Terms and Conditions
LAST MODIFIED: JULY 26, 2019
LAST MODIFIED: DECEMBER 26, 2018
LAST MODIFIED: JULY 20, 2018
PREVIOUSLY MODIFIED: JULY 10, 2018
PREVIOUSLY MODIFIED: JUNE 6, 2018
PREVIOUSLY MODIFIED: AUGUST 18, 2016
PREVIOUSLY MODIFIED: JULY 9, 2016
PREVIOUSLY MODIFIED: MARCH 31, 2016
The terms and conditions stated herein (collectively, this "Agreement") constitute a legal agreement between you and Air Concierge, Inc. (dba Air Concierge), a California corporation or the appropriate entity (the "Company"). By using or receiving any services supplied to you by the Company (together with the website located at https://www.airconcierge.net, www.airconciergevacationhomes.com and other similarly titled sites owned and controlled by the Company), and downloading, installing or using any associated software supplied by the Company which purpose is to enable you to use the Service (collectively, the "Software"), you hereby expressly acknowledge and agree to be bound by the terms and conditions of this Agreement, and any future amendments and additions to this Agreement as published from time to time at https://www.airconcierge.com/terms-of-use or through the Service.
Your use of the Service after such posting will constitute your acceptance of and agreement to such changes.
This Agreement is subject to change at any time, effective upon posting on the Service.
Air Concierge, Inc., (hereinafter referred to as "Air Concierge", "Airconcierge.net", www.airconciergevacationhomes.com (or any other similarly titled website), "AirConcierge", "AIRCONCIERGE") and including divisions of the company Air Concierge International ("International") and [July 26, 2019 removed Scrubbsi.com ("scrubbsi")] shall be included in all description of any Air Concierge Inc. Service Professional. Air Concierge Inc. through its online platforms www.airconcierge.net, www.airconciergevacationhomes.com, www.airconciergevacationhome.com, www.scrubbsi.com, www.airconciergeinternational.net Connect Service Professionals and Service Requesters. [Updated June 15, 2019 to include www.manageairconcierge.net]
Air Concierge provides value-added services (herein referred to as "Full Term Management", "End to End Management" or "Reservation Management") to Hosts and Guests who have arranged the use of residential and other property principally through third party booking agents and hosting platforms.These Terms of Service (these “Terms”) constitute an agreement between Air Concierge and the users (each a “User”) of Air Concierge's website, mobile applications and services (collectively, the “Site” and the “Services”). Air Concierge is sometimes referred to herein as "Air Concierge", “we,” “us,” or “our” and the User is sometimes referred to as “you,” “your,” “host,” or “guest.”
Certain areas of the Site and Services (and your access to or use of certain Content (as defined below)) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Services or Content, either the latter in terms and conditions shall apply or terms most in favor of Air Concierge will take precedence with respect to your use of or access to that area of the Site, Services or Content.
If you accept these Terms, you represent that you have the capacity to be bound by them. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
For the Air Concierge Reservation Management Customers and Clients:
“Accommodation” means a residential or other property that is rented from a Host by a Guest.
“Authorized Tenant” means a non-owner Host that has the authority to rent an Accommodation.
“Guest” means a Member of a Third Party Platform who uses the Air Concierge Services in connection with its rental of an Accommodation from a Host principally through a Third Party Platform.
“Host” means a Member who is an 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.
“Member” means a person who completes the account registration process, including without limitation Hosts and Guests, as described under “Registration” below.
"Owner Host" 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 the Air Concierge profile.
"Property" means each and every separate property you identify and enlist the Air Concierge Service to cover, whether by naming in the KYC, purchasing a product 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.
“Third Party Platform” (or "Listing") means a third party booking agent or hosting platform that connects Hosts who have Accommodations to rent with Guests seeking to rent Accommodations.
How the Site and Services Work
AIR CONCIERGE provides value-added Services to Hosts and Guests who have arranged the use of Accommodations principally through Third Party Platforms.
Hosts: AIR CONCIERGE provides Services to Owner-Hosts that register on the Site through the purchase of a Service including but not limited to an Initial Cleaning and/or Household Supplies. AIR CONCIERGE assists Owner-Hosts with preparing and properly marketing their Accommodations, including suggesting an optimal price for the listing of an Accommodation. AIR CONCIERGE helps Owner-Hosts by interacting with potential guests to answer questions and arrange a stay. AIR CONCIERGE may also arrange professional third party vendors to provide Guest management services before, during and after the Guests stay, including scheduling professional cleanings and handling unexpected events such as lockouts. AIR CONCIERGE may also in the future provide a centralized dashboard on the Site to Owner-Hosts to set preferences, listing terms and to monitor and manage their listings. AIR CONCIERGE also may assist Owner-Hosts with marketing their listings by publishing listings on multiple Third Party Platforms. In addition to these Terms, Owner-Hosts are subject to the Air Concierge Vacation Rental & Short Term Agreement below, which is incorporated into these Terms.
Guests: AIR CONCIERGE may provide Services to Guests that have responded to a Owner-Hosts or Air Concierge's posting on a Third Party Platform. AIR CONCIERGE or its third party vendors may assist Guests or potential Guests with questions regarding a listing or booking for a Guest's Accommodation, communicate with Guests regarding arrival and departure and provide 24-hour Guest support. AIR CONCIERGE may also offer and arrange value-added services for Guests, such as concierge and ticketing services, from AIR CONCIERGE or third party providers. In addition to these Terms, Guests are subject to the Guest Rules and Guest Services Agreement, which are incorporated into these Terms.
AIR CONCIERGE solely provides services to Owner-Hosts and Guests to facilitate a booking transaction between Owner-Hosts and Guest. Unless explicitly stated otherwise herein, AIR CONCIERGE's responsibilities are limited to (1) assisting Owner-Hosts with optimizing the listing and booking of Accommodations and (2) providing Guest support services.
