Vendors: Please read the below Vendor Agreement, and complete the form at the bottom of the page to confirm that you acknowledge and agree to the Vendor Agreement.
2019 Season Seven - Vendor Agreement
This 2019 Season Vendor Agreement (the “Agreement”) is between:
THE CLEVELAND FLEA, LLC (hereinafter “FLEA”), an Ohio limited liability company, with offices at 3615 Superior Ave, Suite 4203 D, Cleveland, Ohio 44114; and
VENDOR (hereinafter “you” or “Vendor”), as indicated on your submitted online CLE Flea Vendor Signup (hereinafter “Application”).
This Agreement shall not bind FLEA or Vendor unless and until: (1) FLEA offers you a Space at one or more Markets (defined below) by sending you an “Offer E-mail”; and (2) you accept FLEA’s offer to participate in one or more Markets by paying the applicable Rental Fee as set forth below and in accordance with the Offer E-mail (the “Binding Conditions”). IMMEDIATELY UPON THE SATISFACTION OF THE BINDING CONDITIONS, THIS AGREEMENT SHALL AUTOMATICALLY BECOME AN EFFECTIVE AND BINDING CONTRACT BETWEEN FLEA AND VENDOR, AND SHALL GOVERN THE PARTIES’ RELATIONSHIP FOR EACH MARKET IN WHICH VENDOR PARTICIPATES DURING THE 2019 FLEA SEASON.
The term “Agreement” as used herein includes and incorporates herein the information, terms and conditions contained within (i) the Application; (ii) FLEA’s Offer E-mail; (iii) FLEA’s Confirmation E-mail to you (the “Confirmation E-mail”); and (iv) The Cleveland Flea Vendor Rules & Regulations posted on the FLEA website (the “Rules & Regulations”), which may be reasonably modified or supplemented by FLEA from time to time. This Agreement sets forth the entirety of the parties’ respective rights and obligations in connection with Vendor’s operation of a Space at any Market powered by the FLEA during the 2019 calendar year (“Season”), including but not limited to The Cleveland Flea, Sunday Market, and/or Night Market (collectively “Markets”, each a “Market”).
(1) Creation of Binding Agreement. This Agreement shall not bind FLEA in any way unless and until (i) FLEA has offered Vendor a Space at one or more Markets by sending Vendor the Offer E-mail, which FLEA may or may not send in its sole discretion, and (ii) Vendor has accepted the offer to participate in one or more Markets by paying the applicable Rental Fee as set forth below and in accordance with the Offer E-mail. The Offer E-mail, if sent, will set forth the date(s) on which FLEA has conditionally approved you to operate a Market Space. The date of the Offer E-Mail shall be deemed the “Effective Date” of this Agreement.
(a) Rental Fee. To bind this Agreement and reserve a Market Space you must pay the applicable “Space Rental Fee” in the amount, manner and within the time frame set forth in the Offer E-mail, and/or the Vendor Packet provided to each Vendor by the FLEA prior to each Market (the “Vendor Packet”). The Space Rental Fee is non-refundable except as otherwise provided herein.
(b) Method and Timing of Payment. Vendor must remit the Rental Fee to FLEA by the method and by the date to be specified on the Offer E-mail and/or Vendor Packet; however, FLEA may, in its sole discretion and for good cause, accept a later payment. Vendor shall include the Market date(s) designated within the Offer E-mail with any payment.
(2) Booth Space.
(a) Assignment of Space. Following approval by FLEA and payment of the Rental Fee by Vendor, FLEA shall grant to Vendor a license to use one (1) booth space (the “Space”). Vendor will be advised as to the location of the Space prior to the start of or upon arriving at a Market during the appointed Vendor set-up period on the applicable Market date(s). Vendor will also be assigned a set-up time and method (walk-in or drive-in drop-off). Vendor acknowledges that the size, location and configuration of the vendor Spaces may vary. FLEA shall be entitled, in its sole discretion, to market, position and determine assignment of Spaces to all vendors, including the Vendor, within the Market; and provided further that Vendor hereby accepts all such determinations as final. Vendor may not exceed the footprint of Vendor’s designated Space.
(b) There is no transfer, assignment, sublicensing, or subletting of the Space to any third party in any form whatsoever. In addition, Vendor shall not market, display or sell merchandise of any third party without prior written approval from FLEA. In addition to any other remedies or recourse that FLEA may have hereunder or at law, if merchandise being displayed is determined to belong to a party other than the Vendor, without prior written approval from FLEA, FLEA shall be entitled to terminate Vendor’s rental and require that Vendor immediately vacate the Space and leave the Market and/or terminate Vendor’s rental for the Season.
(c) There is no sharing of the Space with other Vendors without prior written approval from FLEA. Approval of Space sharing will be done on a case-by-case basis. In such cases where Space sharing has been approved, each Vendor is responsible for paying the full Space Rental Fee, although no additional space will be granted. The approval or denial of a request to share Space is subject solely to the discretion of FLEA, and the request must be received by FLEA by email at least one (1) month prior to the applicable Market date.
