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Payments Terms of Service

Payments Terms of Service

Last Updated: 25th August, 2016

  1. Terms of Service

These terms and conditions in India, you may also be contracting with a local payments entity; these jurisdictions and the local entity with whom are you are contracting are set forth in Section 26, “Local Contracting Entity”, of these Payments Terms.

YOU ACKNOWLEDGE AND AGREE THAT, BY USING THE PAYMENT SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE PAYMENTS TERMS. IF YOU DO NOT AGREE TO THESE PAYMENTS TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE PAYMENT SERVICES.

Failure to use the Payment Services in accordance with these Payments Terms may subject you to civil and criminal penalties. If you accept or agree to these Payments 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 Payments Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

Please also read carefully EatNWink’s Privacy Policy at http://eatnwink.com/privacy-policy/.

  1. Modification

EatNWink reserves the right, at its sole discretion, to modify or terminate the Payment Services or to modify these Payments Terms at any time and without prior notice. If we modify these Payments Terms, we will either post the modification on the Site or via the Application or otherwise provide you with notice of the modification. We will also update the “Last Updated” date at the top of these Payments Terms. By continuing to use the Payment Services after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Payments Terms. If the modified Payments Terms are not acceptable to you, your only recourse is to cease using the Payment Services.

  1. Eligibility

The Payment Services are intended solely for persons who are 18 or older. Any use of the Payment Services by anyone under 18 is expressly prohibited. By using the Payment services you represent and warrant that you are 18 or older.

 

  1. Account Registration

In order to use the Payment Services, you must first register to create an EatNWink Account and become a Member in accordance with the “Account Registration” section of the EatNWink’s Terms of Service. You acknowledge, consent and agree that anyone you authorize to use your EatNWink Account may use the Payments Services on your behalf and that you will be responsible for any payments made by such person.

  1. Identity Verification

You authorize EatNWink, directly or through third parties, to make any inquiries we consider necessary to help verify or check your identity or prevent fraud. This may include asking you to provide a form of government identification (e.g. driver’s license or passport), your date of birth, and other information requiring you to take steps to confirm ownership of your email address, Payment Methods or Payout Methods; or attempting to screen your information against third party databases. EatNWink reserves the right to close, suspend, or limit access to the Payment Services in the event we are unable to obtain or verify any of this information.

  1. Financial Terms for Bookings
    1. Key Definitions

“Payment Method” means a payment method that you have added to your EatNWink Account, such as a credit card, debit card or PayPal.

“Payout Method” means a payout method that you have added to your EatNWink Account, such as PayPal, direct deposit, a prepaid card or a debit card (whichever is applicable).

    1. Financial Terms for Hosts regarding Bookings

If, as a Host, you are unable to confirm or decide to reject a booking request within the Booking Request Period, any amounts collected by EatNWink for the requested booking will be refunded to the applicable Guest’s Payment Method and any pre-authorization of such Payment Method will be released.

EatNWink will collect the Total Fees from each Guest either at the time of the booking request or upon the Host’s confirmation of the booking (depending upon the Guest’s Payment Method) and will initiate payment of the Accommodation/homemade food Fees to the Host in most cases within 24 hours of the scheduled check-in time for the Guest at the applicable Accommodation/homemade food (except to the extent that a refund is due to the Guest). The time it takes for the Host to receive payouts may depend upon the Payout Method chosen by the Host. Some Payout Methods involve the use of third-party payment processors, who may impose their own additional charges for the use of their services on the Host, including by deducting their charges from the payout amount.

