FLEXETAILTM MOBILE UNIT (FMU) RENTAL AGREEMENT
THIS RENTAL AGREEMENT is entered into as of the “DAY” day of “MONTH”, “YEAR” by and between Flexetail LLC, a Massachusetts limited liability company, having a mailing address of “ADDRESS”, Massachusetts 02458 (“Flexetail”), and “COMPANY”, a [INDIVIDUAL/CORPORATION/LIMITED LIABILITY COMPANY, ETC.], having a mailing address of [CLIENT ADDRESS] ( “Client”) (collectively, the “Parties,” or each, individually, a “Party”).
WHEREAS, Flexetail is the creator and owner of a modular, relocatable structure consisting of approximately 140 square feet (the “FMU”);
WHEREAS, Client wishes to provide a first-class, high-quality [DESCRIBE CLIENT’S BUSINESS] retail store principally and primarily for the display and sale of [DESCRIBE TYPES OF GOODS AND SERVICES CLIENT MAY SELL] (the “Authorized Use”) under the name [TRADENAME] (the “Tradename”); and
WHEREAS, Client wishes to rent the FMU Unit for use as a retail space and Flexetail is willing to rent the FMU Unit to Client for the Authorized Use under the terms specified hereunder.
NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- Rental of Unit. In consideration of the Rental Fees defined in Section 3, Flexetail hereby rents to the Client 1 FMU Unit(s) exclusively for the Authorized Use during the Rental Term, as defined in Section 2. For the avoidance of doubt, the FMU Unit may not be used for any purpose other than the Authorized Use without the express, prior written consent of Flexetail.
- Rental Term. The term of this Rental Agreement shall commence on the day possession of the FMU Unit is delivered to Client (the “Commencement Date”) which is expected to be [START DATE], “YEAR”, and shall [extend on a day by day basis thereafter OR end on _______________, _____, YEAR], but in no event later than [DATE] (the “Termination Date”).
- Fees and Payment. In exchange for the rental services provided under this Rental Agreement, Client shall pay Flexetail a Rental Fee equal to $X payable by or before [DATE]. Client covenants and agrees to pay the Rental Fee without notice, demand or offset, to the order of Flexetail, and sent to Flexetail at 274 Park Street, Newton, Massachusetts 02458, or at such place as Flexetail shall from time to time designate in writing. In addition, if the FMU Unit is not returned in the condition it was delivered to Client, reasonable wear and tear excepted, free of all Client’s personal property and fixtures and is not, in Flexetail’s sole discretion, adequately prepared for pick up by [TIME] at the end of the Rental Period, including a failure by Client to adhere to the provisions of Section 17 hereof relating to surrender of the FMU Unit, Flexetail reserves the right to assess a fee equal to [FEE] for every [#] additional minutes it takes Client to prepare the FMU Unit (the “Late Fee”). The Late Fee shall be paid within 10 business days of the end of the Rental Term.
- Security Deposit. Upon execution hereof, Client shall deposit with Flexetail the amount of $[SECURITY DEPOSIT] (the “Security Deposit”) to be held by Flexetail as security for the performance of Client’s obligations hereunder. Within ten (10) days following the Termination Date, Flexetail shall return any unused balance of the Security Deposit to Client. In the event of a default by Client hereunder, any damage to the FMU Unit or non-compliance with Section 17 hereof relating to surrender of the FMU Unit, Flexetail shall be entitled to use all or any portion of the Security Deposit to remedy such default or repair such damage.
- Location of FMU Unit. Client represents and warrants that it has secured all necessary authorizations for the FMU Unit to be located at [DESCRIPTION OF LOCATION] (the “Authorized Location”) for the duration of the Rental Term. Unless otherwise mutually agreed to in writing, Flexetail shall deliver the FMU Unit to the Authorized Location on or about the Commencement Date and shall pick up the FMU Unit at the Authorized Location at the end of the Rental Term. Client, and any party acting with Client’s authorization, shall not move the FMU Unit to any other location besides the Authorized Location.
- Client Responsibilities. Client shall be responsible for fabrication of all necessary signage and banners, and securing any third party rights and permissions as appropriate, at Client’s sole cost and expense, the designs and specifications of which Client shall submit to Flexetail for approval. Client acknowledges and understands that its rental of the FMU Unit is not a guarantee that its Authorized Use is lawful and Client assumes all responsibility for the fair and lawful operation of its use of the FMU Unit, including, without limitation, obtaining all applicable permits, business licenses, and music licenses and complying with all applicable laws, regulations and ordinances.
- Use of FMU Unit. The FMU Unit shall be used by the Client (and only by the Client) for the Authorized Use only and for no other purpose or purposes. For the avoidance of doubt, the FMU Unit shall in no instance be used in connection with the provision or preparation of any substance or service that is unlawful under federal, state, or local law. In the event Flexetail determines, in Flexetail’s sole judgment, that the FMU Unit is not being used in accordance with the provisions of this Section, the same shall constitute a material breach of this Rental Agreement and Flexetail may immediately revoke and terminate this Rental Agreement as set forth in Section 7 hereof. Client agrees that it will not assign this Rental Agreement (without limitation, any transfer of control over Client’s operations hereunder constituting an assignment for the purposes hereof) or sublicense the whole or any part of the FMU Unit. Client shall always conduct its operations in the FMU Unit under the Tradename.
