THIS LICENCE is made the day of 2016
BETWEEN:-
(1)[INSERT NAME OF LANDLORD](company number: [INSERT COMPANY NUMBER])whose registered office is at [INSERT REGISTERED ADDRESS] (the “Licensor”) and
(2)AMAZON UK SERVICES LIMITED having its registered office at 60 Holborn Viaduct, London, EC1A 2FD(company registration number 03223028) (the “Licensee”)
WHEREBY IT IS AGREED as follows:-
- Definitions and interpretation
In this licence unless the context otherwise requires:-
1.1the words defined in this sub-clause have the following meanings:-
“Advertising Memo” means the supplemental memorandum completed on the date of this Licence relating to the display of advertisements on the Amazon Lockers.
“Affiliate” a body corporate in which the Licensee holds shares or other interests conferring the right to exercise 50% or more of the votes which could be cast on a poll at a general meeting of such body corporate
“Amazon Lockers”: Amazon-branded delivery kiosks/lockers used as storage units for deliveries authorised by the Licensee and “Amazon Locker” means any one of them
“Common Parts”: such roads, paths, entrance halls, corridors, lifts, staircases, landing and other means of access in or upon the Centrethe use of which is necessary for obtaining access to and egress from the Premises as designated by the Licensor from time to time
“Centre”: [INSERT NAME AND ADDRESS OF THE RELEVANT SHOPPING CENTRE / LOCATION]
“Group Company”: any company which is, from time to time:
(a)a subsidiary of the relevant party;
(b)the holding company of that party; or
(c)another subsidiary of the holding company of that party,
in each case within the meaning of section 1159 of the Companies Act 2006, save that for the purpose of this definition reference in section 1159 of the Companies Act 2006 to “a majority” shall be construed as if replaced by the words “at least half”
“Personnel”: carriers, customers, employees, representatives, agents, affiliates or sub contractors
“Premises”: the premises forming part of the Centreshown for identification purposes edged red on the plans annexed at Schedule 2 [If no plan – insert description and delete above]
“Licence Fee”: £[INSERT FEE IN FIGURES]([INSERT FEE IN WORDS]pounds)per annum (exclusive of business ratesbut inclusive of insurance, service charge and electricity usage) together with any Value Added Tax from time to time payable thereon (subject to receipt by the Licensee of a valid VAT invoice)
“Licence Fee Commencement Date”: the date of this licence
“Licence Period”: the period commencing on the date of this licenceand ending on [INSERT END DATE FOR LICENCE]and which may be extended for further periods of 6 months by mutual agreement between the parties
1.2Headings in this licence are for convenience only and will not affect its construction.
1.3Every obligation on a party not to do an act or thing includes an obligation not to allow it to be done.
1.4The words “include”“includes” and “including” are deemed to be followed by the words “without limitation”.
- Licence
In consideration of the Licence Fee and subject to the provisions of this licence the Licensor gives the Licensee the right (in common with the Licensor and all others authorised by the Licensor so far as is not consistent with the rights given by this Licence) to use the Premises for the installation and use of the Amazon Lockers for the Licence Period (subject to earlier termination in accordance with the terms of this licence).
- Licensee’s Undertakings
The Licensee gives and undertakes:-
3.1to pay to the Licensor the Licence Fee in advance by equal monthly payments on the 28th day of each month (the first payment (or a proportion) to be made on the Licence Fee Commencement Date);
3.2to keep the Amazon Lockers in good repair and decorative order;
3.3to keep the Licensor indemnified against liability:
3.3.1in respect of any accident, loss or damage to person or property in the Premises except where such accident, loss or damage was caused by an act, default or negligence of the Landlord;
3.3.2to third parties by reason of breach by the Licensee of its obligations in this Licence.
