Total $4,500.00 Due: 02/28/2018
Daniel Stadlin has invited you to pay $____ towards the upcoming rental of Renees Way located in East Hampton, NY.
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Prelude: By completing the account registration process, you are entering into this Promotion Agreement (“Agreement”) by and between Marquis and the “Member” (hereinafter also referred to as “you”). Marquis provides members with a platform (the “Platform”) to market homes (each a “Property’) to renters (“Guests”) for periods of occupancy (each a “Reservation”). By entering into this agreement, you are either the owner or, authorized to transact business on behalf of, the Property as stipulated in this Agreement. For the purpose of providing services, Marquis uses different legal entities in different geographic regions. Unless otherwise noted by Marquis, “Marquis” means Marquis New York, LLC. Either party may terminate this agreement at any time, provided that both parties’ obligations with respect to Reservations existing at the time of such termination shall survive that termination. Member acknowledges that Marquis has made no guarantees (written or verbal) with respect to occupancy or income levels for any Property, with respect to this Agreement.
Services: Marquis offers two primary service tiers: “Elite” and “Marquis”. Differences include:
Elite Program: If you elect the Elite service tier, Marquis handles all marketing, pricing, booking and guest communication up until the Guest pays in full. Thereafter, all services (check-in, cleaning, other property-related services) are coordinated by the Member.
Marquis Program: If you elect the Marquis service tier, you receive a higher level of service. Marquis provides the Elite services, and certain rental management services, which include placing household supplies prior to Guest arrival, checking the Guest into the property either virtually or physically, acting as the Guest’s primary point-of-contact before, during, and after a Reservation (and handling questions around the systems of the home), coordinating the cleaning of the Property, and performing a post-Reservation inspection to communicate any damages or issues.
Marquis charges a commission (“Marquis Fee”) for each Reservation at the time the Reservation is confirmed. The amount of the Marquis Fee varies by service tier and region and will be explicitly displayed to you when you select the service tier during the Property onboarding process. In the event of any extension or future reservation beyond the period confirmed in the Booking Agreement, whether by amendment to the Booking Agreement or other agreement between Member and the Guest, Marquis shall be entitled to, and Member shall pay to Marquis, an amount equal to the Marquis Fee for the period of such new reservation.
Member may request to upgrade from the Elite Program to the Marquis Program at any time, though Marquis reserves the right to decline the request. You may downgrade from the Marquis Program to the Elite Program at any time, provided that you may make this change only for future Reservations that have not yet already been requested or confirmed.
In addition, Marquis may, at its discretion, charge Guests such additional fees as Marquis deems reasonably necessary in connection with the processing, administration and management of any Reservation (“Additional Fees”). Member acknowledges that Marquis may charge Additional Fees and that Marquis does not share any portion of Additional Fees with Members. Member disclaims any interest in any Additional Fees and waives all rights it has or may have to demand any portion of Additional Fees. One such additional fee is Marquis’ Service Fee, which you can learn more about at www.staymarquis.com/terms/service-fee.
Ancillary Services: Marquis, or its affiliates (“Marquis Affiliates”), may offer Member and Guests concierge, advisory, home improvement, and certain other ancillary services as stipulated in the Master Services Agreement. To learn more about ancillary services Marquis may offer, visit this link. To the extent Member engages any third party to provide any services ancillary to any Reservation, Marquis disclaims any obligation to manage or monitor the performance of such services and shall not be deemed an intended third party beneficiary to any agreement executed in connection therewith.
Right to Market Property: During the term, Marquis will use best efforts to market Member’s Property. Marquis may, as it determines appropriate in its sole discretion, advertise the Property on other channels including but not limited to other vacation rental platforms, real estate aggregators, multiple listing services, social media platforms, news outlets and direct emails (collectively, “Channel Partners”). Member grants Marquis the authority to exclusively list, at Marquis’ sole discretion, Member's Property on Airbnb, VRBO, Booking.com, Marriott, Plum Guide, OneFineStay, Zillow, Streeteasy, Hamptonsre.com, Outeast, and EELI. This exclusivity shall remain in effect until this agreement is terminated. Member acknowledges that Channel Partners, in agreeing to promote Member’s Property, are authorized to mark-up the cost for Reservations otherwise agreed to by Marquis and Member. From time to time, third-party agents book properties on the Platform on behalf of their Guest clients and charge their clients a fee. Member permits Marquis to procure Reservations for the Property through these third-party agents.
