- Appointment of DEALER and Territory.
- DEALER’s Location(s)/Territory. Upon the terms and conditions of this Agreement, the Company hereby appoints the DEALER as an authorized non-exclusive DEALER of the Company’s products (“ICE CHIPS®”) through the ICE CHIPS® Independent Dealer Program and the DEALER hereby accepts such appointment. DEALER recognized that it does not have any exclusivity as to territory or location but is also not restricted to territory or location so long as DEALER remains in compliance with all terms of this Agreement. However, DEALER recognizes that Company has and retains exclusive rights to sell on Amazon.com and DEALER shall not and has no authorization to sell any ICE CHIPS® products to or through Amazon.com, either directly or indirectly. Otherwise, DEALER may promote and sell ICE CHIPS® products only to ultimate consumers and not to resellers. DEALER shall not sell or display ICE CHIPS® products in retail sales or service establishments.
- Minimum Performance Requirement. As a minimum, DEALER will first purchase from the Company either the Chipster Standard or Chipster Deluxe Independent Dealer option as described at https://www.icechips.com/.
- Reservation of Rights by the Company. The Company reserves the right to appoint other dealers to sell ICE CHIPS® or any other product of the Company exclusively, on a direct or indirect basis, to other retail or business customers or specific accounts which Company may, in its sole discretion, determine from time to time without notification to DEALER.
- Addition, Discontinuance and Modification of Products. The Company shall have the right at any time to introduce new ICE CHIPS®, discontinue the manufacture or sale of any of ICE CHIPS® and make changes in the recipe or ingredients of any ICE CHIPS® product without incurring any obligation or liability whatsoever to DEALER.
- Trademarks. The DEALER shall have the right hereunder to represent that it is an authorized Independent Dealer of ICE CHIPS®. Any other use by the DEALER of any trademark of the Company must be in a form and format approved by the Company in advance of such usage.
- Purchase Process and Terms.
- Ordering of ICE CHIPS®. All orders for ICE CHIPS® placed by DEALER shall be made by telephone, fax or e-mail until such time that orders can be made online at https://www.icechips.com/buy- online and at that point orders are preferred to be made online. All orders shall be subject to acceptance by the Company at its corporate offices in Olympia,
- The DEALER shall purchase ICE CHIPS® at the prices in effect at the time of order. The Company may implement price changes at any time during the term of this Agreement without notice thereof to DEALER. In addition to the purchase price, DEALER shall pay to the Company the amount of all taxes, excises or other governmental charges that the Company may be required to pay on the sale or delivery of any products sold and delivered hereunder, except where the law otherwise provides.
- All products shall be shipped FOB shipping point, with title and risk of loss passing at such point. The Company will not ship product outside of the United States without prior written consent by the Company in limited situations. Any taxes, administrative or governmental charges incurred as a result of the purchase of ICE CHIPS® are the sole responsibility of the DEALER.
- Payment is due at time of order unless other arrangements have been expressly agreed between the Company and DEALER in writing prior to order; in that limited case payment is due as otherwise agreed in writing.
- Sales Guidelines. To maximize the success of each ICE CHIPS® Independent Dealer program, it is critically important that the DEALER strictly follow all promotion and sales guidance from the Company, if any has been provided to
- Promotional Materials. Promotional materials about ICE CHIPS® will be available to DEALER on the Company website. Subject to the prior written approval of the Company, the DEALER may provide information about ICE CHIPS® on the website of DEALER.
- Duties of the DEALER.
- Sales Activities. The DEALER agrees to use its best efforts vigorously and actively to promote the sale of ICE CHIPS®.
- Storage of Inventory. The DEALER agrees to store ICE CHIPS® in accordance with common industry practices for similar products or in accordance with any storage guidelines provided by the
- Appropriate Use of ICE CHIPS®. The DEALER shall use its best efforts to educate consumers as to the proper usage and consumption of ICE CHIPS® as outlined in any educational materials provided by the Company, if any.
- Advertising. Each printed advertisement, flyer, handbill, television spot, radio script, yellow pages listing, webpage or any other advertising or promotional material bearing or using the trademark or trade name ICE CHIPS® or pertaining to ICE CHIPS® must be approved by the Company in writing prior to its use by the DEALER. Such approval will not be unreasonably withheld or delayed.
- Reputation. The DEALER shall continually maintain to the satisfaction of the Company a general reputation for honesty, integrity and good credit standing and shall maintain the highest sales standards.
- Compliance with Law. The DEALER shall comply with all laws, ordinances and regulations, both state and federal, applicable to the DEALER’s business and the sales of ICE CHIPS®.
- Expenses. The DEALER shall pay and discharge, and the Company shall have no obligation to pay for, any expenses or costs of any kind or nature incurred by the DEALER in connection with its distribution or sales, including, without limitation, any expenses or costs involved in marketing ICE CHIPS®.
- DEALER’s Remedies. If the Company, for any reason whatsoever, fails or is unable to deliver any ICE CHIPS® ordered by DEALER, the DEALER’s sole and exclusive remedy shall be the recovery of the purchase price, if any, paid by the DEALER to the Company for such order. The Company shall not incur any liability whatsoever for any delay in the delivery to the designated delivery location of any ICE CHIPS® In no event shall the Company be liable for any incidental, consequential or other damages arising out of any failure to deliver any ICE CHIPS® to the DEALER or any delay in the delivery thereof.
- Relationship of Parties: Indemnification of Company.
- Independent Contractor Status. The relationship of the parties established by this Agreement is that of vendor and vendee, and all work and duties to be performed by the DEALER as contemplated by this Agreement shall be performed by it as an independent contractor. The full cost and responsibility for hiring, firing and compensating employees of the DEALER shall be borne by the DEALER.
