UAL XXXXXXXX #000000
XXXXXX XXXXXXXX, INC.
0000 Xxxx Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, XX 00000
(000) 000-0000
October 1, 1992
Xx. Xxxxxxx X. Xxxxx
Purchasing Manager
XXX. XXXXXX DEVELOPMENT CORPORATION
000 Xxxx Xxxxxx
Xxxx Xxxx, Xxxx 00000-0000
LETTER OF AGREEMENT
Dear Xx. Xxxxx:
This letter of agreement (the "Agreement") evidences the agreement between
United Air Lines, Inc. ("United") and Xxx. Xxxxxx Development Corporation ("Xxx.
Xxxxxx") concerning purchase and use of Xxx. Xxxxxx chocolate chip cookies for
first class passengers on United's flights within or between the 50 states of
the United States of America (the "50 States").
1. Product: Xxx. Xxxxxx agrees to provide fully baked and frozen 1.75 oz.
semi-sweet chocolate chip cookies (the "product") for use in serving first class
passengers on United's flights. These cookies will be of the same recipe and
overall product quality as the cookies sold in Xxx. Xxxxxx retail stores.
2. Distribution: United has designated Xxxxxxx Xxxxx Company ("Xxxxxxx Xxxxx")
under United contract number 112246 to provide shipping, warehousing,
distribution and inventory management services related to United's use of Xxx.
Xxxxxx cookies. United has the right to change distributors during the term of
this Agreement and United will provide reasonable advance notice to Xxx. Xxxxxx
if such a change is desired.
3. Price and Delivery: Xxx. Xxxxxx will sell cookies to Xxxxxxx Xxxxx on
United's behalf at a price of $60.10 per case of 192 cookies. Product will be
sold on an F.O.B. factory basis, currently Xxxxx Food and Drug Company's plant
in Layton, Utah. Risk of loss passes upon delivery to Xxxxxxx Xxxxx which
currently takes place at such Layton, Utah plant. United will bear the cost of
shipping to Xxxxxxx Xxxxx' warehouses and the cost associated with warehousing,
distribution and inventory management by Xxxxxxx Xxxxx. The product will be
packed, using generally acceptable industry standard packaging designed for
routine shipping of
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the type contemplated herein, in such a manner so as to reasonably limit damage
to the product during shipping, warehousing and distribution.
4. Ordering and_Invoicing: Orders for product will be placed by Xxxxxxx Xxxxx
using their standard Purchase Order and will be confirmed and invoiced by Xxx.
Xxxxxx using its standard Order Confirmation and Invoice (the "Invoice") in the
form attached hereto as Exhibit A. Pursuant to Xxx. Xxxxxx pricing policies,
invoices not paid within a 30 day period shall be subject to interest at 1 % per
month. If any Invoice from Xxx. Xxxxxx to Xxxxxxx Xxxxx remains unpaid after 90
days (and United has received prior notice that such Invoice remained unpaid
after 60 days from date of invoice) then United will: (a) cause Xxxxxxx Xxxxx to
pay such Invoice with interest; (b) pay such Invoice, with interest, itself, or
(c) deduct the amount due and owing, including interest, by Xxxxxxx Xxxxx to
Xxx. Xxxxxx from the next regular payment made by United to Xxxxxxx xxxxx and
remit such funds to Xxx. Xxxxxx.
5. Term of Agreement: This Agreement will be effective for one year starting
September 1, 1992 and ending August 31, 1993. Either party may propose extending
this Agreement for a longer period at any time prior to the termination of this
Agreement. Either party shall have the right to terminate this Agreement upon 30
days written notice to the other party.
6. Volumes: United agrees that in order to maintain the exclusivity set forth in
Paragraph 8 hereof, United must purchase a minimum of 100,000 cookies per month.
Except as indicated specifically herein, there are no minimum or maximum
purchases or inventory requirements. United will notify Xxx. Xxxxxx if any
significant increases or decreases in volumes are expected.
7. Inventory: Xxx. Xxxxxx will maintain reasonable inventory of product so as to
provide an adequate supply of product to fill orders from Xxxxxxx Xxxxx. In the
event of early termination of this Agreement pursuant to Paragraph 5 hereof,
United will assume responsibility for reasonable inventories held by Xxx.
Xxxxxx, not to exceed 60 days usage at the minimum volume set forth in Paragraph
6 hereof, and United may continue to use product for 60 days following such
termination in order to deplete inventories purchased by it.
8. Exclusive Use: During the term of this Agreement, but only so long as the
minimum volume set forth in Paragraph 6 hereof is maintained, Xxx. Xxxxxx shall
not enter into an agreement with any other scheduled airline for use of, and
will not otherwise provide, Xxx. Xxxxxx branded cookies on any airlines' flights
within or between the 50 States. In addition, during the term of this Agreement,
United will not enter into an agreement with any other supplier of cookies for
distribution to first class customers on United flights within or between
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the 50 states and will not otherwise provide any other cookies to first class
passengers on United flights within or between the 50 States other than in
situations where Xxx. Xxxxxx Cookies are not available due to shortage of
product (in which case United will insure that the source of the substitute
cookies is clearly identified).
