Retailer Incentive Agreement – Standard Terms & Conditions

  1. Application. These Standard Terms and Conditions (“Conditions”) are incorporated into and made part of any Incentive Agreement (“Agreement”) between Cup Carrier Media Corp. (“CMC”, “we”, or “us”) and any person or entity (“Retailer”, or “you”) that participate in CMC’s program of distributing Media Product to consumers.
  2. Definitions and Interpretation. For purposes of these Standard Terms:
    1. “Confidential Information” means any and all information, documentation or knowledge relating to the business and assets of CMC, not generally known to the public, disclosed to, or which may be obtained directly or indirectly by, the Retailer, or which may be derived in any way by it as a consequence of the performance of its obligations under the Agreement, including, without limitation, information relating to CMC’s present and contemplated products and services; product designs; inventions, improvements; standards, specifications, systems, methods and operating procedures; techniques and modes of manufacturing, compounding or preparing products, trade secrets, know-how, data, research and development; patent, trade-mark, copyright, industrial design and all other intellectual property and proprietary rights and shall also include the incentives offered and other terms of the Agreement.
    2. “Trade-marks” mean all the trade-marks and trade names, whether or not registered, which are owned by CMC or which CMC has the right to use and which appear on the Media Product, including CupL™ and Concession Based Media™.

In these Conditions, the words “including”, “includes” and “include” mean “including (or includes or include) “without limitation”. The expression “Condition” or other subdivision followed by a number mean and refer to the specified Condition or other subdivision hereof.  Words importing the singular number only include the plural and vice versa.

