1. CONDITION OF PROPERTY: Owner hereby certifies that Owner’s Property (“Property”) as described in the parties' Exclusive Property Management Agreement (“PMA”) meets or exceeds all building codes, health department regulations, and all other regulatory requirements of governing agencies including all requirements of the North Carolina Vacation Rental Act. Should Seaside Vacations, LLC (“Seaside”) have direct knowledge that violations exist, Seaside shall notify Owner. Owner shall correct or remedy any violation as quickly as possible. Owner authorizes Seaside to transfer Guest to another replacement rental property if Guest is adversely affected by unsatisfactory condition of accommodations or if repairs cannot be completed on a timely basis after Seaside determines that such repairs are required, based on Seaside’s sole discretion. It is also agreed that Seaside may negotiate a refund with Guest in the event a Guest is transferred for such reasons or in the event Guest is not transferred and a Property advertised amenity exists that cannot be repaired or replaced in a timely manner. Owner shall indemnify and hold Seaside its affiliates and their respective parents, subsidiaries, shareholders, partners, members, officers, directors, agents and employees (the "Seaside Indemnified Parties") harmless from any claims of liability or wrongdoing in the rental of the Property if it should later be determined that the Property does not meet the requirements of governmental authorities or codes. Seaside is authorized, but not required, to correct any safety defects at Owner’s sole expense upon discovery. Owner acknowledges that Seaside Vacations does not hold itself out to be knowledgeable in all health and building codes, nor will Seaside inspect the Property to determine whether the Property complies with all such codes, and Seaside’s undertaking to rent the Property does not warrant that the dwelling complies with all such codes. Owner shall indemnify and hold the Seaside Indemnified Parties harmless for all cost, loss, or expenses that Seaside may incur in in connection with any claim: (1) made against Seaside that the Property does not comply with any building or health code; and/or (2) based upon personal injury to Guest, property occupant or guest or (3) otherwise arising from or related to the management, operation or maintenance of the Property or any condition of the Property, whether arising before or after the date of this Agreement, it being the intention of the parties that Owner is indemnifying, defending and holding harmless all Seaside Indemnified Parties for any negligence of Seaside or any Seaside Indemnified Parties in all of the foregoing, except to the extent such Claims are finally determined by a court of competent jurisdiction to have been the sole result of Seaside's gross negligence or willful misconduct.
2. FAIR HOUSING: SEASIDE SHALL CONDUCT ALL BROKERAGE ACTIVITIES IN REGARD TO THE EXCLUSIVE PROPERTY MANAGEMENT AGREEMENT WITHOUT RESPECT TO THE RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, HANDICAP, OR FAMILIAL STATUS OF ANY GUEST, PROSPECTIVE GUEST, OWNER, OR PROSPECTIVE OWNER.
3. INHERENT RISK: Owner understands and acknowledges that the use of the Property by Guest carries with it certain inherent risks. Owner shall bear all losses, costs, and expense resulting from any damage, theft, or other actions by Guest which Seaside is unable to recover. Seaside shall make reasonable effort to determine damages resulting from Guest occupancy. Seaside is not responsible for costs incurred that: (a) cannot be reasonably detected; (b) costs caused by normal wear and tear.
4. LEASING AND EVICTION: Owner authorizes Seaside to enter into lease contracts on behalf of the Owner. Seaside shall use reasonable efforts to collect all rental proceeds due and owing for use of the Property. Seaside reserves the sole right to determine the: (1) suitability of prospective Guests; (2) refuse to reserve accommodations for prospective Guests; and (3) to evict any Guest who, in Seaside’s opinion, will not observe the rules, regulations, restrictions, covenants, and agreements governing the use and enjoyment of the Property and facilities.
5. ADVANCE RESERVATIONS: Owner authorizes Seaside to take reservations for the following calendar year at the same rate or above current year rates. Such reservations shall be binding to owners and assigns, and Seaside is due commission and fees.
