Operator Damage Protection Terms
Please note: These Operator Damage Protection Terms contain an arbitration clause and class action waiver that applies to all Soundspace Clients. If you reside in the United States, this provision applies to all disputes with Soundspace. If you reside outside of the United States, this provision applies to any action you bring against Soundspace in the United States. It affects how disputes with Soundspace are resolved. By accepting these Operator Damage Protection Terms, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
Please read these Operator Damage Protection Terms carefully as they contain important information about your legal rights, remedies, and obligations. By posting a Listing or otherwise using the Soundspace Platform as an Operator, you agree to comply with and be bound by these Operator Damage Protection Terms.
The Operator Damage Protection (as defined below) does not apply to Operators who offer Accommodations in Japan or China.
The Operator Damage Protection (as defined below) also does not apply to hotels and other similar categories of listings that Soundspace may specify from time to time; Operators who offer Experiences or Adventures on the Soundspace Platform; or Operators who contract with Soundspace Technology LLC to provide Accommodations.
Last updated: January 28th, 2022
Operators may benefit from the Operator Damage Protection program (the “Operator Damage Protection”), which is subject to the exclusions, limitations and other terms and conditions set forth below and as amended from time to time (the “Operator Damage Protection Terms”). These Operator Damage Protection Terms apply in addition to the Soundspace Terms of Service (“Terms”) and the Soundspace Payments Terms of Service ("Payments Terms").
All capitalized terms shall have the meaning set forth in the Terms or Payments Terms unless otherwise defined in these Operator Damage Protection Terms. If you acknowledge and agree to these Operator Damage Protection Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Operator Damage Protection Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Except as permitted by law, these Operator Damage Protection Terms do not affect your statutory rights. If you would like a written copy of these Operator Damage Protection Terms, please email us.
I. The Operator Damage Protection
Soundspace agrees to pay you, as an Operator, whenever the Responsible Member fails to do so, to repair or replace your Covered Property (as defined below) damaged or destroyed as a result of a Covered Loss (as defined below), subject to the exclusions, limitations, and other terms and conditions of these Operator Damage Protection Terms.
You must comply with all of the terms and conditions of these Operator Damage Protection Terms in order to be eligible to receive any payments for Covered Losses. Your failure to fully comply will prevent your recovery for any Covered Losses. Please carefully review the definitions of “Covered Accommodation,” “Covered Losses,” “Covered Property” and “Excluded Property” as well as the “Limitations and Exclusions” section below so that you may identify and protect property not covered by the Operator Damage Protection.
You acknowledge and agree to use your best efforts to communicate with the Responsible Member (as defined below) as soon as possible after you discover any physical loss or damage to your Covered Property. You must notify Soundspace as well as the Responsible Member about your complaint and attempt to resolve the loss or damage with the Responsible Member within fourteen (14) days of the Responsible Member’s Booking date. You may fulfill this obligation by submitting a claim via the Soundspace Resolution Center.
You acknowledge and agree that any amount of Covered Losses payable to you under the Operator Damage Protection will be reduced by the amounts you have already collected for the same Covered Losses from a source other than the Operator Damage Protection, including without limitation: (i) amounts received under an insurance policy, guarantee or indemnity; (ii) a security deposit; or (iii) payment directly by the Responsible Member or an Invitee (defined below), or other party or an insurer or guarantor of such party.
II. Key Defined Terms
The following capitalized terms shall have the following meanings:
“Actual Cash Value” means the amount it would cost to repair or replace damaged or destroyed Covered Property as a result of a Covered Loss, measured on the date of occurrence of such Covered Loss, with material of like kind and quality, with proper deduction for obsolescence and physical depreciation.
“Operator Damage Protection Payment Request Form” means Soundspace’s standard form as amended from time to time, accessible through the Resolution Center or by contacting customer service directly, that an Operator uses to request payment from Soundspace pursuant to these Operator Damage Protection Terms.
“Booking Income Loss” is the loss of booking income from the booked portion of a Covered Accommodation (according to bona fide Soundspace confirmed bookings, contracts, or agreements in force prior to the established time of loss) by you, as an Operator, resulting from a Covered Loss. Booking Income Loss does not include non-continuing charges and expenses or any loss of booking income during any period in which the Covered Accommodation would not have been tenantable for any reason other than a Covered Loss. The Booking Income Loss will be measured starting from the time of occurrence of the Covered Loss and ending when the Covered Accommodation can be made ready for habitation under the same or equivalent physical and operating conditions that existed prior to the damage.
“Covered Accommodation” means an Accommodation located in the Territory that can be used as a residence and that is (i) owned or legally controlled by you as an Operator during the period of the Responsible Member’s stay at such Accommodation and (ii) listed by you on the Soundspace Platform and booked by such Responsible Member in compliance with the Terms. A vehicle (including, but not limited to, automobiles, scooters, vespas, and motorcycles) or a watercraft (including, but not limited to, boats, yachts, jet skis, and similar craft) booked through the Soundspace Platform constitutes a “Covered Accommodation” only to the extent it is stationary and used solely for music space purposes.