- No Authority to Bind Company. Nothing in this Agreement or otherwise shall be construed as constituting an appointment of the DEALER as an agent, legal representative, joint venturer, partner, employee or servant of the Company for any purpose whatsoever. The DEALER is not authorized to transact business, incur obligations, sell goods, solicit orders, or assign or create any obligation of any kind, express or implied, on behalf of the Company, or to bind it in any way whatsoever, or to make any contract, promise, warranty or representation on the Company’s behalf with respect to products sold by the Company or any other matter, or to accept any service of process upon the Company or receive any notice of any nature whatsoever on the Company’s
- Indemnification. Under no circumstances shall the Company be liable for any act, omission, contract, debt or other obligation of any kind of the DEALER or any salesman, employee, agent or other person acting for or on behalf of the DEALER. The DEALER shall indemnify and hold the Company harmless from any and all claims, liabilities, losses, damages or expenses (including reasonable attorneys, fees and costs) arising directly or indirectly from, as a result of, or in connection with, the DEALER’s operation of the DEALER’s business. The terms of this indemnity shall survive the termination of this Agreement.
- Confidential Information.
- Definition. As used in this Section, “Proprietary Information” means information developed by or for the Company which is not otherwise generally known in any industry in which the Company is or may become engaged and includes, but is not limited to, information developed by or for the Company, whether now owned or hereafter obtained, concerning plans, marketing and sales methods, materials, processes, procedures, devices utilized by the Company, prices, quotes, suppliers, manufacturers, customers with whom the Company deals (or organizations or other entities or persons associated with such customers), trade secrets and other confidential information of any type, together with all written, graphic and other materials relating to all or any part of the same.
- Non-Disclosure. Except as authorized in writing by the Company, the DEALER shall not at any time, either during or after the term of this Agreement, disclose or use, directly or indirectly, any Proprietary Information of which the DEALER gains knowledge during or by reason of this Agreement and the DEALER shall retain all such information in trust in a fiduciary capacity for the sole use and benefit of the Company.
- Patent and Trademark Indemnity. The Company will defend at its expense any legal proceeding brought against the DEALER based on a claim that ICE CHIPS® sold by the Company under this Agreement infringe upon a United States patent or trademark, provided that the Company is notified promptly and given full authority, information and assistance for such defense. If the DEALER complies with the foregoing obligation, the Company will pay all damages and costs finally adjudicated against the DEALER, but will not be responsible for any compromise made without the Company’s consent. If the ICE CHIPS® are held to be infringing and their use enjoined, the Company may, at its election and expense, either (1) obtain for the DEALER the right to continue selling the ICE CHIPS® or (2) refund the purchase price paid, upon return of the ICE CHIPS® to the
- Term and Termination.
- Term. The term of this Agreement shall be for a period beginning on the date of first order by DEALER and for so long as DEALER meets the minimum performance requirements outlined in paragraph 1(b) above, continues to purchase product from the Company, and the DEALER is otherwise in compliance with all other terms and conditions herein unless either party gives to the other party written notice of termination at least sixty (60) days prior to the termination date. Should DEALER not purchase products from the Company for a twelve (12) month period, this Agreement shall automatically terminate.
- Default by the DEALER. This Agreement may be terminated by the Company immediately upon the failure of the DEALER to pay for ICE CHIPS® purchased by the DEALER in accordance with the terms of Section 2(d) or upon the material default by the DEALER of any other term or obligation under this Agreement, or upon the DEALER filing of a petition in bankruptcy or for reorganization under the Bankruptcy Act, or upon the making of an assignment for benefit of creditors by the DEALER, or upon the DEALER’s taking any action or failing to act in such a manner as to unfavorably reflect upon the Company.
- Effect on Outstanding Orders. Upon the effective date of termination of this Agreement, all outstanding orders from the DEALER to the Company shall be deemed cancelled, to the extent ANY ICE CHIPS® have not yet been pre-paid by DEALER.
- General.
- Waiver. Failure of either party at any time to require performance by the other party of any provision hereof shall not be deemed to be a continuing waiver of that provision, or a waiver of its rights under any other provision of this Agreement, regardless of whether such provision is of the same or a similar nature
- Complete Agreement. This Agreement (including the exhibits hereto and all documents and papers delivered pursuant hereto and any written amendments hereof executed by the parties to this Agreement) constitutes the entire agreement, and supersedes all prior agreements and understandings, oral and written, among the parties to this Agreement with respect to the subject matter hereof. This Agreement may be amended only by written agreement executed by all of the parties.
- Applicable Law; Jurisdiction and Venue. This Agreement shall be construed under, and governed by, the laws of the State of Washington. The parties agree that jurisdiction and venue for any legal proceedings arising from or in any way connected to this Agreement will lie in the Superior Court of Thurston County, Olympia, Washington, and both parties hereby submit and consent to the jurisdiction and venue of said courts. The substantially prevailing party in any dispute from this Agreement shall be entitled to recover its costs and reasonable attorney’s fees.
- Severability. If any provision of this Agreement is unenforceable or invalid, the Agreement shall be ineffective only to the extent of such provisions, and the enforceability or validity of the remaining provisions of this Agreement shall not be affected thereby.
- Assignment. This Agreement may not be transferred or assigned in whole or in part by operation of law or otherwise by the DEALER without the prior written consent of the Company. Without written notice to or consent by DEALER, the Company may assign its rights, duties and obligations under this Agreement to any parent, subsidiary, successor or other affiliated corporation of the Company.
- Notices. Any notice or other communication related to this Agreement shall be effective if sent by first class mail, postage prepaid, to the address set forth in this Agreement, or to such other address as may be designated in writing to the other party.