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Opuluxe terms

Welcome to Opuluxe!

We are pleased that you are choosing Opuluxe to provide services for your vacation rental property and want you to be fully informed about the services we provide and the terms on which we provide them. This Agreement is important, and you should read it carefully. It contains information about your rights, remedies, and obligations when you use our Services.

PLEASE NOTE THAT THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER.

1. PARTIES AND EFFECTIVE DATE.

This Vacation Rental Management Agreement (the “Agreement”) is between Opuluxe Acquisitions LLC and its affiliates (“Opuluxe,” “we,” “us,” or “our”) and you (“you,” “your,” or “Owner”). Opuluxe does business through local affiliates or licensed representatives in certain states. 

2. OVERVIEW OF OPULUXE SERVICES.

2.1 Overview. Opuluxe operates at https://www.opuluxemgmt.com and related subdomains and mobile applications (the “Site”), and performs marketing, booking, and related services for Owners seeking to supply a vacation rental property or properties (your “Property”) and users seeking to learn about properties for rent (a “Guest”) and, if they wish, to book a stay (our Site and services, collectively, our “Services”). The Services are further described throughout this Agreement. Opuluxe lists Owner’s vacation rental properties for rent on the Site and on vacation rental sites or marketing channels operated by others (“Third-Party Marketing Sites”).

2.2  Exclusive Reseller. Owner grants Opuluxe the right to promote, market, and rent the rental inventory at the Property to Guests and potential Guests directly or indirectly including through Third-Party Marketing Sites. You agree that Opuluxe will be your exclusive marketing and booking partner, meaning that that you will not advertise (or permit any third party to advertise) your Property, online or offline, through travel agencies, vacation rental marketplaces or listing sites, or via property managers or other services or platforms of any kind, including without limitation Third-Party Marketing Sites. 

3. TERM AND TERMINATION.

3.1 Term. This Agreement is effective between you and Opuluxe until terminated (the “Term”). Owner or

Opuluxe may terminate the Agreement at any time as described below.

3.2 Owner Termination; Cancellation Fee. You may, for any reason and at any time, cancel our Services for all, or a portion of, your Property by providing notification via email to support@opuluxemgmt.com. The terms of this Agreement shall continue to apply to any Bookings (defined in Section 6.2 below) confirmed prior to such notification and shall remain effective until all such Bookings are completed. Opuluxe will invest a significant amount of time and money into creating a professional listing for your Property (the “Listing”), hiring a cleaner, and creating instructions for the guest’s check-in. You may terminate this agreement at any time, with no penalty, as long as you provide a 90 day notice to us in writing via email. We’ll honor any reservations that are already booked at your home for that 90-day window as well as any new bookings that are within the window. If you elect to leave our service before the 90 days notice, you agree to pay a $1000 cancellation fee to compensate Opuluxe and you authorize Opuluxe to collect the cancellation fee using your credit card or other payment method on file. If guest bookings at your property must be canceled, we’ll also charge you an equal amount to each cancellation fee that platforms such as Airbnb and VRBO charges hosts. 

3.21 Owner Termination includes any of the following actions: 

  • Verbally stating that you’d like to terminate your services 

  • Not providing Opuluxe with instructions on how to enter your property after your onboarding process was completed

  • Not responding to Opuluxe staff members about your property or our services 

  • Not allowing guests to check-in 

  • Not allowing your property to be listed

  • Not allowing Opuluxe to receive bookings 

  • Anything else that disrupts Opuluxe from being able to manage your property

These cancellation fees may be waived to qualified applicants, as long as a 30 day trial is completed beforehand. Qualified applicants must be approved via email, prior to  joining our services. Also, we do not allow hiring our staff directly, whether it’s our property manager, cleaner, or anyone else after ending services with us. Should you do this, there would be a $5000 fee charged per employee using your credit card or other payment method on file. 

3.3 Opuluxe Suspension or Termination. We may, in our sole discretion and without liability to you, with or without cause, for any reason or no reason at all, and with or without prior notice suspend or terminate your access to our Services; or modify or discontinue, temporarily or permanently, any portion of our Services. If Opuluxe terminates this Agreement and your access to our Services, Opuluxe will notify you and the termination will be effective on the date identified in the notice. If Opuluxe terminates this Agreement due to your breach, any existing Bookings at your Property will be considered Owner Cancellations as described in Section 10.

3.4 Confirmed Bookings; Survival. Owner will honor any Bookings scheduled for the Property prior to termination of the Services and this Agreement will survive for that time with respect to those Bookings.

4. AUTHORITY AND ELIGIBILITY.

Owner represents, warrants and agrees:

4.1  Age. Owner is at least 18 years of age.

4.2  Ownership. Owner owns the Property and has all authorizations and authority needed to enter this

Agreement with respect to the Property. Opuluxe may require you to submit identity and/or property ownership information needed to verify ownership of the Property. Any individual or entity who wishes to retain Opuluxe’s Services for a Property but is not the owner of such Property must provide a copy of this Agreement to the owner, obtain the owner’s written authorization to rent the Property, and provide such authorization to Opuluxe.

4.3  Screening. Opuluxe is authorized to perform a criminal background check on you, including a review of public records, and/or screen you and your Property against third party databases or other sources, and request reports from service providers, and may continue to do so from time to time during the Term in our sole discretion. We may also perform screening on your representatives or service providers who may provide services at the Property or interact with Guests. Opuluxe will only use resulting information for the purpose of conducting its business and carrying out its obligations or exercising its rights under this Agreement. Opuluxe uses information gathered about you to confirm ownership of the Property, to review your financial history and the financial history or status of the Property, and to review criminal history. You understand that the information resulting from any such screening may lead Opuluxe to terminate this Agreement at its sole discretion.

4.4  Authority. Owner has the right to enter this Agreement with respect to the Property and Opuluxe does not require the authorization, approval or acknowledgement of any other parties in order to perform our Services. In the event of any dispute regarding your ownership or authority to enter into this Agreement, including but not limited to co-ownership disagreements, divorce, and/or death, Opuluxe may suspend or terminate the Services and cancel any future Bookings at the Property. You will be charged the Owner Cancellation Fee for any such cancellations. It is your sole responsibility to resolve ownership disputes to Opuluxe’s satisfaction prior to reinstatement of the Services.

