GSS AND BLENDTEC
AGREEMENT
This GSS and Blendtec Agreement (the
"Agreement") is entered into as of and is effective the 31st day of
March, 2005, and is made at Orem, Utah, by and between Global
Smoothie Supply, Inc., a Texas corporation, located at 4428
University Boulevard, Dallas, Texas 75205 ("GSS") and K-Tec, Inc.,
a Utah corporation d/b/a/ Blendtcc ("Blendtec"), located at 1206
South 1680 West, Orem, Utah 84058.
WHEREAS, GSS and Blendtec wish GSS to act as a
consultant to Blcndtcc 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 Blendtcc 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.
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. Blendtcc represents that the identified Customer
is already a Blendteo 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 MBGAblender TM ;
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.
5) GSS,
while acting as a consultant to Blendtec, will assist Blendtec in
obtaining orders, d i rectly 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 be 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.
6) As
the Customer may purchase any of Blendtec's products and equipment,
including, but not limited to its MEGAblender
TM , Blendtec 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.
7) Blendtec
will provide product and equipment pricing to GSS. Current
prices for the MEGAblender TM are shown on "Exhibit A", attached hereto and
are subject to change upon 90day 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 Blendtee 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 GS at the above address. Notwithstanding the foregoing,
GSS may cancel this Agreement on nl'ety (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 Blendtec 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.
Global
Smoothie Supply, Inc.
K-Tec, Inc.,
d/b/a Blendtec
Its: Sr. V.P.
Sales & Marketing
GSS AND BLENDTEC
AGREEMENT
This GSS and Blendtec Agreement (the
"Agreement") is entered into as of and is effective the 2
. 3rd day of July, 2008. and is made at Orem.
Utah, by and between Global Smoothie Supply. inc.. a Texas
corporation, located at 4428 University Boulevard. Dallas, Texas
75205 ("GSS") and K- fee, Inc.. a Utah corporation d/b/a/ Blendtec
("Blendtec"). located at 1206 South 1680 West. Orem, Utah
84058.
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.
NON-CIRCUMVENTION:
4) Blendtec
represents that with respect to the identified potential customer.
7-ELEVEN. Inc. ("Customer"), Blendtec will deal directly through
GSS in tilling 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.
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Blendtec agrees
not to:
a) Circumvent
the (.iSS 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 MEGAblender TM l
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.
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.
6) As
the Customer may purchase any of Blendtec's products and equipment.
including, but not limited to its MICiAhlender
TM 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 Blcndtec products to the Customer
shall receive more favorable pricing. service or-product warranties
than offered to GSS by Blcndtec.
7) Blendtec
will provide product and equipment pricing to GSS. Current prices
for the MEGAblender TM and S3 are shown on "Exhibit A". attached hereto
and are subject to change upon 90-day notice in writing. (iSS 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 Blcndtec 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) yens,
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 Blcndtcc agree to binding
arbitration to be conducted in Salt Take 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.
Global
Smoothie Supply, Inc.
K-Tec, Inc.,
d/b/a Blendtec
This is in
clarification of our Agreement, dated July 13, 2008 in
connection with the future purchase of Blendtec products by
GSS.
Blendtec hereby
grants GSS the first right to purchase Blendtec's production of its
Self Serve Smoothie blender (S3).
If Blendtec's
production of the S3 exceeds GSS's orders for such production for
more than any 30-day period then GSS shall lose its right of first
purchase of such S=3 production upon notice to that effect by
Blendtec to GSS.
Please indicate
Blendtec's approval of this amendment to its agreements regarding
its production with GSS by signing in the space provided
below.
Sincerely,
Global
Smoothie Supply, Inc.
/s/ John W.
Gohsman President
Read, Approved
& Agreed:
K-Tec, Inc.,
d/b/a Blendtec
/s/ David
Beck
By: David
Beck
President
MUTUAL CONFIDENTIALITY
AGREEMENT
This Mutual Confidentiality Agreement (this
"Agreement") between Colder Products Company, a Minnesota
corporation having a principal place of business at 1001 Westgate
Drive, St. Paul, Minnesota 44114 ("Colder") and Global Smoothie
Supply, Inc., having a principal place of business at 4428
University Boulevard, Dallas, TX 75205, a Texas corporation
("Company") takes effect on January 7, 2008. Colder and Company are
each individually referred to as a "Party," and collectively, the
"Parties."
RECITAL
The Parties intend to disclose to each other
certain technological and other proprietary information and
to set forth the obligations of each Party with respect to such
technological and proprietary information disclosed pursuant to
this Agreement.
AGREEMENT
In consideration of the above recital and the
promises set forth in this Agreement, the Parties agree as
follows:
1. Confidential
Information.
