Exhibit 10.10
[CAMDEN'S LOGO]
MERCHANT AGREEMENT
This Merchant Agreement (this "AGREEMENT") is effective as of
September 28, 1999 (the "EFFECTIVE DATE") by and between Camdens Gifts, Inc.
("CAMDENS"), a Californian corporation, and [Xxxxxx.xxx] ("MERCHANT"), an
Illinois corporation.
BACKGROUND
A. Camdens operates an electronic commerce business for the marketing and
sale of a wide variety of gifts via its Web site, currently located at the
URL xxxx://xxx.xxxxxxx.xxx (together with any successor or affiliate Web
sites, the "CAMDENS WEB SITE"); and
B. Merchant is in the business of marketing and selling the products
described in the PRODUCT, PRICING AND SHIPPING SCHEDULE attached hereto (the
"PRODUCTS"); and
C. Camdens wishes to contract with Merchant to display and market the
Products on the Camdens Web Site and to establish arrangements for the
fulfillment of orders for the Products placed by Camdens Web Site customers
(the "CUSTOMERS") for delivery to ultimate gift recipients designated by such
Customers (the "RECIPIENTS").
TERMS AND CONDITIONS
In consideration of the mutual covenants and promises set forth in this
Agreement, the parties agree as follows:
1. APPOINTMENT.
1.1 AUTHORIZED RESELLER. For the term of this Agreement Merchant
appoints Camdens as an authorized reseller of the Products. The PRODUCT,
PRICING AND SHIPPING SCHEDULE attached, which lists or describes the
Products, may be updated from time to time during the Term to reflect new
products that are to be added to these arrangements and to take account of
changes to the pricing, packaging, shipping and other arrangements that the
parties may mutually agree upon from time to time; provided that both parties
must sign the updated PRODUCT, PRICING AND SHIPPING SCHEDULE for it to become
effective. Merchant will provide Camdens with all necessary Product
information, including Merchant sku number, product description, product
features and size of each Product and the name and contact details about the
Product manufacturer(s), if different from Merchant, all in formats
reasonably specified by Camdens. Camdens shall have the final right and
discretion to determine which Products to promote and sell on the Camdens Web
Site at any given point of time.
1.2 EXCLUSIVITY. During the Initial Exclusivity Period (as defined in
Section 1.3.1 below), Merchant agrees not to enter into any partnerships,
ventures, alliances or any other
agreement or arrangement for the sale of any of the Products (collectively,
an "ARRANGEMENT") with any of the entities listed on the CAMDENS COMPETITORS
SCHEDULE attached hereto. During the Initial Exclusivity Period, Camdens
agrees not to buy any alcoholic beverages from any third party for sale on
the Camdens Web Site.
1.3 MINIMUM GUARANTEED SALES.
1.3.1 INITIAL EXCLUSIVITY PERIOD. Camdens guarantees that between
the Effective Date and December 31, 1999 (the "INITIAL EXCLUSIVITY PERIOD"),
and subject to the timely supply by Merchant of Products in accordance with
this Agreement, Camdens shall sell Products having an aggregate Price (as
defined in Section 8.1 below) of at least $300,000 (Three Hundred Thousand
Dollars). In the event that Camdens is unable to comply with the foregoing
sentence, Camdens shall purchase for its own account (with a right to resell
to Customers without further payment obligations to Merchant) Products having
a Price that equals the difference between $300,000 and the total Price paid
or payable by Camdens for the sale of Products during the Initial Exclusivity
Period. Camdens shall have the right to specify the type and number of each
Product that is offered for sale through the Camdens Web Site when purchasing
the Products as described in the foregoing sentence.
1.3.2 EXTENSION. Camdens may, at its sole discretion and upon
written notice to Merchant: (i) extend the Initial Exclusivity Period through
December 31, 2000 by committing to sell Products having an aggregate price of
at least $500,000 (Five Hundred Thousand Dollars) during the calendar year
2000 (all other provisions of Section 1.3.1 remaining the same), or (ii)
elect to make the relationship between the parties non-exclusive, in which
case Section 1.2 shall have no further effect. In the event this Agreement is
terminated for any reason during the Initial Exclusivity Period, the
foregoing commitments shall be pro-rated up to the effective date of
termination of this Agreement (for example, if this Agreement is terminated
as of July 1, 2000, Camdens' purchase commitment for the calendar year 2000
shall be reduced to $250,000).
