Last Revised on December 4, 2019
LISTING SERVICES AGREEMENT FOR MULTIFAMILY PROPERTIES
This Listing ServicesAgreement for Multifamily Properties (“Agreement”) is entered into by and among Apartment Jet, Inc., and Pillow Global, Inc. each with their principal places of business at 11800 Domain Blvd #300, Austin, TX78758 (both collectively, “Company”); and the multifamily building owner or manager engaging Company for its services (such owner or manager, “Customer”). This Agreement will take effect on the date of last signature on the related Schedule (the “Effective Date”).
A. Company provides services to multifamily building owners and managers to facilitate the advertisement, booking, and fulfillment of vacation and short-term rentals of units in their properties;
B. Customer owns or manages multifamily properties and desires to use Company’s services, subject to the following terms and conditions.
Therefore, the parties agree as follows:
1. Services. In exchange for all applicable payments and fees, and subject to Customer’s compliance with this Agreement and all incorporated terms and conditions, Company will provide Customer certain professional Services (defined below) including access to the applicable Company website (the “Portal”). Through the Portal, Customer and its authorized users can manage and monitor the short-term rental of units in Customer’s properties (each unique unit, a “Unit”) on travel platforms like HomeAway.com/vrbo.com and other similar third-party travel platforms (each a “Platform”),each as supported from time to time. In addition, either in connection with Portal access or as separately purchased from Company, Company helps with aspects of the advertising, booking, and managing of the short-term-rental of Units (each Company service, a “Service,” and collectively, “Services”).
Unless otherwise agreed in writing, the Services are not provided for any set term, but instead are offered on a transaction by transaction basis subject to the terms of this Agreement.
Customer will compensate Company for the Services in accordance with the applicable payments as set forth below and in accordance with any and all applicable service package schedules (each, a “Schedule”), statements, or confirmations issued by Company to Customer with respect to such Services.
2. Compensation for Services. Some services are provided on a percentage fee basis, while other products or services may be provided on a set-fee basis or as otherwise described in the Schedule. For the purposes of all sales made on a percentage fee basis, the applicable percentage is applied to the Net Amount (defined below) which reflects, in part, the fact that Company facilitates the booking of Units through Platforms that separately charge for their own services. The “NetAmount” is equal to the amount paid by a traveler on a Platform with respect to the Unit, less: (a) all amounts due to a Platform, (b) any fees or deposits charged to the traveler and supported by the Portal, (c) any separate non-percentage based fees owed to Company in connection with the Short-Term Sublease, and (d) any applicable taxes (whether withheld by Platform or Company or not withheld at all). Customer acknowledges that amounts so excluded generally are not owed to the Customer and authorizes Company to direct payments of any such amounts as appropriate in its sole discretion, and further agrees that the Company’s method and means of calculating the Net Amount will be dispositive.
All payments to Customer will be due only after Company has received the Net Amount from the applicable Platform and such amounts are no longer subject to any reversals (including, for example amounts related to related refunds). Company may offset any amounts owed to it by Customer against any amounts to be paid to Customer. Company may also charge an additional fee to Customer for cancelled bookings. Company will separately communicate the current amount of cancellation fees to Customer from time to time.
3. Customer Obligations. Customer agrees to the following commitments which it acknowledges are necessary prerequisites for Company to provide the Services:
(a) For Units that are occupied by Customer tenants (each a “Resident”) and for which Customer elects to use Company Services, Customer will enter lease addendums in a form approved by Company that allow Residents to rent their Unit for short term stays using Company’s Services (each a “Lease Addendum”). In each Lease Addendum, Resident will grant Company the authority to advertise and facilitate the rental of Resident’s Unit on Platforms and will authorize Company to pay Resident the Net Amount less: (i) any amounts due to Company under this or any other Agreement (including any owed with respect to additional Company Services) and (ii) any other amounts due to Customer related to the Unit rental. The Lease Addendum shall also obligate each Resident to manage all other aspects of their Unit rental (subject to Company’s right to increase the advertised rental amount) and to comply with all applicable laws and regulations.
