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Concession Agreement
Standard Terms.
Welcome to Time Out Market New York!
These are the standard terms that form part of our relationship. They should be read in conjunction with the Concession Agreement we have sent to you. This document starts with a map explaining the contents of the agreement as a whole.
Last updated 2 May 2024
version 2.0
Map
Agreement map
This map outlines the structure and content of our agreement.
1.

Modules 2, 5, 6 and 7 are the standard part of our terms, published on this page.Key Terms.
The things you care most about – the commercial terms. It’s divided into parts and includes key terms, licensor’s services and special terms relating to your concession..
Modules 1, 3 and 4 are key commercial terms, provided in a separate document..
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2.
Standard Terms .
The things that your lawyers care about. They will find them in Module 2..
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+Other schedules.
3 Seasonal menu
We’ll ask you to set out your menu in Module 3, but we can also agree it later before the concession starts.
4 Data and image capture
We need to use your name and image so we can do our thing on social media. Module 4 contains a form that you will need to use.
5 Violation matrix
If you do something wrong, we need a simple way to recover our costs, so we can move on without wasting our and your time.
6 Anti-bribery Policy
We have a strong compliance ethos and want our partners to take it as seriously as we do. This schedule contains our standard policy.
7 Deliveries
Additional terms relating to deliveries (these apply if they are incorporated in your signature page).
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Module 2
Standard Terms and Conditions
1Definitions
1.1In this Agreement unless the context otherwise requires, these words have the following meanings:
Affiliateas to any entity or person, any other entity controlled by, controlling or under common control with the same, and “control” means the power to manage or direct the affairs of the person or entity in question, whether by ownership of voting securities, by contract or otherwise.
Business Dayany day other than a Saturday, Sunday and all days observed as State, Federal or other legal holidays at the Site.
Concessionthe Concept operated by the Concessionaire as a concession at the Unit.
Concession Operations Guidethe TOM Operational Management Statement including the Licensor’s detailed instructions to concessionaires at the Site for the operation of their concessions as notified to the Concessionaire from time to time.
Licensor's Servicesthe services set out in Module 1 Part 2 to be performed by the Licensor at the Site.
Marketthe market operated by the Licensor at the Site which contains all units which are licensed to the concessionaires by the Licensor, including the Unit licensed to the Concessionaire under the terms of this Agreement.
POS Systemthe e-POS system through which all payments are taken (payment processing is provided by a third-party payment processor).
1.2In this Agreement (except where the context otherwise requires):
(a)any reference in this Agreement to writing includes email;
(b)any reference in this Agreement to any provision of a statute or statutory instrument will be construed as a reference to that provision as amended, re-enacted or extended from time to time and includes all subordinate legislation made from time to time under that statute or statutory provision;
(c)any reference to “persons” includes natural persons, legal entities and organisations (whether or not having separate legal personality);
(d) any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms;
(e)the following annotations are used in this document:
An indication of what a clause contains, or a similar annotation to assist the reading of the document. Has no legal effect.
Contains a "defined term", or points to where the definition for a defined term can be found. Part of the binding provisions of this Agreement.
A summary or explainer to highlight a key commercial or practical point. Provided to assist the reading of the document but has no legal effect.
A proviso, consequence or clarification of a provision. It is part of the provision and has legal effect.
An illustration of a process or sequence of events. In the event of a conflict between the illustration and the relevant clause, the latter prevails.
2Duration
How long this agreement lasts. It refers to the Initial Term which is defined in Module 1 (Key Terms) - usually 12 months.
2.1This Agreement comes into force on:
(a)in the case of a new Agreement, the date of final signature by both parties, or the Access Date, whichever is the earliest; or
(b)in the case of a renewal Agreement, the date immediately following the end of the previous agreement,
and (subject to any earlier termination in accordance with its terms) will continue for the Initial Term. Unless either Party gives the other no less than sixty (60) days written notice before the end of the Initial Term, this Agreement will automatically renew for successive periods equivalent to the Initial Term (each, a “Renewal Term” and together with the Initial Term, the “Term”).
2.2After the expiry of the Initial Term, the Licensor may terminate this Agreement upon sixty (60) days’ written notice to the Concessionaire. The first date on which such notice may take effect is the day after the expiry of the Initial Term.
3Licence of the Unit
The rights granted to the Unit, and certain rights that the Licensor retains including to re-house the Licensor and access rights to the Unit.
3.1The Licensor grants to the Concessionaire a license to occupy the Unit (and to utilise the fixtures and equipment provided) throughout the Term solely for the operation by the Concessionaire of the Concession during the Access Hours.
The Unit is the kitchen unit as defined in Module 1 Part 1 (Key Terms) and Part 5 (Red Line Plan). The Site is the relevant Time Out Market, shown in Module 1 Part 5 (site location).
3.2The Licensor retains the right at its discretion (acting reasonably) to re-site the Concession and/or require the Concessionaire to occupy an alternative unit(s) within the Site if it deems it to be necessary in the best interests of the Site or on security or health and safety grounds.
"Access Hours" are as set out in the Concession Operations Guide or such other times during which the Concessionaire is permitted access to the Site as notified to the Concessionaire from time to time.
3.3The Concessionaire shall neither have nor acquire any right to exclusive possession of part or all of the Unit and/or the Site nor any separate right to occupy or possess part or all of the Unit and/or the Site and nothing in this Agreement shall create a lease or other greater interest in any premises of the Licensor.
3.4At the Licensor’s sole discretion, the Licensor may refuse to admit to, or order the removal from, the Site any customer of the Market or any of the Concessionaire’s personnel or authorised representative for any reason related to the safety, security, welfare, and good order of the Market and any of its customers, or for violation of any laws or codes of practice for workers and employees applicable at the Site. The Concessionaire shall meet all costs associated with any such refusal of admittance or removal and with the replacement of any Concessionaire employee, and the Concessionaire shall hold the Licensor harmless and indemnify the Licensor for the same.
4Common Expense Charge
The Common Expense Charge compensates the Licensor for the Common Expenses incurred in managing and operating the Market. This clause explains what it includes and how it is calculated.
4.1In this Agreement, Common Expenses include:
4.2The Common Expenses do not include any expenses incurred by the Licensor in owning and operating the Bars, which shall be deducted from the Licensor’s total costs before being recharged as Common Expenses to the concessionaires in the Market.
●Events and entertainment at the Market, including live entertainment, art commissions and common area decoration.
●PR and advertising including promotional campaigns and ongoing marketing initiatives.
"Bars" means the areas designated as bars within the Market operated by the Licensor solely for the Licensor’s benefit.
●Marketing for local and global campaigns, seasonal activations, or recurring events (including signage and decorations).
●Upkeep and maintenance of the common areas of the Market.4.3The Common Expense Charge is calculated on a per square foot basis for each unit within the Market and the Concessionaire shall only be liable for the Common Expense Charge (as defined) for the Unit and Store Room Unit.
●Repair, maintenance, and replacement of common use equipment.
●IT infrastructure, comms and WiFi.
●Licensor’s property costs including CAM and taxes (excluding Licensor’s rent).4.4Without prejudice to the initial Common Expense Charge set out in Module 1 Part 1 (Key Terms), the Licensor will review the costs incurred in providing the Common Expenses on a quarterly basis and may vary the Common Expense Charge upwards or downwards accordingly. The Common Expense Charge may also be adjusted subject to changes to the Store Room Unit or Unit allocation during the Term.
●Overnight cleaning of all common areas.
●Dishwashing and bussing services.
●Provision of security services.
●Collection and removal of waste.
●Consumables (eg. paper goods, napkins, cleaning chemicals, linen).
●Pest control.
The Common Expense Charge is defined in Module 1 Part 1 (Key Terms). Store Room Unit and Unit allocation are defined in Module 1 Part 1 (Key Terms) and Part 5 (Red Line Plan).
●Fees paid to Delivery Companies by Licensor.
5Equipment
This sections governs situations where the Licensor wants additional items of equipment installed.
5.1The Licensor shall provide only the Licensor’s Services listed in Part 2 of Module 1. If the Concessionaire requires additional items beyond those already provided by Licensor, then subject to the prior written approval of the Licensor, these can be purchased at the Concessionaire’s cost (the “Additional Items”). The Concessionaire shall be solely responsible for retrieving the Additional Items from the back of house area. The Licensor shall not be responsible for any breakage or loss of the Additional Items.
If the Concessionaire requires any additional items or installed equipment, these need to be agreed in advance with Licensor, and paid for by the Concessionaire.