9. Advertising and Promotion: During the term of this Agreement United may use
the Licensed Names and Marks set forth in Exhibit B, attached hereto and
incorporated herein, (the "Licensed Names and Marks"), in accordance with the
terms of this Agreement on all of its inflight menus on flights on which product
is served. In addition, United shall take such steps as may be necessary within
the terms of this Agreement to inform all first class passengers on United's
flights within or between the 50 States that the cookies being served to them
are Xxx. Xxxxxx products. All advertising and promotion with respect to the
product shall be subject to Xxx. Xxxxxx approval of copy in a reasonably timely
fashion.
10. Grant of License: Xxx. Xxxxxx hereby grants to United, and United hereby
accepts from Xxx. Xxxxxx, upon the terms and conditions hereinafter specified, a
license to employ the Licensed Names and Marks in connection with the service of
Xxx. Xxxxxx products to first class passengers on flights within or between the
50 States. The license granted hereby shall be exclusive only as regards other
airline carriers on travel within or between the 50 states, and only for so long
as this Agreement remains in full force and effect. Unless Xxx. Xxxxxx consents
in writing, United shall use the Licensed Names and Marks only for the purposes
of and pursuant to this Agreement, only in a manner consistent with the scope of
the relevant registration of Licensed Names and Marks, only for applications in
a manner permitted and prescribed herein, and only with respect to product.
United recognizes the value of the good will associated with the Licensed Names
and Marks and acknowledges that the Licensed Names and Marks, and all rights
therein and in the good will pertaining thereto, belong exclusively to Xxx.
Xxxxxx. United shall notify Xxx. Xxxxxx in writing of any infringements or
imitations by others of the Licensed Names and Marks which may come to United's
attention; and United will assist Xxx. Xxxxxx at Xxx. Xxxxxx cost and expense,
to the extent necessary, in the procurement of any protection or to protect any
of Xxx. Xxxxxx rights to the Licensed Names and Marks. United will so conduct
itself in serving products so as to preserve the business integrity and good
reputation of Xxx. Xxxxxx. For the protection of the consumer public and for the
further protection of the goodwill and trade reputation of Xxx. Xxxxxx, United
covenants that it will only prepare and serve the product in accordance with the
procedures designated by Xxx. Xxxxxx in writing. United will not at any time or
in any manner whatsoever claim or take any advantage from, or benefit of, any
state or federal franchise law which may arise from or affect the terms of this
Agreement and United hereby expressly waives, to the extent permitted by law,
all
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benefit of, or cause of action under, any such state or federal franchise law.
Upon termination or expiration of this Agreement, United shall forthwith
discontinue all use of the Licensed Names and Marks other than in connection
with the use of inventory as provided in Paragraph 7.
11. Indemnification:
a. Xxx. Xxxxxx will indemnify and hold harmless United, its
officers, employees, and agents (for purposes of this Paragraph 9
collectively referred to as "United") for, from and against any and all
liability, claims, suits, judgments, losses, damages, or costs
(including reasonable attorneys fees and expenses) by third parties for
injuries to or deaths of persons or loss of or damage to property found
to have been caused by (i) the provision of any product by Xxx. Xxxxxx
under this Agreement, or (ii) any negligence, or willful misconduct of
Xxx. Xxxxxx under this Agreement, all except to the extent caused by the
negligence or willful misconduct of United.
b. United will indemnify and hold harmless Xxx. Xxxxxx, its
officers, employees, and agents (for purposes of this Paragraph 9
collectively referred to as "Xxx. Xxxxxx") for, from and against any and
all liability, claims, suits, judgments, losses, damages, or costs
(including reasonable attorneys fees and expenses) by third parties for
injuries to or deaths of persons or loss of or damage to property found
to have been caused by (i) the provision of any equipment or services by
United under this Agreement, or (ii) any failure of supervision,
negligence, or willful misconduct of United under this Agreement, all
except to the extent caused by the negligence or willful misconduct of
Xxx. Xxxxxx.
c. Defense of Suits: If a lawsuit or other legal proceeding is
instituted by any third party arising out of the serving of Xxx. Xxxxxx
products under this Agreement and any count of such legal proceeding
includes a claim that a Xxx. Xxxxxx product was inedible, unwholesome,
or unfit for human consumption, then Xxx. Xxxxxx will assume the defense
for both Xxx. Xxxxxx and United and will defend or settle same in its
discretion and at its sole cost and expense. United reserves the right
to represent itself, at its expense, during trial. Liability for any
judgments will be as provided above.
12. Consequential Damages: NEITHER PARTY WILL BE LIABLE FOR, AND EACH PARTY
WAIVES AND RELEASES ANY CLAIMS AGAINST THE OTHER PARTY FOR, ANY SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST
REVENUES, LOST PROFIT, OR LOSS OF PROSPECTIVE
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ECONOMIC ADVANTAGE, RESULTING FROM ANY PERFORMANCE OR FAILURE TO
PERFORM UNDER THIS AGREEMENT.
