COCA-COLA BEVERAGES FLORIDA EQUIPMENT PLACEMENT AGREEMENT
In consideration of the mutual promises set forth below, Coca-Cola Beverages Florida, LLC (“CCBF”) and the customer (“Customer”) agree to the following terms and conditions of this Equipment Placement Agreement (“Agreement”):
1. Equipment Installation. CCBF will deliver and/or install the equipment provided by CCBF at any time (including equipment provided prior to this Agreement being signed), including, without limitation, vending machines, coolers, fountain equipment, and/or any replacement parts, replacements, additions and accessories, or any portion thereof (collectively, “Equipment”) at the business location(s) specified herein or otherwise mutually agreed by the parties (“Site”), and Customer will use the Equipment on at such business location. Customer, at its sole expense, will provide all necessary service connections at the Site for the installation and operation of the Equipment. Customer represents and warrants that plumbing, electric service, and structural integrity at the Site is, and throughout the term of the Agreement will be, proper and adequate for the installation and continued placement of the Equipment.
2. Equipment Operation. Customer hereby guarantees that: (a) no logo, trademark, advertisement, or other indication of CCBF’s ownership of the Equipment will be obstructed, defaced, or removed, and no other logo, trademark, or advertisement will be attached to the Equipment; (b) if the Equipment contains an illuminated sign, Customer will keep such sign illuminated at all times; (c) the Equipment will not be obstructed; (d) Customer will request and obtain CCBF’s prior written approval before moving the Equipment from or within the Site, and the terms of this Agreement will continue to apply to such Equipment even if moved; (e) Customer will not sell, reassign, loan, lease, or rent the Equipment to any other person or entity; (f) no racks, merchandise, or any other objects will be placed on top of or attached to the Equipment; and (g) Customer will not attach the Equipment, or allow the Equipment to be attached, in such a manner as to become part of the realty as a fixture or otherwise, and the Equipment will be maintained so that it may be easily removed from the Site without damage to the Site, its buildings, realty or fixtures. If CCBF is providing full service vending, Customer agrees to permit CCBF to place and install the Equipment at the Site. CCBF will stock the Equipment and collect all proceeds from the sale of Products (as defined below). If applicable, CCBF will pay Customer a commission on sales through the Equipment. The initial commission and vend price will be mutually agreed by the parties but may be changed by CCBF in its sole discretion.
3. Products; Taxes and Fees. Customer agrees to store in, sell through, and dispense from the Equipment only CCBF beverage products (“Products”). Customer will pay all taxes, licenses, charges, and other fees that may be imposed on the sale of Products through the Equipment, upon the Equipment itself, or in connection with this Agreement by any taxing authority.
4. Equipment Ownership. CCBF is, and at all times will remain, the exclusive owner of the Equipment, and Customer will protect CCBF’s title and keep the Equipment free from all claims, liens, and encumbrances. Customer’s obligations under this section remain until such time as (a) CCBF or CCBF’s agent picks up the Equipment. Customer authorizes CCBF to execute and file any instruments in any jurisdiction where it deems necessary to perfect and maintain CCBF’s interest in the Equipment.
Failure to return rental property or equipment upon expiration of the rental period and failure to pay all amounts due (including costs for damage to the property or equipment) are evidence of abandonment or refusal to redeliver the property, punishable in accordance with Section 812.155, Florida Statutes.
5. Leasing of Equipment. CCBF hereby leases the Equipment to Customer at no charge; provided, however, CCBF reserves the right, upon prior written notice to Customer, to charge a lease or rental amount for the Equipment to Customer. If CCBF begins to charge a lease or rental amount, Customer agrees to pay the amount set by CCBF, which is subject to change from time to time with prior written notice to Customer. Upon prior written notice to CCBF, Customer may terminate this Agreement if Customer objects to the institution of, or change to, the lease or rental amount.
6. Inspection; Notification; Reporting. CCBF will have the right, during Customer’s regular business hours, to inspect the Equipment at Customer’s Site(s) or wherever the Equipment may be located and to review all records that relate to the Equipment. Customer will promptly notify CCBF of all details arising out of any lost or stolen Equipment, alleged encumbrances on the Equipment, or any accident allegedly resulting from the use or operation of the Equipment. CCBF will have the right to require Customer to comply with additional notification and reporting requirements and may change such requirements with prior written notice. Customer will notify CCBF within 30 days of any change to its address indicated on the signature page of this Agreement. CCBF’s records pertaining to this Agreement and any additional documents and/or records by and/or between the parties describing the Equipment and/or the Sites where such Equipment is placed, will constitute the official book of record pertaining to the Equipment.
