Quintess Access Membership Agreement
This Quintess Access Membership Agreement, between QUINTESS COLLECTION, LLC, a Delaware limited liability company ("Manager") and the undersigned Member ("Member") together with the Rules, (defined below) (collectively, this "Agreement") sets forth the terms and conditions of Member's participation in "Quintess Access", a membership-based travel program (the "Program") and is effective as of the date established according to Section 10(i) of this Agreement("Effective Date").1) Program Overview. At any time that Member's Account (defined below) is in good standing, Member is granted a revocable, non-exclusive license to purchase products and services within the Program that are available from time to time (the "Membership"). Currently, there are three product lines within the Program that can be purchased through a dedicated website operated by Manager and a third-party supplier and includes inventory and reservation functionality (the "Store"): (a) nights in vacation Homes ("Homes"); (b) nights in hotel accommodations (the "Hotels") and (c) other products and services ancillary and related to travel to the Homes or Hotels ("Ancillary Inventory").
a) The Homes. The Homes contain a portfolio of luxury accommodations, that are made available for rental from time to time. Homes may be single family homes, townhomes, condominiums, apartments, or any other type of accommodation. Inventory of Homes included in the Program is determined by Manager in its sole and absolute discretion. Homes are not owned by Manager, but are sourced by Manager through leases, licenses, home exchanges, rental agencies, rental booking sites, resorts, and property managers. The inventory of Homes is fluid and changes from time to time. The size, quality, location, Host Rules (defined below) and associated services vary among Homes and destinations. There is no minimum, maximum or proscribed ratio of available Homes. Homes are not exclusive to the Program.
b) The Hotels. The Hotels contain a portfolio of hotel room nights that are made available for rental through the Program. Hotel nights are sourced through Manager's contract with a third-party hotel room supplier. Members have access to this inventory to reserve hotel room nights at attractive rates. The size, quality, location, Host Rules and associated services vary among Hotels and destinations. There is no minimum, maximum or proscribed ratio of available Hotels. Hotels are not exclusive to the Program.
c) Ancillary Inventory. Ancillary Inventory refers to products and services relating to stays at Homes and Hotels and could include services, rental cars, transportation or access to activities or entertainment.
d) Future Products and Services. Manager anticipates, but is not required to offer other products and services to Members through the Program as it sources those products and services (collectively "Future Products"). If Future Products become available through the Program, their terms, conditions, pricing and Rules will be determined by Manager in its sole discretion.
2) Creation of Account/Credit Card. To utilize the Program, Member must first open an account ("Account") by doing the following: (a) executing and delivering this Agreement, which may be done online on Manager's website by clicking the "I Accept" button (or similar mechanism to consent electronically); (b) selecting the Membership Level that Member chooses using procedures as directed by Manager; and (b) if applicable, executing or consenting to a credit card authorization form as set forth on Manager's website ("Credit Card Authorization") described in Section 5 below, and payment of the initial required Access Fee (described below).
3) Membership Levels. Manager offers multiple levels of membership, which have different requirements for opening an Account. Currently, there is a Free Membership Level, which means that periodic Access Fees are not required and there are paid Membership Levels do require payment of periodic Access Fees). Membership levels and requirements are determined by Manager in its sole and absolute discretion and can be terminated, added to or modified at any time, but will not be applied to Member’s membership for periods for which Member has pre-paid Access Fees. Currently available Membership Levels are described in the Rules.
4) Reservations; The Store. Member, members of Member's immediate family (spouse, sibling, parent, children over 25 years of age) (collectively, "Immediate Family") or a designated other person, but only on behalf of Member or Member's Immediate Family, may make reservations for nights in Homes and Hotels (collectively, "Residences"), Ancillary Inventory (and potentially, Future Products) in accordance with this Agreement and the Rules ("Reservations"), and if required, shall execute and deliver a rental agreement or terms and conditions of use for any Reservations or Residences. Reservations are not allotted to any minimum usage or defined intervals or based upon recurrent use on any periodic basis. Reservations are provided on a first-come-first-served and "as-available" basis and no recurring right of use shall arise by virtue of actual use. Members are not guaranteed any minimum number of nights nor specific Residences or Ancillary Inventory. Use of Residences, Ancillary Inventory and Future Products may require Member to execute and deliver additional documents, liability waivers, credit card authorizations and similar documents. Booking windows and periods that the Residences are available in the Store are determined by Manager in its sole and absolute discretion and may differ among Residences and Reservations. All Hotels stays will be subject to the rules, requirements and limitations of the applicable Hotel. For all stays, Member or a member of Member's Immediate Family must be present (one of the people in the Travel Party) during the period of occupancy.
