Listing Agreement Terms and Conditions

The TERMS AND CONDITIONS (the “Listing Agreement”) is entered by AirPads Inc., a Nevada corporation (“AirPads”), and You (identified using the terms You, Your, Yours, Yourself, and so forth), individually a “Party” and collectively the “Parties,” as of the date AirPads approves this Agreement and notifies You of its acceptance (the “Effective Date”), and contains the terms on which AirPads will provide promotional and marketing services to You through AirPads’ Services, as defined below.

 

  1. SERVICES. Upon its acceptance of this Agreement on the Effective Date, AirPads shall provide the following services (collectively, the “Services”) during the Term of the Agreement:

    1. Promotion.  Using the Images and information You provide to AirPads, it shall engage in the listing, display, promotion, and marketing of the Property on the Website and through the AirPads Channels.  This may include, subject to the terms and conditions of this Agreement, the display of Images depicting the Property, the use of Your description of the Property and AirPads’ own description of the Property, and using commercially reasonable measures to ensure the distribution of these Images and descriptions so that travelers, third parties, and potential guests may create a Reservation to use the Property for a specified number of nights through AirPads’ online technology, specifically including its booking, reservation, and payment processing systems (collectively, the “AirPads Technology”).

    2. Calculation of Rates.  As set forth below, and subject to the terms and conditions of this Agreement, You shall set your minimum rates per Addendum A, Property Set Up.

    3. Rate Management. Airpads will manage the nightly Rate(s) at which the Property will be promoted or displayed as being available for Reservations.

    4. Support and Marketing.  AirPads shall, to promote and facilitate Reservations of the Property, communicate with prospective and actual guests who make any Reservation of the Property by phone and by e-mail, including answering questions and providing information regarding the Property and AirPads’ services, and respond to customer service questions before, during, and after any Reservation by any guest.  As set forth below, AirPads shall accept and schedule Reservations submitted by guests and communicate with You regarding those Reservations.  AirPads may provide or discontinue additional and other services as it may determine, in its sole and absolute discretion, is desirable from time to time.

    5. Acceptance of Reservations.  Using the AirPads Technology, AirPads shall accept Reservations of the Property in a manner that does not overlap with other Reservations made through AirPads.  At the time of any guest making a Reservation, AirPads shall collect payment of the Rate(s) charged for each night of the Reservation via credit card, debit card, or other means that may be available and accepted from time to time through the AirPads Technology.

    6. Notification of Reservations. AirPads will provide You with notice of each Reservation processed by AirPads, whether made through the Website or any of the AirPads Channels.  Within two days of AirPads providing this notification to You, You must confirm receipt of this Reservation of the Property.  You must honor every Reservation for which You receive a Reservation notification from AirPads.

  2. COMPENSATION.  For each night of a stay covered by a Reservation any guest makes through AirPads (or which is made by AirPads), such as through its Website or through an AirPads Channel, AirPads shall be entitled to compensation (the “Compensation”) in the amount of:

    1. Commission. 10% of the gross revenue AirPads receives for any reservation of Your Property (the “Reservation Service Fee”) whether through the Website, any AirPads Channel or by any other means.  The Parties agree that the Reservation Service Fee may be increased at Your discretion or pursuant to an Amendment to this Agreement as set forth below;

    2. Booking Fee.  which is to be paid by any guest at the time of making a Reservation, and is defined to be a fee equal to or less than 15% of the gross amount of any Reservation paid by the guest to AirPads for any Reservation of Your Property through AirPads, including through the Website or any AirPads Channel.

    3. Release of Payment.  AirPads shall release all payment it receives for a Reservation, less any credit card processing fees and AirPads’ Compensation, to You on the 2nd business day after the Reservation’s scheduled conclusion.  You are obligated to maintain current and valid bank account information on file with AirPads for the release of payment to Your account.  All such transfers will be performed by ACH or equivalent transfer of funds; AirPads will not transmit physical cheques or perform wire transactions.  AirPads shall not be responsible for any full or partial refunds, incidental fees, damage or destruction of the Property, or other costs.  AirPads reserves the right to offset, recoup, or reduce any damages or expenses it incurs by withholding any payment due to You in an amount equal to AirPads’ expenses or damages.

