Air Concierge Inc.
Management Agreement for Properties located in California
This Agreement is made between you, the Property Owner or Property Lessor (referred to as “you,” “your,” “Owner”) for the Property or Properties as identified in the property details you provided during your account registration and/or signup process on the www.airconcierge.net website, and/or as described on other forms between us (the “Property” or “Properties”) and Air Concierge, Inc., a California corporation, and its subsidiaries including Hammer & Sponge, Co. (hereinafter referred to “Company”), Air Concierge is sometimes referred to herein as "Air Concierge", ”Company” “we,” “us,” or “our”. This Agreement is effective from the date you sign up for the Air Concierge Services by way of the www.airconcierge.net website the (“Effective Date”).
RECITALS
WHEREAS Company specializes in providing vacation, short term, medium term and long term hospitality management and related services, to both Property Owners and to travelers renting such Properties (“Management” or “Services” or the “Air Concierge Services”);
WHEREAS Owner is in legal possession of the above named Property and desires for Company to provide the exclusive Air Concierge Services;
WHEREAS Company or a Third Party Platform (“Platform”) retains full discretion in determining which third party websites to list Properties under its Management for rent online including its own website(s), www.airconciergevacationhomes.com, as well as those third party booking platforms or listing sites (“Booking Site” or “Listing Site”) including but not limited to Airbnb.com, VRBO.com, Marriott Homes & Villas, kidandcoe.com, zillow.com, trulia.com, American Express Global Vacation Rental Travel, or their related sites including parent sites or subsidiary sites;
WHEREAS the Parties desire to perform the Management Services for such period of time that was indicated by Owner at time of procuring Company’s Services by way of signing up on Company’s website (www.airconcierge.net);
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties hereby agree as follows:
TABLE OF CONTENTS
Preamble and Parties
Recitals (WHEREAS Clauses)
Operative Clause (NOW, THEREFORE)
KEY TERMS
1. DESCRIPTION OF THE PROPERTY
2. RESPONSIBILITIES OF AIR CONCIERGE
2.1 RESPONSIBILITIES OF AIR CONCIERGE IN A CONSULTANT ROLE
2.2 INCOME & EXPENSES
2.2.1 Extra Duties
2.3 RESPONSIBILITIES OF OWNER
2.4 [intentionally omitted]
2.5 REGULATORY COMPLIANCE
2.5.1 TAX & TRANSIENT OCCUPANCY
2.5.2 REGISTRATION
2.5.3 TOT
2.5.4 [Failure to Remit TOT]
2.5.5 TOT Remittance and Liability Limitations
2.6 HOA
2.7. Right of Entry
2.8. Cameras and Recording Devices
3. MANAGEMENT FEE
3.1 Monthly Payments
3.1.1 Prior and Following Month Reservations
3.1.2 Long Term Reservations
3.1.3 Canceled Reservations
3.1.3.a. Cancelled Reservation After Payout
3.1.3.b. Cancelled Reservation, No Occupancy
3.1.3.c. Cancelled Reservation Rebookings
3.1.3.d. Cancelled Reservation Partial or No Refunds
3.1.3.e Cancellation Policies
3.1.4 W-9
3.2 Banking
3.3 Photography
4. Relationship of Parties
5. Warranty & Exclusivity
5.1 Best Efforts of Manager
5.2 Exclusivity
5.3 Owner Usage
6. TERMINATION
6.1 Termination of Agreement After Probationary Period
6.1.1. Reimbursements
6.1.2 Manager's Right to Terminate at Any Time
6.1.3 Manager's Right to Immediate Termination for Owner Violations or Harmful Conduct
6.1.4 Post-Termination Access Rights, Indemnification, and Relief from Responsibilities
6.1.5. Manager's Right to Cancel, Alter, or Relocate Future Reservations
6.1.6 [Subscription Reimbursement]
6.2 Reservation Acceptance Time Frame
6.3 Early Termination - 180 day contract
6.3.a Early Termination - 1 Year Contracts
6.4 Assumed Rental Occupancy for Liquidated Damages Calculation
6.5 Post-Termination Obligations and Procedures
6.6, 6.7, 6.8 [Intentionally Removed]
6.9 Reservation Cancellations
6.9a Extenuating Circumstances
i. Death in the family
ii. Serious illness or serious illness in the family
iii. Natural disaster in the country
iv. Political unrest in the country
v. Serious property damage...
vi. Serious Maintenance issues...
b. Sale
c. Lien
6.10. Platform Cancellation Policy
6.10a. Cancellation Fee Structure
6.10b. Fee Waiver
6.11 Platform Policies
6.11a. Final Determination of Platform Listing
6.11b. No Responsibility for Platform Actions
6.11c. Listing Availability
7. Default
8. Remedies
9. Force Majeure
10. Confidentiality
11. Third Party Platform...
11.1 House Rules
12. GENERAL PROVISIONS
12.1 INDEMNIFICATION
12.2 DISCLAIMER OF WARRANTIES
12.3 LIABILITY LIMITATIONS
12.4 Non-Disparagement
12.5 Good Client
13. Notice
13.a. Notice to Owner
13.b. Notice to Air Concierge
13.2 Delivery of Notices Changes
14. Collection and Litigation Efforts
15. Entire Agreement
16. Amendments & Modifications
17. Severability
18. Waiver of Contractual Right
19. Governing Law
19.1 Class Action Waiver
20. Dispute Resolution
i. Jurisdiction
ii. Mediation
iii. Arbitration
iv. Attorney Fees
v. Exclusions
21. Assignment
22. Termination
23. [INTENTIONALLY REMOVED]
24. [INTENTIONALLY REMOVED]
25. [No Construction Against Drafter]
26. [Order of Paragraphs]
27. [No Attorney-Client Relationship]
28. [No Guaranteed Results]
29. Attestations
29.1 Privacy Policy
29.2 Additional Required Documentation
29.3 Agreement on Behalf of Another
29.4 [Appendix 7 Reference]
THE PARTIES ENTER INTO THE AGREEMENT...
APPENDIX 1. RESPONSIBILITIES OF AIR CONCIERGE
APPENDIX 2. INCOME & EXPENSES
APPENDIX 3: RESPONSIBILITIES AND ACKNOWLEDGMENTS OF OWNER
APPENDIX 4: OWNER BOOKING NOTIFICATIONS
Appendix 5. House Rules and/or Rental Agreements for Guests
APPENDIX 6: Understanding Booking & Other Platform (OTA) Fees (PROVIDED SEPARATELY)
Appendix 7: Disclosures & Acknowledgements of Owner
APPENDIX 8: AIR CONCIERGE INC CLIENT ARBITRATION AGREEMENT
Claims Covered by the Agreement
Required Notice of Claims and Statute of Limitations
Arbitration Procedures
(a)
(b)
(c)
(d)
(e)
(f) Class and collective action waiver
Application for Emergency Injunctive and/or Other Equitable Relief
Arbitration Decision
Arbitration Hearing
Construction
Representation, Fees, and Costs
(a)
(b)
Sole and Entire Agreement
Requirements for Modification or Revocation
Voluntary Agreement
KEY TERMS
“Accommodation” means a residential or other property that is rented by a Guest.
“Authorized Tenant” means a non-Owner that has the authority to rent an Accommodation.
“Co-Hosts” means a Property Owner with his/her own profile on a Third Party Booking Platform and who is required by a City and/or municipality (eg, City of San Francisco) to be the main host/profile while allowing another person or entity to assist and thus co-host the Property; for purposes of this Agreement, the Owner is the Host and Manager is the Co Host, when applicable;
“Flashlight” is the name of the Air Concierge proprietary database for Owners to view guest and reservation information. Owners can also block their own calendars using the Flashlight database.
“Guest”, “Booker”, or “Responsible Guest” (or similar names) means a traveler (“Traveler”) or Member of a Booking Platform, including any Third Party Platform who uses the Air Concierge Site or Services in connection with his/her rental of an Accommodation.
“Guest of Guest” means a member of Guest’s booking party that is invited to either join, stay or otherwise visit the Property as solely determined by Guest;
“Host” means Manager or Owner or Authorized Tenant of an Accommodation and who is using the Services in connection with the listing and rental of an Accommodation principally through a Third Party Platform.
“KYC'' means "Know Your Client” and is the fillable form provided by Air Concierge to Owner, in which Owner fills out the form to indicate various facts about Owner and Owner’s Property including but not limited to number of bedrooms, bathrooms, amenities, safety, booking and availability preferences, wifi codes, door codes if any, etc. Any and all data points provided by Owner shall be merely considered as recommendations, suggestions, or preferences of Owner but the veracity of which shall be reliable such that any conflict in this form that later results in any damage, injury, or financial harm, either to Owner or Manager shall be the responsibility of Owner and solely at Owner’s expense. In the event of a Reservation in which information provided by Owner on the KYC is neither accurate, replicated, included, or excluded on the Listing Site, and such Reservation results in any act, or failure to act error, omission, damage or injury to any party, then all Sections below including but not limited to sections discussing Indemnification, Disclaimer of warranties, Indemnifications, and Liability limitations shall apply.
“Owner" means a Property Owner (or person with authority to occupy and let the Property) who may not have registered the Property or themselves on any Third Party Platform but nonetheless allows and permits Air Concierge to list their Property under an Air Concierge profile and act as the Host on Owner’s behalf, who shall be defined as a Host. An Owner is also responsible for the actions or inactions of any such person or persons who has access to the property, was directed by the Owner or acted under an Owner’s instruction, direction or to benefit the Owner or the Property, as it pertains to any acts herein that impact the privacy, security, safety of any Occupant or Guest of the property for which Air Concierge was responsible or involved in procuring the stay in the Property.
“Probationary Period” means the Period from which Manager and Owner agreed the Service term would last. Thus by way of example, for a rolling 180 dayContract Period, the Probationary Period shall be a fixed 180 days beginning on the Effective Date. Whereas for a 12 month rolling Contract Period, the Probationary Period shall be a fixed 12 months beginning on the Effective Date.
“Profile” in the context of Company’s Airbnb or VRBO (or other website in which a Client’s home is listed on Company’s profile) refers to the online account or listing page that Manager uses to showcase and market the property they manage. This profile typically includes information about the manager, their rental properties including properties relating to other clients, and their services. It acts as a centralized hub for potential guests to discover and book vacation rentals.
"Property" means each and every separate property you identify and enlist the Air Concierge Service to cover, whether by naming in the KYC, purchasing by way of onboarding on the www.airconcierge.net website, or by any other proactive means including email, text or phone, in which you request and Air Concierge agrees, to represent the Property.
“Reservations” (also referred to as “Bookings”) shall refer to an actual confirmation of a stay for a Guest including a prepayment, and/or partial payment and/or full payment for the Property and right to occupy that Property for a designated period of time.
“Reservation Cancellation.” A cancellation shall be defined as any Reservation that does not take place at the Property contracted between the Parties.
“Rolling” is defined as not having a hard end date one year from the Effective Date. In the example of a one year contract, instead of a fixed one year period, a rolling one year agreement extends each day this Agreement is in effect By way of example, if the Effective Date is June 1, 2023, and Parties agreed to a 1 year rolling term, then on June 1, 2023, the “Contract Period” is June 1, 2023-May 31, 2024. However, on June 2, 2023, the Contract Period is June 2, 2023 - June 1, 2024. The purpose of the rolling period is so that availability calendars, and thus Reservations can be received into the future and calendars on Booking Sites can remain open automatically without manual updating by Company.
“Tenant” means a traveler who books a Property for such a period of time that is defined as a tenant under local and/or state law.
“Third Party Platform” (or "Online Listing Site", “Listing Site”, “Online Site”, “Booking Site” or “Platform”) means a third party booking agent or hosting platform that connects Hosts who have Accommodations to rent with Guests seeking to rent Accommodations.
1. DESCRIPTION OF THE PROPERTY. This Agreement is made with respect to the Property you have identified herein and by name in documents between you and us, including but not limited to our "KYC" (Know-Your-Client) form. Any additional Properties submitted by you to Air Concierge for management, even if not done formally via an online sign up, shall be considered a Property for purposes of this Agreement.
2. RESPONSIBILITIES OF AIR CONCIERGE. Air Concierge will serve, as an independent contractor, as the Owner's exclusive agent. Air Concierge will provide to Owner the following services (collectively, the "Air Concierge Service") as outlined in Appendix 1.
2.1 RESPONSIBILITIES OF AIR CONCIERGE IN A CONSULTANT ROLE. In those instances in which Air Concierge has been retained to perform consulting services, whether by advising Owner on an ongoing basis or providing investment, design and staging services, Air Concierge is not acting in a legal or accounting capacity, nor is it providing real estate brokerage or property management services. All terms herein shall apply, specifically Sections 12 through 30, as it relates to limitations of liability, disclaimers, indemnifications, hold harmless, and all other legal terms encompassed by these Sections. Unless otherwise agreed upon by the Parties, the scope of services and fees for such services shall be defined on the relevant website pages on this website, including but not limited to Consulting or Design services.
2.2 INCOME & EXPENSES. Where applicable, Manager shall charge to Guest the fees as outlined in Appendix 2. Likewise, where applicable, Manager shall cause to be deducted from the Gross Income (and thus the “Owner Payout” or “Total Owner Payout”), the listed expenses as outlined in Appendix 2. Such Income and Expenses shall be delivered to Owner by Manager on a monthly basis or made a and full accounting as such, using best efforts of Manager, available to Owner through the Owner Portal “Flashlight”.
2.2.1 Extra Duties. In the event Owner requires, requests or otherwise instructs Manager to perform duties not included herein including but not limited to US mail or special package pickup or delivery, furnishings or design assistance, utility repair or survey, appliance delivery, repair or assistance, for work not caused by Air Concierge or a Guest of Air Concierge, then Manager shall have the right to a fee of $50/hr for such work performed unless otherwise agreed between the Parties. For work involving construction, or reconstruction or lasting more than 4 hrs. Manager shall receive an hourly fee of $100/hr for each hour thereafter unless otherwise agreed between the Parties. Manager may bill Owner directly or Manager may deduct from Total Payout to Owner. Manager may, but is not required, to inform Owner of projected time to facilitate such Extra Duties. Extra Duties may be, but is not required to be, be billed in 30 minute increments with a 1 hr. minimum for all Extra Duties.
2.3 RESPONSIBILITIES OF OWNER
Owner will provide to Air Concierge the following services, duties (collectively, the Services) as outlined in Appendix 3 “RESPONSIBILITIES OF OWNER”:
Owner shall ensure any information provided to Air Concierge by Owner whether in writing or at the Property itself, is legal, and accurate and disclosed to Air Concierge, such that any adverse actions, claims, or injuries against Air Concierge or suffered by Air Concierge due to Owner’s actions or non-actions, inaccuracies, are the responsibility and liability of Owner including direct and actual economic harm to Air Concierge and non-direct, economic injuries suffered by Air Concierge.
Owner shall ensure the Property meets all local, city, state or federal codes at all times during this Agreement for such matters including but not limited to ensuring all zoning, tax, health, safety, fire safety, pool and spa safety, stairs and stairways, cooking appliances indoor and outdoor, fireplaces, bunk beds, carpets and rugs”) privacy, confidentiality, security, and building codes such that each of these remain in compliance with any statute, law, local, state or federal guideline, at all times during the Agreement and as a condition of utilizing the Air Concierge Service and that the responsibility of such compliance remains at all times the entire responsibility of Owner and not Manager. Shall Manager undertake any remedies to any of the above, at no time shall such action relieve Owner of his duty to remain compliant, nor does it act as an admission by Manager in any capacity.
Owner Use & Owner Blocks. See Appendix 4 “OWNER BOOKING NOTIFICATIONS”:
2.4 [intentionally omitted]
2.5 REGULATORY COMPLIANCE. BY ACCEPTING THIS AGREEMENT YOU STATE, CONFIRM AND AGREE THAT YOU ARE IN COMPLIANCE WITH ALL LAWS AND REGULATIONS APPLICABLE TO YOU AND THE PROPERTY AS IT PERTAINS TO ANY AND ALL LOCAL ORDINANCE, ZONING, PERMIT, REGULATORY APPLICATION OR OTHER REGISTRATION REQUIREMENTS, BUILDING CODE, FIRE SAFETY, POOL & SPA SAFETY, STAIRS & STAIRWAY SAFETY, COOKING APPLIANCE INDOOR AND OUTDOOR, FIREPLACE, BUNK BEDS, CARPETS, AND RUGS”)
2.5.1 TAX & TRANSIENT OCCUPANCY. Certain properties may be subject to a municipality tax known as transient occupancy tax (“TOT”). The TOT is a short-term rental tax, that is paid by the Guest for the rental where applicable. Transient Occupancy Tax (TOT) is levied for the privilege of occupying a room or rooms or other living space in a hotel, inn, tourist home or house, motel or other lodging for a period of 30 days or less. The tax acts as an additional source of non-property tax revenue to local government.
2.5.2 REGISTRATION. IT SHALL BE THE SOLE RESPONSIBILITY OF OWNER AND NOT MANAGER OR ITS EMPLOYS, ASSIGNS OR DESIGNEES AND THEIR AGENTS, HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS IN INTEREST, OFFICERS, DIRECTORS, SHAREHOLDERS, ATTORNEYS, INSURERS (THE “AIR CONCIERGE PARTIES”) TO ENSURE THE PROPERTY IS PROPERLY AUTHORIZED BY WAY OF REGISTRATION, PERMIT (INCLUDING RENEWAL OF THE SAME) OR OTHER FORMAL AUTHORIZATION TO OPERATE AS A BUSINESS OR HOTEL OR RESIDENCE FOR RENT. WHERE REQUIRED, OWNER SHALL DISPLAY THE APPLICABLE CERTIFICATE IN THE PROPERTY.
2.5.3 TOT. IT SHALL BE THE RESPONSIBILITY OF MANAGER WHEN AGREED UPON BY THE PARTIES AND WHEN THE PROPERTY IS LISTED ON MANAGERS OWN PROFILE, TO REQUEST AND COLLECT THE TRANSIENT OCCUPANCY TAX (“TOT”) FROM GUESTS WHEN POSSIBLE (BY WAY OF THE ONLINE LISTING PLATFORM) IN WHICH THE TOT IS MANDATED BY LOCAL LAW TO BE COLLECTED AND IS ABLE TO BE SET UP AND COLLECTED VIA THE ONLINE BOOKING PLATFORM MANAGER RELIES ON. MANAGER SHALL NOT BE IN BREACH OF THIS AGREEMENT FOR FAILING TO COLLECT THE TOT. IT SHALL BE THE SOLE RESPONSIBILITY OF OWNER TO REMIT THE TOT IN A TIMELY MANNER, WHETHER OR NOT COLLECTED SEPARATELY BY MANAGER.
2.5.4 IN THE EVENT MANAGER IS UNABLE TO CHARGE THE TOT, OWNER IS NOT RELIEVED OF HAVING TO PAY THE TOT. THE TOT MUST STILL BE PAID BY OWNER REGARDLESS IF THE GUEST HAS PAID TO MANAGER OR IF MANAGER WAS UNABLE TO CHARGE THE TOT TO GUEST, SUCH THAT THE RESERVATION QUALIFIED FOR TOT. OWNER HEREBY AGREES THAT ANY FAILURE TO REMIT TOT IN A TIMELY MANNER OR CORRECT AMOUNT SHALL BE THE SOLE FAILURE OF OWNER AND IN NO WAY IMPLICATES OR OTHERWISE SUBJECTS MANAGER, ITS ASSIGNS, EMPLOYS, DELEGATES AGENTS, HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS IN INTEREST, OFFICERS, DIRECTORS, SHAREHOLDERS, ATTORNEYS, INSURERS TO LIABILITY OR FAULT. IN SOME JURISDICTIONS FINES AS MUCH AS $2500 / DAY FOR VIOLATION OF LOCAL TOT LAWS MAY APPLY.
