| VACATION RENTAL AGREEMENT
TERMS AND CONDITIONS
These Terms and Conditions, along with the confirmation email we send you after you make your reservation (“Confirmation Email”), form a binding contract between you and us, effective as of 24 hours after we send the Confirmation Email to you (the date on which such 24-hour period ends, the “Agreement Date”). To reject this Agreement, you must respond to the Confirmation Email within 24 hours of our sending the Confirmation Email. If you do not reject the Agreement within 24 hours of our sending the Confirmation Email, you will automatically be deemed to have accepted this Agreement as of the Agreement Date.
In these Terms and Conditions, “Agreement” means these Terms and Conditions and the Confirmation Email collectively. Our Privacy Policy, Terms of Use, and other policies and click through agreements applicable to your use of our services are incorporated by reference into this Agreement. In this Agreement, “you” and “your” means the person or persons making the reservation and those who will be staying at the Property as guests, and “we,” “our,” “ours,” and “us” means Grand Welcome Holdings, Inc., which includes Grand Welcome Franchising, LLC, Hawaiian Vacation Rentals, LLC, Grand Welcome IP, LLC, Grand Welcome Services, Inc., and Grand Welcome, LLC (collectively referred to as “Grand Welcome”).
One of our affiliates or a Franchisee of one of our affiliates (the “Property Manager”) manages the rental property located at the address identified in the Confirmation Email (the “Property”). We do not manage the Property, and we do not manage any of the Accommodations represented in the Listings (each as defined below). We operate an online website (our “Website”) that enables registered users who own properties (“Home Owners”) to offer vacation or other properties for use (“Accommodations”) on our Website (“Listings”). With this Agreement, you and we (collectively, the “Parties”) wish to agree on the terms of your using our Website and renting the Property. Therefore, the Parties agree as follows:
(1) Scope of our Services.
(a) While we may help facilitate the resolution of disputes, we have no control over and do not guarantee (i) the existence, quality, safety, suitability, or legality of any Listings, (ii) the truth or accuracy of any Listings, ratings, reviews, or other Content (as defined in our Website Terms of Use and which includes User Content), or (iii) the performance or conduct of any Home Owner or Property Manager or third party. We do not endorse any Home Owner or Listing. Any references to a Home Owner being “verified” (or similar language) only indicate that the Home Owner has completed a relevant verification or identification process and nothing else. Any such description is not an endorsement, certification or guarantee by us about any Home Owner, including of the Home Owner’s identity or background or whether the Home Owner is trustworthy, safe or suitable. You should always exercise due diligence and care when deciding whether to stay in an Accommodation. Photographs of Accommodations are intended only to indicate a photographic representation of a Listing at the time the photograph was taken and are, therefore, not an endorsement by us of any Home Owner or Listing.
(b) To promote our Website and to increase the exposure of Listings, Listings and other Content may be displayed on other websites, in applications, within emails, and in online and offline advertisements. To assist users who speak different languages, Listings and other Content may be translated, in whole or in part, into other languages. We cannot guarantee the accuracy or quality of such translations and You and the Home Owner are responsible for reviewing and verifying the accuracy of such translations.
(2) Home Owner Verification. We do not assume any responsibility for the confirmation of Your or any Home Owner’s identity. Notwithstanding the foregoing, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to, (a) ask You or a Home Owner to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of users of our Services, (b) screen Home Owners against third party databases or other sources and request reports from service providers, and (c) where we have sufficient information to identify a Home Owner, obtain reports from public records of criminal convictions or sex offender registrations or an equivalent version of background or registered sex offender checks in your local jurisdiction (if available).
(3) Reservation. Subject to this Agreement, you will rent the Property solely for short-term vacation purposes between the “Check-In Date” and “Check-Out Date” identified in the Confirmation Email. Your lease of the Property will start at 4:00 p.m. on the Check-In Date (the “Check-In Time”) and will end at 10:00 a.m. on the Check-Out Date (the “Check-Out Time”). You may not check in early or check out late without the Property Manager’s prior agreement. A Property Manager or Home Owner may require a Check-In Time that is later than 5:00 p.m. during peak holiday periods and we will notify you of such later Check-In Time in the Confirmation Email. You understand that a confirmed booking of the Property is a limited license granted to you by the Home Owner to enter, occupy and use the Property for the duration of your stay, during which time we and/or the Home Owner (only where and to the extent permitted by applicable law) retains the right to re-enter the Property.
