Boring but important stuff below

This Merchant Space License Agreement (the “Agreement”) is between:

1. LACKAWANNA MONTCLAIR MARKET, LLC (“LMM”), a Delaware limited liability company, with offices at 1 Lackawanna Plaza Montclair, NJ 07042 doing business as Montclair Flea and 

2. and Merchant (“you” or “Merchant”) as specified in your submitted information to the Montclair Flea Vendor Application (your “Authorization”).

The term “Agreement” as used herein, incorporates and includes the information provided in the Authorization and your payment information, the terms referenced therein and as set forth below.

This Agreement shall not bind LMM or Merchant unless and until (1) LMM offers you a space at the Montclair Flea located at 1 Lackawanna Plaza Montclair, NJ 07042 (the “Market”) by sending you an Offer (“Offer Email”); and (2) you accept LMM’s offer to participate in the Market by paying the Space License Fee in accordance with the Offer Email (the “Binding Conditions”). By completing payment of the Space License Fee, you are electronically ACCEPTING and entering into the Merchant Space License Agreement. UPON THE SUBMISSION OF PAYMENT AND SATISFACTION OF THE BINDING CONDITIONS, THIS AGREEMENT SHALL AUTOMATICALLY BECOME A BINDING AND ENFORCEABLE AGREEMENT BETWEEN YOU AND LMM.

The term “Agreement” as used herein includes and incorporates the information, terms and conditions contained within (i) your Application (ii) LMM’s Offer Email to you; (iii) this Merchant Space License Agreement; and (iv) the Market Rules & Regulations posted on the Montclair Flea website (the “Rules & Regulations”) at www.MontclairFlea.com. This Agreement sets forth the entirety of the parties’ respective rights and obligations in connection with Merchant’s operation of a space at the Market.

(1)           Creation of Binding Agreement.  This Agreement shall not bind LMM in any way unless and until (i) LMM has sent Merchant the Offer Email, which LMM 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 LMM has conditionally approved you to operate a space 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” in the amount, manner and within the time frame set forth in the Offer Email. The Rental Fee shall be as provided in the Market Portal as chosen by the Merchant. The Rental Fee is non-refundable.

(b)      Method of Payment. Merchant may remit the Rental Fee to LMM via secure booking site.   

(c)     Timing. The Rental Fee must be received by LMM before a Merchant is placed into a particular market and allowed to vend, although LMM 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; provided however that Merchant cannot use the credit during November or December.

(2)       Additional Rental Dates/ Modification of Term. Merchant and LMM may add new rental date or otherwise extend or modify the Term (a) within 14 calendar days of the Merchants upcoming market needing to be modified for a credit that may be used on future markets outside of the months of November and December, or (b) within 14 calendar days of the upcoming market needing to be modified, in writing to LMM, if accommodations can be made, at the sole discretion of LLM, credits or alterations will be made and will be confirmed in writing by LLM to Merchant. This Agreement shall continue to govern any such new rental dates or extension or modification of the Term.

(3)       Booth Space.

(a)       Assignment of Space.  Following approval by LMM and payment of the Rental Fee by Merchant, LMM shall grant to Merchant a license to use one (1) space (size and location varies) (the “Space”) unless otherwise noted.  Merchant will be advised as to the location of the Space not less than 72 hours before the Merchant reserved date. Merchant acknowledges that the size, location and configuration of the spaces may vary. LMM 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 LMM 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 LMM, LMM 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 LMM upon installation and shall be surrendered unless LMM 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. LMM 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 LMM and shall reimburse LMM promptly for all documented costs incurred in connection with the provision, installation and/or removal of furniture or other furnishings to be provided by LMM.

(4)       Merchandising & Display Standards.

(a)     Upon LMM’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  will be limited to 8’ in height and displays built in free-standing spaces will be limited to 6’ in height.  Any structures built between neighboring booths must not obstruct the adjacent booth to allow for sight-lines and cannot exceed 6’ in height or be built larger than half the width of the boundary space starting from the rear of the space and/or wall, where applicable. Merchandise and display items can be installed up to 6’ in total on either side as long as there is sufficient visibility through the display to the space beyond. For example, if a space measures 10’ x 10’ square, a Merchant shall not build walls, hang curtains or mount fixtures that are wider than 5’ across so as to keep the space open and maintain clear sight-lines between adjacent booths.

All counters, tabletops, or any other display surfaces must be 8″ back from the aisle (shoppers should not be standing in the aisle in order to shop at the Merchant’s booth).