  1. Representations and Warranties
    1. Retailer represents, warrants and covenants to CMC as follows:
      1. It has the full right and legal authority to enter into and fully perform the Agreement in accordance with its terms.
      2. The execution and delivery of the Agreement has been duly authorized by Retailer, and such execution and delivery and the performance by Retailer of its obligations hereunder, do not and will not violate or cause a breach of any other agreements or obligations to which it is a party or by which it is bound, and no approval or other action by any governmental authority or agency is required in connection herewith.
      3. The Agreement, when executed and delivered by Retailer, will be a legal, valid and binding obligation enforceable against Retailer in accordance with its terms, except to the extent that enforcement thereof may be limited by any bankruptcy, insolvency or other similar laws affecting creditors rights generally.
      4. the performance by Retailer of all its obligations hereunder will be conducted in compliance with all applicable laws.
  1. Modification. The Conditions may be amended by CMC from time to time by giving 30-day advance notice to Retailer. CMC may give notice of any pending amendments via email, by including an announcement in Retailer’s monthly billing statement or by any other appropriate written means.
  2. Limitation of Liability and Indemnification.
    1. We make no representations or warranties, express or implied, statutory or otherwise, relating to the Media Product, including, without limitation, any implied warranty of merchantability or fitness for any particular purpose.The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Law on the Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods.  Retailer assumes all risk and liability for any loss, damage or injury resulting from the use of the Media Product, either alone or in combination with other products.
    2. IN NO EVENT OTHER THAN AS A RESULT OF CMC’s GROSS NEGLIGENCE WILL CMC BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING IN ANY WAY OUT OF THE AGREEMENT. THIS LIMITATION WILL APPLY EVEN IF CMC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. IN ANY EVENT, CMC’s LIABILITY SHALL BE STRICTLY LIMITED AND CAPPED BY THE AMOUNT OF REVENUE EARNED UNDER THE AGREEMENT WITHIN THE 3 MONTHS IMMEDIATELY PRECEDING THE TIME OF THE ACT OR OMISSION GIVING RISE TO THE LIABILITY.
    3. Retailer hereby agrees to defend, indemnify and hold harmless CMC, its affiliated corporations, and their respective directors, officers, employees and agents, from and against any and all claims, costs, liabilities, losses, damages, injuries, demands, actions, causes of action, suits, proceedings, judgments and expenses, including, attorneys’ fees and other legal expenses arising out of or resulting from gross negligence, intentional misconduct, or any misrepresentation, or the non-fulfillment of any obligation made by Retailer in the Agreement.
  3. Trademarks.
    1. Retailer will not alter, obscure, remove, cancel or otherwise interfere with any markings (including any Trade-marks, QR codes or logos) and other indications of origin, which may be placed on Media Product.Retailer acknowledges that CMC is the exclusive owner or licensor of the Trade-marks and Retailer has no right, title or interest whatsoever in the Trade-marks and any goodwill association therewith.
    2. In connection with the foregoing, Retailer covenants and agrees as follows:
      1. to conduct business in a manner that reflects favourably at all times on the Media Product and reputation of CMC in order to develop, promote and maintain same with customers and to protect and preserve the Trade-marks, goodwill and image of CMC and the Media Product;
      2. not to infringe CMC’s rights in and to any of the Trade-marks and not to dispute, contest, attack or impair the validity or ownership of the Trade-marks or do any act which tends to impair the validity of the Trade-marks or the title of CMC to any Trade-marks
      3. to immediately report to CMC any actual or potential infringements of the Trade-marks or any matter which may give rise to any infringement of the Trade-marks, or any imitation of Media Product of which Retailer is or may become aware, and Retailer shall co-operate with CMC in protecting such Trade-marks and Media.
    3. Upon termination of this Agreement for any reason whatsoever, Retailer shall discontinue forthwith all use of CMC’s Trade-marks, and Retailer shall return to CMC all materials relating to the Media Product or Confidential Information in Retailer’s possession or over which it has control.
  4. Confidential Information and Non-Competition
    1. Retailer acknowledges that in its relationship with CMC and/or by virtue of the performance of its obligations under this Agreement, it and/or its employees, agents and contractors (collectively, “Representatives”) will be entrusted with Confidential Information, the disclosure of any of which to competitors of CMC or to the general public would be detrimental to the best interests of CMC.Retailer further acknowledges that the right to maintain confidential such Confidential Information constitutes a proprietary right of CMC, which CMC is entitled to protect. 
    2. Retailer covenants and agrees with CMC:
      1. that it shall not use or copy, or permit the use or copy of any of the Confidential Information, directly or indirectly, for any purpose other than the discharge of its duties and obligations arising from the Agreement and only in the best interests of CMC;
      2. that it will maintain the absolute confidentiality of the Confidential Information and that it will not (without the prior written consent of CMC) disclose, reveal, release,supply, or transfer to any person at any time, any of the Confidential Information;
    3. Retailer shall not, directly or indirectly, develop, manufacture or distribute any products similar to or competitive with the Media Product.Retailer hereby further covenants and agrees that during the Term of this Agreement, and for a period of one (1) year following the termination of this Agreement, Retailer shall not be engaged in or be concerned with any Person engaged in or concerned with or interested in, the business of manufacturing, developing or distributing any products similar to or competitive with the Media Product.
    4. Retailer agrees any breach of this Condition may not be able to be adequately compensated for by monetary award of damages, and that in such event, CMC shall be entitled to and may seek an order for equitable relief as may be considered necessary or appropriate to restrain Retailer from any further breach of the terms hereof and Retailer hereby waives all defences to the strict enforcement by CMC of the restrictions herein.
