End-User Agreement
[Food Service Establishments, Restaurants and Individual Consumers]
This End-User Agreement (“Agreement”) is effective on the Effective Date and is between Cambridgeshire Corp d/b/a Waffle Pantry, having a place of business at 847 E. Edna Place, Covina, California 91723 (“Waffle Pantry”) and the party desiring to use Waffle Pantry Products as set forth herein (“End-User”). Waffle Pantry and End-User are also referred to individually as a “Party” or collectively as the “Parties”.
Whereas, Waffle Pantry is engaged as the formulator and/or manufacturer and/or distributor of certain Products (as defined below).
Whereas, End-User desires to purchase and use Waffle Pantry Products in its food service operation/restaurant establishment or for individual home consumption.
Now Therefore, the Parties agree to the following:
SECTION 1
DEFINITIONS
Section 1.1 Definitions
In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:
| “Account” | An account established with Waffle Pantry by selecting “End User” on the account establishment page of Waffle Pantry’s web presence. |
| “Affiliate” |
of a Party means any entity (i) in which more than fifty percent (50%) of the voting equity interests are now or hereafter owned or controlled, directly or indirectly, by a Party, (ii) which now or hereafter owns or controls, directly or indirectly, more than fifty percent (50%) of the voting equity interests of a Party, or (iii) in which more than fifty percent (50%) of the voting equity interests are now or hereafter owned or controlled, directly or indirectly, by an entity identified in the preceding clause (i) or (ii). |
| “Business Day” | means a day (other than a Saturday, a Sunday or a public holiday) on which banks are open for business in the locale of the End-User; |
| “Confidential Information” | has the meaning ascribed thereto in Section 7(1); |
| “Effective Date” |
means the date End User has established an Account on the account establishment page of Waffle Pantry’s web presence and first placed an order with Waffle Pantry for a Product or Products through the Waffle Panty web presence. |
| “Group Waffle Pantry” | means any Affiliate of Waffle Pantry, holding company of Waffle Pantry, any subsidiary of Waffle Pantry and any subsidiary of any holding company of Waffle Pantry; |
| “Intellectual Property Rights" |
means all (if any) patents, trademarks (including the Trademarks and any goodwill), service marks, registered designs, application for any of the foregoing, copyright, design rights, know-how, confidential information, trade and business names and any other similar protected rights in any country; |
| “Invoice Value” | means the sums invoiced by Waffle Pantry to End-User at “checkout” on the Waffle Pantry web presence in respect of any Products; |
| “Order” |
means a written purchase order placed by End-User to Waffle Pantry for the purchase of the Products (such Order being processed at “checkout”) on Waffle Pantry’s web presence; |
| “Products” | means the products listed on Waffle Pantry’s web presence which End-User is authorized to purchase through establishment of an Account and completion of Orders on Waffle Pantry’s web presence; each of which incorporates the terms and provisions of this Agreement; |
| “Recalled Products” |
means the Products, if any, recalled by Waffle Pantry pursuant to Section 6.2 of the Agreement; |
| “Trademarks” | means the trademarks, trade names, brands, logotypes and other distinctive marks of Waffle Pantry or its Affiliates. |
SECTION 2
THE END-USER
Section 1.1 Definitions
In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:
| “Account” | An account established with Waffle Pantry by selecting “End User” on the account establishment page of Waffle Pantry’s web presence. |
| “Affiliate” |
of a Party means any entity (i) in which more than fifty percent (50%) of the voting equity interests are now or hereafter owned or controlled, directly or indirectly, by a Party, (ii) which now or hereafter owns or controls, directly or indirectly, more than fifty percent (50%) of the voting equity interests of a Party, or (iii) in which more than fifty percent (50%) of the voting equity interests are now or hereafter owned or controlled, directly or indirectly, by an entity identified in the preceding clause (i) or (ii). |
| “Business Day” | means a day (other than a Saturday, a Sunday or a public holiday) on which banks are open for business in the locale of the End-User; |
| “Confidential Information” | has the meaning ascribed thereto in Section 7(1); |
| “Effective Date” |
means the date End User has established an Account on the account establishment page of Waffle Pantry’s web presence and first placed an order with Waffle Pantry for a Product or Products through the Waffle Panty web presence. |
| “Group Waffle Pantry” | means any Affiliate of Waffle Pantry, holding company of Waffle Pantry, any subsidiary of Waffle Pantry and any subsidiary of any holding company of Waffle Pantry; |
