Website And YourShare Terms & Conditions
These Terms & Conditions are a contract between the publisher of this website and those who register here for a property Managers programs. Those who register on this website agree to the following. There are two parts to this contract: Part #1 Website Use - These terms and conditions govern the use of the website for anyone who access the website. Part #2 Property Rental Agreement - In these Terms and condition, owners of timeshare units at Surfcrest Resort in Copalis Washington, grant the publisher the right to offer their available dates for rent to guests on the "YourShare" program.
PART ONE - TERMS & CONDITIONS FOR WEBSITE USE
SERVICE DESCRIPTION - This websites is operated by Plumbob Publishing LLC (Plumbob) in cooperation with the Vacation Rental Industry Association (Plumbob and Plumbob.org) a Not-For-Profit Trade Group. The site provides content, information, services and communication for Users who must provide (1) all equipment necessary for their own Internet connection, including computer and modem and (2) provide for User's access to the Internet, and (3) pay any fees related with such connection.
DISCLAIMER OF WARRANTIES - The site is provided by Plumbob on an 'as is' and on an 'as available' basis. To the fullest extent permitted by applicable law, Plumbob makes no representations or warranties of any kind, express or implied, regarding the use or the results of this web site in terms of its correctness, accuracy, reliability, or otherwise. Plumbob shall have no liability for any interruptions in the use of this Website. Plumbob disclaims all warranties with regard to the information provided, including the implied warranties of merchantability and fitness for a particular purpose, and non-infringement. Some jurisdictions do not allow the exclusion of implied warranties; therefore the above-referenced exclusion is inapplicable.
LIMITATION OF LIABILITY - Plumbob shall not be liable for any damages whatsoever, and in particular Plumbob shall not be liable for any damages whatsoever, and in particular Plumbob shall not be liable for any special, indirect, consequential, or incidental damages, or damages for lost profits, loss of revenue, or loss of use, arising out of or related to this website or the information contained in it, whether such damages arise in contract, negligence, tort, under statue, in equity, at low, or otherwise, even if Plumbob has been advised of the possibility of such damages.
INDEMNIFICATION - User agrees to indemnify and hold Plumbob, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees and costs, made by any third party due to or arising out of User's use of the Service, the violation of this Agreement, or infringement by User, or other user of the Service using User's computer, of any intellectual property or any other right of any person or entity.
USER ACCOUNT - Users of the Service may receive a password and an account. Users are entirely responsible for any and all activities which occur under their account whether authorized or not authorized. User agrees to notify Plumbob of any unauthorized use of User's account or any other breach of security known or should be known to the User. User's right to use the Service is personal to the User. User agrees not to resell or make any commercial use of the Service without the express written consent of Plumbob.
CREDIT CARDS: User warrants that Credit Card ('Card') information is correct, that the card has sufficient available credit for all charges and that the Card will not be cancelled or charges dishonored or disputed with Guest's credit card issuer. Should the User's Card expire or be terminated while User has recurring charges due, user will provide Plumbob with the name, number and expiration date of a replacement card that can then be used as payment for User's charges.
SERVICE MODIFICATIONS AND INTERRUPTIONS - Plumbob reserves the right to modify or discontinue the Service with or without notice to the User. Plumbob shall not be liable to User or any third party should Plumbob exercise its right to modify or discontinue the Service. User acknowledges and accepts that Plumbob does not guarantee continuous, uninterrupted or secure access to our website and operation of our website may be interfered with or adversely affected by numerous factors or circumstances outside of our control.
VENDOR INFORMATION DISCLAIMER - Product specifications and other information have either been provided by the Vendors or collected from publicly available sources. While Plumbob makes every effort to ensure that the information on this website is accurate, we can make no representations or warranties as to the accuracy or reliability of any information provided on this website.
Plumbob makes no warranties or representations whatsoever with regard to any product provided or offered by any Vendor, and you acknowledge that any reliance on representations and warranties provided by any Vendor shall be at your own risk.
COMPLIANCE WITH LAWS - User assumes all knowledge of applicable law and is responsible for compliance with any such laws. User may not use the Service in any way that violates applicable state, federal, or international laws, regulations or other government requirements. User further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation.
COPYRIGHT AND TRADEMARK - All content included or available on this site, including site design, text, graphics, interfaces, the selection and arrangements thereof and all content or information submitted by User is copyright by Plumbob with all rights reserved, and/or third parties protected by intellectual property rights. Any use of materials on the website, including reproduction for purposes other than those noted above, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Plumbob is strictly prohibited. Users agree that they will not use any robot, spider, or other automatic device, or manual process to monitor or copy our web pages or the content contained therein without prior written permission of an authorized officer of Plumbob.
Plumbob and all website names are proprietary marks of Plumbob. They may not be used in connection with any product or service that is not provided by Plumbob, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Plumbob.
All other trademarks, displayed on Plumbob websites are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of those Vendors. In addition, such use of trademarks or links to the web sites of Vendors is not intended to imply, directly or indirectly, that those Vendors endorse or have any affiliation with Plumbob.
