Airbanaco Terms of Service

(Terms of Service continued)

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6.    MEMBER REPRESENTATIONS AND WARRANTIES

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1.    Representations and Warranties. You remain solely responsible and liable for any and all content and information provided to Airbanaco with regard to your Listing. Accordingly, you represent and warrant that any Listing created by you or on your behalf by Airbanaco:

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a.    will not breach any other agreements you have entered into with any third-Parties, such as homeowners association, condominium, lease or rental agreements; and 

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b.    will be in compliance with all applicable laws (such as zoning laws and laws governing rentals of residential and other properties), tax requirements, and rules and regulations that may apply to any your Listing (including having all required permits, licenses, and registrations).

 

2.    Airbnb Ratings Performance. You understand the importance of Guest ratings as it relates to the overall performance of your Listing as well as Airbanaco’s reputation on Airbnb. You agree to maintain a minimum Guest rating score of at least 4.75 on each of the following Airbnb metrics: Overall Rating, Accuracy, Cleanliness and Check-in, as published on the Progress/Ratings Section of the Airbnb website. If the ratings on any of these metrics fall below 4.75, Airbanaco reserves the right to terminate its Services. 

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3.    Listing Requirements. You warrant and represent that your Listing will meet the following requirements: 

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a.    Self Check-In. Your property offers self-check in via a digital keypad, smart lock, lockbox, property manager, building staff or other means. 

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b.    Availability.  Your property is available for Guest Reservations at least 120 nights of the year. 

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c.    Minimum Nightly Rate. Your minimum Nightly Rate is at or above $200/night. 

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4.    Compliance with Laws, Licenses, and Permits. You agree to abide by all applicable laws, regulations, deed restrictions, association rules, licensing and permit requirements applicable to your Listing for a short-term rental. You are responsible for obtaining and maintaining any applicable license or permit for the use of the Property as a Short Term Rental and for payment of all associated registration or licensing fees. You are required to provide Airbanaco with proof of such registration or licensing, if applicable.

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5.    Exclusivity. You agree that you shall not: a) rent the Property on your own; b) list the Property on any third-Party website; or c) contract with any third-Party for services similar to those offered by Airbanaco. 

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7.    DATA SECURITY AND PROTECTIONS

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1.    Data Security. Airbanaco has or will have in place adequate security procedures and controls to prevent the unintended disclosure of and the unauthorized access to, or misappropriation of, any personal data or information of any Guest. You agree to process, store, transmit, and access any Guest information in compliance with applicable law.  

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2.    Guest Information. All Guest information provided by Airbnb to Airbanaco and transferred to you shall remain confidential. Both Parties agree not to directly or indirectly engage in any solicited or unsolicited marketing, promotional, or similar communications with any Guest other than in connection with their Reservation. 

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3.    Fraud Protection. Airbanaco shall follow the authentication procedures provided by Airbnb. Airbanaco shall not be held responsible for ensuring the identification provided by any Guest on Airbnb is valid and consistent with the Reservation information. If a Guest cannot be verified or if either Party believes that a Reservation by a Guest may be fraudulent, or renting in connection with any illegal or unlawful practice, then the Parties shall work together in good faith to investigate and terminate the potentially fraudulent Reservation. Airbanaco may choose to cancel a Reservation through Airbnb after notifying the Member, and neither Party shall be subject to any payment, penalty, or other amounts for any cancelled Reservation under this Section. 

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8.    CANCELLATIONS OR TERMINATIONS

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1.    Notice of Termination. At any time after the Member’s approval of membership, either Party may give written “Notice of Termination” to the other Party. Notice of Termination by you to Airbanaco must be delivered by e-mail to hello@airbanaco.com Attention: Termination. Following Notice of Termination, the “Effective Termination Date” shall be the check-out date of the last existing Reservation that is in place as of the date the Notice of Termination is delivered, or any other date the Member and Airbanaco mutually agree upon. You and Airbanaco shall honor all existing Reservations and the Airbanaco Service Fees applicable to those Reservations. Upon receiving Notice of Termination, Airbanaco shall immediately remove your Listing on Airbnb and take no further Reservations. Shall you elect to cause existing Reservations to be cancelled, then the Reservation Cancellations terms shall apply to every affected Reservation. If the “Effective Termination Date” is less than 100 days from the Member’s approval of membership date and the Member made use of the professional photographer that Airbanaco hired to take Images of the Member’s new Listing on Airbnb, then Airbanaco has the right to receive $250 to help cover the cost it incurred for the new Listing photography and Airbanaco has the right to deduct up to this amount from the Member’s portion of any future Airbnb payouts.

