AGREEMENT
BETWEEN
AMERICAN KIOSK INC.
AND
TOPPERS BRICK OVEN PIZZA
AGREEMENT, made as of the___1st___ day of __August______, 1997, between TOPPERS
BRICK OVEN PIZZA, INCORPORATED, a corporation organized under the laws of the
State of Delaware with offices located at 0000 Xxxxxxx Xxxx, Xxxxxx Xxxxx, XX
00000 ("TOPPERS") and AMERICAN KIOSK CORPORATION, a Corporation organized under
the laws of Delaware with offices at 0000 X.X.X. Xxxxxxxxx, Xxxxx 000, Xxxx
Xxxxx Xxxxxxx 00000 ("A.K.C.").
WHEREAS, Toppers has developed certain distinctive fast-food pizza products
described on Exhibit 1 attached hereto whose unique characteristics include
preparation using secret formula recipes and baking in a brick oven ( the
"Products").
WHEREAS, Toppers has the exclusive right to distribute and sell or lease a
compact pizza brick oven (the "Oven") for use in connection with the baking of
the fast food products bearing the Trademarks ( as defined ).
WHEREAS, Toppers owns, or has the rights to use in connection with the Products
and Oven, trade names, trademarks, service marks, copyrights, slogans, designs,
insignia, emblems, symbols, package design, logos, and other proprietary
identifying characteristics and information and materials, including those
designated on Exhibit 2 attached hereto (collectively, the "Trademarks").
WHEREAS, Toppers desires to have its Products sold for consumption in kiosks and
kiosk-style retail environments. ( "Kiosks" ).
WHEREAS, American Kiosk Corp. desires to sell Toppers "Products" through a
network of Corporate and Franchised Kiosk and/or kiosk-style retail outlets for
ultimate consumption in the U.S.A.
WHEREAS, Toppers is willing to give the exclusive right to AKC to market Toppers
"Products " to a network of Corporate and Franchised Kiosks and/or Kiosk-style
retail outlets in the U.S.A.
NOW THEREFORE, the parties hereto, in consideration of the mutual covenants
herein contained and promises herein expressed for other good and valuable
consideration, receipt whereof is hereby acknowledged, do hereby agree as
follows:
ARTICLE 1
DEFINITIONS
When used herein, whether in the singular or plural, the following terms have
the respective meanings set forth below:
1.1 "Confidential Information"- Any business and technical information of or
relating to Toppers, the Products including but not limited to, training
materials, financial information, trade secrets, know-how methods of operation,
research and development, pricing, surveys, drawings, patent data, sketches,
models, copyrightable data and the like; provided however, that such term shall
exclude (i) information developed independently by AKC or lawfully received from
another source without breach of this agreement as documented in the dated or
written records of AKC; (ii) information within the public domain; (iii)
information known to AKC prior to the execution of this agreement (iv)
information rightfully received by AKC after the execution of this agreement
from a third party who learned of it or developed it independently from Toppers;
and (v) information disclosed pursuant to law, judicial order or governmental
regulation; provided that Toppers shall have been given the opportunity to seek
a protective order or other action to prevent or limit such disclosure.
1.2 "Copyrights"- Any copyrightable works created, owned controlled or used by
Toppers and/or AKC in connection with the Products.
1.3 "Kiosks"- A retail-style outlet either free-standing, or as an addition to
an existing retail-style outlet including fixed outlets, drive-thru outlets,
mobile outlets, or any variation thereof marketed either Corporately or through
a network of Franchisees by AKC.
1.4 "Financial Statements"- for any entity shall mean a balance sheet as at a
specified date and statements operations, retained earnings(deficit) and
cashflow, prepared in accordance with GAAP or such other accounting method which
is reasonably acceptable to both Toppers and AKC.
1.5 "GAAP"- for all purposes of this agreement, generally accepted accounting
principles set forth in the opinions of the Accounting Principles Board of the
American Institute of Certified Public Accountants and/or in Statements of the
Financial Accounting Standards Board, which principals were (or should have
been) used in the preparation of the Financial Statements referred to in
Sections 3.5 and 4. 1.2.
