LISTING AGREEMENT TO PROCURE CUSTOMERS
This Listing Agreement to Procure Customers (“Agreement”) is by and between Roaming Hunger Inc., a California corporation, whose address for purposes of this Agreement is 8228 W. Sunset Blvd., Suite B, West Hollywood, CA 90046 (“Company”) and the user, (“Seller”) and is effective immediately.
- Company hosts a website which displays listings for the sales of food trucks and other products (each a “Product”). Customers seeking the purchase of Products access the Company's website (each a “Customer”).
- Seller desires to sell their Products to Customers.
- Seller wishes to engage Company to list its Products on the Company's website and agrees to compensate Company in accordance with this Agreement.
NOW, THEREFORE, in exchange of the mutual covenants and promises contained herein, Seller and Company agree as follows:
- Services Provided by Company. Upon request by Seller, Company shall list Seller's Product(s) for sale on Company's website. Seller authorizes company to: forward Customer leads to Seller, negotiate on behalf of Seller with Customers, underwrite or perform other due diligence tasks with any Customer, accept payment on behalf of Seller and retain any Fee (as defined below), recommend or arrange financing for any Customer, and any other task necessary to perform Company's responsibilities herein in Company's sole discretion for the benefit of Seller. Company does not guarantee it can procure any Customers for Seller, but shall use its best efforts to do so.
- Company's Fees to Perform Services. During the term of this Agreement, the parties agree that Company shall receive a fee in consideration of the closing of any sale of any of Seller's Product(s) to a Customer. The fee shall be Ten percent (10%) of any gross sales amount for the sale of any Product of Seller (“Fee”) payable to Company. In Company's discretion, Company may collect the gross sales amount from any Customer, retain the Fee and disburse the net proceeds to Seller.
- Fee Fully Earned. Company will fully earn the Fee if: a) Seller sells their Product to a Customer, whether or not Company has performed any services identified in Section 1 herein; or b) a ready willing and able Customer is located for the purchase of Seller's Product and the Product is not sold due to no failure of the Customer or a failure to sell on behalf of Seller. If the sale does not occur due to no fault of the Customer or Company, the gross sales amount shall equal the greater of Seller's listing price or the price Customer agreed to pay for the Product.
- Seller Will Pay Third Party Fees. Seller agrees to pay all of the following costs paid to third parties in advance if required by Company, or reimburse Company for costs paid on their behalf to third parties (“Third Party Fees”), including but not limited to any sales tax, credit reporting fees, governmental fees of any kind. Third Party Fees shall not include any fees to host the Seller's Products on Company's website.
- Termination of Agreement. This Agreement shall begin on the date set forth above. It shall have a three (3) year term. Notwithstanding the foregoing, Company shall be entitled to receive compensation pursuant to Section 2.1(b) of this Agreement after this Agreement terminates.
- Confidentiality, Non-Disclosure and Non-Circumvention.
- Confidentiality. In performing services herein, Company will disclose to Seller certain confidential information, trade secrets and/or other proprietary information of Company, including but not limited to the identity, contact information, credit information and other information required to assist Seller with the sale of its Products to any Customers (“Confidential Information”). Seller, including its affiliated companies, agents, employees, representatives, successors in interest or assigns, agrees to maintain the confidentiality and secrecy of any Confidential Information disclosed by Company. Seller acknowledges and agrees that the Confidential Information is valuable, special and unique to Company's business; that it is not widely known; and that Company's business depends on such Confidential Information. Seller acknowledges that Company has taken, and continues to take, reasonable and necessary steps to protect its Confidential Information and keep it confidential.
- Restrictions on Use. Seller covenants and agrees that:
- Confidential Information received by Seller from Company shall be used only for purposes of discussing and evaluating a potential sale of Seller's Products to Company's Customers and for no other reason.
- Confidential Information may not be used by Seller to the detriment of Company.
- Seller shall take all reasonable steps to safeguard and protect Confidential Information disclosed by Company from any theft, loss, unauthorized access, unauthorized use or disclosure and accord it at least the same degree of confidential and proprietary treatment as it gives its own confidential and proprietary information. Unless otherwise required by law, Seller will disclose Confidential Information furnished to it by Company only to those of its agents, employees, representatives on a need-to-know basis and will notify such representatives who are provided any of Company's Confidential Information, or who are involved in such discussions or evaluation, or who may otherwise have occasion to view, handle, or obtain any Confidential Information of Company, of the terms of this Agreement and their obligation to comply with each of them.
- Seller shall not, without the prior written consent of Company, which consent Company may withhold in its sole discretion, use any Confidential Information.
- Upon termination of this Agreement, Seller represents, warrants and covenants that it will at its sole cost and expense, return to Company, and shall not retain any Confidential Information of Company or its employees, in Seller's possession under the direction and control of Seller.
