EXHIBIT 10.4
AGREEMENT
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THIS AGREEMENT, made as of April 13, 2005, by and between
Icy Splash Food & Beverage, Inc., a New York corporation having an office at
000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx, XX 00000 (hereinafter called "Icy
Splash"), and MountSpil Products Corp., a New York corporation having an
office at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter called
"MountSpil"),
W I T N E S S E T H :
WHEREAS, MountSpil is the importer of MountSpil Farms Honey,
Shan Preserves and Shan Peanut Butter, MountSpil has created a logo and trade
name for the products (which are "MountSpil Farms" and "Shan"), and MountSpil
also repacks many types of dried fruits, nuts and candy under the MountSpil
Farms trade name; and
WHEREAS, in order to preserve the value of its trade names,
MountSpil wishes to allow Icy Splash to sell MountSpil's products exclusively to
retailers, distributors and others in the tri-state area of New York, New Jersey
and Connecticut and to operate using the trade names MountSpil, MountSpil Farms
and Shan (the "Trade Names"); and
WHEREAS, MountSpil understands and agrees that Icy Splash may
market and sell other food items and use the Trade Names in connection with its
food division, including with respect to other than MountSpil products; and
WHEREAS, MountSpil wishes to allow Icy Splash to use parts of
MountSpil's warehouse and is willing to provide certain Warehouse Services (as
hereinafter defined) to Icy Splash, as well as to assist Icy Splash with
collections from customers; and
WHEREAS, MountSpil intends to xxxx Icy Splash for Warehouse
Services, collection and any other services to be provided, such services to be
authorized in writing in advance by Icy Splash;
NOW, THEREFORE, MountSpil and Icy Splash, in consideration of
the mutual covenants and agreements hereinafter set forth, covenant and agree as
follows:
1. License. (a) "Licensed Products" shall mean all products bearing the
Trade Names, now or hereafter produced, marketed or sold by MountSpil and/or Icy
Splash, and all logos, trademarks, trade names, service marks and brands
associated with such products.
(b) MountSpil hereby irrevocably grants to Icy Splash, and Icy Splash
hereby accepts, for the Term (as hereinafter defined) of this Agreement and upon
the terms and conditions herein set forth, a royalty-free license to produce and
market and sell, within the states of New York, New Jersey and Connecticut (the
"Territory"), the Licensed Products.
(c) The license granted herein shall be exclusive, in that only Icy
Splash and its affiliates shall have the right during the Term to market and
sell the Licensed Products in the Territory.
(d) MountSpil understands and agrees that Icy Splash may market and
sell other food items and use the Trade Names in connection with its food
division, and MountSpil irrevocably consents to Icy Splash's doing business
during the Term as "MountSpil, a division of Icy Splash Food & Beverage, Inc."
and/or making the appropriate filing(s) to use any of the Trade Names as an
assumed name and so using the Licensed Products.
2. Warehouse Services. (a)MountSpil agrees to provide the following
warehouse services (the "Warehouse Services") to Icy Splash at MountSpil's
premises. MountSpil shall xxxx Icy Splash, and Icy Splash shall pay to MountSpil
an amount equal to $8,000 per week for storage, receiving and tracking, loading
and order preparation of merchandise in limits as listed below:
(i) Storage - up to 300 pallet loads
(ii) Receiving and tracking- up to 100 pallet loads per week
(iii) Loading -up to 100 pallet loads per week
(iv) Order preparing - up to 100 pallet loads per week
(b) For any other services requested in writing by Icy Splash to be
provided by MountSpil, including any trucking and collection services, MountSpil
will xxxx Icy Splash separately at prices to be agreed upon in advance in
writing by the parties hereto. MountSpil shall not be obligated to provide any
trucking or delivery services to Icy Splash hereunder.
(c) MountSpil shall perform all Warehouse Services and all other
services in a lawful, timely, efficient and xxxxxxx-like manner, using such
technology as is reasonably necessary for MountSpil to provide the Warehouse
Services.
3. Term. The term of this Agreement shall commence on the date hereof
(the "Commencement Date"), and shall terminate on January 31, 2015, but shall be
renewed for successive five (5) year terms upon written notice by Icy Splash at
any time prior to expiration, unless terminated earlier as otherwise provided
herein (the "Term"). This Agreement may be terminated upon the mutual agreement
in writing of the parties or as otherwise provided herein. If, on the effective
date of the termination of this Agreement, Icy Splash shall be in possession of
or own any of the Licensed Products, Icy Splash shall have the right, but not
the obligation, for a period of one (1) year after such termination, to retain
the license granted herein, to continue receiving Warehouse Services pursuant to
the terms hereof and to market and sell such products in such quantities as
shall enable Icy Splash to dispose of all of the inventory then owned by Icy
Splash. Upon the expiration of such one (1) year period, Icy Splash shall remove
all of its property from MountSpil's warehouse.