5. OWNER OBLIGATIONS.

5.1 Property. If you selected the “Coach” or “First Class" options, you are solely responsible for the condition of your Property, including the maintenance and upkeep of the Property and for making all repairs to the Property. If you selected the “Coach” pricing package, you’d be required to use your own cleaner,  and therefore you are financially liable for guest refunds due to cleanings not being up to par. You understand that renting your home to Guests may lead to wear and tear or damage to your Property. You accept all risks related to renting your Property and understand that, as between you and Opuluxe, you are solely responsible for your Property. Opuluxe does not maintain property insurance for your Property. You are solely responsible for obtaining property and liability coverage sufficient for your Property. This includes appropriate insurance coverage for any vehicles located on the Property (movable or stationary), features of the Property, activities on, around, or ancillary to the Property, and any other rental operations, as applicable. You agree that you have or will obtain appropriate insurance coverage sufficient to cover the rental of your Property before the arrival of your first Guest and will maintain adequate insurance coverage through the departure date of any Guest, and to provide Opuluxe with copies of relevant proof of coverage upon request. Please carefully review any such insurance policy, and make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Guests while staying at your Property. Opuluxe may establish a damage waiver program or purchase liability insurance that benefits you and/or Opuluxe. Opuluxe’s efforts to provide any such programs or supplemental insurance in no way alters your responsibility to purchase adequate insurance to insure your Property and to protect your interests.

5.2  Four Core Property Standards. Your Property must meet the standards established by Opuluxe. Specifically, the Property must be Safe, Clean, Guest Ready, and As-Advertised, as further defined
in the 4 Core Property Standards (the “Four Core Property Standards”). You represent and warrant that you have reviewed and understand the Four Core Property Standards and understand that you are solely responsible for meeting them for every Booking. Opuluxe represents to Guests that Opuluxe vacation rentals will meet the Four Core Property Standards and you understand that Opuluxe relies on your commitment in making those representations. As a result, if your Property fails to meet the Four Core Property Standards, Opuluxe may make reasonable accommodations to satisfy Guests who have Bookings with your Property and Opuluxe will charge the cost of such accommodations to you by deducting it from your Owner Payout or otherwise debiting your account. Accommodations may include issuing partial or full refunds, engaging a service partner to fix or address the failure, or issuing Guest financial credits, each in Opuluxe’s sole discretion. In cases where Opuluxe determines the Property is not suitable for rental to the Guest, Opuluxe may issue the Guest a full refund for the Booking or rent the Guest a replacement accommodation. Where your failure to meet the Four Core Property Standards requires Opuluxe to issue a full refund or to rent an alternative accommodation, your failure will be considered an Owner Cancellation as defined in Section 10. Consistent or repeated failure to meet the Four Core Property Standards may result in suspension or termination of our Services at Opuluxe’s discretion.

5.3  Compliance with Laws and Regulations. Short-term and vacation rentals are restricted, regulated, or even prohibited in some areas. In addition, local, state or federal laws or regulations may apply to your Property. For example, laws or regulations related to accessibility, discrimination, safety, and building standards may apply. In addition, you may be required to obtain permits, licenses, or other regulatory approval to rent your Property on a short-term basis. You are responsible for ensuring that, and represent, warrant and covenant that the Property and its use for short-term and vacation rentals through our Services complies with all laws, regulations, and other restrictions or limitations at all times and that you and the Property have all required permits, licenses, or permissions. If you become aware of any law, regulation or restriction applicable to your Property you must promptly notify Opuluxe. You are responsible for paying any fines, penalties, or other costs of noncompliance.

5.4  Opuluxe Policies. Opuluxe may adopt policies or standards impacting Bookings, Guests, or Owners, such as Opuluxe's Policy on Inclusion and Community Behavior and Opuluxe Privacy Policy You agree to comply with all Opuluxe policies, procedures, and standards of conduct adopted and communicated to you (the “Opuluxe Policies”). Violation of Opuluxe Policies may lead to termination of the Services. If you do not agree to the amendments to an existing policy or accept a new policy, you may terminate the Services as your sole remedy. In addition, Third-Party Marketing Sites may have different policies than Opuluxe. You understand that part of the Service Opuluxe offers is distributing the Listing to Third-Party Marketing Sites that have different policies and Opuluxe is required to comply with such policies. Opuluxe may determine in its sole discretion its obligations (including Owner’s obligations) to comply with any Third-Party Marketing Site policy and Owner agrees to accept Opuluxe’s actions. Opuluxe may adopt party and event policies; however, such policies do not guarantee that parties or damage will never occur at your Property.

5.5  Damage to Personal Property. You understand that any personal property or possessions stored in or left in your Property should not be left unsecured and Opuluxe assumes no liability for any loss or damage resulting from Guests who book your Property through our Services. You agree not to leave materials of a nature unsuitable or unsafe for Guest occupancy in your Property.

5.6  Owner Conduct. In connection with your use of our Services, you must act responsibly, exercise good judgment, and conduct yourself in a professional and respectful manner. Opuluxe reserves the right to suspend or cancel our Services for your Property or take other actions in our sole discretion in response to any inappropriate conduct, including, but not limited to, the conduct described below. Owner (or Owner’s representatives or affiliates) will not:

5.6.1 Threaten, stalk, or harass any Guest, service partner, Opuluxe employee or other person. 

5.6.2 Violate  Opuluxe's Policy on Inclusion and Community Behavior or other policies of Opuluxe reasonably adopted or revised.

5.6.3 Violate any local, municipal, state, provincial, national, or other law or regulation, any order of a court, or any HOA or other private contractual commitments with respect to your Property; 

5.6.4 Infringe the rights of any person or entity, including, without limitation, their intellectual property, privacy, publicity or contractual rights, including, without limitation, subleasing an accommodation without the rights to do so;

5.6.5 Interfere with or damage our Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;

5.6.6 Use our Services to transmit, distribute, post or submit any information concerning any other person or entity, including, without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;

5.6.7 Use our Services in connection with the distribution of unsolicited commercial email (“spam”) or advertisements unrelated to lodging;

5.6.8 Collect or store any information about any other Owner or Guest other than for purposes of transacting a Booking for your Property;

5.6.9 Impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;

5.6.10 use automated scripts to collect information or otherwise interact with our Services; 

5.6.11 use our Services to find a host or guest and then complete the transaction outside of our Services in order to circumvent your obligation to pay for our Services;

5.6.12 approve an inaccurate or deceptive Listing for your Property; or

5.6.13 advocate, encourage, or assist any third party in doing any of the foregoing.

