Total $4,500.00 Due: 02/28/2018
Daniel Stadlin has invited you to pay $____ towards the upcoming rental of Renees Way located in East Hampton, NY.
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This PROPERTY PROMOTION AGREEMENT (this “Agreement”) is entered into by and between Marquis New York, LLC (hereinafter referred to as “Marquis,” “we,” “us,” and “our”), and the “Member” (hereinafter also referred to as “you,” and “your,” and together with Marquis, hereinafter collectively referred to as the “Parties”), registered with Marquis via the Marquis account registration process (the “Registration Process”).
R E C I T A L S
WHEREAS, Marquis offers Members certain services (the “Booking Services”), via an online booking platform located at www.staymarquis.com (the “Site”), to assist Members market certain real property parcel(s), as indicated by Member in the Registration Process (each a “Property”), to guests (each a “Guest”), for temporary occupancy periods (each, as confirmed pursuant to a Booking Agreement (as defined below), a “Booking”); and
WHEREAS, Member desires to engage Marquis to perform the Booking Services, as further set forth herein, in connection with the Property.
NOW, THEREFORE, for good and valuable consideration, the sufficiency and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
A G R E E M E N T
1. Booking Services; Ancillary Services.
a. The term of this Agreement shall commence upon the later of (i) Member’s execution of this Agreement, and (ii) Member’s completion of the Registration Process (hereafter, the “Effective Date”), and expire upon delivery by either Party of written notice to the other Party of its desire for this Agreement to terminate. Any Booking made prior to the termination of this Agreement, and all the rights and obligations of Marquis, the Guest(s) and the Member bound thereby, shall survive the termination of this Agreement. Marquis may, for any reason whatsoever, without any liability to Member and without any requirement of advance notice (i) suspend, modify and/or terminate Member’s access to the Site or the Services, (ii) modify or discontinue, temporarily or permanently, any portion of the Services, (iii) deactivate or delete an Member account and related Portal, or (iv) take any action in connection with the foregoing.
b. Subject to payment by Member of any Listing Fee (defined herein), upon completion of the Registration Process, Marquis shall commence performing the Booking Services. Marquis makes no representation regarding, and makes no covenant to investigate, the suitability of any Guest for any Booking.
c. In addition to the Booking Services, Marquis may, from time to time offer (or, at its own discretion, decline to offer) the following ancillary services (among others) to the Member (the “Ancillary Services”):
2. Neutral Platform.
a. Nothing in this Agreement shall be construed or interpreted as an assumption by Marquis of any obligations or liabilities with respect to any agreement entered into by and between the Member and any third party, including but not limited to any (i) Guests, (ii) provider of Ancillary Services (each an “Ancillary Service Provider”), or (iii) third party with any rights, interests, obligations or liability with respect to the Property (an “External Service Provider”). For the avoidance of doubt, should Member enter into an agreement with any Guest(s) for a Booking (each such agreement hereinafter referred to as a “Booking Agreement”), Marquis shall have no liabilities or obligations with respect to such Booking Agreement, unless and except as otherwise explicitly set forth therein.
b. Ancillary Services provided by Ancillary Service Providers shall be governed by agreement entered into by and between Marquis and such 3rd party Ancillary Service Provider, and Member will not be a party to any such agreement(s). Notwithstanding anything to the contrary in this Agreement, Member acknowledges and agrees that Marquis is not, and shall not be, held responsible or liable in any way for the acts or omissions of any 3rd party Ancillary Service Provider.