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For purposes of
this Agreement, the term "Confidential Information" means all
information conveyed by one Party (the "Disclosing Party") to the
other Party (the "Receiving Party"), whether orally, in writing, by
demonstration, electronically or otherwise, including but not
limited to drawings, designs, specifications, formulations,
instructions, test results, samples, business plans, ordering and
shipment data, schedules, test market and national volumes, product
and package designs and sizes, pricing, inventions, ideas,
manufacturing and marketing plans, know-how, trade secrets,
customer and supplier information and other data, and related
technical and commercial information furnished by one Party to the
other Party or by either Party to K-Tec, Inc., a Utah corporation,
d/b/a "Blendtec" or by Blendtec to either Party pertaining to
certain blender equipment being designed and produced by Blendtec
on behalf of and in connection with Company's business plan to
supply fruit purees to the wholesale and retail fruit puree
smoothie market or, that by its very nature would be considered as
confidential and proprietary. Confidential Information disclosed by
one party to the other shall be in writing or other tangible form
and marked "confidential " at the time of disclosure, or if the
initial disclosure is verbal, the Confidential Information shall be
so identified at the time of disclosure and shall be reduced to
written or other tangible form, appropriately marked and submitted
to the receiving party, as soon as reasonably practicable
thereafter.
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Confidential
Information does not include information which the Receiving Party
can demonstrate to be any of the following: (i) generally available
to the public through no act or omission on the part of the
Receiving Party or its officers employees or representatives; (ii)
known to the Receiving Party prior to its receipt . IO from the
Disclosing Party; (iii) disclosed to the Receiving Party at any
time by a third party
without violation of any obligation of confidentiality under
this
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Agreement or
otherwise; or (iv) independently developed by the Receiving Party
without using the Confidential Information disclosed to the
Receiving Party by the Disclosing Party.
2. Mutual
Obligations of Confidentiality and Nonuse.
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The Receiving
Party will do the following with regard to the Confidential
Information of the Disclosing Party:
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hold the
Confidential Information in strict confidence;
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take such steps
as may be reasonably necessary to prevent the disclosure of
Confidential Information to others with not less than the same
degree of care which the Receiving Party uses to prevent the
unauthorized use, dissemination or publication of its own most
valuable confidential and proprietary information (but with at
least the same degree of care used by a reasonably prudent business
person);
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not disclose
such Confidential Information to any third party for any purpose
whatsoever without (A) the prior written approval from the
Disclosing Party, and (B) the agreement on the part of such third
party to be bound by the terms of this Agreement;
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permit access
to the Confidential Information only to its employees and agents
who (A) reasonably require access to Confidential Information for
the limited purpose set forth in section 2 (a) vi, (B) are informed
by the Receiving Party of the confidential nature of the
Confidential Information, and (C) are d i rected by the Receiving Party to treat the
Confidential Information in a manner consistent with the terms of
this Agreement;
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acknowledge
that the Confidential Information is and will at all times remain
the property of the Disclosing Party;
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use the
Confidential Information only for the strictly limited purposes of
the internal evaluation or subsequent performance of a business
relationship with the Disclosing Party, as contemplated by this
Agreement and any other agreements between the Parties and for no
other purpose whatsoever.
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(b)
Notwithstanding the foregoing, if the Receiving Party is requested
or required by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or
other process to disclose any Confidential Information, such
Receiving Party will provide the Disclosing Party with prompt
notice of such request so that the Disclosing Party may seek an
appropriate protective order or waive compliance with the
provisions of this Agreement. If the Receiving Party is compelled
by obligation of law to disclose Confidential
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Information to
any tribunal or else stand liable for contempt or suffer other
censure or penalty (in the absence of such a protective order or
waiver by the Disclosing Party), the Receiving Party agrees to
furnish only that portion of the Confidential Information which it
is advised by written opinion of its counsel is legally required
and to exercise reasonable efforts to obtain assurances that
confidential treatment will be accorded such Confidential
Information.
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Return of
Materials. Upon request of a Disclosing Party, the Receiving Party
will return to the Disclosing Party or destroy all documents and
other writings supplied by the Disclosing Party, together with all
copies of any such documents or other writings, and an officer of
the Receiving Party will certify to the return or destruction of
all tangible Confidential Information and references to such
Confidential Information and the destruction of any references to
such Confidential Information on electronic or other intangible
media.
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Injunctive
Relief. Each Party acknowledges that a breach by it of any one or
more of the terms of this Agreement may cause irreparable harm to
the Disclosing Party and that damages would be difficult to
determine. Accordingly, in the event of a default, the Disclosing
Party may be entitled to, in addition to all other legal remedies
available to the Disclosing Party, injunctive relief restraining
the Receiving Party from any further or continued breach of its
obligations hereunder. Each Party shall pay its legal fees, unless
otherwise ordered by a court of competent jurisdiction, in which
case, such attorneys' fees and costs shall be
reasonable.
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No Grant of
Rights. No license, intellectual property right or other
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