Photography: As part of Marquis’ marketing efforts, Marquis will capture new photography of the Property. There is no cost for the first Property photoshoot. If the Property is not ready for that first photoshoot, as determined by Marquis or the photographer, Member shall owe Marquis $250, to be deducted from Member’s next payout. All photography is owned by Marquis and you shall not use photos, or cause third parties to use photos, in order to advertise or market the Property, or for any other purpose without Marquis’s prior written consent.
Access to Property: Marquis, its affiliates, and/or approved third-party service providers, shall have access to the Property during reasonable hours as may be necessary for the photoshoot, showings, inspections, maintenance or making of repairs.
Exclusivity: Marquis’ ability to efficiently and effectively market the Member’s Property requires reassurances that there will be no duplicate Property listings. As such, member agrees not to engage or otherwise use any Channel Partner to promote the Property without first obtaining Marquis’ consent. Promptly after executing and delivering this Promotion Agreement Member must deactivate any Property listing on other Channel Partners not previously consented to by Marquis.
For the avoidance of doubt, Member grants Marquis the authority to exclusively list Member's Property on Airbnb, VRBO, Booking.com, Marriott, Plum Guide, OneFineStay, Zillow, Streeteasy, Hamptonsre.com, Outeast, and EELI and shall immediately upon execution of this agreement, force the removal of any other listing featuring Member’s Property from those platforms.
Upon written consent by Marquis, Member may permit a third-party agent to confirm a Reservation (an “Agent Reservation”) through the Platform. For each Agent Reservation, Member shall pay to Marquis a brokerage commission reasonably determined by Marquis in addition to any other fees Marquis is entitled to in connection with such Reservation(s), as described in this Agreement.
Accurate Availability, Pricing and Strategy: To ensure we have confidence in your Property’s set up, you will receive a regular email and text message that will prompt you to confirm your Property’s availability, pricing and strategy. Marquis requires you to confirm availability at least once every 4 weeks. If you do not confirm your availability within a 4-week period, Marquis reserves the right to pause your listing. Properties on the platform are displayed in the order of the most recent confirmed availability, among other factors. Any more than one reservation being declined or cancelled due to inaccurate availability, pricing or strategy will be considered a breach of this Agreement and result in us reevaluating your Property’s suitability for the Platform.
Member Account: Member shall, for so long as the Property is listed by Marquis, maintain a valid sub-merchant account (a “Merchant Account”), with Stripe, which Merchant Account shall be subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By entering into this Agreement, Member agrees to be bound by the Stripe Services Agreement, as modified by Stripe from time to time. As a condition to Member’s and Marquis’ use of Stripe, Members agree to provide Marquis with accurate and complete information, as requested, and Member authorizes Marquis to share such information with Stripe, if and as appropriate.
The Booking Process:
Booking Agreement: Marquis provides the Booking Agreement for each Reservation, which is the contract entered into by the Member and Guest. Marquis is not a party to the Booking Agreement except to the extent stated explicitly in that agreement. If a Reservation comes through Airbnb, Luxury Retreats, or Marriott International, the Booking Agreement provided by each respective platform will remain in full force and effect.
Guest Cancellation of Booking: The payment terms of a Booking are indicated in the New Booking Notification. In the event a Guest cancels their Reservation, Marquis refunds the Guest in accordance with the terms outlined in the New Booking Notification. In the event the Guest payments are non-refundable, Marquis reserves the right to immediately re-open the dates of the Booking. If Marquis is able to re-book the Property for an amount of equal or higher value than the amount the Guest was booked for, Marquis reserves the right to issue the Guest a full refund, independent of the Member’s preference.
Member Cancellation of Booking: If Member cancels a Reservation or displaces Guest for any reason, Member shall be liable for returning that Guest’s paid amounts, any costs to upgrade Guest to another property, any fees owed to third-party platforms as a result of such cancellation, Marquis’ Fee due on the canceled Reservation, and all attorney’s fees incurred by Guest and Marquis in enforcing this obligation. Member has 30 days to remit payment due to Marquis in connection with the cancellation.
Marquis Cancellation of Booking: Marquis may cancel a Reservation at its sole discretion if it deems the Property unfit or diminished below its custom standards. If Marquis chooses to cancel a Reservation, Member shall promptly return to Marquis any funds already paid out in connection with the Reservation. Member has 30 days to remit payment due to Marquis in connection with the cancellation.
Guest Chargebacks: If a Guest issues a chargeback on their payment resulting in the funds being withdrawn from Marquis’ account, Marquis shall immediately notify Member and shall draw the funds from Member’s Merchant Account in an amount equal to the chargeback amount. If Member’s Merchant Account lacks sufficient funds to cover the chargeback amount, Marquis shall notify Member of the chargeback, and Member shall remit payment to Marquis in the amount of the chargeback within two business days of Marquis notifying Member.
