TERMS AND CONDITIONS TO
AGREEMENT FOR SECOND SET
Imperial Distributing Company, Inc., d/b/a Imperial Press Direct, a Florida corporation, (hereinafter referred to as “Imperial,” “the Corporation,” “we” or “us”) is in the business of selling marketing materials and services to automobile dealerships, including training and customer service programs for clients (“Corporation’s Business”). You are an automobile dealership. The Parties have determined that it would be in their mutual best interest for you to engage the Corporation for off-site virtual services to augment your internal business development center (“BDC”) and support your customer relationship managers (“CRM”). Therefore, the Parties wish to contract with each other pursuant to the terms and provisions of this Agreement.
Now, therefore, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Term and Renewal. You hereby engage the Corporation as a vendor of off-site virtual services to augment your BDC and support your CRMs. The term of this Agreement is one-hundred eighty (180) days starting on the date of your first Agreement for Second Set. If you wish to renew this Agreement for an additional one-hundred eighty (180) days, you will sign an additional Agreement for Second Set subject to these same Terms and Conditions.
2. Termination. Either Party may terminate this Agreement upon sixty (60) days prior written notice to the other.
3. Your Obligations. During the Term, you shall:
Do business under your own trade names and you will not use the name “Imperial Press Direct,” or any of our trade names or any derivative thereof as the identification of your business. You agree not to use our trade name as part of any corporation or trade name or with any prefix, suffix, or other modifying words, terms, designs, symbols, or in any modified form;
Not, during the term of and after the expiration or termination of this Agreement, disclose or furnish to any other person or entity, or use, directly or indirectly, for the account of any other person, trade secrets or confidential information of the Corporation or its Affiliates (as defined herein) which includes, but is not limited to technical information, computer software, knowhow, product information, processes, business and marketing plans, strategies, customer lists and information, training and operational procedures, other information concerning the Corporation’s products, promotions, development, financing, business policies and practices, and other forms of information considered by the Corporation to be proprietary and confidential or in the nature of trade secrets (collectively, the “Confidential Information”);
Not, during the term of this Agreement, and for the one (1) year period immediately following the termination of this Agreement for any reason, directly or indirectly, employ, solicit or attempt to employ, in any manner, any current employee or independent contractor of the Corporation, or otherwise solicit, encourage or attempt to encourage, in any manner, any such person to terminate his or her employment with the Corporation;
Not, directly or indirectly, engage in any conduct or make any statement, whether in commercial or noncommercial speech, disparaging or criticizing in any way the Corporation, or any products or services offered by the Corporation, nor shall you engage in any other conduct or make any other statement that could be reasonably expected to impair the goodwill of the Corporation, the reputation of the Corporation’s products or the marketing of the Corporation’s products, in each case except to the extent required by law, and then only after consultation with the Corporation to the extent possible; and
Maintain any necessary license(s) and abide by all laws, governmental rules and regulations applicable to your business activities, and provide us with such necessary information for us to be in compliance with all laws, governmental rules and regulations in carrying out this Second Set Agreement.
Ensure that any telephone numbers provided to the Corporation for contact by the Corporation are not telephone numbers listed on the National Do-Not-Call Registry or your internal do-not-call list.
4. Our Obligations. During the Term, we shall:
Perform our obligations under this Agreement faithfully and honestly, and to continuously exert best efforts in providing training programs and services to you;
Do business under our own trade names and will not use your trade names or any derivative thereof as the identification of our business. We agree not to use your trade name as part of any corporation or trade name or with any prefix, suffix, or other modifying words, terms, designs, symbols, or in any modified form;
Not, during the term of and after the expiration or termination of this Agreement, disclose or furnish to any other person or entity, or use, directly or indirectly, for the account of any other person, trade secrets or confidential information of the Client or its Affiliates (as defined herein) which includes, but is not limited to technical information, computer software, knowhow, product information, processes, business and marketing plans, strategies, customer lists and information, training and operational procedures, other information concerning the Client’s products, promotions, development, financing, business policies and practices, and other forms of information considered by the Client to be proprietary and confidential or in the nature of trade secrets (collectively, the “Confidential Information”);
Not, during the term of this Agreement, and for the one (1) year period immediately following the termination of this Agreement for any reason, directly or indirectly, employ, solicit or attempt to employ, in any manner, any current employee or independent contractor of the Client, or otherwise solicit, encourage or attempt to encourage, in any manner, any such person to terminate his or her employment with the Client;
Not, directly or indirectly, engage in any conduct or make any statement, whether in commercial or noncommercial speech, disparaging or criticizing in any way the Client, or any products or services offered by the Client, nor shall we engage in any other conduct or make any other statement that could be reasonably expected to impair the goodwill of the Client, the reputation of the Client’s products or the marketing of the Corporation’s products, in each case except to the extent required by law, and then only after consultation with the Client to the extent possible; and
Maintain any necessary license(s) and abide by all laws, governmental rules and regulations applicable to our business activities;
Services. Corporation has created a program for off-site virtual BDC and support for CRMs. We will provide sufficient designated persons within our organization, in our discretion, to augment your out-bound BDC calls and support your CRMs with customer relations.