6. OWNER OCCUPANCY: Owner may request Seaside to remove specific dates from availability for rentals only if such dates have not already been reserved by Guests at the time the written request is received by Seaside. Owner shall not request the cancellation of any reservation which has already been booked by Seaside. Owners and their guests shall observe the same check-in and check-out times as set forth in Seaside’s standard policy for Guest.
7. OFF MARKET: If at any time the Property is not available to rent or Seaside finds the Property not in “Rental Ready” condition, Seaside shall take the Property off the market.
8. PETS: If Owner permits pets, Seaside shall collect an additional pet fee from Guest. Seaside shall arrange for the Property to be treated for flea prevention and any additional cleaning that maybe required at Seaside’s expense.
9. TRANSFER OF OWNERSHIP: If the Property is listed for sale, Owner shall immediately notify Seaside. Owner’s Listing Agent shall follow Seaside’s showing policy. Owner shall immediately notify Seaside if any lender has alleged Owner is in default of any Deed of Trust or if any lender has notified Owner of its intent to exercise any assignment of rents. If Seaside has reason to believe that owner is in default under a Deed of Trust on the Property, then Seaside, in Seaside’s sole discretion, may withhold advance rent until rental has occurred. If the Property is sold or transferred prior to the expiration date of this agreement, Owner agrees to honor all reservations as required by the North Carolina Vacation Rental Act. Owner agrees to sell or transfer the Property subject to this agreement and Seaside shall retain its rights to all future reservations.
10. NATURAL AND OTHER DISASTERS: In the event a hurricane, storm, or any other event renders the Property unsafe, unfit, or uninhabitable for a period of time, or results in making the Property unavailable for rental, Seaside is authorized to refund on behalf of Owner all or a prorated portion of advance rents to such extent as Seaside, in its sole discretion, may determine to be fair and reasonable to the Owner and Guest. In the aftermath of any hurricane, storm, or other event which reasonably could damage the Property or render the Property unsafe, unfit, or uninhabitable, Seaside will determine, at its’ sole discretion, the fitness of habitability of the Property. In the absence of a written supplemental repair contract to the contrary, Seaside’s responsibility under this Agreement to repair the Property or procure rentals shall cease if the Property has been rendered unsafe, unfit, or uninhabitable until Seaside is satisfied, in its sole discretion, that Owner has properly repaired and restored the Property. When travel insurance is made available to Guest, there will be no legal liability to refund rent to Guest in the event of an evacuation. However, reservations made at the time a storm becomes a “Named Event” may not be eligible for travel insurance. In these cases, Owner agrees to refund rents to any Guest affected by an evacuation.
11. SECURITY DEPOSIT WAIVER: As part of this Agreement Seaside, at its sole discretion, shall repair or replace damage caused by Guest up to $2,500.00 per reservation. This Agreement specifically excludes items in disrepair or damage caused by ordinary wear and tear. Replacement or reimbursement of specific items will be prorated, taking into account the age and condition of the item. Seaside shall fund any repair or replacement by adding a Security Deposit Waiver Fee into the advertised rate paid by the Guest. Security deposits may be required for non-family groups, as well as groups using the Property for an event. Owner shall have no interest in any Security Deposit Waiver Fee charged by Seaside and Owner agrees that all Security Deposit Waiver Fees are the sole property of Seaside.
12. POLICIES AND PROCEDURES: Seaside publishes its Guest Policies and Procedures on the Seaside website, https://www.outerbanksvacations.com/rental-policies, and those policies and Procedures are incorporated herein by reference. Policies and Procedures listed on this page are intended for general guest guidance and are subject to change at Seaside's sole discretion.
