THIS BOOKING AGREEMENT (this “Agreement”), is entered into as of the date set forth on the signature page below (the “Effective Date”), by and among the “Member” and the “Guest” (as each are defined in the series of booking information pages viewed and accepted by the Guest (on whichever booking platform used by the Guest) prior to receiving this Agreement (the “Booking Page”)), and Marquis, as defined in Section 10(s), herein (“Marquis”), as an intended beneficiary with respect to, but only with respect to, those particular provisions within which Marquis is explicitly referenced. The Member and the Guest are hereinafter referred to as the “Parties” and each individually as a “Party”.
WHEREAS, the Member has all necessary power and authority to manage that certain parcel of real property located at the address set forth on the Booking Page (the “Property”); and
WHEREAS, the Property
is available for temporary occupancy for the “Occupancy Period” as defined on the Booking Page; and
WHEREAS, the Guest desires to rent the Property (the “Reservation”) during the Occupancy Period.
NOW, THEREFORE, the Parties agree as follows:
Term of the Reservation. The Reservation shall commence and conclude, on the first and last days of the Occupancy Period, at the times described on the Booking Page (and no sooner or later, respectively), unless otherwise terminated by the Member pursuant to Section 2 of this Agreement. Guest agrees to accept the Property “As-Is,” and acknowledges that Member makes no representations or warranties beyond those contained herein or otherwise implied by law.
Termination. If the Guest violates any Reservation Rule (as defined below), subject to any applicable cure period, the Member may at its sole discretion require the Guest to, and the Guest shall and shall cause all Visitors to, immediately vacate the Property (an “Early Termination”). In the event of an Early Termination Guest shall not be entitled to a refund of any Reservation Fees (as defined below). Furthermore, prior to the execution and delivery by the Guest of this Agreement, the Guest made certain representations to the Member, including but not limited to the following: (i) number and age of Visitors, (ii) whether the Guest would have any pet(s) (including any service animals or emotional support animals or other animals which might be deemed a medical necessity), and (iii) the nature of the Reservation (for example, whether the Reservation was for an event, or a bachelor party, etc.) (collectively, “Fundamental Representations”). The Guest acknowledges and agrees that the truth and accuracy of the Fundamental Representations at the time of confirming the Reservation and during the Occupancy Period, are conditions precedent to the Member’s execution and delivery of this Agreement and that any inaccuracy of or material omission from any Fundamental Representation shall spring the Member’s right to cause an Early Termination.
- Subject to the Extended Stay Requirement (as defined below), upon execution and delivery of this Agreement Guest shall pay to Marquis, without demand, those fees set forth on the Booking Page, including (i) fees for occupancy of the Property during the Occupancy Period, and credit card processing fees incurred in connection therewith (“Reservation Fees”), (ii) the security deposit for the Reservation (the “Security Deposit”), and (iii) any fees due to Marquis or Member for ancillary services (the “Ancillary Fees,” and together with the Reservation Fees and the Security Deposit, collectively the “Fees”). To the extent Guest is delinquent by more than five (5) days in payment of any Fees, Guest shall pay such late fees as required by Marquis (in amounts not to exceed amounts permitted by the Statewide Housing Security & Tenant Protection Act of 2019 and the Housing Stability & Tenant Protection Act of 2019, or any other similar state or federal legislation, if any so applicable (the “Acts”)). If at any time Marquis receives a Member Claim which Marquis determines, in its sole, reasonable discretion, is likely to result in a Member Damages Amount in excess of the Security Deposit, Marquis may collect additional Security Deposit in the amount of such excess by charging the Guest’s credit card used by Guest in connection with the Reservation (the “Guest Card”). Marquis reserves the right, in its sole discretion to, upon notice to the Guest, limit the amount of Fees payable via credit card, and require balance of payments to be made via other method reasonably determined by Marquis.
- To the extent the Acts restrict or prevent collection of the entirety of Reservation Fees upon execution and delivery of this Agreement, Guest agrees to remit, at the end of each month of the Occupancy Period, the maximum additional portion of the Reservation Fees collectible at such time, for the duration of the Occupancy Period (the “Extended Stay Requirement”).