| “Intellectual Property Rights" |
means all (if any) patents, trademarks (including the Trademarks and any goodwill), service marks, registered designs, application for any of the foregoing, copyright, design rights, know-how, confidential information, trade and business names and any other similar protected rights in any country; |
| “Invoice Value” | means the sums invoiced by Waffle Pantry to End-User at “checkout” on the Waffle Pantry web presence in respect of any Products; |
| “Order” |
means a written purchase order placed by End-User to Waffle Pantry for the purchase of the Products (such Order being processed at “checkout”) on Waffle Pantry’s web presence; |
| “Products” | means the products listed on Waffle Pantry’s web presence which End-User is authorized to purchase through establishment of an Account and completion of Orders on Waffle Pantry’s web presence; each of which incorporates the terms and provisions of this Agreement; |
| “Recalled Products” |
means the Products, if any, recalled by Waffle Pantry pursuant to Section 6.2 of the Agreement; |
| “Trademarks” | means the trademarks, trade names, brands, logotypes and other distinctive marks of Waffle Pantry or its Affiliates. |
SECTION 2
THE END-USER
Section 2.1 Status of End-User
(1) End-User is (i) an individual consumer or (ii) the operator of a restaurant, commercial kitchen, other retail food service operation, or individual specialty food store which is not engaged in the commercial distribution of food products other than being a single commercial consumer thereof.
(2) Except as Waffle Pantry may authorize in writing, End-User shall not distribute, sell or otherwise deal with any of the Products.
(3) Nothing in this Agreement shall entitle End-User to any priority of supply in relation to the Products as against Waffle Pantry’s other resellers, distributors or customers.
Section 2.2 Duties and responsibilities of End-User
(1) End-User will perform its obligations hereunder in accordance with this Agreement.
(2) End-User shall not, either directly, indirectly or through any agent:
- Except as an individual specialty food store selling products into its local geographic area from a single storefront, engage in, or engage any other third parties in, the resale of the Products without the prior written consent of Waffle Pantry. For clarity, this also applies to End-User’s Affiliates. End-User will cause all relevant provisions of this Agreement to be complied with by such third parties or Affiliates. End-User will remain fully responsible to Waffle Pantry for the fulfilment of the provisions of this Agreement by such third parties or Affiliates as well as for the activities of such third parties or Affiliates;
- offer for sale, distribute, sell or otherwise deal with any of the Products for any purposes other than as intended by this Agreement; and/or
- obtain the Products for retail sale from any person, firm or company other than Waffle Pantry.
- for a period commencing on the date hereof and ending on the fifth (5th) anniversary of the last date engaged in a Transaction hereunder (the “Restricted Period”), it will not, and will not cause its Affiliates to, directly or indirectly, through or in association with any other person (whether as an officer, director, employee, partner, consultant, holder of equity or debt, lender, or in any other manner or capacity) participate in or in any manner engage with any business that is similar to or otherwise competitive with the business of Waffle Pantry, replicate or copy the formulation of the Products (through use of ingredients incorporated into the Products or other ingredients intended to copy or mimic the Products), or call on, solicit or service, engage or contract with or take any action, which could in any way interfere with, impair, subvert, disrupt, or alter the relationship, contractual or otherwise, between Waffle Pantry and any current or prospective customer, supplier, distributor, service provider, employee, independent sales agents or other similar business relation of Waffle Pantry, or divert or take away the business or patronage (with respect to the Products) of any of the clients, customers or accounts, or prospective clients, customers or accounts, of Waffle Pantry, or (D) attempt to do any of the foregoing, either for End-User’s own purposes or for any other third party.
(3) End-User shall pay all costs and expenses incurred on a full indemnity basis for retrieval of any Products or goods offered for sale, distributed, sold or otherwise dealt with in breach of Sections 2.2(2) (including all costs and expenses charged by any and all persons engaged in any retrieval exercise). A certificate issued by the principal officer of Waffle Pantry as to the amount or amounts incurred in respect of such retrieval exercise shall be conclusive and binding on End-User in the absence of manifest error.