13. PRE-SEASON INSPECTION. Seaside shall inspect the Property in the off season to verify the Property meets Seaside’s standards. Seaside reserves the right, in Seaside’s sole discretion, to correct any deficiencies prior to first rental that have not been addressed by Owner. Seaside is authorized to expend such sums and deduct expended sums from Owner’s account as in Seaside’s sole discretion may be necessary to: 1) make the premises ready to rent, including, without limitation, reasonable repairs and cleaning (including carpet, upholstery, and laundry items); 2) bring the Property into compliance with the advertised description of the Property; 3) correct any recognized health or safety hazards; 4) maintain lawn/or natural grasses; 5) remove trash or debris from the Property; and 6) maintain outside trash containers to proper standards. NOTE: Elevators must be inspected annually by a N.C. certified inspector.
14. UTILITIES: Owner shall timely pay all utilities for the Property including, without limitation, electric, gas, water, telephone, internet access/WIFI, cable or satellite TV. Should any utilities terminate for non-payment, Seaside, in its sole discretion, may pay the outstanding utility balance and deduct such amount from the Owner’s account if funds are available.
15. INSURANCE: Owner shall carry, at Owner's expense, comprehensive general public liability insurance against any and all claims or demands whatever arising out of, or in any way connected with the operation, leasing, and maintenance of the Property, which policies shall be written so as to protect Seaside in the same manner as the Owner, and which shall be in the minimum amounts of $1,000,000 each occurrence and $2,000,000 aggregate. Owner agrees to defend, indemnify, and save Seaside harmless from any and all damages, claims, suits, or costs whether for personal injury or otherwise, arising out of Seaside's management of the Property, except those due to the willful negligence on the part of Seaside, whether such claims are filed or damages incurred before or after the terminations of this Agreement. Owner will provide Seaside with proof of insurance coverage indicating that sufficient coverage is in force as described above within 10 days of signing this agreement and each time a policy renews.
16. MAINTENANCE AND REPAIRS: Seaside shall, as needed, conduct minor maintenance or repairs on behalf of Owner and charge the cost of the repairs to Owner's account. Owner agrees to pay Seaside’s published maintenance labor rate. Seaside shall add an additional service charge to the cost of repairs when using outside contractors to cover coordination and follow-up by Seaside. Seaside shall make every effort to use service personnel specified by Owner, if any. In the event such person or service vendor does not respond, or cannot perform service or repair in a timely manner, Seaside reserves the right to contact another service professional to complete the repair. A working balance as established in the Annual Addendum shall be retained in Owner’s account to cover all such maintenance expenses. If Owner’s account falls below the minimum working balance, Owner agrees to immediately make a deposit of necessary funds as required. The working balance may also be increased when bills are anticipated to arrive after the end of the month for work completed. For any purchases or repairs in excess of $500.00, Seaside shall attempt to notify Owner for prior approval, with the exception of emergency repairs and replacement of advertised amenities. Should there be insufficient funds available in the Owner’s account to cover bills presented for payment, Owner agrees to immediately advance funds to cover the amount payable. If a major appliance, an advertised amenity or other significant household items cannot be repaired or replaced within a reasonable time upon notification, as determined by Seaside, the Guest may receive a refund, determined at Seaside’s discretion. If Owner’s expenses exceed Owner’s rental account balance, Owner shall immediately remit to Seaside money to cover said expenses. In the event Seaside is managing multiple properties for Owner, Owner grants Seaside the authority to transfer funds from one property account to another, in the event of a Guest move or outstanding invoices due.
17. POOLS AND HOTTUBS: If Owner's Property contains pools or hot tubs not serviced by Seaside’s Pool Department, Owner must contract with North Carolina licensed pool and spa vendors. Owner must provide acceptable proof of vendor's pool and spa certification to Seaside. Should Owner’s outside pool and spa vendor not address a Guest concern within four hours, Seaside shall make arrangement to have the need addressed at Owner’s expense. Outside pool vendors shall open and close pools and hot tubs based on Seaside’s advertised dates. If Owner offered pool heater becomes inoperable, Guest may be relocated to a home with working pool heat, or refunded an amount determined appropriate by Seaside. For Owner homes with hot tubs, Owners shall make the hot tub available to Guest. Seaside shall charge Owner the annual fee identified in the Annual Addendum for weekly coordination and follow up with non-Seaside affiliated pool and spa vendor.
