FORM OF] CO-MARKETING AND EXCLUSIVE DISTRIBUTION AGREEMENT
Exhibit
10.3
This
Co-Marketing and Exclusive Distribution Agreement
(this
“Agreement”) is entered into by and between Benacquista Galleries, Inc., a
Nevada corporation (“Benacquista or Retailer”) and XxxXxxxxx.xxx, Inc., a
_________ corporation, (“ArtTrader” or “Wholesaler”) this 6th
day of
October, 2005.
WHEREAS,
Benacquista in engaged in the business of selling fine works of art on the
Internet and through to-be-constructed physical galleries;
WHEREAS,
ArtTrader has access to a large inventory of highly desirable art worth more
than $500,000 that it wishes to be able to sell at wholesale
prices;
WHEREAS,
Benacquista wishes to buy art at wholesale prices in order to resell it on
its
website and in its to-be constructed physical galleries;
WHEREAS,
ArtTrader is willing to give Benacquista exclusive rights to purchase artwork
at
wholesale prices;
NOW,
THEREFORE,
be it
resolved between the parties that:
1. Agreement
to Sell.
ArtTrader hereby grants Benacquista the right to purchase any and all unsold
art
contained in the ArtTrader inventory at wholesale prices. These prices should
be
typically be between 25% to 33% of the anticipated retail selling or appraisal
price, but in no event shall be more than 33% of the anticipated retail selling
price. This right shall be exclusive to Benacquista and no other party shall
have the right to purchase such art at wholesale during the term of this
Agreement.
2. Term.
This
Agreement shall continue in full force and effect for a period of 24 months
from
the date hereof. ArtTrader may cancel the Agreement if Benacquista fails
to
purchase at least $250,000 worth of art from the inventory during the first
12
months of this Agreement.
3. Notices.
Any
notice, demand, claim or other communication under this Agreement shall be
in
writing and delivered personally or sent by certified mail, return receipt
requested, postage prepaid, or sent by facsimile or prepaid overnight courier
to
the parties at the addresses as follows (or at such other addresses as shall
be
specified by the parties by like notice): Such notice shall be deemed delivered
upon receipt against acknowledgment thereof if delivered personally, on the
third business day following mailing if sent by certified mail, upon
transmission against confirmation if sent by facsimile and on the next business
day if sent by overnight courier.
4. Entire
Agreement; Incorporation.
This
Agreement and the documents and instruments and other agreements among the
parties hereto as contemplated by or referred to herein contain every obligation
and understanding between the parties relating to the subject matter hereof
and
merges all prior discussions, negotiations, agreements and understandings,
both
written and oral, if any, between them, and none of the parties shall be
bound
by any conditions, definitions, understandings, warranties or representations
other than as expressly provided or referred to herein. All schedules, exhibits
and other documents and agreements executed and delivered pursuant hereto
are
incorporated herein as if set forth in their entirety herein.
5. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, heirs, personal representatives, legal
representatives, and permitted assigns.
6. Assignment.
This
Agreement may not be assigned by any party without the written prior consent
of
the other parties.
7. Waiver
and Amendment.
Any
representation, warranty, covenant, term or condition of this Agreement which
may legally be waived, may be waived, or the time of performance thereof
extended, at any time by the party hereto entitled to the benefit thereof,
and
any term, condition or covenant hereof (including, without limitation, the
period during which any condition is to be satisfied or any obligation
performed) may be amended by the parties thereto at any time. Any such waiver,
extension or amendment shall be evidenced by an instrument in writing executed
on behalf of the party against whom such waiver, extension or amendment is
sought to be charged. No waiver by any party hereto, whether express or implied,
of its rights under any provision of this Agreement shall constitute a waiver
of
such party’s rights under such provisions at any other time or a waiver of such
party’s rights under any other provision of this Agreement. No failure by any
party thereof to take any action against any breach of this Agreement or
default
by another party shall constitute a waiver of the former party’s right to
enforce any provision of this Agreement or to take action against such breach
or
default or any subsequent breach or default by such other party.
8. Severability.
In the
event that any one or more of the provisions contained in this Agreement,
or the
application thereof, shall be declared invalid, void or unenforceable by
a court
of competent jurisdiction, the remainder of this Agreement shall remain in
full
force and effect and the application of such provision to other Persons or
circumstances will be interpreted so as reasonably to effect the intent of
the
parties hereto.
The
parties further agree to replace such invalid, void or unenforceable provision
with a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid,
void
or
unenforceable provision.
9. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the
same
instrument. Facsimile signatures shall be deemed valid and binding.
10.
Choice
of Law.
This
Agreement shall be subject to the laws of the State of Nevada without regard
to
conflicts of laws provision and each party agrees to be bound to the
jurisdiction of the courts of Xxxxx County, Nevada and venue shall be proper
therein.
[SIGNATURES
APPEAR ON THE FOLLOWING PAGE]
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IN
WITNESS WHEREOF,
the
parties hereto have each executed and delivered this Agreement as of the
day and
year first above written.
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BENACQUISTA
GALLERIES, INC.
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By:
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________________________________
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Xxxxx
Xxxxx
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President
& CEO
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______________________________,
INC.
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By:
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________________________________
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President
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