5.7 Liens, Demands, Judgments. You are responsible for keeping the Property free of all liens, judgments and other actions by creditors, service providers, or others that may impact your or Opuluxe’s ability to perform obligations under this Agreement. If Opuluxe is subject to court orders, lien notices or other demands from your creditors, lienholders, or any else, Opuluxe may take all reasonable steps to protect its interests and to comply with law. Such steps may include placing a hold on payments owed to you under this Agreement or terminating this Agreement.

6. OPULUXE MARKETING AND BOOKING.

Opuluxe Marketing. Opuluxe will compile information you provide about your Property and may commission photographs of your Property (“Opuluxe Photos”) and build a Listing. Opuluxe will distribute your Listing on our Site and other marketing channels of our various marketing partners, licensees and affiliates (“Third-Party Marketing Sites”).

Bookings. Opuluxe will enter into booking reservations with Guests for your Property, which may be subject to the terms of Opuluxe’s standard Opuluxe Rental Agreement and any additional terms or policies agreed to by you and Opuluxe and included in your Listing (a “Booking”). Opuluxe will not contact you prior to making a Booking and you will honor all Bookings made in accordance with this Agreement.

Availability Calendar. The availability calendar(s) for your Property displayed on our Site and Third- Party Marketing Sites will be drawn from the information you enter on the Site. Opuluxe will rely on that information and will not contact you prior to confirming a Booking. You will need to contact us to update the calendar(s) for your Property on the Site to reflect all of your personal usage, seasonal blocks, maintenance blocks and any other period when you do not want your Property to be available for Bookings. In the event of a double booking or other schedule conflict due to your failure to update your availability calendar on the Site, you agree to honor all Bookings and understand that failure to honor Bookings shall be considered an Owner Cancellation as described in Section 10.

6.4  Rental Rates and Booking Terms.

6.4.1  Base Rates. Opuluxe will establish rental rates for your Property to be included with the Listing (“Base Rates”). Base Rates will vary based on a number of complex factors including demand, size, number of bedrooms, amenities, location, seasonal fluctuations, macroeconomic factors, rental history, the availability of other properties, minimum stay requirements, and other similar factors. Base Rates may be adjusted dynamically and may fluctuate on a seasonal, weekly, or daily basis. Base Rates include all amounts charged to a Guest for use of the Property, including optional or required items like pet fees, pool fees, and any other fees related to a Guest’s use of the Property. Opuluxe will not include the cleaning fee in the base rate if we provide cleaners for your property. 

6.4.2  Adjusted Rates. Third-Party Marketing Sites may charge marketing or distribution fees as the cost of advertising a vacation rental on their sites (“Third-Party Marketing Fees”). Typically, Third-Party Marketing Fees are charged as a percentage of each Booking made on that site. On these Third-Party Marketing Sites, Opuluxe may charge an adjusted Base Rate to account for and pay for the cost of the Third-Party Marketing Fees charged on each Third-Party Marketing Site. The adjustments will be calculated as the actual or approximate amount to be paid by Opuluxe to the Third-Party Marketing Site in connection with each Booking. Opuluxe’s adjustment to your Base Rates will not be greater than the amount the Third-Party Marketing Site charges as its standard marketing fee to customers who list their properties directly on the site. The adjusted Base Rates are referred to as “Adjusted Rates” and your Adjusted Rate will become the advertised rate on Third-Party Marketing Sites.

6.4.3  Minimum Base Rates. Opuluxe will establish minimum Base Rates for your Property and will inform you of your minimum Base Rate upon request.

6.4.4  Minimum Stay Requirements. Opuluxe will establish minimum stay requirements for your Property. Opuluxe will establish and adjust those requirements with the goal of maximizing Bookings and performance of the Property. If your Property is subject to regulations or HOA rules affecting minimum stay requirements, you must inform Opuluxe and we will adjust your minimum stay requirements accordingly.

6.4.5  Payment Terms; Cancellation and Refund Policies. Opuluxe will establish Guest payment terms, cancellation and refund policies. The payment, cancellation and refund policies are designed to incentivize guests to book and maximize your revenue over the long term. Opuluxe will adjust its policies on a regular basis to take advantage of consumer demand, market conditions, and other factors that influence consumers. For example, this may include a fully flexible refund policy varying the amount that the guest is required to pay at the time of booking. The polices may vary across different marketing channels to take advantage of the different audiences or dynamics that are unique to each channel. Opuluxe’s policies may allow for refunds to be issued to guests in the form of cash or Opuluxe travel credits. These terms and policies may vary across marketing channels and may be adjusted regularly or dynamically without notice to you.

6.5  Opuluxe Direct Bookings. Opuluxe may publish Listings and make Bookings for your Property directly on the Opuluxe Site in addition to publishing your Listing to Third-Party Marketing Sites (a “Direct Booking”) Opuluxe will not adjust your Base Rate for Direct Bookings because Direct Bookings do not involve payment of any Third-Party Marketing Fees.

6.6  Third-Party Marketing Site Guest Fees. Third-Party Marketing Sites may charge Guests a fee for the Guest’s use of the Third-Party Marketing Site when the Guest makes a Booking on that site (“Third- Party Guest Fees”). Third-Party Guest Fees are charged directly to the Guest and Opuluxe does not charge, control, or profit from Third-Party Guest Fees.

6.7  Opuluxe Guest Service Fee. Opuluxe may charge a fee directly to Guests who make a Booking on the Opuluxe Site in exchange for the services Opuluxe provides to that Guest (the “Opuluxe Guest Service Fee”). The Opuluxe Guest Service Fee will be reasonable in relation to guest fees and service fees charged by other sites. The Opuluxe Guest Service Fee will be charged to and paid by the Guest and will not be part of the Base Rate or Adjusted Rates for purposes of calculating the Management Fee or the Owner Payout as described in Sections 8 and 9.

6.8  Guest Reviews. Guests will be able to review their stay at the Property and submitted reviews will be published. Administration of the reviews on Third-Party Marketing Sites are subject to the policies of the Third-Party Marketing Site. You acknowledge that Opuluxe does not have the ability to remove or edit such reviews.

6.9  Service Providers. You may engage other service providers to clean, maintain or otherwise service the Property. You engage those service providers directly and Opuluxe will not be a party to those agreements or be responsible or liable for the performance of those services, whether or not Opuluxe introduced you to those service providers.

 

7. LISTING INFORMATION.

7.1  Accuracy of Property Information. Owner must provide Opuluxe accurate information about the Property. Opuluxe uses Owner-provided information to build Listings and to advertise the Property, and Guests will rely on that information when making Bookings. Owner must inform Opuluxe of any policies or fees related to the Property, including pet and/or smoking restrictions, directions, entry instructions, local contact numbers, and any additional details that Guests may require in order to book and enjoy Owner’s Property.

