The following is the terms of the agreement between Tastymas and you of goods or services ordered through Tastymas’ website (www.tastymas.shop) (“Site”). If you do not agree to these terms, you will not be able to purchase anything through the Site, so please review these terms carefully. By visiting the Site or sending e-mails to Tastymas, you consent to receive communications from Tastymas electronically. You agree that all agreements, notices, disclosures and other communications that Tastymas provides to you electronically satisfy any legal requirement that such communications be in writing.
Subject to the terms and conditions of this Distribution Agreement (“Agreement”), Tastymas hereby grants you (“RETAILER”) a limited, non-exclusive, personal, non-sublicensable, and non-transferable license under Tastymas’s intellectual property rights while RETAILER is actively engaging in distribution of Tastymas’ and its affiliates’ co-branded food products, vending machines, vending accessories (“Products”) as follows:
Between the parties, Tastymas’ intellectual properties, including but not limited to Tastymas’ logo and its affiliate’s logo and related artwork (“IP”) are owned solely and exclusively by Tastymas and its affiliates. RETAILER acknowledges the value of the goodwill associated with the IP and agrees that any goodwill from RETAILER’s use of the IP exclusively inures to the benefit of and belongs to Tastymas and its affiliates. RETAILER has no rights of any kind in the IP except to the extent granted by this Agreement.
RETAILER agrees that it will not do anything inconsistent with Tastymas and its affiliates’ ownership of the IP, such as filing any trademark application for an identical or similar logo anywhere in the world, now or in the future. RETAILER may not use the IP in connection with anything that is unlawful or encourages unlawful conduct or in any manner that may be deemed in poor taste. Tastymas and its affiliates reserve all rights to control, commence, prosecute, or defend any action or claim concerning the IP. RETAILER will cooperate with Tastymas and its affiliates to maintain their ownership of the IP and RETAILER agrees to promptly provide notice of any claims relating to IP.
- Use IP in connection with its vending machine display. RETAILER acknowledges the importance of keeping a uniform look for Tastymas branded vending machine. Therefore, RETAILER agrees not to make any modification to the Tastymas vending machine’s look and feel, unless specifically approved by Tastymas in writing.
- Use IP in marketing literatures and display or other customary marketing communication.
No other Permitted Uses
RETAILER agrees that it will use IP only to advance its distribution of Tastymas’ Products via vending machine in the United States. Further, RETAILER must use IP without any alteration, substitution, or modification whatsoever. All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied are granted, by implication, estoppel, or otherwise.
Standard of Uses
RETAILER is required to use the highest standard of care to maintain cleanliness of its vending machines where Tastymas’ IP is associated with. Repeated violation of health code, whether cited by a government authority or not, is a ground for termination of this Agreement in Tastymas’ sole discretion.
In order to maintain Tastymas’ goodwill in the vending industry, RETAILER is required not to have stock-out situation on any ONE item more than twice a month.
Term and Termination
This Agreement will become effective on the date RETAILER electronically accepts the terms of this Agreement via www.tastymas.shop website (the “Effective Date”). Unless terminated sooner pursuant to its terms, this Agreement will have an initial term of one year from the Effective Date and will automatically renew for successive one-year terms.
This Agreement and all licenses granted herein will terminate for cause immediately and automatically, without notice from Tastymas:
- At the end of its one year term, if either party provides written notice to the other stating that it does not wish to renew at least 60 days before the end of such term;
- If RETAILER fails to comply with any term of this Agreement and fails to cure such breach within 30 days after becoming aware of or receiving notice of such breach;
- If RETAILER, at any time during the term of this Agreement, take any action inconsistent with Tastymas’ sole legal and beneficial ownership of its IP.
- If RETAILER becomes insolvent, fails to pay its debts when due, or files or has filed against it a petition in bankruptcy.
PURCHASE AND DISTRIBUTION OF PRODUCTS
RETAILER shall order Products by submitting a purchase order (“Order”) via the Site. Tastymas will endeavor to fulfil the Order but cannot guarantee fulfillment due to manufacturer’s availability. Tastymas also reserves its right to refuse fulfilling any Order at its sole discretion.
