These Terms & Conditions (“Terms & Conditions” or “Agreement”) represent a legally binding agreement between you (“you” or “Owner”) and JZ Vacation Rentals LLC, a Missouri limited liability company (“JZ”, “Company”, “we”, or “us”), and shall govern all dealings between you and JZ, in addition to the terms and conditions set forth in the Property Management and Leasing Agreement, or any other agreement (including Invoice(s)) entered into between Owner and JZ (“Ancillary Agreements”).
The Terms & Conditions are electronically published at (https://jzvacationrentals.com/terms-and-conditions/) and can be amended by JZ from time to time, without notice to the Owner. In the event of any conflict between the Terms & Conditions and any Ancillary Agreements, the Terms & Conditions shall control. Any reference to “Agreement” shall mean and refer to the Terms & Conditions AND any Ancillary Agreements executed by JZ and Owner.
Capitalized terms shall have the meaning set forth herein or in the definitions section per Appendix A. Capitalized terms undefined herein, shall have the meaning set forth in the Ancillary Agreements.
The owner agrees to notify all parties acquiring any interest in the Property of the terms and conditions in any Ancillary Agreement and these Terms & Conditions.
APPOINTMENT AND COMPENSATION STRUCTURE
Appointment: By executing the Property Management and Leasing Agreement, the Owner hereby appoints and engages JZ as the exclusive property manager and renting broker for the Property, and JZ hereby accepts such appointment and engagement upon the terms and conditions as contained in this Agreement. As used herein, “Guest” or “Guests” shall refer to one or more persons occupying the Property pursuant to a rental agreement between JZ and Guest.
Property Rental Requirements. JZ markets its business model as a premier vacation rental listing and management firm and to meet that expectation JZ exclusively lists and manages properties on its Listing Site that meet the 150 point property inspection as set forth on Exhibit A (the “Brand Standard”). Owner agrees and acknowledges that JZ will only list a Property for rent on its Listing Site if the Property is at all times compliant with the Brand Standard, and if Fixed Rate Compensation is in effect, Owner shall only be entitled to Owner Net Income if the Property is compliant with the Brand Standard. Whether or not the Property is Brand Standard compliant is at the sole discretion of JZ.
BRAND STANDARD AND DESIGN
Initial Consultation. To ensure Brand Standard compliance JZ shall perform an inspection of the Property, whereby Owner shall provide pictures and live video of the Property if requested by JZ. Within seven (7) days after completion of the inspection, JZ shall provide to Owner a design consultation (“Initial Consultation”), free of charge. The Initial Consultation shall: (i) identify specific features of the Property not compliant with the Brand Standard; (ii) provide instructions on modifications to the Property to ensure compliance with the Brand Standard; (iii) offer replacement options for furniture, fixtures, appliances, pictures and framing, lighting, electronics, or other design features requiring modification to meet the Brand Standard (“Modifications”); and (iv) include an estimated invoice for the Modifications offered by JZ. Owner is not required, but is strongly encouraged to utilize JZ for selection and purchase of Modifications, since Modifications must be approved by both JZ and Owner, and Owner agrees and acknowledges that JZ, in its sole discretion, shall determine if a Property is compliant with the Brand Standard and is qualified for placement on the Listing Site.
Design Revisions. Following the Initial Consultation, JZ will provide two (2) further design consultation revisions (each, a “Revision” and collectively “Revisions”) for no cost to Owner; however, following the two (2) Revisions, JZ will charge Owner a design fee of Sixty Dollars ($60) per hour for further design consultation (“Design Fee”). JZ shall notify Owner prior to initiation of each Revision and activation of the Design Fee. Once the hourly Design Fee is activated Owner agrees to pay the Design Fee, either by invoice or by setoff against Gross Rental Income (if Non-Fixed Rate Compensation) or Owner Net Income (if Fixed Rate Compensation), at JZ’s sole discretion.
Upon written request of Owner, or upon Owner approval following JZ’s recommendation to meet the Brand Standard, JZ shall, at Owner’s expense, make, or cause to be made, all required capital improvements, replacements or repairs to the Property (“Capital Improvements”), and for such management of the Capital Improvements, JZ shall be paid the Construction Management Fee set forth below in Section 36 or 37. Notwithstanding any of the foregoing, the parties agree that JZ has no right of exclusivity with regard to the provision of construction management services, and the Owner may hire any third party to provide such services, in which case JZ agrees to coordinate and cooperate with such third party.
With respect to the purchase and installation of any capital item or the making of any capital repair, JZ shall recommend that Owner purchase such items or make such repairs at such times as JZ determines such purchase or repair is necessary or desirable. The Owner may arrange to purchase and install such capital item or make such capital repair itself or may authorize JZ to do so, subject to the terms of this Agreement. The Owner is not required but is strongly encouraged to utilize JZ for providing Capital Improvements since Capital Improvements must be approved by both JZ and Owner, and Owner agrees and acknowledges that JZ, in its sole discretion, shall determine if a Property is compliant with the Brand Standard and is qualified for placement on the Listing Site.
RENTAL AND MANAGEMENT SERVICES
Owner and JZ agree that the Property shall be listed by Owner with JZ on an exclusive right to rent basis such that JZ has the sole and exclusive right to rent the Property via its Listing Site and, except as set forth herein, Owner shall at no time during the Term accept any form of consideration for rental or use of the Property.
Owner acknowledges that it currently does not have a written, unexpired, Exclusive Agency or Exclusive Right to Lease Agreement or has entered into any similar exclusive renting or leasing agreement regarding the Property with any other broker or third party.
JZ shall list the Property for rent on its Listing Site at all times during the Term that: (i) the Property is compliant with the Brand Standard; (ii) Owner is not in breach of this Agreement; and (iii) Owner is current on all payments due to JZ pursuant to this Agreement.
JZ shall charge a fair, reasonable and competitive rent for the Property to maximize the rental receipts for the Property, in JZ’s business judgment and based on its rental price adjustment software, allowing for the Property’s class and atmosphere, the size and quality of the Property and the Property’s proximity to recreational facilities and other amenities and general market conditions.
JZ reserves the right to establish changes or eliminate minimum lengths of stay, as it deems necessary to maximize property income.
Management. During the Term of the Agreement and so long as Owner’s Property is compliant with the Brand Standard (in JZ’s sole discretion), JZ shall provide Owner with property management services as described in this Agreement.
JZ will furnish to Owner a monthly statement and remittance of Owner Net Income and itemization of fees and expenses relating to the Property for the preceding month by the tenth (10th) day of each month (“Fee Invoice”).
