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This SpeedPro Approved Vendor Agreement (“Agreement”) is entered into and effective as of the date set forth herein ("Effective Date") by and between SP Franchising, LLC., a Delaware limited liability company whose address is 7000 S. Yosemite Street, Suite 100, Centennial, CO 80112 (hereinafter "SpeedPro"), and the vendor, whose identifying information and acceptance is provided and established electronically (hereinafter “Vendor”). SpeedPro and Vendor are sometimes referred to individually as “Party” and collectively as the “Parties.”
WHEREAS, SpeedPro is in the business of franchising and assisting SpeedPro wide format printing franchises and providing services to SpeedPro franchisees and is the owner of the SpeedPro name, various service marks, trademarks, trade names, trade dress, commercial logos, slogans and symbols (collectively the "SpeedPro Marks"); and
WHEREAS, Vendor is in the business of providing and selling products and/or services, as may be established from time-to-time in any separate writing between the Parties (“Goods and Services”).
WHEREAS, Vendor desires to become a "SpeedPro Approved Vendor" and through the SpeedPro Approved Vendor Program offer such Goods or Services for sale to SpeedPro Franchises; and
WHEREAS, Vendor presently meets SpeedPro specifications, guidelines and qualifications to be a SpeedPro Approved Vendor.
NOW, THEREFORE, in consideration of these recitals which are incorporated herein, the mutual promises and covenants set forth below, and for other good and sufficient consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. SpeedPro Approved Vendor – SpeedPro Approved Vendor Logo – SpeedPro Marks.
a. SpeedPro hereby designates Vendor, during the term of this Agreement, as a SpeedPro Approved Vendor.
b. SpeedPro will provide Vendor benefits (“Benefits”) identified on Exhibit A.
c. Vendor agrees to use and display the most current version of the SpeedPro Approved Vendor logo only for the limited purpose of identifying itself as a SpeedPro Approved Vendor.
d. During the Term of this Agreement and subject to the terms provided herein, SpeedPro hereby grants to Vendor a non-exclusive, non-transferable, non-assignable, with no right to sub-license, royalty-free, limited license to use and display the SpeedPro Marks on approved marketing materials for its Goods and Services. Vendor agrees that any use or display of the SpeedPro Approved Vendor logo or SpeedPro Marks must be approved in writing prior to such use or display, and Vendor agrees to abide by all standards and guidelines of SpeedPro with respect to the proper use and display of the SpeedPro Marks as established in any current SpeedPro Brand Standards Manual.
e. Upon termination or expiration of this Agreement, Vendor shall immediately cease and desist from all use of all SpeedPro Marks.
2. Vendor's Goods and Services.
a. Upon reasonable request or unless otherwise agreed, Vendor shall provide SpeedPro with samples of its Goods and Services, if applicable. Vendor agrees to deliver its Goods and Services to SpeedPro Franchises in a time and manner consistent with the terms and conditions of the purchase order or other agreement or arrangement Vendor has with SpeedPro Franchises. Vendor shall not sell its Goods or Services to the SpeedPro Franchises other than those set forth in a separate writing between the Parties, as may be amended from time to time by the Parties. Vendor may establish pricing for the Goods and Services, provided that the Goods and Services made available and offered to SpeedPro Franchises shall remain competitively priced throughout the term of this Agreement. Vendor shall offer such discounts and special offers, as may be established from time-to-time in any separate writing between the Parties.
b. Vendor shall assign and provide a dedicated account manager, who shall be available during normal business hours, to work closely and directly with the SpeedPro designated representative to manage the relationship, to implement goals and objectives of this Agreement, to ensure commercially reasonable effect is given to marketing and promotional activities, and to address and respond to questions and issues.
a. Membership Fee. As consideration for the rights granted herein, including the access afforded Vendor to market and promote its Goods and Services to SpeedPro Franchises, Vendor shall pay to SpeedPro an annual SpeedPro Approved Vendor Annual Membership Fee of $500.00, payable on the Effective Date, and again on the date of any annual renewal, as described in Paragraph 6 (the “Annual Membership Fee”).
b. Convention Sponsorship Fee. Vendor agrees to sponsor and/or attend SpeedPro Annual Convention during the term of this Agreement. In addition to the Membership Fees described above, Vendor agrees to pay SpeedPro a Convention Exhibition and/or Sponsorship Fee in connection with the annual convention registration. The Convention Exhibition and/or Sponsorship Fee shall be separate and apart from the Membership Fees associated with this Agreement.
c. Notice of Changes to Fees. SpeedPro agrees to notify Vendor, in writing, of any changes to any fees set forth herein at least ninety (90) days in advance of any annual renewal.
4. Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, SpeedPro may freely assign or transfer this Agreement to any Affiliate of SpeedPro at any time. As used herein, the term “Affiliate” shall mean any entity controlling, controlled by or under common control with SpeedPro.
a. Vendor shall and does hereby indemnify, defend and hold SpeedPro, and its officers, directors, employees and agents, any SpeedPro Franchises, and any Affiliate of SpeedPro, harmless from and against any and all demands, actions, causes of action, claims, liabilities, suits, proceedings, , costs and expenses, including, without limitation, court costs or mediation costs and reasonable attorneys’ fees (“Losses”) which SpeedPro may incur or which may be claimed against SpeedPro as a result of: (i) any defect in any Goods or Services sold by Vendor under this Agreement or that arise out of Vendor’s duties or obligations as contemplated by this Agreement; (ii) any false, inaccurate, untrue or incomplete representation or warranty made by Vendor in this Agreement or material breach of any representation or warranty made by Vendor in this Agreement; (iii) the non-fulfillment or non-performance by Vendor of any applicable covenant, condition or obligation in this Agreement; or (iv) gross negligence or willful misconduct on the part of Vendor under this Agreement.
b. SpeedPro shall and does hereby indemnify, defend and hold Vendor and its officers, directors, employees and agents harmless from and against any and all Losses which Vendor may incur, or which may be claimed against Vendor as a result of: (i) any false, inaccurate, untrue or incomplete representation or warranty made by SpeedPro in this Agreement or material breach of any representation or warranty made by SpeedPro in this Agreement; (ii) the non-fulfillment or non-performance by SpeedPro of any applicable covenant, condition or obligation in this Agreement; or (iii) gross negligence or willful misconduct on the part of SpeedPro under this Agreement.
c. The Parties agree that this Section 5 shall survive termination of this Agreement.
6. Term/Termination. The term of this Agreement shall be for twelve (12) months from the Effective Date. The Agreement shall renew for successive one-year terms, annually, unless one Party gives written notice of termination at least sixty (60) days in advance of the annual renewal date. The initial twelve (12) month term and each successive one-year term shall be defined collectively as the “Term.” Either Party may terminate this Agreement for cause upon thirty (30) days’ written notice to the other Party, subject to the opportunity to cure said default, if (i) the other Party is in material breach of a representation, warranty or obligation under this Agreement, or (ii) the other Party shall file for bankruptcy, receivership, insolvency, reorganization, dissolution or liquidation.
Upon any termination of this Agreement, Vendor shall immediately cease use of the SpeedPro post-domain path of Vendor's Internet URL address and otherwise refrain from holding itself out as a current or former SpeedPro Approved Vendor, shall return to SpeedPro, or destroy, all Confidential Information (as defined below).
7. Non-exclusivity. During the term of this Agreement, Vendor acknowledges that any and all rights granted under this Agreement shall be nonexclusive, and that other parties may be designated as a SpeedPro Approved Vendor for Goods that are the same or similar to those of the Vendor.
8. Mediation. Except for disputes that involve injunctive relief or specific performance, the parties agree to mediate any dispute in connection with the Agreement; provided that the party seeking mediation must notify the other party in writing of its intent to mediate, which notice shall describe the nature of the dispute and the amount of claimed damages. Mediation will be conducted in Arapahoe County, Colorado, by a mediator or mediation program agreed to by the parties. Persons authorized to settle the dispute must attend any mediation session. The Parties agree to participate in the mediation proceedings in good faith with the intention of attending the mediation, except in exceptional circumstances, within thirty (30) days of the notice from the party seeking to initiate the mediation procedures. If the mediation process fails to resolve the dispute in a timely manner, the parties are free to pursue a resolution through the Federal Courts in Colorado or state courts in Arapahoe County, Colorado.
9. Liability Limits and Warranty. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITIES WILL NOT APPLY TO EITHER PARTY’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF.
10. Notices. Any notices required or permitted to be given to either Party under this Agreement shall be deemed to have been properly delivered at the time delivered by hand, one business day after transmission by facsimile with written confirmation, one business day after being placed in the hands of a commercial courier service for overnight delivery, or three business days after placement in the United States mail by registered or certified mail, return-receipt requested, postage prepaid and addressed to the Party to be notified at the address set forth above.