(b) For all Units that are unoccupied and for which Customer elects to use Company Services, Customer hereby authorizes Company to advertise and rent Units on Platforms. Otherwise, Customer agrees to manage all other aspects of the Unit rental (subject to Company’s right to increase the advertised rental amount), and to comply with all applicable laws and regulations. Customer authorizes Company to undertake any aspects of such rental management as Company determines is necessary to provide the Services, including communicating with travelers on Customer’s behalf.
(c) Customer will provide Company with all relevant and up to date information necessary for Company to provide Services, including all banking and payment information requested by Company. Otherwise, Customer will cooperate with Company and will promptly provide all reasonable assistance necessary to accomplish the foregoing and to allow Company to provide the Services.
4. Intellectual Property. Company exclusively owns and will retain all rights in and to its intellectual property, including its trademarks, software, Portal, Services content, and associated data (whether previously existing or subsequently generated in connection with performance of the Services, whether aggregated or not); and Company will be the sole and exclusive owner of any and all new intellectual property that may result from the Services hereunder or any related development work. Nothing in this Agreement is intended to convey any such rights to Customer, except for those limited rights and licenses necessary to carry out the express purpose and intent of this Agreement, and unless otherwise revoked by Company, all such rights will automatically terminate upon termination of this Agreement or upon completion of any related outstanding Services.
Likewise, for the term of this Agreement, Customer grants to Company a non-exclusive, royalty-free license to access and use any intellectual property belonging toor used by Customer, to the extent such access or use is necessary to allow for performance of the Services, or otherwise carry out Company’s obligations under this Agreement. In addition to the foregoing, for the term of this Agreement, Customer grants to Company an exclusive, royalty-free license to all Unit listing content (other than reviews), including photographs, and authorizes Company to monitor and enforce any violation of such exclusive license. Customer represents and warrants that it has obtained, and will maintain, all necessary rights, licenses, and permissions to effectuate the above.
5. Additional Terms & Conditions; PrivacyPolicies. This Agreement incorporates by reference and includes each Portal’s respective Terms and Conditions and relatedPrivacy Policies, in the respective forms in which they are posted on thePortals (“Portal Terms”), which can be found at here and here. Customer agrees to all such Portal Terms in effect on the Effective Date and understands and acknowledges that the Portal Terms are subject to change from time to time. Company will provide notice to Customer of any material changes to the Portal Terms via the Portal or otherwise.
6. Representations, Warranties, and Covenants. Customer represents, warrants, and covenants as follows:
(a) Customer has and will maintain all necessary authority to enter into this Agreement, to receive the Services, and to perform its obligations hereunder. Such authority includes all relevant authorizations, rights, consents, licenses, or other legal requirements necessary to do each of the following and to grant Company the right to do the same: (i) advertise the relevant Units (ii)use all data and information comprising or relating to the Units or its listing content, including photographs, descriptions, brand names, trademarks, and other content and identifying information, (iii) offer, manage, and accept traveler bookings for the Units, and all associated services and amenities;
(b) The use, reproduction, transmission, and republishing of material and information related to the Units and the activities contemplated by this Agreement—regardless of medium or mode of transmission of such information—will not violate any law, rule, or regulation, and will not infringe the intellectual-property, privacy, or other rights of any traveler or other third party;
c) Customer may receive or have access to personal data relating to Company’s, or its affiliates’, users and will maintain all such personal data in the strictest confidence and in full compliance with all applicable laws, regulations, and directives relating to privacy, security, data-protection, and the safeguarding, disclosure, and handling of such information. Customer will ensure implementation and maintenance of administrative, physical, and technical safeguards that are no less stringent than those accepted as standard industry practices;
