EX 10.13
REVENUE SHARING AGREEMENT
This Agreement, entered into this 5th day of August, 2004, by and between Pop N
GO ("Pop N Go'), located at 00000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, and
Canalport Vending Company, Inc., an Illinois corporation, located at 0000 X.
Xxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000 ("Canalport'). Pop N Go and
Canalport may referred to hereafter as the "Party" or collectively as the
"Parties" where applicable.
RECITALS
Whereas, Pop n Go is in the business of owning certain food vending machines and
desires by this agreement to allow Canalport to place and operate some of Pop N
Go's vending machines in certain locations in exchange for a specified share of
the revenue generated by the placement and operation of the vending machines in
certain locations by Canalport as is specified herein below;
Whereas, Canalport, is among other things, in the business of operating food and
other vending machines
Whereas Canalport likewise desires to enter into this agreement whereby
Canalport agrees to a specified share of the revenue generated by Canalport's
placement and operation of Pop N Go's vending machines with Pop N Go as is
specified herein below;
Now, therefore, for and in consideration of the mutual promises hereinafter
contained, and the sum of Ten and 00/100 ($10.00) Dollars to the other in hand
paid, the receipt and sufficiency whereof are hereby acknowledged, the Parties
do hereby covenant, agree, contract, represent and warrant as follows:
1.Relationship of the Parties as Independent Contractors. The relationship of
Pop N Go and Canalport shall be that of independent contractors and not
employer-employee or any relationship other than that of independent contractors
to one another.
2. Ownership of the Vending Machine Equipment. The vending machines shall be
considered to be the property of Pop N Go.
3. Type of Vending Machine to be Provided by Pop N Go. The Pop N Go Model 700
popcorn machine shall be provided by Pop N Go to Canalport.
4. Location Selection. Canalport shall have the right to select the locations
for the placement of the vending machines and shall do so in its sole direction,
unless specifically and reasonably objected to in writing by Pop N Go.
5.Product Pricing. The Parties shall agree on a product pricing schedule for
each location in writing. The Parties hereto acknowledge that because the
amount of commission which a location may require be paid to it by Canalport may
fluctuate, so will the percentage of sharing of revenue between Pop N Go and
Canalport. Thus, the percentage of sharing of revenue between Pop N Go and
Canalport shall be agreed upon in writing by Pop N Go and Canalport on a
location by location basis whereby the Parties shall specify in writing in a
form agreeable to each party the percentage of revenue sharing between the
Parties, as is more fully set forth in paragraph 12 below. The Parties also
acknowledge that the Model 7000 Pop N Go machine is equipped with a non-
resettable counter. The Parties agree that if Pop N Go reasonably believes that
Canalport has tampered or is tampering with the counter, then Pop N Go shall
serve Canalport with written notice of the circumstances relating to the alleged
tampering and allow Canalport the opportunity to investigate any such alleged
tampering and to further allow Canalport fifteen (15) business days to ensure
Pop N Go that either no tampering has occurred or to ensure that no further
tampering will occur. If Canalport fails to reasonably investigate the
tampering allegations and thereafter stops any tampering, Canalport may be
notified of a violation of this agreement.
6. Canalport to be Responsible for Placement of Products to the Vending
Machines. Canalport shall provide all supplies (popcorn, topping oil, napkins
salt, and cups) for the machines. Further, Canalport shall be responsible for
maintaining adequate supply inventory levels for the machines.
7. Visual Appearance of Vending Machines. Canalport agrees not to change the
visual appearance of the machine or install any decals (with the exception of a
service decal that provides the Operator's phone number) without prior written
notice from Pop N Go.
8. Compliance with Applicable Laws. Canalport shall at all times be and remain
in compliance with all applicable local, state, and federal laws, regulations
and codes concerning the vending industry, Further, where possible Canalport
shall coordinate installations with Pop N Go.
9. Permits and Licenses. Pop N Go shall be responsible for all required permits
and licenses.
10.Service of Vending Machines. Canalport shall be responsible for weekly
restocking and maintenanmaintenance of the vending machines, or more frequently
if deemed necessary by Canalport or upon the reasonable request of Pop N Go. Pop
N Go hereby consents to allowing the re-stocking and/or maintenance to be
undertaken by an appropriate individual at a location, however, Canalport shall
remain responsible for ensuring that the service is being performed. Further,
Canalport agrees that where necessary, preventative maintenance will be
performed monthly, or more often if necessary, in Canalport's discretion.
11. Service Calls. Service calls for an out-of-order vending machine shall be
made within twenty four (24) hours of Canalport receiving actual notice that a
vending machine is out of order. Pop N Go agrees that it shall be and remain at
all times responsible for all cost associated with parts. Canalport agrees that
where a vending machine requires a part to be ordered and/or is out of service
for more than 48 consecutive hours, Canalport will remove the vending machine to
a storage area. Canalport further agrees to make every reasonable effort to
provide a replacement vending machine in order to provide the location with
continuous service. All equipment shall have a service decal with the
operator's toll-free phone number. Further, Service Reports will be provided to
Pop N Go on a monthly basis. Pop N Go's standard service form, or an approved
substitute will be used to track service calls.
12. Collecting, Reporting and Payment. Canalport shall cause collections to be
made at least once per week, more often if necessary. At a time of collection,
authorized location personnel will be notified to verify the count on the LED
screen and sign the collection ticket. Collection reports are due within
five(5) business days of the end of each month while this agreement remains in
force. In the event that Canalport fails to timely tender a collection report
and the commensurate amounts of money to Pop N Go (in accordance with the
Parties agreed upon revenue sharing agreement for the location) for a vending
machine or machines for which the report(s) and payment(s) are untimely. Checks
shall be payable to Pop N Go and shall be mailed to the address appearing in
this agreement.
