Standard Terms Document

Transcription

1 Standard Terms Document This Rental Agreement is made on the date specified in the Cube Rental Schedule, Renter Personal Information and Commercial Terms ( Schedule ) between the Owner ( My Cube Australia Pty Ltd ) and the Renter named in the Schedule for the term specified in the Schedule. The Renter has requested the Owner to rent the space in the Cube specified in the Schedule to the Renter and the Owner has agreed subject to the terms and conditions below. 1. Rental and Other Payments (a)the Renter agrees to pay the Rental at the amount specified in the Schedule in advance each month as directed by the Owner without demand. If requested, the Renter agrees to pay the Owner all monies due under this agreement by way of direct debit into the Owner s bank account as nominated by the Owner. The Renter agrees to execute a Credit Card Authority upon request. (b)the Rental paid to the Owner are used by the Owner towards the outgoings payable by the Owner of the following expenses: i. Maintenance of exterior of Cube, physical shop fit-out facility as is ii. All the certifications required for the construction of the shop iii. Maintenance of overall My Cube shop lease iv. Maintenance of lighting for the shop v. Barcode system, information technology and point of sales system vi. EFTPOS, credit card terminal and other banking charges vii.cleaning, rubbish removal and purchases of consumables viii.staffing and training ix. General electricity (not individual power to the Cube) x. Public liability insurance and other insurance policies required to be taken out by the Owner for the business and the premises (c) On or before the Rental Commencement Date and three days after the issue of Invoice, the Renter must pay to the Owner a security bond of a sum set out in the Schedule. The security bond shall be held until fulfilment of the Renter s obligations under this Rental Agreement including the Renter s obligation to pay money to the Landlord. Details of the holding of the bond are stated in clause 24. (d)on or before the Rental Commencement Date, the Renter must pay to the Owner an contract set up fee of a sum set up in the Schedule. This contract set up fee will be charge once only per cube per agreement. This contract set up fee is not refundable in any circumstances. (e)the Renter will be required to pay the User-pay charges as chosen by the Renter specified in the Schedule. This includes but not limited to: i. Transaction fee for all the Renter s goods sold through the Owner from the premises. This fee is charged on a percentage basis at the percentage specified in the Schedule of the amount of the!1

2 ii. Renter s goods sold irrespective of how the customers pay for the Renter s goods. Please refer to 6. (c) for the method of payment for this fee; iii. Power connection fee payable monthly in advance; iv. Once-off payment of Shelving Hire fee; v. Depending on availability, Extra Storage and Restock Service fee payable monthly in advance; vi. Printing of barcode cost at the charge per barcode specified in the Schedule; vii.late fee of $25 per week or part of a week will be charged to the Renter s account when rent money is not received before due date. This will only incur if Renter does not participate the direct debit scheme or if the direct debit is not honoured; viii.premature termination will incur complete forfeit of the bond plus 50% of sum of remaining contract from the date of written notice; ix. And any other User-pay fees offered at the time of signing this agreement. (f) Unless otherwise specified, the Renter agrees to pay the fees associated with these User-pay charges chosen by the Rent specified in the Schedule by charge to the Renter s credit card as authorised under the Credit Card Authority. (g)the Renter is responsible to pay for any costs incurred by the Owner in collecting late or unpaid fees and charges under this agreement, or in enforcing this Agreement in any way, including but not limited to postal, telephone, debt collection, and/or the default action costs. (h)if the Renter is late in paying the Owner any money, the Owner may charge the Renter interest calculated on any late payments at the rate of fifteen per cent (15%) per annum to be capitalised at the end of each month. All interest charges must be paid on demand. (i) The Renter hereby agrees to grant a lien over all the Products for sale in the Cube to the Owner to secure the Renter s full payment of all money required to be paid under this Rental Agreement. 2. Term (a) This Rental Agreement commences on the Rental Commencement date specified in the Schedule and continues until the Rental Term specified in the schedule has ended. This Rental Agreement does not offer options. The Renter acknowledges that the Owner is under no obligation to extend the Rental Term or give any option to extend the Rental Term beyond the expiry date. Any extension of the Rental Term is totally at the Owner s discretion. (b) Unless advised to the contrary in writing by either party within the last one month of the term of the initial or any extended rental period, this rental agreement will automatically renew itself for a further period of one month.rental and other payments 3. Using the Cube and it s Shelvings a. The Renter cannot alter, make holes, superglue, paint or undergo any permanent change to the configuration of the Cube and the Shelving accessories hired. The Renter is responsible in surrendering the Cube and all materials at the end of the agreement in the same condition as the commencement date. The Renter will be charged with repairs or replacement costs should any damages occur during the rental period. b. The Renter must decorate, fill, store, and arrange Products inside the cube in anyway provided it is within the Fitout Guideline. The standard of design of the fitout must comply to the current Fitout Guideline and it is to ensure all Cubiz contribute positively to the functioning of each My Cube store as a whole, and assist in promoting individuality in each Renter to create a more enjoyable shopping environment. This Fitout Guideline includes but not limited to the production of appropriate signage for the Renter s Cube. All materials must not protrude outside of the Cube. The Owner and its representatives reserve the right to advise, alter or remove arrangements should the above issues arise or the fitout was not of the standard described. c. The Renter must install professional signage as per the specifications of the store. No hand written, half-sized, paper printed, poor pixelated quality signage is allowed. The Owner reserves the right to remove any signage deemed unprofessional without prior warning. The Renter cannot begin trading if the occupied cubes do not satisfy the minimum requirement of Fitout and Signage standard and the Renter will be liable for the rent invoiced as per agreement. d. The Renter must not sub-lease, sub-license the cube to any other individual, entity or business. The Renter must be the operator of the business occupying the cube. 4. Product and Permitted Use a. The Renter has the right to store and display only those Products as specified in the Permitted use of the Schedule in the Cube allocated to the Renter; b. The Cube must not be used for any other purpose other than specified in the permitted use of the Schedule.!2

