This Trademark/Product Marketing Agreement (“Agreement”) is made between Snowie, LLC, a Utah Limited Liability Company (“Snowie”) and (“Purchaser”). The Purchaser agrees to abide by the terms and conditions established in this Agreement when purchasing, leasing or otherwise acquiring or using any Snowie trademark or name. This Agreement is to be attached to and made part of any such purchase, lease or invoice, bill of sale or agreement. Snowie is in the business of manufacturing and distributing unique proprietary shaved ice equipment, including, but not limited to, machines, trailers and other related products as well as syrup flavorings for the making of a confectionary product consisting of shaved ice saturated with various flavors derived from a syrup. The Purchaser is purchasing from Snowie the flavoring products for the shaved ice to be utilized in its retail shaved ice products.
The following conditions are to be met:
- Both Snowie and Purchaser mutually agree and stipulate that Snowie has the right and obligation to protect and safeguard and maintain control of the quality of shaved ice products distributed under its trade name and/or logo as outlined above. (See Addendum A: Snowie License Agreement)
- As part of Snowie’s obligation to maintain control of the quality of the shaved ice products, Purchaser agrees and stipulates that it will, on an exclusive basis, buy all shaved ice flavoring products (syrups) from Snowie which are, in any manner, sold, employed or distributed in association with the SNOWIE trademark, logo, name and/or equipment. This would include the use of the SNOWIE trademark, logo or name on any retail distribution product such as, but not limited to, signage, napkins, cups, banners or advertising, as well as the use of the SNOWIE trademark or logo on any distribution outlet or place of business whether permanent or mobile.
- Purchaser agrees to adequately maintain and keep in good repair, any and all equipment affiliated with, or used in conjunction with, the SNOWIE trademark, name and/or logo. In addition, all said equipment must be either Snowie manufactured equipment or equipment approved by Snowie for use in conjunction with the SNOWIE trademark, name and/or logo.
- Purchaser agrees to abide by the terms of this Agreement when using the SNOWIE trademark, name or logo in any manner and obtain prior written approval for such use and will subsequently submit full documentation of such use to Snowie as per Addendum B: Advertising Agreement.
- Snowie agrees to make available and sell the syrup to the undersigned Purchaser at its prevailing commercial rate and agrees that it will not charge any additional mark-up or surcharge to the standard purchase price. Nothing contained in this Agreement, however, will restrict or limit the ability of Snowie to engage in uniform and regularly applied price increases or volume discounts for large orders of its syrup products.
- Snowie agrees, as part of this Agreement, to make available any of the various marketing, adverting, or managing forms and materials currently available or subsequently developed for the purpose of promoting or managing the business under the SNOWIE name.
- Purchaser agrees that in the event of any violation of the terms and provisions of this Agreement, Snowie may seek immediate injunctive relief, whether or not coupled with a claim for damages, to prevent any further or continuing violations. Further, it is agreed between Snowie and Purchaser that upon any proven violation of the terms of this Agreement, Snowie may, at its discretion, and at the cost of the Purchaser, terminate the rights to use the SNOWIE trademark and require the removal of all items, including but not limited to, decals, banners, cups, business cards, etc. In addition, Snowie may be entitled to liquidated damages because the damage to the reputation and goodwill of the SNOWIE trademark and logo is uncertain. It is also agreed that Snowie may alternatively elect to receive stipulated liquidated damages of at least $5,000 for any violation of this Agreement by Purchaser.
- Purchaser agrees that any sale, resale or transfer of ownership of any Snowie equipment or product bearing the SNOWIE trademark, name and/or logo remains subject to the conditions of this Agreement and must be disclosed to the acquirer of said products. At the time of purchase, the acquirer, by acquisition of Snowie products, accepts any and all conditions of this Agreement. Failure by Purchaser to disclose the obligations of this Agreement to the acquirer does not eliminate or remove the conditions or parameters outlined in this Agreement. Any liability resulting from failure to notify the acquirer becomes the responsibility of the Purchaser named herein. Snowie must be notified within 30 days of any assignment, pledge, sell or transfer of ownership.
