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Exhibit 10.5
Wholesale Distribution Agreement
This agreement ("Agreement") is entered into:
BETWEEN: Becoming Art Inc. of 000 Xxxx 0xx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 1 E3, represented by Xxxx Xxxxxx
(Herein called the Wholesaler)
AND:
Made in Art of 0000 Xxxxx-Xxxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxx, X0X 0X0, represented by its President, Xxxxx Xxxxx,
(Herein called the Company)
WHEREAS, the Company sells a collection of numerical images by Xxxxx Xxxxx and
related products;
WHEREAS, the Wholesaler is in the business of reselling art work to purchasing
departments and retailers;
THEREFORE, in consideration of the following conditions set for this Agreement,
the parties agree to the following.
1. DEFINITIONS
"Customer" means an end user of a Product.
"Products" means the image sizes made available by the Company to its
wholesalers, distributors and resellers, a list of which is attached as Exhibit
A. A Product may be a numerical image (piece, of art), a standard product (such
as a frame) or any combination of those.
2. TERMS
2.1 Appointment
The Company hereby appoints the Wholesaler, and the Wholesaler accepts such
appointment, to act as a wholesaler of Products towards Purchasing Departments
and Retailers which resell Products to their own Customers. Sale of Products to
other wholesalers or wholesaler's affiliates is strictly prohibited. The
wholesaler will only sell the Products to his Retail Network, and will not
market or sell the Products using any Internet site or mail order catalog
without specific: written authorization from the Company.
2.2 Wholesale prices
The wholesale prices paid by the Reseller to the Company for Products shall be
as set forth in Exhibit A. The Company shall have the right, at any time, to
change, alter, or amend Product prices upon written notice. Prices are exclusive
of all taxes, insurance, and shipping and handling charges, which are the
Wholesaler's sole responsibility.
3. PRODUCT SAMPLES AND SELLING TOOLS
The Wholesaler is provided by the Company a set of Products and selling tools,
as described in Exhibit B, to be used in the sole purpose of showing,
demonstrating and selling the Product.
Such product samples and selling tools are of the sole responsibility of the
Wholesaler.
In case of breach of this Agreement, and upon written request of the Company, or
upon termination of this Agreement, the Wholesaler shall return the products in
good condition to the Company.
4. ORDERING AND PAYMENT PROCESS
4.1 Processing of orders
Orders shall be taken by the Wholesaler from his Clients and forwarded via email
to both the company and the Company Representative namely Xxxxx Xxxxxxx.
The Company Representative shall be responsible for acknowledging receipt of
order and obtaining acceptance and terms of delivery from the Company.
Products will be delivered by specified courier with a specified delivery time
to be forwarded to the Wholesaler or available for pick-up within five (5)
working days from receipt of order and payment by Wholesaler of fifty percent
(50%) of the order total value. Balance upon delivery and inspection of
product(s).
4.2 Shipment
All freight, insurance and other shipping expenses from Delivery Point, as well
as any expenses related to the Wholesaler or Retailer's special packing requests
will be borne by the Wholesaler or Retailer unless otherwise agreed to in
writing by the Company.
4.3 Payments
Terms of payment shall be agreed upon for every order taken. First orders taken
will necessarily require a down payment equivalent to forty percent (40%) of the
total order value: balance of payment on those orders will be due and payable by
Wholesaler in full C.O.D. upon receipt or pick-up.
Payments shall be done directly by Wholesaler to the Company using one of the
following means: wire transfer, direct deposit or credit card.
5. DEFECTIVE PRODUCT RETURNS
Returns of defective Products will be accepted by the Company when the Company
authorized carriers are used. Return shipment charges via unauthorized carriers
and all customs or broker's fees are the responsibility of the Wholesaler or
Retailer. The Company reserves the right to charge back to the Wholesaler or
Retailer shipping charges incurred on those Products which were returned as
defective and no fault was found.
