INTERNET DISTRIBUTION AGREEMENT
Bodyguard ▇▇▇▇▇▇▇.▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Vendor") wishes
to appoint ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, LLC, a New Jersey limited liability company with its
principal place of business located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ("CyberRetail"), as the exclusive internet distributor of its
products. This agreement sets out the terms and conditions under which Vendor
agrees to appoint CyberRetail as its exclusive internet distributor. Capitalized
terms are defined in the Terms and Conditions in Schedule A.
1. Appointment as Exclusive Internet Distributor
Vendor hereby appoints CyberRetail as its exclusive distributor for the sale of
Products on the Internet, during the Term and pursuant to the terms of this
Agreement.
2. Term
This Agreement shall be for an initial term of two (2) years commencing from the
date hereof unless terminated in accordance with this Agreement.
3. Fees and Commissions
Vendor shall pay to CyberRetail the following fees and commissions:
(a) a Commission of 26.5% of the Retail Price of each Product Item sold by
CyberRetail; (b) a Set-up Fee is WAIVED; (c) a Storage Fee WAIVED; and (d) a
Maintenance Fee is WAIVED for the ongoing maintenance and support of the
Catalogue.
Further details relating to fees and commissions and other charges payable by
the Vendor are set out in the Terms and Conditions.
4. Products
The Products which are the subject of this Agreement are listed on Exhibit A
hereto.
BY SIGNING THIS AGREEMENT THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ,
UNDERSTOOD AND AGREED TO THE TERMS AND CONDITIONS IN SCHEDULE A WHICH FORM PART
OF THIS AGREEMENT.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, LLC BODYGUARD ▇▇▇▇▇▇▇.▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------- ----------------
Print Name: ▇▇ ▇▇▇ Print Name:
Title: CEO Date: 1-17-00
Date: 1/17/00 Chairman/CEO
TABLE OF CONTENTS
Page
1. DEFINITIONS.........................................................1
2. EXCLUSIVE APPOINTMENT...............................................2
3. PRODUCTS............................................................2
4. WEB SITE; CATALOGUE.................................................2
5. INVENTORY CONTROL AND ORDER FULFILLMENT.............................3
6. TITLE TO AND RISK IN THE PRODUCTS...................................4
7. PRODUCT MANAGER.....................................................4
8. PRODUCT RETURNS.....................................................4
9. FEES, COMMISSIONS AND CHARGES.......................................5
10. AUDITS..............................................................5
11. PRODUCT WARRANTY....................................................6
12. REPRESENTATIONS AND WARRANTIES......................................6
13. TERMINATION.........................................................6
14. CONFIDENTIALITY.....................................................7
15. USE OF THIRD-PARTY CONTRACTORS BY CYBERRETAIL.......................8
16. INDEMNITY...........................................................8
17. LIMITATION OF LIABILITY.............................................8
18. MISCELLANEOUS.......................................................9
19. REMEDIES; DISPUTE RESOLUTION.......................................10
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SCHEDULE A
TERMS AND CONDITIONS
1. DEFINITIONS
"Acceptable Size Run" means the minimum inventory level of a Product as
agreed between CyberRetail and the Vendor from time to time. "Agreement" means
the Internet Distribution Agreement between Vendor and CyberRetail and includes
the Terms and Conditions and all other schedules, exhibits and attachments.
"Benchmark Sales Level" shall have the meaning set forth in Section 13.2.
"Catalogue" means the electronic catalogue of all products displayed on the
CyberRetail Web Site. "Catalogue Information" means the information relating to
the Products in the Catalogue.
"Commission" means the commission payable by Vendor under Section 3(a) of
the Internet Distribution Agreement.
"Contact Sheet" means the Product Manager data sheet set out in Exhibit C to
this Agreement. "Customers" means persons who purchase Products from the
Catalogue on the CyberRetail Web Site.
"CyberRetail Web Site" means the Web Site through which CyberRetail intends
to sell Products.
"Delivery Request" shall have the meaning set forth in Section 5.4.
"Disclosing Party" shall have the meaning set forth in Section 14.1.
"Fulfillment Center" means the facilities from which Customer orders will be
shipped. which shall be notified from time to time to Vendor by CyberRetail and
which, initially, shall be CyberRetail's principal business address set forth
above.
"Indemnifying Party" and "Indemnified Party" have the respective meanings
set forth in Section 16.
"Intellectual Property" has the meaning set forth in Section 4.3. "Internet"
includes, but is not limited to, the world wide web.
