This Promotion Agreement (the "Agreement") is entered into between Marquis New York, LLC (hereafter referred to as "Marquis," "we," "us," or "our"), a New York limited liability company, and the "Member" (hereafter referred to as "Member", "you" or "your") as defined as a person who completes the Marquis account registration process (the "Registration").
WHEREAS, Marquis maintains an online booking platform located at www.staymarquis.com (the "Site") which assists property owners and managers to electronically market real property for temporary occupancy, (the "Booking Services") to parties searching for real property ("Guests") for a temporary occupancy period (a "Reservation"); and
WHEREAS, in connection with the Site, Marquis offers certain ancillary services to supplement the Booking Services (the "Ancillary Services," and collectively with the Booking Services, hereinafter referred to as the "Services"); and
WHEREAS, Member desires to engage Marquis to perform the Services, as set forth herein, in connection with that certain real property located at the address provided to Marquis in connection with the Member's Registration (the "Property").
NOW, THEREFORE, for valuable consideration, the sufficiency and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
Neutral Platform. This Agreement is between Marquis and the Member. Marquis is not and shall not become a third-party beneficiary to any agreement entered into by and between the Member and the Guest, including any agreement by which a Reservation is finalized (each a "Booking Agreement"), whether entered into in connection with the Services, or otherwise. By entering into this Agreement, Member acknowledges and accepts that (i) Marquis makes no representations or warranties with regard to any Guest, any Property, or the Site, (ii) Marquis is not and will not be a third party beneficiary to any Booking Agreement and shall neither hold, be charged with, nor be asked to indemnify Member for any liability arising in connection with any representations or warranties made by either Guest or Property, whether on or via the Site, or otherwise, (iii) Marquis makes no representations or warranties with regard to the financial performance of the Member's Property in connection with use of the Services, (iv) Member's use of the Site is and shall be solely at its own risk and discretion, as further described herein, (v) Marquis does not and shall not act as, or accept any offer to act as, an agent of either Member or Guests in connection with any Booking Agreement, or related agreement or understanding, and, (vi) this Agreement does not create the relationship of principal and agent, brokerage, partnership or a joint venture between Member and Marquis. Member acknowledges that neither Marquis nor any of its affiliated entities, shareholders, members, directors, employees, agents or representatives are acting or are licensed as real estate brokers or real estate salespersons.
Member Representations. Member represents and warrants the following and agrees to notify Marquis immediately if at any time any of the following representations or warranties are no longer true or accurate:
Member has the authority to enter into, execute and perform the obligations set forth in this Agreement;
Member is the owner of the Property or the duly authorized representative of the owner of the Property and is legally authorized to transact business and license the use of the Property to Guests;
Claims made by the Member regarding the Property (including, without limitation, occupancy restrictions and limitations, availability of appliances, Property name and address, Rental Fees, smoking restrictions, directions, entry instructions, local contact numbers, applicable taxes, notices regarding construction and/or maintenance, and any additional details that Guests would need in order to book, visit and enjoy the Property) whether made or represented graphically or in writing, are accurate and will remain accurate or shall otherwise be updated by the Member upon any change;
The Property is reasonably safe for human occupancy, and, if advertised as suitable for pets, safe for pet occupancy, and suitable for the Guest's Quiet Enjoyment;
Member shall maintain an updated Portal (as defined below), with regard to availability of the Property;
Additional authorization, approval or acknowledgment of any other parties is not required in order for Marquis to perform the Services; and
Entrance into this Agreement will not conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, or other understanding to which the Member is a party or by which the Property is bound or affected.
Services and Fees.
Except as otherwise set forth in Section 3(d), below, Member is responsible for determining Reservation fees (the "Rental Fees"), and Reservation security deposit(s) to be held in case of any damage to the Property (each a "Security Deposit") in connection with a Reservation, provided, however, that from time to time Marquis may recommend certain Rental Fee rates to the Member.
Member acknowledges that Rental Fees subject to any completed Reservation are material terms of such Reservation and may not be changed without the respective Guest's consent which may be withheld at the Guest's discretion, subject to the language of the respective Booking Agreement.