“Covered Losses” means and is limited to:
(i) Direct physical loss or physical damage to an Operator’s Covered Property caused by the Responsible Member or an Invitee of the Responsible Member during a Soundspace stay.
(ii) Direct physical loss or physical damage to an Operator’s Covered Property caused by a pet owned or controlled by a Responsible Member or Invitee of the Responsible Member during a Soundspace stay.
(iii) Additional reasonable, customary and unexpected cleaning costs to clean an Operator’s Covered Property incurred as a direct result of having a pet owned or controlled by a Responsible Member or Invitee of the Responsible Member during a Soundspace stay.
(iv) Additional reasonable, customary and unexpected cleaning costs to clean an Operator’s Covered Property incurred as a direct result of the actions of a Responsible Member or Invitee of the Responsible Member during a Soundspace stay. Only cleaning costs in excess of cleaning fees paid to or charged by an Operator will be paid.
Covered Losses do not include any losses or damage described under Excluded Losses below.
“Covered Property” means and is limited to the following property located at a Covered Accommodation, or within 1,000 feet thereof, to the extent of your interest in such property, unless such property constitutes Excluded Property (as defined below):
A. Real property, including new buildings and additions under construction located at the site of such Covered Accommodation, in which you have an insurable interest.
B. Personal property that is:
owned by you, including your interest as a tenant in improvements and betterments.
not owned by you, but is in your custody and for which you are under obligation to keep the personal property insured for physical loss or damage; or
not owned by you, but is in your custody and for which you have legal liability for physical loss or damage to the property.
“Excluded Losses” has the meaning set forth in Section III below.
“Excluded Property” means any of the following:
Currency, money, precious metal in bullion form, notes, or securities.
Land, water, or any other substance in or on land; except this exclusion does not apply to (i) land improvements consisting of landscape gardening, roadways and pavements, but not including any fill or land beneath such property, or (ii) water that is contained within any enclosed tank, piping system or any other processing equipment.
Animals, including, but not limited to, livestock and pets.
Standing timber; growing crops.
Watercraft (including, but not limited to, boats, yachts, jet skis, and similar craft), aircraft, spacecraft, and satellites. This exclusion does not apply with respect to any watercraft or aircraft which is a Covered Accommodation unless at the time of the loss, such watercrafts or aircrafts are in transit, or are moving greater than 10 feet from their usual fixed location and moving faster than one mile per hour.
Vehicles (including, but not limited to, automobiles, scooters, vespas, and motorcycles). This exclusion does not apply with respect to any vehicle that is a Covered Accommodation. However, this exclusion does apply to vehicles that, at the time of the loss, are in transit, or are moving greater than 10 feet from their usual fixed location and moving faster than one mile per hour.
Underground mines or mine shafts or any property within such mine or shaft.
Dams, dikes, and levees.
Property in transit, except as otherwise provided by these Operator Damage Protection Terms.
Transmission and distribution lines beyond 1,000 feet of the Covered Accommodation.
Any damage to any property that is not in, at, or on a Covered Accommodation.
Real property owned by a party other than you and that you do not control.
Weapons, including but not limited to standard firearms, air guns, self-defense or deterrent devices such as tasers or pepper spray, ammunition of any kind and imitation firearms except if such weapons are stored, secured, and disclosed in accordance with Soundspace’s Standards and Expectations or other rules, as amended from time to time.
Cameras and other recording devices including, but not limited to, nanny cameras, web cameras in computer monitors, baby monitors, decibel and device monitors, and smart phones with video and/or audio recording unless such devices conform with Soundspace’s Standard and Expectations or other rules, as amended from time to time.
“Fine Arts” means paintings; etchings; printed photos; pictures; tapestries; rare or art glass; art glass windows, valuable rugs; statuary; sculptures; antique furniture; antique jewelry; bric-a-brac; porcelains; and similar property of rarity, historical value, or artistic merit. “Fine Arts” does not include automobiles, coins, stamps, other collectibles, collections, furs, jewelry, precious stones, precious metals, watercraft, aircraft, money, or securities.
“Invitee” means a person invited to be present at a Covered Accommodation by a Responsible Member.
“Limit” means one million US dollars (US $1,000,000), or its equivalent in the currency where the Covered Accommodation is located at the exchange rate applicable on the date of payment by Soundspace under these Operator Damage Protection Terms.
“Ordinary Wear and Tear” means the deterioration in condition of property that occurs under normal use and conditions.
“Responsible Member” means the Member who booked your Covered Accommodation for the period during which you incurred the Covered Losses.
“Territory” means the countries where the Soundspace Platform allows Accommodation and the Operator Damage Protection is available. Any Territory where the Operator Damage Protection is not available will be disclosed on the Operator Damage Protection landing page.