7.2  Owner Booking. You may reserve your Property at any time provided that your Property is available for the dates you wish to reserve, and you comply with the applicable check-in/check-out procedures and times on our direct booking website..

7.3  Guest Rental Agreement. Opuluxe will enter into a Opuluxe Rental Agreement with a Guest as a condition to a Booking and the Rental Agreement will include reference to all information provided in the Listing. Opuluxe may revise the Rental Agreement at any time without prior notice to you. You agree that all documentation and information required to be understood or accepted by a Guest (e.g., all house, pool, condo, or neighborhood rules) will be described on the Site and that a Guest will not, under any circumstances, be asked or required to sign any additional agreements or documents. You agree not to interfere, terminate or disrupt any Booking made in accordance with this Agreement. You understand that the Rental Agreement may require Opuluxe to issue partial or full refunds (whether in the form of cash or travel credits) to Guests under a variety of circumstances, including circumstances where the Property does not meet the Four Core Property Standards or due to extenuating circumstances, such as extreme weather events, pandemic, government action, or other force majeure events.

7.4  Guest Identity Verification. User verification on the internet is difficult and we cannot, and do not, assume any responsibility for the confirmation of each Guest’s purported identity, age, reputation, conduct, morality or criminal background (or those of any member of a Guest’s party). You agree you will accept each Booking without requesting additional screening information from Guests and Opuluxe will be under no obligation to screen Guests on your behalf. Opuluxe may choose to conduct identity verification or screening, but does not guarantee that screening efforts, if taken, will eliminate fraudulent Bookings, bad or criminal guest behavior, or damage to the Property.

7.5 Property Display and Presentation. Our Site and Third-Party Marketing Sites include other properties. Search results on the Site and on Third-Party Marketing Sites are determined by a number of factors that may or may not be controlled by Opuluxe. Opuluxe does not adhere to a rotation system and may vary the frequency of display, and/or presentation of information pertaining to, your Property or the Property of others. Factors affecting the search results or display of your Property on our Site or Third-Party Marketing Sites may include likelihood of a property to receive a Booking, guest preferences for particular size, style, features, amenities, view or location; price of the Property; user reviews or lack of user reviews; availability, including as a result of your personal usage of your Property; restrictions on the Property; the physical condition of the Property; and any number of other factors out of Opuluxe’s control affecting demand for, or desirability of, your Property.

8. OPULUXE MANAGEMENT FEE.

8.1  Management Fee; Calculation. In exchange for the Services, Opuluxe charges a fee of 10%, 15%, 20% of all non-tax portions of the Base Rates paid by the Guest for each Booking (the “Management Fee”). Some optional services or functionality may incur additional fees, as determined by Opuluxe in our discretion. Opuluxe will disclose any such additional fees to you in advance of imposing them. Third-Party Guest Fees and Opuluxe Guest Service Fees are not part of the Base Rates or Adjusted Rates and do not affect calculation of the Management Fee in any way. Refer here for a breakdown of what services are covered under each Management Fee option. 

Should you join our services and select the 10% or 15% pricing package, and later decide to upgrade to the 20% pricing package after we’ve already hosted bookings, please be informed that the newly adjusted rate needs to be effective for at least 30 days before the $1500 insurance benefits become available. Moreover, our services do not cover any pre-existing damages that occurred prior to the start of this 30-day period. During the 30-day window, you will be responsible for addressing and rectifying any pre-existing damages. This action ensures that the benefits of your upgraded package can be fully realized once they become accessible.

8.2  Management Fee for Direct Bookings. When Opuluxe sources a Booking through its own Site, the Base Rates and Adjusted Rates for your Property will be the same because Opuluxe will not need to adjust the Base Rates to account for Third-Party Marketing Fees. The Management Fee and the Owner Payout (as defined below) will be calculated in the same manner as when Bookings are sourced through Third-Party Marketing Sites.

8.3  Collection of Opuluxe Management Fee. Opuluxe will retain the Management Fee directly from payments and prior to distributing an Owner Payout to you. Opuluxe may also recoup its Management Fees or other amounts you owe to Opuluxe under this Agreement as described in Section 9.

8.4 Opuluxe $1500 Cosmetic Damage Insurance. Scope of Coverage: If the Client opts for our 20% pricing package, Opuluxe will provide insurance coverage up to a maximum amount of $1,500 for cosmetic damages directly resulting from a guest's stay. Example: Cosmetic damages may include but are not limited to minor wall scuffs, carpet stains, or broken decor items that do not significantly affect the functionality or structural integrity of the property. 

8.4.1  Exclusions: The insurance provided will not cover the following:

   a. Acts of God, such as natural disasters including but not limited to floods, earthquakes, and hurricanes.

   b. Prior damage, cosmetic damage that existed before the guest's stay, or normal wear and tear.

   c. Theft of any property from the premises.

   d. Loss of use of the rental property for any reason.

   e. Rodent, termite infestation, or damage from wild animals.

   f. Damage to any motorized vehicles located on the property.

   g. Fine art, collectibles, or sets of items, whether part of the property or brought into the property during the guest's stay.

   h. Appliances including but not limited to refrigerator, dishwasher, oven, microwave, and washing machine.

   i. Major property damage such as plumbing issues, electrical faults, HVAC system failures, structural damages, roof leaks, and fire damage.

8.4.2  Property Owned by Client. This insurance will not pay for damage or theft of property owned by You, the Client. This includes, but is not limited to, personal items, equipment, or any other valuables stored on the property.

8.4.3  Additional Exclusions. This insurance will also not pay for costs associated with:

a. Odor or debris removal.

b. Backups of sewers and drains.

c. Landscaping.

d. Marring, maintenance, or mechanical breakdown of property or equipment.

8.5  Changes to Opuluxe Fees. We reserve the right to modify the Management Fee at any time in accordance with this provision and Section 21.7. If we make changes to Management Fee or any other fee structure, we will provide you with notice at least thirty (30) days before the date they become effective. If you disagree with the revised Management Fees, you may terminate this Agreement subject to Section 3.4. If you do not terminate your Agreement before the date the revised Management Fees become effective, your continued use of our Services will constitute acceptance of the revised Management Fee.