2. DISPLAY. Promptly upon execution of this Agreement, and from time to time
thereafter, Merchant shall deliver to Camdens all Product images, data,
files, photographs, descriptions and other information and materials
reasonably required by Camdens to display and market the Products on the
Camdens Web Site (collectively, the "PRODUCT MATERIALS"). Merchant shall
meet, in a timely manner, all reasonable requests of Camdens for further
information, assistance and materials related to the Products. The Product
Materials shall be delivered to Camdens in formats to be mutually agreed from
time to time. Promptly upon Camdens' request or upon any modifications,
updates, additions or other changes to the Products and/or Product Materials
being made by Merchant, Merchant shall deliver to Camdens corresponding
additional Product Materials. Upon receipt of the Product Materials, Camdens
shall have the right to select, copy and modify (for the purpose of
conforming the Product Materials to the general look and feel of the Camdens
Web Site or for other aesthetic reasons related to the Camdens Web Site) some
or all of such Product Materials, and display, transmit and publicly perform
such selected Product Materials on the Camdens Web Site. Merchant recognizes
that making the Product Materials available via the Camdens Web Site will
allow visitors to the Camdens Web Site to download copies of certain aspects
of such Product Materials.
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3. CAMDENS WEB SITE. Camdens shall be primarily responsible for operating
the Camdens Web Site, and supervising and arranging promotional activities
for the Camdens Web Site, including advertising.
4. CONTACTS. Camdens and Merchant will each assign a primary and secondary
main contact person to coordinate the activities under this Agreement and to
select Products for sale on the Camdens Web Site based on factors such as
Merchant's sales history and the nature of Camdens' customer base.
5. CUSTOMER SERVICE. Camdens shall be primarily responsible for providing
services to, and responding to inquiries of, each Customer and Recipient with
respect to the Products. Notwithstanding the foregoing, Merchant shall (i)
provide all technical and other documentation and other information required
by Camdens for providing services to, and responding to inquiries of, the
Customers and Recipients, and (ii) respond to any other request for
assistance or information within three (3) business hours of receipt of such
request from Camdens.
6. FORECASTS, INVENTORY AND ORDERING.
6.1 FORECASTS. Camdens shall provide Merchant with quarterly forecasts
of its estimated sales volumes for the Products.
6.2 INVENTORY. Merchant shall maintain any minimum inventory levels
specified on the PRODUCTS, PRICING AND SHIPPING SCHEDULE. In addition, during
each quarter, Merchant shall maintain inventory levels of each Product at
least equal to the estimated sales levels for such Product as specified in
Camdens' forecast under Section 6.1 above for such quarter. Each inventory
statement shall state the volumes of each Product available for sale via the
Camdens Web Site. Merchant shall manufacture and/or purchase Products in
sufficient quantity to fulfill its obligations under this Agreement.
6.3 PURCHASE ORDERS. Camdens shall notify Merchant of all Customer
orders generated through the Camdens Web Site and accepted by Camdens (each a
"PURCHASE ORDER") via email at the email address specified on the signature
page of this Agreement, or such other expedient means chosen by Camdens. Each
Purchase Order shall include the name and address of each Recipient as well
as a description of the Product(s) purchased, the quantity of each Product
ordered, and the mode of shipping requested (express or standard). Orders sent
by email are deemed received by Merchant within two hours after they are sent
from Camdens' server. Camdens will send Purchase Orders to Merchant for
processing at least once each business day (except on those days on which
Camdens does not receive any Purchase Order).
6.4 PURCHASE ORDERS AND DELIVERY INFORMATION. Camdens shall be
responsible for making available accurate information about Purchase Orders
and the name and address of the Recipient on each Purchase Order. Such
information will be made available via any expedient means chosen by Camdens,
which may, in the future, also include a password protected area of the
Camdens Web Site. Camdens shall be responsible for any shipping and handling
charges incurred if shipments of Products to Recipients are returned because
of incorrect shipping or Product information made available by Camdens.
Merchant shall reimburse Camdens for any additional shipping and handling
incurred in the event that Merchant: (i) ships Products later
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than the date specified in Section 7.1, (ii) ships Products to an address
other than a correct address specified in the Purchase Order, or (iii) ships
the wrong Product to a Recipient.