"License" shall have the meaning set forth in Section 4.3.
"Product" means a product of Vendor listed on the Product List.
"Product Description Sheet" means the data sheet of Products set out in
Exhibit B to this Agreement.
"Product Item" means the smallest unit of a Product that can be sold to a
Customer.
"Product List" means the list of products of Vendor set out in Exhibit A to
this Agreement.
"Product Manager" shall have the meaning set forth in Section 7.
"Receiving Party" shall have the meaning set forth in Section 14.1.
"Retail Price" means the price paid by a Customer for a Product Item
purchased over the CyberRetail Web Site excluding shipping and handling charges
and sales tax.
"Returns Policy" means the policy for product returns set out in Exhibit E
hereto as modified by CyberRetail from time to time.
"Return Processing Fee" shall have the meaning set forth in Section 8.2(d).
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"Shipping Instructions" means the instructions to Vendor for shipping
Product to the Fulfillment Center set out in Exhibit D, as amended by
CyberRetail from time to time.
"Storage Fee" means the fee payable by Vendor under Section 3(c) of the
Internet Distribution Agreement and in accordance with Section 5.5 of the Terms
and Conditions.
"Term" means the term of the Internet Distribution Agreement under Section 3
thereof.
"Terms and Conditions" means these terms and conditions set out in Schedule
A to the Agreement.
"Vendor" shall have the meaning set forth in the Preamble of this Agreement.
"Web Page" means a document or file that is formatted using Hypertext Markup
Language or any related computer programming language which is intended to be
accessible over the Internet using web browser software.
"Web Site" means a series of interconnected Web Pages residing in a single
directory of a single web server computer.
2. EXCLUSIVE APPOINTMENT
Vendor appoints CyberRetail as its exclusive distributor for the sale of
Products on the Internet. Vendor hereby covenants not to sell or permit any
person other than CyberRetail to sell the Products over the Internet during the
Term without the prior written consent of CyberRetail.
3. PRODUCTS
3.1 Product List Amendment. The Product List may be amended to add, remove
or substitute product(s) of Vendor as the Parties may agree.
4. WEB SITE; CATALOGUE
4.1 Web Site. During the Term, CyberRetail shall maintain the CyberRetail
Web Site for the purposes of selling Products over the Internet. CyberRetail
shall maintain the CyberRetail Web Site, in accordance with all applicable
Federal, State and local laws, rules and regulations in the United States of
America.
4.2 Catalogue.
(a) Inclusion of Products. Subject to the requirements in Section 4.2(b)
below, CyberRetail shall add the Products to the Catalogue. CyberRetail shall
determine the form in which the Products shall appear in the Catalogue,
including the information that is to accompany the Product in the Catalogue
(such as the price, size, color or description of the Product and any graphical
depiction of the Product).
(b) Product Information and Samples. CyberRetail is not required to include
a Product in the Catalogue until Vendor has: (i) completed and delivered to
CyberRetail the product description sheet contained in Exhibit B hereto in
respect of each Product in the Product List; (ii) delivered to CyberRetail one
(1) sample of each Product in the Product list; and (iii) delivered to the
Fulfillment Center the Acceptable Size Run for the Product in each case at
Vendor's sole expense.
(c) Updating of Catalogue Information. Vendor shall promptly notify
CyberRetail orally and in writing of changes in: (i) Product availability, (ii)
Product pricing; (iii) the discontinuation of any Product by Vendor; or (iv) any
errors in or changes to the information accompanying any Product in the
Catalogue. CyberRetail shall update the Catalogue to reflect such changes within
two (2) business days of receipt of such a notice from Vendor. CyberRetail shall
not be responsible for any claims regarding errors or omissions of Product
information in the Catalogue resulting from Vendor's error or failure to timely
advise CyberRetail of changes or corrections to the Catalogue Information.
(d) Accuracy of Information. CyberRetail will use reasonable efforts to
ensure that the Catalogue information conforms to the information provided to
CyberRetail by Vendor under this Agreement. However, the accuracy of all
descriptions and representations of the Products shall be the sole
responsibility of Vendor.
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(e) Limited Design Services. Unless expressly provided for elsewhere in this
Agreement, (i) CyberRetail shall have no obligation to provide any creative,
design, technical or production services to Vendor, and (ii) the nature and
extent of any such services which CyberRetail shall provide to Vendor shall be
determined by CyberRetail in its sole discretion.
