These Terms and Conditions, along with the confirmation email We send You after You make Your reservation ("Confirmation Email"), form a binding contract between You and Us, effective as of 24 hours after We send the Confirmation Email to You ("Agreement Date").
In these Terms and Conditions, "Agreement" means these Terms and Conditions and the Confirmation Email collectively. "You" and "Your" means the person or persons making the reservation and those who will be staying at the Property as guests. "We," "Our," "Ours," and "Us" means Hawaiian Vacation Rentals, LLC, a Wyoming limited liability company.
We manage the rental property located at the address identified in the Confirmation Email ("Property"). With this Agreement, You and We (collectively, "Parties") wish to agree on the terms of Your renting the Property on a short-term basis for vacation purposes. Therefore, the Parties agree as follows:
(1) Rejection of Agreement. By making a reservation and payment on Our website, travel agent (airbnb, home away etc.) or any other means, You are agreeing to accept or reject this Agreement within 24 hours of Our sending You the Confirmation Email. To reject this Agreement, You must respond to the Confirmation Email at firstname.lastname@example.org and notify Us that You wish to reject this Agreement. If You do not reject this Agreement within 24 hours of Our sending the Confirmation Email, You will automatically be deemed to have accepted this Agreement.
(2) Reservation. Subject to the terms and conditions of this Agreement, You will rent the Property solely for short-term vacation purposes between the "Check-In Date" and "Check-Out Date" identified in the Confirmation Email. Your lease of the Property will start at 4:00 p.m. on the Check-In Date, and will end at 11:00 a.m. on the Check-Out Date. You may not check in early or check out late without Our prior agreement. However, We may require check in to occur later than 4:00 p.m. during peak holiday periods.
(3) Rent and Other Charges. You will pay Us the full amount of rent, taxes and other fees stated in the Confirmation Email (collectively, "Total Charges"). Rent may be combined with other Fees and will be stated in the Confirmation Email.
(a) Payment Deadlines. If Your Agreement Date is less than 120 days before check-in, You authorize Us to charge 100% of the Total Charges to Your credit card when You make the reservation. If Your Agreement Date is 120 days or more before Your check-in date, You authorize Us to charge 30% of the Total Charges to Your credit card when You make the reservation, and charge the remaining 70% to Your credit card 120 days before Your Check-In Date ("Second-Charge Date"). You authorize Us to charge Your credit card on file without any further notice to You on the Second-Charge Date. If 100% of the Total Charges aren't paid to Us by the Second-Charge Date, We may cancel Your reservation at any time.
(b) Nonrefundable Reservation Fees. "Nonrefundable Reservation Fees" may be combined with Rent and are included in the Total Charges. Nonrefundable Reservation Fees means cleaning fee, extra dirty, early check-in, late check-out, cancellations, travel-agent (airbnb, booking.com, home away marketing etc.), pet, accidental damage waiver, customer care as stated in the Confirmation Email as well as any other fees (if any) designated in the Confirmation Email. Nonrefundable Reservation Fees are fully earned by Us on the Agreement Date. Except as otherwise set forth in this Agreement or otherwise required by applicable law, We have no obligation to refund the Nonrefundable Reservation Fees to You for any reason, even if: (1) We cancel Your reservation because You failed to pay 100% of the Total Charges by the Second-Charge Date; or (2) You cancel Your reservation (even if You cancel before the Cancellation Deadline referred to below).
(c) Application of Payments. Payments You make to Us are first credited toward the Nonrefundable Reservation Fees (and related taxes), then the rental fees (and related taxes), and then the Security Deposit (defined below). You will pay Us $25 for any returned check.
(d) Security Deposit and Additional Charges.
(1) Certain charges may be designated as a "Security Deposit" in the Confirmation Email. To the fullest extent permitted by applicable law, We may deduct from the Security Deposit any costs for damages, extra cleaning, or repair of the Property, furniture, and other items in the Property which You cause or permit to occur, plus any sales tax, general excise tax, transient accommodations tax, and any other applicable taxes.
(2) If the Security Deposit is not sufficient to cover any costs or damages caused by You or for which You are responsible under this Agreement, You will be responsible for paying Us the difference promptly upon Our request.
