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EXHIBIT 10.51
OTHER INCOME SUPPLIER AGREEMENT
COIN OPERATED EQUIPMENT
This Agreement is entered into this 1ST day of August, 2000, between
Wal*Mart Stores, Inc. of Bentonville, Arkansas (Wal*Mart) and American Coin
Merchandising Inc. dba SUGARLOAF CREATIONS (699-0040) of Boulder, Colorado
("Supplier"). Wal*Mart agrees to provide space for Supplier's crane machines
("Promotion") and Supplier agrees to provide service and commissions to Wal*Mart
in accordance with the following terms and conditions:
1. SERVICE. Wal*Mart acknowledges Supplier or its designated franchisee
as the owner/operator of machines. Supplier has been designated as an approved
Wal*Mart Other Income Supplier and will be allowed to operate its machines at
assigned locations under the terms of this Agreement. All store locations will
be assigned by the Other Income Department and attached to this Agreement as
Exhibit A. The Supplier must not solicit new locations by contacting the stores.
All requests for new locations must be in writing.
2. TERM. The term of this Agreement shall expire August 1, 2002.
Wal*Mart acknowledges Supplier to be the crane operator in locations where
written authorization has been given. Wal*Mart reserves the right to discontinue
operating cranes in any or all of the assigned stores and terminate this
agreement under the guidelines in Section 21- Termination.
3. LOCATION. Supplier will be allotted space in each location as
specified by the store manager and identified in the approval letter. In the
event an assigned location(s) is not available, Wal*Mart shall be under no
obligation to provide a substitute location nor shall Wal*Mart be held
responsible for any lost income to Supplier.
4. INDEMNIFICATION. Supplier agrees to indemnify, defend and hold
harmless Wal*Mart, its affiliates, subsidiaries, successors and assigns and
their officers, directors, agents and employees, from and against any and all
losses, damages, injuries, claims, suits, demands, judgments, decrees, costs,
expenses, and liabilities, including but not limited to attorneys' fees and
court costs, for property damage and personal injury, including death, which may
be suffered, incurred or asserted by any person in connection with or arising
out of any act or omission of Supplier and/or from the operation of Supplier's
Promotion.
5. INSURANCE. Supplier agrees to provide comprehensive general
liability insurance, including insurance against assumed or contractual
liability, insuring the activities of Supplier, its employees or agents, in the
following amounts: Product Liability - Two Million Dollars ($2,000,000.00) per
occurrence and General Liability (Bodily Injury and Property Damage) - Two
Million Dollars ($2,000,000.00) per occurrence. Such insurance shall be primary,
non-contributory and not excess coverage and shall name Wal*Mart Stores, Inc.,
its subsidiaries and its affiliates, as additional insured. Supplier agrees to
keep this insurance in full force and effect during the term of this Agreement
and shall provide Wal*Mart with ten (10) days prior written notice of any
cancellation or material change. Supplier shall provide Wal*Mart with a
Certificate of Insurance evidencing such coverage at least seven
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(7) days prior to the commencement of its activities on the Wal*Mart premises
pursuant to this agreement.
Supplier's initial insurance expiration date must be July 1. The
renewal policy must be an annual policy with a July 1.
Workers' Compensation or a signed Waiver for Workers' Compensation must
be provided.
6. SUPPLIER AND/OR EMPLOYEES. Supplier and/or its employees are not
Wal*Mart associates. They will not receive any of the benefits available to
Wal*Mart associates, including but not limited to the associate discount on
merchandise purchased at any Wal*Mart store.
7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that
the relationship created between Supplier and Wal*Mart by this Agreement is that
of independent contractor, and except as set forth in this Agreement, neither
party shall have the right to direct and control the day-to-day activities of
the other or to create or assume any obligation on behalf of the other party for
any purpose whatsoever. Nothing in this Agreement shall be deemed to constitute
the parties as partners, joint venturers, co-owners or otherwise as participants
in a joint or common undertaking. Except as set forth in this Agreement, all
financial obligations associated with each party's business are the sole
responsibility of that party.
8. TAX NUMBERS AND OPERATOR'S LICENSES. Supplier agrees to secure all
sales tax numbers, operator's licenses and any other licensing in accordance
with applicable law as may be required by local, state and federal authorities.
Wal*Mart is not responsible for determining which tax numbers and licenses are
required and shall not be liable for any fees, fines or penalties imposed on
Supplier for failure to obtain the necessary licenses and/or tax numbers.
Supplier shall not use Wal*Mart's tax numbers and licenses. Supplier agrees it
will pay all appropriate tax liabilities connected to its operation.
9. MAINTENANCE. Supplier shall be responsible for maintenance of its
assigned space. Supplier agrees to keep its area clean, free of hazards and safe
for customers and associates.
10. HOURS OF OPERATION. Supplier agrees that its Equipment will be
operative and available to the public as set out in the Guidelines. Any variance
in working hours must have the prior approval of the Wal*Mart store manager.
11. CONSTRUCTION. Supplier shall be responsible for any and all
construction-related expenses, including but not exclusive to demolition,
electrical and plumbing, involved in the construction of the Supplier's assigned
location. However, no changes to the premises will be allowed without the prior
written consent of Wal*Mart.
12. UTILITIES. At store manager's discretion, Supplier may be allowed
to use existing utility services at the store. Supplier shall be responsible for
any additional electrical needs, its telephone equipment, installation and
charges.
