MISSION MAKER SALES Agreement
This MISSION
MAKER SALES Agreement (the “agreement”), is made and entered into as of _________________, 20___ (“Effective
Date”), by and between MISSION OF MARY, LLC, a florida LIMITED LIABILITY COMPANY d/b/a MISSION OF MARY (the
“COMPANY”), and __________________________ (“Mission
Maker”). The Company and Mission Maker are herein sometimes separately referred
to as “party” and together referred to as the “parties.”
Recitals
WHEREAS, the Company
operates a business known as “Mission of Mary” (the “Business”) which markets, sells
and distributes the Products by and through its website, trunk shows, and
conventions;
WHEREAS, a portion of the proceeds generated from the sales of the
Business are donated to certain missionaries and mission groups designated by
the Company, Mission Maker, or Customer;
WHEREAS, Mission Maker desires to market, sell and distribute the
Products and to further the general mission and purpose of the Business by and
through the Services; and
Now, Therefore, for and in consideration of the mutual covenants and agreements
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties hereby agree as
follows:
1. Recitals Approved. The foregoing recitals are true and correct
and are incorporated by reference into
and made a part of this Agreement.
2. Term. The term of this Agreement shall be from the
Effective Date, which term shall renew automatically until Termination (the
“Term”).
3. Services. Subject to the provisions of this Agreement,
the Company hereby grants to Mission Maker the non-exclusive right and license,
for the Term of this Agreement, to solicit, market, and sell the Products in
accordance with the Policies & Procedures (the “Services”). Mission Maker shall further market, promote,
solicit and sell the Products by and through (i) social media, (ii) the Business
webpage designated to Mission Maker upon the execution of this Agreement, (iii)
the personal website of Mission Maker, if approved in advance by Company, and (iv)
sales events (e.g., Mission of Mary Trunk Shows) and community events. Products may only be sold to end Customers
and the sale of Products for purposes of resale or distribution is strictly
prohibited. As a part of the Services, Mission
Maker shall inform his or her Customers of the applicable Return Policy and provide
assistance with any return completed pursuant thereto.
4. Marketing and Sales Responsibility. Subject to the terms and conditions of this
Agreement, and those provided in that certain Mission of Mary Contractor
Policies & Procedures, which are incorporated by this reference as if fully
stated herein, (the “Policies and Procedures”) Mission Maker acknowledges that
he or she is responsible for the means and methods by which the Services are performed,
and shall have and maintain control of same at all times during the Term. As a condition of this Agreement, Mission
Maker shall purchase a non-commissionable Starter Kit, as more particularly
described in the Policies & Procedures.
Mission Maker is not permitted to provide any representations,
warranties, or claims with respect to the Products or Services without the
express consent of Company or as otherwise provided in the Policies and
Procedures. Mission Maker shall further perform
the Services in a commercially reasonable manner, including, but not limited
to, performing such solicitation, promotion, marketing and sales of the
Products with honesty, integrity, and respect so as to further and maintain the
goals and goodwill of the Business. Mission
Maker understands that all transactions, including cash transactions, shall be
completed using the Company’s online order system in accordance with the
Policies and Procedures, and that the appropriate sales tax shall be charged,
collected and remitted to the applicable taxing authority in accordance with
applicable law. Mission Maker acknowledges receipt of the Policies and
Procedures and agrees to abide by the terms and conditions stated therein
during the Term of this Agreement.
Mission Maker’s failure to comply with the Policies and Procedures shall
be deemed a material breach of this Agreement.
5. Commission Compensation. Subject to
the terms and conditions of this Agreement, Mission Maker shall be entitled to
receive compensation for the sales of the Products generated directly by
Mission Maker (the “Commission”), following expiration of the applicable Return
Policy Period, pursuant to and in accordance with the terms and conditions of
that certain Mission of Mary Commission Plan, attached hereto as Exhibit “A”,
(the “Commission Plan”). “Return Policy
Period” shall mean the period during which any Customer is entitled to return
the Products for a refund of the purchase price in accordance with the Return
Policy. Mission Maker acknowledges that
any models, examples or projections provided in the Commission Plan, Policies
& Procedures, or otherwise, are for purposes of demonstration only and do
not constitute any guarantee on the part of Company as to the Commissions which
may become payable to Mission Maker during the Term. Mission Maker shall be solely responsible for
payment of all expenses necessary to perform the Services, less and except the
Starter Kit, including, but not limited to, travel, food, lodging, income
taxes, self-employment taxes, payroll taxes, business taxes, licenses, and
administrative costs. Further, Mission
Maker shall not be entitled to any fringe benefits, or other compensation,
other than the Commission payable in accordance with the Commission Plan, and
acknowledges that such Commission is the sole and exclusive compensation to be
remitted by Company in consideration of the Services, and the covenants,
warranties, and representations provided by Mission Maker herein. The Company reserves the continuing right to
amend the Commission Plan from time to time, and Mission Maker hereby waives
any right to object to such amendment.