5.2The Concessionaire may, subject to the prior written approval of the Licensor, install additional kitchen equipment at the Unit at Concessionaire’s cost (the "New Equipment").
5.3In order to accommodate the New Equipment the Concessionaire shall, at Licensor’s request, remove such existing equipment currently located in the Unit as agreed by the parties in writing (the "Existing Equipment”). The Concessionaire shall bear any costs of removing the Existing Equipment.
5.4The Concessionaire shall be solely responsible for the purchase costs of the New Equipment.
5.5The Concessionaire shall be responsible for maintaining the New Equipment and the Licensor will not have any liability in respect of the New Equipment at any time.
5.6Following expiry of the Term the Concessionaire is entitled to remove the New Equipment from the Unit, but if it does so the Concessionaire shall reinstall the Existing Equipment in the Unit at its own cost, to restore the Unit to its original condition.
6Sales of food
Obligations to ensure quality and consistency of the menu, and to avoid changes that may be difficult to accommodate within the Unit.
6.1The Concessionaire shall produce the Cuisine for sale to the public at the Unit. The Cuisine shall be of a high quality which is of an equivalent standard to that typically found in the Concessionaire’s high quality a la carte restaurant(s).
The food served must be of the same standard as the Concessionaire's a la carte restaurants.
6.2The Concessionaire represents that the Menu is a complete menu selection and includes all dishes that are expected to be served throughout the Term.
The Licensor must list out its menu in full.
6.3The Concessionaire shall not make any material changes to the Menu which is offered at the Concession (including any new items, seasonal items, specials, and promotions) without the prior written approval of the Licensor. Due to the limited space available in each Unit, if the Menu is reviewed by the parties on request of the Concessionaire, the Licensor may limit the number of offerings permitted for sale by the Concessionaire.
Changes to the Menu must be approved by the Concessionaire in advance.
7Sales of Water and Soft Drinks
The Licensor has entered into master agreements with well known suppliers of soft drinks and water, which imposes some conditions we have to ask you to comply with.
7.1In this clause and when used elsewhere in this Agreement, these words have the following meanings:
"Artisanal Drinks" any non-alcoholic artisanal beverages that are not PepsiCo Inc. products.
"Coca-Cola Drinks" means Coke, Diet Coke and Sprite.
"Water" means carbonated and non-carbonated water, whether or not bottled, canned or otherwise packaged, but excluding flavored water (carbonated and non-carbonated).
7.2Sales of Water. During the term of this Agreement, the Concessionaire may market and sell Water at the Market, subject to the conditions in this clause 7.2 and/or as otherwise notified by the Licensor to the Concessionaire.
(a)Supply. The Concessionaire shall purchase all Water to be sold at the Market from such other supplier as the Licensor notifies the Concessionaire from time to time (“Water Supplier”), on the terms and conditions and at the prices set out in the agreement(s) made between the Licensor and the Water Supplier. The Concessionaire agrees to enter into any agreement or documentation reasonably requested by the Water Supplier in connection with its supply of Water to the Concessionaire.
(b)Pricing. The Concessionaire shall sell Water at prices determined by the Licensor and as notified to the Concessionaire in writing from time to time.
7.3Sales of soft drinks. During the term of this Agreement, the Concessionaire must market and sell Coca-Cola Drinks and shall have the option to market and sell Artisanal Drinks at the Market, subject to the conditions of this clause 7.3 and/or as otherwise notified by the Licensor to the Concessionaire.
(a)At no time may the Concessionaire offer for sale more than three (3) Coca-Cola Drinks or three (3) Artisanal Drinks.
(b)The Licensor reserves the right to amend or alter the Coca-Cola Drinks that the Concessionaire is permitted to sell.
(c)The Concessionaire shall not market or sell any Artisanal Drink which has a trademark owned by, licensed to, controlled by or distributed by PepsiCo, Inc., or any of its Affiliates or bottlers, or any entity or joint venture in which PepsiCo, Inc., or any of its Affiliates or bottlers has at least a 50% ownership interest. Purchasing Water from the Licensor’s Water Supplier pursuant to clause 7.2 is not a breach of this clause.
(d)The Concessionaire shall purchase all Coca-Cola Drinks to be sold at the Market from Coca-Cola, or from a distributor approved by the Licensor. The Concessionaire shall enter into any agreement and complete any documentation reasonably requested by Coca-Cola or the Licensor in connection with Coca-Cola’s supply of Coca Cola Drinks to the Concessionaire.
8Receipts and Licensor’s Charges
This section describes how the Licensor’s Charges (which are set out in the Key Terms) are calculated and paid.
8.1The Licensor shall collect all payments from the customers of the Concession, including gratuities paid (if applicable) by customers of the Concession to the Concessionaire’s staff (“Payments”) through the use of the POS System. Unless otherwise agreed, the POS System is the only payment system the Concessionaire is permitted to use when taking Payments.
8.2The Concessionaire may also collect Payments by debit/credit cards, by mobile phone payment or by pre-paid cards if permitted by the Licensor in writing.
"Processing Fee" means any credit card processing fees charged by credit card companies to the Licensor as a processing fee for tips and gratuities, based on the average percentage charged.
8.3The Licensor shall charge to the Concessionaire the Processing Fee.
8.4In consideration for the Concessionaire’s use of:
Licensor's Charges and its component parts are defined and specified in Module 1 Part 1 (Key Terms).
(a)the Licensor’s goodwill and name;
(b)the Common Area; and
"Gross Sales" means the total income of the Concession as reported through the POS System less any applicable Sales Tax.
(c)for its receipt of the Licensor’s Services,
the Licensor shall deduct the Licensor’s Charges from the Gross Sales prior to sending payment to the Concessionaire. The mechanics are described (and illustrated) below.
Sales Tax means any and all transactional taxes imposed by the State of New York on gross receipts. The term “Sales Tax” includes: sales, use, gross receipts, retail occupation, service occupation, excise taxes, food and beverage, communications, admissions amusement and other transaction based fees or taxes administered by State and local taxing authorities on gross receipts.
8.5On the 15th day of each month (the “First Concessionaire Remittance Date”) and on the last day of each month (the “Second Concessionaire Remittance Date”), the Licensor shall calculate the Gross Sales and all gratuities paid by customers of the Concession to the Concessionaire’s staff, less the Licensor’s Charges, and the Licensor shall remit sums due to the Concessionaire by no later than 10 Business Days from each First Concessionaire Remittance Date and no later than 10 Business Days from each Second Concessionaire Remittance Date (as applicable).
8.6For the purposes of establishing the amount due to the Concessionaire, the Licensor shall:
(a)Within 2 Business Days following the First Concessionaire Remittance Date and within 2 Business days following the Second Concessionaire Remittance Date, provide a half-monthly sales report to the Concessionaire.
(b)Within 7 Business Days following the First Concessionaire Remittance Date and within 7 Business Days following the Second Concessionaire Remittance Date, provide a statement which shows the calculation of the Licensor’s Charges for the relevant half-month and amount to be remitted to the Concessionaire.
(c)Within 10 Business Days of the First Concessionaire Remittance Date and 10 Business Days of the Second Concessionaire Remittance Date, pay to the Concessionaire the Gross Sales and gratuities less the Licensor’s Charges. The resulting sum is referred to as the “Concessionaire’s Share”.
The operation of clauses 8.5 and 5.6 are shown below for illustration purposes only.
First day of the month15th day of the month
First Concession Remittance Date 		Last day of the month
Second Concession Remittance Date		.
▼▼▼.
+ 2first half month sales report+ 2second half month sales report
+ 7statement of Licensor's Charges+ 7statement of Licensor's Charges
+ 10pay Concessionaire's Share+ 10pay Concessionaire's Share
8.7Licensor shall be solely responsible to account for, file and remit the Sales Tax assessed and/or imposed with respect to Gross Sales to the taxing authority.
8.8Nothing in this clause 8 absolves the Concessionaire of its responsibility to timely pay its staff in accordance with all applicable wage and hour laws, including the distribution of any tips and gratuities left for Concessionaire’s staff, on the staffs’ regular pay day.
9Deposit
This clause governs the provision and management of a deposit, if payable. Module 1 (Key Terms) will state whether a deposit is payable.
9.1This clause 9 applies if a Deposit is payable under this Agreement. In this clause, and when used elsewhere in this Agreement, these words have the following meanings:
"Account" means a separate, interest bearing deposit account at the Bank, details of which shall be notified to the Concessionaire by the Licensor in writing.