NOTIFICATION OF CLAIMED COPYRIGHT INFRINGEMENT - Pursuant to Section 512(c) of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act, Plumbob websites designate the President of Plumbob as its agent for receipt of notifications of claimed copyright infringement, who can be reached at the address, phone and email posted on the footer of Plumbob websites.
BOTNETS - Plumbob retains the right, at our sole discretion, to terminate any accounts involved with botnets and related activities. If any hostnames are used as command and control points for botnets, Plumbob reserves the right to direct the involved hostnames to a honeypot, loopback address, logging facility, or any other destination at our discretion.
PART TWO - TERMS & CONDITIONS FOR YOURSHARE RENTAL AGREEMENT
THESE TERMS AND CONDITIONS govern and are a part of the "Yourshare Rental Agreement ("Agreement") between an Owner ("Client") of Timeshares of a Lodging Facility ("Unit(s)" situated within an Inn, Resort, Hotel or other building ("Complex") and a lodging management company ("Manager"). Unless otherwise agreed in writing there are no other representations or conditions; and in the event of a conflict between the Agreement and these Terms and Conditions the Agreement will supersede.
(1) RELATIONSHIP. Client hereby appoints Manager as its non-exclusive representative ("Booking Agent", or "Manager") to market and book Client’s Unit along with its contents, and any appurtenant common elements (all of which referred to as "Unit" or "Units") and to do so for any of Unit available dates which Client makes available to Manager. It is understood that Client and Manager operate independently of each other and neither may make requirements of the other except as provided for in this Agreement.
(2) MANAGER DUTIES. In consideration for Client’s willingness to enter into this Agreement, Manager agrees to:
(A) Reasonable Efforts. Use reasonable efforts to obtain guests for Unit, secure confirmed guest rental contracts ("Confirmed Bookings", "Bookings" or "Confirmations") using Manager’s forms and contracts, collect all rents and other charges relating to rental on behalf of Client and remit to Client payment for rents or other fees as further defined in this Agreement.
(B) Listing & Sales. Keep Unit active in its list of available lodging ("Listings"), record and track occupancy of the Unit by Manager’s Guests booked, and as Manager determines, offer it to prospective guests whose criteria match Unit attributes, through Manager’s sales representatives, Networks and affiliates if any. Manager will maintain a calendar for the Unit onto which Bookings made by Client and Manager will be recorded.
(C) Advertising & Marketing. Include Unit in its reservation inventory for possible Booking by Manager guests including amenities, rates, and availability; and may include marketing messages, images, graphics, references rates and availabilities for the Unit in Manager’s and Networks’ marketing efforts such as Websites, email messages, letters, pamphlets, brochures, newsletters, photos, slide shows, videos, presentations, poster, etc. The availability of Unit may be distributed to other websites and travel agents over Internet and Global Distribution Services (GDS) and orders accepted from such sources. Usually Manager’s marketing plans reference general geographic areas and Unit may or may not, at Manager’s discretion, be included by name or specific reference. The nature and extent of such marketing will be at Manager’s discretion. Advertising may be undertaken under Manager’s name, Networks or other parties.
(D) Marketing Materials. Manager may include marketing messages, descriptions, attributes, images, graphics and references to the Unit in Manager’s general and Network marketing such as websites, email messages, letters, pamphlets, brochures, newsletters, photos, slide shows, videos, presentations, posters, etc. Usually Manager’s marketing plans reference general geographic areas and Unit may or may not, at Manager’s discretion, be included by name or specific reference. The nature and extent of such marketing will be at Manager’s discretion. Advertising may be undertaken under Unit name, Manager’s name, Networks or other parties Manager designates. To avoid possible confusion and adverse impact on Manager and Network marketing, Properties, and Unit marketing, will not be removed from Networks, directories, catalogues, websites or other Internet listings until such time and if Manager determines that doing so will not result in loss of marketing, advertising, internet or technical benefits to Manager.
(E) Guest Qualification. Seek out prospective Guests; try to determine those that are responsible and financially qualified, and to book as many dates as possible at the highest rates. However, due to the nature of dealing with the general public, the short amount of time between Guest inquiry and Booking, the reluctance of Guests to provide detailed data for short term use, and the effect of economic and other factors, Manager makes no representation as to the number of dates that may be occupied or the rates that may be achieved or the character or behavior, credit worthiness of persons who choose to use the Unit.
(F) Inspections. May cause its personnel to periodically conduct inspections of the Unit upon reasonable notice to Client. In the event that the Unit design, furnishings, fixtures or decoration are altered or if Manager finds Unit unsatisfactory, it may pause or cancel marketing of the Unit or may remove the Unit from its list of available lodging until such time as the Unit meets Clients satisfaction or may request that Client take corrective action as quickly as reasonably possible to return the Unit to good condition. Manager cannot guarantee that Guests booked by Manager will not cause damage or remove objects from the Unit and will not be responsible to Client for any such losses; but Manager will cooperate with Client to assess guest culpability and facilitate collection of costs and damages from Guests.