- Indemnity and Insurance. Client agrees to indemnify and save harmless Flexetail from and against all claims of whatever nature arising from any act, omission or negligence of Client or Client’s contractors, agents, servants, or employees, or arising from any accident, injury, or damage whatsoever caused to any person, or to the property of any person, occurring in or about the FMU Unit from an act or omission on the part of Client or anyone claiming by, through or under Client. Client shall also maintain a policy of commercial general liability insurance (or the successor, equivalent coverage) providing the broadest form of coverage then generally available from time to time, in which Flexetail is named as an additional party insured on a primary and non-contributory basis, with a combined single limit of at least $1,000,000 for all damage, loss and injury per occurrence. In any event, such insurance shall include coverage for liabilities contractually assumed by Client under the provisions of this Rental Agreement. Client shall deliver certificates evidencing such insurance to Licensor prior to using the FMU Unit. Client agrees to use the FMU Unit at its own risk, and further agrees that Flexetail shall have no responsibility or liability for any loss of or damage to any property of Client arising from any cause whatsoever, including, without limitation, loss by theft or otherwise. The foregoing insurance shall be written by reputable and financially sound (having a A.M. Best’s rating of at least AX, or equivalent), duly licensed insurance companies and shall be non-cancellable with respect to Licensor without at least 30 days’ prior written notice to Flexetail. Prior to the Commencement Date, and at any other time upon receipt of written request from Flexetail, Client shall furnish to Flexetail evidence of such continuous insurance coverage satisfactory to Flexetail.
- Rules and Regulations. Client agrees to use the FMU Unit strictly in accordance with the User Guideline Manual, attached as Schedule A and incorporated into this Agreement by reference. Client furthermore agrees abide by all of the following rules and regulations, all of which will be strictly adhered to by Client and all those from time to time occupying the FMU Unit.
- The FMU Unit shall be kept and maintained in a neat, clean and attractive condition at all times; and Client shall observe and perform all instructions to that end given by Flexetail or its authorized representatives.
- The entire FMU Unit shall be kept and maintained in a manner so as to prevent fire or other hazard. Licensee promptly shall repair any damage to the FMU Unit resulting from fire or other hazard.
- No alterations shall be made to the FMU Unit without Flexetail’s prior written approval. No signs shall be maintained in or about the FMU Unit unless the same shall first have been approved by Flexetail.
- Client shall not perform any act or carry on any practice which may injure the FMU Unit, or cause any offensive odor, vibration, or loud noise, (including, but without limitation, the use of loudspeakers).
- Client shall not use, handle or store or dispose of any oil, hazardous or toxic materials or hazardous or toxic wastes in or about the FMU Unit. The foregoing shall constitute a continuing covenant which shall survive the expiration of the term hereof.
If Client fails to observe any of the foregoing rules, regulations, guidelines or any obligation of Client under the provisions of this Rental Agreement, Flexetail’s representatives shall have the full right of self-help, doing or endeavoring to do any and all things which Client was otherwise required to do; and all costs and expenses thus incurred shall be promptly reimbursed by Client to Flexetail. If Client does not promptly remove any items required to be removed by Client, Flexetail may remove the same and shall not be responsible to Client for the disposition of such items.
- Default Clause. If Client defaults in any of the terms or provisions of this instrument, Flexetail may immediately revoke and terminate this Rental Agreement upon notice to a representative of Client in the FMU Unit, and this Rental Agreement shall forthwith be revoked and terminated. Upon such revocation and termination, Client shall remove all of Client’s goods and effects and the provisions of Section 16 below regarding surrender shall be applicable; and Client also shall compensate Flexetail for all payments due to the date of said termination and surrender. Moreover, unless prohibited by applicable law, Client agrees to pay to Flexetail the amount of all legal fees and expenses incurred by Flexetail arising out of or resulting from any act or omission by Client with respect to this Rental Agreement or the FMU Unit, including without limitation, any breach by Client of its obligations hereunder.
- Limitation of Liability. Client specifically agrees to look solely to Flexetail’s then equity interest in the FMU Unit for recovery of any judgment from Flexetail, it being specifically agreed that neither Flexetail nor anyone claiming under Flexetail shall ever be personally liable for any such judgment. Without limitation, the representatives of Flexetail are executing this Rental Agreement in a representative and fiduciary capacity and neither said representatives so executing nor any partner, officer, trustee or beneficiary of the estate represented shall be personally liable for any obligation hereunder. In no event shall Flexetail ever be liable to Client for any indirect, special or consequential damages suffered by Client from whatever cause.