3 c. The Renter is deemed to have knowledge of the Products in the Cube; d. The Renter warrants that they are the owner of the Products in the Cube, and/or are entitled at law to deal with them in accordance with all aspects of this Agreement. e. Any offensive, dangerous, hazardous, illegal, stolen, flammable, explosive, environmentally harmful and annoying Product and activity will not be allowed or tolerated. The Renter acknowledges that the Owner has the right to remove any Products from the Premises without providing a reason and this is at the Owner s sole discretion. Furthermore, the Owner is not liable for the barcode production cost which has been spent to stock the Products at the Premises in the first place. f. All Products must have a barcode attached to it as produced by the Owner only. Any Products without a barcode will be removed and warning of breach will be given. 5. Sale of Products a. The Renter authorises the Owner to sell all the products displays and stores in the Cube at the price stated by the Renter through the barcode production application. b. The Renter will be charged by the Owner a Transaction fee as specified in the Schedule. This is to offset the errors incurred in day to day handling of cash register transactions, EFTPOS credit card terminal and other banking charges. c. At 14 days after the end of each calendar month, the Owner will remit the sale proceeds and GST (if any) collected by the Owner for the month. The Owner reserves the right to change the date of the calendar month from time to time. The Transaction fee incurred for the sale proceeds will then be invoiced and deducted before the sale proceeds and GST (if any) are remitted. d. The monthly sales report which is produced for the purpose of remitting the sale proceeds is an accurate recording of all sales produced directly from the point of sales machine at the store. This report is the only accurate source and there is no variation to this report as it is produced by the machine. 6. Music and Demonstrations in the Cube 7. Food The Renter must seek permission from the Owner for playing any music, making any sound using sound or media equipment or using a television or any other kinds of demonstrations. The Renter must make sure that it does not annoy or interfere with other Renters or people using the shop. The Owner reserve the right to cease the use of music and demonstration at any time even permission has previously been given. a. Consumable Products must be presented in accordance to the following: Sealed, dated with expiry date, non-emission of unpleasant odour, represented in English language. b. Consumable foods must be non-refrigerated and non-perishable in nature. c. Must be compliant to the safe standard of all Australian food handling laws and regulations. 8. Product Warranty a. The Products will be of merchantable quality, made of good material and workmanship, and free from any defects. b. The Products will meet and be manufactured in accordance with the Specifications, Applicable Standards and all applicable Laws in Australia. c. The Products are and will be fit for the purpose for which they are provided and intend to be used. d. The Renter is solely responsible for all warranty/after sales service related matters for all Products with the customer. i. Owner does not interfere with this arrangement of the Products and is not liable after the goods are sold. ii. iii. iv. Owner will provide the customer contact details of the Renter for warranty and after sales service. The Owner will endeavour to assist the Renter s warranty policy. If the Renter is un-contactable and/or upon request of the Customer, the Owner will refund faulty goods in cash back to the Customer with proof of purchase. The Renter is required to reimburse the amount with, or without GST, to the Owner. The Renter must comply with all related applicable Laws in Australia. 9. Product Indemnity Insurance v. Repeated unsatisfactory relationship with the Customer may result in termination of this Agreement. a. The Renter is recommended to take out its own Product indemnity insurance.!3