13. Force Majeure: Neither party will be responsible for delays in or suspension
of performance caused by acts of God or governmental authority, strikes or labor
disputes, fires, or other loss of manufacturing facilities, breach by suppliers
of supply agreements, or other similar or dissimilar cause beyond the reasonable
control of that party.
14. Binding Effect, Assignment:
a. The terms, covenants and conditions of this Agreement shall
inure to the benefit of, and shall be binding upon, the parties hereto
and their respective successors and permitted assigns, which permitted
assigns have been agreed to in writing, duly executed by the other
party.
b. Notwithstanding subparagraph (a) above, Xxx. Xxxxxx and
United may each assign their rights and obligations under this Agreement
to any subsidiary, parent company, or subsidiary of a parent company.
15. Notices:
All notices provided by this Agreement shall be in writing and shall be given by
overnight courier, facsimile transmission, or by personal delivery, by one party
to the other, addressed to such other party at the applicable address set forth
below, or to such other address as may be given for such purpose by such other
party by notice duly given hereunder. Notice shall be deemed properly given on
the date of delivery:
To United: United Airlines, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxxxx
FAX: (000) 000-0000
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To Xxx. Xxxxxx: Xxx. Xxxxxx Development Corporation
000 Xxxx Xxxxxx
Xxxx Xxxx, Xxxx 00000
Attention: Corporate Secretary
FAX (000) 000-0000
16. General Provisions:
a. Notwithstanding anything to the contrary contained herein, Xxx.
Xxxxxx and United shall each have the right in a proper case to obtain temporary
restraining orders and temporary or preliminary injunctive relief from a court
of competent jurisdiction. United agrees that Xxx. Xxxxxx may have such
temporary or preliminary injunctive relief without bond.
b. The rights of Xxx. Xxxxxx and United hereunder are cumulative and no
exercise or enforcement by Xxx. Xxxxxx or United of any right or remedy
hereunder shall preclude the exercise or enforcement by Xxx. Xxxxxx or United of
any other right or remedy hereunder to which Xxx. Xxxxxx or United is entitled
by law to enforce.
c. If Xxx. Xxxxxx or United is required to enforce this Agreement in a
judicial proceeding or appeal thereof, the party prevailing in such proceeding
shall be entitled to reimbursement of its costs and expenses, including
reasonable accounting and legal fees, whether incurred prior to, in preparation
for, or in contemplation of the filing of any written demand, claim, action,
hearing or proceeding to enforce the obligations of this Agreement.
d. Except to the extent governed by the United States Trademark Act of
1946 (Xxxxxx Act, 15 U.S.C. xx.xx. 1051 et seq.) or other federal law, this
Agreement, and the relationship between United and Xxx.
Xxxxxx, shall be governed by the laws of the State of Utah.
e. United and Xxx. Xxxxxx hereby irrevocably consent, regarding any
legal action, suit or proceeding arising out of or in any way connected with
this Agreement, or which is an appeal therefrom, to the non-exclusive
jurisdiction and venue of the Federal District Court for the District of Utah.
Further, United and Xxx. Xxxxxx irrevocably consent to actual receipt of any
summons and/or legal process at their respective addresses as set forth in this
Agreement (and as to United with a copy to
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Xxxxxxxx-Xxxx) as constituting in every respect sufficient and effective service
of process in any such legal action or proceeding. United and Xxx. Xxxxxx
further agree that final non-appealable judgment in any such legal action, suit
or proceeding shall be conclusive and may be enforced in any other jurisdiction,
whether within or outside the United States of America, by suit under judgment,
a certified or exemplified copy of which will be conclusive evidence of the fact
and the amount of the liability.
f. Each party irrevocably waives trial by jury in any action,
proceeding or counterclaim, whether at law or in equity, brought by either
party.
g. The headings of the paragraphs hereof are for convenience only and
do not define, limit or construe the contents of such sections or paragraphs.
h. All Exhibits hereto form part of this Agreement.
i. This Agreement, together with the Exhibits hereto, supersedes all
prior oral or written representations, communications, or agreements between the
parties regarding the subject matter of the Agreement and, together with such
Exhibits, constitutes the entire understanding of the parties, regarding the
subject matter of this Agreement. This Agreement may be modified or amended only
in writing duly executed by both parties.
17. Counterparts: This Agreement may be executed simultaneously in two
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same agreement, binding upon both parties
hereto, notwithstanding that both parties are not signatories to the original or
the same counterpart.
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Please indicate your agreement to and acceptance of this proposal by signing
both copies of this letter in the space indicated and return one copy for our
files.
Very truly yours,
UNITED AIR LINES, INC.
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Vice President of Purchasing
Agreed to and accepted this 2nd day of October, 1992.
XXX. XXXXXX DEVELOPMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Purchasing Manager
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EXHIBIT B
LIST OF LICENSED TRADE NAMES, TRADEMARKS AND SERVICE MARKS
Xxx. Xxxxxx Cookies and Design
Reg. No. 1, 241, 619 and
Reg. Xx. 0, 000, 000
Xxx. Xxxxxx (Stylized)
Reg. No. 1, 299, 149
All attached hereto and incorporated herewith