 

 

9. OWNER PAYMENTS AND PAYMENT TERMS.

9.1 Owner Payouts; Timing. Opuluxe will pay amounts due to you for each Booking after deducting the Opuluxe Management Fee and other amounts authorized to be deducted under this Agreement (an “Owner Payout”). Owner Payouts will generally be initiated within 1 business day of a Guest’s scheduled check-out date. The timing of Owner Payouts may be adjusted at Opuluxe’s discretion for Bookings that are longer than 30 days, as such Bookings may be subject to the terms of an alternate payment plan. The time it takes for an Owner to receive an Owner Payout may depend on the payment processor or receiving bank’s processing schedule. 

9.2  Owner Payout Calculation. Owner Payouts will be calculated as the total Base Rate paid to Opuluxe by the Guest or Third-Party Marketing Site after application of the Management Fee and other amounts authorized to be deducted under this Agreement. As described in Section 11, the Owner Payout may include amounts collected from the Guest for the purpose of paying state or local sales, lodging, or other applicable taxes. When Opuluxe collects and pays those amounts to Owner as part of an Owner Payout, Opuluxe will clearly identify the amount and purpose to you.

9.3  Guest Cancellation. If a Booking that is not eligible for a refund or travel credits pursuant to Opuluxe’s then-current cancellation policy is cancelled by a Guest, the Owner Payout will be the non-refundable portion of the total Base Rate paid to Opuluxe by the Guest or Third-Party Marketing Site, subject to the Management Fee. Owner will not receive an Owner Payout for any Booking (or portion of a Booking) cancelled by a Guest that is eligible for a refund (whether in the form of cash or travel credit) pursuant to 

Opuluxe’s then-current cancellation. However, if the guest did not receive a refund, or received a partial refund, Opuluxe will send you your Owner payment after deducting our Management Fee within the first week of the following month. 

9.4  Opuluxe Cancellation. In certain circumstances, Opuluxe will proactively cancel a future Booking at your Property. Opuluxe cancellations include, but are not limited to, health and/or safety concerns at or around your Property, repeated Four Core Property Standards violations, notice of pending litigation or regulation violations that impact your Property, compliance with mandates by the government, compliance with the Rental Agreement, and adherence with Opuluxe’s own policies. You will not receive an Owner Payout for Opuluxe initiated cancellations. 

9.5  Deductions; Set Off. Opuluxe retains the right to set off or deduct from an Owner Payout any amount owed by Owner to Opuluxe pursuant to this Agreement. Your Owner Payout may be delayed or canceled for purposes of preventing unlawful activity or fraud, risk assessment, security, or investigation if deemed necessary in our sole discretion. 

9.6  Stripe Connected Account. Opuluxe uses either Stripe or ACH to execute online payment transactions, including payment of your Owner Payout. You will be required to open and maintain an active Stripe Account (as that term is defined in the Stripe Agreement) and you agree to and acknowledge the following:

9.6.1  you agree to be bound by the Stripe Connected Account Agreement, available at Stripe Connected Account Agreement, which may be updated from time to time (the “Stripe Agreement”);

9.6.2  by providing us with your banking, credit/debit card, or other payment information, you authorize us to use it and disclose it to Stripe; and

9.6.3  you hereby authorize us, as the Connect Platform, to conduct Activity (as that term is defined in the Stripe Agreement) on your behalf as described in this Agreement, including, but not limited to, crediting payments owed to you, debiting any chargebacks, refunds or reversals, and debiting any fees, charges, amounts paid to you improperly or other amounts owed by you to Opuluxe.

9.7  Credit Card on File. We may require that you provide us with a valid credit card in order to activate your account. You authorize Opuluxe to automatically charge your credit card for any Management Fees or other amounts owed to us under this Agreement that cannot be retained from Guest payments or otherwise collected. You agree to keep your credit card information updated, and to provide us with a new valid account number if your old card is deactivated, expired or does not have sufficient credit available to pay any Opuluxe Fees owed. If Opuluxe has to pay something on your behalf, such as a contractor, for example, due to your card on file failing, we will charge your card  through Stripe, plus a 30% fee.  

9.8  Negative Stripe Account Balance. If we, acting as the Stripe Connect Platform, are unable to collect any amount owed to us or a Guest from your Stripe Account, you hereby authorize us, without notice, to recapture such amount from your credit card, via ACH transfer from your bank account, and/or, to the extent permitted by law, to withhold such amount from any payment you are owed.

9.9  Collection Actions. We reserve the right to place your account on hold, suspend our Services and/or terminate this Agreement if you are overdue in paying us any amounts due. Declined, refused and/ or returned payments may result in a $100.00 service charge payable immediately. Notwithstanding anything else herein, if you fail to pay any amounts owed to us under this Agreement, including amounts reflected in a negative Stripe account balance, we reserve the right, on our own or through a third-party collection agency, to initiate a collection action against you to recover such funds. In such event, you agree to pay all 

costs and expenses, including without limitation, reasonable attorneys’ fees and other expenses, incurred by or on behalf of Opuluxe in connection with the collection action.

9.10  Damage Waiver. Guests will purchase a mandatory rental damage waiver covering you for up to $1,500 of damage to your Property per Booking, subject to the applicable terms and conditions of such policy. Opuluxe does not collect security deposits with respect to the Property. Opuluxe may, in its discretion, change the amount of the damage waiver or revise other features of the damage waiver product. In accordance with Section 5.1, Owner is responsible for insuring any damages in excess of the rental damage waiver as well as provide liability insurance. 

 

10. OWNER CANCELLATIONS; SALE OF PROPERTY.

10.1 Owner Cancellation Policy. Opuluxe relies on your availability calendar to enter into Booking transactions with Guests and you agree to honor all Bookings. If you cancel one or more Bookings for your Property (an “Owner Cancellation”), you understand that Opuluxe may be required to issue a refund or find alternative accommodations for a Guest, offer booking credits, or make other arrangements to satisfy the Guest, in Opuluxe’s sole discretion. Owner Cancellations include (i) Bookings that you cancel for any reason and (ii) Bookings Opuluxe cancels in its reasonable discretion because you have failed to meet the Four Core Property Standards or have otherwise breached this Agreement.

10.2  Notice. You must promptly notify Opuluxe of any Owner Cancellation.

10.3  Owner Cancellation Charge. Following each Owner Cancellation, Opuluxe will charge the Owner and debit the Owner account the greater of (i) two times (2x) the Management Fee that Opuluxe would have earned on the cancelled booking if completed; or (ii) $250.