The Owner authorizes JZ to advertise the Property in such a manner as may be appropriate, in JZ’s sole discretion, including the right to photograph the Property for use in the Listing Site.
Owner authorizes and JZ agrees to make or cause to be made any repairs, to purchase necessary supplies, to provide for all negotiating and contractual arrangements by suppliers or other independent contractors for all improvements, maintenance or repair services deemed necessary by JZ to comply with applicable building housing, health codes, and the Brand Standard, and to determine that such services were performed in a proper and prescribed manner. JZ shall provide the Owner with a monthly itemized list of such required supplies, repairs, and maintenance and include the same on the Fee Invoice.
JZ shall be responsible for the cleaning of the Property to the extent deemed necessary by JZ prior to and at the conclusion of each Guest’s occupancy, which shall be an expense chargeable to Guests.
Owner agrees and acknowledges that JZ shall have the right to rebate rents and other fees collected on behalf of Guests and/or terminate any rental agreement and refund any payments made by the Guests if, in JZ’s reasonable opinion, the Property is not in fit and habitable condition or is not compliant with the Brand Standard at the time the Guest is to begin occupancy, or negotiate partial refunds with the Guest if, in JZ’s reasonable opinion, the Guest’s use and enjoyment of the Property has been or will be materially and adversely affected as a result of a defect in the condition of the Property, or non-compliance with the Brand Standard, that cannot be promptly repaired or replaced in a timely manner. In the event that JZ refunds any of the Gross Rental Income to a Guest due to fault of Owner, JZ may set off against Owner Net Income: (i) the full amount of the refund (in Fixed Rate Compensation structure); or (ii) the full amount of the Management Fee (in Non-Fixed Rate Compensation) as if Guest paid full rental amount.
Owner agrees that any legal notices or institution of eviction or damage proceedings against Guests through the courts or otherwise must be taken by the Owner individually or, with the permission of Owner, JZ shall hire an attorney to perform the eviction or other legal proceedings. Costs and attorney fees to evict Guests or otherwise will be paid by Owner in advance and the Owner agrees to hold JZ harmless for the same.
The Owner agrees and acknowledges that JZ may manage other similar properties in the area and further acknowledges that JZ makes no representations concerning occupancy levels of the Property or any income to be received by Owner as a result of JZ’s efforts hereunder. The Owner agrees that all information concerning persons occupying the Property, specifically including without limitation, names, addresses, and credit card data, is the sole and exclusive property of JZ. This Agreement does not give the Owner the right to use the service marks or trademarks of JZ.
Personnel. JZ shall hire, supervise, and discharge all employees and personnel necessary for the management of the Property. All matters pertaining to the selection, direction, employment, supervision, compensation, promotion, and discharge of such personnel are the sole responsibility of JZ. All such personnel shall be the employees or independent contractors of JZ (or an affiliate of JZ), not of Owner.
Collection. JZ shall charge all Guests for rental of the Property through the Listing Site prior to their occupancy. The Owner shall only be entitled to Owner Net Income, which shall be determined based on the compensation structure agreed on by JZ and Owner (i.e. Fixed Rate Compensation or Non-Fixed Rate Compensation), once Guest’s occupancy is terminated. JZ may, with the prior written approval of Owner, in the name of and at the expense of Owner, retain legal counsel to institute legal actions or proceedings for; (a) the collection of rent or other charges payable by Guests; (b) the lawful dispossession of Guests or other persons from the Property; and (c) the enforcement of other provisions of the rental agreements. Notwithstanding anything to the contrary herein, if JZ is required to participate in litigation regarding the Property (excluding litigation caused by the negligent acts of JZ), such as answering discovery, assembling documents, attending depositions, appearing in Court, then Owner shall be responsible for payment of reasonable attorneys’ fees relating thereto.
Contracts and Supplies.
JZ shall enter into contracts with independent contractors, suppliers, and vendors to service the Property, which contracts are required in the ordinary business of managing and operating the Property, and which contracts may include, without limitation, contracts for cleaning, maintenance and repair, fire monitoring, landscaping, security, maintenance, pest control, and other services as required to manage the Property.
JZ shall coordinate the purchase of all supplies, tools, and equipment that are necessary and proper to manage and operate the Property according to the Brand Standard (“Supplies”) and to make all expenditures for such supplies, tools, and equipment and send invoices (or include on Fee Invoice) to Owner for payment thereto, if applicable.
Repairs and Maintenance.
JZ shall perform or cause to be performed all necessary or desirable repairs, maintenance, painting and decorating, alterations, replacements, and improvements in and to the Property, if, in the discretion of JZ, the same is necessary to maintain the Property, its fixtures, furniture, or furnishings in a condition compliant with the Brand Standard, including the administration of a preventative maintenance program for all mechanical, electrical and plumbing systems and equipment. The payment procedure for said repairs and maintenance of the Property shall be determined based on the compensation structure agreed to by JZ and Owner. Provided, however, JZ shall obtain prior approval from Owner for expenditures for any single repair or maintenance in excess of Five Hundred Dollars ($500) or a series of repairs or maintenance that in one month exceed One Thousand Dollars ($1,000). Notwithstanding the foregoing, JZ may, without Owner’s prior approval and without regard to the aforementioned approval budget, make emergency repairs: (i) involving conditions presenting a danger to life or the Property; (ii) that are immediately necessary for the preservation of the safety of the Property or the Guests of the Property; or (iii) that are required to avoid the suspension of any necessary service to the Property; provided, however, that JZ shall give written notice to Owner of any such emergency repairs for which prior approval is not required as soon as practicable following the date such emergency repair is made.
JZ does not assume and is given no responsibility for the Property’s compliance with building codes, statutes, ordinances, laws, or regulations (including environmental protection laws and homeowners association or condominium laws and regulations), except to notify Owner promptly of any complaints, warnings, notices, or summonses received by JZ relating to such matters. Owner represents that to the best of Owner’s knowledge the Property complies with all applicable legal requirements. The Owner authorizes JZ to disclose the ownership of the Property to any governmental officials having the authority to enforce legal requirements with respect to the Property.
Notices of Default and Violations. JZ shall handle complaints and requests from Guests at the Property and shall notify Owner of any major complaint or defaults related to the rental agreement. JZ shall also notify (which notice shall be accompanied by copies of any supporting documentation) of any notice of violation of any Laws received by JZ, any defect in or repair requirement of the Property known to JZ, any notice received by JZ concerning the use or release of hazardous or toxic materials at the Property, and any notice received by JZ alleging default by Owner or JZ under the rental agreement, a service, supply or labor contract, a ground lease, a mortgage or any other agreement directly affecting the management of the Property.
