|The General Terms and Conditions contained herein, as amended from time to time (the “Terms and Conditions”) apply to all parties, including individuals and entities (individually and collectively, the “Owner”), that have entered into a Vacation Rental Services Agreement (the “Agreement”) with Beach Road Luxury Vacations, LLC., a Georgia limited liability company (“Beach Road”) (such agreement, together with these Terms and Conditions, is collectively referred to herein as the “Agreement”). Capitalized terms not otherwise defined herein shall have the respective meanings given to such terms in the Agreement.
1. Owner Representations and Additional Rights and Obligations
1.1. Multiple Owners. If there are multiple owners, the term “Owner” shall apply collectively and individually to each other, and the obligations of each Owner under the Agreement are joint and several
1.2. Representations and Warranties. Owner represents and warrants that: (1) Owner is the lawful owner of the Property; (2) Owner has full authority to enter into the Agreement, and if Owner is a legal entity, that the person signing on the entity’s behalf is fully authorized to bind the entity; (3) Owner’s execution of the Agreement does not conflict with any contractual or legal obligation of Owner to a third party; (4) the physical condition of the Property, including any special features or amenities, is suitable and safe for use as a vacation rental and in compliance with applicable local building, health, and other codes or regulatory requirements; and (5) use of the Property as a vacation rental is not prohibited by applicable law, regulation, deed restriction, or homeowners’ association bylaw or rule. These representations and warranties are continuing. In the event that any of the foregoing representations or warranties is no longer true or correct, Owner will immediately notify Beach Road in writing.
1.3. Rights and Obligations of Ownership. Nothing in the Agreement changes Owner’s title to, or general rights and obligations of ownership in, the Property. Except as expressly provided in the Agreement, Owner is and shall at all times remain fully responsible for all physical, legal, and financial matters pertaining to the Property whether it is rented or not, including responsibility for: the cost of all repairs, maintenance, and replacement of any and all furnishings, fixtures, and equipment necessary to maintain the Property in a suitable condition for rental occupancy; financial matters associated with ownership of the Property; and ensuring that the Property is in compliance with applicable law, and regulation, deed restriction, or homeowners’ association bylaw or rule.
1.4. Guest Privacy. To ensure guest privacy, Owner shall not enter the Property or any immediately adjacent land or associated structures, or permit any other person to do so, without (1) reserving an Owner stay with Beach Road covering the period of access or (2) checking with Beach Road prior to entry. Owner shall not place any camera in the interior of the Property or in any portion of the Property except in an exterior area that is visible from off the premises, such as the front porch, if applicable. Owner is not entitled to any guest-identifying information that may be provided to or accessible by Beach Road, including without limitation full guest names, contact details, or payment information. As between Owner and Beach Road, Beach Road shall have the sole and exclusive right to such guest information.
1.5. Change of Address. To ensure Beach Road is able to reach Owner if necessary and make timely Owner Payments, Owner shall notify Beach Road of any change in Owner’s mailing address, telephone number, email address, or direct deposit information. Such notice shall be sent by email (with acknowledgement of receipt), overnight express delivery service (e.g., Federal Express) or by registered or certified mail (postage prepaid, return receipt requested) to Beach Road. Beach Road shall not be liable for its failure to contact Owner or make Owner Payments when required under the Agreement if Owner has not updated Owner’s contact information.
1.6. Compliance with Law; Licenses and Permits. Owner agrees to abide by all applicable laws, regulations, deed restrictions, association rules, and licensing and permitting requirements applicable to use the Property as a vacation rental. Owner is responsible for obtaining and maintaining any applicable license or permit for the use of the Property as a vacation rental and for payment of all associated fees. Where permitted by law, Beach Road may, but is not required to, act on Owner’s behalf to obtain or renew a license or permit for the Property.