(4) Rent and Other Charges. Subject to meeting any requirements (such as completing any verification processes) set by us, the Property Manager, and/or the Home Owner, you can book a Listing available on our Website by following the respective booking process. All applicable rent, fees and any applicable Taxes (collectively, “Total Fees”) will be presented to you prior to booking a Listing and set forth in the Confirmation Email. You agree to pay us the full amount of the Total Fees as stated in the Confirmation Email.
(In certain instances, if you are booking a Listing on behalf of one or more additional guests, we may enable you (as the “Organizer”) to split the payment of the Total Fees for an eligible booking on a pro-rata basis between the Organizer and at least one other additional guest (each a “Co-Payer”) (the “Group Payment Service”). In order to participate in the Group Payment Service, each Co-Payer must have or register an Account prior to making a payment. The Group Payment Service may not be available for all Properties.)
(a) Payment Deadlines. If your Agreement Date is less than 60 days before check-in, you authorize us to charge 100% of the Total Charges at the time you make your reservation to the payment method you provide us with upon making your reservation. If your Agreement Date is 60 days or more before your check-in date, you authorize us to charge 50% of the Total Charges at the time you make your reservation to the payment method you provide to us and to charge the remaining 50% to the payment method you provide to us 60 days before your Check-In Date (the “Second-Charge Date”). You authorize us to charge your payment method on file without any further notice to you on the Second-Charge Date, as applicable. If 100% of the Total Charges are not paid to us by the Second-Charge Date, as applicable, we may cancel your reservation at any time thereafter.
(b) Nonrefundable Reservation Fees. We may charge fees to you (collectively, “Nonrefundable Reservation Fees”) in consideration for the use of our Website and services. Nonrefundable Reservation Fees are fully earned by us on the Agreement Date and may include cleaning fees, extra dirty fees, early check-in fees, late check-out fees, cancellation fees, travel-agent fees (e.g., Airbnb, booking.com, homeaway marketing) or other fees charged to us by third-parties, pet fees, accidental damage fees, and customer care fees as stated in the Confirmation Email as well as any other fees (if any) designated in the Confirmation Email. We reserve the right to change the Nonrefundable Reservation Fees at any time and will provide you adequate notice of any fee changes before they become effective. Such fee changes will not affect any bookings made prior to the effective date of the fee change. Nonrefundable Reservation Fees may be combined with rent and other fees and are included in the Total Charges. You are responsible for paying any Nonrefundable Reservation Fees that you owe to us. Except as otherwise provided on our Website or in the Confirmation Email, the Nonrefundable Reservation Fees are non-refundable.
(c) Application of Payments. Payments you make to us are first credited toward the Nonrefundable Reservation Fees (and related Taxes (as defined below)), then the rental fees (and related Taxes), and then the Security Deposit (defined below). You will pay us $25 for any returned check.
(d) Security Deposit and Additional Charges.
(i) Certain charges may be designated as a “Security Deposit” in the Confirmation Email. To the fullest extent permitted by applicable law, we may deduct from the Security Deposit any costs for damages, extra cleaning, or repair of the Property, furniture, and other items in the Property which you cause or permit to occur, plus any sales tax, general excise tax, transient accommodations tax, and any other applicable Taxes. For bookings that are thirty-one (31) days or longer, you authorize us to charge you the maximum Security Deposit as allowed under the laws governing such long term rentals for the Property in your booking.
(ii) If the Security Deposit is not sufficient to cover any costs or damages caused by you or for which you are responsible under this Agreement, you will be responsible for paying us the difference promptly upon our request.