c. With respect to any damages, costs, expenses, fees, liabilities, obligations, or other charges incurred by Member in connection with any Booking Agreement or other agreement between the Member and any Guest(s), Ancillary Service Provider, or External Service Provider (collectively, “Non-Marquis Parties”), Member shall look solely to such Non-Marquis Party. Member acknowledges and agrees that Marquis shall have no obligation to indemnify Member, under any circumstance whatsoever, for any liability or obligation arising in connection with Member’s transactions or interactions with any Non-Marquis Party. Sales taxes due in connection with services provided by any External Service Provider (“External Sales Tax Amounts”) are the responsibility of the Member and/or the respective External Service Provider, without regard to whether Marquis assisted the Member in the collection of any Rental Fees allocated to such services, and the Member covenants to cause such External Sales Tax Amounts to be paid as they accrue.
d. Marquis makes no representations or warranties with respect to the financial performance of the Property on the Site. Member acknowledges and agrees that results of Site usage by members, including Member, vary and are neither predictable or guaranteed, and further that Marquis has made no such predictions or guarantees with respect to the Property.
e. Nothing herein shall be construed as establishing a relationship of agency, brokerage, partnership or joint venture between the Parties.
3. Member Fees.
a. Member shall in its sole discretion determine, or appoint or authorize a third party to determine, (i) fees owed by Guests for Bookings (the “Rental Fees”), and (ii) security deposits to be collected from a Guest in connection with a Bookings (the “Security Deposit”). Rental Fees and Security Deposits for a Booking are material terms of the corresponding executed Booking Agreement and shall not be changed without the Guest’s prior written consent, which consent may be withheld in such Guest’s sole discretion. Notwithstanding the foregoing in this Section 3(a), from time to time the Member’s individual Site dashboard (the “Portal”) may enable the Member to set certain Booking parameters (“Booking Parameters”), which Booking Parameters may pertain to Rental Fees, Security Deposits, pet permissibility policies, maximum Guest party numbers, and Booking availability windows, among other parameters. Member will not dispute the validity of any Booking made in accordance with Member’s existent Booking Parameters. Booking Parameters may be adjusted or cancelled via the Member’s Portal. For the purposes of this Agreement, a Booking Parameter-compliant Booking cancelled by the Member shall be referred to as a “Member Terminated Booking”.
b. Marquis may from time to time advise a Member in setting Booking Parameters. Such advice shall not be binding and Marquis makes no representation or warranty with respect to the value or source of any such recommendation. Booking Parameters set with the advice of Marquis shall nonetheless be treated as if set by the sole discretion of the Member with respect to treatment of Member Terminated Bookings.
c. Marquis shall collect all Rental Fees and Security Deposits due in connection with a Booking, on behalf of Member. All Rental Fees due in connection with a Booking must be collected before such Booking will be considered final.
d. Member must provide and maintain a valid credit card or bank account with Marquis as a condition precedent to Member’s receipt of the Booking Services.
4. Marquis’ Fees. As consideration for performance by Marquis of the Booking Services, Member agrees to compensate Marquis as follows:
a. Initial Fees. Marquis may charge the Member a listing fee (the “Listing Fee”), for making a (and each) Property accessible to potential Guests via the Site. For the avoidance of doubt, the Registration Process shall not be deemed complete until the Member pays any applicable Listing Fee.
b. Marketing Fees. In addition to the Listing Fee, for each Booking Marquis will charge the Member a percentage (as set forth in the Portal) (the “Marketing Fee”) of the amount equal to (i) the total Rental Fees collected by Marquis, less (ii) any fees due to Marketing Partner(s) (“Marketing Partner Fees”) for performance of the services contemplated in Section 7 of this Agreement, which Marketing Fee is subject to change, prospectively, upon not less than fifteen (15) days prior written notice to the Member. Booking time-period extensions, whether made via the Site or otherwise, and release of any Released Amount (as defined in the Booking Agreement) to Member, shall result in the accrual of additional Marketing Fees. For the purposes of measuring and collecting Marketing Fees, a Member Terminated Booking shall be treated as a non-terminated Booking, as further described in Section 5(c), below.
c. Ancillary Services; Ancillary Fees. Upon or after completion of the Registration Process, Marquis may notify Member of availability of Ancillary Services, and the fees for such Ancillary Services (“Ancillary Fees”). Payment of Ancillary Fees shall become due and payable to Marquis promptly upon demand.
