The Company: Solmar Villas Limited
The Supplier: The Supplier named in the attached rental contract (the “Rental Contract”)
Villa: Any property which is rented by the Supplier to the Company under the terms of a Rental Contract, or otherwise as agreed between the Company and the Supplier.
These terms and conditions, together with its Schedules, the Rental Contract, the SMS and the Contractual Obligations Booklet (each defined below) constitute the entire agreement between the parties (this “Agreement”) and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
In particular, the Schedules to this agreement form part of it and may be amended or substituted from time to time by agreement between the parties.
- COMPANY OBLIGATIONS:
The Company, acting in its capacity as tour operator, will:
- Notify the Supplier of all Villa dates booked during the Contract Period.
- To the extent reasonably practicable, take all steps possible in an attempt to ensure that clients conform to all applicable terms.
- Forward rental monies to the Supplier as indicated and in accordance with the Rental Contract.
- In order to protect the legitimate business interests of the Supplier, the Company covenants with the Supplier that it shall not, either on its own behalf or jointly with any officer, employee, adviser, consultant or agent for itself or any other person, directly or indirectly without the Suppliers prior written consent contract for, enter into any agreement in relation to, or be involved with the provision of services in relation to any Villa where such Villa (or owner of such Villa) has been introduced to the Company by the Supplier, including featuring or offering such Villa as part of its services. The Company shall be bound by the covenant set out in this clause 1.4 during the term of this Agreement and for a period of 12 months after termination (for whatever reason) or expiry of this Agreement.
- SUPPLIER (OWNER AND AGENT) OBLIGATIONS, WARRANTIES AND IP RIGHTS:
The Supplier, whether acting in its capacity as Villa owner or as an agent for the Villa owner, will:
Villa and Features
- Supply the Villa and its surrounding grounds in a good state of repair (including gardens and swimming pool as applicable) and to the same standard throughout the Contract Period.
- Notify Solmar Villas as soon as reasonably possible if:
- The structure, arrangement, features, furnishings, equipment or appliances are amended from the approved company’s website description including the Villa interior, exterior, and grounds.
- If any of its licences, consents, insurances or other requirements for proper operation of the Villa expire, are withdrawn or become invalid
- Upon commencement (or likely commencement) of any construction or other works close to the Villa which may cause noise, nuisance or disruption to guests.
2.2.4 Of any other matter which might in any way affect either the Supplier’s ability to comply with its obligations under this Agreement or the undisturbed enjoyment of a Company client’s holiday at the Villa.
- Limit any works to the Villa to client changeover days wherever possible or must be pre-agreed with the Company in writing.
Minor repairs and maintenance
- Comply with the Company’s ‘Complaints Charter’ as outlined in the “Contractual Obligations Booklet”
- The Company shall not be liable to clients for any damage or defects suffered by clients as a result of any repairs or maintenance referred to in section 2.2 – 2.4.
Health and safety
- Ensure that the Villa, the Features and the Contents comply with the standards set out in the Company’s (“SMS”) and the recommendations set out in the health and safety booklet provided with this Agreement (and as may be updated from time to time) (the “Contractual Obligations Booklet”)
- [If the Supplier becomes aware that a client is in difficulties it shall provide the client and other members of their family or group (as applicable) with prompt assistance and shall make every effort to notify the Company as soon as practicable. For the purpose of this section, “difficulties” shall include but not be limited to sickness, personal injury or death of a client or a member of their travelling party.]
- Provide to the Villa at its own expense, by arrangement with the appropriate authorities and utilities: water, electricity, gas and fuel supplies and all other services described (Health and Safety) hereto, in each case in adequate quantities and in a safe and proper manner in accordance with local standards and regulations, the SMS and the recommendations set out in the (the “Contractual Obligations Booklet”).
- Not restrict client usage of Villa timed air conditioning or pool heating where applicable unless otherwise specified within the contract
Taxes and licensing
- Be responsible for and promptly pay all taxes, fines and interest penalties.