If you owe or agree to pay any amount via EatNWink to EatNWink (whether as a result of your bookings or actions as a Guest or otherwise), then EatNWink may (but is not obliged to) withhold the amount owing to EatNWink from any payout amounts due to you as a Host, and use the withheld amount to set off the amount owed by you to EatNWink. If EatNWink does so, then your obligation to pay EatNWink will be extinguished to the extent of the amount withheld by EatNWink, and EatNWink will cease to owe to you any obligations (including, but not limited to, any obligation to pay you) with respect to the amount withheld. In addition to the amount due, if your account is delinquent or you otherwise have chargebacks on your account, you may be charged fees that are incidental to our collection of these delinquent amounts and chargebacks. Such fees or charges may include collection fees, convenience fees, or other third party charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to EatNWink and/or EatNWink by you. Such communication may be made by EatNWink, EatNWink or by anyone on their behalf, including but not limited to a third party collection agent.

    1. Appointment of EatNWink as Limited Payment Collection Agent for Host

Each Host hereby appoints EatNWink as the Host’s limited payment collection agent solely for the purpose of accepting the Accommodation and homemade food Fees from Guests.

Each Host agrees that payment made by a Guest through EatNWink, shall be considered the same as a payment made directly to the Host, and the Host will make the Accommodation/homemade food available to the Guest in the agreed-upon manner as if the Host has received the Accommodation and homemade food Fees. Each Host agrees that EatNWink may, in accordance with the cancellation policy selected by the Host and reflected in the relevant Listing, refund to the Guest that portion of the Accommodation and homemade food Fees specified in the applicable cancellation policy. Each Host understands that EatNWink accepts payments from Guests as the Host’s limited payment collection agent and that EatNWink’ obligation to pay the Host is subject to and conditional upon successful receipt of the associated payments from Guests. EatNWink does not guarantee payments to Hosts for amounts that have not been successfully received by EatNWink from Guests. In accepting appointment as the limited collection agent of the Host, EatNWink assumes no liability for any acts or omissions of the Host.

    1. Financial Terms for Guests regarding Bookings

You acknowledge and agree that, notwithstanding the fact that EatNWink is not a party to the agreement between you and the Host, EatNWink acts as the Host’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Host. Upon your payment of the Total Fees to EatNWink, your payment obligation to the Host for the Accommodation and homemade Fees is extinguished, and EatNWink is responsible for remitting the Accommodation and homemade food Fees (less the Host Fees and any Taxes in respect of the Host Fees, such as VAT in Europe), in the manner described in these Payments Terms. In the event that EatNWink does not remit any such amounts as described in these Terms, such Host will have recourse only against such EatNWink entity.

You as a Guest agree that EatNWink may charge your Payment Method the Total Fees for any booking requested in connection with your EatNWink Account. In order to establish a booking pending the applicable Host’s confirmation of your requested booking, you understand and agree that EatNWink, on behalf of the Host, reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your Payment Method for the Total Fees or (ii) charge your Payment Method a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which you are transacting (e.g. one euro or one British pound), to verify your Payment Method. As a general rule, EatNWink will collect the Total Fees due once EatNWink receives confirmation of your booking from the applicable Host.

If a requested booking is cancelled (i.e. not confirmed by the applicable Host), any amounts collected by EatNWink will be refunded to such Guest, depending on the selections the Guest makes via the Site and Application, and any pre-authorization of such Guest’s Payment Method will be released, if applicable.

In connection with your requested booking, you will be asked to provide customary billing information such as name, billing address and Payment Method information either to EatNWink or its third-party payment processor(s). You agree to pay EatNWink for any confirmed bookings made in connection with your EatNWink Account in accordance with these Payments Terms by one of the methods supported by the Site or Application (e.g. by PayPal, credit card or debit card). You hereby authorize the collection of such amounts by charging the Payment Method provided as part of requesting the booking, either directly by EatNWink or indirectly, via a third-party online payment processor or by one of the payment methods described on the Site or Application. You also authorize EatNWink to charge any Payment Method in your EatNWink Account in the event of damage caused at an Accommodation/homemade food as contemplated under Section 8, “Damage to Accommodation/homemade foods and Security Deposits”, below.

