Exhibit 10.44
American Champion Entertainment
Mr. Xxxxxxx Xxxx & Xx. Xxxxxx Xxxxx
0000 Xxx Xxxxxxx Xxxxx 000
Xxx Xxxx, XX 00000-0000
AGREEMENT BETWEEN FAST FORWARD MARKETING,INC.
AND AMERICAN CHAMPION ENTERTAINMENT
APRIL, 1999
Concurrent with the representation of American
Champion Entertainment and your "Products", it
is necessary for Fast Forward Marketing, Inc. to
act as a "direct vendor" in order to facilitate
sales of your Products.
TITLE TO THE PRODUCTS: American Champion
Entertainment will retain title to the Products
until the Products are delivered to the
Purchaser, in accordance with California's
Uniform Commercial Code (the "UCC") Section
2401(1).Fast Forward Marketing will use due
diligence, provide sales invoicing and receiving
services, sales and support services and be a
non-inventory stocking distributor for the
Products on behalf of American Champion
Entertainment. Fast Forward Marketing shall have
no claim to title to the Products, whether in
connection with the sale of the Products or in
connection with the return of the Products from
the Purchaser to American Champion
Entertainment. Fast Forward Marketing will have
the power to transfer American Champion
Entertainment's title to the Products to the
Purchasers of the Products. Fast Forward
Marketing shall not have the right or power to
transfer any of American Champion Entertainment
's copyright or trademark rights in or to the
Products.
SECURITY INTEREST: Under UCC Section 2505,
American Champion Entertainment will retain a
security interest in the Products in order to
secure payment from the Purchaser. If the
Purchaser of the Products from Fast Forward
Marketing fails to remit full payment for the
Products, rejects the products, or refuses to
receive or retain the Products or otherwise
returns the Products, title to any such
Products, not paid for, rejected, refused or
returned will revest in Supplier.
TERM: This agreement shall commence as of the
date of signing and shall continue for two (2)
years. Term shall be automatically renewed
period for subsequent two-year periods unless
renegotiated or terminated in accordance with
Amendment Paragraph 3.
BILLING PRICE: Fast Forward Marketing will
purchase your products for 60% off SRP.
PAYMENT TERMS: Fast Forward Marketing bills
purchasers at net 60 day terms and pays
suppliers within 15 days after receiving funds
from Purchaser. When Products are sold on
returnable basis a portion of the payment may be
held back if the Purchaser anticipates a return
on the Products.
RETURNS: The Products are 100% returnable,
within one (1) year of date of last invoice,
unless otherwise stated in writing. (See
Amendment Paragraph 2)
MINIMUM ORDER AMOUNT: ________
FREIGHT: Prepaid
ADVERTISING: Customers may propose to feature
American Champion Entertainment's Products in an
advertising promotion and American Champion
Entertainment receive a written request in
advance of any such promotion. With written
approval of requested amount and proof of
performance, American Champion Entertainment
agrees to reimburse Fast Forward Marketing
directly.
TRADE SHOW EXPENSES: In order to expose our
suppliers to as many potential customers as
possible, each year, Fast Forward Marketing
attends a number of trade and gift shows.
American Champion Entertainment will be
informed on an annual basis of any shows that
would be applicable to their products and the
annual amount to participate. An annual Trade
Show Deduction from invoice will be made in the
amount of $500 or 5% of the net sales of the
previous contract year, (deduction not to exceed
$10,000).
PRODUCT LAUNCH EXPENSES: American Champion
Entertainment agrees to reimburse Fast Forward
Marketing in the amount of $150 to cover the
cost of the initial launch of the Products. This
expense, which will be deducted from invoice,
covers initial mailing and other miscellaneous
expenses associated with informing our
purchasers of you products and setting you up in
our system.
This Agreement and the following Amendments
comprise the entire Agreement between the
parties and supersedes all prior oral and
written agreements, understandings, commitments,
and practices between the parties relating to
the subject matter of this Agreement.
AGREED TO AND ACCEPTED BY FAST FORWARD
MARKETING, INC.
SIGNATURE /s/ Xxxxx X. Xxxxxxx
DATE April 20, 1999
XXXXX X. XXXXXXX,
Vice President of Sales
AGREED TO AND ACCEPTED BY AMERICAN CHAMPION
ENTERTAINMENT:
SIGNATURE /s/ Xxx Xxxxxxxxx
DATE April 14, 1999
Authorized Representative of
American Champion Entertainment
Fast Forward Marketing is authorized to sell any
accounts or classes of trade not specifically
noted. Seller/Company agrees not to sell
products on a direct basis to any Purchaser who
purchases the Products from Seller/Company in
any way connected with Fast Forward Marketing's
efforts during the term of this Agreement.
