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HomeMy WebLinkAboutC17-282 The Baby Box CompanyColorado Agreement (2) This Distributor Agreement ("Agreement") is made as of 06/27/2017 ("Effective Date") between The Baby Box Company, Inc., a Delaware corporation with headquarters at 14530 Garfield Ave. Paramount CA 90723, USA ("Company") and the "Distributor' listed below. Distributor: Eagle County Government Contact: Kelly Matias Address: 590 Broadway City: Eagle State/Province: CO Postal Code: 81631 Phone: 970-328-2618 Email: phgrants—contracts@eaglecounty.us Shipping Contact: Mandy Ivanov Is there a loading dock? yes Address: Is there anything else we should know about your 590 Broadway delivery location? Eagle, CO 81631 Delivery location is a central drop for three subdistributors (Eagle County Government, Colorado Mountain Medical, and Mountain Family Health Centers), with volume totaling 60 baby box units per month This Agreement includes the following terms and conditions hereto and contains among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different or additional terms of any related purchase order, confirmation or similar form even if signed by the parties after the date hereof, unless such terms specifically supersede anything herein and are mutually executed by the parties. Products: Baby Box Co. Baby Boxes Territory: USA Market: N/A Pricing: $0/unit per Baby Box End Date of Agreement Term: 1 Year Marketing Launch Activities: Distributor agrees to coordinate marketing with Baby Box Co. North America PR team. Volume: 20 Baby Box units per month Special Terms: Distributor will ensure that expecting/new parents register on the y Box University platform located at www.babyboxuniversity.com and complete the mandatory syllabus providinV Baby Box. Distributor: Signed: Eagle County Government Name: Bryan Treu Title: Interim County Manager Check this box to accept Terms and Conditions The Baby Box pany, In Signed: Name: Title: I�� Vo C17-282 TERMS AND CONDITIONS 1. Appointment; Territory; Products.a. Subject to all the terms and conditions of this Agreement, Company hereby appoints Distributor for the term of this Agreement as a nonexclusive Distributor of the "Products" listed above only within the "Territory" and for the "Market," each as described above. Distributor may market, promote and distribute Products only to end user customers ("End Users") located and taking delivery within (and for use within) the Territory and Market, and only as packaged by Company with the documentation intact. In addition, Products sold for use outside of the Territory, in violation of the foregoing sentence, may not function according to the specifications and therefore are not eligible for warranty coverage. Nothing in this Agreement shall be construed as limiting in any manner Company's marketing or distribution activities or its appointment of other dealers, Distributors, licensees or agents. Company reserves the right to add, change, modify or discontinue any Product at any time, provided that Company will use commercially reasonable efforts to provide Distributor thirty (30) days notice of any Product discontinuation.2. Fees; Payment and Supply Terms.a. Prices payable by Distributor for Products are those set forth on the price list as set forth above, less the applicable Discount specified above, if any. Payment shall be made in U.S. dollars to Company's designated account in the United States.b. All Products are delivered EXW (Incoterms 2010) at Company's applicable warehouse or place of production. Subject to the terms and conditions of this Agreement, Company shall use its reasonable commercial efforts to fill promptly Distributor's written orders for Products, which are accepted by Company at its Los Angeles office, insofar as practical and consistent with Company's then -current lead-time schedule, shipping schedule, access to supplies on acceptable terms and allocation of available products and capacity among Company customers.3. Distributor Obligations.Distributor represents, warrants, and agrees: a. not to (i) rent, lease or otherwise provide temporary access to a Product, (li) copy or modify the Products, (iii) remove any names, designations or notices from any Product or (iv) encourage or allow others to do any of the foregoing; b. to diligently market (including, without limitation, undertaking and completing the marketing activities described above) and to comply with good business practices and all laws and regulations relevant to this Agreement. If Distributor promotes, represents, sells or supports Baby Boxes that are not manufactured and provided by the Company, Distributor will be deemed to be in breach of the foregoing obligation and, accordingly, of this Agreement. All promotional material must acknowledge Company as Distributor's source for obtaining Products; c. that neither this Agreement nor the performance of or exercise of rights under this Agreement is restricted by, in conflict with, ineffective under, requires registration or approval or tax withholding under, or affects Company's proprietary rights under, or will require any termination or expiration payment, compensation or indemnification or any compulsory licensing under, any law or regulation of any country, group of countries or other governmental entity located within any portion of the Territory and Distributor will not make any claim to the contrary (Company is relying on this representation and warranty, among other provisions of this Agreement, in entering this Agreement and would not enter this Agreement in its absence);d. to require each End User of Distributor to register on the Baby Box University platform ("Baby Box University"), located at ww w.babyboxuniverslty.com before providing such End User a Product. In furtherance of the foregoing, Distributor will require each End User to complete the Syllabus using Baby Box University before providing such End User a Product. 4. Warranty Disclaimer.a. THE PRODUCTS ARE PROVIDED BY COMPANY "AS -IS" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NON -INFRINGEMENT, THAT THE PRODUCTS (OR THE RESULTS OF USING THE PRODUCTS) WILL MEET END -USER'S OR DISTRIBUTOR'S NEEDS.5. Limited Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER COMPANY NOR ITS LICENSORS OR SUPPLIERS WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (1) AMOUNTS THAT IN THE AGGREGATE ARE IN EXCESS OF THE AMOUNTS PAID AND/OR PAYABLE TO COMPANY HEREUNDER DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE OR (11) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SERVICES. COMPANY SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A PERSON.6. Relationship of Parties. The parties hereto expressly understand and agree that Distributor is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and is responsible for and will indemnify Company from any and all claims, liabilities, damages, debts, settlements, costs, attorneys' fees, expenses, and liabilities of any type whatsoever that may arise on account of Distributor's activities, or