SUPPLIER AGREEMENT
This Supplier Agreement (this "Agreement') Is made by and between XxxxXxx.Xxx
Inc. ("ShopNow"), and title party identified on the signature page below
("Supplier"), and shall be effective from the date accepted by ShopNow on the
signature page below ("Effective Date"), In consideration of the mutual
covenants set forth herein, the parties agree as follows:
1. Initial Covenants. Supplier is the owner/manufacturer or authorized
licensor/distributor of certain products, and desires that ShopNow make those
products listed on Exhibit A (the "Products") available for sale to customers
("Customers") online via one or more ShopNow websites (collectively, the
"Website").
2. Creating the Website. Supplier shall identify each Product and its suggested
retail list price. ShopNow shall use reasonable efforts to develop a Products
presentation on the Website. Supplier shall reasonably assist in this effort by
providing digital images, edited copy, and other materials for each Product that
Supplier is authorized to allow ShopNow to use on the Website. ShopNow may
modify such materials in order to design the Website, and may place the Products
anywhere on the Website. In the event ShopNow is required to modify any of the
above materials to make them conform to ShopNow's specifications, ShopNow shall
invoice Supplier for such modifications according to terms to be mutually agreed
upon. ShopNow can refuse to sell, or discontinue the sale of, any Product in its
sole discretion.
3. Ordering and Shopping. Customers shall order Products directly from ShopNow
and ShopNow shall act as the merchant and collect all payments for the Products.
ShopNow shall be responsible for handling all credit card and payment
processing. ShopNow shall inform Supplier of the Products that have been ordered
and Supplier shall check such information at least once each calendar day. All
communication between ShopNow and Supplier shall follow formats and procedures
designated by ShopNow from time to time. Supplier shall ship each Product
directly to each Customer on behalf of ShopNow within 24 hours after receiving
notice front ShopNow that the Product has been ordered and which packaging shall
contain the trademarks, and/or logos of ShopNow and its licensors (collectively,
the "ShopNow Marks") as designated by ShopNow.
4. Payment/Adjustments. Upon execution of the Agreement, ShopNow shall pay
Supplier, or, at Supplier's direction, a third party chosen by Supplier, the
amount received by ShopNow for each Product and reasonable domestic shipping
charges incurred by Supplier for each product that is ordered from ShopNow and
shipped by Supplier less the Transaction Fee listed on Exhibit A. Payment shall
be made within thirty (30) days of the end of each calendar month, for all sales
of the Products ShopNow has recognized as being shipped by Supplier by its
notification for the previous month. Payments made by ShopNow will be reconciled
to include any refunds, returns, or other amounts owed, All requests for Product
returns or replacement shall initially be directed to ShopNow and shall be
subject to ShopNow's return policy as shall be posted in the Website. Upon
ShopNow's acceptance and approval of a Product return, ShopNow shall provide
Customer with a returned merchandise authorization ("RMA") number to track the
returned Product and Customer shall be directed to return the Product to
Supplier using the assigned RMA number. Supplier shall provide ShopNow, on a
daily basis, a status report on all Product returns. Upon notification from
Supplier that a Product has been returned, ShopNow shall credit Customer's
account. Supplier will invoice ShopNow for reasonable shipping charges incurred
in fulfilling Customer orders.
5. Ownership. Supplier hereby grants to ShopNow a non-exclusive license to use
the trade names, trademarks, logos, service marks and product designations of
Supplier and its licensors (collectively, the "Supplier Marks") in connection
with ShopNow's activities under this Agreement. Supplier hereby agrees that
ShopNow shall retain, and Supplier hereby assigns, all right, title, and
interest in and to the Website (other than the Products and Supplier Marks) and
any intellectual property therein and all modifications and improvements
thereto, including all rights under any applicable patents, copyrights,
trademarks, and trade secrets, including all renewals and extensions thereto.
Supplier shall not reverse engineer, disassemble, decompile, or otherwise
attempt to discover any source code or trade secrets arising out of or relating
to the Website.
6. Warranty. EACH PARTY REPRESENTS AND WARRANTS THAT: (A) IT HAS All NECESSARY
AUTHORITY TO ENTER INTO THIS AGREEMENT AND THE RIGHTS IT HAS GRANTED HEREUNDER
DO NOT BREACH ANY OTHER AGREEMENT TO WHICH IT 18 A PARTY OR BY WHICH IT IS
BOUND; AND (B) THE SOFTWARE AND HARDWARE THAT IT PROVIDES TO, OR USES TO
COMMUNICATE WITH, THE OTHER PARTY SHALL BE YEAR 2000 COMPLIANT AND SHALL NOT BE
ADVERSELY AFFECTED BY THE CHANGE TO THE YEAR 2000. THE PARTIES DISCLAIM ALL
OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
OTHER THAN FOR A BREACH OF THIS SECTION (WARRANTY) OR THE NEXT SECTION
(INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO
ANY THIRD PARTY IN TORT, CONTRACT, OR UNDER
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ANY OTHER LEGAL THEORY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT
DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF WHETHER IT HAS
BEEN WARNED OF THE POSSIBILITY OF SUCH LOSS.