10.4  Owner Sale of Property and Post-Sale Bookings.

10.4.1  You are expected to honor all confirmed Bookings. If you intend to sell the Property, you must notify Opuluxe promptly and block the Owner Calendar for any time periods for which you do not intend to honor Bookings. You are required to honor Bookings or make plans for the buyer of the Property to honor Bookings pursuant to Section 10.4.2. Bookings that you do not accommodate due to sale of the Property will be considered Owner Cancellations

10.4.2  With Opuluxe approval, you may make arrangements for a purchaser of the Property to honor Bookings on your behalf. To obtain Opuluxe approval, you must notify Opuluxe of your intent to sell the Property and the purchaser of the Property must either (i) sign up for the Opuluxe Services; or (ii) accept Opuluxe’s temporary Owner Agreement committing to honor the Bookings and authorizing Opuluxe to transact directly with the purchaser until all confirmed Bookings are completed.

11. TAX.

11.1  You are responsible for determining your obligation to collect, report, and remit any applicable sales tax, occupancy tax, lodging, tourist or other visitor taxes imposed by any government authority on the Booking transactions (“Occupancy Taxes”). Opuluxe will facilitate the collection and remission of any such Occupancy Taxes by delivering tax rates to the Site and to Third-Party Marketing Sites and reporting to you the amount of taxes that have been collected for each Booking. Opuluxe will deliver those amounts to you for remission as part of the Owner Payout and will identify which portions of the Owner Payout were collected for tax purposes.

11.2  Government authorities or regulations may require that Opuluxe collect and remit taxes related to
the Bookings, in which case Opuluxe will notify you of which tax amounts Opuluxe is collecting and remitting with respect to your Property. Additionally, in certain jurisdictions, Opuluxe may determine in its discretion to facilitate the collection and remission of Occupancy Taxes for the Bookings, whether or not Opuluxe is required to do so. In those cases, Opuluxe will notify you of its intent to collect and remit Occupancy Taxes for your Property. You will promptly provide all information required by Opuluxe to perform the collection of Occupancy Taxes when requested.

11.3  You are solely responsible for determining whether and how Bookings or Owner Payouts create income tax obligations for you. Opuluxe is not responsible for advising you on income tax matters and you are solely responsible for any of your tax liability associated with Bookings or Owner Payouts.

12. OTHER PRODUCTS, ADVERTISING & THIRD-PARTY CONTENT.

12.1 Right to Sell Other Products. Opuluxe has the right to sell ancillary products and services, for a commission, to you, other Owners or Guests (e.g., travel insurance, accidental rental damage waiver, car rentals, airfare, keyless entry locks, etc.). You are not entitled to any commissions or compensation earned from the sale of these products or services. At times, Opuluxe may be required to bundle the price of ancillary products or services with the Adjusted Rates for your Property. In such cases, the reasonable price of the ancillary product or service will be deducted from the Adjusted Rates prior to calculating your Owner Payout and Opuluxe’s Management Fee.

12.2  Right to Display Advertising. Certain advertising information may be displayed on our Site and/or through our Services at our sole discretion. The display of advertising information shall not entitle you to any advertising fees or revenues from such advertising unless otherwise explicitly agreed to in writing by Opuluxe. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through our Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Opuluxe shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers as a part of our Services.

12.3  Third Party Content. In using our Services, you may be exposed to content and information from other users or third parties (“Third-Party Content”), either at our Site or through links to third-party websites. We do not control, and shall have no responsibility for, Third-Party Content, including material that may be unlawful, misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. You must evaluate the veracity of, and bear all risks associated with your exposure to, Third-Party Content, including without limitation, profiles of other users of our Services.

13. CONTENT, PRIVACY, RESTRICTIONS

13.1  Privacy Policy. Our privacy policy is available at Opuluxe Privacy Policy (the “Privacy Policy”) and is hereby incorporated by reference.

13.2  Opuluxe Content. Opuluxe will have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services, Listings, Bookings, Property, and related systems and technologies, and Opuluxe will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance its products and services and for other development, diagnostic and corrective purposes in connection with its products and services, and (ii) disclose such 

information as it relates to the booking frequency and performance of Property to potential purchasers of Property, and (iii) use and disclose such data solely in an aggregated or other anonymized form that does not identify Owner, any individual or any specific Guest in connection with its business, including but not limited to Opuluxe’s offering of benchmarking services.

13.3  No Obligation to Post Content. We have no obligation to post any content from you or anyone else. In addition, we may, in our sole discretion, edit, remove or delete any content that you post or submit.

13.4  You Grant Us a License. By submitting any of your content (including, without limitation, any photographs, videos, words, pictures, or symbols) to our Site, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, display, perform, adapt, modify, sell, distribute, have distributed and promote such content in any form, in all media now known or hereinafter created and for any purpose, subject to the Privacy Policy. You represent and warrant that you have sufficient rights to grant us this license.

13.5  Content Restrictions. You are solely responsible for any content that you submit, post or transmit via our Services. You may not post or submit any content that:

13.5.1  infringes the copyright, trademark, or other intellectual property rights of any person;

13.5.2  is defamatory;

13.5.3  contains nudity or sexually explicit content, or is otherwise obscene;

13.5.4  may disparage any ethnic, racial, sexual, religious, or other group by stereotypical
depiction or otherwise;

13.5.5  depicts individuals under 18 years of age;

13.5.6  depicts or advocates the use of illicit drugs;

13.5.7  makes use of offensive language or images;

13.5.8  characterizes violence as acceptable, glamorous or desirable; or

13.5.9  provides a link to any other website.

14. OPULUXE’S PROPRIETARY RIGHTS.

14.1  Our Intellectual Property. Material on our Site (with the exception of third-party content) is protected by rights of publicity, copyright, trademark, trade secret, and other proprietary rights and intellectual property laws as applicable. Except as expressly authorized by us, you may not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such material. Opuluxe Photos and the Listing are the intellectual property of Opuluxe and may not be used for any purpose without Opuluxe’s prior written consent. “Opuluxe,” “Opuluxe Vacation Rental,” “www.opuluxemgmt.com.,” “www.opuluxerentals.com,” and the Opuluxe logo are trademarks of Opuluxe protected by federal and state law; you agree not to use such marks for any purpose, including, without limitation, as metatags on other websites, in written materials or otherwise.