a) Confirmed Reservations. Reservations shall not be confirmed until Manager sends a written confirmation of the Reservation (which may include confirmation by email, automatic notification or electronic notification including in or through the Store), that states that the Reservation is "Confirmed" or is a "Confirmed Reservation" subject to any terms, conditions and requirements stated therein (a "Confirmed Reservation"). Confirmed Reservations can be cancelled in the event of strike, lockout or other labor troubles; war, act of terrorism, civil unrest or other national emergency; order, regulation or threat of legal action by any governmental authority or homeowner association, fire, flood, hurricane, inclement weather, act of God, failure of supply, inability to obtain fuel, supplies, parts or labor; road or airport closures, actions by third parties that impair access to or use of a Residence, its surrounding community or Ancillary Services, or any other cause that is beyond Manager's reasonable control (collectively, "Force Majeure Events"). If a Confirmed Reservation must be canceled due to a Force Majeure Event, Manager will use commercially reasonable efforts to provide substitute accommodations of equal or greater value if available, or upon the request of Member, provide a credit to Member in the amount of the Purchase Price toward a future Reservation, where the travel must occur within 1 year of the cancellation, or, if required by applicable law, refund the Purchase Price paid by Member for the Confirmed Reservation, unless the refund can be obtained from the hotel or provider.
b) Make Goods. Manager will determine, in its sole and absolute discretion, whether complaints regarding Residences, services or amenities warrant that Manager provide alternative or replacement services (collectively, "Make Goods"), which Make Goods will be provided in-kind, in Manager's sole and absolute discretion.
5) Rules. Membership levels, Account access requirements and use of the Residences, Ancillary Inventory and Future Products are subject to the Rules, which consist of: (a) all rules, regulations, restrictions, policies, procedures, terms and conditions regarding the Program, the Store, and the Account including but not limited to procedures for making Reservations, pricing and payment terms ("Program Rules"); (b) all rules, regulations, restrictions, policies, procedures, terms and conditions regarding the use of Residences of the host hotel, accommodation, homeowner, resort or facility ("Host Rules") (c) all rules, regulations, restrictions, policies, procedures, terms and conditions regarding the use of Ancillary Inventory or Future Products of the providers thereof (all collectively, the "Rules"). Program Rules are posted to Manager's website. Other Rules are found in the Store or are disclosed on Confirmed Reservations, property pages or otherwise available. If Member violates this Agreement or the Rules, Manager has the right to terminate this Agreement immediately.
a) Referral Programs, Rewards and Incentives. From time to time, Manager may offer Members the ability to participate in referral, reward, or incentive programs. When any such program is in effect, its rules, terms and conditions are included in the Rules, as they may be updated from time to time. Referral, reward or incentive programs are not mandatory and may be discontinued or modified at any time by Manager in its sole and absolute discretion; provided however that any rights or rewards earned in any such program shall be honored if earned prior to the date of the program’s termination or modification.
6) Member Payments. Member shall make payments to Manager as follows: (a) Access Fees (if applicable); (b) Purchase Price; and (c) Charges (collectively, "Member Payments"). ALL MEMBER PAYMENTS, ONCE PAID, ARE NON-REFUNDABLE AND THERE IS NO WAIVER THEREOF BECAUSE OF LACK OF TRAVEL, TERMINATION OF THIS AGREEMENT OR THE PROGRAM OR MEMBERSHIP LEVELS, DISABILITY, DISSATISFACTION, OR ANY OTHER REASON. Member Payments must be made as and when they are due, and if not timely paid, (w) will incur interest at the lesser of 1.5% per month or the maximum rate permitted by law from the date such amount was due until paid in full, (x) Member will be unable to book Reservations and access to the Store will be terminated; and (y) the Membership can be terminated. Member will not be permitted to travel within the Program or make Reservations (and Reservations may be cancelled) unless this Agreement is in effect and all Member Payments are current and paid. Member Payments are obligations independent of other provisions of this Agreement and are enforceable by specific performance.