7. TERMS FOR SHIPMENTS TO RECIPIENTS.
7.1 SHIPPING. Merchant shall deliver Products in accordance with the
shipping arrangements set forth on the PRODUCT, PRICING AND SHIPPING
SCHEDULE. Merchant shall, by itself or through authorized distributors (the
"DISTRIBUTORS"), ship all orders by the end of the next business day
following receipt of the Purchase Order or the same business day of receipt
of the purchase order if received by 12:00 p.m. CST. Through October 31,
1999, Merchant will be able to provide to Camdens shipping confirmations and
tracking data for batches sent by Merchant to Distributors for delivery to
Recipients when requested by Camdens. From November 1, 1999, Merchant will be
able to provide to Camdens (i) shipping confirmations and tracking data for
all shipments made via UPS, and (ii) confirmation of all hand deliveries upon
delivery to Recipients, when requested by Camdens. The parties will
establish a mutually acceptable method and timing for the transfer of the
foregoing information, and agree to work towards a more frequent or real time
electronic transfer of the foregoing information. Time is of the essence in
this Agreement.
7.2 PACKAGING. Each Products that Merchant ships shall contain any gift
wrap, gift enclosures, and other promotional and collateral materials which
Camdens requests to be included and which Camdens makes available or as is
specified on the PRODUCT, PRICING AND SHIPPING SCHEDULE. Merchant shall
follow Camdens' instructions and specifications (including the packaging
format used in any samples provided by Camdens) when packing the Products.
Merchant shall download all gift messages from the Customer from the Camdens
Web Site or as otherwise provided by Camdens and include the applicable
message in the correct delivery format to the Recipient. Merchant shall not
include any promotional materials for Merchant or any third party in any
shipment without Camdens' prior approval. Camdens shall have the right, upon
five (5) business days prior written notice, and during Merchant's normal
business hours, to inspect Merchant's premises to confirm compliance with
this Section 7.2. The foregoing right may not be exercised more than once
during any six (6) month period.
7.3 RESPONSIBILITY FOR DISTRIBUTORS. Merchant shall ensure that the
Distributors involved in the performance of this Agreement comply with the
terms and conditions hereof. Merchant shall be fully responsible for all acts
and omissions of such Distributors to the same extent as if they were the
acts and omissions of Merchant.
8. PRICING AND PAYMENT TERMS.
8.1 PRICE. The amounts charged to Customers for any Product sold by
Camdens pursuant to this Agreement shall be equal to or greater than the
price (the "PRICE") set forth in the PRODUCT, PRICING AND SHIPPING SCHEDULE
for such Products, as amended from time to time in accordance with this
Agreement. For each Product sold by Camdens to a Customer, Camdens shall pay
to Merchant the applicable Price of the Products, plus the costs for taxes
and delivery, less (i) the applicable Margin (as defined in the PRODUCT,
PRICING AND SHIPPING SCHEDULE) and (ii) less all applicable refunds in
respect of returns. The "MARGIN" shall be calculated as set forth in the
PRODUCT, PRICING AND SHIPPING SCHEDULE. Merchant confirms that no charges,
fees or
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payments of any kind shall be due from Camdens to Merchant, except for those
specified on the PRODUCT, PRICING AND SHIPPING SCHEDULE.
8.2 MERCHANT OF RECORD. Camdens shall process all payments made by
Customers for the Products. If such payment is made by credit or charge card,
Camdens shall appear on the Customers' account statement as the merchant of
record for the sale and Merchant will xxxx Xxxxxx'x for costs as set forth
in 8.1.
8.3 PAYMENTS; STATEMENTS. On the last day of each calendar month (or if
the last day is a Saturday or Sunday or other holiday, on the first day of
the next month) (each a "PAYMENT DATE"), Camdens shall calculate the total
amount due to Merchant pursuant to Section 8.1 above. Such calculation shall
be shown on a written statement (each, a "STATEMENT") which shall be sent to
Merchant along with the payment. The Statement shall take into account all
transactions through the last day of the month immediately preceding the
month then ending (e.g., for Products ordered in October, payment to Merchant
occurs on the last day of November). Each Statement will also include details
of the total number of each Product sold and total number of each Product
returned by Recipients or Customers during the month covered by such
Statement.
9. TITLE TO PRODUCTS. Title to Product shipped shall pass from Merchant to
the Recipient upon Recipient's acceptance of the Product. Products shall be
deemed accepted if not rejected by Recipient or Customer and returned to
Camdens or Merchant within the time period described in PRODUCT, PRICING AND
SHIPPING SCHEDULE attached hereto for returns.