14.2  Your Use of Our Intellectual Property. You may not systematically retrieve data or other content from our Site to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise. You may not display any portion of our Site in a frame (or any content from our Site through in-line links) without our prior written consent, which may be requested by contacting us at support@opuluxemgmt.com. You may, however, establish ordinary links to the homepage of our Site without our written permission, and you may make use of embedded HTML “widgets” if we have provided the HTML code.

14.3  Your Feedback. We welcome and encourage you to provide feedback, comments, and suggestions for improvements to our Services (“Feedback”). You may submit Feedback via the Site, by emailing us, in conversation with an Opuluxe employee, or otherwise. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.

15. USE OF APPS

15.1  Opuluxe offers Products and Services, including applications, that may be made available through the Apple App Store, Android Marketplace or other application marketplaces (“Application Marketplaces”). If you obtain our software (“Software”) through an Application Marketplace, you may be subject to additional terms of the Application Marketplace. These Terms of Service are between you and us only, and not with the Application Marketplace. To the extent that you utilize any other third-party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third-party products and services.

15.2  With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:

15.2.1  Opuluxe and you acknowledge that these Terms of Service are concluded between Opuluxe and you only, and not with Apple Inc. (“Apple”), and that as between Opuluxe and Apple, Opuluxe, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.

15.2.2  You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.

15.2.3  Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.

15.2.4  Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.

15.2.5  Apple is not responsible for any product warranties, whether expressed or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Opuluxe’s sole responsibility, to the extent it cannot be disclaimed under applicable law.

15.2.6  Opuluxe and you acknowledge that Opuluxe, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/
or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

15.2.7  In the event of any third-party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Opuluxe and Apple, Opuluxe, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

15.2.8  You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

15.2.9  If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Opuluxe as follows: support@opuluxemgmt.com.

15.3 Opuluxe and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third-party beneficiary thereof.
 

16. LIMITATION OF LIABILITY.

16.1  IN NO EVENT WILL Opuluxe, OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, CONSULTANTS, AGENTS AND/OR EMPLOYEES (COLLECTIVELY, THE “OPULUXE GROUP”), OR ANY THIRD-PARTY PROVIDER OF A SERVICE OR TOOL OFFERED ON ANY SITE OF A MEMBER OF THE Opuluxe GROUP (EACH A “THIRD- PARTY PROVIDER”), BE LIABLE FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM (A) OUR SERVICES, (B) THIS AGREEMENT, (C) ANY BREACH OF THIS AGREEMENT BY YOU OR A THIRD PARTY, (D) ANY USER-CONTRIBUTED CONTENT,
OR (E) INTERACTION BETWEEN OUR SITE AND ANY THIRD PARTY SITE, INCLUDING WITHOUT LIMITATION A SOCIAL MEDIA SITE OR MARKETING PARTNERS’ SITES, FACILITATED BY A TOOL OR SERVICE ON OUR SITE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) STRICT LIABILITY (4) TORT, (5) NEGLIGENCE, OR (6) ANY OTHER CAUSE OF ACTION, TO THE MAXIMUM EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW.

16.2  IF YOU ARE DISSATISFIED WITH OUR SERVICES, YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, OR HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST US, ANY THIRD PARTY PROVIDER OR ANY USER OF THE SITE WITH RESPECT TO THIS AGREEMENT OR OUR SERVICES, THEN YOUR SOLE AND EXCLUSIVE REMEDY AGAINST US IS TO DISCONTINUE USING OUR SERVICES. IN ALL EVENTS, OUR LIABILITY, AND THE LIABILITY OF ANY MEMBER OF THE Opuluxe GROUP, TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE ARISING OUT OF OR IN CONNECTION WITH OUR SERVICES IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAID TO US IN THE TWELVE MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (B) $100.00 IN THE AGGREGATE FOR ALL CLAIMS.

16.3 IF YOU ARE A USER FROM NEW JERSEY, THIS SECTION 16 IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF

THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.

17. DISCLAIMERS.

17.1  OUR SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE VIA OUR SERVICES OR ON OR ACCESSED THROUGH THE SITE, IS PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR OUR SERVICES, THE CONTENT ON THE SITE OR THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE SITE, FOR ANY PRODUCTS OR SERVICES OR HYPERTEXT LINKS TO THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SITE OR ANY LINKED SITE, EVEN IF WE BECOME AWARE OF ANY SUCH BREACHES. FURTHER, WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON- INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. WE DO NOT WARRANT THAT OUR SERVICES OR THE FUNCTIONS CONTAINED ON THE SITE OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT ANY TRANSMISSION TO AND FROM THIS SITE IS NOT CONFIDENTIAL AND YOUR COMMUNICATIONS OR USER-CONTRIBUTED CONTENT MAY BE READ OR INTERCEPTED BY OTHERS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT BY SUBMITTING COMMUNICATIONS OR USER-CONTRIBUTED CONTENT TO US AND BY POSTING INFORMATION ON THE SITE, NO CONFIDENTIAL, FIDUCIARY, CONTRACTUALLY IMPLIED OR OTHER RELATIONSHIP IS CREATED BETWEEN YOU AND US OTHER THAN PURSUANT TO THIS AGREEMENT.

17.2  YOU ACKNOWLEDGE AND AGREE THAT YOU WILL NOT HOLD OR SEEK TO HOLD US OR ANY THIRD PARTY PROVIDER RESPONSIBLE FOR THE CONTENT PROVIDED BY ANY USER, INCLUDING, WITHOUT LIMITATION, ANY TRANSLATION THEREOF. WE HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE SAFETY OF ANY BOOKING.

17.3  IF YOU ARE A USER FROM NEW JERSEY, THIS SECTION 17 IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.

 

18. RELEASE & INDEMNIFICATION.

18.1 IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE OTHER USERS OF THE SITE (INCLUDING, WITHOUT LIMITATION, ANY DISPUTE BETWEEN YOU AND GUESTS REGARDING ANY TRANSACTION OR USER-CONTRIBUTED CONTENT) OR ANY THIRD PARTY PROVIDER OR ANY THIRD PARTY WEBSITE THAT MAY BE LINKED TO OR FROM OR OTHERWISE INTERACT WITH THE SITE, INCLUDING WITHOUT LIMITATION ANY SOCIAL MEDIA SITE OR MARKETING PARTNERS’ SITES, YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE EACH MEMBER OF THE Opuluxe GROUP, EACH OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH SUCH DISPUTE AND/OR YOUR USE OF OUR SERVICES.

18.2  IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

18.3  YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD EACH MEMBER OF THE OPULUXE GROUP (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT

18.4  WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU AND YOU SHALL NOT IN ANY EVENT SETTLE ANY MATTER WITHOUT OUR WRITTEN CONSENT.

