MANUFACTURER'S AGREEMENT
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This Agreement is entered this ___ day of ______ 19__ by and between
CyberShop, L.L.C. ("CS"), whose address is _________________________ and
__________________________, (the "Manufacturer"), whose address is
___________________________________.
CS has established an interactive on-line computer shopping
service (the "System") in order to sell products directly to consumers via all
computer related distribution avenues, including the interactive on-line
computer services (the "Services"). The Manufacturer wishes to have its Products
included on the System and grants to CS the right and license to market and sell
the Products on the System.
1. TERM. The term of this Agreement is for two (2) years from
the date the agreement is signed. This Agreement is automatically extended from
year to year, unless terminated by either party by providing written notice to
the other party no later than thirty (30) days prior to the expiration of the
Term Period.
2. TERRITORY The territory for the rights and license granted
CS is the world.
3. LISTING OF PRODUCTS.
(a) Manufacturer agrees to provide CS with all
information, materials and photographs in connection with the products and
reasonably requested by CS.
(b) When the Manufacturer provides CS with the list
of the Products, the Manufacturer will also provide the Price CS will pay for
the Product. This Price cannot be more than the highest price received by the
Manufacturer from any of its other retailers. The Manufacturer may add to this
Price, but will list separately, shipping and handling costs. The Manufacturer
may change the price with at least thirty (30) days written notice to CS.
(c) All information, materials and photographs must
be presented to CS by Manufacturer no later than sixty (60) days after the date
this agreement.
(d) If Manufacturer does not provide CS with all
information, materials and photographs within the above specified sixty (60)
days, then all fees as agreed to in paragraph 5 below will be due and payable
upon expiration of the sixty (60) day period.
4. RETURNS AND REFUNDS Manufacturer unconditionally agrees to
accept returns directly from CS Customer(s) within forty-five (45) days of
delivery of the Product(s). Upon receipt of any Products returned to
Manufacturer, Manufacturer will promptly notify CS in writing. If CS is required
to provide refund to Customer(s), then within thirty (30) days after receipt of
the returned Products, Manufacturer will refund to CS the Price CS paid for the
Products along with the Customer's name, the Products returned and the Purchase
Order number for the Products.
5. SET-UP FEE. The Manufacturer shall pay to CS a
non-refundable fee of $_____________for the preparation of the Listing for _____
images and inclusion of the Listing on the System. One half of this amount will
be due upon execution of this Agreement with the remaining half due prior to
setup on CS system. No Listings will be added to the System prior to receipt of
payment in full.
6. TERMINATION. If either party fails to observe or perform
any of its obligations contained herein, the other party may terminate this
Agreement upon five (5) days prior written notice to the other party.
------------------------------------ CYBERSHOP, L.L.C.
(Manufacturer")
By: By:
--------------------------------- --------------------------
Name: Name:
------------------------------- --------------------------
Title: Title:
------------------------------ --------------------------
MANUFACTURER'S AGREEMENT
------------------------
This Agreement is entered into this ___ day of ___________, 19__ by and between
CyberShop, L.L.C. ("CS"), whose address is ______________________, and
_____________________, (the "Manufacturer"), whose address is
____________________________________________________________________.
WHEREAS, CS has established an interactive on-line computer
shopping service (the "System") pursuant to which CS may sell products directly
to consumers via all computer related distribution avenues, including, without
limitation, the interactive on-line computer services (the "Services"); and
WHEREAS, the Manufacturer wishes to have its Products (as
defined in Section 4 below) included on the System.
NOW THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, CS
and Manufacturer agree as follows:
1. GRANT OF RIGHTS. Manufacturer hereby grants to CS the
following rights:
(a) The right and license to market and sell the
Products on the System;
(b) The right and license to use the Manufacturer's
name, Products (including the likeness of the Products), trademarks, tradenames,
and copyrights (all whether now owned or hereafter acquired) in connection with
the Products for all purposes in connection with the System including, without
limitation, the Listing (as defined below) of the Products on the Services and
the promotion and advertising of the System and the Products;
(c) Manufacturer represents and warrants that it has the
right, power and authority to enter into this Agreement and perform its
obligations hereunder and that the sale and Listing of the Product on the
System, and the placement of the System on the Services will not violate any
agreement, by which the Manufacturer is bound, or any law or governmental
regulation.