4.3 License. Vendor hereby grants to CyberRetail a world-wide limited,
non-exclusive, royalty-free license (the "License") to use the name, logo,
trademark(s), labels, slogans, copyrights and other advertising materials
(collectively, the "Intellectual Property") relating to the Products. The
License granted to CyberRetail hereby shall be limited to the use of the
Intellectual Property in connection with CyberRetail's operation and marketing
of the CyberRetail Web Site and CyberRetail's business as herein contemplated.
The limited license provided herein shall terminate at the end of the Term or
upon earlier termination in accordance with the provisions in this Agreement.
5. INVENTORY CONTROL AND ORDER FULFILLMENT
5.1 Order Fulfillment. CyberRetail shall deliver or arrange for the delivery
of Products from the Fulfillment Center to fulfill Customer orders properly made
over the CyberRetail Web Site.
5.2 Inventory Levels. The Vendor shall ensure that inventory levels for a
Product do not fall below Acceptable Size Run. The Vendor must deliver to the
Fulfillment Center sufficient quantity of Product to maintain the Acceptable
Size Run. If the Vendor is unable, for any reason, to maintain the Acceptable
Size Run, or knows of circumstances that may result in inventory levels falling
below the Acceptable Size Run in the future, or of potential material delays in
maintaining the Acceptable Size Run, the Vendor must notify CyberRetail as soon
as possible. CyberRetail may alter the Catalogue or Catalogue Information
relating to that Product.
5.3 Delivery to Fulfillment Center. Vendor shall deliver Products to the
Fulfillment Center in accordance with the Shipping Instructions. Vendor is
responsible for all costs and charges for transportation and delivery of
Products to the Fulfillment Center.
5.4 Delivery Request. CyberRetail may, from time to time, request the
delivery of Product(s) by Vendor to the Fulfillment Center by notice to Vendor
orally or in writing (the "Delivery Request"). The Delivery Request shall
specify the quantity and relevant details of Products to be delivered by Vendor
to the Fulfillment Center and the Vendor shall comply with such Delivery Request
within 7 days of receiving the Delivery Request.
5.5 Storage Fee. Each month Vendors all pay the Storage Fee to CyberRetail
if the volume of that Product shipped during that month from the Fulfillment
Center is less than 80% of the inventory level of that Product at the beginning
of that month. No Storage Fee is payable with respect to any Product if.
(a) the Product has been on the Product List for less than two (2) months;
(b) CyberRetail has given a Delivery Request during the immediately
preceding month; or
(c) the starting inventory level was not greater than the Monthly Inventory
Level.
5.6 Return of Inventory at Vendor's Request. If a Product is removed from
the Product List, CyberRetail agrees to arrange for the shipment, at Vendor's
expense, of Vendor's inventory of that Product back to Vendor.
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6. TITLE TO AND RISK IN THE PRODUCTS
Products delivered to the Fulfillment Center shall be held as inventory by
the Fulfillment Center on a consignment basis and title to and risk in all such
Products shall remain Vendor's until an order for a Product Item is processed.
Immediately upon completion of the payment process, title and risk in the
Product Item shall pass to the Customer.
7. PRODUCT MANAGER
Vendor shall designate a Product manager (the "Product Manager") and provide
contact information with respect to such Product Manager on the Contact Sheet
attached hereto as Exhibit C. The Product Manager shall have the authority to
bind Vendor with regard to all decisions concerning Product information set
forth in the Catalogue, including but not limited to (i) approving all text
utilized on the CyberRetail Web Site relating to Vendor and the Products, (ii)
amending the list of Products included in the Catalogue, and (iii) supplying and
updating the information in the Catalogue. In addition, the Product Manager
shall have primary responsibility for the delivery of Products to the
Fulfillment Center and for all other matters relating to inventory control, and
Product returns.
In addition, the Product Manager shall be responsible for contacting
CyberRetail at least once a month to provide information concerning current
Product availability, inventory levels of Vendor's Products and contemplated
shipments of Products.
8. PRODUCT RETURNS
8.1 CyberRetail Return Policy Acknowledged. Vendor hereby acknowledges the
provisions of CyberRetail's Return Policy as posted on the CyberRetail Web Site,
a copy of which is attached hereto as Exhibit E. Vendor agrees to accept
returns, make exchanges and provide refunds in accordance with the Returns
Policy, as such policy may be modified by CyberRetail in its sole discretion
from time to time.
