BRAND MARINADE, LLC
MASTER AGREEMENT FOR THE SALE OF GOODS AND SERVICES
Effective September 1, 2015
1.1 This Master Agreement for the Sale of Goods and Services (this "Master Agreement") contains the only terms which govern the sale of goods and provision of services by Brand Marinade, LLC ("Brand Marinade") to the client named on the applicable accompanying Service Form ("Partner"). BRAND MARINADE'S ACCEPTANCE OF ANY OFFER MADE BY PARTNER TO PURCHASE GOODS OR SERVICES IS EXPRESSLY CONDITIONED UPON PARTNER'S ASSENT TO THESE TERMS, AND THESE TERMS SHALL APPLY TO ALL SUCH DEALINGS BETWEEN PARTNER AND BRAND MARINADE.
1.2 The accompanying Service Form (the "Service Form") and this Master Agreement (collectively, this "Agreement") together with any attachments or exhibits thereto comprise the entire agreement between the parties pertaining to this subject matter, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, letter of intent and memorandums of understanding, and communications, both written and oral. This Master Agreement prevails over any of Partner's general terms and conditions of purchase regardless of whether or when Partner has submitted its Service Form or such terms. Fulfillment of Partner's order does not constitute acceptance of any of Partner's terms and conditions and does not serve to modify or amend the Agreement.
2. Performance of Services and Production of Products
2.1 Services. Brand Marinade agrees to perform the services required under the Agreement and as specifically set forth on the Service Form (the "Services").
2.2 Purchase Price. Subject to the terms and conditions set forth in this Agreement, Brand Marinade shall produce the products set forth on the Service Form (the "Products"), as applicable, for sale to Partner's customers ("Customers"). The price at which each Product will be offered to Customers is set forth on the Service Form ("Purchase Price"). Brand Marinade may amend the prices set forth on the Service Form by providing Partner with thirty (30) days' prior written notice. Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority; such taxes, if any, shall be paid by Customer in addition to the Purchase Price.
2.3 Purchase Orders. Purchase orders shall be submitted by Customers online through a page on Partner's website or as may otherwise be agreed upon by Partner and Brand Marinade ("Customer Orders"). Brand Marinade shall fulfill all such Customer Orders in accordance with the terms and conditions set forth in this Agreement. Brand Marinade's fulfillment of a Customer Order shall be deemed to be acceptance of such Customer Order by Brand Marinade.
2.4 Delivery. Brand Marinade shall produce and deliver to Customer's specified address the Products ordered pursuant to a Customer Order within a commercially reasonable time after receipt by Brand Marinade of the Customer Order, subject to availability of inventory. Brand Marinade shall not be liable for any delays, loss or damage in transit.
2.5 Services - Cooperation. With respect to the Services, (i) Partner shall cooperate with Brand Marinade in all matters relating to the Services and shall provide such access to Partner's website, network, and/or premises, and shall provide Partner's logos, designs, and/or other intellectual property, each as may be reasonably requested by Brand Marinade for the purposes of performing the Services; (ii) Partner shall respond promptly to any request by Brand Marinade to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Brand Marinade to perform the Services in accordance with the requirements of this Agreement; (iii) Partner shall provide such Customer materials or information as Brand Marinade may reasonably request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; (iv) Partner shall obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start; and (v) Partner shall, from time to time at the request of Brand Marinade, furnish Brand Marinade such further information or assurances, execute and deliver such additional documents, instruments and conveyances, and take such other actions and do such other things, as may be appropriate to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby.
3. Returns and Non-delivery
3.1 The quantity of any installment of Products as recorded by Brand Marinade on dispatch from Brand Marinade's place of business is conclusive evidence of the quantity received by Customer on delivery unless Partner or Customer can provide conclusive evidence proving the contrary.
3.2 Brand Marinade shall not be liable for any non-delivery of Products (even if caused by Brand Marinade's negligence) unless Partner or Customer give written notice to Brand Marinade of the non-delivery within thirty (30) days of the date when the Products would in the ordinary course of events have been received.
3.3 Any liability of Brand Marinade for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or refunding the amount paid by customer when said Customer Order was placed.
3.4 Products damaged, defective, or otherwise unsatisfactory in accordance with any Brand Marinade warranty may be returned by Customers for credit or cash refund up to ninety (90) days from the date of shipment from Brand Marinade. Brand Marinade shall cover outbound shipping and product costs for any such returns or exchanges at no cost to Partner.
4. Payment Terms
(a) "Sales Revenue" is the revenues actually received by Brand Marinade for the sale of Products and does not include Shipping Revenue or Tax. It is less any promotional discount applied.
(b) "Product Cost" is the cost to Brand Marinade of materials, labor, and associated administrative expenses used and/or incurred to produce the Products sold (e.g. blank t-shirts, ink, machinery, and other supplies).
(c) "Merchant Fees" is the amount charged to Brand Marinade for any third-party services used to effectuate the transaction with Partner's Customers (e.g. Shopify).
(d) "Promotional Discounts" are any promotional pricing and shipping discounts which may from time to time be agreed upon in advance by the parties.
