LAST UPDATED: 6-5-20
Thank you for working with FairShake. We are looking forward to helping you enforce your rights against vacation rental companies. It is important that you read and understand these terms, which govern your relationship with FairShake Inc.’s, and any of its affiliates’ (collectively “FairShake”) and your access to FairShake’s services, software and website (“Services”).
Who is who?
- These terms and conditions are between you, the person submitting a claim and using the Services (“you”) and FairShake. You understand that FairShake is a platform that helps you enforce your legal rights against a company (a “Counterparty”) regarding a specific dispute (“Claim”). FairShake is not an attorney or a law firm and it does not directly provide legal advice or legal services to you or anyone else. By using the Services you may be waiving or forfeiting other options available to you related to your Claim.
What will FairShake do?
- Prepare and file all paperwork: FairShake will fill out and deliver or file any forms required to begin the consumer arbitration process. This usually includes a notice of dispute that’s mailed directly to the Counterparty and a “demand for arbitration” that’s filed with the American Arbitration Association.
- Pay for your legal argument: FairShake will arrange pay for certain limited scope legal services, including, at minimum, the drafting of one brief supporting your position in the arbitration.
- Pay for your hearing: FairShake will pay the $200 filing fee required to submit a claim to the American Arbitration Association, subject to the Bellwether Process defined below.
- Support you through the process: FairShake will provide you with updates and other support, information, encouragement and guidance concerning the arbitration process, including SMS and email access to a dedicated customer service representative.
- Connect you with attorneys, If necessary: FairShake will identify and arrange for an attorney to represent you if FairShake believes it is required for a successful outcome and is justified based on a cost-benefit analysis. You can hire your own attorney at any point in the process.
- FairShake is not responsible for whether the claim is successfully resolved or for how long the process takes.
What are your obligations?
- Grant FairShake’s Stake: You grant FairShake a Stake in your Claim and promise to pay FairShake the amount of that Stake if your Claim is successful either because the Counterparty offers you some compensation to stop pursuing the Claim or you receive an award from an arbitrator or judge (see About The Money below for more details) and the amount of the Stake is not directly paid to FairShake by the Counterparty.
- Provide accurate info: You promise that the information you give to FairShake will be accurate, true and it will not be misleading or false in any way, and that you take all responsibility for the information that you submit in your claim or provide to the Counterparty through Fairshake.
- Be responsive: You agree to reply to emails or texts from FairShake within a reasonable time, and to take reasonable steps to help FairShake pursue your claim (including, in rare cases, attending one or more meetings by phone). If FairShake does not hear from you for 4 weeks following a request for information or help, it can cancel your Claim.
- Notify FairShake of contacts: You agree to promptly notify FairShake of any developments in your Claim, and forward any emails or other communications from the Counterparty or their representatives, including settlement offers, to email@example.com if FairShake was not included on the distribution.
- Authorize FairShake to process your claim: You authorize FairShake to send communications to the Counterparty and the American Arbitration Association on your behalf. FairShake does this as a scrivener and delivery/filing service and not as your attorney.
- Authorize FairShake to contact you: You authorize FairShake to send you text messages, call you using any form of technology (including an autodialer or other computerized tool) and contact you in any other way using your phone number or email address. In addition to contacting me with information about my claim(s), you authorize FairShake to contact you with offers for services or other solicitations. You may at any time (including prior to the submission of this form) deny or revoke your consent to receive calls, messages or texts regarding offers for services or other solicitations by sending an email containing your name and phone number to firstname.lastname@example.org.
About the Money…
- By accepting this agreement, you are assigning to FairShake a 15% stake in any proceeds from any settlement or judgement arising from your Claim (the “Stake”). This means that 15% of any cash, or the market value of any other consideration, will belong to FairShake upon a settlement or judgement. For example, if you settle for $1000, FairShake’s Stake will be $150.
- The Counterparty may pay the amount of the Stake directly to FairShake upon a settlement or judgement. However, if they do not, you agree to pay FairShake the full amount of the Stake within 30 days of receiving your payment from the Counterparty.
- If your assignment of the Stake to FairShake is deemed unenforceable for any reason, you agree that you will still have a contractual obligation to pay FairShake 15% of the monetary value of any proceeds from a settlement or other disposition of your Claim (the “Alternative Payment Obligation”).
- If (a) FairShake has paid on your behalf, or reimbursed you for the payment of, your $200 filing fee and (b) the amount of the Stake (or the Alternative Payment Obligation) is lower than $200, then you agree to pay FairShake $200 or the amount of your settlement or award, whichever is lower, instead of the Stake or the Alternative Payment Obligation.
What happens after you submit your Claim?