- Further, Snowie shall be entitled to recover all reasonable investigative costs, court costs and fees, attorneys’ fees and interests on any monetary damages at the rate of 12% per annum from the date of any breach until paid. Further, both parties stipulate and agree that jurisdiction and choice of law of any action arising out of a violation of this Agreement shall be the place of origin of this Agreement, which is Salt Lake County, State of Utah.
Snowie Agreement Addendum
This addendum agreement is between Snowie, LLC, (“Licensor”) and Purchaser as submitted in this form, (“Licensee”).
It is understood and agreed that this Addendum to the contract to which it is adhered, is intended to be a License, granting the licensee permission to engage in certain acts subject to the terms, conditions and limitations set forth herein. Licensor does not grant Licensee any permanent rights to the use of the SNOWIE trademark and brand, nor shall any other relationship between the parties, including but not limited to that of Licensor and Licensee, be implied or created by virtue of this Addendum or the Agreement to which it is attached. The License granted by this Agreement may not be sold, assigned, transferred, mortgaged, pledged or transferred by Licensee without written permission from Licensor.
In Consideration of the agreements set forth herein, the parties agree to:
- Ownership. Subject to the express rights and licenses granted by Licensor in this Agreement, Licensee acknowledges and agrees that: (a) any and all Licensor's Intellectual Property Rights are the sole and exclusive property of Licensor; (b) Licensee shall not acquire any ownership interest in any of Licensor's Intellectual Property Rights under this Agreement; (c) any goodwill derived from the use by Licensee of Licensor's Intellectual Property Rights inures to the benefit of Licensor; (d) if Licensee acquires any Intellectual Property Rights in or relating to any product (including any Good) purchased under this Agreement (including any rights in any Trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to Licensor without further action by either Party; and (e) Licensee shall use Licensor's Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with this Agreement and the instructions of Licensor.
- Licensor's Trademark License Grant. This Agreement does not grant either Party the right to use the other Party's Trademarks, except as set out under this Paragraph. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable and non-sublicensable license to use Licensor's Trademarks in the Field during the Term solely on or in connection with the promotion, advertising and sale of the Goods in accordance with the terms and conditions of this Agreement. Licensee will promptly discontinue the display or use of any Trademark to change the manner in which a Trademark is displayed or used with regard to the Goods when requested by Licensor. Other than the express licenses granted by this Agreement, Licensor grants no right or license to Licensee, by implication, estoppel or otherwise, to the Goods or any Intellectual Property Rights of Licensor.
- License to Marketing Materials and Other Documentation. To the extent that Licensee translates or causes to be translated, any of Licensor's marketing materials, user manuals or other documentation, Licensee hereby irrevocably assigns all copyrights in these translations to Licensor, subject to a non-exclusive, non-transferable and non-sublicensable license to Licensee, hereby granted by Licensor, to use the translations during the Term solely on or in connection with the promotion, advertising, resale or use of the Goods permitted under this Agreement.
- Use of the Name “SNOWIE” By Licensee. Licensee is authorized to refer to and advertise itself as an authorized licensee of the Goods. Any use of the name "SNOWIE" by Licensee in connection with its distribution and sale of the Goods or advertising of the name "SNOWIE" is at the Licensee's sole cost and expense. Licensee shall not use the name "SNOWIE" or any Trademark:
Notwithstanding the foregoing, Licensee shall submit to Licensor for prior approval any proposed publication, advertising or other printed material identifying itself as an authorized Goods licensee, including references to itself as an authorized Goods licensee in any telephone, internet or other directory listings; provided, however, this Paragraph does not apply to those materials that were provided and approved by Licensor for Licensee's intended use.
- on, directly, or indirectly in connection with, any place of business or other facility that is not used for, or directly related to, the marketing of the Goods; or
- in, or directly or indirectly as a part of, the trade, corporate or firm name or style of Licensee or of any division, subsidiary or affiliate thereof.