III. Limitations and Exclusions
The Operator Damage Protection pays Covered Losses only and does not pay for any of the following (“Excluded Losses”):
any losses caused by a Member or Invitee after the expiration of the booking period shown in the applicable Listing.
losses or damages for Covered Property, which arise out of any one booking of a Covered Accommodation by a Member, in excess of the Limit.
in the case of Fine Arts, losses or damages if the Fine Arts cannot be replaced with other of like kind and quality and any loss or damage from any repairing, restoration or retouching process.
any losses, damages, cost, or expense of whatsoever nature, directly or indirectly, caused by, relating to, or resulting from any of the following:
Excluded Property;
acts of nature, including, but not limited to, earthquakes and weather-related events such as hurricanes and tornadoes;
excessive use of electricity, gas, fuel, water, or other utilities provided for the Covered Accommodation;
indirect or remote causes;
interruption of business, loss of market, and/or loss of use, except that the Operator Damage Protection does cover Booking Income Loss;
loss, damage, or deterioration arising from any delay;
mysterious disappearance, loss, or shortage disclosed on taking inventory, or any unexplained loss of inventory;
enforcement of any law or ordinance (i) regulating the construction, repair, replacement, use or removal of any property, including removal of debris, or (ii) requiring the demolition of any property, including the cost of removing its debris;
animals, including injuries to animals, veterinary care, boarding, medications, and all other services associated with animals except for damage caused by pets as described in subsections (ii) and (iii) under the definition of Covered Losses; or
identity theft or identity fraud.
any losses, damages, cost, or expense of whatsoever nature, directly or indirectly, caused by or resulting from any of the following, regardless of any other cause or event contributing thereto:
any Operatorile act or act of war, terrorism, insurrection or rebellion;
actual or threatened malicious use of poisonous biological or chemical materials;
nuclear reaction or radiation or radioactive contamination;
seizure or destruction under quarantine or custom regulation, or confiscation by order of any governmental or public authority;
contraband, or illegal transportation or trade;
any dishonest act, including but not limited to theft, committed by you or any persons or entities retained by you to do anything in connection with Covered Property, unless such persons or entities are a Responsible Member or Invitee and such act is done without your knowledge; or
lack of electricity, fuel, water, gas, steam, refrigerant, sewerage, telephone or internet services due to external factors.
the following conditions:
faulty workmanship, material, construction, or design from any cause;
deterioration, depletion, rust, corrosion or erosion, inherent vice or latent defect;
Ordinary Wear and Tear;
settling, cracking, shrinking, bulging, or expansion of foundations, floors, pavements, walls, ceilings, or roofs;
changes of temperature or relative humidity; or
damage caused by insects, animals, or vermin except for damage caused by pets as described in subsections (ii) and (iii) under the definition of Covered Losses;
provided, that any physical damage resulting from any of the conditions listed above will be covered by the Operator Damage Protection if not otherwise excluded under the Operator Damage Protection Terms.
any losses, damages, claims, costs, expenses, or other sums directly or indirectly arising out of or relating to mold, mildew, fungus, spores, virus, bacterium, or other microorganisms of any type, nature, or description, including but not limited to any substance whose presence poses an actual or potential threat to human health. This exclusion applies even if there is (i) any physical loss or damage to Covered Property; (ii) any peril or cause covered hereunder, whether or not contributing concurrently or in any sequence; (iii) any loss of use, occupancy, or functionality; or (iv) any action required, including but not limited to, repair, replacement, removal, cleanup, abatement, disposal, relocation, or steps taken to address medical or legal concerns. This exclusion does not apply to additional reasonable, customary, and unexpected cleaning costs as described in subsections (iii) and (iv) under the definition of Covered Losses.
any fees that may be charged to a Member by an Operator for additional individuals invited to, or otherwise provided access to, the Covered Accommodation who are not included in the Member’s booking of such Covered Accommodation.
Costs arising out of the loss of, loss of use of, damage to, corruption of, inability to access, or inability to manipulate, any and all Electronic Data will not be paid. “Electronic Data” means information, facts or programs, stored as or on, created or used on, or transmitted to or from any Electronic Media. “Electronic Media” means computer software, including systems and applications software, hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment.
any losses or damages not recoverable from the Responsible Member and/or Invitee under the Soundspace Terms.
IV. Conditions to the Operator Damage Protection
In order to be eligible to obtain payment under these Operator Damage Protection Terms, you must fully comply with each of the following conditions. Your failure to fully comply will prevent your recovery of any Covered Losses. In all cases, the onus will be upon you to demonstrate that you have complied with the following conditions.
You must have incurred Covered Losses.
You must inspect the applicable Covered Accommodation to determine whether there are any physical losses or damages to any Covered Property and you must notify Soundspace as well as the Responsible Member about your complaint and attempt to resolve the loss or damage with the Responsible Member within fourteen (14) days of the Responsible Member’s Booking date. You may fulfill this obligation by submitting a claim via the Soundspace Resolution Center.
You must not have misrepresented any facts or committed fraud or any other dishonest or deceptive act in connection with the booking of the Covered Accommodation or the preparation or submission of any past or present payment request under the Operator Damage Protection Terms. Any such misrepresentation, fraud, dishonest or deceptive act by you, at any time, will result in denial of all pending payment requests under the Operator Damage Protection Terms and immediate termination of these Operator Damage Protection Terms as they relate to you, notwithstanding Section VII below.