(e) Taxes. You understand that any appropriate governmental agency, department and/or authority (“Tax Authority”) where the Property is located may require value-added or other indirect sales taxes, occupancy tax, tourist or other visitor taxes or income taxes (“Taxes”) to be collected from you in connection with your reservation, and to be remitted to the respective Tax Authority. The laws in jurisdictions may vary, but these Taxes may be required to be collected and remitted as a percentage of the rent and/or fees set by the Property Manager or the Home Owner, a set amount per day, or other variations, and are sometimes called “transient occupancy taxes,” “hotel taxes,” “lodging taxes,” “city taxes,” “room taxes” or “tourist taxes”. In certain jurisdictions, we may decide in our sole discretion to facilitate collection and remittance of Taxes from or on behalf of the Property Manager or Home Owner, in accordance with these Terms and Conditions (“Collection and Remittance”) if such jurisdiction asserts we, Property Managers, or Home Owners have a Tax collection and remittance obligation. In any jurisdiction in which we decide to facilitate direct Collection and Remittance, you hereby instruct and authorize us to collect Taxes from you on our and/or the Home Owner’s behalf at the time we collect the other fees associated with your reservation, and to remit such Taxes to the proper Tax Authority. In other jurisdictions, we may decide in our sole discretion to collect Taxes and remit such Taxes to eligible and qualifying Home Owners, based on tax information supplied by the Home Owner, for ultimate reporting and remittance by such Home Owner to the Tax Authority. The amount of Taxes, if any, collected and remitted by us will be visible to and separately stated to you in your Confirmation Email. You agree that any claim or cause of action relating to our facilitation of Collection and Remittance of Taxes shall not extend to any supplier or vendor that may be used by us in connection with facilitation of Collection and Remittance, if any. You agree that we may seek additional amounts from you in the event that the Taxes collected and/or remitted are insufficient to fully discharge your, our, the Property Manager’s, and/or the Home Owner’s obligations to the Tax Authority, and agree that your sole remedy for Taxes collected is a refund of Taxes collected by us from the applicable Tax Authority in accordance with applicable procedures set by that Tax Authority.
(f) Limited Damage Waiver. If you purchase a Limited Damage Waiver (as indicated in the Confirmation Email), we will apply the Limited Damage Waiver to cover any incidental damages up to twenty five hundred dollars and no cents ($2,500), and any damages in excess of this amount will be your responsibility.
(g) Changes to Reservation. If you request a change in your reservation (including either changes in reservation dates or Property location) and we agree to the change, we may charge you $75, plus applicable Taxes and any additional rent charges. We have no obligation to agree to a change in your reservation.
(5) Cancellations.
(i) Please see the cancellation policy for each location here. We have no obligation to refund you any amounts if you cancel your reservation after the Cancellation Deadline, except for the Security Deposit (if applicable), unless otherwise required by applicable law. Any amounts refunded to you if you cancel your reservation after the Cancellation Deadline, except for the Security Deposit (if applicable) and any amounts required by applicable law, will be at our sole and absolute discretion. You acknowledge and agree that travel insurance is available for you to purchase from various third parties which may avoid or mitigate the risk of your losing amounts that you have paid under this Agreement if you cancel your reservation. You acknowledge and agree that the offering of third-party travel insurance is governed by additional terms, conditions, and policies of such third-party which are not contained herein and that such third-party travel insurance is a Third-Party Service. For bookings that are past the stated cancellation period, you agree that we have no obligation to refund any amount of the Total Fees to you, except as may be required by the laws governing such long-term rentals for the Property in your booking.
(b) In certain circumstances, we may decide, in our sole discretion, that it is necessary to cancel a pending or confirmed reservation. This may be for reasons (i) where we believe in good faith, while taking the legitimate interests of you, the Property Manager, the Home Owner and us into account, this is necessary to avoid significant harm to us, the Property Manager, the Home Owner, other users, residents or tenants, third parties or property, or (ii) for any of the reasons set out in these Terms and Conditions. If we cancel your reservation, we will refund you the Total Fees, including the Nonrefundable Reservation Fees. We may, in our sole discretion, move up your Check-Out Date for any reason, in which case we will refund you a proportionate percentage of the Total Fees, including the Nonrefundable Reservation Fees. To the greatest extent permitted by applicable law, we will not be liable to you for any damages if we cancel your reservation or move up your Check-Out Date.
(6) Holdover. You agree to leave the Property no later than the Check-Out Time. If you stay past the Check-Out Time without our consent (“Holdover”), you no longer have a license to stay in the Property and we are entitled to make you leave in a manner consistent with applicable law. In addition, you agree to pay for each twenty-four (24) hour period (or any portion thereof) that you Holdover, (a) 200% of the amount of the daily rent set forth in the Confirmation Email or (b) the maximum rate permitted by applicable law to cover the inconvenience suffered by us, the Property Manager, and/or the Home Owner, plus all applicable fees, Nonrefundable Reservation Fees, Taxes, eviction fees and any legal expenses incurred by us (including, but not limited to litigation expenses incurred by us), the Property Manager, and/or the Home Owner to make you leave (collectively, “Holdover Fees”). Holdover Fees for late checkouts on the Check-Out Date that do not impact upcoming bookings may be limited to the additional costs incurred by us, the Property Manager and/or the Home Owner as a result of such Holdover. If you Holdover at the Property, you authorize us to charge you to collect Holdover Fees. A Security Deposit, if required, may be applied to any Holdover Fees due to your Holdover.