a) Access Fees. Access Fees are required for some Membership levels and cover costs of maintaining and processing the Membership, Account management, and administrative costs, but are not applied to the Purchase Price or Charges. Access Fees are due and payable on the dates set forth for the Membership Level set forth in the Rules (each an "Access Fees Payment Date"). Access Fees are initially in the amounts set forth in the Rules, but are subject to increase at any time in Manager's sole and absolute discretion, provided such increases have prospective effect only and are not applied until the next ensuing Access Fees Payment Date. If Member ceases paying Access Fees, the Member's account will be automatically converted to a Membership Level that does not require the payment of Access Fees, or, if no such Membership Level is then offered, then the Membership will terminate as of the next Access Fees Payment Date. In order to terminate the Membership (including a Membership Level that does not require Access Fees), Member must notify Manager in writing, in which case the Membership and this Agreement will be terminate at the sooner to occur of the date of the notice of termination or the next Access Fees Payment Date.
b) Purchase Price. The price payable for each Reservation (the "Purchase Price") will be stated for each Confirmed Reservation or on a transaction by transaction basis for Ancillary Inventory (unless otherwise stated in the Store). The Purchase Price will fluctuate and is subject to change at any time and is only valid at the time (date and time) that the Reservation is made. Accordingly, the Purchase Price could change before the Reservation is confirmed. Pricing is determined in Manager's sole and absolute discretion, based on market forces, membership level, property, location, quality, services and amenities, desirability, season, taxes, and costs, are subject to change at any time and differ from Reservation to Reservation. Terms and conditions, pricing and payment procedures are set forth in the Store and disclosed at the time the Reservation is made. Taxes are not included in the Purchase Price unless specifically shown or stated in the Store.
c) Charges. "Charges" are amounts that Member pays for (i) optional or additional services or amenities that are not otherwise included in the Reservation, such as folio charges for incidentals, activities, entertainment or amenities booked by or through Manager, (ii) any fees, charges, per diems or similar costs of access to services or amenities imposed by resorts, homeowners, hotels or other providers; (iii) fees or costs that Manager pays in order to hold reservations for Members' services, activities or entertainment even if canceled; (iv) any tax or other form of governmental charge, imposition or assessment ("Tax") imposed upon the Membership or use or Reservations (including applicable hotel, occupancy, lodging, transient or similar taxes), even if the Tax is assessed against Manager or its Affiliates and may be charged to Member retroactively; (v) cancellation fees (included disputed cancellation fees); and (vi) any Damage Obligation.
d) Member's Responsibility for Charges and Damage. Member is fully responsible to Manager and the provider for the actions, omissions and conduct of Member and Member's family and guests using the Reservations by through or under Member's Account ("Member Authorized Users") and for all damage (beyond normal wear and) or theft at or about any Residence, Ancillary Inventory or Future Products due to the actions or omissions of any Member Authorized User ("Damage Obligation").
e) CREDIT CARD AUTHORIZATION. A CREDIT CARD AUTHORIZATION IS NECESSARY TO MAKE RESERVATIONS, AND FOR SOME MEMBERSHIP LEVELS, TO OPEN AN ACCOUNT. THE CREDIT CARD AUTHORIZATION WILL, AMONG OTHER THINGS, (A) AUTHORIZE MANAGER TO AUTOMATICALLY, WITHOUT REQUIREMENT OF SEPARATE CONSENT ON EACH OCCASION, BILL MEMBER'S CREDIT CARD AN AMOUNT EQUAL TO THE ACCESS FEES ON EACH ACCESS FEES PAYMENT DATE UNTIL TERMINATION OF THE TERM; (B) AUTHORIZE MANAGER TO BILL MEMBER'S CREDIT CARD FOR THE PURCHASE PRICE ONCE A CONFIRMED RESERVATION HAS BEEN ISSUED; (C) AUTHORIZE MANAGER TO BILL MEMBER'S CREDIT CARD FOR CHARGES (INCLUDING DAMAGE OBLIGATION), PROVIDED THE CHARGES ARE DISCLOSED AND ITEMIZED TO MEMBER. IF MEMBER TERMINATES THIS AGREEMENT PURSUANT TO SECTION 6, MANAGER WILL CEASE BILLING TO THE CREDIT CARD.