In accordance with these Terms, you understand and agree that (1) AIR CONCIERGE is not a real estate broker, agent, insurer, or booking agent, nor is it an owner of Accommodations, transportation, travel services or other services provided by third parties through the Site or Service; (2) AIR CONCIERGE is not a party to any agreement between a Third Party Platform and a Owner-Hosts or Guest or any agreement between a Owner-Hosts and a Guest; (3) AIR CONCIERGE does not and cannot control the content contained in any listing or the condition, legality or suitability of any Accommodations, and instead provides to each Owner-Host the listing in which the Owner-Host may amend, edit, alter or outright cancel and by not taking such action has controlled the content; (4) AIR CONCIERGE is not responsible for the compliance with any laws by you or any Third Party Platform; (5) AIR CONCIERGE has no control over the conduct of Tenant Hosts, Guests and other uses of the Services or any Accommodations; and (6) as set forth in the Section entitled “Liability Limitations”, AIR CONCIERGE is not responsible for and disclaims any and all liability related to any and all listings and Accommodations to the maximum extent permitted by law. Bookings will be made at the Owner-Host's and Guest's own risk.
The Air Concierge Vacation Rental & Short Term Agreement, House Rules, and Guest Services Agreement may be updated from time to time at our discretion and changes will be effective upon posting them. A copy of the Air Concierge Vacation Rental & Short Term Agreement, Guest Rules and Guest Services Agreement can be found below.
Air Concierge Vacation Rental & Short Term Agreement as Between Owners / Hosts & Air Concierge
This Agreement is effective from the first date you use the Site and/or sign up for the Air Concierge Services.
This Agreement is made by and between you (hereinafter “Owner” or “Host”) with residence for short term and vacation rental (the “Property”, “Properties”, “Listing”) as listed on behalf of you by Air Concierge, Inc. ("Air Concierge").
Air Concierge, and its employs, assigns, delegates, vendors and contractors (together the “Concierge Team”) are experienced in the operation and knowledge of online short term and vacation home rental listings and are otherwise completely able to competently assist a Host or Owner in such online short term and vacation rental home listings, and are willing to assist Host or Owner in the undertaking of the marketing and operation of such a listing(s) for the Host/Owner under the terms set out in this Agreement:
1. DESCRIPTION OF THE PROPERTY. This Agreement is made with respect to the Property you have identified 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 Host’s or Owner's exclusive agent. Air Concierge will provide to Owner the following services (collectively, the "Air Concierge Service") as outlined in Appending 1.
2.1 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, the listed expenses as outlined in Appendix 2. Such Income and Expenses shall be delivered to Owner by Manager on a monthly basis.
2.1.1 Hourly Work. 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 $35/hr for such work performed. For work involving construction, or reconstruction or lasting more than 4 hrs., Manager shall receive an hourly fee of $50/hr for each hour thereafter.
Manager may bill Owner directly or Manager may deduct from Total Payout to Owner. Manager may but is not required [changed from "shall"] to inform Owner of projected time to facilitate such Hourly Work. Hourly work may [changed from "shall"] be billed in 30 minute increments with a 2 hr. minimum for all Hourly Work.
2.2 RESPONSIBILITIES OF OWNER
Owner will provide to Air Concierge the following services (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 that at no time will there be any recording devices inside the Property.
Owner Bookings. In the event Owner wishes to book, reserve or otherwise block off dates for the Property, for himself or another Guest (“Owner’s Guest”), the following protocol shall be followed as outlined in Appendix 4 “OWNER BOOKING NOTIFICATIONS”:
Reservation Cancellation. 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 larger amount of the total reservation(s) cost being cancelled or $2,500US per each canceled reservation. This fee shall compensate Air Concierge for the negative impact a cancellation has on its online ranking, for all efforts taken in booking the reservation, for all efforts undertaken to prepare the home and the Guest prior to the cancellation, for all efforts taken in notifying and preparing the Guest after the cancellation, and to compensate Air Concierge for its time and resources in unwinding and rectifying any damage to its online and offline reputation for creating a cancelled reservation. A cancellation shall be defined as any Reservation that does not take place at the Property contracted between the Parties. 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 termination of Manager shall allow Manager to withhold and/or deduct the greater of $2,500 (per occurrence) or total reservation(s) cost, from an Owner 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.
Extenuating Circumstances. In the rare 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% or a flat fee of $150, of it's original management fee 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.
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, PERMIT, REGULATORY APPLICATION OR OTHER REGISTRATION REQUIREMENTS.
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.
IT SHALL BE THE SOLE RESPONSIBILITY OF OWNER AND NOT MANAGER OR ITS EMPLOYS, ASSIGNS OR DESIGNEES, TO ENSURE THE PROPERTY IS PROPERLY AUTHORIZED BY WAY OF REGISTRATION, PERMIT OR OTHER FORMAL AUTHORIZATION TO OPERATE AS A BUSINESS OR HOTEL. WHERE REQUIRED, OWNER SHALL DISPLAY THE APPLICABLE CERTIFICATE IN THE PROPERTY.
IT SHALL BE THE RESPONSIBILITY OF MANAGER TO REQUEST AND COLLECT THE 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.
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 TO LIABILITY OR FAULT. IN SOME JURISDICTIONS FINES AS MUCH AS $2500 / DAY FOR VIOLATION OF LOCAL TOT LAWS MAY 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, 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 TO LIABILITY OR FAULT.
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, include but are not limited to fees charged to a Guest for early access or late checkout to the Property (“Convenience Fee”), the right to bring a pet and receive additional cleaning following a pet stay (“Pet Deposit” and “Pet Fee”), a fee for listing the Property on a booking Platform, including site under its own control (“Site Listing Fee”), a fee for the processing of credit cards (“Credit Card Fee”), a fee for the purchase of insurance and/or security deposit, a Resort fee, a Transient Occupancy Tax charged to a traveler that is not sent by Manager to the City unless Owner has registered his Property with the City/Municipality and has engaged Air Concierge to remit such Tax on Owner’s behalf, (together the “Booking Fees”). 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 $300 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, Manager may exceed the stated amount [updated from $100 on August 6, 2106].
3.a [STRICKEN JUNE 23, 2018.] Management Fee Updated August 2, 2016. For Unless otherwise agreed to by the Parties (such Agreement to be attached below in the form of an exhibit), the Manager shall be entitled to the greater of a flat fee of $150, or 20% of the Gross Income not including any refundable fees from each Reservation made at the Property for payment of Manager’s services under this contract. 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 reflecting all income and expenses incurred for buying supplies for Guests or the Property. Costs for Guest supplies may not exceed $300 per/month.