(G) Service Personnel. Hire, recruit, train and supervise the personnel or vendors necessary to prudently market and book the Unit and to account for and report on Bookings of the Unit (“Services”). Such services include marketing, sales, accounting, purchasing as further defined herein.
(H) Communications. Communicate with Guests for all purposes such as sales, operations, cleaning, problems and damages; and to send them occupancy instructions and other information Manager determines may be necessary to complete Bookings to the satisfaction of Guests and Client. It is also Manager’s goal to respond to Client inquires quickly. However Manager can best achieve its duties by devoting the majority of its time to serving Guests and marketing Unit. On occasion, Client may not receive immediate response or service if the demands of Guests or the Unit are pressing.
(I) Policies & Procedures. Establish general verbal and sometimes written operating policies and procedures with regard to marketing and booking of the Unit.
(j) Licensing. Manager and members of Networks that Manager may employ are or will become licensed and authorized to conduct business in the geographic area as may be required by law. Manager may contract with Network Members and other parties to perform some or all of the Manager’s duties, except overall supervision.
(3) PROPERTY. It is the objective of Manager to represent well-maintained, adequately equipped, quality accommodations. Therefore:
(A) Description. Client has legal authority to book or manage the rentals of the Unit as described in the Agreement and authorizes Manager to advertise and sell lodging rental of those Unit in accordance with this Agreement.
(B) Start Up. At the commencement of this Agreement, Manager is authorized to market and accept Bookings for Client’s Unit, unless otherwise limited by mutual written agreement of the parties. In the event that Client gains or loses the right to offer Unit for rental, Manager is automatically authorized to remove from, or add to, such Unit to its sales and marketing duties. Client agrees to quickly notify Manager of such changes.
Soon after commencement of this Agreement, Client will submit information about the Unit as may be at its disposal such as descriptions, images and graphics that Manager may utilize for its website, print advertising and other marketing efforts. Manager is also authorized to retrieve such information from any website or printed materials operated by Client, use that information as it sees fit and may rely on them for accuracy.
Client will submit a copy of any Guest Terms and Conditions, such as from the Complex operator, which Client is required to impose upon Guests’ use of the Units. Manager will impose its own Guest Terms and Conditions upon Guests, providing that Manager Terms and Conditions equal or the severity of those required of Client. In cases where a conflict exists between Manager’s and Client’s Terms and Conditions the more restrictive of them will apply. Unit Information, Client’s, Complex’s and
Manager’s Terms and Conditions become an addendum to this Agreement.
(C) Minimum Standards. For effective operations and marketability, Manager requires that Unit possess certain features, amenities and services and are of a quality level satisfactory to Manager. Some of those include, but are not limited to all utilities, furniture, furnishings, appliances, lighting, supply inventory, amenities and such other items that Manager and Networks consider minimum standards. In the event that Manager determines any unit no longer meets its minimum standard, Manager may request improvements be made, or may cease marketing the Unit until such time as the Unit again meets those minimum standards
(D) Minimum Availability. Client will notify of, and allow Manager to book dates that are designated by Client, providing Client allows Manager to offer at least one week per calendar year. Client may offer or rescind offers of weeks so long as Manager has not yet accepted a guest booking for any of those dates, and provided that Client then allows Manager an alternate week within the same year. Once Client offers dates to Manager, bookings will be on a first-come, first-serve basis during which time Manager and Client will have equal opportunity to confirm and accept Bookings.
(4) CLIENT DUTIES. In consideration for Manager’s willingness to enter into this Agreement, Client agrees to:
(A) Access. Allow Manager’s Guests access to the lodging Unit during all times specified by Guests’ Confirmed Bookings with Manager and will provide Guests with valid
keys and alarm codes to the Unit. Client agrees that it will not request or demand that Manager’s Guest Bookings be cancelled or altered except for valid reasons that prohibit the Client from renting Unit to anyone.
(B) Operations. Onsite operation of the Unit will usually be performed by operators of the Complex, and Client agrees to coordinate the operators services to ensure that the Unit is available for rent to Guests, complex provides necessary guest services including housekeeping, supplies needed to operate are provided and that general and preventative maintenance and repairs are performed on Unit keeping it in good rental condition.
(C) Standards & Compliance. To keep Manager generally informed as to the condition and availability of the Unit, including condition of or changes to furniture, furnishings and amenities and to notify Manager should Unit deteriorate below their condition at the time the Agreement is signed; to notify Manager of any problems with the Unit or governing bodies such as government, homeowner associations or neighbors. Client agrees not to communicate with Guests before, during occupancy or after occupancy and will not then or later advertise to or solicit Bookings from such guests without Manager’s advance written approval.