19. DISPUTES & ARBITRATION.

19.1 Opuluxe’s right to modify or amend this Agreement, in whole or in part, per Section 21.7 below, does not apply to this “Disputes and Arbitration” section. The version of this “Disputes and Arbitration” section in effect on the date you last accepted this Agreement controls. Opuluxe is committed to customer satisfaction, so if you have a problem or dispute, we will try to resolve your concerns. But if we are unsuccessful, you may pursue claims as explained in this section. You agree to give us an opportunity to resolve any disputes or claims relating in any way to our Services, any dealings with our customer- facing agents, any services or products provided, any representations made by us, or our Privacy Policy (“Claims”) by contacting us at legal@opuluxemgmt.com. If we are not able to resolve your Claims within 60 days, you may seek relief through arbitration or in small claims court, as set forth below.

19.2 Any and all Claims will be resolved by binding arbitration, rather than in court, except you may assert Claims on an individual basis in small claims court if they qualify. This includes any Claims you assert against us, our subsidiaries, Guests, other users or any companies offering products or services through us (which are beneficiaries of this arbitration agreement). This also includes any Claims that arose before you accepted this Agreement, regardless of whether prior versions of the Agreement required arbitration. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. We each agree that any and all disputes must be brought in the parties’ individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. You agree that you and we are each waiving the right to file a lawsuit and the right to a trial by jury. In addition, you and we agree to waive the right to participate in a class action or litigate on a class-wide basis. You agree that you have expressly and knowingly waived these rights.

19.3  There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including statutory damages, attorneys’ fees and costs), and must follow and enforce this Agreement as a court would.

9.4  Arbitrations will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA Arbitration Consumer Rules (together, the “AAA Rules”). Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, but if you are unable to pay any of them, we will pay them for you for claims totaling less than $100 unless the arbitrator determines the claims are frivolous. We and you will not seek its attorneys’ fees or other costs in arbitration unless the arbitrator determines that the claims or defenses of a party are frivolous. You may choose to have an arbitration conducted by telephone, based on written submissions, or in person in the state where you live or at another mutually agreed upon location. The decision of the arbitrator shall be final and not appealable, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. This section shall survive expiration, termination or rescission of this Agreement.ration under the AAA Rules, the parties agree, among other things, that the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive power to rule on any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.

19.5  By agreeing to arbitration under the AAA Rules, the parties agree, among other things, that the ar- bitrator, and not any federal, state, or local court or agency, shall have the exclusive power to rule on any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.

19.6  To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your Claims to support@opuluxemgmt.com. If we request arbitration against you, we will give you notice at the email address or street address you have provided. The AAA’s rules and filing instructions are available at www.adr.org or by calling 1-800- 778-7879.

19.7  Any and all proceedings to resolve Claims 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 we each waive any right to a jury trial. The Federal Arbitration Act and federal arbitration law apply to this Agreement. An arbitration decision may be confirmed by any court with competent jurisdiction.

 

20. JURISDICTION.

This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), AAA Rules, federal arbitration law, and the laws of the State of Georgia without regard to conflict of laws principles. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law.

 

21. GENERAL.

21.1 Entire Agreement. This Agreement incorporates by reference all policies and guidelines posted on the Site and as may be modified thereafter (including the Privacy Policy, the General Terms and Conditions, the Core Property Standards, and any applicable state addendum), and constitutes the entire agreement between us and you with respect to the matters set forth herein, and supersedes any prior agreement between us and you with respect to your use of our Services. Headings in this Agreement are for reference only and do not limit the scope or extent of such section. In the event of any conflict between this Agreement and any other terms and conditions applicable to a product, tool or service offered via our Services, this Agreement shall prevail. If any portion of this Agreement is found to be invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. Further, any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

21.2  Assignment. We may assign this Agreement at our sole discretion. Owners must obtain our prior written consent to assign this Agreement, which may be granted or withheld by us in our sole discretion.

21.3  Force Majeure. Opuluxe will not be responsible for delays, errors, failures to perform, interruptions or disruptions in our Services resulting from any act, omission or condition beyond our reasonable control, whether or not foreseeable or identified, including without limitation acts of God, labor strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disasters, hackers, or the failure of any third party’s hardware, software or communications equipment or facilities. For the avoidance of all doubt, government restrictions regulating short term rentals or travel in general, shall not make this Agreement impossible or impractical, nor shall it void this Agreement; such restrictions are specifically addressed in Section 9.4 which represents a fundamental term of the agreement between the parties.

21.4  Effect of Waiver. No waiver of any breach of any term, covenant, agreement, restriction, or condition of this Agreement shall be construed as a waiver of any succeeding breach of the same or any other covenant, agreement, term, restriction, or condition of this Agreement. The consent or approval of either party to or of any action or matter requiring consent or approval shall not be deemed to waive or render unnecessary any consent to or approval of any subsequent or similar act or matter.

21.5  Survival. Sections 8 (Opuluxe Management Fee), 9 (Owner Payout and Payment Terms), 13 (Content, Privacy, and Restrictions), 14 (Opuluxe Proprietary Rights), 16 (Limitation of Liability), 17 (Disclaimers), 18 (Release and Indemnification), 19 (Disputes and Arbitration), 20 (Jurisdiction) and this Section 21 (General) shall survive any termination or expiration of this Agreement.

21.6  Notices. You can contact us and/or provide any notice under this Agreement at support@opuluxemgmt.com. Opuluxe can provide notice under this Agreement by contacting you at the Owner email address and/or the Owner mailing address that you provide via the Owner Account.

21.7  Modification of this Agreement. Opuluxe reserves the right to modify this Agreement at any time in accordance with this provision. If we make changes to this Agreement, we will post the revised Agreement on the Site and/or provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Agreement, you may terminate this Agreement with immediate effect. In the event you terminate this Agreement pursuant to this Section within the thirty (30) day window and decide to cancel future Bookings at the Property, any Owner Cancellation fees related to such cancellations shall be waived. Please note that if you do not cancel future Bookings, you agree that future Bookings will be subject to the modified Agreement so long as they begin on or after the effective date of the modified Agreement. If you do not terminate your Agreement before the date the modifications become effective, your continued access to or use of our Services will constitute acceptance of the revised Agreement.

 

IN WITNESS WHEREOF, the Parties hereto, individually or by their duly authorized representatives, have executed this Agreement as of the Effective Date. 

 

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