MERCHANT RENTAL AGREEMENT
[updated as of May 19, 2021]
This Merchant Space Rental Agreement (the “Agreement”) is between:
- ARTISTS & FLEAS CALIFORNIA, LLC (“A&F”), a New York limited liability company, with offices at 70 North 7th Street, Brooklyn, NY 11249;
- and MERCHANT as indicated on your submitted on-line Application (“you” or “Merchant”).
This Agreement shall not bind A&F or Merchant unless and until (1) Artists & Fleas offers you a space at the Market by sending you an “Offer E-mail”; and (2) you accept Artists & Fleas’ offer to participate in the Market by paying the Rental Fee in accordance with the Offer E-mail (the “Binding Conditions”). IMMEDIATELY UPON THE SATISFACTION OF THE BINDING CONDITIONS, THIS AGREEMENT SHALL AUTOMATICALLY BECOME AN EFFECTIVE AND BINDING CONTRACT BETWEEN A&F AND Merchant.
The term “Agreement” as used herein includes and incorporates herein the information, terms and conditions contained within (i) the Application (ii) A&F’s Offer E-mail; (iii) A&F’s Confirmation E-mail to you (the “Confirmation Email”); (iv) this Merchant Space Rental Agreement; and (v) the Merchant Rules & Regulations (the “Rules & Regulations”). This Agreement sets forth the entirety of the parties’ respective rights and obligations in connection with Merchant’s operation of a booth space at A&F’s Bay Area Market located at Fourth Street Berkeley with an address of 1919 Fourth Street, Berkeley, CA 94710 (the “Market”) referred to herein as a “Market”.
(1) Creation of Binding Agreement.
This Agreement shall not bind A&F in any way unless and until (i) A&F has sent Merchant the Offer E-mail, which A&F may or may not send in its sole discretion and (ii) Merchant has accepted the offer by payment of the Rental Fee as set forth below. The Offer E-mail, if sent, will set forth the dates on which A&F has conditionally approved you to operate a booth at the Market (the “Term”). The date of the Offer E-Mail shall be deemed the “Effective Date” of this Agreement. A&F operates rain or shine.
(a) Rental Fee. To bind this Agreement and reserve a booth for the Term you must pay the required “Rental Fee” (which shall include the Space Rental Fee + any Equipment Rental Fee) in the amount, manner and within the time frame set forth in the Offer E-mail. To the extent not otherwise provided in the Offer E-mail, the current rate is $100.00 per space per day of the specified Term (the “Space Rental Fee”) for the market. The Space Rental Fee is non-refundable and non-transferable.
(b) Method of Payment. Merchant may remit the Rental Fee to A&F via booking website link upon acceptance. The Rental Fee must be received by A&F within the time frame set forth in the Offer E-mail in order to participate, although A&F may, in its sole discretion, accept a later payment.
(c) Additional Documentation. To the extent that A&F requests and requires additional documentation from Merchant, including but not limited to, as applicable, local licenses for operations, sales tax certificate, certificates of authority, certificates of insurance or applicable waivers etc. Merchant shall provide true and accurate copies to A&F within the time frame requested by A&F and shall maintain the validity such licenses, certificates and waivers. Merchants must have a Seller’s Permit from the California State Board of Equalization and a Business License.
(2) Booth Space.
(a) Assignment of Space. Following approval by A&F and payment of the Rental Fee by Merchant, A&F shall grant to Merchant a license to use one (1) booth space (the “Space”). Merchant will be advised as to the location of the Space on or before the Friday prior to the start of the Term or upon arriving at the Market during the appointed Merchant set-up period on the selling day. Merchant acknowledges that the size, location and configuration of the Merchant spaces may vary. A&F shall be entitled, in its sole discretion, to market, position and determine assignment of spaces to all merchants, including the Merchant, within the Market; and provided further that Merchant hereby accepts all such determinations as final. Merchant may not exceed the footprint of Merchant’s designated Space.
(b) There is no transfer, assignment, sublicensing, subletting or sharing of the Space to other Merchants or any other third parties in any form whatsoever. In addition, Merchant shall not market, display or sell merchandise of any third parties. In addition to any other remedies or recourse that A&F may have hereunder or at law, if merchandise being displayed is determined to belong to a party other than the Merchant, without prior written approval from A&F, A&F shall be entitled to terminate Merchant’s rental and require that Merchant immediately vacate the Space and leave the Market.