(7) No Assignment or Subleases. You may not assign any part of this Agreement, sublease any portion of the Property, or grant any license or right to use any part of the Property. Any attempted assignment, sublease, or grant without our prior written consent will be void.
(8) Damage to the Property.
(a) You are responsible for leaving the Property (including any personal or other property located at the Property) in the condition it was in when you arrived. You are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals whom you invite to, or otherwise provide access to, the Property, excluding us, the Property Manager, and/or the Home Owner (and the individuals we, the Property Manager,and/or the Home Owner invites to the Property, if applicable).
(b) If a Property Manager or Home Owner claims and provides evidence that you have damaged the Property or any personal or other property at the Property (“Damage Claim”), the Home Owner can seek payment from you through us. You will be given an opportunity to respond to the Damage Claim through us. If you agree to pay the Home Owner, or we determine in our sole discretion that you are responsible for the Damage Claim, we will, after the end of your stay, collect any such sums from you by charging the payment method you provided to us upon making your reservation and/or against the Security Deposit (if applicable) required to cover the Damage Claim. We also reserve the right to otherwise collect payment from you and pursue any remedies available to us in this regard in situations in which you are responsible for a Damage Claim.
(c) You agree to cooperate with and assist us in good faith, and to provide us with such information and take such actions as may be reasonably requested by us, in connection with any Damage Claims or other complaints or claims made by other users, the Property Manager, or the Home Owner relating to (i) the Property or any personal or other property located at the Property, or (ii) a Group Payment Booking. You shall, upon our reasonable request and at no cost to us, participate in mediation or a similar resolution process with us, the Property Manager, and/or the Home Owner, which process will be conducted by us or a third party selected by us or our insurer, with respect to losses for which the Home Owner is requesting payment from us or you. You understand and agree that we may make a claim under your homeowner’s, renter’s or other insurance policy related to any damage or loss that you may have caused, or been responsible for, to any personal or other property (including the Property) of the Home Owner. You agree to cooperate with and assist us in good faith, and to provide us with such information as we may reasonably request, to make a claim under your homeowner’s, renter’s or other insurance policy, including, but not limited to, executing documents and taking such further acts as we may reasonably request to assist us in accomplishing the foregoing.
(9) Prohibited Activities.
(a) You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of our Website and our services. In connection with your use of our Website and our services, you will not and will not assist or enable others to:
(i) breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or these Terms and Conditions or any other of our policies;
(ii) use our Website or Content for any commercial or other purposes that are not expressly permitted by these Terms and Conditions or in a manner that falsely implies our endorsement, partnership or otherwise misleads others as to your affiliation with us;
(iii) copy, store or otherwise access or use any information, including personally identifiable information about any other user, Property Manager, or Home Owner, contained on our Website in any way that is inconsistent with our Privacy Policy or these Terms and Conditions or that otherwise violates the privacy rights of Home Owners or other third parties;
(iv) use our Website in connection with the distribution of unsolicited commercial messages (e.g., “spam”);
(v) unless we explicitly permit otherwise, book any reservation if you will not actually be using the Property yourself;
(vi) contact another user or the Home Owner for any purpose other than asking a question related to your own reservation, or the user’s or Home Owner’s use of our Website, including, but not limited to, recruiting or otherwise soliciting any user to join third-party services, applications or websites, without our prior written approval;
(vii) use our Website to request, make or accept a booking independent of our Website, to circumvent any fees charged by us or for any other reason;
(viii) request, accept or make any payment for any fees associated with your reservation outside of us. If you do so, you acknowledge and agree that you: (1) would be in breach of these Terms and Conditions; (2) accept all risks and responsibility for such payment, and (3) hold us harmless from any liability for such payment;
(ix) discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior;
(x) use, display, mirror or frame our Website or Content, or any individual element within our Website, our name, any of our trademarks, logos or other proprietary information, or the layout and design of any page or form contained on a page in our Website, without our express written consent;
(xi) dilute, tarnish or otherwise harm our brand in any way, including through unauthorized use of Content, registering and/or using Grand Welcome and/or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to our domains, trademarks, taglines, promotional campaigns or Content;
(xii) use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with our Website for any purpose;
(xiii) avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by us or any of our providers or any other third party to protect our Website;
(xiv) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide our Website;
(xv) take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of our Website; or
(xvi) violate or infringe anyone else’s rights or otherwise cause harm to anyone.
