Agreement means this Exclusive Property Management Agreement as signed by the Property Owner and consisting of the Particulars of Appointment, Terms and Conditions and any other document annexed to the Property Management Agreement at the time of signing.
Base Rate means the base rate per night which is payable by the Guest to stay at the Property.
Booking Fee means fees agreed to by a Guest in relation to that Guest’s reservation to stay at the Property, including, but not limited to, the deposit, the Base Rate and any service fees payable by the Guest.
Claim means any claims, liabilities, obligations, costs, fees, charges, losses, damages, penalties, actions or other demands suffered or incurred by the Property Manager of whatever nature and however arising. Dispute has the meaning given in clause 10.1. Further Term has the meaning given in clause 2(b).
GST means the goods and services tax payable in accordance with the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999.
Guest means any person that the Property Manager books to stay at the Property. Initial Term has the meaning given in clause 2(a).
Loss means and includes any damage, loss, cost, expense or liability incurred or sustained by a person (either directly or indirectly), however arising, and whether present or future, fixed or unascertained, actual or contingent, special or consequential including:
(a) loss of profit;
(b) liability to third parties;
(c) legal costs (on a solicitor own-client basis) incurred including legal costs incurred as a result of a breach of this Agreement or in respect of enforcing any indemnity or defending any Claim brought by any party, including a third party, in respect of a matter which is the subject of an indemnity; and
(d) loss, liability, damage or expense arising from or in any way connected with a breach by the other party to this Agreement of its obligations under this Agreement or an act, default or omission or other event in respect of which an indemnity is given.
Management Fee means the management fee calculated at the rate specified in the Particulars of Appointment.
Particulars of Appointment means the particulars of appointment which is annexed to and forms part of this Authority.
Personal Information has the same meaning as defined in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth) (as amended from time to time).
Property means the Property specified in the Particulars of Appointment.
Property Management Services has the meaning given in clause 4.1.
Property Manager means the property manager named in the Particulars of Appointment and includes the Property Manager’s employees and agents.
Property Owner means the Property Owner/s specified in the Particulars of Appointment.
Urgent Repairs includes, but is not limited to, any work necessary to repair or remedy damage to, or a failure or breakdown of:
(a) the Property’s water service, lavatory system or gas or electricity system, including but not limited to a roof leak or gas leak;
(b) the Property’s heating or cooling system;
(c) any safety-related devices located at the Property, including but not limited to smoke alarms, fire extinguishers or pool fences; and
(d) any other fault, damage or failure that makes the Property unsafe or insecure.
2. Term of Agreement
(a) This Agreement commences on the date of this Agreement and continues for 12 months, unless terminated earlier in accordance with clause 9 (Initial Term). (b) Subject to clause 2(c), the parties agree that on the expiration of the Initial Term or any Further Term(s), this Agreement will automatically renew for a subsequent period of 12 months (Further Term), on the terms of this Agreement.
(c) Either party may elect for this Agreement to not renew automatically by providing no less than 3 months written notice to the other party, provided that there are no bookings booked in respect of the Property as at the date of such notice.
3. Appointment of the Property Manager
(a) The Property Owner appoints the Property Manager as its property manager in respect of the Property for the Initial Term and any Further Term, on the terms and conditions of this Agreement.
(b) The Property Manager accepts the appointment under clause 3(a).
(c) The Property Owner acknowledges and agrees that:
(i) this Agreement confers upon the Property Manager the right to exclusively manage the Property for a period of 12 months after the date
that the first Guest books a stay at the Property (Exclusive Period);
(ii) it must not engage any other person or entity in the capacity as property manager in respect of the Property during the Exclusive Period; and
(iii) it must not make use of a third party to circumvent the provisions of this clause.
4. Property Manager’s Authority and Obligations
4.1 Property Manager’s Authority
The Property Owner authorises the Property Manager to:
(a) enter into short-stay rental agreements with Guests in respect of the Property and to manage the Property in accordance with those agreements including by permitting cancellations by Guests at the Property Manager’s discretion;
(b) manage all short-stay bookings in respect of the Property including by processing reservations and cancellations, answering Guest inquiries in respect of the Property, managing check-in and check-out services and managing Guest relations;
(c) collect and manage Booking Fees in respect of the Property;
(d) determine in its sole discretion whether to offer refunds, or provide discounts, extra nights or rebates to Guests, and to manage any Guest complaints;
(e) collect and manage security deposits in respect of the Property;
(f) notify Guests as to the location of any security cameras servicing the Property;
(g) arrange Urgent Repairs to the Property (as the agent of the Property Owner) and at the Property Owner’s expense, up to a cost of $5,000 plus GST, without the consent of the Property Owner;
(h) arrange housekeeping and cleaning services at the Property Owner’s expense up to a cost of $5,000 plus GST, without the consent of the Property Owner; and
(i) do all other things reasonably necessary to manage the Property for short-stay accommodation purposes on behalf of the Property Owner,
(Property Management Services).