  3. YOUR OBLIGATIONS. Upon AirPads’ acceptance of this Agreement on the Effective Date, and throughout the Agreement’s Term, You shall have the following obligations to AirPads:

    1. Provision of Images.  You understand and agree that as a condition of entering this Agreement, within ten days of the Effective Date, You shall submit to AirPads at least 20, and no more than 30, images of the Property that You own or have the full right to license to AirPads for its use (the “Images”), subject to the conditions below.

    2. Licensing.  You grant AirPads and its Affiliates a perpetual, irrevocable, non-exclusive, royalty-free, fully paid right and license to use, reproduce, distribute, and display the Property, Images, and all other information You submit to AirPads for AirPads’ and its Affiliates’ use in identifying, promoting, marketing, and otherwise obtaining Reservations for the Property.  You further agree to provide AirPads reasonable free access to the Property in order to obtain images that AirPads shall create and own in their entirety for AirPads’ and its Affiliates’ use in identifying, promoting, marketing, and otherwise obtaining Reservations for the Property.  You represent and warrant that You are the owner or authorized licensee of all Property information and the Images and that such content, and AirPads and its Affiliates’ use, reproduction, distribution, and display of such content, does not and will not violate the rights of any third party.  You hereby represent that You have all necessary rights to grant AirPads and its Affiliates the right and license granted above and that Your consent may be shared directly with third parties.  Any additional advertising or marketing to be performed for You or the Property shall be governed by AirPads’ then-existing marketing terms and conditions.  AirPads and its Affiliates may remove, edit, alter or expand upon the Property description and images You submit to AirPads for any reason, and within AirPads’ and its Affiliates’ sole and exclusive discretion, and You agree and consent to AirPads’ and its Affiliates’ irrevocable right to do the same.  This Agreement does not grant You any ownership interest in, or any express or implied license or right to, any of the materials on the Website, or any of AirPads’ software, intellectual property rights, computer code, copyrights, or trademarks.  The Images and other information You provide to AirPads shall be equal to or better than the comparable information You have supplied to any third party to promote the Property for any reason.

    3. Notification of Change of Ownership.  Within two days of any change or transfer of the Property’s ownership, You shall inform AirPads of the change in the Property’s ownership, and advise whether the Property’s new owners wish to maintain this Agreement, or intend to terminate its obligations.  AirPads reserves the right to terminate this Agreement immediately upon discovering any change in the Property’s ownership.

    4. Property Safety.  Upon AirPads providing You notice of a request for such information, You agree to, within five days, provide AirPads with a copy of You're state and local business licenses, operating licenses, and other certificates or credentials for Your ownership and lawful operation of the Property in the manner contemplated by this Agreement.  This shall include documentation, if any, indicating Your compliance with the health and safety obligations imposed by Your country, state, province, county, city, or other municipality, required for You to operate legally within the jurisdiction(s) where the Property is located.  Additionally, AirPads may provide You with a safety self-assessment survey at any time; You agree to complete this survey truthfully and accuratel and return it to AirPads within five days of receiving it.  You additionally agree to permit any employee, vendor, third party, or other designee of AirPads to carry out a safety review and health inspection of the Property.  If, as a result of Your responses to AirPads’ safety self-assessment survey and/or its inspection, AirPads recommends alterations or enhancements to the Property to improve its health and safety characteristics, You agree that You will implement such recommendations within an amount of time mutually agreed by You and Airpads.  If You fail to comply with Your obligations under this Section, AirPads may terminate this Agreement upon providing You with written notice of doing so.