2. TERM. The term of this Agreement shall commence on the
date hereof and shall continue for two (2) years from the date hereof (as such
term may be extended from time to time, the "Term Period"). The term of this
Agreement shall be automatically extended from year to year after the expiration
of each Term Period, unless terminated by either party by providing written
notice to the other party no earlier than sixty (60) days and no later than
thirty (30) days prior to the expiration of the Term Period.
3. TERRITORY. The Territory for the license and rights
granted to CS hereunder shall be the world.
4. LISTING OF PRODUCTS.
(a) Manufacturer agrees to provide CS with all
information and materials in connection with the Products and reasonably
requested by CS (including, if available, photographs of the Products) and
cooperate with CS in the preparation of the display and listing of the Products
(the "Listing") on the System. The accuracy of all descriptions and
representations shall be the sole responsibility of the Manufacturer. CS will
use its best efforts to ensure that the Listing conforms to the Manufacturer's
instructions. CS shall have the sole right of use and ownership of the Listing,
including, without limitation, the software related thereto.
(b) Promptly after CS receives from the Manufacturer the
list of the Products to be displayed on the System (the "Products"), CS shall
commence preparation of the Listing.
(c) All information, materials and photographs must be
presented to CS by Manufacturer no later than sixty (60) days after the date
this agreement.
(d) If manufacturer does not provide CS with all
information, materials and photographs within the above specified sixty (60)
days, then all fees as agreed to in paragraph 10 below will be due and payable
upon expiration of the sixty (60) day period.
5. SALE PROCEDURES.
(a) Promptly upon the receipt by CS of an order to
purchase any of the Products, CS shall deliver a purchase order (the "Purchase
Order") to the Manufacturer by electronic data transfer, facsimile or such other
means as agreed to by the parties. The Purchase Order shall include the number
and type of Products ordered and delivery instructions, including the name and
address of the customer (the "Customer").
(b) The Manufacturer shall promptly ship the Product(s)
to the Customer via United Parcel Service or such other means approved by CS
(the "Shipping Service"), in accordance with the instructions set forth in the
Purchase Order. Upon shipment of the Products, the Manufacturer will invoice
(the "Invoice") CS for the price of the Products consistent with the Established
Price (as defined below) and the Shipping Service charges incurred in the
shipment to the Customer, and submit to CS confirmation (including tracking
information) that the Products were shipped.
(c) CS is responsible for paying only the Invoice.
6. ESTABLISHED PRICE. At the time that the Manufacturer
provides CS with the list of the Products, the Manufacturer shall provide CS
with the price CS will be required to pay for the Product (the "Established
Price"). The Established Price may include, but shall list separately, shipping
and handling costs. The Established Price (excluding the shipping and handling
costs) shall not be more than the highest price received by the Manufacturer for
such Product from any of its other retailers. The Manufacturer may change the
Established Price (subject to the limitation set forth in the preceding
sentence) at any time, and from time to time, on not less than thirty (30) days
prior written notice to CS.
7. CUSTOMER PRICE. CS, in its sole discretion, may
determine the price at which the Product shall be sold. CS, in its sole
discretion, may change such price at any time, and from time to time, without
notice to the Manufacturer.
8. RETURNS AND REPLACEMENTS.
(a) Manufacturer unconditionally agrees to accept
returns directly from the Customer(s) within forty-five (45) days of delivery of
the Products. Upon such return, Manufacturer shall refund the Established Price
in accordance with Section 9, below.
(b) Manufacturer will provide all Customers with their
standard warranties and will honor such warranties directly. CS shall not be
required to provide any services to the Customers, including honoring of any
warranties, in connection with the Products.
(c) Upon the receipt of any returned Products to
Manufacturer, Manufacturer shall promptly notify CS in writing of such return.
9. REFUNDS. In the event Manufacturer is required to
provide refunds pursuant to the provisions of Paragraph 8(a) or (b) above, then
within thirty (30) days after receipt of the returned Products, Manufacturer
shall refund to CS the Established Price (if previously paid by CS) less the
shipping and handling charges, along with the name of the Customer, the Products
returned and the Purchase Order number for such Products. CS shall thereafter,
refund to the customer the purchase price paid by the customer, less any
shipping and handling costs paid by the customer.
