Landlord and Tenant agree to the following Terms and Conditions, as the same may be modified and updated from time to time, related to the use of all Fourpost Inc. locations and services.
1. Demise of Premises: Subject to all of the terms and conditions hereof, Fourpost Inc.. (“Landlord”) rents to Creator (“Tenant”) space or spaces specified in the Order Form (“Space”) which contains the agreed Shape Type, Shape Number, Shape Location (“Shape”) and not limited to the Fourpost Location (“Center”).
2. Use: (a) The Space may be occupied and used by Tenant solely for the purpose stated in the Order Form, and for no other purpose. Addition of product other than those specified in the Order Form is subject to Landlord's advance written approval, in Landlord's sole discretion. (b) Tenant shall use the Space under the trade name specified in the Order Form; and said trade name shall not be changed at any time during the term without prior written consent by Landlord. (c) Tenant has made its own determination of the suitability of the Space and the Center for Tenant's use and business, and acknowledges that it is entering into this Lease based solely on its own investigation and not based on any representations or warranties of Landlord or its representatives. Tenant acknowledges that Landlord has made no representations to Tenant as to sales volume. (d) Tenant shall at all times maintain the Space, including all lighting, walls, carpets, security devices, accessories, and other portions thereof, in good condition and repair, at Tenant's sole cost and expense. (e) Tenant shall comply with all laws, rules, regulations, orders, ordinances, directions and requirements of any governmental authority or agency, now in force or which may hereafter be in force, including without limitation those which shall impose upon Landlord or Tenant any duty with respect to or triggered by a change in the use or occupation of, or any improvement or alteration to, the Space. (f) Tenant shall not store any inventory, equipment or any other materials outside the Space, or do or permit anything to be done in or about the Space or appurtenant common areas which would constitute a nuisance or hazard, or which will in any way obstruct or interfere with the rights of other tenants or occupants of the Center or injure or annoy them. Tenant's use of display fixtures and Tenant's over-all display of goods or merchandise is subject to Landlord's approval. Landlord shall not be responsible to Tenant for the nonperformance by any other tenant or occupant of the Center of its lease or of any rules or regulations.
3. Term: Landlord's Right Of Early Termination: Tenant shall occupy and use the Space for the period as set forth in the Order Form, commencing on the Start Date and ending on the Ending Date, unless sooner terminated as herein provided. Notwithstanding anything to the contrary herein contained, Landlord may, at any time during the term of this Lease, in its sole discretion and with or without cause, elect to terminate this Lease upon thirty (30) days advance written notice to Tenant. In the event of such election by Landlord, Tenant's rental obligation set forth in the Order Form shall be apportioned as of the effective date of such termination. Tenant understands and agrees that it is receiving terms and conditions which have been requested by and are advantageous to Tenant in return for granting Landlord flexibility with regard to the Space on account of the short term of this Lease, the Landlord's right to terminate the Lease on the short notice provided herein, and the other terms and conditions hereof; Tenant understands and agrees that it has no rights to the Space beyond the term set forth herein; and Tenant acknowledges that no one has made any representations or promises to Tenant with regard to renewal or extension of the term hereof, or limiting or eliminating the Landlord's right to terminate on short notice as set forth herein, or regarding relocation or possession of other space in the Center, or in any other manner contradicting, qualifying, or limiting the express provisions hereof.
4. Monthly Rent: Late Charge: On or before the first day of each payment period specified in the Order Form, Tenant shall pay its Monthly Rent, without notice, demand or offset, at the Landlord's office address as specified in the Order Form (“Remittance Address”). The parties recognize that damages will be suffered by Landlord on account of late payment which will be extremely difficult and impractical to quantify. Accordingly, the parties have made their best estimate of damages resulting from Tenant’s failure to pay timely rent and hereby agree that Tenant shall pay Landlord as liquidated damages a sum equal to Ten Percent (10%) of any payment of Monthly Rent or Percentage Rent which is not delivered to Landlord within five (5) days after written notice that the same is past due.
5. Percentage Rent: In addition to the payment of Monthly Rent, Tenant covenants and agrees to pay to Landlord within fifteen (15) days after the close of each calendar month, without notice, demand or offset, at the Remittance Address, an amount, equal to the Percentage Rent Rate applied against Tenant's Gross Sales during each calendar month of the Lease Term (hereinafter referred to as "Percentage Rent"). Tenant hereby acknowledges and agrees, within ten (10) days after signing the Order Form, to open a point-of-sale (“POS”) account with Landlord’s selected POS provider.