Member is required to maintain a valid sub-merchant account (a "Merchant Account") so that Marquis may distribute to you any Rental Fees earned by you in connection with a Reservation (less Marketing Fees, as described herein). Guests will be charged for any transaction processing fees (including charge-backs) owed to a third party processor, and such fees shall automatically be withheld from any payments made to you. In the event Marquis or Marquis' third party provider is not able to automatically withdraw such fees, you shall be responsible for such fees and authorize us (or our third party payment processor) to immediately and automatically charge your credit card or bank account for such fees until such fees can be collected from your Guest. You must require payment of Rental Fees in full prior to the start of a Reservation. Notwithstanding the foregoing, Rental Fees will not be released to you until you either: (i) accept (either electronically on our website or otherwise, as determined in the discretion of Marquis) the respective Booking Agreement, or (ii) approve release of the Guest's payment (either electronically on our website or otherwise if consented to by Marquis). You agree and acknowledge that Marquis has the right to delay any and all payments to be made by a Guest until you are in compliance with this requirement.
From time to time Marquis may grant Member the option to pre-determine certain minimum reservation parameters ("Reservation Parameters") on the Member's unique Site portal (the "Portal"), pertaining to, among other Reservation Parameters, Security Deposits, Reservation Fees, pet permissibility, maximum Guest party numbers, and Property availability (such option hereinafter referred to as the "Member Option"). Member agrees that in the event Member exercises the Member Option, Member will be deemed to have approved of, and to have entered into any Booking Agreement that satisfies Member's Reservation Parameters, for so long as and until Member notifies Marquis in writing (which writing may be transmitted electronically) of its desire to terminate the Member Option.
Marquis shall process payment of Rental Fees and the Security Deposit owed by a Guest in connection with a Booking Agreement, on behalf of the Member. Upon receipt in full by Member of the agreed to Rental Fees and Security Deposit, Marquis shall release to the Member the Rental Fees, less the Marketing Fees (as defined below) owed to Marquis in connection with the Reservation. The Security Deposit shall be released to the Guest in accordance with Paragraph 4, below.
Upon Registration, and entrance into this Agreement, Marquis may, from time to time, at its discretion, offer to the Member the following "Ancillary Services" (as defined in the Preamble):
In-person Property review and recommendations with respect to enhancement of Property;
Preferred listings on Marquis' Site;
Listings on any Marketing Partner Sites (defined below);
Marquis' management of any inquiries received about the Property from the Site or any Marketing Partner Site, via email and telephone, as appropriate; or
Annual analysis of Property performance and improvement and make recommendations to maximize rental income and increase occupancy levels; or
Third-party cleaning and concierge services.
Prices for Ancillary Services (the "Ancillary Fees") will be provided to Member in conjunction with Registration.
To the extent Ancillary Services involve performance of any services by any third party (a "Third Party Provider"), the agreement for such Ancillary Services shall be entered into by and between Marquis and such Third Party Provider. Member shall in no way, shape or form be a 3rd party beneficiary to any such Third Party Provider agreement.
Marquis reserves the right to, at any time, for any reason or for no reason at all, withhold Ancillary Services from the Member. Member will not be invoiced for any Ancillary Services withheld by Marquis, regardless of whether Member elected to obtain such Ancillary Services during Registration. Withholding of Ancillary Services by Marquis SHALL NOT constitute a breach under this Agreement.
Member acknowledges that Marquis reserves the right to enter into separate agreements with Guests, to which Member are not a party, pursuant to which Marquis may collect certain fees from Guest separate and apart from Rental Fees and Security Deposits (hereinafter referred to as "Guest Fees"), and further that Marquis shall not be obligated to share any part of any Guest Fees with Member.
Stripe Account. Payment processing services for Member on the Site are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). By entering into this Agreement, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of the Site enabling payment processing services through Stripe, you agree to provide the Site accurate and complete information about you and your business (as appropriate), and you authorize the Site to share it and transaction information related to your use of the payment processing services provided by Stripe.
Return of Security Deposit.
Upon completion of a Reservation, a Member or its authorized representative (a "Member Party") shall, within not more than fourteen (14) calendar days of the completion of such Reservation (the "Report Period"), submit to Marquis a report detailing any damages to the Property caused by the acts of the Guest (beyond normal wear and tear), and an estimate of costs to repair or fix such damages (a "Damage Report").
