Attached files
GSS
AND BLENDTEC AGREEMENT
This GSS
and Blendtec Agreement (the "Agreement") is entered into as of and is effective
the 31st day of March, 2005, and is made at Orem, Utah, by and between Global
Smoothie Supply, Inc., a Texas corporation, located at 4428 University
Boulevard, Dallas, Texas 75205 ("GSS") and K-Tec, Inc., a Utah corporation
d/b/a/ Blendtcc ("Blendtec"), located at 1206 South 1680 West, Orem, Utah
84058.
WHEREAS,
GSS and Blendtec wish GSS to act as a consultant to Blcndtcc for purposes of
identifying customers of GSS who desire Blendtec products, providing marketing
services and selling to and servicing those potential customers for Blendtec
products;
NOW
THEREFORE, in consideration of the premises, the promises contained herein and
other good and valuable consideration, receipt whereof is hereby acknowledged,
Blendtec and GSS agree as follows:
CONSULTANCY:
1)
Blendtec hereby appoints, and GSS agrees to act as a marketing and sales
consultant to Blendtcc for purposes of identifying potential users of Blendtec
products, providing marketing services and selling Blendtec products to and
servicing those potential users; and
2. When
GSS identifies a potential user of Blendtec products, as in this Agreement
below, GSS will make commercially reasonable efforts to obtain the identified
party as a user for Blendtec products and will place or deliver all orders
received, subject to product availability, for Blendtec products to Blendtec.
Blendtec will take all commercially reasonable action necessary or desirable to
encourage such potential users to purchase, lease or otherwise use Blendtec's
products.
POTENTIAL
CUSTOMER: .
3) GSS
hereby identifies the following potential user of Blendtec
products:
Company
Name: 7-ELEVEN,
INC.
Address: Dallas,
Texas
NON-CIRCUMVENTION:
4)
Blendtec represents that with respect to the identified potential customer,
7-ELEVEN, Inc. ("Customer"), Blendtec will deal directly through GSS in filling
orders of the Customer for products and equipment from Blendtec that are the
result of GSS efforts. Blendtec will provide GSS with a custom part number for each
product GSS offers to 7-ELEVEN, Inc. Orders placed using the custom part numbers
will be the means of determining business that results from the efforts of GSS.
Any dispute regarding such GSS efforts shall be determined by 7-Eleven, Inc.
Blendtcc represents that the identified Customer is already a Blendteo sales
lead
being worked by Blendtec in-house and outside sales representatives.
Blendtec further represents that such activity shall
not
limit its obligations under this Agreement.
Blendtec
agrees not to:
a) Circumvent
the GSS relationship to Customer;
b) Circumvent
GSS, directly or indirectly, with respect to any sale or lease to the Customer
of Blendtec products, including, but not limited to its MBGAblenderTM; nor
cause Customer to
change contractual or commercial negotiations, proposals or commercial
arrangements which it may have with GSS or which GSS may have or propose to
have with Customer,
including any contractual add-ons, third party assigns, renewals;
renegotiations, extensions, overages or parallel contracts. Non-circumvention is
limited to the Customer
business that results from the efforts of GSS.
CONFIDENTIALITY:
5) GSS,
while acting as a consultant to Blendtec, will assist Blendtec in obtaining
orders, directly or
indirectly, from the Customer, and in servicing Customer's account. Thus, GSS
and Blendtec will exchange proprietary information on occasion and discuss sales in an effort
to maximize the sales and service to Customer. All information exchanged will be
treated as confidential unless otherwise stated by the provider of the
information. Such information shall be kept confidential by the other party,
unless disclosure is required by law. If disclosure is necessary or desirable to
an employee or representative of a party, such employee and representative shall
agree to the confidentiality described herein.
BLENDTEC
WARRANTY:
6) As
the Customer may purchase any of Blendtec's products and equipment, including,
but not limited to its MEGAblenderTM,
Blendtec will provide support services to the Customer in the following
manner:
Blendtec
will treat the Customer on a Best Customer basis with respect to pricing,
service and warranties on its products. No channel selling Blendtec products to
the Customer shall receive more favorable pricing, service or product warranties
than offered to GSS by Blendtec.
PRICING
& PAYMENT:
7) Blendtec
will provide product and equipment pricing to GSS. Current prices for the
MEGAblenderTM are
shown on "Exhibit A", attached hereto and are subject to change upon 90day
notice in writing. GSS will determine the amount of cost adder that will be
applied to the Blendtec's prices appearing on Exhibit A. GSS will provide the
GSS adder pricing to
Blendtee for informational purposes, where appropriate. The GSS adder
element of such pricing
shall be held in confidence as "proprietary and confidential" by Blendtec. GSS
will provide quotations to the customer and the customer will place orders with
GSS. GSS will then place orders with Blendtec. Blendtec will accept orders from
GSS once GSS has acquired credit terms from Blendtec. All orders made by GSS
with Blendtec are net 30 from the date of shipment.
8) Should
Blendtec receive any payment from the Customer pursuant to this Agreement,
Blendtec will remit payments of the cost adder to GSS based on paid invoices by
the third Wednesday of each month
following the month payment of the Customer's invoice is received.
Payment will be by check unless other arrangements are specifically agreed in
writing.
TERM:
9) The
term of this Agreement shall be for a period of three (3) years, commencing on
the date first-above
written and shall
renew automatically as to
the Customer and GSS if Customer continues purchasing or whenever
Customer purchases Blendtec equipment and it will run as long as the
Customer purchases equipment without a break in purchases over one (1) year. In
the event that no purchases are made over a one (1) year period, Blendtec and
GSS will take all reasonable steps to generate
additional orders. In the event that reasonable efforts do not generate
sales, Blendtec may cancel this agreement on ninety (90) days written notice to
GS at the above address. Notwithstanding the foregoing, GSS may cancel this
Agreement on nl'ety (90) days notice in writing to Blendtec at the above
address. This Agreement is not assignable by Blendtec without express written
agreement.