(c) All affixed installations to the Space shall become the property of A&F upon installation and shall be surrendered unless A&F elects to relinquish such rights or require removal thereof at Merchant’s sole cost and expense. Any objects of personal property left inside or outside of the Space will be discarded, at Merchant’s sole cost and expense. A&F will not be liable for any damage to or loss of objects or property left in these areas. Merchant is to keep the Space clean, at Merchant’s sole cost and expense, in a manner satisfactory to A&F and shall reimburse A&F promptly for all documented costs incurred in connection with the provision, installation and/or removal of furniture or other furnishings to be provided by A&F.
(3) Merchandising & Display Standards. Upon A&F’s approval, Merchant shall be entitled to commence set-up of its booth and display as set forth below. Merchant shall use its best efforts when constructing displays to minimize any disturbance to the other Merchants operations. Further, Merchant shall be responsible, at its sole cost and expense, to repair any damage and disruption Merchant may cause to the Market or other merchant’s booths or operations. Merchant shall be considerate of their neighboring Merchants when constructing displays and sets both in terms of creating displays that may obstruct sightlines in ways that are egregious or un-neighborly; as well, being mindful of the overall aesthetic experience of the Market in considering display items, materials, props, etc.
(4) Merchant Responsibilities. In addition to any other Merchant requirements or restrictions as set forth in this Agreement, Merchant’s must comply with the responsibilities set forth in the “Bay Area Merchant Rules and Regulations” (made a part of this Agreement), as the same may be reasonably modified or supplemented by Artists & Fleas from time to time. Artists & Fleas shall not be obligated to enforce the Rules and Regulations against Merchant or any other Merchant of the A&F Market or any other party, and Artists & Fleas shall have no liability to Merchant by reason of the violation by any other merchant or other party of the Rules and Regulations; provided, that Artists & Fleas shall not enforce the Rules and Regulations in a manner which discriminates against Merchant (it being understood that rules may have varying impact on merchants, taking into account differences in their use and business operations). If any Rule and Regulation(s) shall conflict with any provision in the body of this Agreement, such provision of this Agreement shall govern.
(5) Events of Default. This Agreement and the license hereby granted are subject to the limitations that upon the occurrence, at any time during the Term, of any one or more of the following events (referred to as “Events of Default”):
(a) if Merchant shall default in the observance or performance of any term, covenant or condition of this Agreement; or
(b) if Merchant shall default in the observance or performance of any term, covenant or condition on Merchant’s part to be observed or performed under any other agreement with A&F; or
(c) if Merchant shall file a voluntary petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall make an assignment for the benefit of creditors;
then, in any of said cases, A&F may, at its option, immediately terminate this Agreement and the Term; provided that Merchant shall remain liable for damages and shall forego any prepaid fee and security deposit. In addition to the foregoing, A&F and its agents may immediately at any time after such Event of Default or after the Expiration Date re-possess the Space, dispossess Merchant and any other persons from the Space and remove any and all of their property and effects from the Space. Merchant hereby agrees to pay, as additional charges, all attorneys’ fees and disbursements (and all other court costs or expenses of legal proceedings) which A&F may incur by reason of, or in connection with any action or proceeding to terminate this Agreement or in connection with any Event of Default by Merchant under this Agreement.
(6) Indemnification. Merchant agrees to indemnify and hold harmless A&F, its affiliates, officers, employees, and representatives from and against any and all losses, lawsuits, judgments, causes of action, costs, damages, claims (actual or alleged) and expenses resulting from claims for bodily injury, death, property destruction, or property damage arising out of or incidental to or in any way resulting from the acts or omissions, whether negligent or otherwise, of the Merchant, its employees, subcontractors, or agents, if any, in performance under this Agreement and the use of its Space at the Market and in the common areas of the Market during the Term unless such bodily injury, death, property destruction, property damage, or personal injury is determined to be the result of the negligence or intentional misconduct of A&F, their affiliates, agent, officers, employees, or representatives.
(7) Limitation of Liability. Merchant shall look solely to A&F leasehold interest in the Market and the proceeds thereof, for the recovery of any judgment against Merchant, and no other property or assets of A&F and its members, officers, directors, or affiliates shall be subject to levy, execution or other enforcement procedure for the satisfaction of Merchant’s remedies under or with respect to this Agreement. In no event shall A&F and/or its affiliates and/or their respective members, managers, officers, employees, agents or representatives be liable to Merchant or any other person or entity for consequential, special, indirect, incidental, or punitive damages, costs, expenses or losses (including without limitation lost profits, loss of business, anticipatory profits and opportunity costs).