If the Member Party fails to submit a Damage Report during the Report Period (which failure shall hereinafter be referred to as a "Damage Waiver"), or otherwise submits a Damage Report with no damages reported, Marquis shall be entitled to return the entire Security Deposit to the Guest.
Upon receipt of a Damage Report, Marquis shall be entitled to request that the Member substantiate such Damage Report by submission to Marquis of reasonable evidence of claimed damage expenses. Failure by Member to substantiate a Damage Report within fourteen (14) calendar days of Marquis' request shall constitute a Damage Waiver. If the substantiation provided does not reasonably support the Damage Report, Marquis and the Member shall use commercially reasonable efforts to reach a resolution with regard to the disputed Damage Report. Should the parties fail to reach a resolution with regard to a disputed Damage Report, the parties shall resort to arbitration in accordance with this Agreement.
Marquis may, in its sole discretion, choose to replace lost or broken items referenced in a Damaged Report, if and only if Marquis can replace the lost or broken item with an identical item.
By completing Registration, you authorize Marquis to, from time to time, at its sole discretion, market your Property on one or more third party websites with whom Marquis partners (collectively, the "Marketing Partner Sites"). Nothing herein shall be construed as obligating Marquis to market your Property on any Marketing Partner Sites, or to otherwise disclose the Marketing Partner Sites with which Marquis may from time to time partner.
Unless otherwise agreed to in writing by the Parties, you authorize Marquis to post reasonable signage on the Property, which signage may feature the Marquis name, any Marquis trademarks, and Marquis contact information.
Access to Property. After Registration, Member and Marquis shall mutually agree upon a time for Marquis to enter the Property for the purposes of Marquis compiling promotional material necessary for the Member's use of the Site (a "Promotion Session"). The Promotion Session shall occur when the Property is either (i) unoccupied, or (ii) occupied by the Member's immediate family, relatives, or other guests with whom Member is personally acquainted. Member shall use commercially reasonable efforts to ensure that the Property is in good condition at the time of the Promotion Session. Failure to present the Property in good condition, and subject to the requirements of this Section 6, at the time of the Promotion Session shall result in a one-time charge to the Member of $1,000, which Member authorizes Marquis to deduct and withhold from any Rental Fees that become due to Member, or otherwise charge to Member's credit card on file with Marquis. During every Reservation, a Member Party will be made reasonably available for necessary correspondences with Marquis regarding the Reservation and the respective Guests. Member's ongoing adherence to the provisions of this Section 6 are condition precedent to Member's ability to thereafter make or complete any Reservation via the Site.
Property Availability. Member agrees to maintain up to date availability information on the Portal. If the Property is unavailable for any Reservation scheduled for dates as identified available in the Portal, Member shall exercise commercially reasonable efforts to honor the affected Reservation. If Member engages Marquis on a performance based model as described in the Portal, and deems additional dates as unavailable within the specified availability range, Marquis will automatically reduce each benchmark by the currently advertised booking rate for the unavailable dates.
Property Presentation. The use of the Site and Marketing Partner Sites is not exclusive to your Property, and Marquis reserves the right to, at its discretion, juxtapose your Property with the property of other Members. Marquis reserves the right to provide potential guests with any information provided by Member via the Portal.
Term and Termination. The term of this Agreement (the "Term") shall commence upon the execution of this Agreement (the "Effective Date") and expire upon written notice by either party to the other party of its desire for this Agreement to terminate. Any Reservation made prior to termination of this Agreement, and all the rights and obligations of the party's ancillary thereto as set forth herein, shall survive such termination. Marquis may, in its sole discretion and without liability to Member, with or without cause, with or without prior notice and at any time (i) suspend and/or terminate Member's access to Services or the Site; (ii) modify or discontinue, temporarily or permanently, any portion of Services or the Site; (iii) deactivate or delete any Member account and all related information and files in such accounts; and/or (iv) bar Member's access to any of such files, Services or the Site.