LAWS
& ARBITRATION:
10) This
Agreement will be governed by the laws of the State of Utah. In the event there is any
issue GSS and Blendtec cannot resolve by direct negotiation, GSS and Blendtec agree to binding
arbitration to be conducted in Salt Lake or Utah County, Utah. Results of such
binding arbitration will be lodged as a judgment in any court with proper
jurisdiction. Attorney fees shall not be assessed to the losing party but costs
of arbitration will be awardable in arbitration of any claim of breach of this
Agreement. Notwithstanding the foregoing, any party may apply to any court of
proper jurisdiction for injunctive relief, specific performance or other
equitable relief appropriate to continue the performance of the parties under
the Agreement until there is a
final award in arbitration.
This
Agreement entered into as of the date first-above written. Each party hereto
acknowledges by its signature below that it is authorized to execute and deliver
this Agreement and has received an original counterpart of this
Agreement.
Global
Smoothie Supply, Inc.
By:
/s/ David C.
Tiller
Its:
CEO
K-Tec,
Inc., d/b/a Blendtec
By:
/s/
Its: Sr.
V.P. Sales & Marketing
GSS
AND BLENDTEC AGREEMENT
This GSS
and Blendtec Agreement (the "Agreement") is entered into as of and is effective
the 2
.3rd
day of July, 2008. and is made at Orem. Utah, by and between Global Smoothie
Supply. inc.. a Texas corporation, located at 4428 University Boulevard. Dallas,
Texas 75205 ("GSS") and K- fee, Inc.. a Utah corporation d/b/a/ Blendtec
("Blendtec"). located at 1206 South 1680 West. Orem, Utah 84058.
WHEREAS.
GSS and Blendtec wish GSS to act as a consultant to Blendtec for purposes of
identifying customers of GSS who desire Blendtec products, providing marketing
services and selling to and servicing those potential customers for Blendtec
products:
NOW
THEREFORE. in consideration of the premises. the promises contained herein and
other good and valuable consideration, receipt whereof is hereby acknowledged,
Blendtec and GSS agree as follows:
CONSULTANCY:
1)
Blendtec hereby appoints, and GSS agrees to act as a marketing and sales
consultant to Blendtec for purposes of identifying potential users of Blendtec
products. providing marketing services and selling Blendtec products to and
servicing those potential users: and
2. When
GSS identifies a potential user of Blendtec products, as in this Agreement
below. GSS will make commercially reasonable efforts to obtain the identified
party as a user for Blendtec products and will place or deliver all orders
received, subject to product availability, for Blendtec products to Blendtec.
Blendtec will take all commercially reasonable action necessary or desirable to
encourage such potential users to purchase. lease or otherwise use Blendtec's
products.
POTENTIAL
CUSTOMER:
3) GSS
hereby identifies the following potential user of Blendtec
products:
Company
Name: 7-ELEVEN,
INC.
Address: Dallas,
Texas
NON-CIRCUMVENTION:
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4)
Blendtec represents that with respect to the identified potential
customer. 7-ELEVEN. Inc. ("Customer"), Blendtec will deal directly through
GSS in tilling orders of the Customer for products and equipment from
Blendtec that are the result of GSS efforts. Blendtec will provide GSS
with a custom part number for each product GSS offers to 7-ELEVEN. inc.
Orders placed using the custom part numbers will be the means of
determining business that results from the efforts of GSS. Any dispute
regarding such GSS efforts shall be determined by 7-Eleven. Inc. Blendtec
represents that the identified Customer is already a Blendtec sales lead
being worked by Blendtec in-house and outside sales representatives.
Blendtec further represents that such activity shall not limit its
obligations under this
Agreement.
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Blendtec
agrees not to:
a) Circumvent
the (.iSS relationship to Customer:
b) Circumvent
GSS. directly or indirectly, with respect to any sale or lease to the Customer
of Blendtec products. including, but not limited to its MEGAblenderTMl Self
Serve Smoothie (S3); nor cause Customer to change contractual or commercial
negotiations, proposals or commercial arrangements which it may have with GSS or
which GSS may have or propose to have with Customer, including any contractual
add-ons. third party assigns. renewals. renegotiations. extensions. overages or
parallel contracts. Non-circumvention is limited to the Customer business that
results from the efforts of GSS.
CONFIDENTIALITY:
5) GSS,
while acting as a consultant to Blendtec, will assist Blendtec in obtaining
orders. directly or indirectly, from the Customer, and in servicing Customer's
account. Thus, GSS and Blendtec will exchange proprietary information on
occasion and discuss sales in an effort to maximize the sales and service to
Customer. All information exchanged will be treated as confidential unless
otherwise stated by the provider of the information. Such information shall he
kept confidential by the other party, unless disclosure is required by law. If
disclosure is necessary or desirable to an employee or representative of a
party. such employee and representative shall agree to the confidentiality
described herein.
BLENDTEC
WARRANTY:
6) As
the Customer may purchase any of Blendtec's products and equipment. including,
but not limited to its MICiAhlenderTM and S3.
Blcndtec will provide support services to the Customer in the following
manner:
Blendtec
will treat the Customer on a Best Customer basis with respect to pricing.
service and warranties on its products. No channel selling Blcndtec products to
the Customer shall receive more favorable pricing. service or-product warranties
than offered to GSS by Blcndtec.
PRICING
& PAYMENT:
7) Blendtec
will provide product and equipment pricing to GSS. Current prices for the
MEGAblenderTM and S3
are shown on "Exhibit A". attached hereto and are subject to change upon 90-day
notice in writing. (iSS will determine the amount of cost adder that will be
applied to the Blendtec's prices appearing on Exhibit A. GSS will provide the
GSS adder pricing to Blcndtec for informational purposes, where appropriate. The
GSS adder element of such pricing shall be held in confidence as "proprietary
and confidential" by Blendtec. GSS will provide quotations to the customer and
the customer will place orders with GSS. GSS will then place orders with
Blendtec. Blendtec will accept orders from GSS once GSS has acquired credit
terms from Blendtec. All orders made by GSS with Blendtec are net 30 from the
date of shipment.
8) Should
Blendtec receive any payment from the Customer pursuant to this Agreement,
Blendtec will remit payments of the cost adder to GSS based on paid invoices by
the third Wednesday of each month following the month payment of the Customer's
invoice is received. Payment will be by check unless other arrangements are
specifically agreed in writing.
