SHORT TERM LEASE AGREEMENT
This Short Term Lease Agreement (“Agreement”) is entered into and effective as of the date set forth on the Summary Page between Lessor and Lessee as well as the latter’s companions and invitees.
1. Lease of Premises.
Lessor and Lessee agree that in consideration of, and subject to, the mutual agreements and payments set forth herein, Lessor hereby rents to Lessee certain premises designated and described on the Summary Page attached hereto and incorporated herein by this reference as though fully set forth herein (“Premises”), together with furniture, fixtures and the furnishings located therein as specified in “Exhibit A” herein attached.
2. Lease Period.
The term of the Agreement shall begin on the Arrival Date and Time and shall end on the Departure Date and Time (“Lease Period”), unless earlier terminated. Lessor is entitled to charge additional fees in event of default of Lessee in the Arrival and Departure Date and Time.
3. Payments.
a. Lease Fee. Lessee hereby agrees to be bound by the terms of this Agreement upon its execution.
Lessee shall make the following payments to Lessor: (i) the Initial Payment indicated on the Summary Page within five (5) natural days of the date of mutual execution of this Agreement by Lessor and Lessee (ii) the Final Payment indicated on the Summary Page by the date indicated on the Summary Page. By executing this Agreement, Lessee acknowledges and agrees that all amounts will be paid to Lessor’s bank account specified in Lessor’s Wire Transfer Information page.
All of the payments made by Lessee in accordance herewith shall be NON-REFUNDABLE once delivered to Lessor, however in the event that Lessee notifies Lessor that Lessee will not occupy the Premises for all or part of the Lease Period, the following will apply: (i) if notified to Lessor with 60 (sixty) days of anticipation, there is no penalty for Lessee; (ii) if notified to Lessor with 59 (fifty nine) days or less, to the Arrival Date, Lessor will attempt, with no guarantees, on a reasonable best efforts basis, and subject to Guest’s approval, which shall not be unreasonably withheld, to re-rent the Premises.
Lessee will be entitled to a refund of the amounts paid hereunder only if the Premises are re-rented for the Lease Period. In such case, Lessor shall refund to Lessee the amount paid by the 4 latter, deducting any and all costs, direct and indirect, including Agent or other parties’ commissions or fees, which already have been earned for services performed, and including additional commissions, incurred in connection with such re-renting of the Premises, which in any event shall not exceed the amounts paid by Lessee. In case the Premises cannot be re-rented, or at the Lessor’s sole discretion, Lessor may grant a Credit Note equal to the Lease Payments received by Lessor, for a future Lease. Any future Lease must occur within 12 (twelve) following months from the cancellation date, subject to availability and compliance with reservation policy.
b. Security/Damage Deposit. Lessor shall collect from the Lessee a Security and Damage Deposit indicated on the Summary Page by the date indicated on the Summary Page to secure Guest’s obligations hereunder. In the Event of Damages or a Default (as defined below), Lessor may retain, use or apply all or any part of the Security Deposit to compensate Lessor for any loss or damage suffered by Lessor or Premises including but not limited to any outstanding Lessee’s expenses incurred during the Lease Period or for any other money expended by Lessor as a result of the Event of Damages (see Section 9.) or Default (see Section 10.). Lessor shall return to Lessee any unused portion of the Security Deposit, if any, within 30 (thirty) natural days of termination of the Lease Period.
c. Food/Beverage. Food and Beverage’s expenses and costs are not included in the Lease Fee.
These costs and expenses are determined by Lessor. Lessor shall collect from the Lessee an estimated Food/Beverage Miscellaneous Expense Credit as specified in the Summary Page, by the date therein indicated. Within 24 (twenty-four) hours of the Lessee Departure, Lessor’s Premises manager (“Manager”) will provide Lessee with a summary statement of the food, beverage and miscellaneous actual expenses incurred during the Guest’s stay, plus 10% Food/Beverage/Miscellaneous Expense Fee (“Expense Fee”).