10. SET-UP FEE. The Manufacturer shall pay to CS a
non-refundable fee of $_____________for the preparation of the Listing for _____
images and inclusion of the Listing on the System. One half of this amount will
be due upon execution of this Agreement with the remaining half due prior to
setup on CS system. No Listings will be added to the System prior to receipt of
payment in full.
11. INCLUSION ON THE SYSTEM. CS shall include the Listing on
the System with respect to each of the Services on which the System is placed.
CS makes no representations, warranties or assurances that the System will be
placed on any of the Services.
12. EXCLUSIVE RIGHT OF CS:
(a) Manufacturer agrees that for a period commencing the
date hereof through two (2) years after the later of (I) the placement of the
System on a Service and (ii) the placement of the Product(s) on the System (as
such may be extended from time to time, the "Exclusive Period"), CS shall have
the exclusive right to market and sell the Manufacturer's products, including
the Products, on the On-Line Services. Manufacturer shall not make any of its
products available for sale to any other on-line computer shopping system except
(i) any retailer with sales in excess of $100 million that sells any of the
products of the Manufacturer as of the date of this Agreement and (ii) any
on-line retailer which sells any of the Manufacturer's products as of the date
of this Agreement.
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(b) The Exclusive Period shall be automatically extended
from year to year unless terminated by the Manufacturer by providing written
notice to CS no earlier than sixty (60) days prior to the expiration of the
Exclusive Period and no later than thirty (30) days prior to the expiration of
the Exclusive Period.
(c) The provisions of this section 12 shall survive the
termination of the Agreement.
13. TERMINATION. If either party fails to observe or perform
any of its obligations contained herein, the other party may terminate this
Agreement upon five (5) days prior written notice to the other party. This
termination shall be without prejudice to the accrued rights of the other party
hereunder and without prejudice to the party's rights in connection with such
breach. Upon termination of this Agreement, the Manufacturer's rights under this
Agreement shall terminate and CS shall discontinue the Listing of the Product(s)
on the System.
14. INDEMNIFICATION. Manufacturer shall indemnify CS and
hold CS, its directors, officers, employees and agents harmless from and against
any and all claims, demands, damages, liabilities, losses and expenses
(including reasonable attorneys' fees), relating directly or indirectly to the
Products, provided however that Manufacturer shall not indemnify CS against any
claims, demands, damages, liabilities, losses or expenses arising from CS's
gross negligence or willful misconduct. This indemnification shall survive the
termination of this Agreement.
15. NOTICES. Except as otherwise specifically provided
herein, any notices, requests or other communications from one party to the
other shall be in writing and shall be given to such party at the address set
forth in the preamble of this Agreement, or such other address as such party may
from time to time specify, by hand delivery, courier service or facsimile
transmission. Such notices will be effective upon receipt by the other party.
16. AMENDMENTS AND WAIVERS. Any provision of this Agreement
may be amended or waived at any time if, and only if, such amendment or waiver
is in writing and signed by the parties hereto. No failure or delay by any party
hereto in exercising any right, power or privilege shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies provided shall be cumulative and exclusive of any rights
or remedies provided by law or by any other Agreement between the parties
hereto.
17. GOVERNING LAW AND VENUE. This Agreement is to be
governed by and construed in accordance with the laws of the State of New
Jersey. Any legal proceedings to enforce this Agreement shall be brought in the
state or federal court sitting in New Jersey, the parties hereto hereby waiving
any claim or defense that such forum is not convenient or proper. The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
18. ASSIGNMENT. CS shall have the right at any time to
assign and transfer this Agreement or its rights and obligations hereunder, and
following such assignment and transfer, references to CS hereunder shall be
deemed to be references to the assignee and/or transferee. Manufacturer reserves
the right to terminate this Agreement if this Agreement is assigned to a party
or parties that are direct competitors of the Manufacturer.
19. 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.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement this ____ day of ____________, 19__.
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("Manufacturer")
By:
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Name:
Title:
CYBERSHOP, L.L.C.
By:
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Name:
Title:
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Manufacturer's Agreement
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