Property Manager Standard Agreement

Section 1:  Introduction

This Manager Agreement is made and entered into as of the later date to appear in the signature block on an associated RedAwning Manager Participation Agreement (the “PA”) (the “Effective Date”) or on the date Manager completes and submits the online version of the PA by and between the Manager identified on the PA (hereinafter referred to as the “Manager”) and RedAwning.com, Inc. (“RedAwning.com” or “RedAwning”). As used herein, the term “Agreement” includes the PA, all Exhibits and linked pages and any amendments to any of the foregoing, which by this reference are each incorporated herein as though fully set forth.

Section 2:  Recitals

1. Manager owns and/or is authorized to exclusively manage and/or take reservations for one or more properties or units (together, “Properties”; each a “Property”), to be identified by Manager, and desires to market and make the Properties available for exclusive short-term rental by RedAwning;
2. RedAwning operates a worldwide property promotion, distribution, marketing, reservations, payments, guest solutions, and customer service platform that enables managers to market and book their properties for rental to guests (each rental a “Booking”) and provide improved guest experiences through add-on tools and solutions (all such services and solutions together “the Services”).
3. Manager desires to engage the Services to promote the Properties and facilitate Bookings and RedAwning desires to provide such Services all in conformance with the terms of this Agreement.

Section 3:  Agreement

Now therefore, in consideration of the mutual covenants and undertakings herein contained, the parties agree as follows:

Section 3:1:  RedAwning Services

1. RedAwning shall provide Manager the following Services:
• RedAwning shall advertise the Properties exclusively for short-term rental pursuant to multiple digital methodologies, including without limitation, on web pages specifically devoted to each Property (each a “Property Page”) on RedAwning’s proprietary websites and RedAwning’s mobile App (“Websites”), on a Manager specific Website built and hosted by RedAwning (“Manager Website”), exclusively on all major third party short term rental distribution channels and other RedAwning distribution partner websites, and on such other channels as RedAwning may add (together, “Channel Partners”) and such additional promotional methodologies, if any, that RedAwning may deploy from time to time. Property Pages shall include a description of each Property, including amenities, photos, and other information provided by Manager or RedAwning, as the case may be (the “Property Description”), and such other information as may be reasonably available to RedAwning or Channel Partners. 
• RedAwning shall host a Property-specific calendar (the “Property Calendar”) that shall enable users to view each Property’s availability and make Bookings conditioned on such user meeting any applicable requirements and/or conditions set forth in this Agreement, and the RedAwning Rental Agreement which can be found at https://www.redawning.com/content/rental-agreement (the “Rental Agreement”) and is incorporated herein by reference. Users that make Bookings are herein defined as “Guests”.
• RedAwning may also provide additional services to be agreed upon with Manager under this Agreement.  Such services may include pricing optimization, photography services, phone service implementation, or other services as agreed to by both parties.  Any additional services performed by RedAwning, when available, and the related fees payable by the manager, if any, shall be as specified in one or more Addenda entered into by both parties from time to time, and which by this reference are incorporated herein as though fully set forth, provided that the terms of the Addenda shall control conflicting terms in this Manager Promotion Agreement.

Section 3:2:  RedAwning Services

1. For Each Booking RedAwning shall:
   • Collect and process in advance of any tenancy all required base rental amounts (“Base Rent”), cleaning and other required fees (together, “Manager Fees”) (Manager Fees and Base Rent, together, “Gross Rent”), any room-related taxes and assessments (together, “Taxes”), and any additional charges or fees for services, goods and benefits provided by RedAwning and/or third-party vendors or Channel Partners (together, “RedAwning Fees”) for the time period(s) selected by the Guest in accordance with (1) each Property’s then current Base Rent schedule established by Manager and/or RedAwning, as the case may be, (2) applicable Tax regulations, and (3) the RedAwning Rental Policies (“Rental Policies”) set forth in the Rental Agreement, as such policies may be amended from time to time in RedAwning’s sole reasonable discretion;
   • Provide the Manager the Guest’s contact information received by RedAwning, such as email addresses and telephone number. Provide the Guest via email and the RedAwning mobile App Manager’s contact information;
   • Pay credit card services fees and process any refunds due to Guests for canceled Bookings in accordance with this Agreement and the Rental Policies;
   • In the event RedAwning cannot collect all or any portion of the Gross Rent, Taxes and/or Fees from a Guest through an authorization against such Guest’s credit card, RedAwning shall use reasonable efforts to contact the Guest and collect in advance of the Booking commencement date alternative payment. If such Guest is unable or unwilling to pay all required amounts, the Booking shall be canceled according to its terms. 
   • For each Booking, if applicable, perform the Repair Obligation in respect to Covered Damage as defined and described in Section 3.6.2 below.  