3.1 Monthly Payments. Owner shall receive from Manager by the seventh day of each month a payment for the Reservations of the prior month. [REMOVED: Payment will consist of Reservation payments plus the Monthly Statement along with any associated Hourly Work costs that were agreed upon between Manager and Owner. JUNE 23, 2018]
3.1.1 [Updated July 9, 2016]. Prior and Following Month Reservations. In the event that a Reservation begins on or after the 27th 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.
3.1.2 [Updated July 9, 2016]. Long term reservations. In the event a Reservation is beyond 30 days in length, then Air Concierge shall reserve the right to partition payment to Host in such a manner that is fair and commensurate and under the entire determination of Air Concierge. Owner further agrees that any Long Term reservations shall limit Air Concierge to only perform functions not defined as traditional property management. Therefore Air Concierge may only provide limited functions including an exit cleaning following a guest stay and guest communications, and will not perform any of the below listed services:
1. establish the rental schedule that will bring the highest yield consistent with good economics.
2. merchandise the space and collect the rent.
3. create and supervise maintenance schedules and repairs.
4. if applicable, insure independent contractor license status and insurance coverage.
5. set up payroll system for all employees.
6. develop a tenant/resident relations policy.
7. supervise employees and develop employee policies, including an Injury Prevention Plan.
8. maintain proper records and make regular reports to the owner.
9. qualify and investigate a prospective tenant’s credit.
10. prepare and execute leases.
11. obtain decorating specifications and secure estimates.
12. hire, instruct, and maintain satisfactory personnel to staff the building(s).
13. audit and pay bills.
14. advertise and publicize vacancies through selected media and broker lists.
15. recommend alterations and modernization as the market dictates.
16. inspect vacant space frequently.
17. keep abreast of the times and competitive market conditions.
18. obtain and pay insurance premiums and taxes.
19. be knowledgeable about and comply with applicable Federal, State and local laws.
3.1.3 [Updated July 20, 2018.] Cancelled Reservations. When a Reservation is cancelled 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 cancelled 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 a booking.
3.1.3.a. In the event a Monthly Payment has been made to Owner and a Reservation later cancelled that was included in that Payment, and said Cancelled 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. In the event a Cancelled 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 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. In the event a Cancellation Reservation results in another booking occupying some of or all of the same dates as the Cancelled Reservation, then Air Concierge reserves the right to refund some or all of the Guest Payout from the Cancelled Reservation and/or may hold back those same funds as outlined in 3.1.3b
3.1.3 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. [Updated August 6, 2016]
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.
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.
5. Warranty & Exclusivity.
5.1 Manager shall 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.
[Updated June 6, 2018]
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 90 days [REMOVED "or 180 days, whichever is selected at time of onboarding, of the start of this Agreement)"], 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. TERM. 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 This Agreement may be terminated by Host or Owner at any time after a 90 day probationary period (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 shall be managed by Manager. Manager shall remove the Online Listing and take no further Reservations. Shall Host or Owner elect to cause those Reservations to be cancelled, then Reservation Cancellation shall apply to each and every affected Reservation.
6.1.1 This Agreement may be terminated by Manager at any time with or without cause provided any in-progress Reservations are not cancelled, otherwise negatively affected, or disturbed, unless as described in
6.1.1a Manager shall have the right to terminate this Agreement, and any in progress Reservations may be cancelled, 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.
6.1.1b 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.
6.1.1c. 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.
6.1.2 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”), then shall this Agreement be terminated prior to a one-year term, Manager shall be reimbursed its full cost of the Subscription Amount. Additional early-termination fees may apply.
[Updated June 6, 2018]
6.2 Reservation Acceptance Time Frame. After the 90 day [REMOVED "or 180 day, whichever is selected at time of onboarding or 180 day probationary period"], 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 communications between Owner or Manager.
6.3 Early Termination. Shall Owner elect to terminate Manager within the first 90 days, from the Effective Date, for reasons other than gross negligence or wanton, willful regards 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 cancelled 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.
6.4 For the purposes of this section the parties agree that the Property could have been rented on an average of 21 days per month for the remainder of the 90 days [[REMOVED "or 180 days, whichever is selected at time of onboarding or 180 days"] but for owner’s early termination.
6.5 Any violation causing payment of the Early Termination fees shall be payable immediately within 72 hrs. of the breach or early termination notification.
6.6 The rights and obligations of the parties under these Terms will survive the expiration or termination of this Agreement.
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
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.
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.
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. Booking Sites. Air Concierge shall not be responsible for the privacy policies and practices of other Online Listing Sites 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 Online Listing Sites such as but not limited to airbnb.com, vrbo.com, homeaway.com, craigslist.com, flipkey.com [added July 10, 2018 to include booking.com, airconcierge.net] 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, city or association violation or infraction, misdemeanor or felonious, or otherwise cause hardship to you or your 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 up front Subscription Fee for VRBO.com and Homeaway.com bundle (the "Subscription Plan"). Manager at his election may opt for the [Insert July 2018: Annual Subscription of $499] [Removed July 2018: Gold Plan ($899) or Platinum Plan (1299$)]. 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. [Stricken July 10, 2018] A copy of which can be found below and which may be updated from time to time.
12. Indemnification. 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 Owner or a Guest hereunder having been untrue or incorrect in any material respect when made, (ii) any breach by Owner or a Guest of any of its obligations hereunder or (iii) any unlawful act or omission of Owner or a Guest in performing this Agreement; provided that Owner shall not be liable to the extent any liability results from Air Concierge’s fraud, or willful misconduct.
12.1 Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE THAT USE OF THE AIR CONCIERGE SERVICE IS AT YOUR SOLE RISK. NEITHER WE NOR OUR AFFILIATED COMPANIES NOR ANY OF OUR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS (COLLECTIVELY THE “AIR CONCIERGE PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; 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 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 UNDER TERMS OF SERVICES AND/OR PAYMENT TERMS FOR ANY SITUATION INVOLVING A RESERVATION ORIGINATED ON AIRBNB.COM IN SUCH A MANNER THAT AIR CONCIERGE MAY INVOKE THE SAME PROTECTIONS AND DEFINITIONS AS UTILIZED BY AIRBNB.