1.7. Existing Reservations.
- Obligation to Honor Existing Reservations. Owner acknowledges that guest
satisfaction is a priority for Beach Road, and that the inability to honor reservations is a significant source of guest dissatisfaction, poor reviews, and demands for compensation Accordingly, Owner agrees to honor all Existing Reservations with a checkout date prior to the Effective Termination Date. “Existing Reservations” are reservations for which Beach Road has received a monetary deposit.
- Liability for Failure to Honor Existing Reservations. If Owner fails or refuses
to honor one or more Existing Reservations for any reason, Beach Road shall attempt to move the reservation to a comparable property. If Beach Road is able to move the reservation to a comparable property, then Owner agrees to be responsible for any actual costs incurred by Beach Road to move the guests (such as, by way of example only, higher rent that is not passed on to the guests). If Beach Road is not able to move the reservation to a comparable property, then Owner agrees to pay Beach Road (1) Beach Road’s lost Management Fee on that reservation, plus (2) any actual costs incurred by Beach Road in connection with cancellation of the reservation.
- Circumstances Outside Owner’s Control. Owner will not be responsible for
payment of the damages prescribed within this section for failure to honor Existing Reservations where such failure is due to factors outside of the Owner’s reasonable control, such as flooding, fire, or the occurrence of a natural disaster or a mandatory evacuation order. If Owner makes an insurance or other third-party compensation claim that leads to recovery of lost rental income on displaced reservations, Owner shall notify Beach Road of such recovery in writing, and Owner will pay or cause to be paid to Beach Road an amount equal to the Management Fee that Beach Road would have received on the lost rental income payment.
2. Beach Road Rights and Obligations
2.1. Guest Fees and Services. In addition to a cleaning fee, Beach Road may charge guests and retain additional fixed or variable fees, such as a booking fee, pet fee, hot tub fee, late check out fee, fees for specific service such as concierge services, or other fees. Beach Road may further collect applicable fees such as resort fees or parking fees from guests on behalf of third parties and remit such fees directly to the third parties.
2.2. Channel Marketing. A Channel may act as merchant of record for certain transactions reserved through the Channel. Owner acknowledges that certain Channels may charge guest fees that will be retained by the Channel (and that will not be shared with Beach Road or Owner). Owner further acknowledges that the presentation of the Property, including but not limited to the breakdown of the total cost of stay as displayed to the end user during checkout, may vary among Channels; and that due to limitations on the ability to present specific line items on some Channels the amount reflected as “rent” on a Channel might include fees, taxes, or other amounts that are not “Rental Proceeds” as defined in the Agreement.
2.3. Guest Refunds. Beach Road may issue full or partial refunds to guests to address guest dissatisfaction where reasonable to do so, as determined by Beach Road in its sole discretion.
2.4. Optional Start Date for Services. If the start date for services under the Agreement is later than the Effective Date, Beach Road will perform the services listed in the Agreement beginning on the date that the Property goes live on the Beach Road’s website, or on such other date as Beach Road and Owner may agree in writing (the “Start Date”); provided, however, that Beach Road may prepare to perform such services beginning on the Effective Date.
2.5. Out-of-Order Status. Beach Road may place the Property in “out-of-order” status at any time, for any cause that Beach Road in its sole discretion believes could materially affect the quality or safety of a guest’s stay. In no event will Beach Road be liable for any losses to Owner related to the Property being placed in “out-of-order” status.
2.6. Emergency Repairs. A repair is an “Emergency Repair” if Beach Road in its sole discretion deems the repair to be necessary either to (1) protect the Property or its contents from damage or destruction; (2) protect the safety and welfare of a guest while staying at the Property; or (3) return the Property to rentable condition during or in advance of a guest’s stay. When an Emergency Repair is expected to exceed five hundred $500.00, and to the extent reasonable under the circumstances, Beach Road will attempt to contact Owner prior to incurring expenses for an Emergency Repair.