Section 3:3:  Rent Collection & Assignment

1. 1. RedAwning shall pay Manager, as consideration for a confirmed Booking, the Gross Rent and Taxes collected by RedAwning, less the Participation Fee (as defined below), processing fees (processing fees are three percent (3%) of the Gross Rent and Taxes), and any amounts disputed by Guest (such adjusted amount, “Net Rent”). Manager’s right to payment of Net Rent accrues if and only to the extent: (i) RedAwning collects the related Gross Rent, Taxes and fees; and (ii) Guest’s right, if any, to dispute any charge or receive any whole or partial refund thereof has expired or is terminated.
   2. Manager hereby irrevocably assigns to RedAwning manager’s right to collect and receive Gross Rent and Taxes from Guests for Bookings generated by the Services.  The agreement between the Manager and RedAwning set forth in this section is strictly an assignment of a limited right to collect and receive Gross Rent and Taxes and does not result in RedAwning assuming any other rights or obligations of the Manager in respect to the Properties.  Manager acknowledges and agrees that this clause is strictly an assignment of a limited right to collect and receive Gross Rent and Taxes and does not result in RedAwning assuming any other right or obligation of Property Owner in respect to the Properties, except as otherwise provided by applicable law.
   3. RedAwning shall trigger Stripe Connect to remit to Manager via ACH deposit accrued Net Rent due and payable by RedAwning to Manager hereunder (a) the earlier of the first business day after Guest check out or five business (5) days after Guest check in; or (b) for stays where a Channel Partner such as Airbnb manages payments, the first business day after receipt by RedAwning of related payments from the Channel Partner; or (c) for long term stays, on a monthly basis in arrears. If any jurisdiction requires a Channel Partner or RedAwning to pay any portion, or all, of the Taxes related to a Booking directly to that jurisdiction due to marketplace facilitator or other laws, then RedAwning shall deduct such Taxes from payments to the Manager and notify the Manager of such amounts.
   4. Manager acknowledges and agrees that RedAwning is only responsible for forwarding Net Rent via Stripe to Manager. RedAwning is not responsible for any financial arrangements, tax liability or transfers between Manager and any other entity, person or governmental authority with an interest in or right to all or any portion of the Property, Net Rent, Taxes, or other amount in any way related to the Property or Booking activities herein contemplated, including without limitation, any Manager, owner association and/or taxing authority.
   5. If a Guest attempts at any time to dispute or chargeback, through its credit card issuer or otherwise, any payments previously collected in respect to a Booking, Manager shall fully cooperate with RedAwning and Guest to promptly resolve such dispute. In the event such dispute results in the reimbursement of all or any portion of the disputed amounts, RedAwning will cover the entire amount via the RedAwning Chargeback Protection Program.
   6. Timely cancellations of Bookings shall result in (1) the return to the Guest by RedAwning of collected Gross Rent and Taxes amounts, if any, as provided in the Rental Agreement, and (2) distribution via Stripe Connect to Manager of any non-refundable collected amounts net of the Participation Fee and processing fees (“Net Collections”). In all cases, for customer service and channel management purposes, RedAwning may allow Guests to cancel Bookings within two (2) business days of making a Booking without charge, even if that policy is inconsistent with the Rental Agreement or cancellation policy.
   7. RedAwning and its Channel Partners require that Guests be allowed to cancel their Bookings if there is a Force Majeure Event impacting multiple properties such as a (natural) disaster, hurricane, volcanic eruption, flood, national or local emergency, mandatory evacuation or other governmental order, terrorism, civil disorder, closure of airports or any other exception or catastrophic event, circumstance, or emergency.  In addition, some Channel Patners may offer Extenuating Circumstances Policies which may allow Guests to receive a partial or complete refund due to Guest-specific issues such as a death in the family or serious illness of a Guest.  In the event of any cancellation or refund due to any of these requirements, RedAwning and Manager shall each contribute toward such reimbursement amount in the pro-rated proportion of the amounts each party is entitles to receive under this Agreement in respect to the Gross Rent, Taxes, and fees. 