TERM:
9) The
term of this Agreement shall be for a period of three (3) yens, commencing on
the date first-above written and shall renew automatically as to the Customer
and GSS if Customer continues purchasing or whenever Customer
purchases
Blendtec equipment and it will run as long as the Customer purchases
equipment without a break in purchases over one (1) year. In the event that no
purchases are made over a one (1) year period, Blendtec and GSS will take all
reasonable steps to generate additional orders. In the event that reasonable
efforts do not generate sales, Blendtec may cancel this agreement on ninety (90)
days written notice to GSS at the above address. Notwithstanding the foregoing,
GSS may cancel this Agreement on ninety (90) days notice in writing to Blendtec
at the
above address. This Agreement is not assignable by Blendtec without express
written agreement.
LAWS
& ARBITRATION:
10) This
Agreement will
be governed by the laws of the State of Utah In the event there is any issue
GSS and Blendtec cannot
resolve
by
direct
negotiation, GSS and Blcndtcc agree to binding arbitration to be
conducted in Salt Take or Utah County, Utah. Results of such binding arbitration
will be lodged as a judgment in any court with proper jurisdiction. Attorney
fees shall not be assessed to the losing party but costs of arbitration will be
awardable in arbitration of any claim of breach of this Agreement.
Notwithstanding the foregoing, any party may apply to any court of proper
jurisdiction for injunctive relief, specific performance or other equitable
relief appropriate to continue the performance of the parties under the
Agreement until there is a final award in arbitration.
This
Agreement entered into as of the date first-above written. Each party hereto
acknowledges by its signature below that it is authorized to
execute and deliver this Agreement and has received an original
counterpart of this Agreement.
Global
Smoothie Supply, Inc.
By:
/s/ David C.
Tiller
Its:
CEO
K-Tec,
Inc., d/b/a Blendtec
By:
/s/ David
Beck
Its:
President
July 28,
2008
Dear
David,
This is
in clarification of our Agreement, dated
July 13,
2008 in connection with the future purchase of Blendtec products by
GSS.
Blendtec
hereby grants GSS the first right to purchase Blendtec's production of its Self
Serve Smoothie blender (S3).
If
Blendtec's production of the S3 exceeds GSS's orders for such production for
more than any 30-day period then GSS shall lose its right of first purchase of
such S=3 production upon notice to that effect by Blendtec to GSS.
Please
indicate Blendtec's approval of this amendment to its agreements regarding its
production with GSS by signing in the space provided below.
Sincerely,
Global
Smoothie Supply, Inc.
/s/ John W. Gohsman
President
Read,
Approved & Agreed:
K-Tec,
Inc., d/b/a Blendtec
/s/ David
Beck
By: David
Beck
President
MUTUAL
CONFIDENTIALITY AGREEMENT
This
Mutual Confidentiality Agreement (this "Agreement") between Colder Products
Company, a Minnesota corporation having a principal place of business at 1001
Westgate Drive, St. Paul, Minnesota 44114 ("Colder") and Global Smoothie Supply,
Inc., having a principal place of business at 4428 University Boulevard, Dallas,
TX 75205, a Texas corporation ("Company") takes effect on January 7, 2008.
Colder and Company are each individually referred to as a "Party," and
collectively, the "Parties."
RECITAL
The
Parties intend to disclose to each other certain technological and other proprietary information and to
set forth the obligations of each Party with respect to such technological and
proprietary information disclosed pursuant to this Agreement.
AGREEMENT
In
consideration of the above recital and the promises set forth in this Agreement,
the Parties agree as follows:
1. Confidential
Information.
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(a)
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For purposes of this Agreement,
the term "Confidential Information" means all information conveyed by one
Party (the "Disclosing Party") to the other Party (the "Receiving Party"),
whether orally, in writing, by demonstration, electronically or otherwise,
including but not limited to drawings, designs, specifications,
formulations, instructions, test results, samples, business plans,
ordering and shipment data, schedules, test market and national volumes,
product and package designs and sizes, pricing, inventions, ideas,
manufacturing and marketing plans, know-how, trade secrets, customer and
supplier information and other data, and related technical and commercial
information furnished by one Party to the other Party or by either Party
to K-Tec, Inc., a Utah corporation, d/b/a "Blendtec" or by Blendtec to
either Party pertaining to certain blender equipment being designed and
produced by Blendtec on behalf of and in connection with Company's
business plan to supply fruit purees to the wholesale and retail fruit
puree smoothie market or, that by its very nature would be considered as
confidential and proprietary. Confidential Information disclosed by one
party to the other shall be in writing or other tangible form and marked
"confidential " at the time of disclosure, or if the initial disclosure is
verbal, the Confidential Information shall be so identified at the time of
disclosure and shall be reduced to written or other tangible form,
appropriately marked and submitted to the receiving party, as soon as
reasonably practicable
thereafter.
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(b)
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Confidential
Information does not include information which the Receiving Party can
demonstrate to be any of the following: (i) generally available to the
public through no act or omission on the part of the Receiving Party or
its officers employees or representatives; (ii) known to the Receiving
Party prior to its receipt . IO from the Disclosing Party; (iii) disclosed
to the Receiving Party at any time by a third
party without violation of any obligation of confidentiality under
this
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Agreement
or otherwise; or (iv) independently developed by the Receiving Party without
using the Confidential Information disclosed to the Receiving Party by the
Disclosing Party.
2. Mutual
Obligations of Confidentiality and Nonuse.
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(a)
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The
Receiving Party will do the following with regard to the Confidential
Information of the Disclosing
Party:
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(i)
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hold
the Confidential Information in strict
confidence;
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(ii)
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take
such steps as may be reasonably necessary to prevent the disclosure of
Confidential Information to others with not less than the same degree of
care which the Receiving Party uses to prevent the unauthorized use,
dissemination or publication of its own most valuable confidential and
proprietary information (but with at least the same degree of care used by
a reasonably prudent business
person);
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(iii)
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not
disclose such Confidential Information to any third party for any purpose
whatsoever without (A) the prior written approval from the Disclosing
Party, and (B) the agreement on the part of such third party to be bound
by the terms of this Agreement;
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(iv)
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permit
access to the Confidential Information only to its employees and agents
who (A) reasonably require access to Confidential Information for the
limited purpose set forth in section 2 (a) vi, (B) are informed by the
Receiving Party of the confidential nature of the Confidential
Information, and (C) are directed
by the Receiving Party to treat the Confidential Information in a manner
consistent with the terms of this
Agreement;
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(v)
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acknowledge
that the Confidential Information is and will at all times remain the
property of the Disclosing Party;
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(vi)
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use
the Confidential Information only for the strictly limited purposes of the
internal evaluation or subsequent performance of a business relationship
with the Disclosing Party, as contemplated by this Agreement and any other
agreements between the Parties and for no other purpose
whatsoever.
