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Retail Services Agreement

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Retail Services Agreement Powered By Docstoc
					This document provides two (2) different agreements between a retailer and a vendor.
The first agreement is for waste removal and the vendor is hired to remove the retailer’s
waste at regular intervals. The type of waste to be removed is defined under “Exhibit A”
of this agreement. The second agreement is for product placement whereby the vendor
grants the retailer a license to display its logo or trademark in the retailer’s marketing
materials. This useful document can be used by small businesses or other entities that
want to enter into a waste removal agreement or a product placement agreement.
                                Retail Services Agreement




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   This agreement is entered into as of this___ day of ___, 20__ [Instruction: Insert date.]
between _____ [Instruction: Insert vendor’s name.], a ____ [Instruction: Insert vendor’s type of
 business entity along with applicable state formation information.] with a principal place of
   business located at _____ [Instruction: Insert vendor address.] (“Vendor”), and _____,
  [Instruction: Insert Retailer’s name.] and ___ [Instruction: Insert retailer’s type of business
  entity along with applicable state formation information.] with principal place of business
             located at _____ [Instruction: Insert retailer’s address.] (“Retailer”).

  This agreement sets forth the mutual agreement, obligations and representations of the
  parties with respect to Vendor’s removal of Retailer’s waste as described on and in the
                             locations set forth on Schedule A

 Retail Waste (“Retail Waste”) [Comment: If Retail Waste does not encompass all Retailer’s
“waste”, parties will need to determine how to segregate and manage agreements regarding such
additional “waste”.] in Article I and Vendor’s product placement within Retailer’s facilities,
              as such product and respective placement location is set forth on




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Schedule B (“Product Placement”) in Article II. The parties hereby acknowledge and agree that
Parts I and II together constitute the agreement (“Agreement”), however, in the event the
obligations in Part I or Part II are terminated, the remainder of the Agreement shall remain in full
force and effect, except as otherwise terminated by the provisions hereof. In such instance, such
remaining portion of the Agreement shall be deemed the “Agreement”, as if same had been
originally drafted without the terminated portion. Notwithstanding any provision of this
Agreement to the contrary, no additional agreement, writing, or execution of documents, other
than notice and applicable provisions regarding termination shall be required to effectuate such
change.

No portion of this Agreement shall be deemed to create an employer-employee, joint-venture,
partnership or landlord-tenant relationship between Vendor and Retailer. Neither of the parties
shall hold itself out contrary to the terms of this provision by advertising or otherwise.

For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:

1. For Vendor’s removal of the Retail Waste, Vendor shall be paid according to the following
   schedule: _____ [Instruction: Insert payment terms for Retail Waste removal, including
   price, whether the same is based on volume, frequency and when the same shall be
   paid, and how invoicing for payment will occur.]

2. For Retailer’s placement of Vendor’s Product Placement within Retailer’s locations, Retailer
   shall be paid according to the following schedule: _____ [Instruction: Insert payment
   terms for Vendor’s Product Placement, including inventory tracking and control
   measures and how often the same will be taken, when payment will be made and how
   much payment shall be, and how invoicing shall occur.]

3. This Agreement shall be in effect from the date hereof until _____, [Instruction: Insert term
   of Agreement.] unless sooner terminated by its terms.

                                            Part I-Retail Waste




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During the term of the Agreement pertaining to the removal of Retail Waste, the Vendor is
hereby granted the sole and exclusive franchise, license and privilege to remove the Retail
                         Waste from those facilities set forth on