12.2 Liability Limitations
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE AIR CONCIERGE SITE AND AIR CONCIERGE SERVICES REMAINS WITH YOU. WE AND THE AIR CONCIERGE PARTIES ARE NOT LIABLE FOR THE REAL PROPERTY OR PERSONAL PROPERTY DAMAGE, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS, GUESTS, VISITORS OF GUESTS, OR THIRD-PARTIES, INCLUDING WITHOUT LIMITATION THIRD PARTY PLATFORMS, AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
IN NO EVENT WILL WE, THE AIR CONCIERGE PARTIES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SITE OR AIR CONCIERGE SERVICES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITE OR AIR CONCIERGE SERVICES. YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON THE SITE, ELSEWHERE OR AIR CONCIERGE, INC .
IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER WE NOR THE AIR CONCIERGE PARTIES SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN THE AIR CONCIERGE SITE, OR ANY ONLINE LISTING SITE INCLUDING BUT NOT LIMITED TO AIRBNB.COM, VRBO.COM, HOMEAWAY.COM, FLIPKEY.COM, AIRCONCIERGEVACATIONHOMES.COM, INCLUDING, WITHOUT LIMITATION, PRICING OR AVAILABILITY INFORMATION, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO YOU, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY.
NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES AND THE AGGREGATE, TOTAL LIABILITY OF WE AND THE AIR CONCIERGE PARTIES TO YOU OR ANY HOST, OR OWNER FOR ALL DAMAGES, INJURY, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING FROM OR RELATING TO THESE TERMS OR THE USE OF OR INABILITY TO USE THE SITE OR AIR CONCIERGE SERVICE SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITY OR WARRANTIES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. YOU SHOULD CHECK YOUR LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THE EXCLUSION OF IMPLIED WARRANTIES.
12.3. 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.
12.4 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 and in line with its Zero Tolerance Policy found here. 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. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person, by electronic mail (“email”) to firstname.lastname@example.org, 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.
13.1 Notification. 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 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. 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.
This Agreement may be modified or amended in writing, at any time by Air Concierge and such modification or amendment shall be limited to this page and notice shall be given at time of modification or amendment. Owner and Host shall have the right to review and agree to the modification before acceptance.
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.
17. 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.
18. Governing Law.
This Agreement shall be construed in accordance with the laws of the State of California.
19. 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. 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. Owner and manager agree that any dispute or claim in Law or equity arising between them out of this Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration. The arbitrator shall be a retired judge or justice, or an attorney with at least 10 years of business law experience, unless the parties mutually agree to select a different arbitrator. The parties shall have the right to discovery in accordance with Title 9 of Part 3 of the California Code of Civil Procedure. Judgment upon the award of the arbitrator may be entered into any court having jurisdiction. Enforcement of this agreement to arbitrate shall be governed by the Federal Arbitration Act. Exclusions from this arbitration agreement are set forth in paragraph v, below.
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.
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.
21. Termination. The rights and obligations of the parties under these Terms will survive the expiration or termination of this Agreement.
22. Exclusion and Limitation of Liability. In no event will Air Concierge be liable for any special, incidental, punitive, exemplary or consequential damages of any kind in connection with this Agreement, even if Air Concierge has been informed in advance of the possibility of such damages. In no event will the Air Concierge’s aggregate liability to you in connection with this Agreement exceed the aggregate amount of the payments made by Air Concierge to you in accordance with this Agreement.
23. Exclusion. Air Concierge reserves the right, at its sole discretion, to modify the above at any time by posting an update on this page. By continuing to access the Air Concierge website, utilize the Air Concierge service, continue to allow Air Concierge to actively list and/or solicit your Property for rent, or otherwise operate without notification of termination of its services, you agree that the Terms are acceptable to you and binding on you. If the modified Terms are not acceptable to you, your only recourse is to cease using the Air Concierge and to terminate your participation with Air Concierge.
APPENDIX 1 “RESPONSIBILITIES OF AIR CONCIERGE”
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”). [Added July 10, 2018. This also includes the ability for Air Concierge to set Instant Book on any/all listings sites in which the Property is listed.]
Photography. Shall Owner and Company agree that Company will arrange, purchase, or otherwise oversee the professional photography for Owner’s Property (the “Photography”), then Company shall be deemed the Owner of such photography, shall determine if and when such Photography shall be released to Owner 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. The above shall include instances in which an Owner onboards and pays to Company an onboarding fee and in instances when Owner pays no such fee. 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.
[Added July 10, 2018] No Declined Bookings. The ability to accept or decline bookings shall rest exclusively with Air Concierge.
Listing Optimization. Optimize 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. 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 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.
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.
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 then 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, 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. 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 Concierge Team 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 was not feasible.
Welcome Package. At its election, Management 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 $25 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 possible 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 approved 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).
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. Additional Guests, beyond the Guest booking the home (the "Primary Guest"), likewise are not required to provide a separate rental agreement to Manager, contact information or any identifying information.
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 so long as such rate setting is in accordance with the above with regards to minimums.
Monthly Remittance, Reporting and Booking Notifications.
Monthly Reporting. Manager shall send or make available through an online portal to Owner a report or description detailing all confirmed Reservation activity (the “Monthly Statement”), with an explanation of payments received and expenses incurred by Manager including the Management Fee. Management Fees are set at the amount agreed upon by the Parties. Payment to be remitted to Owner 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, Hourly Work, Resort Fees, 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 Booking Site (the “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 that is 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. 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 day for each day 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.
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. 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 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.
FOR PROPERTIES QUALIFIED AS AIR CONCIERGE LUXE CATEGORY ("LUXE HOME"). ALL TERMS AND CONDITIONS HEREIN SHALL APPLY TO ANY LUXE HOME. Key differences of a LUXE HOME include the following:
Management Fee may be lesser or greater than the Standard Service. Such Management Fee may be adjusted at any time, without notice, by Air Concierge, but in no cases retroactively. Your continued use of the Air Concierge services shall act as an acceptance of any such fee alteration.
Guest may receive a complimentary Welcome Package for each stay.
Owners may receive (1) complimentary post-Owner-stay cleaning per year. Such cleaning may be eligible after the 11th month in which the LUXE HOME has been managed by Air Concierge. The selection of the cleaning professional shall rest entirely with Air Concierge.
