KIOSK OR COUNTER SPACE LICENCE AGREEMENT
BETWEEN
__________, __________, of __________, PAN __________ (the "Licensor", which expression includes its successors in interest and permitted assigns);
AND
__________, __________, of __________, PAN __________ (the "Licensee", which expression includes its permitted assigns).
The Licensor and the Licensee are each a "Party" and together the "Parties".
RECITALS
B. The Licensor has agreed to permit the Licensee to use, without exclusive possession, the space described in Schedule I (the "Licensed Space") for the Permitted Use, on the terms of this Agreement.
C. The Parties intend this Agreement to create a licence within the meaning of Section 52 of the Indian Easements Act, 1882, and not a lease, tenancy or other interest in immovable property. Clause 2 states this in operative terms.
NOW THIS AGREEMENT WITNESSES as follows.
- 1. DEFINITIONS
1.2 "Licence Fee" means the amount payable under clause 5, as escalated or reconciled under that clause.
1.4 References to a statute are to that statute as amended or re-enacted, and include a statute as extended to the place where the Mall or Building is situated. Headings do not affect interpretation. The singular includes the plural.
- 2. GRANT OF LICENCE; NO EXCLUSIVE POSSESSION
2.1 The Licensor grants the Licensee a personal, non-exclusive and revocable licence to use the Licensed Space for the Permitted Use during the Licence Period, subject to this Agreement. This Agreement does not create a lease, sub-lease, tenancy or easement, does not transfer possession of the Licensed Space to the Licensee, and does not grant the Licensee any estate or interest in the Licensed Space, the Mall or Building, or any part of either.
2.2 The Licensor retains possession and control of the Licensed Space and of the Mall or Building at all times. The Licensor and its representatives, employees, contractors, security staff and other licensees may access, pass through and use the area in and around the Licensed Space at any time in connection with the operation, management, security and maintenance of the Mall or Building, and the grant of this Agreement does not derogate from that access or from the Licensor's overall control of the Licensed Space.
2.3 The licence granted by this Agreement is personal to the Licensee and, save as clause 15 permits, is not assignable, transmissible or sub-licensable, and does not survive a change in the constitution or controlling ownership of the Licensee.
- 3. RELOCATION
- 4. LICENSED SPACE AND PERMITTED USE
4.2 The Licensee shall use the Licensed Space only for the Permitted Use, and for no other purpose without the Licensor's prior written consent.
4.4 The Licensee shall obtain and maintain at its own cost every registration, trade licence, health or food safety approval, fire safety approval and other permission its business at the Licensed Space requires, and shall comply with all rules of the Mall or Building notified to it in writing from time to time.
4.5 The Licensee shall not use the Licensed Space for any unlawful, hazardous or nuisance-causing activity, and shall not store goods or materials outside the physical footprint of the Licensed Space or in any common area, corridor or fire exit of the Mall or Building.
- 5. LICENCE FEE
5.3 The Licence Fee shall be paid by electronic transfer to the Licensor's bank account, or to such other account in the Licensor's name as the Licensor notifies in writing at least fifteen days in advance.
- 6. SECURITY DEPOSIT
6.2 The deposit secures the Licensee's obligations under this Agreement. The Licensor may deduct from it only: unpaid Licence Fee; unpaid CAM contribution, utility or other charges the Licensee owes under this Agreement; the reasonable documented cost of making good damage to the Licensed Space or the Mall or Building caused by the Licensee, fair wear and tear excepted; amounts payable by the Licensee on early termination under the Lock-in clause; and the reasonable documented cost of any reinstatement the Licensee was obliged to carry out under the Expiry and Handover clause and did not.
- 7. TAXES
7.2 The Parties acknowledge that permitting the use of space for consideration, whether or not it amounts to a lease, is a supply of service under GST law. Where the Licensor is registered under GST, the Licensor shall raise a proper tax invoice for each month and pay the tax, so that the Licensee may take input tax credit where available. Where the Licensor is not registered under GST and the Licensee is registered, the reverse charge mechanism applicable, in specified circumstances, to the renting of commercial property is not assumed by this Agreement to extend to a bare licence fee by analogy; the Parties shall confirm the correct treatment before the first payment under this Agreement.
7.3 TDS: The Licensee shall deduct tax at source on the Licence Fee under Section 194-I of the Income-tax Act, 1961 where it attracts deduction under that section. The Explanation to Section 194-I defines "rent" to mean any payment, by whatever name called, under any lease, sub-lease, tenancy or ANY OTHER AGREEMENT OR ARRANGEMENT for the use of any land or building, whether or not the payee is the owner, so that a licence fee of this kind falls within it notwithstanding that this Agreement creates no tenancy. The Licensee shall deposit the tax within the prescribed time, file the return and furnish Form 16A to the Licensor. Where GST is charged and shown separately on the invoice, deduction shall be made on the amount excluding that tax. If a higher rate applies for want of a valid PAN under Section 206AA of that Act, the resulting shortfall is the Licensor's burden.