"Bank" means Citibank and its successors and assigns or another bank or building society as the Licensor may from time to time nominate.
9.2The Concessionaire shall pay the Licensor the Deposit upon signature of this Agreement which shall be held by the Licensor in the Account during the Term of this Agreement in order to offset the expenses and damages the Licensor may suffer as a result of the breach of the terms of this Agreement by the Concessionaire either during or at the end of the Term.
9.3The Concessionaire warrants to the Licensor that:
(a)the Deposit is, and shall at all times be, free from any charge, encumbrance or other security interest in favour of any third party; and
(b)it shall not create any further charge, encumbrance or security interest over the whole, or any part, of the Deposit or the Account.
9.4The Licensor is not obliged to secure any particular rate of Interest and shall be entitled to open the Account of its choosing with the Bank in order to hold the Deposit.
9.5The Licensor shall not be liable to the Concessionaire for any loss to the Deposit or any loss of Interest arising from any act or default unless such loss arises from the wilful misconduct or gross negligence of the Licensor.
9.6Any time the Concessionaire breaches this Agreement, the Licensor shall be entitled to withdraw from the Deposit such proportion of the Deposit as may be reasonably necessary to make good that breach.
9.7At the end of the Term and in accordance with this clause 9, the Licensor shall refund the remaining Deposit (if any) to the Concessionaire upon final remittance of the Concessionaire’s Share for the final preceding month and upon Concessionaire’s satisfaction of all payment and performance obligations.
The operation of clause 9.7 is shown below for illustration purposes only.
Concessionaire
Last day of the final month of the TermLicensor
▼
+ 10pay final Concessionaire's Share
satisfy any remaining obligations
refund remaining Deposit (if any)
9.8If this Agreement is terminated early by the Concessionaire, the Licensor may withdraw from the Deposit any sums necessary to satisfy losses and reasonably incurred costs arising from (or which it is reasonably foreseeable that the Licensor will incur as a result of) the early termination of the Agreement including the following costs:
(a)legal advisers and accountants for advice in connection with such early termination or disclaimer; and
(b)marketing the Unit for relicensing purposes.
9.9The Licensor shall give written notice to the Concessionaire within five (5) Business Days following each and every withdrawal made specifying the amount of the withdrawal, the date of the withdrawal and the invoice or liability to which the withdrawal relates.
9.10Any Interest accrued on the Deposit may be used by the Licensor to cover its administration costs and expenses related to the Unit and any costs associated to maintaining the Account (including all Bank charges).
10The Licensor's obligations
Other obligations of the Licensor in addition to its provision of the Unit, equipment and services.
10.1The Licensor shall:
(a)permit the Concessionaire (in common with the Licensor and others so entitled) free passage during the Access Hours to and from the Unit along such routes and by such manner and subject to such conditions as the Licensor may prescribe for the purpose of operating, stocking and staffing the Concession; and
"Access Hours" are as set out in the Concession Operations Guide or such other times during which the Concessionaire is permitted access to the Site as notified to the Concessionaire from time to time.
(b)provide the Licensor’s Services with reasonable skill and care.
11The Concessionaire's obligations
This section sets out the obligations of the Concessionaire, covering topics such as compliance, good management practices, management of personnel, cleaning and waste, customer care and promotional activities. It also contains some important prohibitions and instructions for what to do on termination of the Concession.
11.1Administrative obligations. The Concessionaire shall:
(a)prior to the Start Date and on request during the Term, provide to the General Manager: (i) any documents required in connection with local licensing requirements; and (ii) any documents required by law in connection with food handling and food management licensing;
The Start Date is when the Concession is due to start and is defined in Module 1 Part 1 (Key Terms).
(b)within 10 business days of the date of this Agreement complete the Data and Image Capture and Permissions Form (form appended to this Agreement at Module 4) and provide a copy to the Licensor;
(c)at all times remain in good standing with tax authorities and timely collect, file and remit all applicable state and local, use, excise, privilege or other tax levied by state and local tax authorities on property and/or gross receipts (excluding Sales Tax);
(d)if the Concessionaire is a corporation, partnership, limited liability company, association or other organization the Concessionaire shall at all times make all necessary corporate filings and keep itself duly organized, in good standing and legally qualified to do business.
11.2Compliance with laws and policies. The Concessionaire shall:
(a)at all times comply with the Concession Operations Guide, the menu guide and the Unit personalisation guide;
(b)at all times comply with:
(i)all OSHA Laws . "OSHA Laws" means the Occupational Safety and Health Act of 1970 (OSH Act) and all other legislation, codes of practice and guidance notes relating to health and safety applicable to Concessionaire, as are in effect from time to time;
(ii)any applicable licensing legislation;
(iii)any applicable law concerning places of public accommodation;
(iv)any applicable labor and employment laws, including, without limitations, laws against discrimination and harassment and wage and hour laws; and
(v)all other laws and governmental and quasi-governmental and insurance rules and regulations,
applicable to the Services in the jurisdiction of the Market;
(c)ensure that each product manufactured, sold or delivered by the Concessionaire (including any inventory): (i) complies and has complied in all respects with all laws, including all Food and Drug Laws, (ii) has been manufactured, stored and delivered in accordance with appropriate “Good Manufacturing Practices” or similar practices that may be promulgated under the Food and Drug Laws, (iii) is not and will not be adulterated or misbranded within the meaning of the Food and Drug laws, (iv) has not been, is not, and will not be prohibited from being introduced into interstate commerce under the provisions of any Food and Drug Laws, and (v) has not contained, does not contain and will not contain a hazardous substance or a banned substance within the meaning of any of any Food and Drug Laws.
“Food and Drug Laws” means (a) the Federal Food, Drug and Cosmetic Act and all rules, regulations and acts amending or supplementing such act, (b) the Food Additives Amendment of 1958, (c) the Fair Packaging and Labeling Act, (d), the rules and regulations promulgated from time to time by the U.S. Department of Agriculture, (e) the Color Additives Amendment of 1960, (f) the Federal Trade Commission Act, (g) the Organic Foods Production Act of 1990, (h) United States Code of Federal Regulations, Sections 101.4 and 101.22, (i) United States Code of Federal Regulations, Section 101.9(a) through (c), (j) the Filled Milk Act, (k) the pure food and drug laws of each state of the United States or foreign country into which any product or inventory of the Concessionaire would normally be shipped, (l) the Nutrition Labeling and Education Act of 1990, (m) all current and future amendments to the foregoing, together with all regulations and rules related thereto and (n) any U.S. Food and Drug Administration (FDA) (or state or local regulatory body) rules, regulations or acts applicable to the Concessionaire and its products and inventory.
(d)ensure that all Packaging used by the Concessionaire complies with the Food and Drug Laws, and is usable in the ordinary course of business for products sold to retail or food service accounts. The Concessionaire warrants that it has not used any Packaging which does not comply with all laws, including the Food and Drug Laws;
"Packaging" means the packaging (if any) used by the Concessionaire for the food, beverages and any other goods sold to customers at the Concession including take away boxes, carrier bags and tableware from time to time;
(e)store all food, beverages and other goods offered for sale in accordance with all applicable health and safety laws and regulations and operate a regular stock turnaround/inventory rotation, ensuring all items are within their “use by” date at the point of sale to any customer at the Concession;
(f)provide the Licensor with supply chain information in respect of all items or dishes sold from the Concession within ten (10) Business Days from the date of request;
(g)permit and facilitate inspection of the Unit by the Licensor and its Representatives and by public authorities at all times.