Notices of Claim of Injury or Damage. JZ shall report to Owner all accidents, claims for damages relating to the ownership, operation, or maintenance of the Property, and any damage or destruction to the Property, and shall prepare for approval by Owner all reports required by an insurance company in connection with any such accident, claim, damage or destruction.
The Owner represents to its best knowledge and information that there are no Hazardous Materials in, on, or about the Property. JZ agrees to notify the Owner if it becomes aware of any violation of any laws regarding hazardous materials, hazardous substances, any pollutants, mold, or contaminants as such are defined in federal, state, or local law (“Hazardous Materials”). Owner acknowledges that JZ is not an environmental engineer or consultant and does not have any special knowledge of any Laws regarding Hazardous Materials; that JZ’s duties under this Section are limited to the quality of reasonable commercial care and diligence customarily applied to property managers; and that JZ shall have no liability with respect to the presence of Hazardous Materials in or about the Property or for the Property’s compliance with Hazardous Materials laws. Therefore, with respect to any environmental conditions or issues pertaining to Hazardous Materials at the Property, Owner agrees that JZ and JZ’s officers, directors, members, partners, shareholders, employees, and agents are not and shall not: (i) be deemed “operators” of the Property or of any Guest operations therein or thereon; or (ii) “generators” or “transporters” (or have any comparable legal status) for purposes of any Laws regarding Hazardous Materials. Furthermore, unless agreed to in a separate written document signed by Owner and JZ, JZ shall not be responsible for the storage, transportation, disposal, abatement, cleanup, or removal of Hazardous Materials on, in or at the Property. Owner agrees to notify JZ if Owner becomes aware of the presence of any Hazardous Materials on, in, or at the Property, and Owner and JZ shall cooperate in creating and implementing a response to the presence of such Hazardous Materials, including how and when to notify existing and potential Guests. In the event that JZ is required by any Laws to notify existing and potential Guests of the presence of such Hazardous Materials, the Owner authorizes JZ to disclose such information to such parties. In the event that such disclosure is not required by any Laws, JZ shall not disclose such information without the prior approval of the Owner.
Notwithstanding anything set forth to the contrary in this Agreement, or any expiration or termination of this Agreement, Owner shall indemnify, defend, hold and save JZ, its officers, directors, members, partners, shareholders, employees, agents, and the successors and assigns of each of them (each, a “JZ Indemnified Party”) free and harmless from and against any and all claims, demands, causes of action, suits, liabilities, damages, losses, judgments, costs and expenses of any kind or nature whatsoever (including reasonable attorneys’ fees and costs), which JZ or any JZ Indemnified Party may suffer or incur with respect to, the presence or removal of, or failure to remove, Hazardous Materials generated, used, released, stored or disposed of by anyone or for any other reason existing in or about the Property.
Duty of Care. JZ acknowledges that it has the duty to use reasonable care, in the performance of its work hereunder for the benefit of Owner. In this regard, notwithstanding anything to the contrary herein, Owner acknowledges that no obligation of JZ set forth in this Agreement shall make JZ liable for any damages suffered by Owner as a result of any breach or other failure to perform committed by any architect, contractor, construction manager or other party engaged to work at the Property or provide services or equipment related to the Property.
General. All obligations and responsibilities not expressly delegated, herein or by law, to JZ shall be the responsibility of Owner, which includes but is not limited to all provision of this Section or as set forth in other parts of this Agreement. Owner agrees not to take any action that the effect of which would be to prevent JZ from listing the Property for rent in compliance with the Brand Standard, applicable homeowners’ association, local, state and federal laws and regulations, including but not limited to those laws and regulations prohibiting discrimination on the basis of race, color, religion, sex, national origin, handicap or familial status in the renting of the Property.
Owner Fees and Expenses. The Owner shall pay all fees and expenses relating to the Property based on the compensation structure agreed to by Owner and JZ. Owner agrees and acknowledges that JZ shall have the right to set off against Gross Rental Income (if Non-Fixed Rate Compensation applied) or Owner Net Income (if Fixed Rate Compensation applied), any fees or expenses payable by Owner as set forth in this Agreement. In the event Owner Net Income is not an amount sufficient to cover fees or expenses payable by Owner, the Owner agrees and acknowledges to timely pay any invoice sent by JZ to Owner.
Utilities. Owner agrees to procure, maintain and keep payments current with all utilities and services required for the use and enjoyment of the Property to include but not be limited to: electric, water, sewer, gas, phone, cable TV, Internet, etc., or as requested by JZ to meet the Brand Standard. The Owner further authorizes JZ to make such payments if Owner’s funds are available as necessary to keep said services on.
Property Taxes, Homeowner’s Associates Dues, Etc. It is the responsibility of the Owner to discharge their own responsibilities for Federal, State, and County land and property taxes, homeowners’ association dues, mortgage payments, and any other related homeowner’s expenses.
Non-Fixed Rate Compensation. If the Non-Fixed Rate Compensation structure is in effect, then the Owner is responsible for payment of all lodging taxes or assessments relating to Guests’ rental of the Property, now or hereafter levied, assessed or imposed by any federal, state, county or municipal governmental authority, or any subdivision thereof. JZ shall withhold such lodging taxes from Gross Rental Income and pay to the applicable taxing authority on behalf of the Owner. The Fee Invoice shall include all lodging tax as a deduction from Gross Rental Income.
Fixed-Rate Compensation. If the Fixed Rate Compensation structure is in effect, then JZ shall pay the all lodging taxes or assessments on behalf of the Owner.
Property Use. The Owner acknowledges that the Property may be reserved by Guests far in advance or instantaneously with the Listing Site. To ensure maximum occupancy of the Property and privacy of Guests, the Owner must notify JZ of its own non-revenue intended use of the Property by contacting JZ’s guest services for approval. Under no circumstances shall Owner enter the Property, interfere with Guests’ rental of the Property, contact Guests, or interact with Guests, without the consent of JZ’s guest services. The Owner will not be permitted to cancel existing rental commitments and agrees and acknowledges that the Owner shall not have the right to occupy or enter the Property during any time that the Property is subject to Guest reservation.
Non-Fixed Rate Compensation. If Non-Fixed Rate Compensation is in effect, Owner will not be required to pay a fee to JZ for booking the Property for its own use; however, Owner will be responsible for housekeeping and cleaning fees and any other fees related to Owner’s occupancy of the Property for Non-Fixed Rate Compensation.
Fixed-Rate Compensation. If Fixed Rate Compensation is in effect, Owner and JZ shall mutually agree on a fee payable by Owner to JZ for Owner’s use of the Property. The fee shall be based on the estimated revenue derived from Guests’ use of the Property as if Owner did not book the Property. Such fee shall be deducted from Owner Net Income due to Owner, or payable by invoice to JZ, at JZ’s sole discretion.