- 8. MAINTENANCE CHARGES AND UTILITIES
8.3 Utility and maintenance dues relating to the period before the licence start date are the Licensor's liability.
- 9. LICENSEE'S FIXTURES, SIGNAGE AND DESIGN COMPLIANCE
9.1 The Licensee may install a counter, fixtures, signage and equipment appropriate to the Permitted Use, at its own cost and with the Licensor's prior written consent as to design, which shall not be unreasonably withheld.
9.3 The Licensee shall not make any structural alteration to the Licensed Space or to the Mall or Building, and shall not affix anything to the structure, facade or common areas outside the physical footprint of the Licensed Space without the Licensor's prior written consent.
9.4 The Licensee's counter, fixtures and equipment remain its property throughout the Licence Period, subject to the Expiry and Handover clause.
- 10. REPAIRS
10.1 The Licensor shall keep the structure, services and common areas of the Mall or Building in good repair, and shall remedy a defect affecting the Licensed Space within a reasonable time of written notice.
10.2 The Licensee shall keep its own counter, fixtures and equipment in good repair and condition, shall keep the Licensed Space clean, and shall make good damage it or its staff or visitors cause to the Licensed Space or to the Mall or Building, fair wear and tear excepted.
- 11. INSURANCE
11.1 The Licensee shall insure its own stock, fixtures and equipment, and shall maintain public liability cover appropriate to its business, and shall produce evidence of cover on the Licensor's written request.
11.2 Neither Party shall do anything at the Licensed Space that voids or prejudices the other's insurance or the insurance of the Mall or Building generally.
- 12. LICENSOR'S UNDERTAKINGS
12.1 The Licensor has authority to grant this licence, and there is no subsisting agreement or restriction that prevents the Licensee's use of the Licensed Space for the Permitted Use during the Licence Period, subject to clause 3.
12.2 So long as the Licensee pays the Licence Fee and observes this Agreement, the Licensor shall not unreasonably interfere with the Licensee's use of the Licensed Space for the Permitted Use, subject always to clauses 2 and 3.
- 13. LICENSEE'S UNDERTAKINGS
13.1 The Licensee shall pay the Licence Fee and all other sums when due, use the Licensed Space only as permitted, comply with applicable law in the conduct of its business, and vacate the Licensed Space on expiry or termination as this Agreement requires.
13.2 The Licensee shall not do anything that creates a charge or encumbrance over the Licensed Space or the Mall or Building, and shall not claim any right in the Licensed Space beyond the licence granted by this Agreement.
- 14. DEFAULT, SUSPENSION AND TERMINATION
14.1 Each of the following is a default by the Licensee: the Licence Fee or other sums remaining unpaid for fifteen days after written demand; breach of a material term not remedied within fifteen days of written notice; use of the Licensed Space otherwise than for the Permitted Use, not stopped within seven days of written notice; or an assignment or sub-licence in breach of clause 15.
14.2 On a default by the Licensee that continues, the Licensor may terminate this Agreement by seven days' written notice and require the Licensee to vacate the Licensed Space, without prejudice to its right to recover arrears and damages. The Licensor shall not use force, lock out the Licensee outside ordinary closing procedures generally applied to the Mall or Building, or seize the Licensee's stock otherwise than by due process, and shall proceed by notice and, if the Licensee does not comply, by lawful process.
14.3 Each of the following is a default by the Licensor: a breach of clause 12.2 not remedied within fifteen days of written notice; or a relocation under clause 3 to a space materially inferior to the Licensed Space, not corrected within fifteen days of written notice. On such a default, the Licensee may terminate this Agreement by fifteen days' written notice, and the deposit is refundable in full and no early-exit compensation is payable.
- 15. ASSIGNMENT AND SUB-LICENSING
15.2 An assignment or sub-licence in breach of this clause is void as against the Licensor and is a default under clause 14.1.
- 16. LOCK-IN, NOTICE AND TERMINATION FOR CONVENIENCE
16.1 Neither Party may terminate this Agreement for convenience before the expiry of the Licence Period except as this clause allows.
- 17. EXPIRY AND HANDOVER
17.1 On expiry or earlier termination, the Licensee shall vacate the Licensed Space and hand it back to the Licensor in good condition, fair wear and tear excepted.
17.3 The Licensee shall clear all utility, maintenance and statutory dues relating to its use of the Licensed Space up to the date of handover.