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(b)
Notwithstanding the foregoing, if the Receiving Party is requested or
required by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or other process to
disclose any Confidential Information, such Receiving Party will provide
the Disclosing Party with prompt notice of such request so that the
Disclosing Party may seek an appropriate protective order or waive
compliance with the provisions of this Agreement. If the Receiving Party
is compelled by obligation of law to disclose
Confidential
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Information
to any tribunal or else stand liable for contempt or suffer other censure or
penalty (in the absence of such a protective order or waiver by the Disclosing
Party), the Receiving Party agrees to furnish only that portion of the
Confidential Information which it is advised by written opinion of its counsel
is legally required and to exercise reasonable efforts to obtain assurances that
confidential treatment will be accorded such Confidential
Information.
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3.
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Return
of Materials. Upon request of a Disclosing Party, the Receiving Party will
return to the Disclosing Party or destroy all documents and other writings
supplied by the Disclosing Party, together with all copies of any such
documents or other writings, and an officer of the Receiving Party will
certify to the return or destruction of all tangible Confidential
Information and references to such Confidential Information and the
destruction of any references to such Confidential Information on
electronic or other intangible
media.
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4.
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Injunctive
Relief. Each Party acknowledges that a breach by it of any one or more of
the terms of this Agreement may cause irreparable harm to the Disclosing
Party and that damages would be difficult to determine. Accordingly, in
the event of a default, the Disclosing Party may be entitled to, in
addition to all other legal remedies available to the Disclosing Party,
injunctive relief restraining the Receiving Party from any further or
continued breach of its obligations hereunder. Each Party shall pay its
legal fees, unless otherwise ordered by a court of competent jurisdiction,
in which case, such attorneys' fees and costs shall be
reasonable.
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5.
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No
Grant of Rights. No license, intellectual property right or other
ownership or use right is conveyed by this Agreement, except the limited
right to use Confidential Information described in Section 2 of this
Agreement.
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6.
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Governing
Law and Jurisdiction. This agreement shall be governed and interpreted
under the laws of the State of the party against whom a claim is being
filed. Any claim or dispute initiated by Global Smoothie Supply, Inc.
against Colder Products Company will be governed under the laws of the
State of Minnesota. Any claim or dispute initiated by Colder Products
Company against Global Smoothie Supply, Inc., will be governed under the
laws of the State of Texas.
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7.
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Waiver.
Any failure on the part of a Party to insist upon the performance of this
Agreement or any part of this Agreement will not constitute a waiver of
any right under this Agreement.
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8.
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No
Assignment. Neither Party may assign this Agreement or any of its rights
or obligations under this Agreement without obtaining prior written
consent of the other Party.
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9.
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Entire
Agreement; Amendments. This Agreement represents the entire Agreement
between the Parties regarding its subject matter and supersedes all prior
discussions, agreements and understandings of every kind and nature
between them regarding the
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same.
This Agreement shall not be amended except by an agreement in writing executed
by the Parties.
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10.
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Severability.
Should any individual provisions of this Agreement be or become invalid,
this shall not affect the validity of the Agreement as a whole. Any
invalid provision shall be replaced by such valid provisions as comes
closest to the economic intentions of the
Parties.
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11.
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Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, and all of which together shall
be deemed to be one and the same instrument. Signature pages delivered by
facsimile to this Agreement or any document delivered under this Agreement
will be binding to the same extent as an
original.
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12.
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Notices.
All notices hereunder shall be in writing, and shall be deemed to have
been duly given (a) upon personal delivery, (b) upon deposit in the mail
if mailed by certified mail, return receipt requested, postage prepaid,
(c) by fax, (d) upon deposit with a nationally recognized courier with
next-day delivery instructions, to the address set forth on the signature
page to this Agreement or to such other address as either party may
specify by notice sent in accordance with this
Agreement.
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The
Parties have executed this Mutual Confidentiality Agreement to be made effective
as of the date first above written.
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COLDER
PRODUCTS COMPANY
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GLOBAL SMOOTHIE
SUPPLY, INC.
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By:
/s/ Patrick
Williams
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By:
/s/ David C.
Tiller
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Name:
Patrick Williams
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Name:
David C. Tiller
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Title:
Pricing & Commercial Policies Manager
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Title:
C.E.O.
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CONFIDENTIALITY
AND NON-CIRCUMVENTION
AGREEMENT
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This
Confidentiality and Non-Circumvention Agreement (the "Agreement's
Is made and entered into as of September 24, 2008 by and between Global
Smoothie Supply, Inc., 4428 University Boulevard. Dallas, Texas 75205
(GSS) and David Earwood Of Quality Beverage Packing, (Recipient).
In consideration of the mutual promises set forth herein, the parties
hereby agree as follows:
1. Access.
Subject to all of the terms of this Agreement, GSS is
willing to
disclose certain Confidemlal Information to the Recipient solely for the
Permitted Purpose. Confidential
Information means all financial, business, marketing, operations and
scientific information, contained In its Private Placement Memorandum. dated
July 1. 2007 and any
amendments, whether tangible or intangible (including all originals,
copies, digests, brochures and summaries in any form) disclosed by GSS to the
Recipient or by any of GSS's suppliers, employees, contractors or customers
orally or in writing or by way of any other media. Confidential Information does
not include any information that: (a)
was known to the Recipient before receipt thereof under this Agreement;
(b) is disclosed to the Recipient by a third person who has a right to make such
disclosure without any obligation of confidentiality to GSS; (c) is or becomes
generally known In the trade without violation of this Agreement by the
Recipient; or (d) is Independently developed by the Recipient or Recipient'
employees to whom GSS's information was not disclosed; gmy.isbLd
(I) Recipient shall bear the burden of establishing any of the foregoing
exclusions; and (ii) only the specific Information that meets the exclusions
shall be
excluded, and not any other Information that happens to appear in
proximity to such excluded portions (for example, a portion of a document may be
excluded without affecting the confidential nature of those portions that do not
themselves qualify for exclusion). Permitted
Purpose means "consideration of a business relationship or transaction
between GSS and Recipient, and any resulting relationship or transaction, but
not Recipient's use outside of such relationship"
