STANDARD TERMS AND CONDITIONS
1.1 “Accommodation Fee” shall mean the accommodation and cleaning fee charged by a Resident for any Short-Term Rental of the Unit, calculated after the deduction of any Approved Platform Service Charges, and payment of any applicable fees and taxes (including business registration fees and licensing, insurance and transient occupancy/hotel taxes) payable by Resident under all applicable laws and regulations.
1.2 Profit Participation Allocation” shall mean the allocable amount of the gross Accommodation Fee, due and payable to Landlord and Pillow, respectively, pursuant to any Short-Term Rental, as follows:
1.3 “Term” shall mean the period commencing on the Effective Date, and continuing until the date prior to the first anniversary of the Effective Date. Thereafter, the Term shall automatically renew for an additional one-year period, unless either party provides written notice of cancellation not less than ninety (30) days prior to expiration of the then-current Term, or as otherwise provided in this Agreement.
2. Indemnification by Landlord. Landlord agrees to defend, indemnify and hold harmless Pillow from and against any and all third party claims, awards, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees as awarded by a court of competent jurisdiction) arising from:
3. Disclaimer Of Warranties. THE PILLOW SERVICES ARE PROVIDED AS IS, FOR THE LANDLORD’S INFORMATION ONLY. PILLOW AND ITS AFFILIATES, AGENTS, EMPLOYEES, AND REPRESENTATIVES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PILLOW MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) LANDLORD’S USE OF THE PILLOW SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (2) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PILLOW SERVICES WILL BE ACCURATE OR RELIABLE; OR (3) ANY ERRORS IN THE PILLOW SERVICES WILL BE CORRECTED. LANDLORD AGREES THAT LANDLORD SHALL BE SOLELY RESPONSIBLE FOR ALL OF LANDLORD’S COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PILLOW SERVICES.
THE PROVISION OF THE PILLOW SERVICES IS CONTINGENT ON LANDLORD’S AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS OR CONDITIONS, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY IN FULL TO YOU. IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." LANDLORD HEREBY WAIVES THIS SECTION OF THE CALIFORNIA CIVIL CODE AND ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
PILLOW CANNOT GUARANTEE THAT RESIDENTS WILL ABIDE BY THE TERMS OF THIS AGREEMENT REQUIRING RESIDENTS TO UTILIZE THE PILLOW SERVICES FOR EACH SHORT-TERM RENTAL; HOWEVER, PILLOW WILL NOTIFY LANDLORD IF IT DISCOVERS A RESIDENT ACTING IN VIOLATION OF THIS AGREEMENT.
4. Default and Remedies.
4.1 Default; Remedies. Each of the terms, conditions, covenants and provisions of this Agreement is a material consideration for this Agreement, the breach of which shall be deemed a default hereunder. Said default shall be deemed to have occurred if the defaulting party has not effectuated a cure within forty-five (45) days after written notice from the other party specifying the default. In the event of a default by either party hereunder, either party shall have all rights and remedies available to it at law or in equity.
4.2 No Continuing Waiver. No waiver by a party of a breach of any of the terms, covenants or conditions of this Agreement by the other party shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other term, covenant or condition herein contained. The consent or approval by a party to or of any act by the other party requiring consent or approval, shall not be deemed to waive or render unnecessary such party’s consent or approval to or of any subsequent similar acts by the first party.
5.1 Notices. All notices or other communications required or permitted hereunder shall be in writing and personally delivered by nationally recognized overnight courier service, messenger service or registered or certified mail, postage prepaid, return receipt requested. All written communications in accordance with the foregoing shall be deemed given (i) three (3) days after the date it is posted if sent by mail, or (ii) the date the overnight courier or personal delivery is made, or refused by the addressee, at the address set forth below, if delivered by 5:00 P.M., Pacific Time on a business day, the next business day if delivered after 5:00 P.M. of a business day or non-business day. Notice of change of address shall be given by written notice as described in the first paragraph of the Agreement.
5.2 Time of the Essence. Time is of the essence of this Agreement and each and every term and provision hereof.
5.3 Interpretation; Governing Law. This Agreement shall be construed as if prepared by both parties. Accordingly, any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. This Agreement shall be construed, interpreted and governed by the laws of the State of California.
5.4 Severability. If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be invalid or unenforceable, by a court or arbitrator of competent jurisdiction, the remainder of this Agreement and application of such provision to other circumstances, shall be interpreted so as best to reasonably effect the intent of the parties hereto.
5.5 Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, or as the result of any claim or controversy involving the alleged negligence by any party to this Agreement, shall be settled in accordance with the rules of the American Arbitration Association. The arbitrator shall, as part of the award, determine an award to the prevailing party of the costs of such arbitration and reasonable attorney’s fees of the prevailing party. The arbitrator(s) shall apply California law to the merits of any dispute or claim, without reference to conflicts of law rules. The parties hereby consent to the personal jurisdiction of the state and federal courts located in California and agree that such courts shall have the sole and exclusive jurisdiction for any action or proceeding arising from or relating to this Agreement or relating to any arbitration in which the parties are participants.
