Terms of Agreement
Updated August 10, 2018
This Agreement is entered into between you (the “Host") and Magnetia LLC dba newhaus, a Florida Limited Liability Company (“NEWHAUS") under which NEWHAUS will provide certain services to Host with respect to the listing and rental of the Accommodation.
By accepting the terms hereof, Host acknowledges that it has read, understands, and agrees to comply with and be bound by NEWHAUS's Terms of Service (the "Terms"), as published from time to time at newhaus.io/terms and into which this Agreement is incorporated.
Capitalized terms used in this Agreement but not defined herein have the meanings assigned to them in the Terms.
1. BOOKING AGENT SERVICES
Host hereby appoints NEWHAUS exclusive marketing agent for obtaining bookings for Host’s Accommodation, including the following services (the "Services"):
NEWHAUS shall be granted access to Host's existing booking platforms, whereupon NEWHAUS will re-write or edit existing listings as necessary to improve the Accommodation’s marketability. Host acknowledges and agrees that Host is responsible for the accuracy of all source information on which the listing is based.
NEWHAUS will create listings for the Accommodation on additional marketing channels on which the Accommodation is not already listed as of the date of this Agreement.
All channel listing fees will be the obligation of Host. Before adding channel listings, NEWHAUS will advise Host of the added costs and will not add channel listings without Host’s approval.
IMPROVING LISTING PHOTOGRAPHS
At no additional cost to the Host. NEWHAUS may decide at its sole discretion to hire a professional photographer to take new photos of the Accommodation and to include them in any listings.
If the service is available in the area, NEWHAUS will use its own and/or one or more third-party pricing programs to optimize revenues and occupancy of the Accommodation at no additional cost to Host.
INQUIRY AND RESERVATION MANAGEMENT
Host shall provide 24 x 7 handling of all inquiries with the assistance of a ChatBot and other automatic communications provided by NEWHAUS. NEWHAUS will provide assistance with reservations, changes, cancellations, payments, security deposits, and refunds for all listings of the Accommodation. NEWHAUS will notify Host of all bookings and cancellations, and the Host will have access to a calendar with near-real-time availability.
NEWHAUS will use available means to screen and vet guests to minimize undesirable incidents or damage to the Accommodation.
NEWHAUS will automate and ascertain the delivery of the distribution of the Host's welcome and other messages which includes confirmations, arrival instructions, and other follow-ups for guests at the Accommodation.
NEWHAUS will solicit positive 5-star reviews from guests of the Accommodation at the conclusion of their stay.
2. BOOKING FEES AND GUARANTEES PAYMENTS
NEWHAUS's fee will be a 3% commission (the “Booking Fee”) on the full reservation amount received and extra person fees (if applicable). The fee is subject to change from time to time, and updates shall be provided on newhaus.io/pricing.
PAYMENTS TO HOST
Host shall be entitled to full reservation amount, minus the Booking Fee, channel listing fees (where NEWHAUS is listing owner), and/or payment processing fees - all of which shall be enumerated in a detailed statement (the “Owner’s Statement). NEWHAUS shall submit an Owners Statement to the Host on a monthly basis.
If a balance is owed to NEWHAUS, NEWHAUS will charge the Host's credit card or third-party payment processing for the balance and the credit card or third-party processing fee.
NEWHAUS will not pay for any cancellation fees resulting from double bookings due to errors committed and only by fault of NEWHAUS.
SCHEDULE OF FEES
NEWHAUS shall post on its website or otherwise make available a schedule of fees and rates for compensation under this Agreement (the “Schedule of Fees”). NEWHAUS may modify the Schedule of Fees at any time. Removing a rental fee is set at $150 per rental unit, and re-listing a rental is set at $50 per rental unit.
NEWHAUS may from time to time, in its sole discretion, provide or arrange services for guests, including but not limited to trip insurance, tenant damage insurance, special event bookings, and other services desired by guests. NEWHAUS may also charge and retain reasonable administrative fees to guests to cover the costs of processing guest’s reservations, transfers or cancellations or vacation rental agreements. Any additional fees from guests or third party vendors for arranging such services shall belong exclusively to NEWHAUS.
