This Purchase and Distribution Agreement (“Agreement”), dated and effective as of the date of signing is made by and between Ozonator LLC, dba BerryBreeze of Las Vegas, a Nevada limited liability company (“BerryBreeze”) and the undersigned supplier, its affiliates, and its employees and agents (“Retailer/Distributor”).
1. Purchase and Sale
(a) This Agreement applies to any product (including, but not limited to the “BerryBreeze™”) supplied to a direct or indirect subsidiary of Retailer/Distributor from BerryBreeze. BerryBreeze hereby retains Retailer/Distributor as its non-exclusive agent in either a Business to Consumer (“Retail”) or Business to Business (“Distribution”) sales model.
(b) When following a Distribution model Retailer/Distributor is expected to perform due diligence in regards to any perspective buyer’s intent. If Retailer/Distributor sells to another business (“Secondary Retailer”), that business must function exclusively as Retail. BerryBreeze reserves the right to cease supplying product to any Retailer/Distributor who sells to another following the Distribution model.
2. Pricing and Payment
(a) All agreements to purchase BerryBreeze™, whether by phone, facsimile, or any other written means, will be documented in a purchase order (“Purchase Order”) issued by BerryBreeze. If Retailer/Distributor wishes to make any changes to a Purchase Order, Retailer/Distributor must obtain prior approval from BerryBreeze. Retailer/Distributor will comply with all polices and requirements as set forth in this Agreement or any Purchase Orders, including, but not limited to, policies relating to deliveries, Purchase Orders, appointments, invoices, bills of lading and pallet requirements.
(b) The price of BerryBreeze will be set forth on the Purchase Order. Unless otherwise agreed to, payment terms will be set forth in the Retailer/Distribution Application and the due date of each payment shall be calculated from the date of delivery. The date of delivery will be the date the units of BerryBreeze™ are received at the “Ship To” address.
(c) BerryBreeze has established Minimum Advertised Price policy (MAP) for all products sold or represented by BerryBreeze. BerryBreeze reserves the right to cease supplying product to any Retailer/Distributor whose advertising of the product (or any Retailer/Distributor that sells to a second party whose advertising of the product) contains a price lower than the MAP price set forth by BerryBreeze. This policy applies to all forms of dealer advertising including mailings, catalogs, displays at consumer exhibitions and shows, and any and all other forms of advertising media, including without limitation, the internet and any other electronic network. Any price information relating to BerryBreeze products on an internet website which can be accessed directly through any transfer protocol (http) is considered to be advertising for purposes of this policy. Retailer/Distributor will be given access to BerryBreeze web-based marketing folder for marketing materials. Any costs derived from utilizing these resources are the responsibility of the Retailer/Distributor.
(d) Selling of the BerryBreeze on any internet outlet, including, but not limited to, Amazon.com, Ebay, or CraigsList, is strictly prohibited and will subject the Retailer/Distributor to immediate cancelation of the contract between itself and BerryBreeze. Further, violation of this provision will subject Retailer/Distributor to any and all remedies available in law or equity, including, but not limited to, injunction or money damages for breach of contract.
3. Term and Termination
(a) This Agreement shall continue in full force for 1 (one) calendar year from the date of execution. Unless a party serves written notice of its intent not to renew the Agreement it shall automatically renew from year-to-year. Notice of intent not to renew must be received by the other party no later than 1 (one) business day before the expiration of the Agreement at the address provided in Section 3(c) below.
(b) BerryBreeze may terminate or amend this Agreement at any time and for any reason with or without notice. Retailer/Distributor may terminate this Agreement for any reason upon 30 (thirty) days written notice. Misrepresentation or violation of this Agreement, in any manner on behalf of Retailer/Distributor is grounds for immediate termination.