2. Confidentiality.
Recipient agrees (a) to keep secret and maintain the Confidential Information as
confidential and to hold the Confidential Information in trust for the exclusive
benefit of GSS; (b) to use the Confidential Information solely for the Permitted
Purpose; (c) to segregate the Confidential information from the Recipient's
other information and that of third parties; (d) not to copy the Confidential
information; (e) promptly to notify GSS upon learning about any court order or
other legal requirement that purports to compel disclosure of any Confidential
Information and to cooperate with GSS in the exercise of GSS's right to protect
the confidentiality of the Confidential Information before any tribunal or
governmental agency; (t) not to disclose the Confidential Information to any
person or entity not a party to this Agreement other than such of Recipient's
contractors, agents or employees who (I) have a need to know the Confidential
Information for the Permitted Purpose and (ii) are apprised of the confidential
nature of the Confidential Information; (g) to exercise all reasonable
precautions to prevent unauthorized access to the Confidential Information; and
(b) to return promptly to GSS at any time upon GSS's request, any and all
materials pertaining to or containing any Information. Each party shall be
responsible for all breaches by its employees, agents and contractors.
Disclosure of Confidential information pursuant to a court order or other legal
requirement that purports to compel disclosure of any Confidential Infbrmation
shall not alter the character of that information as Confidential Information
hereunder,
3. No
Licenses. All of GSS's rights in and to the Confidential information disclosed
pursuant to this Agreement shall remain the exclusive property of GSS and
neither this Agreement, nor any disclosure of Information hereunder, in any way:
(a) grants to Recipient any right or license under any copyright, patent, mask
work or trademark now or hereafter owned or controlled by GSS, except solely for
the Permitted Purpose; (b) obligates GSS to disclose or Recipient to receive any
Confidential Information, (c) limits either party from assigning or reassigning
its employees in any way; (d) creates any joint relationship or authorizes
either party to act or speak on behalf of the other, (e) obligates either party
to peribnu any work, enter into any license, business engagement or other
agreement g: limits either party from entering into any business relationship
with any third party; or (g) creates any warranties.
4. Non-Circumvention.
Recipient agrees that, for a period of five (5) years from the termination of
this Agreement (unless such term is modified by another written agreement
between the parties hereto), Recipient will not
separately contact, negotiate or attempt to negotiate with, on a direct
or indirect basis, or otherwise circumvent GSS with respect to the sale of Its
services or products or equipment functionally similar to GSS's to the retail or
wholesale fruit puree smoothie market or customers for such
product, nor cause the any prospective customer of GSS to change
contractual or commercial negotiations, proposals or commercial arrangements
which it
may have with GSS or which GSS may have or propose to have with any
prospective Customer, including any contractual add-ons, third party assigns,
renewals, renegotiations, extensions, overages or parallel contracts, without
first obtaining GSS's prior written consent.
5. Termination.
This Agreement shall terminate as to the exchange of further Confidential
Information one (1) year from the date hereof unless earlier terminated by
written notice from either party to the other, provided,
that the confidentiality obligations of this Agreement, as they apply to
Confidential information disclosed prior to
termination, and Non-Cirmcumvention obligations shall survive termination for a
period of five (5) years, Upon termination of this Agreement, or upon demand,
Recipient shall promptly return to GSS all Confidential Information and copies
thereof received pursuant to this Agreement.
6. Notices.
All communications hereunder shall be in writing or by confirmed fax, and shall
be deemed to have been duly given (a) upon personal delivery, (b) upon deposit
in the mail if mailed by certified mail, return
receipt requested.
postage
prepaid, or (c) upon deposit with a nationally recognized courier with next-day
delivery instructions, to the address set forth on the signature page to this
Agreement or to such other address as
either party may specify by notice sent in accordance with this Section
6.
7. Remedies.
The parties agree that any breach or threatened breach of this Agreement by
Recipient would cause not only financial harm, but irreparable harm to GSS; that
money damages will
not provide an adequate remedy. In the event of a breach or
threatened breach of this Agreement by Recipient, ()SS shall, in addition
to any other rights and remedies it may have, be entitled to seek an injunction
restraining the Recipient from disclosing or
using, in whole or in
part, any Confidential information.
8. Severability.
All of the covenants and provisions of this Agreement are severable. In the
event that any of these covenants or provisions shall for any reason be
adjudged, decreed or ordered by any cowl of competent jurisdiction to be
unenforceable in any respect, such covenants or provisions shall be deemed
modified to the extent necessary to render all of them enforceable and such
judgment, decree or order shall not affect, impair or
invalidate any of the remaining covenants or provisions of this
Agreement.
9. No
Waiver. No
provision of or right under this Agreement shall be deemed to have been
waived or amended by any act or acquiescence on the part of either party, its
agents or employees, but only by an instrument in writing signed by an
authorized officer of each party. No waiver by either party of any breach of
this Agreement by the other party shall be effective as to any other breach,
whether of the same or any other term or condition and whether occurring before
or after the date of such waiver.
10. Generally.
This Agreement (a) constitutes the entire agreement of the parties hereto with
respect to the subject matter.
hereof and supersedes all prior understandings and agreements, whether written
or oral, as to such subject matte, (b) may be amended or modified only by a
writing executed by the party against whom enforcement is sought; (c) may
not be assigned by either party without the written consent of the other. (d)
shall be governed by and construed in accordance with all
applicable federal, state and local laws. codes, regulations, rules and
orders; and (e) shall be binding upon and shall inure to the benefit of
the respective heirs, administrators, personal representatives, successors and
permitted assigns of the parties hereto. This
Agreement may be executed In multiple counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument The individual executing this Agreement on behalf of a
corporation or other legal entity personally represents that ho or she is duly
authorized to execute this Agreement on behalf of such entity and dint this
Agreement is binding upon such entity.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, intending it
to
take effect as of the date and year first written above.
