Buying Agency and Sourcing Agreement
This
Agreement made and entered into this fifteenth day of November,
2007
by
and
between Skins Inc.
(“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.
|
This
is a
non-exclusive agreement.
Buyer
hereby appoints Agent as the non-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.
|
The
following document spells out the terms of an agreement between Atsco
Footwear LLC
and
Skin
Inc.
|
a.
|
It
is agreed that the length of this agreement shall be for one (1)
year,
beginning November 15th, 2007 through November 15th,
2008 (the “Term”).
|
|
b.
|
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 November 15th, 2008 through
November 15th,
2009. 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, and so on from year to
year.
|
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c.
|
It
is agreed that each party will, at its own option, have the right
to
terminate this agreement at any time giving the other party three
(3)
months written notice.
|
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d.
|
It
is agreed that during the Term of this Agreement, Atsco Footwear
LLC will
be the non-exclusive sourcing and development agent of Skins Inc.,
as it
applies to the Buying Agency and Sourcing Agreement between Atsco
Footwear
LLC and Skins Inc.
|
|
e.
|
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
and Fees.
The following Commissions and Fees will
apply:
|
Buyer
agrees to pay Agent a commission of: 7% percent of first five Million dollars
FOB and 5% percent above the five million dollars at FOB 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.
|
a.
|
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 Skins Inc. This will include an 7%
commission fee.
|
|
b.
|
All
samples (full pairs) will be billed out at a negotiated cost per
pair, as
it may vary from factory to
factory.
|
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c.
|
Skins
Inc. will be responsible for all freight associated with shipping
product,
samples, or any development materials. Skins 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.
|
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d.
|
Commission
will be invoiced separately at time of all shipments to Skins Footwear
LLC.
|
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4.
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Payment
Terms.
|
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a.
|
All
invoices billed by Atsco Footwear LLC, to Skins Inc. will be paid
Net 30
days.
|
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5.
|
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;
|
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b.
|
To
keep apprised of shipping conditions and availability of production
to
meet Buyer’s needs as hereinabove
described;
|
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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;
|
2
|
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;
|
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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.
|
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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;
|
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g.
|
From
time to time as requested by Buyer to collect samples of ordered
merchandise and deliver the same to Buyer or its
designee;
|
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h.
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To
inspect samples of ordered merchandise for compliance with Buyer’s
specifications;
|
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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;
|
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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;
|
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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 be 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.
|
3
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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.
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6.
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Buyer’s
Responsibilities.
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Buyer
hereby agrees with Agent as follows:
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a.
|
To
be responsible for payment of all orders placed by Agent for
Buyer.;
|
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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;
|
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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;
|
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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;
|
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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.
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7.
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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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8.
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Claims.
|
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a.
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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.
|
4
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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.
|
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9.
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Limitation
of Powers.
|
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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.
|
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b.
|
Buyer
reserves sole and exclusive power and right to accept or reject purchases
proposed by Agent.
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10.
|
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.
|
11.
|
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 that 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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12.
|
Indemnity.
|
Indemnification: Skins
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 mis-representation by Skin Shoes Inc.
Atsco
Footwear LLC agrees to indemnify, defend, and hold harmless Skins 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 mis-representation by Atsco Footwear
LLC.
5
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13.
|
Miscellaneous.
This letter of agreement….
|
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a.
|
Represents
the entire agreement and understanding of the parties
hereto;
|
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b.
|
Is
executed by individuals authorized to sign for each party to the
agreement
and are empowered to bind that
party;
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c.
|
Shall
be governed by and construed in accordance with the laws of the state
of
Massachusetts;
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d.
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May
be amended or modified only by an instrument in writing mutually
agreed
to, and signed by both parties to this Agreement,
and;
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e.
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Shall
be binding upon and inure to the benefit of the parties hereto and
their
respective successors and assigns.
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14.
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Execution.
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IN
WITNESS WHEREOF, the parties hereto executed this Agreement at the place and
on
the date set forth above.
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Atsco
Footwear LLC
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||||||
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By:
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/s/Xxxx
Xxxxxxxxx
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By:
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/s/
Xxxx Xxxxx
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|||
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Date:
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11/09/2007
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Date:
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11/28/2007
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|||
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Name:
Xxxx Xxxxxxxxx
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Name:
Xxxx Xxxxx
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|||||
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Title:
President
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Title:
CEO/President
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|||||
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Address:
000 Xxxxxxx Xx.
|
Address:
0000 Xxxxxxxx Xxx, 00xx
Xxxxx
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|||||
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Xxxx,
XX 00000
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Xxx
Xxxx, Xxx Xxxx 00000
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Phone:
508-583-7600 ext. 307
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Phone:
000-000-0000
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E-Mail:
xxxxx@xxxxxxxxxxxxx.xxx
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E-Mail:
xxxx@xxxxxxxxxxxxx.xxx
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