7. Indemnity. ShopNow shall indemnify and hold Supplier harmless from any
liabilities, damages, and expenses of any nature, including reasonable attorneys
fees and costs, arising out of or relating to any action by ShopNow in
transmitting to Supplier information about a Customer or a Customer's order for
a Product. Supplier shall indemnify and hold ShopNow harmless from any
liabilities, damages, and expenses of any nature, including reasonable
attorneys' fees and costs, arising out of or relating to the Products. The party
claiming right of indemnification shall promptly notify the other party (the
"Indemnifying Party') in writing of the claim and shall allow the Indemnifying
Party to control the defense and all related settlement negotiations.
8. Support. ShopNow will be responsible for providing customer support to assist
Customers, in accordance with ShopNow's then current support policies therefor.
All interaction with Customers shall be via the ShopNow customer service
department. Supplier will provide ShopNow, without charge, such information and
other assistance as is necessary to enable ShopNow to effectively sell the
Products.
9. Confidential Information. Each party acknowledges and agrees that any
information relating to the other party's business, products, or methods of
operation, which is not generally known to the public, is confidential and
proprietary information of the other party (the "Confidential Information").
Each party agrees that it shall not disclose Confidential Information of the
other party except to its agents who need to know such Confidential Information
in order to perform its obligations under this Agreement. Each party agrees that
it shall not use Confidential Information of the other party except to perform
its obligations under this Agreement. The foregoing obligations shall not apply
to Confidential Information that: (a) is or becomes part of the public domain
through no fault of the receiving party; (b) is lawfully received from a third
party without an obligation of confidentiality; (c) is independently developed
by the receiving party without reference to the Confidential Information of the
other party; or (d) is required to be disclosed by applicable law.
Notwithstanding the foregoing, each party may disclose to the public that it has
entered into an agreement with the other party (without disclosing pricing and
other nonpublic details), and that Products are being sold on the Website.
10. Term and Termination. This Agreement shall have an initial term of one
hundred and eighty (180) days from the Effective Date. Thereafter, the Agreement
shall automatically review for successive thirty (30) day periods unless either
party elects not to renew this Agreement by providing the other with thirty (30)
days prior written notice. Either party may terminate this Agreement if the
other breaches any material provision of this Agreement and fails to fully cure
such breach within thirty (30) days of written notice describing the breach.
Upon termination of this Agreement, ShopNow shall promptly remove the Products
from the Website. All provisions of this Agreement that may reasonably be
interpreted or construed as surviving the expiration or termination of this
Agreement shall so survive.
11. Miscellaneous. If any part of this Agreement shall be held invalid or
unenforceable, this Agreement shall be construed as if it did not contain such
portion, and the rights and obligations of the parties shall be construed and
enforced accordingly. This Agreement constitutes the complete and exclusive
agreement and understanding between the parties concerning the subject matter
hereof, and supersedes all previous or contemporaneous negotiations and
agreements, whether oral or written. Neither party shall assign this Agreement
or any rights hereunder without the prior written consent of the other, which
shall not be unreasonably withheld; provided, however, that either party may
assign this Agreement to an entity which is an affiliate of such party or which
succeeds by operation of law to, or otherwise acquires substantially all of the
assets of such party, or into which such party is merged, and which assumes such
party's obligations hereunder. No waiver, modification, amendment, consent or
discharge in connection with this Agreement shall be binding upon either party
unless in writing and signed by authorized representatives of both parties.
Failure or delay on the part of any party to exercise any right, remedy, power
or privilege hereunder will not operate as a waiver. This Agreement shall be
governed by and interpreted under the laws of the State of Washington without
reference to that body of law known as conflicts of law or the Convention on
Contracts for the International Sale of Goods. Except for any claim for
injunctive or equitable relief, any dispute or controversy arising out of or
relating to this Agreement which cannot be amicably resolved by the parties
shall be finally settled by arbitration in King County, Washington, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA").
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INTENDING TO BE LEGALLY BOUND, the parties have executed this
Agreement to be effective as of the Effective Date.
XxxxXxx.Xxx Inc. Supplier Name: XxxXxxxxx.xxx
By Xxx Xxxxxx By Xxxxxx Xxxxxxxxx
Its Executive Vice President Its CEO
Date November 3, 1999 Date October 28, 1999
Supplier address:
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxxxx X0X 0X0