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2.    Property Availability. To ensure that Reservations are honored and not interrupted, you shall notify Airbanaco if your Property is no longer available or is listed for sale within five (5) days after the listing date. Upon notification, Airbanaco will immediately cease accepting new Reservations for the Listing. Airbanaco shall provide its Services for all existing Reservations for that Listing, and at the end of the last Reservation, shall terminate the Listing. If existing Reservations are in place and you have notified Airbanaco that the Property is no longer available, Airbanaco shall notify the Guest immediately and cancel the Reservation through Airbnb if necessary, subject to the Reservation Cancellation. If you plan to show the Property to buyers, you must schedule showings during periods the Property is not occupied by the Guests. 

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3.    Suspension of Services. Airbanaco shall have the right to suspend its Services to your Property at any time. During such suspension, your Property will not be eligible for new Reservations, and may not be visible on Airbnb. Reasons Airbanaco may suspend your Listing include, but are not limited to: a) false or incorrect Images of our Property; b) false information about your Property; c) your failure to maintain a Guest Rating of 4.75 or higher; d) your failure to inform Airbanaco of other Reservations for the Property not made through Airbanaco; e) your failure to provide a current and accurate bank account information with Airbanaco; f) your cancellation of any Reservation; g) your refusal to accept a Reservation at the decided Nightly Rate; h) suspected fraud, abuse, or unlawful activity; i) Airbanaco’s receipt of one or more complaints regarding the Property; j)  any event or occurrence that would negatively impact Airbanaco’s reputation; k); your mistreatment of Airbanaco or its Affiliates; l) or for any other reason Airbanaco determines, in its sole and absolute discretion.

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4.    Reservation Cancellations. Subject to these Terms, Guests have the right to cancel any Reservation in accordance with the cancellation policy specified on your Airbnb Listing. Shall you cause Airbanaco to have to cancel any Reservation or multiple Reservations for any reason except the “Extenuating Circumstances” as noted below, then you shall be subject to pay Airbanaco either the total amount of the Reservation cost or $2,500 USD per cancelled Reservation, whichever is greater (“Cancellation Fee”). This Cancellation Fee shall compensate Airbanaco for its pre-Reservation Services as well as any damages to its online and offline reputation for cancelling a Reservation. A “Cancellation” shall be defined as a Reservation that has been confirmed between Airbanaco and the Guest  does not take place for any reason. Therefore, if you cause Airbanaco to alter, cancel, or modify a Reservation causing the Guest to no longer stay at your Property, then a Cancellation has occurred. Cancellations, other than in the case of Extenuating Circumstances, constitute a valid reason for Airbanaco to terminate you as a Member.  

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a.    Extenuating Circumstances. In the event that an Extenuating Circumstance arises, you may cancel a confirmed Reservation for a fee of 20% of Airbanaco’s Service Fee or a flat fee of $150, whichever is greater (“Penalty”). Airbanaco may elect to forgo the Penalty in such cases contingent on certain documents which shall include: 

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i.    Death in the family
ii.    Serious illness or serious illness in the family
iii.    Natural disaster in the country
iv.    Political unrest in the country
v.    Serious property damage rendering a material portion of the home uninhabitable (accompanied by verifiable documentation of the damage)
vi.    Serious maintenance issues

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9.    LIABILITIES AND DAMAGES

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1.    Disclaimer. ALL SERVICES OFFERED ON THIS SITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY: (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) 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. 

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2.    Change in Law. If any state, county, city or other government or association statute, rule, law or regulation prohibits the use of the Property as a short-term rental or makes such use economically prohibitive, then Airbanaco may terminate the Listing immediately and neither Party shall be obligated to honor existing Reservations. 