2.5.5 TOT Remittance and Liability Limitations. In the event Owner engages Manager to remit the TOT to a municipality on Owner’s behalf, then such engagement shall be for a separate fee from its management fee, which may include a one time account set up and authorization fee, as well as an ongoing monthly fee as agreed upon by the Parties. Manager shall use its best efforts to calculate, report, and remit the TOT funds. Owner understands and agrees that such calculations and timelines may be cumbersome, confusing, and oft-changing by the TOT recipient municipality. At no time shall Manager be responsible financially or otherwise if an Owner shall incur a fine, fee, tax, levy or other cash equivalent payable to any governing body, city, municipality, state, or federal, for any act, error, omission, or failure to act by Owner or Manager, any Guest, or a Guest of a Guest, at Owners Property. Likewise Manager shall not be liable in any respect if Owner shall have a permit or any other license to operate suspended, revoked, canceled, not renewed, or otherwise result in any temporary or permanent loss such of such permit or license. This section shall also include any impact to Owner and Owner’s ability to operate as a short term or rental property due to a single act or multiple acts of errors, omissions or failures to act of Manager, a Guest or Guest of Guest, or, violation(s) of any code(s), incurred by Manager, any Guest or Guest’s of Guest, at Owner’s Property. Owner agrees that all following sections in this Agreement including but not limited to any Disclaimers, Liability Limitations, Indemnifications, Waivers, Hold Harmless, and/or other clauses herein related to limiting Manager’s liabilities for the actions or in actions of others shall apply.
2.6 HOA. Certain properties may be subject to a homeowner's associations (“HOA”) or similar association type, in which those HOA’s have enacted short term and vacation rental restrictions outlined in their rules and regulations which apply to all homeowners in that particular community. IT SHALL BE THE SOLE RESPONSIBILITY OF OWNER AND NOT MANAGER OR ITS EMPLOYS, ASSIGNS OR DESIGNEES, AGENTS, HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS IN INTEREST, OFFICERS, DIRECTORS, SHAREHOLDERS, ATTORNEYS, INSURERS) TO ENSURE THE PROPERTY IS PROPERLY AUTHORIZED BY WAY OF REGISTRATION OR OTHER FORMAL AUTHORIZATION TO OPERATE OR PROVIDE LONG TERM, SHORT TERM OR VACATION RENTAL SERVICES. BY ACCEPTING THIS AGREEMENT YOU STATE, CONFIRM AND AGREE THAT YOU ARE IN COMPLIANCE WITH ALL HOA AND BUILDING REGULATIONS (SHOULD THEY APPLY) APPLICABLE TO YOU AND THE PROPERTY AS IT PERTAINS TO ANY AND ALL HOA ORDINANCES, PERMITS, APPLICATIONS OR OTHER REGISTRATION REQUIREMENTS. OWNER HEREBY AGREES THAT ANY FAILURE TO COMPLY WITH THE HOA RULES & REGULATIONS AND THUS ANY PENALTY, HARDSHIP, FINE, LOSS OF PROPERTY OR LOSS OF USE OF PROPERTY OR ANY ACT CONCERNING THE SHORT TERM OR VACATION RENTAL OR ANY ACTIVITY ASSOCIATED WITH SUCH, SHALL BE THE SOLE FAILURE OF OWNER AND IN NO WAY IMPLICATES OR OTHERWISE SUBJECTS MANAGER, ITS ASSIGNS, EMPLOYS, DELEGATES, AGENTS, HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS IN INTEREST, OFFICERS, DIRECTORS, SHAREHOLDERS, ATTORNEYS, INSURERS TO LIABILITY OR FAULT.
2.7. Right of Entry. Unless an emergency arises at the Property, then under no circumstance shall Owner undertake entry to the Property when its rented/occupied by a Guest, under any circumstance. Such occurrence may be deemed a violation of privacy and subject Manager (if the Property is listed on a Third Party Platform under Manager’s own profile or a profile controlled by Manager) to penalties and adverse effects. In such instances Owner will be subject to a Delisting Fee of $5,000/day for each day such impact is sustained by Manager, so long as it was Manager’s profile that became Delisted, and not Owner’s (for Host/Co-Host only). By way of example, if Manager’s profile is ‘delisted’, ‘suspended’, or more permanently, removed or banned from a Third Party Platform due in part or in whole to Owner’s actions, then Owner shall be liable to Manager for $5,000 for each day such impact is sustained by Manager. For the purpose of this clause an emergency is defined as an event that is causing damage and will continue to cause damage to the Property if not dealt with immediately. There are several situations that constitute an emergency—generally regarding floods, fire and extreme weather. Any other instances of entry by an owner would be considered non-emergency and unauthorized.
2.8. Cameras and Recording Devices. Owner agrees there will not be any cameras or recording devices inside (interior) the home while it is managed by Air Concierge, including in locked/secure rooms that are unavailable for guest use/access. Owner further agrees that any exterior cameras on the Property will have been disclosed to Air Concierge prior to any Reservations. Owner agrees that any exterior cameras on the Property have been disclosed to Air Concierge in the KYC and that if Owner shall decide in the future to place exterior cameras/recording devices on the exterior of the Property, he/she will notify Air Concierge first to ensure any Reservations that were already confirmed but have not yet occurred, such that those Guests may be properly notified/advised/informed. In the event an adverse actions are taken by a Guest or a Third Party Platform such that Manager’s own profile or a profile controlled by Manager) suffers penalties or adverse effects including Manager’s profile becoming ‘delisted’, ‘suspended’, or more permanently, removed or banned from a Third Party Platform, then Owner shall be liable to Manager for a ‘Delisting Fee’ of $5,000 for each day such impact is sustained by Manager, so long as it was Manager’s profile that became Delisted, and not Owner’s (for Host/Co-Host only). The Delisting Fee shall not apply if it is only Owner’s Property that becomes delisted such that all other Property’s under Manager’s profile remain unaffected.
3. MANAGEMENT FEE. Unless otherwise agreed to by the Parties, the Manager shall be entitled to the percentage agreed upon by the Parties, of the Accommodation Rate (also known as the Nightly Rate multiplied by the number of nights reserved) and does not include a percentage of any other fees charged to the Guest. Manager shall provide to Owner at time of onboarding whether by email or in the form of a proposal, but in writing, the management fee percentage. For any services rendered other than those set out in this Agreement, the Manager may be compensated as noted above. Manager is required to provide Owner with the Monthly Statement (or access to the same via an online portal or hard copy form, or respond using its best efforts to requests for information concerning rental activity) reflecting all income and expenses incurred for managing, maintaining, purchases and performing labor (a fee commonly labeled under “Concierge & Restocking”), and maintenance, for the benefit of Owner, Guests or the Property. Additional fees that Manager shall be entitled to without disbursement or sharing with Owner, or fees that Owner may absorb entirely, can be found under Appendix 2, 3 and 6.
3.1 Monthly Payments. Manager will make best efforts to ensure Owner receives from Manager by the seventh day of each following month a payment for the Reservations of the prior month (the Owner Payout). In the event of holidays or weekends, payments may be delayed and Manager is not in breach of this Agreement in such instances.
3.1.1 Prior and Following Month Reservations. In the event that a Reservation begins on or after the 25th day of any month, or likewise extends past the 5th day of the following month, then Air Concierge shall reserve the right to determine whether to apply said payment to the current month or elect to treat that payment as received in the following month and such decision is under the entire sole and exclusive determination of Air Concierge. Depending on issues with a Reservation ranging from guest complaints, platform notifications of potential refunds, and/or cancellations, Air Concierge may suspend the payout for any reservation to a future month (not to exceed 3 months unless agreed upon by the Parties) while it determines the final accounting.
3.1.2 Long Term Reservations. In the event a Reservation is beyond 27 days in length (or such time that may be considered a tenancy in a given municipality), then Air Concierge shall reserve the right to partition payment to Owner in such a manner that is fair and commensurate and under the entire determination of Air Concierge. 3.1.3 Canceled Reservations. When a Reservation is canceled by a Guest, and a full or partial penalty applies such that Air Concierge will receive either the entire or a portion of the original Gross Income, Air Concierge shall reserve the right to suspend the payment of Owner's portion for a fair and reasonable period, including beyond the set Monthly Payment as noted above. Such reasons include but are not limited to the Booking Platform in which the Reservation was made opting to refund all or part of the cancellation to the Guest, or the Guest has initiated action against Air Concierge to receive those monies back or the Guest has initiated an action with their credit card merchant such that a chargeback or similar action places the funds in a hold or is pulled back from an Air Concierge account. In some instances Manager may withhold the canceled reservation payout permanently when those same nights are rebooked by a Guest and/or when Manager determines it has expended significant time and energy on procuring the booking.
3.1.3.a. Cancelled Reservation After Payout. In the event a Monthly Payment has been made to Owner and a Reservation later canceled that was included in that Payment, and said Canceled Reservation resulted in a refund to Guest, then Owner shall refund to Air Concierge the equivalent amount within 3 business days of notice in writing by Air Concierge.
3.1.3.b. Cancelled Reservation, No Occupancy. In the event a Canceled Reservation results in a Guest never occupying the Property at any time, Air Concierge reserves the right to hold back any amount from a cancellation payout it receives for all efforts taken in notifying and preparing the Guest after the cancellation, and to compensate Air Concierge for its time and resources in winning the Reservation initially as well as its work in unwinding and relisting the affected Property.
3.1.3.c. Cancelled Reservation Rebookings. In the event a Cancellation Reservation results in another booking occupying some of or all of the same dates as the Canceled Reservation, then Air Concierge reserves the right to refund some or all of the Guest Payout from the Canceled Reservation and/or may hold back those same funds as outlined in 3.1.3b
3.1.3.d. Cancelled Reservation Partial or No Refunds. In the event a Reservation is canceled on a Listing Site in which a Cancellation Policy is adopted by Air Concierge and such cancellation results in no refund, or a partial refund to the Guest, then it shall be at the sole discretion of Air Concierge whether to offer to the traveler/Guest any additional refund and or offer credit for a future stay.
3.1.3.e Cancellation Policies. Air concierge Concierge shall at all times retain control and exclusive decision making determination as to what cancellation policy each and every Property shall operate under on any Listing Site, as well as all other settings whether they be pricing, revenue, length of stay, discount, cleaning, maintenance, shipping, supply or other charges incurred by a Guest or Guest of Guest, or other person.
3.1.4 W-9. Under the laws of The United States and the Federal Internal Revenue Service, a Owner is required to provide to Air Concierge a signed, W9 form in which Air Concierge will generate and return to Owner a filled 1099 for rental income received. Additional year end tax information that Air Concierge may provide shall include all expenses and costs incurred in the management of the Property. Air Concierge reserves the right to withhold an Owner Monthly Payment in the event a W-9 is not furnished to Air Concierge.
3.2 Banking. All reservation activity shall be paid first to Air Concierge and from Air Concierge to Owner. In the event Owner has a pre-existing listing on a website, Air Concierge shall revise the receiving bank of payout funds (the "Payout Bank") such that the account of record shall be Air Concierge's client dedicated bank account. Upon receipt, Air Concierge will payout to Owner's account in accordance with the KYC document.
3.3 Photography. The Company shall be the Owner and holder of any and all Copyright of all Photography related to the Property that is paid for by the Company and used for internal or external marketing purposes. At the time Company procures Photography, Client shall have the option to procure the Photography and thus become a dual Owner and dual holder of the Copyright of the Photography by paying to Company the same amount that Company paid to the Photographer. All use of Photography that is the property of Company must be done with the express written consent of Company, unless and until Client has either paid or reimbursed Company for the cost of Photography. The Company shall grant Client a non-exclusive, royalty-free license to use the Photography for the purpose of marketing and advertising the Owner's property. Owner shall not use the photography for any other purpose without the express written consent of Company during the duration of this Agreement.
4. Relationship of Parties. It is understood by the parties that Manager is an independent contractor with respect to the relationship between the Parties, and not an employee of the Owner. Owner will not provide fringe benefits, including health insurance benefits, paid vacation, or any other employee benefit, for the benefit of the Manager. Additionally, Owner agrees and understands that Manager may hire from time to time other parties, such as third party vendors to service Owner’s Property, including but not limited to cleaners, maintenance professionals, handymen, electrician, and plumbers (together, “Third Party Vendors”). Owner further understands and agrees that Manager or its agents, employs, delegates or authorized representatives may receive a benefit for hiring such Third Party Vendor, financial or otherwise, and/or likewise those persons or entities, may have a vested financial interest in one or more such Third Party Vendors. Owner further understands and agrees, that any acts or inactions, whether negligent, willful, or fraudulent by a Third Party Vendor, even when such Third Party Vendor was discovered, and/or retained by Manager, that results in injury or loss to Owner, and results in Owner pursuing reimbursement remedies at law, and/or payment of any remedies against a Third Party Vendor, shall be estopped from naming or including Manager, in any legal action for the same. Such retention of a Third Party Vendor by Manager shall be for such purposes as including but not limited to enhance, improve, remediate, repair or replace, make safe or habitable, and/or in order to keep or maintain an existing reservation. issues reported to or learned by Manager, via a Guest, Third Party Vendor, or Owner or other such person as having knowledge of the Property. Manage is under no duty to perform such work and is not in breach of this Agreement if Manager elects to not perform.
5. Warranty & Exclusivity
5.1 Best Efforts of Manager. Manager shall use best efforts to provide its services and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Manager’s community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Air Concierge on similar projects. Manager shall not be in breach of this Agreement nor liable for any losses or potential losses, due to any actions or inactions taken by an Online Booking Platform that results in Owner’s Property not being displayed or advertised for rent. Additionally Manager shall not be liable to Owner for any lack of bookings for any reason, whether because of negligent or intentional actions or inactions of Manager.
5.2 Exclusivity. Owner hereby appoints Manager as its exclusive manager of the Property with exclusive right to market, advertise, book or otherwise transact the Property on a short term and vacation rental basis. Such exclusivity shall only last for as long as this Agreement is in full force and effect. Shall Owner appoint another party or manager during the term of this Agreement (the “New Property Manager”) and without first terminating Manager, or receiving Manager’s written, expressed approval, as a property manager or with the same rights as Manager to advertise, market, and book the Property, then this Agreement shall become null and void, all outstanding fees owed to Manager for any current or future reservations shall become due within 15 business days of the election of the New Property Manager. Violation of this provision shall entitle Manager to a $1000 fee to cover cost to Air Concierge of ensuring against double-bookings, (beyond Section "Early Termination"), all remedies as outlined in Reservation Cancellation shall Manager elect to cancel reservations, Section "Early Termination" (if the election of New Property Manager shall occur within 180 days (if the term of this agreement is the 180 day rolling) or 365 days (if the term of this Agreement is the 365 day rolling) Section 8 shall continue to apply,
5.3 Owner Usage. Owner has the right to use the property during the term of this Agreement contingent upon the condition that Owner shall reserve the dates in advance. To ensure Guest privacy, Owner agrees not to enter the property or to permit any other person to enter the property without reserving the property or checking and receiving authorization with Manager prior to entry, while there are Guests at the Property. Such usage shall be for limited to or for purposes of repair and inspection. Owner shall exercise this right of access in a reasonable manner with reasonable notice to Manager. Any use by Owner or Owner’s Guest at Owner’s own recommendation, referral or ‘marketing’ shall not constitute a violation of Section "Exclusivity".
6. TERMINATION. A termination of this Agreement by Owner may only be effectuated by submission of this form and no other notice shall suffice or have effect.
6.1 Termination of Agreement After Probationary Period. This Agreement may be terminated by Manager or Owner at any time after the Period from which Manager and Owner agreed the Service term would last (the “Probationary Period”) with or without cause provided at least 30 days prior written notice is delivered by the terminating party to the other party. Any Reservations in existence and not yet commenced (the “Future Reservations”) shall be at the sole decision by Manager” to manage. Manager shall have the right but not the duty to remove the Online Listing(s) and take no further Reservations thereafter. Shall Owner elect to cause those Future Reservations to be canceled or shall Manager elect not to manage the Future Reservations, then the Reservation Cancellation clause(s) shall apply to each and every affected Reservation. Shall Owner wish to cancel services with Manager, then a formal submission must be made here in order to be binding and effective. To ensure clarity and mutual understanding, Owner is required to submit a formal Cancellation of Services Form provided by Manager, which shall confirm the Owner’s intent to terminate services and the agreed-upon terms of such termination. However, if Owner refuses, fails, or neglects to complete the Cancellation of Services Form, Manager reserves the right to determine, at its sole discretion, that a cancellation has occurred based on the Owner’s conduct or communications. Actions or omissions by Owner that may constitute a cancellation include, but are not limited to, any written, verbal, or electronic indication (e.g., email, text, or phone call) of intent to terminate services, listing the property for sale or otherwise making it unavailable for vacation rental purposes, refusal to engage in required communications or comply with agreed-upon terms for ongoing services, or any other acts or omissions that, in Manager’s sole judgment, indicate an intention to discontinue services.
6.1.1. Reimbursements. Owner agrees to reimburse and/or pay to Air Concierge immediately upon cancellation of this Agreement any/all outstanding debts, payments or other costs incurred by Air Concierge on my or my property’s behalf, first by deduction from any rental income but if insufficient rental income exists, then by a credit card on file or direct payment including an electronic payment by me. I agree that any amounts owed by me and not reimbursed to air concierge within net 30 days of this cancellation shall incur a 18% interest charge per year (or 1.5% per month)..
6.1.2 Manager's Right to Terminate at Any Time. This Agreement may be terminated by Manager at any time with or without cause including if such cancellation results in any in-progress or Future Reservations to be canceled, otherwise negatively affected, or disturbed. Such action by Manager may be based in Manager’s sole discretion if Manager believes or has reason to believe that with regards to either the health, safety, security, privacy, or habitability, or reputation of Manager, and such is at the risk to any or all of the Guest, Guest’s of Guest, Owner, leaseholder, invitees, licensees, the Property itself, or Manager or Manager’s founders, directors, officers, employees and agents.)
6.1.3 Manager's Right to Immediate Termination for Owner Violations or Harmful Conduct. Manager shall have the right to terminate this Agreement, and any in progress Reservations may be canceled, altered or relocated shall Manager's decision be based on a good faith belief that Host or Owner, or agents, employs, delegates or authorized representatives of Host or Owner has engaged in conduct that is in violation of laws or regulations, illegal, exposes Manager to liability or damages, or is harmful to Manager's reputation or goodwill. No notice or right to cure period shall exist in such an instance. Shall Manager or Guest be subject to any direct or indirect costs due to such conduct, then Owner shall be liable in full, and Manager shall have the right to hold back any monies due Owner to satisfy such costs.
6.1.4 Post-Termination Access Rights, Indemnification, and Relief from Responsibilities. In the event Manager or Owner effectuates a termination of this Agreement, then Manager shall have all rights of access to the Property up to 72hrs. following the notice of termination or the last reservation, whichever is later in time in which to verify the status and condition of the home, collect any property belonging to Manager and returning keys to a central location in the home. Any restriction of this right by Owner, written or otherwise, shall act as a full and complete indemnification and hold harmless of Manager and its agents, employs, designees and others under its control for any causes of action or rights to reimbursement by Owner. In the event of cancellation of services, Manager shall be relieved of all responsibilities relating to and regarding the Property, its marketing, advertising and any financial responsibilities unless required by law, including but not limited to any actions involving the application of, renewal of, filing of a licenses, permits, tax or other similar documentation of the Property and/or its ability to transact as a rental property.
6.1.5. Manager's Right to Cancel, Alter, or Relocate Future Reservations. Manager reserves the right to cancel, alter or relocate at cost solely to be burdened by Manager, and at no penalty or cost to Host or Owner, any future Reservations. Shall any such future Reservation in fact be relocated, including to another Property managed by Manager, then Owner shall not be entitled to any portion of the Reservation or Total Gross Income (as defined below) or Management Fee.
6.1.6 Unless otherwise agreed upon by the Parties, In the event Manager elects to list Owner’s property on a Subscription based website (homeaway.com, VRBO.com, e.g.) and such Subscription Plan is paid by Manager (the “Subscription Amount”), and shall this Agreement be terminated prior to a one year term in which at least the Property is not made available for rental for at least 9 months in the first year, Manager to secure Reservation for the Property, Manager shall be reimbursed its full cost of the Subscription Amount.
6.2 Reservation Acceptance Time Frame. After the 180 day probationary period and without notification of cancellation by either Party, Manager is authorized by Owner to accept Reservations for a period of up to 1 year in advance of any within the term of this Agreement, unless otherwise stipulated in written communications between Owner or Manager.