8.2 Return Processing. CyberRetail shall be responsible for processing all
requests for refunds and exchanges in accordance with the following provisions:
(a) In the event that a Customer returns a Product Item due to an error made
by CyberRetail or the Fulfillment Center, CyberRetail shall (i) arrange and pay
for the cost of shipping the Product Item from the Customer to the Fulfillment
Center or such other return site as CyberRetail shall designate, (ii) ship the
correct Product Item(s) to the Customer at CyberRetail's cost.
(b) If a Customer returns a Product Item due to the fact that such Product
Item is not to the Customer's liking, CyberRetail shall promptly notify Vendor,
which notice shall include the name of the Customer, the Product Item being
returned and such other relevant information as Vendor may reasonably request;
and (i) if the Customer has requested a refund, CyberRetail shall be responsible
for crediting such Customer's account in the appropriate amount, and (ii) if the
Customer has asked that the returned Product Item be exchanged for the same
Product Item in a different color or size, CyberRetail shall deliver or arrange
for the delivery of the requested replacement Product Item directly to the
Customer and CyberRetail shall be responsible for charging or crediting the
Customer's credit or charge card for the shipping and handling fee or any
difference in price between the Retail Price of the returned Product Item and
Retail Price of the replacement Product Item.
(c) If a Customer returns a Product Item due to (i) the fact that the
Product Item is damaged or defective or (ii) an error made by Vendor, Vendor
shall pay for the cost of shipping the damaged, defective or incorrect Product
Item from the Customer to the Fulfillment Center and the cost of reshipping a
non-defective, undamaged or correct Product Item (as the case may be) to the
Customer.
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(d) In the case of any returns described in subparagraphs (b) and (c),
CyberRetail shall be entitled to recover from Vendor a return processing fee of
$1.25 per Product Item ("Return Processing Fee").
(e) In the case of any returns described in subparagraph (a), (b)(ii) and
(c) above for which a replacement Product is not available, CyberRetail shall
refund the Retail Price of the Product Item(s) directly to Customer, and
CyberRetail shall be entitled to recover from Vendor the Retail Price less any
Commission already paid to CyberRetail.
(f) In the case of returns described in subparagraph (b)(i) above,
CyberRetail shall also be entitled to recover from Vendor the Retail Price less
any Commission already paid to CyberRetail in respect of such Product Items.
(g) In the case of any returns described above, CyberRetail shall arrange
for the inspection of the returned Product Item(s) and if the returned Product
Item(s) is fit for resale, cause such returned Product Item(s) to be placed into
Vendor's inventory at the Fulfillment Center. If the Item is not fit for resale,
CyberRetail shall notify Vendor and shall determine the disposition of the Item.
(h) Title in returned Product Items shall revert to Vendor following
completion of refund or exchange processing.
9. FEES, COMMISSIONS AND CHARGES
9.1 Commissions. CyberRetail shall earn the Commission on each sale of a
Product Item through the CyberRetail Web Site. The Commission is calculated on
the Retail Price of each Item sold.
9.2 Other Charges. Vendor shall be responsible for the payment of any credit
card service fees debited by the credit card company as a percentage of the
subject transaction. CyberRetail shall pay any fixed transaction charges
assessed by the credit card company with respect to each credit card sale.
9.3 Set-Up Fee. Half of the set-up fee payable by Vendor under Section 3(b)
of the Internet Distribution Agreement shall be paid upon execution and delivery
of this Agreement, and full payment of the remaining balance shall be paid
before the Products are displayed for sale in the Catalogue.
9.4 Additional Product Set-Up Fees. If Vendor notifies CyberRetail of
additions to be made to the Product List pursuant to Section 3.1, CyberRetail
shall include such new Product(s) in the Catalogue on the same conditions as are
set forth in Section 4.2. Vendor must pay to CyberRetail a Set-up Fee in
accordance with Section 3 of the Internet Distribution Agreement per additional
Product added to the Product List for inclusion in the Catalogue. The payment
shall be deducted from the monthly remittance to Vendor under Section 9.5(b) in
the month in which the changes to the Catalogue are made.
9.5 Payments/Reports.
(a) Customer Payments. CyberRetail shall have sole responsibility for the
collection of payments from Customers for Products purchased through the
CyberRetail Web Site.
(b) Payment to Vendor. Within seven (7) business days after the end of each
month, CyberRetail shall remit payment to Vendor in an amount equal to the
aggregate Retail Price for all Product Items sold during that month less
aggregate Commissions fees and other charges (including, without limitation,
shipping costs for returns) for which Vendor is responsible under this
Agreement.
