Welcome to the Ocotillo Lodge,
The Ocotillo Lodge / Onyx Hotels, LLC (hereafter referred to as “Onyx”, “we”, “us”, or “our”) provides services that connect homeowners who have accommodations they wish to rent with customers seeking to rent said accommodations, as well as certain rental management services for the customers and homeowner (collectively, the “Services”).
The Services are accessible at http://www.ocotillolodge.com, via our phone centers, the physical accommodations themselves, and any other websites and other access points through which Onyx makes the Services available (collectively, the “Site”). Reference to the Services includes the use of the Site.
By using the Services, you agree to comply with and be legally bound by the terms and conditions of these Terms of Service (“Terms”). These Terms govern your access to and use of the Services (defined below) and constitute a binding legal agreement between you and Onyx.
Any access to or use of the Services by anyone under the age of 21 is expressly prohibited.
Please note that we reserve the right to accept or decline any booking for any reason. We also reserve the right to adjust our rates and minimum night restrictions at any time prior to accepting a reservation. In addition, all of our guests must agree to our vacation rental agreement, which may be found at http://www.onyxhotels.com/rental-agreement.
Key Terms used in our Terms of Service
“Accommodation” means a residential or other property that is booked via the Services.
“Content” means all content (including text, graphics, images, music, software, audio, video, information or other materials) provided by Users, Onyx or licensed third parties which is available through the Services.
“Guest” means a User who requests a booking of an Accommodation or stays at an Accommodation (and is not the Homeowner for such Accommodation).
“Homeowner” means a User who creates a Listing via the Services or owns or controls the Accommodation.
“Listing” means an Accommodation that is listed by a Homeowner as available for rental via the Services.
“User” means a person who uses the Onyx Services.
“User Content” means all Content that a User posts, uploads, publishes, submits or transmits to be made available through the Services.
“Tax” or “Taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST) and other similar municipal, state and federal indirect or other withholding and personal or corporate income taxes.
Certain areas of the Site may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Services, the latter terms and conditions will take precedence with respect to your use of or access to those Services.
Onyx reserves the right, at its sole discretion, to modify the Services or to modify these Terms, including fees,
at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or provide you with notice of the modification. By continuing to access or use the Services after we have posted a modification or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services.
You may register to create an account (“Onyx Account”) directly via the Site. We will create your Onyx Account for your use of the Services based upon your personal information. You agree to provide accurate, current and complete information and Content during the registration process and to update such information to keep it accurate, current and complete. Onyx reserves the right to suspend or terminate your Onyx Account in our sole discretion. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Onyx Account, whether or not you have authorized such activities or actions. You will immediately notify Onyx of any unauthorized use of your Onyx Account.
Limitation of Liability
Onyx is not an owner of the Accommodations. You understand and agree that Onyx is not a real estate broker, agent or insurer. Onyx enters into agreements with guests, home owners, third party service providers to provide the Services, but Onyx has no direct control over the conduct of such parties that are not agents or employees of Onyx. Accordingly, Onyx is not responsible for any liability related to any Services or Accommodations where the home owner, guest or third party service providers have violated any terms of their respective agreements with Onyx. By using the Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Users or third parties will be limited to a claim against the particular Users or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from Onyx with respect to actions or omissions of such third parties. This limitation shall not apply to any claim by a Homeowner against Onyx regarding the remittance of payments received from a Guest by Onyx on behalf of a Homeowner, which instead shall be subject to the limitations described in the section below entitled “Limitation of Liability”.
Onyx makes no effort to review any User Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and Onyx is not responsible for any User Content.
Onyx collects service fees from Homeowners and Guests in consideration for the Services. Where applicable, Taxes may also be charged in addition to the Service fees, which Onyx will remit to the local taxing authority for the Accommodation. Balances will be remitted by Onyx to Homeowners via the payment methods described in the Services. For certain specific services (such as cleaning), Onyx will collect service fees from Guests and remit balances due to the local service providers for such services directly. Please note that for any payments by Onyx in currencies other than U.S. dollars, Onyx may deduct foreign currency processing costs from such payments. Except as otherwise provided herein, Service fees are non-refundable.
Bookings and Financial Terms for Guests
When you, as a Guest, choose to enter into a transaction for the booking of an Accommodation, you agree and understand that you agree to accept any terms, conditions, rules and restrictions associated with such Accommodation imposed by the Homeowner and Onyx which are disclosed at the time of booking. You agree to pay Onyx for the total fees for any booking. In order to establish a booking, you understand and agree that Onyx reserves the right, in its sole discretion, to obtain: (i) a verification of your credit card; or (ii) pre-authorization via your credit card for the total fees. Onyx will collect the total fees in accordance with the terms and conditions of these Terms and the pricing terms set forth in the applicable Listing and booking terms. You hereby authorize the collection of such amounts by charging the credit card provided as part of requesting the booking, either directly by Onyx or indirectly, via a third party online payment processor or by one of the payment methods described on the Services. You also authorize Onyx to charge your credit card in the event of damage caused at an Accommodation as provided by the “Damage to Accommodations” section of the Guest Agreement. Once your confirmed booking transaction is complete you will receive a confirmation email summarizing your confirmed booking.
