BUYING AGENCY AND SOURCING AGREEMENT
This
Agreement made and entered into this seventh day of December, 2005 by and
between Skin Shoes LLC (SKIBOs) (“Buyer”) and ATSCO, LLC, having its principal
offices at 000 Xxxxxxx Xx. Xxx., Xxxx, XX 00000 (“Agent”).
WHEREAS,
the Buyer and Agent have been and/or intend to operate as Buyer and Buying
and
Sourcing Agent;
NOW,
THEREFORE, in consideration of their mutual covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. |
Appointment.
|
Buyer
hereby appoints Agent as the exclusive buying and sourcing agent to procure
such
merchandise as buyer may from time to time determine. Agent hereby accepts
such
appointment and agrees to use its best efforts in the performance of its duties,
obligations and covenants hereunder. Agent’s appointment shall commence as of
the date buying agency services were first rendered by Agent to Buyer or as
of
the date hereof, whichever is earlier and said appointment shall continue until
this Agreement is terminated by Buyer or Agent as provided
hereinbelow.
2. |
Term.
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a. This
Agreement may be terminated for the placement of new orders at any time by
either party giving notice in writing to the other at least ninety (90) days
prior to the date termination is to take effect, which date shall be specified
in such notice.
b. It
is
understood and agreed that, notwithstanding the termination of this Agreement,
the parties shall perform all of their respective obligations and agreements
hereunder with respect to orders already placed by Agent for Buyer until the
merchandise ordered has been delivered to Buyer.
3. |
Commission.
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Buyer
agrees to pay Agent a commission of: 10% percent of first five million dollars
and 8% percent above the five million dollars and 6% above ten million dollars
at F.O.B. country of origin price for merchandise shipped to Buyer under any
order placed for Buyer by Agent or subsequently placed directly with a factory
as a reorder unless this agreement is terminated. Such commission shall Be
separately invoiced to Buyer by Agent and shall be payable in United States
funds drawn on a United States bank upon receipt by Buyer of satisfactory
evidence of shipment of such merchandise to Buyer. These commissions are not
shared with any of the manufacturers involved in making shoes for the
Buyer.
4. |
Agent’s
Duties.
|
Agent
hereby agrees with Buyer to perform the following services for
Buyer:
a. To
provide market information, assistance and research for and on behalf of the
Buyer and not for any of the manufacturers involved in making shoes for the
Buyer;
b. To
keep
apprised of shipping conditions and availability of production to meet Buyer’s
needs as hereinabove described;
c. To
identify export suppliers and/or suitable factories for the manufacture of
merchandise at a price, in quantities and for delivery by dates acceptable
to
Buyer;
d. To
place
orders on behalf of Buyer with export suppliers and/or manufacturers designated
by Buyer from time to time upon written instruction from Buyer to Agent and
to
negotiate the price for such merchandise for the benefit of Buyer;
e. Agent
expressly does not make any representations or warranties regarding possible
copyright or patent infringements on the products sourced on behalf of the
Buyer
and shall have no liability whatsoever regarding same. As importer of record,
Buyer assumes all responsibility for US Customs regulations, copyright and
or
patent infringements.
f. To
follow
up with export suppliers and/or manufacturers concerning the processing of
Buyer’s orders until delivery of the ordered merchandise has been made and to
keep Buyer advised of the status of all such orders;
g. From
time
to time as requested by Buyer to collect samples of ordered merchandise and
deliver the same to Buyer or its designee;
h. To
inspect samples of ordered merchandise for compliance with Buyer’s
specifications;
i. To
obtain
invoices, receipts and other suitable evidence from the export suppliers and/or
manufacturers of merchandise ordered by Buyer and to verify information set
forth on the same and their export invoices for such merchandise and submit
the
same to Buyer upon request;
j. To
procure and provide to Buyer, prior to exportation, all documentation,
certificates, forms, statements and information appropriate and/or necessary
for
the exportation to and importation into the United States;
k. To
notify
Buyer as quickly as practicable of any production or quality problems or of
any
other information or developments which may or will affect the timely and proper
delivery of merchandise ordered pursuant hereto. Nothing contained herein is
to
he construed as a guarantee on the part of Agent that the orders shipped will,
in fact, comply with all specifications designated in the orders, nor that
the
merchandise will be free of defects. The Agent assumes no liability resulting
from among other items, strikes, non-availability of materials or production,
government action or other conditions or occurrences beyond Agent’s control. It
is expressly understood that it is not the financial responsibility of the
Agent
to cure such problems. The Agent does however, warrant that it will exert its
full efforts in the Buyer’s behalf to obtain full satisfaction in the form of
credit, and/or refund from said manufacturer for any shipment not in accord
with
the specifications, or for any defective merchandise not detected prior to
shipment;
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l. To
disclose, in writing, any direct or indirect ownership or joint ownership
interest, by Agent, its officers or directors in any entity proposed by the
Agent as a manufacturer or export supplier and to represent that Agent is in
no
way being compensated, direct or indirectly, by any manufacturer or export
supplier for any orders referenced herein;
m. To
help
with technical and engineering issues as it pertains to the Skins and Bones
product to best efforts. To assist in design and commercialization aspects
in
readying the product for market and to help in conducting fit and wear tests
to
ensure product integrity within our agreed upon responsibilities. Any outside
charges for lab or consultants are to be paid for by Skins.