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3.    Limitation of Liability. IN NO EVENT SHALL AIRBANACO BE LIABLE TO YOU, THE CUSTOMER, OR ANY THIRD-PARTY 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 AIRBANACO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT YOU PAID FOR THE SERVICES. The limitation of liability set forth above shall: (i) only apply to the extent permitted by law; and (ii) not apply to liability resulting from our gross negligence or willful misconduct, or death or bodily injury resulting from our acts or omissions.

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4.    Liability Insurance. During the Term, you agree to maintain general commercial liability insurance for each Property for which Airbanaco provides Services or creates Listings under in the amount of at least One Million Dollars ($1,000,000.00) per incident and Two Million Dollars ($2,000,000.00) in the aggregate. Within ten days of becoming a Member, you must provide Airbanaco with a certificate of insurance evidencing: a) coverage in the amounts set forth within this Section; and b) that Airbanaco is identified as an additional insured on your policy. You agree to waive and release any right of subrogation against Airbanaco, its Affiliates, and Airbanaco’s officers, directors, employees, owners and agents as a condition of entering these Terms.

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5.    Indemnification.  You understand and agree, at your sole and exclusive expense, to indemnify and defend Airbanaco and its Affiliates (collectively, the “Airbanaco  Indemnitees”) against any claim or action arising from or related to these Terms, which shall include and not be limited to any and all losses, expenses, costs (including court costs), reasonable attorney’s fees, and damages, including special, general, indirect, consequential, exemplary, punitive, or any other measure of damages, whether arising in contract or tort. Any of the Airbanaco Indemnitees may participate in the defense or settlement of any claim, demand, litigation, administrative proceeding, or other dispute for which you indemnify the Airbanaco Indemnitees under this Section. You also agree not to consent to the entry of any settlement, resolution, or judgment without the prior written consent of the affected Airbanaco Indemnitees, which shall not be unreasonably withheld.

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6.    Force Majeure. Airbanaco will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

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7.    Privacy Policy. Airbanaco respects your privacy and is committed to protecting it. To learn more please visit our Privacy Policy available on the Site, which governs the processing of all personal data collected from you in connection with your use of the Services. You acknowledge and consent to the collection and use of your personal information by Airbanaco for the purpose of using the Site.

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10.    DISPUTE RESOLUTION AND ARBITRATION

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1.    Disputes and Dispute Resolution. If a controversy or claim should arise, the Parties will attempt in good faith to resolve such controversy or claim by negotiation. If the matter has not been resolved within thirty (30) days by negotiation, the Parties will attempt in good faith to resolve the controversy or claim in accordance with mediation, with mutually agreeable rules. If the matter has not been resolved by mediation within sixty (60) days of the commencement of mediation, or if either Party will not participate in mediation, then the controversy shall be settled by binding arbitration. The written decision of the arbitrator shall be binding and conclusive on the Parties. The arbitration shall take place in California or such location as Airbanaco and the Member may mutually agrees upon.  As the only exception to the agreement to submit all disputes to mediation and binding arbitration as provided herein, Airbanaco and  Member both retain the right to pursue an action: (a) in small claims court in any jurisdiction which Airbanaco and the Member consent to the personal jurisdiction and venue of such court; and (b) 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. 

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2.    Class Action and Jury Trial Waiver. THE PARTIES AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS 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. 

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11.    MISCELLANEOUS

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1.    Representations and Warranties. You represents and warrants that: (a) You are the lawful owner, Airbnb Host, or Authorized Entity, who has the authority and written consent to rent the property as a short-term rental; (b) you have full authority to become a Member; c) your agreement to these Terms does not conflict with any contractual or legal obligation to another third-party; (d) the physical condition of the Property, including any special features or amenities, is suitable and safe for use as a short-term rental and in compliance with applicable local building, health, and other codes or regulatory requirements; and (e) use of the Property as a short-term rental is not prohibited by any applicable law, regulation, deed restriction, or homeowners' association by law or rule. These representations and warranties are continuing, and in the event that any of the foregoing representations or warranties is no longer true or correct, you shall immediately notify Airbanaco in writing. 

