Attendance of Decision-Makers — Complimentary Ownership Experience
1. Nature of the arrangement. The HOTELA Ownership Experience stay carries the published accommodation rate for the residence and dates allocated. It is provided to the Applicant at no charge solely as a gift with burden (futan-tsuki zoyo) within the meaning of Article 553 of the Civil Code, the burden being the Applicant's performance of the obligations in paragraphs 2 to 4 below. Pursuant to Article 553, the provisions of the Civil Code governing bilateral contracts apply to this arrangement. Where the burden is not performed in full, the complimentary character of the stay does not take effect and the published accommodation rate becomes payable.
2. The Applicant identifies the Decision-Makers. In the application the Applicant identifies every person who is or may be involved in any way in a decision to purchase HOTELA ownership, including without limitation any spouse or partner, family member, business partner, company officer, financial adviser, investment adviser, tax adviser and legal adviser (each a "Decision-Maker"). For the avoidance of doubt, a person is a Decision-Maker if the Applicant may wish to consult that person, to seek that person's advice, opinion or approval, or to defer to that person in any respect, whether or not that person holds any formal authority over the decision and whether or not that person's involvement is or would be material. The Applicant represents and warrants that this list is complete and accurate as at submission. The obligation to identify Decision-Makers is a continuing one: the Applicant must notify HOTELA Cities KK of any addition as soon as the Applicant becomes aware of it, at any time, whether before arrival, on arrival, or at any point during the stay. No deadline limits this obligation. The timing of a notification neither excuses nor cures a failure of attendance under paragraph 3, and a person notified at any time remains a Decision-Maker who must attend as required.
3. Attendance is a condition of the gift, and it is absolute. Every Decision-Maker must attend the HOTELA presentation and private ownership consultation in person, for the entire scheduled duration, and must remain available throughout. Arriving late, leaving early, attending only part of the session, being absent for any portion, failing to remain contactable and available, or sending any substitute in place of a Decision-Maker each constitutes non-attendance for the purposes of this section. Attendance by remote means constitutes non-attendance unless HOTELA Cities KK has approved it in advance in writing.
4. Representation as to financial capacity. The purchase budget, intended package and purchase timing stated by the Applicant in the application are representations of fact on which HOTELA Cities KK relies in granting the complimentary stay. The Applicant represents and warrants that, throughout the dates of the stay, the Applicant held funds or committed facilities sufficient to complete the purchase at the level stated. Such funds or facilities must have been held in an account in the Applicant's own personal name, or in the name of the corporate entity named in the application as the intended purchasing party and controlled by the Applicant. Funds held by, or in an account in the name of, any other person do not satisfy this representation, whether or not that person is a Decision-Maker, a spouse, a family member or any other related party.
5. Consequence of non-attendance. Where (a) any Decision-Maker fails to attend as required by paragraph 3, and (b) the Applicant does not complete the purchase of HOTELA ownership, the burden is unperformed, the Applicant forfeits the complimentary stay in its entirety, and the Applicant becomes liable for the full published accommodation rate for every night occupied together with all incidental charges incurred, less any reservation deposit already paid. That amount is payable within fourteen (14) days of invoice and may be charged to the payment instrument held on file. This is without prejudice to any claim for compensation under Article 415 of the Civil Code, and to the enforceability of any agreed sum under Article 420 of the Civil Code.
6. Substantiation of financial capacity. Where the Applicant does not complete the purchase, HOTELA Cities KK may, by written request within sixty (60) days after departure, require evidence that the representation in paragraph 4 was true throughout the stay. A bank or brokerage statement, a letter from a licensed financial institution, or a certificate from a licensed financial or tax adviser is sufficient, and may be redacted to show only the account holder, the date and the available balance or facility limit. The account must be in the Applicant's own personal name, or that of the purchasing entity named in the application; an account in the name of any other person, including a spouse or family member, does not satisfy this paragraph. If the evidence is not produced within fourteen (14) days of the request, the representation is deemed untrue and the burden unperformed: the stay ceases to be complimentary, and the Applicant becomes liable for the full published accommodation rate for every night occupied together with all incidental charges incurred, less any reservation deposit already paid, payable within fourteen (14) days of invoice and chargeable to the payment instrument held on file.
7. Reasons for not purchasing are irrelevant. The Applicant's reasons for not completing a purchase are of no relevance to this section and confer no relief from it. This section operates on non-attendance and on paragraphs 4 and 6 alone. Without limiting the foregoing, a statement that the Applicant must consult, defer to, obtain the approval of, or further discuss the matter with any absent Decision-Maker is expressly acknowledged to be a failure of the condition in paragraph 3, and is not a ground for relief from it.
8. No cure and no second opportunity. The presentation and consultation constitute performance that must occur at a specific time on a specific date within the meaning of Article 542, paragraph (1), item (iv) of the Civil Code, and the purpose of the arrangement cannot be achieved unless performance occurs at that time. Accordingly there is no right to cure and no demand is required. HOTELA Cities KK is under no obligation to reschedule the session, to conduct any further or supplementary session, to accept a consultation held after the stay, to accept a later purchase in substitution, or to grant any extension. Any accommodation nevertheless offered as a courtesy does not waive this section and creates no precedent or expectation.
