EXHIBIT 10.2
E-NITED
business solutions
SUPPLIER AGREEMENT
This Supplier Agreement (this "Agreement") is made by and between
e-NITED business solutions, a division of United Stationers Supply Co. an
Illinois corporation having a principal place of business at 0000 Xxxx Xxxx
Xxxx, Xxx Xxxxxxx, Xxxxxxxx 00000-0000 ("United" or "Supplier"), and N-Gen
Solutions, d/b/a Learning Xxxx.xxx, a Delaware corporation having a
principal place of business at 0000 Xxxx X-00 Xxxxxxxx Xxxx, Xxxxx #0,
Xxxx, Xxxxxxxx 00000 ("Reseller"), and shall be effective as of this 8th
day of February, 2000 ("Effective Date").
WHEREAS, Supplier is the wholesale distributor of certain products,
including office supplies, computer consumables, and cleaning supplies;
WHEREAS, Reseller owns and operates one or more Internet web sites
having the URL xxx.xxxxxxxxxxxx.xxx (collectively, the "Web Site") wherein
Reseller displays and makes available for sale certain consumer products;
and
WHEREAS, Reseller desires to sell Supplier's products that are listed
on Supplier's Electronic Catalog Database (provided under separate cover)
to Reseller's Consumers (the "Consumers"), and Supplier wishes to fulfill
Consumer orders for the Products by delivering such to the Consumers.
NOW THEREFORE, in consideration of the mutual promises, covenants, and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree
as follows:
1. PURCHASE OF PRODUCTS. The Parties agree that Consumers shall
order Products directly from the Web Site and Reseller shall act as the
merchant and collect all payments for the Products from the Consumers.
According to the terms and conditions set forth herein, Reseller shall
purchase from Supplier the Products ordered by Consumer and Supplier shall
be responsible for fulfilling such Consumer orders by delivering the
Products to the Consumer.
2. PRICING. Except as otherwise provided in this Agreement, initial
pricing terms for each Product will be provided via Price File Download and
are subject to change. The Parties agree that Supplier may change prices
from time to time, without notice. Pricing updates will become effective
immediately. Reseller should download pricing updates daily from the FTP
(File Transfer Protocal) site of Supplier. The Parties agree that pricing
for the Products is based upon the assumption that Reseller will work
diligently and exert all reasonable efforts to market and to create
significant sales opportunities for office supply products online through
telemarketing, direct sales, and mailings. Reseller may refuse to sell, or
discontinue, the sale of any Product in its sole discretion. Reseller is
responsible for setting its own prices for the sale of each product to
Consumers.
3. RESELLER ORDERS. The Parties agree that an integrated electronic
data interchange system (the "EDI system") will be used as the primary
method of order processing. Supplier may add a handling charge of $2.50
per order to any order which does not comply with electronic order
provisions of the Terms of Sale ("Exhibit A"). In the event of its
electronic systems failure, Supplier shall accept and process telephone and
fax orders.
Supplier shall assign, via postal zip code, all orders received from
Reseller to the nearest United shipping facility. All orders received into
Supplier's system by 2pm local time in the time zone of the assigned
shipping facility will be shipped from Suppliers facility on the same day,
but in the event Supplier's initially assigned facility cannot complete or
fulfill the order, Supplier's system will search the next closet facility
and ship the Products to the Consumer on the same day the order is
received, assuming that the item is available in stock. An order which is
improperly transmitted or an order for out of stock merchandising is
automatically cancelled.
In the event Supplier believes that it cannot fulfill, either in whole
or in part, a Consumer's order for a Product, Supplier shall notify
Reseller within 2 hours of receipt of such order from Reseller of
Supplier's inability to deliver the ordered Product(s) to the Consumer and
such order for an out of stock item will be deemed cancelled. Reseller
will be responsible for notifying Consumer.
4. DISTRIBUTION/DELIVERY. Supplier shall use its nation-wide
express delivery system to deliver Products to the Consumer. Reseller
agrees that all shipments from Supplier to Consumer may bear Reseller's
indicia including, but not limited to, Reseller's trademarks, trade names,
logos and any source identifiers Reseller may adopt from time to time and
Reseller hereby grants Supplier a limited license to use Reseller's indicia
for such shipments.