Section 2.3 Investigations by Waffle Pantry
(1) In the event that Waffle Pantry shall, at its discretion, deem it necessary to conduct or carry out any investigative actions in respect of any breach or suspected breach of Section 2.2, End-User shall, procure all necessary person(s) or bodies (corporate or unincorporated) to give access to Waffle Pantry and furnish to Waffle Pantry documents and other information which relate directly or indirectly to such investigative actions and render such other cooperative actions or assistance as Waffle Pantry shall reasonably require.
(2) All investigative reports and findings as well as the quantity of and information on the Products offered for sale, distributed, sold or otherwise dealt with in breach of Section 2.2 as certified by Waffle Pantry shall be conclusively binding on End-User. All costs and expenses incurred by Waffle Pantry in relation to all investigative actions shall be borne by End-User on a full indemnity basis and a certificate issued by the principal officer of Waffle Pantry as to the amount or amounts incurred shall be conclusive and binding on End-User in the absence of manifest error.
SECTION 3
DURATION OF AGREEMENT
Except as provided below as to continuing obligations, this Agreement shall be effective from the Effective Date to the date End-User last uses or consumes Products purchased from Waffle Pantry (both days inclusive). Notwithstanding the foregoing, provisions which by their nature should survive termination of this Agreement, including those of Section 2.2, shall survive the termination of this Agreement.
SECTION 4
PRICING AND PAYMENT
Section 4.1 Price of the Products
(1) End-User shall buy from Waffle Pantry the Products at the prices set out on Waffle Pantry’s web presence after End-User accesses its Account thereon.
(2) All price changes and the effective date of the same shall be at the sole and absolute discretion of Waffle Pantry.
Section 4.2 Payment
(1) End-User shall pay the price, including taxes and shipment, reflected on the “checkout” on the Waffle Pantry web presence as the Invoice Value in respect of the Products.
(2) All payments shall be made by End-User in United States Dollars by the method selected by End-User while processing a “checkout” on the Waffle Pantry web presence.
(3) All bank charges and other fees for the payment of the Products shall be borne and paid by End-User.
(4) The Products are sold on a non-returnable basis. Return of Products shall only be acceptable in the event the Products are recalled by Waffle Pantry pursuant to Section 7.2.
SECTION 5
SUPPLY OF PRODUCTS
Section 5.1 The Order
(1) Each Order for the Products as made by End-User shall constitute a separate contract for which these terms and conditions apply. End-User shall, in respect of each Order, be responsible for ensuring the accuracy of the Order;
(2) Upon receipt of an Order from End-User and its acceptance by Waffle Pantry, Waffle Pantry shall as soon as reasonably practicable inform End-User of Waffle Pantry’s estimated delivery date for the shipment. Waffle Pantry shall use all reasonable endeavors to meet the delivery date, but time of delivery shall not be of the essence and accordingly Waffle Pantry shall have no liability to End-User if, notwithstanding such endeavors, there is any delay in delivery.
Section 5.2 Delivery
(1) Waffle Pantry shall package the Products for delivery to End-User in accordance with the customary practices of Waffle Pantry.
(2) No claim from End-User in respect of any delivery of the Products for material defect or otherwise shall be considered by Waffle Pantry unless such claim is notified to Waffle Pantry within three (3) Business Days from the date of receipt by End-User.
Section 5.3 Passing of title and risk
The title to the Products and their risk of loss shall not pass to End-User upon Waffle Pantry shipping the same.
Section 5.4 Storage
End-User shall maintain suitable premises for the storage and handling of the Products, and shall properly store and handle the Products in accordance with the guidance provided by Waffle Pantry.
SECTION 6
PRODUCT RECALLS
Section 6.1 Recalling Products
(1) Waffle Pantry shall be entitled to recall any Products or batches of Products for such reasons and in such circumstances as it deems necessary (the “Recalled Products”).
(2) In such event, End-User shall be entitled to be paid the Invoice Value of the Recalled Products and the direct expenses incurred by End-User in relation to the recall upon End-User providing satisfactory documentary proof of such expenses (such as any amounts incurred for delivery, effecting the recall or insurance). End-User shall not be entitled to claim against Waffle Pantry any compensation for loss of profits, damages, loss of goodwill, consequential losses or any other similar loss in relation to or arising from the Recalled Products or the recall.