18. HOUSEKEEPING: Seaside will clean the home and change the linens at the Property after the departure of each paid lease. Seaside will clean and exchange the linens at the Property after each Owner or Owner’s guest stay at Owner’s expense. Owner agrees to notify Seaside (24 hours in advance) if Owner extends Owner’s stay past the scheduled original departure date.
Seaside requires the Property to undergo an annual deep clean performed at Owner’s expense. If Owner chooses to perform the deep clean, the Property shall be cleaned to the published Seaside Property Appearance Standard (“Standard”). An inspection will follow any Owner deep clean and, should it not meet the Standard, the Property shall be re-cleaned by Seaside at the Owner’s expense. Deep cleans must be completed to the Standard 30 days prior to first available week. Additional minideep cleans and carpet cleaning/upholstery cleanings that may become necessary, in Seaside’s sole discretion, during the rental season, as determined by Seaside, shall be completed at Owner’s expense.
19. MARKETING: Seaside shall market Property to potential Guests using a variety of media including, without limitation, print, web, social media, third-party listings sites, and promotional campaigns. The marketing mix will be determined, at Seaside’s sole discretion, based on Seaside’s professional assessment of current market demands. Owner grants permission for Seaside representatives to photograph and produce video footage of the Property for use in Seaside Vacations marketing materials. Photography and videography produced may include but is not limited to the use of drones and owner hereby authorizes the designated Seaside Vacations drone pilot to launch and land a UAS (unmanned aerial system) from the Property. Owner grants Seaside the authority to use the Property for promotional purposes for up to seven (7) days annually only in the event that no occupancy by Owner or guest is scheduled.
20. LEGAL FEES: Owner shall be responsible for and pay all Owner and Seaside legal fees, attorney fees, costs, and court costs if any action regarding this Property is taken against Owner or Seaside by a third party.
21. SEVERABILITY: Should any court or arbiter of competent jurisdiction find any portion of this Agreement invalid, such decision will have no effect upon the validity of the remaining portions of said document.
22. ARBITRATION STATEMENT: In the event of dispute between the parties to this agreement, the parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they choose to have any disputes resolved through arbitration. Owner and Seaside agree that any claim or dispute between us, and any claim by either of us against any agent, employee, successor, or assign of the other, including, to the full extent permitted by applicable law, third parties who are not signatories to this agreement, whether related to this agreement or otherwise, including past, present, and future claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, shall be resolved by binding arbitration. The arbitrator shall be a retired judge or justice, or an attorney certified to conduct mediations with the North Carolina Dispute Resolution Commission, unless the parties mutually agree to a different arbitrator, who shall render an award in accordance with substantive North Carolina Law. In all other respects, the arbitration shall be conducted in accordance with the North Carolina Revised Uniform Arbitration Act. The place of arbitration shall be Dare County, North Carolina. North Carolina
law shall apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any other legal action may only be instituted in the District or Superior Courts of Dare County, North Carolina.
This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina. Owner agrees to abide by all laws including, but not limited to, the North Carolina Vacation Rental Act, and further agrees to abide by any required changes in this Agreement mandated by North Carolina law or rules or regulations mandated by the North Carolina Real Estate Commission.
23. ASSIGNMENT: Subject to the restrictions contained in any addendum to this Agreement, either party may assign this Agreement and any related agreements, including the parties' Exclusive Property Management Agreement, without the consent of the other party.