11.3Concessionaire’s personnel and security. In operating the Concession, the Concessionaire shall:
(a)employ or otherwise engage its own staff to assist in the operation of the Concession;
(b)be solely responsible, and control the terms of employment, for its staff including wages, benefits, employment tax, unemployment insurance, immigration status and any other benefits. For the sake of clarity, the Concessionaire shall be directly and solely responsible for: (a) hiring or firing any Concessionaire employee; (b) administering any disciplinary procedures; (c) maintaining any time or payroll records; (d) handling Concessionaire’s payroll, including the distribution of any tips and gratuities left for Concessionaire’s staff on the staff’s regular pay day; (e) obtaining workers compensation insurance; and (f) supervising Concessionaire’s employees; or (g) otherwise control or affect the conditions of the Concessionaire’s employees;
(c)ensure that all its staff are familiar with and comply with all health and safety laws and regulations, and any security, safety and other codes of practice for workers and employees applicable at the Site in accordance with the Concession Operations Guide or as otherwise notified by the Licensor or its authorized representatives from time to time;
(d)ensure that all staff at the Concession are legally eligible to work at the Site and make available to the Licensor upon request all relevant paperwork, references and identity checks required by law;
(e)adequately secure the contents of the Unit following each service prior to vacating the Unit;
11.4Cleaning, waste and good repair. In operating the Concession, the Concessionaire shall:
(a)provide a copy of a weekly cleaning schedule for approval by the Licensor (the “Cleaning Schedule”) in advance of the Start Date and any time the Cleaning Schedule is changed. Once approved by the Licensor in writing, the Concessionaire shall comply with the Cleaning Schedule. If the Licensor fails to comply with the Cleaning Schedule, the Concessionaire will be liable for a fine equal to $250 for each scheduled clean that is missed (the “Cleaning Fine”). The Licensor reserves the right to deduct the Cleaning Fine(s) from the Concessionaire Share;
(b)exert the utmost vigilance in preventing and detecting signs of rodents and other vermin and insect infestation and, if discovered, immediately report to the Licensor such infestation;
(c)ensure that waste is collected and stored in accordance with the Licensor’s waste management policy to permit disposal by the Licensor in accordance with the Concession Operations Guide;
(d)keep and maintain the interior, exterior and the fixtures and fittings and equipment installed at the Unit in clean, orderly, sanitary and good repair and if at any time the Licensor is of the opinion that the Concessionaire is not complying with its requirements or any of them, the Licensor may without prejudice to any of the other remedies available to the Licensor (including termination of this Agreement), give to the Concessionaire a written notice of the steps required to ensure compliance with the said provisions and the Concessionaire shall at its own expense comply with such requirements without delay.
11.5Good management. In operating the Concession, the Concessionaire shall:
(a)conduct the Concession on its own account and as such be responsible for all risks, costs, expenses and claims of any nature arising from its conduct of the Concession;
(b)operate the Concession in a proper, efficient and courteous manner, in accordance with best industry practice and to the satisfaction of the Licensor, and use best efforts to create a welcoming environment for customers;
(c)pay all costs and operating expenses in respect of its operation of the Concession;
(d)attend such meetings and workshops at the Site in relation to the Concession as the Licensor shall reasonably require;
(e)observe and comply with all reasonable verbal or written instructions and policies given by the Licensor or its authorised representatives at any time, including the Concession Operations Guide, pest control procedures, security, environmental handling procedures, health and safety procedures and the mandatory policies (Module 6) of the Licensor;
(f)permit the Licensor or its Representatives to enter the Unit at all times for all purposes including to verify the proper and effective management of the Concession and the Site;
(g)provide to the Licensor on request, on an open book basis, its operational costs in respect of the Concession (including cost of staff, food, insurance);
(h)maintain adequate stocks for the Concession to meet the reasonably expected demand of customers during the Trading Hours;
(i)deal promptly and courteously with any complaints from customers and on the basis that if the interests of the Licensor and of the Concessionaire should conflict, the interest of the Licensor shall prevail.
11.6Promotion and discounts. The Concessionaire shall:
(a)use all reasonable efforts to develop the public goodwill or positive image of the Licensor and the Site, including cooperating with the Licensor and its Public Relations agency and participating in no less than two (2) public relations initiatives or marketing events every 6 months during the Term, in a timely manner, meeting all deadlines and providing any information and material reasonably requested for these purposes;
No less than 2 public relations initiatives or marketing events every 6 months.
(b)upon reasonable request and the Licensor giving reasonable notice, participate in occasional unique chef led marketing and promotional events (e.g. preparation of a tasting menu event) at the Site;
(c)offer a 15% discount to the Licensor’s staff at the Market on presentation of a valid staff ID
15% discount to TimeOut staff.
11.7Prohibited behaviours and activities. The Concessionaire shall not:
(a)operate any business or trade at the Unit except the Concept;
(b)open another concept under the same name or style in a communal dining, street food, or food court environment anywhere within the area shown outlined in black on the plan included in Module 1, Part 5 (Site location and Non-Compete Area). This restriction does not apply to any of the Concessionaire’s concepts existing prior to the date of this agreement;
See non-compete area outlined in black in Module 1, Part 5 (Site location.)
(c)sell any item from the Concession at a price greater than the price of an equivalent or similar dish sold in another concept owned or operated by the Concessionaire or its Affiliates outside of the Market;
Dishes should not be more expensive than outside of the Market.
(d)trade or have any independent relationship with any pre-ordering companies or delivery companies (such as Deliveroo by way of example) in connection with the operation of the Concession at the Site (save for in accordance with Module 7 if included), however in addition to the obligations contained in Module 7 the Concessionaire shall accept orders via the POS system that have been placed via Licensor owned or supported apps (e.g. Pre-oday);
(e)deliberately misuse or waste products that are supplied by the Licensor to the Concessionaire (such as napkins, china, glassware, silverware) and in the event of any misuse or waste Licensor reserves the right to deduct the associated costs incurred by Licensor from the Concessionaire’s Share;
(f)damage the Site, the Unit, or any part of them;
(g)alter, rearrange or re-site the Unit;
(h)at any time (including after the Term) make statements or representations or take any action which may directly or indirectly disparage the Site, or the Licensor or any of its Affiliates, officers, directors and employees or damage the integrity, reputation or goodwill of the Licensor;
(i)pledge the credit of the Licensor or represent itself as being the Licensor, or an agent (except as expressly permitted by this Agreement) or partner of the Licensor.
11.8Violation matrix. The Concessionaire confirms that it has read and understood the violation matrix at Module 5 of this Agreement. In the event that the Concessionaire fails to comply with any written warnings sent by the Licensor as a result of its failure to comply with the violation matrix the Concessionaire shall be liable for all fines as set out within.
11.9Non-solicitation. During the Term of this Agreement, and for a period of six (6) months after the termination of this Agreement for any reason, the Concessionaire, and all its Affiliates, will not, without prior written authorization from the Licensor, directly or indirectly: (i) solicit, encourage, or induce, or attempt to solicit, encourage, or induce, any employee of the Licensor to leave the Licensor’s employ; or (ii) hire, solicit, recruit, induce, or encourage, or attempt to hire, solicit, recruit, induce or encourage, any individual who at any time during the twelve (12) months preceding the termination of this Agreement was an employee of the Licensor, or the employee of another Concessionaire within the Market to become employed by or provide services to the Concessionaire and its Affiliates.
11.10Exit Procedure. Upon the expiration or earlier termination of this Agreement:
(a)the Concessionaire shall: (a) remove all Concessionaire stock, food, staff items and property and any other loose items; (b) carry out a final deep clean of the Unit and any applicable staff lockers or storerooms; (c) remove any Concessionaire customizations permitted in accordance with clause 5; and (d) return the Unit to the general state and cleanliness upon which it was accepted (subject to reasonable wear and tear) (together, the “Exit Obligations”);
(b)the Exit Obligations shall be carried out subject to the Licensor’s final approval (not to be unreasonably withheld) and within a reasonable period which shall be not be more than calendar 5 days from date of expiration or termination of this Agreement;
(c)Licensor shall be entitled to withhold payment of the final remittance of the Concessionaire’s Share for the final preceding month to the Concessionaire until Concessionaire has completed its Exit Obligations;
(d)once the Concessionaire has satisfied its Exit Obligations (as notified in writing by the Licensor) Licensor shall remit the final payment of the Concessionaire’s Share to the Concessionaire within 5 Business Days.
12Liability and Indemnity
This section deals with allocation of risk. You operate the Concessionaire on your own account and risk and therefore there are important limitations on our liability, should things go wrong.
12.1The Licensor shall not be liable to the Concessionaire, whether in contract, tort (including negligence) or restitution, or under any doctrine of breach of statutory duty or misrepresentation, or otherwise, for: (a) any loss of profit; (b) loss of goodwill; (c) loss of business; (d) loss of business opportunity; (e) loss of anticipated saving; (f) loss or corruption of data or information; (g) or special, indirect, punitive, exemplary or consequential damage or loss, that arises under or in connection with this Agreement or the Concessionaire’s operation of the Concession.
12.2Nothing in this Agreement excludes or limits either party's liability to the other party for: (a) death or personal injury as a result of negligence or wilful misconduct; (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot be limited or excluded by law.
12.3The Concessionaire shall indemnify the Licensor against all liabilities, costs, expenses, damages and losses suffered or incurred by the Licensor arising out of or in connection with:
"losses" include any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties, and legal costs and all other reasonable professional costs and expenses.