- FairShake notifies the Counterparty: When you submit your claim, FairShake will immediately notify the Counterparty in writing of the dispute and give them 30 days to resolve the dispute through good faith negotiations prior to the filing of your arbitration. This negotiation period is required in your contract with the Counterparty.
- FairShake files your Claim: If the Counterparty does not resolve your Claim to your satisfaction within 30 days of receiving notice of your dispute, we will invite you to escalate the Claim by filing it with the American Arbitration Association. We will not automatically file your Claim – you must tell us to take that step.
- FairShake pays the filing fee: If more than 100 Counterparty vacation rental hosts have signed up to the terms of this agreement, FairShake will pay the $200 consumer arbitration filing fee for the first 100 Counterparty vacation rental hosts who instruct us to escalate their claims to arbitration. After that point, FairShake will only be obligated to pay additional filing fees on your behalf once at least 20 of the first 100 Claims have been resolved in the claimant’s favor by settlement or judgement (the “Bellwether Threshold”). If you choose to escalate your claim after FairShake has already paid for 100 Claims’ filing fees, but prior to the Bellwether Threshold being met, you may pay your own filing fee and FairShake will reimburse you for that filing fee promptly after the Bellwether Threshold is met. This is called the “Bellwether Process”.
- FairShake arranges for an attorney, if necessary: If FairShake determines at any point that full legal representation would be rational for the pursuit of your Claim, FairShake will identify an attorney or law firm and negotiate terms of representation. FairShake will then give you the option of engaging the attorney or law firm on those terms. You may independently hire your own attorney or law firm at any time; however, FairShake will still be entitled to its Stake upon the successful settlement or disposition of your claim, and you will continue to be bound by the other obligations in this agreement.
- The arbitration proceeding takes place: FairShake will walk you through the procedural steps of the arbitration process, and will locate and hire an attorney to write a brief supporting your Claim. Most Claims can be resolved through written briefs alone, and will not require any significant participation or time commitment from you. If an arbitration hearing is required, it will be held telephonically.
Liabilities, indemnities and other important stuff
Read this section carefully – it affects your important rights as a consumer and citizen.
FairShake’s interests are aligned with yours, and FairShake is dedicated to successfully pursuing your claim. However, if anything goes wrong, the following terms will apply to a dispute between you and FairShake.
You MUST read this section carefully. It affects your rights.
- BINDING ARBITRATION
- FairShake is an arbitration-focused company, and we believe that arbitration can provide consumers with an efficient and cost-effective way of resolving disputes when responsibly used. Any Dispute (as defined below) involving you and us shall be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court.
- Definitions: This Arbitration Provision shall be broadly interpreted. “Dispute” means any claim or controversy related to us or our relationship, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before this or any prior Agreement; (3) claims that arise after the expiration or termination of this Agreement, and (4) claims that are the subject of purported class action litigation.
- Opt Out: You can opt out of this Arbitration Provision at any time within 30 days of your first use of any FairShake product or service by sending an email containing your name, email address and phone number (which must match the information on your FairShake account, if any) to email@example.com. The email should clearly state that you wish to opt out of the Arbitration Provision in our Terms and Conditions.
- How To Start An Arbitration. You can start an arbitration proceeding through the American Arbitration Association (“AAA”) at www.adr.org. You must send all arbitration-related notices to us at the following address: FairShake Inc., 2323 Broadway, Oakland CA 94612.
- Right to Sue in Small Claims Court: Notwithstanding anything in this Arbitration Provision to the contrary, either you or we may elect to have an action heard in a small claims court that has appropriate jurisdiction over the matter and parties. This clause is not intended to constitute an acceptance of any particular venue, or to subject FairShake to personal jurisdiction in any court.
- Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by the AAA pursuant to its Consumer Arbitration Rules (the “AAA Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify us about your Dispute. If there is a conflict between this Arbitration Provision and the AAA rules, this Arbitration Provision shall govern. If the AAA will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the AAA Consumer Arbitration Rules. A single arbitrator will resolve the Dispute. Unless you and we agree otherwise, any arbitration hearing will take place at a location convenient to both of us. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
- Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL) OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THIS WAIVER OF CLASS ACTIONS AND COLLECTIVE RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT. THE REMAINING PORTIONS OF THIS ARBITRATION PROVISION ARE NOT ESSENTIAL PARTS OF THIS ARBITRATION PROVISION AND CAN BE SEVERED FROM IT BY A COURT OF COMPETENT JURISDICTION.
- Arbitral Fees and Costs. If your claim seeks more than $75,000 in the aggregate, the payment of the AAA’s fees and costs will be governed by the AAA rules. If your claims seek less than $75,000 in the aggregate, the payment of the AAA’s fees and costs will be our responsibility. However, if the arbitrator finds that your Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the AAA’s fees and costs shall be governed by the AAA Rules and you shall reimburse us for all fees and costs that were your obligation to pay under the AAA Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Arbitration Provision to the contrary, we will pay all fees and costs that we are required by law to pay
- Survival. This Arbitration Provision shall survive the termination of your Service(s) with us.