- Obtain all necessary local permits and licences in connection with the Villa, its Features and Contents.
- Remain the owner/agent (as applicable) of the Villa throughout the Contract Period and not sell, transfer or permit the sale/transfer of the Villa from the date of the parties’ execution of this Agreement or the beginning of the Contract Period (whichever is the earlier) until the end of the Contract Period unless first obtaining written consent from the Company.
- Provide at it’s (in the case of a Villa owner) or the Villa owner's (in the case of an agent) expense, a competent house manager for the Villa, to ensure the prompt and continuous compliance with the Supplier's obligations under this Agreement.
- Inspect the Villa, its Features and its Contents on booking changeover (being the date of departure of the Company’s client) and ensure that any requisite repairs/replacements are actioned before arrival of the Company’s next clients.
- Follow the company Damage Claim process as outlined in (the “Contractual Obligations Booklet”).
- Allow the Company, and its authorised representatives, agents and sub-contractors, access to the Villa, who shall have the right to:
- Inspect the Villa at any time starting no less than 14 days prior to the contract start date and during the rental period without prior notice. The Supplier shall cooperate fully with any such inspection and provide access to all parts of the Villa including parts not normally accessible to clients; and
- at any time inspect and take copies of all certificates, licences, consents, permits and other documents which the Supplier is required to have by law, regulation, code of practice or under this Agreement.
Third party access
- Limit third party access to any public/private storage areas (such as garages) within the Villa’s grounds to client changeover days or as may be pre-agreed in writing with the client and the Company’s UK office or local representative.
- Ensure the Villa is ready and prepared no less than fourteen (14) days prior to the Contract Period.
- Ensure the Villa is fully prepared by 16:00 on the agreed changeover day.
- The Supplier warrants that:
- The minimum particulars outlined in (the “Contractual Obligations Booklet”) to this Agreement are provided with the Villa as at the first date of the Contract Period and will continue to be provided throughout the Contract Period except in the event of any variation notified to the Company at least twenty-eight (28) days in advance.
- Notwithstanding any other provision of this Agreement, the Supplier and the Villa does and will at all times comply with all applicable national, local, trade and other laws, regulations and codes of practice applicable to the provision of rented Villa accommodation and that all necessary licences and certificates confirming compliance have been obtained and are in force and will be maintained for the Contract Period.
Marketing/promotional material and intellectual property (IP) rights
- Where the Supplier is to provide professional photography, they shall promptly provide available (“Visual Material”) for use by the Company in marketing the Villa (including the Features and Contents) and shall represent the Villa, Features and Contents in the state as they will be offered to clients, as may be updated by the Supplier from time to time.
- The Supplier warrants that:
- It is the owner of the intellectual property or the Visual Material and is entitled to (sub)license the Visual Material to the Company and
- persons portrayed in any Visual Material have given a waiver with regard to any claim based on image or privacy rights.
- The Supplier herewith grants to the Company an irrevocable, non-exclusive, perpetual, royalty free and fully sub-licensable right to reproduce, modify, adapt, displace, translate and publish for commercial purposes, all Visual Material and Descriptions provided by the Supplier
- The Supplier shall indemnify and hold the Company harmless from any third party claim relating to infringement of intellectual property rights (including image or private rights) with regard to the Visual Material and/or Description(s).
- The Supplier shall ensure that the accommodation is comprehensively insured with a reputable insurer to cover its Features and its Contents against:
- fire and such other risks which are normally covered in the country in which the Villa is situated by hotel buildings and contents insurance
policies with the level of cover being such as to provide full reinstatement value in the event of loss or damage;
- third party risks, including (without limitation) the Supplier’s liabilities to the Company and any Company client in the event of death, injury or illness to any of them and/or damage to and loss of the company’s property; and
- to the extent not covered by sub-provisions 3.1.1 and 3.1.2, its obligations under this Agreement.
