COOLER TERMS AND CONDITIONS
You (“Retailer”) acknowledge and agree that your acceptance and continued use of this cooler (“Cooler”) binds you to the following Cooler Terms and Conditions (“Terms”) with Woodbolt Distribution, LLC dba Nutrabolt (“Nutrabolt”), a Delaware limited liability company, located at 4407 Monterey Oaks Blvd., Suite 150, Austin, TX 78749. These Terms may be updated at any time, without prior notice, at Nutrabolt’s sole discretion.
- License Grant; Risk of Loss. Nutrabolt shall grant to Retailer a non-transferrable license to use the Cooler at the delivery location (“Location”), subject to these Terms. Title to the Cooler remains with Nutrabolt throughout the Term (defined below), and Retailer shall acquire no right, title, or interest in the Cooler. Retailer shall not pledge or encumber the Cooler in any way. The Cooler shall be provided with the following warranties: (i) a three (3) year parts and labor warranty; and (ii) a two (2) year compressor warranty. Nutrabolt or its agent shall be responsible for the delivery of the Cooler to the Location and reasonable wear and tear maintenance beyond the warranty period. In connection with Retailer’s use of the Cooler, Retailer shall bear all risk of loss or damage to the Cooler while in Retailer’s possession and be responsible for any costs incurred, excluding reasonable wear and tear maintenance or damage covered under the warranty as described above. Retailer shall notify Nutrabolt in writing within five (5) business days of any such loss or damage. Retailer agrees to provide Nutrabolt with thirty (30) days prior written notice in the event of a change to the Cooler location. Nutrabolt reserves the right to take possession of the Cooler (i) if Retailer breaches these Terms; (ii) upon termination of the Terms pursuant to Section 3; or (iii) at any time for any reason, with or without notice to Retailer.
- Exclusivity. Retailer represents and warrants that during the Term, only Nutrabolt-branded products (“Nutrabolt Products”) shall be stocked and displayed in the Cooler at all times unless otherwise agreed by Nutrabolt in writing via an amendment to these Terms. Retailer acknowledges and agrees that if at any point in time any products other than Nutrabolt Products are stocked and/or displayed in the Cooler: (i) these Terms will automatically terminate; (ii) Nutrabolt or its agent will take possession of the Cooler; and (iii) Nutrabolt shall have no further obligations or liabilities to Retailer under these Terms.
- Term and Termination. These Terms shall become effective on the date Cooler is accepted by Retailer at the Location and shall remain in effect until termination as contemplated in this Section 3 (the “Term”). Nutrabolt may terminate these Terms (i) if Retailer fails to perform pursuant to these Terms and fails to cure such performance deficiency within ten (10) days after receiving written notice thereof by Nutrabolt; (ii) immediately in the event Retailer takes any action that negatively affects the goodwill or reputation of Nutrabolt or the Nutrabolt Products; or (iii) otherwise upon thirty (30) days written notice to Retailer. Either party may terminate these Terms upon notice to the other party (i) if the other party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Termination; Return of Cooler. Upon termination of these Terms, Retailer agrees to meaningfully cooperate with Nutrabolt to deinstall, inspect, and properly facilitate pick-up and/or return of the Cooler to a location designated by Nutrabolt. Retailer shall cause the returned Cooler to: (a) be free and clear of all liens and rights of third parties; (b) be in the same condition as when delivered to Retailer, ordinary wear and tear excepted; (c) have all of Retailer’s insignia or markings, if any, removed or painted over and the areas where such markings were removed or painted over refurbished as necessary to blend with adjacent areas; and (d) be in compliance with all applicable laws.
- Indemnification. Retailer shall indemnify, defend, and hold Nutrabolt, its parent, subsidiaries, affiliated companies, current and former directors, officers, employees, contractors, stockholders, agents, and representatives (collectively, the “Indemnified Parties”) harmless against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under these Terms, and the cost of pursuing any insurance providers (collectively, “Claim(s)”) arising out of or occurring in connection with the Cooler and any act or omission of Retailer under these Terms. Nutrabolt will notify Retailer of any Claim. Any settlement on behalf of Nutrabolt requires Nutrabolt’s approval. Nutrabolt shall provide reasonable assistance to Retailer, at Retailer’s expense, in defending the Claim and may, at its option, participate in the settlement or defense of any Claim with its own counsel and at its own expense.