- Non-Circumvention. Seller covenants and agrees that:
- Seller will not in any manner solicit nor accept any business in any manner from Customers which were disclosed through this Agreement, without the express permission of Company.
- Seller will not in any way whatsoever circumvent or attempt to circumvent Company.
- Seller agrees that it, and all its affiliated companies, agents, employees, successors in interest or assigns, will not, during this Agreement's Term and for a three (3) year period after this Agreement's termination, engage in Conduct to Circumvent Company with third parties, including, without limitation, Customers, suppliers, financial sources, manufacturers, consultants, that have been disclosed to them, directly or indirectly, by Company. "Conduct to Circumvent" means contacting, discussing, or transacting business with such third party, without the prior knowledge and written consent of Company.
- Seller will not disclose names, addresses, telephone numbers, or fax numbers of any contact revealed by Company to other third parties, and Seller agrees such contacts are the exclusive property of the Company and that it will not enter into direct negotiations or transactions with such contacts revealed by Company, except as allowed in this Agreement.
- In the event of any circumvention or attempted circumvention, Company shall be entitled to a legal monetary penalty equal to three times (3x) the maximum Fee it would have realized from the sale of the Product, plus any and all expenses, including legal, incurred to recover the lost revenue.
- Liquidated Damages. In the event of a breach of Section 5 of this Agreement, except for a breach pursuant to section 5.3 in instances where the damages are readily ascertainable, each Party acknowledges that Company's Confidential Information is valuable, special and unique to Company's business; that it is not widely known; and that Company's business depends on such Confidential Information. If Seller breaches Section 2 of this Agreement, including a breach pursuant to section 5.3 in instances where the damages are not readily ascertainable, the Parties acknowledge that actual damages would be difficult to ascertain. Therefore, the Parties acknowledge that Seller must pay the sum of Fifteen Thousand Dollars ($15,000.00) to Company for each individual violation of this Agreement as liquidated damages. The Parties further acknowledge that the liquidated damages outlined herein represent a fair attempt to determine the damages that would be suffered and are not a penalty.
- Injunctive Relief. Notwithstanding section 5.4, in the event of the breach of this Agreement by any party, the non-breaching party shall be entitled to seek injunctive relief, both preliminary and permanent, enjoining and restraining such breach or threatened breach. Such remedy shall be in addition to all of the remedies available to the non-breaching party at law or in equity, including the right to recover from the breaching party any and all damages that may be sustained as a result of said breach. In addition to any other remedies available to the non-breaching party under this Agreement, the non-breaching party shall also be entitled to recover, by means of an accounting, any profits that the breaching party may have obtained as a result of such breach or threatened breach.
- Liability. Each Party shall be solely responsible for any breach of this Agreement by its affiliated companies, agents, employees, representatives, successors in interest or assigns, including without limitation, any improper use or disclosure by its affiliated companies, agents, employees, representatives, successors in interest or assigns of Company's Confidential Information.
- Cooperation. Seller understands and agrees that they will fully cooperate with Company to sell Seller's Products to Customers. Such cooperation shall include, but is not limited to, signing all necessary documents, supplemental instructions, instruments and disclosures, permitting access to the Seller's property for an appraisal and inspection and promptly supplying information to the Company that it reasonably requests.
- Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or three (3) business days after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party's address or facsimile number (as applicable) set forth above.
- Jurisdiction/Venue. The laws of the State of California shall govern this Agreement. If a dispute arises in connection with or relating to this Agreement, it shall be subject to the exclusive jurisdiction and venue of the state and federal courts located in Los Angeles, California, and the parties consent to the personal and exclusive jurisdiction and venue of these courts.
- Miscellaneous. This Agreement may not be amended or modified orally but may be amended or modified only in writing, signed by all parties hereto. No waiver of any term or provision of this Agreement shall be effective unless it is in writing, making specific reference to this Agreement and signed by the party against whom such waiver is sought to be enforced. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof. This Agreement shall be binding upon the parties hereto and their respective heirs, legal representatives, successors and assigns. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
- Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute and be construed as one and the same instrument.
- Attorneys' Fees. In the event any dispute or breach under this Agreement, the prevailing party shall be entitled, whether or not any action or arbitration is instituted, to recover from the other party its reasonable costs, disbursements and attorneys' fees, including without limitation at trial, on appeal, on denial of any petition for review, and in connection with the enforcement of any judgment.
- Severability. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect.
- Joint Drafting. This Agreement shall be construed as if it were drafted by all parties hereto. Any uncertainty or ambiguity existing in the Agreement, if any, shall not be interpreted against any party, bu according to the application of the rules of interpretation of contracts. Section and article headings used herein are for convenience only and shall not be a part of the substance or interpretation of the Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by its duly authorized officers or signatory and of the date first hereinabove written.
Acceptance of this agreement via the website is binding and in lieu of a signature.