24. LIMITATION OF REMEDIES: The liability of the parties shall be based solely on principles of contract law and the express terms of this Agreement. Neither party shall assert against the other party any claim arising from or relating to this Agreement unless the claim is based upon the express terms of this Agreement and does not seek to vary, and is not in conflict with, those express terms. To the extent any fiduciary duties are inconsistent with, or would have the effect of modifying, limiting or restricting, the express provisions of this Agreement, the terms of this Agreement shall prevail. For purposes of assessing Seaside's fiduciary duties and obligations under this Agreement, the parties acknowledge that the terms and provisions of this Agreement and the duties and obligations set forth herein, are intended to satisfy the fiduciary duties which may exist as a result of the relationship between the parties, express or implied, including without limitation, all duties of loyalty, good faith, fair dealing, full disclosure or any other duty deemed to exist under the common law principles of agency or otherwise; provided, further the parties hereby unconditionally and irrevocably waive and release any right, power or privilege either may have to claim or receive from the other party any punitive, exemplary, statutory or treble damages or any incidental or consequential damages with respect to any breach of this agreement unless such breach is due to the fraud or willful misconduct of such party (without waiving any other claim that the parties otherwise may have under this agreement). Notwithstanding anything to the contrary in this agreement, the aggregate liability of Seaside in connection with the property shall be limited to the aggregate amount of all Commission paid to Seaside during the 12 months prior to the date such liability arose. OWNER HEREBY WAIVES ANY AND ALL RIGHT TO CLAIM PROSPECTIVE, EXEMPLARY, STATUTORY, CONSEQUENTIAL, OR TREBLE DAMAGES AGAINST SEASIDE IN CONNECTION WITH ANY DISPUTE ARISING OUT OF THIS AGREEMENT.
25. CLASS ACTION WAIVER: The parties waive any right to assert any claims against the other party as a representative or member in any class or representative action, except where such waiver is prohibited by law or deemed by a court of law to be against public policy. To the extent either party is permitted by law or court of law to proceed with a class or representative action against the other, the parties agree that: (i) the prevailing party shall not be entitled to recover attorneys' fees or costs associated with pursuing the class or representative action (not withstanding any other provision in this agreement; and (ii) the party who initiates or participates as a member of the class will not submit a claim or otherwise participate in any recovery secured through the class or representative action.
INSURANCE: Owner shall carry, at Owner’s expense, comprehensive generalpublic liability insurance against any and all claims or demands whatever arising out of, orin any way connected with the operation, leasing, and maintenance of the Property,which policies shall be written so as to protect Seaside in the same manner as theOwner, and which shall be in the minimum amounts of $1,000,000 each occurrence and$2,000,000 aggregate. Owner agrees to defend, indemnify, and save Seaside harmlessfrom any and all damages, claims, suits, or costs whether for personal injury orotherwise, arising out of Seaside’s management of the Property, except those due towillful negligence on the part of Seaside, whether such claims are filed or damagesincurred before or after the termination of this Agreement. Owner will provide Seasidewith proof of insurance coverage indicating that sufficient coverage is in force asdescribed above within 10 days of signing this agreement and each time a policyrenews.16. MAINTENANCE AND REPAIRS: Seaside shall, as needed, conduct minormaintenance or repairs on behalf of Owner and charge the cost of the repairs to Owner'saccount. Owner agrees to pay Seaside’s published maintenance labor rate. Seaside shalladd an additional service charge to the cost of repairs when using outside contractors tocover coordination and follow-up by Seaside. Seaside shall make every effort to useservice personnel specified by Owner, if any. In the event such person or service vendordoes not respond, or cannot perform service or repair in a timely manner, Seasidereserves the right to contact another service professional to complete the repair. Aworking balance as established in the Annual Addendum shall be retained in Owner’saccount to cover all such maintenance expenses. If Owner’s account falls below theminimum working balance, Owner agrees to immediately make a deposit of necessaryfunds as required. The working balance may also be increased when bills are anticipatedto arrive after the end of the month for work completed. For any purchases or repairs inexcess of $500.00, Seaside shall attempt to notify Owner for prior approval, with theexception of emergency repairs and replacement of advertised amenities. Should therebe insufficient funds available in the Owner’s account to cover bills presented forpayment, Owner agrees to immediately advance funds to cover the amount payable. If amajor appliance, an advertised amenity or other significant household items cannot berepaired or replaced within a reasonable time upon notification, as determined bySeaside, the Guest may receive a refund, determined at Seaside’s discretion. If Owner’sexpenses exceed Owner’s rental account balance, Owner shall immediately remit toSeaside money to cover said expenses. In the event Seaside is managing multipleproperties for Owner, Owner grants Seaside the authority to transfer funds from oneproperty account to another, in the event of a Guest move or outstanding invoicesdue.