Security Deposits: Marquis collects no security deposits. Each Guest will be required to execute a Waivo Waiver, substantially in the form available here (https://waivo.io/client/staymarquis/), and issued by Rental Project LLC, DBA Waivo (the “Waivo Waiver”) unless such Waivo Waiver obligation is waived by the Member in writing. Member may, at its discretion, collect an additional security deposit from a Guest pursuant to the terms and conditions of a security deposit agreement (an “SDA”), provided Marquis shall in no instance be deemed a party to, or a third party beneficiary of, any such SDA. Upon written request, Marquis may (but is not obligated to) provide an example form SDA to Member, provided however that Marquis makes no representations or warranties as to the efficacy or interpretation of any such SDA it so provides. Failure by Member to request and receive a duly executed SDA shall in no instance constitute grounds for cancellation of such Reservation. Marquis has no, and disclaims all, liability for any damages to the property arising in connection with any Reservation. Notwithstanding the foregoing, Certain Channel Partners may not permit the collection of a security deposit and we will notify you of this in the “New Booking Notification” email.
To the extent Member has engaged Marquis (whether via enrollment in the Marquis Service Tier or otherwise) to inspect Member’s Property after any Reservation, Member shall hold harmless Marquis from, and waives any right to pursue any recourse against Marquis for, any failure by Marquis to detect Property damages, and to the extent not prohibited by applicable law, in no event will Marquis be liable for any such failure, or any incidental, special, indirect, consequential, or punitive damages whatsoever, arising from such failure.
Damage Claims Process: To the extent Member has engaged Marquis (whether via enrollment in the Marquis Service Tier or otherwise) to inspect Member's Property after any Reservation, Marquis will send Member a Post-Departure Inspection report via email which will detail any issues or damages discovered during that post-departure inspection. The Member must indicate whether a damage claim should be submitted. The Member must indicate its response and submit the report within 12 days from the check-out, unless the booking came through Airbnb, which in that case must be submitted within the earlier of 1) 36 hours from check-out or 2) before the next Airbnb check-in. Submissions after this deadline will not be submitted and Member will not receive reimbursement for damage claims.
Members who engage Marquis on the Elite Service Tier will receive an email on the day of each Reservation's check-out, which will prompt Member to submit Guest-caused issues or damages. The Member must report claims through the Owner Portal within 12 days from the check-out, unless the booking came through Airbnb, which in that case must be submitted within the earlier of 1) 36 hours from check-out or 2) before the next Airbnb check-in. Submissions after this deadline will not be submitted and Member will not receive reimbursement for damage claims.
Marquis’ Issue Management: If Marquis reasonably determines a Property repair is necessary to avoid a potential obligation to refund a Guest, Member authorizes Marquis to make or cause to be made such repair at Member’s expense (a “Property Repair”). If Marquis reasonably determines that any action (or series of related actions) is necessary to preserve the general appearance and standing of the Property, Member authorizes Marquis to take or cause to be taken such action at Member’s expense (a “Property Action”), provided however that Marquis shall not take or cause to be taken any Property Action the cost of which, individually, exceeds $400, without the Member’s prior written consent. Member shall reimburse Marquis for costs incurred in connection with any Property Repair or Property Action promptly upon Marquis’ written request.
If Member owes any amount to Marquis in connection with a cancellation, chargeback, Property Repair or Property Action, Marquis may, at its sole discretion: (i) deduct any such amounts from future payouts otherwise payable to the Member, (ii) charge such amount to the Member’s credit card on file with Marquis, or (iii) reverse a prior payout to Member to cover any amounts due. If Marquis not paid any and all such amounts due within 30 days of the date such amount(s) become due, Member authorizes Marquis to file a UCC-1 Financing Statement evidencing a lien against the Member’s personal property, securing such payment, and such sums shall accrue interest at the rate of 2.5% per month for each 30 days such amount remains outstanding. Any lien filed, as permitted herein, shall attach from the date of the failure of payment and may be enforced in like manner as a mortgage or deed of trust on real property or a security interest in personal property, as appropriate, subsequent to the recording of a notice or claim thereof.
Mediation: Disputes and controversies arising with respect to any Reservation (a “Dispute”) shall be submitted to mediation (the “Mediation”) by Gogo Mediation (“Mediator”) before pursuing any other legal or equitable remedy in any other forum whatsoever, subject to the terms and conditions provided in, and unless otherwise set forth in, the Booking Agreement. For the avoidance of doubt, Mediation shall be conducted directly between the Member, the Guest and the Mediator. Information pertaining to management of the Mediation by the Mediator is available here: https://www.gogomediation.com/propresolve. The Member acknowledges and agrees that the Member cannot, and covenants not to effort to, compel the attendance of Marquis (or its Affiliates) at the Mediation.