- Fees shall be due on the date(s) set forth on the Booking Page, but in no event later than the last date before the Occupancy Period (the “Payment Dates”). If the Guest fails to pay any Fee by the applicable Payment Date, the Member may either (i) charge a late fee, or (ii) cancel the reservation ((ii) hereinafter referred to as a “Cancellation”).
- Guest acknowledges that the Member has, in entering into this Agreement, incurred significant costs, including but not limited to costs incurred in preparation of the Property for the Occupancy Period, and has foregone the opportunity to offer the Property to other guests. Therefore, upon any Cancellation, Guest shall forfeit all Fees already paid.
- Guest agrees not to institute any credit card or other payment agency chargeback with respect to any Fees collected (a “Chargeback”) in connection with the Reservation. In the event that Guest violates this Section 3(e), Guest agrees that Marquis or its authorized representative shall be entitled to recover the amount subject to the Guest’s Chargeback and any fees incurred by Member in connection with enforcement of this Section 3(e), including but not limited to processing fees and legal fees (collectively “Chargeback Expenses”), by charging (or having charged) an amount equal to such Chargeback Expenses to the Guest Card or such other means as determined by Marquis (the “Chargeback Guaranty”). In order to secure the due and punctual satisfaction of the Guest’s obligations with respect to the Chargeback Guaranty, the Guest grants to Marquis a security interest (the “Security Interest”) in all of the Guest’s assets, of every type and description, whether now or hereafter owned by the Guest (the “Collateral”), and upon the Guest’s failure to promptly satisfy the Chargeback Guaranty, the Guest authorizes Marquis to file such UCC financing statements as Marquis may deem necessary and appropriate in order to perfect and keep perfected Marquis’ Security Interest and continuing lien in, on and to the Collateral, and the proceeds thereof and any replacements or substitutions thereof. For the avoidance of doubt, Guest’s sole recourse with respect to any dissatisfaction with the Property during the Occupancy Period is set forth in Section 6, below. For the purpose of clarity, if Guest makes any claim with its credit card company, or other payment agency (e.g. paypal, venmo, etc.) that would protest, cancel, or otherwise diminish payment by Guest of Fees, such claim shall for purposes of this Agreement be deemed a “Chargeback” which would trigger obligations under the Chargeback Guaranty. Notwithstanding the foregoing, to the extent that the Guest pays all Fees via wire transfer of immediately available funds, this Section 3(e) shall be null and void ab initio.
- The Guest will not receive any refund of Fees for any period of inclement weather (i) overlapping the Occupancy Period, (ii) interfering with Guest’s ability to reach the Property during the Occupancy Period, or (iii) causing the Guest to abandon the Property prior to the conclusion of the Occupancy Period.
- If Guest retains any entity controlling, under control of, or under common control with, Marquis to perform services in connection with the Reservation (a “Marquis Affiliate”), Guest permits Marquis to share Guest’s Guest Card with such Marquis Affiliate for the purpose of processing fees for such services.
Reservation Rules. The Guest’s use of the Property during the Occupancy Period shall be governed by the following rules (the “Reservation Rules”) which Guest agrees to enforce, and which may be waived only by the Member, in writing:
- Smoking. Unless otherwise set forth on the Booking Page, smoking of any kind is not permitted at the Property.
- Occupancy. During the Occupancy Period, the Guest will have no more than the number of adults and children at the Property (each a “Guest Party Member”) described on the Booking Page and shall not permit, nor allow any Guest Party Member to permit, any person other than or in excess of the permitted number of Guest Party Members onto the Property at any time. For the avoidance of doubt, the term “Visitors” as used herein refers to Guest Party Members and any other person at the Property with or without permission from the Member. If at any point during the Occupancy Period more than the permitted Guest Party Members are present at the Property, Marquis may, in its discretion, deem such presence an “Event” and charge an Event fee of up to $10,000, to be payable to the Member. FOR THE AVOIDANCE OF DOUBT, NOTHING HEREIN SHALL BE CONSTRUED AS A GRANT OF ANY AUTHORITY TO GUEST TO HOST, OR CAUSE A THIRD PARTY TO HOST, ANY EVENT.