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2.    Confidentiality.  The Parties agree that these Terms and the payments made or contemplated hereunder, the Service Fees, Reservations, and any information shared by either Party in any form that is designated as “confidential” or which a reasonable person knows or reasonably should understand to be confidential (the “Confidential Information”) will only be used as expressly permitted by these Terms. Confidential Information shall include, but not be limited to, a) information provided by any Guest in connection with any Reservation; b) provided by Airbanaco or any of its Affiliates to you, or otherwise obtained by you in connection with the Services. The Parties agree that any threatened, anticipated, or actual breach of this Section will cause irreparable damage and in addition to all remedies available under law will be remediable by injunctive and any other form of equitable relief. 

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3.    Survival. The terms set forth in Articles IX through XI and all other terms that by their nature should logically survive termination, shall continue in force and effect after the Term.

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4.    Waiver. Any failure by Airbanaco to enforce any provision of these Terms shall not be construed as a waiver of future enforcement of that provision or of any of Airbanaco’s rights and privileges under these Terms. 

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5.    Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.

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6.    Notices. Airbanaco may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide; or (ii) by posting to the Site. Notices sent by e-mail will be effective on the date the e-mail is sent, and notices that are posted on the Site will be effective upon posting. It is your responsibility to keep your e-mail address current and review any new notices on the Site. To give us notice under these Terms, you must contact us by e-mail. Notice by e-mail shall be effective on the date the e-mail is sent. 

7.    Independent Contractor. The Parties are and shall be all times independent contractors to one another, and nothing contained herein shall be construed to create any other relationship between the Parties. Neither Party shall be responsible for the  supervision, control, or any other liabilities to the other Party. Neither federal, nor state, nor local income tax, nor payroll tax of any kind, shall be withheld or paid on behalf of either Party.

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8.    Governing Law. These Terms shall be construed under, governed and enforced in all respects, including interpretation, by the substantive laws of the State of California without regard to California choice of law provisions.

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12.    DEFINITIONS

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1.    Affiliate means any company, corporation, partnership, limited partnership, limited liability company, trust, or other entity that is a parent, subsidiary, or has any owner in common with Airbanaco.

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2.    Guest means a user of Airbnb who uses the Airbanaco Services in connection with its rental of a Property from a Member. 

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3.    House Manual means the content section of your Listing that explains features and Amenities of your Listing, and includes special instructions for Guests to ensure a trouble free check-in, check-out and stay. Guests will receive this information once they’ve confirmed a Reservation.

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4.    Images means images of the Property that you own or have the full right to license to Airbanaco for its use, including on the Site and Airbanaco channels, under these Terms. 

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5.    Key Performance Indicators (KPI’s) means the individual measures Airbanaco has identified to measure the performance of your Listing. These include, but are not limited to, Average Daily Rate, Occupancy Rate, Guest Satisfaction Score, Trips Reviewed, Last Updated, Daily Views, 30 Day Views, Booking Rate, Response Rate, Response Time, Overall Rating, Accuracy Rating, Cleanliness Rating, Communication Rating, Check-in Rating, and Value Rating. These indicators are published directly by Airbnb for your Listing or are derived from calculations using the information published by Airbnb for your Listing. These KPI’s are subject to change from time to time. 

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6.    Listing means an online description of the Property that advertises, markets, promotes or otherwise communicates the availability of the Property for a Reservation by a Guest, and which shall be created by Airbanaco or a Member on its own or using information you provide (including Images and promotional writing or materials you previously created in connection with the Property), to be distributed on the Site and through any of the Airbanaco channels.

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7.    Nightly Rate means the amount a Guest shall pay, or is payable by the Guest, per night with respect to the Property, not including taxes, fees, charges, or any other costs imposed on Guests by Airbnb or Airbanaco. 

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8.    Payout means the amount paid out by Airbnb for each Reservation. This is the amount published on the Airbnb website for each Listing on the Progress section and Transaction History page for each respective Reservation.

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9.    Property means each and every separate property a Member identifies and enlists the Services to cover by completing the Member application on the Site.

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10.    Reservation means the scheduling of a Property, for occupancy for one or more nights by a Guest through Airbnb or Airbanaco. 

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11.    Short-Term Rental means a Property or Listing that is available for rent by a Guest for a period of less than 30 days.