1. EXCLUSIVE APPOINTMENT - Owner hereby appoints manager as the exclusive rental manager for the residence and manager hereby accepts said appointment and undertakes to perform all of the services and responsibilities set forth herein such capacity and to comply with all provisions of this agreement. This appointment in no way precludes owner from marketing the residence in accordance with the terms of this agreement. It is understood that any expenses related to such marketing by owner will be the sole responsibility and expense of the owner.

2. NATURE OF RELATIONSHIP - Manager’s performance hereunder is as an agent and independent contractor and not as an employee of the owner. Manager’s agency will not be deemed to be coupled with an interest in or to the residence. Owner acknowledges and accepts that manager is performing and will continue to perform similar services for other owners. This creates a conflict of interest for the manager and said conflict has been clearly disclosed and understood by both parties prior to entering this agreement.

3. TERM - This agreement will become effective on the effective date and will end on the last day of the month 12 months from agreement start date.

4. ON-BOARDING PROCESS - Upon execution of this agreement, owner and manager will commence on the On-Boarding process. This process is intended to allow owner to participate in the outlined program at the earliest possible date. The costs associated with the On-Boarding process will include the following:

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1. Photography: Manager will require professional photography of the interior and exterior.

2. Home Improvements: Upon inspection of the residence, manager may determine, in its sole discretion, that certain home improvements are required if the residence is to be accepted in the program.

3. Smart Locks: Manager will source hardware and installation of a Smart Lock which is compatible with the software used by ELGS for the purposes of security and convenience at the initial cost of the owner. Manager agrees to pay the monthly software costs associated with the smart lock system.

4. Residence Standards: All residences participating in the program are required to maintain a minimum level of small wares and furnishings, fixtures and equipment (“FF&E”). These required elements are more specifically defined as “residence standards” on the attached Exhibit B. Upon a full inspection of the residence, manager will confirm that the residence processes the minimum residence standards. Owner agrees to have the home deep cleaned and power washed at an extra charge, semi-annually or as needed upon discussion with manager.

5. Maintenance Memberships: Homeowners are required to carry at least a basic level membership with “On-Site Services” which provides thequarterly replacement of air filters and batteries for smoke detectors and digital locks as well as winterizing services and winter storm surveillance. Membership with “On-Site Services” also gives the homeowner priority attention to service calls.

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5. OWNER’S LEGAL RIGHTS AND RESPONSIBILITIES -

1. Owner’s Right to Use: Owner may reserve the residence for use by owner, owners family and/or owners promotional (Non paying and/or discount) at any time during the term of this agreement.

2. Insurance Requirement: Owner agrees to maintain property insurance on the residence during the term of this agreement. Said insurance must be of an amount greater than or equal to the projected cost to replace the residence in the event of a loss. Owner agrees to provide evidence of insurance upon request.

3. No Smoking Policy: Owner and owners occupants agree to not smoke within the residence. This includes smoking cigarettes, marijuana, cigars, pipes, or any other smoking device.

4. Owner Occupant Reservations: Owner will request reservations for owner occupants either by emailing manager directly or through the online reservation system. Manager will accommodate all requested reservations from owner unless a confirmed reservation is already in place.

5. Personal Property: Owner may provide a secured locked closet(s) in the residence which will be accessible to the owner as long as each bedroom in the residence is provided a functional closet or armoire for use by guests.

6. Policy Compliance: All owner occupants are required to comply with the policies of the manager, including, but not limited to, check-in and check-out procedures, parking policies, housekeeping policies, along with no smoking policies.

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6. OWNER’S FINANCIAL RIGHTS AND RESPONSIBILITIES -

 

1. Owners Share of Net Rental Proceeds: In consideration of the owners decision to waive his or her rights to the residence in accordance with this agreement, owner will receive seventy percent (70%) of the “Net Rental Proceeds”, subject to deductions set forth in this agreement. The term “Net Rental Proceeds” will mean the proceeds actually received by the manager and paid by a rental guest for the occupancy of the residence, based on the nightly rental rate actually charged, excluding the state cleaning fee and excluding all gratuities and other incidental charges incurred by the rental guest or charged by the rental guest against the residence. For example, without limitation, telephone charges, merchandise purchase, trade commissions, credit card commissions, resort service fees, and taxes or similar governmental charges as determined by manager.