(b) You acknowledge that we have no obligation to monitor the access to or use of our Website by any user or Home Owner, or to review, disable access to, or edit any User Content, but have the right to do so to (i) operate, secure and improve our Website (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure users’ compliance with these Terms and Conditions; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to User Content determined to be harmful or objectionable; or (v) as otherwise set forth in these Terms and Conditions. You agree to cooperate with and assist us in good faith, and to provide us with such information and take such actions as we may reasonably request with respect to any investigation undertaken by us or our representatives regarding the use or abuse of our Website.
(c) If you feel that any other user, Property Manager, or Home Owner you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to us by contacting us with your police station and report number (if available). You agree that any report you make will not obligate us to take any action (beyond that required by law, if any).
(10) Guest Rules.
(a) The supply of toiletries and amenities (such as toilet paper, dishwasher detergent, and dish-washing liquid, etc.) is your responsibility. We and the Home Owner are under no obligation to provide such toiletries and amenities.
(b) If the Property is equipped with a telephone or digital television, you may not make long-distance telephone calls or order movie or event programming. You will pay us any long-distance or other telephone toll charges and any movie or event programming charges incurred, together with a 40% surcharge on such charges to cover our administrative costs.
(c) If the Property is equipped with a television, video player, or related or similar electronics, continued functionality, replacement or repair is not guaranteed by us and no refunds will be given for malfunctions of such equipment.
(d) You will not give access to or permit any guests or occupants in the Property other than the individual or individuals specifically identified as “you” in this Agreement.
(e) You assume responsibility for any damages to or theft from the Property, whether by you or by any third party, including but not limited to theft of or damage to towels and linens.
(f) You will not place wood, paper, or any other combustible materials in any gas fireplace.
(g) You will not make any alterations to the Property or its improvements, furniture, equipment, or other furnishings.
(h) A pet fee, the amount of which is specified in your Confirmation Email, is applicable for stays at Properties that are pet-friendly. Pets are not permitted on the Property if the Property is not identified as pet-friendly or, if the Property is identified as pet-friendly, if the requisite pet fee has not been paid.
(i) Smoking is strictly prohibited in or on the Property, or in any common areas near the Property. Violations will result in an automatic $500 fine plus the cost of carpet/upholstery cleaning, and any other damages that occur as a result.
(j) After-hours lockout calls to a locksmith and related expenses incurred are your responsibility.
(k) Grilling is only permitted on grills. Propane refills may be undertaken only by us, provided such refills will occur only during normal business following your request that wedo so. Charcoal may not be placed or burned within any gas grill.
(l) You are responsible for your own vehicle, including (but not limited to) damage or additional wear and tear resulting from coastal driving (if applicable) and related hazards thereto, and towing or other charges. We do not provide towing or roadside assistance reimbursement, regardless of type of the vehicle or road or weather conditions. The host does not accept liability for any inconveniences, delays or your inability to booking in a Unit arising from any temporary or permanent defects or stoppage in supply of water, gas, electricity or plumbing, damage caused by weather, road closures or conditions, construction, natural disasters, disruption or cancellation of your travel, events, conferences or reason for your booking, government orders, pandemics, viruses, illnesses, infestations, water conditions, closings, pollution, acts of God or other reasons beyond our control. No refunds will be given for any delays or cancellations due to such conditions.
(m) Quiet time on any Property is from 9:00 p.m. to 9:00 a.m. If a noise complaint is reported due to your activities, or the activities of any of your guests, on the Property or in common areas near the Property, you will be charged $100 for the first complaint and $200 for each additional complaint.
(n) You must maintain the Property in at least the condition as you received it, including but not limited to:
(i) keeping the Property safe and clean;
(ii) not causing or permitting any unsafe or unsanitary conditions in the area surrounding the Property;
(iii) disposing of all ashes, rubbish, garbage, and other waste in the provided trash receptacles;
(iv) properly securing lids on trash receptacles at all times;
(v) not leaving trash on porches, decks, or any other exterior location;
(vi) not destroying, defacing, damaging, or removing any part of the Property or rendering inoperable any smoke detector.
(o) You must promptly notify us of the need for replacement of or repairs to any stove, fireplace, hot tub, smoke detector, or other appliance or fixture at Property, and any other problems with or at the Property.
(p) We are not responsible for the condition or upkeep, repair, or maintenance of any common areas around the Property.
(q) All non-transient vacation uses (including but not limited to parties, weddings, receptions, and similar events and activities) are strictly prohibited. You will not use the Property or permit the Property to be used in any way that interferes with any other guest’s, tenant’s, or owner’s use and enjoyment of property near to the Property.