(e) Limited Damage Waiver. If You purchase a Limited Damage Waiver (as indicated in the Confirmation Email), We will apply the Limited Damage Waiver to cover any incidental damages up to fifteen (15) times the amount You paid for the Limited Damage Waiver. Any damages in excess of this amount will be Your responsibility.
(f) Changes to Reservation. If You request a change in Your reservation (either dates or Property location) and We agree to the change, We may charge You $75, plus applicable taxes. We have no obligation to agree to a change in Your reservation.
(a) You may cancel Your reservation by giving Us written notice at least 120 days before Your Check-In Date ("Cancellation Deadline"). If You do so, We will refund You the Total Charges except for the Nonrefundable Reservation Fees. If You cancel Your reservation after the Cancellation Deadline, We will have no obligation to refund You any amounts You paid, except for the Security Deposit, unless otherwise required by applicable law. You acknowledge and agree that travel insurance is available for You to purchase from various third parties which may avoid or mitigate the risk of Your losing amounts You have paid under this Agreement if You cancel Your reservation.
(b) To the fullest extent permitted by applicable law: (1) We may cancel Your reservation at any time for any reason, in Our sole and absolute discretion, and if We do so, We will refund You the Total Charges, including the Nonrefundable Reservation Fees; (2) We may move up Your Check-Out Date for any reason in Our sole and absolute discretion, in which case We will refund You a proportionate percentage of the Total Charges, including the Nonrefundable Reservation Fees; and (3) We will not be liable to You for any damages if We cancel Your reservation or move up Your Check-Out Date.
(5) Holdover. If You fail to check out and give Us possession of the Property on time on the Check-Out Date, We may charge You daily rent for the time You holdover at a rate equal to the lesser of: (a) 200% of the amount of the daily rent set forth in the Confirmation Email; or (b) the maximum rate permitted by applicable law.
(6) No Assignment or Subleases. You may not assign any part of this Agreement, sublease any portion of the Property, or grant any license or right to use any part of the Property. Any attempted assignment, sublease, or grant without Our written consent will be void.
(7) Guest Rules.
(a) Although We may provide a starter supply of toiletries and amenities (such as toilet paper, dishwasher detergent, and dish-washing liquid, etc.) as a courtesy, We have no obligation to replenish those items. Additional supplies are Your responsibility.
(b) If the Property is equipped with a telephone or digital television, You may not make long-distance telephone calls or order movie or event programming. You will pay Us any long-distance or other telephone toll charges and any movie or event programming charges incurred, together with a 40% surcharge to cover Our administrative costs.
(c) If the Property is equipped with a television, video player, or related or similar electronics, replacement or repair is not guaranteed and no refunds will be given for malfunctions of such equipment.
(d) You will not give access to or permit any guests or occupants in the Property other than the individual or individuals specifically identified as You in this Agreement.
(e) You assume responsibility for any damages to or theft from the Property, including towels and linens.
(f) You may not place wood, paper, or any other combustible materials in any gas fireplace.
(g) You may not make any alterations to the Property or its improvements, furniture, equipment, or other furnishings.
(h) A Pet Fee is applicable for stays at properties that are Pet Friendly.
(i) Smoking is strictly prohibited in or on the Property, or in any common areas near the Property. Violations will result in an automatic $500 fine plus the cost of carpet/upholstery cleaning, and any other damages as a result.
(j) After-hours lockout calls to a locksmith and related expenses incurred are Your responsibility.
(k) Grilling is only permitted on grills. Propane refills may be undertaken only by Us, provided such refills will occur only during normal business following Your request that We do so. Charcoal may not be placed or burned within any gas grill.
(l) You are responsible for Your own vehicle, including (but not limited to) damage or additional wear and tear resulting from coastal driving (if applicable) and related hazards thereto, and towing or other charges. We do not provide towing or roadside assistance reimbursement, regardless of type of the vehicle or road or weather conditions.
(m) Quiet time is from 10:00 p.m. to 8:00 a.m. If a noise complaint is reported, You will be charged $100 for the first complaint and $200 for each additional complaint.
(n) You must maintain the Property in as good a condition as You received it, including but not limited to:
(1) keeping the Property safe and clean;
(2) not causing or permitting any unsafe or unsanitary conditions in the area surrounding the Property;
(3) disposing of all ashes, rubbish, garbage, and other waste in the provided trash receptacles;
(4) properly securing lids on trash receptacles at all times;
(5) not leaving trash on porches, decks, or any other exterior location;
(6) not destroying, defacing, damaging, or removing any part of the Property or rendering inoperable any smoke detector.