7. Service and Repair. Customer will, at its expense, take good care of the Equipment and will not remove, alter or otherwise damage any part or portion of the Equipment. Subject to the terms herein, CCBF agrees to provide reasonable service for the Equipment, including necessary replacement, return, repair, and removal of Equipment, as determined in CCBF’s sole discretion (“Service”) during the term of the Agreement. Customer will allow CCBF’s employees and agents to enter its premises and/or the Site for the purpose of inspection and/or performance of Service. CCBF may, and reserves the right to, bill Customer its standard rate per service call for any Service performed. Customer’s sole recourse against CCBF with respect to Service provided by CCBF for the Equipment is that CCBF will correct any defective workmanship at no additional charge to Customer, provided that CCBF is given prompt notification of any defective workmanship. CCBF will not otherwise be liable for negligent acts or omissions committed with regard to Service of the Equipment, including that it will have no responsibility or liability for incidental, consequential, or special damages occasioned by such negligent acts or omissions.
8. Return of Equipment; Failure to Return. Within 15 days from the expiration or termination of this Agreement, Customer will notify CCBF that the Equipment is available for return and pick-up by CCBF or CCBF’s agent at the Site. The returned Equipment must include, without limitation, any and all parts, replacements, additions and accessories, including any refrigeration decks and any refrigerant contained therein. CCBF will have the right to accept or reject the Equipment and bill Customer for any Equipment, in whole or in part, that is not returned in accordance with this section.
9. Disclaimer of Warranties. Customer acknowledges that CCBF is not the manufacturer of the Equipment. EXCEPT AS EXPRESSLY STATED HEREIN, CCBF PROVIDES THE EQUIPMENT AND SERVICE TO THE EQUIPMENT ON AN “AS IS” AND “AS AVAILABLE” BASIS. CCBF DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AS TO THE FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, CONSTRUCTION, CONDITION, SPECIFICATIONS, NON-INFRINGEMENT AND PERFORMANCE OF THE EQUIPMENT.
10. Liability; Guaranty. Except as otherwise expressly stated herein, Customer hereby assumes sole liability for any and all damage to (normal wear and tear excepted), or loss of, the Equipment from the time the Equipment is delivered to Customer until CCBF or CCBF’s agent picks up the Equipment. Customer assumes full responsibility to report any damage to, or loss of, the Equipment to CCBF immediately. CCBF, at its discretion, may require a guarantor to guarantee payment and/or performance of Customer’s obligations under this Agreement, and Customer hereby agrees to submit any such guaranty using the form provided by CCBF.
11. Exculpation. Except as expressly stated in Section 7 above and except to the extent such claims arise out of CCBF’s gross negligence or willful misconduct, CCBF will not be liable to Customer for any claims based on or arising out of injury to person or property in any way relating to the Equipment, including but not limited to the installation, use, operation, move, and/or Service of the Equipment. In no event will CCBF be liable to Customer for any claims based upon or arising out of lost profits, loss of Product, consequential, special, or incidental damages in any way relating to the Equipment, including but not limited to the installation, use, operation, move, and/or Service of the Equipment.
12. Compliance; Applicable Laws. Customer represents and warrants that throughout the term of the Agreement, it will comply with all applicable laws and regulations and all appropriate practices with respect to food and beverage safety, including the storing, preparation, and serving of food and beverages. Furthermore, Customer acknowledges and agrees to comply with all the Equipment manufacturers’ specifications and product dispensing and preparation instructions and specifications. In the performance of all activities related to the Equipment, including, without limitation, the order, delivery, rejection, return, installation, purchase, lease, rent, possession, use, operation, control, move, maintenance, Service or disposition of the Equipment, or any portion thereof, Customer will take reasonable and necessary precautions for the safety of Customer’s and CCBF’s employees, contractors, subcontractors, representatives, agents, customers and consumers affected by Customer’s business and the Site and will comply with all applicable federal, state, local and other laws, statutes, directives, regulations, and ordinances, including those pertaining to environmental protection and worker safety and all applicable technician certification and regulatory compliance requirements (collectively, “Environmental, Health, and Safety Laws”). Customer is responsible for ensuring its employees, contractors, subcontractors, representatives and agents follow Environmental, Health, and Safety Laws with respect to the handling and disposal of the Equipment and/or any materials contained therein.