6. Use of
Mission of Mary Intellectual Property.
Mission Maker acknowledges that, upon the complete execution hereof,
Company has granted Mission Maker a limited, non-exclusive license to use its
trademarks, service marks, trade names, patents and copyrighted materials
(“Mission of Mary Intellectual Property”), all of which is owned solely by
Company. Mission Maker may utilize
Mission of Mary Intellectual Property only: (i) during the Term, (ii) in
the performance of the Services in accordance with this Agreement, (iii) in
accordance with the Policies & Procedures, (iv) after obtaining written
permission from Company prior to use, and (v) where the Mission of Mary
Intellectual Property appears on materials distributed by Company for use by Mission
Makers, contractors or employees of the Company. Mission maker shall use written, recorded or
other promotional or advertising materials that have been produced, distributed
and approved in writing by Company. Any
other promotional or advertising materials, means, or methods will be used in
accordance with the Policies & Procedures.
All rights and licenses granted in or under this Agreement shall
terminate automatically upon Termination.
7. Confidentiality.
During the Term, Mission Maker may acquire and gain access to confidential or
proprietary information about Company, the Business, and the Customers,
including, but not limited to, Mission of Mary Intellectual Property, trade
secrets, methods, manufacturing processes, technical know-how, development, drawings,
designs, products, models, passwords, access to files, records, financial
information, computer software programs, discs, data, coding, agreements and/or
contracts between Company and its contractors, employees, suppliers, vendors
and Customers, supplier contacts, Customer lists, Customer contacts, Customer
mailing lists, marketing plans and materials, marketing and/or creative
policies and ideas, advertising and public relations campaigns, media plans and
budgets, practices, concepts, strategies, and methods of operations, financial
or business projections of Company and/or the Business, employee and contractor
information, and information about, received from, or exchanged with designers,
suppliers, vendors, Customers and other third parties with whom Company does
business. The foregoing shall be collectively referred to as “Confidential
Information.” Confidential Information shall also include any information
provided by Company, or any officer, manager, agent, employee or contractor of Company,
which is marked as “confidential”, “proprietary” or “restricted”, which is protected
by password, or which under all of the circumstances should reasonably be
considered confidential. Mission Maker
is aware that the Confidential Information is not readily available to the
public and accordingly, Mission Maker agrees that Mission Maker will not at any
time (whether during the Term or following Termination), disclose to anyone
(other than Mission Maker’s legal counsel in the course of a dispute arising
from the alleged disclosure of Confidential Information or as required by law)
any Confidential Information, or utilize such Confidential Information for Mission
Maker’s own benefit, or for the benefit of any third party. Mission Maker
agrees that the foregoing restrictions shall apply whether or not any such
information is marked “confidential.” The term “Confidential Information” does
not include information which (i) becomes generally available to the public
other than by breach of this provision, (ii) Mission Maker learns from a third
party who is not under an obligation of confidence to Company or a Customer of Company,
or (iii) Mission Maker develops without the aid of Confidential Information. Upon Company’s request, Mission Maker agrees
to return to all Confidential Information to Company and to cease any further
use of the Confidential Information.
This paragraph shall expressly survive Termination.
8. Company Material. Mission Maker
further agrees that all brochures, promotional and advertising material, data,
coding and technology, memoranda, disks, files, notes, drawings, designs, records,
documents, or other information, whether in electronic form or hard copy (and
all copies and reproductions thereof) (collectively, the “Material”) compiled
by Mission Maker during the Term or made available to Mission Maker during the
Term, and through performance of the Services, shall be the property of Company
and shall be delivered to Company upon Termination by either party. Except in
connection with the provision of the Services or performance of this Agreement,
Mission Maker agrees not to make or retain copies or excerpts of the Company Material. This paragraph shall expressly survive Termination.