4.2 Property Manager’s Obligations
During the Initial Term and any Further Term, the Property Manager must:
(a) provide evidence and account to the Property Owner in relation to all Booking Fees and security deposits charged by the Property Manager in connection with the provision of the Property Management Services, and other costs and expenses charged to the Property Owner by the Property Manager in relation to the Property Management Services, at the reasonable request of the Property Owner;
(b) perform the Property Management Services with all due professional skill, care and attention;
(c) act in a prompt, timely and professional manner in the performance of the Property Management Services;
(d) act in good faith in the best interests of the Property Owner in the performance of the Property Management Services;
(e) comply with all applicable laws, by-laws and requirements of any governmental or regulatory authority in the performance of the Property Management Services; and
(f) engage such competent persons as may be necessary to perform the Property Management Services.
5. Property Owner’s Obligations
During the Initial Term and any Further Term, the Property Owner must:
(a) ensure that prior to the Property Manager advertising the Property for short stay accommodation purposes, it provides the Property Manager with five (5) sets of keys to the Property;
(b) maintain, in addition to any insurance which the Property Owner is by law required to maintain, public liability insurance and property insurance (both building and contents) and must, upon request by the Property Manager, provide satisfactory evidence of the insurance coverage required by this clause;
(c) maintain the Property in a fit, proper and safe condition which is compliant with all safety regulations (including, without limitation, those relating to smoke detectors, fire extinguishers and pool fencing);
(d) without limiting any other provision of this Agreement, maintain a current certificate of barrier compliance in respect of all swimming pools and spas located on the Property;
(e) prior to the Property Manager advertising the Property for short stay accommodation purposes, advise the Property Manager of any works required to be carried out on the Property in order that the Property is in a fit, proper and safe condition which is compliant with all safety regulations (including, without limitation, those relating to smoke detectors, fire extinguishers and pool fencing);
(f) refer any prospective Guests of which the Property Owner is aware to the Property Manager;
(g) ensure that the Property Owner’s [insert details of calendar software] is kept up to date and accurately reflects at all times when the Property is available for bookings;
(h) comply with the requirements of all relevant local, state and federal laws, by-laws, rules and regulations and the requirements of any Owners Corporation;
(i) at its own cost, ensure that the Property is registered with the local municipal council for short stay accommodation (if required) and for use as an accommodation business (if required) and provide
evidence of such registration(s) to the Property Manager upon request;
(j) cooperate with the Property Manager in respect of the provision of the Property Management Services, including by providing the information, materials and documentation that the Property Manager reasonably requires;
(k) ensure that any security cameras servicing the Property do not have any audio capabilities (regardless of where they are located) and are not operating in inside spaces or other than for surveillance and security purposes whilst a Guest is occupying the Property; and
(l) advise the Property Manager of any security cameras servicing the Property, including their locations on the Property.
6. Management Fee and Payment
6.1 Management Fee
(a) In consideration of the provision of Property Management Services in accordance with this Agreement, the Property Owner will pay the Management Fee to the Property Manager.
(b) In addition to the Management Fee, the Property Manager is permitted to charge the Property Owner for all reasonable costs and expenses incurred by the Property Manager in relation to the Property including any failure by the Property Owner to comply with any reasonable and lawful direction of the Property Manager in relation to preparing the Property for a Guest, or in performing the Property Management Services, including, but not limited to, the costs and fees associated with advertising the Property through a third party, undertaking Urgent Repairs at the Property and cleaning of the Property.
(c) The Property Manager is irrevocably authorised to deduct from any Booking Fee, its Management Fee and any costs and expenses of the type referred to in clause 6.1(b) before remitting the balance of the Booking Fee to the Property Owner.
(d) If the Booking Fee is not sufficient to cover the Management Fee and the costs and expenses of the type referred to in clause 6.1(b), the Property Owner must pay such shortfall amount as is required to the Property Manager within 14 days of receiving a tax invoice from the Property Manager.