10. PRODUCTS OUT OF STOCK.
10.1 NOTIFICATION. If Merchant is, or estimates that it will be, out of
stock of a Product it shall immediately notify Camdens. In the event that
Merchant only discovers that it is out of stock upon a Purchase Order being
placed, and cannot fulfill such order within the time specified in Section
7.1 above, then it shall immediately notify Camdens (in any event, no later
than by the end of the business day that the Product should have been shipped
pursuant to Section 7.1 above). All such notices shall notify Camdens of the
backordered status of the Product and an estimate of when the Product will
be available. In addition to the foregoing obligations, if Merchant is out of
stock of a particular Product ordered by a Customer, Merchant shall have the
obligation to replace such Product with another Product of substantially
similar quality, vintage, category and price as the replaced Product, but
only if the Customer or Recipient accepts such substitute Product.
10.2 RIGHT TO CANCEL. Camdens, Customer and Recipient shall each have the
right to cancel, without charge, any backordered item. This right to cancel
shall supersede any return rights specified in PRODUCT, PRICING AND SHIPPING
SCHEDULE attached hereto. Camdens shall notify Merchant of any order canceled
by any Customer or Recipient before the date of shipment of such order by
Merchant or a Distributor. If a Customer or Recipient cancels an order after
Merchant or a Distributor ships the applicable Product, the return policy set
forth in the PRODUCT, PRICING AND SHIPPING SCHEDULE shall apply.
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11. RETURNS.
11.1 RIGHT TO RETURN. Customers and Recipients shall each have the
right to return Products pursuant to the return policy set forth in PRODUCT,
PRICING AND SHIPPING SCHEDULE attached hereto (the "RETURN POLICY").
11.2 REFUNDS. Upon return by a Customer or Recipient of a Product,
Camdens shall credit to Customer's credit card the full amount of the
purchase price (including any taxes paid by Customer but excluding any
shipping, handling and restocking charges) received by Camdens. If the
Product is returned in accordance with clause (i) of the Return Policy, and
Camdens has not yet paid Merchant any amount in respect of its sale, then
Camdens shall not pay Merchant anything with respect to such returned
Product. If Camdens pays Merchant in error or prior to the return, Camdens
shall have the right, at its sole discretion, either to deduct the amount
previously paid from the amounts owed to Merchant on the next Payment Date or
require that Merchant promptly (but in no event later than fifteen (15) days
from receipt of such request) refund such payment to Camdens.
12. TAXES. Merchant and Camdens together shall determine what sales, use,
Value Added Tax or other applicable taxes ("TAXES") are due in respect of any
sale of a Product to a Customer. Camdens shall collect such Taxes as it
deems necessary from the Customers. Camdens shall also collect from Customers
and remit to Merchant all Taxes due on sale of Products.
13. TRADEMARK LICENSE. Merchant hereby grants to Camdens a worldwide,
royalty-free, non-exclusive right and license to use Merchant's trademarks,
service marks, trade names, logos, designs and other designations
(collectively, the "MARKS"), but only in connection with the exercise of
Camdens' rights and performance of Camdens' obligations under this Agreement.
14. REPRESENTATIONS AND WARRANTIES.
14.1 GENERAL REPRESENTATIONS AND WARRANTIES. Each party hereby
represents, warrants and covenants to the other that: (i) such party has the
right, power and authority to enter into this Agreement and to fully perform
all of its obligations, including, in the case of Merchant, the granting of
licenses to the Marks, hereunder; (ii) entering into this Agreement does not
and will not violate any agreement or obligation existing between such party
and any third party; and (iii) such party has and will maintain with all of
its employees and authorized independent contractors written agreements
sufficient to enable such party to perform its obligations hereunder with
confidentiality terms at least as restrictive as those provided herein.
