ICE CREAM SUPPLY AGREEMENT
CONFIDENTIAL
This Supply Agreement (the "Agreement") is by and between 54, Ltd., a Nevada limited liability company ("Us/we"), and “you" as identified on the “Buyer”, “Purchaser” or similar term, on an applicable order form. Capitalized terms herein have the meaning set forth in the then current version of our General Terms and Conditions available at www.54.life (“General Terms”) which may be amended from time to time. You enter into this Agreement with Us once you place an order with Us or with one of our Authorized Distributors (defined below).
1. SCOPE OF WORK - We agree to supply you with ice cream and other items (the"Goods") per the terms and conditions of this Agreement and the order form. The Goods will be delivered to you at the "Locations" you specify. You are responsible for the Goods once ordered.
2. ORDERING PROCEDURE - You can order the Goods from 54 online or using our Order Form (attached), or via the third-party reseller authorized by Us for such wholesale purchase (e.g. Sysco, Nicholas, etc.) (an “Authorized Distributor”). When ordering directly from Us, please specifying the type and quantity of ice cream desired and preferred delivery time and date. We or an Authorized Reseller can then confirm receipt of the order and provide an estimated delivery date (“Order Confirmation”).
3. DELIVERY / AUTHORIZED DISTRIBUTION - Unless we contract to allow you to pick up the Goods, an Authorized Distributor or their agent will deliver the Goods to your Locations per the Order Confirmation. You are responsible for all Goods once ordered. If you have an issue with an Authorized Distributor, please contact them directly before contacting us. While we want to ensure you enjoy our Goods, they are more likely to handle your issues more quickly.
4. PAYMENT – You covenant and agree to pay Us the price for the Goods, as set forth in the order. You agree to pay for the Goods at the time you order them. Credit may be extended through an Authorized Distributor, but not through Us. In the event your payment fails, or you fail to make payment within the specified time, you agree we can charge interest on the overdue amount at the rate of three percent (3%) per month until payment is made, plus a late fee of one percent (1%) per order.
5. DISCOUNTS/SALES – You agree to either use the Goods or your own internal organizational consumption, or sell the Goods at the suggested retail price, with the branding and marketing we provide. We may provide promotional product or coupons to you, but absent a separate written agreement, you agree to not sell the ice cream for more or less than the suggested retail price. We grant you a limited, revocable license to use our intellectual property (e.g. copyrights, trade dress, trade secreted recipes (without disclosing the trade secrets), and trademarks) in your Locations, subject to our branding, marketing, and promotional policies.
6. FREEZERS – Our greatest desire is to help you enjoy our Goods. We may agree to provide freezer(s) or container(s) for your use at your location(s) to distribute the Goods, as identified on a mutually signed Order Form, or purchase agreement (each a “Freezer”). In the event we license a Freezer to you, by accepting our Freezer, you understand, covenant and agree that you are responsible for the Freezer and to care for it, and to maintain the minimum monthly recuring cost of Goods identified and detailed on the Order Form (the “MRC”). If you fail to maintain the MRC, you agree to pay a Freezer license fee (e.g. $250, per freezer, per month) until you again meet the MRC. We agree that so long as you maintain the MRC, the Freezers will be provided on a royalty free basis – and no fee will apply. You agree though the Freezer’s remain our exclusive property, you are responsible for damage caused to the Freezer. You agree to keep our Good’s only in the Freezers, and to not remove our labeling or marketing on the Freezer. You also agree to notify us with 48 hours of a Freezer being damaged, breaking, failing, or if our branding is damaged, stained, removed or tarnished in anyway. You agree to return the Freezers within ten (10) days of this Agreement being terminated.
7. DELIVERY AND WARRANTIES – We sell good tasting, high protein, ice cream. All frozen Goods are shipped at 0 to 10 degrees. Once delivered, you have five (5) days to contest the quality of the Goods and request a replacement. You agree to store frozen Goods at 0 to 8 degrees, with similar frozen products. You agree that we are not responsible if you fail to maintain the frozen temperature of any Goods.