Section 3:4:  Participation Fee

1. 1. In consideration of the Services herein provided, RedAwning shall receive a fee (the “Participation Fee”) for each Booking calculated as a percentage of the Gross Rent, as specified in the PA.  This participation fee shall be due and payable for all Bookings received or taken during the Term, including without limitation, Bookings through the Services, including the Manager Website, and Bookings taken or received by the Manager directly over the phone, via email, or through any website owned and/or operated by the Manager other than the Manager Website and whether or not connected to the Services, made personally by a Guest or through any other means or methods.  

Section 3:5:  Channel Marketing Fee

1. 1. RedAwning shall pay any fees related to Bookings taken via channel and distribution partners, including Bookings taken via RedAwning Websites (“Channel Marketing Fees”) as part of the Services, and such Channel Marketing Fees shall be added to the prices paid by Guests on such channels.  Channel Marketing Fees for channel partners, such as Airbnb, Booking.com, Expedia, Vrbo, and others, shall be the actual fees paid to such channels for marketing and distribution.  

Section 3:6:  Rent Collection & Assignment

1. 1. Program Description
      • As a convenience and inducement to Guests to rent the Properties, Manager has agreed in the Property Rental Agreement with each Guest of a Property promoted by RedAwning via the Services to a partial waiver and release (the “Waiver”) of the Guest from liability for timely submitted claims solely and specifically limited to damage to the Property caused by the unintentional, non-breaching acts or omissions of the Guest or its authorized guests (the “Covered Damage”) in an amount not to exceed three thousand United States dollars (US $3,000) (the “Damage Protection Cap”). In exchange for the Waiver, the Guest is paying a fee set by RedAwning in its sole discretion that is included as a RedAwning Fee for purposes of this Agreement.
   2. Repair Obligation 

      • For and in exchange for the payment of the RedAwning Fee, RedAwning hereby agrees to repair or replace the Covered Damage to the Property, and to indemnify Manager for the related actual direct costs of such repair or replacement (together, the “Repair Obligation”); provide in no event shall the Repair Obligation of RedAwning for a single Booking exceed the Damage Protection Cap.

      • Notwithstanding anything in this section to the contrary, if Manager charges Guests for its own damage protection program, the previous provisions of Section 3:6 shall not apply.  RedAwning shall have no obligation or liability in respect to any Covered Damage or other casualty, and Manager hereby waives, releases and indemnifies RedAwning from liability in respect to same.  In this case, Manager also agrees to provide at least the same level of damage protection to Guetsts as RedAwning provides and also to follow the same process for easy claims without requiring guest involvement in the claims process.  

Section 3:7:  Manager Obligations

Manager shall perform the following obligations:

• Review and periodically update as necessary the Property Description information for each Property for use on the Property Pages. Manager may also include for display on the Property Pages, when available, recent digital images of each Property (together, ”Photos”). RedAwning may also include digital images of such Property taken by RedAwning sourced photographers (together, “RA Photos”). The Property Description and Photos shall be at all times accurate, truthful, up to date and not misleading in all material respects and both RedAwning and Guests shall have the right to rely on such data in all matters in any way related to Bookings and the Services hereunder.
• In respect to each Booking Manager shall provide to RedAwning at least seven (7) days in advance the check-in information for each Guest and deliver the Property in arrival-ready condition upon Guest’s arrival (Booking commencement date), including without limitation, fresh linens and a professional standard of cleanliness. 
• All Property appliances, utilities and advertised amenities must be fully functioning and operating at 100% capacity. The Property and contents must meet applicable governmental and industry hygiene, security, safety and fire regulations and standards. If the Property is deemed uninhabitable for safety, hygiene or maintenance reasons and Guest must be relocated to an alternative property, Manager must pay for all related relocation expenses, including any additional rental charges. If the Property is technically habitable, but is not fully consistent with the representations on the Property Page or does not meet reasonable expectations, Guest is entitled to financial compensation from Manager in an amount to be negotiated in good faith by RedAwning and Guest, in RedAwning's sole discretion on Manager's behalf. Manager shall reimburse RedAwning such compensation amount via a credit to Manager's Stripe Connect account.
• Review and timely modify or update as necessary the Base Rent schedule and dynamic pricing set by RedAwning on Manager's behalf for each Property including the cleaning fees, applicable Taxes, if any, and such additional fees and payments to be withheld from and/or paid by a Guest of the Property.  Guests and RedAwning shall each have the right to rely on the most recent Base Rent schedule in, respectively, renting each Property and performing the Services as herein contemplated.  Manager will honor the rates presented to Guests via such programs.
• Pay when due all required Taxes, fees, assessments and other costs, if any, related to each Property, including any Bookings sourced through the Services.
• Establish and continuously update as necessary, the Property Calendars, including without limitation, entering the dates each Property is not available for Bookings for any reason whatsoever (together, “Black-Out Dates”), including for the use thereof by Manager or other third-parties. Manager shall enter each Black-Out Date on the Property Calendar immediately as it becomes known to the Manager. In the event Manager's failure to perform in accordance with this Section 4 results in a scheduling conflict between a Booking and a Black-Out Date, the Booking shall supersede and take precedence over the Black-Out Date. In no event may the Manager cancel a Booking otherwise properly made by a Guest for personal use, including use by a Manager, their friends or family members.   
• Notify RedAwning immediately in the event (i) any Booking conflicts with a Black-Out Date, (ii) any issue, question, concern or dispute arises or is made known to Manager in respect to a Property, a Booking, a Guest or any other matter in respect to the Services, or (iii) of a casualty adversely affecting a Property subject to a Booking.  RedAwning considers all Bookings confirmed at the time of Booking.  Every effort should be made to accommodate all Bookings.  Should a Manager cancellation be necessary it will be subject to a $250 cancellation fee as well as any relocation fees charged by a Channel Partner.  This fee shall not apply if the Manager is able to relocate the Guest to a comparable property. 
• Notify RedAwning, within 24 hours following the expiration or earlier termination of a Booking term (i) of any reasons to hold all or any part of any payment to Manager instead of refunding same to Guest, and (ii) of any Covered Damage or other claims to be submitted. In all instances, RedAwning shall have the right to rely on Manager’s instructions in respect to collected payments and refunds. 
• Promptly respond to, and use reasonable, good faith efforts to timely resolve, any Guest complaint within 6 hours of notice thereof. Such notice may be from Guest or RedAwning. If a Manager is unwilling or unable to timely resolve a Guest complaint, then RedAwning may, but is not obligated to, in its sole reasonable discretion investigate and resolve the complaint on behalf of Manager, including reimbursement of an amount equal to all or any portion of the Gross Rent collected from the Guest (less the Participation Fee), which amount Manager hereby acknowledges and agrees RedAwning may deduct by way of credit memo from any sums then or thereafter due Manager hereunder, regardless of source.
• RedAwning may, in its sole discretion, suspend or terminate the Services in respect to a Property due to Guest complaints and notify Guests of all pending Bookings of such Property of RedAwning’s election to terminate or suspend the Services, as the case may be, and Manager hereby agrees to defend, indemnify and hold RedAwning harmless from any claims or liability arising from or related to such suspension or termination.
• At all times maintain the Properties in good, clean and habitable condition and in conformance with all applicable international, foreign, federal, state, local and association laws, regulations, ordinances, rules and covenants (together, “Laws”). In furtherance of this Section 3.7.5, Manager shall enter into and maintain, and timely pay and perform when due, its duties under, contracts with such third-party service providers to the Properties, including by way of example only, utilities, waste disposal, house cleaning and yard maintenance services, as may be necessary or required to satisfy its obligations hereunder.
• At all times during the term hereof, insure that for each Property, Manager maintains sufficient, appropriate and customary types and amounts of insurance relating to each Property including: (1) general property damage insurance covering fire, flood and/or other casualty on a per occurrence basis; (2) liability for bodily injury on a per occurrence basis; and (3) comprehensive general liability insurance. Such policies of insurance shall include coverage for the third-party rental and Service activities herein contemplated. At RedAwning’s request, Manager shall provide RedAwning with any necessary documentation, including certificates of insurance, evidencing the required coverage hereunder.
• Upon RedAwning’s request, provide proof to RedAwning’s reasonable satisfaction of Manager’s sole right, license and authority to rent each Property to third parties, enter into this Agreement to effect such rentals through RedAwning, and receive Net Rents as herein contemplated.
• Maintain at all times accurate and complete contact information on the applicable Website and/or RedAwning administration page(s), including without limitation, Manager’s name, full street and, if different, postal address(es), email address, daytime and evening phone numbers, and cell phone number. In addition, Manager shall include all such data for any authorized local agent of Manager with access to the Properties and authority to resolve any Guest questions or issues in respect to a then current Booking.
  