(D) Available Dates. Client will notify Manager of dates Client wants to make available for rent as far in advance as possible, with the understanding the Manager customarily does not offer rentals more than 15 months into the future and for which Manager is authorized to accept such bookings. As an example, if a Booking is procured on January 1st occupancy may take place anytime up through March 15th of the following year. This 15 months period rolls into the future as the term of the Agreement progresses.
(E) Date Withdrawal. At any time, prior to when manager accepts a booking from a guest for specific dates; Client may withdraw those dates from Manager’s right to book them by notifying the Manager by phone or by blocking out such dates on Manager’s website. However, once Manager books dates to a Guest for such dates, those bookings much be honored and Client agrees it will not require they be cancelled.
(F) Designation. Designate a primary person with whom Manager should communicate for the purpose of scheduling the availability of the Unit and to also designate a secondary representative also authorized to make final decisions about availability, charges, and other matters, when the primary person is not available to Manager.
(G) Failed Occupancy. In the event that a Unit becomes unavailable for dates that Manager has booked to guests ("Failed Occupancy"), Client will immediately notify Manager and together they will attempt to find alternate lodging for the Guests. Client will not be obligated to Manager or Guests for Failed Occupancies which came about due to events beyond the reasonable control of Client such as Unit damage, weather or similar matters. But Client will compensate Manager for lost income for Failed Occupancies which come about due to Client errors or omissions, such as Client’s failure to keep Manager’s calendar up to date, or Client’s failure to pay Complex assessments or other operating expenses. Client will reimburse Manager for any commissions, penalties or fees Manager is obligated to pay to third parties due to failed bookings.
Likewise Manager will not be obligated to Client should a Failed Occupancy come about due to factors beyond the reasonable control of Manager such as failure of Guest to pay, weather or similar matters. But Manager will compensate Client for lost income for Failed Occupancy resulting from Manager errors or omissions.
(H) Regulations. Represents to the best of its knowledge, that Units are located in an area suitable for the purpose described in this Agreement that there is no prohibition against utilizing the Unit for that purpose by any governmental, home owners association or other party.
(I) Licensing. Warrants that the Unit and Complex are or will become, licensed or authorized to conduct business in the geographic area in which the Unit is located on or before the first occupancy of the Unit, if required by law. Client authorizes Manager to utilize its mailing address for legal and marketing purposes. Client will promptly forward to Manager any mail it receives addressed to Manager.
(J) Unit Withdrawal. Client will immediately notify Manager if a Unit may become unavailable for rent (“Unit Withdrawal”) such as for necessary repairs, for-sale listing of the Unit. Manager may, as it sees fit, continue its duties as defined herein or may elect to cease offering the Unit for rent until its future availability is determined. In the event that Clients is unable to honor Manager Bookings, Client agrees to search diligently for a comparable or better replacement, to notify Manager of such availability and coordinate with Manager to accommodate the guest preferably no additional cost to Guest. In the alternate Manager may move Guests to other accommodations as it sees fit. Client will not be liable to Manager for lost income Manager would have received had the unit not been withdrawn; however, Client will reimburse Manager for any damages Manager is obligated to pay guest for Unit Withdrawal.
(5) RENTAL RATES & COMMISSIONS. The rates that Manager charges its Guests for the rental of Client’s Unit will be determined and set as follows:
(A) Retail Rates. From time to time Manager will determine, offer and advertise the daily rental rates, fees and other amounts ("Retail Rates") to be charged to Guests for occupancy for the Unit and others which are generally similar and in the same Complex. Rates may vary by time of the year, day of the week, length of stay, condition of the Unit, and other factors. Pricing is determined by comparison to competitors of similar lodging facilities, the general and local economy, perceived demand and other factors.
(B) Discounted Rates. Manager is authorized to decrease rates based on circumstances such as the length of time a guest books prior to scheduled occupancy, season of the year, the length of stay, weather and other factors Often Manager requires guests to book at least 2 consecutive nights, longer in busy seasons but Manager reserves the right to decease minimum stays as it sees fit to maximize income over time. Client may request that the rates for its Unit be lower than that Manager chooses as Retail Rates, but not higher.
(C) Unit Charges. Client will notify Manager of all ancillary fees ("Unit Charges") that Client is obligated to charge Guests, such as fees for pets, housekeeping, spa/pool use, additional guests, early checkin/late checkout, etc. Manager will include these in its pricing system, quote them to guests and include them in Confirmed Bookings. In the monthly statements, Manager will post and pay Unit Charges to client, or may disburse such fees to any third party to whom the Client is obligated to pay them such as the Complex operator. Food and Beverage, Group Charges, Activities and other such fees included in Guest’s Booking are included as Unit Charges.
(D) Exempt Charges. Charges made by guests during occupancy for Food and Beverage, activities, damages, overages and other fees are not commissionable by Manager, if charged to Guest by Client, or Complex.
(E) Manager Commission. As compensation for Manager’s duties, Client will allow Manager to take a discount ("Commission") from the all charges made to the Guest, except deposits, taxes, and reservation fees ("Gross Charges") after which Manager will remit to Client the Gross Charges less the Commissions ("Net Income").