9. Intellectual Property. During the
Term, Mission Maker will disclose to Company all ideas, inventions and business
plans developed by Mission Maker during such period which relate directly or
indirectly to the Business at the time so developed, including, without
limitation, any data, code, method, design, model, logo, slogan, advertising
campaign, marketing strategy, product or improvement which may be patentable or
copyrightable. Mission Maker agrees that all patents, licenses, copyrights,
trade names, trademarks, service marks, planning, marketing and/or creative
policies, advertising campaigns, public relations or public affairs campaigns,
promotional campaigns, media campaigns, and budgets, practices, codes, concepts,
strategies, and methods of operations, financial or business projections,
designs, logos, slogans and business plans developed or created by Mission
Maker in the course of Mission Maker’s provision of the Services hereunder,
either individually or in collaboration with others, will be deemed works for
hire and the sole and absolute property of Company. Mission Maker agrees that,
at Company’s request and expense, Mission Maker will take all steps necessary
to secure the rights thereto to Company by patent, copyright or otherwise. This paragraph shall expressly survive Termination.
10. Non-Solicitation and Non-Competition. Mission
Maker acknowledges (i) the highly competitive nature of the Business in which Company
competes, (ii) that this Agreement and the provision of Services by Mission
Maker places Mission Maker in a position of confidence and trust with the
Customers, contractors and employees of the Company, (iii) that the rendering
of the Services necessarily requires the disclosure to Mission Maker of Company’s
Confidential Information, and (iv) that Company conducts business within and
outside of the United States, and that Company would suffer irreparable harm if
Mission Maker furnished services to a competitor. During the Term, Mission
Maker will develop a knowledge of the Business, Products, including, but not
limited to, jewelry design, sales, and marketing strategy, Customer data and preferences,
and Company’s relationship with its Customers, suppliers, distributors, and
vendors, and will therefore be placed in Mission Maker’s hands in confidence
and trust. Mission Maker consequently agrees that it is a legitimate interest
of Company, and reasonable and necessary for the protection of the Confidential
Information, the Business, including the goodwill of the Business, which is
valuable to Company, that Mission Maker make the covenants contained herein.
Accordingly, Mission Maker agrees that during the Term, and for a period of two
(2) years following termination of this Agreement by either party, (“Restricted
Period”) Mission Maker shall not, as an individual, employee, consultant,
independent contractor, partner, shareholder, member, officer, or in
association with any other person, business or enterprise, except on behalf of Company,
directly or indirectly, and regardless of the reason for Termination:
(i)
attempt in any manner to solicit any “Customer” (as defined below), design,
sell, or furnish any “Company Products & Services” (as defined below), or
to persuade any Customer, manufacturer, distributor or vendor of the Business, to
cease or reduce the amount of business which any such Customer, manufacturer,
distributor or vender has customarily done or is reasonably expected to do with
Company or the Business, whether or not the relationship between Company and
such Customer was originally established in whole or in part through Mission
Maker’s efforts; or
(ii)
employ as an employee or retain as a contractor any person who is then, or at
any time during the Term was, an employee or contractor of Company, or persuade
or attempt to persuade any employee or contractor of Company to leave the
employ of, or otherwise terminate its relationship with, the Company or to
become employed as an employee or retained as a contractor by anyone other than
Company; or
(iii) render services for, or assist in any
way, any person or company that competes with the Business or provides Company
Products & Services; provided, however, that nothing contained herein shall
prohibit Mission Maker from making a passive investment in a public company, or
from holding five percent (5%) or less of the issued and outstanding voting
securities of any entity, provided such ownership does not result in Mission Maker
being obligated or required to devote any services or managerial efforts to
such company.
As
used in this paragraph, the term “Customer” shall mean (1) anyone who is or was
a Customer at any time during the Term; and (2) any prospective customer to whom
Company or Mission Maker solicited or made a presentation at any time during
the twelve month period immediately preceding Termination of this Agreement by
either party. As used in this paragraph, the term “Company Products &
Services” shall mean jewelry and accessory items which are similar to, or
related in concept or design, to the Products, and any future version of the Products
designed and sold by the Business, including without limitation jewelry,
accessories, apparel and related items, and all other products or accessories which flow therefrom by a
reasonable expansion of the Products then sold by Company, and all Business
activities and services which may be developed and offered by Company during
the Term. This paragraph shall expressly
survive Termination.