  

Section 3:8:  Property Casualty and Sale

1. In the event a Property is materially damaged or destroyed prior to or during a Booking, Manager shall, at Guest’s sole election,
   1. immediately relocate Guest to an alternative accommodation in relatively close proximity to the Property having comparable size, quality, appointment and amenities to the Property (an “Alternative Property”) at no additional cost to Guest; or
   2. return an amount equal to the Gross Rent for that period remaining in the Booking period as of the date of the Property casualty; provided, that Manager’s obligation to relocate Guest to an Alternative Property is enforceable only to the extent such accommodation is then reasonably available (cost is not a factor in determining the availability of an Alternative Property).
2. In the event a Property is sold during the term of this Agreement,
   1. the purchaser thereof must honor all Bookings pending as of the sale closing date; or in the alternative
   2. Manager shall secure a comparable or better Alternative Property for each Guest affected by such sale at no additional cost to Guest.
3. In the event a Property is listed for sale during the term of this Agreement,
   1. in no event shall Property showings occur at any time during a Booking; and
   2. Manager shall notify RedAwning in writing that the Property has been listed for sale and identify the requested date of Property Page and other Property-specific promotional activity de-activation, if any.

Section 3:9:  Proprietary Rights

1. The Services, the Website, all Smart Service functionality, products and services, the proprietary trademarks, service marks and logos of RedAwning, the Property Pages, the Property Calendars, the RA Photos, the advertising and marketing copy appearing anywhere on or in connection with the foregoing, the underlying software platform design, algorithms and related applications supporting the Services, all domestic and foreign patent, trademark and copyrights in any way related to the Services, and any updates thereto (together “RedAwning IP”) are the sole and exclusive property of RedAwning. RedAwning hereby grants to Manager, during the term of this Agreement, a limited, revocable, non-exclusive, royalty-free, worldwide right and license to access and use the RedAwning IP in strict conformance with the terms of this Agreement. All such use by Manager shall inure to the benefit of RedAwning, and Manager shall not acquire or retain any right in or to the RedAwning IP except to the limited extent herein set forth. Manager shall cease use of all or any aspect of the RedAwning IP immediately upon written demand by RedAwning, and the limited license herein granted shall cease immediately upon the expiration or earlier termination of this Agreement.

2. Manager hereby grants to RedAwning, during the term of this Agreement, a limited, revocable, non-exclusive, royalty-free, worldwide right and license to publish the Property Description information, Photos, promotional creative authored by or on behalf of Manager and Manager’s owned and licensed trademarks, service marks and logos (together, “Manager IP”) to promote the Properties in strict conformance with the terms of this Agreement. Without limiting the generality of the foregoing, the license granted herein includes the right, without limitation, for RedAwning to reproduce the Manager IP in digital form, to edit and make derivative works of such materials, and to publish the foregoing on the Websites, in applicable Smart Service and Channel Partner environments and in such other media as RedAwning may elect all for the purpose and in furtherance of promoting the Properties as herein contemplated. Additionally, Manager grants to RedAwning a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, non-terminable, transferable, sublicensable license to any underlying copyright in the subject of the RA Photos in order for RedAwning to exercise its rights in the RA Photos as herein contemplated. All use of the Manager IP by RedAwning shall inure to the benefit of Manager, and RedAwning shall not acquire or retain any right in or to the Manager IP except to the limited extent herein set forth. RedAwning shall cease use of all or any aspect of the Manager IP immediately upon written demand by Manager, and the limited license herein granted shall cease immediately upon the expiration or earlier termination of this Agreement.