If EatNWink is unable to collect any amounts you owe for a confirmed booking or a Damage Claim, EatNWink may engage in collection efforts to recover such amounts from you. You hereby explicitly agree that all communication in relation to amounts owed will be made by electronic mail or by phone, as provided to EatNWink and/or EatNWink by you. Such communication may be made by EatNWink, EatNWink or by anyone on their behalf, including but not limited to a third party collection agent.

Please note that EatNWink cannot control any fees that may be charged to a Guest by his or her bank related to EatNWink’ collection of the Total Fees, and EatNWink disclaims all liability in this regard. Whatever Payment Method you use may be subject to additional terms and conditions imposed by the applicable third-party service provider; please review such terms and conditions before using your Payment Method.

    1. Service Fees and Other Fees

EatNWink collects the Service Fees charged by EatNWink pursuant to the EatNWink’s Terms of Service. Where applicable, EatNWink may also charge Taxes in respect of the Host Fees and Guest Fees. EatNWink deducts the Host Fees from the Accommodation/homemade food Fees before remitting the balance to the Host as described in these Payments Terms. Guest Fees are, as noted above, included in the Total Fees.

    1. General Booking and Financial Terms

Cancellations and Refunds

If, as a Guest, you cancel your requested booking before the requested booking is confirmed by a Host, EatNWink will cancel any pre-authorization to your Payment Method and/or refund any nominal amounts charged to your Payment Method in connection with the requested booking within a commercially reasonable time. If, as a Guest, you wish to cancel a confirmed booking made via the Site, Application and Services, either prior to or after arriving at the Accommodation/homemade food, EatNWink will refund the Accommodation/ homemade food Fees and any other amounts charged to you only as permitted under the EatNWink’s Terms of Service.

If a Host cancels a confirmed booking made via the Site, Services, and Application, EatNWink will refund the Total Fees for such booking to the applicable Guest within a commercially reasonable time of the cancellation. If the Guest requests to book an alternative Listings and the Host associated with such alternative Listing confirms the Guest’s requested booking, then EatNWink will collect the Total Fees relating to the confirmed booking for the Accommodation/homemade food in the alternative Listing, in accordance with these Payments Terms.

If, as a Host, you cancel a confirmed booking, you agree that EatNWink may collect any cancellation fees imposed pursuant to the EatNWink’s Terms of Service. Cancellation fees may be withheld from your future payouts or charged to the Payment Method on file in your EatNWink Account.

If EatNWink decides for any reason that it is necessary or desirable to cancel a confirmed booking made via the Site, Application and Services pursuant to the EatNWink’s Terms of Service, you agree that EatNWink and the relevant Guest or Host will not have any liability for such cancellations or refunds.

If, as a Host, your Guest cancels a confirmed booking or EatNWink decides that it is necessary to cancel a confirmed booking, and EatNWink issues a refund to the Guest in accordance with the Guest Refund Policy or other applicable cancellation policies, you agree that in the event you have already been paid, EatNWink shall be entitled to recover the amount of any such Guest refund from you, including by subtracting such refund amount out from any future Accommodation/homemade food Fees due to you.

Payment Processing Errors

We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same Payout Method or Payment Method used for the original payout to or payment by you, so that you end up receiving or paying the correct amount.

Booking Modifications

If, as a Guest, you owe additional amounts to EatNWink due to a Booking Modification, you agree that EatNWink may collect such amounts by charging the Payment Method used to make your booking. If, as a Host, you owe EatNWink any amounts due to a Booking Modification, you agree that EatNWink may collect those amounts pursuant to the “Financial Terms for Hosts regarding Bookings” portion of this Section 6 and as otherwise permitted under these Payments Terms.