6.3 Early Termination - 180 day contract. This clause applies to those Owners who contract with Manager for a period of at least 180 days. Shall Owner elect to terminate Manager within the first 180 days (the “180 Day Period”), from the Effective Date, for reasons other than gross negligence or wanton, willful disregard for Owner’s property or Guests by Manager, then Owner shall pay to Manager a termination fee of $3,500 to cover such costs including but not limited to as positioning the property, arranging professional photography, optimizing the Listing, providing sound and experienced advice and counsel as to the disposition of the Property and generally performing those initial and start up tasks to best position Owner’s Property. Any actual Reservations in progress or confirmed but not yet commenced, may be canceled at Manager’s election and the gross booking total as paid by Guest shall be compensated by Owner to Manager. Manager reserves the rights to make attempts to place Guests at another Property and Owner shall not be entitled to any proceeds of that arrangement. Likewise, Manager may elect to NOT cancel reservations already in existence in which instance Owner agrees to allow those reservations to continue and Manager shall be compensated in full. Should Manager be forced to cancel reservations already in existence due to Owner's early termination, then the Reservation Cancellation provision(s) shall apply herein. To the extent any of the above fees are deemed to be liquidated damages, AIR CONCIERGE and Owner agree the amount stated is reasonable under the circumstances existing at the time of the execution of this Agreement.
6.3.a Early Termination - 1 Year Contracts. This clause applies to those Owners who contract with Manager for a period of one year on a rolling basis, which shall be considered a rolling period. Instead of a 180 Day Period as noted in 6.3, a 1 year agreement requires no early terminations for the first 365 days (from the Effective Date). In the event of such a termination, Owner shall pay to Manager a termination fee of $7,500. In the event Owner wishes to adjust the period of this Agreement from 1 year to 180 day, then such decision should be at Managers sole discretion, and shall, if Manager agrees, require reimbursement to Manager of the difference between the management fee Manager would have earned on all prior and future reservations already confirmed at the 180 day contract rate and Owner agrees to pay such difference within 72 hrs of invoice for the same or from future booking Owner Payout revenue. The Parties agree that Owner may cancel this Agreement without triggering the Early Termination clause, by notifying Manager in writing here (https://www.airconcierge.net/cancellation-of-services), of when Owner would like Manager to take no further reservations ensuring that date is at least 365 days from the original Effective Date. Owner agrees not to act in bad faith and cause his Property, either intentionally or through no fault of Owner, to be blocked or otherwise unrentable for more than 60 days in the period of the first 365 days of this Agreement unless otherwise agreed in writing by Manager. In such event Manager may charge to Owner its management fee for any confirmed reservations, whether in the past (charged in arrears) or in the future, based on the 180 day contract period and the management fees applicable thereto as specified in the separate fee schedule or agreement between the Parties. Such billing may be done immediately by Manager and/or deducted from Owners Payout.
6.4 Assumed Rental Occupancy for Liquidated Damages Calculation. For purposes of calculating liquidated damages in the event of early termination of this Agreement, the Parties agree that the Property shall be deemed to have been rentable for an average of 21 days per month (or the prorated equivalent) during the remainder of the Contract Period, unless otherwise specified below. This assumption represents a reasonable pre-estimate of potential lost revenue and is not intended as a penalty. In the event any federal, state, local, or other governmental authority with jurisdiction imposes limitations on short-term rentals (e.g., caps on the number of nights or bookings per year), the Parties agree that the Property shall be deemed to have been rentable for the maximum number of nights permissible under such limitations for the remainder of the Contract Period. By way of example, if the Property is subject to a 90-night annual cap (as in San Francisco) and has already been rented for 60 nights at the time of termination, the Property shall be deemed rentable for an additional 30 nights.If the Property is also available for medium- or long-term rentals in addition to short-term rentals, and no maximum stay length is preset by the Owner, the Parties agree that the Property shall be deemed rentable for the greater of: (i) nine (9) months in a calendar year, or (ii) 75% of the remaining days available from the date of termination through the end of the Agreement.
6.5 Post-Termination Obligations and Procedures. Any violation triggering payment of Early Termination fees under this Agreement shall be payable immediately and in full within 72 hours of the breach or early termination notification.The rights and obligations of the Parties under this Agreement will survive the expiration or termination of this Agreement.Prior to effectuating any cancellation or termination of services as it relates to future existing bookings, Owner shall verify the existence of any such bookings by accessing the online Air Concierge Owner Portal (here) and emailing Air Concierge staff at customercare@airconcierge.net for confirmation. Owner shall not rely solely on email notifications (or the absence thereof) regarding bookings to determine if proper notice was given for any future reservations; instead, the methods specified above shall determine and control whether a future existing reservation exists.Upon termination of Air Concierge services under this Agreement, Owner shall assume all obligations for any contracts or outstanding bills entered into on Owner's behalf. Air Concierge shall withhold funds necessary for the payment of bills previously incurred but not yet invoiced for up to sixty (60) days after the termination of this Agreement. Air Concierge shall have sixty (60) days after the Termination Date to close Owner’s account.
6.6, 6.7, 6.8 [Intentionally Removed].
6.9 Reservation Cancellations. The Parties agree that determining the the monetary and non-monetary harms and injuries suffered by Air Concierge shall Owner cause Air Concierge to cancel in progress or future Reservation(s), is difficult to quantify and as such, this Provision exists to provide and put on notice all Parties with regards to the same. Therefore, shall Owner cause Air Concierge to have to cancel any Reservation or multiple Reservations for any reason except as noted in below (“Extenuating Circumstances”), then Owner shall pay to Air Concierge the amount of the Management Fee Air Concierge would have earned multiplied by a factor of 5 (the “Reservation Cancellation Fee”). It is agreed upon by the Parties that this calculation and amount bears a reasonable relationship to the amount the actual damages the parties could have anticipated at the time this contract was executed. This fee shall compensate Air Concierge for all such harms, including but not limited to the negative impact a cancellation has on Air Concierge’s online ranking, for all efforts and costs taken in procuring the Reservation prior to cancellation, for all efforts taken in notifying and preparing the Guest after the cancellation, to compensate Air Concierge for its time and resources in unwinding and rectifying any damage to its online and offline reputation, for any adverse actions, legal or otherwise taken against Air Concierge by a disgruntled traveler, or the mere threat of the same, for reputational harm to the Air Concierge brand for which Air Concierge derives its status both in terms of trust and for the harm caused to the Guest and Guests of Guest adversely affected for which Air Concierge has a duty to preserve, none of which are covered by the Management Fee and thus reasonably related to the Reservation Cancellation Fee calculation formula. Therefore shall Owner terminate Air Concierge or otherwise cause Air Concierge to alter, cancel, modify, or in any way cause a Reservation(s) to not take place at Owner’s Property, then a Cancellation has occurred. Air Concierge shall not be required to find alternative accommodations for an affected Guest. Owner further agrees and acknowledges that any Reservation Cancellation or termination of Manager or termination of this Agreement shall allow Manager to withhold and/or deduct the Reservation Cancellation Fee from any Owner Payout month, including and/or the payout for the Owner Payout month in which the termination occurs, even if the terminated Reservations in the future are in future months. A termination of Manager in which future Reservations have yet to occur shall likewise be considered terminated unless otherwise agreed upon by the Parties. Owner agrees that any termination of Manager, that results in future Reservation Cancellations, shall be a violation of this Agreement and subject to the terms above if due to the bad acts, damage, or maintenance issues, intentional, negligent or otherwise caused by a Guest or a visitor to the Property of a Guest, unless such acts result in the complete and total uninhabitability of the Property.
6.9a Extenuating Circumstances. In the instance where extenuating circumstances arise, Owner (or, Air Concierge on behalf of owner) may need to cancel a confirmed Reservation. Air Concierge shall nonetheless earn the greater of 25% of its original management fee. or a flat fee of $150, to compensate it for work done prior to the cancellation to ascertain the Reservation as well as work done to undertake the cancellation itself. In such cases, Manager shall elect to forgo the Cancellation Penalties outlined above, such cases will be contingent on proper documentation, where valid, and include:
i. Death in the family
ii. Serious illness or serious illness in the family
iii. Natural disaster in the country
iv. Political unrest in the country
v. Serious property damage rendering a material portion of the home uninhabitable (accompanied by verifiable documentation of the damage) but under no circumstance such damage either caused by or instigated by Owner for the sole purpose of qualifying for this provision and that which otherwise could be delayed until after all Reservations have been hosted.
vi. Serious Maintenance issues that affect the ability to host but under no circumstance such maintenance issues either caused by or instigated by Owner for the sole purpose of qualifying for this provision and that which otherwise could be delayed until after all Reservations have been hosted.
b. Sale. (Not included under Extenuating Circumstances) shall be Owner causing the Property to be listed for sale. In such instance, Owner shall inform Manager, make the Sale of the Property subject to the Reservations in effect, and at such time, Manager at its election may block any Listing Site calendar such that further reservations are not permissible. Shall Manager in its sole discretion deem it necessary to cancel upcoming Reservations, then “Reservation Cancellation” shall apply.
In the event that the Property is listed for sale during the term of this Agreement, Owner agrees that Manager shall have the right to withhold any rental income due to Owner to cover potential or actual losses arising from reservation cancellations initiated by either Owner or Manager (as permitted by this Agreement). This includes but is not limited to cancellations due to Manager determining, in its sole discretion, that listing the Property for sale—even if it remains available for Guest occupancy—may cause such hardships including but not limited to unnecessary confusion, interference (actual or potential), or misrepresentation to Guests.
Manager reserves the right to cancel or relocate Guests to another property or take any other action it deems appropriate to protect its reputation, maintain Guest satisfaction, and ensure compliance with applicable rental obligations. Owner acknowledges and agrees that such actions may result in financial disadvantages to the Owner, including but not limited to Manager retaining its full management fee or a multiple of such fee as liquidated damages for the additional costs or risks incurred by Manager.
Owner further agrees that any financial impacts resulting from the listing of the Property for sale, including but not limited to reservation cancellations or relocations, are the sole responsibility of the Owner, and Owner waives any claims against Manager for such actions taken in good faith. Manager shall notify Owner of any such cancellations, relocations, or other actions and provide an itemized accounting of withheld funds.
Owner acknowledges and agrees that Manager may withhold any rental monies due to Owner during the entire period in which Property is listed for sale to offset any cancellation refunds, Management fees or losses or as determined by Manager is required to ensure Manager suffers no financial harms. Such period of withholding shall only be for as long as Manager has determined no current or future financial harms or losses are incurable. Thereafter, Manager shall use best efforts to pay to Owner all rental income.
c. Lien. For Properties onboarded on or after October 1, 2020, Host/Owner grants Manager a lien on the Property if future reservations are canceled because Owner indicates a desire to or actually takes steps to sell the Property.
6.10. Platform Cancellation Policy. Air Concierge, and thus you, agree to the Platform Cancellation Policy that may be in force for any Reservations on a Platform (Airbnb, VRBO, Homeaway, Marriott, Booking, Hopper, etc). To maintain traveler trust in our marketplace, these Platforms make it essential that partners like us and thus you, uphold all confirmed bookings. Therefore if Air Concierge cancels an accepted booking due to no fault of its own, you should know the Platform will charge a tiered partner fee (the “Platform Cancellation Policy Fee.”). Additional actions, such as temporary listing suspension, may also be imposed. As such, you agree to cover, in its entirety, all fees, costs, penalties, economic or non-economic, that we may suffer due to a Cancellation. Nothing in this clause shall prevent, limit or otherwise override any other language or clauses or portions of this Agreement and thus you may be liable for both a Platform Cancellation Policy Fee as well as any other fees, including but not limited to a Reservation Cancellation and/or Early Termination, eg. Exceptions to the policy can be made for cancellations outside of our or your control pending the Platform review. These fees will offset the anticipated costs and negative impact of cancellations that would otherwise burden Platform travelers, and/or their partners and/or the Platform, who do not cancel without proper justification.
Us and thus you may be found responsible for a cancellation if:
We/you outright initiates a cancellation
We/you double booked a listing which led to a cancellation
We/you misled a traveler by substituting one property for another
We/you circumvent this policy, including requesting travelers initiate the cancellation (in such instance, Air Concierge and not you will bear the responsibility
6.10a. Cancellation Fee Structure. Different Platforms may impose a different fee. By way of example, VRBO fees (as of 9/18/2023) start at $50 USD for a partner-initiated cancellation. VRBO may factor booking value and timing of cancellation when determining the fee amount:
If the reservation is canceled within 48 hours of check-in, or after check-in, the fee is 50% of the reservation amount for the nights not stayed.
If the reservation is canceled more than 48 hours, but within 30 days of check-in, the fee is 25% of the reservation amount.
If the reservation is canceled more than 30 days before check-in, the fee is 10% of the reservation amount.
Reservation amount includes base rate plus all defined fees (such as cleaning or pet). If the calculated fee is less than $50 USD, it will be adjusted up to $50 USD. There is no upper limit or maximum fee amount. Cancellation fees will be invoiced to the partner or withheld from their next payout.
Additionally, shall us/you cancel (or are found responsible for a cancellation) will not receive the payout for that reservation. If the payout was already completed, future payouts will be reduced accordingly.
Any Platform (Airbnb, Marriott Homes & Villas, Booking.com, Hopper.com, etc.) fee schedule not included herein should not be considered omitted for purposes of liability and/or damages and shall be adhered to just the same.
6.10b. Fee Waiver. As not all cancellations are within our/your control, we/you may be eligible for a fee waiver if we/you are able to adequately establish one of the following circumstances apply:
Force majeure event, such as natural disasters
Government-imposed travel restrictions
Traveler did or intends to break house rules (including unauthorized parties)
Maintenance emergencies or circumstances threatening traveler health and safety
An error in Vrbo platform or services led to the cancellation
Failure of the traveler to complete payments
Suspected or probable risk of fraudulent behavior
If Air Concierge determines in its sole capacity that it is entirely responsible for any Platform Cancellation, then it and not you will be responsible for the entirety of the Platform Cancellation Policy Fee.
6.11 Platform Policies. Manager shall list the Property on Manager’s Profile (unless other arrangements have been made between the Parties) on one or more online booking platforms, including but not limited to Airbnb and VRBO. The Manager may use its own Superhost or PremierHost Profile for the Property, however, Manager shall not guarantee that the Profile will maintain such status. The Manager reserves the right to move the Property to a different Profile on the same or a different booking platform, even if such Profile does not have Superhost or Premier Host status, provided that such modification is made for a legitimate business purpose.
6.11a. Final Determination of Platform Listing: Company shall have sole and final discretion in determining which Platforms a Property may be listed on. Owner acknowledges that not all Platforms may be available or suitable for the listing of the Property, and the Company reserves the right to list or withhold the Property from any Platform, as it deems appropriate, at any time. Company further disclaims that Platforms, and not Company may be the sole decision maker as to which properties of Company and/or which regions are eligible for a property to be listed. At no time does Company make any assurances that a Property will be selected for listing on any Platform and the failure of a Property to become listed at any time during the Agreement is not a breach herein.
6.11b. No Responsibility for Platform Actions: The Company accepts no responsibility or liability if any Platform declines to list, removes, or otherwise makes a Property unavailable for any reason, including but not limited to platform-specific policies, market restrictions, or other internal decisions by the Platform. The Owner acknowledges that these actions are outside the control of the Company.
6.11c. Listing Availability: Owner acknowledges that at any time, a Property, even if previously listed, may become unlisted or unavailable on any given Platform, either with or without the Company's knowledge. Company bears no responsibility for, and shall not be held liable for, any damages, lost reservations, or any other consequences resulting from a Platform's decision to unlist or make the Property unavailable.
7. Default. The occurrence of any of the following shall constitute a material default under this Contract:
A. The failure to make a required payment when due when done intentionally or fraudulently
B. The insolvency or bankruptcy of either party.
C. The subjection of any of either Party's Property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
D. The failure to make available or deliver the Services in the time and manner provided for in this Contract when done intentionally or fraudulently to injure the other Party
8. Remedies. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 10 days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement. None of this Section shall apply to Termination of Manager by Owner. The Remedy for a breach of this Agreement shall be limited to the outstanding monies due to either party, with distinct exception for the following Section ("Confidentiality") herein.
9. Force Majeure. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party's reasonable control ("Force Majeure"), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority (but not taxes, permitting, or registration requirements for short term rental), or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates. The failure to ensure compliance with 2.5 (Regulatory Compliance) and 2.6 ("HOA"), does not fall within the meaning of this Section.
10. Confidentiality. Air Concierge, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Air Concierge, or divulge, disclose, or communicate in any manner, any information that is proprietary to Owner. Air Concierge and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Agreement. Upon termination of this Agreement, Air Concierge will return to Owner all records, notes, documentation and other items that were used, created, or controlled by Air Concierge during the term of this Agreement. Owner, and his employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of himself, or divulge, disclose, or communicate in any manner, any information that is proprietary to Air Concierge. Owner and his employees, agents, and representatives and all others privy to information regarding Air Concierge will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Agreement. Upon termination of this Agreement, Owner will return to Air Concierge all records, notes, documentation and other items that were used, created, or controlled by Owner during the term of this Agreement.
11. Third Party Platform, Also known as Booking Sites (or “Listing Sites”). Air Concierge shall not be responsible for the privacy policies and practices of other Third Party Platforms that it may rely on for booking Guests. Air Concierge shall not be held liable or responsible for Guests behavior and actions or non-actions whether reckless, negligent, grossly negligent, intentional or fraudulent. Such Third Party Platforms such as but not limited to airbnb.com, vrbo.com, homeaway.com, craigslist.com, tripadvisor.com, flipkey.com are channels in which prospective and actual Guests locate your property. Air Concierge may take further steps to verify and authenticate a prospective Guest. Air Concierge may also elect to book a Guest without further investigation or background check. Should a Guest cause damage, or cause a City or association violation or infraction, misdemeanor or felonious, or otherwise cause hardship to you or the Property, including but not limited to physical damage, theft, or non-departure from the property at the time of the posted booking departure time, Air Concierge shall not be held liable. Manager shall only opt (at its election) for a paid subscription booking site when Client has agreed to at least a term of 1 year. Shall Manager elect to pay for the Property to be listed on an Online Listing Site (including but not limited to Homeaway.com, VRBO.com) then reimbursement to Manager shall be as follows:
1. When applicable for VRBO.com or Homeaway.com, the following shall be followed; Manager will pay the upfront Subscription Fee for VRBO.com and Homeaway.com bundle (the "Subscription Plan"). Manager at his election may opt for the Annual Subscription. The prices of which may adjust over time. The receipt of which will be emailed to Owner. Manager shall not be entitled to a fee above the cost of reimbursement. Manager shall be reimbursed for its costs of the purchase of the Subscription Plan (not including its management fee which shall be treated separately) out of the First Confirmed Reservation but under no circumstances should the payment come from any reservation NOT booked under the Subscription plan. Manager may elect to forego full reimbursement from the First Confirmed Reservation and may opt instead to amortize reimbursement over the number of reservations at his election. When Manager has been reimbursed for the Subscription Plan, Manager shall not be entitled to any amount beyond its Management Fee. Manager may at its own discretion opt to list the Property on a Subscription site and forego the Subscription Fee instead opting for a Pay-Per-Booking. Such action shall be the sole and exclusive choice of Manager and be based on various factors and knowledge that Manager possesses without direction of Owner.
11.1 House Rules. You agree to the rules and restrictions placed on the Property or the Guest by Air Concierge (“House Rules”), which may be modified or supplemented at any time in accordance with this Agreement and the Terms.
12. GENERAL PROVISIONS
12.1 INDEMNIFICATION. Owner agrees to defend, indemnify, hold harmless and release Air Concierge Inc., the Air Concierge Parties and its affiliates, and any of their officers, directors, employees, agents, or rental owners, from and against all claims, causes of action, liabilities, demands, damages, or other costs or expenses of any kind, specifically including without limitation reasonable legal and accounting fees, brought by third parties as a result of or in any way (1) connected with this agreement, (2) your violation of these Terms, (3) your violation of the law or any rights of third parties, or (4) a third party including but not limited to a Guest, a Guest of Guest, a maintenance, repair, or cleaning person or company’s access to or use of your Property, or the Air Concierge Site or the Air Concierge Services.
