Vending Machine Agreement

Document 4072A

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VENDING MACHINE AGREEMENT

This VENDING MACHINE AGREEMENT (the "Agreement") is made as of
this ___ day of __________, 20___ (the "Effective Date"), by and between [COMPANY
NAME], a ___________ corporation with its principal place of business at [PRINCIPAL
ADDRESS] (the Company) and [VENDOR NAME] a _____________ corporation
with its principal place of business at [PRINCIPAL ADDRESS] (the "Vendor").
RECITALS
WHEREAS, Vendor purchases, installs and services vending machines containing
certain [DESCRIBE PRODUCTS] ("Vending Products") and other snacks (the
"Vending Machines"); and
WHEREAS, pursuant to the terms and conditions of this Agreement, the
Company desires to appoint Vendor as an independent contractor to install and service
such Vending Machines at specific business locations set forth on Exhibit A
("Locations") and Vendor desires to provide such vending machines to Company;
NOW THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1.
Term. This Agreement shall be effective as of the Effective Date and shall have
an initial term of ____ (__) months. Upon the expiration of such term (or any renewal
term), this Agreement shall automatically renew for additional ______ (__) month
periods unless either party notifies the other party at least thirty (30) days prior to the
applicable renewal date of its intention not to renew the Agreement (the initial term and
any renewal term shall be collectively referred to as the "Term").
2.

Appointment of Vendor.

2.1
Grant to Vendor. Subject to all the terms and conditions of this Agreement
and the limitations set forth below, the Company hereby grants permission to Vendor to
install Vending Machines at the Locations as set forth in Exhibit A [and all future
locations that will be designated by Company.]
The Company agrees that it does not currently, and will not through the Term of
this Agreement, represent, distribute or promote any other vending machines featuring
[DESCRIBE PRODUCTS] that compete with Vendors Vending Machines at the
Locations. The Company hereby grants Vendor exclusive rights to installing and selling
such [DESCRIBE PRODUCTS] at both the Locations.
2.2
Ownership. Company hereby acknowledges that all right, title and interest
in Vending Machines shall at all times remain that of the Vendor, including all monetary
profits (with the exception of Company Payment) with respect to Vending Machines.
Company shall have no right, title, or interest therein, and Company is not authorized to

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grant any right or license with respect thereto except as expressly set forth in and
permitted under this Agreement.
2.3
Theft and Vandalism. Company shall take all reasonable precautions to
assure that the Vending Machine(s) are not vandalized, damaged or manipulated in any
way. Should theft of the products contained in the Vending Machine(s) or vandalism to
the Vending Machines itself occur the Company shall notify Vendor as soon as
practicable. In the event that theft and/or vandalism continues Vendor reserves the right
to remove the Vending Machine(s) without notice and without penalty, loss or default
under this Agreement. All other Locations shall remain active.
3.
Vendors Obligations. Vendor shall use its commercially reasonable efforts to
install, regularly service and properly maintain Vending Machines to Company at the
Locations. [Vendor shall install Vending Machines as soon as reasonably possible].
4.

Prices, Payments and Payment Terms.

4.1
Vendor Fees. Vendor hereby agrees to pay to Company [AMOUNT]
($_______) Dollars per month per Location (Company Payment).
4.2
Payment Terms. Payments shall be paid on or before the last day of each
month and shall be made in U.S. Dollars. Payments to [COMPANY] shall be made to
[ADDRESS].
4.3
Late Payments. Amounts not paid when due shall be subject to interest at
one and one-half percent (1-1/2%) per month or, if less, the maximum rate of interest
allowed by law, calculated from the due date. If any amount is not paid when due
hereunder, in addition to such past due amounts, the party entitled to payment shall be
entitled to recover from the other party the costs and expenses incurred in connection with
collecting the same (including costs of investigation and attorneys fees).
5.
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE
WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR LOSS
OF PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR
OTHER SIMILAR DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. EXCEPT WITH
RESPECT TO A BREACH OF THIS AGREEMENT. THE LIABILITY OF EITHER
PARTY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY VENDOR WITH
RESPECT TO THE VENDING MACHINES GIVING RISE TO SUCH CLAIM.
6.
Indemnity of the Parties. If notified promptly in writing of any action (and all
prior claims relating to such action) against either party based on a claim arising from
Section 5 (Limitation of Warranty), any material breach of this Agreement, or the
negligence or willful misconduct of either party, the other party shall indemnify the other
party and hold the other party harmless from and against any judgment, damage, liability,
or expenses, including reasonable attorney's fees, arising out of any claim with respect to