3. HOST’S REPRESENTATIONS
HOST REPRESENTS AND WARRANTS THAT:
It is a legal owner or guest of the Accommodations and has full authority to enter into this Agreement and to employ NEWHAUS under the terms of this Agreement. If Host is guest of the Accommodations, there are no written or oral restrictions on further leasing or subletting the Accommodations that would interfere with the temporary leasing of the Accommodations to guests or any other actions contemplated by this Agreement.
To the best of Host’s knowledge the building, its construction and operation do not violate any applicable statutes, laws, ordinances, rules, regulations, orders, or the like including, but not limited to, those relating to hazardous or toxic substances.
To the best of Host’s knowledge the building does not contain any toxic substances such as, but not limited to: lead based paint, asbestos, mold, urea, formaldehyde, radon, or other hazardous substances and that no unsafe condition exists except as disclosed in writing at the time of this Agreement.
It has disclosed the existence of any default of foreclosure notices affecting the property as of the date of this agreement and further agrees to disclose any such notices received hereafter, within five days of the receipt of any such notices.
HOST HEREBY ACKNOWLEDGES THAT NEWHAUS IS NOT A REAL ESTATE BROKER, REAL ESTATE AGENT, OR INSURER. NEWHAUS HAS NO CONTROL OVER THE CONDUCT OF GUESTS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
4. NEWHAUS RESPONSIBILITIES
NEWHAUS shall use commercially reasonable efforts to keep the Accommodations occupied by soliciting, and vetting guests for the Accommodations. NEWHAUS may execute rental agreements on a form approved by Host.
COLLECTION OF RENTS AND OTHER RECEIPTS
NEWHAUS shall collect on behalf of Host all monies, charges, and other amounts receivable on Host’s account in connection with the management and operation of the Accommodations, including but not limited to rent. NEWHAUS shall maintain records of all amounts collected.
PETS AND SMOKING
Unless specifically allowed by Host, NEWHAUS shall notify guests that pets and smoking shall not be allowed onto the Property. If pets and smoking are specifically allowed by Host, NEWHAUS shall charge a non-refundable pet or airing-out-smoking fee to be retained by Host for the extra work involved in cleaning and other related services in conjunction with the pet(s).
HANDLING GUEST ISSUES
NEWHAUS will immediately forward to the Host any communications received from the guest during their stay together with any replies and a description if steps taken by NEWHAUS to address any issues. Upon receipt of any questions or complaints, NEWHAUS will attempt to respond to or resolve such consistent with this agreement.
If Host has elected to use the NEWHAUS bookkeeping service which may be provided through a third-party company, then NEWHAUS shall keep accurate, timely, complete, and separate books and records with regards to the Host. These books and records shall show all income and expenditures, accounts payable, accounts receivable, cash, and any other assets or liabilities associated with the management of the Accommodations.
Hosts may login to the online dashboard to review monthly reports for each guest’s stay to review income, expenses, and fees related to each. From time to time, NEWHAUS may also, in its discretion, send automated updates on a monthly basis if there was activity related to the Accommodations in the prior monthly period or after every frequent financial disbursement.
REMITTANCE TO HOST
NEWHAUS processes payments on behalf of Host, however, it doesn’t deposit funds into its bank accounts. NEWHAUS uses third party services for payment collection and payout remittance. Funds for payouts are remitted based rules selected by manager, and the capability of the payment and payout software solution.
Should NEWHAUS determine that a guest has damaged the Accommodations, or should Host give NEWHAUS timely notification that Host wishes to claim any security deposit placed by guest, NEWHAUS shall do so, and NEWHAUS shall be compensated for doing so pursuant to Schedule of Fees, as revised from time to time.
NEWHAUS shall notify Host of any maintenance items that come to its attention. Attention to the maintenance items will be the responsibility of the Host, as provided in Section 5.2.