- General Behavior. Visitors shall treat the Property with the level of care that Guest would reasonably be expected to treat its own property.
- Noise. Visitors shall maintain noise levels so as to not disturb any Property neighbors.
- Injuries and Illnesses. Visitors shall use the Property in accordance with its intended use (primarily, lodging purposes). By entering into this Agreement, Guest acknowledges that Guest expressly assumes the risk of any injury or illness occurring in connection with the use by the Visitors of the Property. Guest will immediately, or otherwise as soon as reasonably possible, notify Member of any injury to any Visitor that occurred at the Property.
- Property Condition. Guest shall immediately (or otherwise, as soon as reasonably possible) inform Member of any condition of the Property that renders the Property unfit for occupancy, or might otherwise threaten the structural or aesthetic integrity of the Property. Guest shall leave the Property at the end of the Occupancy Period in the same condition as at the beginning of the Occupancy Period.
- Business Conducted at the Property. Neither the Property nor any part of the Property nor any space appurtenant to the Property nor any land or water bordering the Property shall be used for the purpose of carrying on any business, profession or trade of any kind, except as customary with the occupancy of any property similar to the Property.
- Laws and Regulations. Prior to, during and after the Occupancy Period, Visitors shall abide by all laws, ordinances, rules and orders of appropriate local, state and federal governmental authorities with regard to the use of the Property, and shall not engage in any illegal activity thereon.
- Appliances, Facilities and Systems. Visitors shall use all Property appliances, facilities, systems or other Property features in accordance with their intended uses. Guest agrees to limit use of all electrical, plumbing, sanitary, heating, air conditioning and other Property facilities as necessary in connection with the reasonable use of the Property by the Visitors. For the avoidance of doubt, the Guest shall not use any of the foregoing in any way that would not reasonably be anticipated by the Member, or any person in a similar position to the Member with regard to any real property.
- Utilities. Unless otherwise agreed to in writing by the Guest and the Member, utility costs arising during the Occupancy Period will be allocated between the Guest and the Member, and the Guest and Member will be responsible for the payment and/or reimbursement to the other Party of such utility costs, as set forth in the Marquis Utilities Allocation Rules, a copy of which have been made available for Member’s and Guest’s review at the following URL: https://staymarquis.com/terms). This Section 4(j) shall survive any inclusion of nightly utility fees in Reservation Fees, as agreed to on the Booking Page.
- Pets. Pets are not permitted on the Property, absent the Member’s prior written consent.
- Valuables. Guest agrees to store and/or maintain valuables at the Property at its own risk. Guest acknowledges and accepts that owner is under no obligation whatsoever to provide any form of anti-theft or security system at the Property. Guest acknowledges that Member makes no representations as to the efficacy of any such system maintained at the Property, if any.
- Dangerous Items. Possession of guns, other weapons, explosives, hazardous materials, illicit drugs, or other dangerous items, at the Property is prohibited at all times.
- Doors and Windows. Guest will at all reasonable times keep Property windows and doors locked. Guest will restore any house appliance, system or facility to its resting condition upon completion of the Guest’s use thereof (i.e. shutting off ovens, putting out fires, etc.).
- Additional Reservation Rules. Visitors will at all times abide by any additional rules or restrictions provided by Member whether provided (i) upon entrance into this Agreement and attached hereto, (ii) prior to the Occupancy Period, or (iii) upon Guest’s arrival at the Property ((i) through (iii) collectively, the “House Policies”). In the event of any conflict between House Policies and this Agreement, the terms of the House Policies shall control.
- Cleaning Obligation. If the Occupancy Period is longer than seven (7) days, at the end of each seven (7) day period of the Occupancy Period the Property will be professionally cleaned. Ancillary Fees for such cleaning services, if not paid in advance shall be paid by the Guest as incurred by the Member.