(F) Distributed Rates. Manager may authorize conventional and online travel agents, lodging and other websites, trade associations, wholesalers and other third parties
("Travel Agents") to advertise the Units, and accept unit bookings procured by Manager. Manager will instruct travel agents to offer rates higher than the Regular or
Discounted rates then in effect, and to compensate the Travel Agent with that increase.
(G) Overages. In the event that a Manager’s Guests incurs overages charges due to Client, Client will notify Manager who may, as it sees fit, (a) charge the Guest for such Charges and remit payment to Client or (b) provide the Guest’s name, contact information and credit card information to Client or Complex who may charge it for such charges; in which case the Client indemnifies Manager for any claims made by Guest.
(H) Deposits. Manager may charge Guests a Damage Deposit ("Deposit") as Manager sees fit, and hold deposits in its common accounts. Client will have up to three (3) days to notify Manager that it has determined the Guest is liable for additional charges (such as damages or theft that can be properly deducted from the Deposit) ("Overages") in which case Manager will forward the full Deposit to Client who may then contact the Guest and determine the outcome. In that case Client indemnifies Manager against any claims made by guest for the Deposit or any other charges Client makes to Guest. If Client does not notify Manager of a claim against the Deposit within 24 hours after Guest Departure, Manager may return the Deposit to the Guest.
(I) Optional Services. Manager may make available any other service to Client as it sees fit at hourly rates, for estimates or firm bids as it sees fit. Client is not required, but may choose to utilize such services from Manager at the established prices and agrees to make payment within ten days of Manager submitting invoices; or Manager may choose to deduct payment for such services from any funds it owes owner. Should Client choose recurring services such as housekeeping, spa or pool cleaning, gardening or other services it agrees to give Manager reasonable notice prior to terminating them.
(6) CALENDAR. Guests prefer to enter into Bookings quickly and assuredly and are generally unwilling to wait while the Manager attempts to secure approval from Client before a Booking can be completed. Therefore Client agrees to notify Manager of available and unavailable dates by telephone or by logging on to Manager’s website to do so. All dates not so marked are to be considered available for Manager to book to Guests without prior approval of Client.
Generally Manager does not notify Client when dates are booked, cancelled or remain unbooked. But Client may logon to Manager’s website a day to review bookings and availability dates.
In the event that technical difficulties cause the selected Calendar Control to become unavailable or unreliable, the parties agree to communicate verbally until the problem can be resolved or to select a new method from the methods above. In such case, Client will not be obligated to pay Manager the Commissions.
(7) SALES & CONTRACTING. Client authorizes Manager to pursue and procure Booking of Unit in Manager’s ordinary and usual sales methods. In specific:
(A) Authority. Client hereby appoints Manager on a non-exclusive basis, and Manager’s authorized representatives, as his true and lawful attorney in fact for him and in his name and for his use and benefit to issue and sign rental reservations to Guests of Unit.
(B) Networks. Client authorizes Manager to delegate portions of its duties to Networks of other companies not a party to this Agreement, which provide marketing, advertising, sales, accounting and other services to Manager. Marketing, advertising and other materials may feature the Manager’s or Network’s logo and identity. Manager is solely responsible for payment to the Network.
(C) Contracts. Manager may use its standard Guest Booking Agreement form for securing Guest rentals and other contracts or forms Manager customarily uses. Copies of Manager’s forms are available to Client online for inspection and may be changed from time-to-time without notice, as Manager deems necessary. Manager’s Guest Terms and Conditions often indicate Bookings are not cancelable by Guests after being made; but Manager may use less strict cancellation terms as Manager sees fit to attract
bookings. In addition, Manager maintains an unpublished policy that allows guests to cancel with reasonable cause, and without penalty up to 48 hours after Booking and Client agrees to allow cancellations which meet this policy. In addition, Manager may, at Guest’s request, attempt to resell guest’s previously contracted dates to third parties. If successful the guest receives a refund equal to the difference between their Booking charges and the income received from the replacement booking, less a re-sale fee charged and retained by Manager. Should the Booking not be resold then Guest is obligated to pay for the Booking and entitled to occupy the Unit.
(8) ACCOUNTING. Manager is authorized to account for the Unit’ income and expenses as follows:
(A) Bookkeeping. To collect rents, fees, deposits, taxes and other charges for the Unit (in the form of checks, cash, cashiers checks, credit cards, money orders, etc.) on behalf of Client for all rental activity Bookings procured during this Agreement. Receipts will be deposited into common accounts of Manager’s choosing and will be accounted for separately for the Unit but need not be deposited to a separate bank account designated for the Unit and may be mingled with those of other Unit booked by Manager. Interest on deposits, if any, accrues to Manager.
(B) Reporting. To remit to Client a Financial Report on or about the 30th of each month, which will include a list of all Bookings for which the Manager’s guests were scheduled to depart, up through the last day of the prior month. The Report will list gross rental income, Manager’s commission or any other expenses resulting in the Net Income payable to Client. Should Manager later incur adjustments or charges related to Bookings, such as credits from prior periods due to refunds, chargebacks, give backs, etc. Manager may make such adjustments to reports for future months which may result in a refund or charge to Client.