1.6 "Oven"- shall mean the patented compact brick oven, or any future
generations of the oven Toppers develops and manufactures or has manufactured
including but not limited to future variations, capabilities, changes etc.
1.7 "Food Products"- the fast food pizza and related products currently
manufactured by or for, and sold by Toppers and/or AKC in connection with their
respective businesses including but not limited to line extensions, new
products, revisions to existing products etc. as described in Exhibit I hereto.
1.8 "Retail Outlets"- Shall mean retail environments at which goods are sold to
consumers.
1.9 "Trademarks"- all trademarks of Toppers and/or AKC used in connection with
the "Products" in their respective businesses, including without limitation,
trade names which either party owns, controls, or has the right to use now or in
the future, including the Trademarks specified on Exhibit 2.
ARTICLE 2
APPOINTMENT
2.1 Subject to Section 2.2.1 hereof, Toppers appoints AKC, and AKC accepts such
appointment as Toppers exclusive seller and marketer of Products through
"Kiosks" for ultimate consumption in the USA. In connection with such
appointment AKC shall (i) purchase the "Products" from Toppers in accordance
with the terms hereof, (ii) sell the "Products" to Corporate and/or Franchised
Kiosk operators in the USA in the minimum quantities during each of the years
during the initial term as set forth in Exhibit 3 hereto and thereafter in
accordance with the applicable purchasing quotas if any ( as defined in Section
4.1.10 hereof).
2.2 Anything herein to the contrary not withstanding, Toppers, has the right for
itself and/or any of its subsidiaries at Toppers sole discretion to:
2.2.1 sell and or lease the "Products" to: Any person, Distributor, Route
Operator, or End-user provided the same is restricted to application not
competing with AKC's exclusive right to market and sell "Kiosk" opportunities.
2.2.2 promote and advertise, at its expense, Products in the USA, including
presentations and promotions to customers in the USA, provided such
presentations or promotions do not infringe on the exclusive appointment of AKC
to market and/or sell "Products" to "Kiosk" customers.
2.2.3 change (a) from time to time the "Products" and the features,
specifications, packaging and pricing, upon not less than 90 days written notice
to AKC, (b) any policies relating to the promotion, advertising, and sale of the
"Products" including but without limitation, maintenance and/or warranties on
the "Products" upon not less than 90 days written notice to AKC, provided that
all or any of the above shall not materially affect AKC's cost of doing business
in the USA and/or affect its ability to fulfill its obligations to Toppers
during the term of the agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF AKC
AKC represents, warrants, and covenants as follows:
3.1 AKC is a Corporation, duly organized and in good standing under the laws of
Delaware, and that the execution, delivery and performance of this agreement has
been duly authorized by all necessary legal action;
3.2 the execution, delivery and performance of this agreement by AKC is not
subject to any requirement of prior license or approval of the Government of the
USA;
3.3 the execution, delivery and performance of the agreement by AKC will not
constitute a breach of or default under another agreement or instrument to which
AKC is a party or by which AKC or its properties are bound;
3.4 the terms and conditions of this agreement, and the performance of AKC
contemplated hereunder, conform to, and are consistent with the laws and
regulations in effect in the USA.
3.5 AKC is in material compliance with all applicable laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, and local governments (and all agencies
thereof);
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF TOPPERS
Toppers represents, warrants, and covenants as follows:
4.1 Toppers is a Corporation duly organized and in good standing under the laws
of Delaware and that the execution, delivery and performance of this agreement
has been duly authorized by all necessary legal action;
4.2 the execution, delivery and performance of this agreement by Toppers is not
subject to any requirement of prior license or approval of the Government of the
USA;
4.3 the execution, delivery and performance of the agreement by Toppers will not
constitute a breach of or default under any other agreement or instrument to
which Toppers is a party or by which Toppers or its properties are bound;
4.4 the terms and conditions of this agreement, and the performance of Toppers
contemplated hereunder, conform to, and are consistent with the laws and
regulations in effect in the USA;
4.5 Toppers is in material compliance with all applicable laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, and local governments(and all agencies
thereof);
ARTICLE 5
DUTIES OF AKC
5.1 During the term of this agreement, AKC shall:
5.1.1 use its best efforts to maximize the consumption of the "Products"
throughout the USA and to that end: maintain a qualified staff, experienced and
skilled in the distribution of goods corresponding in quality to the "Products";
develop, monitor, maintain and support a network of Corporate and/or Franchised
"Kiosk" outlets in the USA; engage in capital investments, leases,, and/or
acquisition of services or equipment necessary to carry out the maximum
distribution of the "Products" at AKC's sole discretion. Diligently promote and
make every reasonable effort to increase sales of the "Products".
