EXCLUSIVE AGREEMENT AND MANDATE
TO MANAGE PROPERTY
Between THE OWNER and THE AGENT.
WHEREAS
THE OWNER is the beneficial and lawful owner of the PROPERTY offered as ACCOMMODATION
THE AGENT is the agent appointed to market and manage the PROPERTY in terms of this agreement
The PARTIES are desirous of entering into an agreement regarding the exclusive marketing and management rights to the PROPERTY
NOW THEREFORE THE PARTIES HERETO AGREE EACH WITH THE OTHER AS FOLLOWS:
- INTERPRETATION
1.1 In this Agreement, unless inconsistent with the context, the following words and expressions shall bear the meanings assigned thereto and cognate words and expressions shall bear corresponding meanings:
1.1.1 The AGENT means ELMARIE HORAK t/a Agency.CapeHolidays Identity No: 5701225096088 Address: 14 Harbour Heights Simonstown, Cape Town 7995 Telephone no: (27)21 7864028. The email address applicable is the email address used by THE AGENT to conclude the agreement.
1.1.2 The OWNER means ……. Registration/ Identity no…….. Physical Address…….. Telephone no: ……….. The email address applicable is the email address used by the OWNER to conclude the agreement.
1.1.3 The PROPERTY means…..
1.1.4 The ACCOMMODATION means the ACCOMMODATION available on and in the PROPERTY to be utilized and rented to guests, tourist and visitors to stay in the PROPERTY as short term guests
1.1.5 The PARTIES means the AGENT and the OWNER collectively
1.1.6 The BOOKING SITE means any internet websites utilized for the booking of ACCOMMODATION including but not limited to Airbnb, Booking.com, CapeHolidays, Tripadvisor or any other site the AGENT may elect to utilize.
1.1.7 AVAILABLE CALENDAR means the ACCOMMODATION listing on any internet website utilized for the booking of the ACCOMMODATION including but not limited to Airbnb, Booking.com, CapeHolidays, Tripadvisor or any other site the Agent may elect to utilize in respect of the ACCOMMODATION
1.1.8 PROFESSIONAL PHOTOS means photographs of the ACCOMMODATION taken by a professional photographer selected and appointed by the AGENT.
1.1.9 5 STAR QUALITY means guests utilizing the ACCOMMODATION provided in the PROPERTY and rating the ACCOMMODATION consistently at 4.8 or higher out of 5
1.1.10 SHORT TERM GUEST means including but not limited to guest staying from 1 day to 12 months in the PROPERTY
1.1.11 EFFECTIVE DATE means on signature of the agreement
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
2.0 MANDATE
2.1 The PARTIES agree that the AGENT will have an exclusive mandate to market and manage the PROPERTY and to provide ACCOMMODATION to guests, tourists and visitors who may utilize the ACCOMMODATION provided in the PROPERTY subject to the rates and conditions as determined in terms of this agreement.
2.2 The OWNER agrees that the AGENT is the exclusive and only party or entity mandated and responsible for the management of the available ACCOMMODATION as recorded on the AVAILABLE CALENDAR, pricing, guests’ liaison, collecting rentals, length of stay and guest rules and management of the PROPERTY.
2.3 This exclusive mandate shall be effective from date of execution and signing of the agreement by the PARTIES and thereafter for a period of twelve calendar months. This agreement may be terminated by either party giving at least one calendar month’s written notice to the other party in which event the agreement will terminate after the expiry of the one calendar months’ notice subject to the terms and conditions of this agreement.
2.4 The management of the ACCOMMODATION is subject to the following conditions: Number of guest to be accommodated: Children allowed. Accommodation to be used subject to Estate Rules. Rates set by THE AGENT is to Maximise annual income (Yes/No). If owner sets rates low season rates (1 May end October) are, mid season (Nov to 20 Dec and 6 Jan to end April) rates are, high season (20 Dec to 6 Jan) rates are. If annual income goal is YES then the goal agreed between PARTIES are
3.0 MANAGEMENT OF ACCOMMODATION
3.1 The AGENT will exclusively manage the ACCOMMODATION in terms of the terms and conditions of this agreement and the OWNER will make the ACCOMMODATION available to the AGENT and the guests so as to facilitate the letting of the ACCOMMODATION to short term tenants.
3.2 Confirmed bookings can be any booking the AGENT has indicated on the AVAILABILITY CALENDAR – it may not be confirmed yet – and even if the money for that booking has not yet been paid to the OWNER.
3.3 If the OWNER cancels a confirmed booking, a penalty of US$1000will be paid by the OWNER to the AGENT and the OWNER will be kept liable for any additional losses incurred by the guest who made the booking and any losses occurred by the AGENT, excluding ‘Acts of God’.
3.4 In the event of the guest cancelling a booking, the OWNER will refund the guest’s money to the AGENT within 48 hours. The AGENT will refund the guest. Guests’ cancellation policy is determined by the terms and conditions of the BOOKING SITE.