The LUXE HOME may receive (1) complimentary annual home maintenance review. The cost of service and selection of maintenance vendor to be paid by Air Concierge. The cost of any supplies, materials, replacement parts, or additional charges to the flat fee or hourly fee of a technician, repairman, handyman, to be paid by Owner. Such complimentary maintenance review is eligible after the 11th month in which the LUXE HOME has been managed by Air Concierge.
A company representative / concierge at check in and check out using best efforts of Air Concierge. This agreement shall not be breached in the event Air Concierge cannot meet a guest in person.
Additional and higher-end provided bathroom toiletry supplies may be provided on site for Guest use
Any technology products purchased by Air Concierge and installed in a Property shall be the property of Air Concierge, including but not limited to: Exterior camera(s), Doorbell, thermostat, wireless keypad entry, carbon monoxide and smoke detector, streaming television devices, wireless plug ins, together ("Air Concierge Technology Products"). All such products shall be returned to Air Concierge within 7 business days of the termination or stoppage of services between the Parties. Shall Owner's utilize the Property for any period longer than 60 days or cause Air Concierge to not list or market the home, even if Owner's are not in residence, Air Concierge retains the right to enter the Property to remove any Air Concierge Technology Product.
To Qualify as a LUXE HOME:
The LUXE HOME must be listed at a minimum of $750/night regardless of time of year, day of week, length of stay, seasonality or special events.
The LUXE HOME must be available for at least 1 year exclusive to Air Concierge, Inc. with owner use limited to 30 days / year.
The decision to list the LUXE HOME and it's price is wholly the decision of Air Concierge.
The LUXE HOME may later be added to the LUXE category once a minimum of $750/night has been achieved on at least 3 reservations consecutively.
Reservations falling outside the LUXE category will be managed at the standard fee
[UPDATED AND ADDED JULY 9, 2016]. FOR PROPERTIES LISTED ON THE HOST'S PROFILE AND NOT AN AIR CONCIERGE COMPANY OR AIR CONCIERGE AFFILIATED PERSON PROFILE INCLUDING INSTANCES IN WHICH A HOST ELECTS TO NAME AN AIR CONCIERGE PERSON OR PARTY AS A GUEST HOST, THEN AIR CONCIERGE AND HOST AGREES AS FOLLOWS;
Listing Assistance. Air Concierge will assist the Owner/Host (Air Concierge shall be known as the "Co Host") with creating and optimizing the listing of an Accommodation on one or more Third Party Platforms (“Listing”). Air Concierge's Listing services may include a recommendation regarding the optimal price for a listing. Host acknowledges and agrees that Host is responsible for the accuracy of all Listing information. Such assistance shall include the logging in and complete access to Host's online profile. Air Concierge reserves the right to update all contact information for a Host including but not limited to username, password, contact email, contact phone number, and other contact persons associated with the account. In the event such an update causes Host to not have access to the profile during the term of this Agreement, then no violation of this Agreement has occurred, and Air Concierge is under no obligation to reveal the contact information to Host. Shall Host remove or restrict Air Concierge's ability to log in or access a Listing under Host's profile without express written consent of Air Concierge, then an immediate termination of this Agreement has occurred and penalties under certain clauses may have likewise occurred, including Early Termination, Reservation Cancellation, and any fees due to Air Concierge for Reservations procured during Air Concierge's time as a Co Host, whether started or not, shall be payable in full to Air Concierge, even if Host or Air Concierge shall be removed before, during or after the start of such a Reservation.
Guest Selection. Air Concierge will assist the Host with screening and selecting potential guests. Host acknowledges and agrees that the Host is solely responsible for selecting Guests. BUT THAT SHALL AIR CONCIERGE UNDERTAKE THAT RESPONSIBILITY IT IS DOING SO AT THE DIRECTION AND REQUEST OF HOST. If a Guest requests a booking of your Accommodation and stays at your Accommodation, any agreement that you enter into with a Guest is between you and the Guest. Host acknowledges and agrees that Air Concierge is not your agent and will not negotiate or execute agreements with Guests on behalf of the Host. Air Concierge will not be a party to any agreement between Hosts and Guests.
Duties. All other Air Concierge duties shall remain the same as listed under APPENDIX 1 “RESPONSIBILITIES OF AIR CONCIERGE".
Remittance of Funds. It is expected that Air Concierge will collect or receive funds on behalf of Hosts through Air Concierge's own bank (the "Air Concierge Client Bank Account"). When applicable, each a Host and Co Host may elect to have funds diverted separately by the Listing to each separately. Such account may be a general bank account at Air Concierge's bank, or a dedicated sub account for an individual property or properties of a Host. In the event a Host has listed his own bank information, then upon Air Concierge's access to Host's profile, Air Concierge shall have full rights to update, edit and take whatever steps it deems necessary to effectuate receiving Guest funds (or payments from a Third Party Platform). An agreement is not completed between the Host and Air Concierge parties until Air Concierge has established the Air Concierge Client Bank Account and such account is verified by a Third Party Platform. All fees due to Co Host are earned at the time a booking is confirmed and not when a reservation starts, finishes or otherwise. Should Host elect to terminate Co Host at any point prior to the start of a Reservation but after a confirmed booking, then Co Host is entitled to its full fee for said Reservation(s).
Ambiguities. Where any conflict in the above items as it pertains to terms and conditions for Hosts throughout the remainder of this Agreement, then it shall be noted that each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.
All other terms herein shall apply to any situation in which a Reservation occurs on a Host Profile.
Management Fee. For such co-hosted types of arrangements, Air Concierge may require a higher fee structure. Such fees shall be agreed upon prior to commencement of work.
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.
*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.
2. Expenses. The fees Owner shall expect to have withheld from the gross fee (“Total Payout”) shall include but are not limited to;
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 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.
Site Listing Fee for those Listing Sites that charge a Listing fee (e.g., Airbnb.com charges 3% of the Gross Payout for its Site Listing Fee, VRBO.com may charge 10%-15%, and reservations booked through AirConcierge.net, or 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.
Credit Card Transaction Fee; for a Guest opting to book a Reservation with a credit cards, such amount is payable in whole to the Credit Card Merchant
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).
APPENDIX 3 - RESPONSIBILITIES OF OWNER”
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.
