The Property agrees to distribute product samples (“Products”) provided by Advantage Sales & Marketing LLC d/b/a Brand Connections and BCB (“Company”) to its guests during the term of this Agreement. Company will deliver all Products to the Property at its own expense.
The Property will receive all Products from Company free of charge.
During the term of this Agreement, the obligations of the Property under this Agreement are as follows:
(1) to store the Products in a safe place and ensure they are properly distributed to the Property’s guests according to the instructions provided by Company;
(2) Products may not be distributed in a “take-one” bin or box unless otherwise instructed;
(3) if requested by Company, to display advertising signage provided by Company per instructions provided;
(4) if requested by Company, to assist in a questionnaire to survey staff and/or guests about the Products;
(5) to refrain from distributing free product samples provided by any entity or individual other than Company and to refrain from displaying the advertising messages of any competitor product(s) except as provided by Company;
(6) to refrain from selling the Products or offering the Products to any party other than the Property’s guests, unless instructed to do so;
(7) to allow access to Company staff, upon reasonable notice, to photograph the Products throughout the Property;
(8) Company has the right to retrieve samples from property if distribution guidelines are not followed.
The term of this Agreement shall be for a period of thirty-six (36) months commencing on the date hereof (the “Initial Term”). The term of this Agreement shall be automatically extended for an additional period of thirty-six (36) months (an “Additional Term”) at the end of the Initial Term or any Additional Term, except as may be set forth in a written notice by either party to the other no less than thirty (30) days prior to the end of the Initial Term or any Additional Term.
Company may terminate this Agreement at any time and for any reason, including, but not limited to, the failure of the Property to abide by any of the terms and conditions in this Agreement.
Company shall maintain statutory workers’ compensation and comprehensive general liability insurance coverage (including contractual liability coverage) against claims for bodily injury, personal injury, death and property damage in a combined single limit of not less than One Million Dollars ($1,000,000.00).
This Agreement and any disputes arising under or related thereto (whether for breach of contract, tortious conduct or otherwise) shall be governed by the laws of the State of California, without reference to its conflicts of law principles. Any legal actions, suits or proceedings arising out of this Agreement (whether for breach of contract, tortious conduct or otherwise) shall be brought exclusively in the United States District Court for the District of California and the parties to this Agreement hereby accept and submit to the personal jurisdiction of such court with respect to any legal actions, suits or proceedings arising out of this Agreement. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING IN ANY UNITED STATES FEDERAL OR STATE COURT ARISING OUT OF OR RELATING TO THIS AGREEMENT.
This is a personal services agreement and may not be assigned by either party without first securing the written consent of the other party, which consent shall not be unreasonably withheld; provided, however, such consent shall not be required of Company in the event of an assignment to an affiliate under common ownership and/or control of Company, or by way of merger or sale of substantially all of Company’s assets or fifty-one percent (51%) or more of its voting equity interests.
Each party shall hold harmless and indemnify the other party, its directors, officers, employees, agents and other representatives, from and against any and all claims, demands, actions, proceedings and costs (including reasonable attorney’s fees) in any way resulting from and/or arising out of its negligence or willful misconduct or failure to follow instructions. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES INCURRED BY THE OTHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING NEGLIGENCE CLAIMS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
This Agreement may not be amended, except in writing signed by each of the parties. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and transactions related hereto and supersedes any and all prior agreements, promises and representations, written or oral, with respect thereto.