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the breach or alleged breach of such warranty or this Agreement or such negligence or
willful misconduct; provided that the other party shall have had sole control of the
defense of any such action and all negotiations for its settlement or compromise; and,
provided further, that no cost or expense shall be incurred for the account of the other
party without its' prior written consent.
7.

Independent Contractor Relationship.

7.1
No Employer-Employee Relationship. It is expressly understood and
agreed that during the Term of this Agreement, Vendors relationship to the Company
will be that of an independent contractor and that neither this Agreement nor the Services
to be rendered hereunder shall for any purpose whatsoever or in any way or manner
create any employer-employee relationship.
7.2
Taxes. Vendor shall have sole and exclusive responsibility for the
payment of all federal, state and local income taxes, for all employment and disability
insurance and for social security and other similar taxes, in each case with respect to any
compensation or benefits provided by the Company hereunder.
7.3
Compliance with Law.
Vendor shall assume and accept all
responsibilities which are imposed on independent contractors by any applicable statute,
regulation, ruling or otherwise. Vendor represents and warrants that he is and will
continue to be an independent merchant or enterprise within the meaning and requirement
of any laws or customs [in the Territory]. Vendor will comply with the Companys
policies and all applicable laws, rules, regulations and expressed public policies of
[STATE] and will take no action in connection with his duties under this Agreement that
would violate any such laws, rules, regulations and policies.
7.4
Not Authorized to Bind the Company. Vendor shall not hold himself out
or permit himself to be described otherwise than as an independent contractor of the
Company, and unless specifically authorized in advance in writing by the Company,
Vendor shall not enter into, assume, or incur any obligation on the Companys behalf or
transact any business for the Companys account.
8.
Compliance with Applicable Laws. Vendor shall, at its own expense, comply
with all applicable laws and make, obtain, and maintain in force at all times during the
term of this Agreement, all filings, registrations, reports, licenses, permits and
authorizations required under applicable law, regulation or order required for Vendor to
perform its obligations under this Agreement.
9.
Assignment. Vendor [may / may not] assign, transfer or otherwise dispose of
this Agreement in whole or in part to any individual, corporation or other entity without
the prior written consent of the Company, provided that Vendor shall continue to remain
obligated to the Company for the assignee's performance or breach of Vendors duties
and obligations hereunder.

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10.
Termination. Notwithstanding anything herein to the contrary, either party may
terminate this Agreement at any time with or without cause upon thirty (30) days' prior
written notice.
11.

Miscellaneous.

11.1 Entire Agreement. The provisions of this Agreement, including any

Exhibits, constitutes the entire agreement between the parties with respect to the subject
matter hereof, and this Agreement supersedes all prior agreements or representations, oral
or written, regarding such subject matter. This Agreement may not be modified or
amended except in a writing signed by a duly authorized representative of each party.
11.2 Governing Law. This Agreement will be construed in accordance with
and governed by the laws of the [STATE] without regard to the principles of conflicts of
laws thereof. In addition, the Company and Vendor acknowledge and agree that the
courts located in _______ County shall have exclusive jurisdiction in any action or
proceedings with respect to this Agreement, including the federal district courts located
in such county.
11.3 Successors and Assigns. Except as otherwise expressly provided in this
Agreement, this Agreement will be binding on, and will inure to the benefit of, the
successors and permitted assigns of the parties to this Agreement. Nothing in this
Agreement is intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights or obligations under or by reason of this
Agreement, except as expressly provided in this Agreement.
11.4 Force Majeure. If the performance of any obligation (other than payment
obligations) under this Agreement is prevented, restricted or interfered with by reason of
war, acts of terrorism, civil commotion, acts of public enemies, blockade, embargo,
strikes, order, proclamation, regulation, ordinance, demand, or requirement having a legal
effect of any government or any judicial authority or representative of any such
government, or any other act whatsoever, whether similar or dissimilar to those referred
to in this Section 11.4, which is beyond the reasonable control of the party affected, then
the party so affected shall, upon giving prior written notice to the other party, be excused
from such performance to the extent of such prevention, restriction, or interference,
provided that the party so affected shall use reasonable commercial efforts to avoid or
remove such causes of nonperformance, and shall continue performance hereunder with
reasonable dispatch whenever such causes are removed.
11.5 Disputes. Any controversy, claim or dispute arising out of or relating to
this Agreement, shall be settled by binding arbitration in [CITY/STATE]. Such
arbitration shall be conducted in accordance with the then prevailing commercial
arbitration rules of [NAME OF ARBITRATOR], with the following exceptions if in
conflict: (a) one arbitrator shall be chosen by [ARBITRATOR]; (b) each party to the
arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together
with other expenses of the arbitration incurred or approved by the arbitrator; and (c)
arbitration may proceed in the absence of any party if written notice (pursuant to the