3.5 The OWNER will be liable for any accidents or losses at the PROPERTY due to poor maintenance and/or negligent acts of appointed staff, family and friends with access to the PROPERTY. In case of incidental-breakages or accidental incidents causing loss due to cleaning and management, the OWNER (insurance) will be liable for such costs.
3.6 The OWNER and the AGENT shall indemnify and hold harmless the other from all liability for damages and claims resulting from the negligence of any party or the AGENT’s employees or licensees. The OWNER agrees that the AGENT shall not be liable for any losses, thefts or damages to the ACCOMMODATION or the OWNER’s personal property due to any negligent, intentional, or wanton acts of any guests thereof or any other third person.
3.7 In the event of any guest causing breakages and damages to the PROPERTY, the costs thereof shall be recovered from the deposit paid by such guest. If the breakage deposit is not enough, the AGENT will request the shortfall thereof from the guest concerned. In the event of the guests refusing and/or failing to pay the shortfall of any breakages or damages caused by such guests, the OWNER may in his discretion elect to institute legal action. Notwithstanding the aforesaid, the OWNER may in his discretion claim for damages suffered from his relevant insurance company.
3.8 Any claim for discounts or similar claims due to complaints from guests will be determined as per the terms and conditions of the BOOKING SITE applicable between the AGENT and the relevant guests. The decision of the BOOKING SITE, following an arbitration, is final and the OWNER agrees to adhere to the BOOKING SITE’s award / decision. In the event of an arbitration determining that a guest must pay additional funds or money, the AGENT will account to the OWNER for such funds received. In the event of the damage and / or loss suffered by the OWNER due to the action of a guest and following the BOOKING SITE’s arbitration, the OWNER is not adequately compensated, the OWNER may institute legal action against the BOOKING SITE as per the BOOKING SITE’s jurisdiction.
3.9 The AGENT is responsible to collect all payments from guests and will account to the OWNER within twenty (20) working days after receipt of the money by the AGENT.
3.10 OWNER hereby designates the AGENT as its agent representing the OWNER in arranging for contracts with preferred vendors to provide any necessary maintenance, repairs and housekeeping that are required for the rental. The AGENT shall obtain permission from the OWNER for recommended or necessary repairs exceeding Five Thousand Rand (R5000) in any single instance of repair or need. In the event of an emergency and the AGENT deems it necessary to exceed expenditure of R5000.00, the AGENT may incur such costs on behalf of the OWNER. The AGENT undertakes to use his best endeavours to notify the OWNER within 48 hours of any emergency. In the event of the AGENT acting on behalf of the OWNER in performing maintenance, repairs, housekeeping or other general duties, the AGENT may deduct such expenses from revenue due to the OWNER. .
3.11 The AGENT may place an appropriate sign (depending on estate rules), the approximate size of a car number plate, on an appropriate place outside the ACCOMMODATION to provide guests access and notify concerned neigbours of the contact with the AGENT, if the need should arise.
3.12 For the duration of the agreement, the AGENT will keep a minimum surplus of R7000 to cover any costs related to the ACCOMMODATION.
3.13 The AGENT will be paid an administration fee equivalent to 5% of the booking fee, as well as the AGENT’S standard management fees (meet, liaison, linen etc) for any bookings made and confirmed prior to the PARTIES entering into this agreement.
3.14 In the event of non paying guest (friends and family) of the OWNER utilizing the ACCOMMODATION, then in that event, the AGENT will be paid an administration fee for the first 30 days per annum and thereafter 10% of the tariff for independent guests utilizing the ACCOMMODATION. In the event of the OWNER utilizing the ACCOMMODATION, the OWNER will be liable to pay the AGENT the AGENT’s management costs at the retail rate for the stay.
3.15 All guests who utilized the ACCOMMODATION prior to this agreement being concluded and who want book again (not the same as those who have booked before this agreement) after this agreement will be at the standard commission and at the then prevailing management fee.
3.16 The AGENT management fees are based on a per incident basis. The incidents include call outs, meeting guests, overseeing cleaning (quality control) and any other issue that warrants a call out to the PROPERTY. The linen cleaning costs depends on the laundry. The incident fee is set between the OWNER and the AGENT as per Annexure “F1” hereto.
3.17 The AGENT ensures that all money (rates, breakage deposits and fees) are collected as per the guest T&Cs or BOOKING SITE’S T&Cs.
3.18 Payment timing of rental income depends on the originator BOOKING SITE’S rules. In general; from the AGENT or affiliated websites payment is 50% when booking is made and the balance sixty days before arrival. If booking occurs within sixty days of arrival 100% is payable when booked. Airbnb: most bookings are paid 60 days before arrival and delayed by BOOKING SITES if the stay is for more than 28 days.