11. Extension of Non-Solicitation and
Non-Competition Period. If Mission Maker violates any of the provisions of
Paragraph 10, Mission Maker shall continue to be bound by the restrictions set
forth in such Paragraph, until a period of two (2) years has expired without
any violation of such provisions. This
paragraph shall expressly survive Termination.
12. Acknowledgment of Reasonableness. Mission
Maker and Company acknowledge that (i) the type and periods of restriction
imposed in the provisions of this Agreement are fair and reasonable and are
reasonably required in order to protect and maintain the proprietary interests
of Company described above, other legitimate business interests of Company and
the goodwill associated with the Business, and (ii) that the time, scope, and
other provisions of this Agreement have been specifically negotiated by
sophisticated parties. Mission Maker specifically acknowledges that being
restricted from soliciting and servicing Customers or otherwise working for or
assisting any competitors of Company as contemplated by this Agreement will not
prevent Mission Maker from being employed or earning a livelihood in the type
of business conducted by Mission Maker and Company. If any of the covenants
contained in this Agreement are held to be unenforceable in scope or duration,
the parties agree (i) such covenant shall be interpreted to extend only over
the maximum period of time or distance for which it may be enforceable and/or
over the maximum extent in all other respects as to which it may be enforceable,
all as determined by the Court making such determination and (ii) in its
reduced form, such covenant shall then be enforceable, but such reduced form of
covenant shall only apply with respect to the operation of such covenant in the
particular jurisdiction in or for which such adjudication is made. This paragraph shall expressly survive Termination.
13. Release. I hereby grant and assign to Company, and its
affiliates, members, partners, designees, agents, successors or assigns an
unrestricted, perpetual, worldwide, irrevocable, royalty-free, transferable,
sub-licensable and fully paid license to use, reuse, license, reproduce,
modify, adapt, publish, edit, translate, display, perform, distribute,
transmit, broadcast, communicate to the public and otherwise exhibit throughout
the world, create derivative works from, sublicense the same rights consistent
with the terms of this Agreement, and otherwise exploit and use (collective
“Use”) my name, including nicknames and social media handles, likeness, image,
photograph, biographical information, voice, persona, opinions, comments, and
in any and all media and by any means of transmission, distribution or
communication, whether now known or hereafter created, including by way of
example and not limitation, any television, radio, the Internet and online
forums, and in audio visual works, photographs, sound recordings, marketing and
public relations materials, publications and the like (collectively, “News
Media Materials”) for advertising, publicizing, marketing and promotion of the
Business. Mission Maker acknowledges
that the terms and conditions of this Agreement, including the Commission
payable hereunder, is sufficient consideration for the license and assignment
of the News Media Materials to Company and waives any and all rights to any
further consideration for Company’s use of same. Mission Maker further hereby waives any right
to inspect, approve or disprove of any form of News Media Materials, so long as
such News Media Materials do not otherwise violate applicable law. This paragraph shall expressly survive Termination.
14. Warranty and
Disclaimer. Company warrants that the
Products as and when delivered by Company shall be free from material
defects. Mission Maker’s sole and
exclusive remedy, for breach of this warranty shall be to return any defective
Product and receive a replacement of such Product or credit as described in the
Policies & Procedures. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ALL OTHER
WARRANTIES WITH RESPECT TO THE PRODUCTS, SERVICES, COMMISSION, TAX
CONSEQUENCES, BUSINESS OPPORTUNITY, MARKETING MATERIALS, BUSINESS SUPPLIES AND
ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING ANY WARRANTIES OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, NONINFRINGEMENT, ACCURACY OR COMPLETENESS OF CONTENT, RESULTS, LACK OF
NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, AND CORRESPONDENCE TO DESCRIPTION. This paragraph shall
expressly survive Termination.
15. Site Downtime. Each party hereto acknowledges that the
website for any Mission Maker may be subject to temporary shutdowns from time
to time for maintenance and/or due to causes beyond the Company or Mission
Maker’s reasonable control, and that neither party shall have any liability to
the other by reason of any such shutdowns, unless shutdown of the Mission
Maker’s website is due to the intentional misconduct or negligence of Mission
Maker.