Restrictions on Outside Marketing. For the period commencing on the Effective Date and ending on the later of (i) the one (1) year anniversary of the Effective Date, and (ii) the six (6) month anniversary of the expiration of the Term, you agree not to use any platform (including direct use of Marketing Partner Sites) other than the Site to promote your Property for temporary occupancy, or to otherwise secure any reservation of your Property for temporary occupancy, without the prior written consent of Marquis which consent may be withheld for any reason or for no reason (the "Use Restriction"). Any prices for temporary occupancy of your property posted in violation of this Section 10 that are lower than the Rental Fees available for the identical time periods, via the Site (or the Marketing Partner Sites via the Site), as measured on a day by day basis, shall be substituted for the Rental Fees otherwise posted via the Site (or the Marketing Partner Sites via the Site) without notice to you and you hereby waive notice of those adjustments. Member acknowledges and agrees that Marquis has invested substantial time and resources in connection with the promotion of Member's Property, and that any breach of the Use Restriction will result in damages to Marquis that are difficult or impossible to quantify. Therefore, for each instance of breach of the Use Restriction, Member agrees to pay to Marquis, and Marquis shall be permitted to collect from Member, liquidated damages in the amount of $500, which Member authorizes Marquis to deduct and withhold from any Rental Fees that become due to Member, provided, however, that aggregate liquidated damages due hereunder shall not exceed $5,000. The Parties acknowledge and agree that these liquidated damages correspond with actual damages that are difficult or impossible to quantify at this time, and are fair in light of the circumstances, and the Parties further acknowledge and agree that the liquidated damages described herein are not, and shall not be construed as a penalty.
Ownership of Marketing Materials. All of the information and content on the Site, including but not limited to all text, graphics, artwork, games, projections, ratings, evaluations, software applications and code, video, audio, photographs, graphics, digital assets or digital images, online communication and instant messaging, and user interface design, and any media, whether downloadable, available for use on the Site, or both, whether provided for free or only to paid Members, including but not limited to downloadable posters, brochures, documents, charts, schedules, etc., and any content Marquis hosts, or communicates, or transmits, whether on social media or via any other means (collectively hereinafter referred to as the "Marketing Materials") is the property of Marquis, or its affiliates, if any, or is being used by Marquis with the express permission of a licensor, and is protected by copyright laws throughout the world. Member may not modify, reproduce, copy, distribute, transmit, display, publish, download or upload, sell, license, create derivative works of, or use any aspect of the Marketing Materials without the express written consent of Marquis. At no time does this Agreement provide you with the right to transfer ownership, license or otherwise share copyright, or any other exclusive rights as provided by the Copyright Act 17 U.S.C. Section § 6. Marketing Materials may contain copyright management information at the discretion of Marquis either in the form of (i) a copyright notice and/or (ii) other copyright and ownership information embedded in the metadata or elsewhere. Removing and/or altering such information is prohibited and constitutes violation of the Digital Millennium Copyright Act (DMCA). Nothing herein shall be construed to restrict Marquis' rights to pursue all remedies available to it hereunder, at law or in equity, against any person for any unauthorized use, or unauthorized facilitation of use by another, of the Marketing Materials, including, without limitation, a decree of specific performance and/or injunctive relief, and the exercise of any such right by Marquis shall not prohibit Marquis from seeking to enforce damages pursuant to any other Section hereof or otherwise available under the applicable law.
Damage to Property.
Marquis disclaims any and all liability for any loss, damage or injury to the Property or any personal property left on the Property, arising in connection with any Reservation or Member's personal use of the Property. Any personal property or possessions stored in or left at the Property should be adequately secured, and you agree not to leave personal property of a nature unsuitable for Guest use in the Property.