2. Association Dues: Owner agrees to remain current on any and all assessments to the properties HOA (if applicable).

3. Credit Card Authorization: As part of the execution of this agreement, owner will complete the “Credit Card Authorization” section of the “Owner Information Form”, attached hereto as Exhibit A. Owner authorizes manager to retain owner’s credit card information on file to be used for expenses associated with maintenance, other charges, and expenses authorized by or provided for under this agreement. Managers authority is limited to two-hundred, fifty dollars ($250). Amounts over $250 will require approval from owner. Owner is responsible for notifying manager of the expiration, renewal, or any other changes to the credit card on file.

4. Technology Fees: Owner accepts responsibility for all recurring technology fees specifically related to the owners participation in the rental program. Including, but not limited to software usage fees, hosting fees, online marketing fees, subscription fee, and technology service fees. These fees will be appropriately reflected on the owners portion of the “Net Rental Proceeds” report.

5. Income Tax: Owner acknowledges that the income attributable to owner from the owners share may be a taxable transaction and owner is responsible for any resulting income taxes. Owner has not relied on manager for tax advice. It is recommended that that owner consult with a competent legal counsel in connection with the tax consequences of this agreement.

6. Long Distance Service: Owner may choose to have telephone in residence if desired. Its owners responsibility to put block on long-distance phone service.

7. Utility Expenses: All expenses related to property are the responsibility of the owner. I.E.= Water, electric, gas and/or propane, internet including wi-fi, etc.

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7. MANAGER’S RIGHTS -

1. Eviction Authority: Manager is authorized to evict and remove any rental guest, their guests or any other person occupying the residence, excluding owner and occupants deemed appropriate by manager.

2. Rental Rates: Owner and manager have a shared interest as manager’s performance of the service and responsibilities described herein are intended to maximize the overall, long-term value of the residence by realizing growth in “Net Rental Proceeds” as defined above in Section 6a. In this spirit, manager will set nightly rental rates and polices as manager will determine in its sole and exclusive description and in a good faith effort to maximize the overall proceeds to the owner. Manager will have the right to reserve the occupancy of the residence at a rate less than the regularly advertised rates in circumstances such as but not limited to, extended length of stay, group discounts, company or corporate, vacation package plans, holiday, and owner referral promotional discounts.

3. Operating Policy Modifications: Manager may change certain operating policies, including the minimum stay requirement and the cancellation policy, during the term of this agreement due to market conditions or other reason as manager will determine. In the event of a conflict between owner and manager on a change to any operating policy, the manager has final and exclusive authority to make the change deemed appropriate.

4. Right to Enter Residence: Manager or its employees/staff, contractors or agents will have the right to enter the residence for all purposes set forth in this agreement or as may be deemed necessary or desirable to carry out the intent of this agreement.

5. Right to Market Residence: Manager will market and advertise the residence as manager will determine in its sole and exclusive discretion. Owner agrees to allow manager to use photographs of the residence related to marketing efforts of the program.

6. Right to Use Residence: Manager will have the authority to grant promotional discounts up to 50% of base rental rate up to 5 nights per calendar year. Additional promotion discounts are available at owners discretion of usage.

7. Right to Advertise: Manager maintains exclusive right to choose the marketing materials which are provided to guests of the property, including but not limited to Real Estate flyers and magazines and advertisements for local business.

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8. MANAGER’S RESPONSIBILITIES -

1. Owner’s Monthly Account Statements: Manager will furnish owner with monthly owners account statement on or before the fifteenth day of the following month.If the owners monthly account statements reflect a balance due to manager, owner will remit to manager the amount due within thirty days. If the statement reflects a balance owed to owner, manager will include with the statement a check made payable to owner for any amounts due to owner for the previous month. Payments will be issued via check in US dollar currency and mailed to owners designated primary contacts mailing address as defined in the attached Exhibit A.

2. Books and Records: Manager will maintain accurate books and records for all deposits and proceeds collected and for all expenses chargeable to owner in connection with this agreement.