(o) You must promptly notify Us of the need for replacement of or repairs to any stove, fireplace, hot tub, smoke detector, or other appliance or fixture at Property, and any other problems with or at the Property.
(p) We are not responsible for the condition or upkeep, repair, or maintenance of any such common areas.
(q) All non-transient vacation uses (including but not limited to parties, weddings, receptions, and similar events and activities) are strictly prohibited. You may not use the Property or permit the Property to be used in any way that interferes with any other guest's, tenant's, or Owner's use and enjoyment of property near to the Property.
(r) You must comply with all other House, Owners' Association, and other Rules and Regulations applicable to the Property. All such Rules and Regulations are a part of this Agreement and are incorporated into this Agreement by reference.
(s) You will comply with all, and will not violate any, federal, state, and local laws and regulations applicable to the Property.
(8) Default. You must (and must cause all other guests and occupants of the Property to) abide by Your obligations under this Agreement. If You do not perform any one or more of Your obligations under this Agreement, We may (to the fullest extent permitted by law) evict You before the Check-Out Date and retain all payments made by You (except to the extent We may be required to refund some or all of the Security Deposit to You). We reserve all other rights and remedies otherwise available to Us under at law or in equity.
(9) Indemnification. You will indemnify, defend, and hold harmless Us and the owner of the Property from and against all demands, causes of action, claims, losses, liabilities, expenses (including reasonable attorneys' fees and costs), and damages to persons or property based on, arising out of, caused by, connected to, or related to Your (or any of Your guests') negligence, willful misconduct, or breach of this Agreement (including but not limited to the Guest Rules). This obligation will survive termination of this Agreement.
(a) Joint and Several Liability. Each person renting or occupying the Property is jointly and severally liable under this Agreement, and We may proceed against any one or more of You without first proceeding against any other.
(b) Integration of Entire Agreement. This Agreement is the final, entire agreement among the Parties pertaining to the subject matter of this Agreement, and supersedes all previous agreements and understandings pertaining to this Agreement or its subject matter.
(c) No Waiver; Amendments. A failure by Us to require strict performance of any provision of this Agreement, or to exercise any right or remedy arising because of a breach, is not a waiver of that breach or any other covenant, duty, agreement, or condition. Any extension or waiver by Us of any provision in this Agreement will be valid only if set forth in writing signed by Us. This Agreement may not be amended or modified except by a written instrument executed by all of the Parties.
(d) Interpretation. No provision of this Agreement may be interpreted for or against any Party on the basis that it drafted such provision, and no presumption or burden of proof may arise disfavoring or favoring any Party because of the authorship of any of the provisions of this Agreement.
(e) Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable in any respect for any reason, the validity, legality, and enforceability of that provision in every other respect and the remaining provisions of this Agreement will not, at the election of the Party for whose benefit the provision exists, be in any way affected or impaired.
(f) Applicable Law. This Agreement will be governed by the laws of the State in which the Property is located without regard to the choice of law or principles of conflict of law.
(1) Mediation. If a dispute arises out of or relates to this Agreement, or a breach of this Agreement, which the Parties cannot settle through negotiation ("Dispute"), the Parties will first try in good faith to settle the dispute by mediation administered by the American Arbitration Association ("AAA") under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute-resolution procedure. Mediation will take place in the State in which the Property is located.
(2) Arbitration. Any Dispute which the Parties cannot resolve through mediation with AAA will be settled by arbitration administered by the AAA in accordance with its rules. The arbitrator selected by You and the arbitrator selected by Us will, within 10 days of their appointment, select a third neutral arbitrator. If the arbitrators selected by the Parties are unable or fail to agree upon the third arbitrator, the AAA will select the third arbitrator. Before commencement of hearings, each of the arbitrators appointed will provide an oath or undertaking of impartiality. Arbitration will take place in the State in which the Property is located. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. References in this Agreement to the possibility of resolving a Dispute with an action or proceeding other than arbitration (for example, in Section 11(h) Jurisdiction) are merely meant to express the Parties' intent to be as inclusive as possible, are not intended to permit resolution of a Dispute other than by arbitration.