3. Definition of Rental Proceeds. For purposes of the Agreement, “Rental Proceeds” means:
3.1. Rental Proceeds for Beach Road Bookings. For reservations booked through www.beachroadluxuryvacations.com or by phone through Beach Road reservation agents, the “Rental Proceeds” for each reservation shall be the total rent paid for the period during which the Property was occupied pursuant to the reservation.
3.2. Rental Proceeds for Channel Bookings. For reservations booked through a Channel, the “Rental Proceeds” for each reservation shall be the total rent paid for the period during which the Property was occupied pursuant to the reservation, less fees, charges, or Commissions imposed by the Channel, if any.
3.3. Rental Proceeds Limited to Rent. For purposes of clarity, Rental Proceeds do not include lodging, sales, or other applicable taxes, cleaning fees, other guest or third-party fees, or any other fixed or variable charges, fees or amounts other than rent, except as the Parties may agree in writing.
4. Change in Law. If any state, country, city or other government or association statute, rule, or regulation prohibits the use of the Property as a vacation rental as contemplated by the Agreement or makes such use economically prohibitive, Beach Road may terminate the Agreement immediately and neither party shall be obligated to honor Existing Reservations.
5. Indemnification. Owner shall indemnify, defend, and hold harmless Beach Road, its affiliates, successors and assigns, and each of their respective officers, directors, employees, owners, and agents (each a “Beach Road Party” and collectively, the “Beach Road Parties”) for, from, and against any and all claims, suits, demands, actions or other proceedings, and any and all losses, liabilities, damages, costs or expenses of any kind (specifically including, without limitation, reasonable legal and accounting fees) (collectively “Claims”), arising from or relating to property damage or injury to persons (including death) by reason of any cause whatsoever either (1) occurring in or about the Property or (2) resulting from actions taken under the express or implied direction of Owner. Notwithstanding the foregoing obligation, Owner is not required to indemnify, defend, or hold harmless any Beach Road Party with respect to any Claims solely and directly caused by the Beach Road Party’s gross negligence, intentional misconduct, or fraud.
6. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO CASE SHALL ANY BEACH ROAD PARTY BE LIABLE TO OWNER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS) OR FOR ANY OTHER DAMAGES THAT ARE NOT DIRECT ECONOMIC DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY, EMOTIONAL DISTERSS OR DAMAGE TO PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER BASED ON A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF ANY BEACH ROAD PARTY HAS BEEN ADVISED OR OTHERWISE HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE BEACH ROAD PARTIES’ LIABILITY TO OWNER FOR BREACH OF CONTRACT OR NEGLIGENCE, SHAL NOT EXCEED, IN THE AGGREGATE, THE TOTAL MANAGEMENT FEE RECEIVED BY BEACH ROAD UNDER THE AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
7.1. Governing Law. The Agreement will be construed in accordance with and governed by the substantive law of Georgia
7.2. Dispute Resolution. The parties agree to resolve any dispute arising out of or relating in any way to the Agreement as follows:
- Mediation. If the dispute is not settled by negotiation, the parties agree
first to try to settle the dispute by mediation within 30 days of either party providing written notice of the dispute, such mediation to be administered by the American Arbitration Association (“AAA”) under its Commercial Mediation procedures. In the event the parties are unable to agree on a mediator, AAA shall appoint a mediator.
- Arbitration. If mediation is unsuccessful, the dispute will be resolved by
Binding arbitration rather than in court, such arbitration to be conducted by the AAA under its Commercial Arbitration Rules before a single, independent arbitrator. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules. To begin an arbitration, a party must send a letter to the other party requesting arbitration and describing the claim. If Beach Road requests arbitration, it will send the letter to Owner’s most recent address in Beach Road’s records. If Owner requests arbitration, it will send the letter to Beach Road’s registered agent in the state in which the Property is located.
- Place of Mediation or Arbitration. The mediation or arbitration shall take
place in Chatham County in the state of Georgia, or in such other location as Beach Road and Owner may mutually agree.