- Guest acknowledges and agrees that any breach of Subsections (a), (b), (h), (k) or (m) at any time (i) will constitute a material breach of this Agreement by the Guest, (ii) will result in the Member incurring additional costs and expenses in connection with the operation of the Property, and (iii) that therefore, in consideration of costs and expenses incurred by Member upon any such breach, the Guest will forfeit all of its Security Deposit to the Member without further consent or requirement of action by or on the behalf of the Guest, such forfeiture not to be deemed an exclusive remedy. For the avoidance of doubt, breaches of these Subsections are not curable. Cure periods for all other Reservation Rule breaches shall be 24 hours from receipt of notice of such breach.
Representations, Warranties and Acknowledgements:
- Guest represents and warrants to the Member that:
- Guest is at least 21 years of age;
- Guest has all necessary power and authority to enter into this Agreement;
- Entrance into this Agreement by the Guest will not constitute a breach by Guest of any agreement or other understanding between Guest and any third party; and
- Guest shall supervise Visitors in and around the Property at all times, and ensure that all Visitors abide by the House Policies and Reservation Rules.
- Member represents and warrants to the Guest that:
- The Property is suitable for the Guest’s quiet enjoyment and free of dangerous or hazardous conditions; and
- The Property, as of the time of the commencement of the Occupancy Period, is in a reasonably good state of repair and no condition persists at the Property of which the Member had, or upon reasonable inspection by the Member or its authorized representatives should have had knowledge, that would be deemed by a Guest to constitute a breach of the Member’s representation in this Section 5(b)(i).
- Guest agrees and acknowledges that certain uses by Visitors of the Property will result in Member incurring additional, unexpected expenses (“Extraordinary Expenses”) for which Guest is obligated to reimburse Member as set forth in Section 7, below. For the purposes of this Agreement, Extraordinary Expenses shall include (i) costs incurred by Member in connection with Guest’s use of the Property other than those costs allocated to the Member on the Marquis utility cost allocation table (“Member Costs”), a copy of which is available here: https://staymarquis.com/terms; (ii) other costs incurred by Member, other than Member Costs, which Guest was notified by Member prior to the commencement of the Reservation would be treated as Extraordinary Expenses; and (iii) costs arising as a result of Guest’s use of the Property for any reason or purpose other than as is customary in connection with temporary residential inhabitance(s). For the avoidance of doubt, with respect to (iii) in the preceding sentence, Member’s assumption upon entering into this Agreement is that Visitors will use the Property for no purpose other than as a temporary place of residence.
- In the event that either (i) Guest has a complaint regarding the Property during the Reservation (a “Guest Complaint”), or (ii) the Member has a complaint with respect to the Guest’s treatment of the Property during the Reservation (a “Member Complaint,” and together with any Guest Complaints, hereinafter referred to as “Reservation Complaints”), Guest or Member (as applicable) shall notify Marquis of such Reservation Complaint as promptly after their recognition of such Reservation Complaint as practical (a “Reservation Complaint Notice”), which Reservation Complaint Notice shall include (i) a detailed description of the nature of the Reservation Complaint, (ii) a description of why the Guest or Member (as applicable) believes the Reservation Complaint to have resulted from the acts or omissions of the other, (iii) any evidence substantiating the foregoing, and (iv) an estimation of the damages resulting from such Reservation Complaint.
- Marquis will promptly investigate any timely delivered Reservation Complaint Notice, and use commercially reasonable efforts to evaluate the accuracy of such Reservation Complaint Notice, and the amount of refund or reimbursement (if any) due in connection therewith. Member and Guest each agree that (i) the amount to be refunded or credited, if any, pursuant to a Reservation Complaint is difficult to determine with precision, (ii) Marquis, in light of its experience in resolving similar conflicts, is in the best position to fairly evaluate all information received with respect to a Reservation Complaint and determine the appropriate refund or reimbursement with respect thereto, and (iii) therefore, Member and Guest each agree to accept Marquis’ evaluation of a Reservation Complaint as a final determination thereof, fully enforceable both in law and in equity and waive any rights to protest its acceptance of this provision hereafter.
