This Property Rental Agreement is made by and between the owner, either directly or through its authorized leasing agent (“Owner”) of a vacation rental property (“Property”), the renter of the Property (“Guest”), and RedAwning.com, Inc., a California corporation (“RedAwning”) (each, a “party”, collectively, the “parties”). This Property Rental Agreement and all exhibits, linked pages and attachments referenced below, which by this reference are incorporated herein as though fully set forth, are, together, the “Agreement”. Guest desires to rent the Property from Owner, Owner desires to rent the Property to Guest, and RedAwning desires to facilitate such rental, all upon the terms and conditions set forth in this Agreement.
1. Rental Specifics. Guest and Owner agree to the specific terms of the vacation property rental (“Booking”) set forth on the RedAwning Booking Summary (“Booking Summary”), including without limitation, the Property description, any additional terms referenced or linked from the Property description page, the rental dates, the rental charges, the damage reporting procedure, the cleaning fees, the deposit amounts and total charges, all of which terms are by this reference incorporated into this Agreement as though fully set forth. The terms of the Booking Summary shall control any conflict between the terms of this Agreement and the Booking Summary.
2. General Terms. The following terms shall apply to the Booking:
a. Check-In. Check-In Time is usually 4PM, but please review your check-in instructions for any early check-in options.
b. Check-Out. Check-Out Time is usually 10AM, but please review your check-in instructions for any late check-out options.
c. Payment Processing. Payments of the fees and other charges set forth on the Booking Summary shall be processed by RedAwning as part of the Services. RedAwning charges 50% of the total Booking to hold your reservation and the balance approximately 60 days prior to check-in. For stays booked within 60 days of check-in, RedAwning charges 100% at the time of booking.
d. Cleaning Fees. The stated Cleaning Fees include only the cost of standard cleaning services engaged at the end of Guest’s rental term.
e. Owner Grace Period. Owner may cancel a Booking during the one business day period immediately following Guest’s submittal of the Booking through the Services. This one business day grace period is intended to allow Owners to talk directly and confirm any details with Guests, as well as to address any calendar issues. The vast majority of reservations are accepted without issue.
f. Payments & Cancellations: Cancellations are subject to the Cancellation Policy stated for each reservation. Some properties offer Free Cancellation until a set number of days prior to stay. Other properties have stricter policies depending on the property and other factors related to each destination. The cancellation policy for each property is stated at the time of booking and contained in the rental confirmation. Please check your Booking Summary for any property-specific or date-specific cancellation policies.
Any change to a confirmed Booking must be approved by the Property Manager or Owner. RedAwning will use commercially reasonable efforts to maintain current rental rates on the Property listing page and Booking Summary; provided that in the event of a significant (over 10%) discrepancy between the Booking Summary rental rate and the actual rental rate, the actual rental rate shall control. RedAwning shall notify Guest promptly upon discovery of a rental rate discrepancy and Guest shall be given the choice to either (i) pay the applicable rental rate, or (ii) Book an alternative property. If Guest rejects alternatives (i) and (ii), RedAwning may immediately cancel the Booking by written notice to Guest. In such event, Guest’s sole remedy, and RedAwning’s and Owner’s sole liability, shall be a full refund of any payments collected from Guest as of the date of notice. Upon payment of such refund, neither RedAwning nor Owner shall have any further or additional liability or obligation to Guest, and Guest hereby releases each of RedAwning and Owner from any such liability.
g. Chargebacks: Guest acknowledges and agrees that under the terms of this Agreement certain charges are nonrefundable upon satisfaction of the specified conditions. In the event Guest attempts a chargeback that RedAwning, upon reasonable investigation, concludes is in violation of this Agreement, RedAwning may in its sole discretion dispute such chargeback as a breach of this Agreement through all available means, including without limitation, by third-party debt collection services, in which event RedAwning shall be entitled to recover the cost of collection in addition to any other sums that may be due hereunder.
3. Late Departure: Guest agrees there shall be no holding over or late departure without prior approval. Any unauthorized holding over by Guest shall be subject to a charge of 1 and 1/2 times the daily prorated rent ("Holdover Rate"), plus any additional damages incurred including, but not limited to, the cost of alternative housing for other guests displaced by Guest's holding over.
4. Extra Cleaning: If the condition of the Property following the rental term requires extra cleaning beyond such standard level, or if Guest at any time requests additional cleaning services, Guest shall be solely responsible for the cost of such cleaning, and Guest hereby authorizes and directs RedAwning to affirmatively charge or debit, as the case may be, such amounts from Guest’s charge or debit account on file with RedAwning.