- Licensor’s obligations
The Licensor agrees with the Licensee as follows:-
4.1to provide the Licensee with access to a power supply connecting to the Amazon Lockers;
4.2to procure that the Licensor’s Personnel (where appropriate) will direct customers to the location of the Amazon Lockers upon a customers’ request for directions. If customers ask the Licensor’s Personnel for information regarding the Amazon Lockers, the Licensor’s Personnel should direct customers to follow the instructions on the Amazon Lockers;
4.3to keep the area around the Amazon Lockers clean and free from debris and to use reasonable endeavours to ensure that individual lockers are closed at the end of each day. The Licensor will not place items on or directly in front of the Amazon Lockers nor obstruct access to the Amazon Lockers and will not modify, remove, damage, or alter the Amazon Lockers in any way, including their appearance;
4.4if the Licensor or the Licensor’s Personnel become aware of an issue with the Amazon Lockers to promptly notify the Licensee;
4.5to protect and keep confidential the existence of this licence, its terms and conditions and any other information obtained from the Licensee in connection with this licence or related to this licence (including but not limited to all information relating to the Licensee’s technology, customers, business plans, marketing activities and finances). The Licensor will use such information only for the purpose(s) for which it was originally disclosed and in any case only for the purpose of fulfilling its obligations under this Licence;
4.6not to do anything that suggests or implies that the placing or operating of the Amazon Lockers at the Centre is a co-branded or co-sponsored initiative between the Licensor and the Licensee;
4.7The Licensor will procure that the Premises the Amazon Lockers and the area immediately surrounding them are observed by the Licensor’s security cameras and upon reasonable request the Licensor (subject to the Licensee complying with all relevant data protection legal requirements) will provide the Licensee with access to security recordings showing the Premises and the Amazon Lockers;
4.8to procure that its insurers:
4.8.1waive entitlement to rights of subrogation against the Licensee, the Licensee’s Personnel and persons enjoying the use of the Premises through or under the Licensee and their respective employees, workmen and visitors (“its occupiers”);
4.8.2incorporate a non-invalidation provision in respect of the Licensee and its occupiers;
4.9on termination of this licence by the Licensor pursuant to Clause 5.3, the Licensor shall indemnify the Licensee for any irrecoverable costs suffered by the Licensee as a result of such termination.
- Termination
5.1Either party may terminate this licenceby notice in writing to the other if either party shall be in material and persistent breach of any of its obligations under this Licenceprovided that in the case of a remediable breach, before any such termination notice can be served:
5.1.1the terminating party has first served written notice on the defaulting party stating the nature of the breach and the steps required to remedy the default (the “Breach Notice”); and
5.1.2the relevant breach has not been remedied within 10 Working Days of the Breach Notice.
5.2If the Premises or access to them are damaged or destroyed by fire or any other risk against which the Licensor has insured so as to be unfit for occupation and use or inaccessible either the Licensor or the Licensee may at any time after such damage or destruction may immediately terminate this Licence by written notice to the other and in such circumstances the Licensor shall repay to the Licensee as soon as reasonably practicable any pre-paid Licence Fee and Value Added Tax applicable to the period following the date of termination of this Licence.
5.3Either party may terminate this Licence at any time by giving to the other party not less than one month’s written notice to that effect. Following any such termination the Licensor will repay to the Licensee any sums paid to the Licensor applicable to a period following the date of termination of the Licence.
5.4Any termination of this Licence will, in all circumstances, be without prejudice to the rights of either part in respect of any antecedent breach of the terms of this Licence arising prior to the date of termination.
5.5Upon termination of this Licence the Licensee will remove the Amazon Lockers from the Premises as soon as is reasonably practicablemaking good to the Licensor’s reasonable satisfaction any damage caused to the Premises and / or Centre as a result of such removal.
- General
6.1The parties agree that this Licence shall not grant, nor entitle the Licensee to exclusive possession in respect of any part of the Centre and that no relationship of landlord and tenant is intended to be created nor are any landlord and tenant rights intended to be granted by this Licence.