9. No duty to remind. HOTELA Cities KK is under no obligation to remind, warn, prompt or notify the Applicant of the obligations in this section at any time, whether before, during or after the stay. The Applicant agreed to these obligations in writing on application and again on arrival, and accepted the complimentary stay in consideration of them. The absence of any reminder, and any failure by any HOTELA representative to mention this section, does not waive it, vary it, or give rise to any estoppel, expectation or defence.
10. Obstruction. If the Applicant intentionally prevents the fulfilment of any condition in this section, HOTELA Cities KK may deem that condition to have been fulfilled or unfulfilled as provided in Article 130 of the Civil Code, as applicable.
11. Liability is the Applicant's. Liability under this section rests with the Applicant personally, irrespective of which Decision-Maker was absent and irrespective of that person's relationship to the Applicant. Where performance of the burden becomes impossible due to grounds attributable to the Applicant, the Applicant may not refuse counter-performance, consistent with Article 536, paragraph (2) of the Civil Code.
12. Limited exception. HOTELA Cities KK may, in its sole and absolute discretion, waive this section in whole or in part where non-attendance results from documented serious illness, hospitalisation, bereavement or force majeure affecting a Decision-Maker, evidenced to its satisfaction. No waiver is effective unless given in writing by HOTELA Cities KK, and any waiver applies only to the instance for which it is given.
13. Confidentiality. All information disclosed to or received by the Applicant in connection with the programme is the confidential information and property of HOTELA Cities KK. This includes without limitation the contents of the application, the ownership package and all materials presented, pricing, financial terms, residence specifications, the contents of the presentation and consultation, and all discussions, offers, counter-offers, negotiations, agreements and disagreements between the parties, whether or not a purchase is completed. The Applicant must not disclose, publish, post, broadcast, reproduce or otherwise share any of it with any person, and must not place any of it on any website, social media platform, review site, forum or other public or semi-public channel. The Applicant may disclose only to its own professional advisers who are bound by a duty of confidence, and to the extent compelled by law or by a competent authority, in which case the Applicant must notify HOTELA Cities KK in advance where lawful to do so. This obligation survives the stay and the termination of any agreement between the parties and continues without limit of time. Every Decision-Maker attending is bound on the same terms, and the Applicant is responsible for their compliance.
14. Governing law and dispute resolution. This section is governed by the laws of Japan. Any dispute, controversy or claim arising out of or in connection with this section, the programme, the stay, or any matter referred to in paragraph 13, including any question as to its existence, breach, termination or validity, shall be finally resolved by arbitration administered by the Japan Commercial Arbitration Association (JCAA) in accordance with its Commercial Arbitration Rules in effect at the time of the arbitration. The seat and place of arbitration shall be Tokyo, Japan. The tribunal shall consist of one sole arbitrator, who shall be bilingual in Japanese and English. The arbitration shall be conducted in both Japanese and English, and documents may be submitted in either language without translation. The prevailing party shall be entitled to recover its reasonable attorneys' fees and costs associated with the arbitration, including the arbitrator's fees and the administrative fees of the JCAA. The arbitration, and all materials and awards in it, are confidential and subject to paragraph 13.
15. Acceptance and binding effect. The Applicant accepts this section, and it becomes binding, at two separate points. First, on application: by ticking the confirmation boxes and submitting the application, the Applicant accepts these terms and conditions in their entirety, and that acceptance is recorded electronically with the date and time of submission. Second, and independently, on arrival: by presenting at the property and registering as a guest, the Applicant confirms and re-affirms acceptance of this section, and that registration constitutes the final step of acceptance. Either acceptance alone is sufficient to bind the Applicant; together they are conclusive. The Applicant may not assert that this section was not read, not understood, not drawn to the Applicant's attention, or not agreed. Having had the opportunity to read this section and to take independent advice upon it, the Applicant irrevocably waives any objection to its validity, reasonableness or enforceability, and agrees not to dispute or challenge it, whether by claim, defence, counterclaim or otherwise. Any dispute concerning this section is subject exclusively to paragraph 14, and the Applicant will not commence or maintain court proceedings in respect of it. The Applicant separately acknowledges that the complimentary character of the stay is conditional upon this section. This section is also set out in the individual agreement executed by the Applicant and does not depend for its effect on its publication in this notice.
16. Non-arrival, and arrival. If the Applicant does not arrive at the property and does not register as a guest, the sole consequence is forfeiture of the reservation deposit in accordance with the published cancellation and attendance policy; no liability under paragraph 5 arises, no accommodation having been provided. If the Applicant does arrive and take up the stay, this section applies in full. Where the Applicant thereafter does not complete the purchase because the Applicant failed to procure the attendance and continued availability of every Decision-Maker, responsibility for that failure, and for the amounts payable under paragraph 5, rests entirely with the Applicant.