- If however a Reservation Complaint Notice is not timely submitted, or Marquis cannot reasonably evaluate a Reservation Complaint Notice, then upon notice to the Guest and Member Marquis may elect not to make such evaluation and in such instance Guest and Member shall pursue such other means as they deem reasonable to enforce their rights, provided however that both Guest and Member agree that Marquis shall have no liability for either (i) electing not to evaluate a Reservation Complaint, or (ii) returning the Security Deposit to the Guest if it so elects.
- For the avoidance of doubt, Marquis is not obligated to act as mediator of any dispute between Guest and Member, and Marquis is not an escrow agent and will not hold any Security Deposit for the benefit of either Guest or Member if it elects not to evaluate a Reservation Complaint.
Security Deposit Returns
- Other than any portion of Security Deposit to be distributed to Member pursuant to Section 6 above, upon conclusion of the Occupancy Period or reasonably promptly thereafter Marquis shall return any remaining Security Deposit to the Guest.
Indemnification. Guest agrees to hold harmless, defend and indemnify Member, Marquis, and each of their employees, consultants, agents, representatives, affiliates, officers, managers and directors (collectively with Marquis and the Member, the “Indemnitees,” and each an “Indemnitee”) from and against any and all claims for property damage, personal injury, and any all claims, demands, causes of action, payments, costs and expenses (including legal fees and disbursements incurred by any Indemnitee in connection with the foregoing) (each a “Claim”) arising directly or indirectly out of, or in connection with (i) damage to the Property or personal injury at the Property due to any Visitor’s negligence, willful misconduct, or breach of any obligations set forth herein; (ii) the breach by Visitor of any Reservation Rules, House Policies or other provisions of this Agreement, or (iii) any Visitor’s occupancy of or presence at the Property, before, during or after the Occupancy Period, provided however that the Guest shall have no indemnity obligation to the Member hereunder to the extent the relevant Claim arose, directly or indirectly, from the Member’s gross negligence, willful neglect, or breach of any of its obligations set forth hereunder. Indemnitee(s) shall notify Guest of any Claim as soon as reasonably possible, and Guest shall assume the defense of such Claim at its own cost and expense, provided, however, that Guest shall not be entitled to enter into settlement with regard to any such claim without the prior written consent of the Member and/or Marquis (as appropriate), such consent not to be unreasonably withheld. Indemnitees shall be entitled to participate in any such defense at its or their own expense.
Limitation of Liability.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL (i) MEMBER, OR (ii) MARQUIS OR ANY OF ITS AFFILIATED ENTITIES, SHAREHOLDERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS OR REPRESENTATIVES (COLLECTIVELY THE “AFFILIATES”), BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, OR FOR ANY DAMAGES FOR DEATH, PERSONAL OR BODILY INJURY, EMOTIONAL DISTRESS, OR DAMAGE TO PROPERTY, ARISING OUT OF OR IN CONNECTION WITH ANY VISITOR’S OCCUPANCY OF THE PROPERTY, WHETHER BEFORE, DURING OR AFTER THE OCCUPANCY PERIOD. THIS LIMITATION APPLIES TO ALL CLAIMS FOR DAMAGES WHETHER BASED ON A THEORY OF WARRANTY, CONTRACT, TORT (INCLUDING ORDINARY NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF MEMBER OR MARQUIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND EVEN IF THE LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- NEITHER MARQUIS NOR THE AFFILIATES SHALL UNDER ANY CIRCUMSTANCE BE LIABLE OR RESPONSIBLE IN ANY WAY FOR THE ACTIONS OR FAULTS OF (I) MEMBER, (II) GUEST (OR ANY VISITOR), OR (III) ANY THIRD PARTY ENGAGED TO PROVIDE SERVICES FOR MEMBER OR GUEST (OR ANY VISITOR), PRIOR TO, DURING OR AFTER THE OCCUPANCY PERIOD, WHETHER IN CONNECTION WITH OR ANCILLARY TO THE RESERVATION, AND WHETHER SUCH THIRD PARTY SERVICES ARE RENDERED ON THE PROPERTY OR ELSEWHERE.