   
   

Section 3:10:  Rent Collection & Assignment

1. 1. Unless otherwise agreed by the parties in writing, all communications between RedAwning and Manager shall be by email.
   2. Except as provided in this Agreement, any confidential information or proprietary data provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or developed and collected by the Disclosing Party under this Agreement shall be deemed the Disclosing Party’s confidential information (together, “Confidential Information”). Confidential Information shall be maintained in the strictest confidence and shall be protected by security measures consistent with the security measures the Receiving Party maintains in protecting its confidential and proprietary information. Confidential Information shall not be released by the Receiving Party to anyone except an employee or agent who has a need to know same, and who is bound by confidentiality obligations no less restrictive as those set forth herein, or as otherwise may be compelled by law or legal process. The Receiving Party will not use any portion of the Disclosing Party’s Confidential Information for any purpose other than for performing its obligations under this Agreement. Upon termination of this Agreement or the earlier demand of the Disclosing Party, all Disclosing Party Confidential Information in the possession or control of the Receiving Party, in whatever form or medium, shall be promptly, in the alternative, either destroyed by the Receiving Party or delivered to the Disclosing Party. Notwithstanding the foregoing, all data, including without limitation, personally identifiable information disclosed by Guests and/or gathered or obtained by RedAwning in the performance of this Agreement on behalf of Manager as well as the terms of this Agreement, including the financial terms hereof, are the sole and exclusive property of RedAwning and deemed the Confidential Information of RedAwning for all purposes.
   3. RedAwning shall at all times during the term of this Agreement prominently post on the Website, and adhere to, a privacy policy that conforms to all applicable Laws.
   4. Manager agrees to comply with all applicable Laws in respect to data confidentiality, security and management.

Section 3:11:  Representations and Warranties

1. 1. Manager Represents and warrants that
      1. it has full power and authority to enter into this Agreement;
      2. entering into and performance of this Agreement by Manager does not violate, conflict with, or result in a material default under any other, contract, agreement, or law to which Manager is a party, or by which Manager and/or Property are bound;
      3. it has the sole right and authority, pursuant to applicable Law or contract, to enter into this Agreement and rent the Properties to third parties as herein contemplated;
      4. it shall perform its obligations hereunder in compliance with all applicable Laws;
      5. the Manager IP provided by Manager for placement or use on the Website and in applicable Smart Service media and Channel Partner environments does not and shall not infringe, violate or misappropriate any third-party copyright, patent, trade secret, trademark, property or privacy right, nor display, publish or promote sexually explicit content, intolerance, violence or hate or constitute libel, defamation, or invasion of privacy.
   2. RedAwning represents and warrants that
      1. it has full power and authority to enter into this Agreement;
      2. entering into and performance of this Agreement by RedAwning does not violate, conflict with, or result in a material default under any other contract or agreement to which RedAwning is a party, or by which it is bound;
      3. it shall perform its obligations hereunder in compliance with all applicable Laws
      4.  the Website content, in form provided by RedAwning, does not and shall not infringe, violate or misappropriate any third-party copyright, patent, trade secret, trademark, property or privacy right, nor display, publish or promote sexually explicit content, intolerance, violence or hate or constitute libel, defamation, or invasion of privacy.

Section 3:12:  Indemnification

1. 1. 1. Each party shall defend, indemnify and hold the other party harmless from and against any claim, loss, damage, suit or proceeding (together “Claim”) suffered or brought by a third party against the indemnified party resulting from breach of the indemnifying party’s obligations, representations and warranties set forth in this Agreement, and shall pay all damages or settlement amounts awarded by final decree or award against the indemnified party only to the limited extent such amounts are based on such Claim (including payment of reasonable attorney’s fees, court costs and costs of other professionals); provided that (a) written notice of the Claim is promptly provided by the indemnified party to the indemnifying party; and (b) the indemnifying party has sole control of the defense of the Claim and all related settlement negotiations, provided that no settlement requiring action or forbearance on the part of the indemnified party shall be entered into without the prior written consent of the indemnified party, which shall not be unreasonably withheld or delayed. The foregoing indemnities shall survive the expiration or termination of this Agreement.
         