6.2This licence is personal to the Licensee and is not assignable other than to a Group Company or Affiliate of the Licensee and the rights given in this licence may only be exercised by the Licensee (or Group Company or Affiliate of the Licensee to whom this Licence is assigned) and its Personnel.
6.3The Licensee owns the Amazon Lockers and the risk of loss or damage to the Amazon Lockers will remain with the Licensee (excluding loss or damage caused by any negligence recklessness wilful misconduct or failure to comply with the terms of this licence by the Licensor or its Personnel) and the Amazon Lockers shall at all times be a Licensee’s fixture and fitting and at no point shall the Amazon Lockers become the Licensor’s property.
6.4No party shall be under any liability whatsoever to any other party (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any pure economic loss, loss of profits, loss of business, loss of revenue, loss of contract, loss or depletion of goodwill and / or business opportunity, loss of anticipated earnings or savings, loss of production or for any indirect or consequential loss except that this shall not
6.4.1limit the indemnification obligations of either party under this Licence with respect to third party claims;
6.4.2apply to a breach of the confidentiality obligations under this Licence.
6.5The Licensor and Licensee each acknowledge that:
6.5.1neither party has any expectation and has received no assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Licence;
6.5.2neither party will have, or acquire by virtue of this licence or otherwise, any vested, proprietary or other right in the other party’s trademarks or in “goodwill” created by such party’s efforts hereunder; and
6.5.3neither party is liable for, and each party hereby releases the other party from and against any damages (including, but not limited to, consequential, punitive or exemplary), for any claims asserting that the other party has any obligation or commitment to extend, continue, renew or negotiate any relationship between the parties related to this Licence.
6.6The parties agree and covenant to comply with their respective obligations contained in the Schedules to this Licence and the Advertising Licence.
6.7Nothing in this license is to be construed as creating an agency, partnership or joint venture relationship between the Licensor and the Licensee.
6.8The Licensor will not use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of the Licensee or any of its affiliates in any manner without prior written authorisation of such use by a Vice President of the Licensee. The Licensor will not issue press releases or publicity relating to Amazon or this license or reference Licensee or its affiliates in any brochures, advertisements, client lists or other promotional materials.
6.9Nothing in this license is intended to confer on any person any right to enforce any term of this license which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999.
6.10The Licensee may:
6.10.1provide the Licensor with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case, the Licensor will not charge and or collect the taxes covered by such certificate;
6.10.2deduct or withhold any taxes that the Licensee may be legally obligated to deduct or withhold from any amounts payable to the Licensor under this Licence, and payment to the Licensor as reduced by such deductions or withholdings will constitute full payment and settlement to the Licensor of amounts payable under this Licence.
6.11This license is subject to English Law and all disputes will be heard within the exclusive jurisdiction of the English Courts and the parties irrevocably and unconditionally submit to the jurisdiction of the English Courts.
6.12The Licensor’s address in England for service of all notices and proceedings is [INSERT ADDRESS]the Licensor agrees that this will remain the address for service of proceedings and notices unless and until the Licensee has received written notice from the Licensor nominating an alternative address for service which must be in England.
6.13The Licensee’s address in England for service of all notices and proceedings is AMAZON UK SERVICESLIMITED, 60 Holborn Viaduct, London, EC1A 2FDand the Licensee agrees that this will remain the address for service of proceedings and notices unless and until the Licensor has received written notice from the Licensee nominating an alternative address for service which must be in England.
- Warranties
7.1The Licensee warrants that it has the right to place Amazon Lockers at the Premises and authorise products to be delivered to the Amazon Lockers
7.2The Licensor warrants that it has:
7.2.1such right title and interest in the Centre and such power and authority to enable it to enter into and perform its obligations under this licence and that by entering into this license it is not in breach of any obligation to any third party;
7.2.2the relevant planning permission is in place to enable the Amazon Lockers to be situated and operated from the Premises and there are no limitations as to access/servicing/delivery hours.