  1. Taxes
    1. Occupancy Tax Collection and Remittance

In any jurisdiction in which EatNWink facilitates direct Collection and Remittance pursuant to the EatNWink’s Terms of Service, you hereby instruct and authorize EatNWink to collect Occupancy Taxes from Guests on the Host’s behalf at the time Accommodation/homemade food Fees are collected, and to remit such Occupancy Taxes to the Tax Authority whatsoever is applicable and which varies from one state to the other in India. The amount of Occupancy Taxes, if any, collected and remitted by EatNWink will be visible to and separately stated to both Guests and Hosts on their respective transaction documents. You expressly agree to release, defend, indemnify, and hold EatNWink and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, debts, obligations, and expenses, including, without limitation, reasonable legal and/or accounting fees, arising out of or in any way related to Occupancy Taxes, including, without limitation, the applicability of, calculation, collection or remittance of Occupancy Taxes in any amount or at all as to your transactions or Accommodation/homemade foods. Hosts and Guests further expressly grant EatNWink permission, without further notice, to store, transfer and disclose data and other information relating to them or to their transactions, bookings, Accommodation/homemade food and Occupancy Taxes, including, but not limited to, personally identifiable information such as Host or Guest’s name, Listing addresses, transaction dates and amounts, tax identification number(s), the amount of taxes collected from Guests or allegedly due, contact information and similar information, to the relevant Tax Authority.

    1. Opt-in to Host Remittance of Taxes

In any jurisdiction in which EatNWink facilitates Collection by Opt-in for Host Remittance pursuant to the EatNWink’s Terms of Service, you hereby instruct and authorize EatNWink to send Occupancy Taxes received from Guests at the time Accommodation/homemade food Fees are collected to the Host who is obligated to send such taxes to the Tax Authority directly. You hereby agree that through third party payment processors, EatNWink is merely processing Your election and direction to have Occupancy Taxes from Guests sent directly to the Host for remittance by the Host to the Tax Authority, and that You will remit all amounts collected from Guests as Occupancy Taxes to such Tax Authority. You expressly agree to release, defend, indemnify, and hold EatNWink and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, debts, obligations, and expenses, including, without limitation, reasonable legal and/or accounting fees, arising out of or in any way related to Occupancy Taxes, including, without limitation, the applicability of, calculation of, collection of Occupancy Taxes in any amount or at all as to your transactions or Accommodation/homemade foods. Hosts and Guests further expressly grant EatNWink permission, without further notice, to store, transfer and disclose data and other information relating to them or to their transactions, bookings, Accommodation/homemade foods and Occupancy Taxes, including, but not limited to, personally identifiable information such as Host or Guest’s name, Listing addresses, transaction dates and amounts, tax identification number(s), the amount of taxes received by Hosts from Guests, or allegedly due, contact information and similar information, to the relevant Tax Authority.

    1. Miscellaneous Occupancy Tax Provisions

Whether you are a Guest or Host, you agree that any claim or cause of action relating to EatNWink’ facilitation of Opt-in for Host Remittance or Collection and Remittance shall not extend to any supplier or vendor that may be used by EatNWink in connection with facilitation of Opt-in Remittance or Collection and Remittance of Occupancy Taxes, if any. Guests and Hosts agree that we may seek additional amounts from you in the event that the Taxes collected and/or remitted are insufficient to fully discharge your obligations to the Tax Authority, and agree that your sole remedy for Occupancy Taxes collected is a refund of Occupancy Taxes collected by EatNWink from the applicable Tax Authority in accordance with applicable procedures set by that Tax Authority.

In any jurisdiction in which we have not provided notice of, or are not facilitating (or are no longer facilitating), the collection or remittance of Occupancy Taxes by Collection and Remittance, Opt-in for Host Remittance or any other means or method, in your jurisdiction, Hosts and Guests remain solely responsible and liable for the collection and/or remittance of any and all Occupancy Taxes that may apply to Accommodation/homemade food.