14.2 MERCHANT REPRESENTATIONS AND WARRANTIES. Merchant hereby
represents, warrants and covenants that:
(a) it will immediately notify Camdens of any adverse or
unexpected results or any actual or potential government action relevant to a
Product, or any changes to or discontinuation of any Product;
(b) it will keep for two (2) years after termination of this
Agreement records of all Product shipments and the details of Recipients
sufficient to adequately administer a recall
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of any Product or otherwise comply with any legal or contractual requirement,
and will fully cooperate in any decision by Merchant or any third party
(including any government or court) to recall, retrieve and/or replace any
Product;
(c) it will keep Camdens informed as to any problems encountered
with the Products and any resolutions arrived at for those problems;
(d) none of the Products, Product Materials or the Marks infringe
upon or misappropriate any third party's rights in and to any patents,
copyrights, trade secrets, trademarks, service marks, design rights, rights
of privacy, or any other proprietary rights; Merchant shall also promptly
notify Camdens of any such infringement or misappropriation;
(e) except as expressly permitted in Section 20 below, Merchant
shall not, and shall require that the Distributors not, directly solicit or
otherwise contact any Customers or Recipients for any reason other than the
performance of Merchant's obligations under this Agreement; and
(f) the Products, when shipped by Merchant, conform to all
Merchant Product specifications and warranties, all applicable laws, rules
and regulations and to all industry norms and are fit for the particular
purpose for which they are sold.
(g) that (i) the computer systems, digital devices, software, and
components of the foregoing ("SYSTEMS") that are used by Merchant in the
performance of its obligations hereunder, and that primarily or incidentally
process dates, will not produce erroneous results, fail to function, or
affect their performance due to erroneous, incomplete, inadequate, imprecise,
or ambiguous entry storage, interpretation, retrieval, or reporting of year
date data ("YEAR 2000 DEFECTS") and (ii) that Merchant has audited its
Systems and the Systems of its suppliers, licensors, Distributors and
sub-contractors for Year 2000 Defects, and has determined that all such
Systems are free from Year 2000 Defects that could affect Merchant's ability
to provide, or the actual provision of, the services and products to be
provided by Merchant under this Agreement or that could adversely affect
Camdens' Systems.
14.3 NO OTHER WARRANTIES. NEITHER PARTY MAKES ANY REPRESENTATIONS OR
WARRANTIES OTHER THAN THOSE EXPRESSLY STATED ABOVE.
15. INDEMNIFICATION.
15.1 MUTUAL INDEMNITY. Each party (an "INDEMNIFYING PARTY") shall
indemnify and hold harmless the other party (the "INDEMNIFIED PARTY") and its
employees, directors, agents, successors and assigns from and against all
cost, liability, claims loss, damage, expense (including reasonable
attorneys' fees) or judgment (collectively, the "LOSSES") resulting from or
arising out of any breach of any representation, warranty or covenant made by
the Indemnifying Party pursuant to Section 14 above. Merchant shall further
indemnify and hold harmless Camdens and its employees, directors, agents,
successors and assigns from and against all Losses arising out of any suits,
actions and proceedings (each, an "ACTION") for product liability with
respect to any Product shipped hereunder. The Indemnifying Party shall settle
or defend, at the Indemnifying Party's option, all Actions in connection with
the foregoing at the Indemnifying
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Party's sole cost and expense. Notwithstanding the foregoing, the Indemnified
Party may participate in the defense of such Action with counsel retained at
its own cost and expense.
15.2 LIMITATION. The Indemnifying Party will have no obligation with
respect to any Action pursuant to Section 15.1 unless: (i) such Indemnifying
Party is notified of such Action; (ii) the Indemnified Party allows such
Indemnifying Party sole control of the defense and settlement of such
Action; and (iii) the Indemnified Party provides such Indemnifying Party with
reasonable assistance, at such Indemnifying Party's expense, in connection
with such Indemnifying Party's defense and settlement of such action.
16. LIMITATIONS OF LIABILITY. EXCEPT FOR ANY LIABILITY UNDER SECTIONS 15 AND
19 HEREOF, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER FOR
BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT THE OTHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION
WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY PROVIDED HEREIN.
17. ASSIGNMENT. This Agreement and the rights and/or obligations hereunder
are not transferable or assignable by either party without the prior written
consent of the other party, which consent shall not be unreasonably withheld
or delayed; provided, however, that either party may assign this Agreement in
connection with (i) a sale of all or substantially all of the assets or
business of such party or (ii) a corporate reorganization or (iii) a merger.
18. TERM AND TERMINATION.
18.1 TERM. This Agreement shall commence upon the Effective Date and
shall remain in full force and effect for a period of six (6) months
thereafter, unless earlier terminated as set forth in this Section 18. After
the original six (6) months, this Agreement shall automatically renew for
additional six (6) month periods, unless terminated by Camdens upon
forty-five (45) days prior written notice. The original six months and any
renewal terms are referred to in this Agreement as the "TERM."