For all Covered Property which is damaged or destroyed due to a violation of law or criminal act or theft or misdemeanor and for which you are filing an Operator Damage Protection Payment Request Form, you must file a police report listing such Covered Property and provide Soundspace with a copy of such report, certified by you as true and correct.
You must provide Soundspace with proof of ownership of, or legal responsibility for, the Covered Property in the form of receipts, photographs, videos, documents, or other customary forms of proof (including, but not limited to, appraisal or valuation forms or notices addressed to you) certified by you as true and correct and reasonably acceptable to Soundspace.
Within thirty (30) days after you have incurred a Covered Loss, you must (i) complete and file an Operator Damage Protection Payment Request Form and (ii) deliver a signed and sworn proof of loss to us, unless we provide a written extension of such deadline. The proof of loss must state your knowledge and belief as to the following:
The time, cause, and origin of the Covered Loss, and evidence and proof of such loss in the form of receipts, photographs, videos, documents and other verifiable forms of proof.
The ownership, leasehold, or other interest of you and all other parties in the Covered Property for which Covered Loss is claimed.
The Actual Cash Value and replacement value of each item of the Covered Property, as well as the amount of such loss or damage to each item of such Covered Property.
All liens, encumbrances, mortgages, guarantees and all other contracts of insurance, whether valid or not, covering the Covered Property that is the subject of the Covered Loss.
Any changes in the title, use, occupation, location, possession, or exposures of the Covered Accommodation since the date of the Listing.
The identity of and other information known about the Responsible Member, any Invitee and any other party present at or using the Covered Accommodation where the Covered Property is located for which the Covered Loss is claimed on the date of the Covered Loss, and the purpose for which such Covered Accommodation was being used by such parties on such date and whether or not it then stood on leased ground.
The date when you contacted the Responsible Member to request payment for the loss you are claiming, and the date on which the Responsible Member declined or failed to pay for the loss.
As part of the signed and sworn proof of loss described above, you must provide Soundspace with all information it reasonably requests in order to determine the Actual Cash Value with respect to Covered Property, including: the original purchase price of such Covered Property, the date such Covered Property was acquired, the condition of such Covered Property and the estimated cost of repair or replacement of such Covered Property.
You must (i) protect and preserve damaged Covered Property from further loss or damage and (ii) promptly separate the damaged and undamaged Covered Property, put it in the best possible order, and furnish a complete inventory of the lost, destroyed, damaged, and undamaged property showing in detail the quantities, costs, Actual Cash Value, and amount of loss claimed.
You must, as often as may be reasonably requested by Soundspace or its designees (i) exhibit all that remains of any damaged Covered Property and sign the written records of examination; (ii) produce for examination all books of accounts, business records, bills, invoices, and vouchers (either originals or certified copies if originals are lost) and (iii) permit extracts and machine copies to be made of the above.
You must permit Soundspace or its designee(s) to make inspections of Covered Property at all reasonable times. However, the right to make inspections, the making of inspections, and any analysis, advice, or inspection report will not constitute an undertaking by Soundspace or Soundspace’s insurer to determine or warrant that damaged Covered Property is safe or healthful. We will have no liability to you or any other person because of any inspection or failure to inspect.
You must cooperate with Soundspace, including signing any documents, and timely responding to any reasonable requests for additional information or documentation that Soundspace or its designees may require or request to process the applicable Operator Damage Protection Payment Request Form.
With respect to Covered Property subject to a loan, mortgage, or other security interest, you must notify your lender/mortgagee in writing of any loss that reaches or exceeds fifty thousand US dollars (US $50,000), and provide Soundspace with a copy of such notice. If the lender/mortgagee notifies you that the lender/mortgagee seeks insurance and/or reimbursement proceeds for the loss, you must notify Soundspace in writing of the lender/mortgagee’s request and transmit a written copy of said request to Soundspace, and provide all other information to enable Soundspace to communicate directly with the lender. If such loss is determined to be a Covered Loss, we will pay the loss benefit(s) to the lender up to the value of the mortgage (subject to the exclusions, limitations, and other terms and conditions herein), and we will not pay you unless and until your monetary obligation to the lender/mortgagee has been satisfied. This condition shall apply to the extent of applicable law in your jurisdiction.
You will have full rights to the possession and control of damaged Covered Property if proper testing is done to show which property is physically damaged. You, using reasonable judgment, will decide if the physically damaged Covered Property can be reprocessed or sold. If you determine that the Covered Property is unfit for reprocessing or sale, the property will not be sold or disposed of except by you or with your consent. Proceeds from the sale or other disposition of such Covered Property will go to (i) Soundspace’s insurer at the time of the Covered Loss settlement, or (ii) you, if such sale or disposition proceeds are received prior to Covered Loss settlement and such proceeds, will reduce the amount of the Covered Loss payable to you.