10. AUDITS
Upon prior reasonable written notice to CyberRetail, Vendor shall, at
Vendor's expense, have the right during the Term and for a period of one (1)
year thereafter to examine any books or records of CyberRetail (at CyberRetail's
principal place of business and during regular business hours) for the purposes
of confirming the calculations of Commissions, Storage Fees and other charges or
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costs incurred by Vendor. Vendor agrees to maintain all information obtained
during such examination in confidence and to cause its duly authorized
representative to do so as well in accordance with the terms hereof.
11. PRODUCT WARRANTY
11.1 Quality Assurance. Vendor warrants that all Products delivered to the
Fulfillment Center or sent direct by Vendor to Customers will conform to the
specifications, descriptions and samples furnished by Vendor and reflected in
the Catalogue and will be merchantable, of good material and workmanship, and
free from all defects. If such Products do not conform, CyberRetail shall so
notify Vendor in writing, and CyberRetail, at its option and at the expense and
risk of Vendor, may either return such Products to Vendor or hold them for such
disposal as Vendor may indicate.
11.2 Compliance with Laws. Vendor agrees to fully observe and comply with
all applicable Federal, State and local laws, rules, regulations and orders
pertaining to the production and sale of the Products, and, upon request, Vendor
shall furnish CyberRetail certificates of compliance with such laws, rules,
regulations and orders.
11.3 Vendor's Warranty to Customers. Vendor will provide all Customers with
Vendor's standard Warranties directly and CyberRetail shall not be required to
provide any services to Customers, including honoring any warranties, in
connection with the Products after delivery.
11.4 Price Warranty. Vendor warrants that the Retail Prices for the Products
to be sold through CyberRetail's Web Site are not greater than currently charged
by Vendor to any other retailer or customer for articles in similar quantities.
In the event Vendor reduces its price to any third party for a Product Item
during the term of this Agreement, Vendor agrees to reduce the Retail Price
hereof correspondingly.
12. REPRESENTATIONS AND WARRANTIES
12.1 CyberRetail represents and warrants that:
(a) CyberRetail has the full right, power and authority to enter into this
agreement and to perform its obligations hereunder.
(b) The entering into of this Agreement by CyberRetail and the performance
by CyberRetail of any of its obligations hereunder will not violate any other
agreement to which CyberRetail is a party.
(c) The operation of and the sale of Products through the CyberRetail Web
Site does not violate any applicable Federal, State and local laws, rules,
regulations and orders.
12.2 Vendor represents and warrants that:
(a) Vendor has the full right, power and authority to enter into this
Agreement and to perform its obligations hereunder, including, without
limitation, the right to distribute the Products through the CyberRetail Web
Site in accordance with this Agreement.
(b) The entering into of this Agreement by Vendor and the performance by
Vendor of any of its obligations hereunder will not violate any other agreement
to which Vendor is a party.
(c) The production and sale of the Products does not violate any applicable
Federal, State and local laws, rules, regulations and orders.
13. TERMINATION
13.1 Termination for Cause. If any of the following conditions shall occur,
either Party hereto may terminate this Agreement upon thirty (30) days' written
notice to the other Party in accordance with the terms hereof
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(a) If the other Party shall file or be the subject of a bankruptcy
petition, become insolvent, apply for or consent to the appointment of a
receiver or trustee or make an assignment for the benefit of creditors or be
unable to meet its obligations in the normal course of business as they fall
due.
(b) If the other Party shall commit any material breach of this Agreement
and shall fail to remedy same within thirty (30) days following written notice
thereof or any repeated material breach of this Agreement by the other Party
whether or not cured. The Parties agree that, inter alia, the failure by Vendor
to maintain at least the Monthly Inventory Level shall constitute a material
breach of this Agreement.
(c) If CyberRetail shall, for any reason, cease to offer any products from
any vendor for sale via the Web Site for which CyberRetail or any third-party
fulfillment service is to provide fulfillment services; provided, however, that
a change to the Uniform Resource Locator of the Web Site shall not be deemed to
be the cessation of the Web Site or the cessation of the offering of products
for sale via the Web Site.