18.2 TERMINATION FOR CAUSE. Either party may terminate this Agreement
upon giving written notice to the other upon the occurrence of any material
breach of the other party's representations, warranties, covenants or other
agreements contained herein, if the non-breaching party has not cured such
breach for a period of thirty (30) days after receipt of a written notice
from the non-breaching party with respect to such breach.
18.3 TERMINATION FOR INSOLVENCY. Either party may terminate this
Agreement effective upon written notice to the other party in the event that:
(i) the other party files a petition in or any proceeding relating to
insolvency, or permits the appointment of a trustee in bankruptcy, and that
petition, proceeding or appointment is not dismissed within ninety (90) days
thereafter; or (ii) the other party is voluntarily or involuntarily wound up,
liquidated or dissolved.
18.4 NO LIABILITY. Neither party shall incur any liability whatsoever
for any damage, loss or expenses of any kind suffered or incurred by the
other arising from or incident to any
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termination of this Agreement, provided such party complies with the terms of
this Agreement, whether or not such party is aware of any such damages,
losses or expenses.
18.5 FULFILLMENT OF PURCHASE ORDER. Notwithstanding any expiration or
termination of this Agreement, Merchant shall fulfill any Purchase Order then
pending, and Camdens shall pay the applicable amounts due to Merchant.
18.6 SURVIVAL. In addition to any provisions that survive termination
or expiration according to their terms, the following sections of this
Agreement shall survive termination or expiration of this Agreement: Sections
5, 7.3, 9, 11, 12, 13, 14, 15, 16, 17, 18.5, 18.6, 18.7, 19, 20 and 21. Upon
any expiration or termination of this Agreement, each party shall return any
and all copies of Confidential Information of the other party in their
possession or control.
18.7 REMEDIES. Termination is not the sole remedy under this Agreement
and, whether or not termination is effected, all other applicable remedies
shall remain available.
19. CONFIDENTIALITY.
19.1 CONFIDENTIALITY. "CONFIDENTIAL INFORMATION" shall mean any
technical, business, financial, customer or other information disclosed by
one party to the other party pursuant to this Agreement which is marked
"Confidential" or "Proprietary," or which, under all of the given
circumstances, ought reasonably to be treated as confidential information of
the disclosing party. Camdens' Confidential Information specifically
includes without limitation the Camdens business plan and business practices,
the terms of this Agreement, Margins, payment terms and sales forecasts,
volumes and activities and the technology operating the Camdens Web Site and
related services. Each party shall: (i) treat as confidential all
Confidential Information of the other party; (ii) not use such Confidential
Information except as authorized herein or otherwise authorized in writing,
(iii) implement reasonable procedures to prohibit the disclosure,
unauthorized duplication, misuse or removal of the other party's Confidential
Information; (iv) not disclose such Confidential Information to any third
party, and (v) only disclose the Confidential Information to those of its
employees who have need to know such Confidential Information in order to
exercise the rights and fulfill the obligations set forth herein. Without
limiting the foregoing, each of the parties shall protect the Confidential
Information using at least the same procedures and degree of care that it
uses to prevent the disclosure of its own confidential information of like
importance, but in no event less than reasonable care. These obligations
shall apply for the Term and forever thereafter.
19.2 EXCEPTIONS. Neither party shall have liability to the other with
regard to any Confidential Information of the other which: (i) was publicly
known and available at the time it was disclosed or becomes publicly known and
available through no fault, action or inaction of the receiver; (ii) was
known to the receiving party, without restriction, at the time of disclosure
as shown by the files of the receiving party in existence at the time of
disclosure; (iii) is disclosed with the prior written approval of the
disclosing party; (iv) was independently developed by the receiving party
without any use of the Confidential Information; provided, that the receiving
party can demonstrate such independent development by documented evidence
prepared contemporaneously with such independent development; or (v) is
disclosed pursuant to the order or requirement of a court, administrative
agency, or other governmental body, provided that the
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receiving party shall provide prompt advanced notice thereof to enable the
disclosing party to seek a protective order or otherwise prevent such
disclosure.