5.1.2 maintain an adequate inventory of the "Products" as is deemed
necessary and prudent by AKC to maximize sales.
5.1.3 adhere to the handling requirements of the "Products" as set forth by
Toppers, and destroy (at AKC's expense) including the cost of the "Products",
any inventory unsold at its expiration date thereof-,
5.1.4 use its best efforts to ensure that all Products sold to consumers in
the USA are prepared in accordance with Toppers policies, procedures, and
standards, provided these are consistent with the "kiosk" unit.
5.1.5 ensure that all Ovens are stored and maintained in accordance with
Toppers policies, procedures, and standards and that all ovens in Kiosk units
are in proper working order and comply with all applicable health and safety
rules and regulations provided that the Ovens are delivered to AKC already
meeting such rules and regulations.
5.1.6 notify Toppers forthwith, in writing, of problems encountered in the
promotion, advertising, sale, and/or distribution of the Products.
5.1.7 maintain standard account by account records for each Kiosk including
purchasing records, service records etc.
5.1.8 implement a system of tracking all products, and a recall system
consistent with Toppers tracking and recall systems.
5.1.9 keep confidential all Confidential Information and use such solely for
the purposes of AKC's performance under this agreement. AKC acknowledges that
such information is valuable to Toppers and any breach of this covenant could
cause harm to Toppers for which damages may result.
5.1.10 maintain in full force adequate insurance as provided by law and
adequate liability insurance. All policies shall be issued by companies having
not less than Best's Triple A rating and shall name Toppers as an additional
insured, for the mutual and joint protection and benefit of each of the parties
hereto.
5.1.11 notify Toppers forthwith of any actual or potential material adverse
change in AKC's financial condition.
5.1.12 During the term of this agreement, and upon adequate notice, provide
Toppers access to AKC's facilities for the purposes of examining and inspecting
any perishable products, and non-perishable ovens to ensure that the criteria
set forth as to quality assurance is being adhered to. In the event that such
inspection indicates a deficiency or unsatisfactory conditions, AKC will have a
reasonable time to correct and repair such conditions. In the event of failure
of AKC to correct and/or repair these conditions, Toppers will have the right at
AKC's expense to remedy the situation to its sole satisfaction.
5.1.13 not engage, directly or indirectly through a third person with whom
or in which it has any interest, in the distribution, promotion, advertising,
sale or lease or solicitation of purchases or leasing of any goods similar to
Toppers "Products".
5.1.14 not use any of the Trademarks as part of any Corporate name or trade
name or with any suffix, or other modifying works, terms, designs, etc. or with
the sale or lease of any goods or services not expressly authorized by Toppers
in writing.
5.2 Prior to commencing operation hereunder, AKC shall;
5.2.1 obtain all necessary licenses, approvals, permits or any other
certifications required by public authority for the lawful operation of it
business and to keep the same in good standing for the term of this agreement.
5.3 AKC shall commence the performance of its duties hereunder, including but
not limited to, the sale of Products for use in the Kiosks in accordance with
the terms hereof no later than December 1,1997.
5.4 In connection with the appointment of each Kiosk Operator, AKC shall:
5.4.1 use its best efforts to not permit activities by any Kiosk operator or
AKC subsidiary, which conflict with or are inconsistent with the terms set forth
herein.
5.4.2 use its best efforts to not permit any Kiosk operator from using any
of the Trademarks except as expressly authorized by AKC with the prior approval
in writing from Toppers.
5.4.3 use its best efforts to monitor, and promptly take corrective action
if necessary, the conduct of the Kiosk operator to ensure he/she maintains
ethical business practices: AKC shall promptly investigate any and all
irregularities in business standards that Toppers teams of and will respond in
writings to Toppers all actions taken by AKC.