    5. Taxes.  You acknowledge that You are solely responsible for the accuracy of Tax rate information, the identification of applicable Taxes, and any changes to the Tax rates You provide to AirPads from time to time, and which AirPads shall collect from guests when making payments for Reservations.  You are responsible for accounting to the relevant tax authorities for any and all Taxes applicable to any amounts You receive from AirPads for any Reservations in connection with the Property, including but not limited to Your services provided to guests where applicable.  Within five days of receiving notice of AirPads’ request for the same, You shall provide AirPads with documentation to substantiate Your registration with and/or remittance of all due Taxes to the applicable taxing authorities.  Further, the Compensation AirPads receives under this Agreement is exclusive of any Tax, including sales, value-added, turnover, withholding, or other transaction-based tax in any country, state, province, county, city, or other locality or municipality, and where such tax applies it shall be paid by AirPads to You.  AirPads’ Compensation shall be collected in cleared funds, without any deduction or setoff, and exclusive of and without any deduction for, or on account of, any Taxes, imports, duties, charges, fees, or withholdings of any kind.  In the event You are required to make such a deduction or withholding, You agree that the Compensation due to AirPads under this Agreement will not be less than the Compensation that AirPads would have received if no deduction or withholding had been required.  Upon five days of receiving a notice requesting the same from AirPads, You will provide AirPads with valid tax invoices relating to any transactions entered into under this Agreement, or rising from the Agreement, where Taxes are chargeable under applicable law.  Upon five days of receiving a notice requesting the same from AirPads, and prior to receiving any funds under this Agreement, a duly completed and signed copy of IRS Form W-9, or other documentary evidence satisfactory to AirPads, to establish You are not subject to any Tax withholding, or are entitled to an exemption from, or reduction of, any applicable Taxes requiring withholding.  You agree to promptly provide AirPads with notice of any change of circumstances that would cause You to be subject to any Tax withholding, or modify or render invalid any exemption or reduction of withholding for any Tax.  You also shall take any action necessary to avoid any requirement that AirPads make any deduction or withholding for any Tax from any amounts AirPads may be required to pay to You under this Agreement.  Your failure to discharge the obligations under this Section shall allow AirPads to deduct and withhold from You any payment in such amounts as is required for AirPads to make any withholdings required under applicable law, statute, ordinance, regulation, or rule.  Any and all amounts withheld by AirPads pursuant to any Tax shall be deemed and treated as if paid to You as required by this Agreement.

    6. Data and Security.  You understand and agree that You have in place and will maintain, or will establish and maintain, 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 that You shall process, store, transmit, and access any guest information in compliance with applicable law.  Further, unless You receive written consent directly from the guest, You and Your affiliate will not directly or indirectly engage in any solicited or unsolicited marketing, promotional, or similar communications with any guest that has booked a room through the Website or any AirPads Channels.

    7. Linking.  You agree not to include any links to Your personal website, or any other website where the Property is available for lease, reservation, booking, or other scheduling of use, through any AirPads Channel.

    8. Non-Discrimination.  You understand and agree that You shall not treat any guest that makes a Reservation through AirPads differently than You treat or would treat any other guest that makes a similar reservation, booking, or otherwise pays for the use of the Property, through any other channel, medium, or service.  Any restrictions, rules, policies, conditions, or other policies that You may apply to the Property, including rules associated with cancellation of any reservation or booking of Your Property, shall not be more restrictive when applied to AirPads and AirPads’ Reservations than You apply those  restrictions, rules, policies, conditions, or other policies to any third parties, including any channel or medium, through which You receive any reservation, booking, or otherwise paid use of the Property.  Further, You understand and agree that Your application of these restrictions, rules, policies, conditions, or other policies to AirPads’ Reservations with respect to the handling of “overbooking,” allocation of room sizes and types (including options relating to number and type of beds, bedding, other accessories or appliances, views, and other differentiating features of rooms within the Property), Your provision of regular services and amenities within the Property, and the charging of any and all fees associated with the Property’s use.

    9. Anti-Fraud Protection.  You understand and agree that You are solely responsible for ensuring that the identification presented by any guest is valid and consistent with the Reservation information AirPads provides to You.  If any Party believes a Reservation is or may be fraudulent, or used in connection with any illegal or unlawful practice, or certain data provided by a guest for a Reservation cannot be verified, then the Parties shall work in good faith to investigate and potentially terminate, at AirPads’ election, a fraudulent or potentially fraudulent Reservation.  AirPads may cancel at any time, including after check-in and through any time of the Reservation prior to the guest’s check-out, any fraudulent or potentially fraudulent Reservation at any time without any penalty or amount due to You.  You acknowledge that neither AirPads nor any of its Affiliates shall have any liability to You for any payment, penalty, or other amounts or sums in connection with any fraudulent or potentially fraudulent Reservations, whether or not cancelled by any Party.  Further, You represent that neither You nor the Property, nor any beneficial owner of You (if You are a corporation, company, partnership of any variety, trust, or entity other than a natural person) or the Property, are incorporated in or a resident of any country subject to trade sanctions by OFAC, or are listed as a Specially Designated National, a Specially Designated Global Terrorist, a Blocked Person, or any similar designation as OFAC may create or maintain from time to time under its sanctioning authorities

  4. TERM AND TERMINATION. This Agreement shall commence on the Effective Date and shall remain in effect unless earlier terminated by You or AirPads by giving at least 30 days’ prior written notice to the other, or is terminated as otherwise provided within this Agreement.  Upon breach of any obligation in this Agreement, the non-breaching Party shall notify the breaching Party of the breach, and the breaching Party shall have 15 days to cure such breach.  Notwithstanding the foregoing, any breach of the Agreement that AirPads deems to be material or incapable of being cured, AirPads shall have the right to remove any listings of the Property from any and all AirPads Channels, and further may terminate this Agreement immediately without notice.  If the breach capable of being cured is not cured at the conclusion of the 15-day period, this Agreement shall immediately terminate, and both Parties shall be relieved of any obligations arising from this Agreement.