12.2 DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY ACKNOWLEDGE THAT PROPERTY RENTAL AND RELATED SERVICES AND PROPERTY USES AS WELL AS USE OF THE AIR CONCIERGE SERVICE IS AT YOUR SOLE RISK. NEITHER WE NOR OUR AFFILIATED COMPANIES NOR ANY OF THE RESPECTIVE AIR CONCIERGE PARTIES WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR THAT INJURIES OR DAMAGES WILL NOT OCCUR; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE AIR CONCIERGE SERVICE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OR PERFORMANCE OF ANY INFORMATION, SERVICES, ACCOMMODATIONS OR MERCHANDISE PROVIDED. THE AIR CONCIERGE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
THIS DISCLAIMER OF WARRANTY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
AIR CONCIERGE RESERVES ITS RIGHT TO CLAIM AND ADOPT THE LANGUAGE UTILIZED ON AIRBNB.COM, OR VRBO.COM, UNDER TERMS OF SERVICES AND/OR PAYMENT TERMS FOR ANY SITUATION INVOLVING A RESERVATION ORIGINATED ON AIRBNB.COM OR VRBO.COM IN SUCH A MANNER THAT AIR CONCIERGE MAY INVOKE THE SAME PROTECTIONS AND DEFINITIONS AS UTILIZED BY AIRBNB INC OR VRBO OR ITS PARENT COMPANY EXPEDIA GROUP.
12.3 LIABILITY LIMITATIONS
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE AIR CONCIERGE SITE AND AIR CONCIERGE SERVICES REMAINS WITH YOU.
AIR CONCIERGE INC., ITS SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS (COLLECTIVELY, THE "AIR CONCIERGE PARTIES") SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF USE, REPLACEMENT COSTS, REPAIR OR REHABILITATION COSTS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION, OR DAMAGES ARISING FROM REAL OR PERSONAL PROPERTY DAMAGE, INJURY, LOSS, OFFENSIVE OR ILLEGAL CONDUCT (INCLUDING REFUSAL TO VACATE), OR THE ACTIONS OR OMISSIONS OF GUESTS, GUESTS OF GUESTS, THIRD PARTIES (INCLUDING THOSE HIRED BY US WITH OR WITHOUT YOUR APPROVAL), MAINTENANCE VENDORS, CLEANING VENDORS, DELIVERY PERSONS, INVITEES, LICENSEES, OR TRESPASSERS.IN ADDITION, THE AIR CONCIERGE PARTIES SHALL NOT BE LIABLE, REGARDLESS OF CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN ANY PROPERTY, INFORMATION ON THE AIR CONCIERGE SITES OR ONLINE LISTING SITES (E.G., AIRBNB.COM, VRBO.COM), INCLUDING WITHOUT LIMITATION TAX STATUS, REGISTRATION, LICENSURE, PRICING, AVAILABILITY, PROPERTY DESCRIPTIONS (OR LACK THEREOF) RELATED TO HEALTH, SAFETY, DANGEROUS WEAPONS, ANIMALS, RECORDING DEVICES, BUILDING/FIRE/SAFETY CODES, OR LOCAL/STATE/FEDERAL COMPLIANCE, OR FOR ANY DELAYS, INTERRUPTIONS, CLAIMS, OR LOSSES ARISING THEREFROM.OWNER ACKNOWLEDGES THAT THE AIR CONCIERGE PARTIES HAVE NO CONTROL OVER THIRD-PARTY CONDUCT AND DISCLAIM ALL LIABILITY RELATED TO ANY PROPERTY TO THE MAXIMUM EXTENT PERMITTED BY LAW. ALL BOOKINGS ARE MADE AT THE OWNER/HOST'S AND GUEST'S OWN RISK.NOTWITHSTANDING THE FOREGOING, IF ANY LIABILITY IS FOUND, THE AIR CONCIERGE PARTIES' AGGREGATE LIABILITY TO YOU OR ANY HOST/OWNER FOR ALL PROVEN DIRECT DAMAGES, INJURIES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, STATUTE, OR OTHERWISE) ARISING FROM OR RELATING TO THIS AGREEMENT, THE PROPERTY, OR THE AIR CONCIERGE SERVICES SHALL BE LIMITED TO THE AMOUNT OF MANAGEMENT FEES PAID BY OWNER TO AIR CONCIERGE DURING THE SIX (6) MONTHS PRECEDING THE DATE OF THE CLAIM.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR WARRANTIES, SO THE ABOVE MAY NOT APPLY TO YOU. IN SUCH CASES, LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. CHECK YOUR LOCAL LAWS FOR RESTRICTIONS.
12.4 Non-Disparagement. Each and every Party to this Agreement agrees not to disparage or defame the other in any respect or to make any derogatory comments, whether written or oral regarding any other Party.
12.5 Good Client. You agree to act at all times in a reasonable and professional manner, with regards to communication and treatment of the Air Concierge staff, vendors and any Air Concierge procured Guests in your Property. Air Concierge maintains its rights under the Termination clause noted above. Air Concierge reserves its right at any time to terminate a Client for failing to adhere to these provisions and any reservations in existence or in the future, already have being confirmed shall proceed accordingly. Any forced cancellation by Owner of some or all of those reservations shall trigger the Reservation Cancellation clause(s) above.
13. Notice.
13.a. Notice to Owner. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person, by electronic mail (“email”) to the email address you provided during your account registration or signup process on the www.airconcierge.net website (or any updated email address you subsequently furnish to us via the Owner Portal or in writing), or by certified mail return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing. In addition, information stored on the Owner Portal (Flashlight), including but not limited to forms, receipts, invoices, statements, and photos, shall act as Notice to Owner. Owner agrees to check the Owner Portal on a regular basis for any updates or changes to the information, including costs, expenses, financials, and/or work performed at Owner’s Property. Owner agrees that the email address provided during registration (and any updates thereto) is authorized and as such will receive any/all information regarding Property, Owner including financial information and other such information that may be deemed confidential. Owner is responsible for maintaining an accurate and current email address in their account profile and notifying Manager promptly of any changes.
13.b. Notice to Air Concierge. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered by electronic mail (“email”) to the email address indicated below, or by certified mail return receipt requested,
Air Concierge Email: adminteam@airconcierge.net
13.2 Delivery of Notices Changes. Owner will notify Air Concierge of any change in address, telephone number and/or email address within 24 hours of any such change. Owner will notify Air Concierge in writing (electronic mail) within 24 hours of listing the Property should the Property be listed for sale. Owner agrees to list and sell the Property subject to the terms of this Agreement and subject to all Reservations existing at the time of sale.
14. Collection and Litigation Efforts. If Air Concierge shall undertake efforts in which it expends its own resources or capital in an effort to be made whole or in part for a canceled reservation or reservation that otherwise resulted in a deduction or non-payment to Air Concierge by a Third Party Platform and if Air Concierge shall succeed in a partial or full recovery of any such funds, then Air Concierge shall be the designated recipient and beneficiary of said funds.
15. Entire Agreement. This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties. Shall Parties agree at a later date to any other terms, then such Agreement shall be attached hereto as a side letter agreement.
16. Amendments & Modifications. Air Concierge reserves the right, at its sole discretion, to modify or amend this Agreement at any time. Any such modifications will be communicated to the Owner via email to the email address provided during registration (or any updated address on file) and may also be posted on the Air Concierge website. It is the Owner's responsibility to maintain an accurate and up-to-date email address; Air Concierge will not be liable for any failure to receive notifications due to outdated contact information.Modifications will take effect on the date specified in the notification, which will not be less than 7 days from the date of the email or posting (whichever is earlier). By continuing to access the Air Concierge website, utilize the Air Concierge Services, allow Air Concierge to actively list and/or solicit the Property for rent, or otherwise maintain an active contractual relationship after the effective date, the Owner acknowledges and agrees to the updated terms.If the Owner does not agree to the modified terms, the Owner may terminate this Agreement in accordance with the termination provisions outlined herein. Such termination shall not impact any existing Reservations, and the Parties agree to honor those existing Reservations under the terms in effect prior to the modification. If the Owner wishes to cancel services for previously confirmed but not yet occurred Reservations, the Reservation Cancellation provisions shall apply.
17. Severability. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
18. Waiver of Contractual Right. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
19. Governing Law. This Agreement shall be construed in accordance with the laws of the State of California.
19.1 Class Action Waiver. YOU AND WE AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
20. Dispute Resolution.
i. Jurisdiction. Any disputes between Owner and Manager shall be venued in San Diego County, California, and according to California State Law.
ii. Mediation. Owner and Manager agree to mediate any dispute or claim arising between them out of this Agreement before resorting to arbitration or court action when such actions involve a minimum of $75,000 in claims and damages alleged.” Mediation fees shall be divided equally among the parties involved. If, for any dispute or claim to which this paragraph applies, any party (i) commences an action without first attempting to resolve the matter through mediation, or (ii) before commencement of an action, refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in such action. Exclusions from this mediation agreement are set forth in paragraph v, below.
iii. Arbitration. The parties agree that any and all disputes, claims, or controversies arising out of or relating to this Agreement, including but not limited to its interpretation, performance, or breach, shall be resolved through binding arbitration in accordance with the terms outlined in the Arbitration Agreement Addendum, which is attached at the end of this Agreement (Appendix 8) and incorporated herein by reference. By signing this Agreement, the parties acknowledge and agree to the terms and conditions of the Arbitration Agreement Addendum.
iv. Attorney Fees. In the event either party must engage in any effort, civil proceeding or other activity that arises out of, relates to or is connected with this Agreement, or the rights or obligations of any party hereunder, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs, to include expert fees and costs, incurred or sustained by such prevailing party in connection with those efforts.
v. Exclusions. Any matter that is within the jurisdiction of a probate, small claims, or bankruptcy court are excluded from the requirement to mediate and arbitrate. The filing of a court action to enable an order of attachment, receivership, injunctive relief, or other provisional remedy, shall not constitute a waiver or violation of the mediation and arbitration provisions.
21. Assignment. These Terms and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by Air Concierge.
22. Termination. The rights and obligations of the parties under these Terms will survive the expiration or termination of this Agreement.
23. [INTENTIONALLY REMOVED]
24. [INTENTIONALLY REMOVED]
25. This agreement shall not be construed against the party or its representative who drafted this agreement, or any portion hereof.)
26. The order in which the paragraphs appear in this agreement has no significance whatsoever.
27. Owner agrees no attorney client relationship exists between the parties currently and no attorney client relationship between the parties has ever existed. The information provided on the Air Concierge website(s) and in this Agreement do not, and is not intended to, constitute legal advice to you. Readers of this website and Owner who agree to these terms should contact their attorney to obtain advice with respect to any particular legal matter. No Owner should act or refrain from acting on the basis of information on any Air Concierge website without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.
28. Owner understands that no particular result, compensation, earnings or performance is, or can be, guaranteed or promised by Manager in rendering Services requested by you for any particular matter. Manager undertakes only to render Services requested by you and accepted by Us. It is understood that you are not relying on Manager for business, investment, legal, or accounting decisions or to investigate the character or credit of persons with whom we may be associating with, contracting with, identifying for potential rental or engaging with actually for rental.
29. Attestations.
29.1 Privacy Policy. Owner represents that he/she is of legal age and not prohibited by law from accessing or using the Air Concierge Services and has the capacity to be bound by them. Owner further agrees to be bound by the terms of the Air Concierge Inc. privacy policy at https://www.airconcierge.net/privacy-policy/
29.2 Additional Required Documentation. Owner agrees there may be additional terms, contracts, forms (federal, state and/or local), agreements, outside of this Agreement, that Air Concierge may require, and that such forms and agreements may require Owner’s acknowledgement and/or signature in order for the Air Concierge Services to become initiated or effectuated.
29.3 Agreement on Behalf of Another. Owner agrees that if he/she is accepting or agreed to these Terms on behalf of a person, company or other legal entity, that she has legal authority and is authorized to do so. Owner represents and warrants that she/he has the authority to bind that person, company or other legal entity to these Terms and, in such event, “I” and “me” throughout refer and apply to that person, company or other legal entity.
29. 4 Owner acknowledges and agrees to the disclosures and acknowledgements set forth in Appendix 7, which is incorporated herein by reference.
THE PARTIES ENTER INTO THE AGREEMENT OF THEIR OWN FREE WILL, WITHOUT DURESS OR COERCION OF ANY KIND.
TABLE OF APPENDICES
Appendix 1: Responsibilities of Air Concierge
Appendix 2: Income & Expenses
Appendix 3: Responsibilities and Acknowledgments of Owner
Appendix 4: Owner Booking Notifications
Appendix 5: House Rules and/or Rental Agreements for Guests (including Rental Agreement and Attachment A: Pool and Spa Addendum)
Appendix 6: Understanding Booking & Other Platform (OTA) Fees
Appendix 7: Disclosures & Acknowledgements of Owner
Appendix 8: Air Concierge Inc Client Arbitration Agreement
APPENDIX 1. RESPONSIBILITIES OF AIR CONCIERGE.
All below responsibilities shall be made with Company’s best efforts.
Positioning. List (unless the property is on Owner's own profile), describe, market, advertise and take all steps to properly place and position the Property in an advantageous position to ascertain exposure, views, and marketability including Online Listing Websites (“Online Listing” or “Listing” or “Listings”). This also includes the ability for Air Concierge to set Instant Book on any/all listings sites in which the Property is listed. Air Concierge shall be entitled to its Management Fee for the procurement of any Reservation that benefits an Owner including Reservations made directly between the Guest and Air Concierge, or the Guest and Owner (if that Guest initially booked Owner’s Property due to Air Concierge’s efforts or if Air Concierge undertook any efforts to earn that Reservation for Owner), or the Guest and a third party service that benefits Owner (if that Guest initially booked Owner’s Property due to Air Concierge’s efforts). The Management Fee due to Air Concierge in such situations shall be calculated at the same percentage of the Management Fee as other Reservations covering the same range of time (including but not limited to 1-29 days, 30-59 days, or 60 days or longer, if various Management Fees apply).
Photography. Shall Owner and Company agree that Company will arrange, purchase, or otherwise oversee the professional photography for Owner’s Property (the “Photography”), or shall Owner be relieved of paying all or some of the Onboarding Fee, then Company shall be deemed the Owner of all photography arranged by Manager of the Property, and Manager shall have all rights and decision making if and when such Photography shall be released to Owner as well as and any creative control over the Photography including editing of photos, ordering and numbering and whether to include and/or exclude any photos (the “Creative Control”) to be used in an online listing. In the event Owner has procured their own professional photography and shared with Company, then none of the above section shall apply as it pertains to ownership of the Photography but language granting Company the Creative Control shall remain. Any use by Owner of Photography arranged by Manager in which Manager incurred any costs to a Photographer for procurement of the Photography shall be paid to Manager the greater of an amount of four times (4x) what Manager paid or $2,500.
No Declined Bookings. The ability to accept or decline bookings shall rest exclusively with Air Concierge.
Listing Optimization. Use its best efforts to optimize the online listing to ensure that the listing is up to date with all relevant information needed to maintain in good standing and attract renters, also known as travelers (hereinafter “Guests”) on its own and any other Online Listing as determined by Manager.
New Guest Activity. Use its best efforts to handle all incoming correspondence for inquiries, and follow up with Guests for upcoming, pending and in-progress reservations (each successful booking a “Reservation”). Manager shall use its best efforts to respond to all incoming inquiries in a timely manner.
Guest Management. Manager shall use its best efforts to review and approve any and all Guests prior to Manager accepting a Reservation. Manager shall have full authorization and decision-making as to which Guests to accept and not to accept and the criteria to be used or depended on as determined solely by Manager. Manager may utilize an Instant Booking setting such that any Reservation be confirmed without any further review by Air Concierge. All such bookings are deemed to fall under Air Concierge's exclusive discretion and shall be honored by Owner. Any Guests or Guests of Guests that are problematic, unsavory, cause noise, traffic, trash disturbances, earn citations or fines either for themselves or for Owner, or otherwise cause harm or injury to Owner, Property or themselves shall fall under the Indemnification, Limit of Liability, Assumption of Risk clauses herein. Owner agrees and acknowledges that in short term, vacation rental and similar rentals, it is impossible to ascertain whether a Guest or Guests of Guests will be problematic or cause harm, as such Owner relieves Company of any obligation to perform any due diligence of any sort and any resulting harm is the sole and exclusive risk of Owner and Company is relieved from any and all liability for such action or inaction of a Guest or Guest of Guest.
Guest Verification. Manager shall use its best efforts to screen Guests based on worthiness based upon available online and offline verification methodologies known by Manager, or provided by such Online Listing Sites and standards as well as Manager’s own market experience. Manager shall make such approval decisions without pre-approval by Owner before accepting a Reservation. If a Reservation is made within an Online Listing site such as but not limited to Airbnb.com, VRBO.com, Homeaway.com, or Flipkey.com, Manager shall not require a separate rental agreement and all such rental terms shall be maintained within the terms and conditions of the Online Listing Site. Additionally, Manager shall not be required to ascertain the personal contact information of any Guest and instead may rely on the contact information made available to Manager by an Online Listing Site. Guests of Guest likewise are not required to provide separate identification or sign a separate rental agreement to Manager, contact information or any identifying information. Shall Owner request otherwise, then Owner and or his attorney shall furnish to Manager such documentation required including the drafting of a final copy of such along with specific descriptions on the timing, method, delivery and handling of the rental agreement, identification and any other required verifications.
Guest Removal. In the event Owner, Host, or Manager learns that during a Guest Reservation a violation of either the House Rules, or civil or criminal actions have been reported to Owner, Host or Manager (the "Infraction Period"), then Manager shall use its best efforts to determine the appropriate course of action, whether by warning to Guest, termination of the reservation, loss or threatening of loss of a security deposit, and the reporting of said violation(s) to a governing authority. Manager shall have no duty to go to the Property during such an Infraction Period due to safety and security concerns. At the conclusion of the Guest Reservation, Manager shall use its best efforts to ensure the Property has not suffered damage and if necessary, prepare a statement outlining and security deposit claim if need be any such damage or missing items. Manager shall have no duty to perform any legal recourse on behalf of Owner or Host.
Cleaning. Arrange cleaning and laundry services prior to Guest check in, ensure all cleaning has been done prior to Guest check in. Make cleaning arrangements with Air Concierge’s own staff and when such staff is not available, then any other reputable cleaning service that Manager deems as suitable for the Property. Limitations may apply depending on owner use of the Property and other arrangements or understandings between the Parties.
Cleaning Costs. Cleaning costs that will be charged to Guest and deducted from Owner’s distribution on a per Reservation basis. Owner understands and agrees that Manager may not know in advance of a cleaning the cost of such cleaning. Additionally Owner acknowledges and agrees that Manager may charge a higher price to a Guest than what is paid to a cleaner and likewise that Manager may report to Owner the charge of the cleaning as the same amount paid by the Guest, thus resulting in any discrepancy to Manager's benefit. In the event that Owner prefers its own cleaners to be used, and should Company agree, then it shall be the duty of Owner to make arrangements for instructions on how property is to be cleaned, how keys are to be made available for cleaners and how payment for cleaning is to be arranged. Any cleanings resulting in refunds shall come from the Owner Payout amount and never from the Management fee, unless Company elects otherwise. Air Concierge reserves the right to only book its cleaning staff at any time.
Check in and Check Out. It shall be the sole responsibility of Manager to arrange and make arrangements for Guest check in and check out. Manager may use its best efforts and generally accepted best practices as noted below for how it determines to best check in and check out a Guest.
Check In Best Efforts. Manager shall use its best efforts to ensure Guest has successfully checked in and gotten settled into the Property. For arrival times after hours which may vary on the time of year, the Company shall have the right to use industry accepted best practices to allow Guest to check in remotely by way of lockbox or key code access. Manager shall use best efforts to confirm the Guest has arrived to the Property and admitted himself when meeting in person is not feasible.
Welcome Package. At its election, Company may opt to provide a welcome package (the “Welcome Package”) consisting of one or combination of the following, wine, juice, coffee, toilet paper, shampoo, conditioner, body wash, coffee, lip balm, deck of playing cards, suntan lotion, dessert, games, personal essentials/toiletries for Guests prior to check in). The cost of the aforementioned not to exceed a maximum of $100 per/reservation without Owner approval.
Owner Communication. Maintain communication with Owner to ensure highest level of service. Including best efforts to provide notification of a successful Guest Reservation, notification of a Guest Reservation Alteration, notification of a Guest Reservation Cancellation, and notification of Property or Guest issues including maintenance, damage or any other information that Manager deems Owner shall be apprised of.