(c) Any notice required or permitted under this Agreement or under state law shall be deemed sufficient if a) hand delivered or b) sent by United States certified mail, return receipt requested, addressed as follows:
If to BerryBreeze to:
5275 Arville St., Suite 308
Las Vegas, Nevada 89119
4. Applicable Laws and Dispute Resolution
(a) This Agreement will be construed and interpreted pursuant to the laws of the State of Nevada. Venue to enforce the terms and provisions of this agreement will lie in Clark County, Nevada. Any dispute, controversy or claim arising out of, related to, or in connection with this Agreement or the breach, expiration or validity thereof, shall be settled only in accordance with the procedures set forth below.
The Parties to this Agreement shall endeavor to resolve any disputes, controversies, or claims by mediation. The mediation shall be commenced when any Party delivers to the other Party a request for mediation. A neutral mediator will be selected and the mediation shall take place in Clark County, Nevada. While the mediation is pending, this procedure shall be the sole and exclusive procedure for resolution, except that either Party may apply to a court for provisional relief if, in that Party’s judgment, such an action is necessary to preserve the status quo. Specifically, BerryBreeze shall be entitled to obtain injunctive relief to bar and/or cease Retailer/Distributor from violating the provisions of Section 2(a) through 2(d) of this Agreement. If the matter has not been resolved within thirty (30) days of the commencement of the mediation, any Party may, at its sole discretion, terminate the mediation by written notice to the other Party. If the Parties successfully resolve the dispute through mediation, the mediator’s fees and disbursements shall be borne equally by the Parties. Any action to enforce the Agreement shall be filed in Las Vegas, Nevada.
(b) In the event of any suit and/or action with respect to the enforcement of this Agreement, for breach of the Agreement, representation or warranty, or otherwise, BerryBreeze shall be entitled to recover reasonable attorneys’ fees and other costs and expenses in resolving such dispute in addition to any damages awarded.
5. Representations and Warranties
(a) All Products sales and marketing information communicated by and between BerryBreeze and Retailer/Distributor is confidential (“Confidential Information”) and Retailer/Distributor agrees not to disclose any Confidential Information to any third party without obtaining BerryBreeze’s prior written consent to any such disclosure. It is understood and agreed that BerryBreeze will be irreparably harmed by a breach or any threatened breach of this provision therefore injunctive relief shall be an appropriate remedy in the event of a breach or any threatened breach of this provision.
(b) Except as otherwise expressly provided in this Agreement, Retailer/Distributor shall not use, market, publish, advertise, communicate, or otherwise exploit the BerryBreeze trademark or any other BerryBreeze intellectual property, including but not limited to Confidential Information or marketing information, in any manner whatsoever, without the express written consent of BerryBreeze.
(c) Retailer/Distributor agrees that during the contract or after contract termination, neither it nor any of its affiliates or associates will, directly or indirectly, in any capacity or manner, make, express, transmit speak, write, verbalize or otherwise communicate in any way (or cause, further, assist, solicit, encourage, support or participate in any of the foregoing), any remark, comment, message, information, declaration, communication or other statement of any kind, whether verbal, in writing, electronically transferred or otherwise, that might reasonably be construed to be derogatory or critical of, or negative toward, Ozonator LLC. dba. BerryBreeze, or any of its directors, officers, affiliates, subsidiaries, employees, clients, customers, agents or representatives.
Retailer/Distributor shall indemnify and hold BerryBreeze, BerryBreeze’s affiliates, and each of their directors, officers, employees, and agents harmless from and against any and all liabilities, losses, claims, suits, damages, costs, and expenses, including, but not limited to, reasonable attorneys’ fees and costs arising out of or otherwise relating to (a) a breach by Retailer/Distributor of any warranty, representation, term or condition made or agreed to by Retailer/Distributor hereunder, (b) a breach by any Secondary Retailer of any warranty, representation, term or condition made or agreed to by Retailer/Distributor hereunder, (c) any claim made by any Secondary Retailer or a purchaser of any product supplied by BerryBreeze, except to the extent such claim arises out of the gross negligence or intentional misconduct of BerryBreeze; or (d) any claim of personal injuries or property damages caused by the BerryBreeze™ or any other product supplied by or purchased from BerryBreeze.