(e) The Property Manager will issue tax invoices, when necessary or required, in respect of all monies owing by the Property Owner to the Property Manager
(a) The parties acknowledge and agree that the Property Manager will be entitled to the Management Fee if a Guest books to stay at the Property.
(b) For the avoidance of doubt, the Property Manager will be entitled to the Management Fee if a Guest books to stay at the Property and subsequently cancels that booking in circumstances where the Property Owner is entitled to retain some or all of the Booking Fee.
For the sake of clarity, the Property Manager shall not be entitled to the Management Fee in circumstances where the Guest has not paid the Booking Fee (or part thereof) or where the Property Owner is not entitled to retain the Booking Fee (or part thereof) upon a Guest cancelling its booking.
(c) If the Property Owner cancels a booking for any reason whatsoever (including but not limited to the Property Owner failing to update the Property’s availability via [insert details of calendar software] or the Property being sold), the Management Fee is still payable by the Property Owner to the Property Manager and the Property Owner will be responsible for any costs and fees associated with the Property Manager assisting Guests to book alternative accommodation.
(d) If the Guest fails to pay the whole of the Booking Fee the Management Fee is still payable to the Property Manager and the Property Manager shall not be liable to the Property Owner for non-payment (in whole or in part) of the Booking Fee.
6.3 Failure to Pay
If the Property Owner does not make a payment of the Management Fee by the date stated in a tax invoice or as otherwise provided for in this Agreement, the Property Manager is entitled to do any or all of the following:
(a) charge interest on the outstanding amount at the rate of 2 percent above the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic), calculated from the date that payment was due until the date of receipt of payment in full; and
(b) cease providing any further Property Management Services.
The Property Owner charges the Property with payment of the Management Fee and other amounts payable to the Property Manager under this Agreement from the date such fee and amounts are due to be paid by the Property Owner to the Property Manager until the Property Manager is paid in full.
7. Property Owner’s Acknowledgments
The Property Owner acknowledges and agrees that:
(c) the Property Manager is entitled to cancel a booking if the Property Manager determines in its sole discretion that the Property Owner has failed to maintain the Property in accordance with the terms of this Agreement;
(d) the Property Manager is not responsible for reporting any matters (including defects in or damage to the Property) other than those that are readily apparent during the course of an inspection or as are brought to the Property Manager’s attention by a Guest; and
(e) the Property Owner will be responsible for managing, at the Property Owner’s cost, any disputes with Guests relating to a failure to pay a Booking Fee, damage to the Property or otherwise.
8. Property Owner’s Warranties and Indemnity
8.1 Property Owner’s Warranties
The Property Owner represents and warrants to the Property Manager that:
(a) it owns the Property and has full power and authority to enter into this Agreement;
(b) it will not advertise the Property for sale or sell the Property during the Initial Term or any Further Term, without notifying the Property Manager;
(c) as at the date of this Agreement, the Property is in a fit, proper and safe condition to be used for short-stay accommodation purposes;
(d) as at the date of this Agreement, it has disclosed to the Property Manager all relevant and material facts relating to the Property;
(e) it has the authority to disclose all information provided to the Property Manager in accordance with this Agreement;
(f) any information provided to the Property Manager in accordance with this Agreement contains complete and accurate information that is not misleading in any way; and
(g) neither the Property Manager or its employees or agents have or will be taken at any time to have provided any warranties or made any representations that any result or objective can or will be achieved or attained at all or by any date, whether stated in this Agreement.
8.2 Indemnity by the Property Owner
The Property Owner must at all times indemnify, keep indemnified and hold harmless the Property Manager against any and all Claims, liabilities, damages, Losses, costs and expenses (including but not limited to legal costs and expenses) arising out of or relating to:
(a) any cancellation by the Property Owner of a booking after it is confirmed with the Guest;
(b) any breach of any provision of this Agreement by the Property Owner;
(c) any failure by a Guest to comply with the terms and conditions relating to its short stay at the Property;
(d) any damage to the Property or otherwise the cleanliness, safety, construction, building requirements or building deterioration of the Property.
8.3 Survival of provisions The obligations accepted by the parties under this clause 8 survive termination or expiry of this Agreement.
(a) Either party may terminate this Agreement by providing no less than 6 months written notice to the other party .
(b) Either party may terminate this Agreement immediately if:
(i) an Insolvency Event occurs in respect of the other party; or
(ii) the other party commits a material breach of this Agreement and fails to remedy such breach within 30 days of receipt of written notice requiring it to do so.