4 b. The Renter is solely responsible and shall indemnify the Owner against liability for all loss, damage, or injury to persons or property caused by or arising out of business activity. 10.Risk and Responsibility a. Unless otherwise specified in this Agreement, the Products are stored at the sole risk and responsibility of the Renter, this includes the Extra Storage space, who shall be responsible for any and all deterioration of the Products, and shall bear the risk of any and all damage caused by flood or fire or leakage or overflow of water, mildew, heat, spillage of material from any other space, pest or vermin or any other reason whatsoever including acts or omissions, negligent deliberate or otherwise, of the Owner of persons under its control. The Renter agrees to indemnify and keep indemnified the Owner from all claims for any loss of or damage to the property or, or personal injury to, third parties resulting from the use of the Products displayed, stored or sold by the Renter. b. The Renter acknowledges that breakage and theft may occur to the Renter s Products and fitout within the Cube. The Owner holds no responsibility for any Products that are broken or stolen from the Premises. If theft occurs to the Renter s Products, the Owner will provide access to the CCTV recording to the Renter at the Renter s costs. However, it is the Renter s responsibility to go through the CCTV recording to identify the theft incident. The Owner will endeavour to assist the Renter to make police report. c. The Renter acknowledges the Owner does not guarantee the Renter of profitability and success. Results greatly depend on the individual s effort and business experience. For the best results, comprehensive marketing efforts and seeking external professional advice are necessary. My Cube is merely a platform for the Renter to conduct business within and it does not intend to operate the Renter s business. Any business advice provided by the Owner and its representatives might not be suitable for everyone even when the advice presented is believed to be sound. The Renter cannot hold the Owner and its representatives responsible for either the actions they take or the result of those actions and further disclaims of any liability, loss or risk. 11.Delivery & Stock Management 12.Trading Hours 13.GST 14.Trade Name a. The Renter is responsible for all delivery and stock management. b. Deliveries and restocking are to be made within the time frame given by the specific Store Manager. a. The Owner will endeavour to open the shop for trade in accordance to the Shopping Centre s core retail trading hours. b. The Owner reserves the right to change this from time to time. Furthermore, the Owner is not obliged to trade during the public holidays. a. All sums specified in this offer are quoted exclusive of GST. b. All Products displayed in the Cube must be labelled as GST inclusive price. c. The Renter is liable for all GST payable in respect of taxable supplies made by the Owner to the Renter under the agreement. The Renter must not include My Cube s name or any associated name logo or attribute owned by the Owner without the Owner s consent. 15.Postal Address a. The Owner and the Cube number cannot be used as the Renter s postal address. b. The Renter is advised to take out its own PO Box or postal address as The Owner does not redirect mail to the Renter. Any mail received by The Owner will be returned to sender. 16.Tenancy/Product/Permitted Use Mix in the Shop a. It is at the sole discretion of the Owner, and the Owner may allow other Renters to use Cubes for similar use to the permitted use. b. The Renter acknowledges that there is no exclusivity of product/permitted use within the shop and My Cube. c. The Owner reserves the right to remove any Products from the Premises if the Product displayed for sale does not comply with clauses within this agreement or any other offensive reason affecting the running of the Store. This is to be determined at the Owner s sole discretion and the Owner will notify the Renter when this occurs. The Owner is not liable for the potential lost of revenue as a result of the removal and the Owner is not considered to be in breach of this agreement. 17.Independence!4