    5. Upon termination of this Agreement for any reason, Retailer shall immediately return to CMC any Confidential Information and shall thereafter refrain from using or disclosing any such Confidential Information to any Person for any purpose whatsoever
  1. Force Majeure. Notwithstanding anything to the contrary contained herein, neither party will be liable for any failure to perform or for delay in performance resulting from any cause beyond its reasonable control, including without limitation acts of God, fires, floods or weather, strikes or lockouts, factory shutdowns, embargoes, tariffs, wars, hostilities or riots, epidemic or pandemic of infectious disease, or shortages in transportation. If the cause continues for 60 days, then both Parties shall meet to discuss and negotiate in good faith what modifications to the Agreement should result from such cause.
  2. Cancellation and Termination 
    1. CMC reserves the right to cancel or terminate the Agreement at any time, for any reason or no reason, without penalty, by giving 30 days written notice of termination to Retailer.
    2. In addition, CMC may terminate the Agreement without advance notice in the following situations:
      1. If Retailer commits a material breach that is not cured within 30 days of CMC providing written notice;
      2. If Retailer becomes insolvent, files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within 30 days of the filing thereof;
      3. If Retailer assigns or attempts to assign this Agreement or any of the rights or obligations hereunder without the prior written consent of CMC being given.
    3. Upon termination of this Agreement,
      1. all rights to receive any payments under the Agreement willbe immediately relinquished by Retailer
      2. Retailer shall promptly return to CMC all Confidential Information and any other materials and documents given to Retailer and relating to this Agreement or otherwise to the business of CMC; and
      3. Retailer shall cease use of CMC’s Trade-marks and shall thereafter discontinue all advertisements, signs and notifications stating or implying that it is connected with CMC.
    4. CMC shall not be liable to Retailer by reason of the proper termination of this Agreement for any damages, whether direct, consequential or incidental, on account of the loss of prospective profits or on account of expenditures, investments, leases or commitments in connection with its business, arising from such termination of this Agreement.
  3. Miscellaneous.
    1. Governing Law and Venue; Waivers of Jury and Class Action. The Agreement shall be construed, interpreted and enforced according to the statutes, rules of law and court decisions of the Province of Alberta/State of [New York], without regard to conflict of law provisions. In the event of any dispute between the parties under the Agreement, any claims or legal actions by one party against the other arising under the Agreement or concerning any rights under the Agreement shall be commenced and maintained in any [insert jurisdiction of court] .
    2. Both parties hereby submit to the jurisdiction and venue of any such court.  THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THE AGREEMENT. FURTHER, BOTH PARTIES HEREBY WAIVE THEIR RIGHT TO PARTICIPATE, IN ANY CAPACITY, IN A CLASS ACTION LAWSUIT OR CLASS ARBITRATION AGAINST THE OTHER PARTY, IN ANY MATTER ARISING FROM OR RELATED TO THE AGREEMENT.
    3. Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, if not, then on the next business day, (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.  CMC’s address is set out under its signature page of the Agreement and Retailer’s address is set out in Schedule “B” of the Agreement. Either party may change its address for notices and other communications by providing 10 days advance written notice to the other party.
    4. Severability and Compliance with Laws.Should it be determined that any provision hereof violates any applicable law, or is deemed unenforceable by any court of competent jurisdiction, then the Parties shall promptly modify the Agreement to the extent necessary to bring about compliance with such law or regulation while maintaining, as closely as possible, the original intent of the Parties. If the invalid provision cannot be reformed without materially altering the original intent of the Parties, it shall be severed from the Agreement. In either case, all remaining provisions shall remain in full force and effect.
    5. Headings. The section and other headings contained in the Agreement are for reference purposes only and shall not be deemed to be a part of the Agreement or to affect the meaning or interpretation of any provisions within the Agreement.
    6. Entire Agreement:The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments and writings. The Agreement may not be released, discharged, abandoned, changed or modified in any manner except by an instrument in writing signed by a duly authorized representative of both Parties.
    7. Waiver. No waiver of any provision hereof shall be effective unless made in writing and assigned by the waiving Party. The failure of either Party to require the performance of any term or obligation of the Agreement, or the waiver by either Party of any breach of the Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
    8. Survival. All provisions of the Agreement which, by their nature, extend beyond the termination or expiration of the Agreement, including but not limited to sections pertaining to claims and disputes, indemnification, remedies for breach, termination, non-solicitation, non-competition, confidentiality and general provisions, shall survive the termination or expiration of the Agreement.
    9. Independent Contractor. The status of Retailer shall be that of an independent contractor. Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture between the parties or constitute or be deemed to constitute Retailer as the agent of CMC for any purpose whatsoever and Retailer shall have no authority or power to bind CMC in any manner whatsoever or to assume or incur any obligation or responsibility, express or implied, for or on behalf of, or in the name of CMC, except as specifically provided for herein.  Time shall be of the essence of this Agreement.
    10. Expenses. In the event CMC retains counsel to enforce any provision of the Agreement or pursue and/or defend any other claim or legal action due to Retailer’s breach or default of the Agreement, then CMC shall be entitled to recover its related expenses, court costs and reasonable attorney’s fees from Retailer.

 

(Updated: May 16th, 2022)

Contact Us Today!

Cup Carrier Media Corp. is listed as a Preferred Vendor with AATAC, in the “Cool New Products” category. AATAC represents 89,000+ Convenience Store retailers in the continental US.

Get In Touch
  • Suite 2110, 555 4th Ave. S.W., Calgary, AB, T2P 3E7
  • info@cupcarrier.media

Patented – US/CAN – © Copyright 2020-2023 Cup Carrier Media Corp., All Rights Reserved