Section 3:13:  Limitation of Liability

1. 1. 1.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY WARRANTS AND NEITHER SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE SERVICES, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER SIMILAR INJURY, DAMAGE OR DISRUPTION OF ANY KIND. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EXCEPT FOR BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATION UNDER SECTION 7 HEREOF AND INDEMNITY LIABILITY FOR BREACHES OF ITS REPRESENTATIONS AND WARRANTIES, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE TOTAL NET RENT PAID OR PAYABLE BY REDAWNING TO MANAGER FOR BOOKINGS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE LIABILITY FIRST AROSE.
         

Section 4:  Term & Termination

1. This Agreement shall continue for a term of one year from the Effective Date (“Initial Term”) and will automatically renew for successive one year periods (each a “Renewal Term”) unless terminated by either party by written notice delivered to the other party at least thirty (30) days prior to the expiration of the then current Term; provided, that all Bookings pending as of the effective date of termination shall remain effective and enforceable, and each of Manager and RedAwning shall honor and fully perform its obligations hereunder in respect to such Bookings; and provided, further, that RedAwning may at any time suspend the Services without terminating the Agreement, including temporarily disabling any or all related Property Pages and/or Smart Services, pending resolution of a Property non-conformity, a Manager performance or Booking issue, or any other cause that RedAwning concludes, in its sole reasonable discretion, requires resolution to RedAwning’s reasonable satisfaction before reinstating the Services.
2. Either party may at any time terminate this Agreement, with or without cause, upon not less than thirty (30) days prior written notice to the other party, provided, however, that if Manager exercises its termination or removal rights under this Agreement during the Initial Term, Manager shall pay RedAwning an early termination fee equal to two (2) times RedAwning’s direct investments in support of the Properties such as RA Photos, Property Management Software reimbursements, devices, or other products or services, with a minimum of five hundred and fifty dollars ($550). Manager acknowledges and agrees that the early termination fee herein specified is intended as compensation for RedAwning’s time and cash investment in the preparation, marketing, development and support of each Property affected by the termination decision. RedAwning shall deduct any early termination fees due under this Agreement from sums otherwise due Manager hereunder, or Manager will reimburse RedAwning on demand if such sums are insufficient.