17. POOLS AND HOTTUBS: If Owner's Property contains pools or hot tubs notserviced by Seaside’s Pool Department, Owner must contract with North Carolinalicensed pool and spa vendors. Owner must provide acceptable proof of vendor's pooland spa certification to Seaside. Should Owner’s outside pool and spa vendor notaddress a Guest concern within four hours, Seaside shall make arrangement to have theneed addressed at Owner’s expense. Outside pool vendors shall open and close poolsand hot tubs based on Seaside’s advertised dates. If Owner offered pool heater becomesinoperable, Guest may be relocated to a home with working pool heat, or refunded anamount determined appropriate by Seaside. For Owner homes with hot tubs, Ownersshall make the hot tub available to Guest. Seaside shall charge Owner the annual fee
identified in the Annual Addendum for weekly coordination and follow up with non-Seaside affiliated pool and spa vendor.
18. HOUSEKEEPING: Seaside will clean the home and change the linens at theProperty after the departure of each paid lease. Seaside will clean and exchange thelinens at the Property after each Owner or Owner’s guest stay at Owner’s expense.Owner agrees to notify Seaside (24 hours in advance) if Owner extends Owner’s staypast the scheduled original departure date.Seaside requires the Property to undergo an annual deep clean performed at Owner’sexpense. If Owner chooses to perform the deep clean, the Property shall be cleaned tothe published Seaside Property Appearance Standard (“Standard”). An inspection willfollow any Owner deep clean and, should it not meet the Standard, the Property shall bere-cleaned by Seaside at the Owner’s expense. Deep cleans must be completed to theStandard 30 days prior to first available week. Additional minideep cleans and carpetcleaning/upholstery cleanings that may become necessary, in Seaside’s sole discretion,during the rental season, as determined by Seaside, shall be completed at Owner’sexpense.19. MARKETING: Seaside shall market Property to potential Guests using a variety ofmedia including, without limitation, print, web, social media, third-party listings sites, andpromotional campaigns. The marketing mix will be determined, at Seaside’s solediscretion, based on Seaside’s professional assessment of current marketdemands. Owner grants permission for Seaside representatives to photograph andproduce video footage of the Property for use in Seaside Vacations marketing materials.Photography and videography produced may include but is not limited to the use ofdrones and owner hereby authorizes the designated Seaside Vacations drone pilot tolaunch and land a UAS (unmanned aerial system) from the Property. Owner grantsSeaside the authority to use the Property for promotional purposes for up to seven (7)days annually only in the event that no occupancy by Owner or guest is scheduled.20. LEGAL FEES: Owner shall be responsible for and pay all Owner and Seaside legalfees, attorney fees, costs, and court costs if any action regarding this Property is takenagainst Owner or Seaside by a third party.