Payment Terms. Client agrees to pay all invoices issued by Corporation to Client (the “Payment”) reflecting the agreed upon monthly fee for services. Unless otherwise provided for in the invoice, Payment is due upon Client’s receipt of the invoice. All Payments must be made by Client in U.S. dollars. All Payments shall be made by (i) credit card, (ii) ACH (i.e., electronic debit from Client’s bank account) or (iii) check or money order. In some instances, Corporation may require Client to sign a separate credit card authorization form, or ACH debit authorization form. Unless otherwise agreed to in writing by Corporation, Client understands and agrees that Corporation will not be obligated to undertake efforts to provide the training programs and services agreed to unless and until Corporation receives Payment of the corresponding invoice amount. If Client makes Payment via credit card, Client agrees to pay a credit card fee up to five percent (5%) if imposed by Corporation.
Relationship of the Parties. This Agreement does not create a fiduciary relationship between you and us. We are an independent contractor, acting as a vendor of training and customer support services to you, and nothing in this Agreement is intended to make either Party a general or special agent, franchise, joint venturer, partner or employee of the other for any purpose whatsoever.
DISCLAIMER OF WARRANTIES. Client understands and agrees that, to the maximum extent permitted by law, all services provided by Corporation to Client under this Agreement are done so on an “AS IS” basis. As such, Client understands and agrees that, to the maximum extent permitted by law, Corporation EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE TRAINING AND CUSTOMER SUPPORT PRODUCTS AND SERVICES PROVIDED BY CORPORATION TO CLIENT UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY OTHER WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. FURTHERMORE, CORPORATION MAKES NO GUARANTY WITH RESPECT TO THE PERFORMANCE OR SUCCESS RATE OF ANY TRAINING PRODUCT OR SERVICE.
NO REFUNDS. Each refund request that is made is individually and personally investigated and addressed by a member of our staff. While Corporation will strive to request your input on each refund request, Corporation reserves the right, in its sole discretion, to determine the ultimate outcome of each refund request.
limitations of liability. Neither Party will be liable to the other for any statutory, consequential, incidental, indirect, special, treble or exemplary damages of any kind, including without limitations any loss of use, loss of business, or loss of profit or revenue arising out of or in connection with this Agreement. Furthermore, CLIENT understands and agrees that under no circumstances, shall Corporation’s cumulative aggregate liability to CLIENT exceed the TOTAL amount actually received by Corporation from CLIENT during the three month period immediately prior to the incident giving rise to such liability. Each Party acknowledges that these limitations are reasonable, an essential element of this Agreement, and in absence of such limitations they would not enter into this Agreement.
11. Other Provisions.
Amendment/No Prior Agreement. This Agreement may not be modified or amended except in writing. This Agreement amends, replaces and supersedes any and all prior agreements (whether oral or in writing) between the Parties relating to the terms of this Agreement.
Certain Definitions/Background. For purposes of this Agreement, the following terms whenever capitalized herein shall have the following meanings: (i) “Person” shall mean any natural person, corporation, partnership (limited or general), joint venture, trust, association or other entity; (ii) “Affiliate” shall mean a Person that directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Person; and (iii) “Attorneys’ Fees” or “attorneys’ fees” shall include the legal fees and disbursements charged by attorneys and their related travel and lodging expenses, court costs, paralegal fees, etc., incurred in settlement, trial, appeal, arbitration or in bankruptcy proceedings. The Background set forth at the beginning of this Agreement shall be deemed to be incorporated into this Agreement by this reference as if fully set forth herein and this Agreement shall be interpreted with reference to and in light of such background facts.