In the event Guest’s food, beverage and miscellaneous actual expenses, plus 10% Expense Fee exceeds the estimated Food, Beverage/Miscellaneous Expense Credit paid by Guest, Lessor’s Manager shall charge Guest’s credit card for the difference for said expenses within 24 hours of the Guest’s departure, or alternatively Lessee has the option to pay cash to Lessor’s Manager in the Departure Date, or wire funds to Lessor for said expenses within 36 hours of Lessee’s departure or if no damage to property has occurred, the expenses may be deducted from the Security Deposit, upon Guest’s choice. In the event the Guest’s food, beverage and miscellaneous actual expenses, plus 10% Expense Fee are less than the Food/Beverage/Miscellaneous Expense Credit paid by Guest, Lessor shall return to Lessee any unused portion of the Deposit within 7 (seven) days of Lessee’s departure by wire transfer to Guest’s bank account or when possible credit to the Guest’s credit card.
d. Additional Services and Goods and Reimbursement of Costs: Lease Fees do not include costs and expenses related with or arising from additional services or goods provided by the Lessor or any other third party and/or or used by Lessee. These additional costs and expenses of any additional service or good ordered and/or used by Lessee are determined by Lessor. Lessee shall be required to pay immediately upon Lessor’s request for any and all additional costs and services ordered and/or used by Guest, including, but not limited to, the following: other food and beverages; supplies; entertainment; long distance calls; in-house and nearby activities; massage and spa services; transportation fees and additional transportation provided by Lessor; nannies and babysitting; event fees; and costs to repair, replace or rebuild any portion of the Premises or fixtures, furniture and equipment which are damaged by Lessee or Guest’s invitees. Any goods, services and amenities contracted for or purchased outside of the Premises (e.g. nearby beach clubs or restaurants, golf, boat Leases etc.) shall be paid for directly by Lessee.
4. Acceptance of Premises.
By taking any of the following actions either personally or by a
representative, Lessee accepts the condition of the Premises: (i) conducting a physical walk-through;
(ii) reviewing photographs; or (iii) reviewing a written description.
5. Use of Premises. The Premises may be used and occupied only as a private residence and for no other purpose. Lessee is obliged to observe and comply with all regulations provided by Lessor or placed in Premises, including the ones attached herein as “Exhibit B”.
In the event that there are more guests than the maximum number of persons permitted to inhabit the Premises as indicated on the Summary Page, Lessee shall pay Lessor an additional USD$200.00 (two hundred dollars 00/100 legal currency in the United States of America) per extra person, per night. Lessee shall comply with all covenants, conditions, restrictions, laws, ordinances, orders and regulations affecting the Premises. Lessee shall not perform any act or carry on any practice, which could injure the Premises or constitute a nuisance. Without limiting the foregoing, Lessee shall not: (i) damage or deface the furniture, fixtures, furnishings, or other property of Lessor, or remove any of the foregoing from the Premises; and (ii) make any alterations or additions in or to the Premises. In addition, the Premises are a NO SMOKING and/or NO PET or LIMITED PET Premises. PETS are prohibited in or on the Premises without written permission of the Lessor. SMOKING is prohibited in inside spaces, however, SMOKING is permitted in outside areas. Lessee shall not allow smoking and/or pets, except for permitted pets, in the Premises, as the case may be. In the event that Lessee violates the NO PET or LIMITED PET or NO SMOKING restrictions, Lessee agrees that it would cause immediate and irreparable damage to Lessor, for which it would be difficult to calculate actual damages (e.g. the inability to completely remove smoking smells) and as a result Lessee agrees to pay Lessor as liquidated damages USD$1,500.00 (one thousand five hundred dollars 00/100 legal currency in the United States of America) for each violation of said restrictions in addition to any actual costs suffered by Lessor. The parties agree that the foregoing amount represents the good faith calculation of the actual damages by which the parties believe that Lessor would be damaged
by Lessee violating said restrictions on the use of the Premises and it is a reasonable estimate of the actual damages in light of all of the facts and circumstances.