13. Indemnity. Customer will indemnify and hold CCBF, its parent companies, subsidiaries and affiliates, and each of their officers, agents, employees, directors, shareholders, affiliates, successors, and assigns (hereinafter the “Indemnified Parties”) harmless from and against all losses, damages, claims, suits, proceedings, settlements, judgments and liabilities of whatever nature, and all costs and expenses, including, without limitation, Indemnified Parties’ reasonable attorneys’ fees and expenses, resulting from any and all claims, demands, or rights of action that are caused by or result from Customer’s or its employee’s, contractor’s, subcontractor’s, representative’s, or agent’s (“Customer Parties”) acts or omissions, including but not limited to negligent acts and willful misconduct in the order, delivery, rejection, return, installation, purchase, lease, rent, possession, use, operation, control, move, maintenance, Service, and/or disposition of the Equipment, or any portion thereof, or due to Customer’s breach of any representation, warranty, term, or condition of this Agreement. In the event any governmental entity or third party asserts a claim or brings an action, suit, or proceeding against the Indemnified Parties for violations of Environmental, Health, and Safety Laws, or for damages, injuries, or losses that are the result, or alleged result, of the Customer Parties’ failure to comply with the requirements of Environmental, Health, and Safety Laws or that have occurred as a consequence of or are attributable to acts or omissions of the Customer Parties relating to activities conducted pursuant to this Agreement, then Customer agrees to indemnify and hold the Indemnified Parties harmless from and against any such injury, loss, damages, penalty, settlements, judgments or fine and will pay, on the Indemnified Parties’ behalf, all penalties, fines, settlements or judgments, resulting against all or any of the Indemnified Parties, including any interest thereon, court costs, and reasonable attorneys’ fees and expenses; provided, however, that, to the extent it is demonstrated that the Indemnified Parties’ acts or omissions contributed to the exposure or damage alleged, CCBF agrees to pay its pro rata portion of any injury, loss, damages, penalty, settlements, judgments or fine, and reimburse Customer the pro rata portion of the defense costs incurred.
14. Term and Termination. This Agreement is effective as of the date it is signed by both parties and will continue in effect with respect to each piece of Equipment until CCBF or CCBF’s agent picks up the Equipment. Either party may terminate this Agreement without cause upon ten (10) days’ written notice to the other party. CCBF may terminate this Agreement upon the occurrence of any of the following events of default (each, a “Default”): (a) Customer fails to make payment of any lease, rental or other amount owed to CCBF hereunder within five (5) days after the amount is due; (b) Customer transfers, lends, subleases, assigns, conveys, pledges, or encumbers the Equipment or attempts to do so; (c) Customer transfers, subleases, or assigns this Agreement in whole or in part (or attempts to do so), transfers all or substantially all of its assets to a third party, or transfers, conveys, assigns, or pledges a controlling interest or ownership of Customer to a third party, by operation of law or otherwise, without CCBF’s prior written consent; (d) the Equipment is levied, seized, or attached, whether by operation of law or otherwise; (e) Customer fails to perform or comply with any one or more terms, conditions, or provisions of this Agreement or any other agreement with CCBF; or (f) Customer is adjudicated insolvent by any court or tribunal or files voluntary petition in bankruptcy or enters into an arrangement with its creditors. In the event of Default, CCBF will have the immediate right to exercise any one or more of the following remedies: (a) terminate this Agreement; (b) declare the entire amount of lease/rental fees immediately due and payable, without notice to or demand of Customer; (c) take possession of any or all of the Equipment without demand or notice wherever the same may be located, without any court order or other process of law; and (d) pursue any other remedy at law or in equity. In addition, in the event of a Default by Customer, Customer will be liable to CCBF for reasonable attorneys’ fees and other costs incurred by CCBF in enforcing its rights under this Agreement by litigation or otherwise. If this Agreement is terminated with respect to any piece of Equipment for any reason other than breach by CCBF prior to 100 months from date of placement, then Customer will pay CCBF the actual cost of removal (including standard shipping and handling charges) and remanufacturing of that Equipment, as well as the unamortized portion of the costs of installation, (non-serialized parts (e.g., pumps, racks, and regulators), and other ancillary equipment. If the Equipment is not made accessible to CCBF by Customer within 15 days of the end of the term or termination of this Agreement, then Customer will pay all costs and expenses relating to the removal of the Equipment, in addition to other amounts that may be owed hereunder or at law or equity. All rights and remedies provided herein may be exercised exclusively, concurrently, or cumulatively with any other right or remedy hereunder, or as otherwise provided by law.