(3) Where the direct expenses in relation to the Recalled Products or the recall may be reclaimed from any person or governmental authority or regulatory authority, End-User shall immediately take all necessary steps to effect such a claim and all monies recovered therefrom shall be remitted to Waffle Pantry without any delay.
(4) The liability of Waffle Pantry to End-User in relation to the Recalled Products or the recall shall be limited in the manner as set out in this Section.
SECTION 7
INTELLECTUAL PROPERTY RIGHTS
(1) All Intellectual Property Rights in or relating to the Products are and will remain the property of Waffle Pantry and/or its Affiliates, and all right, title, interest and/or goodwill in the Trademarks arising from the use thereof by End-User will inure solely to the benefit of Waffle Pantry. Waffle Pantry grants to End-User a non-exclusive, non-transferable, non-assignable Nothing in this Agreement will be construed as a grant, assignment or transfer of any Intellectual Property Rights with respect to the Products or any of the Intellectual Property Rights therein or relating thereto.
(2) Products will always be marketed under their original Trademarks, and in the original packages. The original Trademarks will always appear in all advertising and promotional material in a significant place and with a significant size. End-User may not, in its marketing, sales or other activities, present the Products in a manner which is misleading or deceiving about their origin. Such restrictions include, but are not limited to, making it sufficiently clear that the Products are produced by Waffle Pantry and/or its Affiliates. End-User will not (i) remove or change any trademark, trade name, sign or other mark on any Product, or its packing or labelling, or (ii) make any alterations in the labelling, packaging, structure, contents or design or similar of any Product, or (iii) repackage (smaller or larger) any Product, without having expressly received the prior written approval of Waffle Pantry.
(3) If End-User becomes aware of any product or system or of any other action that may infringe or misappropriate the Intellectual Property Rights relating to the Products or the Trademarks, it will promptly notify Waffle Pantry in writing.
(4) End-User’s right to use the Trademarks of Waffle Pantry or its Affiliates is limited to the term of this Agreement. End-User will not use, or authorize or assist any other person to use, any of the Trademarks except as strictly permitted by this Agreement. Further, End-User has no right to use or register any trademark, product name or trade name (including domain names) which are or may be confusingly similar to, Waffle Pantry’s or any Affiliate’s trademarks, product names, trade names or domain names (including the Trademarks). These terms and conditions grant End-User no rights to use Trademarks that are not related to the Products.
(5) End-User expressly undertakes not to reverse-engineer, modify, recreate, replicate or generate any of the Products or manufacture, produce and supply products with similar or exactly the same formulas, recipes and other proprietary information as used in the Products. End-User will not circumvent Waffle Pantry to establish direct sales opportunities with Waffle Patry’s ingredient suppliers. End-User will not reformulate, repack or resell the Products in any format without the prior express written approval of Waffle Pantry. Where End-user is an individual specialty food store selling products into its local geographic area from a single storefront, End-User will, to the extent feasible, ensure that purchasers of the Products undertake not to reformulate, repack or resell the Products in any format without the prior express written approval of Waffle Pantry.
SECTION 8
MISCELLANEOUS
Section 8.1 Nature of Agreement
(1) Waffle Pantry shall be entitled to perform any of the obligations undertaken by it and to exercise any of the rights granted to it under these terms and conditions through any other company which at the relevant time is in Group Waffle Pantry.
(2) Nothing in these terms and conditions shall be construed as creating a partnership or any relationship of employer and employee or principal and agent between Waffle Pantry and End-User. End-User will buy the Products as an independent contractor.
Section 8.2 Liability
(1) End-User shall indemnify, defend and hold harmless Waffle Pantry, its Affiliates and their respective officers, directors, employees, consultants and agents and their respective successors, heirs and assigns (the “Indemnitees”), against any claim of liability, damage, loss or expenses (including reasonable attorney’s fees, expense of litigation and cost for enforcing this indemnity), incurred by or imposed upon the Indemnitees or any one of them in connection with (i) End-User’s breach or non-performance under these terms and conditions, (ii) any third party claims, suits, actions, demands or judgments to the extent arising from or attributable to the promotion, sale, lease or other disposition of Products by End-User, or (iii) the gross negligence or willful misconduct of End-User.
