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Dealership Agreement

THIS AGREEMENT is made and entered into as of the month, day and year written below, between Pioneer Family Brands, Inc. a Utah Corporation (“the Company”) and the Dealer;

WHEREAS, the Company represents and warrants that, it has worldwide proprietary rights to the TROPICAL SNO dry beverage concentrate (“the Product”) for use solely in connection with the preparation and sale of shaved ice under the TROPICAL SNO trademark and service mark or any other logos, designs slogans or other marks of the Company all of which are collectively referred to as "the Trademarks";

WHEREAS, the Company desires to grant a non-exclusive license to the Dealer for the use of the Trademarks in connection with the preparation, marketing, and sales of the Product subject to the terms and conditions contained in this Agreement;

WHEREAS, the Company desires to sell the Product to the Dealer and the Dealer desires to purchase the Product and market the Product under the Trademarks according to the terms and conditions specified in this Agreement.

NOW THEREFORE, in consideration of the mutual promises contained in this agreement and, subject to the terms and conditions of the Agreement, the Company and the Dealer agree as follows:

Grant of License. The Company grants the Dealer a non-exclusive license to use the TROPICAL SNO Trademarks in connection with the preparation, marketing and sales of The Product at the location(s) designated in the My Locations section of this web site and approved by the company. Any change to the Location(s) must be updated in the My Locations section of this web site and approved by the Company. The Dealer is not authorized to advertise or sell the Product and/or use the Trademarks except at the Location(s) approved by the Company. The Dealer agrees to sell the Product at the Location(s) including special events using only the Product and the Trademarks and agrees not to use any competitive product or sell shaved ice under any competitive trademarks or service marks.

Trademarks. The Dealer further agrees that:

The Company has the right to control the nature and quality of the Products and services in connection with which the Trademarks are used. The Dealer will follow such standards as may be established by the Company for use of the Product in connection with the Trademarks and will allow the Company to conduct such inspection, tests, and audits as are reasonably necessary to ensure the Dealer's compliance with such standards;
Nothing contained in this the Dealer Agreement shall be deemed to give the Dealer any right, title or interest in or to the Product or to the Trademarks, except as specifically provided in this Agreement;
All use by the Dealer of the Trademarks (or any mark, commercial symbol or logo confusingly similar thereto) shall inure to the exclusive benefit of the Company and all goodwill associated therewith shall be the exclusive property of the Company;
The Trademarks can only be used in a manner approved by the Company and in accordance with the approved logo formats and colors specified by the Company. The approved logo colors are PMS 300 C, PMS 130 C, and PMS 151 C. The approved logo formats are below.
Any marketing materials, signs, and/or advertising materials produced by the Dealer, must be approved by the Company in writing. Additionally, the Dealer agrees to display current promotional materials created by the company, when available, and use its reasonable best efforts to promote the TROPICAL SNO brand;
Upon termination of this Dealer Agreement for any reason, the Dealer agrees to remove and discontinue using the Trademarks. Additionally, the Dealer Agrees to remove and destroy any signs, advertising materials and any other confusingly similar printed matter depicting the Trademarks;
They will notify the Company of the sale of any product, whether in the shaved ice area or otherwise, utilizing the Trademarks or any mark that is confusingly similar.

Nature and Quality of the Product. The Dealer further agrees that:

The Dealer agrees that the quality of ice affects the nature and quality of the finished product and agrees to use only an approved block ice shaving machine;
The Dealer agrees that the cups used to serve the product affect the perceived nature and quality of the product and agrees to use only branded cups bearing the Trademarks and designs created by the Company. The use of unprinted cups is prohibited;
The Dealer agrees to follow the recommended product preparation procedures as instructed and specified by the Company.