Section 5:  Miscellaneous Terms

1. The provisions of this Agreement and the associated PA, Exhibits and Addenda shall be binding upon and shall inure to the benefit of the parties and their respective heirs, estates, personal representatives, parent and subsidiary entities, officers, directors, shareholders, members, successors and permitted assigns. This Agreement may not be assigned to any third party by either party without the prior written notice to and consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, that no such consent shall be required in event of an assignment resulting from a merger or asset sale transaction involving RedAwning.
2. The laws of the State of California will govern the construction and enforcement of this Agreement and the parties agree that any litigation pertaining to this Agreement shall exclusively be in courts located in Sonoma County, California. The parties hereby waive any objections based upon the jurisdiction, forum or venue of such courts.
3. In the event a dispute between the parties arises out of or relating to this Agreement, including with respect to any Bookings, Guests or sums billed, collected and/or distributed hereunder, the parties shall first attempt to resolve the dispute through informal good faith negotiations entered into promptly upon the request of a party. In connection with such process, each party shall share all non-privileged and/or confidential information relating to such matter reasonably requested by the other party. In the event such dispute has not been successfully resolved within 30 days of the parties’ initial dispute resolution conversation, the matter shall be submitted to binding arbitration for resolution. Such arbitration shall be conducted by the Santa Rosa, California offices of the Judicial Arbitration and Mediation Services, or its successor (“JAMS”). Arbitration shall be conducted by JAMS in accordance with applicable JAMS rules governing the resolution of commercial disputes, generally, provided that notwithstanding any contrary provision within the JAMS rules, the arbitrator shall determine the rights and obligations of the parties according to the substantive laws of the State of California. The parties shall share equally in the cost of the arbitration subject to the arbitrator’s discretion to allocate such cost among the parties in accordance with equitable considerations. Any award, which may include legal and equitable relief, will be final and binding and judgment may be enforced by any court of competent jurisdiction.
4. The prevailing party in any suit or proceeding brought to interpret or enforce the terms of this Agreement shall be entitled to an award of all related costs, reasonable attorneys’ fees and the fees of other professionals incurred by the prevailing party in connection with such action.
5. Each of Manager and RedAwning specifically acknowledge and agree that Manager’s signing of the PA shall constitute Manager’s acceptance of the terms of this Agreement in full, and shall, without further act of either party, cause this Agreement to become immediately effective, binding on and enforceable against each party according to its terms.
6. This Agreement, including without limitation, the PA and any related linked pages, all of which the parties acknowledge are, collectively, herein included in the defined term “Agreement”, sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings, both oral and written, with respect to same.
7. Each party agrees that a breach of the provisions of the Agreement relating to the use or disclosure of the other party’s content, trademarks, or Confidential Information, will result in immediate and irreparable harm to the other party and that money damages alone would be inadequate to compensate the non-breaching party.  Therefore, in the event of such a breach, the other party will be entitled to equitable relief, including without limitation, a temporary restraining order, temporary injunction or permanent injunction.  The rights granted to the parties under this provision are in addition to any other remedies available to the parties under this Agreement, or common or statutory law. 
8. If either party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the party invoking this provision, including but not limited to, acts of God, acts of civil or military authorities, riots or civil disobedience, wars, police actions, strikes or labor disputes, acts of terrorism, fires, severe weather events such as hurricanes, floods, heat waves, snow storms and tornadoes, and interruptions in telecommunications or Internet services or network provider services (each, a “Force Majeure Event”), such party’s performance shall be excused and the time for performance shall be extended accordingly, provided that the party immediately takes all reasonably necessary steps to resume full performance. If a party’s performance is prevented or delayed for more than thirty (30) consecutive days due to a Force Majeure Event, then the other party may terminate this Agreement upon delivery of written notice to the non-performing party. The parties acknowledge and agree that Bookings may be canceled and Guest performance excused pursuant to Force Majeure Events as provided in this Agreement.
9. All notices, requests, demands and other correspondence (collectively “Notice”) hereunder shall be in writing and deemed delivered: (1) on the date Notice is sent by facsimile or electronic mail with electronic confirmation of receipt thereof by the other party; (2) one (1) business day after placing Notice with a national air courier service for delivery by next day air; or (3) three (3) business days following placement of Notice in the US Mail, registered or certified, postage prepaid, return receipt requested, addressed to the mailing address of the receiving party as reflected in the notifying party’s then current records.
10. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party except as specifically set forth herein. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
11. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the invalid or unenforceable provision will be limited or eliminated to the minimum extent necessary.
12. The headings of the sections and subsections contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.
13. Each party agrees not to discriminate against any user or Guest on account of race, color, religion, sex, sexual orientation, marital status, disability or national origin.
14. In construing or interpreting this Agreement, the word “or” shall not be construed as exclusive and the word “including” shall not be limiting.  The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party. 
15. Each of Manager and RedAwning specifically acknowledge and agree that Manager's signing of the PA and, if applicable, an Addendum or clicking “I Agree” in the PA or Addendum submission process shall constitute Manager's acceptance of the terms of this Agreement in full, and shall without further act of either party, cause this Agreement to become immediately effective, binding on and enforceable against each party according to its terms. 

Section 6:  Modification

1. RedAwning may modify any of the provisions of this Agreement and any Exhibit at any time in its sole discretion, by posting a new Agreement or Exhibit(s), as the case may be, on https://host.redawning.com/property-manager-promotion-agreement. Unless otherwise provided in the revised instruments, the modified terms shall take effect immediately when posted. RedAwning shall use commercially reasonable efforts to notify Manager in advance of any such modifications, provided it shall remain Manager’s duty to review the Agreement and all related materials (including, without limitation, the Data Policy and Privacy Guidelines) from time to time to inform itself of the provisions and requirements of each. IF ANY MODIFICATION IS UNACCEPTABLE TO MANAGER, MANAGER’S SOLE AND EXCLUSIVE RECOURSE AND REMEDY IS TO TERMINATE THE AGREEMENT AS PROVIDED HEREIN. MANAGER’S CONTINUED USE OF REDAWNING’S SERVICES FOLLOWING THE MODIFICATION OF THE AGREEMENT OR ANY EXHIBIT(S) THERETO, AS THE CASE MAY BE, SHALL CONSTITUTE MANAGER’S ACCEPTANCE OF AND AGREEMENT TO SUCH INSTRUMENT, AS AMENDED.

IN WITNESS WHEREOF, by signing the PA or submitting the online version of the PA, Manager hereby accepts and agrees to be bound by the terms of this Agreement.

Last Updated April 2024