Global
Smoothie Supply, Inc.
/s/
David Tiller
Chairman
of the Board & CEO
Tel:
(214)769-0836 Fax: (214) 5214749
Global
Smoothie Supply, Inc., 4428 University Boulevard Dallas, Texas
75205
Quality
Beverage Packing
/s/
David Earwood
Title:
President
Tel:
(662) 329-5976
Fax:
(662) 329-5978
SECURITY
CONTRACT
|
From: Global
Smoothie Supply, Inc.
4428
University Blvd.
Dallas,
Texas 75205
|
Vertex
Financial, LTD
8750 N.
Central Expressway, Suite 900 LB 9
Dallas,
Texas 75231
Gentlemen:
This will
state the terms and conditions by which you are to act as our sole factor and by
which we shall sell to you, and you shall purchase from us, our receivables.
When used herein, the term "receivables" or "receivable" shall collectively mean
and include accounts, instruments, chattel paper, contract rights and general
intangibles.
1. You
will purchase receivables from us on a 90 day full recourse basis, unless other
terms are agreed upon by addendum to this agreement. In the absence of such an
addendum, all receivables are assigned to you at our risk. If a customer fails
to pay an invoice in full within 90 days of the invoice date, we agree to
re-purchase such receivable from you upon demand. Any receivable for freight,
samples or a miscellaneous sale (including
without limitation the sale of merchandise and/or quantities not
regularly sold by us) is always assigned to you at our risk, notwithstanding any
addendum.
2. You
will establish your internal customer credit limits based on your evaluation of
each customer's credit history, payment trends, financial reporting and various
other information available to you. In the event that you decline to give your
credit approval on any order received by us from a customer and, in advising us
of such decline, you furnish us with information as to the credit standing of
the customer, such information shall be deemed to have been requested by you of
us and your advice concerning such information is recognized as a privileged
communication. We agree that the information furnished to us shall not be given
to our customer or to our salesman; if necessary, we shall merely advise our
customer or our salesman that credit has been declined on the account and that
any questions arising should be directed to you.
3. None
of our receivables arc sold or assigned to any other person, except as made
known to you by us, and none will be sold or assigned other than to you during
the term of this agreement. We will offer to you all of our receivables and,
therefore, hereby assign to you in absolute ownership all receivables created by
our sales or through our services. To secure all of our present and future
obligations and indebtedness to you, you shall purchase and acquire a security
interest in all receivables now owned or hereafter created by us, in all
proceeds thereof in any form and in all
returned merchandise so long
as we
are indebted to you, notwithstanding the fact that assignment schedules may not
be given from time to time for certain specific receivables. Merchandise is to
be billed on invoices bearing a notice that the receivable has been assigned to,
is owned by and is payable to you. Copies of all invoices submitted to you arc
to be accompanied by duly executed assignments and, if requested, duplicate
bills of lading or other evidence of shipment satisfactory to you. We hereby
warrant and represent that every assignment submitted to you will
be
accompanied
with a credit memorandum for each and every credit issued by us since the date
of our previous assignment. In addition to receivables, proceeds and returned
goods, we also assign all our right, title and interest and grant you a security
interest in all assets, including by not limited to the following collateral, to
secure all our present and future obligations and indebtedness to you: (1) all
accounts, contract rights, purchase orders, chattel paper instruments,
documents, general intangibles, products and proceeds, now or hereafter
acquired; (2) all deposit, savings, passbook or like accounts maintained with
any bank, savings and loan association, or like organization; (3) the proceeds
of any tax refund due or to become due to us by the state or federal government;
(4) inventory; (5) all patents, trademarks, and copyrights registered in the
United States Copyright or Patent Offices, together with the goodwill of the
business in connection with which such trademark may be used and the royalties
and other fees which become due for the use of such patents, trademarks, or
copyrights; and (6) all books and records relating to any of the foregoing
collateral and all computers and computer software used in connection with the
record keeping for the collateral.. We understand that this security interest
and any applicable UCC financing statements may be held in the name of a third
party. Any such nominee holding will not in any way affect the validity, extent
or priority of the security interest.
4. Each
and every receivable shall be sold and assigned to you as absolute owners and
(a) will represent a completed delivery or performance in fulfillment in every
respect of the terms, conditions and specifications of a bona fide, uncancelled
and unexpired sale or service to a customer, which is not affiliated with us,
(b) will be subject to no dispute or claim by the customer as to price, terms,
quality, quantity, delay in shipment, offsets, counterclaims, contra accounts or
any other defense of any other kind and character, (c) will be subject to no
discounts, deductions, allowances, offsets, counterclaims, or other contra items
or to no special terms of payment which arc not shown on the face of the invoice
thereof, (d) will not include retainage which may or may not be subject to
claims of future performance or approval, (e) will not represent a delivery of
merchandise upon "consignment," "guaranteed sale," "sale or return," "payment on
reorder" or similar terms, and (f) will not represent a "pack, bill and hold"
transaction unless we have furnished you with a copy of our customer's purchase
order soon after its receipt and you have obtained such customer's agreement to
grant you a security interest in the merchandise and to pay for the merchandise
at maturity date of our invoice irrespective of whether or not we have received
instructions to deliver to same.
5. You
will furnish us with a monthly statement of our account and unless exception is
taken to this statement in writing mailed to you at the above address by
registered mail, return receipt requested, before thirty (30) days after receipt
by us, it will be deemed correct and will become an account stated.
6. As
merchandise is shipped and receivables, evidenced by invoices (and shipping
documents, if requested) are submitted to you with duly executed assignments,
you will advance funds to us upon request, less a reserve equal to 20% of all
unpaid receivables held by you hereunder. This reserve account represents
bookkeeping entries and not cash funds. You, also, retain the right in your sole
absolute discretion and in respect of which you shall have no liability to
revise said reserve from time to time if in your judgment it is necessary to
protect you with regard to any indebtedness owing by us to you, or to protect
you against possible returns, claims or defenses of our customers or any other
contingencies. If our Reserve Account is in debit position, funds may be made
available to us solely in your discretion and we agree to repay you on demand
any debit balance in our Reserve Account. In making advances to 'us, you may
rely upon our continuing warranty and representations that no advance will be
requested by us if we contemplate filing, or have filed a proceeding under the
bankruptcy laws of the United States or under any state insolvency
law.