16. Indemnification. Mission Maker shall indemnify and hold Company,
its officers, managers, members, employees, agents, successors, and assigns,
harmless from and against any and all losses, damages
or expenses of whatever form or nature, including reasonable attorneys’ fees and
other costs of legal defense, whether direct or indirect, for all proceedings,
trials, and appeals, that they, or any of them, may sustain or incur as a
result of any acts or omissions of Mission Maker or any of its directors, managers,
members, shareholders, officers, employees, or agents in connection with this
Agreement including, but not limited to, (i) breach or default of any of the
provisions of this Agreement, (ii) intentional wrongdoing, negligence or other
tortious conduct, (iii) representations or statements not specifically
authorized by the Company in this Agreement or
otherwise in writing, (iv) violation by Mission Maker, or any of its directors,
managers, members, shareholders, officers, employees, agents, servants or
contractors of any law, regulation, order, or agreement relating to arising
from the Mission Maker’s performance or non-performance of this Agreement, or
otherwise, and/or (v) a determination by a Court or agency that I am not an
independent contractor. This paragraph shall expressly survive Termination.
17. Status. Mission Maker’s status under this Agreement
is as an independent contractor. Compliance and performance by Mission maker
under this Agreement is subject solely to the exclusive direction and control
of Mission Maker. Nothing contained in this Agreement is intended to create a
partnership, joint venture, or other joint business relationship between Company
and Mission maker. Neither party shall have the right, power or authority under
this Agreement to create or incur any liability or other obligation that is
binding upon the other party or to which its property is or may become subject.
Without limiting the generality of the foregoing, except as otherwise expressly
authorized by the Company in writing, Mission maker shall have no right, power
or authority to incur or create any liability or other obligation on the part
of the Company in connection with this Agreement, except as otherwise
specifically authorized herein or in the Policies & Procedures. Mission
Maker shall be solely responsible for reporting the Commission payable
hereunder to the appropriate federal, state and local taxing authorities, and
shall further remit any income tax or other tax which may become due and
payable to such authorities. Mission
Maker agrees to complete and submit to the Company, and update as applicable,
Form W-9.
18. Termination. Either party may terminate this Agreement for
any reason or no reason by written notice delivered to the other party as
provided herein (“Termination”), and the Termination shall be deemed effective
upon dispatch of such written notice.
Thereafter, but in no event later than five (5) days following the
effective date of Termination, Mission Maker shall remit all amounts payable to
Company through the effective date of Termination, without set off of any
Commission, or portion thereof. Further,
upon Termination, Mission Maker shall immediately: (i) cease use and
distribution of any Company Material and Confidential Information and shall deliver
all Company Material and Confidential Information in Mission Maker’s control
and possession to Company; (ii) cease performance of the Services; (iii) cease
representing himself or herself as a contractor or representative of the
Business or Company; and (iii) be ineligible for any further Commission.
19. Effect
of Termination. Termination shall
not (i) release, discharge or adversely affect or impair any claim, demand or
cause of action arising under this Agreement based in whole or in part on any
state of facts existing as of the date of Termination, including any action for
damages or other relief for breach or default of this Agreement or for indemnification
payable pursuant to Paragraph 16, (ii) waive, release, relinquish or otherwise
adversely affect or impair any party’s obligation under this Agreement to
comply with or perform any covenant, representation, warranty, or agreement
contained in this Agreement that survives the Termination, or (iii) release,
discharge or adversely affect or impair the enforcement or prosecution of any
claim, demand or cause of action arising under this Agreement after
Termination.
20. Remedies for Breach. If Mission
Maker, its officers, managers, owners, agents, employees, contractors, or
affiliates, commits a breach, or is about to commit a breach, of any provision
of this Agreement, the Company shall have the right to have the provisions of
this Agreement specifically enforced by any Court having equity jurisdiction,
including, but not limited to, injunctive relief, without being required to
post bond or other security, unless otherwise required by applicable law, and
without having to prove the inadequacy of the available remedies at law, it
being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to Company, and that money damages will not provide an
adequate remedy to either. In addition, Company may take all such other actions
and seek all remedies available to Company under law or in equity and shall be
entitled to seek damages sustained by reason of such breach. In the event that
either party institutes legal action to enforce any provisions of this
Agreement, or to remedy any breach of this Agreement, and in the event that
party prevails in any respect, such party shall be entitled to recover its
costs, including attorneys’ fees, expended in connection with such action.