- Exceptions to Mediation and Arbitration Requirement. As the only
exception to the agreement to submit all disputes to mediation and binding arbitration as provided herein, Beach Road and Owner both retain the right to pursue: (1) in small claims court in the county in which the Property is located any claim that is within that court’s jurisdiction, and the parties consent to the personal jurisdiction and venue of such court; and (2) a suit in any court with jurisdiction to enjoin (whether by temporary, preliminary, or permanent injunctive relief) infringement or other misuse of intellectual property rights.
- Class Action and Jury Trial Waiver. THE PARTIES AGREE THAT ANY DISPUTE RESOLUTION PROCEEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL.
7.3. Assignment. Owner shall not assign the Agreement or any of its rights thereunder or delegate any of its obligations thereunder without the prior written consent of Beach Road, which consent shall not be unreasonably withheld or delayed. Beach Road may freely assign the Agreement or any of its rights thereunder or delegate any of its duties or other interests in the Agreement at any time. Any purported assignment or delegation in violation of this Section shall be null and void.
7.4. Signatures. A signature delivered by facsimile or other electronic means, a digital signature (e.g., DocuSign), or an electronic manifestation of assent (such as clicking a box to agree) shall have the same force and effect as an original signature. The Agreement may be executed in one or more counterparts or in different formats, each of which shall be deemed to be an original, and all of which together shall constitute one and the same agreement.
7.5. Severability. If any portion of the Agreement is held invalid in any jurisdiction: (1) such holding shall not affect the validity of that portion in any other jurisdiction; (2) the validity of the remaining portions shall not be affected; and (3) to the greatest extent reasonable and possible, the intent of the parties hereto with respect to their rights and obligations under the Agreement (including with reference to the parts deemed invalid) will be given full effect.
7.6. Waiver. Any failure by Beach Road to enforce any provision of the Agreement shall not be construed as a waiver of future enforcement of that provision or of any of Beach Road’s rights and privileges under the Agreement.
7.8. Intellectual Property. All photographs, text, and other marketing materials Beach Road creates pursuant to the Agreement (and all copyrights and other intellectual property rights therein) are, and shall at all times remain, the sole and exclusive property of Beach Road. If Owner holds the copyright or other intellectual property right in any marketing materials for the Property, Owner grants Beach Road a limited license for the purpose of performing the vacation rental services hereunder.
7.9. Force Majeure; Effect.
- Definition of Force Majeure. “Force Majeure” is any event or condition
beyond the control of the parties, including but not limited to acts of God; natural disasters such as earthquakes, fires, floods, volcanic eruptions, and storms; civil or military disturbances, riots, acts of terrorism, and acts of war (whether declared or not); sabotage; epidemic; accident; voluntary or involuntary compliance with any regulation, law, order or declaration of any government or civil or military authority, including a declaration of emergency or an evacuation, quarantine, or stay at home order; strike, lock-out, or other labor dispute; interruption, loss or malfunction of utility transportation, internet or telephone communication service; and inability to obtain labor, material, equipment or transportation.
- Effect of Force Majeure. Each Party shall be excused from a failure to
perform any of its obligations under the Agreement, and shall not be liable to the other Party for any costs or damages due to delay in performance or failure to perform, to the extent that the performance is prevented or made economically prohibitive by Force Majeure. Excuse from performance and liability shall continue so long as the Force Majeure continues. The Party whose performance is affected by Force Majeure shall promptly notify the other Party of the failure, shall advise the other Party of the anticipated duration of the Force Majeure and any actions being taken to minimize its effect, and where possible shall take reasonable efforts to remove the event or condition constituting Force Majeure.
7.10. Survival of Terms. Part II sections 1.7 (Existing Reservations), 5 (Indemnification), 6 (Limitation of Liability), 7.1 (Governing Law), and 7.2 (Dispute Resolution), and all other terms that by their nature should logically survive termination of the Agreement, shall continue in force and effect after termination.