5. No refund shall be given for cancellations due to poor snow conditions, severe weather, road closures, traffic delays, early departures, or illness or injury. RedAwning offers a Travel Insurance option that would cover some of these reasons for cancellation. Please contact our reservations department for information about this option.
6. Utilities/Telephone: Owner is to pay for all utilities, driveway snow removal (if applicable) and hot tub maintenance (if applicable), except long distance telephone charges. Guest may use the telephone for local calls only and should use a credit card or call collect to make any long distance calls. Guest agrees to pay for all long distance telephone charges during their stay and acknowledges that these charges may be levied on their credit card up to two months after check out. Note that phone, Internet, cable, and satellite connections, where available, cannot always be guaranteed, especially in mountain locations, and no refund will be given if they are not functional.
7. Smoking. All Properties are smoke free. No smoking is allowed inside the home, or within ten feet of any structure at the Property, including any garages and sheds. If evidence of smoking is found, Guest will be charged an additional cleaning fee of at least $500 to clean the carpet, upholstery, and drapery.
8. Occupancy. Occupancy may not exceed the number of people included in Guest's Booking. Occupancy calculation includes infants and children. Occupancy also includes any and all guests who visit the property, and no parties or other gatherings which exceed the Occupancy limit shall occur without prior approval of the Owner.
9. Children. Guest agrees to supervise children at all times while using the Property, and to take necessary precautions with children who may wet their beds including utilizing plastic protection sheets or "Pull Ups". Costs to replace mattresses or linens damaged by bed wetting will be charged to the credit card on file. Note: Hot Tubs are not a safe environment for children under 12 at any time. Children must be supervised at all times while using a hot tub or pool.
10. Pets. If the selected Property does not allow Pets, then no pets are allowed inside the home or any other structure at the Property, including any garages or sheds. If evidence of pets is found at a Property which does not allow pets, Guest will be charged an additional cleaning fee of at least $500 to clean the carpet, upholstery, and drapery.
11. Allergies. Guest agrees that they are not entitled to a refund for any allergic reactions from any member of their party due to pollen, animals or environmental conditions.
12. Damage Waiver. As a convenience and benefit to you for booking through RedAwning, Owner hereby agrees to waive and release you from claims for damage, loss or injury ("Unintentional Damage") to the Property interior caused by the unintentional, non-breaching acts or omissions of you or others under your Booking that occurs during your stay. The foregoing is a limited waiver that is strictly conditioned on, and subject to, compliance with the following:
a. Reporting. You must report the Unintentional Damage to Owner or RedAwning promptly upon occurrence and in no event later than forty-eight (48) hours from the end of your Booking. Failure to timely report the Unintentional Damage as required will automatically void the waiver, in which event you will be liable for the entire repair or replacement cost of the Unintentional Damage.
b. Waiver Cap. The actual repair or replacement cost of Unintentional Damage covered by this waiver is limited to, and cannot exceed, three thousand dollars ($3,000) (the "Waiver Cap"). Any repair or replacement costs exceeding the Waiver Cap shall be and remain your sole liability and obligation to pay and perform.
c. Intentional Damage and Breach. Damage that you or others under your Booking (1) intentionally cause, (2) cause by conduct that is in breach of your obligations under this Agreement and/or the Booking Summary, or (3) cause due to the removal of any item(s) of personal property or fixtures from the Property (together "Intentional Damage") is not waived under this Section 12, but shall be and remain your sole liability and obligation to pay and perform.
d. Payment Authorization. You hereby authorize RedAwning to charge your credit card on file with RedAwning for the cost of repair or replacement (1) for any Unintentional Damage exceeding the Waiver Cap; and (2) for all Intentional Damage.
e. You acknowledge and agree that Owner's waiver under this Section 12 is an Owner-provided courtesy and not an insurance policy or a substitute for an insurance policy.
13. Property Complaints.
a. If, on arrival, Guest does not feel the Property has been fairly and accurately represented on the property information page or there is some other issue with the Property, Guest must notify RedAwning within 12 hours of arrival and provide a reasonably accurate description of the non-conforming condition(s). Upon receipt of such notice, and if Owner is unwilling or unable to resolve the issue, RedAwning shall undertake good faith efforts to obtain what RedAwning concludes in its sole reasonable discretion is reasonably appropriate relief for Guest, including by way of example only, sourcing services required to remedy the Property’s non-conforming condition, obtaining a rental fee discount from Owner, or locating alternative local accommodations having features that RedAwning reasonably concludes match or exceed those offered by the Property as originally represented.
b. Guest must promptly report to RedAwning all other complaints or obvious damage to the Property caused by previous guests. Owner, either directly or through its third-party agent, shall make good faith efforts to promptly remedy the condition(s) at issue.