21. Limitation
of Damages. NOTWITHSTANDING
PARAGRAPH 20, MISSION MAKER, AND ITS OFFICERS MANAGERS, OWNERS, AND ASSOCIATES
HEREBY RELEASE COMPANY, ITS MANAGERS, MEMBERS, AFFILIATES, EMPLOYEES, AND
AGENTS, AND WAIVE ANY CLAIM OF ANY AND ALL CLAIMS OR DEMANDS FOR SPECIAL,
INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND
OR NATURE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST
BUSINESS, AND LOST OPPORTUNITIES, DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THE COMPANY’S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT,
ACTS OR OMISSIONS, PERFORMANCE OR NON-PERFORMANCE OF THE BUSINESS, OR OTHER
MATTERS BETWEEN MISSION MAKER AND THE COMPANY, WHETHER SUCH LIABILITY IS
ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHER THEORY OF LIABILITY
(INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR STRICT LIABILITY, OR
OTHERWISE). IT IS AGREED THAT ANY
DAMAGES CLAIMED BY MISSION MAKER SHALL NOT EXCEED, AND ARE HEREBY EXPRESSLY
LIMITED TO THE AMOUNT OF COMMISSION DUE AND OWING TO MISSION MAKER FOR SERVICES
PERFORMED IN ACCORDANCE WITH THIS AGREEMENT, AND NOT OTHERWISE SUBJECT TO
SET-OFF AS PROVIDED HEREIN.
22. Set-Off Rights. Company reserves the right to set-off and
offset against any Commission payable to Mission Maker, the amount of any loss,
injury, damage, or expense that is incurred by Company and which arises from or
relates to: (i) a breach of this Agreement, (ii) any wrongdoing or unlawful
act, (iii) any intentional or negligent act or omission on the part of Mission
Maker, his/her officers, managers, members, agents, contractors or
representatives in relation to this Agreement, and (iv) any matter for which
the Company is entitled to indemnification pursuant to this Agreement. This
right of set-off is in addition to any other rights and remedies reserved to
Company in this Agreement.
23. Governing
Law. The validity, construction,
enforcement and interpretation of this Agreement shall be governed by the
substantive laws of the State of Florida.
Venue for any action, suit, or proceeding arising out of this Agreement
shall lie in Sarasota County, Florida.
24. Compliance with Law. Mission Maker shall comply with any and all
governmental laws, regulations, and orders which may apply to Mission Maker by
reason of his or her execution of and/or performance of this Agreement.
25. Other Agreements. Company and
Mission Maker represent that this Agreement constitutes the legal, valid and
binding obligation of each, enforceable against each in accordance with its
terms. Company and Mission Maker have all right, power and authority to make
the covenants, representations and warranties herein. Each party represents and
warrants that neither is subject to any agreement, instrument, order, judgment
or decree of any kind, or any other restrictive agreement of any character,
which would prevent such party from entering into this Agreement or which would
be breached by the performance of this Agreement.
26. Benefit. This Agreement shall inure to the benefit of
and be binding upon the successors in interest of the Parties. Notwithstanding,
neither party shall have any right to assign its rights or obligations under
this Agreement, without the prior written consent of the other party, and any
such assignment by a party shall not release or discharge that party from its
obligations under this Agreement.
27. Third Party Beneficiary. Nothing contained in this Agreement shall be
construed so as to grant or confer on any person other than the Company and Mission
Maker, their successors and permitted assigns, any rights or privileges under
this Agreement, and no person is intended to be a third-party beneficiary of
this Agreement.
28. Non-Circumvention.
To the extent the actions of either
party pursuant to this Agreement give rise to a business opportunity with a
third party that would be compensable pursuant to this Agreement, the other
party shall not circumvent the first party by terminating this Agreement in
order to deal directly with the third party.
29. Restrictive
Covenants as Essential Elements of this Agreement. It is understood by and
between the parties hereto that the foregoing restrictive covenants contained
in this Agreement are essential elements and conditions of this Agreement,
shall expressly survive Termination, and that, but for the agreement of Mission
Maker to comply with such covenants, Company would not have agreed to enter
into this Agreement. The existence of any claim or cause of action of Mission
Maker against Company, whether predicated on this Agreement, or otherwise,
shall not constitute a defense to the enforcement by Company of such covenants,
it being expressly understood and agreed by the parties that the restrictive covenants
herein shall be deemed independent of the other terms and covenants and
conditions of this Agreement.