V. Disposition of Operator Payment Requests
Operator Damage Protection Payment Request Form
Soundspace will complete its processing of any Operator Damage Protection Payment Request Form that you file within a reasonable period following the date you have (a) completed and filed an Operator Damage Protection Payment Request Form, and (b) provided Soundspace with all information and documentation that you are required to provide to comply with the conditions set forth in Section IV Conditions to the Operator Damage Protection above. In any event, we will use commercially reasonable efforts to complete processing of your Operator Damage Protection Payment Request Form within three (3) months after our receipt of such information and documentation. If you receive an Approved Payment Request (as defined below), then as a condition to payment to you under the Operator Damage Protection, you will be required to execute and deliver to Soundspace the “Operator Damage Protection Approved Payment Request Agreement”, which includes your agreement:
to assign to Soundspace or its insurer any rights and remedies you may have to recover amounts paid to you with respect to an Approved Payment Request (defined below) from the Responsible Member or from an Invitee or from any other party that is financially responsible for the Covered Losses which are the subject of the Approved Payment Request;
to reasonably cooperate with us, including, at our request, appearing as a witness in any court, arbitration, or like proceeding, if we seek to recover the amount paid to you with respect to the Approved Payment Request from the Responsible Member or from an Invitee or from any other party;
to release and hold harmless Soundspace and its insurer and all officers, directors, employees, contractors, and agents of Soundspace from any further liability or obligations with respect to the facts and circumstances of the matters and incident set forth in the Operator Damage Protection Payment Request Form;
if requested, to treat as “confidential information” the amount of any payment made under the Operator Damage Protection; and
to refund to us any amounts in excess of the Covered Loss in the Approved Payment Request as a result of a systems or payment processing error.
The duration of the processing period of any Operator Damage Protection Payment Request Form that you file will depend on factors that include, but are not limited to: (i) the amount of payment that you are requesting for the Covered Loss; (ii) the location of the Covered Accommodation; (iii) the nature of the Covered Property and the nature of the Covered Losses; (iv) the completeness and type of information and documentation that you provide Soundspace regarding the Covered Losses; and (v) the number of Operator Damage Protection Payment Request Forms that are currently being processed for other Operators.
Approved Payment Request
If you have filed an Operator Damage Protection Payment Request Form and such a payment request is approved in whole or in part for a Covered Loss (any such approved payment request, an “Approved Payment Request”), you will be paid the amount of the Covered Loss as calculated by Soundspace or its designees. The process for such calculation of Covered Losses is described under “Determination of the Amount of the Covered Loss” below. You will be notified by Soundspace and, as a condition of payment hereunder, you will be required to deliver to Soundspace an executed Approved Payment Request Agreement. Soundspace may use third-party service providers to assist in the processing of the Operator Damage Protection Payment Request Forms and Soundspace or its designees may use third-party service providers to assist in the investigation and adjustment of payment requests relating thereto.
For an Approved Payment Request that involves Covered Losses to Covered Property that is owned by a party other than you, we reserve the right, in our sole discretion, to pay all or a portion of the amount covered in such Approved Payment Request either to you or directly to the owner of such Covered Property. If an Operator Damage Protection payment for all or a portion of such amount is made directly to the owner of such Covered Property, then you agree that such payment will be treated for purpose of the Approved Payment Request as being paid to you directly and that you will be solely responsible for collecting from the owner of such Covered Property any portion of such payment to which you believe you are legally entitled. For clarity, your indemnification obligations set forth below under the paragraph entitled “Indemnification” will apply to claims arising from any payments made pursuant to the Operator Damage Protection, including without limitation any payments made directly to the owner of any Covered Property.
Determination of the Amount of the Covered Loss
The amount of Covered Losses will be computed as of the date of loss, at the location of the loss, and for not more than your interest, subject to the following:
On exposed films, records, manuscripts, drawings, and Electronic Media, the value blank plus the cost of copying information from back-up or from originals of a previous generation. Costs of research, engineering, or restoring or recreating lost information or Electronic Data will not be paid.
On Fine Arts articles, the lesser of (i) the reasonable and necessary cost to repair or restore such property to the physical condition that existed on the date of loss; (ii) the cost to replace the article; and (iii) the current appraised value. If the Fine Arts article is part of a pair or set, you will not be paid (1) for the cost of replacing any undamaged or remaining items that form part of such pair or set, (2) more than the proportion that the loss or damaged item bears to the insured value of such pair or set, or (3) the cost of replacing or repairing any undamaged parts of the Fine Arts articles which form part of a pair, set or suite or part of a common design or function when the loss or damage is restricted to a clearly identifiable area or to a specific part.
For all Covered Property (other than that described in paragraphs 1 and 2 above), the loss amount will be the lesser of (i) the Actual Cash Value; (ii) the cost to repair such damaged Covered Property; (iii) the cost to rebuild or replace such Covered Property on the same site with new materials of like size, kind, and quality; (iv) the cost to rebuild, repair, or replace on the same or another site, but not to exceed the size and operating capacity that existed on the date of the Covered Loss; or (v) the cost to replace unrepairable electrical or mechanical equipment, including computer equipment and Electronic Media, with equipment that is the most functionally equivalent to that damaged or destroyed, even if such equipment has technological advantages and/or represents an improvement in function and/or forms part of a program of system enhancement.