5. |
Buyer’s
Responsibilities.
|
Buyer
hereby agrees with Agent as follows:
a. To
be
responsible for payment of all orders placed by Agent for Buyer;
b. To
be
responsible for the disposition of or the costs thereof of any materials, molds
or other associated items that are expressly purchased by the manufacturer
or
export supplier for use in production of footwear for the Buyer’s
account;
c. To
pay
all shipping, forwarding, handling and other reasonable and customary charges
against the shipment of such merchandise to Buyer, including all customs duties
accruing thereupon;
d. To
secure
and maintain insurance on all merchandise from and after delivery by the
manufacturer or export supplier of the merchandise to the F.O.B. foreign port
of
exportation or Buyer’s freight forwarder;
e. Buyer
shall have the right, upon reasonable notice during normal business hours,
to
inspect all facilities utilized by the export suppliers and/or manufacturers
in
connection with the manufacture and/or storage of the merchandise pursuant
hereto and to examine said merchandise in process of manufacture and as finished
products upon completion of manufacture. Agent hereby affirmatively agrees
to
assist Buyer wheresoever and howsoever necessary in the examination by Buyer
of
the merchandise and/or the facilities utilized in the manufacture and/or storage
of the same.
6. |
Prototype
Samples, Fit Trials, and Samples.
|
All
prototype samples (requested by Buyer), fit trials, confirmation samples and
salesperson samples provided to Buyer pursuant to Section 4 shall be for
the account of Buyer and Buyer shall reimburse or pay Agent for such samples.
Samples shall be sent to Buyer in accordance with Buyer’s instruction, the cost
of which shall be borne by Buyer, and Agent shall invoice Buyer
accordingly.
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7. |
Claims.
|
a. In
the
event that Buyer shall have a claim arising out of or in connection with any
of
the merchandise, handling, shipment, storage or any other event occurring after
delivery of the merchandise by the manufacturer or export supplier to the F.O.B.
foreign port of exportation or to Buyer’s freight forwarder or relating in any
way to its manufacturer, Buyer, at its option, shall either submit the claim
to
the Agent in writing with full details of such claim or Buyer shall process
the
claim on its own behalf. If sent to the Agent, upon receipt thereof, Agent
shall
use its best efforts as agent to process the claim against the manufacturer
or
export supplier for Buyer’s account. These claims are against the manufacturer
or export supplier and not against the Agent.
b. In
the
event the Buyer shall have a claim arising out of the handling, shipment,
storage or any other event occurring after delivery of the merchandise by the
manufacturer or export supplier to the F.O.B. foreign port of exportation or
to
Buyer’s freight forwarder, Buyer shall resolve such claim directly with its
insurer or any other appropriate party.
8. |
Limitation
of Powers.
|
a. Except
for the authority specifically granted by this Buying Agency Agreement, it
is
hereby agreed and understood by the parties hereto that Agent is neither the
employee, general agent or legal representative of Buyer, but rather that Agent
is an independent contractor acting exclusively on its own behalf.
b. Buyer
reserves sole and exclusive power and right to accept or reject purchases
proposed by Agent.
9. |
Buying
Agent Status.
|
Agent,
in
executing this Agreement, certifies and warrants to Buyer that neither it nor
its overseas affiliates will act as a seller of the merchandise and that it
will
not warehouse the merchandise, except for Buyer’s account and pursuant to
Buyer’s specific instructions. Agent certifies and warrants that it does not,
for its own account, have any ownership interest in, or any control or, or
any
financial interest in, any factories, manufacturers or export suppliers making
merchandise for the account of Buyer, and those factories have no ownership
interest in, or any control of, or any financial interest in Agent.
10. |
Confidentiality.
|
All
confidential information made available to either party by the other party
hereto shall be kept confidential as a trade secret by the recipient thereof
and
its officers, directors, employees, agents and other personnel, and such
information shall not, without the prior written consent of the other party,
as
the case may be, be divulged in any manner to any third party except to the
extent that the disclosure of such information shall become necessary in any
litigation, or governmental investigation concerning the provisions of this
Agreement and the conduct of the parties hereunder but under no circumstances
without giving prior notice of the impending disclosure to the other
side.
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11. |
Indemnity.
|
a. Each
party warrants to the other that it has full right, power, legal capacity and
authority to enter into and perform this Agreement and that it will indemnify
and hold harmless the other party for any breach of this warranty.
b. Subject
to the provisions of clause 4 e the Buyer agrees to defend, indemnify and hold
harmless the Agent, including all subsidiaries, affiliates and assignees of
the
Licensor, against all claims, judgments, actions, debts or rights of action,
of
whatever kind, and all costs, including reasonable legal fees, arising out
of
the manufacture, importation, promotion, marketing, distribution or sale of
the
Products by the Buyer under this Agreement.
c. This
Agreement constitutes the entire Agreement between the parties with respect
to
the subject matter and supersedes all prior and other contemporaneous agreements
between the parties in connection with the subject matter, whether oral, in
writing or by action of law.