(8) Subject to Overlease; Termination. In the event that at anytime during the Term (i) A&F is required or reasonably determines for health, business or any other reasons to vacate the Market; (ii) A&F’s lease at the Market is terminated or expires for any reason; or (iii) the Market is substantially damaged by fire or casualty; then A&F shall be entitled terminate this Agreement by providing not less than five (5) days written notice to Merchant. In such event, any monies heretofore delivered by Merchant to A&F for periods following the termination date, including, without limitation, the relevant portion of the Space Rental Fee, shall be promptly returned to Merchant following Merchant’s vacating the Space in accordance with this Agreement.
(9) Non-Disparagement. Merchant covenants and agrees that during the Term of this Agreement and for one (1) year thereafter, Merchant will not knowingly permit, do or commit any act or thing, including but not limited to, communicating, publishing, posting, disseminating to third parties, whether orally or writing, and in any media, including social media channels, emails or otherwise, that would degrade, disparage, slander, libel or harass Artists & Fleas, the Market, any Artists & Fleas staff, other Merchants or customers. In the event of a violation of any of this provision, Merchant agrees: (i) that Artists & Fleas will be subject to irreparable harm entitling them to seek immediate injunctive or other equitable relief including, without limitation, a temporary restraining order and/or preliminary injunction precluding Merchant from violating the provisions of this section; and (ii) that Merchant will be liable to Artists & Fleas for its attorney’s fees and costs incurred in pursuing such relief and that Merchant will not under any circumstances be entitled to attorney’s fees.
(10) Force Majeure. Neither Party shall be liable for any delay or default in performing hereunder if such delay or default is caused by, but not limited to, acts of G-d, riots, war, terrorist act, epidemic, pandemic (including COVID-19 pandemic and related governmental responses), quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, generalized lack of availability of raw materials or energy and/or any other cause beyond the reasonable control of the party whose performance is affected. For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party’s financial inability to perform its obligations hereunder. Notwithstanding the occurrence of any such force majeure events that may prevent or impact Merchant’s operations and use of the Space and/or result in the Market closing, Merchant shall remain obligated to pay for the use of their Space throughout the Term and there shall be no abatement of Rental Fees or any other fees hereunder for such events.
(11) COVID-19 Compliance. Merchant is aware that this Agreement is being entered into during the occurrence of the COVID-19 pandemic and that A&F’s ability to open and operate the Market is subject to federal, state, county and local regulations and the guidance of state health agencies. Accordingly, A&F will determine, publish from time to time and maintain certain protocols at the Market in order to be in compliance with applicable regulations and to promote safe and best practices designed to mitigate against the spread of COVID-19. Such protocols may include social distancing, wearing of masks and limiting numbers of people. Merchant agrees to abide by any such protocols and to ensure that its individual employees also observe such protocols and safety measures.
All notices, demands, consents, approvals, waivers or other communications which may or are required to be given by either party to the other under this Agreement (each, “Notice”) shall be in writing and shall be delivered by (a) personal delivery, (b) a nationally recognized overnight courier, or (c) e-mail, in each case addressed to the party to be notified as follows:
If to A&F:
Artists & Fleas California, LLC
70 North 7th Street
Brooklyn, NY 11249
Attention: Market Manager
If to Merchant to the address or e-mail address specified in Merchant’s Application.
Either party may from time to time designate a different (or additional) address(es) for Notices by at least 5 days prior Notice to the other party. Notices from A&F may be given by A&F’ attorney, and Notices from Merchant may be given by Merchant’s attorney. Each Notice shall be deemed to have been given on the date such Notice is actually received as evidenced by a written receipt therefor from the personal delivery service, or national courier service, as applicable, and in the event of failure to deliver by reason of changed address of which no Notice was given or refusal to accept delivery, as of the date of such failure or refusal as evidenced by a written receipt therefor from the personal delivery service, or national courier service, as applicable.
(b) Severability. If any term or provision of this Agreement, or the application thereof to any person or circumstances shall to any extent be invalid or unenforceable, the remainder of this Agreement, shall not be affected, and each provision of this Agreement shall be valid and shall be enforceable to the extent permitted by law.