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:
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:
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
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.
[UPDATED DECEMBER 28, 2018] Home Safety. Owner agrees that the Property or Properties has or will have during the term of this Agreement:
at least (1) smoke detector detector on each level of the Property prior to accepting a reservation with Air Concierge.
at least (1) carbon monoxide (CO) alarm on each level and for levels with bedroom(s), then there is or will be a carbon monoxide (CO) alarm in the hallway near any sleeping areas.
had its heating systems, including chimneys and vents, inspected and serviced within the past 12 months, and Owner agrees to future annual inspections to check for blockages, corrosion, partial and complete disconnections at a cost to Owner of inspection and any related repairs.
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.
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.
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.
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.
Insurance. Owner will maintain a comprehensive liability insurance policy in a minimum amount of $500,000 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.
Telephone and Television Services. Owner is advised to “lock” long distance telephone services to prevent excess long distance charges. Owner is also advised to lock all television service 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.
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.
APPENDIX 4: OWNER BOOKING NOTIFICATIONS
Owner shall notify Manager of desired dates in which Property is sought to be booked/reserved (a "Owner Booking Notification") by email to: email@example.com. Owners may also utilize the Owner Block link here: https://www.airconcierge.net/owner-calendar-block-form [Updated March 2018]
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.
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.
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.
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. 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 for Rental Guests
The below House Rules are a condition of the Property rental by Guest prior to Guest's booking of the Property. 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.
House Rules - (For Properties with Pools/Hot Tubs or outdoor structures including children/play structures, we include the following notice, "Please note the waiver of liability for guest use of the Hot Tub and Outdoor Slide/Structure (where applicable).
By agreeing to the terms of this booking we have created a de facto rental agreement. Your rental agreement provides for the number of occupants you stated and confirmed with us. Any violation, single or multiple, of this agreement (whether a material or immaterial clause, provision or requirement) can result in immediate eviction from the premises in addition to other fines and penalties as outlined herein. No additional overnight (beyond the number we agreed to at the time of booking) guests are permitted. Further information below on violation of this provision.
1. Our check in (4pm) and check out (11am) times are strict. We are not able to make exceptions for either later check out or earlier check in. For guests that stay past or arrive earlier than our posted times, we will deduct/charge $50 for every 30 minute period. We do this because our home and our staff requires the full block of time to properly survey, clean and prepare the home before and after each guest. We also do this as our liability policy does not cover times on site outside the language of our policy, unless we give authorization. This is non-negotiable and we appreciate your understanding of this clause before booking our home.
1a. No additional overnight guests are permitted. Further information below on violation of this provision.
2. We have created a beautiful environment for our guests. Please treat the home and its contents kindly and gently and keep it clean:
a. Please do not move furniture.
b. Restrict food to kitchen and dining table(s) and outdoor dining table– We deduct for damages and stains.
c. Please remove shoes in the home.
d. Please keep luggage, dirty/sticky hands, juice boxes, sun block, crayons and other items that stain off furniture and beds.
e. Please do not roll luggage through the home.
f. Flush toilet paper only. Use waste basket for other items.
g. Only small amounts of table scraps can be put in garbage disposal.
h. We live near the beach but we kindly ask you to not bring it back into the home with you. Please use our backyard (or private side yards with outdoor shower) to change out of sandy clothes and rinse off sandy feet.
3. Guests are responsible for charges for plumbing services to rectify clogs and dysfunctions due to improper or excessive disposal of items in toilets, sinks and garbage disposals. We review the property in depth after each guest and will never turn the home over to you with any pre existing issues. Please inform us upon arrival if you discover any problems and we will rectify immediately.
4. Please conserve energy and turn off the HVAC system(s) whenever you leave the home.
5. This is a non-smoking property, inside and out. Please respect a 20' off-the-property-rule. Any evidence of smoking will result in at a minimum $2500 damage claim or loss of security deposit to cover deep cleaning and smoke removal.
6. We are not animal friendly at this time, and such are not allowed on the property. Any evidence of pets on property will result in at a minimum $1000 damage claim or loss of security deposit to cover deep cleaning and smoke removal.
7. San Diego (or relevant City) has a noise ordinance to ensure quiet enjoyment by all residents and imposes a $500 fine for violations. Please observe the following: a. 7am-7pm = no more than 55 decibels (discussion without yelling) b. 7pm-10pm = no more than 50 decibels (quiet conversation) c. 10pm-7am = no more than 45 decibels (whisper). We know, but that's San Diego city limits for you.
8. A condition for the return of your security deposit (in the event we take one) is that there is no complaint of noise, misconduct or criminal activity in which a member of your party or your group is the subject of the complaint. We withhold repayment of security deposits for 10 business days to ensure all compliance.
9. No parties or events including but not limited to the persons allowed on the property at any time, be only those who were disclosed to Host at time of booking. Any additional guests, regardless of age, must have the express and prior written consent of owners or manager. Additional charges including loss of full security deposit, immediate termination of the agreement and eviction from the property may apply. Additionally no stop-by or stop-off or overnight guests other than the ones approved at time of booking (including any amount over the booking size) shall be permitted on property without express written authorization by owner. Any evidence of an event or additional guests will result in at a minimum $2500 damage claim or loss of security deposit to cover property inspection, liability analysis and coverage, deep cleaning and other property related items concerning use and safety inspection.
9b. An event can be defined as any one of these types of gatherings that involve people beyond the number disclosed as to staying at the property, gathering for a social / celebratory or business purpose, including but not limited to wedding or engagement, bachelor, bridal, baby naming, baby related, birthday, anniversary or other celebratory function (including cocktail party, brunch, shower, eg). This list is not inclusive, and others may be considered "events" as determined by us, and as such must have express written authorization from the host in addition to a separate fee and contract arrangement. Violation of this provision will result in total loss of security deposit and a potential legal claim as noted above due to the insurance and accident/damage liability. Immediate eviction from the property may result due to the subjection of owners, neighbors and the property to liability and safety issues.
10. San Diego (or relevant City) recycles plastic and glass bottles and jars, paper, newspaper, metal containers (e.g., soda cans, aluminum pans, trays and wrap) and newspaper. Please deposit your recyclable items in the blue cans in the back yard enclosures. Please make sure that you close and lock the back gate after coming back in from throwing out the trash.