15. Governing Law, Jurisdiction, and Venue. This Agreement and any dispute arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the State of Florida, without reference to its conflict of law rules. In the event of any dispute arising out of or relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and other costs and expenses of litigation. If litigation is pursued, the exclusive venue for such litigation will be in the federal or state courts located in Tampa, Florida, and the parties agree to submit to the personal jurisdiction of the courts in the State of Florida.
16. Jury Waiver. EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS IT CONTEMPLATES. THIS WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE.
17. Confidentiality. During the Term, and for a three (3) year period thereafter, Customer will keep the terms of this Agreement confidential.
18. Casters (if applicable). If Customer requests that CCBF provide the Equipment equipped with casters, the following provisions will apply: (a) Customer represents and warrants that the Equipment is required by a governmental authority pursuant to applicable health, safety, sanitary, or other applicable codes or ordinances, or the Customer desires the Equipment, to be equipped with casters to permit the efficient and thorough cleaning of the Equipment and surrounding areas; and (b) Customer recognizes and acknowledges that the casters provided on the Equipment are not designed or intended to allow for the movement of the Equipment beyond the minimal distances required for cleaning of the immediate area, and are not designed for movement from room to room or other similar distances. Customer agrees that it will not, and will not permit its employees, agents, contractors, or subcontractors to, use the casters to move the Equipment beyond the short distances necessary to adequately clean and maintain the Equipment and immediately surrounding areas. Customer agrees not to otherwise move or displace the Equipment from the area in which it was placed by CCBF.
19. Miscellaneous. This Agreement will not be transferred, subleased, assigned, conveyed, or pledged, in whole or in part, by operation of law or otherwise, by Customer without the prior written consent of CCBF. This Agreement constitutes the entire agreement between the parties and will replace any prior agreements relating to the subject matter hereof between the parties and may be amended only in a writing signed by both parties; provided, however, that if Customer has entered into a beverage agreement, beverage marketing agreement, sponsorship agreement, customer marketing agreement, competitive beverage agreement, or similar agreement with CCBF, The Coca-Cola Company or another Coca-Cola bottler (“Other Agreement”), such Other Agreement will control in the event of any conflict between such Other Agreement and this Agreement; provided further that removal of any Equipment will not affect the terms of the Other Agreement. No modification or waiver under this Agreement will be enforceable unless in writing and signed by the party against whom enforcement is sought. CCBF does not agree to, and will not be bound by, any terms in Customer’s purchase orders, pre-printed forms, proposals, quotations, catalogs, acknowledgements, acceptances, or other documents (including counteroffers), including any online terms and conditions referenced in any such documents or in a website, application or other digital or electronic format, that propose differing or additional terms and conditions or any addition, alteration, or deletion to, or of, the precise terms and conditions stated in this Agreement. Failure of CCBF to object to any terms such terms that now or in the future appear in any form or other communication from Customer will not be construed as a waiver of the provisions of this Agreement nor an acceptance of any such terms. Waiver by CCBF of any Default or breach of any of the terms of this Agreement, or any failure to enforce the same, will not in any way affect, limit, or waive CCBF’s right to thereafter enforce or compel strict compliance to that or any other term hereof. The provisions of Sections 3, 4, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 19, and 20, and any additional provisions that by law or by their nature, sense and context should survive, will survive any termination or expiration of this Agreement.
20. Notices. Any notice or other communications required or permitted hereunder will be in writing by registered or certified mail, postage prepaid. Any such notice will be deemed to have been received the fifth business day following such mailing. Any such notice may be sent by recognized courier service or U.S. mail. Notice to Customer will be to the address listed in the signature page of this Agreement, and to CCBF will be addressed as set forth below:
Coca-Cola Beverages Florida, LLC
10117 Princess Palm Avenue
Tampa, FL 33616
Attention: Executive Vice President
with a copy to:
Attention: General Counsel
at the address above
Classified – Confidential