(e) "Net Profit" is the Sales Revenue minus (1) Product Cost and (2) Promotional Discounts.
4.2 Net Profit Split. Brand Marinade shall pay to Partner a percentage of Revenue or Net Profit as detailed in the Service Form. ("Partner's Profit Share").
4.3 Payment of Net Profit Split. Payment of Partner's Profit Share shall be made by Brand Marinade in US dollars by the method chosen by Partner on the Service Form. Payment of Partner's Profit Share shall be made in monthly installments, with payment for each months' Customer Orders to be made not later than the fifteenth (15th) day of the following month. Brand Marinade shall provide to Partner along with payment a report detailing the method by which the previous months' percentage of Revenue or Net Profit was calculated.
4.4 Payments by Partner. In the event Products or Services ordered by Partner require direct payment from Partner to Brand Marinade, Partner shall pay all invoiced amounts due to Brand Marinade within fifteen (15) days from the date of Brand Marinade's invoice. Partner shall make all payments hereunder in US Dollars. Partner shall reimburse Brand Marinade for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Master Agreement or at law (which Brand Marinade does not waive by the exercise of any rights hereunder), Brand Marinade shall be entitled to suspend the delivery of any Products or performance of any Services if Partner fails to pay any amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof. Partner shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Brand Marinade, whether relating to Brand Marinade's breach, bankruptcy, or otherwise.
5. Right to Produce Competitive Products
5.1 This Agreement does not limit Brand Marinade's right to manufacture or sell, or preclude Brand Marinade from manufacturing or selling, to any person, or entering into any agreement with any other person related to the manufacture or sale of, other goods or products that are similar to or competitive with the Products.
6. Intellectual Property.
6.1 "Intellectual Property Rights" means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
6.2 "Developed Intellectual Property" means all intellectual property made, invented, developed, created, conceived or reduced to practice in connection with Partner's Service Form, including all Intellectual Property Rights relating thereto.
6.3 Ownership. Nothing herein shall transfer or convey to the other party any right, title or interest in or to any existing Intellectual Property Rights of the other party. Except as otherwise provided in this Agreement, as between Partner and Brand Marinade, all Intellectual Property Rights in Developed Intellectual Property shall be owned by Partner. Partner hereby grants Brand Marinade a license to use all such rights free of additional charge and on a worldwide, royalty-free basis to the extent necessary to enable Brand Marinade to perform the Services and produce the Products contemplated under this Agreement.
7.1 By Brand Marinade. In addition to any remedies that may be provided under this Agreement, Brand Marinade may terminate this Agreement, including any and all Service Forms then in effect between Partner and Brand Marinade, with immediate effect upon written notice to Partner, if Partner (a) fails to pay any amount when due under this Agreement and such failure continues for fifteen (15) days after Partner's receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
7.2 By Either Party. Notwithstanding the foregoing, either party may terminate any Service Form at any time, with or without cause, upon providing the other party thirty (30) days' written notice thereof.
8. Limited Warranties.
8.1 Warranties by Brand Marinade.
(a) Brand Marinade warrants to Partner that for a period of ninety (90) days from the date of shipment of the Products ("Warranty Period") that such Products will materially conform to the specifications set forth on the Service Form, if any, and will be free from material defects in material and workmanship.
(b) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION (a), BRAND MARINADE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty in Section (a). For the avoidance of doubt, BRAND MARINADE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) For breach of the warranty with respect to any such Products during the Warranty Period, Brand Marinade shall, in its sole discretion, either (i) repair or replace such Products or (ii) credit or refund the price of such Products to Customer at the pro rata contract rate.
(e) THE REMEDIES SET FORTH IN (d) SHALL BE THE PARTNER'S SOLE AND EXCLUSIVE REMEDY AND BRAND MARINADE'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION (a).
8.2 Warranties by Partner.
(a) Intellectual Property. Partner represents and warrants that no materials submitted by Partner for use by Brand Marinade in producing any Product for sale under this Agreement, including without limitation designs, logos, or other intellectual property ("Partner Submission"), nor the use or incorporation of any such Partner Submission into any Product, will infringe or constitute an infringement of any intellectual property right of any third party, that no third party shall have any proprietary rights in any Partner Submission, and that Partner Submissions are free and clear of all liens or encumbrances. To the extent a Product will include any permitted third-party proprietary information, including that of Partner, Partner shall deliver a perpetual, non-exclusive, world-wide, royalty free license to use such proprietary information for the purposes for which it was provided.
9. Limitation of Liability.
9.1 Notwithstanding any contrary provision of this Agreement or any applicable law, the obligations of the parties under this Agreement do not constitute personal obligations of the individual shareholders, directors, officers, employees or affiliates of the parties and each party shall look solely to the assets of the other party for satisfaction of any obligation with respect to this Agreement.
9.2 IN NO EVENT SHALL BRAND MARINADE BE LIABLE TO PARTNER, ITS CONTRACTORS, AGENTS, CUSTOMERS OR END USERS UNDER ANY CIRCUMSTANCE INCLUDING, BREACH OF THIS AGREEMENT, FOR ANY INTERRUPTION OF BUSINESS, LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER, EVEN IF BRAND MARINADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NO WAIVER, ALTERATION, OR MODIFICATION OF THIS AGREEMENT OR WARRANTY SHALL BE BINDING AGAINST BRAND MARINADE UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED EXECUTIVE OFFICER OF THE COMPANY.