(C) Payment. Client will send payment for the Unit Net Income to Client by check regular mail, on or about Friday each week for the prior week. Manager may elect to send payments by electronic transfer to Client’s bank account with Client’s understanding that such payments may take a week or more to move through the banking system. Manager will not be responsible for delays in the US Mail or the Banking System. Payments may also be delayed to provide for future reserves, possible charge backs, guest issues, staffing limitations, administrative time.
(D) Bad Debt, Chargebacks, Reversals. Manager will not be liable to Client for dishonored guest checks, stop payments, credit card chargebacks, forgeries or any similar event that results in non-payment. Whether discovered at the time of rental or later, such credits will be reversed on Client’s statements resulting in a lowering of the Client’s net proceeds. If no proceeds are due Client, then Client agrees to reimburse Manager such costs.
(E) Guest Payments. Manager’s Guest Agreement Terms generally obligate Guests for the payment of rent, housekeeping, deposits, damages, excess charges and so forth. It is Manager’s custom to require payment at time of Booking, but Manager may offer payment plans to guests providing payment in full is secured prior to the first date of occupancy.
(F) Late Payments. In the event that Guests fail to make payments as required, Manager may, as it deems prudent, pursue collection by withholding funds from any Guest deposit, demanding payment from Guest or by charging Guest’s credit card(s). Manager may also terminate the Booking with the guest and Guest’s obligation for future payments will be determined by the Manager Guest Terms and Conditions. Manager will treat partially collected rents in the same manner as fully collected rents and may deduct its Commission from actual receipts for rent and will then forward the balance of the rental received to Client.
(G) Guest Collections. Manager may notify Client if it becomes necessary to submit a claim to a collection agency or attorney for action. ("Collection".) Client and Manager’s will contribute to the expense of Collection and share in sums collected in proportion to the percentages in which each shares in the Rental Income (the "Rati"”). Proceeds from Collection, if any, will first be applied in the following order: (1) to court costs, (2) to sums due for attorney and legal costs, (3) for collection agency fees (4) for Manager staff time to prepare and attend trial, and then (5) shared between Client and Manager’s according to the Ratio. In the event a Guest prevails against Manager or Client, Manager and Client shall pay the claim according to the Ratio. In the event one party chooses not to participate in Collection from any given Guest, they will not be required to pay their portion of the associated collection expenses and will forfeit their share of any Collection proceeds, but will nonetheless be obligated to cooperate and assist with the other’s collection efforts. In no event shall Manager be liable to Client for uncollected rents, deposits or other charges so long as Manager has used reasonable effort and acted in good faith to collect.
(H) Emergency Expenses. In the unlikely event that Manager incurs emergency expenses necessary to deliver occupancy of the Unit, which are normally provided by Client, Manager is authorized to disburse payment for them and to deduct the payment from the Client’s account. Manager is not obligated to disburse funds of any kind for Client greater than those received for and held by Manager on behalf of Client. Emergency expenses are defined as unavoidable costs, discounts or refunds required to fulfill the agreements made to guests. For example, if a Client fails to provide lodging when a guest arrives and Manager provides alternate lodging at a higher price, then the difference between Guest payment and the alternate lodging.
(I) Merchant Fees. Manager is authorized to accept Checks and Credit Cards for payment of Bookings for Unit. When payment is by Credit Card causing Manager to incur a Merchant Account fee, Manager may choose to add a Reservation Fee to Guest to offset that cost.
(J) Chargebacks & Bad Checks. In the event that a Chargeback, refused check or other payment causes Manager to lose funds on any Booking for which funds have been previously paid to Client, Client agrees to immediately reimburse Manager for its portion of the payment; or Manager may, as it sees fit, withhold such amounts from any sums that it may coincidentally owe to Client. If Manager secures reversal of chargebacks, refused checks or other loss of funds, Manager will reissue payment to Client. In no case will the Manager be obligated to Client should a chargeback be refused or refused check or other charge be incurred by Manager
(K) Taxes, Fees and Other Charges. As part of its duties, Manager will charge and collect taxes from Guests as specified by Client or applicable regulations. Those amounts will be retained in Manager’s account and disbursed as required to governmental authorities. There will be no markup, fee or charge due Manager for collecting these amounts.
(9) COMPETITION. Although Manager books Units for its principals, owners and other Clients that may be competitive with Client’s Unit, Manager and Client agree that marketing multiple Units together is a desirable way to seek prospective Guests, greater occupancy and increased income for all Units. Therefore, Manager’s marketing generally includes reference to resort areas first, to area Unit in general second and then, sometimes, to individual Units third. Manager reserves the right to match Guests rental criteria to Unit as it sees fit. Client agrees that Manager’s services to other Unit will not be considered a conflict of interest.