13.2 Termination by Vendor. This Agreement may be terminated by Vendor upon
thirty (30) days' written notice to CyberRetail if the gross dollar amount of
retail sales of the Products through the Web Site from the beginning of the
twelfth (12th) month to the end of the eighteenth (18th) month of the Term is
less than two (2) times the gross dollar amount of retail sales of the Products
from the beginning of the sixth (6th) month to the end of the twelfth (12th)
month of the Term (the "Benchmark Sales Level"); provided, however, that
appropriate adjustments may be made by CyberRetail to the Benchmark Sales Level
to reflect sales lost as a result of a failure by Vendor to meet its obligations
hereunder or the withdrawal of any of the Products from the Web Site. Vendor's
right to terminate this Agreement pursuant to this Section 13.2 shall expire
thirty (30) days after the end of the 18th month of the term.
13.3 Unsold Merchandise. Upon expiration or termination of this Agreement,
CyberRetail shall, or shall cause the Fulfillment Center in possession thereof
to, return any unsold Products in its possession to Vendor at Vendor's sole
expense.
13.4 Continuing Obligations upon Termination. Neither CyberRetail nor Vendor
shall be liable to the other on account of any termination or expiration of the
Agreement for reimbursement or damages for loss of goodwill, prospective profits
or anticipated orders, or on account of any expenditures, investments, or
commitments made by either CyberRetail or Vendor, or for any other reason
whatever; provided, however, that each Party shall be responsible for any
continuing commitments, obligations or contracts existing or entered into prior
to the delivery of such notice of termination.
14. CONFIDENTIALITY
14.1 Information Disclosure. Any information relating to or disclosed in the
course of this Agreement by either Party (the "Disclosing Party") to the other
Party (the "Receiving Party"), which is or should be reasonably understood to be
confidential or proprietary to the Disclosing Party, including but not limited
to, the material terms of this Agreement, sales, cost and other unpublished
financial information, product and business plans, projections, and marketing
data shall be deemed "Confidential Information" and shall not be disclosed to
any other party without the prior written consent of the Disclosing Party.
14.2 Advertisements. Vendor shall not in any manner advertise or publish the
fact that it has furnished, or contracted to furnish, CyberRetail the Products
herein mentioned without the prior written consent of CyberRetail. Vendor shall
not disclose any details in connection with this order to any party except as
may be otherwise provided.
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14.3 Ownership of Information.
(a) CyberRetail's Ownership Rights. CyberRetail shall at all times own and
retain all right, title and interest in and to the Web Site and the Catalogue,
including without limitation, all patents, copyrights, trademarks, trade names,
trade dress and trade secrets, right to the graphical user interface, source
code and object code, and other intellectual property rights.
(b) Vendor's Ownership Rights. Subject to the rights licensed to CyberRetail
in this Agreement, and except for any portions thereof which may be in the
public domain, Vendor shall retain rights of ownership in and to the information
supplied to CyberRetail.
15. USE OF THIRD-PARTY CONTRACTORS BY CYBERRETAIL
CyberRetail may use the services of one or more third-party contractors to
perform certain of CyberRetail's obligations hereunder. Vendor agrees to
CyberRetail's use of such third-party contractors. CyberRetail shall use its
best efforts to prevent any such third-party contractor from selling any
Customer information or collecting any Customer information for any purpose
other than the performance of its obligations to CyberRetail.
16. INDEMNITY
(a) Each Party (the "Indemnifying Party") hereto agrees to indemnify, defend
and hold harmless the other Party (the "Indemnified Party"), its affiliates,
officers, directors, employees, agents and assigns from and against any and all
claims, actions, losses, damages, liability, costs and expenses (including
reasonable attorneys' fees) arising out of or in connection with (i) the breach
of any representation, warranty or agreement made by the Indemnifying Party
hereunder, (ii) incorrect or mistaken pricing information of the Products
directly resulting from an error by the Indemnifying Party, (iii) if the
Indemnifying Party is Vendor, the Products and the use by CyberRetail of the
Intellectual Property as contemplated herein, and (iv) if the Indemnifying Party
is CyberRetail, the Operation of the CyberRetail Web Site. The Indemnified Party
shall promptly notify the Indemnifying Party of all claims and proceedings
related thereto of which it becomes aware. The Indemnified Party may, at its
option, participate in any such claims and proceedings through counsel of its
own choosing at its expense. Vendor or its affiliate shall at all times maintain
product liability insurance, insuring losses arising out of the manufacture and
use of the Products, naming CyberRetail as an additional or co-insured under
such policy of insurance, in an amount not less than One Million Dollars
($1,000,000) per occurrence.