Online Site Management. Manager shall oversee the Online Listing sites including all calendaring and pricing to ensure the highest rates or highest occupancy possible, unless otherwise agreed upon by the Parties or unless Manager deems otherwise, for the available periods without approval from Owner prior to any changes, whether if such listing is on Owner's profile or Manager's profile. Manager shall have full authority and discretion to choose Guests, set rates which may adjust from time to time higher or lower based on season, comparable homes and prices and other factors known to Manager. In the event Owner has his own Listing Site or grants access to an Online Listing Site to Manager, then Owner will not unreasonably withhold any information needed to modify the Listing including any passwords needed to access the Online Listing Site or make changes to the Listing Site(s).
Rental Rates. Air Concierge utilizes a sophisticated rate optimization system that has proven to be the most effective way to maximize vacation rental revenue. The required option under this Agreement for setting rates and minimum stay requirements is to allow Manager to set the rates and minimum stays based on demand.
Monthly Remittance, Reporting and Booking Notifications.
Monthly Reporting. Manager shall use best efforts to send or make available through an Owner Portal “Flashlight to Owner a report or description detailing all confirmed Reservation activity, as well as booking information, calendar view, profit & loss statements (the “Monthly Statement”), with an explanation of payments received and expenses incurred by Manager including the Management Fee.
Management Fees. Management Fees are set at the amount agreed upon by the Parties. Payment to be remitted to Owner using Managers best efforts but with a goal of electronically net seven business (7) days (the “Distribution Period”) of month end for payments received in month prior. Owner shall receive all accommodation income charged to Guest less the Booking fees which include but are not limited to, maintenance, cleaning, credit card processing, Site Listing fees, Restocking Costs, Extra Duties, Resort Fees (if applicable), transient occupancy taxes not sent to the City by Manager but may be added to the Accommodation Rate, Pet Fees and Pet Deposits, Convenience Fees, Welcome Package, Cancellation Fees, Management Fee (together the “Booking Fees”) and any other fee commensurate with vacation rental property management as determined by Air Concierge (“Owners Payout”). Some fees received by Manager from a Guest may not be revealed by Manager and thus unknown to Owner. In such instances Owner agrees it has no rights to such Payments so long as at no time was such fee the Accommodation fee whether made at the time of booking or later through an alteration in which the booking was shortened, or extended.
In the event a Payment is not received by Air Concierge by a Third Party Platform (the “Payout” or “Third Party Platform Payout” or “Booking Site Payout”) then Air Concierge shall be relieved of its duty to fund that amount or portion of an Owner Payout to Owner until the Booking Site Payout is received by Air Concierge.
Distribution Period. In the event a Reservation is on-going during the Distribution Period, Manager shall have the right to retain funds until the completion of the Reservation.
Cancellations & Chargebacks. Shall a reservation be confirmed by Air Concierge and reported to owner/host, and later that same reservation is canceled or otherwise a guest is refunded, credited, or initiates a chargeback, before, during or after their stay and Air Concierge has not yet paid the Owner's payout amount, then Air Concierge shall not be responsible for making such a payment until the matter is resolved. Air Concierge may likewise suspend any reservation in which the threat of or possibility of a refund or chargeback is possible as determined solely by Company, up to 90 days. In the event Air Concierge has already paid Owner and the reservation is retroactively canceled and the guest is refunded or a chargeback ensues, then Air Concierge shall likewise be reimbursed or credited for any such payments within 7 business days of its written request to Owner for reimbursement. Any payments due to Air Concierge not received within 7 days shall result in a 1% per month for each month later thereafter. Shall Air Concierge elect to dispute the refund, credit, and/or chargeback and is successful in receiving back those funds, then Air Concierge shall re-distribute the funds accordingly.
Booking Notifications. Manager shall use its best efforts to report in a timely manner the notification of any new Reservation by email or any other method such that Owner is aware a Reservation has occurred, the dates of such Reservation check in and check out, and the associated financials including the income and expenses associated with the Reservation.
Split Bookings. Air Concierge may split bookings in which either a portion of a reservation occurs in two separate monthly periods and/or in which a reservation is longer than 30 days such that either Air Concierge receives multiple rental payments and not all rent at one time and thus Air Concierge may elect in its sole discretion to stagger the Owner Payout to only pay monies Air Concierge has received and/or to ensure the reservation has been completed and no refunds, cancellations, chargebacks have or will occur. In such cases Air Concierge will use best efforts to notify Owner of such situations either by way of email notification and/or via its Owner Portal.
Reviews. Manager shall oversee all Guest and Manager reviews (a “Review”) where applicable, on any and all Online Listing sites. Manager may notify Owner when a Review is by placed by Guest and made aware to Manager. Manager will use its best efforts in ascertaining Reviews of the Property and its Management Services from Guest at time of check out and thereafter. Manager reserves the right in certain instances to not actively solicit a review based on certain factors that Manager may deem to be negative to the Property. Likewise Manager may not respond to a review by a Guest. Owner shall not himself review a Guest without Manager’s consent.
Updating the Online Listing. Manager shall retain the sole right to update any Online Listing including all contact information for Manager, information regarding the Property, amenities and other notable features, as well as Payout information for Manager’s receiving bank account. There shall be no restriction on the information that may be updated, included, amended, or otherwise provided by Air Concierge as to the Property Online or offline.
Manager’s use of the Property. Under no circumstance except as noted below shall Manager, its employs, assigns, delegates, agents, heirs, executors, administrators, successors in interest, officers, directors, shareholders, attorneys, insurers) use the Property for its own benefit, or enjoyment. Such use of the Property shall be limited to preparing the home for Owner or Guest’s and be limited to cleaning, restocking, addressing neighbor or local issues, repairs as necessary or at the direction of Owner, to review a Property following termination by Owner or Manager of this Agreement, for periodic checks of the Property, or for any reason determined by Manager to effectuate its responsibilities herein. Likewise Manager may book a Property under its own or an employee, affiliate, officer or directors profile and have the same access, use and enjoyment as a Guest. Such booking may be for the benefit of Owner and Property and allow Manager to gain additional insight into the listing and marketing of the Property. For such bookings, Manager shall pay the fair market rate as determined by Manager at the time of the booking.
CO-HOSTING ARRANGEMENTS FOR PROPERTIES LISTED ON THE HOST'S PROFILE (AND NOT AN AIR CONCIERGE COMPANY OR AFFILIATED PROFILE), INCLUDING INSTANCES WHERE A HOST ELECTS TO NAME AN AIR CONCIERGE PERSON OR PARTY AS A CO-HOST, AIR CONCIERGE AND HOST AGREE AS FOLLOWS: Listing Assistance. Air Concierge will assist the Owner/Host as Co-Host with creating and optimizing the Listing on one or more Third-Party Platforms, including price recommendations. Host is responsible for Listing accuracy. Assistance includes full access to Host's online profile; Air Concierge may update credentials (e.g., username, password, contact info) without breach, and Host may not restrict access without Air Concierge's written consent. Violation triggers immediate termination, with penalties under Early Termination, Reservation Cancellation, and full fees due to Air Concierge for procured Reservations (even if removed before, during, or after). Guest Selection. Air Concierge will assist with screening and selecting Guests at Host's direction and request; Host remains solely responsible. Air Concierge is not Host's agent and will not negotiate or execute Guest agreements. Any Guest-Host agreement excludes Air Concierge. Duties. All other Air Concierge duties remain as in Appendix 1. Remittance of Funds. Air Concierge will collect/receive funds via its bank account; Host and Co-Host may elect separate diversion where applicable. Air Concierge may update Host's payout info to facilitate receipt. Agreement is incomplete until Air Concierge's account is verified by the Platform. Co-Host fees are earned at booking confirmation; early termination entitles Co-Host to full fees. Management Fee. Co-Hosting may require a higher fee structure, agreed upon prior to work. All Other Terms. All Agreement terms apply to Reservations on a Host Profile. Ambiguities. In conflicts with Host-related terms elsewhere, each party participated in review/revision; ambiguities are interpreted fairly, not against the drafter.
APPENDIX 2. INCOME & EXPENSES
Income. The fees Owner shall assume Manager will be charging to the Guest (“Gross Income”) shall include but are not limited to:
“Nightly Rate” the nightly rate (multiplied by number of nights)
“Cleaning Fee” the cost of cleaning the Property post-Guest-stay
“TOT” (Transient Occupancy Tax) when applicable.
All of which shall equal when totaled together the Total Gross Income. In addition, there are other fees charged to Guest which are not a basis for Manager's management fee, nor payable to Owner and in fact may be paid to a third party, to Manager itself (the “Booking Fees”) or back to Guest. Those other fees include but are not limited to;
Pet fee (if applicable).
*Pet Deposit may become payable to an owner if/when damage occurs to the Property due to the Pet. In the event Manager either causes repairs, replacements or additional work by Management staff including not limited to extra or deep cleaning, to be made, then such Pet Deposit shall be paid to Manager for reimbursement of labor and materials and not to Owner.
Utility fee (if applicable).
For some booking sites, an insurance (travel, damage, etc.) policy
For some booking sites, a booking fee. A description of how booking fees work can be found attached in a separate exhibit (Appendix 6).
For some booking sites, a credit card processing fee.
A convenience fee (if applicable).
All other fees or income that Manager may deem related, or relevant for goods or services provided by Manager or Owner at the Property including but not limited to concierge services, pool, spa or resort fees, or any other income whether or not that income is taxable by way of transient occupancy taxes or income taxes, and/or is paid in full or in part to Owner, or Manager or third party vendors engaged by Manager.
2. Costs & Expenses. The fees Owner shall expect to either have withheld from the gross fees or charged to a Guest and Paid to Manager, thus bypassing Owner (“Total Payout”) shall include but are not limited to;
Cleaning Fee (when applicable).
Damage Protection Policy (when applicable). Paid to independent insurer, CSA, or another insurer at Manager's election.
Refund of Security Deposit. Returned to Guest except when withheld as noted below.
Refund of Pet Fee and Pet Deposit (when applicable), back to Guest except when withheld as noted above and below.
Management Fee. To be calculated on the nightly rate charged to Guest as outlined in Section 3.
Site Listing and Booking Fees. Fees for OTA Listing Sites including www.airconciergevacationhomes.com (or any of its related sites) that charge a Listing fee (e.g., as of the writing of this Agreement, Airbnb.com charges 3% of the Gross Payout for its Site Listing Fee to Hosts, VRBO.com may charge 10%-15%, and reservations booked through AirConciergeVacationHomes.com or similarly situated sites may have processing fees (in some instances 6%-12%) charged to the traveler and retained by Air Concierge for the benefit of running its online site, marketing and advertising properties, processing transactions, providing 24/7 support amongst other traveler/Guest and Host/Owner and Property benefits. Such fees may change from time to time and without notice to Manager or Owner as determined by the Listing Site and/or based on the Reservation details itself as elected by the Guest. These amounts are subject to change at any time and without the approval and/or knowledge of Air Concierge. Air Concierge for direct bookings may likewise charge a Booking Fee to a traveler, and such fee shall be entirely the property of Air Concierge, may be used to cover such costs including credit card processing fees as well as support offered to the Guest during a stay, the cost of running its website and for all other web, on site and administrative costs for marketing, advertising, listing, booking and managing a reservation for a Guests benefit.
Credit Card Transaction or Processing Fees; for a Guest opting to book a Reservation with a credit cards, such amount is payable in whole to the Credit Card Merchant
For some booking sites, an insurance (travel, damage, etc.) policy.
For some booking sites, a booking fee.
A Pet Fee. The right to bring a pet and receive additional cleaning following a pet stay (“Pet Deposit” and “Pet Fee”)
A Resort Fee which may be charged to a Guest for the benefit of such amenities as pool or spa heating, and/or HVAC use in excessive hot/cold climates.
Owner hereby agrees that in some situations, some Listing Sites are not able to require Guest to pay certain fees and that such fees may still be the responsibility of Owner (e.g. the TOT). Likewise, some Reservations may be a single lump sum fee charged to Guest in which normal, customary expenses may still be deducted prior to Owner’s payout (e.g., the cleaning).
When TOT is not charged/collected/paid to a municipality by a Booking Platform and if you have not elected to have Air Concierge manage the reporting of TOT on your behalf, then you agree that Air Concierge will charge a nightly rate to a Guest that includes the TOT. Thus any TOT that should be remitted to a municipality is i) your responsibility and not Air Concierge's, ii) that any fines, fees, damages, costs, loss of ability to operate shall be at your sole risk and iii) Air Concierge may but is not obligated to share with you the TOT should you elect to remit calculation amount and lastly iv) Air Concierge is not responsible for the accuracy of its reporting or calculations and Owner relieves Air Concierge of any duty to calculate the appropriate amount of transient occupancy tax.
All other fees or costs that Manager may deem related, or relevant for goods or services provided by Manager or Owner at the Property including but not limited to costs or expenses related to managing the property, performing services at the property, and/or any such costs/expenses that Manager in its sole decision deem appropriate using its best efforts and a standard of reasonableness
Other Deductions. Owner acknowledges and agrees that Manager may cause to be deducted from any Owner Payout and paid to Manager any amounts owed to Manager by Owner under this Agreement.
Other Fees that may be charged to a Guest but may not be payable to the Owner include;
Cleaning fees; those charged to a Guest may be paid to a Cleaner, Cleaning Company, or Air Concierge, including its subsidiary, Hammer & Sponge (together the “Cleaning Parties”) and the amount charged to the Guest may not be the same amount paid to the Cleaning Parties and that any difference shall be the property of Air Concierge;
A convenience fee or early access or late checkout to the Property (“Convenience Fee”),
Repair and Maintenance Fees.
17.1 Manager's Authority: The Manager shall have the authority to incur costs on behalf of the Owner for necessary repairs, maintenance, or other hourly work (collectively, ("Home Services") as needed to maintain the Property in a safe, habitable, and marketable condition. The authority to incur these costs is not a guarantee that in fact Manager will incur and that by electing not to incur such costs on behalf of Owner, Manager is not in breach of this Agreement.
17.2 Markup. The Manager may mark up the cost of any Home Services provided by third-party contractors by no greater than 10% (the "Markup"). This Markup shall be in addition to the actual cost of the Services.
17.3 Reimbursement: Owner shall reimburse Manager for all costs incurred by Manager on the Owner's or Owner’s property behalf, including the Markup, within 30 days of receipt of an itemized invoice or as denoted on Flashlight from the Manager, and Manager shall have the right to deduct such amount including the Markup from rental income. Shall no rental income be available then Owner shall make Manager whole as outlined in Section 6.
17.4 Compliance with Applicable Law.. Owner agrees that the markups applied to Home Services as stated above are reasonable, fair and known to Owner.
Damages. In the event of damage to a Property or the items in the Property, Manager shall determine whether such damage and any compensation Manager receives shall be paid to Owner or to Manager depending on if the compensation is to for repairs and or time spent rehabilitating damages caused, or replacement items. Manager shall use its best efforts to not exceed $1,000 when purchasing supplies for the Property or to benefit a Guest or Owner, but Owner understands and agrees that in some circumstances and in an effort to either maintain a reservation and/or receive a positive review for Owner's Property or maintain the well being of Owner’s Property, Manager may exceed the stated amount.
Air Concierge shall be entitled to its Management Fee for the procurement of any Reservation that benefits an Owner including Reservations made directly between the Guest and Air Concierge, or the Guest and Owner (if that Guest initially booked Owner’s Property due to Air Concierge’s efforts or if Air Concierge undertook any efforts to earn that Reservation for Owner), or the Guest and a third party service that benefits Owner (if that Guest initially booked Owner’s Property due to Air Concierge’s efforts).
Clarification of Fee Ownership and Management Fee Application:
To ensure clarity and avoid future disputes, the Parties agree that certain fees charged to Guests, including but not limited to Pet Fees, Resort Fees, Pool Heating Fees, Damage Fees, and any other ancillary charges (collectively referred to as “Additional Fees”), shall belong entirely to the Manager unless otherwise elected by the Manager. These Additional Fees are charged for goods or services provided directly by the Manager, facilitated by the Manager, or otherwise deemed related to the Guest's stay. The Manager retains full discretion over the collection, allocation, and use of these Additional Fees and acknowledges that such fees are not automatically included in the calculation of the Owner’s payout. At the Manager’s sole discretion, the Manager may elect to allocate a portion of the Additional Fees to the Owner. In such cases, any allocation to the Owner may be calculated at the same percentage as the agreed-upon Management Fee (e.g., 18%). For example, if the Manager collects a $100 Pet Fee and elects to allocate the full portion to the Owner, Owner would receive $82 and Manager $18 (not including any platform fees, taxes or other costs). If Manager does not elect to allocate such fees, Manager retains the right to the full amount of the Additional Fees. The Management Fee percentage agreed upon by the Parties shall apply exclusively to the nightly accommodation rate charged to the Guest and shall not apply to any Additional Fees unless explicitly elected and stated by the Manager. Any Additional Fees retained in full by the Manager are separate from and not subject to the Management Fee calculation. While the Manager will use reasonable efforts to disclose Additional Fees charged to Guests where appropriate, the Manager retains the right to collect, manage, and retain such fees at its sole discretion. Owner acknowledges that Additional Fees may not always be disclosed to Owner and agrees to waive any claims related to the allocation or retention of such fees. Furthermore, Manager reserves the right to modify, introduce, or remove Additional Fees as deemed necessary to enhance the Guest experience, manage the property effectively, or respond to market demands. Owner agrees that such modifications do not require prior approval and that the Manager shall maintain full control over the implementation, allocation, and retention of these fees.
APPENDIX 3: RESPONSIBILITIES AND ACKNOWLEDGMENTS OF OWNER
1. Services. Owner will furnish at Owner’s expense all utilities including but not limited to gas, electric, sewer, water, cable, internet, trash removal, and pest or termite control as needed. Owner authorizes Manager to arrange for firewood, snow removal, yard care, hot tub and pool service, and general repairs and maintenance on Owner’s behalf on an as needed basis. Owner will be responsible for all expenses associated with these services. In the event Manager deems it necessary for either of the safety, security of a Guest, or the habitability of a Property, then Manager may undertake such repairs as is necessary to provide a Property that meets such safety standards for lodging and commercial use purposes. Such maintenance and repairs may include but are not limited to ensuring doors, windows, roofs, furniture, pools, hot tubs, gas, electrical, plumbing, and fire safety measures. In such instances, Manager may in its sole discretion spend an unlimited amount and such charges shall be the entire responsibility of Owner.
2. Furnishings. Owner will furnish the Property with suitable equipment, appliances, furniture, and furnishings necessary for rental occupancy. Owner may be provided with a list of all required items; any items not provided will be purchased for the Property at Owner’s expense. Additional items may include but are not limited to:
Fresh toiletries in every bathroom:
Body Wash
Conditioner
Hand Soap
Shampoo
Shower towels provided per guest
1 bath mat per bathroom
Provide basic washing/cleaning supplies: Kitchen roll, washing up liquid, dishwasher tablets, laundry detergent
Stock kitchen with the following basic cooking ingredients:
Spices
Oil
Pepper
Salt
Tea
Coffee
Provide high quality coffee and tea-making facilities (teapot, tea diffuser, French press, milk foamer, coffee grinder, pod coffee / espresso machine, etc)
Provide crockery, cutlery, glasses and mugs that match and are in good condition
3. Repairs. Owner is responsible for the cost of all repairs, maintenance and replacement of furnishings, fixtures and equipment necessary to maintain the Property in a satisfactory condition for rental occupancy. Manager is authorized, in the name and at the expense of the Owner, to make or cause to be made all ordinary repairs and alterations to the Property as may be necessary. The expense to be incurred for a single item of repair or alteration may not exceed $1000, unless specifically authorized by Owner, except under such circumstances as Manager may deem an emergency, either affecting the rental condition of the Property or to protect the Property from additional damage or destruction or to prevent a cancellation and/or refund to an affected guest during or after their stay. Manager may place the Property in an “out-of-order” status for any cause materially affecting the quality or safety of a Guest’s stay. In no event will Manager be liable for damages to the Property or for any losses accrued by Owner due to the Property being placed in an “out-of-order” status. Owner maintains full responsibility for all physical and financial matters pertaining to the ownership of the Property whether it is rented or not. Manager has the right and shall not be in breach of any clause of this Agreement if Owner fails to repair or maintain the home such that Manager or Guest are actually or potentially harmed, injured or would otherwise have their stay at the Property negatively impacted as determined solely in Manager’s discretion.
