THIS BOOKING AGREEMENT (this "Agreement"), is entered into as of the date set forth on the signature page of this Agreement (the "Effective Date"), by and between the "Member" and the "Guest" (as each were defined on the booking confirmation page viewed and accepted by the Guest as a condition precedent to being presented with this Agreement (the "Booking Page"). The Member and the Guest may be referred to as the "Parties" and each individually as a "Party" throughout this Agreement.
WHEREAS, the Member is the manager or owner, or an authorized representative acting on behalf of the manager or owner, of the real property located at the address set forth on the Booking Page (the "Property"); and
WHEREAS, the Member has promoted the Property as 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") for the period of time during which the Guest desires to occupy the Property (the "Occupancy Period").
NOW, THEREFORE, the Parties agree to be bound by the terms and conditions of this Agreement as they relate to the Reservation of the Property during the Occupancy Period.
Term of the Reservation. The Reservation shall commence at [___] (the "Check-In Time") on the first date of the Occupancy Period and shall terminate at [___] (the "Check-Out Time") on the final day of the Occupancy Period, unless otherwise terminated by the Guest 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 virtue of law.
Termination. Notwithstanding anything to the contrary herein, in the event that the Guest violates any Reservation Rules (as defined below) contained in Section 4 of this Agreement, the Member may, at its sole discretion, require the Guest 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 Fees (as defined below).
Guest agrees to pay, without demand, those fees set forth on the Booking Page, which fees include (i) the rental fee for the Guest's use of the Property, and for any credit card processing necessary to finalize the payment of fees due hereunder (the "Reservation Fees"), (ii) the security deposit for the Guest's use of the Property during the Occupancy Period (the "Security Deposit"), and (iii) any fees for services ancillary to the Reservation, as requested by Guest (the "Ancillary Fees," and together with the Reservation Fees and the Security Deposit, hereinafter referred to as the "Fees").
Fees shall be due on the date(s) set forth on the Booking Page (the "Payment Dates"). In the event the Guest fails to pay any Fee by the applicable Payment Date, the Member may, at its sole discretion, elect to 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 those costs incurred in preparation of the Property for the Occupancy Period, and has foregone the opportunity to offer the Property to a guest other than the Guest during the Occupancy period. Considering these costs incurred, in the event of a Cancellation, the Member shall be entitled to retain any or all of the Fees already paid by the Guest, subject to any understanding to the contrary contained on the Booking Page.
By entering into this Agreement, Guest agrees that any Fees collected and retained by Member in connection with the Reservation are the property of the Member, and Guest therefore further agrees not to chargeback any Fees collected by Member. In the event that Guest violates this Section 3(d), Guest agrees that Member 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(d), 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 Guest's credit card initially use for paying Fees.
The Guest will not be entitled to, and 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 (ii) causing the Guest to abandon the Property prior to the conclusion of the Occupancy Period.
Reservation Rules. The Guest's use of the Property during the Occupancy Period shall be governed by the following rules (the "Reservation Rules") 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. As informed by the Guest on the Booking Page, during the Occupancy Period, the Guest and __ additional adults, and __ additional children will be occupying the Property (each a "Guest Party Member"). Guest shall not permit, nor allow any Guest Party Member to permit, any person other than the Guest Party Members onto the Property at any time. The number of Guest Party Members shall not exceed the maximum occupancy number provided on the Booking Page (the "Occupancy Amount"), and the number of Guest Party Members actually using the Property during the Occupancy Period shall not deviate from the number provided on the Booking Page by the Guest;
General Behavior. Guest agrees to treat, and to cause Visitors to treat, with the same level of care that Guest would treat, or cause Visitors to treat, its own property;
Noise. Guests, Guest Party Members, and any other persons invited to the Property by the Guest or the Guest Party Members (collectively "Visitors") shall maintain noise levels so as to not disturb any Property neighbors;
Injuries and Illnesses. Guest agrees to use, and cause Visitors to 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, in Guest's reasonable belief, 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, the Visitors shall abide by all laws, ordinances, rules and orders of appropriate local, state and federal governmental authorities with regard to the use by the Visitors 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;
Pets. Pets are not permitted on the Property, absent the prior written consent of Marquis, which consent shall be contingent upon the approval of the Member.
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;
Check-in/Check-out. Guest will arrive at the Property no sooner than the Check-In Time, and will depart the Property at the end of the Occupancy Period no later than the Check-Out Time;
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.); and
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, (ii) prior to the Occupancy Period, or (iii) upon Guest's arrival at the Property (collectively, the "House Policies").
Representations, Warranties and Acknowledgements:
Guest represents and warrants to the Member that:
Guest is at least 21 years of age;
Guest has the 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:
Any reconfiguration of sleeping arrangements made by the Member prior to the Occupancy Period at the Property shall not have the effect of reducing the Occupancy amount;
The Property is suitable for the Guest's quiet enjoyment and free of dangerous or hazardous conditions; and
Subject to Section 6(c), below, Member will notify Guest of any Property uses that will result in Member incurring Extraordinary Expenses.