(This includes sales through other manufacture's
reps and sales agents such as Tapeworm, Victory
Multimedia and TNT Sales.)
BELOW PLEASE LIST ACCOUNTS OR CLASSES OF TRADE
THAT ARE RESTRICTED FROM FAST FORWARD MARKETING
OR COMPLETE ATTACHED APPROVED ACCOUNTS LIST.
Fast Forwardsm and Fast Forward Marketing are
service marks of Fast Forward Marketing, inc.
Unauthorized use of these marks is prohibited by
federal and state law.
AMENDMENTS TO AGREEMENT BETWEEN FAST FORWARD
MARKETINGr AND AMERICAN CHAMPION ENTERTAINMENT
1. COLLECTIONS: Fast Forward Marketing monitors
the credit worthiness of each customer and uses
its best efforts to insure funds are received
promptly, but is expressly not liable for
uncollected funds. In the event an account that
has purchased Products through Fast Forward
Marketing ceases to conduct business in the
ordinary course or becomes subject to any
bankruptcy proceeding, Fast Forward Marketing
and American Champion Entertainment agree to
share equally in product manufacturing hard
costs, not to exceed $1.50 per unit, of any
outstanding debt. Furthermore, American
Champion Entertainment releases Fast Forward
Marketing from any additional liability.
2. RETURNS PROCEDURES: The Products are 100%
returnable, within one (1) year of date of last
invoice, unless otherwise stated in writing.
When a Purchaser notifies Fast Forward Marketing
of an impending return of Products, a master
return number (M#) is assigned for all tracking
and accounting purposes and a debit for the
dollar amount of the return is posted against
the amounts due to Supplier.
Return requests may come at any time, even after
the Product has been paid for. If American
Champion Entertainment has received payment for
products and a credit balance results due to
the subsequent return by any purchaser, American
Champion Entertainment agrees to reimburse Fast
Forward Marketing in cash within 10 days of Fast
Forward Marketing's deduction or receipt of such
returned merchandise, whichever is sooner.
American Champion Entertainment agrees to pay
freight charges and handling fee of $0.60 per
unit on overstock returns from the following
customers. Borders, Cambridge, Strawberries,
Best Buy, Camelot, Musicland, Store of
Knowledge, Target, Transworld, Tower, Xxxxxxxx
Merchandisers, Wherehouse. Fast Forward
Marketing reserves the right to add accounts.
3. TERMINATION: This Agreement may be canceled
by either Fast Forward or American Champion
Entertainment at any time with a three (3) month
written notice. In accordance with return
policies in Amendments Paragraph 4, Supplier
will allow Fast Forward Marketing to establish a
reserve against potential returns equal to the
wholesale value of products in the field or
until all discontinued products are accounted
for, for a period of six (6) months from date
of cancellation or termination. It is
acknowledged and accepted that all returns still
in the field shall be the responsibility of
Supplier and/or its new distributor and Fast
Forward Marketing shall have no further
responsibility for such returns after the date
of the termination.
4. PRICE PROTECTION: American Champion
Entertainment agrees to extend to Fast Forward
Marketing any price reduction off of the
Suggested List Price on any Product covered by
this agreement and will give Fast Forward
Marketing thirty (30) days written notice prior
to such price reductions, agreeing to extend
this price protection for a total of ninety (90)
days from notification.
5. PRODUCT REQUIREMENTS: Products must be in
shrink-wrapped packaging and must contain a UPC
code.
6. SAMPLES: American Champion Entertainment will
furnish a reasonable number of samples at no
charge.
7. SHIPPING NOTICE AND INVOICING
RESPONSIBILITIES: American Champion
Entertainment accepts full responsibility for
shipment of products and agrees to adhere to all
terms and conditions as stated on Fast Forward
Marketing's Purchase Order and listed below.
Fast Forward Marketing bills Purchasers only
after American Champion Entertainment provides
invoices which must be received by Fast Forward
Marketing within 72 hours after shipment of
Products. Invoices must contain the following
information: CUSTOMER'S PURCHASE ORDER NUMBER,
APPLICABLE FREIGHT CHARGES, SHIPPING DATE,
DESTINATION, QUANTITY SHIPPED, PACKING SLIP
NUMBER
Each Purchase Order is to be packaged and
shipped individually and is not to be co-mingled
or shipped with any other Purchase Order. Each
carton must be identified with the customer's
purchase order number and the words "FAST
FORWARD MARKETING BILLING". Back-orders may be
shipped within 90 days of order date unless
otherwise specified on the Purchase Order.
Shipment of back-orders beyond the 90 day limit
must be approved by Fast Forward Marketing prior
to shipping.