(iii) The parties acknowledge and agree that if this Agreement is terminated for any reason, the Property Owner must honour all bookings booked as at the date of termination and the Property Manager shall be entitled to its Management Fee in respect of any such bookings.
10. Dispute Resolution
10.1 Notification of disputes
If a party considers that there is a dispute between the parties relating to or arising out of this Agreement, that party may by notice in writing notify the other party of the existence of the dispute and will provide details in writing of the dispute (Dispute).
10.2 Meeting to resolve
Within five Business Days after a party issues a written notice of the existence of a Dispute, officers or other senior representatives of the parties will meet and attempt in good faith to resolve the Dispute in that meeting. If the meeting fails to resolve the Dispute within five Business Days after the parties first meet for that purpose, either party may take such other steps in relation to that Dispute as it sees fit.
The parties will not disclose information obtained during this Dispute resolution process to any other person or entity not involved in the Dispute, unless for the purpose of obtaining legal, accounting, audit or other advice.
10.4 Interlocutory relief not prohibited Nothing in this clause 10 prevents either party seeking injunctive or other interlocutory relief from a court in relation to any actual, threatened or suspected breach of this Agreement.
10.5 Survival This clause 10 survives the termination of this Agreement.
11.1 Interpretation For the purpose of this clause 11.1, expressions in this clause which are defined in the GST Act have the same meaning as is given to those expressions in the GST Act.
11.2 GST Exclusive
Except where express provision is made to the contrary, and subject to this clause 11, the consideration payable by any party under this Agreement represents the value of any taxable supply for which payment is to be made.
11.3 Liability to pay any GST Subject to clause 11.5, if a party makes a taxable supply in connection with this Agreement for a consideration which, under clause 11.2 or clause 11.4 represents its value, then the party liable to pay for the taxable supply must also pay at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
If this Agreement requires a party to pay, reimburse or contribute to an amount paid or payable by the other party in respect of an acquisition from a third party for which the second party is entitled to claim an input tax credit, the amount required to be paid, reimbursed or contributed by the first party will be the value of the acquisition by the second party plus, if the second party’s recovery from the first party is a taxable supply, any GST payable under clause 11.3.
11.5 Tax Invoice A party’s right to payment under clause 11.3 is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
12.1 Entire Agreement
This Agreement and the documents referred to in or contemplated by it embody the entire agreement and understanding between the parties concerning its subject matter and succeeds and cancels all other agreements and understandings concerning the subject matter of this Agreement and any warranty, representation, guarantee or other term and condition of any nature not contained in this Agreement is of no force or effect.
12.2 No Amendments without Agreement
This Agreement may not be modified or varied unless by a document signed by the parties.
12.3 No Partnership
Unless otherwise stated, nothing contained in this Agreement should be read or construed so as to constitute the relationship of principal and agent, partnership, joint venture or of employment between the parties.
The failure of either party to enforce this Agreement will not constitute a waiver of any of that party’s rights.
If any provision of this Agreement is deemed to be unlawful or unenforceable, such provision will be severed and all other provisions will remain in force.
12.6 Unavoidable Events
No failure or omission to carry out or observe any terms of this Agreement, except for an obligation to pay money, will give rise to a Claim by any party against another or result in a breach of this Agreement if such failure or omission arises by reason of delay or inability to perform caused by war, whether declared or not, civil rebellion, strike, epidemic, pandemic, fire, storm or other severe action of the elements, accident, government or statutory restriction or from other similar causes which are unavoidable or beyond the reasonable control of the defaulting party.
All notices provided under this Agreement:
(a) must be in writing and signed by the sending party or its representative;
(b) must be directed to the attention of the person and at the address notified by the receiving party from time to time, and will be effective in the following manner:
(i) in the case of delivery in person, when delivered;
(ii) where posted, four Business Days after the date of posting; and
(iii) where email transmission, at the time recorded on the sent message receipt,
however if the notice is received after 5:00pm, notice will be taken to be received at 9:00am on the following Business Day.
12.8 Governing law
The laws of the state of Victoria from time to time govern the terms of this Agreement and the parties agree to the exclusive jurisdiction of the courts and tribunals of Victoria, and of courts entitled to hear appeals from those courts and tribunals.
(a) This Agreement may consist of a number of counterparts, and if so, the counterparts taken together constitute one and the same instrument.
(b) This Agreement is not binding on any party unless one or more counterparts have been duly executed by, or on behalf of, each person named as a party to this Agreement.
Each party will pay its own costs associated with the negotiation, preparation and execution of this Agreement.