(d) Customers’ activities under this Agreement will be undertaken in full compliance with U.S. Export laws and applicable regional and national trade regulations. In the event of a breach or violation Customer shall notify Company immediately and will take all actions necessary to promptly deliver all requisite notices and rectify the breach or violation; and
(e) Each party (the “Indemnifying Party”) will indemnify, defend, and hold harmless the other party (the “Indemnified Party”) from and against any and all costs and expenses arising or related to any loss, liability, judgment, claim, investigation, lawsuit or other proceeding asserted against the Indemnified Party by any third-party (“Claims”), that theIndemnified Party or any of its agents or representatives may incur that relate to or arise out of any breach of this Agreement by Indemnifying Party, and only to the extent that such costs and expenses are not due to the Indemnified Party’s gross negligence or willful misconduct. The Indemnified Party will give prompt written notice to the Indemnifying Party of any event potentially giving rise to Claim, provided that any failure will not relieve the Indemnifying Party of any liability except to the extent that it has been materially prejudiced by such failure. The Indemnified Party will also grant the Indemnifying Party sole control of the defense or settlement of the Claim except to the extent that settlement would involve an admission of wrong doing by, or would result in continuing liability for the Claim on, the Indemnified Party. The Indemnified Party will, at the Indemnifying Party’s expense, reasonably cooperate with the Indemnifying Party in the provision of any information or assistance reasonably requested by the Indemnifying Party.
7. Disclaimer of Warranties & Limitation of Liability. THE SERVICES AND ANY RELATED THIRD-PARTY OFFERINGS (INCLUDING ANY BACKGROUND CHECKS) ARE PROVIDED ON AN “ASIS” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, COVENANTS, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH REGARD TOTHE SERVICES OR THIRD PARTY OFFERINGS; AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AS TO SATISFACTORY QUALITY, ACCURACY, PERFORMANCE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE PRACTICE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE PROVIDED ERROR FREE OR UNINTERRUPTED.COMPANY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE FEES THAT IT HAS RECEIVED AND RETAINED UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ARISES. MOREOVER, COMPANY WILL HAVE NO LIABILITY FORANY AMOUNT RELATING TO: INJURY OR DEATH, PROPERTY DAMAGE, TENANCY CLAIMS,CANCELLATIONS, FAILURE BY ANY OTHER PARTY TO MAKE A PAYMENT, OR PRIVACY CLAIMS.IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL,PUNITIVE, OR SPECIAL DAMAGES, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY IS NOT RESPONSIBLE FOR CUSTOMER OR RESIDENT COMPLIANCE WITH ANY LAWS. COMPANY HAS NO CONTROL OVER, AND IS NOT RESPONSIBLE FOR, THE CONDUCT OF RESIDENT OR TRAVELERS WHO RENT A UNIT. COMPANY DISCLAIMS ANY LIABILITY RELATED TOTHE FOREGOING TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8. Term, Modification and Termination
(a) Term and Modification. This Agreement will begin on the Effective Date and will continue until terminated by either party in accordance with this Agreement. Company may amend this Agreement upon 60-days’ notice. All subsequent Services provided hereunder will be governed by, and subject to, the Agreement as amended. Notwithstanding the foregoing, Company may modify the pricing for Services with at least 15-days’ prior written notice.
(b) Termination for Breach. In case of a breach of any material obligation under this Agreement, the non-breaching party shall notify the breaching party of the nature and details of the alleged breach, and, except where no cure would be reasonably practicable, the breaching party will have 30-days to cure such breach. If a breach otherwise capable of being cured is not cured at the conclusion of the 30-day period, the Agreement will then terminate immediately with respect to all associated Services, or in its entirety.
(c) Termination for Convenience. Either party may terminate this Agreement for convenience upon 30-days’ written notice. For the avoidance of doubt, no such termination of this Agreement will terminate any other agreements between Customer and Company or any of its affiliates. In addition, Company may immediately suspend or terminate Customer’s Services (or any parts thereof) for any reason, including as reasonably necessary to prevent damage or liability resulting from Customer’s breach.