(a)any damage to the Unit or the kitchen equipment caused by the Concessionaire (excepting damage caused by reasonable wear and tear);
(b)any claim made against the Licensor for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Licensor’s use of the Concessionaire’s Marks;
(c)any claim made against Licensor with regard to Concessionaires’ breach of privacy laws and regulations;
(d)any claim made against the Licensor by a third party for death, personal injury or damage to property arising out of or in connection with the Concessionaire's breach or negligent performance or non-performance of this Agreement or breach of statutory duty; or
(e)any failure of Concessionaire to pay sales, income,use or other taxes arising from its business operations, or timely file relevant tax returns.
12.4Each party shall mitigate its loss, including in relation to indemnities, and nothing in this Agreement acts to reduce such duty to mitigate.
13Insurance
The Licensor is required to have insurance coverage for the activities it carries out at the Site.
13.1In accordance with the Licensor’s obligations to its landlord, the Concessionaire shall, from the Start Date and for the whole of the Term, maintain at least the following insurance with insurers authorized to do business under the laws of the State in which the Site is located:
(a)workers compensation on the Concessionaire’s employees in the amounts no less than required by law;
(b)employer's liability insurance with a limit of $1,000,000;
(c)commercial general liability insurance, including bodily injury and property damage, contractual liability and products and completed operations with a $1,000,000 per occurrence, $2,000,000 aggregate;
(d)excess umbrella liability with a limit of $5,000,000.
13.2The Concessionaire shall provide Licensor with a certificate of insurance attesting to the required insurance at least 10 days prior to the Start Date.
13.3The above policies (other than workers compensation policies) must name Licensor and the Licensor’s landlord as additional insured.
13.4The above policies must also contain a cross liability provision, be primary and non-contributory with insurance maintained by the Licensor and the landlord, contain a waiver of subrogation in favor of Licensor and the Licensor’s landlord, contain a severability provision, contain a per location aggregate, and grant 30-day notice of cancellation or material change to Licensor or the Licensor’s landlord.
14Branding and Publicity
Promotional activity in relation to the Market and use of Licensor's name and logo.
14.1The Concessionaire hereby grants to the Licensor the non-exclusive, sub-licensable right to use the Concessionaire’s name and logo for the promotion and operation of the Concession during the Term.
14.2The Concessionaire shall obtain the Licensor’s prior written consent (not to be unreasonably withheld or delayed) to all promotional activity, public statements or press releases issued by the Concessionaire in relation to the Concession or the Market more generally, however consent shall not be required to re-share a Time Out Market social media post or story.
15Intellectual Property
Further detail relating to the parties' intellectual property in their trade marks, and the permissions granted under this agreement.
"Licensor's Marks" means the Licensor’s name and logos (and the intellectual property rights subsisting in them).
"Concessionaire’s Marks" means the Concessionaire’s name and logo(s) (and the intellectual property rights subsisting in them).
In clauses 15.3 and 15.4, “Marks” means the Licensor Marks or the Concessionaire Marks as appropriate.
15.1The Concessionaire acknowledges that the Licensor’s Marks are valuable assets of the Licensor or its Affiliates, and the Concessionaire shall not use or allow use of such rights in any form or for any purposes without the prior written consent of the Licensor.
15.2The Licensor acknowledges that the Concessionaire’s Marks are valuable assets of the Concessionaire or its Affiliates and agrees that, save as expressly provided for in this Agreement, Licensor shall not use or allow use of such rights in any form or for any purposes without prior written consent of the Concessionaire.
15.3Neither party shall:
(a)sub-license, transfer or otherwise deal with the rights of use of the Marks of the other party granted under this Agreement;
(b)do, or omit to do, anything in its use of the Marks of the other party that could adversely affect the validity or the goodwill of such Marks;
(c)apply, or cause others to apply, for registration of the other party’s name or any Marks or other trade name or trademark of the other party in any jurisdiction; nor
(d)register any web domains containing an identifiable part of the other party’s name, any Mark or other trade name or trademark of the other party at any time during the term of this Agreement or after this Agreement is terminated or expires for whatever reason.
15.4Either party shall immediately enter into any document necessary for the recording, registration or safeguarding of the other party’s rights in its Marks at the other party’s cost.
16Confidentiality
Obligations to protect each other's confidential information.
16.1Except as provided by clause 16.2, the Receiving Party shall at all times during the continuance of this Agreement and after its termination:
"Confidential Information" means any information that is or has been disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to or in connection with the terms of this Agreement (whether orally or in writing, and whether or not such information is expressly stated to be confidential or marked as such) including all advice, data and information supplied to the Receiving Party pursuant to clause 16, unless the information:

• is public knowledge or is already known to the Receiving Party at the time of disclosure; or

• subsequently becomes public knowledge other than by breach of this Agreement; or

• subsequently comes lawfully into the possession of the Receiving Party from a third party.
(a)only use the Confidential Information for the purpose of performing this Agreement;
(b)keep the Confidential Information secure and not disclose any Confidential Information to any other person; and
(c)not use any Confidential Information for any purpose other than the performance of this Agreement.
16.2Any Confidential Information may be disclosed by the Receiving Party to:
(a)any governmental or other authority or regulatory body having the legal authority to request the Confidential Information;
(b)the Affiliates and legal or other representatives of the Receiving Party; or
(c)any employee, director, consultant or agent of the Receiving Party and Receiving Party Affiliate, to such extent as is necessary for the purposes contemplated by this Agreement, and provided the Receiving Party uses its best endeavours to ensure that the person in question keeps the information confidential and uses it only for the purposes for which the disclosure is made.
17Termination
There are various situations where one of us might want (or need) to exit the agreement early. This section sets out the circumstances and what happens next.
17.1Notwithstanding any other provisions for termination as set out in this Agreement, the Licensor may give notice in writing to the Concessionaire terminating this Agreement with immediate effect if:
(a)the Concessionaire fails to maintain the highest cleanliness standards in the Concession kitchen with routine cleans at least before and after every service and deep cleans of all cooking and kitchen equipment at least 4 times per month during the Term as evidenced by written logs which are available for inspection by the Licensor, OSHA, the New York Department of Health and Mental Hygiene and/or the U.S Food and Drug Administration (FDA);
(b)the Concessionaire fails to operate and produce products in compliance with all Food and Drug Laws or receives a citation under a Food and Drug Law;
“Food and Drug Laws” is defined in Module 2, clause 11 above.
(c)there has been a third and final warning issued under the Violation Matrix;
(d)after this Agreement comes into force there is any change in the management, ownership or control of the Concessionaire (and for the purpose of this clause 17.1, “control” in relation to the Concessionaire means its ability to direct the affairs of another whether by virtue of the ownership of equity, contract or otherwise);
(e)the Concessionaire purports to assign any of its rights or obligations under this Agreement other than as permitted;
(f)the Concessionaire delivers disproportionate (a variance of twenty (20) percentage points below the reported average monthly market growth rate) turnover performance for more than two (2) consecutive months in comparison to the rest of the Market excluding seasonal trends;
(g)The Concessionaire becomes involved in a legal dispute with any of their staff members which is related to or in any way connected with the Concessionaire’s distribution of its tips and gratuities; or
(h)The Licensor is taking active steps to close the Market.
17.2Either party may give notice in writing to the other terminating this Agreement with immediate effect if:
(a)the other party commits any material breach of this Agreement, and that breach (if capable of remedy) is not remedied within ten (10) Business Days of notice being given requiring it to be remedied;
(b)an order is made or a resolution is passed for the winding-up of the other party or an administrator is appointed by order of the court or by other means to manage the affairs, business and property of the other party or a receiver or similar official is validly appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt anywhere in the world; or
(c)the other party ceases, or threatens to cease, to carry on business.
17.3Except as otherwise provided in this Agreement, neither party shall have any further obligation to the other under this Agreement after its termination. The Concessionaire will not have the right to any termination payment, other than to receive outstanding payments of the Concessionaire’s Share (as defined in clause 8) duly accrued before the termination date. In all other respects, any termination of this Agreement shall be without prejudice to any rights or liabilities accrued at the date of termination. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in force.
If the Licensor is entitled to terminate this Agreement pursuant to a material breach by the Concessionaire, the Licensor may instead (at its sole discretion) elect to:
(a)refer the matter to its escalation procedure; and/or
(b)extend the period for remedying the breach; or
(c)in the case of termination under clause 17.1(a) (cleanliness standards), carry out any necessary additional cleaning of the Unit to ensure that the correct hygiene and food safety standards are maintained, and recharge the costs of such additional cleaning to the Concessionaire by way of deduction from the Concessionaire’s Share.