(r) You must comply with all other house rules, guest rules provided to you upon your check-in to the property, owners’ association rules, and any other rules and regulations applicable to the Property. All such rules and regulations are a part of this Agreement and are incorporated into this Agreement by reference.
(s) You will comply with all, and will not violate any, federal, state, and local laws and regulations applicable to the Property.
(11) Default. You must (and must cause all other guests and occupants of the Property to) abide by your obligations under this Agreement. If you do not perform any one or more of your obligations under this Agreement, we may (to the fullest extent permitted by law) evict you before the Check-Out Date and retain all payments made by you (except to the extent we may be required by applicable law to refund some or all of the Security Deposit to you). We reserve all other rights and remedies otherwise available to us under at law or in equity.
(12) Indemnification. To the maximum extent permitted by applicable law, you agree to release, defend (at our option), indemnify, and hold us, our other users, the Property Manager, the Home Owner, our and their respective affiliates and subsidiaries, and their respectiveofficers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your breach of this Agreement (including these Terms and Conditions) or our other policies, including but not limited to the guest rules provided to you upon your check-in to the Property, (b) your improper use of our Website or any of our services, (c) your interaction with any user of the Site (including Property Managers or Home Owners), stay at an Accommodation, participation in the Group Payment Service (if applicable), including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, stay, participation or use, (d) our Collection and Remittance of Taxes, (e) your breach of any laws, regulations or third party rights or (f) your or any of your guests’ negligence or willful misconduct. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you and you shall not in any event settle any matter without our written consent. This obligation will survive termination of this Agreement.
(13) Release. In the event that you have a dispute with one or more users, Property Managers, or Home Owners (including, without limitation, any dispute between users regarding any transaction or any User Content) or any Third-Party Service provider or any third party website that may be linked to or from or otherwise interact with our Website, including without limitation any social media site, you hereby agree to release, remise and forever discharge us, each of our affiliates, each of their respective agents, directors, officers, employees, and all other related persons or entities from any and all manner of rights, claims, complaints, demands, causes of action, proceedings, liabilities, obligations, legal fees, costs, and disbursements of any nature whatsoever, whether known or unknown, which now or hereafter arise from, relate to, or are connected with such dispute and/or your use of our Website. If you are a California resident, you waive California Civil Code Section 1542, which says: “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
(14) Miscellaneous.
(a) Liability. Each person renting or occupying the Property is jointly and severally liable under this Agreement, and we may proceed against any one or more of youwithout first proceeding against any other. You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of our Website and Content, your booking of any Listing via our Website, your stay at any Accommodation, participation in the Group Payment Service (if applicable), or any other interaction you have with other users, the Property Manager, or the Home Owner whether in person or online remains with you. Neither we nor any other party involved in creating, producing, or delivering our Website or Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (a) this Agreement, including these Terms and Conditions, (b) from the use of or inability to use our Website or Content, (c) from any communications, interactions or meetings with other users, the Property Manager and/or the Home Owner, or other persons with whom you communicate, interact or meet with as a result of your use of our Website, or (d) from your booking of a Listing, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not we have been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. In no event will our aggregate liability arising out of or in connection with this Agreement, including these Terms and Conditions, and your use of our Website including, but not limited to, from your booking of any Listings via our Website, or from the use of or inability to use our Website or Content and in connection with any Accommodation, Services, the Group Payment Service, or interactions with us, any other user, Property Manager, and/or Home Owner, exceed the amounts you have paid or owe for your reservations in the twelve (12) month period prior to the event giving rise to the liability. The limitations of damages set forth above are fundamental elements of the basis of the bargain between us and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. The foregoing provision does not affect our liability for any liability or damage which cannot be excluded or limited under applicable law.
(b) Integration of Entire Agreement. Except as may be supplemented by additional terms and conditions, policies, guidelines or standards, this Agreement constitutes the final, entire agreement between the Parties pertaining to the subject matter hereof, and supersedes any and all prior oral or written agreements and understandings between us and you pertaining to this Agreement or the subject matter hereof.
(c) Relationship of the Parties. No joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement or your use of our Website.