  5. CANCELLATION OF RESERVATTIONS.  Subject to the terms and conditions of this Agreement, AirPads reserves the right to cancel a Reservation at any time.  You shall not cancel any Reservation and shall not encourage any guests to cancel any Reservations.  Any Reservations cancelled by AirPads and/or a guest will, at AirPads’ option, be relocated at Your sole and exclusive expense, which AirPads may recoup from, charge against, or offset from any amounts AirPads may owe to You.  AirPads is entitled to its Commission from all Reservations even if they ultimately are cancelled, no-shows, or similarly modified or withdrawn.

  6. RELOCATION OF RESERVATIONS. If You are, or reasonably believe You will be, unable to honor a Reservation, You understand and agree that You shall immediately notify AirPads of this inability, relocate the affected guest to a comparable property, pre-pay or make other arrangements to cover the room charges at such property for the nights for which relocation is needed in addition to all additional transportation and relocation costs, and waive any additional fees or other additional payments that otherwise would be payable to You by AirPads or the guest as a result of the Reservation.  AirPads reserves the right to perform any or all of these tasks, in which case You agree to reimburse AirPads for its actually incurred expenses, including applicable room and property charges levied by the alternative property or other accommodations, and further reimburse AirPads for all associated guest relocation costs AirPads incurs, and which AirPads may recoup from, charge against, or offset from any amounts AirPads may owe to You.

  7. RATE MANAGEMENT. You authorize AirPads to manage the rates on Your behalf, and in accordance with this Agreement, the Rates, together with any applicable charges, Taxes, or other amounts payable, based on information You provide to AirPads, and any such action by AirPads to derive such Rates, Taxes, and other fees, or other amounts on Your behalf, shall be deemed to be Your action, for purposes of this Agreement.  Notwithstanding the foregoing, You understand and agree that You will immediately notify AirPads if You believe that AirPads has incorrectly derived any Rates, Taxes, charges, or other fees or amounts relating to Your Property.  You agree to honor all Reservations made during the Term at the Rate(s) AirPads sets for guests at the time such Reservation is made, including Reservations scheduled to occur during or after the expiration or termination of this Agreement.  You agree to regularly update the applicable Taxes, fees, charges, and other expenses (or the information needed from You for AirPads to derive this information) as necessary for AirPads to perform the Services under this Agreement.  You understand and agree that You will not require guests to pay any fees or surcharges relating to their payment process or method of payment (e.g., guests will not be charged any fees or surcharges for credit or debit card payments).  You understand and agree that AirPads shall have full authority to determine and offer, in its sole and absolute discretion, the Rate(s) at which the Property is listed and promoted as available for Reservations on the Website and any AirPads Channels, and further understand that the Rate(s) may fluctuate daily or even within the same day based on AirPads’ calculation of demand and interest in the Property; provided, however, that You may specify a minimum rate below which the Property cannot be offered for reservations, provided that the minimum Rate You provide to AirPads will be equal to or better than those approved through Your own use or any other third party booking, reservation, or distribution channels other than AirPads.

  8. ORDER OF DISPLAY.  Any Property displayed on the Website will appear in an order determined by AirPads in its sole and absolute discretion.  AirPads cannot ensure You that it has any control over the content, order, appearance, or any other aspect of the listing, description, images depicting, or any other information relating to Your Property that may be displayed through any AirPads Channels.  The sort order, search result order, appearance, and other display of any Property listed on the Website shall be subject to the limitations of liability within this Agreement.  Regardless of the description of how a listing of any Property should appear in the sort order on the Website or through any AirPads Channels, the sort order, search result order, appearance, and other display or description of the Property, or non-appearance of the same, shall be impacted by the search terms and activities of any traveler, guest, potential guest, or third party searching for a Property on the Website or any AirPads Channels.  AirPads reserves the right, at any time and without prior notice, to suspend, remove, or terminate any listing, description, promotion, advertisement, or other information of any kind relating to a Property.  AirPads does not guarantee that any listing, description, promotion, advertisement, or other information of any kind relating to a Property shall appear in any particular order, manner, or even appear at all, on the Website or through any AirPads Channels.