- You agree to use the Services at your own risk. The information, software, products, and services made available through FairShake or its affiliates may include inaccuracies or typographical errors. FairShake and/or its suppliers may at any time make improvements or changes to FairShake’s Services. Information received via FairShake should not be relied upon for personal, legal, or financial decisions. you will consult an appropriate professional for specific advice tailored to your situation.
- TO THE FULLEST EXTENT PERMITTED BY LAW, FAIRSHAKE AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES. THE SERVICES ARE PROVIDED “AS IS.” FAIRSHAKE ALSO DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. INFORMATION AND OPINIONS RECEIVED VIA THE WEBSITE OR FAIRSHAKE’S COMMUNICATIONS, OR ITS AGENT’S OR EMPLOYEES COMMUNICATIONS,WITH you SHOULD NOT BE RELIED UPON FOR PERSONAL, LEGAL OR FINANCIAL DECISIONS AND you WILL CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.
- TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FAIRSHAKE, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT FAIRSHAKE HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- TO THE FULLEST EXTENT PERMITTED BY LAW, FAIRSHAKE’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES SHALL IN NO EVENT EXCEED THE GREATER OF $500 OR THE AMOUNT PAID BY you TO FAIRSHAKE FOR THE 12 MONTHS PRECEDING THE SERVICES IN QUESTION, WHICHEVER IS LOWER.
Ok that bit is over, sorry about all the words.
How do we end this agreement?
- This agreement will remain in full force and effect until it is terminated by the mutual agreement in a written document signed by both parties.
- Any indemnity is independent and survives termination of the terms and conditions. Any other term by its nature intended to survive termination of the terms and conditions survives that termination, including the ‘My liabilities, indemnities and other important stuff’, ‘How do we end this agreement?’ and ‘Extra stuff’ sections.
- You understand and agree that when you submit a claim through FairShake it will send communications that are drafted by you to the Counterparty on your behalf. You understand that FairShake does this as an intermediary and not as your agent and that FairShake takes no responsibility for the content of those communications or their accuracy.
- You understand that you are giving FairShake your phone number when you sign up for its services and you authorize FairShake to send you text messages and web-based messenger messages, call you using any form of technology (including an autodialer or other computerized tool) and contact you in any other way using your phone number. You represent that the phone number that you are submitting is owned by you and you agree to indemnify FairShake for any damages that FairShake incurs as a result of your submission of a phone number that is not owned by you. In addition to contacting you with information about your Claim(s), FairShake may contact you with offers for services or other solicitations at the number you provide and using any of the technology described above. You understand that you may at any time (including prior to the submission of this form) deny or revoke your consent to receive calls, messages or texts regarding offers for services or other solicitations by sending an email containing your name and phone number to firstname.lastname@example.org.
- You represent that you are not a citizen of the European Union and will not become a European Union citizen while you are bound under these terms and conditions. If you become a European Union citizen you will immediately notify FairShake.
- You may only use our website for purposes that are marketed, displayed, advertised or expressly permitted by FairShake. The following are not permitted: attempting to gain access to non-public parts of FairShake and scraping images or content (using a computer or otherwise) for use on another website or for another business service.
- You are solely responsible for protecting your own account password and other account information.
- A notice under these terms and conditions must be in writing, in English and signed by a person duly authorised by the sender; and hand delivered, sent by prepaid post or email:
- If to you, at the address that you provide to FairShake or your email address.
- If to FairShake, at 2323 Broadway, Oakland CA 94612.
- A notice that follows the instructions in this agreement takes effect 2 days after sending, unless the receiver proves that the Notice was not received by the person it was addressed to.
- You agree that FairShake may change its terms and conditions and this Agreement from time to time by updating the terms and conditions on its website.
- These terms and conditions are the entire agreement between FairShake and you in connection with its subject matter and supersedes all previous agreements or understandings between me and FairShake in connection with its subject matter.
- A term or part of a term of these terms and conditions that is illegal or unenforceable may be severed from the terms and conditions and the remaining terms or parts of the terms of the agreement will continue in force.
- Except where the agreement expressly states otherwise, the agreement does not create a relationship of employment, trust, agency or partnership between me and FairShake or its personnel.
- A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
- Assignment and novation
- You must obtain the prior written approval of FairShake to assign, novate or otherwise transfer this Agreement or any part of it.
- FairShake may assign, transfer or novate its rights and obligations under the terms and conditions from time to time.
- These terms and conditions are governed by the laws of California and, except as required by the Arbitration Provision, each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of California and the courts having appeal from them.