5.6 Attorneys’ Fees. If either party files any binding arbitration, action or brings any proceeding against the other arising out of this Agreement, whether or not such action or proceeding is prosecuted to judgment (“Action”), then (1) the unsuccessful party therein shall pay all costs incurred by the prevailing party therein, including reasonable attorneys’ fees and costs, court costs and reimbursements for any other expenses incurred in connection therewith, and (2) as a separate right, severable from any other rights set forth in this Agreement, the prevailing party therein shall be entitled to recover its reasonable attorneys’ fees and costs incurred in enforcing any judgment against the unsuccessful party therein, which right to recover post-judgment attorneys’ fees and costs shall be included in any such judgment. The rights and obligations of this paragraph shall survive the termination of this Agreement.
5.7 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION, PROCEEDING OR HEARING BROUGHT BY A PARTY HERETO OR ITS SUCCESSORS AND ASSIGNS ON ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES WITH RESPECT TO THIS AGREEMENT, OR THE ENFORCEMENT OF ANY REMEDY PROVIDED BY THIS AGREEMENT UNDER ANY LAW, STATUTE, OR REGULATION, EMERGENCY OR OTHERWISE, NOW OR HEREAFTER IN EFFECT.
5.8 Jurisdiction. The parties agree that any action or proceeding to enforce or relating to this Agreement, including any arbitration, shall be brought exclusively in the federal or state courts located in the City and County of San Francisco, State of California, and the parties hereto consent to the exercise of personal jurisdiction over them by any such courts for purposes of any such action or proceeding.
5.9 Entire Agreement; Amendments. This Agreement is intended by the parties to be the final expression of their agreement with respect to Landlord’s right to share in any profits from any Short-Term Rental and is intended as the complete and exclusive statement of the terms of the agreement with respect thereto between the parties. As such, this Agreement supersedes any prior understandings between the parties regarding the subject matter hereof, whether oral or written. Notwithstanding the foregoing, Pillow has the right to revise and amend the Standard Terms and Conditions from time to time to reflect changes in market conditions affecting its business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in its system's capabilities. You will be subject to the policies and Standard Terms and Conditions in force at the time that you enter into this Agreement unless any change to those policies or the Standard Terms and Conditions is required to be made by law or governmental authority or if Pillow notifies you of the change to its policies or the Standard Terms and Conditions.
5.10 No Waiver. No delay on the part of any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party hereto of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder, nor shall any single or partial exercise of any right, power or privilege hereunder, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
5.11 Assignment. Neither party shall not have the right to assign its rights and obligations hereunder without the prior written consent of the other party, except that Pillow may assign its rights and obligations hereunder to an affiliate or successor by merger, acquisition or sale of all or substantially all of Pillow’s assets, which assignee agrees in writing to be bound by the obligation of Pillow hereunder. In such case, Pillow shall give Landlord written notice of such assignment to the other party within ten (10) days following such assignment.
5.12 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto (which shall specifically include any affiliate of Landlord that holds an ownership interest in a particular property within Landlord’s portfolio of real estate assets where Pillow Services are being utilized) and their respective heirs, representatives, successors and permitted assigns.
5.13 Headings; Cross-References. The headings and captions used in this Agreement are for convenience and ease of reference only and shall not be used to construe, interpret, expand or limit the terms of this Agreement.
5.14 No Partnership; Restrictions on Liability. Pillow shall not be liable to any employee, agent, contractor, subcontractor, supplier, laborer, architect, engineer, purchaser, or any other party or for any causes of action arising out of or in connection with the Resident’s entering into any Short-Term Rental or Landlord’s management and operation of the Building. Pillow shall not be liable for any debts or claims accruing in favor of any such parties against Landlord, Approved Platform, Resident or any third party in connection with the services described herein or any Short-Term Rental. Neither Landlord nor Resident is or shall be considered an agent of Pillow for any purposes whatsoever. Pillow is not a venture partner with Landlord, Resident or Approved Platform in any manner whatsoever and Pillow shall have no duties of any kind to Landlord, Resident, or Approved Platform including without limitation, any fiduciary duties as to such parties or to any other person, except as expressly set forth herein. Pillow shall not be deemed to be in privity of contract with any party renting out Resident’s Unit. Payments issued to Landlord, Approved Platform and Resident for any matters covered under this Agreement shall be construed to be solely for the benefit of the party receiving such monies and no other person shall be considered a third party beneficiary hereof.
5.15 Counterparts. This Agreement may be executed in several original counterparts, each of which and all together will constitute this Agreement in its entirety.