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GSS AND BLENDTEC AGREEMENT

Consulting Services Agreement

GSS AND BLENDTEC AGREEMENT | Document Parties: GLOBAL SMOOTHIE SUPPLY, INC. | Global Smoothie Supply, Inc | K-Tec, Inc You are currently viewing:
This Consulting Services Agreement involves

GLOBAL SMOOTHIE SUPPLY, INC. | Global Smoothie Supply, Inc | K-Tec, Inc

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Title: GSS AND BLENDTEC AGREEMENT
Date: 7/14/2009

GSS AND BLENDTEC AGREEMENT, Parties: global smoothie supply  inc. , global smoothie supply  inc , k-tec  inc
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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.

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. 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.

 

CONFIDENTIALITY:

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.

 

BLENDTEC WARRANTY:

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.

 

PRICING & PAYMENT:

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.

 

By: / s/ David C. Tiller

Its: CEO

 

K-Tec, Inc., d/b/a Blendtec

 

By: /s/

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.

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 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.

 

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.

 

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 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.

 

PRICING & PAYMENT:

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.

 

By: / s/ David C. Tiller

Its: CEO

 

K-Tec, Inc., d/b/a Blendtec

 

By: / s/ David Beck

Its: President

 

 

 

 

 


 

 

 

 

July 28, 2008

 

Dear David,

 

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.

 

 

(a)

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.

 

 

(b)

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

 

 

 

 


 

 

 

 

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.

 

 

(a)

The Receiving Party will do the following with regard to the Confidential Information of the Disclosing Party:

 

 

 

(i)

hold the Confidential Information in strict confidence;

 

 

(ii)

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);

 

 

(iii)

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;

 

 

(iv)

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;

 

 

(v)

acknowledge that the Confidential Information is and will at all times remain the property of the Disclosing Party;

 

 

(vi)

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.

 

 

(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

 


 

 

 


 

 

 

 

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.

 

3.

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.

 

4.

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.

 

5.

No Grant of Rights. No license, intellectual property right or other


 
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