17.4In addition to the Licensor’s rights to withhold the Deposit (where a Deposit is required), if the Licensor terminates this Agreement as a result of a material breach by the Concessionaire, the Licensor shall be entitled to deduct all sums necessary to remedy the breach before making the final payment of the Concessionaire’s Share;
17.5In addition to the Licensor’s rights to withhold a Deposit and the Licensor’s rights at clause 17.5 (right to deduct sums to remedy the breach), if the Licensor terminates this Agreement as a result of a material breach by the Concessionaire, the Concessionaire acknowledges that the Licensor will incur substantial costs and economic losses as a result of the early termination. Accordingly, the Concessionaire shall pay to the Licensor as liquidated damages an amount equal to the average monthly Contribution to Licensor over the preceding twelve (12) months (or the number of months the Unit has been trading if less than twelve (12) months) multiplied by the number of remaining months of the Term. The Parties agree that such liquidated damages represent a fair, reasonable and proportionate amount to compensate the Licensor.
Liquidated damages apply if Licensor terminates this agreement due to Concessionaire's breach.
18Other legal provisions
Other general legal matters not covered elsewhere.
18.1Force majeure. Neither party shall be liable to the other party for any failure to perform or delay in performing the Agreement due to a Force Majeure event. The party relying on Force Majeure shall use its best efforts to bring the Force Majeure event to a close or to find a solution by which this Agreement may be performed despite the continuance of the Force Majeure event. If an event of Force Majeure continues for a continuous period of 14 days or more, the Licensor shall be entitled to terminate this Agreement.
“Force Majeure” means any circumstances beyond the control of a party which could not have been reasonably anticipated or avoided including any strike, lock-out or other form of industrial action, war, riot, civil commotion, act of terrorism, pandemic or epidemic or associated government lock-downs and border restrictions, malicious damage, embargoes and sanctions, new laws or government decrees, accident, breakdown of plant or machinery, fire, flood, storm, volcanic ash or act of God, difficulty or increased expense in obtaining workmen, materials, goods or raw materials.
18.2No agency or partnership. Concessionaire is an independent contractor and is not a legal representative or agent of Licensor for any purpose. Except as expressly set out in this Agreement, this Agreement shall not be construed as giving rise to the relationship of principal and agent, partnership or joint venture or entitle the Concessionaire to make any representation, enter into any contract, give any warranty or guarantee, or incur any liability on behalf of, or pledge the credit of, the Licensor. This Agreement does not create any joint employer relationship between Concessionaire and Licensor.
18.3Notices. Notice given under this Agreement shall be made by email and, if no “out of office auto-reply” or reply that the message was undeliverable is received by the sender, the notice will be deemed to have been delivered:
(a)on the same Business Day if transmitted prior to 5:00pm on a Business Day in the recipient’s time zone; or
(b)on the next Business Day if transmitted at or after 5:00pm in the recipient’s time zone.
The email addresses for service of any notices are as set out in the Key Terms (Module 1 Part 5) until such time as either party notifies the other in writing of any change.
18.4Acts of other concessionaires. The Licensor shall not be responsible to the Concessionaire for any act or omission of any other concessionaires (or their employees, representatives or agents) within the Site.
18.5Assignability. The Licensor may assign this Agreement and the rights and obligations contained within. The Concessionaire may not assign, sub-contract, license or in any way dispose of its rights or obligations under this Agreement without the prior written consent of the Licensor.
18.6Change of control. The Concessionaire shall inform the Licensor immediately of any changes in ownership or control (as defined in clause 17.1.4) of the Concessionaire and of any change in its organization or method of doing business which might affect the performance of the Concessionaire’s duties under this Agreement.
18.7No waiver. The failure or delay of a party to exercise or enforce any right under this Agreement shall not operate as a waiver of that right or preclude the exercise or enforcement of it at any time.
18.8Third party rights. This Agreement will not be construed to give any person, other than the parties to this Agreement, any interest or rights, including any third-party beneficiary rights. No person not a party to this Agreement has any right to enforce any provision of this Agreement.
18.9Entire agreement. This Agreement constitutes the entire understanding between the parties with respect to its subject matter and replaces all prior agreements, negotiations and discussions between the parties relating to it.
18.10No representations. The Concessionaire confirms that it has not been induced to enter into this Agreement by any representation, warranty, or undertaking (whether made negligently or innocently) not expressly incorporated into this Agreement. All conditions, warranties or other terms implied by law are excluded to the fullest extent permitted by law. However, nothing in this Agreement excludes liability for any fraudulent statement or act.
18.11Variation. No variation of this Agreement is valid unless it is in writing and signed by each of the parties.
18.12Announcements. Neither party shall make any disclosure or announcement relating to this Agreement without the prior written approval of the other party, except as required by law or by any legal authority.
18.13Severance. If any provision of this Agreement is held to be unlawful, invalid or unenforceable, in whole or in part, such provision shall to that extent be severed from this Agreement as far as possible without affecting the legality, validity or enforceability of the remainder of this Agreement.
18.14Set-off. The Concessionaire shall not withhold payment of any sums after they become due by reason of any right of set-off or counterclaim.
18.15Agency. The Concessionaire:
(a)designates and appoints the Licensor to act as its agent, granting the Licensor full authority to represent, and act in the name of and on behalf of, the Concessionaire for receiving sums due from customers who purchase meals and other goods and services from the Concessionaire at the Site using prepaid cards issued by the Licensor, and to take all necessary action to settle such payment obligations between customers and the Concessionaire by forwarding the sums due;
(b)acknowledges that the obligation of each customer who uses a Licensor prepaid card to make purchases from the Concessionaire is fulfilled completely by payment of the outstanding sum(s) to the Licensor, and in the event that the Licensor does not remit the sum(s) due to the Concessionaire, the Concessionaire’s sole recourse is against the Licensor.
19 Law and Jurisdiction
How this agreement is interpreted and which courts will have jurisdiction to resolve disputes.
19.1This Agreement, and all claims (whether at law or in equity, whether under contract, tort, statute or otherwise) arising in connection with it will be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.
19.2If the Dispute is not resolved as contemplated by clause 20 (if either party fails to participate or ceases to participate in the stated procedure or a final determination is not made), the Dispute shall be finally resolved by the courts of New York, New York.
19.3Each of the parties submits to the exclusive jurisdiction of any state or federal court sitting in New York, in the State of New York, in any action or proceeding arising out of, or relating to, this agreement, agrees that all claims in respect of the action or proceeding may be heard and determined in any such court and agrees not to bring any action or proceeding arising out of, or relating to, this agreement in any other court. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Each party agrees that service of summons and complaint or any other process that might be served in any action or proceeding may be made on such party by sending or delivering a copy of the process to the party to be served at the address of the party and in the manner provided for the giving of notices in Module 1. Nothing in this section, however, shall affect the right of any party to serve legal process in any other manner permitted by law. Each party agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law.
20Disputes
We want to resolve disputes in a sensible manner, without having to litigate in a court of law. This is a process for attempting to resolve disputes commercially.
20.1If any Dispute arises in connection with this Agreement then the parties shall follow the procedure set out in this clause:
(a)either party shall give to the other written notice of the Dispute, setting out its nature (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the Site General Manager of the Licensor and General Manager of the Concessionaire shall attempt in good faith to resolve the Dispute;
(b)if the Site General Manager of the Licensor and General Manager of the Concessionaire are unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the Commercial Director of the Licensor and General Manager of the Concessionaire who shall attempt in good faith to resolve it; and
(c)if the Commercial Director of the Licensor and General Manager of the Concessionaire are unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Within 10 days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing ("ADR notice") to the other party to the Dispute and send a copy of the ADR notice to CEDR. The mediation will start not later than 30 days after the date of the ADR notice.
20.2This clause does not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The commencement of mediation will not prevent the Parties commencing or continuing court proceedings in relation to the Dispute under clause 19, which clause shall apply at all times.
20.3This clause 20 in its entirety is subject to clause 21 (Adequacy of damages).
21Adequacy of Damages
21.1Each party acknowledges that money damages may be both incalculable and an insufficient remedy for any breach of clauses 16 (Confidentiality), 12.3.3 (breach of privacy laws) and 15 (Intellectual Property) and that any such breach may cause the other party irreparable harm. Accordingly, in the event of any such breach or anticipated breach, the other party, in addition to any other remedies at law or in equity it may have, shall be entitled, without the requirement of posting a bond or other security, to seek equitable relief, including injunctive relief and specific performance from any court of competent jurisdiction.