6. Gross Sales: As used herein, "gross sales" means the revenue received from all goods, wares and merchandise sold, and the revenues received from all services performed, by Tenant or any other person or entity in, at, or from the Space, for cash, credit or otherwise, without reserve or deduction for uncollected amounts, including but not limited to sales and services (i) where orders originate in, at, or from the Space, regardless of where delivery of performance is made, (ii) pursuant to mail, telephone, telegraph orders or otherwise received or filled at the Space, (iii) resulting from transactions originating in, at or from the Space, and (iv) deposits not refunded to customers. Excluded from Gross Sales shall be: (i) refunds to customers on transactions otherwise included in Gross Sales; and (ii) sales, excise or similar tax imposed by governmental authority and collected from customers and paid out by Tenant. No other taxes or other expenses shall be deducted from Gross Sales.
7. Tenant's Book and Records: Tenant acknowledges and agrees to provide Gross Sales data and information in accordance with Landlord’s selected POS provider’s Terms & Conditions. During the Term of this Lease, Tenant will only utilize Landlord’s selected POS provider for its respective Fourpost location(s) as identified in the Order Form.
8. Security/Damage Deposit: Concurrent with Tenant's execution of this Lease, Tenant shall deposit with Landlord the Security/Damage Deposit as set forth in the Order Form. Provided that Tenant opens for business as required hereunder, Landlord shall hold said monies as security for Tenant's faithful performance of each and every term and condition of this Lease, including but not limited to the payment of all rent and other sums which become due hereunder. Landlord shall not be deemed a trustee thereof and is not required to pay any interest thereon. At any time before or after the expiration or earlier termination of this Lease, Landlord may apply any or all of the Security/Damage Deposit to remedy any breaches of the Lease and to any unpaid rent or occupancy charges hereunder. Within the time provided by law, Landlord shall return the unapplied balance of the Security/Damage Deposit to Tenant.
9. Insurance: Tenant shall obtain the following coverages naming Landlord, Fourpost Inc., as additional insureds thereunder; (i) a comprehensive or commercial general liability policy including contractual liability, products/completed operation, and broad form property damage coverage, affording protection on an occurrence basis for claims arising out of bodily injury, death, and property damage, and having limits of not less than: a combined single limit of $500,000.00 per occurrence with a $1,000,000.00 aggregate limit of liability and (ii) Worker's Compensation insurance as required by the laws of the state or province where Fourpost location is located. This insurance is primary, non-contributory and includes waiver of subrogation.
10. Indemnification: Except for Landlord’s gross negligence or willful misconduct, Tenant shall save harmless, indemnify, and at Landlord's option, defend Landlord, its agents and employees, and mortgagee, if any, from and against any and all liability, liens, claims, demands, damages, expenses, fees, costs, fines, penalties, suits, proceedings, actions and causes of action of any and every kind and nature arising or growing out of or in any way connected with any occurrence on the Space, Tenant's use, occupancy, management or control of the Premises or Tenant's operations, conduct or activities in the Center or Space. This indemnification shall survive the expiration or sooner termination of the Term. In case Landlord is made a party to litigation begun by or against Tenant, excepting a bona fide action by Tenant against Landlord, Tenant shall pay all costs, expenses and legal fees incurred or paid by Landlord in connection with the litigation.
11. Supervision and Control: Tenant shall at all times during its occupancy of the Space provide sufficient supervision and maintain adequate control of its employees, guests, customers, and invitees while the same are at or about the Shape or Center, so as to prevent unlawful or offensive actions and actions which are a breach of this Lease.
12. Licenses or Permits: In the event there are any business licenses, or permits required by any governmental agency or authority with respect to the type of activity carried on and/or in use of the Space, Tenant shall be responsible for obtaining such licenses, authorizations and permits. No unlawful activities shall be permitted in the use of the Space, including but not limited to gambling. Landlord does not provide any telephone service to the Space. Tenant, at its sole cost and expense, must contract for installation and all service charges incurred for any telephone services to the Space if the same is desired.