20. DATA. All Customer and Recipient information, including but not limited
to the name, address, telephone number, email address, credit card
information, and purchase history, and all other information relating to the
operation of the Camdens Web Site and the visitors to such site, shall be the
sole property of Camdens. Merchant may only use Customer and Recipient
information in conjunction with the performance of its obligations under this
Agreement. Merchant agrees not to use, nor permit any Distributor to use, any
Customer or Recipient information to contact Customers or Recipients (for
unsolicited mail, promotions or otherwise) unless Camdens has given its
express written consent to such contacts. Subject to any and all applicable
privacy and other laws, rules, directives and regulations, Camdens may make
available the names, addresses and email addresses of those Customers and
Recipients who affirmatively indicated to Camdens that they wish to receive
promotional materials from Camdens and its merchants. If Camdens so provides
such information, Merchant shall use such information solely for sending its
own promotional materials, until such time as any such Customer or Recipient
requests that it no longer receive such promotional materials from Merchant.
21. GENERAL.
21.1 AMENDMENT AND WAIVER. Except as otherwise expressly provided
herein, any provision of this Agreement may be amended and the observance of
any provision of this Agreement may be waived (either generally or in any
particular instance and either retroactively or prospectively) only with the
written consent of the parties.
21.2 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of New York without regard to conflicts of law
provisions thereof and without regard to the United Nations Convention on
Contracts for the International Sale of Goods.
21.3 HEADINGS AND CAPTIONS. Headings and captions are for convenience
only and are not to be used in the interpretation of this Agreement.
21.4 NOTICES. For purposes of this Agreement, and for all notices and
correspondence hereunder, the addresses of the respective parties have been
set out at the end of this Agreement, and no change of address shall be
binding upon the other party hereto until written notice thereof is received
by such party at the address shown herein. All notices shall be in writing
and may be delivered via email, facsimile, federal express or U.S.
Mail-return receipt requested (or any other means agreed to by the parties).
21.5 ENTIRE AGREEMENT. This Agreement, together with all Schedules and
attachments hereto, constitutes the entire agreement among the parties
pertaining to the subject matter hereof and completely supersedes all prior
or contemporaneous agreements, understandings, arrangements, commitments,
negotiations and discussions of the parties, whether oral or written.
21.6 SEVERABILITY. If any provision of this Agreement is held to be
illegal or unenforceable, that provision shall be limited or eliminated to
the minimum extent necessary so that this Agreement shall otherwise remain in
full force and effect and enforceable.
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21.7 EQUITABLE RELIEF. Merchant acknowledges that any breach of
Sections 19 or 20 hereof may result in irreparable injury to Camdens for
which money damages will not adequately compensate. Accordingly, in the event
of any such breach, Camdens shall be entitled, in addition to all other rights
and remedies that it might have at law or in equity, to seek equitable relief
to require specific performance with the terms of this Agreement and/or to
enjoin any such continuing breach.
21.8 DISPUTE RESOLUTION. Disputes arising under this Agreement, which
cannot be resolved between the parties shall be submitted to binding
arbitration under the rules then prevailing of the American Arbitration
Association. Arbitration shall be conducted in New York City, New York. All
arbitrations pursuant to this Agreement shall be conducted before a mutually
acceptable single arbitrator, except that in the event the amount in
controversy exceeds $100,000, the arbitration shall be conducted before three
(3) arbitrators, and the decision of any two of the arbitrators shall be
binding. The arbitrators shall be persons having expertise in the area; one
arbitrator shall be selected by Camdens, one by Merchant, and a third by the
arbitrators selected by the parties. Decision of the arbitrators(s) shall be
final and binding and the parties agree to entry of such decision as
judgments in courts of appropriate jurisdiction. The English language version
of this Agreement shall be the governing version and all arbitration
proceedings shall be in the English language.
21.9 RELATIONSHIP OF THE PARTIES. Nothing in this Agreement shall
create any association, partnership or joint venture between the parties
hereto, it being understood and agreed that the parties are independent
contractors and neither shall have any authority to bind the other in any way.
21.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
11
The parties have caused this Merchant Agreement to be executed by their duly
authorized representatives as of the Effective Date.