17.4 Anything the Licensee leaves at the Licensed Space more than seven days after handover may, after written notice to the Licensee, be removed and disposed of by the Licensor at the Licensee's cost.
- 18. UNAUTHORISED USE AFTER EXPIRY OR TERMINATION
18.1 If the Licensee continues to use the Licensed Space after the Licence Period ends or this Agreement is otherwise terminated, without the Licensor's written consent, that use is unauthorised and without the licence of the Licensor, and does not create a fresh licence, a tenancy or any right to continue.
18.3 This clause does not limit the Licensor's right to require the Licensee to vacate, and to recover possession of the Licensed Space, in accordance with law.
- 19. DAMAGE, DESTRUCTION AND FORCE MAJEURE
19.1 If the Licensed Space is destroyed or rendered substantially unfit for the Permitted Use by fire, flood, earthquake, tempest, civil commotion or other event not caused by the Licensee, the Licence Fee abates proportionately from the date of the event until the Licensed Space is again fit for use or an equivalent alternative is provided under clause 3. If neither happens within thirty days, either Party may terminate this Agreement by written notice, in which case the deposit is refundable in full, less only sums already accrued and unpaid.
19.2 Neither Party is liable for failure to perform an obligation, other than an obligation to pay money already accrued, where the failure is caused by an event beyond its reasonable control.
- 20. INDEMNITY AND LIABILITY
20.1 The Licensee shall indemnify the Licensor against claims, losses, penalties and reasonable legal costs arising from its use of the Licensed Space, the acts or omissions of its staff or visitors, and its breach of this Agreement.
20.2 The Licensor shall indemnify the Licensee against claims, losses and reasonable legal costs arising from a defect in the Licensor's authority to grant this licence, or its breach of this Agreement.
20.3 Neither Party is liable to the other for indirect or consequential loss, or for loss of profit, except in respect of sums expressly payable under this Agreement.
- 21. CONFIDENTIALITY
21.1 Each Party shall keep the commercial terms of this Agreement confidential, except for disclosure to its professional advisers, auditors and lenders, and where disclosure is required by law or for stamping, registration or enforcement of this Agreement.
- 22. STAMP DUTY AND REGISTRATION
22.4 Neither Party shall dispute the validity of this Agreement on the ground of insufficient stamping where that results from its own failure to perform this clause.
- 23. APPLICATION OF RENT LAW
23.1 Because this Agreement creates a licence and not a tenancy, neither the East Punjab Urban Rent Restriction Act, 1949 nor the Punjab Rent Act, 1995 applies to the Licensee's use of the Licensed Space, both of those statutes protecting a tenant and not a licensee. Nothing in this clause affects the Applicable Rent Law of any Lease Deed under which the Licensor itself holds the Mall or Building.
- 24. NOTICES
24.1 Notices under this Agreement shall be in writing and delivered by hand against acknowledgment, or by registered post or reputed courier with proof of delivery, to the Licensor at __________ and to the Licensee at __________, or to such other address as a Party notifies in writing.
24.2 Email is sufficient for routine correspondence, but a notice of termination or default must be given by hand, registered post or courier.
- 25. DISPUTE RESOLUTION AND GOVERNING LAW
25.1 The Parties shall first attempt to resolve any dispute by discussion between their authorised representatives within fifteen days of written notice of the dispute.
25.4 This Agreement is governed by the laws of India as in force at the place where the Mall or Building is situated.
- 26. GENERAL
26.1 This Agreement is the entire agreement between the Parties about the Licensed Space, and supersedes all prior discussion and correspondence on that subject.
26.2 No amendment is effective unless made in writing and signed by both Parties.
26.3 A failure or delay in enforcing a right is not a waiver of it.
26.4 If any provision is held invalid or unenforceable, the rest continues in effect, and the Parties shall replace that provision with a valid one of the nearest effect.
26.5 Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship between the Parties.
26.6 The clauses on Security Deposit, Taxes, Expiry and Handover, Unauthorised Use, Indemnity, Confidentiality, Stamp Duty and Registration, Application of Rent Law, and Dispute Resolution survive the expiry or termination of this Agreement.
SCHEDULE I — THE LICENSED SPACE
A location plan of the Licensed Space is annexed to this Agreement and initialled by both Parties.
SCHEDULE II — HANDOVER CONDITION
The Licensed Space is handed over as a bare demarcated area with building power and lighting available to the point of supply, unless the Parties record a fuller handover condition here or in a joint inspection record annexed to this Agreement.
SIGNED AND DELIVERED by the LICENSOR
__________
PAN: __________
Signature: ______________________________
SIGNED AND DELIVERED by the LICENSEE
__________
PAN: __________
Signature: ______________________________
WITNESSES