EXHIBIT 10.8
GARDNER RESOURCES PRIVATE LABEL AGREEMENT
PRIVATE LABEL AGREEMENT
THIS AGREEMENT is entered into between GARDNER Resources, Inc. (hereafter
"GARDNER") of Highlands, New Jersey and Go-Rachels.Com Corp. of Bloomington,
Minnesota (hereafter "RACHEL'S").;
WHEREAS, GARDNER has expressed a desire to utilize one of RACHEL'S snack
food products and to have RACHEL'S manufacture or contract for the manufacture
of said snack food under the private label of "Blair's Death Rain (R)Chips"; and
WHEREAS, RACHEL'S is willing to provide GARDNER with the private label
version of barbecue flavored potato chip additionally spiced with "Blair's Death
Rain (R)," in accordance with the terms set forth herein;
NOW THEREFORE, for good and valuable consideration, GARDNER and RACHEL'S
agree as follows:
1. LICENSE
RACHEL'S grants to GARDNER the exclusive right and license to utilize
the recipes, ingredients, procedure and know-how, which comprises Rachel's
Barbecue Potato Chips when combined with Blair's Death Rain (R) Spice,
processed in high oleic sunflower oil, and all GARDNER to market and sell
said snacks under private label as "Blair's Death Rain (R) Chips" (or under
any other trade name or trademark).
2. NO AGENT
It is understood that RACHEL'S is not an agent of GARDNER and shall
not refer to GARDNER'S corporate name in any of its products or literature
without the express written consent of GARDNER.
3. PRICES
3.1 RACHEL'S shall charge GARDNER $2.40 (Two dollars and Forty Cents)
per each case; each case therein containing ten (10) private labeled bags;
each bag with a net weight of 2 (two) ounces of product.
3.2 ADDITIONAL DISCOUNTS
In the event Gardner places any segregate order as outlined below for private
label potato chips the listed discount will apply:
Number of Impression Discount Per Invoice
-------------------- --------------------
200,000 - 299,999 2.5%
300,000 - 499,999 3.5%
500,000 or more 5.0%
4. PRODUCTION
4.1 PRODUCT PACKAGING
The film used for the packaging of "Blair's Death Rain (R) Chips" shall be
provided by and at the expense of GARDNER. GARDNER retains any and all property
rights to the packaging film. Said film will be maintained by RACHEL'S in a
reasonable manner at their facility.
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4.2 LIMITATIONS
RACHEL'S shall only produce "Blair's Death Rain (R) Chips" when
accompanied by a signed and dated purchase order from GARDNER.
RACHEL'S shall only manufacture the product in the quantity specified
by a fully executed GARDNER purchase order.
4.3 TIME FOR PRODUCTION
RACHEL'S agrees to provide GARDNER with "Blair's Death Rain (R) Chips"
ten working days from receipt of a valid purchase order.
5. DELIVERY
5.1 SCHEDULE
Delivery of the products are delivered by RACHEL'S F.O.B. RACHEL'S
point of shipment.
5.2 DELIVERY CHARGES
GARDNER shall make arrangements with a freight carrier for the
transportation of finished product from RACHEL'S. GARDNER shall bear
the cost of this transportation. GARDNER assumes all risk of loss upon
delivery of the products to the carrier by RACHEL'S. RACHEL'S shall be
responsible for loading the trucks, trailers, containers or whatever
vehicles are chosen for transportation of said product. No additional
charges shall be incurred by GARDNER for any other expenses,
including, but not limited to, costs of pallets and packing materials,
relating to the loading and packing of the products for shipment.
5.3 DELAY
RACHEL'S shall not be liable for any damages or penalties for delay in
delivery when such delay is due to the elements, acts of God, delays
in transportation, strikes, fires, or any other causes beyond the
reasonable control of RACHEL'S. The delivery schedule shall be
extended by a period of time equal to the time lost as a result of
such delays.
6. PAYMENT
All orders shall be paid for by GARDNER 1/2, (one half) at
time of order placement and 1/2, (one half), upon delivery basis for
the first ninety days of this agreement. These orders are subject to a
3% cash discount. Payments with order will be provided by Letter of
Credit on Gardners bank payable to Rachel's. After said ninety day
period, GARDNER shall receive terms of 3% COD or 2% ten, (10) days, net
thirty (30) days.
7. TAXES
GARDNER shall pay to RACHEL'S any tax on the product, however,
designated, levied or based by any taxing authority, except any tax
based on net income, whenever RACHEL'S must pay for tax from GARDNER by
RACHEL'S.
8. INSURANCE
RACHEL'S agrees to name GARDNER as additionally insured on
their insurance policy. Proof of such insurance shall be provided to
GARDNER by RACHEL'S.
9. INDEMNIFICATION
RACHEL'S SHALL DEFEND OR SETTLE ANY SUIT OR PROCEEDING BROUGHT AGAINST
GARDNER, INCLUDING ATTORNEYS' FEES, BASED UPON A CLAIM THAT THE RECIPES
AND TRADE SECRETS LICENSED TO GARDNER HEREUNDER CONSTITUTE AN
INFRINGEMENT OF ANY EXISTING UNITED STATES PATENT, COPYRIGHT OR TRADE
SECRET PROVIDING THAT RACHEL'S IS NOTIFIED PROMPTLY IN WRITING AND IS
GIVEN COMPLETE AUTHORITY AND INFORMAITION REQUIRED BY THE DEFENSE.
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10. TERM
Either party may terminate this agreement by providing the
other party with one hundred twenty (120) days written Notice of
Termination.
11. PROPERTY RIGHTS
RACHEL'S hereby acknowledges GARDNER's right, title and
interest in and to the trade names and trademarks "Blair's Death (R),
Blair's Death Rain (R)" and "Blair's Death Rain (R) Chips" and
GARDNER's exclusive right to use the trade names and trademarks and
agrees not to claim any title to them. RACHEL'S shall not contest the
trade names and trademarks or any right to use the trade names and
trademarks.
12. ASSIGNMENT
Neither this Agreement nor all or any portion of the rights
licensed herein shall be assigned by either party without the prior
written consent of the other party, which consent shall not be
unreasonably withheld.
13. MERGER
This Agreement constitutes the entire understanding of the
parties hereto concerning the subject matter hereof, all prior
understanding having been merged herein. This agreement cannot be
modified or amended except by a writing signed by the parties hereto.
14. SUCCESSORS
The rights and obligations of the parties hereto shall inure
to the benefit of, and be binding and enforceable upon, the respective
successors and assigns of the parties.
15. GOVERNING LAW; JURISDICTION; VENUE
This Agreement shall be governed by, and interpreted under,
the laws of the State of New Jersey applicable to contracts made and to
be performed therein, without giving effect to the principles of
conflicts of law. Except in respect to an action commenced by a third
party in another jurisdiction, the parties hereto hereby agree that any
legal suit action, or proceeding arising out of or relating to this
Agreement must be instituted in a federal or state court location in
the country and State of New Jersey, and the parties hereto hereby
irrevocably submit to the jurisdiction of any such court and waive any
objection to the laying of venue in, or the inconvenience of, such
forum.
16. WAIVER
No waiver by any party of any breach of any provision hereof
shall constitute a waiver of any other breach of that or any other
provision hereof.
17. ATTORNEYS' FEES
In any action between the parties to enforce any terms of this
Agreement, the prevailing party shall be entitled to recover expenses,
including reasonable Attorneys' fees.
/s/ 8/28/2000 /s/ 8/28/2000
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Lawrence Castriotta, President/CEO Blair Lazar, President/CEO
Go-Rachels.com Corp. Gardner Resources, Inc.
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