(c) Survival. All obligations and liabilities of A&F or Merchant to the other which accrued before the expiration or other termination of this Agreement and all such obligations and liabilities which by their nature or under the circumstances can only be, or by the provisions of this Agreement may be, performed after such expiration or other termination, shall survive the expiration or other termination of this Agreement.
(d) Amendments. This Agreement may be supplemented, amended, or modified only by the mutual written agreement of the Parties.
(e) Merger. This Agreement embodies the entire understanding between the parties with respect to the subject matter hereof, and all prior agreements, understanding and statements, oral or written, with respect thereto are merged in this Agreement.
(f) Successors. This Agreement shall be binding upon and inure to the benefit of A&F its successors and assigns, and shall be binding upon and inure to the benefit of Merchant, its successors, and to the extent that an assignment may be approved by A&F, Merchant’s assigns.
(g) Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal Laws of the State of California, without giving effect to any principles of conflicts of laws. Each Party hereby irrevocably submits to the jurisdiction of any State or Federal Court sitting in Berkeley or Alameda County, California, in respect of any suit, action or proceeding arising out of or relating to this Agreement, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of such courts.
(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be taken to be an original; but such counterparts shall together constitute one and the same document.
(i) Electronic/Fax/PDF Same as Original. For purposes of negotiating and finalizing this Agreement (including any subsequent amendments thereto) any offer and acceptance via electronic means (including, but not limited to, clicking-thru or checking the box on the A&F website or via email), or any signed document transmitted electronically, or by fax machine or as a pdf via email shall be treated in all manner as an original document. The click-thru, check-the-box or signature of any party shall be considered for those purposes as an original signature. Any such electronic, fax of pdf document shall be considered to have the same binding legal effect as an original document.
Updated as of May 19, 2021
RULES & REGS – Bay Area Market
Artists & Fleas California, LLC Bay Area Market Merchant Rules and Regulations
These Merchant Rules and Regulations govern merchant conduct and the rental of booth space at each of Artists & Fleas California, LLC’s (“A&F”) Bay Area Market location at Fourth Street Berkeley with an address of 1919 Fourth Street, Berkeley, CA 94710 referred to herein as the “Market”. Merchants must comply with, and cause their employees, contractors, agents and guests to comply with these Rules and Regulations. Artists & Fleas (A&F) may modify these Rules and Regulations from time to time for the good order, safety, care and cleanliness of the Market.
The Rules and Regulations are made a part of each Merchant Space Rental Agreement that each Merchant has entered into with A&F.
(1) Use of Space.
(a) Assigned Space.
Spaces are assigned to merchant by A&F on or prior to the applicable Market dates. Merchants cannot assign their space to others.
Each space measures approximately 10’ x 10 at the Bay Area Market but size, location and configuration of individual spaces may vary. For example, some spaces will be free-standing, some will have a fence or other structural element. Merchants that are assigned space(s) against a fence are permitted to hang merchandise on the fence but are not permitted to make any alterations to the space that may be permanent or cause damage to existing structures. Please be advised that merchandise set-up cannot exceed the parameters of any assigned space.
We encourage Merchants to plan their merchandise set-up in advance. It is essential that Merchants leave room for entry and exit to their assigned space. Therefore, Merchants may visit the Market prior to their scheduled dates of sale in order to view the space(s) and determine how to create the best display and maximize their use of the space.
(b) Permitted Merchandise.
Merchants may use the assigned Space only for the marketing, promotion and sales of “Permitted Merchandise,” meaning only the products and/or merchandise identified and described by Merchants in the Application and approved by A&F. Merchants are not permitted to sell any additional or different merchandise without prior written approval by A&F. A&F may require Merchants to remove any non-permitted merchandise in its sole discretion at any time.
(c) Operating Dates & Market Hours.
The Market is generally open to the public from 11AM-5PM on the scheduled Saturday, excepting only any days that the Market is closed, and any occasional delays or early closings as A&F shall, in its sole discretion, close for inventory review, renovations, or repairs to the Market. A&F operates rain or shine. Except as otherwise provided below, Merchants only have the right to enter and use their assigned space during the Hours of Operation.
(2) Merchant Load-In/Set-up.
(a) Merchant Load-In.
Merchant may access its assigned space for load-in/set-up beginning at 9AM on the rental date (“Term”). Merchant must be completely set-up and ready to sell to the public no later than 11am. If Merchant fails to show up on time (i.e., arrival and set up prior to the required time), A&F may, within its sole discretion release the reserved space and prohibit Merchant from selling that day; Merchant’s pre-paid Rental Fee will not be returned. Merchant may also access their assigned space for load-in/set-up as follows:
(b) Merchant Load-Out/Tear Down.