ARTICLE 6
DUTIES OF TOPPERS
6.1 During the term of this agreement, Toppers shall:
6.1.1 provide AKC with all the necessary technical knowledge and information
regarding the "Products" required to carry on the business and maximize the
distribution of the Products in the USA.
6.1.2 provide AKC with details on new "Product" developments included but
not limited to new Oven generations, added features etc., new Food Product
development, included but not limited to line extensions, new category
development etc. in a timely fashion so as to enable AKC to prepare for and
maximize the distribution of these "Products" as it deems fit.
6.1.3 use its best efforts to respond to requests from AKC on new "product"
development as it relates to either equipment(oven) and/or Food products.
6.1.4 execute manufacturing contracts such that there is adequate
manufacturing capabilities available to satisfy the purchasing requirements of
both Toppers and AKC for the term of this agreement. In the event that Toppers
is unable to fulfill written purchase orders from AKC in a manner which will do
irreparable harm to AKC, Toppers agrees to grant AKC the right to purchase
"Products" from outside sources until such time as Toppers is able to deliver to
AKC.
6.1.5 keep confidential all Confidential Information on AKC and use such
solely for the purposes of increasing the sales and distribution of the Products
in the USA. Toppers acknowledges that such information is valuable to AKC and
any breach of this covenant could cause harm to AKC for which damages may
result.
ARTICLE 7
ORDERS
7.1 "Products" may be ordered by AKC only pursuant to written purchase orders on
the forms approved by Toppers. No purchase order may contain any terms or
conditions inconsistent with the terms and conditions set forth herein.
7.2 Toppers agrees to fulfill every purchase order AKC issues, FOB plant, as per
the terms and conditions set forth herein within 28 days of receipt of said
purchase order.
ARTICLE 8
PAYMENT TERMS
8.1 Unless Toppers should otherwise agree in writing, payment for the "Products"
purchased by AKC hereunder shall be in United States Dollars payable to Toppers
via check or electronic funds transfer.
8.2 The prices of the "Products" are those quoted by Toppers. All pricing is
guaranteed for 180 days with Toppers advising AKC of any price changes 90 days
in advance of the changes. As of the date of the execution of this agreement,
the prices of the Products are as set forth in Exhibit 1. It is further agreed
that price increases passed on to AKC will not exceed actual price increases
percentage passed on by Toppers manufacturers.
ARTICLE 9
DELIVERY TERMS
9.1 Unless Toppers should otherwise agree in writing , Products shall be
available for shipping FOB Toppers, or its manufacturing facilities. Toppers
assumes no liability for the carrier shipping the goods. AKC is responsible for
all shipping costs from Toppers and/or its manufacturers warehouses to its
distribution system or Kiosk units.
9.2 In the event Toppers is unable to ship the purchase order in its entirety,
Toppers will advise AKC in writing as to the time frame the balance of the order
will be shipped. In the event such a delay would cause irreparable damage to
AKC, AKC will be granted the remedies as set forth in Section 6.1.
ARTICLE 10
PRODUCT WARRANTY
10.1 Toppers warrants that the "Products" shall, when tendered for delivery to
AKC's carrier, comply with all legal requirements applicable to goods
corresponding to Products as the case may be, sold in the USA. Should any
Products fail to conform to the foregoing warranty, Toppers obligations will be
to replace the non-conforming Products in a timely fashion. In the event that
Toppers is unable to replace the Product in a timely fashion, and such delay
causes AKC irreparable harm, Toppers agrees to grant AKC the rights of
replacement as set out in Section 6.1.4.
10.2 Toppers has the right to modify any product warranty with 90 days notice to
AKC so long as it does not materially affect AKC's business or ability to
perform its obligations under the terms of this agreement. All modifications to
warranties will be applied prospectively.
ARTICLE 11
TRADEMARKS AND COPYRIGHTS
11.1 During the term of this agreement, and any renewals hereof, AKC shall
diligently promote and make every reasonable effort to increase the sales of the
Products.