4. Owner agrees the home(s) being provided to Manager and utilized by Guest(s)/Tenant(s) is currently and will at all times during the Agreement, a safe living environment, that it meets all applicable building codes and regulations for safety and security. Any failure by Owner to provide or maintain the Property in a safe and habitable condition that results in any actual injury to a Guest/Tenant, or invitees or licensees of Guest/Tenant, or Manager, or Managers founders, directors, officers, employees, agents, assigns, or delegees, agents, heirs, executors, administrators, successors in interest, officers, directors, shareholders, attorneys, insurers), and should any such injury or injuries lead to financial harm or loss or physical damage to any Person or Property, the costs of which shall be entirely the responsibility of Owner and not Manager. Such examples include but are not limited to;
Effective waterproofing and weather protection of roof and exterior walls,
Well-maintained plumbing and gas facilities compliant with law in effect at the time of installation and during the rental period in which the home(s) is managed by Manager,
Water supply compliant with applicable law that is capable of producing hot and cold running water,
Well-maintained heating facilities compliant with applicable law at the time of installation,
Well-maintained electrical lighting compliant with applicable law at the time of installation,
Building, grounds, and appurtenances kept sanitary and free from debris and vermin at the time of rent or lease,
Sufficient number of receptacles for garbage,
Well-maintained floors, stairways, and railings,
Dead bolt locks on each main swinging entry door,
Window security or locking devices for windows capable of being opened.
5. Manager shall not be responsible for seeing to it that the aforementioned conditions are met at the time of onboarding and prior to the leasing of the Property nor during the Agreement period, nor that any of the items above meet local, city, county, state or federal guidelines as per building code or safety requirements for dwellings.
6. Owner agrees that a Tenant may have rights at law or otherwise that are not known to Manager. Likewise Owner acknowledges and agrees that a Guest may become a Tenant by virtue of extending their reservation that was not previously a tenancy of any type at law. Shall there be any harm or injury of any sort to Owner or Owner’s Property including Tenants failure to vacate the Property timely, causing an unlawful detainer action to be commenced, then Owner and not Manager shall be responsible for all costs and efforts associated in such an action.
7. Owner agrees that he/she is in compliance with all laws and regulations applicable to owner and owner’s property.
8. Owner agrees Company is not responsible for ensuring Owner’s home is permitted, licensed or otherwise compliant with any local, state or federal laws.
9. Owner agrees Company is not responsible for charging, collecting or filing tot tax or zoned for short term rental unless otherwise agreed in writing between the parties.
10. Owner agrees his/her home currently has and there will be at all times, at least (1) functional and in good working condition, smoke detector on each level of Owner’s Property and that the responsibility of such remains at all times Owner’s and not Company’s.
11. Owner agrees that his/her Property has and will have at least (1) ) functional and in good working condition carbon monoxide (CO) alarm on each level of the home, and for levels with bedrooms, then there is or will be at all times, a carbon monoxide (CO) alarm in the hallway near any sleeping areas and that the responsibility of such remains at all times Owner’s and not Company’s.
12. Owner agrees that his/her Property currently has had or there will be prior to occupancy by an Air Concierge guest, its heating systems, including chimneys and vents, inspected and serviced within the past 12 months, and Owner agrees to future annual inspections as arranged by Owner to check for blockages, corrosion, partial and complete disconnections.
13. Owner agrees that his/her property meets all local and state safety codes and owner agrees that he/she is both responsible for and will ensure that it does so at all times that it is under air concierge management.
14. OWNER AGREES THAT HE/SHE AND HIS/HER PROPERTY INCLUDING STRUCTURE, COMMON AREAS, AND ANY REASONABLE AREA THAT A PERSON MAY COME IN CONTACT WITH AS A RESULT OF OWNER’S DECISION TO LIST HIS/HER PROPERTY(IES) FOR RENT ARE IN COMPLIANCE AND WILL AT ALL TIMES DURING THE TERM OF THIS AGREEMENT REMAIN IN COMPLIANCE WITH ALL LAWS AND REGULATIONS APPLICABLE TO OWNER AND OWNER’S PROPERTY, INCLUDING BUT NOT LIMITED TO ZONING, TAX, LICENSURE, PERMIT, HEALTH AND SAFETY, FIRE SAFETY, POOL & SPA SAFETY, SMOKE AND CARBON MONOXIDE DETECTION AND DEVICES, BUILDING CODE(S), PRIVACY AND SECURITY AND THAT SUCH COMPLIANCE IS YOURS AND YOURS ALONE AND IS NEVER THE RESPONSIBILITY OF AIR CONCIERGE ITS EMPLOYS, DELEGATES, VENDORS, FOUNDERS, CONTRACTORS, SUBCONTRACTORS, OR ASSIGNEES
15. Owner agrees prior to listing the Property for rent and for the duration of this Agreement, to provide to Air Concierge all relevant and material information in an accurate manner with regards to the home and its amenities, features, descriptions and layouts and to update and inform Air Concierge if any of the same shall change.
16. Owner understands and agrees that if a booked guest is unable to stay at the home because of a significant safety, security, or health risk, or because the place is substantially different from the listing description, that the reservation may be canceled and that Owner may be responsible for both financial and non-economic costs as well to all affected Parties and that such costs may be determined by Manager or other parties,including but not limited to a Third Party Booking Platform..
17. Owner agrees that that Air Concierge has full rights to repair, replace, deliver/install any smoke detector(s) or carbon monoxide detector(s), at a cost to Owner for parts and labor, without Owner’s prior approval.
18. Owner agrees that Air Concierge may deactivate or suspend Owner’s online listing(s) or that a Booking Platform may do the same, for any reported safety alert, whether true or accurate or not, in the event of a notice of such occurrences including but not limited to a smell of gas, a gas leak, smell of smoke, or any related occurrences that may impact the safety and well being of a Guest, visitor, Air Concierge staff, vendor, or related parties.
19. Refunds and Credits. In the event Manager, acting within his right under this Agreement, deems a refund or credit should be given to a Guest for issues that cause discomfort or discouragement, such as maintenance, repairs or degradation of use and enjoyment of the Property, then Manager may do so without impact to Manager’s fee. Such refund and credit shall come from Owner’s Payout unless Company determines otherwise.
20. Guest Information. Owner agrees that all information concerning Guests occupying the Property, specifically including without limitation names, addresses and credit card data, is the sole and exclusive property of Manager.
21.a. Insurance. Owner represents and warrants he/she will maintain a comprehensive liability insurance policy in a minimum amount of $1,000,000 per occurrence/ $1,000,000 in aggregate that specifies “AIR CONCIERGE, INC” as an additional insured. Owner agrees that its insurance policies are primary for all occurrences and incidents which happen in or about the Property and authorizes Manager to provide copies of the certificate to third parties upon reasonable demand. In the event that the Property becomes unavailable due to a natural disaster, major repair or other reason, Manager will be entitled to the Management Fee for any insurance claims by Owner that lead to recovery of rental income on displaced reservations. Owner further agrees that for any insurance being claimed, Owner shall be solely responsible for any deductible payment. Owner agrees that Manager may elect and have the ability to front such deductible on Owner’s behalf and shall be reimbursed in full, including withholding from any rental income for the same deductible amount. Owner agrees that the insurance policy retained will be sufficient to cover Owners own use (if applicable) as well as home rental insurance specific to short term rentals that may include coverage for longer term tenancies.
When adding Air Concierge to your policy, please use this address
Air Concierge Inc.
PO Box 235320
Encinitas, CA 92023
21.b. Owner shall be responsible for ensuring that the insurance policy they obtain covers Owner and Property (and additional insureds) for either, both, or at least short term and/or long term bookings. It shall be the sole responsibility of Owner to determine with Owner’s insurance carrier what length of stays the policy/ies cover such that any / all bookings confirmed by Manager are covered. Owner should note that long term leases (say over 6 months), may require separate coverage than a short term policy which may only cover 1 night - 90 nights, as determined by Owner’s insurance broker/agent and not Manager. Manager makes no warranty or testimony as to insurance and thus Owner agrees to all responsibilities having to do with acquiring, and maintaining all policies for all rental periods at Owners Property.
21.c. Owner agrees that Manager does not and will not assume any responsibility or liability for the adequacy or applicability of any insurance coverage, including: Homeowners insurance policies, Insurance policies offered by booking sites, any other insurance policies that may exist, whether any existing policy will cover specific losses, damages, or expenses related to your home, rental, vacation rental or its contents. Any coverage exclusions, exemptions, or limitations included within any insurance policy. It is Owner’s sole responsibility to ensure adequate insurance coverage in place for your vacation rental and its contents, meeting your specific needs and potential risks. Air Concierge strongly recommends that you consult with an independent insurance professional to: Assess your individual needs and risks, Choose an appropriate insurance policy with adequate coverage limits and terms; Understand any exclusions, exemptions, or limitations within your chosen policy.
21.d. Owner acknowledges and understands the booking platforms (Airbnb, VRBO, eg) may update their policies known or unbeknownst to Manager, and any such updates are not the responsibility of Manager to inform Owner, nor the responsibility of Manager to ensure Owner’s insurance policy will cover any gaps or act as the primary policy. Owner agrees to stay appraised of these updates, inform their insurance agent/broker of the same and can find their respective terms and conditions below. Air Concierge is not responsible for notifying you of changes to these terms nor whether the policy meets your needs nor whether your policy is appropriate given the language of any platform policy.
21.e. Payment of Fees in the Event of a Covered Cause of Loss. Manager and Owner acknowledge that Manager cannot insure the property due to a lack of a direct financial interest in the property. Therefore, it is the Owner’s responsibility to ensure their insurance policy provides adequate loss of rents coverage to Manager. In the event the property suffers a covered cause of loss under the applicable homeowner or similar insurance policy and Owner receives payment for loss of rents under that policy, the following terms shall apply; a) The management fee ordinarily due under this agreement shall be classified and paid as a loss rents fee to Manager and shall remain payable to the Manager. This payment recognizes that the Manager experiences a parallel loss of income as a result of the covered loss, akin to the loss suffered by the Owner. b) Owner agrees to maintain appropriate loss of rents coverage under their insurance policy to ensure compensation for lost rental income in the event of a covered cause of loss. The loss rents fee shall be calculated as the same percentage of the loss of rents payment as the management fee percentage specified in this agreement. If in the event calculating such an amount is unattainable due to the variety of fees based on rental amounts and lengths of stays, then the Parties agree to utilize 20% c) If the insurance company disburses the loss of rents payment directly to the Owner, the Owner shall remit the corresponding loss rents fee to the Manager within [15] days of receiving such payment. Owner agrees to promptly notify Manager of any claims related to a covered cause of loss, including the status of the claim and the amount of any loss of rents payment received. Both parties acknowledge that a covered cause of loss impacts the financial expectations of both the Owner and Manager.
21.f. Safely Insurance. Air Concierge utilizes a third party insurance provided by Safely, Inc. for limited OTA (online travel agency) and direct bookings. Safely Inc also performs a guest screening service, (the two policies together the “Safely Policies”). The guest screening does not guarantee a Guest or members of Guest’s group will not create damage, suffer injuries, or otherwise cause a loss or claim for Owner or the Property. As of the time of this Agreement the Policies do not cover Airbnb/Vrbo bookings; it only covers direct bookings (airconciergevacationhomes, Marriott Homes & Villas). The Policies offer 1m for liability (injuries) and dwelling coverage. The Policies require a $500 deductible. Should the policy be required due to an action or inaction by a covered party (Guest), Air Concierge will use best efforts to have the deductible paid by that person. Any such refusal or non payment shall not become the responsibility of Air Concierge to fund the deductible. Likewise should the Policy be required to due to an action or inaction by Owner or the Property, then Owner agrees to pay the deductible amount. Payment of the deductible does not in of itself guarantee coverage. The Safely Policies do not relieve Owner of maintaining their own homeowner/renter policy as required herein. The cost of the Safely Inc policy is a per night charge that is invoiced monthly to Air Concierge. Air Concierge will use its best efforts to charge the same or a higher amount to the traveler(s) to cover these costs. In the event the nightly rate is higher than what is charged to Air Concierge. Air Concierge shall retain the difference and will not pay to Owner as part of the monthly Owner Payout. Air Concierge has included in its rental agreements, when applicable to inform and notify the Guest of the guest screening policy. Air Concierge has also added a clause to its rental agreements, when applicable, requiring the Guest to agree to file any claims for injuries through the Safely Policies. You should note and understand that the mere existence of this clause does not mean the Guest will or is legally required to do so, only that they have signed an agreement in which that clause is included. You should also note that the terms covering the Safely Policies including the Policy itself (whether its in force/active) could change at any time. You can learn more about the Safely policy here https://go.safely.com/airconcierge/. Please note that all Safely insurance coverage terms including the presence or non existence of certain coverage or features (such as the Background check) may be subject to change, including outright removal of this Coverage or elements of this Coverage with or without Air Concierge’s knowledge and Air Concierge is under no duty to inform you of such change(s)
21.g.Telephone and Television Services and Streaming Services. Owner is advised to “lock” long distance telephone services to prevent excess long distance charges. Owner is also advised to lock all television and streaming services and add-ons such as pay-per-view. Manager is not responsible for any communication service charges including but not limited to long distance charges and pay-per-view charges.
21.h.Warranty. Owner hereby warrants that he has all legal rights to the Property and the right to appoint Manager to oversee and manage the Property.
21.i. Tenant Evictions. In the rare event a Reservation results in a non-payment of rent (or other violation of the Agreement between the Guest and Manager), and such action or inaction by the Guest results in Manager or Owner effectuating steps to evict the Guest, then the costs of such action shall be split between Manager and Owner in the same percentage as Managers fee on such Reservation. Therefore by way of example, if Manager earned a 15% Management fee during the underlying Reservation, then Manager shall cover 15% of the costs of the eviction up to $3,500. Thereafter, all fees and costs are 100% the responsibility of Owner. Such fees and costs include and are limited to, court costs and attorney fees. The above shall not apply to costs related to turnover, property cleanup costs, repair costs, or lost rent. Additionally, all costs above are offset by any amount used from the Security Deposit.
The Security Deposit shall first be used to pay Owner for missed rents and then property damage, property repairs, missing property.
The Security Deposit shall be limited to two (2) months rent for any unfurnished unit and three (3) months rent for any furnished unit.
The Return of the Security Deposit. Manager will, after a tenant moves out utilize a twenty-one (21) day policy to: Return the tenant's deposit in full, or
Mail or personally give to the tenant:
A written letter explaining why Manager is keeping all or part of the deposit,
An itemized list of each of the deductions,
Any remaining refund of the tenant’s deposit, and
Copies of receipts for the charges/deductions, unless repairs cost less than $126 or the tenant waived (gave up) his or her right to get the receipts. If the repairs cannot be finished within the 21-day period, Manager will send the tenant a good faith estimate of the cost of repairs. Then within 14 days of the repairs being done, the Manager will send the tenant the receipts.
22. Credit Card. Owner agrees to provide and keep on file with Manager at all times during this Agreement an active credit card that Manager may charge for costs (the “Credit Card Charges”) incurred by Manager when the Owner Payout is less than the Credit Card Charges. Owner authorizes Manager to charge the card on file, including a three (3%) percent processing fee in any monthly period in which the Owner Payout is less than the Credit Card Charge(s). In the event a Credit Card is expired or cannot be charged, there shall be a five (5%) interest charge for each monthly period in which the Credit Card Charge cannot be successfully processed.]
Owner authorizes Air Concierge to use its own credit card to make purchases on behalf of the Property Owner for items deemed necessary for the operation of the Property. Such purchases may include, but are not limited to, household supplies, replacement furnishings, or other guest-requested items. AIR CONCIERGE will use its best efforts to provide Owner with a monthly statement or make available in Flashlight, a detailing of all purchases made on Owner’s behalf. If the rental income for the Property during the month is insufficient to cover the reimbursement costs to AIR CONCIERGE, then AIR CONCIERGE may charge and Owner agrees to have Owner's credit card for any remaining balance.
23. Legal Fees for Recovery Actions Against Guests or Third-Party Platforms
23.a Authority to Pursue Recovery Actions. In the event that a Guest, Guest of Guest, or Third-Party Platform (including but not limited to Airbnb, VRBO, Marriott Homes & Villas, or other Booking Sites) causes damage, loss, or financial harm to the Property or Owner, Manager shall have the discretionary authority, but not the obligation, to pursue recovery of such damages or losses on behalf of Owner. Such recovery actions may include, but are not limited to, filing claims, engaging in negotiations, or initiating legal proceedings against the responsible party(ies).
23.b. Costs and Legal Fees: Any costs incurred by Manager in pursuing recovery actions, including but not limited to attorney fees, court costs, filing fees, arbitration or mediation fees, and other reasonable expenses (collectively, “Recovery Costs”), shall be borne by Owner unless otherwise agreed in writing by the Parties. Manager shall use its best efforts to consult with Owner prior to initiating any legal proceedings that may result in significant Recovery Costs, provided that such consultation does not delay or impair Manager’s ability to pursue timely recovery.
23.c. Withholding of Monies: Manager is authorized to withhold from the Owner Payout (as defined in Section 2.2) or any other rental income due to Owner an amount sufficient to cover the Recovery Costs incurred or anticipated in pursuing recovery actions. Manager shall provide Owner with an itemized accounting of all withheld funds and Recovery Costs within thirty (30) days of such withholding. In the event that the Owner Payout or available rental income is insufficient to cover the Recovery Costs, Manager may charge the Owner’s credit card on file (as per the Credit Card Charges provisions in this Agreement) for the remaining balance, including a three percent (3%) processing fee.
23.d Allocation of Recovered Funds: Any funds successfully recovered from a Guest, Guest of Guest, or Third-Party Platform as a result of Manager’s recovery actions shall first be applied to reimburse Manager for all Recovery Costs incurred. Any remaining recovered funds shall be disbursed to Owner, less Manager’s standard Management Fee (as specified in Section 3) or a mutually agreed percentage, to compensate Manager for its efforts in securing the recovery.
23.e. Owner’s Responsibility and Indemnification: Owner acknowledges and agrees that Manager’s decision to pursue recovery actions is made in good faith and in the best interest of protecting the Property and Owner’s financial interests. Owner shall indemnify and hold harmless Manager, its founders, directors, officers, employees, agents, and assigns (collectively, the “Air Concierge Parties”) from any claims, losses, or liabilities arising from recovery actions, except in cases of Manager’s gross negligence or willful misconduct. Owner further agrees that Manager shall not be liable for any failure to recover damages or losses from a Guest or Third-Party Platform, and such failure shall not relieve Owner of the obligation to reimburse Manager for Recovery Costs as provided herein.
23.f. Notification and Transparency: Manager shall notify Owner in writing (via email or through the Flashlight portal) of any recovery actions initiated, including the nature of the claim, the estimated Recovery Costs, and the progress of the recovery efforts. Manager shall provide Owner with regular updates, no less frequently than every sixty (60) days, until the recovery action is resolved or terminated.
23.g Dispute Resolution: Any disputes arising under this Section, including disagreements over the reasonableness of Recovery Costs or the allocation of recovered funds, shall be resolved through the arbitration procedures outlined in the Client Arbitration Agreement (attached to this Agreement), unless otherwise agreed by the Parties.
(h) Survival: The obligations and rights under this Section shall survive the termination or expiration of this Agreement for any recovery actions initiated prior to such termination or expiration.
APPENDIX 4: OWNER BOOKING NOTIFICATIONS
Owner shall notify Manager of desired dates in which Property is sought to be booked/reserved and likewise unblocked (in the event of a previous blocked date range) (a "Owner Booking Notification") by selecting “Owner Block” here (link here: https://www.manageairconcierge.net). Such method is the only recognizable and official manner for which a block or unblock may occur. Notifying Company in writing or otherwise, whether by email, text or call is inadequate and such requests to block dates are not legitimate.
In the unlikely but still possible scenario in which a legitimate Owner Block is submitted and a new guest reservation is made or an existing guest reservation is amended to cover some or all of the Owner Block dates, then the Owner Block should take effect but only after 24hrs from the time in which new guest reservation is made or an existing guest reservation is amended. Therefore the new booking and or amended booking that comes in after the owner block but within the 24hr period shall take effect. Any forced cancelation will trigger the cancellation clauses herein. Please note however, The 24hr period may be shortened if Air Concierge notifies Owner in writing that his/her block has been accepted and confirmed.