IN NO EVENT WILL MARQUIS NOR ANY OF ITS AFFILIATED ENTITIES, SHAREHOLDERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS OR REPRESENTATIVES (COLLECTIVELY, THE "AFFILIATES") BE LIABLE FOR ANY DELAYS, ACCIDENTS, DAMAGES, INJURIES OR LOSSES SUFFERED BY MEMBERS, GUESTS OR THE PROPERTY. MARQUIS IS NOT RESPONSIBLE OR LIABLE FOR MANAGING OR MAINTAINING THE PROPERTY OR FOR THE ACTIONS, INACTIONS OR FAULTS OF MEMBER OR ANY OTHER THIRD PARTY INVOLVED IN THE BOOKING OR MANAGEMENT OF THE PROPERTY. NEITHER MARQUIS NOR ITS AFFILIATE SHALL BE LIABLE TO THE MEMBER FOR ANY SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING DAMAGES (INCLUDING LOSS OF DATA, REVENUE, AND/OR PROFITS) COSTS OR EXPENSES (INCLUDING LEGAL FEES AND EXPENSES), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THIS AGREEMENT REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES OR OTHERWISE, AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. The foregoing limitation, however, does not apply to claims or damages arising in connection with any infringement, misuse or misappropriation of Marketing Materials by Member, or either party's gross negligence, willful misconduct or fraud.
Marquis' maximum liability under this Agreement shall be the aggregate of all Marketing Fees collected by Marquis on behalf of the Member, in connection herewith.
Guest Complaints and Disputes with Guests. You agree to promptly address any complaints made by Guests, including, but not limited to, complaints regarding damaged household items or appliances, rodent or pest problems, torn screens, stained linens, broken furniture, unkempt grounds and access limitations. You understand that if reasonable complaints are not addressed promptly you will be suspended from listing your Property on our Site and/or obtaining our Services until such time as such complaint is addressed in a suitable manner. Notwithstanding the foregoing, you agree that you are solely responsible for resolving disputes with Guests. We reserve the right, but have no obligations, to monitor disputes between you and a Guest.
Booking Agreement. You acknowledge that you have been provided an opportunity to review the form Booking Agreement (as available here: www.staymarquis.com/terms), and agree to be bound by its terms in connection with each Reservation. Member is responsible for providing Guest with any supplemental policies or procedures pertaining to the Property and the Reservation, provided, however that a Guest will not be asked or required to sign any additional documentation beyond the Booking Agreement. You agree that Marquis will not be responsible for collecting any additional signatures, approvals or authorizations from a Guest after they have accepted a Booking Agreement. Your acceptance of released Rental Fees constitutes your countersignature to or acceptance of the respective Booking Agreement. FOR THE AVOIDANCE OF DOUBT, IF YOU HAVE EXERCISED THE MEMBER OPTION, AND A POTENTIAL RESERVATION SATISFIES YOUR PRE-DETERMINED RESERVATION PARAMATERS, YOU WILL BE DEEMED TO HAVE ACCEPTED ANY RESULTING BOOKING AGREEMENT.
No Guest Identity Verification. Marquis makes no representation regarding, and makes no covenants to investigate, the suitability of any Guest for occupancy of the Property. The Site provides means for your communication with the Guest and you have been made aware of the availability of such means, and you are free to utilize other means available to you with regard to potential Guests.
Compliance with Laws. Members agree that they are responsible for investigating and abiding by all local, municipal, state and federal laws, rules, ordinances, and regulations with regard to their use of the Site, Registration, use of Booking Services and Ancillary Services. Marquis, although not a party to any Transaction Agreement and not liable for legal or regulatory compliance pertaining to Properties listed on the Site, may from time to time be obligated (as we may determine in our sole discretion) to provide information relating to your Property or any current or past Reservation in order to comply with governmental bodies in relation to investigations, litigation or administrative proceedings, and we may choose to comply with or disregard such obligation in our sole discretion. Members who accept credit card, banking or other payment information from Guests agree to properly handle and safeguard all such information in accordance with applicable legal and regulatory requirements and best practices.
violates any local, municipal, state, provincial, national, or other law or regulation, or any order of a court or administrative agency;
violates any home owners association or other private contractual commitments with respect to your Property;
you know is false or misleading;
infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
is patently offensive or promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual;
is abusive, threatening, obscene, defamatory, or libelous;
exploits people in a sexual or violent manner;
contains nudity, violence, or offensive subject matter or contains a link to an adult website;
solicits personal information from anyone under 18;
provides any telephone numbers, street addresses, last names, URLs, or email addresses except with respect to the Property;
involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
contains restricted or password-only access pages or hidden pages or images;
furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities;
solicits passwords or personally identifiable information for commercial or unlawful purposes from other Users of this Site;
includes a photograph of another person that you have posted without that person's consent;
contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password, or other information of Marquis or any third party;
impersonates any person or entity, including any employee or representative of Marquis;
advocates, encourages, or assists any third party in doing any of the foregoing.