Privacy and Confidentiality. Owner shall treat as confidential and shall not disclose any information with respect to the Property or Guests, without the prior written consent of JZ. Confidential information does not include information which: (a) is or becomes generally available to the public other than as a result of a disclosure by the receiving party in breach of this Agreement; (b) was available to the receiving party on a non-confidential basis prior to its disclosure by the other party; (c) must be disclosed pursuant to applicable law or regulation or in connection with the pursuit or defense of a claim; (d) is independently developed by the receiving party without the use of confidential information provided by the other party; or (e) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by a confidentiality agreement with the other party.
Sale of Property. Unless otherwise agreed to in writing by JZ, this Agreement must be terminated pursuant to terms of this Agreement before Owner offers the Property for sale, engages a listing firm, or shows or causes the Property to be shown to prospective purchasers.
INSURANCE AND INDEMNIFICATION
Owner Insurance. Owner, at its expense, shall maintain and keep in force: (a) “all-risk” property insurance insuring the Property at least equal to full replacement cost thereof, providing protection against any peril generally included in a standard ISO special form cause of loss insurance policy; and (b) a commercial general liability insurance policy written on an occurrence-form basis, with limits of not less than $1,000,000 per occurrence and $2,000,000 aggregate, with respect to the Property and its operations. Limits may be met through the use of an Umbrella policy. Owner’s insurance shall include JZ as an additional insured, and, to the extent permitted by the insurer, such policy shall not be canceled without at least thirty (30) days’ prior written notice to JZ. Owner’s insurance shall be primary with respect to bodily injury, personal injury, and property damage claims covered by both Owner’s and JZ’s commercial general liability insurance policies. The Owner shall furnish, or cause to be furnished to JZ, certificates of insurance and endorsements evidencing the foregoing insurance.
Insurance Policies. Insurance required hereunder shall be provided by insurers of recognized responsibility authorized to do business in the State of the Property having an equivalent to a Best’s financial rating of V or higher and a policyholder’s rating of at least A, and reasonably satisfactory to JZ. The Owner shall deliver to JZ copies of policies of such insurance or certificates evidencing the existence and amounts of such insurance with loss payable clauses satisfactory to JZ and name JZ as an additional insured. No such policy shall be cancelable or subject to a reduction of coverage or other modification except after thirty (30) days’ prior written notice to each insured and each mortgagee to whom losses may be payable. The Owner shall, not less than thirty (30) days prior to the expiration of such policies, furnish JZ with renewals or “binders” thereof. The Owner shall not do or permit to be done anything which shall invalidate the insurance. If Owner does or permits to be done anything which shall increase the cost of insurance, then Owner shall pay for any additional premiums attributable to any act or omission or operation of Owner causing such an increase in the cost of insurance.
Cooperation with Insurance Carriers. JZ shall cooperate with and provide reasonable access to the Property to agents of any and all insurance companies who may, from time to time, be involved with the issuance of insurance policies or with inspections of the Property in connection with insurance policies then in force. JZ agrees to use all commercially reasonable efforts to comply with any and all requirements of such insurance companies or their agents, and agrees to exercise due care not to use the Property or permit the same to be used for any purpose which would make void or voidable any such insurance policies, and shall not keep or knowingly allow to be kept on the Property any material, machinery, equipment, substance or other things which may make void or voidable any such insurance policies.
Claims. JZ shall investigate and report to the Owner and the applicable insurer all known claims, actions, or proceedings relating to the ownership, operation, and maintenance of the Property and any damage or destruction to the Property of which JZ becomes aware.
Property Damage. For each booking, JZ charges Guests a damage protection fee. In the event of any damage to the Property directly caused by a Guest, JZ shall be responsible for up to Seven Hundred Fifty Dollars ($750) of repairs (“Damage Limit”) per year. Any repairs to property damage in excess of the Damage Limit shall be the responsibility of the Owner and/or its insurance carrier.
Compliance With Insurance Policies. JZ shall use commercially reasonable efforts to comply with any insurance policy held by Owner and of which JZ has received any written notice or record with respect to the Property so as to avoid any loss insured thereunder from being uncollectible.
Mutual Waivers. Owner, on behalf of itself and its insurers, waives its rights of recovery against JZ or any person who holds a direct or indirect ownership interest in JZ and their respective officers, directors, members, partners, shareholders, employees, agents, and the successors and assigns of each of them, for damages sustained by Owner as a result of any damage to the Property or damage to property of others or bodily injury or death arising from any risk or peril to the extent covered or coverable by any insurance policy actually carried by or required to be carried by Owner pursuant to the terms of this Agreement, and Owner agrees that no party shall have any such right of recovery by way of subrogation or assignment. JZ, on behalf of itself and its insurers, waives its rights of recovery against Owner or any person who holds a direct or indirect ownership interest in Owner and their respective officers, directors, members, partners, shareholders, employees, agents, and the successors and assigns of each of them, for damages sustained by JZ as a result of any damage to its property or damage to property of others or bodily injury or death arising from any risk or peril to the extent covered or coverable by any insurance policy actually carried by or required to be carried by JZ pursuant to the terms of this Agreement, and JZ agrees that no party shall have any such right of recovery by way of subrogation or assignment. Owner and JZ shall each notify their respective insurance carriers of the mutual waivers herein contained and shall cause their respective insurance policies required hereunder to be endorsed, if necessary, to prevent any invalidation of coverage as a result of the mutual waivers herein contained. Owner and JZ hereby waive all claims for incidental, consequential and punitive damages related to the Agreement.
Acts of Guests and Third Parties. In no event other than gross negligence shall JZ have any liability to Owner or others for any acts of vandalism, trespass or criminal activity of any kind by Guests or third parties on or with respect to the Property and Owner’s insurance shall be primary insurance without right of subrogation against JZ regarding claims arising out of or resulting from acts of vandalism, trespass or criminal activity.
Indemnity by Owner. Owner shall indemnify, defend, hold and save JZ and JZ Indemnified Party (as described in Section 30b) free and harmless from and against any and all claims, demands, causes of action, suits, liabilities, damages, losses, judgments, costs and expenses of any kind or nature whatsoever (including reasonable attorneys’ fees and costs), which JZ or any JZ Indemnified Party may suffer or incur, in connection with the Property or the performance by JZ of any of its duties and obligations under this Agreement, except with respect to claims arising out of JZ’s gross negligence or willful misconduct.
