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Product Placement Blitz
Agreement
THIS CONSULTING SERVICES AGREEMENT (this "Agreement"),
is made and entered into
this ___ day of _______, by and between _________________________________________
_________________________________________________________________________
_________________________________________________________________________
__________________________________________(include company, address,
phone , email)
("Client") and MR. CHECKOUT DISTRIBUTORS, INC., a Florida
corporation (“Mr. Checkout”), located at 1650 SW 22nd
Ave. Circle, Boca Raton, FL 33486.
WITNESSETH:
WHEREAS, Client is a wholesale supplier of Products and Mr. Checkout
is a company with expertise in the promotion, marketing and sale
of the Products into retail channels of trade located in the United
States;
WHEREAS Client desires to assure itself of the Services (as defined
herein) of Mr. Checkout to enhance the sales of its Products for
the Term (as defined herein) of this Agreement and Mr. Checkout
is willing to provide such Services to Client on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the terms and conditions
set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereto intending to be legally bound, hereby agree as
follows:
1. Appointment; Duties. Client hereby appoints Mr. Checkout on
a non-exclusive basis for the Services (as hereinafter defined)
and Mr. Checkout hereby accepts such appointment. Any and all
duties of the Mr. Checkout set forth herein shall be collectively
referred to herein as the “Services”. Mr. Checkout
shall use its best efforts to the promotion of the sale and use
of Client's Products and to the marketing thereof through the
Mr. Checkout Distribution Group (the “Distributors”
or singularly, the “Distributor”). Moreover, Mr. Checkout
will promote Client's Products defined as (describe product for
placement):
___________________________________________________________________________
In addition to the basic information of the specific Retail Location,
Mr. Checkout shall deliver to Client a photo in digital Excel
database format of each Product delivered and displayed in each
retail location. An allowance of up to ten percent of the total
locations is provided for technical errors and missing data. Retail
locations may be called at random to confirm placement but shall
not be called to solicit business unless approved by Distributor.
Mr. Checkout shall maintain frequent contact with Client, either
via telephone, e-mail or other acceptable means of communications
to discuss the performance of the services. Mr. Checkout's sole
authority shall be to promote and market the Products in accordance
with the terms of this Agreement. Any and all of the purchase
orders shall be placed directly by the Distributors to Client,
subject to terms and conditions to be entered into by and between
Client and each one of the Distributors. Client reserves the right
to reject any order placed, and/or to limit quantities on any
order. Client agrees to provide Mr. Checkout with such information,
advice and other assistance in matters relating to the marketing
and distribution of the Products as may be reasonably required
to enable Mr. Checkout to carry out effectively its obligations.
The Client will provide Mr. Checkout Distributors the following
information:
> Shipping confirmation with number of Displays shipped to
all distributors for the Blitz..
> Sell sheets - 4 per distributor - 8 inches wide x 11 inches
high. These sell sheets will be used by distributors in their
presentation book to convert Blitz Displays into ongoing sales.
> Ordering information needed to convert initial product
placements to sales to include; payment terms, minimum quantities
for free freight, ordering contact information, any and all specifications
(spec sheet) i.e. case quantities, pallet quantities, UPC codes,
etc. and a short synopsis of your company introducing all important
parties and a vision of your product line.
2. Independent Contractor. For purposes of this Agreement, each
party shall be and act as an independent contractor. Mr. Checkout
is an independent contractor, and nothing contained in this Agreement
shall be construed to constitute the parties as partners, joint-venturers,
co-owners or otherwise, or allow Mr. Checkout to create or assume
any obligation on behalf of Client for any purpose whatsoever.
Except as otherwise provided in this Agreement, all financial
and other obligations associated with Mr. Checkout’s business
are the sole responsibility of Mr. Checkout.
3. Compensation. During the Term of this Agreement, unless earlier
terminated pursuant to the terms of this Agreement, Client shall
pay Mr. Checkout in the following manner:
(a) Client will pay a one-time charge of ___________ for each
Product Display delivered to and merchandised to each Retail Store
Location during the Blitz. Each Retail Store Location shall receive
1 (one) free Product Display. The value of the free Product Display
is the discrepancy of the Client.
(b) Payment will be made in full for all Retail Store Locations
contracted for the Blitz prior to shipping to Distributors. Company
check accepted. Payable to: Mr. Checkout Distributors Inc.
Total Retail Store Locations contracted: _________ X $_____=
$__________________
(c) Optional Broker / Management Commission after Product Placement
Blitz Program: Purchase Orders Made by the Distributors: A broker
/ management commission of 5% (Five Percent) of the collected
Net Sales (as herein defined) for all filled orders placed by
the Distributors (the “Commission”), payable on a
monthly basis, for the collected Net Sales earned during the preceding
month. For purposes of this Agreement, the defined term “Net
Sales” shall mean the aggregate sales proceeds actually
received by Client from the Distributors less (A) any markdowns,
discounts, advertising and/or freight allowances, returns, refunds,
rejections, repurchased goods, chargeback and all other credits
and allowances granted to any distributor in the ordinary course
of business, and (B) sales, excise and other taxes, custom duties,
tariffs and any and all other related charges. Agreed: ___________
(initial)
4. Trademarks and Tradenames. During the Term of this Agreement,
as hereinafter defined, Mr. Checkout shall have the right to indicate
to the public that it is an authorized representative of Client's
Products and to advertise such Products under the trademarks,
marks, and trade names that Client may adopt from time to time
("Client's Trademarks"). Nothing herein shall grant
Mr. Checkout any right, title, or interest in Client's Trademarks.
At no time during or after the term of this Agreement shall Mr.