6. Entry by Lessor.
Lessor and any of Lessor’s representatives shall have the right to enter the
Premises at any reasonable time, without disturbing Lessee or its guests, for the purpose of:
(i) examining or inspecting the Premises;
(ii) supplying staffing services and any other services to be provided hereunder;
(iii) making any repairs or for maintenance; and/or
(iv) emergencies. Lessor or Lessor’s representative will attempt to reach Lessee by phone and/or email before entry except in the case of emergencies.
7. Staffing and other Services.
Premises’ personnel may include any individual such as manager, chefs, assistant chefs and kitchen staff, service staff, concierge, housekeeping and other domestic service staff, landscaping and maintenance crew, drivers, shall be appointed by Lessor at its sole discretion, and it will confirm to the Lessee, the personnel’s availability upon execution of this Agreement.
8. Maintenance.
Lessee shall have the right to inspect the Premises and notify Lessor in writing of any damages Lessee believes to exist at the Premises or any items that are in need of repair or maintenance; provided, however, that except for such items of which Lessee notifies Lessor, Lessee agrees that as of the beginning date of the Lease Period, the Premises and all items located therein are in good and clean working order and repair. With respect to any items identified by Lessee that are in need of repair or maintenance, Lessor (or its representatives) shall make or arrange for all necessary repairs or maintenance.
9. Event of Damages.
The Lessee is responsible to return the Premises in the same condition as at the beginning of the Lease Period, normal wear and tear excepted. In accordance with, and subject to, the terms of this Agreement, any damages caused by the Lessee or its guests will be deducted from the Security Deposit, including any damage to or loss of any furniture, fixtures, furnishings, or other property of Lessor located therein. Lessee shall immediately notify Lessor of any damage to the Premises or the furniture, fixtures, furnishings, or other property of Lessor located therein. If such damages exceed the Security Deposit, Lessee shall be responsible for prompt payment of any such excess damages, and Lessor shall have the right to collect excess damages for Lessor. Lessor shall not be responsible for any damage to Guest’s personal belongings, which are maintained at the Premises. If any damage to the Premises occurs during the Lease Period, which are not caused by Lessee’s fault, then Lessor shall be responsible for arranging to have any damages to the Premises assessed and repaired.
10. Default.
Lessee shall be in default under this Agreement upon the happening of any of the
following events or conditions (each an “Event of Default”): (i) any default by Lessee in making any payment when due according to Summary Page and this Agreement; or (ii) any failure of Lessee to perform or observe any covenant, agreement, or condition of Lessee contained herein which remains uncured for three (3) natural days after written notification by Lessor for the first breach of such covenant, agreement, or condition of Lessee, and immediately for the second breach of such covenant, agreement, or condition of Lessee. Upon the occurrence of an Event of Default, in addition to any other legal, equitable, or contractual rights and remedies that Lessor may have, Lessor shall have the right to immediately terminate this Agreement. In the event this Agreement is terminated, all of the amounts paid by Lessee hereunder shall be NON-REFUNDABLE.
11. Indemnification and Waiver.
Lessee agrees to indemnify, defend, protect, and hold harmless Lessor, and as applicable, Lessor’s officers, directors, members, managers, shareholders, employees, agents, staff and any other representatives (collectively, the “Representatives”), from any and all claims, actions, proceedings, damages, liabilities, obligations, losses, costs and expenses, including attorneys’ fees and costs (collectively, the “Damages”) which are incurred in connection with, arise out of, result from this Agreement, the Lease of the Premises under this Agreement and/or are attributable to any use of the Premises by Lessee, or Lessee’s agents or invitees. Lessee hereby waives to exercise any legal action against Lessor and the Representatives for any damage to any property, or for any injury to any person, including death resulting therefrom, in or about the Premises regardless of cause or time of occurrence. Lessee hereby express and irrevocably release Lessor and
its Representative from any liability arising from any damage to Lessee’s property or any personal injury caused by third party to Lessee and invitees and companions during their stay in Premises or during the rendering of services ordered or used by Lessee and its invitees and companions.