3.19 The AGENT shall collect all rental funds attributable to the ACCOMMODATION and provide any necessary accounting receipts. The AGENT shall make available to OWNER financials with a live Google spreadsheet available to the owner at all times.
3.20 All claims against the breakage deposit must be reasonable and claimed within 14 days.
4.00 OBLIGATION BY AGENT
4.1 The AGENT is to critically review the home and report back to the OWNER on how to improve and therefore get more 5 star reviews. Therefore AGENT will have access to the home to practically experience it as a guest. This will be once a year and if needed, at a maximum of 4 nights during low season or at short notice if available and at no cost to the AGENT.
4.2 The AGENT hereby agrees to accept the responsibility and obligation to let the ACCOMMODATION and the AGENT shall extend its best efforts to promote and advertise the rental of the ACCOMMODATION so as to maximize occupation of the ACCOMMODATION.
4.3 The AGENT is responsible for the marketing / advertising of the PROPERTY and will ensure it is always maintained or improved on. This is measured in the number of high scoring reviews. The goal is to achieve a minimum review rating of 4.8 out of 5.
4.4 The AGENT undertakes to ensure:
4.4.1 that all guests are met and liaised with in the most professional way before and during their stay;
4.4.2 that guests’ expectations will be managed and all issues will be addressed at all times
4.4.3 that all staff or services will be the responsibility of the AGENT.
4.4.4 The AGENT is responsible for quality control of all services or functions.
4.4.5 The AGENT is also responsible for a full cleaning service to ensure high levels of return guests and 5 out of 5 star reviews.
4,4.6 The AGENT ensures that the PROPERTY is secure when not occupied and that guests are familiar with how to ensure the PROPERTY is secured. This also includes access to the home by third party providers. If third party providers need access for more than one hour the AGENT may elect to allow unsupervised access but the AGENT is responsible to secure the PROPERTY once the work is completed. In the event of OWNERS requiring supervised access at all times by service providers, the OWNER will be liable to pay the AGENT the AGENT’s standard fee per hour.
5.0 OBLIGATION BY OWNER
5.1 The OWNER ensures the ACCOMMODATION is always truly reflected on the PROFESSIONAL PHOTOS used by the AGENT. If material differences are made to the interior and the view (construction in the area for example) new PROFESSIONAL PHOTOS must immediately be provided to the AGENT. The description reflects a true version of the ACCOMMODATION and that the PROPERTY is in a 5 STAR QUALITY as expected by the reasonable person searching for luxury accommodation. The AGENT must immediately be informed of any changes. The OWNER also needs to inform the AGENT of any construction at the PROPERTY or in the area so we can inform guests. In the event of the OWNER failing to do so, bookings may be cancelled with a booking penalty of US$1000 or 20% of the booking income whichever is the largest, and all moneys paid to the OWNER for such bookings is to be refunded to the AGENT. The OWNER remains liable for r any additional losses incurred by the AGENT or guests.
5.2 In the event of any sale of the ACCOMMODATION, injunction, forfeiting or any similar order of loss or potential loss of the PROPERTY, the OWNER will immediately inform the AGENT in writing or via email. Should the OWNER fail to inform the AGENT immediately, the OWNER will be liable for a penalty fee of US$1000. In additional, the OWNER will be liable for any losses incurred by the AGENT or the guests.
5.3 The OWNER will be obliged to insure the PROPERTY and potential third party liability and / or claim so as to have insurance cover for any loss or injury suffered by any party visiting the ACCOMMODATION in terms of this agreement. The OWNER shall be obliged to keep record of such insurance cover and make details thereof available to the AGENT on request. The OWNER undertakes to inform the Insurance provider that the PROPERTY is being used for ACCOMMODATION by third parties at a fee.
5.4 The OWNER acknowledges that he/she is familiar with the AGENT’s Terms and conditions and indemnity agreement with clients staying at the ACCOMMODATION.
5.5 The OWNER agrees to accept all guests without judgment or bias staying at The ACCOMMODATION — regardless of their race, religion, national origin, ethnicity, disability, sex, gender identity, sexual orientation, or age.
5.6 At all times the OWNER will ensure that all running accounts for the PROPERTY are paid in advance. If these are not paid, the AGENT may use surplus funds to pay these accounts. If there are no funds the OWNER must ensure payment is made within in 12 hours of being notified. Any emergency payment done by the AGENT on behalf of the OWNER is at an admin fee of R200 per payment.
5.7 The OWNER may reserve dates for personal use only after the OWNER has verified availability with the AGENT.
6.0 NOTICES
The PARTIES choose their respective e-mail addresses set forth in clause 1.1.1 and 1.1.2 as the address for all purposes arising out of or in connection with this agreement at which e-mail addresses all notices arising out of or in connection with this agreement may be served upon the PARTIES.
THUS DONE AND SIGNED AT _______________ON THIS _______ DAY OF 201
…………………………………………..
THE AGENT
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THE OWNER