- The Supplier shall ensure that the insurers are aware the accommodation is being commercial let for the purpose of short term holiday accommodation.
- The Supplier shall upon request provide evidence in a form satisfactory to the Company of these policies referred to in section 5 above.
- AGENT-ONLY OBLIGATIONS:
- If and when at any time acting as an agent, the Supplier will ensure that: (a) the Villa owner(s) agree to the terms and conditions that will apply to him/her/them set out in this Agreement; [and (b) the Villa owner(s) counter-sign(s) to confirm their acceptance of such applicable terms where indicated at the end of this Agreement].
- DATA PROTECTION
- The supplier will comply with the (the “Data Processing Agreement”) as outlined in the (the “Contractual Obligations Booklet”).
- LIABILITY AND INDEMNITIES
- For the purpose of this section and throughout this Agreement, “Losses” shall mean all claims, demands, actions, proceedings, damages, losses, costs and expenses and any other liability of any nature incurred or brought against the Company, including, without limitation:
- any liability for death, injury or illness (including fatal injury or illness) of any Company client; and/or
- any damage to any Company property and any Company liability for damage to the property of any Company client; and/or
- any Company liability to compensate any client; and/or
- any payment made by the Company to a client either on a pre-emptive basis with the intention of minimising the Losses that would otherwise have been incurred or on an ‘ex gratia’ (goodwill) basis or pursuant to an agreed settlement agreement (whether or not such settlement is in final form) or as an outcome of any dispute resolution.
- The Supplier shall hold harmless and indemnify and keep indemnified the Company in respect of all Losses arising directly or indirectly from or in connection with:
- any failure by the Supplier (including its servant, employees, agents and subcontractors) to performing its (and their respective) obligations under this Agreement;
- any representation or warranty given by the Supplier in this Agreement being inaccurate in any material respect;
- any other failure by the Supplier (including its servant, employees, agents and subcontractors) to comply with any of its obligations under this Agreement or any breach, wrongful act or omission of the Supplier;
- any claim by or from a Company client in respect of any injury or illness (including fatal illness) arising directly or indirectly from any wrongful or negligent act or omission by the Supplier (including without limit the Supplier’s employees, officers, agents or subcontractors); and/or
- any claim by or from a Company client in respect of poor standards of accommodation or maintenance or levels of cleanliness in respect of the Villa, its Features or its Contents.
- In addition, and without prejudice to section 6.2 above, the Supplier shall hold harmless and indemnify and keep indemnified the Company in respect of all Losses arising directly or indirectly from or in connection with:
- the Supplier’s failure or inability to provide the Villa, including any Villa booking cancellation which occurs as a result of the Villa becoming uninhabitable for any reason (including, without limit, the sale of the Villa)
- any funds paid in relation to weeks the Villa is not available;
- any compensation and associated costs paid by the Company to clients with confirmed Villa bookings
- The Company’s total liability to the Supplier, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the aggregate amount payable by the Company under the Rental Contract].
- Nothing in this Agreement shall limit either party’s liability for:
- death or personal injury caused by its negligence or the negligence of its personnel, agents or subcontractors;
- fraud or fraudulent misrepresentation;
- any other liability which cannot be limited or excluded by applicable law.
- The Company shall be entitled to immediately without notice to the Supplier suspend or terminate this Agreement without incurring any penalty charge or liability whatsoever in any of the following circumstances:
- any building/construction work close to the Villa significantly affecting the enjoyment of its clients at any time during the Contract Period;
- or the Supplier committing a breach of this Agreement which is irremediable or (if such breach is remedial) failing to rectify the remedial breach within seven (7) days of being made aware of it.
- The insolvency of the Supplier or the Villa Owner.
- The villa becomes uninhabitable or unavailable for rental for any period during the contract period
- Force Maejeur of any nature
- The company shall be entitled to terminate this Agreement immediately upon written notice to the other at any time during the Contract Period due to issue arising from:
- Any situation outside of the company’s control.