(10) OTHER MANAGER SERVICES. It is understood that Manager may offer and provide services to Guests other than for rental of Client’s Unit. Other Services may include individual or group activities, lessons, airfare, auto rental, tours, travel insurance, merchandise, concierge service and other related services. Manager may also assess Guests with resale fees, penalties, damages and other charges. Client agrees that Manager will receive all the compensation for such. Client does not share in the income, expense or profit for Other Manager Services. In the event that Manager is obligated by third parties or court actions to provide services, Manager may invoice Client for doing so.
(11) CONFIDENTIALITY. Client authorizes Manager to reveal and discuss the name, location, address, features, benefits, operations and attributes of the Unit, its resort, neighborhood and location to prospective guests, vendors, employees, other Clients and other parties as Manager deems necessary to accomplish its duties. Both parties agree, however, to hold the details of this agreement (but not its existence) and their working relationship, such as but not limited to term of the Agreement, compensation, revenue, occupancy, rates achieved, operating expenses as confidential during and after the term of the Agreement and for a period of sixty months thereafter; and only share such information with their employees, financial or legal counsel or as may be required by law or litigation. Further, each party agrees not to interfere in the operation of the other’s business at any time before or after this Agreement; nor to engage employees of the other for a period of 36 months after the termination of this Agreement.
(12) NON-INTERFERENCE. Client agrees not to interfere in the operation of the Manager’s business at any time, will not communicate directly with Guests, and will not post comments, complaints or opinions to websites, third party reporting organizations, or to government authorities without the expressed written consent of Manager. Manager is not obligated to reveal the identities, contact or financial information of guests; and Client agrees not to communicate with nor interfere with Manager’s relationship with Guests. Client agrees that during the Agreement and for a period of 36 months after the termination of the Agreement, Client will not hire individuals who were employees of Manager during the term of the Agreement, or were independent contractors or companies which accepted compensation from Manager during the term of the Agreement. If Client does so, Client will pay Manager an amount equal the employees, contractors or company’s average actual or anticipated monthly compensation from Manager multiplied times 36 months.
(13) INTELLECTUAL PROPERTY. Manager, Networks or their vendors own, or have been granted permission to use all marketing creative and copyrighted materials they purchase, license or produce such as but not limited to, brochures, flyers, signs, notices, images, drawings, photos, videos, maps, names, writing, phone numbers, domain names, websites, email addresses, as well as print, broadcast, internet and other marketing that it creates and grants no license to Client for current or future use. Client agrees not to communicate with Manager’s vendors. Should Client, or others under their control, use copyrighted material, without Manager’s prior written approval, Client agrees to pay Manager as specified under Copyright Law with each image, writing or other copyrighted to be considered a separate Work. Client grants Manager and Networks an irrevocable license to utilize any brochures, flyers, signs, notices, images, drawings, photos, videos, maps, names, writing, phone numbers, domain names, websites, email addresses, print, broadcast, internet, and other marketing materials that Client provides, or that Manager secures from Client’s website, printed materials, third party sources or elsewhere. Client warrants that it has legal right to utilize such items, agrees Manager may use all such materials and content, whether created by Manager or provided by Client during and after the term of the Agreement. Client indemnifies Manager from costs incurred to defend against copyright claims made by third parties, and agrees to immediately pay Manager for all such costs.
(14) LIABILITY. In pursuing its duties, Manager agrees to use its professional judgment, experience, good efforts with the intent of producing a successful outcome for the Client such as pursuing high financial results, quality onsite operations, good housekeeping and maintenance, and satisfactory guest services and relations. In return, Manager will not be held responsible for errors, oversights or costs caused by its actions providing such actions are taken with care and good judgment and for the benefit of the Complex and without undue financial gain to Manager. It is understood that serving the public entails dealing with customers not all of whom are reliable, trustworthy or satisfiable. Client acknowledges that it is impossible for Manager to achieve perfect satisfaction in dealing with the public.
(15) MINIMUM TERM. This Agreement commences on the date of, and for a minimum term of one year, renewing annually on the anniversary date of the Agreement, renewals may be cancelled by either party upon 90 days notice one to the other prior to the Anniversary date. Notice to terminate must be via certified and regular mail (not email). All Bookings made prior to the termination date, including dates after the termination date, shall be honored by Client.
(A) Termination at Completion. If the Agreement is terminated as provided for in this Agreement, Manager will be allowed to continue all its duties until the date of termination including the right to accept Lodging Bookings prior to and after the date of termination. For those dates that were reserved prior to the termination date, for which occupancy takes places after the date of termination, Client agrees to allow occupancy to take place and will allow Manager to continue to perform all its duties related to those Guests and receive the corresponding compensation. Because guests may later demand refunds for reasons unknown to Manager, after the termination of the Agreement Manager may withhold Client payments for the last three months in which Bookings take place, for up to ninety days after the last date of occupancy; or longer if possible guest or other disputes may remain unsettled.