Indemnity by JZ. JZ shall indemnify, defend, hold and save Owner, its officers, directors, members, partners, shareholders, employees and the successors and assigns of each of them (each, an “Owner Indemnified Party”) free and harmless from and against any and all claims, demands, causes of action, suits, liabilities, damages, losses, judgments, costs, and expenses of any kind or nature whatsoever (including reasonable attorneys’ fees and costs), which Owner or any Owner Indemnified Party may suffer or incur in connection with or arising from the gross negligence or willful misconduct of the JZ or any JZ Indemnified Party in the performance of its duties and obligations under this Agreement.
Relationship to Insurance. In no event shall the indemnification provisions of this Agreement diminish, affect, impede or impair, in any manner whatsoever, the benefits to which any party may be entitled under any insurance policy required by this Agreement or otherwise, or under the terms of any waiver of subrogation contained therein.
Survival. It is expressly understood and agreed that the foregoing provisions of this V shall survive any expiration or termination of this Agreement to the extent the circumstances creating a liability covered hereby arose prior to such expiration or termination.
Limitation of Liability and Waiver of Consequential Damages.
JZ, its Affiliates’ and its and their contractors’ and licensors’ liability for actual damages (whether a claim, therefore, is based on warranty, contract, tort (including negligence or strict liability), statute or otherwise) and claims arising in relation to any performance or nonperformance of services under this Agreement shall be limited to One Million Dollars ($1,000,000.00) (the “Cap”). Owner acknowledges and agrees that any such payment by JZ shall be the final remedy in the event of exhaustion of all other remedies hereunder and such remedy shall not be deemed or alleged by the other party to have failed of its essential purpose.
IN NO EVENT SHALL JZ BE LIABLE TO OWNER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT JZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
The Parties acknowledge that it is the intent of this Agreement to limit JZ’s liability in connection with loss or damage to Owner’s Property resulting from JZ’s negligence and covered by JZ’s legal liability insurance carried by JZ. Owner and its insurers hereby waive their rights of recovery against JZ for claims in excess of JZ’s liability as expressed in this section.
In no event shall JZ be liable for any loss or damage whatsoever arising from its failure to discover or repair latent defects or defects inherent in the design of Property serviced or caused by the use of Property by Owner or Guests.
If JZ furnishes Owner with advice or assistance concerning any Property or service which is not required pursuant to the Agreement or the Ancillary Agreements, the furnishing of such advice or assistance will not subject JZ to any liability whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise.
TERMINATION OF AGREEMENT
Termination Without Cause.
JZ may terminate this Agreement at any time and for any reason, with such termination effective immediately upon delivery of written notice by JZ to Owner.
Owner may terminate this Agreement without cause at any time upon sixty (60) days’ prior written notice to JZ (“Termination Notice”). Upon receipt of the Termination Notice, JZ shall remove the Property from the Listing Site and booked Guest reservations for the Property more than sixty (60) days in advance as of the date JZ receives the Termination Notice shall be canceled by JZ.
Termination For Cause. Notwithstanding the stated term hereof, this Agreement may be terminated by either party hereto For Cause. The termination shall be effective immediately upon delivery of written notice to Owner or JZ by the other party, as the case may be. As used herein, “For Cause” shall mean and refer to:
The default by either party in the performance of any of its material obligations hereunder without attempting to diligently and continuously commence curing such default within ten (10) days of receipt by the non-performing party of notice of such default (or if such default is of a nature that it cannot be cured within ten (10) days, then the Agreement may be terminated if the non-performing party shall fail to commence the curing of such default within such ten (10) day period or shall thereafter fail to prosecute the curing thereof to completion with due diligence); or
If JZ or Owner shall file a voluntary petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, liquidation, dissolution or similar relief for itself under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law relative to bankruptcy, insolvency or other relief for debtors, or under any regulation promulgated thereunder; or
If a court of competent jurisdiction shall enter an order, judgment, or decree approving a petition filed against JZ or Owner seeking any reorganization, arrangement, composition, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law relating to bankruptcy, insolvency, or other relief for debtors, and such party shall acquiesce in the entry of such order, judgment, or decree or such order, judgment or decree shall remain unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive) from the date of entry thereof, or any trustee, receiver, conservator, or liquidator of such party or of all or any substantial part of such party’s property shall be appointed without the consent or acquiescence of such party and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive); or
If JZ or Owner shall become insolvent or admit in writing its inability to pay its debts as they mature or is generally not paying its debts as they mature or makes an assignment for the benefit of creditors; or
If Owner sells, transfers or otherwise conveys its interest in the Property, or upon the termination of Owner’s right to the rent the Property by foreclosure, transfer in lieu thereof or other exercises of a lender’s remedies.
Duties Upon Termination.
In the event of a termination of this Agreement for any reason, JZ shall:
cooperate with Owner to accomplish an orderly transfer of the operation and management of the Property to a party designated by Owner;
cancel all booked Guest reservations occurring after the effective date of termination;
deliver to Owner a final Fee Invoice; and
deliver to Owner final Owner Net Income (pro-rated if Fixed Fee Compensation structure), if any, as set forth on the Fee Invoice.
In the event of a termination of this Agreement for any reason, Owner shall:
assume and be responsible for payment of all obligations and commitments for goods and services authorized herein and made prior to termination; and
be obligated to pay all compensation for services rendered by JZ hereunder prior and up to the effective time of such termination, including, without limitation, any fees and expenses set forth in herein, and shall pay and reimburse to JZ such fees and expenses which are otherwise payable or reimbursable to JZ pursuant to the terms of this Agreement (collectively, “Accrued Fees”). Such Accrued Fees may be set off against the Owner Net Income due to Owner or be due and payable by Owner to JZ within ten (10) days of delivery of the Fee Invoice to Owner.
In the event Owner terminates this Agreement without cause and fails to provide timely Termination Notice, or if JZ terminates this Agreement For Cause, Owner agrees and acknowledges that, in addition to payment of the Accrued Fees, it shall pay JZ: (i) in the case of Non-Fixed Rate Compensation, the Management Fee for all booked Guest reservations as of the date JZ receives the Termination Notice; or (ii) in the case of Fixed Rate Compensation, liquidated damages in the amount of Seven Thousand Dollars ($7,000).
The Owner agrees and acknowledges that the amount payable per Section 33c constitutes liquidated damages and not a penalty. Owner further acknowledges that: for Fixed Rate Compensation (i) the amount of loss or damages likely to be incurred by JZ in the event of Owner termination without cause and failure to provide timely notice, or JZ termination For Cause, is incapable or difficult to precisely estimate, (ii) the amounts specified in such subsections bear a reasonable proportion and are not plainly or grossly disproportionate to the probable loss likely to be incurred in connection with such termination of Agreement, (iii) one of the reasons for JZ and Owner reaching an agreement as to such amounts was the uncertainty and cost of litigation regarding the question of actual damages, and (iv) JZ and Owner are sophisticated business parties and have been represented by sophisticated and able legal and financial counsel and negotiated this Agreement at arm’s length.