3. Collection of Rents: Manager will collect rent from all guests and will provide all accounting services necessary for the collection of such rental revenue. Manager is specifically authorized by owner to take necessary or advisable actions to request, demand, settle, compromise, collect, and receive any costs and expenses chargeable to rental guests. Manager will proceed with any such action in its prudent business judgement at no additional expense to owner.

4. Damage or Theft: Manager will use reasonable efforts to deter damage to the Residence or damage or theft of property from the Residence and to collect from any Rental Guest all costs of repairs or replacement of those items, should theft or damage occur. Manager will promptly investigate and make a full written report as to all accidents or claims for damage or destruction to the Residence or the furnishings, fixtures or household goods by any Rental Guest (subject to the Normal Wear and Tear clause found in Section 15 of this Agreement) and will cooperate with and make any and all loss or accident reports required by any insurance company.

5. Insurance: Manager will maintain liability insurance covering its activities and those of its agents and employees under the operation of the Eufaula Lake Guest Services, LLC Rental Program. Manager recommends that Owner maintains personal property insurance, covering the contents of the Residence.

6. Lawful Compliance: Manager will comply with the requirements of the laws of Oklahoma with regard to the handling of rents and other monies, monitoring books of accounts, record-keeping and related activities.

7. Management Services: Manager agrees to perform other services including, but not limited to, check-in and check-out of all Rental Guests and Owner Occupants, distribution of keys, door codes, reservation services, accounting services, housekeeping services and linen services as described in Section 11 below, marketing and advertising.

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9. COMPENSATION -

1. Management Fee: As compensation for Manager’s services provided under this Agreement, Manager will retain thirty percent (30%) of the Net Rental Proceeds, subject to deductions as set forth in this Agreement.

2. Change in Management Fee: Manager will notify Owner in writing of any proposed changes to Manager’s compensation. Any such changes will be effective on the sixty-first (61st) day after the date of Manager’s notice, unless Owner gives Manager written notice on or before the proposed effective date following Manager’s notice, that Owner does not accept such changes, in which case this Agreement will terminate in accordance with Section 14 of this Agreement.

3. Service Fee: In the event that Manager coordinates maintenance services and/or improvements to the Residence or replaces any portion of the Residence Standards in accordance with Section 12.2, a Service Fee of five percent (5.0%) of the total expense amount will be added to the original amount and the adjusted amount will be reported on the following Owner’s Monthly Account Statement as described above in Section 8.1.

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10. RESERVATIONS -

1. Assumed Availability: Manager may assume that the Residence is available for rental occupancy for all dates that are not then reserved for Owner Occupant use and Owner will honor reservations made accordingly. Manager is not obligated to inform Owner of any changes in availability based on cancellations, no-shows, change in dates, reduced group reservation blocks, or any other similar circumstances but will provide such information upon request.

2. Extended Stays: Manager and Owner will mutually agree to rental rates for extended stays. Extended stays pertain to a Rental Guest reserving more than thirty (30) consecutive days in the Owner’s Residence.

3. “No Show” Reservations: In the event of “no show” reservations, late arrivals, early departures and/or any other instances where Rental Guests are obligated to and have paid full costs for their original intended reservation, Manager and Owner will receive their customary share of the Net Rental Proceeds as defined herein.

4. Refunds: Manager may offer a refund of all or part of the rent paid by any Rental Guest if Manager, in its sole discretion, deems a refund is necessary to retain the Rental Guest’s satisfaction. Refunds will be applied against the Net Rental Proceeds which is shared by both Owner and Manager.

5. Reservation Allocation: To the degree that the allocation of reservations is at Manager’s discretion, Manager will use best efforts to apportion available Rental Guests on a fair and equitable basis between the Residence and all other residences in the Eufaula Lake Guest Services, LLC Rental Program, as determined by Manager in its sole and exclusive discretion.

6. Taxes: Any sales, use, lodging, excise, state, local, and other taxes or similar governmental charges will be charged to Rental Guest. Manager will be responsible for administering the payment of all such applicable sales and other taxes or charges.

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11. HOUSEKEEPING - Owner engages Manager to provide housekeeping services, including general cleaning, changing linens, and other related services in the Residence. These services are categorized as Departure Cleaning Service.