(d) No Waiver; Amendments. A failure by us to require strict performance of any provision of this Agreement, or to exercise any right or remedy arising because of a breach, is not a waiver of that breach or any other covenant, duty, agreement, or condition. Any extension or waiver by us of any provision in this Agreement will be valid only if set forth in writing signed by us. We reserve the right to modify these Terms and Conditions at any time in accordance with this provision. If we make changes to these Terms and Conditions, we will post the revised Terms and Conditions on our Website and provide you with notice of the modifications by email prior to such revised Terms and Conditions becoming effective. If you disagree with the revised Terms and Conditions, you may terminate this Agreement with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms and Conditions become effective, your continued access to or use of our Website or the Property will constitute acceptance of the revised Terms and Conditions. Except as expressly set forth in these Terms and Conditions, the exercise by either Party of any of its remedies under these Terms and Conditions will be without prejudice to its other remedies under these Terms or otherwise permitted under law. These Terms and Conditions do not and are not intended to confer any rights or remedies upon any person other than the Parties.
(e) Interpretation. No provision of this Agreement may be interpreted for or against any Party on the basis that it drafted such provision, and no presumption or burden of proof may arise disfavoring or favoring any Party because of the authorship of any of the provisions of this Agreement.
(f) Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable in any respect for any reason, the validity, legality, and enforceability of that provision in every other respect and the remaining provisions of this Agreement will not, at the election of the Party for whose benefit the provision exists, be in any way affected or impaired.
(g) Assignment. You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder, sublease any portion of the Property, or grant any license or right to use any part of the Property without our prior written consent. Any attempted assignment, sublease, or grant without our prior written consent will be void and of no effect. We may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at our sole discretion. Your right to terminate this Agreement at any time remains unaffected.
(h) Applicable Law. This Agreement will be governed by the laws of the State in which the Property is located without regard to the choice of law or principles of conflict of law.
(i) Disputes.
(i) Mediation. If a dispute, claim or controversy arising out of or relating to this Agreement or the applicability, breach, termination, validity, enforcement or interpretation thereof, or to the use of our Website, the Services, the Group Payment Service, the Home Owneror other Content, or your use of the Property arises (a “Dispute”), the Parties agree to use good faith to try to resolve the Dispute through an informal negotiation process between the Parties. If the Dispute is unable to be resolved by the Parties’ informal negotiations within 60 days, the Parties must attempt in good faith to settle the dispute by mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute-resolution procedure. Such mediation will take place in the State in which the Property is located.
(ii) Arbitration. The Parties mutually agree that any Dispute which is not resolved through informal negotiations between the Parties or within 90 days after service of a written demand for mediation (which time can be extended with the agreement of both parties inwriting) must be settled by binding arbitration. If there is a dispute about whether this section can be enforced or applies to a Dispute, the Parties agree that the arbitrators will decide that issue.The Parties each agree that the following claims are exceptions to the arbitration provisions set forth in this section and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) any claim related to actual or threatened infringement, misappropriation or violation of a Party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack). The arbitration will be administered by AAA before a single arbitrator in accordance with the Commercial Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules”) then in effect, except as modified here. In order to make the arbitration most convenient to you, we agree that any required arbitration hearing may be conducted, at your option, (w) in the State in which the Property is located; (x) in any other location to which you and we both agree; (y) via phone or video conference; or (z) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrators. The expenses of the arbitration will be shared equally by the parties unless the arbitration determines that the expenses will be assessed in a different way, and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, conducted expeditiously. Both you and Grand Welcome understand that you are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis and neither you nor Grand Welcome will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. To the extent permitted by law, any claim or dispute under this agreement must be filed within one year in an arbitration proceeding, regardless of any statute or law to the contrary. The one-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute is not filed within one year, it is permanently barred. If any other provision of this section is found to be illegal or unenforceable, that provision will be severed, with the remainder of this section remaining in full force and effect.
(j) Jurisdiction. The Parties will bring all actions in law, equity, or otherwise arising under this Agreement (or related to the transactions contemplated in this Agreement) and which are not otherwise required to be arbitrated (if any), exclusively in the federal or state courts sitting in the State in which the Property is located, and in no other jurisdiction or venue. Each Party consents to the venue and personal jurisdiction of such courts. You further agree that personal jurisdiction over you may be effected by service of process by registered or certified mail addressed to the last address that you provided to us.
(k) Text Messaging. By providing your phone number, you agree to receive text messages from Grand Welcome. Message and data rates may apply. Message frequency varies.
(15) Terms and Conditions for Hawaii Properties. The provisions of this Section 15 apply only to Properties located in the State of Hawaii (“Hawaii Properties”), and this Section15 will control over any other provisions in this Agreement which conflict with this Section 15 with respect to Hawaii Properties.