  9. SUSPENSION OF AGREEMENT.  AirPads shall have the right at any time to suspend its provision of the Services to Your Property.  During such a suspension, Your Property will not be eligible for new Reservations, and may not be visible on the Website or the AirPads Channels.  Without limiting AirPads’ rights to terminate the Agreement, AirPads may suspend the Services to Your Property in its sole and exclusive discretion, for any reason or no reason at all, and for any duration.  The reasons AirPads may suspend the Services offered to Your Property include, by way of example but not limitation, Your submission of false or incorrect Images; Your submission of false or incorrect information about the Property; Your failure to timely confirm Reservations with AirPads; Your failure to inform AirPads of other reservations for the Property not made through AirPads; Your failure to maintain current and accurate bank account information with AirPads; Your cancellation of any Reservation; Your refusal to accept a Reservation at the Rate(s) set by AirPads; suspected fraud, abuse, or unlawful activity; AirPads’ receipt of one or more complaints regarding the Property; any event or occurrence that would cause third parties to view AirPads in a negative or unflattering light, as determined in AirPads’ sole and exclusive discretion; Your mistreatment of AirPads’ employees, agents, vendors, or contractors; or for any other reason AirPads determines, in its sole and absolute discretion, justifies suspension of the Agreement.

  10. LIMITATION OF LIABILITY.  You shall irrevocably release and hold harmless Airpads, its officers, directors, employees, agents, and its Affiliates, from all claims arising from this Agreement and any Reservations obtained through AirPads, the Website, or the AirPads Channels, whether those claims are brought by any guest or any third party. You expressly agree to release AirPads, its officers, directors, employees, agents, and its Affiliates for claims of any kind, including those arising in tort or contract, or under other law (e.g., the Fair Housing Act and other federal law, whether or not relating to housing or accommodations), and release AirPads, its officers, directors, employees, agents, and its Affiliates from any claim for damages of any kind, whether arising from contract or tort, in law or equity (and including any and all claims for injunctive or declaratory relief), including special, general, indirect, consequential, exemplary, punitive, or any other measure of damages, and further release AirPads from any claim for attorneys’ fees and costs in any claim or dispute. You further shall hold AirPads, its officers, directors, employees, agents, and its Affiliates harmless for any claims a guest or third party brings against You in connection with this Agreement or the Property specified in this Agreement.  You agree and understand that in the event of any claim, loss, injury, or other damage, relating to or arising from this Agreement or the Property’s use under this Agreement, You agree to seek any recovery for such injury or loss exclusively from Your insurer, and You irrevocably waive all right of recovery against AirPads, its officers, directors, employees, agents, and its Affiliates for any claim, loss, injury, or other damage, arising by way of subrogation.

  11. INDEMNIFICATION.  You understand and agree, at Your sole and exclusive expense, to indemnify and defend AirPads, its Affiliates, and its officers, directors, employees, or agents (collectively, the “AirPads Indemnitees”) against any claim or action arising from or related to this Agreement, 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.  You further agree to pay the AirPads Indemnitees’ court costs and reasonable attorney’s fees under this section on a monthly basis as they are incurred by any of the AirPads Indemnitees.  Any of the AirPads Indemnitees may participate in the defense or settlement of any claim, demand, litigation, administrative proceeding, or other dispute for which You indemnify the AirPads Indemnitees under this Section.  You also agree not to consent to the entry of any settlement, resolution, or judgment without the affected AirPads Indemnitee’s prior written consent, which shall not be withheld.