5. PAYMENT/ADJUSTMENTS. Reseller shall pay Supplier for Products
ordered, handling charges, and shipping fees in accordance with the terms
and conditions of Exhibit B.
6. RETURNS. All requests for Product returns, repairs, or
replacements shall be directed to Reseller and shall be subject to
Reseller's return policy. All requests for Product returns to Supplier are
subject to the terms and conditions in Exhibit B and must include a Return
Authorization Number provided by United.
7. OWNERSHIP OF INFORMATION. Reseller shall own all information
concerning or relating to a specific Consumer who completes an online order
form to Reseller from the Web Site (the "Consumer Information"). The
Parties hereby acknowledge and agree that Reseller may provide Consumer
Information to Supplier and notwithstanding the provisions contained in
this Paragraph 7, nothing shall prevent Supplier from using, collecting,
compiling, storing, or selling Aggregate Consumer Information derived form
the Consumer Information. For the purposes of this Agreement, "Aggregate
Consumer Information" includes, but is not limited to, information
constituting or descriptive of demographics, habits, usage patterns,
preferences, survey data, or any other Product-related, non-personal
information (i.e., information which does not allow Supplier to identify
the individual Consumer) of one or more Consumers.
8. LIMITED WARRANTY. Each Party represents and warrants that: (a)
it has all necessary authority to enter into this Agreement and (b) the
rights it has granted hereunder do not breach any other agreement to which
it is a Party or by which it is bound. Reseller
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acknowledges that the Products are distributed by Supplier and not
manufactured by Supplier, but are manufactured by entities for whom Seller
acts as a distributor and/or reseller. Furthermore, this limited warranty
and any liability hereunder shall not exceed the warranty provided by the
manufacturer of the Products. ALL WARRANTIES FOR THE PRODUCTS ARE SUBJECT
TO AND LIMITED BY AND TO ANY WARRANTIES PROVIDED BY THE MANUFACTURER(S) OF
ANY OF THE PRODUCTS. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES EXCEPT THOSE, IF ANY, SUPPLIED BY THE MANUFACTURER OF THE
PRODUCTS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. This is
a limited warranty and supersedes all other warranties. The remedies
provided herein are the Reseller's exclusive remedies for breach of this
warranty and shall be the sole liability of Supplier for a breach of this
warranty. IN NO CASE SHALL SUPPLIER BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT,
NEGLIGENCE, STRICT TORT, OR ANY OTHER LEGAL THEORY; INCLUDING, WITHOUT
LIMITATION, LOSS OF PROFITS, LOSS OF SAVINGS OR REVENUES, LOSS OF USE OF
ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF ANY SUBSTITUTE
EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME, THE CLAIMS OF THIRD PARTIES,
INCLUDING CONSUMERS OR SUPPLIERS, AND INJURY TO PROPERTY.
9. INDEMNITY. Reseller shall indemnify and hold Supplier harmless
from any and all liabilities, damages, and expenses of any nature,
including reasonable attorneys fees and costs, arising out of or relating
to any action instituted by either Reseller or any third party for
Reseller's breach or alleged breach of representations and warranties,
omissions, or misrepresentations regardless of the form of action.
Reseller shall indemnify and hold Supplier harmless from any and all
liabilities, damages and expenses of any nature, including reasonable
attorneys fees and costs, for claims alleged against Supplier based on
improper use or misuse of Reseller's trademarks, trade names, or logos as
specified in this Agreement.
10. 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 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 request and receive approval
in writing from the other party to disclose to the public that it has
entered into an agreement with the other party (without disclosing pricing
and other nonpublic details), and that the Products are being sold on the
Web Site.
11. TERM AND TERMINATION. This Agreement is effective for one (1)
year from the Effective Date (the "Term") unless sooner terminated by
either Party with ninety (90) days prior written notice to the other Party.
This Agreement shall automatically renew for one (1)
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additional year, unless ninety (90) days prior to the expiration of any
Term, notice of election not to renew is provided in writing by either
Party to the other Party.
