Amendments. The terms of this Agreement shall not be waived, altered, modified, supplemented, or amended in any manner whatsoever unless agreed to in writing and signed by all the Parties.
20.2 Assignment/Subcontractors/Successors. The Parties shall not assign, sell, transfer, or subcontract any rights or delegate any responsibilities under this Agreement, in whole or in part, without the prior written approval of the non-assigning Parties.
20.3 Compliance with Applicable Law. The Parties shall comply with all federal, state, county, and local laws, ordinances, rules, and regulations applicable to the Beverages and Snacks and other services to be provided pursuant to this Agreement. The Parties specifically agree to comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules, and regulations. The Parties agree to adhere to and comply with all applicable environmental rules and regulations. The Parties also agree to comply with the Americans with Disabilities Act, 42 U.S.C. § 12100, et seq., and all regulations and administrative rules established pursuant to those laws. Failure or neglect on the part of the Parties to comply with any or all such laws, ordinances, rules, and regulations shall not relieve the Parties of their obligations under this Agreement. 20.4 Compliance with Rules of Sports Organizations. The Vendor shall take no action or enter into any contract or agreement related to this Agreement that would violate any rules or regulations of the NCAA, the SEC, or any other applicable governing sports organization. 20.5 Force Majeure. Neither Party shall be held responsible for delay or default caused by fire, riot, act of nature, terrorist acts, or other acts of political sabotage or war where such cause was beyond the reasonable control of the Parties. Each of the Parties shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon cessation of the cause, diligently pursue performance of its obligations under this Agreement. 20.6 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Alabama, without resort to any jurisdiction’s conflict-of-laws rules or doctrines. Any claim, action, or suit between the University and the Vendor that arises out of or relates to this Agreement shall be brought and conducted solely and exclusively within the appropriate court for Lee County, Alabama; provided, however, that if any such claim, action, or suit may be brought only in federal forum, it shall be brought and conducted solely and exclusively within the United States District Court for the Middle District of Alabama. The Vendor hereby consents to the personal jurisdiction of said courts. 20.7 Government Employment Status. The Vendor certifies that it is not currently employed by the federal government or Auburn University. 20.8 Independent Contractor Status. The University reserves the right to (a) determine and modify the delivery schedule for the Beverages/Snacks and (b) evaluate the quality of the Beverages/Snacks; however, the University may not and will not control the means or manner of the Vendor’s performance. The Parties are acting herein as independent contractors and independent employers. Nothing herein contained shall create or be construed as creating a partnership, joint venture, or agency relationship between the Parties; and no Party shall have the authority to bind the other in any respect. The Vendor is responsible for determining the appropriate means and manner of performing under this Agreement. The Vendor is not an officer, employee, or agent of Auburn University. 20.9 Notice; Contacts. Any notice required by or made in connection with this Agreement shall be validly given if in writing and sent to the respective addressees of the Vendor and the University by registered or certified mail, postage prepaid. The University’s contacts for submittals and any other correspondence and notices related to performance under this Agreement shall be:
Scott Carr
Senior Associate Athletics Director for External Affairs
Corner of Samford and Donahue
Auburn, Alabama 36849
Bob Ritenbaugh
Assistant Vice President for Auxiliary Services
100 Samford Hall
Auburn, Alabama 36849
with a copy to:
Missty Kennedy
Assistant Director, Procurement Services
Office of Procurement and Payment Services
311 Ingram Hall
Auburn, Alabama 36849
and
Jon G. Waggoner
University Counsel
101 Samford Hall
Auburn, Alabama 36849
or such other individuals as may be serving in these positions at the time.
The Vendor’s contacts for submittals and any other correspondence and notices related to performance under this Agreement shall be:
_________________
_________________
_________________
_________________
With a copy to:
_________________
_________________
_________________
_________________
or such other individuals as may be serving in these positions at the time.