7. All
remittances received by us with respect to receivables shall be held as your
property and we will immediately deliver to you the identical checks, monies or
other forms of payment received and you shall have the right to endorse our name
on any checks or other forms of remittance received, where such endorsement is
required to effect collection. In order to collect any receivable assigned to
you, you have the right to bring suit in your name or ours. In addition, we
hereby constitute and appoint you or such person as you may name, including
substitutions, as our attorney-in-fact to exercise, and at our cost and expense,
to execute all necessary documents in our name and do all other things necessary
to carry out this agreement. In the event of a default or breach of this
agreement by us or in the event of a termination of the agreement by you, you
are hereby authorized to notify postal authorities to change the address for
delivery of mail to such address as you
may
designate and to receive and open mail addressed to us to enable you to
carry out this agreement. We hereby ratify and approve all acts of the attorney
and agree that neither you nor the attorney will be liable for any acts of
commission or omission nor for any error of judgment or mistake of fact or law.
This power being coupled with an interest is irrevocable so long as any
receivable assigned and sold to you remains unpaid or we are indebted to you in
any manner.
8. Our
assignments of receivables vest in you, all our rights, securities and
guaranties with respect to each receivable including the right of stoppage in
transit, replevin, reclamation and all rights and interest in the merchandise
sold or services performed. If we are engaged in finishing or improving goods or
services, we agree at our expense and upon your demand, to assert any lien
provided by law on goods or services in our possession. We will remit to you the
proceeds of sale of such goods or services to satisfy the amounts owed to you by
the owner of the goods or services.
9. Should
any merchandise be rejected or returned, we will pay you the net sale price of
such rejected or returned merchandise, and we shall hold such merchandise in
trust for you but at our risk and expense until the sale price thereof is
received by you and you shall have the right at your option to take possession
of and sell such merchandise at public or private sale at our expense, for the
purpose of paying our obligations to you.
10. It
is your practice to allow reasonable time for the settlement of disputes between
us and our customers and you will cooperate with us in their adjustment.
However, with respect to any receivable you may immediately charge our Reserve
Account the amount of any customer deduction. Furthermore, you have the right to
adjust disputes and claims directly with the customer or complainant upon such
terms as you in your sole discretion may deem advisable. If an alleged claim,
defense or offset is asserted against any receivable or in the event we breach
any warranty relating to a receivable, or in the event any receivable is not
paid in full at its due date for any alleged reason other than financial
inability to pay, you may charge the receivable to our Reserve Account. On any
receivable charged to our Reserve Account, however, you may at your sole option
retain that receivable or any security as additional collateral for any
obligation to you. We agree that we are liable for all costs, out-of-pocket
expenses (including, but not limited to travel, telephone, and freight
expenses), attorneys' fees and expenses of every kind or nature incurred by you
in the collection or settlement of such receivables and you may charge such
costs and expenses to our Reserve
Account. We will notify you promptly of all disputes and, subject to your
approval, issue credits immediately upon granting allowances or accepting
returns.
11. Our
Reserve Account may be debited from time to time for any obligation owed by us
to you from whatever source, including any amounts owing by us to you for
merchandise purchased from any other concern factored by you. You may treat all
indebtedness owed by us to you as an entire single indebtedness for which we
shall remain liable for full payment without demand and you may, at your option,
apply any funds, receivables, credit or property of ours coming into your
possession to any particular portion of the
indebtedness.
We agree to pay all expenses (including reasonable attorneys' fees) incurred by
you in collecting any indebtedness owed by us to you or in enforcing or
successfully defending the terms of this agreement.
12. We
shall deliver to you upon your request, financial statements prepared by an
independent accountant acceptable to you and you may rely upon such statements.
You may, at any time during business hours, inspect, verify and check all of our
books, accounts, records, orders and correspondence and papers which you deem
relevant to the receivables in which you have an interest hereunder, including
the right to inspect and audit our books, records, accounts, files or inventory
and make extracts thereof. We will furnish you upon request satisfactory proof
of payment and/or compliance with all Federal, State and/or local tax
requirements. In addition we will promptly notify you of any attachment, tax
assessment or other legal process levied against us or any of our
customers.
13. We
shall neither pledge not grant a security interest in any of the Collateral to
another party unless prior written permission for such pledge is given by
you.
14. Your
waiver of any particular breach by us of a provision of this agreement, or your
failure to exercise a right granted to you, shall not constitute a waiver of any
subsequent breach or any other right, and we waive
presentment, demand, protest and notice thereof as to any instrument, as
well as to all other notices to which we might otherwise be
entitled.
15. In
the event of default, you shall have, in addition to all other rights and
remedies, the rights and remedies of a secured party under the Uniform
Commercial Code, including without limitation the right to collect receivables
and to take possession of any collateral (including receivables). Should it be
necessary for you to use legal process, contractual or other remedy to obtain
possession of any collateral, we waive any right to notice of hearing and/or
hearing prior to your taking of such collateral. In any event, you have our
permission to enter our premises to remove such collateral. Unless the
collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on recognized market, you shall send us, in the event of
your sale or disposition of the collateral only, five days' prior written notice
of the time and place of any public sale or of the time after which any private
sale or other intended disposition is to be made. After application of the sale
proceeds in conformity with the Uniform Commercial Code, we shall remain liable
for any deficiency.
16. The
initial term of
the Agreement begins on the date of execution of this Security Contract
and continues for a term of one year. At the sole discretion of Vertex
Financial, LTD, the term may be extended on a year to year basis, renewing on
the anniversary date of said Security Contract. Either party may terminate this
Agreement by giving the other party written notice no less than thirty (30) days
and no more than sixty (60) days prior to the anniversary date. Provided
however, we shall have no right to terminate this Agreement until all
obligations (direct or contingent, hereunder or otherwise) owing by us to you
shall have been paid in full. You may terminate at any time without notice to us
should you reasonably believe we are insolvent, or should we default in the
prompt performance of any obligation hereunder. Upon termination, your
obligation to purchase from us and our obligation to sell to you shall cease,
but the terms of this Agreement shall continue in force as to the accounts
already purchased by you until they are paid in full.