  12. DISCLAIMER OF CERTAIN WARRANTIES.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, AIRPADS MAKES NO WARRANTIES, REPRESENTATIONS, COVENANTS, OR GUARANTEES WITH REGARD TO THE SERVICES OR ANY DISTRIBUTION OR INTEGRATION, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR USEAGE OF TRADE.  IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY SIMILAR OR RELATED CLAIMS, ARISING FROM OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  13. NO CONTROL OVER PROPERTY.  AirPads does not in any way, whether indirectly or directly, own, manage, operate, or control the Property subject to this Agreement.  You understand and agree that AirPads is not and shall not be considered a property manager for the Property, and the full extent of the Services provided by AirPads are defined entirely within this Agreement; AirPads does not, and shall not, provide any physical, administrative, or financial maintenance or management of the Property.  Where such services are desired or needed for the Property, whether at Your request or by applicable law, upon AirPads receiving notice of Your request or need for a property manager, AirPads shall provide You with information relating to potential property managers for You to separately engage as desired or needed, at Your sole and individual cost and expense.  AirPads’ recommendation of a property manager shall not constitute its recommendation, referral, endorsement, or promotion of any particular property manager, and You agree to hold harmless and release AirPads from any claims arising from Your relationship with any property manager You may choose to engage to manage or assist in managing the Property, whether identified or not identified by AirPads.

  14. DISPUTE RESOLUTIONS.  Subject to the choice-of-law and forum selection provisions in this Agreement, You agree to work with AirPads in good faith to resolve any disputes arising under or related to this Agreement, and until such dispute has been resolved in a manner satisfactory to the Parties.  While there is any dispute of any kind between You and AirPads, You agree that You shall not a) contact any guest who books a Reservation at the Property; b) charge or attempt to charge, or collect or receive any funds from, any guest, whether directly or indirectly, for any disputed amount; c) refuse to honor any Reservation; d) take any other action likely to interfere with any guest’s Reservation or use of the Property; or e) apply any payment You receive from AirPads for any other Reservation to the disputed Reservation.  You are responsible for any changes or services that a guest may request directly from You, and You are solely responsible for collecting from the guest any charges for such changes or guest-requested services.

  15. WARRANTIES.  As an inducement to enter into this Agreement, the Parties represent and warrants to the other that: a) it has the full right and legal authority to enter into this Agreement, whether for itself or on behalf of a third party (e.g., if You are a property manager, trustee, guardian, or other representative authorized to act and enter this Agreement for or on behalf of the Property’s owner(s)); b) it has taken all necessary corporate or other required internal legal actions to duly approve the making and performance of this Agreement; c) the making and performance of this Agreement will not violate any provision of law, of its articles of existence or any other documents governing its legal existence; d) it has read this entire Agreement and knows the contents hereof, the terms hereof are contractual and not merely recitals, and it has signed this Agreement of its own free act; e) in making this Agreement, it has obtained the advice of legal counsel; and f) it has not assigned, licensed or granted to any third party any of the rights that are the subject of this Agreement, any of the claims that are the subject of the releases or covenants contained herein, or any interest therein.

  16. CONFIDENTIALITY. The Parties agree that this Agreement, its terms, the payments made or contemplated hereunder, the Compensation, the 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 the terms and conditions of this Agreement.  For the avoidance of doubt, Confidential Information shall include, but not be limited to, information a) provided by any guest in connection with any Reservation; b) provided by AirPads or any of its Affiliates to You, or otherwise obtained by You in connection with this Agreement and AirPads’ pricing, Compensation, Compensation Percentage, or collections or payment to You.  Confidential Information shall not, however, include any information that a) becomes publicly available without the receiving Party’s breach of any obligation to the disclosing Party; b) was known to the receiving Party prior to the disclosing Party’s disclosure of such information; c) became known to the receiving Party other than the disclosing Party where the source of the disclosure was not in breach of any obligation of confidentiality owed to the disclosing Party; or d) is independently developed by the receiving Party.  Without the express written consent of the Party whose information is to be disclosed, during the Term of this Agreement and after it for a period of two years, no Party shall disclose or allow the disclosure of any Confidential Information of another Party to any third party; provided, however, that a Party may disclose Confidential Information to its officers, directors, employees, agents, attorneys, accountants, independent contractors, or consultants on a need-to-know basis, provided that said Party has executed appropriate written agreements with each such individual or entity sufficient to comply with the provisions of this Section.  A Party may disclose the other Party’s Confidential information if required to do so to comply with a court order or other governmental demand that has the force of law; provided, however, that prior to Your disclosure, You must provide us with notice of the request for disclosure as soon as learning of the request for the Confidential Information, and You additionally must seek the highest level of protection available from the court, tribunal, or governmental authority seeking disclosure of AirPads’ Confidential Information, including but not limited to seeking a protective order, moving to quash the request, warrant, or subpoena, and taking all other measures that may prohibit the disclosure of AirPads’ Confidential Information.  The Parties agree that any threatened, anticipated, or actual breach of this Section of the Agreement 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. 