20.10 Payment of the Vendor’s Obligations. The Vendor agrees to make payments promptly when due to all persons supplying to the Vendor labor or materials for the provision of the Beverages and Snacks provided for in this Agreement; to pay all contributions or amounts due to the industrial accident insurance provider incurred in connection with the performance of this Agreement; to not permit any lien or claim to be filed or prosecuted against the State of Alabama on account of any labor or material furnished; and to pay to the Alabama Department of Revenue all sums withheld from employees, pursuant to Alabama law. If the Vendor fails or refuses to make any such payments required herein, the appropriate University official may pay such claim and charge the amount of the payment against funds due or to become due to the Vendor under this Agreement. Any payment of a claim in the manner authorized by this section shall not relieve the Vendor or the Vendor’s surety, if any, of obligations with respect to any unpaid claims. 20.11 Severability. If any provisions of this Agreement are declared by a court to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if this Agreement did not contain the particular provision held to be invalid. 20.12 Successors in Interest. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective permitted successors and assigns. 20.13 Tax Compliance Certification. By executing this Agreement, the undersigned hereby certifies under penalty of perjury that the undersigned is authorized to act on behalf of the Vendor and that the Vendor is, to the best of the undersigned’s knowledge, not in violation of any State of Alabama or Federal Tax Laws of any nature. This includes compliance with Section 41-4-116 of the Code of Alabama (1975), which requires that every bid submitted and contract executed contain a certification that a vendor or contractor and all of its affiliates that make sales for delivery into the State of Alabama, or lease goods for use in the State of Alabama, are registered, collecting, and remitting Alabama state and local sales, use and/or lease taxes on all taxable transactions within the State of Alabama. 20.14 Waiver. Failure of either of the Parties to enforce any provision of this Agreement shall not constitute a waiver or relinquishment by the other Party of its right to such performance in the future or a waiver or relinquishment of the right to enforce any other provision of this Agreement. 20.15 Time of Essence. Time is expressed to be of the essence of this Agreement. 20.16 No Third Party Beneficiaries. No provision of this Agreement is intended to confer upon any person other than the Parties hereto any rights or remedies hereunder. 20.17 Captions; Construction. The captions and other headings contained in this Agreement as to the contents of particular articles and sections of this Agreement are inserted for convenience of reference only and are in no way to be construed as part of this Agreement. Defined terms in the singular shall include the plural as well as the singular and vice versa. 20.18 Interpretation. Each of the Parties hereto has participated in the drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement. 20.19 Multiple Counterparts. This Agreement may be signed and delivered, by facsimile or otherwise, in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each Party hereto shall have received a counterpart hereof (whether by facsimile or otherwise) signed by the other Party hereto. 20.20 Entire Agreement. The Parties understand and agree that this instrument contains the entire agreement among the Parties hereto. The Parties hereto further understand and agree that the other Party and its agents have made no representations or promises with respect to this Agreement or the making or entry into this Agreement, except as expressly set forth in this Agreement, and that no claim or liability, or cause for termination shall be asserted by either Party against the other, and such Party shall not be liable by reason of the making of any representations or promises not expressly stated in this Agreement, any other written or parole agreement with the other Party being expressly waived. The Parties hereto acknowledge that they have thoroughly read this Agreement, including any exhibits or attachments hereto, and have sought and received whatever competent advice and counsel was necessary for them to form a full and complete understanding of all rights and obligations contained herein.