IN
WITNESS WHEREOF, the parties hereto have set their hands and seals as of the
date written hereinabove.
AGENT: | BUYER: | ||
ATSCO LLC | |||
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By: | Xxxx Xxxxxxxxx | By: | Xxxx Xxxxx |
Its: President
|
Its: President/CEO
Skin Shoes,
Inc.
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ADDENDUM
TO BUYING AGENCY AND SOURCING AGREEMENT
This
is
an Addendum to the Buying Agency and Sourcing Agreement between Atsco Footwear
LLC and Skin Shoes Inc., dated December 7th, 2005. This Addendum is specifically
for additional services provided by Atsco Footwear LLC.
This
Addendum is made this 27th day of February, 2006 by and between Atsco Footwear
LLC, a Delaware company whose address is 000 Xxxxxxx Xx., Xxxx, XX 00000, and
Skin Shoes Inc., a Delaware corporation whose address is _______________________
____________________________________________________.
The
following document spells out the terms of an agreement between Atsco Footwear
LLC and Skin Shoes Inc.
I. TERM: It
is agreed that the length of this agreement shall be for one (1) year, beginning
March 1st, 2006 through February, 28th, 2007 (the “Term”).
It
is
also agreed that each party will, at its own option, have the right to extend
this agreement under the same terms and conditions for an additional period
of
one (1) year, starting March 1st, 2007 through February 28th, 2008. The two
parties will advise each other in writing of its intent to extend the existing
agreement no less than thirty (30) days prior to the expiration of the existing
agreement.
It
is
agreed that during the Term of this Agreement, Atsco Footwear LLC will be the
exclusive sourcing and development agent for Skin Shoes Inc., as it applies
to
the Buying Agency and Sourcing Agreement between Atsco Footwear LLC and Skin
Shoes Inc.
II. COMMISSIONS: The
following Commissions and Fees will apply:
i. All
molds, equipment, and development fees, other than finished product (finished
product is covered under the Buying Agency and Sourcing Agreement) will be
paid
for by Skin Shoes Inc. This will include an 8% commission fee.
ii. All
samples (full pairs) will be billed out at a $50 per pair.
iii. Skin
Shoes Inc. will be responsible for all freight associated with shipping product,
samples, or any development materials. Skin Shoes Inc. will provide a Federal
Express Account number (or shipper of their choice) to Atsco Footwear LLC,
for
its providers and Atsco Footwear LLC to use on their behalf.
III.
PRE-PAID
COMMISSIONS:
i. Beginning
March 1st, 2006, Atsco Footwear LLC will invoice Pre-Paid Commissions to Skin
Shoes Inc. at a rate of $6,000 per month.
ii. Pre-Paid
Commissions will be reviewed after the first year of business on March 1, 2007.
This review will look at the Commissions billed by Atsco Footwear LLC for the
year at 8%. Skin Shoes Inc. will be allowed to deduct 50% of each Commission
invoice billed, as an offset to the Pre-Paid commissions.
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IV.
PAYMENT
TERMS:
i. All
invoices billed by Atsco Footwear LLC, to Skin Shoes Inc. will be paid Net
30
Days.
V. INDEMNIFICATION: Skin
Shoes Inc. agrees to indemnify, defend, and hold harmless Atsco Footwear LLC
and/or its officers with respect to any liability or damages that may arise
out
of any breach or alleged breach of this Agreement occurring during the term
of
this agreement, or any negligence or misrepresentation by Skin Shoes
Inc.
Atsco
Footwear LLC agrees to indemnify, defend, and hold harmless Skin Shoes Inc.
and/or its officers with respect to any liability or damages that may arise
out
of any breach or alleged breach of this Agreement occurring during the term
of
this agreement, or any negligence or misrepresentation by Atsco Footwear
LLC.
VI.
MISCELLANEOUS: This
letter of agreement:
i. Represents
the entire agreement and understanding of the parties hereto;
ii. Is
executed by individuals authorized to sign for each party to the agreement
and
are empowered to bind that party;
iii. Shall
be
governed by and construed in accordance with the laws of the state of
Massachusetts;
iv. May
be
amended or modified only by an instrument in writing mutually agreed to, and
signed by both parties to this Agreement; and
v. Shall
be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
VII.
EXECUTION:
In
witness whereof, the parties have executed this Agreement at the place and
on
the date set forth above.
ATSCO FOOTWEAR LLC | SKIN SHOES, INC. | ||
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By: | /s/ Xxxx Xxxxxxxxx | By: | /s/ Xxxx Xxxxx |
Name: Xxxx Xxxxxxxxx
Its: President
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Name: Xxxx Xxxxx
Its: CEO/President
Date: 02/27/06
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