1. Departure Cleaning Service: Manager will coordinate Departure Cleaning Service upon departure each Rental Guest.For Owner Occupants: If a reservation was confirmed to an Owner Occupant, the fees related to the Departure Cleaning Services will be applied to the Owner’s account and reported in the following Owner’s Monthly Account Statement. Owner enjoy a 25% discount on the departure cleaning rate that is determined for your home.

2. For Rental Guests: If a reservation was confirmed to a Rental Guest, the fees related to the Departure Cleaning Services will be deducted from their gross rental payment in the calculation of Net Rental Proceeds.

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12. MAINTAINING THE EUFAULA LAKE GUEST SERVICES, LLC STANDARD -

1. Furnishings and Small-wares: Prior to execution of this Agreement, Manager will inspect Residence to approve the Residence suitability for rental. The determination of what constitutes a rentable, first-class manner and condition (the “Lake Eufaula Guest Services LLC Standards”) will be within the sole and exclusive discretion of Manager. Owner will be responsible for furnishing and maintaining the Residence in a rentable, first-class manner and condition with complete small-wares and fixtures, furnishings and equipment (“FF&E”) which are part of the Residence Standards listed on Exhibit B.

2. Repair and Replacement: At any time during the Term of this Agreement, if Manager determines, in its sole discretion, that the condition of the Residence does not meet the Eufaula Lake Guest Services, LLC standard, be it that the Residence requires maintenance services, repairs and/or materials or that any portion of the Residence Standards should be replaced, Manager may respond in either and/or both of the following manners:

   • Minor Repair and Replacement-. If the repair and replacement is of a minor nature and projected to cost less than two hundred fifty dollars ($250.00), Manager may charge the related costs to Owner’s credit card in accordance to Section 6c above.

   • Major Repair and Replacement- If the repair and replacement is of a more major nature and projected to cost more than two hundred fifty dollars ($250.00), Manager will have the right to (a) terminate this Agreement by giving Owner written notice thereof or (b) to notify Owner in writing and specifically define the scope of work needed to bring the home up to the Eufaula Lake Guest Services, LLC Standard. Owner will have sixty (60) days from the date of such notice to complete the defined scope of work. During this period, Manager will have the option to remove the Residence from the Eufaula Lake Guest Services, LLC Rental Program. If Owner fails to complete the defined scope of work within the sixty (60) day period, then Manager will have the right to terminate this Agreement. Such termination will be evidenced by a written notice from Manager.

3. Pest Control: During the Term of this Agreement- The Homeowner is responsible for maintaining pest control at the property. Costs related to the pest control program will be the Owner’s responsibility. Scheduling of pest control service must not interfere with a guest reservation.

4. Maintenance Program: Homeowners are required to carry at least the Annual level membership with “On Site Services” which provides the quarterly replacement of air filters and batteries for smoke detectors and digital locks as well as winterizing services and winter storm surveillance. Membership with “On Site Services” also provides a weekly maintenance walk through and gives the homeowner priority attention to service calls. Upgrades to that package are available.

5. Service Fee: In accordance with Section 9c above, if Manager elects to replace any portion of the Residence Standards in accordance with this section, a Service Fee will be added to the original amount and the adjusted amount will be reported on the following Owner’s Monthly Account Statement.

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13. SALE OF THE RESIDENCE - In the event that Owner elects to market the Residence for sale, the following additional terms and conditions will apply.

1. Marketing Notification: Owner will immediately notify Manager, in writing, if the Residence is being marketed for sale and/or is listed with an agent of the Owner (the “Marketing Notification”).

2. Preexisting Reservations: Owner agrees to inform the realtor and/or prospective buyer that the sale of the Residence is subject to any reservations made prior to the date Manager receives the Marketing Notification (collectively, the “Preexisting Reservations”). Any potential purchaser must confirm in writing that all Preexisting Reservations will be honored and that the purchaser will assume all of Owner’s rights and duties hereunder until the departure of the last Preexisting Reservation.

3. Termination or Assignment: Upon the departure of the last Preexisting Reservation, this Agreement will terminate unless the new owner has elected to accept assignment of this Agreement in accordance with Section 15c below.