20.21 Authority. Each Party represents and warrants that it has the authority to enter into this Agreement and to perform all obligations hereunder.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the University and the Vendor have caused this Agreement to be executed and delivered by their duly authorized officers.
AUBURN UNIVERSITY
By: _______________________________
Name: Donald L. Large, Jr.
Title: Executive Vice President
Company
By: _______________________________
Name: _____________________________
Title: ______________________________
Bottler
By: _______________________________
Name: _____________________________
Title: ______________________________
EXHIBIT A
BEVERAGES
Beverage Name
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SKU
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Description
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Size
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Packaging Details
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EXHIBIT B
Vending Locations
AU AUBIE HALL #1 20 OZ
AU BROUN HALL #4 FRTP
AU BURTON HALL #1 CAN
AU CAMBRIDGE HALL #1 CAN
AU CARY HALL #1 CAN
AU CARY HALL #2 20 OZ
AU COLLEGE OF ENGINEERING
AU COMER 20 OZ
AU COMER HL #1 CAN HALLWAY
AU COMER HL #2 FRTP HALLWAY
AU DOBBS HL #1 CAN DRM D
AU DOBBS HL #2 20OZ DRM D
AU DORM L #1 CAN
AU DORM M
AU DOWDELL HALL DORM 5
AU DOWELL HL #1 DRM G CAN
AU DOWELL HL #2 20 OZ DRM G
AU DRAKE #2 STDNT HLTH WTR
AU DUDLEY HL #3 WTR&PA
AU DUDLEY HL #6 20 OZ
AU DUNCAN HALL
AU DUNCAN HL #1 CAN DRM B
AU DUNN HL #1 CAN DRM E
AU DUNN HL #2 20 OZ DRM E
AU DUNSTON BLDG #2
AU DUNSTON BLDG 1 CAN
AU DUNSTON BLDG 1 FRTP WTR
AU DUNSTON HALL CAN
AU EAGLE HALL #1 20 OZ
AU EXTENSION HALL
AU FORESTRY 20 OZ CSD #2
AU FORESTRY BLDG #1 CAN
AU FORESTRY CAN 1 BREAK
AU FORESTRY CAN FACULTY
AU GLENN HALL DORM 6
AU GRAVES HL #1 CAN DRM F
AU GRAVES HL #2 20 OZ DRM F
AU HALEY CENTER BASEMENT
AU HALEY CTR #01 20 OZ
AU HALEY CTR #02 20 OZ
AU HALEY CTR #03 CAN
AU HALEY CTR #04 20OZ
AU HALEY CTR #05 FRTP FLR 1
AU HALEY CTR #07 20 OZ
AU HALEY CTR #08 20 OZ
AU HALEY CTR #10 LOBBY CAN
AU HALEY CTR #16 PA WTR
AU HALEY CTR #17 CAN
AU HALEY CTR ENERGY
AU HALEY CTR KMX
AU HARPER HL #1 DRM 1
AU HOLLIFIELD HL #1
AU HOLLIFIELD HL #2 20 OZ
AU INFO CTR #1 CAN HALLWAY
AU INFO CTR #2 20 OZ
AU INFO CTR #3 CAN STAIRWELL
AU KATIE BROUN #2 CAN LOUNGE
AU KELLER HALL DORM #9
AU KNAPP HL #1 DRM H
AU KNAPP HL #2 DRM H
AU L BUILDING CAN
AU LANE HALL DORM #7
AU LIBRARY
AU LIFE SCNCE BLD #1 CAN
AU LIFE SCNCE BLD #4 FRTP
AU LIFE SCNCE BLD #5
AU LITTLE HL #3 DRM 3
AU LOWDER BUS BLD #1 WATER
AU LOWDER BUS BLD #2 WATER
AU LUPTIN HALL DORM #8
AU MAGNOLIA HALL #1 20 OZ
AU MARTIN HL #1 CAN FLR 2
AU MARTIN HL #2 CAN FLR 2
AU MELL HALL
AU MILLER HALL FL 1 CAN
AU NEW ATH CMPLX #1 CAN
AU NTML TILLAGE LAB
AU NUCLEAR SCIENCE CAN
AU OAK HALL #1 20 OZ
AU OLD B & G CAN-MAIL ROOM
AU OWEN HALL DORM #10
AU PARKER HL #1 CAN
AU PARKER HL #2 20OZ
AU PARKER HL #3 WATER
AU PARKER HL #4 20OZ
AU PARKER HL #5 FRTP
AU PETRIE HALL CAN
AU PHAMARCY
AU PHAMARCY
AU PHARMACY BLDG #1 CAN
AU PHARMACY BLDG #3 FRTP
AU PHARMACY BLDG #4 20 OZ
AU PLAINSMEN #1 20 OZ
AU POULTRY SCIENCE BLDG NCB
AU POULTRY Science Bldg Csd
AU PSYCHOLOGY LAB CAN
AU QUAD CTR #1 CAN
AU QUAD CTR #2
AU RBD LIBRARY
AU RBD LIBRARY
AU SAMFORD HALL #1 CAN
AU SASNETT HL #1 CAN DRM K
AU SASNETT HL #2 CAN DRM K
AU SASNETT HL #3 20OZ DRM K
AU SOUTH DONAHUE HALL #1 20 OZ
AU SPIDLE HL #1 CAN
AU SPIDLE HL #2 JUICE
AU STADIUM DECK #1 CAN
AU STUDENT ACT
AU STUDENT ACT #1 CAN
AU STUDENT ACT #3 PA
AU STUDENT ATHLETE DEVELOPMENT
AU SWINGLE HL #1 CAN
AU TRANSIT PAVILION #1 20 OZ
AU TRANSIT PAVILION #2 20 OZ
AU TRANSIT PAVILION #3 20 OZ
AU TRANSIT PAVILION #4 20 OZ
AU TEAGUE HL DRM 4 CAN
AU TEXTILE ENGINEERING CAN
AU THACH HALL CAN
AU THEATRE 20 OZ
AU TICHENOR HALL #1 CAN
AU TICHENOR HALL #3 FRTP
AU TIGER HALL #1 20 OZ
AU TOOMER HL #1 CAN DRM C
AU TOOMER HL #2 20OZ DRM C
AU TV STATION #1
AU TV STATION #2
AU VILLAGE LAUNDRY #1
AU VILLAGE LAUNDRY #2 20OZ
AU WALLACE BLDG CAN
AU WALLACE BLDG DOWNSTAIR
AU WALLACE JUICE
AU WILLOW HALL #1 20 OZ
AU WILMORE LABORATORY
AU WOMENS ATHLETIC COMPLEX
AU WOMENS ATHLETIC COMPLEX
EXHIBIT C
Auburn University Wholesale Pricing1
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Beverage
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Invoice Price / Case
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EXHIBIT "D”
FOUNTAIN EQUIPMENT LEASE AGREEMENT(if applicable)
EXHIBIT “E”
Bottler’s Equipment Placement Agreement (if applicable)
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