Exhibit 10.17
BUYING AGENCY AGREEMENT
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This agreement, dated September ____, 1996, is entered into between The
Children=s Place Retail Stores, Inc., a Delaware corporation having its
principal place of business, at Xxx Xxxxx Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx
00000, hereinafter referred to as Principal, and K S Best International, having
its principal place of business located at, 0xx Xxxxx Xx.0 Xxx Xxxx Xxxxxx,
Xxxxxx, Xxxxxx ROC, hereinafter referred to as the Agent.
WHEREAS, The Children=s Place is engaged in the importation of children=s
wearing apparel and accessories for sale in the United States, and
WHEREAS, K S Best International acts as a representative in Taiwan for
interested parties in the United States, and
WHEREAS, the parties hereto are desirous of entering into a written
agreement which incorporates all previous understandings with regard to the
agency relationship between the parties,
NOW THEREFORE, in consideration of the mutual promises and covenants
between the parties, it is agreed as follows:
1. K S Best International will act as a non-exclusive Buying Agent for
The Children=s Place in connection with the latter=s purchases of wearing
apparel and accessories in the various countries.
2. The Agent agrees to perform the following services on behalf of the
Principal:
a. The Agent shall familiarize itself with the Principal=s
needs and survey the potential markets to obtain the best
available merchandise;
b. The Agent will assist in the negotiation of the most
favorable prices for the Principal. In this connection, the Agent
shall visit manufacturers/sellers, obtain samples of merchandise,
submit samples of the Principal, quoting prices at which the
merchandise can be purchased;
c. The Agent shall negotiate free on board (f.o.b.) prices on
behalf of the Principal.
d. The Agent shall place orders with manufacturers/sellers on
behalf of the Principal. The Agent shall act only upon the
specific instructions of the Principal and in no case shall the
Agent act
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without such explicit instructions. The Agent acknowledges that
it has no right, power or authority to make any contract or incur
any obligation or liability which shall be binding upon the
Principal unless it has been specifically authorized to do so in
advance by the Principal;
e. The Agent shall make periodic visits to
manufacturers/sellers where orders are placed in order to inspect
the quality of the merchandise shipped to the Principal and to
provide production progress reports to the Principal. In the
event that such merchandise does not conform in quality or
specifications to the order placed, the Agent shall notify the
Principal immediately;
f. Upon inspection and approval, the Agent shall execute an
Inspection Certificate in the form specified by the Principal
certifying that Agent has, in fact, conducted the appropriate
initial, in line and final inspections and that the merchandise
meets the specifications, quality and conditions required. The
presentation of this Inspection Certificate shall be a condition
of payment on all Letters of Credit issued in favor of the
manufacturer or seller;
g. The Agent shall attend to the utilization and acquisition of
necessary quota in a manner dictated by, and in the best interest
of, the Principal;
h. The Agent shall facilitate consolidation of shipments,
insurance and/or storage. Moreover, the Agent shall facilitate
the acquisition of the documentation necessary for importation
into the United States;
i. The Agent shall assist the Principal in the return of any
merchandise deemed to be defective. In addition, the Agent shall
negotiate for the Principal in the recovery of any monies due the
Principal from the manufacturer/seller as a result of defective
merchandise, shortages, etc; and,
j. The Agent shall never act as a seller/ manufacturer in any
transaction involving the Principal.
k. At certain times and pursuant to Principal=s prior written
approval, the Agent may act as shipper.
3. The Principal agrees to compensate the Agent in an amount equal to 5%
of the f.o.b. price of the merchandise which is ordered and shipped pursuant to
this agreement.Where
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merchandise is determined to be defective by the Principal, no commissions will
accrue and any commissions paid relating to defective merchandise shall be
refunded by the Agent.
4. The Principal shall reimburse the Agent for all expenses incurred on
Principal's behalf. Such expenses will be incurred only with consent of the
Principal. The Agent will be separately reimbursed for these expenses only if
the parties have agreed to reimburse Agent before the expenses are incurred.
5. The Principal will agree upon terms of payment with manufacture of the
merchandise for the f.o.b. price of the merchandise. The Principal may open
irrevocable transferable letter(s) of credit in favor of the Agent for the
f.o.b. price of the merchandise and the Agent will either: (a) draw down on the
letter of credit and remit the appropriate payment to the manufacturer/seller;
or, (b) instruct the bank to remit the appropriate sums directly to the
manufacturer/seller.