4. Rental Guest Privacy: Owner acknowledges the Manager’s need to respect the privacy of all Rental Guests. If the Residence is reserved and occupied at the time a potential buyer wishes to view the Residence, Manager will contact the Rental Guest for permission to view the Residence at a time specified by the Rental Guest. Manager will attempt to accommodate such showings commensurate with Rental Guest use of the Residence. If the Residence is occupied, Manager will not permit entry to the Residence for purposes of showing by Owner or Owner’s agent. Owner and/or Owner’s agent are not permitted to contact any Rental Guest directly with requests to access the Residence for the purposes of showing such Residence.

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14. TERMINATION -

1. By Either Party without Cause: This Agreement may be terminated by either party without cause at any time upon ninety (90) days prior written notice. Said termination must be conditioned upon the terms of this Agreement, including paragraphs 14e and 14f below.

2. By Either Party with Cause: This Agreement may be terminated by either party with cause at any time upon ten (10) days prior written notice if the other party is in material breach or default of its obligations hereunder; provided, however, that if the cause constitutes a breach of or a default under this Agreement which is capable of being cured, the defaulting party may avoid termination by curing the same within thirty (30) days following notice of such breach or default. Either party may specifically terminate this Agreement in the event a bankruptcy proceeding is instituted by or against the other party upon ten (10) days prior written notice.

3. Outstanding Balance: Should Owner owe Manager any monies after termination of this Agreement, sale of the Residence or foreclosure, then Owner will pay Manager any such monies owed, and Owner personally and severally guarantees Manager payment for all monies owed within fifteen (15) days after written demand from Manager.

4. Force Majeure: If the Residence or any other part of the Project is so damaged by fire, catastrophe, natural occurrences, civil commotion, war or other casualty as to render the Residence unfit for rental purposes, as determined by Manager in its sole and exclusive discretion, then all reservations that cannot be fulfilled may be cancelled and the obligations of Owner and Manager hereunder will be temporarily abated until the Residence is restored to an acceptable condition in accordance with Residence Standards as defined in the attached Exhibit E.

5. Confirmed and Existing Reservations: If this Agreement is terminated for any reason, Manager may honor all tentative and confirmed reservations of the Residence held by Manager prior to the effective date of the termination. Following the termination date, Manager will not accept any reservations for the Residence and Manager will use reasonable efforts to relocate Rental Guests reservations for the Residence to other residences under the Eufaula Lake Guest Services, LLC Rental Program.

6. Actions Upon Termination: Upon termination of this Agreement, Manager will promptly account for and deliver to Owner the Owner’s Proceeds received by Manager subsequent to the termination of this Agreement. Upon the Expiration Date or termination of this Agreement, Owner and Manager will be released from further performance hereunder; provided; however, that all rights and obligations of Owner and Manager up to and including such date, including without limitation, any reservations made prior to the Expiration Date, any rights to receive payments and the indemnification provisions contained herein, will survive the termination or expiration of this Agreement.

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15. OTHER LEGAL TERMS AND CONDITIONS -

1. Amendments: This Agreement may not be amended or modified by any act or conduct of the Parties or by oral agreement, unless reduced to a writing signed by both parties.

2. Arbitration: In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. Within 14 days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within 10 days of their appointment. The party-selected arbitrators will serve in a non-neutral capacity. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association.

3. Assignment: By the Owner - Owner may assign this Agreement only with the prior written consent of Manager and only on condition that the assignee unconditionally assumes all of Owner’s duties and obligations under this Agreement, regardless of when such duties and obligations arose. By the Manager - Manager may, without the consent of Owner, assign this Agreement to a third-party managing agent or may delegate its duties pursuant to a sub-management agreement to a third-party managing agent.

4. Binding Effect: This Agreement will inure to the benefit of and constitute a binding obligation upon the contracting parties, their successors, heirs, personal representatives and assigns.