For owner blocks, Manager shall confirm such dates are available and not showing as “booked”, “reserved” or “tentative” in its own proprietary calendar or on any Listing Site. Manager shall use its best efforts to respond within a timely period confirming or denying Owner's request.
First In Time. Shall Manager confirm a Guest Reservation prior to confirming Owner's Booking Notification (and not merely Owner's announcement of the booking request) and the dates of each overlap or cause a conflict, then the Guest Reservation shall take precedence and Owner's request shall be null and void.
For owner blocks, upon successful confirmation of availability, Manager shall cause all Listing Site calendars to be blocked for Owner’s use (whether for himself or Owner’s Guest). Owner shall never have the obligation to pay for his own use of the Property.
Any other method for blocking or unblocking a calendar except as noted above (Appendix 4, Section 1) shall not be recognized by Air Concierge, whether if by phone, letter, email, direct message, or text to an Air Concierge team member and as such, any Reservations that are not realized (due to a calendar not being properly unblocked) or likewise any Reservations received (due to a calendar not being blocked) shall not be a violation of this Agreement by Air Concierge and any bookings shall be honored by Owner.
Cleaning. Owner shall be responsible for arranging and managing and overseeing professional cleaning after such use of Owner or Owner’s Guests. In the event a Reservation following Owner’s assigned cleaners results in complaints or issues, then Manager shall have the right to refund Guest out of Owners Payout. In the event Owner request’s Manager’s Services prior to and/or following a Reservation by Owner, then Owner shall pay Manager’s fee for such tasks as cleaning, restocking and any Hourly Work performed. At all times and at any time a Cleaner is the personal cleaner of Owner, or has been hired, retained, engaged, arranged or managed by Owner to clean and or attend to the Property in any capacity, then Owner agrees to defend and indemnify and hold harmless Air Concierge and its Manager, its founders, directors, officers, employees and agents (each a “Air Concierge Indemnified Person”), from and against any and all damages, losses, claims (whether on account of settlement or otherwise, and whether or not the Air Concierge Indemnified Person is a party to any action or proceeding that gives rise to any indemnification obligation), actions, suits, demands, judgments, liabilities (including penalties), obligations, disbursements of any kind or nature and related costs and expenses (including reasonable attorneys’ fees and disbursements) awarded against or incurred by any Air Concierge Indemnified Person arising out of or as a result of (i) any representation or warranty made by Cleaner having been untrue or incorrect in any material respect when made, (ii) any breach by Cleaner of any of its obligations to perform the Cleaning Service which shall include all cleaning methods, use of cleaning products, the cleaning of areas in and around the home that are reasonable and in the course and scope of a house cleaning (the “Cleaning Service”) (iii) any unlawful act or omission of Cleaner, and (iv) any act or omission of an act that results in any damage, injury, loss, or claim to any person.
Owner shall ascertain and deliver to Manager whether Manager shall perform all or some of its Services for Owner’s Guest’s. In the event some or all of Manager’s services are to be performed, then Owner shall provide to Manager the name, phone, email for at least one of Owner’s Guests.
Managers fee for its Services for an Owner’s Guest Reservation shall be limited to 15% of the Total Payout and unless the Parties have agreed to an alternative amount . All Reservations generated by Owner shall require Owner’s Guest to book the Property through an Online Listing Site managed by Manager.
Should Owner elect to grant an Owner’s Guest access to the Property and bypass notifying Manager or booking through an Online Listing Site under Manager’s control, then it shall be the sole responsibility of Owner to oversee all Guest access, respond to any Guest requests, inquiries or issues, and ensure the Property has been properly cleaned and restocked after Owner’s Guests have departed.
In the event Owner’s Guest has been granted access to the Property and has bypassed notifying Manager or booking through an Online Listing site under Manager’s control, then Manager shall have no responsibility for either the Property, its inhabitants, its fixtures, and likewise no rights to any percentage of fees charged to Owner’s Guest during that Reservation Period.
Further, it shall be the sole responsibility of Owner to arrange the restocking and cleaning of the Property prior to the next Reservation confirmed by Manager.
In the event Owner’s Guest’s actually or constructively interferes with a Reservation previously confirmed by Manager such that Manager will be caused to cancel a Reservation, then Section ("Reservation Cancellation") shall apply. In the event the Property is not ready for a Reservation confirmed by Manager due to Owner not informing Manager as outlined above or Owner having not taken steps to prepare the Property, then Manager may either at its election and only in good faith, act in accordance with Section ("Reservation Cancellation") or take reasonable measures to prepare the Property himself, the cost of which may deviate from the normal course of expenses typically incurred but not to exceed $500 for a cleaning. Manager may be entitled to Hourly Work fees for any work undertaken to prepare the Property in such a situation.
Pre-Existing Reservations. Any reservation for the Property, prior to Manager’s acceptance of this Agreement, shall be a) communicated to Manager (including dates of arrival and departure of Guests) b) handled by Owner or its representatives c) upon departure of the Guest, leave the Property in such condition that shall Manager confirm a reservation, that those arriving Guests arrive to a rental ready Property and shall any issues arise for Manager’s Guests resulting in refunds or credits, such refunds or credits shall be covered by Owner.
Appendix 5. House Rules and/or Rental Agreements for Guests
The below House Rules (and or Rental Agreement) for Rental Guests (which may be updated from time to time AND WITHOUT OWNER APPROVAL and/or not provided at all depending on the platform in which the Property is listed). In either case, not providing these or not providing these as outlined herein shall not be a breach of this Agreement by Manager.
Disclaimer of Liability and Enforceability for House Rules:
Air Concierge, Inc. (the "Manager") provides these House Rules as a courtesy and template for use between the Property Owner ("Owner") and Guests. Manager makes no representations, warranties, attestations, or promises regarding the enforceability, validity, or effectiveness of these House Rules, in whole or in part, under any applicable law. These House Rules may not be enforceable against Guests or third parties, and the Manager does not guarantee or offer any assurance that any clause herein will be enforced, lead to recovery of damages, fines, or other remedies by the Owner or their representatives, or provide any legal protection. The Manager shall not be liable for any errors, omissions, inaccuracies, or defects in these House Rules, or for any liabilities, harms, losses, damages, claims, or consequences arising from or related to their use, non-use, modification, or enforcement (or lack thereof), including but not limited to any failure to prevent Guest misconduct, property damage, personal injury, or legal disputes. Owner assumes all risks associated with relying on these House Rules and agrees to indemnify and hold the Manager harmless from any related claims. Owner acknowledges that the Manager does not provide legal advice, enforceability guarantees, or any obligation to pursue enforcement on the Owner's behalf.
The House Rules listed below may, in certain instances, serve as a required condition for Guests renting the Property and are intended but not guaranteed to be agreed to prior to booking. However, they are not guaranteed to apply as a condition for every rental.. They may be found updated from time to time here, in which case these terms take effect over the terms outlined below. Additionally, in some instances the House Rules may not be read, understood, or enforced if a Reservation takes place on a Third Party Booking Platform (Airbnb.com, VRBO.com, AirConciergeVacationHomes.com, eg) as well as any House Rules written on the Listing itself. Owner approves these rules by acceptance of the Terms and Conditions of this Agreement. Owner acknowledges such terms may be altered at any time by Air Concierge without consent or approval by Owner. Owner acknowledges that Air Concierge may from time to time rely on the posted terms and conditions of a listing site and that such terms and conditions shall operate in place of the House Rules below at the sole discretion of Air Concierge and without the consent or approval by Owner.
RENTAL AGREEMENT
This Rental Agreement (“Agreement”) is entered into between the Main Booker named in the Booking Platform reservation details (“Guest,” “Renter,” “Main Booker,” or “Occupant”) and Air Concierge Inc., a California corporation and dba “Air Concierge Washington Inc.” in the State of Washington (“Manager”), for the rental of the Property specified in the Booking Platform (Airbnb, VRBO, etc.) reservation details known as (“Listing”, or “Property”).
DEFINITIONS
Guest Booking Party: All individuals staying at the Property under the Main Booker’s reservation, up to the maximum occupancy specified in the Platform Terms, and all visitors, invitees, or licensees permitted by the Main Booker to enter the Property during the rental period. Excludes unauthorized occupants or third parties not permitted by the Main Booker.
Main Booker: The individual named in the Booking Platform reservation details who signs this Agreement and is responsible for the Guest Booking Party’s compliance with its terms.
Platform Terms: The terms and conditions of the Booking Platform, including rental rate, occupancy period, maximum occupancy, house rules, cancellation policy, and payment terms, as confirmed in the reservation details or House Packet.
Equipment: Includes pool, spa, hot tub, child equipment, sports gear, or other amenities provided at the Property, as defined in the House Packet or Platform Terms.
1. RECITALS
This Agreement governs your booking of an Air Concierge-managed home (“Accommodation” or “Listing”) through a Booking Platform (e.g., Airbnb, VRBO, AirConciergeVacationHomes.com) on behalf of a Property Owner, not Air Concierge (the “Property Owner” or “Home Owner”). It incorporates by reference the platform’s terms, including but not limited to the rental rate, occupancy period, maximum occupancy, House Rules, cancellation policy, and payment terms, as confirmed in the reservation details or House Packet (“Platform Terms”). These Platform Terms are binding unless they conflict with this Agreement. The Guest acknowledges reviewing and agreeing to the Platform Terms at booking.
2. RENTAL TERMS
2.1. Occupancy: Guest agrees to rent the Property for the check-in and check-out dates and times specified in the Platform Terms, unless modified in writing by the Manager. Maximum occupancy is as specified in the Platform Terms. Unauthorized occupants may incur fees or eviction.
2.2. Payments and Deposits: All payments (e.g., rent, fees (pets, HOA, pool/spa, other utilities, transient occupancy tax, etc) and security deposits are processed through the Booking Platform per the Platform Terms. The Guest is responsible for additional charges (e.g., pool/spa heating, pet fees, resort fees, special items, damages, fines) not covered by the platform, payable via the platform or the Manager’s designated method (e.g., ACH to the account specified by Manager). Any agreed upon additional charges shall not be provided to Guest until payment is received by Manager.
2.3 Cancellation Policy: The Main Booker’s cancellation of the reservation is governed by the cancellation policy specified in the Platform Terms, as confirmed in the reservation details, which is incorporated herein by reference. If no cancellation policy is provided by the Booking Platform (e.g., for direct bookings), the following strict policy applies unless otherwise agreed upon by the Parties in writing:
(a) To receive a full refund of amounts paid, the Main Booker must cancel within 48 hours of booking, and the cancellation must occur at least 14 days before the check-in date specified in the Platform Terms.
(b) If cancellation occurs 14 or more days before check-in but not within 48 hours of booking, the Manager will be paid 50% of the total rental rate for all reserved nights.
(c) If cancellation occurs between 7 and 14 days before check-in, the Manager will be paid 50% of the total rental rate for all reserved nights.
(d) If cancellation occurs less than 7 days before check-in, the Manager will be paid 100% of the total rental rate for all reserved nights.
Cancellations must be submitted in writing to the Manager via email at guest_support@airconcierge.net or through the Booking Platform’s cancellation process. Refunds, if applicable, will be processed per the Platform Terms or, for direct bookings, within 14 days of cancellation. The Manager’s cancellation policy prevails in case of conflict, as provided in Section 9.4, unless otherwise required by applicable law.
2.3. Identification: To prevent fraud, the Main Booker may be requested to provide, and if so, agrees to provide prior to check-in:
A government-issued ID (e.g., passport, driver’s license) showing name and date of birth (address redacted).
A credit card copy used for booking (name and last four digits visible, other details redacted).
The Manager will use these solely for verification, securely storing and deleting them within 30 days post-checkout. Failure to provide may delay access to the Property.
3. PROPERTY AND RULES
3.1. Condition: The Property is fully furnished with appliances, furniture, and amenities as listed on the Listing. The Property Owner warrants habitability of the Premises. Guests must report issues immediately to guest_support@airconcierge.net (mailto:_support@airconcierge.net); the Manager will respond using best efforts for non-emergencies.
3.2. House Rules: Guests agrees to follow the House Rules outlined herein, the Platform House Rules, the Platform’s Terms and Conditions, and the House Rules at https://www.airconcierge.net/guest-terms or in the House Packet (should one be provided to Guest).
No Smoking: Smoking inside or within 20 feet of the Property incurs a fee of $250–$1,000, based on cleaning costs, with evidence (e.g., photos, invoices) provided within 7 days and disputable within 14 days.
No Pets: Unapproved pets incur a $250–$1,000 fee, based on cleaning or damage, with evidence provided within 7 days and disputable within 14 days.
No Events: Unauthorized Events are prohibited. An “Event” means any gathering beyond the lodging use of the Property in which visitors not included in the Reservation details arrive to the Property for purposes including but not limited to parties, weddings, bachelor/bachelorette parties, birthday parties, or commercial use of the Property not approved in writing by the Manager. Such commercial events include but are not limited to: (a) Activities involving brands, companies, or commercial entities (e.g., photoshoots, video production, product promotions, or marketing events, social media creators or influencers, giveaways, etc) beyond personal lodging use. (b) Exceeding the maximum occupancy specified in the Platform Terms for staying guests or hosting more than four (4) non-staying visitors (e.g., production crews, clients) at any time. (c) Commercial activities occurring outside 8:00 AM–9:00 PM or extending beyond 2 hours, disrupting normal lodging use. (d) Use of professional equipment (e.g., lighting, cameras, props), involvement of non-guest professionals (e.g., photographers, stylists), public access (e.g., ticketed events), or activities causing excessive noise, traffic, or property wear. Unauthorized Events incur a fee of $2,500–$10,000, based on scale, duration, and impact of the Event, as well as non-economic (reputational harm, neighbor impacts, eg) and actual damages (e.g., cleaning, repairs, fines), and forfeiture of the platform-managed security deposit, with evidence (e.g., photos, invoices) provided within 14 days and disputable within 21 days. Violations may lead to eviction per Section 7.
Noise and Neighbors: Comply with local noise ordinances and rules in the House Packet or posted at the Property or as noted on the Listing. Violations may incur fines, deductible from platform deposits.
Keys/Remotes: Return keys, remotes, or passes to the designated lockbox. Lost items incur a $250+ fee, including locksmith costs.
Utilities: Use utilities reasonably. Overages exceeding 20% of historical averages incur a $50–$500 fee, with evidence provided within 30 days and disputable within 45 days.
Pool/Spa (If Applicable): Use at your own risk. Guests must follow the Pool and Spa Addendum (Attachment A, included if the Property has a pool or spa), which outlines safety rules, including no diving, no glassware, no alcohol, supervising children under 14, showering before use, and no pets. The Property Owner ensures compliance with Health and Safety Code § 115922. Report issues immediately. Violations may incur fees or loss of pool privileges.
Equipment: Inspect pool, spa, or child equipment upon arrival and report issues immediately. Use per manufacturer instructions (Guest’s responsibility to review online). The Manager is not liable for misuse.
3.3. Emergency Procedures: For emergencies (e.g., gas leaks, fires, medical issues), call 911 and notify the Manager at (858) 771-6910 or guest_support@airconcierge.net. The Manager will use best efforts to respond to urgent maintenance within a reasonable period, to resolve issues promptly.
4. LIABILITY AND INDEMNITY
4.1. Assumption of Risk and Release of Liability: The Guest Booking Party acknowledges that use of the Property and its amenities, including Equipment (e.g., pool, spa, child equipment), involves inherent risks, including but not limited to personal injury, property damage, or loss. The Main Booker, on behalf of themselves and the entire Guest Booking Party, as defined in Definitions assumes all such risks, whether known or unknown, and releases, waives, discharges, and covenants not to sue the Property Owner, Air Concierge, and their respective representatives, employees, agents, and assigns (collectively, “Released Parties”) from any and all claims, demands, or causes of action for personal injury, property damage, or loss arising from the Guest Booking Party’s use or occupancy of the Property or Equipment, except for claims resulting from the Released Parties’ gross negligence, willful misconduct, or failure to comply with applicable habitability laws. The Main Booker represents that they have the authority to bind the Guest Booking Party to this release.
4.2. Indemnification and Hold Harmless: The Main Booker, for themselves, their heirs, assigns, executors, and administrators, agrees to indemnify, defend, and hold harmless the Released Parties from any and all claims, disputes, damages, losses, liabilities, judgments, costs, and attorney fees brought by or on behalf of any member of the Guest Booking Party, or arising from:
(a) The Guest Booking Party’s use or occupancy of the Property or Equipment.
(b) Any negligent or intentional act or omission of the Guest Booking Party.
(c) Misuse or improper use of the Property or Equipment by the Guest Booking Party.
This indemnification and hold harmless obligation does not apply to claims arising from the Released Parties’ gross negligence, willful misconduct, or failure to comply with applicable habitability laws. The Main Booker shall be responsible for all legal fees and costs incurred by the Released Parties in defending such claims, unless otherwise prohibited by law.
4.3. Limit of Liability: The total liability of the Property Owner and Air Concierge for any claim arising from this Agreement or the Guest Booking Party’s use of the Property shall not exceed the total rental rate paid by the Main Booker, as specified in the Platform Terms, except where such limitation is prohibited by law.
4.4. Insurance: The Guest Booking Party’s personal property and injuries are not insured by the Manager or Property Owner. The Main Booker is strongly encouraged to purchase platform-offered damage protection or personal insurance covering all members of the Guest Booking Party. Claims must first be submitted to applicable platform insurance policies (e.g., Airbnb Aircover, VRBO Liability Policy).
5. PROPERTY OWNER DISCLOSURES. The Manager, acting as the Property Owner’s agent, provides the following disclosures, applicable to short-term rentals, with warranties provided by the Property Owner:
Surveillance: Exterior security cameras or monitoring devices, if present, are disclosed in the booking listing or House Packet. No surveillance is permitted in private indoor areas (e.g., bedrooms, bathrooms).
Pool/Spa Safety (If Applicable): The Property Owner warrants compliance with relevant Health and Safety Code. Guests must follow safety rules in the Pool and Spa Addendum (Attachment A, included if applicable).
Smoke and Carbon Monoxide Detectors: The Property Owner warrants operational detectors, per relevant Health and Safety Codes. Guests must not disable detectors and must report malfunctions immediately.
Lead-Based Paint and Hazardous Materials: For properties built before 1978, the Property Owner discloses known lead-based paint or hazards, per 42 U.S.C. § 4852d. Known mold or other hazardous materials (e.g., asbestos) are disclosed, per relevantHealth and Safety Code Disclosure forms are provided in the House Packet, if applicable.
Megan’s Law: Information on registered sex offenders is available at www.meganslaw.ca.gov, per Civil Code § 2079.10a.
Pest Control: The Property Owner discloses known pest infestations or recent treatments, per Civil Code § 1940.8. Details are in the House Packet or available upon request. Guests must report pest issues immediately.
Accessibility: The Property is not fully compliant with the Americans with Disabilities Act due to residential building codes. Contact the Manager at (858) 771-6910 for accessibility questions.
Transient Occupancy Tax (TOT): TOT applies to short-term rentals and is included in the rental rate or charged separately, per the Platform Terms.
Local Regulations: Guests must comply with municipal ordinances (e.g., permit requirements, noise restrictions) provided in the House Packet or posted at the Property. Violations may incur fines.
6. DISPUTE RESOLUTION
6.1. Arbitration: Any dispute arising from this Agreement shall be resolved by binding arbitration under the Federal Arbitration Act and California Arbitration Act, conducted by the American Arbitration Association (AAA) or Judicial Arbitration and Mediation Services (JAMS) in San Diego County, except for matters within the jurisdiction of probate, small claims, or bankruptcy courts or actions for attachment, receivership, injunctive relief, or other provisional remedies. Both parties waive their right to a jury trial, except for small claims. The Manager shall cover arbitration filing and arbitrator fees, except that the Guest shall pay no more than the equivalent cost of filing in California Superior Court (currently approximately $435, subject to change). Each party bears its own attorney fees unless awarded by law. Arbitration shall be on an individual basis, not as a class action. Guests may opt out of arbitration by providing written notice within 7 days of signing this Agreement, sent via certified mail to Air Concierge Inc., PO BOX 235320 ENCINITAS, CA 92023] or email to adminteam@airconcierge.net.