 

 

  1. MISCELLANEOUS.

    1. Notices.  Where required by this Agreement, notices shall be sent via certified U.S. Mail, return receipt requested, electronic mail transmission, or via nationwide overnight courier (e.g. UPS or FedEx), and sent, if to You, to the address or e-mail address You set forth at the end of this Agreement, or if to AirPads, to 110 West 11th Street, Suite 350, Los Angeles, California, 90015, Attn: Legal Counsel, or to <legal@airpads.com>.  All notices must be written in the English language to be effective.  Notices are deemed given, received, and effective upon the date of delivery if sent by Certified U.S. Mail or nationwide overnight courier, or the same day as the e-mail notice is transmitted if sent before 5:00 p.m. Pacific Time (otherwise the notice shall be deemed made the following business day).  In the event either Party’s address changes during the Term of this Agreement, the Party whose address changes shall provide notice as prescribed under this Section to the other Party within ten days of any such change of notice address.

    2. Full Agreement. This Agreement contains all terms between the Parties, and may not be modified, altered, or changed in any way except in a writing signed by both Parties.

    3. Waiver.  No waiver by any Party of a breach or a default hereunder shall be deemed a waiver by such Party of a subsequent breach or default of a like or similar nature.

    4. Severability.  If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause, or provision and such invalid term, clause, or provision shall be deemed to be severed from the Agreement.

    5. Amendments.  No amendment, alteration, modification, or variation of this Agreement shall be valid or binding unless set forth in a further written agreement executed by all of the Parties hereto.

    6. Further Assurances.  AirPads may seek recoupment or offset for any amounts You owe to AirPads during the Term of this Agreement and for any other contract, agreement, or other relationship between You and AirPads and any of its Affiliates.  AirPads may exercise this recoupment or offset for any of these relationships from funds it otherwise owes to You.  Further, AirPads may request upon written notice, and You shall be obligated to provide, further notices in a form reasonably required by AirPads, in its sole and absolute discretion, as a condition of AirPads continuing with this Agreement.

    7. Assignment.  Except as authorized in this Agreement, You may not assign this Agreement nor any rights conferred under it in any manner without the prior written consent of AirPads, which shall not be unreasonably withheld, delayed, or conditioned. Notwithstanding the foregoing, AirPads may assign this Agreement or its rights or interests hereunder to a) an Affiliate; or b) in connection with any merger, acquisition, reorganization, sale of all or substantially all of its assets or ownership securities (whether they be membership interests, shares of stock, or any equivalent thereto).

    8. Independent Contractors.  Nothing in this Agreement shall be deemed or construed to constitute or create any agency, franchise, partnership, joint venture or affiliation agreement between the Parties; neither Party shall have any power to obligate or bind the other Party in any manner whatsoever; and neither Party in any way represents itself as a guarantor of the quality of any product or service produced or provided by the other Party. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their companies and affiliates, partners, officers, shareholders, employees, directors, successors and assigns.

    9. Compliance with Applicable Laws.  Each Party will ensure full compliance with all applicable laws, rules, regulations, statutes, ordinances, and decisional authority.  Each party agrees that it shall not engage in any unlawful practice in connection with this Agreement.  To the extent any provision within this Agreement is contrary to any law, rule, regulation, statute, ordinance, or legal decision by a court or regulatory body, only that provision of this Agreement shall be null and void, and the laws of the country, state, county, municipality, or other political subdivision where the Property is located shall take precedence over that term of this Agreement.

 

18.    GOVERNING LAW AND FORUM. This Agreement shall be construed under, governed and enforced in all respects, including interpretation, by the substantive laws of the State of Nevada without regard to Nevada’s choice of law provisions, as AirPads is organized and existing under the laws of the State of Nevada and maintains its headquarters within Clark County, Nevada. In the event either Party seeks to enforce this Agreement or assert a claim for breach, the Parties hereby consent to the exclusive jurisdiction of state and federal courts sitting in Clark County, Nevada in the United States of America to enforce this Agreement, any violation thereof, and any matter related to or arising from this Agreement.  The Parties consent to personal jurisdiction in such courts and waive any objection based on personal jurisdiction grounds or the doctrine of forum non conveniens.  The Parties agree to bear their own attorneys’ fees and costs in any dispute.

  1. Construction of Agreement. Each of the Parties has participated in the drafting of this Agreement after consulting with counsel, and the language of this Agreement shall therefore not be presumptively construed either in favor of or against any of the Parties hereto.