11. Trash pick-up occurs every [applicable day of the week] morning. The trash containers are enclosed along the [location of trash/recycling]. Please deposit your trash there on [applicable day of the week]. On [applicable day of the week] we kindly request as a condition of this reservation you to bring the cans back in.
12. When applicable, As a courtesy to other guests, please clean the outdoor grill and tools immediately after each use.
13. We have provided high quality bath towels and bed linens. Please do not clean or mop up spills with them. Do not remove them from the property. We will wash them when you leave, but if you choose to launder, please treat soil with Shout or other stain remover and wash white towels and linens separately from colored beach towels and personal items. No bleach! We deduct from security deposit for missing, damaged, stained or discolored towels and linens.
14. Please do not allow children to operate appliances. Note that outlets, cabinet doors, windows and other elements do not have child-safe/safety mechanisms.
15. Children under 21 years are not permitted on the property without direct adult supervision, either indoors or out. Children must be accompanied and supervised by an adult on the decks and make sure not to break decorations/statues that sit on the side table. Guests who do not supervise their children at all times do so at their own risk and hold owners harmless.
16. We inspect the house upon each party's departure and before house cleaning occurs. If you discover that something is broken or is not working, please inform us right away so we can repair or replace the item for you and before the next guests arrive.
17. Before checking out, please ensure dishware, cookware, cups, glasses and utensils have been washed, dried and returned to the cupboards.
18. Upon your departure, please close and lock doors and windows and turn off the HVAC(s). Return keys (if they were provided) to the lockbox on your way out.
19. Noncompliance with any of the aforementioned rules may result in additional charges and/or application of security deposit to clean, repair or replace items, including time and effort of contractors, property owners and their staff.
20. In the unlikely event of the cancellation of this Agreement, whether with cause or without, we reserve the right to the vacate and return of the premises by you, to us, upon reasonable notice of 2 hours whereby the refusal of such by you may lead to civil and/or criminal liabilities including trespass. In the event such request is made (to vacate the premises) we will do so only in the event of a violation of our Rules or for the safety of others or the real or personal property, (including our neighbors) in or near the home, regardless if an agreement is in place with those persons. Should you refuse to vacate, then we may be forced to engage local safety and peace officer support. Any unused nights may be compensated back to you depending on the reason for the termination of the Agreement.
21. Our posted check in and check times are strict. We will often make accommodations for earlier arrivals (check in) and later check outs when its convenient for us and our staff which is responsible for preparing the home. If we have provided you access to the home ahead of your arrival, your ability to enter the home will still remain set at the posted time and in no way will we permit early access without prior authorization by us. A violation of this clause will result in fine of $150 for each violation. If you require early check in or late check out we may accommodate for an additional fee.
Waiver of Liability And Hold Harmless Agreement.
1. In consideration for receiving permission to rent, I hereby RELEASE, WAIVE, DISCHARGE and COVENANT NOT TO SUE the owner, their officers, agents, servants, or employees (hereinafter referred to as RELEASEES) from any and all liability, claims, demand, actions and causes of action whatsoever arising out of or related to any loss, damage, or injury, including death, that may be sustained by me, or any of the property belonging to me, whether caused by the negligence of the releasees, or otherwise, while in, on or upon the premises where the use is being conducted.
2. I further hereby AGREE TO INDEMNIFY AND HOLD HARMLESS the RELEASEES from any loss, liability, damage, or costs, including court costs and attorney fees, that they may incur due to my participation in renting, whether caused by negligence of releasees or otherwise.
3. It is my express intent that this Waiver of Liability and Hold Harmless Agreement shall bind the members of my family, spouse, and my guests. I hereby further agree that this Waiver of Liability and Hold Harmless Agreement shall be construed in accordance with the laws of the State of California.
4. I accept this Liability Waiver incorporated in the House Rules, which I accepted when making this booking. I ACKNOWLEDGE AND REPRESENT THAT I have read the foregoing Waiver of Liability and Hold Harmless Agreement, understand it and accept it voluntarily as my own free act and deed; no oral representations, statements, or inducements, apart from the foregoing written agreement, have been made; I am at least eighteen (18) years of age and fully competent; and I execute this Release for full, adequate and complete consideration fully intending to be bound by same. Upon request by email, we will send you this Liability Waiver by email.
Hot Tub Waiver (for Properties with a Pool and/or Hot Tub):
Hot Tub: ONLY GUESTS declared with this booking MAY USE THE HOT TUB.
Please shower before use and do not put oils, lotions or any fragrance in the tub, as it will clog the filter and make the water dirty and cloudy. Please close lid when not in use. Please use only the towels designated for the use at the hot tub, and not the bath towels. Please do not add water to the tub. Please note that the hot tub is not a swimming pool or a babysitter. We strongly recommend that children under the age of ten not enter the hot tub. CHILDREN ARE NOT ALLOWED TO ENTER THE BACKYARD WITHOUT ADULT SUPERVISION. If children are allowed in hot tub, they must be monitored by an adult at all times. and we strongly encourage limiting their use to 20 minutes. Additionally, using the hot tub as a swimming pool causes water to splash out of the tub onto electrical components as well as decreasing the water in the tub. This causes costly damage to the tubs. Additionally, we reserve the right to add a $100 cleaning charge to the reserved cardholder for excessive cleaning or breaking of policy if necessary.
In consideration for the utilization of the HOT TUBS we, understand and agree as follows:
1. I am responsible to check water quality before use. We provide test strips and chemicals at the hot tub. Please ensure that the water is balanced and properly disinfected. We regularly clean the hot tub, and disinfect the water, but since there is no manager on site, we ask that you check the hot tub before use. USE OF THE HOT TUB IS AT YOUR OWN RISK!
2. To the best of my knowledge, I am physically sound and have medical approval by my doctor to participate in physical exercise activities of the type normally engaged in a voluntary health & fitness facility and for usage of a hot-tub.
2. I understand and agree that I am responsible for learning how to use the equipment properly and safely.
3. I understand that by ordering the use of the hot tub, I am assuming financial responsibility of the tub for any and all usage, breakage, and/or abuse of the policies during my stay. This could include an additional cleaning charge and/or water replacement fee of $100 and any/all additional fees for extraordinary maintenance and/or repair incurred by owner in order to restore the tub after my stay.