Entire Agreement/Waiver/Interpretation. This Agreement contains the entire agreement of the Parties and there are no representations, inducements, or other provisions other than those expressed in writing herein. No modification, waiver or discharge of any provision or breach of this Agreement shall be effective unless it is in writing. Our waiver of your breach of any provision of this Agreement, shall not operate, or be construed, as a waiver of any subsequent breach by you of that provision or of any other provision of this Agreement. This Agreement will not be construed against us on the basis that we drafted it, and it will be viewed as prepared jointly by you and us. As used herein, words in the singular include the plural, and the masculine includes the feminine and neuter gender, as appropriate. The headings of paragraphs, sections and subsections herein are included solely for convenient reference and shall not control the meaning or interpretation of any of the provisions of this Agreement.
Severability. To the extent that any provision or section of this Agreement is deemed unenforceable by virtue of its scope in terms of area, business activity prohibited or length of time, but may be made enforceable by reduction after any and all thereof, the Parties agree that the terms of such provision or section shall be enforced to the fullest extent permissible under the laws or public policies of the jurisdiction in which enforcement is sought.
Covenant Independent. Each restrictive covenant set forth in this Agreement shall be construed as a covenant independent of any other covenant or provision of this Agreement or any other agreement which you may have, whether fully performed or executory, and the existence of any claim, defense, or cause of action by you against the Corporation, whether predicated upon another covenant or provision of this Agreement or otherwise, shall not constitute a defense to the enforcement by the Corporation of such restrictive covenant.
Injunctive Relief. You hereby agree that upon your breach or threatened breach of any of the provisions of this Agreement, we shall be entitled to injunctive relief and reimbursement of all attorneys’ fees if we prevail in an action for injunctive relief and/or damages. You agree that we may have such injunctive relief without bond but upon due notice, in addition to such other relief as may be available to us at law or in equity.
Successors, Assigns and Affiliates. This Agreement has been entered into in consideration of our personal services, and any assignment by you shall not be valid unless approved in writing by an officer of the Corporation and which may be withheld in our sole and exclusive discretion. The Corporation may assign to an affiliate this Agreement at any time as determined in the Corporation’s sole and exclusive discretion. To the extent a Client is assigned to or contracts with an entity that is an affiliate of the Corporation but not a party to this Agreement (including, but not limited to, an entity formed after execution of this Agreement) the terms of this Agreement shall apply. Except as otherwise provided herein, the rights and obligations of the Parties under this Agreement shall inure to the benefit of and shall be binding upon their successors and assigns.
Counterparts. Any number of counterparts of this Agreement may be signed and delivered, and each shall be considered an original, and together they shall constitute one Agreement.
Governing Law; Jurisdiction. This Agreement shall be governed and construed in accordance with the statutory and decisional law of the State of Florida without regard to conflict of law principles. Jurisdiction and venue for all purposes shall be deemed to lie exclusively within Hillsborough County, Florida. The parties agree that, irrespective of any wording that might be construed to be in conflict with this paragraph, this Agreement is one for performance in Florida. The parties to this Agreement agree that they waive any objection, constitutional, statutory or otherwise, including forum non conveniens and personal jurisdiction, to a Florida court’s exercise of exclusive jurisdiction over any dispute between them and specifically consent to the exclusive jurisdiction of the Florida courts. By entering into this Agreement, the parties, and each of them understand that they may be called upon to answer a claim asserted in a Florida court.
Waiver of Jury Trial. THE PARTIES HEREBY ACKNOWLEDGE THAT ANY DISPUTE ARISING OUT OF, OR RELATED TO, THIS AGREEMENT WILL NECESSARILY INCLUDE VARIOUS COMPLICATED LEGAL AND FACTUAL ISSUES. THEREFORE, THE PARTIES KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TRIAL BY JURY IN ANY LITIGATION IN ANY COURT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE CORPORATION AND YOU ENTERING INTO THIS AGREEMENT.
Last Revised December 17th, 2021