d. Upon termination of this Agreement, all outstanding Marketing Fees, Ancillary Fees and Listing Fees shall immediately become due and payable.
e. Member agrees that Member will attempt to resolve any dispute with regard to any amount withdrawn from or charged to Member’s Merchant Account or Credit Card by Marquis, with Marquis before initiating any credit card charge-back with respect thereto. Marquis reserves the right to charge Member $50 for any returned or refused payments, in acknowledgement of the costs Marquis will incur in responding to such return or refusal.
5. Payment of Member Fees; Collection of Guest Fees.
a. Member shall, at all times during which Member has any Property listed on the Site, maintain a valid sub-merchant account (a “Merchant Account”), with Stripe, which Merchant Account shall be subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By entering into this Agreement, Member agrees to be bound by the Stripe Services Agreement, as modified by Stripe from time to time. As a condition to Member’s and Marquis’ use of Stripe, Members agree to provide Marquis with accurate and complete information, as requested, and Member authorizes Marquis to share such information with Stripe, if and as appropriate.
b. Listing Fees will either (i) be collected by Marquis upon completion of the Registration Process, or (ii) otherwise billed to Member via Member’s Merchant Account, and Member hereby consent to either form of collection.
c. Upon Marquis’ receipt in full of Rental Fees and Security Deposits due in connection with any Booking, subject to, and in no event prior to, your consent to the underlying Booking Agreement and consent to release of Rental Fees, Marquis shall release to you, via your Merchant Account, an amount equal to the Rental Fees, less (i) any Marketing Partner Fees, (ii) Marketing Fees, and (iii) any transaction fees incurred by Marquis in releasing such Rental Fees. Notwithstanding the foregoing, Marquis reserves the right to withhold Rental Fees and Security Deposits, in full or in part at its sole discretion, pending the resolution of any then outstanding Charge-Backs. Security Deposits will be released to Guest or Member as set forth in Section 6, below. Marketing Fees due to Marquis in connection with any Member Terminated Booking shall either (i) be billed to Member via Member’s Merchant Account, or (ii) be deducted from any other Rental Fees owed to, or that become owed to the Member, in Marquis’ sole discretion, and you hereby consent to either form of collection.
d. If, after Rental Fees or Security Deposit(s) are released to the Member, a Guest initiates a credit-card (or other payment method) charge-back of any amount (a “Charge-Back”), Marquis may withdraw an equal amount from the Member’s Merchant Account (a “Charge-Back Withdrawal”). Upon resolution of any such Charge-Back, Marquis shall release to the Member from the Charge-Back Withdrawal an amount equal to the difference between (i) the entire Charge-Back Withdrawal, and (ii) the amount with respect to which the Guest’s Charge-Back was upheld.
e. If Marquis incurs any liability for any External Sales Tax Amount, Marquis may withdraw an amount equal to such liability from the Member’s Merchant Account (a “Sales Tax Withdrawal”).
f. If Marquis incurs any insurance deductible expenses for any injury, damage or other incident that occurs at the Property or in connection with a Booking (a “Deductible Amount”), Marquis may withdraw an amount equal to the Deductible Amount from the Member’s Merchant Account (a “Deductible Withdrawal,” and together with a Charge-Back Withdrawal and any Sales Tax Withdrawal, each a “Balance Withdrawal”).
g. To the extent Marquis is unable to process a Balance Withdrawal, or the authorized Balance Withdrawal is greater than the amount held in the Member’s Merchant Account at the time thereof, Marquis may thereafter withhold any part, or all, of Security Deposits or Rental Fees that would otherwise thereafter have been released to the Member pursuant to this Agreement until Marquis is made whole, provided however that the remedy set forth in this Section 5(f) is not intended to be an exclusive remedy and that Marquis reserves all rights and remedies otherwise available to it in equity and law in the event that the remedies set forth in this Section 5(f) are unavailable to Marquis for any reason whatsoever.
h. Member agrees and acknowledges that (i) Marquis may, from time to time at its sole discretion, enter into separate agreements with Guests, to which Member is not party, pursuant to which Marquis may collect certain fees (“Guest Fees”), and (ii) Member shall have no right to share in any Guest Fees so collected.