Additionally, you shall not: (i) take any action that imposes or may impose (as determined by Marquis in its sole discretion) an unreasonable or disproportionately large load on Marquis' or its third-party providers' infrastructure (including but not limited to the Site); (ii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; (iii) bypass any measures Marquis may use to prevent or restrict access to the Site (or other accounts, computer systems, or networks connected to the Site); (iv) run Maillist, Listserv, or any form of auto-responder or "spam" on the Site; or (v) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Site.
You shall not directly or indirectly: (i) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Site, except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Site; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder.
Cancellations and Refund Policy. In the event you need to cancel a Reservation for which you have received a fully executed Booking Agreement and a non-refundable payment to book the Property, you agree to do the following:
immediately notify Marquis and the Guest of the cancellation;
return to the Guest, or authorize Marquis to return to the Guest, all Rental Fees paid by Guest in connection with the underlying Reservation, including any otherwise non-refundable deposits.
Guarantee payment to Marquis of any Marketing Fees earned by Marquis in connection with the Reservation arising from such Booking Agreement. Marketing Fees are considered earned by Marquis upon completion of a Booking Agreement, regardless of whether or not you cancel any such Reservation. FOR THE AVOIDANCE OF DOUBT, IF YOU EXERCISE THE MEMBER OPTION, AND A BOOKING AGREEMENT IS EXECUTED THAT SATISFIES YOUR RESERVATION PARAMETERS, YOU WILL BE DEEMED TO HAVE AGREED TO, AND SHALL AND REMAIN OBLIGATED TO, PAY MARQUIS THE CORRESPONDING MARKETING FEES. For the avoidance of doubt, in the event that you terminate a Reservation made pursuant to a Booking Agreement, and Marquis returns all of the Rental Fees to the affected Guest, you shall owe to Marquis and Marquis may charge to your credit card on file with Marquis the Marketing Fees Marquis would otherwise have earned in connection with such Booking Agreement; and
execute an acknowledgment, by reasonable means as requested by Marquis, that Marquis is not liable for any expense or loss incurred by the Guest or you in connection with your cancellation.
Rental Fees for Reservations cancelled by Guests are non-refundable, as further described in each Booking Agreement. In the event a Reservation is cancelled by a Guest, Marquis shall be entitled to collect from the Rental Fees collected from such Guest, in accordance with Section 3(d) of this Agreement, an amount equal to (a) the Marketing Fees Marquis would otherwise have collected in connection with such Reservation multiplied by (b) a fraction in which (i) the numerator is the total amount of Rental Fees collected in connection therewith, and (ii) the denominator is the total amount of Rental Fees originally payable by the Guest in connection with the Reservation.
Taxes. We are not an owner or operator of hotel or motel rooms, nor do we provide rooms, lodging or accommodations. We do not own, sell, resell, furnish, provide, rent, re-rent, manage and/or control hotel rooms, motel rooms or any other lodgings or accommodations. We do not act as an agent for any providers or users of hotel rooms, motel rooms, or other lodging or accommodations. We merely make available a platform for Members and Guests to find one another and, if they wish, arrange for accommodations. Marquis is not a contracting agent or representative of the Member or Guest. Instead, Marquis's role is solely to facilitate the availability of the Site as a venue for Members and Guests and to provide our Services related thereto, and any agreement for the use of any Property is solely between the Member and Guest, and not Marquis. You understand and agree that you are solely responsible for determining your own tax reporting requirements and payment of real estate, personal property taxes and sales taxes, if any, relating to the Property or similar tax due on proceeds from Reservations. We cannot and do not offer tax advice to either Members or Guests.