Any amount of any Covered Losses payable under the Operator Damage Protection will be reduced by the amount already paid to you or for your benefit by a Responsible Member, Invitee, or other source (such as an insurer, guarantor, or other responsible party) for the same Covered Loss.
Covered Losses will be paid in the currency of the United States of America unless, in Soundspace’s sole discretion, Soundspace elects to pay losses in a different currency. If currency conversions are required, we use a system-wide rate, known as the base exchange rate, for currency conversion using data from one or more third parties, such as OANDA (www.oanda.com).
Any amount of any Covered Losses payable under the Operator Damage Protection will not exceed the amount which would otherwise be recoverable by you, as an Operator, from the Responsible Member and/or Invitee.
The Operator Damage Protection is not an insurance policy. To the extent you desire protection beyond the Operator Damage Protection, Soundspace strongly encourages you to purchase insurance that will cover you and your property for losses caused by Members or Members’ invitees in the event your loss is not within the terms of the Operator Damage Protection.
VI. Acknowledgments and Agreements by the Operator
You acknowledge and agree that:
The Operator Damage Protection is a guarantee of the primary obligations of the Responsible Member to pay you, as an Operator, to repair or replace your Covered Property damaged or destroyed as a result of a Covered Loss, and is contingent on such obligation.
The Operator Damage Protection is subject to you pursuing the rights and remedies you have against the Responsible Member and/or Invitee, or from any other party that is financially responsible for the Covered Loss.
Any amount which Soundspace pays to you under these Operator Damage Protection Terms will not exceed the amount which you, as an Operator, are entitled to recover from the Responsible Member.
Soundspace provides Operators with the Operator Damage Protection benefits described herein solely for the purpose of promoting the use of the Soundspace Platform by building customer loyalty and strengthening customer confidence as to use of the Soundspace Platform.
These Operator Damage Protection Terms are not intended to constitute an offer to insure, do not constitute insurance or an insurance contract, and do not take the place of insurance obtained or obtainable by you. Furthermore, these Operator Damage Protection Terms are not an insurance service agreement as defined in a standard ISO renter’s or homeowner’s insurance policy.
The benefits provided under these Operator Damage Protection Terms are solely as set forth in the paragraph entitled “ Operator Damage Protection” above and such benefits are not assignable or transferable by you, including without limitation any transfer or assignment by operation of law or in connection with your divorce or death.
Soundspace and/or its insurer reserve the right to independently investigate (or to have independently investigated) at our sole discretion and expense, the facts and circumstances of a payment request set forth in any Operator Damage Protection Payment Request Form that you file with Soundspace, notwithstanding your delivery of all information and documentation that you are required to provide Soundspace in order to comply with the conditions set forth in Section IV above entitled “Conditions to the Operator Damage Protection.”
You acknowledge and agree that if you make a claim under the Operator Damage Protection, you give Soundspace consent to review all communications between you and the allegedly Responsible Member via the Soundspace Platform.
Soundspace reserves the right, at any time, to offset or deduct from the amounts payable or paid by Soundspace to you under these Operator Damage Protection Terms, any amounts that it may have in its possession, or to subsequently collect, from any other person or entity who is obligated to compensate you for losses or damages.
Because these Operator Damage Protection Terms constitute a guarantee agreement, the theory of exoneration applies. Thus, if the Covered Property in question or the risk associated with that Covered Property changes materially, Soundspace will be entitled to exoneration with respect to any potential guaranty obligation under these Operator Damage Protection Terms.
You acknowledge and agree that Soundspace has the right, at its sole discretion, to deny full or partial payment under these Operator Damage Protection terms for your failure to comply, at all times, with your obligations under our Terms, Payments Terms, and Policies and Standards.
VII. Modification or Termination of Operator Damage Protection Terms
To the extent permissible by applicable law in your jurisdiction, Soundspace reserves the right to modify or terminate these Operator Damage Protection Terms, at any time, at its sole discretion.
If Soundspace terminates these Operator Damage Protection Terms, Soundspace will provide you with notice by email at least thirty (30) days before such termination and Soundspace will continue to process all Operator Damage Protection Payment Request Forms that you filed prior to the effective date of termination, but your right to file any new Operator Damage Protection Payment Request Forms will immediately terminate.
If Soundspace modifies these Operator Damage Protection Terms, we will post the modification on the Soundspace Platform. Soundspace will continue to process all Operator Damage Protection Payment Request Forms that you filed prior to the effective date of the modification.