Checkout challenge or assist others to challenge Client's Trademarks
or the registration thereof or attempt to register any trademarks,
marks or trade names confusingly similar to those of Client. Client
indemnifies Mr. Checkout for all use of Client's Trademarks.
5. Warranties/Liabilities/Indemnification.
(a) Warranties: Mr. Checkout hereby warrants and represents
that (i) it has the experience, staff, skill and authority to
perform its obligations hereunder; (ii) it shall comply with all
applicable federal, state and local laws, rules, regulations,
codes and orders of any public, quasi-public or other governmental
authority; (iii) it has obtained all licenses and permits required
to observe and perform the terms covenants, conditions and other
provisions on its part to be observed or performed under this
Agreement.
(b) Indemnification: Each party (the “Indemnifying Party”)
agrees to defend, indemnify, and hold harmless the other party
(the “Indemnified Party”), and their respective employees,
officers, affiliates, and agents harmless from and against all
claims of and liability to third parties, including, without limitation,
all employees of Client and Mr. Checkout for injury to or death
of any person or damage or destruction of any property arising
out of or in connection with the indemnifying party’s negligent
performance of its obligations under this Agreement. The Indemnifying
Party shall defend all suits brought upon such claims and shall
bear all costs and expense incidental thereto (including reasonable
attorneys’ fees); but Indemnified Party shall have the right,
at its option, to participate at its own expense in the defense
of any such suit without relieving the Indemnifying Party of any
obligation hereunder.
6. Term. This Agreement shall commence on the date hereof and
remain in effect for one year (the “Initial Term”).
Thereafter, this Agreement may be renewed for successive one (1)
year terms provided that both parties sign an extension for each
such additional one (1) year term (“Renewal Term”).
The Initial Term and any Renewal Term shall collectively be referred
to herein as the “Term.” Either party may terminate
this Agreement at any time with written notice of termination
of not less than thirty (30) days.
7. Limitation on Liability. In the event of termination by either
party in accordance with any of the provisions of this Agreement,
neither party shall be liable to the other, because of the termination
for compensation, reimbursement or damages on account of the loss
of prospective profits or anticipated sales or on account of expenditures,
investments, leases or commitments in connection with the business
or goodwill of Client or Mr. Checkout. Client's sole liability
under the terms of this Agreement shall be for any unpaid commissions
under Section 4.
8. Notices. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing and if sent by
registered mail to Mr. Checkout or to Client at their place of
business listed herein, or to such officer or address as the Client
shall notify Mr. Checkout.
9. Waiver. The failure of any party at any time to enforce any
of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor in any way to affect
the validity of this Agreement or any provisions hereof or the
right of any party hereto to thereafter enforce each and every
provision of this Agreement. No waiver of any breach of any of
the provisions of this Agreement shall be effective unless set
forth in a written instrument executed by the party against whom
or which enforcement of such waiver is sought; and no waiver of
any such breach shall be construed or deemed to be a waiver of
any other or subsequent breach.
10. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal substantive and procedural laws
of the State of Florida without regard to conflict of laws principles.
11. Attorneys' Fees. In the event any adversarial legal action
arises between any of the parties as a result of this Agreement,
the prevailing party shall be entitled to recover from the other
party its reasonable attorneys' fees and costs incurred in all
pre-trial, trial and appellate proceedings.
12. Entire Agreement. This instrument contains the entire agreement
of the parties. It may be changed only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
13. Jurisdiction and Venue. The parties acknowledge that a substantial
portion of the negotiations, anticipated performance and execution
of this Agreement occurred or shall occur in Palm Beach County,
Florida, and that, therefore, without limiting the jurisdiction
or venue of any other federal or state courts, each of the parties
irrevocably and unconditionally:
(a) agrees that any suit, action or legal proceeding must be
brought in Palm Beach County, Florida;
(b) consents to the jurisdiction of such court in any suit,
action or proceeding;
(c) waives any objection which it may have to the laying of venue
of any suit, action or proceeding in any of such courts; and
(d) agrees that service of any court paper may be effected on
such party by mail, as provided in this Agreement, or in such
other manner as may be provided under applicable laws or court
rules in the State of Florida.
14. Waiver of Jury Trial. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEN MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY DOCUMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH.
15. Counterparts; Facsimile Execution. For purposes of executing
this Agreement, a document signed and transmitted by facsimile
machine or telecopier shall be treated as an original document.
The signature of any party thereon shall be considered as an original
signature and the document transmitted shall be considered to
have the same binding legal effect as if it were the signed original.
At the request of either party, any facsimile or telecopy document
shall be re¬executed by both parties in original form. No
party hereto may raise the use of facsimile machine or telecopier
or the fact that any signature was transmitted through the use
of a facsimile or telecopier machine as a defense to the enforcement
of this Agreement or any amendment executed in compliance with
this Section.
16. Amendment. This Agreement may not be amended or modified
except by an instrument in writing executed by all of the parties
hereto.
17. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, their heirs,
executors, successors and valid assigns, it being expressly understood
that this Agreement may not be assigned by Mr. Checkout without
the prior written consent of Client.
18. Severability. All of the provisions of this Agreement are
intended to be distinct and severable. If any provision of this
Agreement is or is declared to be invalid or unenforceable in
any jurisdiction, it shall be ineffective in such jurisdiction
only to the extent of such invalidity or unenforceability. Such
invalidity or unenforceability shall not affect either the balance
of such provision, to the extent it is not invalid or unenforceable,
or the remaining provisions hereof, nor render invalid or unenforceable
such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day first hereinabove written.
MR. CHECKOUT:
MR. CHECKOUT DISTRIBUTORS, INC.
a Florida corporation
By: ____________________________________
Robert A. Goldstein, President
CLIENT:
____________________________________________________________________
By: ____________________________________