- Anti Corruption
8.1The Licensor acknowledges the Licensee’s Code of Business Conduct and Ethics posted at (the “Code”) prohibits the paying of bribes to anyone for any reason, whether in dealings with governments or the private sector. The Licensor represents and warrants that neither it nor any employee, agent or anymember, partner, affiliate, director, officer, servant, contractor or subcontractor of the Licensor acting on its behalf will:
8.1.1undertake, cause, or permit any act which would violateany applicable anti-corruption law, including, but not limited to, the U.S. Foreign Corrupt Practices Act, and the UK Bribery Act, or;
8.1.2make, cause, or permit any offer, promise, or payment of money or any other thing of value to any third party, directly or indirectly, to improperly influence the actions of any person, or to obtain any improper advantage in favour of the Licensee in connection with any services provided by the Licensee under this lease.
The Licensor will report promptly to the all pertinent facts relating to any improper solicitation, demand or other request for a bribe, improper gift or anything of value, made by any party in connection with any activities performed by the Landlord pursuant to this licence. The Licensor will fully assist and cooperate with any investigation of actual or suspected breach of this Clause 8.
- Relocation and Removal of Amazon Lockers
9.1If for any reason the Licensor requires the Amazon Lockers to be relocated withinthe Centre the Licensor will:
9.1.1give written notice to the Licensee of its intention to move the Amazon Locker; and
9.1.2within 14 days of giving such notice use all reasonable endeavours to identify a new location which is no less commodious within the Centre to the Licensee; and
9.1.3if such location is acceptable to the Licensee, the Licensee will relocate the Amazon Lockers to the new location as soon as reasonably practicable.
9.2If the Licensor cannot identify a location within theCentre in accordance with clause 9.1 or the Licensee does not approve the proposed new location within the Centre by the end of the notice period given in clause 9.1 then the Licensor shall use all reasonable endeavours to identify an alternative locationwithin the Centre to the Licensee within a further 7 days and if such alternative location is acceptable to the Licensee, the Licensee will relocate the Amazon Locker to the alternative location as soon as reasonably practicable.
9.3If by the end of the notice period given in clause 9.2 no mutually acceptable new location within the Centre has been identified pursuant to clause 9.1 and no mutually acceptable alternative location has been identified pursuant to clause 9.2 the Licensee shall as soon as reasonably practicable remove the Amazon Locker from the Centre.
9.4Upon removal of an Amazon Locker from the Centre pursuant to this clause 9, the Licensor shall repay to the Licensee as soon as reasonably practicable any pre-paid Licence Fee and Value Added Tax applicable to the period from and including the date of removal for the relevant Premises.
9.5If the removal or relocation of the Amazon Lockersis requested by the Licensor within the first 6 months after the initial installation date for the Amazon Lockers then 50% of the costs of install and move/removal will be borne by the Licensor. If the request comes within 3 months of initial installation then 75% of the install and move/remove costs will be borne by the Licensor unless the parties mutually agree to the contrary
AS WITNESS the signatures of the parties or their duly authorised representatives on the date first above written.
Schedule1
Rights granted
To allow the Licensee and the Licensee’s Personnel (as applicable):-
- to install Amazon Lockers at the Premises;
- to connect into any necessary electricity connections at the Centre to enable the Licensee to use and enjoy the Amazon Lockers in accordance with the Licensor’s reasonable requirements;
- at all reasonable times to enter the Common Parts for the purposes of installing, inspecting, servicing,replacing, removing or of making repairs to the Amazon Lockers, or its electricity connections;
- full free and unlimited access across the Common Partsto access the Amazon Lockers at all times;
- to place Amazon-branding on the Amazon Lockers in all circumstances without the consent of the Licensor provided that such branding is in the usual corporate colours and logo of Amazon from time to timein keeping with other lockers of the Licensee in the United Kingdom;
- to use the Licensor’s logo/branding in the Licensee’s own promotional material or for the purpose of guiding customers to the Centre and the Premises.
Schedule 2