- Both Guest and Member waive and release any and all Claims, now known or hereafter known, against Marquis, its Affiliates, and each of their officers, directors, manager, employees, agents, affiliates, members, successors, and assigns (collectively, "Releasees"), arising in connection with Marquis’s or any Releasee’s performance of its obligations hereunder, whether arising out of the ordinary negligence of Marquis or any Releasees or otherwise. Guest and Member covenant not to make or bring any such Claim against the Company or any other Releasee, and forever release and discharge Marquis and all other Releasees from liability under such claims. This waiver and release does not extend to claims for gross negligence, willful misconduct, or any other liabilities that New York law does not permit to be released by agreement.
- Holdovers. The Guest agrees to pay additional fees equal to (i) $200 per hour any Visitor remains on the Property beyond the check-out time on the check-out date, and (ii) two (2) times the daily Reservation Fee per day that the holdover extends past the check-out date (“Holdover Fees”) and authorizes the Member or Marquis to charge all Holdover Fees to the Guest Card, or use whatever other reasonable means necessary to recoup any Holdover Fees not charged to the Guest Card.
- Force Majeure. Neither Member nor Marquis shall be liable for any default or delay in the performance of its responsibilities under the Agreement if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, hurricane, earthquake, ocean phenomena, drought, elements of nature or acts of God, riots, strikes, civil disorders, quarantine restrictions, epidemics, pandemics, or any other cause beyond the reasonable control of such party ("Force Majeure"). If it appears that the Force Majeure will prevent or result in a delay in a Guest, acting reasonably, from having normal use of the Property or will prevent the Member from performing its obligations under this Agreement, all payments for any unused portion of the rental will be refunded to Guest.
- Keys. Guest will be provided with either an access code for the Property, or one or more keys to the Property. Upon conclusion of the Occupancy period, Guest shall return any keys as instructed in the House Policies. Guest will be responsible for reimbursing Member for lost keys in the amount of $50, whether or not the loss of such keys was referenced in any Member Claim.
- Brokerage. If Guest or any Guest Party Member (hereinafter a “Purchaser”) desires to purchase all or any portion of the Property, such Purchaser may, upon written notice to Marquis, elect to appoint Marquis as Purchaser’s broker in connection with such purchase (an “Appointment”). Whether or not a Purchaser elects an Appointment, Purchaser(s) and Member covenant, jointly and severally, to pay Marquis fifty percent (50%) of the aggregate brokerage commissions payable in connection with the purchase by a Purchaser of the Property within not more than thirty (30) days of the closing of such purchase. Marquis will provide Member and Purchaser with its real estate brokerage license information as reasonably requested in connection with any Qualified Purchase. Failure by Guest or any Guest Party Member to effectuate the Appointment shall not relieve such Guest or Guest Party Member of the Payment Obligation.
- Reservation Cancellation. The Parties acknowledge and agree that upon reasonable determination by Member or Marquis that it will be or has become unable to satisfy its obligations arising in connection with a Reservation, Member or Marquis may terminate any such Reservation (a “Member Termination”) effective immediately. In the event of a Marquis Termination, Guests will receive a refund of Fees from the Member proportional to the number of days during left in the Occupancy Period at the time of Member Termination and Member will be released of all obligations to Guest, inclusive of the obligation to find a replacement Property or Reservation.
- Insurance. Member makes no representation as to the existence, or lack thereof, of any insurance policy tied to use of the Property by the Member or the Visitors. Guest grants Marquis authority to cause SafelyStay, Inc., to verify Guest’s identity, and check criminal databases in order to confirm Guest’s reservation. Complete terms regarding Safely’s guest verification can be found at www.safely.com/terms. Guest may contact Safely at Concierge@Safely.com, or go to www.Safely.com, if Guest has any questions with regard to the foregoing authorization.
- Alterations. Guest shall make no changes or alterations to the Property without the prior written consent of the Member, which consent may be withheld in the Member’s sole discretion. Should Member consent to any changes or alterations, the product of such changes or alterations shall inure to the benefit, and become the property of the Member, to the exclusion of the Guest and the Visitors.