Marquis Capital Account: If Marquis determines, in its sole discretion, that Member’s Property is likely to require Marquis’ intervention as contemplated in the paragraph above titled “Marquis’ Issue Management,” Marquis may establish on such Member’s behalf a capital account for the purpose of covering costs of any such intervention (a “Capital Account”). Marquis may from time to time withhold funds that would otherwise be released to Member hereunder to fund Member’s Capital Account, provided that the balance of such Capital Account shall never exceed ten thousand dollars ($10,000).
Utility Fees: Unless otherwise agreed to between Guest and Member in the Booking Agreement, fees for utilities shall be included in the total rental amount and collected at the time of booking. The fees for utilities for each booking are based on the nightly utilities rate agreed to between Marquis and Member for the Property. Marquis has no obligation to collect from the Guest any fees, bills or charges for utilities that exceed the fees for utilities included in the total rental amount at the time of booking. To the extent applicable to the Property, the term “utilities” refers to pool and hot tub maintenance, heating oil, propane, natural gas, electricity, cable/satellite TV, internet service, trash removal, landscaping maintenance, and water. Any disputes regarding cost of utilities shall be resolved exclusively between the Guest and Member. Both Guest and Member waive all rights to pursue any action against Marquis in connection with such disputes.
Insurance: Member must procure homeowners insurance that specifically covers Property rentals and short-term occupancies, on an occurrence (and not a claims-made) basis. Because some policies may specifically exclude renting from coverage, Members should confirm that their policy covers them, Guests, and their Property for the purposes of this Agreement. Member must add Marquis as an additional insured party to its homeowner’s insurance policy. As an added layer of protection, Marquis may maintain property damage insurance for each Reservation, in coverage amounts determined by Marquis in their sole reasonable discretion. This required insurance is supplemental to, and not a replacement of, the homeowners policy Member agrees to obtain.
For each Booking confirmed through the Platform, Marquis procures liability insurance coverage through SafelyStay, Inc, for up to $1,000,000 for structural damage to the Property, including labor and materials costs. Physical injury is included as part of the $1,000,000 coverage so if a Guest has an accident while on vacation at the Property, the Member is protected. Please note that if the Property is a commercial property, it does not receive this coverage.
Brokerage: In the event of a purchase of the Property by a Guest, or a guest of the Guest, Member agrees to pay to Marquis a real estate brokerage commission equal to three percent (3%) of the total purchase price. Upon any such sale, Marquis will provide Member with its real estate brokerage license information.
Taxes: Marquis merely makes available the Platform for Members and Guests to find one another and, if they wish, arrange for accommodations. Member is solely responsible for determining Member’s tax reporting requirements and payment of income, real estate, personal property and sales taxes, if any, relating to the Property or similar tax due on proceeds from Property Reservations. Marquis cannot and does not offer tax advice to Member or to Guests. Marquis will provide Member with a Form 1099 if required by law. Member will provide to Marquis, promptly upon receipt of written request from Marquis, a completed W9 form. Marquis may, in its discretion, withhold any payments to Member until it has received such W9 form.
Compliance with Laws: Member will abide by (and as necessary, investigate) all local, municipal, state and federal laws, rules, ordinances, and regulations with regard to their use of the Site, Booking Services and Ancillary Services. Marquis, although not liable for legal or regulatory compliance pertaining to Properties listed on the Platform, may from time to time be obligated (as we may determine in our sole discretion) to provide information relating to the Property or any current or past Reservation in order to comply with governmental investigations, litigation or administrative proceedings, and Marquis may, in its sole discretion, comply or disregard such obligation.
Indemnity: Member agrees to defend, indemnify and hold harmless Marquis and its Affiliates (collectively, the "Indemnitees") to the fullest extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities, joint and several, expenses of any nature (including attorneys’ fees and disbursements), judgments, fines, settlements and other amounts of any nature whatsoever, known or unknown, liquid or illiquid (collectively, “Liabilities”) arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, relating to a Reservation at the Property, Member’s breach of this Agreement, or any fraud, gross negligence or willful misconduct by Member. In the event of such indemnification, Marquis may elect its own counsel, at Member’s expense, and Member can participate in the defense at Member’s additional expense.