17. LIMITATION OF LIABILITY
CYBERRETAIL DOES NOT MAKE BY VIRTUE OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREIN, AND CYBERRETAIL EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR
WARRANTY, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE FUNCTIONALITY OR
OPERATION OF THE CYBERRETAIL WEB SITE OR CATALOGUE SOFTWARE USED IN MARKETING OF
PRODUCTS VIA THE CYBERRETAIL WEB SITE, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR
THE INDEMNITY OBLIGATIONS SET FORTH IN SECTION 16 HEREOF, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL INDIRECT OR SPECIAL
DAMAGES IN CONNECTION WITH THE CYBERRETAIL WEB SITE OR CATALOGUE, OR PERFORMANCE
OF OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN APPRISED
OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. CYBERRETAIL SHALL NOT BE LIABLE FOR
ANY THIRD PARTY'S MISUSE, MANIPULATION, OR MISAPPROPRIATION OF VENDOR'S DATA.
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18. MISCELLANEOUS
18.1 Non-Waiver. The waiver by CyberRetail of a breach of any provisions of
this Agreement by Vendor shall not operate nor be construed as a waiver of
CyberRetail's right to assert that Vendor has committed any subsequent breach.
18.2 Severability. If any of the provisions of this Agreement, or the
application of any term or provision to any persons or circumstances is invalid
or unenforceable to any extent, then the remainder of this Agreement or the
application of the terms or provisions to persons or circumstances, other than
those to which it is held invalid or unenforceable, shall not be affected
thereby and each term or provision of this Agreement shall be valid and
enforceable to the extent permitted by law.
18.3 Assignment. This Agreement may not be assigned by either Party without
the prior written consent of the other Party. The rights and obligations of the
parties hereto under this Agreement shall inure to the benefit of and shall be
binding upon the Parties' successors and assigns.
18.4 Construction. Headings in this Agreement are for reference purposes
only and shall not be deemed to have any substantive effect. References to the
masculine gender shall mean the feminine and references to the singular shall
mean the plural, all as the context may require in a given instances.
18.5 Notices. Any notice to be given under this Agreement shall be
sufficient if it is in writing and delivered in person or sent by certified mail
return receipt requested, postage prepaid, to Vendor, to the attention of the
Product Manager, or to CyberRetail to the attention of it's President, each at
its principal office as set forth above or as may hereafter be changed by proper
notice.
18.6 Entire Agreement. This Agreement contains the entire Agreement of the
parties and supersedes all prior agreements or understandings pertaining to the
subject matter hereof whether written or oral. No modifications or amendment of
this Agreement shall be effective unless in a written instrument, executed by
both Parties. This contract will be considered VOID if not signed and delivered
to CyberRetail within fifteen (15) business days of the date first listed above.
18.7 Force Majeure. Neither Party shall have any liability to the other
Party for any failure to perform hereunder if such failure is due to causes
beyond its reasonable control, including, without limitation, failure resulting
from labor difficulties, acts of god, governmental action, embargoes, fire,
flood, explosion, war, civil disturbance, transportation facilities, machinery
breakdown, delays of supplier, acts or omissions of any common carriers or their
agents, ISP failures, internet brownouts, failures, malfunctions or delays and
other events outside its reasonable control. Notwithstanding the occurrence of
any of the foregoing events, the Party which is adversely effected by such event
shall use reasonable efforts (if practicable to do so and without requiring it
to incur additional expense) to continue to perform its obligations hereunder,
but in no event shall such Party be liable to the other party for its failure to
perform those of its obligations which are unable or impracticable to be
performed due to the occurrence of any such event.
18.8 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument; provided, however, that this Agreement shall not be
effective unless and until each Party has executed and delivered a counterpart.
18.9 Governing. This Agreement shall be governed by, and construed and
enforced in accordance with the laws of the State of New York.
9
19. REMEDIES; DISPUTE RESOLUTION
19.1 Dispute Resolution. All disputes between the Parties shall be settled,
if possible, through good faith negotiations between the relevant parties.
19.2 Injunctive Relief. In the event of a breach or threatened breach by
either Party of the terms of the Internet Distribution Agreement, the other
Party shall be entitled to an injunction restraining the breaching party from
committing any breach of this Agreement, without showing or proving any actual
damages and without diminishing any other right or remedy which such Party may
have at law or in equity to enforce the provisions of this Agreement. Each Party
waives any right it may have to require the other Party to post a bond or other
security with respect to obtaining or continuing any injunction or temporary
restraining order.
19.3 Set-Offs. All claims for money due or to become due from CyberRetail
shall be subject to deduction or set-off by CyberRetail by reason of any
counterclaim arising out of this or any other transaction with Vendor.