22Anti-Bribery
Compliance and doing the right thing, is central to how we work at Time Out. We expect all our business partners to meet high standards too, especially in relation to anti-bribery laws.
22.1Concessionaire shall comply with the Licensor’s Anti-Bribery Policy set out in Schedule 6 to this Agreement and with applicable law in any dealings with national, state, local and/or foreign governments and government officials. Failure to comply may result in criminal or civil liability under the United States Foreign Corruption Practices Act ("FCPA"), UK Bribery Act or similar anti-corruption laws of this or other countries with extra-territorial application.
22.2The Concessionaire shall ensure that any person associated with the Concessionaire, who is performing services or providing goods in connection with this Agreement, does so only on the basis of a written contract which imposes on such person terms equivalent to those imposed on the Concessionaire in this clause 22. The Concessionaire shall indemnify and hold harmless the Licensor against all liabilities, costs, damages and losses incurred as a result of any breach by such persons of those terms.
M5
Module 5
Violation Matrix
WARNINGS FRAMEWORK⠀
1st WARNING
Licensor will send an e-mail communication as notice to comply within a stipulated time depending on the nature of the violation.
2nd WARNING
Licensor will send a written notice to the Concessionaire to take appropriate action with an extended deadline to comply.
3rd and FINAL WARNING
If Concessionaire repeats the violation or if the issue is still pending rectification, Licensor will send the final warning along with the penalty and if possible, the issue will be rectified by Licensor and invoice for the same along with the penalties will be deducted from monthly payment.
TYPE OF VIOLATIONPENALTY
Violation SpecificationSeverityFine (USD)Application
Bringing of heavy machineries/equipment requiring provisions without approvalMajor150For each violation
Failure to provide the required permits and authority documentation including hiring of staff without official authorization and approval.Major2000For each violation
Removing equipment without approvalMinor150For each violation
Executing and structural alteration, re-alteration, additions, or conversions without approvalsMajor2000For each violation
Serving of alcohol without approvalMajor2000For each violation
Serving of beverages that are not approved by LicensorMinor250For each violation
Failure to comply with Licensor trading hoursMajor500For each violation
Insufficient inventory/ stock/items available on the menu on frequent basisMinor500For each violation
Loud music from personal devices inside the kitchens disturbing guests and co-workers.Minor250For each violation
Conducting maintenance works inside or outside the kitchen without any approvalMinor500For each violation
Unattended kitchen during service hoursMinor250For each violation
Failure to maintain cleanliness of kitchen, equipment and meet overall HACCAP standards (or equivalent) according to board of health regulation.Major1000For each violation including official inspection fine. Rectification.
Failure to maintain cleanliness of external hoods and guest facing surfacesMinor500For each violation
Recurring service complaints from guests or poor online reviewsMajor1000For each violation
Serving raw or expired foodMajor1000For each violation
Taking anything that belongs to Licensor outside of the premisesMajor500For each violation
No usage of laptops inside or in front of the kitchens during trading hoursMinor150For each violation
Using different supplier without Licensor management's approval (i.e. water and soft drinks)Minor250For each violation
Unofficial price changes and selling without the approval of Licensor managementMinor250For each violation
Inconsistent portion size and quality of food servedMinor250For each violation
Failure on poor grooming and uniform standardsMinor500For each violation
Fire Detectors/Sprinkler heads coveredMajor500For each violation
Placing promotional items without Licensor approvalMinor500For each violation
Electrical connections/installations without approvals.Major1000For each violation
BOH is dirty - rubbish, stain, dumping oil, water, cigarettes, carton, etc.Major500For each violation
Misuse and damaging of the service elevators/usage of landlord carts or other items that are not Licensor assets.Major2000For each violation
Not have sufficient number of staff required to cope with volumeMinor500For each violation
Damage of equipment or anything related to LicensorMajor1000For each violation
Displaying merchandise outside kitchenMinor500For each violation
Using the loading bays for storage of goods other than the purpose of prompt loading and unloading of goods. Using storage outside of assigned area without Licensors approval.Minor500For each violation
M6
Module 6
Anti-Bribery Policy
RATIONALE
Time Out Market (New York) LLC together with its parent company Time Out Group PLC and their Affiliates (“Time Out”), has a moral and ethical duty to act with the highest standards of integrity and honesty in all it does. This Policy builds on Time Out's corporate responsibility to its customers, shareholders and colleagues to deter, prevent, detect and respond to those who would seek to use Time Out to facilitate any form of financial crime.
Time Out has no appetite for breaching bribery legislation and/or regulation. This includes activities conducted by an external party supplying services for or on behalf of Time Out or acting on Time Out’s behalf (the “Supplier”).
In the UK and the US these requirements are included in (amongst others):
●Bribery Act 2010, in particular; sections 1, 2 and 7 which enable the prosecution of individuals and commercial organisations;
●Bribery Act 2010 Guidance about procedures which relevant commercial organisations can put into place to prevent persons associated with them from bribing (section 9 of the Bribery Act 2010);
●Proceeds of Crime Act (POCA) 2002;
●Financial Conduct Authority (FCA) Handbook's Principles for Business, in particular, principles 1, 2, 3 and 8;
●FCA Financial Crime – a Guide for Firms (in particular Part 1 – sections 2 & 6, Part 2 – sections 9 & 13); and
●US Foreign Corrupt Practices Act 1977 (and any other jurisdictional legislation that has extraterritorial application).
In jurisdictions where the local legislative and regulatory requirements exceed the requirements set out in this document, the Supplier must comply with such higher standards. The primary aim of anti-bribery risk management is to ensure that payments, offers, promises of a bribe (making a bribe) or receipt, requests or acceptance of a bribe (being bribed) by an individual or associated party does not occur.
The purpose of this Policy is to:
●ensure compliance with anti-bribery legislation both in the UK, the US and in the other jurisdictions in which Time Out operates; and
●provide a consistent, proportionate and effective approach to anti-bribery through a framework of core requirements and a set of minimum standards.
DEFINITION
For the purposes of this Policy bribery is defined as 'an offer or receipt of any gift, fee, reward or other advantage to or from any person as an inducement to do something in the conduct of Time Out's business, which is dishonest, illegal or a breach of trust’.
SCOPE
This third-party version of the Policy applies to suppliers where it has been identified that Time Out Policy applies to the provision of their goods and or services.
TIME OUT MANDATORY REQUIREMENTS
The Supplier, and anyone engaged by the Supplier to act for or on behalf of Time Out, must not: a. offer, promise, give, request, agree to receive or accept a bribe; or b. do anything to circumvent controls in place to deter, prevent or detect bribery.
Required procedures
In order to comply with legislative requirements, Time Out’s approach to managing the risk of bribery is informed by the six core principles contained in the UK Ministry of Justice Guidance issued under Section 9 of the UK Bribery Act 2010.
The Supplier must ensure that in respect of the activities carried out for or on behalf of Time Out, it operates procedures (including controls, processes and operations) designed to manage the risk of bribery, which are:
●proportionate to the bribery risk (as identified through a risk assessment exercise);
●appropriate and relevant for the type of business;
●communicated to relevant parties (internal and external), including Time Out;
●documented in a clear comprehensible manner and be accessible to all relevant persons; and
●reviewed regularly to ensure they remain up-to-date and reflect current good practice.
Due diligence
The purpose of due diligence is to identify and mitigate the risk that a bribe is offered to obtain or retain business relating to Time Out, or an advantage in the conduct of Time Out or the Supplier’s business. The Supplier must complete risk-based anti-bribery due diligence on persons (including individuals and incorporated or unincorporated bodies) who will perform services for or on behalf of Time Out which is appropriate and relevant to such services.
In determining whether a person is acting for or on behalf of Time Out, the Supplier must consider the nature of the activity being undertaken. As a minimum, an agent, subsidiary or any other person obtaining, retaining or conducting business on behalf of Time Out must be subject to due diligence.
Due diligence for employees
The Supplier must assess the need for, and extent of, ongoing due diligence for persons engaged by it to identify and mitigate bribery risks.
Monitoring and Review
The Supplier must ensure that arrangements are in place to monitor regularly the continued adequacy and effectiveness of processes, systems and controls in order to assess compliance with this document. Where deficiencies are identified, Suppliers must resolve them without delay, escalate to Time Out where appropriate and monitor thereafter to identify and prevent any recurrence.
