The ICEE Company FROZEN CARBONATED BEVERAGE (FCB) MACHINE AGREEMENT - UPCHARGE PROGRAM AGREEMENT, dated) ________________________made by and between The ICEE Company, a Delaware corporation ("ICEE") and _______________________________________________ ("Customer"). Customer has requested ICEE to provide frozen carbonated beverage machine(s) ("Machines"). Upon delivery to Customer of the Machine(s), the following is hereby agreed to by and between ICEE and Customer. 1. Term. The term shall be for a period of Five (5) years from the installation date of each machine as set forth in Schedule “A”. Customer agrees to the ICEE Company being their Sole FCB provider during duration of this agreement. 2. Purchases / Payments. Customer agrees to purchase all FCB syrup, cups, lids and straws only from ICEE or authorized distributor during the term of this Agreement. Customer agrees to purchase the syrup and supplies at the prices set forth on Schedule “B”. Prices are subject to change, and such notice will be provided in writing, thirty (30) days in advance. All payments required under this Agreement shall be made to The ICEE Company at Dept LA 20178, Pasadena, CA 91185-1078. Payment for all syrup and supplies delivered shall be COD pending completion and approval of a credit application. 3. Taxes. Customer shall pay all sales, use, property, excise and other taxes related to the Machines or other services provided by ICEE to Customer. 4. Risk of Loss. The Machines, until returned to ICEE, shall be held at the sole risk of Customer for injury, damage (including damage to third parties and their property) loss, theft or destruction. 5. Machines. The ownership of the Machines shall remain in ICEE, and is and shall remain personal property. The Machines are to be used only to sell ICEE drinks and use only syrup approved by ICEE. Customer shall at its cost, prepare its premises for installation of the Machines. ICEE, at its sole cost, shall during the Term of the Agreement provide service, make repairs and supply replacement parts. No representation as to the machine or any other matter by ICEE shall in any way affect Customer’s duty to perform its obligations as set forth in this Agreement. In no event shall ICEE be liable for any indirect or consequential damages. Upon the termination of the Term, ICEE shall be entitled to remove the Machines. Any repair or restoration of Customer's premise shall be the responsibility of Customer. 6. Signage. In its sole and exclusive discretion, Customer may utilize ICEE Point-of-sale and merchandising displays which may include window signs, hanging mobiles, or store front banners. Customer agrees to display the FCB machine in a prominent place to aid in the promotion and sales of ICEE products, and to allow ICEE to install point-of-sale material to aid in selling product. 7. Termination Charges. Customer shall have the right to cancel this Agreement prior to the termination date set on Schedule “A” with respect to any particular Machine by giving ICEE at least thirty (30) days written notice of such termination. Such notice shall (1) specify the date of termination, (2) specify the serial number and location of any Machine covered by the notice, and (3 be accompanied by a payment of $500.00 per Machine plus $100.00 per month for each month remaining of the Term of the Agreement for each Machine. All termination charges must be paid within thirty (30) days of termination of the Agreement. Such payment is for liquidated damages for early termination and not a penalty. In the event of default (see Paragraph 8) the termination charges above shall apply. 8. Default. Events of Default, Remedies, Expenses. In the event that: (1) Customer shall default in the payment of any invoice for FCB syrup or supplies, or (2) If during the term of this Agreement, Customer installs equipment for any competing products (i.e., other FCB or frozen slush products), without the express written consent of ICEE, or (3) Customer shall default in the performance of
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Volume 26 - Issue 2 / Roller Skating Business Magazine / 63