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Arbitrators rules and regulations) of the proceeding has been given to such party. The
parties agree to abide by all decisions and awards rendered in such proceedings. Such
decisions and awards rendered by the arbitrator shall be final and conclusive and may be
entered in any court having jurisdiction thereof as a basis of judgment and of the issuance
of execution for its collection. All such controversies, claims or disputes shall be settled
in this manner in lieu of any action at law or equity, provided however, that nothing in
this subsection shall be construed as precluding brining an action for injunctive relief or
other equitable relief. The arbitrator shall not have the right to award punitive damages
or speculative damages to either party and shall not have the power to amend this
Agreement. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT
APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELTING TO THIS
AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO
11.6 Notices. All notices and other communications required or permitted
hereunder will be in writing and will be delivered by hand or sent by overnight courier,
fax or e-mail to the parties at the addresses first referenced above.
Each party may furnish an address substituting for the address given above by
giving notice to the other parties in the manner prescribed by this section. All notices and
other communications will be deemed to have been given upon actual receipt by (or
tender to and rejection by) the intended recipient or any other person at the specified
address of the intended recipient.
11.7 Construction. The titles of the sections of this Agreement are for
convenience of reference only and are not to be considered in construing this Agreement.
Unless the context of this Agreement clearly requires otherwise: (a) references to the
plural include the singular, the singular the plural, and the part the whole, (b) references
to one gender include all genders, (c) or has the inclusive meaning frequently identified
with the phrase and/or, (d) including has the inclusive meaning frequently identified
with the phrase including but not limited to or including without limitation, and (e)
references to hereunder, herein or hereof relate to this Agreement as a whole. Any
reference in this Agreement to any statute, rule, regulation or agreement, including this
Agreement, shall be deemed to include such statute, rule, regulation or agreement as it
may be modified, varied, amended or supplemented from time to time.
11.8 Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter of this
Agreement and supersedes all prior or contemporaneous agreements and understanding
other than this Agreement relating to the subject matter hereof. No course of prior
dealing between the parties and no usage of the trade shall be relevant to supplement or
explain any term used herein. Acceptance or acquiescence in a course of performance
rendered hereunder shall not be relevant to determine the meaning of these terms and
conditions even though the accepting or acquiescing party has knowledge of the
performance and opportunity for objection.

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11.9 Amendment and Waiver. This Agreement may be amended only by a

written agreement executed by the parties hereto. No provision of this Agreement may
be waived except by a written document executed by the party entitled to the benefits of
the provision. No waiver of a provision will be deemed to be or will constitute a waiver
of any other provision of this Agreement. A waiver will be effective only in the specific
instance and for the purpose for which it was given, and will not constitute a continuing
waiver.
11.10 Counterparts. This Agreement may be in any number of counterparts,
each of which will be deemed an original, but all of which together will constitute one
instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duty authorized representative as of the Effective Date.
[NAME OF COMPANY]
By:____________________________
Its: ____________________________

[NAME OF VENDOR]

By:____________________________
Its: ____________________________

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Exhibit A
LOCATIONS

Current Locations (the " Locations")

1.
2.
3.
4.