Terms of Sale. The Company agrees to sell the Dealer the Product for use in preparation and sale of shaved ice only under the Trademarks and in the Location(s) specified by the Dealer and approved by the Company. The Dealer shall purchase the Product pursuant to the terms and conditions specified below. The Dealer agrees to pay the Company the amount payable on all invoices according to the terms and conditions below. The Dealer acknowledges that the current terms, conditions and prices are subject to being changed, altered, deleted or amended at any time. The Dealer further acknowledges that all orders are subject to acceptance by the Company and the availability of the Product.

Orders. The Dealer may place orders with the Company through the Dealer Assistance Center, phone, fax, e-mail or regular mail. The Company cannot guarantee the accuracy of orders placed over the phone. Written orders shall be submitted only on forms acceptable by the Company.
Price. Orders are invoiced at the price in effect at the time of delivery. The prices are subject to change without notice.
Sales Tax. The Dealer understands that the invoice amount may include sales tax. Consumable inventory items such as Flavors, Cups and Napkins may be purchased tax exempt if the Dealer provides the Company with a current sales tax exemption certificate. Sales Tax will be charged in accordance the local laws of the state where the Dealer is operating its business.
Payment. Payments shall be made by credit card or cash at the time of the order unless agreed upon in writing. Any unpaid balances are subject to collection and carry a service charge of 1.5% per month, 18% per year or the maximum legally allowable rate. The Dealer shall pay all legal costs and expenses including attorney’s fees incurred by the Company in connection with its collection of the Dealers overdue account.
Shipping. All Products are shipped to the Dealers location at the expense of the Dealer unless otherwise agreed upon in writing. The Company will select the best method of shipping unless specified by the Dealer at the time the order is submitted to the Company. Goods are shipped at the Dealers risk. Damage claims must be made within five days from the delivery date.
Returns. The Dealer must obtain a return authorization number (RMA) for any returns. Goods returned without an RMA will not be accepted. There will be a 20% restocking fee on all returns. The Company will not accept returns after 30 days from the purchase date on the invoice. Freight costs for all returns are the responsibility of the Dealer.
Back Orders. In the event a product ordered is out of stock then the Company will ship the back ordered items as soon as it is available. It is the Dealers responsibility to cancel any unwanted back orders. Back ordered items will be shipped at the Dealers expense.

Minimum Purchase: Each year the Dealer agrees to purchase, enough product to make a minimum of 50 gallons of liquid flavor (“Minimum Purchase”). Failure to meet the Minimum Purchase shall give the Company the option to terminate this agreement.

Business License. The Dealer shall procure and maintain, at its sole expense, any and all necessary business licenses and permits to prepare, market, and sell the Product or otherwise operate as a business in the Location(s) specified by the Dealer and approved by the Company.

Independent Contractor. It is understood and agreed that the Dealer is an independent contractor and nothing contained herein is to be construed to create the relationship of partners, joint venture, employer-employee or to imply that the Dealer is an agent of the Company. Furthermore, the Dealer shall not utilize the Trademarks in their business name in any manner that implies that the Dealer is an employee, agent, partner, associate, owner, or has any legal rights to the Trademarks. Dealer agrees to follow the guidelines specified below:

Dealers should never utilize the Tropical Sno trademark as a business name without also using their own distinguishing business name and one of the words DEALER, INDEPENDENT DEALER or DEALERSHIP.

The terms COMPANY, INC., LTD., CORPORATION or CORP., should never be used in conjunction with the TROPICAL SNO trademark.

The following formats ARE PERMISSIBLE ways of utilizing the TROPICAL SNO Trademark in your business name:

JONES TROPICAL SNO DEALERSHIP
AMERICAN ICE, INC.
DEALER OF TROPICAL SNO PRODUCTS
COOL TREATS LLC
INDEPENDENT TROPICAL SNO DEALER

The following formats are NOT PERMISSIBLE ways of utilizing the TROPICAL SNO Trademark in a business name:

TROPICAL SNO, INC.
JONE'S TROPICAL SNO, LLC
TROPICAL SNO OF UTAH
TROPICAL SNO OF SALT LAKE CITY
TROPICAL SNO, INC.
JOHN JONES, DEALER

Insurance. The Dealer agrees to procure and maintain for the benefit of both the Dealer and the Company comprehensive general liability insurance, including product liability coverage, with limits not less than $1,000,000 per occurrence or claim, $2,000,000 aggregate. Further the Dealer agrees to provide the Company a valid certificate of insurance each year.