LMM may request that changes to the set-up, presentation or configuration of a Merchant’s display be made in the course of set-up or at any time.  LMM shall provide up to two 6’ tables and one folding chair per Space. All furniture and fixtures and other display equipment must be provided by the Merchants.  Merchants are required to have tables properly covered to ensure an aesthetic market experience that is positive and complements the standard set by LMM. Merchants are prohibited from using temporary and/or collapsible garment racks and folding tables. 

For spaces with electricity - If a merchant requires any additional lighting or items to support its display and presentation of merchandise, merchant is solely responsible to bring low wattage light bulbs, fixtures and devices with power requirements not to exceed 5 amps and 1,000 watts of electricity per single space.  This includes phone/tablet chargers, cameras and any small electronics that require power. For detailed power requirements, consult online resources or manufacturer guides. If Merchant exceeds power limitations, Merchant will be asked by management to remove items altogether. NOTE: LED light bulbs are significantly lower in their wattage consumption and are recommended. 

 (5)       Merchant Responsibilities.  In addition to any other Merchant requirements or restrictions as set forth in this Agreement, Merchant must comply with the responsibilities set forth in the “Rules & Regulations” (posted on Montclair Flea’s website and made a part of this Agreement), as the same may be reasonably modified or supplemented by LMM from time to time. LMM shall not be obligated to enforce the Rules and Regulations against Merchant or any other merchant of the LMM Market or any other party, and LMM 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 LMM 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.  Merchant hereby grants to LMM the irrevocable, non-exclusive right and license throughout the world, in perpetuity 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 LMM’s advertising and marketing, LMM shall have the right to take and use photographic images, video footage, graphic images and sound recordings of Merchant Parties at the Market. Merchant shall be required to inform all of its employees and contractors of the foregoing policy and shall include in any of its employment or contracting agreements language and a release acknowledging the same and for the benefit of LMM. In addition, to the extent that LMM decides or determines to obtain specific separate photo/image signed releases from Merchant employees and staff, Merchant shall cooperate and assist LMM in obtaining the same.

(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 LMM; 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, LMM 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, LMM 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 within 12 hours of written notice and during the time specified by LMM or it will be removed and disposed of.   Merchant hereby agrees to pay, as additional charges, all attorneys’ fees and disbursements (and all other court costs or expenses of legal proceedings) which LMM 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. If Merchant “holds over” without the written consent of LMM after expiration or termination of this Agreement, in addition to any other damages available to LMM under this Agreement, Merchant shall (a) pay as holdover license fee for each day of the holdover occupation an amount equal to 200% of the daily rate based on the Rental Fee. No holding over by Merchant after the Term shall operate to extend the Term. The acceptance of any license fee or rent paid by Merchant pursuant to this section, shall not preclude LMM from commencing and prosecuting a holdover or summary eviction proceeding.

 (8)    Indemnification. Merchant agrees to indemnify and hold harmless LMM, 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 LMM, their affiliates, agent, officers, employees, or representatives.

(9)       Limitation of Liability. Merchant shall look solely to LMM leasehold interest in the Market and the proceeds thereof, for the recovery of any judgment against Merchant, and no other property or assets of LMM 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 LMM 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) LMM is required or reasonably determines for health, business or any other reasons to vacate the Market; (ii) LMM’s lease at the Market is terminated or expires for any reason; or (iii) the Market is substantially damaged by fire or casualty; then LMM 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 LMM 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.

(11)    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 LMM, the Market, any LMM staff, other Merchants or customers. In the event of a violation of any of this provision, Merchant agrees: (i) that LMM 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 LMM 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.

(12) 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 God, riots, war, terrorist act, epidemic, pandemic (including COVID-19 pandemic or similar health crisis’ 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.

(13) COVID-19 Compliance. Merchant is aware that this Agreement is being entered into following the occurrence of the COVID-19 pandemic and that LMM’s ability to open and operate the Market is subject to federal, state, and local regulations and the guidance of state health agencies. Accordingly, LMM 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.

(14) Miscellaneous.

(a)        Notice.

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 LMM:

Lackawanna Montclair Market, LLC

c/o Montclair Flea

1 Lackawanna Place

Montclair, NJ 07042

Attention:  Managing Member

[E-mail: info@montclairflea.com]

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 LMM may be given by LMM’ 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 LMM 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 LMM 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 LMM, 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 Jersey, 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 Essex County, New Jersey, 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.