6. WHOLESALER'S OBLIGATIONS
6.1 Exhibition and promotion
The Wholesaler agrees (i) to clearly present the Products as "Xxxxx Xxxxx" art
or such other title as may correspond to the standards of the Company, (ii) to
transport, handle, care for, and display the Products in a manner consistent
with the quality of the Products, (iii) to assure that retailers maintain their
Exhibit Outlet as a first-class facility, and (iv) to aggressively market the
Products.
6.2 Wholesaler's covenants
The Wholesaler will: (i) conduct business in a manner that reflects favorably at
all times on Products and the good name, goodwill and reputation of the Company;
(ii) avoid deceptive or misleading practices that are or might be detrimental to
the Company or the Company Products; (iii) make no false or misleading
representations with regard to the Company or the Company Products; (iv) not
publish or cooperate in the publication of any misleading or deceptive
advertising material with regard to the Company or the Company Products;
6.3 Insurance
The Wholesaler shall, at his own expense, keep in force insurance coverage for
all the Products given to him by the Company, for the wholesale value of the
Products as stipulated in Exhibit A, or any subsequent document, without any
deductions for depreciation, which insurance shall also be fully valid until
complete payment of the Products in consignment or return to the Company. The
foregoing insurance policy shall include coverage against all risk of physical
loss or damage from any external cause while in transit and on location in a
retail outlet during the consignment period. Such insurance policy shall contain
a waiver of subrogation in favor of the Company.
6.4 Use of trademarks and proprietary notices
During the term of this Agreement, the Wholesaler may use the trademarks, trade
names, logos and designations used by the Company for the Company Products
solely in connection with the advertisement and promotion of the Company
Products, and in accordance with the Company's then-current trademark usage
policies. The Wholesaler shall not remove or destroy and shall assure that
Retailers do not remove or destroy any copyright notices, trademarks or other
proprietary markings on the Products or any materials related to the Products.
6.5 Intellectual property
The Company does not consent to any form of reproduction of the Products.
Notwithstanding the above, the Company consents to photography, filming or
videotaping of the Products for use by the Wholesaler in advertising, promotion
and merchandising the Products. It is understood that the Products are works of
art, and that the International Law on Copyrights applies in its entirety and at
anytime.
7. TERM AND TERMINATION
7.1 Term
This Agreement shall commence on the Effective Date and continue for three (3)
years thereafter unless terminated earlier as provided herein.
7.2 Termination without cause
The Wholesaler or the Company may terminate this Agreement without cause, at any
time, by written notice to the other party not less than ninety (90) days prior
to the effective date of termination.
7.3 Termination for breach
The Company may terminate this Agreement, for cause, by written notice to the
Wholesaler not less, than ten (10) days prior to the effective date of such
notice in the event that: (i) the Wholesaler fails to pay past due invoices
within thirty (30) days after notice that invoices are past due; (ii) the
Wholesaler violates any other material provision of this Agreement; or (iii)
control of the Wholesaler is acquired, directly or indirectly, by a third party
or the Wholesaler is merged with a third party. Upon giving its notice of
termination, the Company may alter its terms of sale, including payment terms,
and take such other action as may be consistent with the termination of this
Agreement.
7.4 Termination for insolvency
At the option of the Company or the Wholesaler, this agreement shall terminate
immediately if: (I) a receiver is appointed for the other party or its property;
(ii) the other party becomes insolvent or unable to pay its debts as they mature
or ceases to pay its debts as they mature in the ordinary course of business, or
makes an assignment for the benefit of creditors; (iii) any proceedings are
commenced by or for the other party under any bankruptcy, insolvency or debtors'
relief law; or (iv) the other party commences to dissolve under applicable law.
All amounts payable by the Wholesaler to the Company shall survive termination
and become immediately due and payable. In addition, the Company shall have the
right to repurchase unsold Products in the Wholesaler's inventory.
8. WARRANT DISCLAIMER
THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE PRODUCTS. ALL
IMPLIED WARRANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON
INFRINGEMENT, ARE HEREBY DISCLAIMED.