Tear down and/or load-out may only commence once the selling day ends and the Market is closed to the public. Merchant may not close for business at the end of any selling day prior to the closing time, unless Merchant has obtained prior written approval from A&F expressly permitting such.
Merchants must completely remove all merchandise and/or items within the Space no later than 1 hour after closing on Saturday evening. Any items and/or merchandise remaining in the Space will be discarded after 6:00pm on Saturday evening. Any over-sized items left behind, including, but not limited to furniture, fixtures or other merchandising materials, that are not properly disposed of may result in the assessment of an additional trash removal fee of $100.00. Merchants must leave their space in broom-clean condition.
(3) On-Site Services.
A&F does not provide equipment rentals. Merchants are permitted to bring their own tables, chairs and other equipment to set up and merchandise their products.
A&F does not provide electrical outlets for vendor use. Merchants are responsible for providing their own extension cords to connect to power sources if and where available. If any merchant requires electricity beyond what is reasonable and necessary it must obtain the prior approval of A&F. Merchants are permitted to use the Market fitting rooms and bathrooms. A&F may terminate the provision of any of the above described services in its sole discretion and without notice to Merchant at any time.
A&F does not provide additional storage. Any property remaining after the scheduled Term will become property of A&F. A&F IS NOT RESPONSIBLE FOR ANY RESULTING THEFT, DAMAGE OR DESTRUCTION OF ANY PROPERTY STORED BY VENDOR. VENDOR EXPRESSLY ACKNOWLEDGES THAT THE STORAGE OF PROPERTY AT THE MARKET IS AT VENDOR’S OWN RISK.
(d) Risk of Loss; Safety.
Merchants are solely responsible for maintaining and securing their products and or furnishings. The use of space heaters, irons, hot water kettles and other high-wattage electrical equipment is strictly prohibited. A&F may request that certain equipment not be used at its own discretion. A&F is not obligated to repair any damage to products and or furnishings on the premises nor is the Market responsible to replace any lost, damaged or stolen items.
(4) Cancellation Policy.
Artists & Fleas will not refund, transfer, or issue credit to Merchant of the Space Rental Fee after it has been paid for by Merchant for the Bay Area market. In the event of a California State or Alameda County mandated closure of non-essential retail business due to the COVID-19 pandemic or other pandemic or act of G-d, Artists & Fleas will issue a refund for any unused dates or pro-rated portion of dates thereof. Refunds will be issued via Square.
We operate rain or shine but if the conditions are not conducive to the market or the forecast guarantees rain-out conditions, we will postpone the market via email no later than 6 AM Saturday morning.
(5) Licenses and Business Practices.
Merchants are required to obtain, maintain and have copies on file of all applicable California State licenses for its operations, including, but not limited to, California Sales Tax Certificate of Authority. Copies of Certificates of Authority must be on premises but need not necessarily be displayed. Merchants selling food or beverages must obtain the appropriate Department of Health and Mental Hygiene permits and licenses. All sales of food and beverages must comply with all applicable health code requirements. In addition, to the extent that A&F requests and requires additional documentation from Merchant, including other local licenses or certificates, certificates of insurance or applicable waivers etc. Merchant shall provide true and accurate copies to A&F within the time frame requested by A&F and shall maintain the validity of such licenses, certificates and waivers. Merchants must have a Seller’s Permit from the State Board of Equalization and a Business License.
(6) Return Policy; Price List.
Merchants must have a return policy for its customers which shall be clearly communicated. Merchants shall maintain a price list with respect to its merchandise. Such Price List need not be displayed, but should be available upon request by customers or A&F.
(7) Payment Processing; QR Codes
In light of the pandemic, COVID-19, and in accordance with the guidance of State and County health officials, it is strongly encouraged that Merchants endeavor to accept “touch-less” or “contact-less” methods of payments including but not limited to PayPal QR Code, Apple Pay, Google Pay, etc.
(8) Marketing Permission.
Merchants agree to permit A&F to use the Vendor’s name, logo, product description and photographs for promotional materials and marketing purposes.
(9) No Future Obligations to Merchant.
Merchants acknowledges that A&F is under no obligation to offer Merchant the opportunity to continue its participation at the Market for subsequent dates, or in any other A&F events.