5. Code Compliance: Residential construction activity in Oklahoma is regulated by the Oklahoma Uniform Building Code Commission. The Town of Carlton Landing has adopted the Oklahoma Residential Building Code and Fire Code as its Municipal Building Code and Fire Code. According to Oklahoma State Statute, contractors are responsible to perform according to all applicable building and fire codes, but it is ultimately the property owner’s responsibility to maintain a personal residence in accordance with applicable building and fire codes. Owner represents that, to the best of Owner’s knowledge and understanding, the Residence is being submitted to the Rental Program in compliance with applicable building and fire codes. Manager hereby makes no representation or warranties as to the compliance or non-compliance with applicable building and fire codes.

6. Confidentiality: The terms and conditions of this Agreement are confidential between the Parties and will not be disclosed to anyone else except as necessary to effectuate this Agreement or following the receipt of written permission from the other party.

7. Counterparts: This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which will constitute one and the same instrument.

8. Entire Agreement: This Agreement will constitute the entire Agreement between the contracting parties, except that the parties hereto recognize that this Agreement will be read in conjunction with the governing documents which further define the rights and obligations of the parties hereto and no variance or modification thereof will be valid and enforceable except by a supplemental agreement in writing.

9. Governing Law: This Agreement will be governed by the laws of Oklahoma without regard to conflicts of laws principles.

10. No Liability for Rental Guests: Manager is not liable for, and Owner hereby releases Manager from any liability or potential claim resulting from, the actions, non-actions or negligence of Rental Guests. Owner accepts the risks associated with allowing Rental Guests to use and occupy the Residence as related to this Agreement.

11. Mutual Indemnification: Each party hereby indemnifies, defends and holds harmless the other party, its owners, officers, employees, agents and contractors from and against any and all claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from the negligence or misconduct of the other party in connection with the terms of this Agreement.

12. No Partnership: Nothing herein contained will be deemed or construed by the parties, or by any third party, as creating the relationship of partnership or of joint venture between the Parties.

13. No Pooled Income: The terms of this Agreement do not provide for pooled income or distributions from pooled rental proceeds.

14. Normal Wear and Tear: The Parties acknowledge that all building materials possess differing levels of durability and performance. Certain materials, including but not limited to marble countertops, stainless steel countertops, unfinished wood surfaces, flooring constructed from softer woods, light colored carpet, and walls painted with a flat or matte paint finish, are less durable than other materials. Materials and finishes such as these will evidence normal wear and tear at a faster rate than other more durable materials and finishes. The Owner has elected to contribute the Residence to the Rental Program according to the terms and conditions of this Agreement and in doing so accepts normal wear and tear to the Residence as a cost of doing business. The Owner hereby forfeits the right to make a claim against normal wear and tear to the Residence resulting from any event under this Agreement.

15. Notice: All notices, requests, demands and other communications hereunder will be in writing, and will be deemed to have been duly given if (a) hand delivered, (b) three (3) days after being mailed via first class U.S. mail, postage prepaid, or (c) transmitted by electronic mail.

    • For Notices to Owner - the official notice mailing address and/or email address of the Designated Primary Contact as defined in Exhibit A.

    • For Notices to Manager - the official notice street address and/or email address is as follows:

      • Lake Eufaula Guest Services

      • Dba Carlton Landing Vacation Rentals

      • Kathryn Ham

      • 80 Lower Greenway

      • Carlton Landing, OK, 74432

      • 918-843-9401

16. Partial Invalidity: The invalidity or un-enforceability of any term or provision of this Agreement by the application of such term or provision to any person or circumstance will not impair or affect the remainder of this Agreement, and its application to other persons and circumstances and the remaining terms and provisions hereof will not be invalidated but will remain in full force and effect.

17. Section Headings and Terms: The section headings of this Agreement are for convenience of reference only, and will not be deemed to alter or affect any provision of this Agreement. When required by context, the singular will include the plural, and the use of any term is generally applicable to any gender, corporation or other entity.

18. Waiver: No consent or waiver, express or implied, by Manager or Owner to or of any breach or default by the other party in the performance by the other party of its obligations hereunder will be deemed or construed to be a consent to or a waiver of any other breach or default in the performance of such party or any other party of the same or any other of its obligations hereunder. Failure on the part of any party to complain of any act or failure to act of any other party or to declare any such party in default, regardless of how long such failure continues, will not constitute a waiver by such party of its rights hereunder.