Hosts and Guests acknowledge and agree that in some jurisdictions, EatNWink may decide not to facilitate collection or remittance of Occupancy Taxes or may not be able to facilitate the collection and/or remittance of Occupancy Taxes, and nothing contained in these Payments Terms is a representation or guarantee that EatNWink will facilitate collection and/or remittance of Occupancy Tax anywhere at all, including in any specific jurisdiction, or that EatNWink will continue to facilitate any collection or remittance of Occupancy Tax in any specific jurisdiction in which it may have been offered. EatNWink reserves the right, in its sole determination, to cease any facilitation of any collection and remittance of Occupancy Tax (regardless of method used or to be used in the future) for any reason or no reason at all, provided that it will give Hosts reasonable notice in any jurisdiction in which EatNWink determines to cease any such facilitation.

  1. Damage to Accommodation/homemade foods and Security Deposits

As a Guest, after being notified of a Damage Claim and given forty-eight (48) hours to respond, pursuant to the EatNWink’s Terms of Service, EatNWink may charge the Payment Method used to make your booking to collect a Security Deposit associated with the Listing, if applicable. If the amount of the Damage Claim exceeds the Security Deposit or if the Listing does not have a Security Deposit, EatNWink may charge the Payment Method used to make your booking for the remaining amount of the Damage Claim. If we are unable to collect from your Payment Method used to make the booking, you agree that EatNWink may charge any other Payment Method on file in your EatNWink Account.

EatNWink also reserves the right to otherwise collect payment from you and pursue any avenues available to EatNWink in this regard in situations in which you have been determined, in EatNWink’s sole discretion, to have damaged any Accommodation/, including, but not limited to, in relation to any payment requests made by Hosts under the EatNWink Host Guarantee, and in relation to any payments made by EatNWink or EatNWink to Hosts. If we are unable to charge the Payment Method on file or otherwise collect payment from you, you agree to remit payment for any damage to the Accommodation/homemade food to the applicable Host or to EatNWink (if applicable).

Security Deposits, if required by a Host, may be applied to any fees due from a Guest overstaying at a Listing without the Host’s consent.

  1. Overstaying without the Host’s Consent

If you as a Guest stay past the agreed upon checkout time without the Host’s consent, you agree that EatNWink, in its role as limited collection agent for the Host, may charge any Payment Method(s) you have on file to collect, for each 24 hour period that the Guest stays over the agreed period without the Host’s consent, an additional nightly fee of two times the average nightly Accommodation/homemade food Fee originally paid by the Guest to cover the inconvenience suffered by the Host, plus all applicable Service Fees, Taxes, and any legal expenses incurred by the Host to make the Guest leave (collectively, “Additional Sums”). In addition, EatNWink may recover any costs and expenses it incurs in collecting the Additional Sums by charging the Guest’s Payment Method on file.

  1. Foreign Currency Conversions

Key Definitions

“Booking Currency” means the currency in which a Guest has to pay for his or her booking. At the time the Guest submits a booking request, the EatNWink platform will select the Booking Currency, based on the Guest’s country of origin as determined by (i) EatNWink’s platform logic; (ii) the Payment Method associated with the Booking; or (iii) both.  EatNWink supports only a certain number of currencies as Booking Currencies. The Booking Currency for a booking may be different from the relevant Listing Currency.

“Listing Currency” means the default currency associated with the country in which the Listing is located. For example, the Listing Currency for a home located in New York would be U.S. dollars, and the Listing Currency for a home located in Japan would be Japanese Yen.

“Base Exchange Rate” means a system-wide rate used by EatNWink for foreign currency conversion that is in effect at the time the foreign currency conversion is processed, and does not include any fee or mark-up by EatNWink. EatNWink establishes the Base Exchange Rate using data from one or more third parties.

“Adjusted Exchange Rate” means a rate for foreign currency conversion that is calculated by adding a mark-up to the Base Exchange Rate. This mark-up represents a charge imposed by EatNWink for its holding costs and foreign currency risks.

Each foreign currency conversion is processed at a foreign currency conversion rate. This rate generally refers to the amount of one currency that must be paid to buy a certain amount of another currency at a given time. For example, if it costs US$125.00 to buy €100.00, the currency conversion rate of U.S. dollars to Euros would be 1.25, and the currency conversion rate from Euros to U.S. dollars would be 0.8. Currency conversion rates will vary from time to time.