Fees Payable to Marquis. We may charge a fee for each Property to cover our up-front out-of-pocket expenses, including, but not limited to, the cost of developing the marketing materials for your Property (the "On-Board Fee"), for which we may charge your credit card on file with Marquis. We may also charge an initial listing fee for each Property to be listed on the Platform (the "Listing Fee,"), for which we may charge your credit card on file with Marquis. We will charge a marketing fee equal to a percentage of the Rental Fees owed to you from a Guest for any Reservation (the "Marketing Fee," and together with the On-Board Fee and the Listing Fee, the "Marquis Fees"); provided, however, in the event the Guest extends the Guest's stay, the Marketing Fee owed to Marquis shall be based upon the updated check-in and check-out dates (an "Extension"). You agree that Marquis may deduct and withhold its Marketing Fees from Rental Fees received by Marquis on your behalf in connection with any Reservation. You further agree that Marquis may charge your credit card on file with Marquis, (i) for Ancillary Fees requested, (ii) in connection with an Extension, for additional Marketing Fees due to Marquis but not already withheld, and (iii) as otherwise set forth in Section 19(b). We shall provide not less than fifteen days prior notice of any change to any Marketing Fees, during which time you can terminate this Agreement; non-termination in any such instance shall constitute your acceptance of the revised Marketing Fees. Changes to Marketing Fees shall be prospective. The Marketing Fees are calculated based on the check-in and check-out dates of the Guest, plus any additional occupant fees, if any. For your applicable Marquis Fees, please see your owner portal. The Marquis Fees do not cover (i) taxes, (ii) Ancillary Fees, or (iii) any Rental Fees. Marketing Fees are non-refundable. In addition to the Marketing Fees, the Rental Fees and the Ancillary Fees, some optional services or functionality may incur additional fees, as determined by us in our sole discretion – we will provide you advance notice of any such fees prior to our charging you accordingly. You are required to provide us with a valid credit card or bank account information in order to activate this Agreement. You agree to keep your credit card and/or bank account information updated, and to provide us with a new valid account number if your old card or account is deactivated, expired or does not have sufficient credit or funds available to pay your fees. We reserve the right to place your account on hold, suspend our Services and/or terminate this Agreement if you are overdue in paying us any amounts due. If you wish to dispute any fee charged to your credit card or withdrawn from your bank account, you agree to discuss such dispute with us and work towards a resolution. You expressly agree to not dispute fees with your issuing credit card company or bank, which could result in a "charge back", prior to discussing the dispute with us directly. Declined, refused and/or returned payments may result in a $50.00 service charge payable immediately.
Links to Third Party Sites. The Site may permit you to link to other websites or resources on the internet, and other websites or resources may contain links to the Site. When you access third-party websites, you do so at your own risk. Marquis has no control over, and disclaims any and all liability for, the functionality or content of, any third-party websites. The inclusion on a third-party website of any link to the Site does not imply endorsement by or affiliation with Marquis. You further acknowledge and agree that Marquis shall not be liable for any damage related to the use of any content, goods, or services available through any third-party website or resource.
Right to Sell Other Products. You are not entitled to any commissions earned by Marquis from the sale of any products or services marketing in conjunction with the Property or the Site, provided, however, that Marquis shall not bind you to any obligations without your prior written consent.
Right to Display Advertising. Certain advertising information may be displayed on our Site and/or through our Services in our sole discretion. The display of advertising information shall not entitle you to any advertising fees or revenues from such advertising unless otherwise explicitly agreed to in writing by us. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through our Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Marquis shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers as a part of our Services.
DISCLAIMER OF GUARANTEES. Member understands and agrees that Marquis has made no guarantees (written or verbal) with respect to occupancy or income levels for any of your Property subject to this Agreement.
Insurance. Member is solely responsible for obtaining insurance policies sufficient to protect their Property and Guests during any Reservation, including but not limited to General Commercial Liability Insurance, Vacation Rental Insurance, and Homeowner's Insurance. Member agrees that they have or will obtain the appropriate insurance before the arrival of their first Guest and will maintain adequate insurance coverage through the departure date of any Guest they have obtained via our Site. Member agrees to provide Marquis with copies of relevant proof of coverage upon request. Further, Member agrees to name Marquis as an additional insured on each such policy. Member understands and agrees that Marquis may make a claim under any Member insurance policy related to any damage or loss. Member agrees to cooperate with and assist Marquis in good faith, and to provide Marquis with such information as may be reasonably requested by Marquis, to make a claim under Member's homeowner's, renter's or other insurance policy, including, but not limited to, executing documents and taking such further acts as Marquis may reasonably request to assist Marquis in accomplishing the foregoing.