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1. Schedule B and shall furnish at its sole cost, expense and direction, all personnel, labor,
   equipment, trucks, and all other items necessary to provide waste collection, removal and
   disposal services in a workmanlike manner in compliance with applicable laws, regulations
   and/or common practice for such similar or comparable types of waste.
2. Vendor shall be prepared to begin removal of Retail Waste as of _____, [Instruction: Insert
   date.] and Retailer’s obligation to pay for such removal shall not commence until that date,
   or the date upon which Vendor begins actual removal of the Retail Waste, whichever is later.
3. The Vendor shall procure and maintain, at its sole cost, expense and direction, during the
   term of this Agreement, for each vehicle used to remove the Retail Waste, the following
   insurance: ______ [Instruction: Insert each type of insurance to be required, including
   amounts, and if applicable, deductible requirements.] Vendor shall also procure and
   maintain, at is sole cost, expense and direction, general business liability insurance, and
   Retailer shall be named as an additional insured party under such insurance policies. Vendor
   shall provide Retailer notice within five (5) business days of any notice of cancellation or
   non-renewal of any such policy. The Vendor shall procure and maintain, at its sole cost,
   expense and direction, during the term of this Agreement, employee liability and workers
   compensation insurance in compliance with any and all applicable laws. Any failure to
   obtain or maintain the insurance set forth above may be deemed a default of this Agreement,
   and Retailer shall have the right in its sole discretion to terminate this Agreement for such
   default.
4. The Vendor shall procure and maintain, at its sole cost, expense and direction, during the
   term of this Agreement any and all necessary waste storage and/or waste removal permits,
   licenses or other necessary removal documents.
5. Retailer shall not be responsible for separation of the Retail Waste from any other waste.
   Retailer’s responsibility shall be to remove such waste (including the Retail Waste) to that
   agreed upon location as set forth in Schedule A.
6. Retailer shall treat the Retail Waste as trash, and hereby disclaims liability for any and all
   products produced, manufactured, distributed, sold or otherwise placed into the stream of
   commerce by Vendor which were produced in whole or in part from the Retail Waste or any
   part or derivation thereof. Retailer further disclaims any and all liability for any violation of
   any intellectual property of any other party with respect to Vendor’s production,
   manufacture, distribution, marketing, sales or placement into the stream of commerce of
   Vendor’s Product, including but not limited to the violation of any patent, trademark or
   copyright. Further, Retailer makes no representation that the Retail Waste shall not contain
   any hazardous or bio-hazardous material.
7. The Vendor is not liable for any failure to remove the Retail Waste if such failure is caused
   by a catastrophe, riot, war, governmental order or regulation, act of terrorism, strike, fire,
   accident, act of God or other similar circumstance beyond Vendor’s reasonable control.
8. Comment: If parties have agreed to any default provisions or other provisions that
   pertain solely to the waste removal component of the Agreement, they should be
   included here.
                                   Part II-Vendor’s Product Placement

1. During the term of this Agreement with respect to Vendor’s Product Placement, Vendor shall
   grant to Retailer the exclusive right and license to Vendor’s Product Placement and to
   exhibit, publicize or otherwise utilize such products. This grant and license includes



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    Retailer’s right to use Vendor’s trademarks, logos, tradenames, service marks and
    characteristics and likeness of the products placed in any of Retailer’s marketing materials.
    [Instruction: If right and license is not exclusive, revise accordingly. Also, if Vendor is
    to retain any rights to publicize or otherwise utilize the product during the term of the
    Agreement, set forth here.]

      Vendor agrees it shall make every reasonable effort to place Vendor’s product in
                         substantially those locations as set forth on




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2. Schedule B, but shall not be held liable for any reduction of its fees for any immaterial
   revision to such location.
3. Optional language: Retailer shall not intentionally feature directly competitive products
   in a location adjacent to that in which the Vendor’s product is placed.
4. Vendor shall be prepared to deliver Vendor’s product for placement as of ____, [Instruction:
   Insert date.] and Retailer’s requirement to pay Vendor shall not begin until such date or such
   date upon which Vendor actually delivers such product for placement, whichever is later.
5. Vendor hereby represents that any products provided to Retailer to be placed as set forth
   herein are merchantable.