- Notices. Whenever by the terms of this Rental Agreement notice, demand, or other communication shall or may be given either to Flexetail or to Client, the same shall be in writing and shall be sent by registered or certified mail, postage prepaid, or shall be delivered by private express carrier addressed to each party at the address set forth on the first page of this Rental Agreement (or to such other address or addresses as may from time to time hereafter be designated by the parties by like notice). All such notices shall be effective when deposited in the United States mail or delivered to a private express carrier within the Continental United States, provided that the same are received in the ordinary course at the address to which the same were sent. Any such notice, demand, or communication from an attorney acting or purporting to act on behalf of a party shall be deemed to be notice from such party provided that such attorney is authorized to act on behalf of such party.
- Interest. All payments becoming due under this Rental Agreement and not paid when due shall bear interest from the applicable due date until received by Flexetail at the lesser of: (i) four percent (4%) per annum above the base rate announced from time to time by Bank of America or its successor; or (ii) the highest lawful rate of interest permitted at the time in The Commonwealth of Massachusetts.
- No Brokerage. Client warrants and represents that it has dealt with no broker or finder in connection with the consummation of this Rental Agreement and in the event of any other brokerage or like claims against Flexetail predicated upon prior dealings with Client named herein (or any of its affiliates or principals), Client agrees to defend the same and indemnify Flexetail against any such claim.
- Patriot Act. As an inducement to Flexetail to enter into this Rental Agreement, Client hereby represents and warrants that: (i) Client is not, nor is it owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”) pursuant to Executive Order 13224 or any similar list or any law, order, rule or regulation or any Executive Order of the President of the United States as a terrorist, “Specially Designated National and Blocked Person” or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a “Prohibited Person”); (ii) Client is not (nor is it owned, controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; and (iii) from and after the effective date of the above-referenced Executive Order, Client (and any person, group, or entity which Licensee controls, directly or indirectly) has not conducted nor will conduct business nor has engaged nor will engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including without limitation any assignment of this Rental Agreement or any subletting of all or any portion of the FMU Unit or the making or receiving of any contribution of funds, goods or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation. In connection with the foregoing, it is expressly understood and agreed that (x) any breach by Licensee of the foregoing representations and warranties shall be deemed a default by Client under this Rental Agreement and shall be covered by the indemnity provisions set forth herein, and (y) the representations and warranties contained in this Section 14 shall be continuing in nature and shall survive the expiration or earlier termination of this Rental Agreement.
- FMU Unit Amenities. Included with the FMU Unit are the following, at no additional cost to Client: electricity, HVAC, LED lights, retractable doors and windows, WIFI access, and BOSE® sound BAR.
- Surrender. Client recognizes that Flexetail must arrange for a replacement user in advance of the expiration or earlier termination of the term of this Rental Agreement, and incident to consummating a new agreement for use of the premises licensed hereunder, Flexetail may be required to guarantee that any new renter may commence operations in the FMU Unit promptly upon the expiration or earlier termination of this Rental Agreement. Accordingly, Client specifically agrees to remove all of its personal property, goods and effects from, and to surrender and cease its use of, the FMU Unit not later than the date of the expiration or earlier termination hereof in order to avoid substantial, and perhaps irreparable, harm to Flexetail. Client agrees that Flexetail shall have all remedies available at law or in equity for Client’s failure so to do. In addition to such remedies, Client further agrees that any holding over by it which has not been consented to in writing by Flexetail shall be solely at Client’s risk but shall be at three (3) times the Basic Charge and other charges in force and applicable immediately prior to the expiration or earlier termination of the term hereof, prorated on a daily basis, and shall otherwise be on the terms and conditions set forth in this Rental Agreement so far as applicable. Any property of Client, including any of its said merchandise and other goods and effects, which Client fails to promptly remove from in and about the FMU Unit upon the expiration or earlier termination of the term hereof and such failure to remove shall continue after Client has been given notice thereof shall be considered abandoned by Client and shall become the Flexetail’s exclusive property or may be disposed of by Flexetail, at the Flexetail’s option and at the Client’s cost, without any liability to or recourse by Client (or anyone claiming by, through or under Client).
- Miscellaneous. All negotiations, considerations, representations, and understandings between Flexetail and Licensee are incorporated herein and may be modified or altered only by agreement in writing between Flexetail and Licensee and, without limitation, no act or omission of any employee or agent of Licensor shall alter, change, or modify any of the provisions hereof. Flexetail and Licensee acknowledge and agree that they intend by this instrument to create a license only and not a leasehold estate or any other interest in real property. Client specifically confirms and acknowledges that before entering into this Rental Agreement, Client has made its own observations, studies, determinations and projections with respect to the Authorized Use Client intents to use the FMU Unit for and all other factors relevant to Client’s decision to enter into this Rental Agreement and neither Client nor any representative of Client has relied upon any representation by (or any “conversation” with) Flexetail or any representative of Flexetail with respect to any of said factors. Client further acknowledges and agrees that the transaction evidenced by this Rental Agreement is a commercial transaction made in the ordinary course of the Client’s business and is not a consumer transaction. Client agrees not to record this Rental Agreement. If any term or provision of this Rental Agreement, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Rental Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Rental Agreement shall be valid and be enforced to the fullest extent permitted by law.
WITNESS the execution hereof as a Massachusetts contract, under seal, in any number of counterpart copies, each of which counterpart copies shall be an original for all purposes, as of the day and year first above written.