4. Ownership of Logos and Brands. MountSpil hereby represents and
warrants that MountSpil owns all intellectual property and other rights to the
trademarks, trade names, service marks, logos and brands being licensed to Icy
Splash hereunder
and that MountSpil has the right to license and permit use of its trademarks,
trade names, service marks, logos and brands to Icy Splash. When reasonably
requested to do so by Icy Splash, MountSpil shall defend its ownership of its
names, brands and logos at MountSpil's sole cost and expense. Icy Splash will
cooperate with MountSpil in any such defense, but will not be required to expend
its own funds to do so. MountSpil shall indemnify Icy Splash and hold Icy Splash
harmless from any claims, losses, liabilities, damages, costs and expenses
(including, without limitation, reasonable attorney's fees and disbursements)
incurred by Icy Splash due to any misrepresentation herein or breach of the
warranty contained herein regarding MountSpil's ownership and rights to license.
Icy Splash recognizes and agrees that MountSpil has not filed any application to
register any of its intellectual property and other rights to the trademarks,
trade names, service marks, logos and brands being licensed to Icy Splash
hereunder.
5. Risk of Loss; Insurance; Licensing. MountSpil shall have all risk
of loss and damage (whether due to fire, flood or otherwise) to the Licensed
Products located at MountSpil's premises during the Term, unless Icy Splash
elects to obtain its own insurance to cover its inventory stored at the
MountSpil warehouse. . At all times during the Term, MountSpil shall maintain
all insurance and governmental licensing required to be obtained by a prudent
owner of a business such as that of MountSpil operating within the City of New
York, and MountSpil shall furnish to Icy Splash, on or before the Commencement
Date of this Agreement, evidence that all such insurance and licensing has been
obtained.
6. Non-Liability; Indemnity. Except as specifically provided herein,
each party hereto shall indemnify and hold harmless the other party, its agents,
contractors, servants, licensees, employees or invitees from and against any and
all claims, losses, liabilities, damages, costs and expenses (including, without
limitation, reasonable attorney's fees and disbursements) arising from (i) the
use, conduct or maintenance of the warehouse or any business therein or any work
or thing whatsoever done, or any condition created in or about the warehouse
during the term of this Agreement, (ii) any negligent or otherwise wrongful act
or omission of such party or any of its agents, contractors, servants,
licensees, employees or invitees, and (iii) any failure of such party to perform
or comply with all of the provisions of this Agreement hereof that are
applicable to such party.
7. No Partnership, etc. Nothing in this Agreement shall be deemed or
construed to create between the parties hereto a partnership, association, joint
venture or agency, nor shall either party have power or authority to obligate or
bind the other in any matter whatsoever, and neither party shall make any
representation or warranty on behalf of the other.
8. Destruction by Fire or Other Casualty or Condemnation. If the
warehouse shall be partially or totally damaged or destroyed by fire or other
casualty or partially or totally taken by condemnation, Icy Splash shall be
entitled to exercise the right to terminate this Agreement, effective
immediately upon such casualty or condemnation, in addition to any other rights
available to Icy Splash under law.
9. Entire Agreement; Amendments; No Waiver. This Agreement sets
forth the entire agreement of the parties regarding the subject matter hereof,
supersedes any
prior agreement with respect thereto, and shall not be modified or amended
except by a writing signed by the party against whom enforcement is sought.
Neither the waiver of any breach by either party of any provisions of this
Agreement, nor any indulgence by either party in respect of any payment due it
hereunder shall be construed as a waiver of any subsequent breach or imply any
future indulgence.
10. Construction. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to its
conflicts of laws principles.
11. Notices. All notices under this License shall be in writing and
shall be deemed to have been sufficiently given when (i) delivered personally,
(ii) sent by postage prepaid certified mail, return receipt requested (air mail
if international), (iii) sent by telex, telegraph, or facsimile transmission, or
(iv) sent by private courier service guaranteeing overnight or three-day
delivery, addressed at the addresses included on Page 1 hereof, or to such other
address as any party may subsequently designate by this notice procedure. Notice
will be deemed effective (i) upon delivery, if delivered personally to the
notice address of either party; or (ii) three (3) business days after mailing,
if by certified mail (air mail if international); and (iii) three business days
after deposit with the courier if sent by courier service with delivery or
attempted delivery confirmed by the courier in writing.
IN WITNESS WHEREOF, MountSpil and Icy Splash have respectively
signed this Agreement as of the day and year first above written.
MOUNTSPIL PRODUCTS CORP.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, President
ICY SPLASH FOOD & BEVERAGE, INC.
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, President
