GSS AND BLENDTEC AGREEMENT
GSS
AND BLENDTEC AGREEMENT
This GSS
and Blendtec Agreement (the "Agreement") is entered into as of and is effective
the 23rd
day of July, 2008. and is made at Orem, Utah, by and between Global Smoothie
Supply, Inc., a Texas corporation, located at 0000 Xxxxxxxxxx Xxxxxxxxx. Xxxxxx,
Xxxxx 00000 ("GSS") and K-Tec, Inc., a Utah corporation d/b/a/ Blendtec
("Blendtec"), located at 0000 Xxxxx 0000 Xxxx, Xxxx, Xxxx 00000.
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:
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.
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.
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 MEGAblenderTM /
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 MEGAblenderTM 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 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 and
S3 are shown on "Exhibit A", attached hereto and are subject to change upon
90-day 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 Blendtec 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 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 Blendtcc 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.
By:
/s/ Xxxxx X.
Xxxxxx
Its:
CEO
K-Tec,
Inc., d/b/a Blendtec
By:
/s/ Xxxxx X.
Xxxx
Its:
President