14. Property Unavailability. In the event a Property subject to a Booking is damaged or destroyed by fire or other casualty or otherwise becomes unavailable for use by Guest for any reason whatsoever, including without limitation, changes in rental prices and/or policies or force majeure events, at any time prior to the Check-In date, RedAwning shall promptly undertake commercially reasonable efforts to source an alternative property with characteristics that RedAwning deems to be reasonably similar to the Property for use by Guest pursuant to the terms of the Booking and such additional or other terms as may apply to such alternative property. In the event (a) an alternative property cannot be located or secured for any reason, including without limitation, inventory scarcity, low vacancy rates and other restrictions or limitations, or (b) Guest rejects the alternative property offered by RedAwning, RedAwning may elect in its sole discretion to cancel the Booking, effective immediately upon written notice to Guest. RedAwning shall cause all payments billed to and collected from Guest as of the date of notice to be promptly refunded to Guest in full, and upon payment of such refund, RedAwning and Owner shall each have no other or additional liability or obligation owing to Guest of any kind, which liability and obligations are hereby (i) disclaimed by RedAwning and Owner, and (ii) expressly waived and released by Guest notwithstanding the provisions of Section 1542 of the Civil Code of California, which provides that “[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.”
15. Representations and Warranties.
a. By Guest. Guest represents and warrants to Owner and RedAwning as follows:
i. Guest is at least 25 years old and has full power and authority to enter into this Agreement and perform his/her obligations hereunder without restriction or limitation of any kind.
ii. Guest will abide by all conditions, restrictions and requirements (1) imposed by controlling law; (2) set forth in this Agreement, and (3) posted or provided at the Property or on the grounds of the Property, whether by Owner or by a homeowners association or similar group or body.
iii. Guest will keep all exterior access points to the Property (e.g. doors, ground-floor windows) locked at all times during the rental period when the Property is not occupied by Guest or its guests.
iv. Guest will not do, or allow others to do, anything on or near the Property that could be considered a nuisance to any third party.
v. Guest will not sublet the Property to any third parties.
vi. Guest and its guests will not damage the Property or any appointments, furniture or fixtures in the Property, nor shall Guest and its guests remove any article of personal property from the Property premises. Guest acknowledges and agrees that damage, loss or injury to the Property due to failure by Guest and its guests to abide by these reasonable restrictions shall be subject to remedy through all available legal, equitable and contractual means.
vii. Guest understands that they may be occupying premises in a winter mountain environment and as such have to be responsible for avoiding situations that may cause injuries or falls. Changing weather conditions can create hazardous and icy conditions on and around the Property. Guest agrees to hold harmless the Owner and RedAwning in case of accident or injury sustained while using the Property.
b. By Owner. Owner represents and warrants to Guest and RedAwning as follows:
i. Owner is the owner or authorized leasing agent of the owner of the Property and has full right, power and authority to enter into and perform its obligations under this Agreement.
ii. The rental of the Property as contemplated herein does not violate any applicable laws, rules, regulations, ordinances or contracts to which Owner and/or the Property are bound.
iii. To Owner’s knowledge after due inspection there are no unmarked hazards on the Property of any kind, visible or otherwise, that could cause reasonably foreseeable injury to Guest or Guest’s guests.
iv. The Property contains adequate and operational furnishings and appointments, ordinary wear and tear excepted, suitable for the number of persons the Property sleeps and is otherwise consistent in all material respects with the description of the Property on the Services property information page.
v. The Property is free of pest, rodent and/or insect infestation and other nuisance.
vi. The Property is in clean and useable condition, ordinary wear and tear and use by Guest excepted.
a. Personal Property and Injury. Guest's personal property, including vehicles, are not insured by Owner, RedAwning or any homeowners association against loss or damage due to fire, theft, vandalism, rain, water, criminal or negligent acts of others, or any other cause. Owner and RedAwning do not insure against personal injury to Guest, its invitees or licensees for any reason. Guest agrees to indemnify, defend and hold harmless Owner and RedAwning from all claims, disputes, litigation, judgments, costs and attorney fees resulting from loss, damage or injury to Guest, their invitees or licensees or their personal property.
b. By Guest. Guest shall defend, indemnify and hold harmless each of Owner and RedAwning, and their respective agents, affiliates, subsidiaries, directors, officers, shareholders, employees, assigns and insurers against any claim, action, liability, loss and expense, including reasonable attorneys’ fees and related costs (collectively “Loss”) relating to or arising out of Guest’s and/or its guests’ breach of this Agreement or violation of any applicable federal, state, local or association law, ordinance, rule or regulation (together, “Law”).
c. By Owner. Owner shall defend, indemnify, and hold harmless each of Guest and RedAwning, and their respective agents, affiliates, subsidiaries, directors, officers, shareholders, employees, heirs, personal representatives, assigns and insurers against any Loss relating to or arising out of Owner’s breach of this Agreement or violation of any applicable Law.
17. Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER REDAWNING NOR OWNER MAKES ANY WARRANTIES TO GUEST OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NEITHER REDAWNING NOR OWNER WARRANTS, AND NEITHER SHALL BE LIABLE, TO GUEST OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF REDAWNING’S SERVICES, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND TO PERSON OR PROPERTY ARISING FROM EVENTS BEYOND THE REASONABLE CONTROL OF REDAWNING AND/OR OWNER. IN NO EVENT SHALL EITHER REDAWNING OR OWNER BE LIABLE TO GUEST FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF SAVINGS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EACH OF REDAWNING’S AND OWNER’S MAXIMUM AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY GUEST TO OWNER UNDER THE RENTAL AGREEMENT FACILITATED THROUGH REDAWNING’S SERVICES.
18. Arbitration. In the event of a dispute between the parties arising out of or relating to this Agreement, including with respect to any Bookings or sums billed, collected and/or distributed hereunder, the parties shall first attempt to resolve the dispute through informal good faith negotiations entered into promptly upon the request of a party. In connection with such process, each party shall share all information relating to such matter reasonably requested by the other party. In the event such dispute is not successfully resolved within 30 days of the parties’ initial dispute resolution conversation, the matter shall be submitted to binding arbitration for resolution. Such arbitration shall be conducted by the Berkeley, California offices (or such offices nearest Berkeley) of the Judicial Arbitration and Mediation Services, or its successor (“JAMS”). Arbitration shall be conducted by JAMS in accordance with applicable JAMS rules governing the resolution of commercial disputes, generally, provided that notwithstanding any contrary provision within the JAMS rules, the arbitrator shall determine the rights and obligations of the parties according to the substantive laws of the state of California. The parties shall share equally in the cost of the arbitration subject to the arbitrator’s discretion to allocate such cost among the parties in accordance with equitable considerations. Any award, which may include legal and equitable relief, will be final and binding and judgment may be enforced by any court of competent jurisdiction.
19. Priority; Waiver; Controlling Law; Etc. In the event of any inconsistency between the terms of this Agreement and the Booking Summary, the terms of the Booking Summary shall prevail. Subject to Section 20 below, no modification of any Booking shall be binding unless in writing (email confirmation OK) issued by an authorized representative of RedAwning, Owner and/or Guest, as the case may be, with written, affirmative acceptance and approval of such modification by an authorized representative of the other parties (electronic signature or email confirmation OK). No waiver of any right or obligation under this Agreement shall be binding unless in a writing signed by the party to be bound. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative. Affirmative clicking of (a) the “I agree” checkbox and (b) “Book Now” button on the Booking Summary, or completion of a Booking through any other method or source by Guest shall constitute Guest’s binding agreement to and acceptance of the terms of the Booking, including without limitation, this Agreement. This Agreement shall be governed by the laws of the State of California (without regard to its conflict of law provisions) and, subject to Section 18 hereof, all actions arising from or relating to this Agreement shall be brought exclusively in the state or federal courts situated in Alameda County, California. No terms, provisions or conditions of any email, acknowledgment or other writing or form that Guest may use, or any handwritten changes or notations by Guest on a RedAwning or Owner-provided form shall serve to alter, modify or have any effect on the terms of this Agreement and the parties’ resulting rights and obligations.
20. Modification. RedAwning may modify any of the provisions of this Property Rental Agreement, at any time in its sole discretion, by posting a new Property Rental Agreement on www.RedAwning.com. Unless otherwise provided in the revised Property Rental Agreement, the modified terms shall take effect immediately when posted. RedAwning shall use commercially reasonable efforts to notify Owner and/or Guest in advance of any such modifications, provided it shall remain Owner’s and Guest’s duty to review the Property Rental Agreement from time to time to inform themselves of the provisions and requirements thereof. IF ANY MODIFICATION IS UNACCEPTABLE TO EITHER OWNER OR GUEST, SUCH PARTY’S SOLE AND EXCLUSIVE RECOURSE AND REMEDY IS TO CEASE USE OF THE SERVICES. OWNER’S AND/OR GUEST’S CONTINUED USE OF THE SERVICES FOLLOWING THE MODIFICATION OF THE AGREEMENT SHALL CONSTITUTE SUCH PARTY’S BINDING ACCEPTANCE OF AND AGREEMENT TO THE PROPERTY RENTAL AGREEMENT AS MODIFIED.
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