(d) Any objects of personal property left inside or outside of the Space will be discarded, at Vendor’s sole cost and expense. FLEA will not be liable for any damage to or loss of objects or property left in these areas. Vendor is to keep the Space clean, at Vendor’s sole cost and expense and in a manner satisfactory to FLEA, and shall reimburse FLEA promptly for all documented costs incurred in connection with any necessary cleaning of the Space by FLEA following Vendor’s use thereof.
(3) Merchandising & Display Standards.
(a) Upon FLEA’s approval, Vendor shall be entitled to commence set-up of its Space and display as set forth below. Each vendor is responsible for providing his or her own tent, tables, chairs, and display surfaces. While there is no specific requirement as to what your set-up should look like, FLEA strongly encourages creativity with how you display yourselves and your goods, and prefers vendors who use handmade or fabricated signage that adds to the visual fabric of the FLEA environment.
(b) Vendor shall use its best efforts when constructing displays to minimize any disturbance to the other vendors’ operations. Further, Vendor shall be responsible, at its sole cost and expense, to repair any damage and disruption Vendor may cause to the Market or other vendor’s booths or operations. Vendor shall be considerate of neighboring vendors 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 as, being mindful of the overall aesthetic experience of the Market in considering display items, materials, props, etc.
(4) Vendor Responsibilities. In addition to any other Vendor requirements or restrictions as set forth in this Agreement, Vendor must comply with the responsibilities set forth in the FLEA Rules and Regulations, which may be reasonably modified or supplemented by FLEA from time to time. FLEA shall not be obligated to enforce the Rules and Regulations against Vendor or any other vendor of the Market or any other party, and FLEA shall have no liability to Vendor by reason of the violation by any other vendor or other party of the Rules and Regulations; provided, that FLEA shall not enforce the Rules and Regulations in a manner which discriminates against Vendor (it being understood that rules may have varying impact on vendors, taking into account differences in their use and business operations). If any of the Rules and Regulations shall conflict with any provision in the body of this Agreement, such provision of this Agreement shall govern.
(5) 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 Vendor shall default in the observance or performance of any term, covenant or condition of this Agreement; or
(b) if Vendor shall default in the observance or performance of any term, covenant or condition on Vendor’s part to be observed or performed under any other agreement with FLEA.
then, in any of said cases, FLEA may, at its option, immediately terminate this Agreement and/or Vendor’s participation in any or all Market(s) during the Season; provided that Vendor shall remain liable for damages and shall forego any prepaid fee and/or any applicable security deposit. Vendor hereby agrees to pay, as additional charges, all attorneys’ fees and disbursements (and all other court costs or expenses of legal proceedings) which FLEA may incur by reason of, or in connection with any action or proceeding related to this Agreement or in connection with any Event of Default by Vendor under this Agreement.
(6) Indemnification. Vendor agrees to indemnify and hold harmless FLEA, 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 Vendor, 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 Season 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 FLEA, their affiliates, agent, officers, employees, or representatives.
(7) Limitation of Liability. Vendor shall look solely to FLEA’s leasehold interest in the Market and the proceeds thereof, for the recovery of any judgment against FLEA, and no other property or assets of FLEA and its members, officers, directors, or affiliates shall be subject to levy, execution or other enforcement procedure for the satisfaction of Vendor’s remedies under or with respect to this Agreement. In no event shall FLEA and/or its affiliates and/or their respective members, managers, officers, employees, agents or representatives be liable to Vendor 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).
(8) Termination. In the event that at any time during the Season, FLEA is required to vacate the Market for any reason, then FLEA shall be entitled terminate this Agreement by providing not less than seven (7) days written notice to Vendor. In addition, FLEA may unilaterally terminate this Agreement (and/or Vendor’s participation in any or all Market(s) during the Season) at any time, for any reason or no reason, and with or without cause [by providing seven (7) days written notice to Vendor. In any such event of termination, any monies theretofore delivered by Vendor to FLEA for periods following the termination date, including, without limitation, the relevant portion of the Space Rental Fee, shall be promptly returned to Vendor.]
(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 (i) personal delivery, (ii) a nationally recognized overnight courier, or (iii) e-mail, in each case addressed to the party to be notified as follows:
If to FLEA:
The Cleveland Flea, LLC
3615 Superior Ave, Suite 4203D
Cleveland, Ohio 44114
Attention: Stephanie Sheldon [E-mail: email@example.com]
If to Vendor, to the address or e-mail address specified in Vendor’s Application.
Either party may from time to time designate a different (or additional) address(es) for Notices by at least five (5) days prior Notice to the other party. 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 FLEA or Vendor 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 FLEA, its successors and assigns, and shall be binding upon and inure to the benefit of Vendor, its successors, and to the extent that an assignment may be approved by FLEA, Vendor’s assigns.
(g) Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal Laws of the State of Ohio, 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 Cuyahoga County, Ohio, 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 of pdf document shall be considered to have the same binding legal effect as an original document.