In the event Owner terminates this Agreement For Cause, JZ shall cancel all booked Guest reservations and deliver to the owner a final Fee Invoice, and pay Owner outstanding Owner Net Income if any.
Obligations of Parties Generally. Upon any termination of this Agreement, the obligations of the parties hereto shall thereafter cease with respect to the Property, except that neither Owner nor JZ shall be relieved of its obligations hereunder through the date of termination or to the extent any such obligations survive the termination in accordance with the terms hereof (e.g. indemnification). Moreover, the termination of this Agreement shall be without prejudice to any other right or remedy that either party hereto may have pursuant to this Agreement, at law or in equity.
COMPENSATION AND FEES
Booking and Timing of Fees.
At the time of booking the Property through the Listing Site, the Guest will be charged for full Gross Rental Income.
On the tenth (10th) day of each month, JZ will furnish to Owner the Fee Invoice, which shall include an itemization of each expense and fee disbursement to the Gross Rental Income to demonstrate calculation of the Owner Net Income due to Owner for the previous month.
In the event the expenses and fees chargeable to the Owner exceed the Owner Net Income, Owner agrees to pay JZ the excess amount, within thirty (30) days following receipt of the Fee Invoice. JZ makes no representation, warranty, or promise that Owner Net Income will exceed fees and expenses.
Non-Fixed Rate Compensation Owner Fees and Expenses. With respect to Non-Fixed Rate Compensation, Owner authorizes JZ to deduct the following fees and expenses from Gross Rental Income in JZ’s payment of Owner Net Income to Owner per the Fee Invoice:
Management Fee. Owner agrees to pay JZ a management fee (“Management Fee”) during the Term hereof as a percentage of Gross Rental Income as agreed by JZ and Owner in the Property Management and Leasing Agreement, and JZ agrees to accept such Management Fee as compensation for the services to be rendered hereunder. Management Fee shall be deemed earned when Gross Rental Income is paid by Guest. JZ shall be entitled to immediately withdraw the Management Fee from the Gross Rental Income invoiced to Guest through an ACH Electronic Funds Transfer or other such electronic payment methods.
Design Fee and Modification. In the event Owner incurs a Design Fee pursuant to Section 3, the Owner agrees to either pay the Design Fee by invoice or by deduction from the Gross Rental Income, at JZ’s sole discretion. Moreover, if Owner and JZ mutually agree on Modifications to the Property, Owner further agrees to pay for Modifications by invoice or by deduction from the Gross Rental Income, at JZ’s sole discretion.
Maintenance and Repairs Fee. Owner is responsible for payment of repairs and maintenance expenses to the Property (“Maintenance and Repairs Fee”) performed by JZ per Section 9. Repairs or replacements shall be at full cost to Owner, while maintenance fees are Thirty-Five Dollars ($35) per hour, with a Fifty Dollars ($50) minimum fee per maintenance visit to the Property.
Supplies Fee. The Owner is responsible for payment of Supplies to the Property to be provided by JZ pursuant to Section 8. An itemized list of Supplies shall be included on Fee Invoice and deducted from Gross Rental Income.
Construction Management Fee. In the event JZ is engaged by Owner to make Capital Improvements, JZ shall be entitled to a construction supervision fee in connection with the construction or repair of Capital Improvements. The Construction Management Fee payable to JZ by Owner shall be __ percent (__%) of the cost of the Capital Improvements (“Construction Management Fee”). If JZ does not act as a construction manager, or if a person specializing in construction management does not supervise the project, no such fee shall be payable to JZ for such a project. The Construction Management Fee shall be invoiced by JZ upon the latter to occur of (i) substantial completion of a particular construction project, or (ii) receipt of a certificate of occupancy by the governing municipality, and/or certificate of completion issued by the architect of record.
Fixed-Rate Compensation Owner Fees and Expenses. With respect to Fixed Rate Compensation, Owner authorizes JZ to deduct the following fees and expenses from Owner Net Income in JZ’s payment to Owner per the Fee Invoice:
Maintenance and Repairs Fee. During the Initial Term, and each Renewal Term thereafter, if Fixed Rate Compensation is applicable, JZ shall be responsible for the first One Thousand Five Hundred Dollars ($1,500) each year for payment of repairs and maintenance expenses to the Property performed by JZ per Section 9. Any aggregate repairs and maintenance expenses in excess of One Thousand Five Hundred Dollars ($1,500) for a given year shall be paid as follows: repairs or replacements shall be at full cost to Owner, while maintenance fees are Thirty-Five Dollars ($35) per hour, with a Fifty Dollars ($50) minimum fee per maintenance visit to the Property.
Design Fee and Modification. In the event Owner incurs a Design Fee pursuant to Section 3, the Owner agrees to either pay the Design Fee by invoice or by deduction from Owner Net Income, at JZ’s sole discretion. Moreover, if Owner and JZ mutually agree on Modifications to the Property, Owner further agrees to pay for Modifications by invoice or by deduction from Owner Net Income, at JZ’s sole discretion.
Supplies Fee. JZ is responsible for payment of Supplies to the Property to be provided by JZ pursuant to Section 8.
Construction Management Fee. In the event JZ is engaged by the Owner to make Capital Improvements, JZ shall be entitled to a construction supervision fee in connection with the construction or repair of Capital Improvements. The Construction Management Fee payable to JZ by Owner shall be __ percent (__%) of the cost of the Capital Improvements (“Construction Management Fee”). If JZ does not act as a construction manager, or if a person specializing in construction management does not supervise the project, no such fee shall be payable to JZ for such a project. The Construction Management Fee shall be invoiced by JZ upon the latter to occur of (i) substantial completion of a particular construction project, or (ii) receipt of a certificate of occupancy by the governing municipality, and/or certificate of completion issued by the architect of record.
Failure to Pay the Fees. JZ shall be entitled to file a lien on the Property for any fees or expenses which are owed by Owner to JZ, at any time after said fees or expenses are past due. This right to file a lien is in addition to all other legal remedies and rights available to JZ and in no event shall this right be considered JZ’s exclusive or sole remedy. If payment of any fees or expenses described herein is not made within ten (10) days after the payment is due, then interest at the rate of one (1%) per month (12% A.P.R.) shall be due and owing until full payment is made on the fees or expenses owed.