 To the extent Vendor places any product within any of Retailer’s locations as set forth in




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6. Schedule B, Retailer shall be responsible for the safety and security of such products. To the
    extent any of same shall be lost, stolen or damaged beyond normal wear and tear, Retailer
    shall pay to Vendor _____ [Instruction: Insert compensation structure for materials lost,
    stolen or damaged while in Retailer’s possession.] as compensation for such product(s).
7. In placing Vendor’s Product within Retailer’s location, the parties further agree as follows:
    _____ [Instruction: Insert any additional placement requirements, for example, product
    must have broadband or electrical access. If no such additional requirements, this
    provision may be removed].
8. Vendor agrees that, during Retailer’s normal business hours, a representative of Vendor will
    expediently cooperate with Retailer’s request for product assistance, including consumer
    questions and/or complaints. [Comment: Parties may wish to consider including
    applicable information as to how Vendor and Retailer will contact one another,
    whether by email, dedicated call line, or otherwise.] Retailer agrees it will expediently
    notify Vendor of any such consumer complaints, and will direct consumers to contact Vendor
    for further assistance, on an as needed basis.
9. The parties hereto understand and hereby acknowledge that Vendor’s Product Placement
    may not result in any additional sales or goodwill to either party.
10. Vendor, in its sole obligation and at its sole cost and expense, shall provide any and all
    necessary labels, logos and/or signage to Retailer for promotion of its product.
    Notwithstanding the foregoing, in the event Retailer shall voluntarily determine to run any
    special promotion or marketing campaign with respect to such product, Retailer shall provide
    any and all such necessary labels, logos and/or signage with respect to such promotion or
    marketing campaign.
11. Comment: If parties have agreed to any default provisions or other provisions that
    pertain solely to the product placement component of the Agreement, they should be
    included here.

                        Part III-General Provisions Applicable to Entire Agreement

1. The person(s) executing this Agreement hereby represent and warrant that each respectively
   has the authority to execute this Agreement on behalf of the party for which he is executing.
2. A failure by either party to fulfill its obligations hereunder shall constitute a breach hereof.
   Upon written notice from the non-breaching party of a breach hereunder, the breaching party
   shall have not less than ten (10) business days to cure any such breach. If the breach cannot
   be cured within such ten (10) business days, the breaching party shall have a reasonable time
   to cure such breach, if such breaching party shall begin to cure such breach within ten (10)
   business days after receiving notice of the same, and shall diligently pursue all reasonable
   means of cure until cure is achieved. A failure thereafter to cure shall constitute a default
   hereunder, and shall permit the non-breaching party to terminate all or any portion of this
   Agreement in its sole discretion pursuant to the terms hereof.
3. A party shall be deemed in default hereunder in any or all of the following instances: in the
   event either party fails to pay any liabilities which may become due; in the event of the
   insolvency or dissolution of the Vendor; in the event of the insolvency or dissolution of the
   Retailer; in the event Retailer sells all or substantially all of the assets and/or property of the
   Retailer; and/or in the event Vendor sells all or substantially all of the assets and/or property
   of the Vendor. [Comment: Parties may wish to add other events of default, including but