4. I understand that owner reserves the right to change or cancel the continued availability of HOT TUBS without prior notice to me for issues related to care, maintenance, and/or safety. No lease, license or bailment is created by my use of the HOT TUB.
5. Owner is not liable for any loss or damage to my property arising out of my usage of the HOT TUB.
6. I agree to refrain from using equipment that I determine to be defective or in need maintenance or repair. Should any equipment be in a state of disrepair, I will alert owner in lieu of using said equipment.
7. I understand that a risk of injury and/or illness is present when engaging in or utilizing HOT TUBS and I assume all responsibilities and risk of participation in this program. I understand that failure to follow listed policies may increase those risks and incur charges to my CC on file related to any breakage, abuse of equipment, and/or abuse and negligence of the policies given and signed upon check-in.
8. IN CONSIDERATION OF THE ACCEPTANCE OF MY AGREEMENT, I INTEND TO BE LEGALLY BOUND FOR MYSELF, MY HEIRS, EXECUTORS, AND ADMINISTRATORS AND DO HEREBY RELEASE ANY AND ALL SPONSORS OF THIS FACILITY AND THEIR REPRESENTATIVES, SUCCESSORS, AND ASSIGNS, FROM ANY AND ALL LIABILITY ARISING FROM INJURIES, INCLUDING ILLNESS AND DEATH, THAT I MAY SUFFER AS A RESULT OF MY USAGE OF THE HOT TUBS.
9. MY ACCEPTANCE OF THE HOUSE RULES, and the Liability Release and Hot Tub Waiver incorporated therein IS EVIDENCE I SHOULD CHECK WITH MY DOCTOR TO SEE IF HOT TUB USE IS SUITABLE FOR MY AND MY CHILD/WARD'S HEALTH AND PHYSICAL CONDITION.
10. I HAVE CAREFULLY READ THIS AGREEMENT, RELEASE & WAIVER LIABILITY, AND I KNOW ITS CONTENTS. I HAVE VOLUNTARILY ACCEPTED IT AS PART OF MY ACCEPTANCE OF THE HOUSE RULES AS MY OWN FREE ACT.
11. BY SIGNING and/or reserving the property which shall act as my signature implied and agreement to the above, I ADMIT RECEIVING AND ACKNOWLEDGING HOT TUB SAFETY RULES EITHER AT CHECK IN, OR BY WAY OF THESE RULES AND INSTRUCTIONS.
In consideration for the utilization of the CHILDRENS PLAY SET & SLIDE (the "SET") we, understand and agree as follows:
1. I am responsible for all persons, child and adult alike in my reservation and that USE OF THE CHILDRENS PLAY SET & SLIDE IS AT MY AND THOSE IN MY PARTY OWN RISK!
2. To the best of my knowledge, I am physically sound and have medical approval by my doctor to participate in physical exercise activities of the type normally engaged in a voluntary health & fitness facility and for usage of a CHILDRENS PLAY SET & SLIDE.
2. I understand and agree that I am responsible for learning how to use the equipment properly and safely.
3. I understand that by ordering the use of the CHILDRENS PLAY SET & SLIDE, I am assuming financial responsibility of the SET for any and all usage, breakage, and/or abuse of the policies during my stay. This could include an additional cleaning charge and/or replacement fee of $100 and any/all additional fees for extraordinary maintenance and/or repair incurred by owner in order to restore after my stay.
4. I understand that owner reserves the right to change or cancel the continued availability of the SET without prior notice to me for issues related to care, maintenance, and/or safety. No lease, license or bailment is created by my use of the SET.
5. Owner is not liable for any loss or damage to my property arising out of my usage of the SET.
6. I agree to refrain from using equipment that I determine to be defective or in need maintenance or repair. Should any equipment be in a state of disrepair, I will alert owner in lieu of using said equipment.
7. I understand that a risk of injury and/or illness is present when engaging in or utilizing the SET and I assume all responsibilities and risk of participation in this program. I understand that failure to follow listed policies may increase those risks and incur charges to my CC on file related to any breakage, abuse of equipment, and/or abuse and negligence of the policies given and signed upon check-in.
8. IN CONSIDERATION OF THE ACCEPTANCE OF MY AGREEMENT, I INTEND TO BE LEGALLY BOUND FOR MYSELF, MY HEIRS, EXECUTORS, AND ADMINISTRATORS AND DO HEREBY RELEASE ANY AND ALL SPONSORS OF THIS FACILITY AND THEIR REPRESENTATIVES, SUCCESSORS, AND ASSIGNS, FROM ANY AND ALL LIABILITY ARISING FROM INJURIES, INCLUDING ILLNESS AND DEATH, THAT I MAY SUFFER AS A RESULT OF MY USAGE OF THE CHILDRENS PLAYSET AND SLIDE.
9. MY ACCEPTANCE OF THE HOUSE RULES, and the Liability Release and Hot Tub Waiver and Children's Playset and SLide incorporated therein IS EVIDENCE I SHOULD CHECK WITH MY DOCTOR TO SEE IF SUCH USE IS SUITABLE FOR MY AND MY CHILD/WARD'S HEALTH AND PHYSICAL CONDITION.
10. I HAVE CAREFULLY READ THIS AGREEMENT, RELEASE & WAIVER LIABILITY, AND I KNOW ITS CONTENTS. I HAVE VOLUNTARILY ACCEPTED IT AS PART OF MY ACCEPTANCE OF THE HOUSE RULES AS MY OWN FREE ACT.
11. BY SIGNING and/or reserving the property which shall act as my signature implied and agreement to the above, I ADMIT RECEIVING AND ACKNOWLEDGING CHILDRENS PLAYSET AND SLIDE SAFETY RULES EITHER AT CHECK IN, OR BY WAY OF THESE RULES AND INSTRUCTIONS.
Disclosures & Acknowledgements of Owner Host
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 firstname.lastname@example.org, thus qualifying any non-departing guest as 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.
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.
(Updated July 8 2016 for grammatical purposes only. Updated language marked in brackets). 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.
(Updated July 8 2016 for clarification purposes only. Updated language marked in brackets). 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)
Washer & dryer
Towels & linens (new or in very good condition)
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.