In addition to and without limiting Soundspace’s rights set forth above in the immediately preceding paragraph, Soundspace reserves the right to modify or terminate these Operator Damage Protection Terms generally or in any jurisdiction, at any time, in its sole discretion, if: (i) these Operator Damage Protection Terms are construed to be an offer to insure or constitute insurance or an insurance contract or insurance service agreement by any governmental or regulatory authority in any jurisdiction; (ii) Soundspace is required to obtain an authorization, license or permit of any kind to continue to provide these Operator Damage Protection Terms in any jurisdiction; or (iii) Soundspace determines or a court or arbitrator holds that the provisions of these Operator Damage Protection Terms violate applicable law. If Soundspace modifies or terminates these Operator Damage Protection Terms in accordance with the foregoing, Soundspace will process all Operator Damage Protection Payment Request Forms that you file prior to or as of the effective date of such modification or termination unless such processing is prohibited by law, regulation, ordinance, order, or decree of any governmental or other authority.
The current version of the Operator Damage Protection Terms will be made available through the Site and Application. The relevant version is the one prevailing at the date on which Soundspace receives the Operator Damage Protection Payment Request Form.
VIII. Subrogation
Soundspace and/or Soundspace’s insurer have the right to subrogate against any person or entity whatsoever who allegedly is responsible for causing the losses or damages in question, which may include any and all rights you, as an Operator, may have against the Responsible Member, an Invitee or any other third party under the Soundspace Terms. Further, you hereby agree that, with respect to any payments made under the Operator Damage Protection by, or on behalf of, Soundspace, you will assist in and cooperate fully with Soundspace regarding any and all efforts at subrogation.
IX. Disclaimers and Limitations of Liability
If you choose to use the Soundspace Platform as an Operator, you do so at your sole risk. The Operator Damage Protection is provided “as is”, without warranty of any kind, either express or implied.
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 Soundspace Platform, and your listing of any Accommodations via the Soundspace Platform remains with you. Neither Soundspace nor any other party involved in creating, producing, or delivering the Soundspace Platform will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage, or system failure, or for any damages for (1) personal or bodily injury or emotional distress arising out of or in connection with these Operator Damage Protection Terms, (2) from the use of or inability to use the Soundspace Platform, (3) from any communications, interactions or meetings with other users of the Soundspace Platform or other persons with whom you communicate or interact as a result of your use of the Soundspace Platform, or (4) from your listing of any Accommodation via the Soundspace Platform. Soundspace will not be liable for any such damages described above, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and whether or not Soundspace 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 Soundspace’s obligation to pay amounts to you pursuant to an Approved Payment Request under these Operator Damage Protection Terms, in no event will Soundspace’s aggregate liability arising out of or in connection with (a) these Operator Damage Protection Terms; (b) your use of or inability to use the Soundspace Platform including, but not limited to, posting a Listing, (c) any Accommodation and (d) your interactions with any other Clients, exceed the amounts paid by Soundspace to you in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars ($100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Soundspace and you. Some jurisdictions do not allow the exclusion for certain limitations of liability, so the above limitations may not apply to you. If you reside outside of the U.S., this does not affect Soundspace’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.
If you reside in the EU, Soundspace is liable under statutory provisions for intent and gross negligence by us, our legal representatives, directors, or other vicarious agents. The same applies to the assumption of guarantees or any other strict liability, or in case of a culpable injury to life, limb or health. Soundspace is liable for any negligent breaches of essential contractual obligations by us, our legal representatives, directors, or other vicarious agents. Essential contractual obligations are such duties of Soundspace in whose proper fulfillment you regularly trust and must trust for the proper execution of the contract but the amount shall be limited to the typically occurring foreseeable damage. Any additional liability of Soundspace is excluded.
X. Dispute Resolution and Arbitration Agreement
Application. This Arbitration Agreement only applies to you if your country of residence or establishment is the United States. If your country of residence or establishment is not the United States, and you nevertheless attempt to bring any legal claim against Soundspace in the United States, this Arbitration Agreement will apply for determination of the threshold issue of whether this Section X applies to you, and all other threshold determinations, including residency, arbitrability, venue, and applicable law.
Overview of Dispute Resolution Process. Soundspace is committed to participating in a consumer-friendly dispute resolution process. To that end, these Operator Damage Protection Terms provide for a two-part process for individuals to whom this Section X applies: (1) an informal negotiation directly with Soundspace’s customer service team (described in Section X.3 below), and if necessary (2) a binding arbitration administered by the American Arbitration Association (“AAA”). You and Soundspace each retain the right to seek relief in small claims court as an alternative to arbitration.
Mandatory Pre-Arbitration Dispute Resolution and Notification. At least 30 days prior to initiating an arbitration, you and Soundspace each agree to notify the other party of the dispute in writing and attempt in good faith to negotiate an informal resolution. You must send your notice of dispute to Soundspace by mailing it to Soundspace’s agent for service: Alerding Castor LLP, 47 S Pennsylvania St #700, Indianapolis, IN 46204. Soundspace will send its notice of dispute to the email address associated with your Soundspace account. A notice of dispute must include: the party’s name and preferred contact information, a brief description of the dispute, and the relief sought. If the parties are unable to resolve the dispute within the 30-day period, only then may either party commence arbitration by filing a written Demand for Arbitration (available at www.adr.org) with the AAA and providing a copy to the other party as specified in the AAA Rules (available at www.adr.org).