(h) Jurisdiction. The Parties will bring all actions in law, equity, or otherwise arising under this Agreement (or related to the transactions contemplated in this Agreement) and which are not otherwise required to be arbitrated (if any), exclusively in the federal or state courts sitting in the State in which the Property is located, and in no other jurisdiction or venue. Each Party consents to the jurisdiction of such courts. You further agree that personal jurisdiction over You may be effected by service of process by registered or certified mail addressed to the last address that You provided to Us, and that when so made will be as if served upon You personally within the State of Hawaii.
(11) Hawaii. The provisions of this Hawaii Section apply only if the Property is located in Hawaii, in which case this Hawaii Section will control over any other provisions in this Agreement which conflict with this Hawaii Section.
(a) Trust Account. We may place any or all of the funds You pay under this Agreement in an interest-bearing trust account. We may remove any Nonrefundable Reservation Fees, and any other fees or amounts after they are earned from time to time, from such account at any time. The funds may be commingled with the funds of others deposited in that account. Interest that accrues on those funds will be for the benefit of, and will be paid to, Us. You will not be responsible for any early-withdrawal penalties.
(b) Service of Process. The name and address of the person who is authorized to act on behalf of the owner of the Property for the purpose of service of process and receiving and receipting for rents, notices, and demands is: Walter H. Engstrom 75-1029 Henry ST, STE 103. Kailua Kona, HI 96740.
(c) Local Contact. The name and address of the person residing on the island where the Property is located who is designated to act on the Property owner's behalf is set forth in the Confirmation Email.
(d) Security Deposit. If We propose to retain any amount of the Security Deposit, We will notify You, in writing (unless You wrongfully quit the Property), together with the particulars of and grounds for the retention, including written evidence of the costs of remedying Your defaults, such as estimates or invoices for material and services or of the costs of cleaning, such as receipts for supplies and equipment or charges for cleaning services. We will return the Security Deposit (or the portion of the Security Deposit remaining after We have claimed and retained authorized amounts, if any) to You not later than 14 days after the termination of this Agreement. If You cancel Your reservation before the Check-In Date, We will return the Security Deposit to You within 14 days after cancellation.
(e) Disputes (Hawaii). If the Property is located in Hawaii, this Disputes (Hawaii) Section will control over Section 10(g) Disputes.
(1) Mediation (Hawaii). If a Dispute arises which the Parties cannot settle through negotiation, the Parties will first try in good faith to settle the dispute by mediation administered by Dispute Prevention and Resolution Inc., a Hawaii corporation ("DPR") before resorting to arbitration, litigation, or some other dispute-resolution procedure.
(2) Arbitration (Hawaii).
(A) Any Dispute which the Parties cannot resolve through mediation with DPR will be submitted to binding arbitration administered by DPR, under the then-current Arbitration Rules, Procedures and Protocols of DPR ("DPR Rules"), including the Deadline-Driven Arbitration Procedures contained in the DPR Rules, to the extent they are consistent with this Arbitration (Hawaii) Section. Mediation will take place in Honolulu, Hawaii. References in this Agreement to the possibility of resolving a Dispute with an action or proceeding other than arbitration (for example, Section 11(h) Jurisdiction) are merely meant to express the Parties' intent to be as inclusive as possible, are not intended to permit resolution of a Dispute other than by arbitration.
(B) A Party may initiate arbitration by giving the other Party written notice of submission of a Dispute to arbitration ("Arbitration Demand"). Upon receipt of an Arbitration Demand, the Parties will use their best efforts to agree upon and retain a single arbitrator from DPR's panel of neutral arbitrators. If the Parties cannot agree upon and retain a single arbitrator within five days after an Arbitration Demand is received, then the President of DPR will select the arbitrator.
(C) Notwithstanding anything in the DPR Rules to the contrary, the arbitration will be conducted on an expedited basis so that the hearing will take place in Honolulu, Hawaii within 60 days of the receipt of the Arbitration Demand, the hearing will not exceed 10 days, and the arbitrator will issue an award within 30 days of the hearing.The award may include declaratory relief, injunctive relief, or specific performance except as otherwise prohibited by this Agreement and will be binding and non-appealable. Judgment may be entered upon any award made in arbitration by the Circuit Court of the First Circuit of the State of Hawaii as provided by statute, which judgment will not be subject to appeal.