a. All information related to the business of the Parties, including but not limited to, the terms and provisions of this Agreement, any technical information, formulations, plans, specifications, supplier information, employee and franchisor or franchisee information, including but not limited to, all lists, rosters, directories, data bases containing the names of SpeedPro franchises or other membership lists or information or materials regarding SpeedPro and its franchisee customer information shall be the sole property of the respective party providing it to the other party and treated as confidential by the Parties (“Confidential Information”). The receiving party will during the term of this Agreement keep the Confidential Information obtained from the disclosing party strictly confidential and will not disclose the Confidential Information to any third party without the prior written consent of the disclosing party. The receiving party further agrees during the term of this Agreement not to use the Confidential Information provided by the disclosing party for any purpose other than the purposes contemplated by this Agreement. Confidential Information does not include information: (a) which was previously known to the receiving party at the time of disclosure; (b) which is available to the public through no fault of the receiving party; or, (c) which lawfully becomes available to the receiving party from a source other than the disclosing party. Either party may disclose Confidential Information if required by applicable law, a court having jurisdiction, or governmental or regulatory authority, or in mediation, provided that the disclosing party gives reasonable prior notice of the disclosure requirement to the other party so that the other party has an opportunity to seek to prevent or limit such disclosure. Confidential information will not lose its protected status under this Agreement if it becomes known to others through improper measures such as the unauthorized use or disclosure of the information by the other party.
b. Upon the termination or expiration of this Agreement, each Party shall promptly return to the other Party, or destroy, all Confidential Information belonging to the other Party in such Party’s possession.
12. No Guarantee. Vendor acknowledges that SpeedPro Franchises are independently owned and operated wide format printing studios and SpeedPro Franchises are independent contractors and that SpeedPro does not and cannot guarantee any level of sales of Vendor's Goods and Services to SpeedPro Franchises. Vendor further acknowledges and agrees that any order, contract, or other agreement between Vendor and a SpeedPro Franchise for Goods and Services shall be solely between Vendor and the SpeedPro Franchise, and SpeedPro shall not be deemed to be a guarantor of or responsible for any of the obligations of the SpeedPro Franchises under any such order, contract, or agreement.
13. Insurance. Vendor agrees to maintain during the term of this Agreement and for a period of not less than six (6) months after the termination of this Agreement the following insurance and to provide throughout the term of this Agreement a certificate of insurance satisfactory to SpeedPro for a comprehensive commercial general liability insurance policy ("Insurance Policy") that insures against liability for personal loss, injury or death to persons and damages to property, advertising injury, and contractual and product liability that arises out of the Goods and Services that are the subject matter of this Agreement. The limit of liability under the Insurance Policy shall not be less than $500,000 combined single limit per occurrence. A copy of the certificates or other appropriate evidence of the procurement of such insurance policies shall be furnished to SP Franchising, LLC, 7000 S. Yosemite Street, Suite 100, Centennial, CO 80112, Attention: Director of Support within ten (10) days after the Effective Date of this Agreement.
14. Independent Contractors. Vendor and SpeedPro are independent contractors. Neither Party is the representative or agent of or has the power or authority to obligate the other for any purpose whatsoever. SpeedPro and Vendor expressly acknowledge that no partnership, joint venture, or agency relationship is created by reason of this Agreement.
15. Compliance with Laws. Each Party agrees to comply with all applicable federal, state and local laws, rules and regulations.
16. Entire Agreement. This Agreement, including any Exhibits and Attachments, contains the entire agreement of the Parties and supersedes all prior and contemporaneous understandings, agreements, warranties, and representations of any kind, oral or written, relating to the subject matter of this Agreement. This Agreement may be changed or altered only by written instrument specifically stating that it modifies this Agreement and signed by the Party against whom enforcement of any waiver, change, modification, extension, or discharge is sought.
17. Counterparts; Facsimile. This Agreement may be executed in any number of counterparts and by facsimile signatures, each of which shall be an original, but all of which together shall constitute one instrument.
18. Headings. The headings contained in this Agreement are for convenience only and shall not affect construction of any provision of this Agreement.
19. Governing Law and Jurisdiction. This Agreement is to be governed by and construed in accordance with the laws of the state of Colorado. The state courts and authorities of Arapahoe County, State of Colorado and/or the Federal District Court located in Denver, Colorado shall have exclusive jurisdiction over all controversies which may arise with respect to the negotiation, execution, interpretation and compliance with the Agreement, and the parties hereby waive any other venue to which they may be entitled by virtue of domicile or otherwise.
20. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Vendor and SpeedPro and their respective successors and permitted assigns.
21. Force Majeure. In the event either Party is unable to timely perform services hereunder due to causes that are beyond its control, including, without limitation, unauthorized strikes, riots, terrorism, earthquakes, pandemics, war, fire, or any other catastrophe rendering it wholly or partially inoperable, such Party shall be excused from the performance of such services and shall not be liable for any loss or damage which results to the other Party.
EXHIBIT A- BENEFITS PROVIDED BY SPEEDPRO TO THE APPROVED VENDOR
Training and Education
SpeedPro reserves the right to discontinue any of Benefits as well as introduce new Benefits throughout the term of this Agreement.