5 Both the Renter and the Owner shall be considered independent and neither of them is the Principal or Agent, employee or employer, partner or joint venturer of the other, or any other relationship. 18.Compliance The Renter must comply with all terms and conditions as set out in the Shopping Centre s Standard Terms Document supplied by the Owners of the Shopping Centre. 19.Confidentiality Both parties must maintain confidentiality with all commercial terms and trade secret. 20.Relocation a. The Owner may require the Renter to relocate within the shop if the Owner proposes refurbishing, re-developing or repairing the shop. i. The Owner will give the Renter 1 month s notice of the proposed relocation. ii. The Owner and the Renter are required to amend this Agreement to reflect the relocation. iii. The Renter has the opportunity to terminate without penalties within 14 days after receiving the relocation notice from the Owner. b. The Owner may or may not require the Renter to relocate within the shop if the Renter is having difficulty conducting business. This is solely at the Owner s discretion. i. The Owner may or may not meet with the Renter to discuss this. ii. The Renter is required to pay all associated costs with such relocation. iii. This Agreement will be amended accordingly. 21.Default, Breach and Termination of Use a. The Renter is in default of this Rental Agreement if the Renter: i. Fails to pay any money required to be paid under this Agreement when the payment is fall due; or ii. Fails to comply with any of its obligations under this Agreement within 7 days after receiving notice from the Owner to do so; or iii. Repudiates its obligations under this Agreement; or iv. Is insolvent. b. The Owner will give one notice requiring the Renter to remedy the breach before taking any steps to exclude the Renter from the Cube and/or to terminate the Agreement. All parties should attempt to resolve conflicts in good faith. c. If the Renter does not remedy the default within the time stated in any notice from the Owner, the Owner may do any one or more of the following without prejudice to any other right which it may have against the Renter. i. By notice to the Renter, convert this Agreement to a month to month tenancy on the terms of this Agreement as far as they can be applied to a monthly tenancy. ii. By notice to the Renter, terminate the Agreement and take possession of the Cube and the Renter s Products. iii. Recover from the Renter any loss suffered by the Owner due to default of the Renter. iv. Exercise the lien over the Products and deal and sell the Renter s Products at the Owner s discretion in order to recover any loss suffered by the Owner. v. Exercise any of its other legal rights. d. The Renter may terminate this Agreement prematurely if the Renter: i. Gives a written notice of date; and ii. Forfeit the entire Bond and pay the Owner 50% of sum of the remaining contract from the date of termination immediately. e. The Owner may terminate this Agreement prematurely if the Owner is unable to secure the Lease of the shop: i. The Owner will give the Renter a minimum of one month notice.!5

6 ii. The Renter has the opportunity to terminate without penalties within 14 days after receiving notice from the Owner. iii. The Bond will be returned in full after all invoices are settled with no breach from the Renter in any way. iv. The Owner of the shop will be released from its obligations under this Rental Agreement arising at any time after it ceases to be the Owner. v. The Renter disclaims the Owner from any loss or damage, directly or indirectly caused from this termination. 22.If Renter Remains in Occupation After the Expiry Date a. The Renter may continue to occupy the Cube on the same terms as at the expiry date of this Rental Agreement, unless the Owner requires the Renter to vacate the Cube at the end of the term. However, unless advised to the contrary in writing, within the initial or any extended rental period, this Rental Agreement will automatically renew itself for a further period of one month or otherwise advised in writing. b. Either the Owner or the Renter may bring any such holding over tenancy arrangement to an end by giving one month s notice of termination to the other party. 23.Items Left Behind by the Renter 24.Bond a. Anything left behind by the Renter on expiry or earlier termination of this Agreement, either as required under this Rental Agreement, or in breach of the Renter s obligations, is deemed to have been abandoned by the Renter, such that it becomes the property of the Owner. b. The Owner may retain or dispose of abandoned property in its absolute discretion and recover the costs of doing so from the Renter on demand. a. The Renter must prior to the commencement date and three days after the issue of Invoice, paid to the Owner the bond equivalent to the amount specified in the Schedule. The Bond is deemed to be paid when it is cleared in the Owner s bank account. b. The Renter will forfeit the entire bond if in breach before the commencement date. This amount is to cover the contract set up fees, and associated costs seeking another new Renter. c. The Renter must make up the amount used by the Owner within 7 days of the request by the Owner. Failing which, the Renter will be in default. d. The Owner has the right to use the amount paid in bond to recover any lost due to the Renter s breach in any way. e. The Bond will be returned in full at the end of the term after all invoices are settled with no breach from the Renter in any way. 25.Change of Owner of the Shop 26.Force Majeure a. The Owner of the shop will be released from its obligations under this Rental Agreement arising at any time after it ceases to be the Owner. b. The new Owner will be automatically reinstated and be referred to as the Owner of this Rental Agreement and is obligated to continue to fulfil the terms and conditions of this document. No party is liable to another party for any failure to perform its obligations under this agreement if caused by a Force Majeure Event. 27.Governing Law This Rental Agreement must be governed by and construed in accordance with the Law of the State of Queensland. Ver !6

7 Executed as an Agreement Signed for and on behalf of, the Renter by its duly authorised representative in the presence of: Signature of Cube Consultant Signature of the Lessee Name of Cube Consultant (please print) Name of the Lessee (please print) Signed for and on behalf of, the Owner by its duly authorised representative:... Signature of authorised representative... Name and position of authorised representative!7