8. CONFIDENTIALITY – We are delivering trade secret perfected, insanely delicious, high-protein ice cream. You agree to keep our terms, ingredients, pricing, deliver terms, and this Agreement confidential, and not disclose it to any third party, or use any information you gain from us for your benefit. We both covenant and agree not to disclose this Agreement, or any Confidential Information to any third party absent a valid court order, and only then after a protective order is entered that will protect the Confidential Information exchanged between us. An injured party may obtain a bondless, preliminary injunction, to protect against future or ongoing injury.
9. CHOICE OF LAW – This Agreement is governed by and construed in accordance with the laws of the State of Nevada, without regard to its conflict of law principles. See the General Terms for more terms regarding choice of law, disputes, and the applicable terms and conditions.
10. LIMITATION OF LIABILITY / INDEMNIFICATION – You agree that we are not responsible for any damage to your or your end customers, and that in no event will our liability exceed the amount you actually paid us directly for the Goods you purchased from us. You agree to indemnify, defend and hold harmless Us, as well as our affiliates, officers, directors, employees, agents, successors and assigns from and against all claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or in connection with any breach of this Agreement by you. But you are not responsible to indemnify Us for our negligence or intentional misconduct. This Section 10 is explained further in the General Terms.
11. FORCE MAJEURE – Neither of us are liable for any failure or delay in performance under this Agreement caused by events beyond our reasonable control, including but not limited to acts of God, war, terrorism, pandemic, government regulation, disaster, strike, lockout, civil unrest, or other labor disturbances, power or telecommunications failures, or shortages of materials or supplies (each a “Force Majeure Event”). The affected party will notify the other party of the Force Majeure Event and its expected duration. The parties shall use their reasonable best efforts to resume performance as soon as practicable after the Force Majeure Event ceases. If the Force Majeure Event continues for a period of more than one-hundred and eighty (180) days, either party may terminate this Agreement with written notice to the other party without liability except for payment of fees due for Goods ordered before the Force Majeure Event.
12. BRANDING AND MARKETING – Our Brand is important to us and is a sign of our quality and purpose. If you display the Goods or a Freezer in a Location, you will place and promote the Goods per our marketing policies and procedures, and the terms set forth in the General Terms. You agree not to sell or wholesale the Goods to anyone but an end consumer. We each covenant and agree not to disparage each other or each other's products, services, or reputation. agree to let us review and approve any reviews of our Goods or brand, and all posts will be subject to the General Terms. We may use celebrities or spokespersons to promote our Goods. You accept and agree that we are not responsible for the statements of those celebrities or spokespersons (“Promoters”), and you covenant and agree not to bring claims against us for the conduct, statements, or activities (including online or in a digital format) of any such Promoters.
13. AFFILIATES – We have various affiliates, including Vudu, IceCre*m, Magic, and other entities we may identify from time to time, all with ties to the managing entity, Kafa. While no third-party beneficiaries are contemplated or given rights under this Agreement, we both agree these terms may be incorporated by reference into Agreements with other parties than those signing this Agreement, to facilitate greater contracting efficiency. In the event these terms or our online terms are incorporated by reference, such will only apply to the parties executing that agreement, and we both covenant and agree such incorporation by reference will not create any privity, rights, claims, or causes of action, between anyone but those individuals signing a service order, or the agreement, at issue in the event of litigation or enforcement of those terms. We both expressly covenant and agree to waive all claims between any such incorporated third parties.
14. MISCELLANEOUS – This Agreement may be signed in counter parts and is ratified each time you order, accept or sell our Goods. This Agreement is negotiated between the parties, and any ambiguity herein is intended to be construed to our benefit. In the event of a conflict between this Agreement, an Order Form, or the General Terms, the General Terms will govern and control over any additional or inconsistent terms and conditions, and then this Agreement, and then the Order Form. For additional terms and conditions related to other places of delivery or sale (e.g. Ghost Kitchens, Parlors, Stores, etc.), please review the current General Terms available at www.54.life.