7) Term and Termination. The term of this Agreement (the "Term") shall be from the Effective Date until this Agreement is terminated in any of the following ways: (a) Member may terminate this Agreement at any time by written notice to Manager or by not making a required Member Payment payment as and when due and does not cure the non-payment within 30 days after written notice from Manager; (b) Member violates this Agreement or the Rules and Manager delivers written notice of termination of the Membership as a result (which may have immediate effect if Manager determines that continuation of the Membership presents a danger, threat or harassment to the Manager or any person involved in the delivery of services, including employees and contractors or Manager or third parties); (c) the Program is terminated, which Manager may do in its sole discretion; or (d) Manager may terminate this Agreement, after the first Anniversary Date, if Manager determines that any aspect of Member's Membership is damaging to the Manager or the Program, unfair to other members or unsustainable and Member and Manager are unable to agree on modifications. Except as set forth in this paragraph, any such termination shall be effective as of the day before the next ensuing Access Fees Payment Date. Upon the effective termination of this Agreement, Member's access to the Store will be discontinued and Member will remain liable for any then due and outstanding Member Payments that remain unpaid, subject to specific performance. If any amounts remain in the Account at the time of termination, Member will have six months after termination to use those remaining amounts for the purchases in the Store. At the expiration of such six-month period, all remaining amounts in the Account will be deemed abandoned, forfeited and retained by Manager.
8) Amendment; Modification. This Agreement may be amended only by a written amendment signed by Member and Manager. Program Rules, may be amended and updated by Manager, in its sole and absolute discretion, at any time; provided they are consistent with this Agreement in all material respects and have prospective effect only. Host Rules, Services Rules and Future Product Rules can be modified or amended in the provider's sole and absolute discretion at any time and from time to time. Notwithstanding the foregoing, Manager at its sole discretion may amend, modify and add to this Agreement and the Rules as is necessary to comply with any laws, orders, regulations or rulings of governmental or quasi-governmental authority (even if only applicable to certain jurisdictions) without any requirement of consent of Member.
9) Waiver; Confidentiality.
a) Assumption of Risk and Waiver of Claims. Member acknowledges that use of Residences, Ancillary Inventory and Future Products involves certain risks, including, without limitation, the risk of: (1) personal injury, illness or death to Member, and Member Authorized Users arising out of use of Residences, Ancillary Inventory and Future Products including swimming pools, spas, equipment, and recreational activity; and (2) loss of personal or other property while at a Residence or participating in Ancillary Inventory or Future Products including, without limitation, due to theft, loss or destruction of property. Member agrees to, and to the fullest extent permitted by law, all Member Authorized Users, hereby (i) assume all such risks of damage or loss of property or personal injury, illness or death for themselves and their family members and guests; and (ii) waive, to the fullest extent permitted by law, for themselves and their family, any claims or causes of action which it, he, she, or they may have against Manager or its Affiliates arising out of such risks, except to the extent proximately caused by the gross negligence or intentional misconduct of such Manager or Affiliate. This is a knowing and voluntary waiver of claims, including claims that do not yet exist or that Member does not know exist or may exist in the future (collectively, "Released Claims"). Manager may, in its sole discretion, require any Member Authorized User, to sign a waiver of liability prior to use of Residences, Ancillary Inventory or Future Products. Member acknowledges that Manager does not maintain insurance to cover loss of Member's or Member Authorized User's personal property. Further Member agrees that Manager is providing access to the Residences, Ancillary Inventory and Future Products only as a facilitator and has no control over the Residences, Ancillary Inventory, or Future Products. Manager is not responsible for Member's satisfaction and there is no expectation of minimum quality or standards. Manager and the applicable supplier are providing access to Residences, Ancillary Inventory and Future Products at Member's sole risk, as is where is, with all faults, and makes no representation or warranty of any kind or nature with respect thereto, including, without limitation, adequacy or suitability for any particular purposes, such as equipment, furniture, appliances and amenities. Manager makes no representation or warranty of any kind or nature with respect to legal or tax implications regarding the membership of its use, and tax obligation or liability of Member is the sole responsibility of Member. Manager is relying on the foregoing Member agreements and assumption of the risks of travel set forth herein and without such acceptance and assumption, the Purchase Price would be higher.
b) Indemnification. To the fullest extent permitted by law, Member shall indemnify, defend with counsel acceptable to Manager and hold Manager and its employees, trustees, agents, Managers, partners, officers, directors, attorneys, and owners (each an "Indemnitee" and collectively, "Indemnitees") harmless from and against any and all claims, damages, losses, liabilities, penalties, judgments, and costs and expenses (including, without limitation, attorneys' fees) (collectively, "Losses") including those for property damage, or personal injury, including illness and death, arising out of Member's (or its Travel Party's) use, occupancy, or enjoyment of, or access to, any Residences, Ancillary Inventory or Future Products, or arising out of Released Claims, whether brought by Member or any other person or entity, except for such Losses that are proximately caused by the negligence or intentional misconduct of Manager.