6. Security Deposit Returns; Extraordinary Expenses; Dispute Resolution – The Marquis Resolution Center.
a. After conclusion of a Booking, Member will be prompted by Marquis, and be provided a finite period of time, to submit claims for Property damages or Extraordinary Expenses (as defined in the Booking Agreement) incurred during the Booking (a “Member Claim”), which shall indicate the Member’s monetary damage estimate (the “Member Damages Amount”), and may include evidentiary support thereof. Failure by Member to timely submit a Member Claim shall constitute a waiver of such right, and be deemed authorization for Marquis to release any Security Deposit to the Guest. Notwithstanding the foregoing, if Member has elected to receive Booking Services that include delegation of damage report inspection to a third party (“Marquis Services”), Member Claims will be limited to Extraordinary Expenses, and will not include Property damage claims which will be submitted by the Member’s Marquis Services representative (an “Marquis Rep”). By electing to receive Marquis Services during the Registration Process the Member has agreed to appoint, and has appointed the Marquis Rep as its authorized representative for the purpose of submitting Member Claims pertaining to Property Damages. Therefore, any such Member Claims will be treated with the same force and effect as if submitted by the Member itself, without intervention or assistance from any third party.
b. Marquis will, within a commercially reasonable time period, forward the Member Claim to the relevant Guest, and provide Guest a finite time period to accept the Member Claim, or counter the Member Claim (a “Guest Counter”). If Guest fails to timely submit a Guest Counter, or accepts the Member Claim, the corresponding Member Damages Amount shall be released by Marquis to the Member from the Security Deposit and the balance, if any, returned to Guest.
c. If Guest timely submits a Guest Counter, Marquis will forward such Guest Counter to the Member, and provide Member a finite time period within which to accept the Guest Counter, or counter the Guest Counter (a “Member Counter”). If Member fails to timely submit a Member Counter, or accepts the Guest Counter, the corresponding Member Damages Amount shall be released by Marquis to the Member from the Security Deposit, and the balance, if any, returned to Guest.
d. If Member timely submits a Member Counter, Marquis will forward such Member Counter to the Guest, and provide Guest a finite time period within which to accept or reject the Member Counter. If the Guest accepts, or fails to timely reject, the Member Counter, the corresponding Member Damages Amount shall be released by Marquis to the Member from the Security Deposit, and the balance, if any, returned to Guest.
e. If Guest rejects such Member Counter, the final Member Damages Amount, and the allocation of the Security Deposit between Guest and Member, shall be made by Marquis in its sole discretion. Member agrees that (i) the actual Member Damages Amount 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 Member Claim and determine the appropriate Member Damages Amount with respect thereto, and (iii) therefore, Member agrees to accept Marquis’ determination as to the appropriate Member Damages Amount in such instances as a final determination thereof, fully enforceable both in law and in equity.
f. To the maximum extent permitted by applicable Law, this Section 6 sets forth the exclusive remedies and rights of the Member with respect to damages to the Property that occurred, and Extraordinary Expenses that were incurred by the Member, during and in connection with the Booking. The Member agrees that, except in the instance of fraud, all decisions made by Marquis pursuant hereto are final decisions, not subject to negotiation, and that the Member shall have no right to inspect any reports filed or created in connection therewith.