Marquis Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL (i) MARQUIS OR (ii) ANY OF ITS AFFILIATED ENTITIES, OR EITHER OF THEIR SHAREHOLDERS, MEMBERS, CONTRACTORS, SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSEES OR REPRESENTATIVES (COLLECTIVELY THE “AFFILIATES”), BE LIABLE FOR ANY DELAYS, ACCIDENTS, DAMAGES, INJURIES OR LOSSES SUFFERED BY OR WITH RESPECT TO MEMBER, THE GUEST (OR GUEST’S INVITEES). MARQUIS IS NOT RESPONSIBLE OR LIABLE FOR MANAGING OR MAINTAINING THE PROPERTY (OTHER THAN AS AGREED TO IN WRITING) OR FOR THE ACTIONS, INACTIONS OR FAULTS OF MEMBER OR ANY OTHER THIRD PARTY INVOLVED IN THE BOOKING OR MANAGEMENT OF MEMBER’S PROPERTY. NEITHER MARQUIS NOR ITS AFFILIATES SHALL BE LIABLE TO THE MEMBER FOR ANY SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING DAMAGES (INCLUDING LOSS OF DATA, REVENUE, AND/OR PROFITS) COSTS OR EXPENSES (INCLUDING LEGAL FEES AND EXPENSES), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THIS AGREEMENT REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES OR OTHERWISE, AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. MARQUIS’ MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE THE AGGREGATE OF ALL MARQUIS FEES COLLECTED ON BEHALF OF THE MEMBER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY FIRST AROSE.
Entire Agreement: Together with any agreements between Member and Marquis with respect to additional services, and each Booking Agreement Member executes, this Agreement constitutes the entire agreement between Member and Marquis, and replaces any other agreements existing prior hereto whether made orally, in writing, or otherwise.
Intellectual Property: Marquis has and continues to invest substantial time and resources to develop marketing material to promote the Property and other Marquis Members’ properties. Member agrees that ownership of these materials, and all intellectual property embedded therein, belong exclusively to Marquis and that Member will not use (or allow anyone else to use) any of those materials without Marquis’ prior written consent.
Force Majeure: Member is permitted to cancel a Reservation without penalty, upon reasonable advance written notice to Marquis, if an act beyond Member’s reasonable control (for example, fire, flood, hurricane, pandemic, government regulation, etc.) would prevent a Guest from reasonable use of the Property during that Reservation. Member agrees to return to Marquis (or otherwise authorize Marquis to collect from Member or withhold from Member’s future disbursements) a pro-rated portion of any fees received for a Reservation cancelled for these reasons.
Non-Solicit: During the Term of this Agreement and for a period of eighteen (18) months thereafter, Member will not, and will cause its Affiliates not to, recruit, solicit for employment, hire or engage in any way, shape or form, any employee(s), agent(s), or contractor(s) of Marquis (“Marquis Personnel”), or encourage any such Marquis Personnel to leave its Marquis engagement, or hire any such Marquis Personnel who has left such engagement, except pursuant to a general solicitation which is not directed specifically to any such Marquis Personnel, without Marquis’ express prior written approval, provided that nothing in this Section “Non-Solicit” shall prevent Member or any of its Affiliates from hiring any Marquis Personnel after twelve (12) months from the date of termination of their Marquis engagement. Member acknowledges that, separate and apart from the services to be provided to Member by Marquis, Marquis invests considerable resources in training Marquis Personnel to perform services (and ancillary services as described further in the Master Services Agreement) for Member (and other Marquis members). In recognition of these expenses incurred by Marquis, Member agrees that in the event the Member breaches its covenants in this Section, it shall pay to Marquis an amount equal to the product of (i) 1.5 and (ii) the respective Marquis Personnel’s annualized compensation as based on its most recent month of engagement with Marquis (the “Non-Solicit Expense Reimbursement Amount”). The Member and Marquis acknowledge and agree that Marquis’ harm caused by Member’s breach of this Section “Non-Solicit” would be impossible or very difficult to accurately estimate, and that the Non-Solicit Expense Reimbursement Amount is a reasonable estimate of the anticipated or actual harm that might arise from such a breach.
Miscellaneous: This Agreement may be amended from time to time by Marquis. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflict or conflict of law principles. Any suit or other action arising out of, or in connection with, this Agreement may be brought only in the New York state courts sitting in New York County, New York or in the United States District Court for the Southern District of New York and each of the Parties hereby irrevocably consents to the jurisdiction of, and venue in, such courts.
Marquis Rights: This agreement does not restrict Marquis’ rights to sell or advertise products in connection with the Platform and Member is not entitled and will not be paid any portion of Marquis’ proceeds from such activities.
Final Member Representations