21. SEVERABILITY: Should any court or arbiter of competent jurisdiction find anyportion of this Agreement invalid, such decision will have no effect upon the validity ofthe remaining portions of said document.22. ARBITRATION STATEMENT: In the event of dispute between the parties to thisagreement, the parties understand that they would have had a right or opportunity tolitigate disputes through a court and to have a judge or jury decide their case, but theychoose to have any disputes resolved through arbitration. Owner and Seaside agree thatany claim or dispute between us, and any claim by either of us against any agent,employee, successor, or assign of the other, including, to the full extent permitted byapplicable law, third parties who are not signatories to this agreement, whether relatedto this agreement or otherwise, including past, present, and future claims and disputes,and including any dispute as to the validity or applicability of this arbitration clause, shallbe resolved by binding arbitration. The arbitrator shall be a retired judge or justice, or anattorney certified to conduct mediations with the North Carolina Dispute ResolutionCommission, unless the parties mutually agree to a different arbitrator, who shall renderan award in accordance with substantive North Carolina Law. In all other respects, thearbitration shall be conducted in accordance with the North Carolina Revised UniformArbitration Act. The place of arbitration shall be Dare County, North Carolina. NorthCarolinalaw shall apply. Judgment on the award rendered by the arbitrator may be entered in anycourt having jurisdiction thereof. Any other legal action may only be instituted in theDistrict or Superior Courts of Dare County, North Carolina.This Agreement shall be governed by and construed in accordance with the laws of theState of North Carolina. Owner agrees to abide by all laws including, but not limited to,the North Carolina Vacation Rental Act, and further agrees to abide by any requiredchanges in this Agreement mandated by North Carolina law or rules or regulationsmandated by the North Carolina Real Estate Commission.23. ASSIGNMENT: Subject to the restrictions contained in any addendum to thisAgreement, either party may assign this Agreement and any related agreements,including the parties' Exclusive Property Management Agreement, without the consentof the other party.24. LIMITATION OF REMEDIES: The liability of the parties shall be based solely onprinciples of contract law and the express terms of this Agreement. Neither party shallassert against the other party any claim arising from or relating to this Agreement unlessthe claim is based upon the express terms of this Agreement and does not seek to vary,and is not in conflict with, those express terms. To the extent any fiduciary duties areinconsistent with, or would have the effect of modifying, limiting or restricting, theexpress provisions of this Agreement, the terms of this Agreement shall prevail. Forpurposes of assessing Seaside's fiduciary duties and obligations under this Agreement,
the parties acknowledge that the terms and provisions of this Agreement and the dutiesand obligations set forth herein, are intended to satisfy the fiduciary duties which mayexist as a result of the relationship between the parties, express or implied, includingwithout limitation, all duties of loyalty, good faith, fair dealing, full disclosure or any otherduty deemed to exist under the common law principles of agency or otherwise;provided, further the parties hereby unconditionally and irrevocably waive and releaseany right, power or privilege either may have to claim or receive from the other partyany punitive, exemplary, statutory or treble damages or any incidental or consequentialdamages with respect to any breach of this agreement unless such breach is due to thefraud or willful misconduct of such party (without waiving any other claim that theparties otherwise may have under this agreement). Notwithstanding anything to thecontrary in this agreement, the aggregate liability of Seaside in connection with theproperty shall be limited to the aggregate amount of all Commission paid to Seasideduring the 12 months prior to the date such liability arose. OWNER HEREBY WAIVESANY AND ALL RIGHT TO CLAIM PROSPECTIVE, EXEMPLARY, STATUTORY,CONSEQUENTIAL, OR TREBLE DAMAGES AGAINST SEASIDE IN CONNECTIONWITH ANY DISPUTE ARISING OUT OF THIS AGREEMENT.25. CLASS ACTION WAIVER: The parties waive any right to assert any claims againstthe other party as a representative or member in any class or representative action,except where such waiver is prohibited by law or deemed by a court of law to be againstpublic policy. To the extent either party is permitted by law or court of law to proceedwith a class or representative action against the other, the parties agree that: (i) theprevailing party shall not be entitled to recover attorneys' fees or costs associated withpursuing the class or representative action (not withstanding any other provision in thisagreement; and (ii) the party who initiates or participates as a member of the class willnot submit a claim or otherwise participate in any recovery secured through the class orrepresentative action.