a. Marquis may at its sole discretion but shall under no circumstances be obligated to (i) promote the Property on one or more third party websites of Marquis’ choosing (each a “Marketing Partner Site”), and (ii) post reasonable signage on the Property promoting the Booking Services. Marquis shall not be obligated to disclose any Marketing Partner Site to Member. Notwithstanding anything to contrary herein, the Booking Services are not exclusive to the Member’s Property and Marquis may, at its discretion, juxtapose the Property with any other Marquis member’s property on the Site, any Marketing Partner Site, or elsewhere.
b. From the Effective Date until 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, Member shall not list the Property for the purpose of promoting availability of the Property for temporary occupancy, on any platform (including Marketing Partner Sites), other than the Site, for any purpose whatsoever (the “Use Restriction”). Marquis reserves the right to unilaterally adjust the Rental Fees, without notice to Member, to match any rental fees advertised by any third party, on any other platform in violation of the Use Restriction, in addition to all other rights available to Marquis. Member acknowledges and agrees that Marquis has invested substantial time and resources in connection with the Booking Services, 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 charge Member’s Merchant Account, or otherwise deduct from Rental Fees due or that become due to Member, liquidated damages in the amount of $500, provided however that aggregate liquidated damages due hereunder shall not exceed $5,000 in any twelve (12) month period. The Parties acknowledge and agree that these liquidated damages correspond with actual damages and are fair in light of the circumstances. The Parties further acknowledge and agree that the liquidated damages described herein are not, and shall not be construed as a penalty.
8. Access to Property. Upon completion of the Registration Process, the Parties shall set a time for Marquis to enter the Property for the purpose of generating marketing material incidental to the Booking Services (a “Promotion Session”). Except for the Guest (or representative of the Guest) and the Member, the Property shall be unoccupied during the Promotion Session. The Member covenants to present the Property in good and photographable condition at the time of the Promotion Session (the “Promotion Session Covenant”). The Promotion Session shall be considered a courtesy for the Member, provided however that if Member fails to fulfill its Promotion Session Covenant, Marquis shall charge the Member for such Promotion Session at the rate of $1,000, which Member authorizes Marquis to deduct and withhold from any Rental Fees that become due to Member, or to charge to Member’s credit card on file with Marquis. Member shall, at all times during any active Booking, be, or cause its representative to be, reasonably available for correspondences with Marquis regarding the Booking and the respective Guests.
9. Property Availability. Member agrees to maintain up-to-date Property availability information on the Portal. Member shall exercise commercially reasonable efforts to honor each Booking made through the Portal. 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.
10. Ownership of Marketing Materials. All 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.
11. Damage to Property,
a. 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 Booking 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 Member agrees not to leave personal property of a nature unsuitable for Guest’s use at the Property.
b. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MARQUIS OR 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 OR WITH RESPECT TO THE MEMBER, THE GUEST (OR GUEST’S INVITEES) 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 AFFILIATES 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.
c. Marquis’ maximum liability under this Agreement shall be the aggregate of all Marketing Fees collected by Marquis on behalf of the Member in the six (6) month period immediately preceding the date on which the liability first arose.
12. Member Representations and Warranties. 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:
a. Member has the authority to enter into, execute and perform the obligations set forth in this Agreement;
b. Member is the owner of the Property or the authorized representative of the Property Owner and is legally authorized to transact the business contemplated hereunder;
c. >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 and will be accurate as at the time of any confirmed Booking;
d. 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;
e. Member shall maintain an updated Portal, with regard to availability of the Property;
f. Member will not dispute the validity of any Rental Fee determined by any third party authorized agent of Member, without regard to whether Member was made aware of such Rental Fee determination;
g. Additional authorization, approval or acknowledgment of any other parties is not required in order for Marquis to perform the Booking Services;
h. 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;
i. Member shall promptly address any complaints made by Guests, pertaining to the Property or the Booking;
j. Member has been given an opportunity to review the form Booking Agreement (available at www.staymarquis.com/terms) and agrees to be bound by its terms in connection with any Booking. Member shall provide, and Marquis shall have no obligation to provide, Guests with any supplemental policies or procedures relating to the Property and the Booking, provided however that Guests will not be required by Member to sign any documentation aside from the Booking Agreement, in connection with a Booking. Your acceptance of Rental Fees constitutes your countersignature to or acceptance of the corresponding Booking Agreement. FOR THE AVOIDANCE OF DOUBT, YOU WILL BE DEEMED TO HAVE COUNTERSIGNED A BOOKING AGREEMENT FOR ANY BOOKING MADE IN ACCORDANCE WITH THE BOOKING PARAMETERS;
k. Member will properly handle and safeguard all Guest credit card, banking or other payment information in accordance with applicable legal and regulatory requirements and best practices;
m. Member will not, and will not permit any third party using Member’s account to, take any action or submit content that:
n. Member will 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; and
o. Member 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.
