FORM OF] EXCLUSIVE ARTIST ACQUISITION AGREEMENT
Exhibit
10.4
[FORM
OF] EXCLUSIVE ARTIST ACQUISITION AGREEMENT
This
Co-Marketing and Exclusive Distribution Agreement
(this
“Agreement”) is entered into by and between Benacquista Galleries, Inc., a
Nevada corporation (“Benacquista”) and _________, Inc., a _________ corporation
doing business as XxxXxxxxx.xxx, (“ArtTrader”) this 12th
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 a history of attracting worthwhile, creative artists and
succeeding in having those artists go under contract to sell their works
to
ArtTrader;
WHEREAS,
Benacquista wishes to contract artists to sell their work through its website
and to-be-constructed physical galleries;
WHEREAS,
ArtTrader wishes to cooperate with Benacquista toward the cultivation of
relationships with artists and the obtaining of contracts with those artists
to
sell their work;
NOW,
THEREFORE,
be it
resolved between the parties that:
1. Agreement
of Partnering.
ArtTrader shall support Benacquista in their joint efforts to seek out new
artists and cause those artists to contract with Benacquista for the sale
of
their works. Both parties agree that any new artists or artworks that are
purchased from artists either by ArtTrader of Benacquista shall be covered
by
this Agreement (“Artwork”). Benacquista shall provide the financing for the
purchase of such artwork. When such artwork is sold, the Gross Profit shall
be
split equally between ArtTrader and Benacquista. Gross profit shall be defined
as the retail sales price of the artwork actually paid by the customer, less
any
credit card processing fees, any commissions or referral fees to third parties
and less the cost of acquisition of the artwork. Artwork purchased from a
wholesaler or at auction, and not directly from the artist, shall not be
covered
by this Agreement.
2. Term.
This
Agreement shall continue in full force and effect for a period of 24 months
from
the date hereof. Either party may cancel this Agreement at any time with
30 days
notice, however any Artwork purchased during the Term of this Agreement shall
only be sold in accordance with the terms of this Agreement and Gross Profit
shared accordingly until twenty four months from the date hereof, regardless
of
whether or not this Agreement is terminated.
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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