EatNWink will process a foreign currency conversion in the following situations:

    • The Booking Currency is different from the Listing Currency when a Guest submits a booking request for a Listing: EatNWink will calculate the Total Fees in the Booking Currency by applying either the Base Exchange Rate or the Adjusted Exchange Rate at the time of the booking request to the Total Fees in the Listing Currency. The Guest will be able to view the actual exchange rate applied. The Guest Fee, which is a percentage of the applicable Accommodation/homemade food Fees, will be calculated based on the Accommodation/homemade food Fees in the Booking Currency (i.e. after conversion from the Listing Currency). The Adjusted Exchange Rate will be applied if the Booking Currency is different from the Listing Currency.
    • When a confirmed booking is modified or cancelled, and there had been a foreign currency conversion when the booking was submitted: the foreign currency conversion for any additional payments required of the Guest or any refund to the Guest will be processed at the same rate as applied to the earlier payment by the Guest.

When you as a Guest submit a booking request for a Listing, you will be able to view the actual exchange rate used to calculate the Total Fees in the Booking Currency. Where the Adjusted Exchange Rate is applied, the exchange rate will be displayed inclusive of the mark-up. The exchange rate (and any mark-up included in the rate) will also be stated in the billing receipt for your booking.

  1. Payment Method Information

You authorize EatNWink to store your Payment Method information and charge your Payment Method as outlined in these Payments Terms. If your Payment Method’s account number or expiration date changes (e.g. for credit cards or debit cards), we may acquire that information from our financial services partner and update your Payment Method on file in your EatNWink Account.

  1. User Conduct

You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Payment Services. In connection with your use of the Payment 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;
    • use the Payment Services for any commercial or other purposes that are not expressly permitted by these Terms;
    • use the Payment Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
    • register any Payment Method with your EatNWink account that is not yours or you do not have authorization to use;
    • post, upload, publish, submit or transmit any 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 (directly or by omission or failure to update information) 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;
    • attempt to probe, scan, or test the vulnerability of any EatNWink system or network or breach any security or authentication measures;
    • avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by EatNWink or any of EatNWink’ providers or any other third party (including another user) to protect the Payment Services;
    • forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Payment Services to send altered, deceptive or false source-identifying information;
    • attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Payment Services; or
    • advocate, encourage, or assist any third party in doing any of the foregoing.

EatNWink has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. In addition, and as set in these Payments Terms, EatNWink may take a range of actions against you, including but not limited to limiting access to your EatNWink Account and any associated Payment Services, for a violation of this Section 12 or these Payments Terms.

  1. Privacy

You agree that EatNWink’s Privacy Policy (as may be updated from time to time) governs EatNWink’ collection and use of your personal information.

  1. Additional Products and Terms

Certain Payment Services or new or different products and services offered by EatNWink from time to time may have different terms and conditions posted or require you to agree with and accept additional terms and conditions. If additional terms are required for any Payment Service or other product or service, EatNWink will provide you those additional terms and conditions at the time the Payment Service or other product or service is offered or made available to you. If there is a conflict between these Payments Terms and terms and conditions posted for a specific Payment Service or other product or service, the latter terms and conditions will take precedence with respect to your use of or access to that Payment Service or other product or service.

 

 

  1. Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Payment Services (“Feedback”). You may submit Feedback by emailing us, through the “Contact” section of the EatNWink Site and Application, or by other means of communication. You acknowledge and agree that all Feedback you give us will be the sole and exclusive property of EatNWink and/or EatNWink and you hereby irrevocably assign to EatNWink and EatNWink and agree to irrevocably assign to EatNWink and EatNWink all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback. At EatNWink or EatNWink’ request and expense, you will execute documents and take such further acts as EatNWink or EatNWink may reasonably request to assist EatNWink or EatNWink to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.