- LIMITATION OF LIABILITY. NUTRABOLT SHALL NOT BE LIABLE TO RETAILER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THESE TERMS (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS), EVEN IF NUTRABOLT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Insurance. At all times during the Term of these Terms, Retailer shall provide and maintain in full force and effect insurance coverage issued by insurers of recognized responsibility that insures the Retailer and its properties, products, and business, including, but not limited to, the Nutrabolt Products and Cooler against such losses and risks, and in such amounts, as are customary for comparably situated companies engaged in the same or similar business. Retailer acknowledges that such insurance coverage is adequate against all liabilities, claims, and risks against which it is customary for comparably situated companies to insure. At any time during the Term, upon Nutrabolt’s request, Retailer shall furnish to Nutrabolt current certificates of insurance, endorsements, all policies, or other policy documents evidencing adequate coverage, as necessary.
- Notices. Notices provided hereunder to Nutrabolt shall be in writing or delivered electronically via e-mail to the contact information below:
Woodbolt Distribution, LLC dba Nutrabolt
Attn: Legal Department
4407 Monterey Oaks Blvd, Ste. 150
Austin, TX 78749
- Survival. Sections 4 (Effect of Termination; Return of Cooler), 5 (Indemnification), 6 (Limitation of Liability), 7 (Insurance) and 9 (Miscellaneous) shall survive termination or expiration of these Terms.
- No Partnership. These Terms do not create any agency, partnership, or joint venture between the parties hereto.
(c) Confidential Information. These Terms and all non-public, confidential, or proprietary information exchanged by the parties (“Confidential Information”) shall be confidential. Information that (i) is or becomes publicly available through no fault of either party; (ii) was previously known by the receiving party; (iii) is rightfully received from a third party; or (iv) was independently developed by the receiving party shall not be confidential. For purposes of clarity, any customer or other data collected by Retailer, provided by Nutrabolt, or otherwise collected by either party under these Terms shall constitute Nutrabolt’s Confidential Information. The parties agree that the Confidential Information (as defined herein) is highly valued, that such information must be kept in strict confidence, and that such information shall not be used or disclosed except in the performance of obligations hereunder. Retailer further acknowledges and agrees that Nutrabolt will be irreparably harmed by any disclosures of such Confidential Information and that the restrictions in these Terms are reasonable and necessary to protect Nutrabolt’s legitimate business interests. The parties shall use at least the same degree of care with Confidential Information as such party uses for its own Confidential Information but in no event less than reasonable care. The parties shall disclose Confidential Information only to such personnel who have a need to know such information for the performance of the Services or other obligations hereunder and who are subject to written agreements with confidentiality restrictions at least as restrictive as those contained herein. Further, Retailer agrees to take all other reasonable security precautions in connection with the handling and use of the Confidential Information as is reasonably requested by Nutrabolt from time to time. In the event either party is required to disclose any portion of the Confidential Information pursuant to a judicial or governmental order, such party shall provide the other party with immediate written notice of such order and shall provide the party with all reasonable assistance in connection with any request for injunctive relief or other confidentiality measures. In the event such party does not seek injunctive relief or other confidentiality measures, the disclosing party shall disclose only such much of the Confidential Information as is legally required to comply with the order.
(d) Assignment. Nutrabolt may assign these Terms. Retailer may not assign these Terms without prior written notice to Nutrabolt.
(e) Governing Law and Venue. These Terms, and all matters arising out of or relating to these Terms, are governed by the laws of the State of Texas without giving effect to any conflict of laws principles. The parties agree that venue for all legal action(s) relating to these Terms shall be state or federal courts located in Travis County, Texas.
(f) Severability. If any provision herein is deemed unenforceable or invalid, the balance of these Terms shall remain in effect.
(g) Amendment and Waiver. All amendments shall be in writing and executed by the parties. No waiver by any party of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of these Terms or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach of any other covenant, duty, agreement or condition.
(h) Force Majeure. Neither party will be liable for any failure to perform under these Terms due to acts of God, acts of governmental authorities, fire, strike, pandemics, weather-related transportation delays, riots, war, or any other cause beyond the party’s reasonable control.
(i) Entire Agreement. These Terms constitute the entire agreement between the parties and supersedes all prior agreements between the parties.