13. Return of Space: Immediately upon the expiration or early termination of this Lease, Tenant will return the Space to Landlord and remove all of Tenant's personal property, trade fixtures, goods and effects; repair any damage caused by such removal, and peaceably yield up the Space, broom clean and in good order, repair and condition, damage by fire or unavoidable casualty and ordinary wear and tear excepted. Tenant agrees that all personal property remaining within the Space after Landlord takes possession of the Space is conclusively deemed to be abandoned by Tenant and the property of Landlord. Tenant waives its rights, if any, under any statutes or other legal doctrines requiring Landlord to remove, store, return or auction such property, and Landlord may dispose of such property as it sees fit, free of any claims of Tenant or other claiming through Tenant.
14. Fixtures and Alterations: No permanent alteration or modification of Space is permitted unless Landlord has provided its prior written approval. Tenant shall, prior to the expiration or sooner termination of this Lease, return the Space or any part thereof to its original configuration existing when delivered to Tenant. If the Space is not so surrendered at the expiration or earlier termination of this Lease, Tenant shall be liable to Landlord for all costs incurred by Landlord in returning the Space to the required condition and shall indemnify Landlord against loss or liability resulting from delay by Tenant in surrendering the Space, including, without limitation, any claims made by any succeeding tenant or losses to Landlord due to lost opportunities to lease to succeeding tenants.
15. Additional Rent: Any liquidated damages provided in this Lease or by rules and regulations promulgated by Landlord, as well as any and all other payments, fees or charges provided herein or in such rules and regulations, shall be considered to be Additional Rent which shall be immediately due from Tenant to Landlord on delivery of notice thereof.
16. No Waste, Nuisance: Rules and Regulations: Tenant agrees respect and not harm the Space or the spaces of other tenants; nor commit waste, nor create any nuisance; nor make any use of the Space which is offensive as determined by Landlord at its sole discretion; nor to do any act tending to injure the reputation of the Center and Tenant shall abide by all rules and regulations established by Landlord. All food tenants shall comply with the Food Tenant Rules and Regulations set forth below and any amendments thereto.
17. Violation of Law: If Tenant or the Space is deemed to be in violation of any province, federal, state, municipal, or local fire, building or other code or law, Tenant shall immediately cure any and all violations at its own cost and expense and immediately pay any and all costs, fines and/or penalties attributed to all such violation(s). If Tenant fails to immediately cure said violation(s), Landlord may at its sole discretion and without waiving any other rights or remedies either (a) cure the violations at Tenant's expense, to be paid by Tenant immediately on receipt of Landlord's written statement, or (b) immediately terminate this Lease without notice, opportunity to cure, or liability to Tenant whatsoever. Landlord's election to exercise the provisions of the preceding sentence, shall not relieve Tenant of paying any and all costs, fines and/or penalties attributed to any such violation, nor shall it relieve Tenant of its default.
18. Alterations, Additions, Signs: Tenant shall not make any alterations or additions, or permit the making of any holes in the walls, partitions, ceilings, or floor, or permit the painting or placing of any exterior signs, placards, or other advertising media, banners, pennants, awnings, aerials, antennas, or the like, nor cause or permit the placement of any signs, placards, or other advertising media within the Space where it is visible from outside the Space, without on each occasion obtaining prior written consent from Landlord, which may be withheld in Landlord's sole discretion. Tenant irrevocably grants Landlord permission to enter the Space, at any time, by any convenient method, without prior notice, to remove and dispose of any sign, placard, or other media which is being displayed in violation hereof, without liability to Tenant.
19. Covenant Against Infringement. Tenant covenants that it shall not use the Space for the storage, marketing, display or sale of any product or merchandise that Landlord in its sole discretion may consider to be a counterfeit, knockoff, imitation, lookalike, replica, facsimile of or in any manner an infringement upon any trademarked or copyrighted product or merchandise of any third party. The foregoing covenant is a material term of the Lease. In the event Tenant breaches this covenant, Landlord may immediately terminate this Lease, without notice, demand, opportunity to cure, or liability to Tenant whatsoever. Landlord's election to exercise the provisions of the preceding sentence shall not relieve Tenant of paying any and all costs, fines and/or penalties attributed to any such violation, nor shall it relieve Tenant of its default.
20. No Mechanic's Liens: Tenant shall not suffer any mechanic's lien to be filed against the Space by reason of any work, labor, services, or materials performed at or furnished to the Space or to Tenant, or to anyone acting in concert with Tenant.