  1. Account Limitation

We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time, decide to limit access to your EatNWink Account and any associated Payment Services.

  1. Disclaimers

IF YOU CHOOSE TO USE THE PAYMENT SERVICES, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT EATNWINK PROVIDES THE PAYMENT SERVICES “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, EATNWINK EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. EATNWINK MAKES NO WARRANTY THAT THE PAYMENT SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. EATNWINK MAKES NO WARRANTY REGARDING THE QUALITY OF THE PAYMENT SERVICES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM EATNWINK OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

NOTWITHSTANDING EATNWINK’ APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF THE HOSTS FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM GUESTS ON BEHALF OF THE HOSTS, EATNWINK EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY GUEST OR OTHER THIRD PARTY.

  1. Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF THE PAYMENT SERVICES REMAINS WITH YOU. IF YOU PERMIT OR AUTHORIZE ANOTHER PERSON TO USE YOUR EATNWINK ACCOUNT IN ANY WAY, YOU ARE RESPONSIBLE FOR THE ACTIONS TAKEN BY THAT PERSON. NEITHER EATNWINK NOR ANY OTHER PARTY INVOLVED IN PROVIDING PAYMENT SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR 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, FROM THE USE OF OR INABILITY TO USE THE PAYMENT SERVICES, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PAYMENT SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EATNWINK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE HOSTS PURSUANT TO THESE TERMS OR AN APPROVED PAYMENT REQUEST UNDER THE EATNWINK HOST GUARANTEE, IN NO EVENT WILL EATNWINK’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE PAYMENT SERVICES INCLUDING, BUT NOT LIMITED TO, FROM THE USE OF OR INABILITY TO USE PAYMENT SERVICES, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE EATNWINK PLATFORM AS A GUEST IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A HOST, THE AMOUNTS PAID BY EATNWINK TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EATNWINK AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

  1. Indemnification

You agree to release, defend, indemnify, and hold EatNWink 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 (a) your access to or use of the Payment Services, or your violation of these Payments Terms; or (b) your accrual or use of any EatNWink Travel Credits.

  1. Entire Agreement

Except as they may be supplemented by additional EatNWink policies, guidelines, standards, or terms for a specific product, feature, service or offering, these Payments Terms constitute the entire and exclusive understanding and agreement between EatNWink and you regarding the Payment Services, and these Payments Terms supersede and replace any and all prior oral or written understandings or agreements between EatNWink and you regarding the Payment Services.

  1. Assignment

You may not assign or transfer these Payments Terms, by operation of law or otherwise, without EatNWink’ prior written consent. Any attempt by you to assign or transfer these Payments Terms, without such consent, will be null and of no effect. EatNWink may assign or transfer these Payments Terms, at its sole discretion, without restriction. Subject to the foregoing, these Payments Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

  1. Notices

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Payments Terms, will be in writing and given by EatNWink (i) via email (in each case to the address that you provide) or (ii) by posting to the EatNWink 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.

  1. Controlling Law and Jurisdiction

These Payments Terms and your use of the Payment Services will be interpreted in accordance with the laws of the Republic of India and any dispute arising whatsoever shall be in the Jurisdiction of High Court at Patna, Bihar, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a District Court in the State of Bihar, Republic of India or the High Court in Patna, Bihar for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in Section 28, “Dispute Resolution”, below.

 

 

  1. General

The failure of EatNWink to enforce any right or provision of these Payments 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 EatNWink. Except as expressly set forth in these Payments Terms, the exercise by either party of any of its remedies under these Payments Terms will be without prejudice to its other remedies under these Payments Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Payments Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Payments Terms will remain in full force and effect.

  1. Third Party Beneficiary

These Payments Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Payments Terms for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to these Payments Terms.

  1. Contacting EatNWink

If you have any questions about these Payments Terms, please contact EatNWink at contact@eatnwink.com.