CAMDENS GIFTS, INC. [XXXXXX.XXX]
Address: 00 Xxxxx Xxxxxxxx Address: 0000 X. Xxxxxx Xxxx
0xx Xxxxx Xxxxxxx, XX 00000
Xxxxx Xxxxxx, XX 00000
Phone: (000) 000-0000 Phone: 000 000-0000
Fax: (000) 000-0000 Fax: 000 000-0000
Email: Fbeilicke @ xxxxxxx.xxx Email: xxxxxXxxxxx.xxx
By: /s/ Xxxxxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxx
Name: Xxxxxxxxx Xxxxxxxx Name: Xxxxx Xxxxxx
Title: VP of Merchandising Title: VP
[COUNTERPART SIGNATURE PAGE
TO MERCHANT AGREEMENT]
PRODUCT, PRICING AND SHIPPING SCHEDULE
PRODUCTS: (Alcoholic beverages)
PRICING: To be included and updated by the agreement of both parties.
"MARGIN" shall be calculated as follows:
Aggregate Sale Price Per Month Camdens' Margin
-------------------------------- ---------------
$100,000 or less 10% of Price
$100,000 - 150,000 12% of Price
$150,001 - 200,000 13% of Price
$200,001 or more 14% of Price
RETURN POLICY:
(i) Merchant shall accept for return any Product that has been returned by
a Customer or Recipient to Camdens within sixty (60) from date of the
Recipient's receipt thereof, if the return was a result of any actual or
alleged damage, defect, error or other deficiency in the Product. Upon
receipt of the applicable refund from Merchant for such returned Product,
Camdens shall return the Product to Merchant, at Merchant's expense.
(ii) Except as otherwise expressly stated in this Agreement, Camdens shall
be responsible for any other returns of any Product from Customer or Recipient
hereunder.
SHIPPING:
Merchant shall by itself, or through Distributors, deliver the Products
directly to the Recipients by hand delivery or via UPS. Camdens shall collect
from Customers and remit to Merchant the following charges for all shipments
made which charges shall remain the same regardless of the actual weight of
the shipment made to a given Recipient.
Number of days Charge
---------------- ------
3 business days $ 8.99
2 business days 18.99
next business day 23.99
CAMDENS COMPETITORS SCHEDULE
BRAVO GIFTS, INC.
------------------
XXXXX.XXX
---------
WISH XXXXX.XXX
--------------
XXXXXXXXX.XXX
-------------
XXXXXX.XXX
----------
Note: This is not possible to provide. We have more than 7,300 affiliates
with our LinkShare program.
We will adhere to the preclusion of competitors as set forth by your Schedule.
PLEASE NOTE: LIQUOR BY WIRE'S AFFILIATE PROGRAM, AVAILABLE THROUGH LINKSHARE,
DOES NOT PRECLUDE THE COMPETITORS AS SET FORTH ON YOUR SCHEDULE FROM APPLYING
FOR, AND BEING APPROVED TO PARTICIPATE IN, THE LIQUOR BY WIRE AFFILIATE
PROGRAM, DUE TO AN AUTOMATIC APPROVAL PROCESS. LIQUOR BY WIRE DOES NOT REVIEW
SUCH APPLICATIONS AND AS SUCH, CAN NOT PRECLUDE SUCH COMPETITORS FROM
APPLYING FOR AND BEING ACCEPTED INTO LIQUOR BY WIRE'S PUBLIC AFFILIATE
PROGRAM. LIQUOR BY WIRE, HOWEVER, RESERVES THE RIGHT TO REMOVE ANY SUCH
AFFILIATE FROM ITS PROGRAM AS LIQUOR BY WIRE DEEMS FIT. LIQUOR BY WIRE, WILL,
WITH ITS BEST EFFORTS, MONITOR SUCH APPLICATIONS AND REMOVE ANY COMPETITOR AS
SET FORTH ON YOUR SCHEDULE IN AS AN EXPEDIENT MANNER AS POSSIBLE.
Note: Larger size packages (i.e. Gift Baskets) do not follow the pricing
schedule as shown above. Such packages require additional delivery surcharges
that will be set forth by Merchant.
Camdens shall not be responsible for reimbursing Merchant for any hand
delivery charges in excess of the charges set forth above.
PACKAGING:
All products shipped to recipients shall be shipped with agreed upon gift
wrap, gift enclosures, collateral materials and shipping materials.
The parties have caused this product, pricing and shipping schedule to be
executed by their duly authorized representatives as of the effective date.
CAMDENS GIFTS, INC. (XXXXXX.XXX)
By: /s/ Xxxxxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxx
Name: Xxxxxxxxx Xxxxxxxx Name: Xxxxx Xxxxxx
Title: VP of Merchandising Title: VP