those of its employees or agents, including without limitation, providing unauthorized representations or warranties (or failing to disclose all limitations on warranties and liabilities set forth herein on behalf of Company) to its customers or breaching any term, representation or warranty of this Agreement.7. Term and Termination. Unless terminated earlier as provided herein, this Agreement shall have a term extending from the date of this Agreement and continue for one year. In the event of any termination for any reason, (i) Company may elect to continue or terminate any order then pending, (ii) Distributor will return to Company all Confidential Information and other materials of Company, including Products and materials to be distributed with Products, and all distribution rights and other licenses granted to Distributor herein (as well as Company's supply, support and maintenance obligations and any restrictions on Company) shall terminate, and (iii) the Sections 4-7 and 8-11 of this Agreement shall otherwise continue to apply..a. This Agreement may be terminated by a party for cause immediately by written notice upon the occurrence of any of the following events: (i) if the other materially breaches any material provision of this Agreement and fails to cure such breach within 30 days of written notice describing the breach; or (ii) if the other becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within 90 days).b. Either party may terminate this Agreement (A) for convenience upon sixty (60) days' written notice or (B) immediately upon written notice if Distributor (i) is acquired by or merges with a third party or there is a change in control of Distributor, or (ii) fails in any period to order and pay for the minimum volume of Products for that period as set forth above.c. Each party understands that the rights of termination hereunder are absolute and that it has no rights to a continued relationship with the other after termination. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind (including, without limitation, damage to or loss of goodwill or investment) suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination by such party (or expiration) that complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expenses. Termination is not the sole remedy under this Agreement and, whether or not termination is effected, all other remedies will remain available.8. Trademarks. Distributor will use Company's then-current names, marks, logos, and other identifiers for the Products ("Trademarks") and Company designated intellectual property related notices on or in the packaging for the Products and Distributor's advertising and promotional materials for such Products, provided that Distributor will: (a) only use Trademarks in the form and manner, and in accordance with the quality standards and usage guidelines that Company specifically prescribes and only in connection with Products; and (b) upon termination of this Agreement for any reason, immediately cease all use of the Trademarks. Subject to prior review and approval by Company, if the Distributor is located and/or operates outside of the United State of America, then Distributor will, at Company's cost, make all applicable trademark filings and registrations to protect Company's product and services names, and the Company trade name and logo, in the Territory; all such filings and registrations (and any use by Distributor and any related goodwill) shall be solely for the benefit of Company and shall name Company as the owner. Distributor will not otherwise use or register (or make any filing with respect to) any trademark, name or other designation relevant to the subject matter of this agreement anywhere in the world whether during or after the Term of this agreement. Distributor will not contest anywhere in the world the use by or authorized by Company of any trademark, name or other designation relevant to the subject matter of this agreement or any application or registration therefore, whether during or after the Term of this Agreement.9. Confidential Information. Distributor agrees that all inventions, designs, know -how, ideas, and all business, technical and financial information it obtains from Company, including without limitation all Pricing information as set forth above are the confidential property of Company and its suppliers ("Confidential Information"). Except as expressly and unambiguously allowed herein, Distributor will hold in confidence and not use or disclose any Confidential Information. Distributor's nondisclosure obligation will not apply to information it can document is generally available to the public (other than through breach of this Agreement). 10. Irreparable Harm. Distributor acknowledges that the breach of any confidentiality or other restrictive provision of the Agreement (including without limitation Section 9) would cause irreparable harm and significant injury to Company that would not be able to be fully compensated by monetary damages; accordingly, Distributor agrees that Company will have the right to seek and obtain temporary and permanent injunctive relief in any court (without the requirement of posting any bond) in addition to any other rights and remedies it may have (and Distributor will indemnify Company for all damages, losses, settlements, attorney fees, cost and other expenses resulting from such a breach or allegation thereof).11. General. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered or three days after being sent by prepaid certified or registered mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice. Either party may assign this Agreement in whole to an entity that succeeds to all or substantially all the business or assets of such party and any other transfer or sublicense of any obligation or benefit under this Agreement and any attempt to do so shall be void. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. This Agreement supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement and all past dealing or industry custom. No changes or modifications or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of California (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods). Unless otherwise elected by Company in writing for a particular instance, the sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and U.S. federal courts located in California, and both parties consent to the jurisdiction of such courts; provided that without limiting Company's right to seek injunctive or other equitable relief in court, either party may elect (by written notice given prior filing a complaint or, in the case of the defendant, prior to answering a complaint) to resolve a dispute by binding arbitration in the English language in Los Angeles, California under the Comprehensive Rules of JAMS; the decision of the arbitrator will be enforceable in any court of competent jurisdiction. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. There are no intended third party beneficiaries to this Agreement.