Gifts, Entertainment & Hospitality
The Supplier must not offer, either personally or on behalf of Time Out, gifts, entertainment and hospitality intended to unduly influence a decision-maker, supplier or customer in order to gain or retain business on behalf of Time Out. Charitable Donations The Supplier must not make any donations to charities for or on behalf of Time Out.
Political Donations
The Supplier must not make any political donations for or on behalf of Time Out.
Facilitation Payments
Facilitation payments are illegal under UK law. A facilitation payment is a payment which is made to expedite or secure the performance of a routine non-discretionary action, such as processing papers, issuing permits, and other actions by a person which they are already bound to perform. Facilitation payments which relate in any way to the services provided to Time Out are prohibited. In exceptional circumstances of duress (only where there is a threat to life, limb or liberty) facilitation payments may have to be made. Where possible, prior approval from Time Out must be obtained. In any event, all such facilitation payments must be reported to Time Out immediately.
The Supplier must ensure that:
●the risk of facilitation payments which relate in any way to the services provided to Time Out being requested is included in their risk assessment;
●all requests for such facilitation payments are reported to Time Out;
●suitable procedures to mitigate the risk are in place where there is a likelihood that facilitation payments will be requested (e.g., in certain jurisdictions). These procedures must include specific training for individuals who may have to manage such requests; and
●all those acting for or on behalf of Time Out are aware of their responsibilities in respect of facilitation payments even where these are declined or refused.
Reporting
The Supplier must ensure that all persons engaged by it are aware of routes to report instances of suspected bribery or attempted bribery. To the extent permitted under applicable law, the Supplier will, as soon as is reasonably practicable, notify Time Out in the event that a person acting on its or Time Out’s behalf is suspected of bribery or corrupt practices. The Supplier will promptly notify Time Out if the Supplier, or any person engaged by it, is prosecuted, charged with or convicted of any bribery-related offence.
Record Keeping
The Supplier must retain all records (electronic and paper and including relevant training records) relating to compliance with this document for a minimum of 10 years. This includes all significant decisions relating to the application of control requirements, which must be documented to demonstrate the rationale on which they are based.
KEY INDICATORS AND CONTROLS
The following indicators must be monitored and reported on by the business to evidence operating effectiveness of the mandatory key controls.
Control TitleControl DescriptionFrequency
Anti-Bribery TrainingAnti-Bribery training must be completed annually by all employees of the supplier (where they provide goods and services to Time Out that may introduce bribery risk)
Annually
Anti-Bribery ReportingAnti-Bribery Reporting Key Management information is submitted to Time Out via the supplier's usual Time Out contact; the information provided is accurate, timely and approved for submission.
As set out in the agreement.
NON-COMPLIANCE WITH TIME OUT MANDATORY REQUIREMENTS
Any material differences between the requirements set out above and the supplier’s own controls should be raised with the relationship manager responsible for liaising with Time Out and Time Out Legal Counsel.
M7
Module 7.
Deliveries.
Module 7 applies if it is incorporated in the signature page of this agreement, or if the parties subsequently agree in writing to enable deliveries.
1From time to time, at Licensor’s sole discretion, the Licensor may permit the Concessionaire to produce Delivery Products from the Unit, to be delivered to or picked up by end users via the food delivery service providers appointed by the Licensor. In such case, the Concessionaire will be permitted to accept and prepare orders of Delivery Products from the Unit, which may be processed for customer-collection or delivery by the Delivery Company, exclusively in partnership with the Licensor and the Delivery Company (the “Delivery Scheme”).
“Delivery Company” means DoorDash/Caviar co or both (as applicable), UberEats or any other food and drink delivery service company appointed by the Licensor to provide food ordering and delivery services from the Market from time to time. “Delivery Products” means food, drink and other ancillary products ordered via the Delivery Company’s app.
2Should the Concessionaire wish to participate in the Delivery Scheme, the Concessionaire shall notify the Licensor in writing on or before the date of this Agreement of its intention to participate and shall at all times act in good faith to cooperate with the Licensor and the Delivery Company. If at any point during the Term the Concessionaire decides that it no longer wishes to participate in the Delivery Scheme, the Concessionaire shall provide the Licensor with no less than fourteen (14) days prior written notice of its intention to withdraw.
3If the Concessionaire wishes to participate in the Delivery Scheme, the Concessionaire shall download the Delivery Company’s app for processing orders and receiving communications from the Delivery Company.
4The Concessionaire shall adhere to the guidance for participation in the Delivery Scheme as contained in the Concession Operations Guide.
5Once the Concessionaire has prepared the Delivery Products, those Delivery Products processed for customer-collection shall be collected by the customer at the Unit, and the Concessionaire shall take those Delivery Products processed for delivery to a designated drop off/pick up point within the Market (the “Delivery Pick Up Point”), as notified by the Licensor from time to time, where they will be collected by the delivery drivers.
6The Delivery Pick Up Point will not be staffed and will not have heated or cooled holding areas.
7The delivery drivers will not be permitted to pick up any Delivery Products directly from the Unit and will only be permitted by the Licensor to collect Delivery Products from the Delivery Pick Up Point. The delivery drivers will be permitted by Licensor to access the Delivery Pick Up Point via specific entry and exit points within the Market as designated by the Licensor at the Licensor’s sole discretion.
8The Concessionaire shall bring their Delivery Products to the Delivery Pick Up Point in a sealed bag or container with an attached receipt that is clearly visible to the delivery driver to enable the driver to correctly identify the order.
9The Concessionaire shall be solely responsible for coordinating the timing of bringing the Delivery Products to the Delivery Pick Up Point at the same time as the arrival of the delivery driver, based on notification of the delivery driver’s scheduled arrival time as notified by the Delivery Company to the Concessionaire via the delivery app.
10The Delivery Company shall at its sole discretion be responsible for the costs of any customer reimbursements that are required in connection with any delivery related issues (e.g., food spillage, late deliveries, issues with food temperature upon delivery due to delivery driver related delays etc).
11The Concessionaire will be responsible for all costs in connection with any issues relating to the Delivery Products (e.g., missing items, quality of product, items that are delivered to the Delivery Pick Up Point at the wrong time etc). Such costs will be deducted at the Delivery Company’s sole discretion before the Contribution to Licensor is deducted and the Concessionaire’s Share is remitted. The Licensor recommends that the Concessionaire only sells Delivery Products that can maintain their quality from preparation through to delivery with the end user.
12The Concessionaire is responsible for the costs of all Packaging of Delivery Products.
Packaging is defined in Module 2 clause 11.2 (Compliance with laws and policies).
13Upon request, the Licensor will provide the Concessionaire with a statement of all Delivery Product sales, including details of any customer refunds that have been applied.
14The Concessionaire and the Licensor are required to comply with the Delivery Company’s complaints and refunds policy and all other terms and conditions stipulated by the Delivery Company (available on request).
15Should the Concessionaire wish to accept and prepare orders of the Delivery Products from the Unit, the Concessionaire agrees to comply with the “core responsibilities”, set out below, and as stipulated by the Delivery Company:
16Concessionaire will, in a timely manner:
(a)Provide the Delivery Company with the Concessionaire’s in-store or take-out menu, including the price of each item on such menu;
(b)Monitor the Concessionaire’s menu and store information on the Delivery Company’s app, and promptly notify the Delivery Company and Licensor of any required updates to reflect the most up-to-date products, pricing and other information in writing;
(c)Accept all orders that are placed by via the Delivery Company (and if required the Concessionaire shall manually input orders received via the Caviar app on a tablet (to be provided by Licensor) into the POS systems before preparing the associated Delivery Products);
(d)Confirm all orders received from the Delivery Company via the app;
(e)Prepare each order’s Delivery Products processed for delivery, for pickup by a delivery driver at the designated time at the Delivery Pick Up Point;
(f)Process the orders for Delivery Products in the order in which they are received;
(g)Notify the Delivery Company and Licensor of any changes to the pricing, availability, description, or other characteristics of the Delivery Products that are required;
(h)Provide the same utensils, napkins, bags and other materials that the Concessionaire would typically provide in a standard take-out or delivery order; and
(i)On an ongoing basis, review and confirm the transactions, fees and charges on orders via the delivery app, and promptly communicate to the Delivery Company and Licensor any inaccuracies.
(j)The Licensor reserves the right to modify or adapt the obligations contained in this Module 7 at its discretion during the Term on first giving written notice to the Concessionaire.
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