(a) Trust Account. We may place any or all of the funds you pay under this Agreement in an interest-bearing trust account. We may remove any Nonrefundable Reservation Fees, and any other fees or amounts after they are earned from time to time, from such account at any time. The funds may be commingled with the funds of others deposited in that account. Interest that accrues on those funds will be for the benefit of, and will be paid to, us. You will not be responsible for any early-withdrawal penalties.
(b) Service of Process. The name and address of the person who is authorized to act on behalf of the owner of the Property for the purpose of service of process and receiving and receipting for rents, notices, and demands is: Cynthia Krog 75-1029 Henry ST, STE 103. Kailua Kona, HI 96740.
(c) Local Contact. The name and address of the person residing on the island where the Property is located who is designated to act on the Property owner’s behalf is set forth in the Confirmation Email.
(d) Payment Deadlines.
(i) If your Agreement Date is less than 90 days before check-in, you authorize us to charge 100% of the Total Charges at the time you make your reservation to the payment method you provide to us upon making your reservation.
(ii) If your Agreement Date is 90 days or more before your check-in date, you authorize us to charge 30% of the Total Charges at the time you make your reservation to the payment method you provide to us upon making your reservation, and charge the remaining 70% to the payment method you provide to us upon making your reservation 60 days before your Check-In Date (“Hawaii Second-Charge Date”).
(e) Security Deposit. If we propose to retain any amount of the Security Deposit, we will notify you, in writing (unless you wrongfully quit the Property), together with the particulars of and grounds for the retention, including written evidence of the costs of remedying your defaults, such as estimates or invoices for material and services or of the costs of cleaning, such as receipts for supplies and equipment or charges for cleaning services. We will return the Security Deposit (or the portion of the Security Deposit remaining after we have claimed and retained authorized amounts, if any) to you not later than 14 days after the termination of this Agreement. If you cancel your reservation before the Check-In Date, we will return the Security Deposit to you within 14 days after cancellation.
(f) Disputes (Hawaii). With respect to Hawaii Properties, this Section 15(f) will control over Section 14(i) of this Agreement.
(i) Mediation (Hawaii). If a Dispute arises which the Parties cannot settle through negotiation, the Parties will first try in good faith to settle the dispute by mediation administered by Dispute Prevention and Resolution Inc., a Hawaii corporation (“DPR”) before resorting to arbitration, litigation, or some other dispute-resolution procedure. Mediation will take place in Honolulu, Hawaii.
(ii) Arbitration (Hawaii).
(A) Any Dispute which the Parties cannot resolve through mediation with DPR will be submitted to binding arbitration administered by DPR, under the then-current Arbitration Rules, Procedures and Protocols of DPR (“DPR Rules”), including the Deadline-Driven Arbitration Procedures contained in the DPR Rules, to the extent they are consistent with this Section 15(f)(ii). References in this Agreement to the possibility of resolving a Dispute with an action or proceeding other than arbitration are merely meant to express the Parties’ intent to be as inclusive as possible, are not intended to permit resolution of a Dispute other than by arbitration.
(B) A Party may initiate arbitration by giving the other Party written notice of submission of a Dispute to arbitration (“Arbitration Demand”). Upon receipt of an Arbitration Demand, the Parties will use their best efforts to agree upon and retain a single arbitrator from DPR’s panel of neutral arbitrators. If the Parties cannot agree upon and retain a single arbitrator within five days after an Arbitration Demand is received, then the President of DPR will select the arbitrator.
(C) Notwithstanding anything in the DPR Rules to the contrary, the arbitration will be conducted on an expedited basis so that the hearing will take place in Honolulu, Hawaii within 60 days of the receipt of the Arbitration Demand, the hearing will not exceed 10 days, and the arbitrator will issue an award within 30 days of the hearing. The award may include declaratory relief, injunctive relief, or specific performance except as otherwise prohibited by this Agreement and will be binding and non-appealable. Judgment may be entered upon any award made in arbitration by the Circuit Court of the First Circuit of the State of Hawaii as provided by statute, which judgment will not be subject to appeal.
(g) STVR Good Neighbor Policy (Hawaii).
(i) Quiet Hours shall be from 9:00 p.m. to 8:00 a.m. during which time the noise from the STVR shall not unreasonably disturb adjacent neighbors.
(ii) Sound that is audible beyond the property boundaries during non-quiet hours shall not be more excessive than would be otherwise associated with a residential area.
(iii) Guest vehicles shall be parked in the designated onsite parking area.
(iv) The STVR shall not be used for commercial purposes.