Proof of Delivery (POD) must be provided within
30 days when requested by Fast Forward
Marketing. If not provided within this term
American Champion Entertainment agrees that Fast
Forward Marketing may charge-back the wholesale
cost of the shipment billed to Fast Forward
Marketing at the time of shipping. When
requested, the POD must include signature of
person who accepted delivery of shipment, the
weight and number of cartons comprising
shipment.
8. INDEMNIFICATION: American Champion
Entertainment indemnifies and holds Fast Forward
Marketing free and harmless from any and all
claims, demands, causes of action, damages,
liabilities, expenses or losses, including
reasonable attorneys fees arising in connection
with (i) the Product (whether or not defective,
mislabeled or mis-shipped); (ii) any act of
Supplier, (iii) infringement of any patent or
copyright or other rights of third parties, (iv)
any violations of municipal, state or federal
laws or regulations governing the merchandise or
its sale.
9. AGREEMENT TO PERFORM NECESSARY ACTS: Each
party agrees and covenants that it will, upon
the request of the other, execute, acknowledge,
deliver or perform all such further acts, deeds,
assignments, transfers, conveyances and
assurances as may be required to carry out the
terms and provisions of this Agreement.
10. MODIFICATIONS: No provision of this
Agreement or any of the documents referred to
herein may be amended, modified, supplemented,
changed, waived, discharged, or terminated,
except by written agreement.
11. GOVERNING LAW: This Agreement and the
obligations of the parties shall be interpreted,
construed and enforced in accordance with the
laws of the State of California.
12. NOTICE: All notices, requests, consents,
directions or demands hereunder shall be deemed
given and delivered (a) on the date of service,
if served personally on the party to whom notice
is to be given or if transmitted by facsimile
machine to the facsimile number indicated, or
(b) on the third business day after mailing,
when duly deposited in the United States mail,
postage prepaid, return receipt requested,
addressed to the party to whom notice is to be
given at that party's address.
13. CONSENTS AND WAIVERS: No consent or waiver,
express or implied, by any party to, or any
breach or default by any other party in the
performance of its obligations hereunder shall
be deemed or construed to be a consent to or
waiver of any other breach or default in the
performance by such other party of the same or
any other obligations hereunder. Failure on the
party of a party to complain of any act of the
other party or to declare a party in default,
irrespective of how long such failure continues,
shall not constitute a waiver of such party of
its rights hereunder, regarding any such breech
or subsequent breech.
14. BANKRUPTCY OF SUPPLIER: Supplier agrees that
Fast Forward Marketing may establish a
reserve against potential returns equal to
the actual dollar value of inventory in the
field that Fast Forward Marketing determines,
in good faith, may be returned under the
following circumstances. Such reserve shall
be liquidated within six (6) months and shall
only be created upon the occurrence of one or
more of the events listed below:
a. Supplier executes a general assignment for
the benefit of its creditors, ceases to conduct
business in the ordinary course as it is now
conducted, convenes any meeting of its
creditors, becomes insolvent, admits in writing
its insolvency or inability to pay its debts, or
is unable to pay or is generally not paying its
debts as they become due;
b. A receiver, liquidator, sequestrator,
trustee, custodian or other officer having
similar powers is appointed to take possession
of any or all of Supplier's assets; c. Any
proceeding is voluntarily involuntarily
commenced under any provision of the Federal
Bankruptcy Code or other federal or state law
relating to debtor rehabilitation, insolvency,
bankruptcy, liquidation or reorganization,
15. ARBITRATION AND ATTORNEYS FEES: In the event
of a dispute arising from this Agreement, within
sixty (60) days from the date notice is given by
one party to the other as to the existence of
such a dispute, the parties agree to submit any
such dispute to a resolution by arbitration in
accordance with the Commercial Arbitration Rules
of the American Arbitration Association, or the
rules of any other mutually agreed upon
arbitrator (the "Rules"). Any hearing under the
Rules shall take place at Los Angeles,
California in accordance with Rule 11 of the
Rules. The hearing shall be before one
arbitrator in accordance with Rule 17 of the
Rules. The provisions of Section 1283.05 of the
California Code of Civil Procedure are
incorporated into and made a part of this
Agreement. Any award rendered by the
Arbitrator pursuant to this Agreement and the
Rules shall be enforceable in the Superior Court
of the County of Los Angeles, in and for the
State of California as the court having
exclusive jurisdiction over such arbitration.
Such arbitration shall be binding and final.
The prevailing party shall be entitled to
immediate payment of all costs incurred by such
party in such dispute, including but not limited
to, court costs and reasonable attorneys' fees.
In agreeing to arbitration, the parties
acknowledge that in the event of a dispute
arising from this agreement, each party is
giving up the right to have the dispute decided
in a court of law before a judge or jury and
instead are accepting the use of arbitration for
resolution.