6.2. Mediation: Before arbitration, parties must attempt mediation, sharing fees equally. Failure to mediate may preclude recovery of attorney fees, except for excluded matters (Section 6.1).
6.3. Governing Law. This Agreement is governed by California law, with venue for non-arbitrated matters in the Superior Court of San Diego County.
6.4. Modifications: The Manager may modify arbitration or mediation terms by posting updates at https://www.airconcierge.net/guest-terms. Continued use of the Property or Management services constitutes acceptance of modified terms. If unacceptable, the Guest’s sole recourse is to terminate the Reservation per the Platform Terms, which may incur fees.
7. Violations And Termination. Violations of this Agreement, including but not limited to smoking, pets, events, or criminal activity, may result in fees (as specified in Section 3.2) or immediate eviction with forfeiture of payments, per the Platform Terms. The Manager will provide documented evidence of violations (e.g., photos, invoices) within 7 days, which Guests may dispute in writing within 14 days. Criminal activity results in immediate termination without refund.
8. MISCELLANEOUS
8.1 Authority to Enter Agreement. You agree that you have the power to enter into this agreement.
8.2 No Set-Off or Counterclaim. You will not be entitled to withhold by way of set-off, deduction, or counterclaim any amounts which you owe to the Host or Manager against any amounts that may be owed to you.
8.3 Assignment and Subcontracting. The Homeowner or Manager will be entitled to assign or sub-contract their obligations under this Agreement.
8.4 No Sublease: The Main Booker and Guest Booking Party shall not sublease, assign, or grant any license to use the Property, or any part thereof, to any person or entity without the Manager’s prior written consent. Any attempt to sublease, assign, or license without such consent is void and constitutes a material breach of this Agreement, entitling the Manager to terminate the reservation, evict the Guest Booking Party, and retain all payments and deposits, per Section 8. Consent to one sublease, assignment, or license does not imply consent to any future instances.
8.5 Force Majeure. Neither the Homeowner or Manager will be liable to you or be deemed to be in breach of these terms by reason of any delay in performing, or any failure to perform, any of their obligations, if the delay or failure was due to any cause beyond their reasonable control such as severe weather, endemic, pandemic, power or other utility cut-off, burglary, natural disaster, strikes, governmental action, terrorism, war and civil unrest or similar occurrences.
8.6 Entire Agreement. This Agreement represents the entire agreement between the parties hereto and supersedes any previous marketing information, representations or agreements of any kind or nature between the parties relating to the subject matter hereof and whether recorded in writing, or otherwise unless such other Agreements provide further, additional, or stricter protections of Manager or Host’s interests, with exception for those terms found at https://www.airconcierge.net/guest-term
8.7 Fairness. The parties agree that these terms are fair and reasonable in all the circumstances. However, if any provision of these terms is held not to be valid by a court of competent jurisdiction but would be valid if part of the wording were deleted, then such provision shall apply with such deletions as may be necessary to make it valid. If any of the provisions in these terms are held not to be valid the remaining provisions of these terms shall remain in full force and effect.
8.8 Severability: If any provision is invalid, the remaining provisions remain enforceable.
8.9 Amendments: The Manager may amend terms by posting updates at https://www.airconcierge.net/guest-terms. Continued use implies acceptance; otherwise, terminate per the Platform Terms, which may incur fees.
8.10 Attorney Fees. In the event either party must engage in any effort, civil proceeding or other activity that arises out of, relates to or is connected with this Agreement, or the rights or obligations of any party hereunder, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs, to include expert fees and costs, incurred or sustained by such prevailing party in connection with those efforts.
8.11 Exclusions and Modifications. Any matter within the jurisdiction of a probate, small claims, or bankruptcy court is excluded from the requirement to mediate and arbitrate. The filing of a court action to enable an order of attachment, receivership, injunctive relief, or other provisional remedy shall not constitute a waiver or violation of the mediation and arbitration provisions. The Manager reserves the right, at its sole discretion, to modify the arbitration, mediation, or related terms by posting an update on https://www.airconcierge.net/guest-terms. By continuing to access the Manager’s website, utilize the Management service, or maintain your Reservation without notifying the Manager of termination, you agree to the modified terms. If the modified terms are unacceptable, your sole recourse is to terminate your participation with the Manager and your Reservation, which may incur a fee.
8.12. Exclusion and Limitation of Liability. In no event will Manager be liable for any special, incidental, punitive, exemplary, or consequential damages of any kind in connection with this Agreement, even if Manager has been informed in advance of the possibility of such damages. In no event will the Manager’s aggregate liability to you in connection with this Agreement exceed the aggregate amount of the fee Air Concierge earned for your Reservation.
8.13. Termination. The rights and obligations of the parties under these Terms will survive the expiration or termination of this Agreement.
9. Dispute Resolution.
9.1 Jurisdiction. Any disputes between you and Manager shall be venued in San Diego County, California, and according to California State Law.
9.2. Mediation. You and AIR CONCIERGE agree to mediate any dispute or claim arising between them out of this Agreement before resorting to arbitration or court action. Mediation fees shall be divided equally among the parties involved. If, for any dispute or claim to which this paragraph applies, any party (i) commences an action without first attempting to resolve the matter through mediation, or (ii) before commencement of an action, refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in such action. Exclusions from this mediation agreement are set forth in paragraph v, below.
9.3 Contact: Air Concierge Inc., (858) 771-6910, guest_support@airconcierge.net (mailto:_support@airconcierge.net).
9.4 Conflicts. In the event of any conflict or inconsistency among the terms of this Agreement, the Listing on a Booking Platform, the Booking Platform’s own terms and conditions (as confirmed in the reservation details), the guest terms at https://www.airconcierge.net/guest-terms, or the House Packet, the following shall apply:
(a) Agreement Priority: The terms of this Agreement shall control for property-specific rules, obligations, and disclosures (e.g., rental rules, liability, arbitration), except as provided below.
(b) Platform Terms: The Booking Platform’s terms shall control for booking-specific details, including rental rate, occupancy period, maximum occupancy, payment terms, and cancellation policies, as specified in the reservation details, unless such terms conflict with applicable law or are modified in writing by the Manager.
(c) Guest Terms and House Packet: The guest terms at https://www.airconcierge.net/guest-terms and the House Packet shall control only to the extent they provide stricter protections for the Manager or Property Owner (e.g., additional property rules) or are mandated by applicable law (e.g., local ordinances). Otherwise, they are subordinate to this Agreement and the Platform Terms.
(d) Resolution: If a conflict cannot be resolved by the above, the Manager reserves the right to determine the controlling terms, provided such determination is reasonable, complies with applicable law, and is communicated in writing to the Guest. The Guest agrees to abide by the Manager’s determination, subject to dispute resolution under Section 6.
10. DISCLAIMER. This Agreement governs a short-term rental (less than 30 days), classified as a transient occupancy under California Civil Code § 1940(b). As such, certain state and local laws applicable to long-term rentals (30 days or more), including but not limited to just cause eviction (Civil Code § 1946.2), rent increase notices (Civil Code § 827), subletting rights (Civil Code § 1946), move-in/move-out inspections (Civil Code § 1950.5(f)), late fee restrictions (Civil Code § 1671), and rent control ordinances, do not apply. Security deposit procedures and limits (Civil Code § 1950.5) are governed by the Booking Platform’s terms, as specified in Section 2.2. All required disclosures for short-term rentals, including but not limited to lead-based paint (42 U.S.C. § 4852d), transient occupancy tax, and pool safety (Health and Safety Code § 115922), are provided in this Agreement, the Platform Terms, or the House Packet. Guests acknowledge that this Agreement and the Platform Terms define their rights and obligations, and no additional long-term tenant protections apply.
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SIGNATURE SECTION TO FOLLOW
By signing the Short-Term Rental Agreement, the Main Booker agrees to these terms on behalf of themselves and the entire Guest Booking Party, as defined in Section 2, binding all members to the rules, obligations, and indemnity provisions of this Addendum if the Property includes a pool or spa. The Main Booker represents that they have the authority to bind the Guest Booking Party and acknowledges that all members are responsible for complying with these terms.
Main Booker Name (Print): ____________________
Main Booker Signature:______________________
Date: __________________________
Manager Name: Air Concierge Inc.
Manager Signature & Position: __________________________
Date: __________________________
ATTACHMENT A: POOL AND SPA ADDENDUM
(Applicable only if the Property has a pool or spa)
This Pool and Spa Addendum is incorporated into the Short-Term Rental Agreement between Air Concierge Inc. (“Manager”) and the Guest for the Property specified in the Booking Platform reservation details.
1. Acknowledgment of Risk
The Guest acknowledges that using the swimming pool and/or spa/hot tub (“Pool”) carries inherent risks, including personal injury, drowning, or property damage. The Guest assumes full responsibility for their safety and that of their occupants, guests, and invitees.
2. Pool Use Rules. To ensure safety, the Guest agrees to:
Supervise children under 14 at all times.
Prohibit running, diving, horseplay, or unsafe behavior.
Use only plastic glassware in or around the Pool area.
Avoid alcohol consumption before or during Pool use to reduce drowning risks.
Shower before entering the Pool; persons with open wounds or communicable diseases are prohibited.
Keep pets out of the Pool area, except for registered service animals.
Not tamper with Pool covers, heaters, or equipment without Manager permission.
3. Safety and Compliance. The Property Owner warrants that the Pool complies with applicable and relevcant Health and Safety Codes. The Manager will ensure reported issues are communicated to the Property Owner for prompt resolution. Guests must notify the Manager immediately of safety concerns or equipment malfunctions at (858) 771-6910 or guest_support@airconcierge.net.
4. Maintenance. The Property Owner, through the Manager, will maintain the Pool, including cleaning, chemical treatment, and repairs. Guests must report issues immediately and not attempt to drain, refill, or alter the Pool.
5. Liability and Indemnity. The Guest uses the Pool at their own risk and waives claims against the Manager and Property Owner for injuries, accidents, or property damage, except those caused by the Property Owner’s or Manager’s gross negligence or willful misconduct. The Guest shall indemnify the Manager and Property Owner against claims arising from Pool use by the Guest or their guests, except as limited by applicable law.
6. Compliance with Laws. Guest agrees to comply with all local, state, and federal laws regarding Pool use and safety.
7. Termination of Privileges. The Manager may terminate Pool privileges for violations of this Addendum, with potential fees or eviction per Section 7 of the Agreement.
Acknowledgment
By signing the Pool Addendum, the Main Booker agrees to these terms on behalf of themselves and the entire Guest Booking Party, as defined in Definitions binding all members to the rules, obligations, and indemnity provisions of this Addendum if the Property includes a pool or spa. The Main Booker represents that they have the authority to bind the Guest Booking Party and acknowledges that all members are responsible for complying with these terms.
Main Booker Name (Print): ____________________
Main Booker Signature:______________________
Date: __________________________
APPENDIX 6: Understanding Booking & Other Platform (OTA) Fees
is provided separately as a non-binding informational resource to educate the client on third-party platform fees that are beyond the Manager's control and subject to change, without incorporating them as enforceable contractual obligations in the main agreement.
Appendix 7: Disclosures & Acknowledgements of Owner
You understand that some times of the year, your Property will receive little to no booking activity.
You understand that some reservations may be as few as (2) nights.
You understand that some reservations may be more than (30) nights unless directed by you in a subsequent notification via email to customercare@airconcierge.net, thus qualifying any non-departing guest a tenant and requiring traditional landlord tenant treatment to have the guest removed, including an unlawful detainer action that shall be the sole responsibility of yourself to facilitate the guest’s removal, financially and otherwise. This shall include but is not limited to all costs including lawyer/legal, court filing, service and process. You agree that Air Concierge bears no responsibilities or liabilities associated with such an action including but not limited to related costs, lost rents, costs of damage, wear and tear, utilities as well as unforeseen costs.
You understand that prior to your first booking, Air Concierge may elect to have your property professionally cleaned and then a follow up cleaning after the initial guest’s departure.
You understand that if [you] reserve your own home that [you] may be responsible for having it professionally cleaned after your own use prior to any Air Concierge Guest Bookings.
You understand that prices may fluctuate for a booking based on time of year, length of stay, number of persons, as well as other factors that Air Concierge may elect to rely on.
You understand that there is wear and tear on the real property and personal property of the home and that Air Concierge will take all precautions to prevent and identify the responsible guest for such wear and tear, but at no time shall Air Concierge be liable for any such wear and tear.
You further understand that you may discover such use and abuse and will need to replace household items as well as make repairs accordingly and that Air Concierge shall not be responsible in such instances.
You understand that by not providing certain amenities in your property, you may not receive an optimal number of views, inquiries and thus bookings, including but not limited to
Air Conditioning (central or portable)
Heating (central or portable)
Wifi
Coffee maker
Washer & dryer
Dishwasher
Garbage disposal
Towels & linens (new or in very good condition)
Outdoor furnishings
BBQ
In the event you opt to set certain pricing and availability parameters for the Property, you understand that your property may not receive an optimal number of views, inquiries and thus bookings, including but not limited to setting the:
Minimum and maximum number of nights per reservation
Distant / time in the future property can be booked
Minimum and maximum nightly rate
Number of guests on site
Pets allowed on site
Age limits of guests
You understand and authorize Air Concierge to use its professional judgement and expertise in setting the base price and minimum price for my home. You understand that these prices may fluctuate daily based on seasonality, special events, day of the week, length of stay and other factors known to only Air Concierge and subjective to them.
APPENDIX 8: AIR CONCIERGE INC CLIENT ARBITRATION AGREEMENT
THIS ARBITRATION AGREEMENT (Agreement) is made by and between AIR CONCIERGE INC (“Company”) and (“Client”).
The purpose of this Agreement is to establish final and binding arbitration for all disputes arising out of Client's relationship with Company. Client and Company desire to arbitrate their disputes on the terms and conditions set forth below to gain the benefits of a speedy, impartial dispute-resolution procedure. Client and Company agree to the following:
1. Claims Covered by the Agreement.
Client and Company mutually consent to the resolution by final and binding arbitration of all claims or controversies (claims) that Company may have against Client or that Client may have against Company or against its officers, directors, partners, Clients, agents, pension or benefit plans, administrators, or fiduciaries, or any subsidiary or affiliated company or corporation (collectively referred to as Company), relating to, resulting from, or in any way arising out of Client's relationship with Company, Client's relationship with Company and/or the termination of Client's relationship with Company, to the extent permitted by law. The claims covered by this Agreement include, but are not limited to, claims covered, such as breach of any contract or covenant (express or implied); tort claims; and claims for violation of any public policy, federal, state or other governmental law, statute, regulation or ordinance.
2. Required Notice of Claims and Statute of Limitations.
Client may initiate arbitration by serving or mailing a written notice to the Company at Company's registered agent place of business located at 2108 N STREET, STE N SACRAMENTO CA, 95816. Company may initiate arbitration by serving or mailing a written notice to Client at the last address recorded in the Agreement. The written notice must specify the claims asserted against the other party. Notice of any claim sought to be arbitrated must be served within the limitations period established by applicable federal or state law.
3. Arbitration Procedures.
(a) After demand for arbitration has been made by serving written notice under the terms of Section 2. of this Agreement, the party demanding arbitration shall file a demand for arbitration with the American Arbitration Association (AAA) in .
(b) A neutral arbitrator shall be selected from the AAA panel and the arbitration shall be conducted pursuant to AAA policies and procedures. Except as provided herein, all rules governing the arbitration shall be the then applicable rules set forth by the AAA. The dispute shall be governed by the AAA's then current version of the national rules for the resolution of disputes. The AAA's then applicable rules governing the arbitration may be obtained from the AAA's website, which currently is www.adr.org.
(c) The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of the state in which the claim arose, or federal law, or both, as applicable to the claim(s) asserted. The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable.
(d) Either party may file a motion for summary judgment with the arbitrator. The arbitrator is entitled to resolve some or all of the asserted claims through such a motion. The standards to be applied by the arbitrator in ruling on a motion for summary judgment shall be the applicable laws as specified in Section (c) of this Agreement.
(e) Discovery shall be allowed and conducted pursuant to the then applicable arbitration rules of the AAA, provided that the parties shall be entitled to discovery sufficient to adequately arbitrate their claims and defenses. The arbitrator is authorized to rule on discovery motions brought under the applicable discovery rules.
(f) Class and collective action waiver. The parties agree not to bring any disputes between each other on a collective or class basis; rather, the parties agree to bring such disputes in arbitration on an individual basis only. An arbitrator may not resolve any disputes concerning the enforceability or validity of this class and collective action waiver; only a court with proper jurisdiction may resolve such a dispute. If this class action waiver is held to be illegal for any reason, the parties agree that a court, and not an arbitrator, will hear any class or collective action.
4. Application for Emergency Injunctive and/or Other Equitable Relief.
Claims by Company or Client for emergency injunctive and/or other equitable relief shall be subject to the then current version of the AAA's Rules Governing Emergency Measures of Protection set forth within the AAA's Commercial Dispute Resolution Procedures. The AAA shall appoint a single emergency arbitrator to handle the claim(s) for emergency relief. The emergency arbitrator selected by the AAA shall be either a retired judge, or an individual experienced in handling matters involving claims for emergency injunctive and/or other equitable relief. The emergency arbitrator shall immediately disclose any circumstance likely, on the basis of the facts disclosed on the application, to affect such arbitrator's impartiality or independence. Any challenge to the appointment of the emergency arbitrator must be made within one business day of the communication by the AAA to the parties of the appointment of the emergency arbitrator and the circumstances disclosed.
5. Arbitration Decision.
The arbitrator's decision will be final and binding. The arbitrator shall issue a written arbitration decision revealing the essential findings and conclusions upon which the decision and/or award is based. A party's right to appeal the decision is limited to grounds provided under applicable federal or state law.
6. Arbitration Hearing.
The arbitration will be at a mutually convenient location that must be within [20] miles of Company’s headquarter location (currently, Encinitas, CA, 92023). If the parties cannot agree upon a location, then the arbitration will be held at the AAA's office nearest to Company’s location. The arbitrator shall appoint a time and place for the hearing and cause notice thereof to be served personally or by registered or certified mail on the parties to the arbitration and not less than 30 days before the hearing. Appearance at the hearing waives the right to notice.
7. Construction.
Should any portion of this Agreement be found to be unenforceable, such portion will be severed from this Agreement, and the remaining portions shall continue to be enforceable.
8. Representation, Fees, and Costs.
Each party may be represented by an attorney or other representative selected by the party. Each party shall be responsible for its own attorney's or representative's fees. However, if any party prevails on a statutory claim that affords the prevailing party's attorney's fees, or if there is a written agreement providing for fees, the arbitrator may award reasonable fees to the prevailing party.
(a) In the event that a party fails to pursue mediation or arbitration, fails to comply with the arbitrator's decision and award, or challenges the arbitrator's decision without merit, the party shall be responsible for cost of suit, including reasonable attorney's fees.
(b) Company shall be responsible for the arbitrator's fees and costs to the extent they exceed any fee or cost that Client would be required to bear if the action were brought in court.
9. Sole and Entire Agreement. This Agreement expresses the entire Agreement of the parties and shall supersede any and all other agreements, oral or written, concerning arbitration. This Agreement is not, and shall not be construed to create, any contract of employment, express or implied.
10. Requirements for Modification or Revocation. This Agreement to arbitrate shall survive the termination of Client's relationship. It can only be revoked or modified by a writing signed by the CEO of Company and Client that specifically states an intent to revoke or modify this Agreement.
11. Voluntary Agreement.
CLIENT ACKNOWLEDGES THAT CLIENT HAS CAREFULLY READ THIS AGREEMENT, UNDERSTANDS ITS TERMS, AND AGREES THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN COMPANY AND CLIENT RELATING TO THE SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT. CLIENT HAS KNOWINGLY AND VOLUNTARILY ENTERED INTO THE AGREEMENT WITHOUT RELIANCE ON ANY PROVISIONS OR REPRESENTATIONS BY COMPANY, OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
CLIENT FURTHER ACKNOWLEDGES THAT CLIENT HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH CLIENT'S PRIVATE LEGAL COUNSEL AND CLIENT HAS UTILIZED THAT OPPORTUNITY TO THE EXTENT DESIRED.