NEWHAUS agrees to use its best efforts to perform the services requested of it by Host in accordance with this Agreement, but makes no warranties of any kind, express or implied, with respect to the services to be provided hereunder. IN NO EVENT SHALL NEWHAUS BE LIABLE TO HOST FOR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER. NEWHAUS’S LIABILITY WITH RESPECT TO ITS PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE SUMS PAID TO NEWHAUS PURSUANT TO THIS AGREEMENT OR $100, WHICHEVER IS LESS.
5. HOST RESPONSIBILITIES
Once NEWHAUS has successfully booked a reservation for the Host, it is the Host’s responsibility to ensure that the guest enjoys a Satisfactory stay at the Accommodation. The Host shall be responsible for:
The Host will coordinate the schedules of housekeepers and ensure their timeliness and effectiveness in the performance of their duties.
MAINTAINING THE ACCOMMODATION
The Host shall promptly address any home maintenance issues, including repair of home fixtures or appliances and care of gardens, pools, and hot tubs.
COORDINATION CHECK-INS OR CHECK-OUTS
Beyond ensuring that the Hosts welcome letters are sent to guests, NEWHAUS will not grant or deny permission for early check-in or late check-outs. NEWHAUS will refer all such requests to the Host.
AD VALOREM TAXES
In some cities, counties, and states, the booking platform will charge, collect, and remit ad valorem taxes to the proper authorities on behalf of the Host. In all other cases, the Host is responsible for staying abreast of all applicable tax laws and complying with them. NEWHAUS assumes no responsibility for a Host's compliance with any agreements with or duties to third parties or with compliance with applicable laws, rules, and regulations. In the event that any fees are charged to the listing due to Host's non-compliance of any kind. Host is solely responsible for the payment of those fees. NEWHAUS simply offers assistance through third party tax compliance providers.
Host shall be solely responsible for preparing Host’s own income tax return, duly reporting all income and expenses related to the rental of the Accommodations; and Host will be solely responsible for payment of any resulting income taxes. NEWHAUS is not responsible for advising Host with respect to taxes owed with regards to the Accommodations or any transactions contemplated by or facilitated by this Agreement.
LAWS AND REGULATIONS
Host shall be solely responsible for complying with all laws and regulations regarding the renting of the Accommodations to guests.
NEWHAUS shall not be responsible for evicting guests. Should any guest stay beyond the period agreed upon between NEWHAUS or Host and the guest, Host shall have sole responsibility with regards to evicting the guest and any expenses, losses, or damages associated with the guest’s stay beyond the contracted period or any eviction process.
CREDIT CARD AND BANK ACCOUNT ON FILE
Host shall maintain a current credit card or bank account information on file with NEWHAUS. Host hereby authorizes NEWHAUS to charge Host’s credit card or bank account for any amounts owed by Host to NEWHAUS under this Agreement that are not covered by the balance held by NEWHAUS.
Host shall indemnify, defend, and save NEWHAUS harmless from against, and from all liability, claims, and suits arising out of the duties lawfully performed by the NEWHAUS under this agreement other than those arising because of willful negligence or an intentional tort by NEWHAUS or its employees, agents, officers, or directors.
Host shall indemnify NEWHAUS for the assessment of any late fees resulting from charges arising from the responsibility of Host which could not be paid timely because Host failed to maintain a sufficient balance in the Host’s operating account after notice by the NEWHAUS.
Host shall indemnify and hold NEWHAUS, its employees, agents, officers, and directors (“Indemnitees”) harmless from all damage, loss, cost, or attorney’s fees Indemnitees may sustain on account of:
any damage to or destruction of any property by guests, any third party, or any terrorism, acts of nature, or acts of God,
any injury to or death of any person on or about the Accommodations from any cause whatsoever,
any error of judgment by Indemnitees or any mistake of law or fact by Indemnities, and
to the extent not covered by insurance, any alleged violation of any law (statutory, common or otherwise) pertaining to the actions contemplated by this Agreement, including but not limited to environmental protection, rent control, taxes, fair housing, or any other such laws.