11.2 AKC acknowledges that it has no right or interest in Trademarks or
Copyrights (except as expressly permitted under Section 11.2 hereof) and that
use by AKC of same shall inure solely to the benefit of Toppers. AKC may use
Trademarks or Copyrights only in strict accordance with policies and
instructions of Toppers, and Toppers reserves the right, from time to time to
modify such policies so long as they do not materially affect AKC's business or
its ability to perform its obligations in this agreement.
11.3 Any use by AKC of Trademarks or Copyrights shall be solely for the
promotion and advertising of the Products and/or AKC's business within the USA.
AKC further agrees that any use of the Trademarks and Copyrights to be used in
any printed materials, signage, POS materials, packaging, etc. must be approved
by Toppers in writing prior to its use.
11.4 AKC shall not at any time:
11.4.1challenge the validity of or do anything which might result in the
impairment of the value of the Trademarks.
11.5 At Toppers request, and with reasonable notice, AKC will furnish Toppers
with copies of promotional, advertising, and packaging materials bearing the
Trademarks or Copyrights(whether alone or in combination with AKC corporate
name, or other AKC Corporate sponsors). AKC shall act prudently and in
conformity with all laws, regulations, ordinances or other requirements which
may affect the utilization of the Trademarks in a manner which will not
jeopardize, diminish, or damage such Trademarks or Copyrights. AKC further
agrees that if such damage does occur, AKC will indemnify and save harmless
Toppers for any damages or expenses occasioned by AKC's improper use.
11.6 AKC shall notify Toppers and Toppers shall notify AKC of any unauthorized
use of the Trademarks by others, infringement, unfair competition, passing off,
misappropriation, or unfair trade practice in connection with the Trademark
which comes to either party's attention. Toppers agrees to defend its Trademarks
and Copyrights aggressively and AKC commits to cooperate with Toppers in any
manner the parties agree is required. Any damages awarded to Toppers which
affected the Trademark and/or Copyright use by AKC shall be shared equally
between Toppers and AKC. Any damages awarded to Toppers which did not affect AKC
shall be solely for Toppers regardless if AKC was instrumental in any pursuit or
defense of any action. Should Toppers request AKC's participation in any action,
Toppers will reimburse AKC for any costs associated with any pursuit or defense
which benefits Toppers solely.
11.7 After this agreement expires or is terminated, AKC may not make any use of
any Trademark or Copyrights, including without limitation, the use of the same
in connection with its trade, corporate, or business name, or its use in
connection with all promotional material in any medium, provided Toppers has
performed all its obligations under this agreement. Furthermore, AKC agrees to
take such actions as may be required to cancel all fictitious or assumed names
or equivalent registrations relating to any Trademarks and hereby authorizes
Toppers, its directors and/or solicitors to cancel same in the event AKC is
unable or unwilling to execute the cancellations.
ARTICLE 12
TERM
12.1 This agreement shall become effective as of the date first above written,
and unless earlier terminated in accordance with Sections 12.2 thru 12.4,0 shall
continue in effect until December 31,1998. AKC can renew this Agreement for
another 25 years with a 1 year notice submitted to Toppers in writing in
accordance with Sections 12.2 thru 12.4.
12.2 Either party may terminate this agreement by notice if the other party
fails to cure or fails to attempt to cure the breach of any material provision
of this agreement, including without limitation, breach of any representation,
warranty, duties or any other covenant within 90 days after. receipt of a
written notice setting forth in detail the nature of the other party's breach
hereunder.
12.3 Toppers may terminate this agreement forthwith upon written notice if:
12.3.1 In the event that AKC files or has filed against it a petition for
Chapter 7 bankruptcy protection, and if such petition and such filing is not
dismissed by the Bankruptcy Court within 180 days.
12.3.2 AKC fails to purchase from Toppers the targeted annual sales
quantities of the Products and sell the targeted number of Kiosk outlets each
year as set forth in Exhibit 3.
12.4 In the event of the expiration or earlier termination of this agreement for
any reason, AKC shall forthwith (i) comply with the instruction of Toppers to
furnish a current and complete list of AKC Kiosk outlets, operators, sales
history, purchasing history etc. (ii) cease and desist from the use of the
Trademarks, and deliver to Toppers all advertising and marketing materials,
forms and other materials containing Trademarks (iii) pay any and all
outstanding moneys owing to Toppers (iv) return all Confidential Information in
its possession and (v) take such actions as may be required under Section 11.7
hereof.