Term. The initial term of this Agreement shall be from the date hereof for a period of one year unless sooner terminated in accordance to the terms of this Agreement. This Agreement must be renewed at least annually or as required by the company. At the time of renewal The Dealer shall be required to sign a then current Dealer Agreement and be subject to the terms and conditions of the current Agreement. No renewal will be granted if the Dealer is in default of any of the terms and provisions in this Agreement.

Training and On-Going Support. The Company agrees to furnish the Dealer, at Dealers request, basic training at the Company headquarters in Salt Lake City, Utah or at a location mutually agreed upon by the Company, and the Dealer. The initial training shall be free of charge to the Dealer with the exception of the cost of all travel, meals and lodging that is incurred by the Dealer and its attendees. At the Dealers request, the Company will provide onsite training at the Dealers location(s) for a per diem rate of not less than $250 per day. In addition, to the per diem rate, the Dealer agrees to pay all transportation, lodging, food and other costs incurred by the Company in connection with such onsite training and consultation.

Termination. In the event that either party breaches this Agreement in any way, the other party shall have the right to terminate within ten (10) days written notice of said breach but only if the breach has not been duly remedied during such ten (10) day period. If the breach has not been remedied written notice of such termination shall be mailed, return receipt requested, to the terminated party and such termination shall be effective as of the date of such notice was mailed. Upon termination the Dealer agrees that they will immediately discontinue the use of the Trademark(s) or any other confusingly similar mark and immediately remove the mark from their business and any other use and send photos confirming compliance. The Dealer further agrees to immediately destroy all existing advertising materials using the Trademark or any other confusingly similar mark.

Confidentiality. All information concerning the Product and the Trademarks not intended for public display and advertising shall be deemed to be confidential and the Dealer agrees to maintain such information in confidence and not disclose the same. Further the Dealer agree not to share their login and password information for this site with anyone that is not an owner or employed in the Dealer business.

Amendments and Assignment. This Agreement may not be assigned by the Dealer and may be amended only by written agreement signed by all parties. In the event that the Dealer sells their business the purchaser will be required to sign a then current Agreement and operate in accordance to the terms and conditions of the current Agreement.

Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah. The Dealer stipulates to jurisdiction within the courts of the State of Utah and further agrees that the venue for resolving any dispute regarding this Agreement shall be in an appropriate court located within the State of Utah.

Entire Agreement. This Agreement contains the entire agreement and the only understanding between the parties with respect to the subject matter of this Agreement and supersedes all previous agreements whether written or oral.

Attorney’s Fees. In the event that any Party hereto shall be in default or breach of this Agreement, said Party shall be liable to pay all reasonable attorneys’ fees, court costs, and other related collection costs and expenses incurred by the non-defaulting or non-breaching Party in prosecuting its rights hereunder.

Electronic Signature. By signing or typing your name below, you are agreeing to do business with Pioneer Family Brands, Inc. as a Dealer of Tropical Sno products and accept and agree to the terms and conditions specified above. Further you agree that this Agreement is in accordance with the Federal Electronic Signatures in Global and National Commerce Act (E-Sign), 15 U.S.C.A. § 7001 to 7031 (2001) and Utah's Uniform Electronic Transactions Act (UETA), Utah Code § 46 4-101 to -501 (2000). Understand that transactions and/or signatures in records may not be denied legal effect solely because they are conducted, executed, or prepared in electronic form, and that if a law requires a record or signature to be in writing, an electronic record or signature satisfies that requirement.

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January 18, 2017 10:54 am MST

Dealership Agreement Uploaded by Don Griffiths - agreement@tropicalsno.com IP 24.116.108.151