Note To Proposers: Please fill in all areas highlighted in yellow when your proposal is submitted.
Form of
Pouring AND VENDING Rights Agreement
This Pouring and Vending Rights Agreement (this “Agreement”) is made and entered into as of _________ _____, 2015, by and among Auburn University, a corporate body politic and an instrumentality of the State of Alabama (“University” or the “University”), __________________ (“Bottler” or the “Bottler”), a corporation existing under the laws of the State of ___________, and ________________________ (“Company” or the “Company”), a corporation existing under the laws of the State of ________ (Individually, Bottler and Company, and collectively, “Vendor” or the “Vendor”). [Proposers are invited to modify the blanks above for Parties and to correct references to Company and Vendor throughout the Form Agreement if doing so is necessary or helpful.]
RECITALS
A. The University has elected to grant to the Vendor Negotiated Exclusivity and certain related advertising rights for the sale of certain Beverages and Vended Snacks at the University.
B. The University desires to enter into a mutually beneficial relationship with the Vendor to provide said Beverages and Vended Snacks and related products and services to the University.
C. The Vendor is willing and able to provide such Beverages and Vended Snacks on the mutually satisfactory terms and covenants set forth herein.
NOW, THEREFORE, in consideration of the premises, mutual covenants, terms, conditions, privileges, obligations and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the University and the Vendor hereby agree as follows:
DEFINITIONS
The following terms, as used herein, shall have the following meanings:
“Annual Business Review” shall have the meaning assigned to such term in Section 14.1. “Athletics” means the Department of Intercollegiate Athletics at the University. “Auburn University” or the “University” means the State of Alabama, acting by and through the Auburn University Board of Trustees, on behalf of Auburn University. “Beverages” means the specific branded non-alcoholic carbonated and non-carbonated beverages set forth on Exhibit A to this Agreement, all of which shall be deemed to be within Vendor’s Exclusive Categories. New Products will not be included in this Agreement unless and until later negotiated through the New Products process, as set forth in Section 5.4 of this Agreement. “Beverages” shall not include freshly brewed tea, freshly brewed coffee, freshly squeezed juices or freshly blended smoothies. “Bottled Water” means all packaged liquids predominantly comprised of water that are identified as “still,” “sparkling,” “filtered,” “purified,” “spring,” “artesian,” “well,” “distilled,” “mineral,” or “flavored” and that may, without specific limitation, contain nutritive or non-nutritive sweeteners or flavorings, vitamins, or minerals. For clarity, examples of Bottled Water include _____, ______, ______, and ______. “Campus” means the area inside Auburn University's Main Campus boundaries in Auburn, Alabama. It does not include Fisheries, Agriculture, or Extension sites, Experiment Stations, Airport, or Auburn University at Montgomery (AUM). Because the University’s isotonic sideline rights are awarded pursuant to a separate process and agreement; areas such as player benches, practice facilities, and locker rooms are not included within the definition of Campus. “Campus” shall not include the Fisheries, Agriculture or Extension sites, Experiment Stations, the Auburn Airport, AUM, or buildings not contiguous to or subsumed in the University’s main campus boundaries in Auburn, Alabama. “Carbonated Soft Drink” means all non-alcoholic beverages containing CO2 gas. For clarity, examples of Carbonated Soft Drinks include ______, ______, ______, and __________. “Company Beverages” means Beverages manufactured, distributed, marketed, or sold under trademarks or brand names owned or controlled by or licensed for use to Company. “Competitive Beverages” means non-alcoholic beverages produced or distributed by a competitor of Company that are a) in one of Vendor’s Exclusive Categories or b) in the same category as a beverage listed on Exhibit A. “Contract Administrator” shall be the first point of contact within each Party organization for issues relating to this Agreement. The Contract Administrator shall be, in the case of University, the Assistant Vice President for Auxiliary Services or his/her designee; and in the case of the Vendor, the people named in Section 20.9 of this Agreement. “Designations” means (1) “Exclusive or Official Pouring Rights Partner of Auburn University”; and (2) “Official Carbonated Soft Drink, Bottled Water, Isotonics, and/or Energy Drink of Auburn University;” and (3) such other designations as shall be mutually agreed in good faith. “Dining Services” means the primary food services provider at the University. “Energy Drink” means a beverage that is labeled or marketed as an “Energy Drink” and contains “exotic” ingredients not typically found in other beverages, such as taurine, ginseng, guarana, and/or gingko biloba. “Energy Drink” shall not include any beverage (a) flavored with or marketed as a “cola” or (b) labeled or marketed in whole or in part as a “sports” or “fitness” beverage or “water” or “fluid replacement” beverage. For clarity, examples of Energy Drinks include ______, ______, ______, and __________. “Housing” means the Department of Housing and Residence Life at the University.
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