13. Compliance with Laws. Member will abide by (and as necessary, investigate) all local, municipal, state and federal laws, rules, ordinances, and regulations with regard to their use of the Site, Booking Services and Ancillary Services. Marquis, although 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 the Property or any current or past Booking in order to comply with governmental investigations, litigation or administrative proceedings, and Marquis may, in its sole discretion, comply or disregard such obligation
14. Cancellation and Refund Policies.
a. In the event Member cancels a Booking for which Member has received a fully executed Booking Agreement and Rental Fees, Member shall:
b. Rental Fees for Bookings cancelled by Guests are non-refundable, subject to Marquis’ cancellation of any Booking in accordance with its rights under the Booking Agreement. Cancellation of a Booking by a Guest shall have no impact on Marquis’ rights to collect Marketing Fees that would otherwise have been due to Marquis had such Booking not been cancelled, pro-rated based on the percentage of total Rental Fees collected from such cancelling Guest at or after the time of cancellation.
15. Taxes. Marquis is not an owner or operator of hotel or motel rooms, nor does Marquis provide rooms, lodging or accommodations. Marquis does not own, sell, resell, furnish, provide, rent, re-rent, manage and/or control hotel rooms, motel rooms or any other lodgings or accommodations. Marquis does not act as an agent for any providers or users of hotel rooms, motel rooms, or other lodging or accommodations. Marquis merely makes 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, subject to certain rights reserved by Marquis in connection with and as set forth in the Booking Agreement. 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 Bookings. Marquis cannot and does not offer tax advice to either Members or Guests. Marquis will provide Members with a Form 1099 if required by law.
16. 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.
17. 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.
18. Right to Display Advertising. Certain advertising information may be displayed on our Site and/or through our Booking Services in our sole discretion. The display of advertising information shall not entitle Member to any advertising fees or revenues from such advertising unless otherwise explicitly agreed to in writing by Marquis. Member’s correspondence or business dealings with, or participation in promotions of, advertisers found on or through Booking 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 Member and such advertiser. Member agrees 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.
19. DISCLAIMER OF GUARANTEES. Member acknowledges that Marquis has made no guarantees (written or verbal) with respect to occupancy or income levels for any Property, with respect to this Agreement.
20. Insurance. Member is solely responsible for obtaining insurance policies sufficient to protect their Property and Guests during any Booking, including but not limited to General Commercial Liability Insurance, Vacation Rental Insurance, and Homeowner’s Insurance. Member agrees that it have or will obtain the appropriate insurance prior to the first Booking and will maintain adequate insurance coverage through the departure date of any Booking. 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.
21. 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 affiliate or representative of Member; and, from the gross negligence, fraud or willful misconduct of any Member or affiliate or representative of Member. 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.
b. 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 Booking will be refunded to Guest.
c. 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.
d. 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.
e. 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. f. 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. g. 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. h. 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. i. 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. j. 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.
e. 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.
f. 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.
g. 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.
h. 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.
i. 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.
j. 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.
Terms & Policies
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 among 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"), and Marquis New York, LLC ("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 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.
Additional House Policies
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