13. Refunds to Customers of Vending Machine Products. Canalport shall be
responsible for coordinating a refund system for customer's loss of money in the
machine. Where feasible, the suggested system is for the location to obtain the
customer's name and signature on refund form when refunds are made to the
customer. Thereafter, Canalport will reimburse the location for documented,
paid-out refunds presented at the time of each collection trip.
14. Term of Agreement. This agreement shall be for a one (1) year term, and
shall automatically renew thereafter for successive one year terms, unless
terminated for cause as is defined herein or upon the provision of 60-days
written notice sent prior to the annual anniversary date of the execution of
this agreement from one party to the other party sent certified mail, return
receipt requested to the other Party's address first written above. Said
address may be changed from time to time upon the provision of written notice
sent certified mail, return receipt requested to the other Party.
15. Termination of Cause. Pop N Go may terminate this agreement prior to the
one year initial term or any renewal thereafter for cause, as defined be here-
in below:
A. If Pop N Go receives in excess of three (3) written complaints regarding
Canalport from a single location within a thirty (30) day period. However,
the aforesaid complaints will not cause a termination for a cause unless
Canalport has been provided with written notice of any and all such
complaints and has had at least fifteen (15) business days to rectify any
such complained of problems with location.
B. If Canalport becomes adjudicated bankrupt or makes voluntary assignment for
the benefit of the creditors.
C. If Canalport breaches a material term of this agreement and only if, after
the provision of fifteen (15) business days written notice Canalport,
Canalport fails to cure actual material breach.
D. If Canalport assigns any of the rights assigned to Canalport under this
agreement, without the prior written consent of Pop N Go, in accordance
with paragraph 16 below.
16. Assignment and Sub-Contractors. Canalport shall not assign its rights
under this Agreement without first obtaining the consent in writing of Pop N
Go, the consent to which shall not be unreasonably withheld by Pop N Go.
Further, Pop N Go recognizes that Canalport may sub-contract certain or all of
its duties and responsibilities to other entities or persons, provided that in
the event of any sub-contracting of any of Canalport's duties or
responsibilities, Canalport shall remain primarily responsible to Pop N Go for
the performance of the term of this agreement and shall notify Pop N Go of any
such sub-contracting and shall provide a copy or any written sub-contracting
agreements to Pop N Go upon request.
17. Actions After Terminations. All vending machine equipment is and remains
the property of Pop N Go. In the event of termination of this agreement.
Canalport will, within ten (10) business days return all keys and supplies to
designated representative of Pop N Go.
18. Indemnify: Canalport shall defend, protect, and hold Pop N Go and its
officers, directors, agents, contractors, and employees harmless from and
against any and all losses (including reasonable attorney's fees), damages,
liabilities, claims, liens, demands, actions, or causes of actions arising from
Canalport's performance of this agreement. This includes damage to property,
injury or death that arises directly or indirectly in connection with
Canalport's performance or its obligations under this agreement, provided that
gross negligence of Pop N Go is not the predominant cause of the said loss,
liability, lien, damage, claim, demand, action or cause of action, in which
case, Pop N Go shall defend, protect and hold Canalport and its officers
directors, agents, contractors, and employees harmless from and against any and
all losses (including reasonable attorney's fees), damages, liabilities, claims,
liens, demands, actions, or causes of actions arising form Pop N Go's
performance of this agreement.
19.Insurances. Canalport hereby agrees it will obtain a Commercial General
Liability insurance coverage for the Vending Machines, naming Pop N Go as an
additional insured to afford protection with such limits to be determined by
Canalport, insuring Pop N Go and Canalport against liability arising from,
relating to or in connection with the Vending Machines which are the subject of
this agreement.
20. Revenue Share Schedule. The Parties hereto agree that each location shall
be subject to a specific written agreement setting forth the percentage of
Revenue Share to be paid to Canalport from the operation of the vending machines
operated by Canalport pursuant to this agreement. The share schedule shall be
in a standard form, a blank sample form of which is attached hereto a Exhibit A
and shall be termed a "Location Revenue Share Schedule". The Location Revenue
Share Schedule shall reference the location by address or other identification
acceptable to both Parties and shall state the amount of Revenue Share to be
paid for the location identified. The Location Revenue Share Schedule shall be
modifiable by Canalport in the event a location raises its commission rate to
Canalport or upon other good cause. Further, Canalport agrees to provide Pop N
Go with copies of location agreements between Canalport and any and all
locations upon written request of Pop N Go.
21.Miscellanous. This Agreement:
A. Contains the full agreement between the Parties, supercedes all prior
understandings between Parties, and shall be considered and understood to
be a contractual agreement and no a mere recital;
B. Shall bind and enure to the benefit of each Party and their respective
heirs, successors, administrators, executors, representatives, agents and
assigns;
C. Shall be construed in accordance with Illinois law and affects the time of
this construction and execution; and
D. Shall be construed without regard to paragraph headings, which are
included solely for conveniences.
22. Jurisdiction and Venue. The Parties hereto agree that any and all disputes
arising out of the performance or alleged non-performance of this agreement
shall be heard by a court sitting in Xxxx County, Illinois and both Parties do
hereby consent to the jurisdiction of the State of Illinois and venue in Xxxx
County, Illinois, without resort to conflict of laws of any jurisdiction.
In Wittiness Hereof, the Parties have executed this Agreement as of the date
and year first written.
Canalport Vending Company,
an Illinois Corporation
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
By:/s/ Xxxxxx X. Xxxxxxx
------------------------
Xxxxxx X. Xxxxxxx
Title: President
Date: 8/5/04
Pop N Go
00000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX. 00000
By: /s/ Xxx Xxxxx
------------------
Xxx Xxxxx
Title: CEO
Date: 8/5/2004