c) Confidentiality. Manager uses and maintains certain proprietary and confidential systems, procedures and information (collectively, "Confidential Information"), which Confidential Information includes, but is not limited to, the terms of this Agreement, client or member data, any financial, business, strategic, structural, investment, shareholder, legal, and operational information about Manager, any entity owned or controlled by, owning or controlling or under common control with Manager (collectively, "Affiliates") and the identity of or any information about Manager's suppliers, vendors, partners and other third parties. By entering into this Agreement, Member agrees to keep all Confidential Information confidential and not to use or disclose Confidential Information to any third party, nor place any Confidential Information in the public record, except: (a) Member's professional advisors and Member Authorized Users, whom Member shall advise of these confidentiality requirements and who shall be subject to such requirements and (b) pursuant to a requirement to disclose the same by law or subpoena. In the event of the breach or threatened breach of this confidentiality provision, Manager may seek a temporary restraining order, injunctive relief and/or damages, without any requirement of posting a bond or other security, as there may be no adequate remedy at law for violation of this paragraph.
d) Survival. This Section 9 shall survive termination of this Agreement.
10) General Provisions.
a) Waivers. No failure or any delay to exercise any right, remedy, power, privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise, nor shall any waiver thereof on any one or more occurrences be construed as a waiver with respect to any other occurrence.
b) Severability. Any provision of this Agreement that is determined by a court or arbitration forum of competent jurisdiction, to be prohibited or unenforceable shall only affect the applicable provision or provisions without invalidating or reforming the remaining provisions hereof.
c) Binding Nature; Assignment. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Manger may assign this Agreement, any other agreements, understandings or information relating to Member and any Member Authorized User, or Member's Account to its Affiliates and any person or entity that acquires the business or assets of Manager or the Program, including without limitation, by acquisition, merger or business combination. Member may not assign this Agreement. Except for Indemnities, there are no third-party beneficiaries to this Agreement. "Member" is the person or entity signing this Agreement and does not include Member's spouse or other family members; notwithstanding that they may have rights to make Reservations under this Agreement or the Rules.
d) Membership Held by Natural Person. Member must be a natural person. If the membership is to be purchased by an entity, a natural person must be designated as the primary representative of the membership and shall be considered the "Member" for all purposes under the membership and no other person within the entity will have membership privileges and an "Entity Addendum" must be appended to this Agreement, the terms of which are incorporated herein by reference.
e) Limitation of Liability. Each Party hereby irrevocably, voluntarily and knowingly waives and will not bring any claim for any indirect, special, consequential or punitive damages against the other Party or its Affiliates. Manager's total liability to Member shall not exceed the aggregate amount of Access Fees paid by Member. In no event shall any of Manager's employees, trustees, agents, partners, officers, directors, attorneys or owners be liable, in contract, tort or in equity with respect to rights and obligations of the Parties under this Agreement.
f) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without application of choice of law principles.
g) Counterparts. This Agreement may be executed in any number of counterparts; each deemed an original as against any party whose signature appears thereon, and all together constituting the same instrument. The receipt of the signature of a party transmitted via facsimile, PDF, email or other electronic signature, including on-line through check the box, I Accept or similar functionality to demonstrate acceptance electronically, is satisfactory to bind such party to the provisions of this Agreement and any other document relating to the Membership.
h) Notices. Member expressly consents to receiving notices and other communications under this Agreement via email and as posted in the Store. Member acknowledges that the Rules will be posted in the Store and/or on Confirmed Reservations or property pages and that separate hard copies of the Rules do not need to be provided to Member. Member agrees to maintain accurate and current contact information, including email. Member agrees to abide by the Manager’s privacy policies and terms of use of its websites, as they may be updated and amended from time to time.
i) Entire Agreement. This Agreement (including Rules) constitutes the entire agreement and understanding and the complete and exclusive statement with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements, representations, promises, and understandings, whether written or oral. No person has been authorized to give any information or make any representations, whether written or oral, not contained in this agreement and, if given or made, have not been relied upon; any such reliance being hereby expressly disclaimed. All exhibits, schedules, addenda hereto are incorporated herein by reference. This Agreement shall become effective only when it has been countersigned or electronically accepted by Manager.
BY ACCEPTANCE OF THESE TERMS AND CONDITIONS, THE CLIENT REPRESENTS AND ACKNOWLEDGES THAT HE OR SHE HAS RECEIVED, READ, ACCEPTED, AND UNDERSTOOD THIS AGREEMENT (INCLUDING THE RULES) AND AGREES TO BE BOUND BY THE TERMS AND PROVISIONS THEREOF.