Representations and Warranties. Owner represents and warrants that: (i) it has the full and complete power and authority to enter into this Agreement; (ii) this Agreement constitutes the valid and legally binding agreement of Owner; (iii) the execution and delivery of this Agreement, the observance and performance hereof, and the consummation of the transactions contemplated herein shall not constitute a breach of, or a default under, any lease or other agreement by which Owner is bound or to which the Property is subject; (iv) no other person or entity has (nor shall have at any time during the Term of this Agreement) any right to render leasing or rental services on behalf of Owner with respect to space in the Property; and (v) at all times during the term hereof, it will disclose to JZ all information in Owner’s possession regarding the condition of the Property (including, without limitation, the presence of any hazardous or toxic materials therein).
Transfer by Owner. In the event Owner transfers the Property (whether by assignment, merger, change of ownership, or otherwise), Owner warrants and represents to JZ that it shall make such transfer subject to this Agreement. All fees payable or that become payable hereunder shall be the joint and several obligations of Owner and its successor and assigns, whether or not Owner owns the property at the time such fee payables become payable.
Entire Agreement. This Agreement (together with the attached Exhibit(s)) is the entire agreement between the parties with respect to the subject matter hereof, and it is a complete integration of any and all representations and agreements existing between Owner and JZ and supersedes all prior oral or written representations and agreements between them. Neither party shall be deemed to be the drafter of this Agreement, and therefore no presumption for or against the drafter shall be applicable in interpreting or enforcing this Agreement. The parties acknowledge that their respective legal counsel participated in the preparation of this Agreement.
Modification. No modification, change, or amendment of this Agreement shall be binding unless in writing and signed by both parties.
Severability. If any provision of this Agreement or application to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances, other than those as to which it is so determined invalid or unenforceable, shall not be affected thereby, and each provision hereof shall be valid and shall be enforced to the fullest extent permitted by law.
No Waiver. The failure of Owner or JZ to seek redress for a violation, or to insist upon the strict performance of any covenant, agreement, provision or condition of this Agreement shall not constitute a waiver thereof, and Owner and JZ shall have all remedies provided herein and by applicable law with respect to the same or any subsequent act which would have originally constituted a violation. No waiver of any provision hereof shall be binding unless in writing and signed by the party waiving such provision.
Authority Limited. Neither Owner nor JZ shall have the power to bind or obligate the other except as expressly set forth in this Agreement.
JZ. The term “JZ” as used in this Agreement shall include any corporate subsidiaries or affiliates of JZ named herein who perform services in, on, or about the Property in connection with this Agreement. Notwithstanding the foregoing, in no event shall any direct or indirect officer, director, member, partner, shareholder, employees, or agent (a “Special Party”) of JZ be personally liable for any of the obligations of JZ under this Agreement except to the extent, if any, provided in a separate agreement now or hereafter executed and delivered by such Special Party.
Relationship; Limited Agency. Nothing herein contained shall constitute or be construed to be or create a partnership or joint venture between Owner and JZ and JZ is and shall remain an independent contractor in connection herewith. JZ shall act solely as the agent of Owner in the performance of its duties and obligations under this Agreement with respect to the Property. Nothing herein shall deprive or otherwise affect the right of either party to own, invest in, manage, or operate the property, or to conduct business activities that are competitive with the business of the Property.
Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement may be assigned to any entity controlled by JZ or JZ’s ultimate parent, without Owner’s prior written consent (but with no less than thirty (30) days prior written notice to Owner). This Agreement may be assigned by Owner with thirty (30) days prior written notice to JZ.
Attorneys’ Fees. In the event of any controversy, claim or litigation between Owner and JZ arising out of or relating to the Property or this Agreement, the prevailing party shall be entitled to reasonable costs and expenses, including, without limitation, attorneys’ fees and expert witness fees, as fixed by a court of competent jurisdiction, from the non-prevailing party.
No Third-Party Beneficiaries. This Agreement is intended for the exclusive benefit of the parties hereto and, except as otherwise expressly provided herein, shall not be for the benefit of, and shall not create any rights in, or be enforceable by any other person or entity.
Rights Cumulative. Except as otherwise expressly provided herein, no remedy conferred upon a party to this Agreement is intended to be exclusive of any other remedy provided or permitted herein or by law or in equity, but each shall be cumulative and shall be in addition to every other remedy provided herein or now or hereafter existing at law or in equity.
Confidentiality. Except to the extent necessary to carry out its obligations hereunder, JZ shall treat as confidential and shall not disclose any information with respect to the Property, without the prior written consent of Owner. Confidential information does not include information which: (a) is or becomes generally available to the public other than as a result of a disclosure by the receiving party in breach of this Agreement; (b) was available to the receiving party on a non-confidential basis prior to its disclosure by the other party; (c) must be disclosed pursuant to applicable law or regulation or in connection with the pursuit or defense of a claim; (d) is independently developed by the receiving party without the use of confidential information provided by the other party; (e) was available to JZ on a non-confidential basis prior to its disclosure by Owner; or (f) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by a confidentiality agreement with the other party.
Further Acts. Owner and JZ shall execute such other documents and perform such other acts as may be reasonably necessary and/or helpful to carry out the purposes of this Agreement.
Authority. Each individual signing this Agreement on behalf of a legal entity represents that he or she holds the office and/or position in such legal entity respectively indicated hereinafter for him or her, and has full right and power and has been duly and legally authorized to act on behalf of such legal entity in executing and entering into this Agreement.
Governing Law and Venue. This Agreement and the rights and obligations of the parties hereunder are to be governed by and construed and interpreted in accordance with the laws of the State where the Property is located, applicable to contracts made and to be performed wholly within such state, without regard to choice or conflict of laws rules. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED HEREBY SHALL ONLY BE BROUGHT IN THE COURTS OF THE COUNTY OF ST. LOUIS, STATE OF MISSOURI OR THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI.
JZ Assumes No Liability. JZ assumes no liability whatsoever for any acts or omissions of Owner, or any previous owners of the Property, or any previous management or other agents of Owner or other owners. JZ assumes no liability for any failure of or default by any Guest in the payment of any rent or other charges due Owner or in the performance of any obligations owed by any Guest to Owner pursuant to any agreement or otherwise. Owner agrees and acknowledges it is responsible for, and JZ assumes no liability for, violations of regulations relating to JZ performance of the services as described in this Agreement, including without limitation all state and/or federal laws, statutes, or regulations, or homeowners’ association or similar governing body rules or regulations, relating to restrictions on short term rental properties or any of the actions of JZ as performed per this Agreement. The Owner shall hold harmless and indemnify JZ for any such items/claims as set forth in this paragraph 9.19.