Agreement to Arbitrate. You and Soundspace mutually agree that any dispute, claim or controversy arising out of or relating to these Operator Damage Protection Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or any use of the Soundspace Platform, Operator Services, or any 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 Soundspace agree that the arbitrator will decide that issue.
Exceptions to Arbitration Agreement. You and Soundspace each agree that the following causes of action and/or claims for relief are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction (as defined by Section 22 of the Terms): (i) any claim or cause of action alleging actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) a request for the remedy of public injunctive relief. You and Soundspace agree that the remedy of public injunctive relief will proceed after the arbitration of all arbitrable claims, remedies, or causes of action, and will be stayed pending the outcome of the arbitration pursuant to section 3 of the Federal Arbitration Act.
Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and the Federal Arbitration Act governs all substantive and procedural 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. In order to initiate arbitration, a completed written demand (available at www.adr.org) must be filed with the AAA and provided to the other party, as specified in the AAA rules.
Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Soundspace agrees that any required arbitration hearing may be conducted, at your option: (a) in the U.S. county where you reside; (b) in Marion County; (c) via phone or video conference; or (d) if all parties agree, by solely the submission of documents to the arbitrator.
Modification of AAA Rules - Attorney’s Fees and Costs. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Soundspace will pay such excess arbitration fees and expenses. Either party may make a request that the arbitrator award attorneys’ fees and costs upon proving that the other party has asserted a claim, cross-claim, or defense that is groundless in fact or law, brought in bad faith or for the purpose of harassment, or is otherwise frivolous, as allowed by applicable law and the AAA Rules.
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 any relief allowed by law or the AAA Rules, but declaratory or injunctive relief may be awarded only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Jury Trial Waiver. You and Soundspace acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
No Class Actions or Representative Proceedings. You and Soundspace 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 or consolidated proceeding. Unless we 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 there is a final judicial determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action, or requested remedy, then that claim, cause of action or requested remedy, and only that claim, cause of action or requested remedy, will be severed from this agreement to arbitrate and will be brought in a court of competent jurisdiction. In the event that a claim, cause of action, or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator.
Severability. Except as provided in Section X.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision will be severed and the remainder of the Arbitration Agreement will be given full force and effect.
Changes to Agreement to Arbitrate. If Soundspace changes this Section X after the date you last accepted these Operator Damage Protection Terms (or accepted any subsequent changes to these Operator Damage Protection Terms), you may reject that change by sending us written notice (including by email) within 30 days of the date the change is effective. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and Soundspace (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and Soundspace.
Survival. Except as provided in Section X.12 and subject to Section 13.6 of the Terms, this Section X will survive any termination of these Operator Damage Protection Terms and will continue to apply even if you stop using the Soundspace Platform or terminate your Soundspace account.
XI. General Provisions
Indemnification
You agree to release, defend, indemnify, and hold Soundspace and its affiliates and subsidiaries, and their officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with the Operator Damage Protection and these Operator Damage Protection Terms.
If you rent (rather than own) the Accommodation that you list as a Covered Accommodation, the immediately preceding paragraph applies specifically to any dispute between you and the owner of the Accommodation. You are fully responsible for securing the lessor’s permission to list the Accommodation with Soundspace and complying with the scope of any permission granted.
Entire Agreement
These Operator Damage Protection Terms constitute the entire and exclusive understanding and agreement between Soundspace and you regarding the Operator Damage Protection and these Operator Damage Protection Terms, and supersede and replace any and all prior oral or written understandings or agreements between Soundspace and you regarding the Operator Damage Protection.
Assignment
You may not assign or transfer these Operator Damage Protection Terms, by operation of law or otherwise, without Soundspace’s prior written consent. Any attempt by you to assign or transfer these Operator Damage Protection Terms, without such consent, will be null and of no effect. Soundspace may assign or transfer these Operator Damage Protection Terms, at its sole discretion, without restriction. Your right to terminate the Agreement with Soundspace remains unaffected. Subject to the foregoing, these Operator Damage Protection Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices
Unless specified otherwise, any notices or other communications to Clients permitted or required under this Agreement, will be in writing and given by Soundspace via email, Soundspace Platform notification, or messaging service (including SMS and WeChat). For notices made to Clients residing outside of Germany, the date of receipt will be deemed the date on which Soundspace transmits the notice.
Controlling Law and Jurisdiction
These Operator Damage Protection Terms will be interpreted in accordance with Sections 22 and 25 of the Terms.
Waiver and Severability
The failure of Soundspace to enforce any right or provision of these Operator Damage Protection Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Soundspace. Except as expressly set forth in these Operator Damage Protection Terms, the exercise by either party of any of its remedies under these Operator Damage Protection Terms will be without prejudice to its other remedies under these Operator Damage Protection Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Operator Damage Protection Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Operator Damage Protection Terms will remain in full force and effect.
XII. Contacting Soundspace
If you have any questions about these Operator Damage Protection Terms, please email us.