- Government/Local restrictions on travel to/from the destination
- Flight cancellation/capacity issues
7.3 This Agreement shall terminate automatically upon the signing by the Company and the Supplier of any new agreement relating to the Villa that is intended to supersede this Agreement.
- Any termination of this Agreement shall be without prejudice to the rights and obligations of the parties existing at the date of such termination.
- The indemnities set out in this Agreement shall survive and remain in full force and effect after the termination or expiry of this Agreement.
- In the event that the Company exercises its right to suspend or terminate this Agreement as set out at section 1 above, the Supplier shall immediately refund to the Company any sums paid by the Company to the Supplier which relate to any Villa booking affected by the suspension or termination of this Agreement, together with all associated Losses arising out of or in connection with such suspension or termination.
- Where a fixed term contract has been agreed, The Supplier agrees that the Company will have exclusive rights in respect of Villa bookings for the duration of the Contract Period.
- The Supplier will not seek to influence Company clients to become direct customers of the Supplier in any way and in particular the Supplier shall not collect any contact details from Company clients nor make reservations for clients for any future date during their stay.
- In order to protect the legitimate business interests of the Company, the Supplier covenants with the Company that it shall not, either on its own behalf or jointly with any officer, employee, adviser, consultant or agent for itself or any other person, directly or indirectly without the Company’s prior written consent contract for, enter into any agreement in relation to, or be involved with the provision of services in relation to any Villa where such Villa (or owner of such Villa) has been introduced by the Company to the Supplier, including featuring or offering such Villa as part of its services. The Supplier shall be bound by the covenant set out in this clause 8.3 during the term of this Agreement and for a period of 12 months after termination (for whatever reason) or expiry of this Agreement.
- In order to protect the legitimate business interests of the Company, during the term of this Agreement and for a period of 12 months after termination (for whatever reason) or expiry of this Agreement, the Supplier covenants with the Company for itself and as agent for any of the Supplier’s Group Companies (as applicable) that it shall not carry on, be engaged, concerned or interested in, or assist in any way any business entity which is (or intends to be) in competition with the business of the Company in respect of any Villa where such Villa (or owner of such Villa) has been introduced by the Company to the Supplier. The term “Group Company” means any ‘group undertaking’ within the meaning of the Companies Act 2006.
Change of Control
- The Supplier shall notify the Company as soon as reasonably practicable in advance of, or promptly upon being subject to, a change of control. In the event that a change of control occurs, the Supplier shall notify each Villa owner in writing of that and shall provide the Company with the full contact details of each Villa owner and such other information in respect of the Villa as the Company may reasonably request.
- For the purposes of this clause 8.5, “change of control” means a change of the Supplier’s (a) voting rights attaching to 50% or more of the voting shares in the Supplier; or (b) power to direct or cause the direction and management of the policies of the Supplier in accordance with the acquirer's wishes, whether as a result of the ownership of shares, control of the board of directors, contract or any powers conferred by the articles of association or other constitutional documents of the Supplier.
- No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
- A failure or delay by any party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- The Company may at any time assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement, provided that it gives prior written notice of such dealing to the Supplier. The Supplier shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
- The Company may at any time, set off any liability of the Supplier to the Company as outlined in the (the “Contractual Obligations Booklet”)
- If any provision or part-provision of this Agreement is or becomes invalid illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed to be deleted. Any modification to or deletion of a provision or part-provision shall not affect the validity and enforceability of the rest of this agreement.
Rights of third parties
- No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
- Any notice given to a party under or in connection with this Agreement shall be in writing
Governing law and jurisdiction
- This Agreement and any dispute of claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
The Supplier acknowledges and agrees that the requirements are in addition to those set out in the SMS and the Contractual Obligations Booklet, each provided to the Supplier separately. Owners must also comply with the health and safety recommendations listed in the attached Contractual Obligations booklet.