Agreement Not to Hire Employees. The Owner acknowledges that JZ’s salaried employees are essential to JZ’s core business of providing management services and are familiar with JZ’s operating procedures and other information proprietary to JZ. Therefore, Owner agrees not to, and shall not, solicit for employment, hire, make any agreement with, or permit the employment (including employment by any successor to JZ) in any real estate management service operation at the Property (or any other property of Owner or its affiliates) or permit supervision, either directly or indirectly, of any real estate management service operation at the Property (or any other property of Owner or its affiliates), of any person who is or has been JZ’s salaried employee within the earlier of one (1) year after such employee terminates employment with JZ or within one (1) year after the expiration or termination of the Agreement. If Owner breaches this Section 54, the Owner and JZ agree that the legal remedies available to JZ will be inadequate, and the JZ will be entitled to seek appropriate equitable remedies, which include, but are not limited to, Temporary Restraining Order, Preliminary Injunction, or Permanent Injunction from a Court to enforce this Section, but may have in law or equity. Section 57 shall survive the expiration and/or termination of this Agreement.
Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original of this Agreement but all of which, taken together, shall constitute one and the same agreement. Signatures transmitted by facsimile or e-mail (via PDF format) shall be acceptable for purposes of execution of this Agreement.
Headings. All headings herein are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Agreement.
Force Majeure. Notwithstanding anything contained to the contrary, neither party hereto shall be required to perform any term, condition or covenant of this Agreement as long as such performance is delayed or prevented by Force Majeure, which shall mean Acts of God, strikes, lockouts, material or labor restrictions by any governmental authority, civil riot, floods and any other cause not reasonably within the control of such party and which, by the exercise of due diligence, such party is unable, wholly or in part, to prevent or overcome. Notwithstanding anything herein to the contrary, the foregoing shall not excuse either party from the payment of any monies due pursuant to the terms of this Agreement.
Excusable Delay. JZ shall not be liable for delay in the performance of services due to: (1) causes beyond its reasonable control, or (2) acts of God, acts of Owner, prerequisite work by others, acts of civil or military authority, government priorities, fires, strikes or other labor disturbances, floods, epidemics, war, riot, delays in transportation or car shortages, or (3) inability to obtain or delay in obtaining, due to causes beyond its reasonable control, suitable labor, materials, or facilities. In even to any such delay, the time of performance shall be extended for a period equal to the time lost by reason of the delay.
Taxes. Unless otherwise agreed herein, Owner shall be responsible for all property, lodging, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Owner hereunder.
Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Owner under this Agreement, the Ancillary Agreements or prepared by or on behalf of JZ in the course of performing the Services described in the Ancillary Agreements (collectively, the “Deliverables”) [except for any Confidential Information of Owner or Owner materials] shall be owned by JZ.
All non-public, confidential or proprietary information of JZ, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to Owners, pricing, and marketing (collectively, “Confidential Information”), disclosed by JZ to Owner, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services per the Ancillary Agreements and this Agreement is confidential, and shall not be disclosed or copied by Owner without the prior written consent of JZ. Confidential Information does not include information that is:
in the public domain;
known to Owner at the time of disclosure; or
rightfully obtained by the Owner on a non-confidential basis from a third party.
Owner agrees to use the Confidential Information only to make use of the Services provided and Deliverables.
JZ shall be entitled to injunctive relief for any violation of this Section.
Disclaimer of Warranties. JZ MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES OR GOODS PROVIDED TO OWNER, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Pricing and Payment. If it becomes necessary for JZ to utilize a collection agency and/or an attorney to collect any unpaid amount owed to JZ by Owner or to assist in effectuating the lien provisions herein, Owner shall be obligated to pay the collection agency fees and/or attorney fees, and expenses including court costs incurred, regardless of whether litigation is actually filed.
All notices required under this agreement directed to JZ shall be to the attention of:
JZ Vacation Rentals LLC
Attn: Alex Zemianek
7185 Manchester Rd.
Maplewood, MO 63143
McCarthy, Leonard & Kaemmerer, L.C.
Attn: Andrew Lammert
825 Maryville Centre Drive, Suite 300
Town and Country, MO 63017
Notices may be provided by facsimile, email, or express courier (signature required) and deemed delivered on date given.
The Owner hereby agrees and acknowledges that receiving notice by email is acceptable and notice shall be deemed given if JZ sends notice to the email provided by Owner to JZ in any invoice or Ancillary Agreement.
Appendix A Defined Terms.
“Agent(s)” means JZ agents, sub-contractors, carriers, and the agents of each.
“Property” means the Owner’s Property identified in one or more Property Management and Leasing Agreement(s) execute by Owner and JZ.
“Listing Site” shall mean the short term rental property listing website with web address jzvacationrentals.com, which combines rental price adjustment software, multiple listing channel exposure across major rental sites and search engines, and advanced online marketing to lease and service the Property.
“Gross Rental Income” shall mean the total amount a Guest pays for rental of the Property per booking.
“Owner Net Income” shall mean the monthly amount payable by JZ to Owner pursuant to the Fee Invoice, which shall be determined based on the compensation structure set forth below:
If Fixed Rate Compensation is in effect, Owner Net Income shall mean a fixed monthly amount as set forth in Property Management and Leasing Agreement between JZ and Owner.
If Non-Fixed Rate Compensation is in effect, Owner Net Income shall mean Gross Rental Income, less the Management Fee, less the Design Fee (if any), less Maintenance and Repairs Fee, less Construction Management Fee (if any), less cost of Supplies, less lodging taxes, and less any other amounts JZ is permitted to offset against the Gross Rental Income as set forth in this Agreement.
“Fixed Rate Compensation” shall mean JZ collects the total amount a Guest pays for rental of the Property per booking (“Gross Rental Income”) and pays Owner a monthly fixed agreed upon by JZ and Owner and set forth in the Property Management and Leasing Agreement, regardless of the amount of Gross Rental Income collected during a given month, subject to the terms and conditions of this Agreement.
“Non-Fixed Rate Compensation” shall mean JZ collects Gross Rental Income and remits to Owner monthly Gross Rental Income, less the amounts for items set forth in this Agreement, and subject to the terms and conditions of this Agreement.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator, court or tribunal of competent jurisdiction.
“Term” shall mean the period of time JZ and Owner have agreed to appoint and permit JZ to manage the Property per the terms of the Agreement. The exact length of the Term shall be set forth in the Property Management and Leasing Agreement.
JZ Vacation Rentals
7185 Manchester Rd
Maplewood MO 63143