  2. Parties Bound.  This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their companies and affiliates, partners, agents, attorneys, officers, shareholders, employees, directors, successors and assigns.

  3. Counterpart Signatures.  This Agreement may be signed in one or more counterparts, with signatures evidenced by fax, scanned e-mail, or PDF documents; each counterpart will be deemed an original hereof for all purposes, and all of which, taken together, shall be deemed to constitute but one agreement.

  4. Caption and Titles.  The captions and titles contained in this Agreement are inserted herein only as a matter of convenience and for reference and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision hereof. 

  5. Advice of Counsel.  The Parties agree, and have initialed below, indicating that they have read and specifically agreed to this Section, that they have carefully reviewed this Agreement, that they understand its terms, that they sought legal advice with respect to this Agreement, and that they have relied wholly on their own judgment and knowledge and have not been influenced to any extent whatsoever in making this Agreement by any representations or statements made by any other signatory or anyone acting on behalf of any other signatory.

  1. DEFINITIONS. Unless otherwise defined within this Agreement, the words, terms, and capitalized phrases used above shall have the meanings assigned to them below:

    1. “Affiliate” shall mean any company, corporation, partnership, limited partnership, limited liability company, trust, or other entity that is a parent or subsidiary of AirPads, or has any owner in common with AirPads.

    2. “AirPads Channel” shall mean the Website or any other distribution or listing service used by AirPads to market, advertise, display, list, or make the Property available for reservations.

    3. “Force Majeure Event” means an unforeseeable act or event beyond that Party’s reasonable control, such as war, work stoppage, general strike, fire, natural disaster, air carrier interruption, government action, riot, or other act of god; provided, however, that a Force Majeure Event does not include economic hardship, changes in market conditions, bankruptcy or receivership, litigation, or insufficiency of funds.

    4. “Minimum Rate” shall mean the minimum nightly for which AirPads will make the Property available for Reservations, which You shall specify for the Property as set forth in Addendum A.  You understand that, if applicable in the foregoing Agreement, AirPads’ Compensation may be paid as a percentage of this Minimum Rate.  You understand and agree that the Minimum Rate(s) you provide to AirPads for the Property or any component of the Property shall be at least ten percent (10%) lower those made available through Your own distribution channels, or any distribution channels owned or operated by any third parties.

    5. “Property” shall mean the piece or pieces of real property located at the address You identify within Addendum A to this Agreement, which shall be deemed part of this Agreement and subject to its terms and conditions as if Addendum A and the information You contribute to it are fully set forth herein, and which you agree to update from time to time in order to include propose additional pieces of real property for inclusion within this Agreement and provide to AirPads through the procedures for giving notice described in this Agreement. AirPads shall have no obligations to provide any Services to any properties at any addresses unless and until i) You identify the additional piece or pieces of property in an updated and fully completed Addendum A and properly provide the same to AirPads in the manner prescribed for giving notice under this agreement, and ii) AirPads executes Addendum A and accepts the listed piece or pieces of Property under this Agreement.

    6. “Rate” means the amount a guest shall pay, or is payable by the guest, with respect to the Property, not including Taxes, fees, charges, or any other costs imposed on guests by AirPads, and which shall be equal to or greater than the Minimum Rate, defined above.  AirPads shall calculate any and all Rates in its sole and absolute discretion.

    7. “Reservation” shall mean the scheduling of a Property for occupancy for one or more nights by a guest through any AirPads Channel for which AirPads is responsible for charging and/or collecting payment from the guest for such scheduled occupancy at the time the occupancy is scheduled.

    8. “Tax” means any sales, use, value-added, occupancy, accommodation, lodging, tourism, excise, gross receipts, ad valorem, goods and services, or other taxes, however defined and that may be due to or assessed by any authority (including any associated interest, penalties, enhancements, or additions to the tax) imposed with respect to travel- and lodging-related goods and services in any country, state, province, locality, or other municipality.

    9. “Website” shall mean the interactive website found at <airpads.com>.

 

By accepting the terms and conditions, You understand that You will create a binding contract if (and only if) AirPads accepts Your submission.  You agree that You have read, understood, had the opportunity to review with independent counsel, and agree to be bound by the terms and conditions of this Agreement.  You represent and warrant that You are entering into this Agreement on Your own behalf, or that the individual entering into this Agreement on Your behalf is duly authorized to do so.

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