30. Notice
All notices, objections or other
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered (return receipt requested), or mailed by
certified mail (return receipt requested), or by Federal Express, or another
nationally recognized courier service as follows:
If
to Company:
Mission of Mary, LLC
Attention: Mary D. Jayne
2107 Delaney Avenue
Orlando, Florida 32806
31. Entire
Agreement; Amendment; Waiver. This
Agreement, the Policies & Procedures, and the Commission Plan, embodies the
entire agreement and understanding between the parties relating to the subject
matter hereof, and there are no covenants, promises, agreements, conditions or
understandings, oral or written, except as provided herein. This Agreement may
not be amended, waived or discharged except by an instrument in writing
executed by Company. Company may amend
this Agreement at any time in Company’s sole discretion, provided, however, that
any Commission earned on or before notice of such amendment shall not otherwise
be modified by such amendment. The failure of a party to this Agreement to
insist upon or enforce strict performance of any provision of this Agreement or
to exercise any right, power or authority under this Agreement or available at
law, in equity or by agreement, or the single or partial exercise of any such
right, power or authority, shall not preclude any or further exercise thereof
or the exercise of any other right, power, or authority, or be construed as a
waiver, renouncement or relinquishment to any extent of that party’s right to
assert or rely upon that provision, right, power or authority in that or any
other instance, and that provision, right, power or authority shall continue in
full legal force and effect without waiver, renouncement or relinquishment. No
waiver of any provision of this Agreement shall be binding unless in writing
and signed by the party sought to be bound. No waiver of any provision of this
Agreement shall be deemed or shall constitute a waiver of any other provision
of this Agreement, whether or not similar, nor shall any waiver constitute a
continuing waiver, unless otherwise expressly provided.
32. Construction. Whenever the context so requires, references
in this Agreement to the singular shall include the plural, and the plural
shall include the singular, and the masculine the feminine, the feminine the
masculine, and the neuter both. There shall be no rule of construction for or
against any party by reason of the physical preparation of this Agreement. Paragraph, section and other headings used
in this Agreement are used for convenience only, and shall not be construed as
limiting this Agreement or any of its several paragraphs, sections or other
parts to the provisions described by those headings. Each paragraph, section,
provision, sentence, and part thereof of this Agreement shall be severable from
each other paragraph, section, provision, sentence, or part thereof, and the
invalidity or unenforceability of any such paragraph, section, provision,
sentence, or part thereof, shall not affect the validity or enforceability of
the balance of this Agreement, and the Court shall have the power to
reduce the scope of such paragraph to the extent necessary to make such
paragraph enforceable and, in its reduced form, such paragraph shall then be
enforceable to the maximum extent permitted by law. This
Agreement may be executed in counterparts, each of which shall constitute an
original, and all of which together shall
constitute one and the same instrument.
33. Cumulative and Concurrent
Remedies. The remedies under this
Agreement are cumulative and concurrent and not exclusive of any remedies
available at law, in equity or by agreement.
34. Covenants Constitutes Promises. All covenants, representations, and
warranties contained in this Agreement constitute promises given in
consideration of the provisions of this Agreement.
35. Survival. All covenants,
representations, warranties, and agreements contained in this Agreement shall
survive Termination for the applicable period of limitations imposed by law.
36. Force
Majeure. Neither party shall be in
breach or default of this Agreement or be liable to the other party for any
delay in or failure of performance under this Agreement that directly or
indirectly results from governmental action, including an order, regulation or
restriction of federal or state governmental, military or lawfully established
civilian authorities; acts of public enemies or terrorists; riot; insurrection;
rebellion; revolution; state of war (declared or undeclared), war conditions
similar to a state of war, or preparation to a state of war, or preparation for
war; sabotage; blockade; embargo; fire; explosion; earthquake; nuclear
accident; flood; strike; lockout; plague or other epidemics; chemical,
biological or nuclear catastrophe; power blackout; hurricane, tropical storm,
tornado or unusually severe weather condition; or other causes beyond that
party’s reasonable control, and the time for that party’s performance under
this Agreement shall be extended for a period, not to exceed thirty (30) days,
equal to the commercially reasonable period of delay resulting from any such
cause.
37. Definitions.
“Customers” shall mean any purchaser of the
Products who completes such purchase for the purpose of using or gifting such
Products, and who does not purchase the Products for purpose of resale or
distribution.
“Products” shall mean the products and items
offered for sale by the Business during the Term and Restricted Period.
“Return Policy” shall mean the terms and
conditions of returns of Products and refunds permitted to be released to
Customers in accordance with the Policies & Procedures.
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