13. LIABILITY AND RESPONSIBILITY FOR EQUIPMENT. Wal*Mart will not be
responsible nor be held liable for any injury or damage to any person or
property resulting from use, misuse or failure of any equipment used by Supplier
or any of its employees or agents even if such equipment is
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furnished, rented or loaned to Supplier by Wal*Mart. The acceptance of use of
any such equipment by Supplier or any of its employees or agents shall be
construed to mean that Supplier accepts full responsibility for and agrees to
indemnify Wal*Mart against any and all loss, liability and claims for injury or
damage whatsoever resulting from the use, misuse or failure of such equipment
and all liability or loss arising in way of performance of the Agreement.
14. ADOPTION OF WAL*MART POLICY. Suppliers's employees will at all
times, while on Wal*Mart's premises maintain a pleasant and courteous attitude
toward customers. While on Wal*Mart property, Suppliers's employees shall be
subject to Wal*Mart Rules and Regulations. This specifically includes Wal*Mart's
refund and exchange policies. No smoking, food or drink will be allowed on the
sales floor. Personal appearance must be neat, clean and consistent with attire
worn by the store's sales floor associates. Supplier will instruct each employee
to refer to Wal*Mart management for details on Rules and Regulations. Compliance
with this provision will be in the sole discretion of Wal*Mart. Any employee of
Supplier not in compliance with this provision will be immediately removed from
Wal*Mart property upon notice to Supplier.
15. COMMISSION AND REPORT. The commission payable to Wal*Mart shall be
at the following rates after applicable sales taxes are deducted:
crane machine - [ ]
Commissions are to be paid and reports presented as outlined in the Supplier
payment procedures or as directed by the Wal*Mart Other Income Department.
16. AUDIT. All Supplier's records applicable to Wal*Mart Stores, Inc.
are subject to audit at Wal*Mart's discretion.
17. ASSIGNMENT/TRANSFER. No assignment or transfer of the rights
granted Supplier under this Agreement shall be made without the prior written
consent of Wal*Mart. Any transfer of 51% or more of the ownership of Supplier's
Promotion shall be deemed an assignment. Subject to the foregoing, this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns. A new Supplier that purchases
equipment from Supplier must be approved by the Wal*Mart Other Income Department
in order for the equipment to remain on Wal*Mart's property. Supplier numbers
are not assignable or transferable. Notwithstanding anything to the contrary in
this Section, Wal-Mart may assign this Agreement to a subsidiary or an affiliate
thereof.
18. [ ]
19. COLLECTION PROCEDURES. Currently, coin counting is the collection
procedure used by the parties to the Agreement. The parties agree to use their
best efforts to introduce meter reading as the collection practice of choice as
soon as is reasonably possible, but in no event later than ____________, 2000.
20. [ ]
21. [ ]
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22. TERMINATION. Either party may terminate this Agreement with cause
and without liability at any time. Cause for terminating shall include, but not
be limited to, Suppliers ability to maintain an[ ]. In the terminating party's
discretion, such termination may be effective as to individual locations or all
locations that are covered by this Agreement. Upon notice to the Supplier,
either written or oral, all equipment belonging to Supplier shall be removed
from Wal*Mart property within thirty (30) days of receiving notice. All costs of
such removal shall be the responsibility of Supplier. In the event Supplier
fails to remove its equipment, Wal*Mart may, at its option, consider said
equipment to be abandoned and dispose of the equipment by any reasonable means
necessary to free the space and charge Supplier with all related costs.
23. GOVERNING LAW; JURISDICTION; VENUE. This Agreement shall be
governed by and construed in accordance with the laws of the State of Arkansas,
without regard to the internal law of Arkansas regarding conflicts of laws. The
parties mutually consent and submit to the jurisdiction of the federal and state
courts for Benton or Washington County, Arkansas, and agree that any action,
suit or proceeding concerning this Agreement or any of the related agreements
which may be entered into between Wal-Mart and Supplier shall be brought only in
the federal or state courts for Benton or Washington County, Arkansas. The
parties mutually acknowledge and agree that they will not raise, in connection
with any such suit, action or proceeding brought in any federal or state court
for Benton or Washington County, Arkansas, any defense or objection based upon
lack of personal jurisdiction, improper venue, inconvenience of forum. THE
PARTIES ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THIS CLAUSE AND AGREE
WILLINGLY TO ITS TERMS.
24. NOTICES. Any notice of termination of this Agreement by either
party shall be in writing and addressed as follows and shall be deemed given
when delivered in person or by courier or on the third business day after
mailed, postage prepaid, by certified mail, return receipt requested. Any other
notice given in connection with this Agreement shall be in writing and addressed
as follows and shall be deemed given when first class mail is received:
If to Wal*Mart: Wal*Mart Stores, Inc.
Attention: Other Income Department
000 X.X. 0xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000-0000
If to Supplier: American Coin Merchandising, Inc.
dba Sugarloaf Creations, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
25. USE OF WAL*MART'S NAME. Except for such disclosure as legally
required, Supplier understands that listing Wal*Mart as a customer has value and
therefore agrees that Supplier will not list Wal*Mart as a customer in any press
releases, advertisements, trade shows, posters, reference lists, or similar
public announcements without Wal*Mart's written permission. Supplier may
verbally reference Wal*Mart as a customer in private conversations with or
private letters to prospective Supplier customers.
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26. ENTIRE AGREEMENT. This Agreement, together with any exhibits,
schedules or other writing attached hereto or incorporated by reference herein,
constitute the entire agreement between the parties with respect to the subject
matter of this Agreement, and all prior and contemporaneous negotiations,
agreements and understandings are hereby superseded, merged and integrated into
this Agreement.
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
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Title: EVP-Store Operations Wal-Mart Stores Division Title: President CEO
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Date: 8-3-00 Date: 8-4-00
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12/30/99 td