12.5 The expiration or earlier termination of this agreement for any reason
shall not operate to release either party from any liability, whenever arising,
attributable to an act or omission occurring prior to expiration or termination.
12.6 Neither party shall be liable to the other in the event of the expiration
or earlier termination of this agreement, for any compensation or damages of any
type or nature, whether general, special, indirect or consequential, for injury
or loss suffered or incurred by the other party, including without limitation,
loss of anticipated profits or goodwill, damage to business reputation or
investments, capital and related expenditures or any other cost and expenses
made or incurred in anticipation of the continuation of this agreement or as a
result of or in connection with the past relationship of the parties.
12.7 AKC may terminate this agreement forthwith upon written notice if:
12.7.1 Toppers unreasonably withholds approval for use of its Trademarks
and Copyrights effectively damaging AKC's ability to meet its obligations under
the terms of this agreement.
ARTICLE 13
TRANSFER OF INTEREST
13.1 This Agreement shall inure to the benefit of the successors and assigns of
both Toppers and AKC.
ARTICLE 14
MISCELLANEOUS
14.1 Neither party shall be liable to the other party for any failure or delay
of performance or other consequences which is due to:
14.1.1 any act of god, act of Government, war, civil disturbance, or other
cause beyond the affected party's reasonable control and power to remedy.
14.2 The waiver by either party of any right hereunder must be reduced to a
writing executed by the duly authorized representative of the party against
which enforcement of the alleged waiver is sought and shall not constitute a
waiver of the subsequent exercise of such right or a waiver of any other right.
Failure of either party to exercise promptly any right granted by this
agreement, or to require strict performance of any obligation undertaken by the
other party herein, shall not be deemed to be a waiver of such right or of the
right to demand subsequent performance of any and all such obligations.
14.3 Except as expressly permitted herein, no amendment of this agreement or
Exhibits hereto shall be effective unless reduced to writing executed by the
duly authorized representatives of both parties, which need not be supported by
additional consideration.
14.4 Except as otherwise expressly provided herein, AKC may neither assign its
rights nor delegate its obligations hereunder directly or indirectly without the
prior consent of the other party. Any such purported assignment or delegation,
in the absence of such consent, shall be void and without effect. Such consent
will not be unreasonably withheld.
14.5 Any provision of this agreement which is finally determined by a competent
court or governmental agency to be unenforceable in any jurisdiction shall, as
to such provision and jurisdiction only, be deemed severed to the extent of such
enforceability and, subject to such severance, this agreement shall continue in
effect in accordance with its other terms and conditions.
14.6 All notices, consents, and/or other communications permitted or
contemplated by this agreement shall be in writing and shall be valid and
sufficient only if dispatched by certified mail, return receipt requested, in
accordance with postal requirements of the USA, as the case may be, or by
delivery through any recognized courier (such as DHL, or Federal Express),
addressed as follows:
a) if to Toppers:
0000 Xxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxxxxxx, 00000
--------------------------------------
Attn: Xxxx Xxxxxxxx
b) if to AKC:
0000 XXX XXXX Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx, 00000
--------------------------------------
Attn: Xxxxxxx Xxxxxxx
Notices, consents and other communications shall be deemed to have been
received 7 days after the date of dispatch thereof in the manner set forth
above.
14.6.1 if any of the above parties change their address, the party who has
changed their address is responsible for notifying the other party of the
address change.
14.7 THIS AGREEMENT AND THE PERFORMANCE OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF PENNSYLVANIA, USA (without reference to its
principles of conflict of laws).
14.8 Toppers and AKC agree that any suit, action or proceeding with respect to
this agreement and the performance of the parties hereunder shall only be
brought in Xxxxxxxxxx or Philadelphia County, PA. Accordingly, Toppers and AKC
acknowledge that, anything contained in a treaty or convention to the contrary
notwithstanding, service of process in any such suit, action or proceeding may
be effected in any manner then permitted by the Federal or Florida Rules of
Civil Procedure.