Guest shall be responsible for any damages to the Property arising in connection with any Visitor's breach of any of the Reservation Rules, or other provisions of this Agreement ("Property Damages"). To the extent that Property Damages incurred and reported by Member exceed the Security Deposit, Guest authorizes the Member to charge (or have charged) such excess amount to the Guest's credit card used to pay any Reservation Fees (the "Reservation Card"). To the extent that the Security Deposit exceeds any Property Damages incurred and reported by Member, the excess will be returned to the Member in a commercially reasonable period of time. Any costs or expenses incurred by the Member, or Marquis Rentals LLC as agent for the Member ("Marquis"), in connection with the enforcement of this Section 6, including but not limited to legal fees, shall be charged to the Reservation Card, and Guest hereby expressly authorizes any such charge(s). Guest agrees that, except in the instance of fraud, all decisions made by Member with regard to the Property Damages are final decisions, not subject to negotiation, and Guest shall have no right to inspect any reports filed or created in connection with any Property Damages assessment.
Guest accepts and acknowledges that certain uses by the Guest Party Members of the Property will result in Member incurring additional, unexpected expenses ("Extraordinary Expenses"), and that Member reserves the right to treat any such Extraordinary Expenses as Property Damages, in accordance with Section 6(a).
Expenses incurred by Owner in connection with any Guest Party Member's use of the Property in any way, shape or form beyond what is reasonably expected by the Guest (for example, unnecessary and excessive use of climate control systems), shall be treated as Extraordinary Expenses, whether or not Guest was given prior notice thereof in accordance with Section 5(b)(iii).
Indemnification. Guest agrees to hold harmless, defend and indemnify Member, Marquis, and Marquis' 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 (including legal fees and disbursement incurred by any Indemnitee in connection with the foregoing) (each a "Claim") arising directly or indirectly out of, or otherwise in connection with (i) the breach by any Visitor of any Reservation Rules, House Policies or other provisions of this Agreement, or (ii) otherwise arising in connection with 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 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. In the event of any such Claim, the Indemnitee(s) shall notify Guest of such 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, 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 CASE SHALL MEMBER, OR MARQUIS, 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 GUESTS'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.
Arbitration. The Parties hereto understand and agree that, from and after the Effective Date, any and all claims, grievances, demands, controversies, causes of action or disputes of any nature whatsoever (hereinafter "Disputes"), arising out of, in connection with, or in relation to (a) this Agreement, or (b) questions of arbitrability under this Agreement, shall be resolved by final, binding, nonjudicial arbitration in accordance with the Federal Arbitration Act, 9 U.S.C. Section 1, et seq. pursuant to the following procedures:
Any Party may send another Party or Parties written notice identifying the matter in dispute and invoking the procedures of this Section 9 (the "Dispute Notice"). Within fourteen (14) days from delivery of the Dispute Notice, each Party involved in the dispute shall meet at a mutually agreed location in New York, New York, for the purpose of determining whether they can resolve the dispute themselves by written agreement, and, if not, whether they can agree upon an impartial third-party arbitrator (the "Arbitrator") to whom to submit the matter in dispute for final and binding arbitration.
If such Parties fail to resolve the dispute by written agreement or agree on the Arbitrator within the later of fourteen (14) days from any such initial meeting or within thirty (30) days from the delivery of the Dispute Notice, any such Party may make written application to the Judicial Arbitration and Mediation Services ("JAMS") in New York City, New York for the appointment of a single Arbitrator to resolve the dispute by arbitration. At the request of JAMS the Parties involved in the dispute shall meet with JAMS at its offices within ten (10) calendar days of such request to discuss the dispute and the qualifications and experience which each Party respectively believes the Arbitrator should have; provided, however, that the selection of the Arbitrator shall be the exclusive decision of JAMS and shall be made within thirty (30) days of the written application to JAMS.
Within thirty (30) days of the selection of the Arbitrator, the Parties involved in the dispute shall meet in New York City, New York, with such Arbitrator at a place and time designated by such Arbitrator after consultation with such Parties and present their respective positions on the dispute. Each Party shall have no longer than one (1) day to present its position, the entire proceeding before the Arbitrator shall be no more than three (3) consecutive days, and the decision of the Arbitrator shall be made in writing no more than thirty (30) days following the end of the proceeding. Such an award shall be a final and binding determination of the dispute and shall be fully enforceable as an arbitration decision in any court having jurisdiction and venue over such parties. The prevailing Party or Parties (as determined by the Arbitrator) shall in addition be awarded by the Arbitrator such Party's or Parties' own legal fees and expenses in connection with such proceeding. The non-prevailing Party or Parties (as determined by the Arbitrator) shall pay the Arbitrator's fees and expenses.
Holdovers. For each calendar day that any Visitor remains at the Property beyond the Occupancy Period (including the final day of the Occupancy Period, after Check-Out Time), the Guest agrees to pay additional fees equal to the daily Reservation Fee for the Property, multiplied two (2) (the "Holdover Fees") and authorizes the Member or Marquis to charge Holdover Fees to the Reservation Card.
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. Costs to replace lost keys will be treated as Property Damages, in accordance with Section 6.
Reservation Cancellation. Guest acknowledges and agrees that upon reasonable determination by Marquis, in its sole discretion, that Member will be unable to satisfy its obligations arising in connection with a Reservation, Marquis may terminate any such Reservation (a "Marquis Termination"). In the event of a Marquis Termination, Guests will receive a full refund of paid Fees and Member and Marquis 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.
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 has no impact on the Occupancy Amount.
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(f) 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.
Right to Inspection. Member, and its authorized representatives, shall be entitled to enter the Property, at reasonable times, for the purpose of inspecting the Property and making necessary repairs, with or without notice to the Visitors.
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(g) 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. This Agreement shall be governed by and construed in accordance with, the laws of the State of New York, without reference to choice of law principles, including matters of construction, validity and performance. Venue for any dispute arising in connection with this Agreement shall be the state or federal courts in New York County, New York.
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.