NOTWITHSTANDING ANY OTHER TERM OR CONDITION OF THIS AGREEMENT, IN NO EVENT SHALL BRAND MARINADE'S LIABILITY TO PARTNER FOR BREACH OF THIS AGREEMENT OR OTHERWISE, EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO BRAND MARINADE UNDER FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER DURING THE SIX (6) MONTH PERIOD PRIOR TO SUCH BREACH.
10.1 Intellectual Property Indemnification. Partner will defend, indemnify, protect and hold harmless Brand Marinade and its members, managers, officers, employees, agents, successors and assigns (each an "Indemnified Party") from and against any and all damages, claims, judgments, losses, costs and expenses, including attorneys' fees (collectively, the "Claims") to the extent that the Claim is based on an allegation that use of the Products or Services in accordance with this Agreement infringes any patent or any copyright, trademark, trade secret or other proprietary right.
10.2 Defense of Claims. In the event an Indemnified Party is made a party to any action or proceeding by reason of any matter for which Partner has hereby agreed to indemnify the Indemnified Party, then Partner, upon notice from Brand Marinade, shall defend such action or proceeding on behalf of the Indemnified Party at Partner's sole cost and expense. If Partner or its attorney is not vigorously or adequately defending any such claim, the Indemnified Party shall have the right, but not the obligation, to join or participate in, as a party if it so elects, any proceedings or actions related to such Claims and to have its attorneys' fees and costs in connection therewith paid by Partner. Notwithstanding the foregoing, Brand Marinade may participate at any time in proceedings with counsel of its own choosing at its own cost.
10.3 Judgment or Settlement of Claims. Partner shall not consent to the entry of any judgment or enter into any settlement with respect to any third-party claim without prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages to be paid solely by Partner or its insurance carrier and does not impose an injunction or other equitable remedy upon the Indemnified Party.
11. Independent Contractor Relationship
11.1 The parties agree that Brand Marinade is an independent contractor, and not an employee, agent, or partner of, or joint venture with, Partner. Partner shall thus not exercise control over the methods, details, and means by which Brand Marinade performs its obligations under this Agreement. Neither Brand Marinade nor Brand Marinade's employees or subcontractors shall be deemed to be employees or agents of Partner. Neither Brand Marinade nor Brand Marinade's employees or subcontractors are authorized to bind Partner or make any representations on its behalf in any manner.
12. Compliance with Law
12.1 Partner shall comply with all applicable laws, regulations and ordinances. Partner shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Partner shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Partner. Partner assumes all responsibility for shipments of Products requiring any government import clearance. Brand Marinade may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
13. Governing Law
13.1 This Agreement and all transactions contemplated by this Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of California.
14.1 No waiver by Brand Marinade of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Brand Marinade. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15. Confidential Information. All non-public, confidential or proprietary information of Brand Marinade, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Brand Marinade to Partner, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Brand Marinade in writing. Upon Brand Marinade's request, Partner shall promptly return all documents and other materials received from Brand Marinade. Brand Marinade shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Partner at the time of disclosure; or (c) rightfully obtained by Partner on a non-confidential basis from a third party.
16. Force Majeure
16.1 Brand Marinade shall not be liable or responsible to Partner or Partner's Customers, nor be deemed to have defaulted or breached this Agreement for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Brand Marinade, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Partner shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Brand Marinade. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Partner of any of its obligations under this Agreement.
18. Binding on Successors.
18.1 This Agreement shall inure to the benefit of and shall be binding on the parties hereto, their successors and assigns, except as otherwise provided in this Agreement.
19. Change in Ownership.
19.1 This Agreement is entered into by Partner on behalf of itself and its agents. In the event of a change in ownership or control of Partner or a transfer of all of the assets of substantially all of Partner, Partner agrees that, as a condition to such change in ownership or control, this Agreement will transfer to the entity gaining such ownership or control, who in turn will assume all obligations of this Agreement. Partner will provide written notification of such transfer no less than ninety (90) days in advance of transfer.
20. No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Master Agreement.
21.Submission to Jurisdiction
Any suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the courts of the State of California, in the County of Sacramento, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
22.1 All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Service Form or to such other address that may be designated by the receiving party in writing. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
23.1 4If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
24.1 Termination or expiration of this Agreement for any reason shall not relieve either party of any obligation or liability incurred prior to the expiration or termination of this Agreement. The following provisions shall survive termination or expiration of this Agreement, in addition to those that by their nature are intended to survive termination: 6 (Intellectual Property); 10 (Indemnification); 12 (Compliance with Law); 13 (Governing Law); 15 (Confidential Information); 21 (Submission to Jurisdiction); and 24 (Survival).
25. Amendment and Modification.
25.1. This Agreement may only be amended or modified in a writing stating specifically that it amends this Agreement and is signed by an authorized representative of each party.