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EXHIBIT C
CONTACT SHEET
Company: Bodyguard ▇▇▇▇▇▇▇.▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇ ▇▇▇▇▇ Ext# __________
Assistant: ____________________ Ext# __________
Phone Number: ▇▇▇-▇▇▇-▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
EMAIL ADDRESS: ▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
WHERE DO WE SEND ORDERS (CIRCLE ONE): EMAIL OR FAX
---
Best time to contact you: M-F 10 am to 7 pm
COMMENTS:
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Product Category: Music CD's & Merchandise Date: 1-17-2000
Gender: ___________________________
Classification: ___________________
FOR OUR RECORDS PLEASE FILL OUT COMPLETELY AND RETURN WITH CONTRACT. THANK YOU.
EXHIBIT D
Shipping Instructions
---------------------
Bills of Lading
Merchandise must be packed, described and shipped on bills of lading in
accordance with the most current National Motor Freight Classification (NMFC)
along with applicable freight tariffs that assure the lowest legal freight
charges. Bills of lading must have Vendor name, complete origin shipping
address; total cartons and pallets, weight, applicable NMFC item and
description, and shipper number; seal(s) and trailer number(s) on truck load
shipments. Combine same day shipments on single ▇▇▇▇ of lading.
Packing Slip
Packing slip must be legible and enclosed in protective plastic envelope
attached to the outside of a master carton for each shipment and contain Vendor
name and address, Vendor Item numbers, quantity.
Carton Markings / Packaging
Master cartons and individual unit cartons must be marked legibly using black
ink on at least one (1) side of each carton showing Vendor Item number and the
carton contents quantity. Marking and/or label print shall be at least 1/8 inch
in height. Computer printed pressure sensitive labels are acceptable.
Each Product Item ("SKU") is to be individually packed in polybags and/or boxed
and labeled. Two-piece or multiple-piece sets must be packed in one polybag
and/or box. Each polybag and/or box must have the SKU, color and color code and
size visible. Master shipping cartons should contain only one SKU and each
carton should weigh less than 50 pounds. Each carton must have the SKU, color
and color code, size and total number of cartons being shipped (e.g., 1 of 10)
visible. If a Vendor wishes to mix the contents of a master carton, each SKU,
color and size should be clearly labeled and segregated in a polybag or separate
carton within the master carton. These SKU's should be clearly specified on the
packing slip.
Multiple SKU's received unsorted in a master carton will be subject to a Rework
Charge determined by CyberRetail and any mutually agreed upon out-of-pocket
expenses incurred in connection therewith to sort and repackage each SKU for
appropriate shipping to the Customer.
Pre-packaged items
Items pre-packaged for shipment to the end Customer by Vendor will be assumed to
be adequate protection, assuming shipment via USPS, UPS or other mail carrier.
CyberRetail will assume no responsibility for product damage incurred during
shipment for pre-packaged items.
EXHIBIT E
CyberRetail Return Policy
-------------------------
Every Item we sell will give complete satisfaction or you may return it for
a full refund, within 35 days of the date posted on your invoice. See below for
specific policies:
General: All original tags must be on the garments. This policy pertains
to all products sold by ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. Please read below for
additional policy on Swimwear, Shoes, belts and Suits.
Swim Wear: Sanitary patch must be intact and not removed from the garment.
Shoes: Must be in "like new" condition, not worn outside. While breaking
in please do not wear outside, keep indoors at all times until
you are sure that they are the correct fit.
Suits: Only returned if NO alterations were made.
Underwear: Unworn, in packaging.
Undershirts: Unworn, in packaging.
Belts: Must be in "like new" condition, without evidence of excessive
wear. Please try on immediately and test for comfort and proper
fit.
*CyberRetail understands that there are extreme circumstances where a garment
may contain a defect, and only after it has been worn can the defect be
detected. We will stand behind all products under these circumstances; by no
means do we at ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ want to hurt you in any way by making you pay for
a manufacturer's error. Simply e-mail us and explain the problem and we will
issue you a return number and address.
Here Is How:
Five Simple Steps:
1. Email invoice number and reason for return to ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
2. CyberRetail will e-mail you a return number along with an address to ship
your returned product.
3. Send your purchase along with your original invoice, to the address given.
Very Important: The return number must be handwritten on the invoice.
4. Credit will be given once your purchase is received by the manufacturer.
5. CyberRetail will credit your credit card.