(d) Effect of Termination. Following any termination of this Agreement, all Customer’s right to, and use of Services will cease. Not withstanding the foregoing, termination does not affect either party’s respective rights and obligations under this Agreement with respect rental transactions underlying any prior Services that were in process before such termination, including for instance any “in flight” bookings which have not been completed.
(e) Survival. Sections 2, 6(c),6(d), 6(e), 7, 8(d), 9, and 10 will survive termination or expiration of this Agreement, except where otherwise provided.
9. Taxes. Customer is responsible for any sales, use, value-added, or other governmental taxes, fees, or duties ("Taxes") due with respect to the purchase and use of the Services or any related transactions.
In addition, Customer authorizes Company to collect and remit applicable Taxes (or authorize the Platform to do so) if Company determines that it has a duty to collect taxes, and if it otherwise offers todo so as a part of the Services. Upon request, Customer will provide documentation to Company to substantiate Customer’s registration with and/or remittance of Taxes to any applicable governmental authority or to provide such other information or documentation as Company may request to comply with Tax obligations.
(a) Independent Contractors. Company and Customer are independent contractors, and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, franchise, representative, or employment relationship between the parties. None of the foregoing shall be construed as limiting Company’s ability to enter into agreements with Platforms on Customer’s behalf.
(b) Notices. Notices to the other party may be made by express mail, courier, or email delivered to the respective addresses provided in the Schedule, and notice will be effective on the date receipt is confirmed. However, if Customer provides notice relating to any legal dispute or claim relating to an alleged breach of this Agreement, Customer will send a copy of the notice via express mail or courier to the address ofCompany set forth above, with the heading “Attention: Legal Department.”Notwithstanding any of the foregoing, notices relating to any amendments to this Agreement pursuant to Section 8(a) may be provided through the Portal and will be effective immediately upon publication.
(c) EntireAgreement. This Agreement, along with all Schedules, statements, and confirmations related to the Services, and the incorporated Portal Terms, comprise the entire agreement between the parties relating to its subject matter. In case of a conflict between any provision of this Agreement and any other documents, the provisions set forth in theAgreement shall prevail. If Customer previously entered into any similar agreement with Company, this Agreement will automatically replace and supersede any and all such prior agreements in its or their entirety, as of the Effective Date. Except as expressly set forth in this Agreement, no amendment or modification to this Agreement will become effective unless made in writing and signed by an authorized representative of each of the parties.
(d) Severability; Waiver; Headings. If any element of this Agreement is found to be invalid or unenforceable by any court of competent jurisdiction, all other provisions will continue in full force and effect and will remain binding on the parties. No failure to assert a breach or to enforce any right or obligation under this Agreement shall be deemed a waiver of any associated provision or of any such right or obligation of that party in the future. Headings in this Agreement are for reference only and will not limit the scope or extent of the respective provisions.
(e) Expenses. Unless otherwise expressly provided in the Agreement, all costs and expenses incurred in connection with the Agreement and in carrying out the transactions contemplated hereby will be the obligation of the party incurring such cost or expense.
(f) Assignment. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Neither this Agreement nor any right, license, privilege or obligation provided herein may be assigned or transferred by Customer without Company's prior written consent and any attempted assignment or transfer without such consent is void.
(g) Force Majeure. Except for Customer’s payment obligations, neither party will be responsible for any delays, errors, failures to perform, interruptions or disruptions caused by or resulting from any act, omission or condition beyond its reasonable control, whether or not foreseeable or identified, including without limitation acts of God, strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disasters or the failure of the other party’s or any third party's hardware, software or communications equipment or facilities.
(h) Venue & Applicable Law. This Agreement is governed by and shall be construed in accordance with the laws of the state of Texas, without regard to its choice-of-law principles. Customer irrevocably agrees that any cause of action Customer may submit in connection with this Agreement or any of the Services will be filed in the courts located in Travis County, Texas, which Customer acknowledges will be the sole and exclusive forum and venue for any legal dispute between Customer and Company.