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    not limited to a bankruptcy filing by either party which is not withdrawn within a
    specified number of days and/or the adjudication of either party as bankrupt.]. The
    non-defaulting party shall have the right upon an event of default to declare all or a portion of
    this Agreement terminated upon written notice to the other defaulting party.
    Upon such termination, the Vendor shall have no further obligation to remove the retail
    Waste, and Retailer shall have no further obligation to place Vendor’s product as set forth
    herein. Retailer shall have the option to sell off the remaining Vendor’s product in its stock,
    or alternatively, return same to Vendor, at Retailer’s sole cost and expense. In such event,
    Retailer shall remain obligated to pay Vendor for such stock as set forth herein. Each party
    shall retain the obligation to pay the other any sums previously accrued and due and owing
    pursuant to the terms of this Agreement.
    Upon such termination, and upon the return of all Vendor products and/or payment of all
    sums set forth herein, the parties each shall have no further obligation to the other.
4. This Agreement shall terminate upon the earlier of the following: (a) the date set forth
    above; (b) upon notice from any non-defaulting party to the defaulting party; (c) failure to
    cure a breach as set forth herein; or (d) as otherwise agreed between the parties.
    [Instruction: Parties may wish to include additional termination options.]
5. This Agreement, and the rights and obligations of each party hereto, shall not be assignable
    without the prior written consent of the other party. [Comment: Parties may wish to revise
    this to include permitted assignment to an entity wholly or substantially owned by the
    assigning party or an entity which otherwise is a subsidiary or otherwise party to a
    takeover of the assigning party.]
6. This agreement sets forth the entire agreement between the parties hereto and supersedes any
    and all prior agreements or understandings between the parties pertaining to any subject
    matter contained in this agreement. Except as otherwise set forth herein, any amendments or
    modifications hereto must be in writing and signed by both parties.
7. This Agreement or any subsequent amendment hereto may be executed by facsimile and/or
    in one or more counterparts, each of which when so executed and delivered shall be deemed
    an original, but all of which taken together shall constitute but one and the same original.
    Each party shall accept any such signed faxed counterpart as full execution of this Agreement
    or any subsequent amendment thereto.
8. In case any provision of this agreement shall in any respect be declared invalid, illegal or
    unenforceable, such invalidity, illegality or unenforceability shall not affect any other term or
    condition of this agreement, and this agreement shall be interpreted as though such illegal,
    unenforceable or invalid term of condition was not a part hereof.
9. This agreement shall be interpreted, enforced and governed pursuant to the applicable laws of
    the state of _____. [Instruction: Insert state.]
10. The pronouns used herein shall include, where appropriate, either gender or both, singular
    and plural.
11. The Vendor hereby indemnifies and holds harmless Retailer, it’s officers, agents and/or
    employees from all claims, suits or actions of any kind and character made upon and brought
    against Vendor, its officers, agents and/or employees for and on account of any injuries or
    damages received or sustained by any person(s) which are in whole or in part caused by
    negligent acts or omissions on Vendor’s part in performing the obligations set forth in this
    Agreement. This indemnification shall include reasonable attorneys’ fees and costs and all
    other expenses incurred in the defense of any claim, suit or action of every kind and



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    character. The Vendor further indemnifies and holds harmless Retailer from all just claims
    incurred by or contracted for by Vendor, including but not limited to, claims of all employees
    and mechanics for labor that shall be performed, claims for payment of material and
    equipment purchased, leased or rented.
12. The covenants, obligations and conditions herein contained shall be binding on and inure to
    the benefit of the heirs, legal representatives, and assigns of the parties hereto.
13. The descriptive headings used herein are for convenience of reference only and they are not
    intended to have any effect whatsoever in determining the rights or obligations of the parties
    hereto.
14. No indulgence, waiver, election or non-election by either party under this Agreement shall
    affect the other party’s duties and liabilities hereunder, and no such indulgence, waiver,
    election or non-election shall be deemed an indulgence, waiver, election or non-election with
    respect to any previous or future action by any other party hereto.
15. Any notice required or permitted under this Lease or under state law shall be deemed
    sufficiently given or served if sent by United States certified mail, return receipt requested
    and directed to the party at the address first set forth above. Notice shall be sent to the
    following persons: _____ [Instruction: Set forth the applicable notice provisions for each
    party, and their attorney if applicable.]



_______________________
Vendor Signature block




_______________________
Retailer Signature block




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                                Schedule A

                                Retail Waste




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                                   Schedule B
                                Product Placement




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Description: This document provides two (2) different agreements between a retailer and a vendor. The first agreement is for waste removal and the vendor is hired to remove the retailer’s waste at regular intervals. The type of waste to be removed is defined under “Exhibit A” of this agreement. The second agreement is for product placement whereby the vendor grants the retailer a license to display its logo or trademark in the retailer’s marketing materials. This useful document can be used by small businesses or other entities that want to enter into a waste removal agreement or a product placement agreement.