This indemnity provision applies if the claim arises out of the sole negligence of NEWHAUS unless it is finally adjudicated by a court of competent jurisdiction that an officer, agent, director, or employee of NEWHAUS acted with gross negligence or willful misconduct.
6. TERM AND TERMINATION
This Agreement is effective from the first date the Host Services are used and will continue until terminated by either party in accordance with this Agreement.
This Agreement is of an indeterminate term if no specified term is stated.
This Agreement is for a term certain if a termination date is stated either on the signature page or on the covering communication by which this Agreement is accepted, provided that the initial term may not be less than one year. No term certain can be for less than one year. If this Agreement is for a term certain, then it will be automatically renewed for successive one-year periods unless written notice is delivered to the other party not less than 30 days prior to the expiration of the current term.
TERMINATION BY NOTICE
If this Agreement is in regards to managing bookings for less than 5 units, either party to this Agreement may elect to cancel or terminate this Agreement with or without cause by giving 1 (1) day’s prior written notice to the other party. Termination by Notice must be given in the form of writing (email is acceptable).
If this Agreement is for a term certain, termination of this Agreement may be effected only for cause and only after written notice of the alleged cause and an allowance of not less than 30 days to correct the alleged cause.
Should NEWHAUS modify any fee or policy, then Host may terminate this Agreement as for cause within 30 days of receipt by Host of written notice of the change.
Upon termination of this Agreement, NEWHAUS will cease providing any Host Services to the Host on the date of termination. On termination of this Agreement:
Copies of all records required to be kept by NEWHAUS under this Agreement shall be delivered to Host upon request.
All supplies, equipment, or other property owned by Host and in NEWHAUS’s possession shall be immediately delivered to Host.
NEWHAUS shall cease taking reservations for the Accommodations.
Host shall honor all reservations that have been made for the Accommodations.
NEWHAUS shall deliver any amounts remaining in the Host’s account with NEWHAUS to Host, minus expenses and fees owed to NEWHAUS under this agreement, provided that NEWHAUS may keep a temporary reserve to cover known liabilities and may keep any fees owed to NEWHAUS under this Agreement for future reservations that were made prior to the termination of this Agreement, as if those reservations had resulted in guest stays.
The agency relationship created under this Agreement shall immediately cease, and NEWHAUS shall have no further responsibility to act for or on behalf of Host, except as NEWHAUS and Host may separately agree.
This Agreement, and the Terms into which this Agreement is incorporated set forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all other oral or written representations, marketing information, and understandings.
If either party breaches any term of this Agreement and the other party decides to take no action or neglects to do so, then the respective party will still be entitled to take action and to enforce their rights and remedies for any other breach.
If any of the provisions, or portions thereof, of this Agreement, are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
RELATIONSHIP OF PARTIES
The parties are independent contractors under this Agreement and no other relationship is intended. Specifically, without limitation, there is to be no inference of a partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship. Neither party shall act in a manner which expresses or implies a relationship other than that of an independent contractor, nor to bind the other party. This Agreement establishes and constitutes only a Service Agreement between the parties.
Neither party shall directly or indirectly assign, sell, or otherwise transfer all or any part of the legal or beneficial interest or all or any part of the rights or obligations created by this Agreement without first obtaining the written approval of the other.
All notices, reports, and statements required to be sent hereunder to either party by the other shall be mailed to the address set forth herein, sent to email addresses provided by the parties, or such other email address or mailing address as may be subsequently specified in writing.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
Unless mutually agreed otherwise, jurisdiction for the resolution of any dispute shall be in the state in which the Accommodation is located (“Jurisdiction”); and the venue is to be in the nearest major city to the location of the Accommodation.
NEWHAUS and Host agree to try in good faith to settle the dispute by voluntary mediation before resorting to court action or arbitration.
In the event of a dispute between the parties concerning the terms of this Agreement that is not resolved by mediation, such dispute shall be resolved as set forth in the Terms submitted to Arbitration pursuant to the rules of the American Arbitration Association, unless the Jurisdiction provides for the use of a retired judge to handle litigation, in which case the matter is to be tried before a retired judge.