21. Tenant Default: In the event of any failure of Tenant to pay timely any sums or to perform timely any of the terms, conditions or covenants of this Lease to be observed or performed by Tenant, or if Tenant shall become bankrupt or insolvent or file any debtor proceedings, or take or have taken in any province or state a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver of trustee of all or a portion of Tenant's property, or if Tenant makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement, or if Tenant shall abandon the Space, Landlord may at any time thereafter, terminate this Lease and Tenant's right to possession by written notice to Tenant and/or pursue all other legal remedies available to Landlord. Notwithstanding anything to the contrary contained herein, in the event of Tenant’s failure to pay timely any sums due under this Lease and or Order Form, Landlord, in addition to all other rights or remedies it may have, shall have the right thereupon or at any time thereafter to terminate this Lease by giving five (5) days written notice to Tenant stating the date upon which such termination shall be effective.
22. Assigning or Subletting: Tenant shall not sell, assign, mortgage, pledge, or in any manner transfer this Lease or any interest therein, nor sublet all or any part of the Space, nor license concessions nor departments therein. Any attempted assignment, sublease, or transfer shall be void and shall further constitute a breach of this Lease. The person identified as Tenant hereunder shall be the sole person or entity having the right to occupancy or possession, and any principals or partners who are not identified herein as Tenant, or who become principals or partners in Tenant hereafter and do not obtain written recognition as Tenant hereunder from Landlord, shall not have any rights of occupancy or possession hereunder.
23. Hours of Operation: Tenant shall be open for business during all Center hours as determined by Landlord. It is agreed that violation of this policy causes damage to Landlord the amount of which is difficult to determine. Accordingly, Landlord and Tenant have agreed that if the Space opens late or closes early, Tenant will be charged and will pay liquidated damages in the amount of $150.00 for any day on which it is not open during Center hours. Any failure to open for at least Fifty Percent (50%) of Center hours on a single day, or any non-compliance with Center hours recurring more than three (3) times in any sixty (60) day period is, in addition, a breach of this Lease on which Landlord may terminate this Lease by notice and without further opportunity to cure.
24. No Joint Venture: Nothing contained herein shall be deemed or constructed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or joint venture between the parties hereto, nor to create any fiduciary duties on the part of either party, it being understood and agreed that nothing contained herein, nor any actions of the parties hereto, shall be deemed to create any relationship between the parties hereto other than the relationship of Landlord and Tenant.
25. Limitation on Landlord Liability: There shall be absolutely no personal liability on persons, firms, or entities who constitute Landlord, or any management company acting under contract with Landlord, or any agent, employee, officer, partner, shareholder, or joint venturer of Landlord or such management company ("Landlord Affiliates") with respect to any of the terms, covenants, conditions, and provisions of this Lease, or of any other events, acts, omissions, or occurrences arising from or related to this Lease, and Tenant shall look solely to the interest of Landlord in the Center for satisfaction of each and every right or remedy of Tenant in the event of default or other liability of Landlord or Landlord's Affiliates. Such exculpation of personal liability is absolute and without any exception whatsoever.
26. Entire Agreement: Integration and Merger: Acceptance of Terms: This Lease, the Order Form, Landlord’s selected POS provider agreements, and any agreements incorporated by reference herein, are integrated agreements, containing the entire agreements between the parties as to the matters addressed herein, and incorporating all prior discussions and agreements (the “Agreements”). There are no agreements between the parties which are not contained herein, and Tenant has not received or relied on any representations from Landlord or Landlord's agents. Its terms are intended by the parties as a final expression of their agreement with respect to such terms as are included herein and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. The parties further intend that this Agreement constitutes the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial or arbitration proceeding, if any, involving this Agreement. No subsequent change, modification, or addition to this Lease shall be binding unless in writing and signed by the party to be charged. As additional consideration for this Lease, Tenant agrees that the presence of Landlord's right to terminate and any exercise of such right by Landlord is fair and reasonable, and Tenant waives any right to assert that such right or the exercise thereof is inequitable or unconscionable.
27. Time Limitation for Lawsuits: Tenant shall be barred from bringing any action or cross-action against Landlord and/or Landlord's Affiliates unless Tenant files such action or cross-action in court no later than six (6) months after the occurrence, event, act or omission from which the claim arises. This provision does not apply to Fourpost Locations in Canada.