12. MISCELLANEOUS.
a. INDEPENDENT PARTIES. The relationship between Supplier and
Reseller is, and at all times shall remain, solely that of independent
parties, and shall not be, or construed to be a joint venture,
partnership, fiduciary, or other relationship of any nature.
b. NOTICES. Any notice, report, or statement required or
permitted under this Agreement will be considered to be given or
transmitted when sent by certified mail, postage prepaid, addressed to
the Party for whom it is intended at its address of record; by
facsimile, which notice will be effective on computer confirmation of
receipt; or by courier or messenger service, which notice will be
effective on receipt by recipient as indicated on the courier's
receipt. The record addresses of the Parties are as follows:
e-NITED business solutions
000 Xxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
Attention: Xxxx X'Xxxxxxxx
With a copy to the Attention: General Counsel
United Stationers Supply Co.
0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
Reseller: N-Gen Xxxxxxxxx.xxx
0000 X. X.-00, Xxxxxxxx Xx. #0
Xxxx, XX 00000
Attention: Xxx Xxxx
c. AMENDMENT. This Agreement may be supplemented, amended, or
modified only by the mutual agreement of the Parties. No supplement,
amendment, or modification of this Agreement will be binding unless it
is in writing and signed by both Parties.
d. NO WAIVER. No waiver of a breach, failure of any condition,
or any rights or remedy contained in or granted by this Agreement will
be effective unless it is in writing and signed by the Party waiving
the breach, failure, right, or remedy. No waiver of any breach,
failure, right, or remedy will be deemed a waiver of any other breach,
failure, right, or remedy, whether or not similar, nor will any waiver
constitute a continuing waiver unless the writing so specifies.
e. ATTORNEY FEES. In any litigation, arbitration, or other
proceeding by which one Party either seeks to enforce its rights under
this Agreement (whether in contract, tort, or both) or seeks a
declaration of any rights or obligations under this Agreement, the
prevailing Party will be awarded reasonable attorney fees, together
with any costs and expenses, to resolve the dispute and to enforce the
final judgment.
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f. GOVERNING LAW. This Agreement, and any dispute arising from
the relationship between the Parties to this Agreement, shall be
governed and determined by Illinois State law. Any dispute that
arises under or relates to this Agreement (whether contract, tort, or
both) shall be resolved in state or federal court in Chicago,
Illinois, and the Parties expressly waive any right they may otherwise
have to cause any such action or proceeding to be brought or tried
elsewhere. The parties agree that a senior executive of each will
meet in person in a good faith attempt to settle any dispute before
filing any legal action.
g. SEVERABILITY. Any provision of this Agreement that in any
way contravenes the law or any state or country in which this
Agreement is effective will, in that state or country, to the extent
the law is contravened, be considered separable and inapplicable and
will not affect any other provision or provisions of this Agreement.
h. ASSIGNMENT. Neither Party shall have the right to assign
any of its rights or obligations under this Agreement without the
prior written consent of the other Party; except that Supplier shall
have the right to assign its rights and obligations, in whole or in
part, to any corporation controlled by, controlling or under common
control with Supplier or to any third Party which acquires all, or
substantially all, of the assets of Supplier.
i. INTEGRATION. This Agreement, and any and all Exhibits
attached hereto and made a part hereof, constitutes the final,
complete, and exclusive statement of the terms of this Agreement
between the Parties pertaining to the subject matter of this Agreement
and supersedes all prior and contemporaneous understandings or
agreements of the Parties. No Party has been induced to enter into
this Agreement by, nor is any party relying on, any representation or
warranty outside those expressly set forth in this Agreement.
j. INTERPRETATION. This Agreement shall be interpreted in
accordance with its plain meaning and shall not be interpreted against
the drafting Party.
k. CAPTIONS. The captions and headings contained in this
Agreement are for convenience only and shall not control the meaning,
effect, or construction of the Agreement.
l. INDEPENDENT COUNSEL. All Parties to this Agreement have
read the Agreement and have had the opportunity to consult with
independent counsel prior to executing the Agreement.
m. FORCE MAJEURE. Neither Party shall be responsible to the
other Party for any failure to comply with the terms of this Agreement
due to causes beyond its reasonable control; provided, however, that
no such causes shall excuse Reseller from paying amounts due and
outstanding to Supplier.
INTENDING TO BE LEGALLY BOUND, the Parties have executed this
Agreement to be effective as of the Effective Date.
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Reseller: e-NITED business solutions a division of
N-GEN XXXXXXXXX.XXX United Stationers Supply Co.
By:/s/ XXXXXX X. XXXX By: /s/
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Its: Xxxxxx X. Xxxx/e-Commerce Its: V.P., Sales
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Date: February 9, 2000 Date: 2/11/00
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