14.9 The parties are acting hereunder in their capacities as independent
contractors. Nothing herein contained shall be construed as constituting either
party the employee, agent, partner, or coventurer of the other party, and
neither party shall have any authority to act in the name of, or to enter into
any contractual commitment or other obligation binding on, the other party. In
all dealings with their respective business and public representatives, neither
party shall identify themselves as an agent for the other. Neither party has
authorized the other to employ each's name or any affiliate name in signing any
contract, lease, mortgage, purchase agreement negotiable instrument or other
legal obligation or in a manner that may result in liability to either party or
affiliate of either party except to the extent specifically permitted herein.
14.10 Taxes imposed in connection with the performance of the parties hereunder
shall be borne by the party required to do so by applicable law.
14.11 This agreement and the Exhibits hereto supersedes all prior oral and
written communications between the parties concerned, and constitute their sole
and exclusive understanding with respect to, the subject matter hereof
14.12 Toppers and AKC agree to protect, indemnify, as save each other, their
affiliates, subsidiaries, partners, stockholders, directors, officers, suppliers
and employees harmless from any and all loss, damage, liability, expenses,
attomey's fees, and costs incurred by any of them because of any action, matter,
thing, or conduct relating to either party's conduct with respect to their own
businesses, its agents, servants, employees, customers, in, or connected with
the performance of each party's obligations hereunder including in connection
with the preparation, baking, construction of ovens, sale of the Products and
the servicing of the Products, and any claims of infringement relating to use of
trademarks, copyrighted materials, inventions or other proprietary materials not
supplied by either party.
ARTICLE 15
FEE
15.1 AKC shall pay to Toppers in cash the amount of $100,000.00. These funds
shall be paid to Toppers as follows; $ 25,000.00 on December 5,1997, $25,000 on
January 15, 1998 and $ 50,000 on February 15,1998. These funds will represent
the consideration Toppers and AKC have agreed to for the exclusive rights to
sell and market Kiosks and Kiosk-style retail operations as defined herein using
Toppers "Products", Trademarks, and Copyrights in the USA.
15.2 AKC shall pay the amount of $200,000.00 on May 1st, 1998. These funds are
considered prepayment on future purchase orders in 1998 and should be applied as
such to the full payment of each purchase order until the prepayment is
exhausted. Any purchases prior to May 1, 1998 shall be paid for as per the terms
of payment set out herein.
IN WITNESS WHEREOF, Toppers and AKC have caused this agreement to be executed by
their duly authorized representatives as of the date first above written.
TOPPPERS BRICK OVEN PIZZA INC.
BY: _______________________________________
NAME ______________________________________
TITLE _____________________________________
AMERICAN KIOSK CORPORATION
BY: _______________________________________
NAME ______________________________________
TITLE _____________________________________
EXHIBIT 1
PRODUCTS AND PRICING
OVENS
Price for the patented 23 x 17 x 9 110v brick pizza oven is $950.00 FOB TOPPERS
or its manufacturing plants.
FOOD PRODUCTS
Pricing for the current line of 7" Individual Pizza in 4 Varieties packed 36 per
case and 24 per case (depending on supplier) are as follows, FOB Toppers or its
manufacturers:
CHEESE: $1.20 ea.
PEPPERONI: $1.20 ea.
SUPREME: $1.20 ea.
TEX-MEX: $1.20 ea.
Products in development include Breakfast Pizza, Family size pizza, Breadsticks,
encrusted products, and stuffed bread/dough products.
Equipment in development include a more cost effective electronic panel for the
oven, new multiple heating cycle capabilities, electronic door and brick (hands
free).
EXHIBIT 2
TRADEMARKS
EXHIBIT 3
MINIMUM SALES VOLUMES
Notwithstanding AKC's obligation to maximize the distribution and sales of the
Products in the USA, during the term of this agreement, the targeted annual
purchases by AKC from Toppers, and the minimum number of Kiosk units to be sold
annually have been agreed to by both parties and set forth below for the first
three years of the agreement:
Year Min. # Kiosk Minimum $ volume of product purchases
by AKC from Toppers
1998 50 $500,000.00
1999 100 $1,000,000.00
2000 150 $1,500,000.00
Minimum volume of Products AKC is committed to purchase from Toppers on an
annual basis after the third year shall be $2.5 million.