28. Attorney's and Collector's Fees: If Landlord is required to bring or defend any litigation arising out of this Lease, or to enforce or defend the provisions hereof, Landlord shall recover from Tenant its reasonable attorney's fees and costs. Tenant further agrees to pay all of Landlord's costs of collection, including any collection fees charged by a collection agency, in the event of any default hereunder.
29. Waiver of Jury Trial: Landlord and Tenant hereby waive trial by jury in any action or proceeding brought by Landlord for possession of the Space, whether or not including a claim for damages, and in any other action arising under this Lease. Tenant shall not interpose any counterclaim or cross-complaint in any action brought by Landlord for possession of the Space or to collect rent hereunder.
30. Holding Over: This Lease shall terminate without further notice at the expiration of its specified term. Any holding over by Tenant after expiration of the Term hereof shall not constitute a renewal or extension of the Lease or give Tenant any rights in or to the Space except as expressly provided in this Lease. Any holding over after such expiration with the express written consent of Landlord shall be construed to be a tenancy from month-to-month on the same terms and conditions within the Order Form and herein specified insofar as applicable. Any holding over without Landlord's written consent (including any such holdover where Tenant claims that Landlord has given oral consent, has consented by conduct, has waived its right to withhold consent, or is estopped from withholding consent) shall constitute only a tenancy at sufferance, terminable by Landlord immediately on delivery of written notice, and during such unconsented holdover, Tenant shall be obligated to pay Landlord for each day of such holding over a sum equal to twice the Monthly Rent prorated for the number of days of such holding over.
31. Entry: In addition to any other rights of entry granted hereby, Landlord shall have the right to enter the Space (a) by any means necessary in the event of an emergency involving danger to person or property, (b) upon notice to Tenant to show the Space to prospective lenders, buyers, or lessees or to perform construction or maintenance on the Space or the building in which the Space is located. A portion of Tenant’s Monthly Rent will fund the employees, contractors and/or agents responsible for the maintenance and repair obligations and Landlord shall manage such payment.
32. Brokers: Tenant has not contracted or dealt with any broker agent, or finder in regard to this Lease, and will indemnify and defend Landlord against any claim of commission, fee, or entitlement by a broker, agent, or finder arising from the claimant's relationship with Tenant.
33. Operation of Antenna: Tenant shall not operate or maintain within the Space any antenna or other device for the transmission of wireless signal without the written consent of Landlord.
34. Miscellaneous: If any provision hereof is held to be invalid by a court of competent jurisdiction, such invalidity shall not affect, impair or invalidate any other provision hereof. No waiver of any rights hereunder shall be valid unless in writing, signed by the party to be charged, and no waiver except as specified in writing, shall waive any other rights of the party nor the party's future right to enforce the provisions waived. All notices to Tenant required or permitted by this Lease or relating to the Space may be delivered by hand delivery to the Space (to the person apparently in charge thereof), or by U.S. Mail, certified, return receipt requested (in which case, they shall be deemed to have been received by Tenant three (3) days after deposit in the U.S. Mail), or by recognized overnight courier service (in which case they shall be deemed delivered on the date of the courier service's proof of delivery), or by an electronic transmission. Time is of the essence with respect to Tenant's performance of every provision of this Lease. This Lease shall, subject to the provisions regarding assignment and subletting, bind the respective heirs, successors, executors, administrator and assigns of Landlord and Tenant. All persons constituting Tenant shall be jointly and severally liable hereunder. For USA: This Lease shall be construed and enforced in accordance with the laws of New York. Any legal action or proceeding relating to this Lease shall be instituted in a state or federal court in the county in which the Center is located. For Canada: This Lease shall be construed and enforced in accordance with the laws of Alberta, Canada. Any legal action or proceeding relating to this Lease shall be instituted in the Judicial District in which the Center is located. Landlord and Tenant agree to submit to the jurisdiction of and agree that venue is proper in the aforesaid courts in any such legal action or proceeding. The language in all parts of this Lease shall in all cases be construed as a whole according to its fair meaning, and not strictly for or against either Landlord or Tenant. All provisions hereof to be performed by Tenant are both conditions and covenants.
Any payments under the Lease should be made payable to the business entity identified as Landlord. Violation of this requirement is grounds for termination to the Lease.
Version Dated 06.10.2018