Except noted otherwise, the list price displayed for Products on the Site is inclusive of shipping charge. RETAILER’s credit card is charged at the time the Order is placed online.
Orders placed on Gelato 4 cases, will be shipped every Monday only. Orders placed on Gelato 35 cases or more, will be shipped only every Friday only. Shipping is limited to the Continental United States, (Alaska, Hawaii, Guam, Puerto Rico, and US Virgin Islands excluded).
Due to the perishable nature of the Products, failed delivery (e.g., wrong address, no one to receive product at the destination) will be returned to the delivery depot. Tastymas will not issue any refund associated with failed delivery through no fault of Tastymas.
Tastymas shall not be liable for any delay or failure to perform due to any cause beyond its control. Causes include but are not limited to strikes, acts of God, acts of the other party, reasonably unforeseeable interruptions of transportation or inability to obtain necessary labor, materials or facilities, or default of any supplier.
No refund unless defective upon delivery
RETAILER shall inspect and gives written notice of non-conformity to Tastymas within THREE (3) calendar days after receiving each shipment. All non-conformity claims made by RETAILER is subject to Tastymas’ sole review and it has the right to first inspect any quantity of the Products involved before being required to take any action with respect thereto. If such review and testing by Tastymas confirms that a claimed quantity of the Product did not as of the date of shipment meet its required specifications due to fault or negligence of the manufacturer and, therefore, is not suitable for sale, then RETAILER shall deliver such quantity involved as Tastymas shall direct in writing and at Tastymas’ expense. Tastymas shall, at its sole discretion, replace such quantity of Products with conforming Products free of charge, or grant RETAILER full credit for the amount involved, and this shall be RETAILER’s sole and exclusive remedy for such Product’s nonconformity.
Due to the perishable nature of the Products, Tastymas DOES NOT accept any returns or exchanges, unless there is a defect upon delivery and RETAILER complies with the above inspection procedures.
RETAILER shall provide Tastymas a valid sales tax exemption certificate acceptable to the applicable state or local taxing authorities. RETAILER shall be responsible for payments of state and local sales and use taxes, as applicable, with respect to transactions under this Agreement.
Either party's failure to enforce any of the provisions of this terms and conditions or any purchase order, or to exercise any option, shall not be construed as a waiver of such provisions, rights, or options, or affect the validity of this Agreement or any purchase order.
This Agreement will not be construed as creating any agency, partnership, join venture, fiduciary duty, or any other form of legal association between Tastymas and RETAILER.
RETAILER will comply with all applicable laws and regulations. RETAILER will defend and hold Tastymas harmless from any expense, claim, liability, damage resulting from RETAILER’s performance, breach of this Agreement, or violation of any such law or regulation.
RETAILER agrees to provide its vending machine venues to be listed on Tastymas’ master location registry upon request by Tastymas.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE PROVIDED BY MANUFACTURE IN WRITING, TASTYMAS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABLILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TASTYMAS SHALLNOT BE LIABLE TO RETAILER FOR ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES UNDER, ARISING OUT OF, DUE TO OR IN CONNECTION WITH ITS PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT OR ANY OF ITS OBLIGATIONS HEREIN, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY OR OTHERWISE.
Both parties shall submit to arbitration in the event of an irreconcilable dispute prior to seeking relief in a court of law. If arbitration fails to provide an agreeable resolution to the dispute, either equitable relief or damage at law or both may be sought for breaches or threatened breaches of this agreement. The prevailing party will be entitled to recover reasonable attorney fees and all court costs. Parties consent to the personal jurisdiction of and exclusive venue in the state and federal courts within the Central District of California and shall be interrupted in accordance within the laws of the State of California.
Both parties shall keep business information received from the other parties confidential during the term of this Agreement and three years after the termination. Confidential information does not include business information which (i) is known to the recipient prior to disclosure, (ii) is independently developed by the recipient, (iii) becomes publicly available; or (iv) is received rightfully from a third party and without obligation of confidentiality.
During the term of this Agreement, RETAILER shall keep in force adequate commercial general liability insurance, with coverage for bodily and personal injury, death, and property damage, with a per occurrence limit of at least $1,000,000 and an aggregate limit of at least $2,000,000.