At all times during which this Agreement is enforceable Retailer/Distributor shall maintain, at its sole expense, product liability and other commercial liability insurance necessary to cover any loses that may result from the marketing, sale, distribution, or use of the BerryBreeze™ or any other product supplied by or purchased from BerryBreeze, or the breach of any representation or warranty made herein.
8. Quality Assurance
BerryBreeze reserves the right to inspect Retailer/Distributor facilities to ensure that facility quality standards are being met.
(a) All correspondence and/or notice shall be in writing and may be transmitted by personal delivery or by United States certified mail, return receipt requested, to such party at its current address as set forth in Section 3(c) above. In the event the Retailer/Distributor changes its address, it shall notify BerryBreeze of the change within 5 (five) business days. Notices delivered personally shall be deemed given as of the date of actual receipt and notices sent by mail shall be deemed given as of 3 (three) day after mailing (as provided by the postmark).
(b) Each party to this Agreement represents that such party has carefully read the terms of this Agreement. Retailer/Distributor fully understands the final and binding effect of this Agreement and is agreeing voluntarily.
(c) If any provision of this Agreement or the application thereof shall, for any reason and to any extent, be invalid or unenforceable, neither the remainder of this Agreement nor the application of the provision to other persons, entities or circumstances shall be affected thereby, but instead shall be enforced to the maximum extent permitted by law.
(d) Upon termination or cancellation of this Agreement, Retailer/Distributor shall immediately return to BerryBreeze all supplies, promotional materials, advertisements, logos, and all other printed and/or digital materials, of every kind and description, that depict, display, portray, incorporate, contain, or otherwise show the trademark of BerryBreeze and/or contain any other information that is the intellectual property of BerryBreeze.
(e) Nothing set forth in these terms is intended nor should it be construed as creating a partnership, nor an employer-employee relationship, nor any other business or employment relationship of any kind or description. Retailer/Distributor shall act hereunder solely as an independent contractor. Retailer/Distributor shall have no authority whatsoever, express or implied, to bind or obligate BerryBreeze to any contract, agreement, account, or any other obligation and Retailer/Distributor shall not hold itself out as having any such authority.
(f) This Agreement constitutes the full and entire integrated understanding and Agreement among the parties and supersedes all prior agreements and understandings. Neither this Agreement nor any term herein may be amended, waived, discharged or terminated other than by a written instrument signed by the parties against whom enforcement of any such amendment, waiver, discharge, or termination is sought.
(g) Except for any obligation to pay money, neither BerryBreeze nor Retailer/Distributor will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, or governmental act provided the delayed party (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
(h) The rights and obligations of the parties under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the parties. A change in the corporate name of, a change in control of, or the corporate reorganization of (whether by merger, stock purchase, sale of substantially all assets, or otherwise), either party shall not effect the enforceability or any other aspect of, or rights granted under, this Agreement.
(i) This Agreement may be executed in counterparts, each of which shall be construed as original, all of which, when taken together, will be deemed to construe one and the same instrument.
(j) All parties to this Agreement consent to the use of digital signatures as sufficient signing of the record. All electronic signatures shall be fully enforceable and deemed originals.
(k) A waiver of any provision of the Agreement by a party will only apply to the occurrence involved and will not be construed as a continuing waiver. Failure or delay by BerryBreeze to enforce this Agreement will not be construed as a waiver.
(l) Headings in this Agreement are inserted for convenience only and shall not constitute a part thereof or affect the construction or interpretation of the Agreement.
(m) Retailer/Distributor is a sophisticated business with access to counsel and agrees that every provision of this Agreement will be construed simply according to its fair meaning and not strictly for or against Retailer/Distributor.