Updated as of August 21, 2018
This Merchant Space Rental Agreement (the “Agreement”) is between:
ARTISTS & FLEAS BROOKLYN, LLC (“A&F”), a New York limited liability company, with offices at 223 Bedford Avenue, #509, Brooklyn, New York 11211;
and Merchant as indicated on your submitted online 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 Email”; and (2) you accept Artists & Fleas’ offer to participate in the Market by paying the Rental Fee in accordance with the Offer Email (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 Email; (iii) A&F’s Confirmation Email to you (the “Confirmation Email”); and the Merchant Rules & Regulations posted on the A&F website (the “Rules & Regulations”). This Agreement sets forth the entirety of the parties’ respective rights and obligations in connection with Merchant’s operation of a space at A&F’s Williamsburg, Brooklyn Market located at 70 North 7Th Street, New York, New York 11249 (the “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 Email, 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 Email, 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 EMail shall be deemed the “Effective Date” of this Agreement.
(a) Rental Fee. To bind this Agreement and reserve a space 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 Email. To the extent not otherwise provided in the Offer Email, the rate is currently $140.00 per space per day. The Space Rental Fee is non-refundable.
(b) Method of Payment. Vendor may remit the Rental Fee to A&F via PayPal by remitting payment to firstname.lastname@example.org. Vendor shall include the Term designated within the Offer E-mail with any PayPal payment.
(c) Timing. The Rental Fee must be received by A&F no later than eight (8) days prior to the commencement of the Term in order to participate, although A&F may, in its sole discretion, accept a later payment pending availability. If the Term is sold out prior to receipt of payment of the Rental Fee, the Merchant will receive a credit valid for three months from the commencement of the original Term; provided however that Vendor cannot use the credit during November or December.
(2) Modification of Term. Merchant and A&F may mutually agree at any time to extend or modify the Term. Any extension or modification must be agreed to in writing, which such writing may be by an email from A&F confirming an extension. This Agreement shall continue to govern any such extension or modification.
(3) 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) space (approximately 35 square feet) (the “Space”) unless otherwise noted. Merchant will be advised as to the location of the Space on Thursday 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 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, sub-licensing, subletting or sharing of the Space to other merchants or any other third parties in any form whatsoever. In addition, the 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.
(4) Merchandising & Display Standards.
(a) 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 merchant 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 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. Displays built against the walls or columns will be limited to 6’ in height and displays built in free-standing spaces will be limited to 6’ in height. Any structures built between neighboring booths cannot exceed 6’ in height. Merchant shall not build walls, hang curtains or mount fixtures or grid-walls that are wider than 3’ across so as to keep the space open and maintain clear sight-lines between adjacent booths.
(5) 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 “Williamsburg Vendor Rules and Regulations” (posted on A&F’s website and 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.
(6) Use of Tradename; Name; Images; Likeness. A&F shall be entitled to use the tradename, names, likeness, images and other media representations of Merchant and Merchant’s employees, agents and guests (“Merchant Parties”) for purposes of marketing and advertising the Market for the Company’s website, social media, print advertising, and in any and all media now or hereafter devised without any payment to Merchant or the Merchant Parties. In furtherance of the above Merchant agrees on behalf of itself and the other Merchant Parties, that in connection with A&F’s advertising and marketing, A&F shall have the right to take and use photographic images, video footage, graphic images and sound recordings of Merchant Parties at the Company’s marketplace.
(7) 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.
(8) 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.
(9) 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).
(10) Subject to Overlease; Termination. In the event that at anytime during the Term (i) A&F is required to vacate the Market for any reason; (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 seven (7) days written notice to Merchant, whereupon Merchant shall be required to vacate the Space as of the termination date set forth in the notice. 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.
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 Artists & Fleas:
Artists & Fleas Brooklyn, LLC
190 Bedford Avenue, #509
Brooklyn, NY 11249
Attention: Ronen Glimer, Manager
If to Merchant to the address or e-mail address specified in Vendor’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 New York, 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 Kings or New York County, New York, 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, 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 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 signature of any party shall be considered for those purposes as an original signature. Any such electronic, fax or pdf document shall be considered to have the same binding legal effect as an original document.