In the future, Onyx may provide a feature through which Users may view total fees for various Listings in foreign currencies. You understand and agree that these views of total fees are for informational purposes only and are not the official total fees for the Listings. If you (as a Guest) request a booking, you will be notified of the currency in which you will be charged together with the corresponding amount of total fees. The currency in which you will be charged will be US Dollars (USD). If the currency in which you will be charged is not USD, you will be responsible for any required currency conversion processing, including the costs thereof, which may be calculated and charged by your credit card provider.
You understand and agree that you are solely responsible for compliance with any and all laws, rules and governmental regulations that may apply to your use of the Services. In connection with your use of our Services, you may not and you agree that you will not:
violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and Tax regulations;
use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Site, Application, Services or Content;
use the Services for any commercial or other purposes that are not expressly permitted by these Terms;
copy, store or otherwise access any information contained in the Services for purposes not expressly permitted by these Terms;
infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
offer, as a Homeowner, any Accommodations that you do not yourself own or have permission to rent as a residential or other property;
offer, as a Homeowner, any Accommodation that may not be rented or subleased pursuant to the terms and conditions of an agreement with a third party, including, but not limited to, a property rental agreement;
when acting as a Guest or otherwise, recruit or otherwise solicit any Homeowner or other User to join third party services or websites that are competitive to Onyx, without Onyx’s prior written approval;
use the Services to find a Homeowner or Guest and then complete a booking of an Accommodation transaction independent of the Services in order to circumvent the obligation to pay any fees related to Onyx’s provision of the Services;
or post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
use, display, mirror or frame the Services, or any individual element within the Services, Onyx’s name, any Onyx trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Onyx’s express written consent;
attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services; or advocate, encourage, or assist any third party in doing any of the foregoing.
Onyx will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Onyx reserves the right, at any time and without prior notice, to remove or disable access to any Content that Onyx, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Services.
The Services (and Content) are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Services, including all associated intellectual property rights is the exclusive property of Onyx and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
Onyx Content and User Content License
Subject to your compliance with the terms and conditions of these Terms, Onyx grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Content solely for your personal and non-commercial purposes and (ii) access and view any User Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Onyx or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Services, you hereby grant to Onyx a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access and view such User Content on, through, or by means of the Services. Onyx does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content. You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to Onyx the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Onyx’s use of the User Content (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Onyx used herein are trademarks or registered trademarks of Onyx. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
You may cancel your Onyx Account at any time by sending an email to firstname.lastname@example.org. If you cancel your Onyx Account you will still be obligated to pay your financial responsibilities under this Agreement. Please note that if your Onyx Account is cancelled, we do not have an obligation to delete or return to you any User Content you have posted to the Services, including, but not limited to, any reviews or Feedback.
IF YOU CHOOSE TO USE THE SERVICES, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT ONYX DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY USER, INCLUDING, BUT NOT LIMITED TO, GUESTS AND HOME OWNERS. THE SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ONYX EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ONYX MAKES NO WARRANTY THAT THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY ACCOMMODATIONS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ONYX MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, ACCOMMODATIONS, THE SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ONYX OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability
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 SERVICES, YOUR LISTING OR BOOKING OF ANY ACCOMMODATIONS VIA THE SERVICES REMAINS WITH YOU. NEITHER ONYX NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ONYX HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE HOME OWNERS PURSUANT TO THESE TERMS, IN NO EVENT WILL ONYX’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE SERVICES AS A GUEST IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A HOME OWNER, THE AMOUNTS PAID BY ONYX 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 ONYX AND YOU.
You agree to release, defend, indemnify, and hold Onyx and its affiliates and subsidiaries, and their officers, directors, employees and agents (specifically including Homeowners), harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Application, Services, or Content or your violation of these Terms; (b) your User Content; (c) your (i) interaction with any User, (ii) booking of an Accommodation, (iii) creation of a Listing or (iv) the use, condition or rental of an Accommodation by you, including, but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a rental, booking or use of a Accommodation.
These Terms constitute the entire and exclusive understanding and agreement between Onyx and you regarding the Services and any bookings or Listings of Accommodations made via the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Onyx and you regarding the Services.
You may not assign or transfer these Terms, by operation of law or otherwise, without Onyx’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Onyx may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Onyx (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of Texas and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in Austin, Texas or a United States District Court located in Austin, Texas.
The failure of Onyx to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms, please contact Onyx at email@example.com