6. With respect to the invoices prepared in connection with orders and
purchases handled by Agent, Agent shall ensure that the invoices contain
accurate and complete descriptions of the merchandise, contain the names of the
specific manufacturers and/or sellers, and meet all other requirements of the
United States Customs laws and regulations.
In addition, Agent shall ensure that the manufacturer and/or seller
provides an invoice evidencing that the merchandise was produced for the account
of, or is being sold to, Principal. Agent shall provide Principal with the
manufacturer=s /seller=s invoice evidencing the amount paid or payable for the
merchandise with every shipment into the United States and proof of payment
therefor when requested by Principal.
7. The Agent shall provide the Principal with a separate invoice for the
payment of buying commissions and non-production related expenses incurred on
the Principal's behalf, such as quota charges, inland freight, hauling,
lighterage, etc., in addition to manufacturer=s/seller=s commercial invoice for
the cost of merchandise.
8. None of the sums set forth above for the Agent's compensation or
reimbursement shall be paid, directly or indirectly, to the manufacturer/seller
or inure to the benefit of the manufacturer/seller in any way. Furthermore, the
Agent, its officers, directors, shareholders, and/or employees shall not solicit
or accept any payment, rebate or other form of compensation or renumeration from
any manufacturer/seller in transactions involving the Principal without the
permission of the Principal. Agent may accept trade discounts and other
renumeration from manufacturers provided that they are for ministerial buying
agency services covered by this agreement and for no other service.
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9. The Agent, in executing this agreement, certifies that it has no
ownership or financial interest in, nor any control of, the manufacturer or
sellers supplying the commodities purchased with the assistance of the Agent;
that it does not, of its own account, sell raw materials to the manufacturers or
sellers supplying such merchandise; and that manufacturers and/or sellers have
no ownership or financial interest in, or any control over, the Agent. In the
event that any such interest is consummated, then the Agent will immediately
inform the Principal. Failure to do so will result in the forfeiture of the
Agent=s commission on merchandsise purchased from the related or controlled
factories.
10. This Agreement will remain in effect until cancellation by either
party upon giving written notification at least forty-five (45) days prior to
the date of such cancellation. Should such notice be given, all existing orders
will be executed and completed in accordance with the direction of the
Principal.
11. All confidential information made available to either party by the
other party hereto shall be kept confidential as a trade secret by the recipient
thereof and its officers, directors, and/or employees, and such information will
not, without the prior written consent of the Principal or Agent, as the case
may be, be divulged in any manner to any third party except to the extent that
the divulgence of such information shall become necessary in any litigation
concerning the provisions of this Agreement. Agent, shall also protect the
propriety of Principal's trade name.
12. Each party warrants to the other that it has full right, power, legal
capacity and authority to enter into and perform this Agreement and that it will
indemnify and hold harmless the other party for any breach of this warranty.
13. This Agreement may be amended, modified, superseded or canceled, and
any other the terms, covenants, representation, warranties or conditions hereof
may be waived, only by a written instrument executed by Principal and Agent or,
in the case of a waiver, by a written instrument executed by the party waiving
compliance. The failure of any party at any time to require performance of any
provisions hereof shall in no manner affect the right of that party at a later
time to enforce such performance.
14. Agent agrees to indemnify Principal for all damages incurred by
Principal as a result of Agent's negligence, misconduct or fraud in the
performance of its responsibilities as set forth under this Agreement.
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15. Any notice required to be given under this agreement shall be deemed
given sufficiently if a notice in writing is mailed by registered mail to the
addresses set forth above.
16. This Agreement expresses fully the understanding of the parties and
all previous understandings are canceled, and no future changes in this
Agreement shall be valid except when, and if, reduced to writing signed by both
Principal and Agent.
17. The Agreement shall be construed, and all rights, powers, and
liabilities of the parties hereunder shall be determined, in accordance with the
laws of the State of New Jersey.
18. In the event that a dispute arises under this Agreement, Agent agrees
that such action may be commenced in any state or federal court in New Jersey
and that service of process may be effectuated by mail upon the Agent at Agent's
principal place of business.
The Children's Place Retail Stores, Inc.
Dated:______________________ By:_________________________
Xxxx X. Xxxx
Vice President - Sourcing
____________________________
Agent
Dated:______________________ By:__________________________
(Title)
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