- Prohibited Acts. Licensee shall not:
- take any action that may interfere with any of Licensor's rights in or to Licensor's Intellectual Property Rights, including Licensor's ownership or exercise thereof;
- challenge any right, title or interest of Licensor in or to Licensor's Intellectual Property Rights;
- make any claim or take any action adverse to Licensor's ownership of Licensor's Intellectual Property Rights;
- register or apply for registrations, anywhere in the world, for Licensor's Trademarks or any other Trademark that is similar to Licensor's Trademarks or that incorporates Licensor's Trademarks in whole or in confusingly similar part;
- use any mark, anywhere, that is confusingly similar to Licensor's Trademarks;
- engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under this Agreement (including Goods) or any Licensor Trademark;
- misappropriate any of Licensor's Trademarks for use as a domain name without prior written consent from Licensor;
- alter, obscure or remove any of Licensor's Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under this Agreement (including Goods), marketing materials or other materials that Licensor may provide; and
- subject to Paragraphs 2 and 4 of this Agreement, place Licensor's name or any of Licensor's Trademarks:
- on, or directly or indirectly in connection with, any place of business or other facility that is not used for, or directly related to, the marketing of the Goods; or
- in, or directly or indirectly as part of, the trade, corporate or firm name or style of Licensee or any division, subsidiary or affiliate thereof.
- Licensor's Trademark Notices. Licensee shall ensure that all Goods sold by Licensee and all related quotations, specifications and descriptive literature, and all other materials carrying Licensor's Trademark, are marked with the appropriate trademark notices, including the use of the ™ and ® symbols appropriately, and in accordance with any specific instructions from Licensor.
- No Continuing Intellectual Property Rights. On expiration or earlier termination of this Agreement:
- Licensee's rights under Paragraph 2 and Paragraph 4 cease immediately; and
- Licensee shall immediately cease all display, advertising, promotion and use of all of Licensor's Trademarks and shall not thereafter use, advertise, promote or display any trademark, trade name or product designation or any part thereof that is similar to or confusing with Licensor's Trademarks or with any trademark, trade name or product designation associated with Licensor or any Good.
- Materials. The use of and access to materials and management tools as provided by Licensor are for the general purpose of promoting and marketing Licensee’s shaved-ice business, specifically under the use of the SNOWIE trademark and brand.
- Revocation. The License granted by virtue of this Addendum may be revoked by Licensor, in Licensor’s sole discretion for any reason, including, but not limited to the grounds as set forth herein, including if Licensee fails to perform any of the terms, conditions, or covenants of this license or in the Snowie Trademark/Product Marketing Agreement.
- Intellectual Property. Any and all use of materials provided by and approved by Snowie are the intellectual property of Snowie, LLC. Upon termination of this contract, whether voluntarily or involuntarily, the materials and intellectual property remain the property of Snowie, LLC and must be returned to Snowie, LLC in full. This includes, but is not limited to, all physical and electronic copies and all versions and iterations of materials, regardless of whether or not used.
- Term. Unless sooner terminated as provided herein, the term of this agreement shall be for a period of one (1) year, commencing on the date listed above, and at the completion of each one year period, shall thereafter automatically renew for an additional one year period, until either party provides written notice of its intent to terminate the agreement at least thirty (30) days prior to the annual effective date.
- Indemnity. Starting on the date Licensee first uses the Snowie brand, the Licensee shall indemnify and hold Licensor, its parents, subsidiaries and affiliates harmless from and against all claims, actions, liens, demands, expenses, and judgments for loss, damage or injury to property or persons resulting or occurring by reason of the use of the Snowie products by the Licensee, including all costs, expenses and attorneys’ fees.
- Definitions. Capitalized terms have the meanings set out below, or in the section in which they first appear in this Agreement.
- “Goods” means those durable goods that are identified as being used in connection with the Trademarks, and as Seller may amend from time to time.
- “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world.
- “Term” has the meaning set out in Paragraph 11.
- “Field” means the shaved-ice industry and business generally.
- “Trademarks” means all rights in and to U.S. and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world. Licensor’s Trademarks include, but are not limited to those identified in Schedule 1.
Snowie Advertising Guidelines
Snowie has created these guidelines to help its Purchasers promote and advertise the products and services offered by Snowie, as well as to provide a consistency in use of their trademarks. These guidelines apply to any and all use of the Snowie name, logo, or other trademarks. This guide provides information on:
- Obtaining Approval;
- Using/Creating Compliant materials and Common Disclosures; and
- Using Trademarks & Logos.
All advertisements, banners, decals, business cards, flyers, etc., that directly or implicitly uses (or link to) the SNOWIE logo, trademark, name, likeness, or directly or implicitly discusses or references the products or services of our company must be approved by Snowie prior to use.