17. Any
provision herein relative to our obligations or indebtedness to you, or relative
to default under this agreement, shall be inclusive of any and all obligations,
indebtedness or
defaults of any subsidiaries and affiliates (including any parent
company) of ours, and including any officers of such, to you or
your
subsidiaries
and affiliates (including any parent company), whether direct or indirect, now
existing or hereafter created.
18. In
the event that this agreement is from two or more signatories or in the event
the undersigned and any parents, subsidiaries or affiliates of the undersigned
have entered into agreements with you, the obligations of such signatories or
other parties to you shall be joint and several; you may combine the accounts of
such signatories or other parties into one account; any advance or loan to one
of us shall be deemed to be an advance or loan to all of us and you, in your
discretion, may advance to either or all of us, in whole or in part; you may
commingle proceeds or funds from any source in payment of or credit to our
account and you may apply same in such manner as you may elect; and otherwise
treat all transactions hereunder as with one obligor.
19. This
agreement and all transactions hereunder shall be governed as to validity,
enforcement, interpretation, construction and in all other respects by the laws
of the state of Texas and shall be binding upon the parties hereto and their
heirs, legal representatives, successors and assigns. All our obligations to you
shall be performable in the City of Dallas, Dallas County, Texas, and we waive
the right to be sued elsewhere on any cause of action asserted by you against
us, whether or not arising under the terms of this Agreement. The Agreement
shall become effective only from the date of your written
acceptance.
20. This
document contains the entire agreement between us, excepting only assignment
schedules executed by us from time to time, and it shall be modified only in
writing. Any guaranty and/or subordination executed in connection with this
agreement is made a part hereof. We agree to execute such further instruments or
financing statements as may be required by law in connection herewith and to
cooperate with you in filing, recording or renewal thereof. For purposes of
negotiating and finalizing this document, and any subsequent documents, if
documents are transmitted by facsimile machine ("fax"), they shall be treated
for all purposes as an original document. Additionally, the signatures of any
party on this or subsequent documents transmitted by way of a fax machine shall
be considered for all purposes as original signatures. Any such faxed document
shall be considered to have the same binding legal effect as an original
document. Upon your request, any faxed document shall be re-executed by each
signatory party in an original form. Additionally, you may sign and file a
financing statement without our signature in any of the events specified in
Section 9.402(b), Tex. Bus. & Comm. Code, or in order to reflect an
amendment or assignment permitted by this Agreement. We shall reimburse you for
all out-of-pocket expenses incurred by you arising out of or related to this
agreement or the transactions contemplated hereby, including without limitation,
on-site inspection tours, UCC searches, filings, credit checks, recording fees
and reasonable attorneys' fee.
21. For
any funds advanced hereunder, you shall be entitled to charge to our reserve
account on the last day of each month, interest calculated on the average daily
net funds employed; such interest to accrue at an annual rate of 2% over the
prime rate or Libor + 4, whichever is greater. The prime rate shall be defined
as the maximum prime rate published by the Wall Street Journal. All such
interest shall be computed for the actual number of days elapsed on the basis of
a year consisting of 360 days, plus 5 calendar days float. Any adjustment in
your interest rate, whether downward or upward, will become effective on the
first day of the month next following the month in which the prime rate of
interest is reduced or increased.
22. For
services rendered hereunder, including making credit investigations, supervising
the ledgering of accounts purchased, supervising the collection of the accounts
purchased, accepting the risk of delayed payment by the account debtors and
other services provided by you , you shall be entitled to charge us for a
factoring charge, called a discount, on receivables assigned to you hereunder of
2.25% of the amount of
such
receivables. This discount is based upon purchased accounts which remain
outstanding for a period of time not to exceed forty-five (45) days. For each
fifteen (15) day period thereafter, or portion thereof, that the account remains
outstanding you may charge a dating charge (additional discount) of 1% for your
administrative and collection expenses associated with that account. This
discount is based in part upon the Company's estimate that its monthly volume
will be $25,000.00 Should the amount of accounts factored for any month not
equal or exceed that sum, you may also charge a minimum monthly discount fee
based upon the difference between the estimated amount and the net amount of
accounts factored that month.
23. In
no contingency or event whatsoever shall the rate charged hereunder exceed the
highest rate permissible under the Law which a court of competent jurisdiction
shall, in a final determination, deem applicable hereto. In the event that such
a court determines that you have received interest hereunder in excess of the
highest rate applicable hereto, you shall promptly refund such excess to us and
shall not otherwise be penalized.
24. You
shall have the right to assign the benefits of this Agreement to any party or
parties, without our consent, and to reflect such assignees in any financing
statement filled pursuant to this Agreement.
Global
Smoothie Supply, Inc.
Tax ID
20-2784176
By: /s/ David C.
Tiller
Title:
Chairman/CEO
Date:
10-10-08
STATE OF
TEXAS
COUNTY OF
DALLAS
This
instrument was acknowledged before me on the 10th day of
October 2008, by David C. Tiller.
/s/ JANETTE M.
BANKSTON
Notary
Public, State: TEXAS
Notary’s
name (printed): JANETTE M. BANKSTON
Notary’s
commission expires: March 6, 2010
By: /s/ Donald M. Roberts
Title:
Vice Chairman
Date:
10-10-08
STATE OF
TEXAS
COUNTY OF
DALLAS
This
instrument was acknowledged before me on the 10th day of October 2008, by Donald
M. Roberts.
/s/ JANETTE M.
BANKSTON
Notary
Public, State: TEXAS
Notary’s
name (printed): JANETTE M. BANKSTON
Notary’s
commission expires: March 6, 2010
By: /s/ Harry B. Ireland
Title:
Secretary
Date:
10-10-08
STATE OF
TEXAS
COUNTY OF
DALLAS
This
instrument was acknowledged before me on the 10th day of October 2008, by Donald
M. Roberts.
/s/ JANETTE M.
BANKSTON
Notary
Public, State: TEXAS
Notary’s
name (printed): JANETTE M. BANKSTON
Notary’s
commission expires: March 6, 2010
Accepted
at Dallas, Texas this ______day of ___________, 20___
VERTEX
FINANCIAL LTD
|
By:
|
Debra
Wilson
Senior
Vice President
|