9. LIMITATION OF LIABILITY
THE LIABILITY OF THE COMPANY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE SUPPLY OF PRODUCTS HEREUNDER, SHALL BE LIMITED TO THE ACTUAL AMOUNTS
PAID BY THE WHOLESALER TO THE COMPANY FOR THE PRODUCTS, AND SHALL IN NO
EVENT INCLUDE LOSS OF PROFITS, COST OF PROCURING SUBSTITUTE GOODS OR
SERVICES, OR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND,
EVEN IF THE COMPANY OR ITS SUPPLIER IS AWARE OF THE POSSIBILITY OF SUCH
DAMAGES.
10. GENERAL
10.1 Assignment
Neither party may assign, delegate, or transfer the Agreement or any of its
rights or duties hereunder, without the prior written consent of the other
party. Any attempted assignment or delegation in violation of this section
shall be void. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and permitted
assigns. Notwithstanding the foregoing, the Company may assign its rights
and duties hereunder in connection with a merger, consolidation, corporate
reorganization, acquisition, or sale of all or substantially all the assets
of the Company.
10.2 Governing law
This agreement shall be governed by the laws of the Province of Quebec.
10.3 Independent contractors
In performing their respective duties under this Agreement, each of the
parties will be operating as an independent contractor. Nothing contained
herein will in any way constitute any association, partnership, or joint
venture between the parties hereto, or be construed to evidence the
intention of the parties to establish any such relationship. Neither party
will have the power to bind the other party or incur obligations on the
other party's behalf without the other party's prior written consent.
10.4 Modification and waiver
No modification to this Agreement, nor any waiver of any rights, will be
effective unless assented to in writing by the party to be charged, and the
waiver of any breach or default shall not constitute a waiver of any other
right hereunder or any subsequent breach or default.
10.5 Notices
Any required or permitted notices hereunder must be given in writing at the
address of each party set forth below, or to such other address as either
party may substitute by written notice to the other in the manner
contemplated herein, by one of the following methods: hand delivery;
registered, express, certified mail, or facsimile. Notices will be deemed
given on the date received.
10.6 Severability
If for any reason any provision of this Agreement shall be held by a court
of competent jurisdiction to be invalid or unenforceable, the remaining
provisions of this Agreement shall remain in full force and effect.
10. 7 Limitation of action
Any legal action arising out of this Agreement shall be barred unless
commenced within one (1) year of the act or omission giving rise to the
action. Such limitation shall not apply to any actions asserted against the
reseller by the Company arising from any delinquencies In payment for
Products.
10.8 Entire agreement
This Agreement and the exhibits attached hereto constitute the entire and
exclusive agreement between the parties hereto with respect to the subject
matter hereof and supersede any prior agreements between the parties with
respect to such subject matter.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective authorized representatives as of the Effective Date.
Accepted and agreed as of today, November 28, 2003
/s/ Xxxx Xxxxxx
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Becoming Art Inc.
Represented by Xxxx Xxxxxx
/s/ Xxxxx Xxxxx
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Made In Art
Represented by Xxxxx Xxxxx
EXHIBIT A
PRODUCTS & PRICING POLICY
XXXXX XXXXX'X NUMERICAL IMAGES
Products Per unit
wholesale
price
12 x 12 images
12 x 16 images
12 x 12 Made In
Art frames
(plastic)
12 x 16 Made In
Art frames
(plastic)
27 x 27 framed
pictures
* Prices are stated in Canadian dollars.
All 12 x 12 and 12 x 16 images are delivered with an adhesive magnetic
sheet.
All Products are delivered with their proper packaging which includes
for all images and frames, gift boxes and protective sleeves,
advertising Xxxxx Xxxxx'x name and logo.
EXHIBIT B
INITIAL SET OF SAMPLES & SELLING TOOLS
Lists products given on consignment by the Company to the Wholesaler
12 x 12 image reference numbers: ____
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12 x 16 image reference numbers: ____
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70 x 70 image reference numbers: ____
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Frames
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12 x 12 format
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12 x 16 format
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Others (to be stated)