12. Construction Area.
Lessee acknowledges that within the Punta Mita Development and Punta de Mita there may be construction work being carried out at properties nearby the Premises over which the Lessor has no control. Lessee understands and accepts that such construction shall not affect the term or enforceability of this Agreement. Further, Lessee waives any and all defenses, claims, actions, demands, damages, liabilities, losses, costs or expenses against Lessor and Lessor’s Agents and Representatives, for any inconvenience or disturbance to Lessee or its invitees caused by such construction, and/or injury to persons or property resulting therefrom, and agrees to hold harmless Lessor, Lessor’s Representatives from any and all responsibilities which may arise, out of
or in connection with such construction work.
13. Notices.
Any notice, demand, consent, election, offer, approval, request, response or other
communication (collectively, a “notice”) required or permitted under this Agreement must be in writing and either delivered by e-mail. A notice must be addressed to a party at the party’s email address as set out in the Summary Page. A notice sent by mail will be deemed given three (3) business days after it is mailed. A notice by email will be deemed delivered when sent so long as not returned undeliverable. Any party may designate, by notice to the other party, substitute e-mail.
14. Entire Agreement, Amendment.
This Agreement constitutes the entire agreement between Lessor and Lessee. It supersedes all prior written and oral statements, agreements or understandings including any prior representation, statement, condition, or warranty. Except as expressly provided otherwise herein this Agreement may only be modified by a writing executed by Lessee and Lessor.
15. Governing Law, Jurisdiction, Venue.
This Agreement shall be governed by, and construed in accordance with, the laws of Guadalajara, Jalisco, Mexico. Any dispute, controversy or claim arising from, or relating to, this Agreement shall be resolved under the laws, and in the courts of the jurisdiction of Guadalajara, Jalisco, Mexico. The parties hereby waive the right to any other venue to which they may be entitled now or in the future, due to nationality, domicile or for any other reason.
16. Severability.
In the event that any provision of this Agreement is held by any court or other authority of competent jurisdiction to be invalid, illegal, prohibited or unenforceable, such provision shall be ineffective only to the extent of such prohibition, illegality, or invalidity, without invalidating or affecting in any manner the remainder of such provision or the remaining provisions of this Agreement which shall remain valid and enforceable.
17. Successors and Assigns.
Lessee may not assign any of its rights or obligations under this
Agreement without the prior written consent of Lessor. Lessor shall be entitled to assign this
Agreement and/or any of its rights and obligations without the consent of Lessee. Subject to the foregoing, this Agreement is binding on the heirs, personal representatives, successors and/or assigns of each of the parties.
18. Waiver.
The rights and remedies of the parties to this Agreement are cumulative and not
alternative and shall not be deemed exclusive or restrictive of any other right or remedy to which the parties are entitled by law or equity. All waivers must be in writing and signed by the waiving party.
Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
19. Sale of the Premises.
In the event that Lessor sells the Premises (or enters into an agreement to do so), Lessor or the future Lessor shall have the right to terminate this Agreement provided Lessor or the future Lessor gives Lessee written notice of its election to so terminate this Agreement no less than sixty (60) natural days prior to the Arrival Date. In the event of such termination, a check for the full refund of deposits paid by Lessee to Lessor shall accompany the termination notice.
20. Counterparts.
This Agreement may be executed simultaneously in multiple counterparts each of which shall be deemed an original, and all of which, when taken together, constitute one and the same document. The signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart. All photocopy, facsimile and electronic signatures will be deemed originals. Lessee shall deliver a fully executed copy of this Agreement to Lessor within two (2) natural days of receipt of this Agreement.
The Parties execute this Lease Agreement on the dates specified below.