- Property Configuration. Member may reconfigure the Property at any time prior to the Occupancy Period, so long as such reconfiguration does not diminish the Property’s suitability for the Guest Party Members.
- Assignment. The Guest may not assign or transfer any of its rights or obligations arising hereunder to any third party without the prior written consent of the Member. The Member may assign or transfer any of its right or obligations arising hereunder to any third party acquiring the Property or any interest therein. Breach of this Section 10(i) by the Guest may, at the sole discretion of the Member, constitute an Early Termination, and any such unauthorized assignment or transfer shall be considered null and void.
- Access to Premises; Right to Inspection. Member and its authorized representatives shall be entitled to enter the Property for the purpose of inspecting the Property and making necessary repairs, or showing the Property for rent or sale, at reasonable daytime hours, including weekends, with or without notice to the Guest. In the event the Member or its authorized representatives are required to access the Property to avoid a breach by the Member of this Agreement, the Guests shall cooperate with Member as reasonably necessary to accommodate such access. Notwithstanding the foregoing, unless otherwise agreed to by the Guest in writing prior to the commencement of the Occupancy Period, Member shall be permitted absolutely no form or duration of inhabitancy or use of the Property, or any part of the Property, during the Occupancy Period. Member acknowledges that their agreement to the foregoing restriction is a fundamental condition precedent to Guest’s ability to derive the intended benefit of the Reservation, and its willingness to enter into this Agreement, and that any breach of the foregoing restriction by Member, which breach goes uncured for more than four (4) hours from Member’s receipt of notice thereof from Guest or Marquis (provided that after the first incident of any such breach no such cure period shall be available), shall trigger an obligation of Member to return to the Guest 100% of Fees paid by such Guest for the Reservation, less any amount of Security Deposit released to Member hereunder.
- Signage. Member may maintain signage at the Property, relating to the Property, and no Visitor shall interfere in any way, shape or form with such signage. Breach of this Section 10(k) by any Visitor may, at the sole discretion of the Member, constitute an Early Termination.
- Abandonment. Abandonment of the Property for more than seven (7) consecutive days, or any other period that, considering the surrounding circumstances would cause a reasonable person to presume that the Property was abandoned, during the Occupancy Period may, at the sole discretion of the Member, constitute an Early Termination.
- No Landlord-Tenant Relationship. Nothing herein shall be interpreted as to establish a landlord-tenant relationship between the Guest and either Marquis or the Member.
- Opportunity to Review. Guest acknowledges that Guest has been provided opportunity to review and ask questions pertaining to this Agreement, which is fundamental to the understanding between the Guest and the Member, and that failure of Guest to either review or ask questions pertaining to this Agreement is a decision made by Guest at its own risk.
- Severability. The invalidity of any portion of this Agreement shall not affect the validity, force or effect of the remaining portions of this Agreement. If it is ever held that any restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, each Party agrees that a court of competent jurisdiction may enforce such restriction to the maximum extent permitted by law, and each party hereby consents and agrees that such scope may be judicially modified accordingly in any proceeding brought to enforce such restriction.
- Headings. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
- Governing Law; Venue. These Terms shall be governed by and construed in accordance with the laws of the State of New York without regard to conflict or conflict of law principles. Any suit or other action arising out of, or in connection with, this Agreement may be brought only in the New York state courts sitting in New York County, New York or in the United States District Court for the Southern District of New York and each of the Parties hereby irrevocably consents to the jurisdiction of, and venue in, such courts.
- Amendment. This Agreement may be amended, modified or supplemented only by a written agreement signed by all the Parties hereto.
- Waiver. The failure of either Party at any time to require performance by the other party of any provision hereof shall in no way affect the full right to require such performance at any time thereafter. Nor shall the waiver by either Party of a breach of any provision hereof be a waiver of any succeeding breach of the same or any other such provisions or be a waiver of the provision itself.
- Marquis Entities. If the Property is located in Colorado, “Marquis” means Marquis Colorado, LLC. If the Property is located anywhere other than Colorado, “Marquis” means Marquis New York, LLC. Nothing in this Section 10(t) shall be deemed or construed as to modify Section 10(q) of this Agreement.