(2) Waffle Pantry’s sole and exclusive liability to End-User with respect to performance of its obligations hereunder will be limited to replacing any nonconforming Products (at Waffle Pantry’s risk and expense) or, at its option, refunding the price paid by End-User subject to End-User returning the nonconforming Products to Waffle Pantry at End-User’s risk and expense or (if an abatement of the price is agreed with End-User) refunding to End-User the appropriate part of the price paid. The express terms of this Section 15.2 are in lieu of all other warranties, expressed or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement, all of which are hereby excluded to the fullest extent permitted by law.
Section 8.3 Limitation of Liability
Waffle Pantry will not be liable to pay End-User damages or otherwise reimburse End-User in an amount that exceeds twenty-five percent (25%) of the amount paid by End-User to Waffle Pantry under these terms and conditions during the twelve (12) months preceding the date from when the claim for liability was made.
Section 8.4 Consequential Damages
With the exception of liability of Reseller for a breach of obligations under Section 7(5) above, neither Party shall be liable to the other for any indirect or consequential damages of any kind such as loss of profits, revenue, business, reputation, goodwill, or anticipated savings arising out of these terms and conditions and regardless of whether such Party will be advised, will have other reason to know, or in fact will know of the possibility of the foregoing.
Section 8.5 Force Majeure Events
(1) The Parties will be relieved from liability for a failure to perform any obligation under these terms and conditions during such period and to the extent that the due performance thereof by either of the Parties is prevented or significantly aggravated by reason of any circumstance beyond the reasonable control of the Parties, such as war, acts of terrorism, fire, flood, earthquake or other earth movement, epidemics/pandemics, labor disputes at third parties, blockades, major accidents, changes in laws and regulations or in the interpretation thereof, acts of governmental authorities, or other circumstances of similar importance. Despite the above, the force majeure event will not excuse the obligations of End-User to make payments to Waffle Pantry for Product actually sold or purchased by End-User.
(2) Both Parties will make all reasonable efforts to prevent and reduce the effect of any non-performance of these terms and conditions caused by the force majeure event.
(3) If the force majeure condition continues beyond ninety (90) days after its occurrence, the Party not suffering from the effect of the condition may immediately terminate any Order by written notice to the Party which is delayed or unable to perform its obligations and, if such Party is Waffle Pantry, refund End-User the payment made for the Order.
Section 8.6 Modification
No addition, modification, variation, amendment, future representation, promise or agreement in connection with the subject matter hereof shall be valid unless made in writing and signed by both of the Parties.
Section 8.7 Time is of the essence
Save as otherwise herein provided, time shall be of the essence in these terms and conditions.
Section 8.8 Severability
Any term, condition, stipulation, provisions, covenant or undertaking of these terms and conditions which is found to be illegal, prohibited or unenforceable shall be ineffective to the extent of such illegality, voidness, prohibition or unenforceability without invalidating the remaining provisions hereof and any such illegality, voidness, prohibition or unenforceability shall not invalidate or render illegal, void or unenforceable any such term, condition, stipulation, provision, covenant or undertaking.
Section 8.9 Governing Law
These terms and conditions shall be construed in accordance with and governed by the laws of the State of California without reference to its conflict of laws or principles. The Parties agree to submit to the non-exclusive jurisdiction of the courts of the State of California.
Section 8.10 Dispute Resolution
In the event of any controversy or claim arising out of or relating to these terms and conditions, or a breach thereof, the Parties hereto will first attempt to settle the dispute by mediation, administered by the International Centre for Dispute Resolution in accordance with its International Mediation Rules. If settlement is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim will be settled by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The arbitral tribunal will be composed of one arbitrator. The seat of arbitration will be Los Angeles, California and the language to be used in the arbitral proceedings will be English. The arbitral tribunal shall award attorney’s fees and costs to the prevailing party. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
These terms and conditions represent the entire understanding between the Parties, and supersedes all other agreements, express or implied, between the Parties concerning the subject matter hereof, and will not be subject to any change or modification except by the execution of a written instrument duly signed by the Parties hereto.