(B) Unit Sale or Transfer. The obligations of the Client under this Agreement transfer to the new owner upon sale, foreclosure or other transfer of the Unit. Client agrees to notify parties with whom it discusses sale of the Unit (such as real estate agents and prospective buyers) of the existence and nature of the Agreement and to require buyers to honor the Agreement through the end of the minimum term, including the obligation to honor Lodging Bookings reservations made during the term of the Agreement for dates occurring after the sale of the Unit. Manager is not obligated to move Guests to alternate lodging or to cancel Bookings either before or after a sale. However, Client agrees to reimburse Manager for all costs or damages Manager incurs in canceling such Bookings or in moving Guests to alternate accommodations.
(16) DISPUTE RESOLUTION. The Agreement will be governed in accordance with the laws of the State of Washington, King County Seattle or at Manager’s option, in the state and county in which the Unit is located.
Negotiation. If a dispute arises between the Manager and Client, the parties will attempt to resolve the dispute by meeting personally for friendly negotiation. After at least one negotiation session, or if one party refuses to negotiate, either party may demand that a third party be selected to conduct mediation to attempt to resolve the dispute.
Mediation. After at least one negotiation session, or if one party refuses to negotiate, then after ten (10) days the other party may demand that the matter be referred to the Dispute Resolution Center of King County Washington, for mediation upon their rules and practices to which both parties agree to submit, each paying one-half of the fees.
Arbitration. If the matter is not resolved within 10 days after the first mediation session, either party may request that the American Arbitration Association ("AAA") appoint a single arbitrator in King County Washington, to determine the matter in accordance with AAA Commercial Arbitration Rules, to which both parties agree to submit, each paying one-half of the fees.
Court Action. No party may file a court proceeding until proceeding through Negotiation, Mediation and Arbitration described herein; except if one party refuses to negotiate, mediate or arbitrate; or if the matter involves solely a demand for money due; then the matter may be brought in court without requirement of negotiation, mediation or arbitration.
Award. In the event of litigation or collection agency action, the substantially prevailing party in arbitration or court proceedings will be entitled to award of its costs (including AAA costs, fees and arbitrator fees), to a reasonable attorney’s fee, to charges for Manager staff time and costs incurred to attend such proceedings, and to post judgment interest of twelve percent (12%) per annum.
(17) GENERAL CONDITIONS.
(A) Time. Time is of the essence in this Agreement.
(B) Subrogation Waiver. Client and Manager hereby releases and relieves the other and waives entire right of recovery against the other for loss or damage arising out of, or incident to, the perils described in standard fire insurance policies and all perils described in an "Extended Coverage” insurance endorsement approved for the use in State where the Unit are located, whether due to the negligence of either party, their agents, employees, sub-contractors, vendors or otherwise.
(C) Waiver. The failure to enforce any of the terms and conditions of this Agreement or subsequent agreement between the parties hereto, by either party, will not be construed as a waiver of those provisions. If any term of this Agreement or subsequent agreements is invalid, illegal or unenforced by either party, all other conditions and provisions of the Agreement will nevertheless remain in full force and effect.
(D) Entire Agreement. This Agreement constitutes the final and complete understanding between the parties hereto and that no other representations or promises, verbal or otherwise, have been made.
(E) Modifications. No change, addition or erasure of any portion of this Agreement will be valid or binding upon either party. Any modifications to this Agreement will be in writing, dated and signed by both parties. This Agreement supersedes all previous agreements between the parties.
(F) Transferability. This Agreement is transferable at the initiation of Manager to any business or individual providing it determines has adequate industry training, comprehension and capabilities.
(G) Authority. The parties each represent and warrant that they have full power and actual authority to enter into this Agreement and carry out all actions required of them by this Agreement. All persons executing this Agreement in representative capacities represent and warrant that they have full power and authority to bind the party for whom they are signing. Guest understands that Manager or employees of Manager may be licensed real estate agents and, if so, are not acting as agents of Client or Guests.
(H) Breach. In the event one party believes the other has acted in any way which breaches this Contract, that party will notify the other by regular and certified mail describing the breach in detail, and specifying the actions required to cure the breach. The other party will make haste to resolve the described breach or may respond to first party disputing the breach. In any case, the other party will be allowed at least thirty days (30) days to resolve the breach and notify the first party of action taken. If the Other party fails to take reasonable action to cure the breach then the first party may unilaterally terminate this agreement.
(I) Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that all parties have signed the same counterpart, with the same affect as if all parties had signed the same document. All counterparts will be construed as part of, and will constitute the same agreement.
(J) Full Understanding. The parties each acknowledge, represent, and agree that they have read this Agreement and any riders attached hereto, that they fully understand the terms thereof, that they have been fully advised by their legal counsel, accountants and other advisors, with respect thereto, and that this Agreement and any exhibits are executed by them upon the advice and recommendation and with approval of their independent legal counsel.End of Terms & Conditions.
Form 11586 Copyright © Goldener Inns 2009-2016 REVISED 201610092101
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