The term “advertisement” includes the following:
- Material used in mailings, newspapers, radio, television, or telemarketing scripts, magazines, billboards or similar displays or any other mass communications media;
- Materials used on the internet or included in a website or webpages;
- Printed materials such as business cards, flyers, brochures, booklets, or form letters;
- Prepared materials for name usage including, but not limited to decals, banners, stickers, magnets, or any many of the company name use of any kind in any fashion.
The company must approve advertisements exactly as they will be used in final form prior to their use. Advertisements that promote your company or business name that does not include the Snowie name in any manner do not require Snowie approval.
- 1) Purchasers must submit the advertisement for review to Snowie’s marketing department. The locations and manner in which the advertisement will be used should be provided when the advertisement is submitted. Please fax materials to (801) 268-1814 or e-mail to firstname.lastname@example.org.
- 2) Snowie will review the advertisement. Please allow a minimum of 10 business days for website use, and five business days for all other advertisements.
- 3) Snowie will contact the individual/company with approval of the advertisement or notification of changes that must be made to comply with our advertising policy.
- 4) Once approved, the company will assign an Approval Code, which must appear somewhere in the advertisement.
- 5) A final copy of the advertisement must be submitted to the Company within two weeks of receiving approval.
Because products and services are updated frequently to accommodate enhancements and modifications, an approved advertisement is only good for 26 weeks (six months) and must then be resubmitted for approval. Whenever an advertisement is revised in any manner, the Purchaser must resubmit the ad for review. After the approval period has passed, Purchasers should submit the advertisements for re-approval. Snowie also reserves the right to review advertising materials as deemed necessary to ensure they are compliant and in the best interest of our consumers and the company.
For questions regarding our advertising policy please email Snowie at email@example.com.
Tips for Creating Compliant Advertisements
- Give a balanced representation of product features.
- Advertisements must be truthful, clear, and never misleading or deceptive.
- Properly identify that the Purchaser Company or individual is independently owned and operated and is solely an authorized Purchaser for Snowie.
- List the Approval Code given on Advertisement Approval Form.
- Include required disclosures, disclaimers and footnotes in at least 8 point font.
- Do not place your name or your company’s name directly below the Snowie’s logo in a way that implies the company is owned by Snowie.
- Do not use the following terminology when referring to yourself or your company: partner, franchise, franchisee, subsidiary, or any other representation that indicates a relationship with Snowie that is more than just an authorized Purchaser.
- Do not cite statistics in the advertisement without identifying the source.
- Do not make unfair or incomplete comparisons between our products and those of our competitors, and specifically avoid negative/disparaging comparisons
Any time Snowie is mentioned it should have a common disclosure at the bottom of the ad stating “Independently owned and operated by (your company).” Please note that additional disclosures may be required.
Using Trademarks and Logos
Please use the following guidelines regarding the use of trademarks and logos.
Proper Use of Trademarks
- Use the ®symbol only for federally registered trademarks, including Snowie®, three Cup Snow-Cone logo design, and Snowie Bus®.
- Use the ™ symbol for use with common law trademarks, including Snowie Shaved-Ice™, Snowie Naturals™, Little Snowie™, Little Snowie 2™
Proper Use of Logos
- Do not reproduce the Snowie Logo/Name in any colors other than those listed in this guide. (Snowie Red, Blue, Green, Yellow, Black and White are approved.)
Construction of Logo
- The logo is composed of three elements: the Snowie Name (font specific), Three Cup Snow-Cone logo design, and physical relationship between the first two components.
- These components are in a relative fixed position and should not be altered.
- To maintain clear visibility for staging the name, a minimum amount of clear space must be left around the exterior of the signature. This space is referred to as the “area of isolation.” A minimum of one-half inch will be maintained between the logo and all other graphic imagery including type, photos/illustrations or page trim.
- The relationship between the Snowie Name and Three Cup Snow-Cone logo design, can only be used as authorized by Snowie. Generally this is limited to the most common version of being place above the Snowie Name, or the pre-approved version of the Three Cup Snow-Cone logo design being placed to the right of the Snowie Name or on both ends of the Snowie name, with all “area of isolation” guidelines still in compliance.
- All logos are available upon authorized use and execution of a Snowie Trademark/Product Marketing Agreement.