Indemnification. Member shall defend, indemnify and hold harmless Marquis, its Affiliates, and each of their shareholders, members, contractors, suppliers, officers, directors, representatives, agents, and employees, and each of their successors, assigns and licensees (collectively, the "Indemnitees") to the fullest extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities, joint and several, expenses of any nature (including attorneys' fees and disbursements), judgments, fines, settlements and other amounts of any nature whatsoever, known or unknown, liquid or illiquid (collectively, "Liabilities") arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative (collectively, "Actions"), in which any Indemnitee may be involved, or threatened to be involved as a party or otherwise based upon or in any way related to Member's breach or alleged breach of any obligation, representation, warranty or covenant in this Agreement; from the acts or omissions of Member or any Member Party; and, from the gross negligence, fraud or willful misconduct of any Member or Member Party. Indemnitee(s) shall be entitled to appoint their own defense counsel in connection with any indemnification obligation arising hereunder. Member shall be entitled to participate in such defense at its own cost.
Force Majeure. If, whether directly or indirectly, any 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 Member, will prevent or result in a delay in a Guest, acting reasonably, from having normal use of the Property or prevents Member or Marquis from performing its obligations under this Agreement, all payments for any unused portion of the respective Reservation will be refunded to Guest.
Waiver. The waiver by either Party of any breach of any covenant or condition of this Agreement shall not be construed as a waiver of any subsequent breach of such covenant or condition or of the breach of any other restrictive covenant or condition contained in this Agreement.
Headings. Any section or paragraph title or caption contained in this Agreement is for convenience only, and in no way defines, limits or describes the scope or intent of this Agreement or any of the provisions hereof.
Assignment. Member shall not assign this Agreement without the prior written consent of Marquis. Any such purported assignment shall be void. Marquis may assign this Agreement to any affiliate of Marquis, or to any party acquiring all or substantially all of the assets or equity interests in Marquis, without prior written consent of Member.
Severability. If any term, condition, or provision of this Agreement shall be found to be illegal or unenforceable to any extent for any reason, such provision shall be modified or deleted so as to make the balance of this Agreement, as modified, valid and enforceable to the fullest extent permitted by applicable law.
Amendment or Modification. This Agreement shall not be amended, revoked, altered or modified in whole or in part, except by an agreement in writing signed by the Parties.
Governing Law. 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.
Dispute Resolution. As a condition precedent to any other legal recourse (unless such legal recourse seeks injunctive relief), the parties hereto shall make good faith efforts to come to resolution regarding any dispute, controversy or claim (a "Dispute Claim"). An initial meeting to resolve the Dispute Claim shall be conducted by the parties at a meeting to be held via teleconference within fourteen (14) working days of a written request, which request shall specify in reasonable detail the nature of the Dispute Claim to be resolved at such meeting. The meeting shall be attended by representatives of the parties and any other person that may be affected in any material respect by the resolution of such Dispute Claim. Such representatives shall have authority to settle the Dispute Claim and shall attempt in good faith to resolve the Dispute Claim. The parties shall submit any unresolved Dispute Claim to binding arbitration before the American Arbitration Association (the "AAA") pursuant to the AAA's expedited rules, with proceedings to take place in New York, New York. Scope of the arbitration shall be limited to the relevant Dispute Claim. In the event of arbitration, the parties shall be responsible for their own legal fees and expenses, and the costs and expenses of the arbitrator and any fees charged by the AAA shall be apportioned equally between the parties; provided, however, in the event Marquis prevails in the arbitration, the Member is responsible for reimbursing Marquis for the costs and expenses of the arbitrator and any fees charged by the AAA.
Construction. This Agreement shall not be construed against any party by reason of the fact that the party may be responsible for the drafting of this Agreement or any provision hereof.
Signatures and Counterparts. This Agreement may be executed electronically and in more than one counterpart, each of which shall be deemed an original and all of which together shall be deemed one and the same instrument. By completing the account registration process, you agree to this agreement.