{"id":42875,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/supply-agreement-barnes-amp-amp-noble-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"supply-agreement-barnes-amp-amp-noble-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/supply-agreement-barnes-amp-amp-noble-inc-and.html","title":{"rendered":"Supply Agreement – Barnes & Noble Inc. and barnesandnoble.com llc"},"content":{"rendered":"
\n                                SUPPLY AGREEMENT\n\n                  SUPPLY AGREEMENT, dated as of October 31, 1998, between Barnes\n& Noble, Inc., Delaware corporation having an office located at 122 Fifth\nAvenue, New York, New York 10011 ('B&N'), and barnesandnoble.com llc, a Delaware\nlimited liability company having an office located at 76 Ninth Avenue, 11th\nFloor, New York, New York 10011 (the 'LLC'). Capitalized terms used herein\nwithout definition shall have the meanings assigned to such terms in the Amended\nand Restated Limited Liability Company Agreement effective as of October 31,\n1998 of the LLC, as the same may be amended or modified from time to time (the\n'LLC Agreement').\n\n                  WHEREAS, to enable the LLC to obtain the benefits of any\npurchasing discounts available to B&N, the parties desire that B&N shall from\ntime to time order Products (as defined below) on behalf of the LLC, on the\nterms and conditions set forth herein.\n\n                  NOW, THEREFORE, in consideration of the mutual promises and\nagreements herein contained and for other good and valuable consideration, the\nreceipt and sufficiency of which is hereby acknowledged, the parties hereto\nhereby agree as follows:\n\n                  1. Orders. (a) During the term of this Agreement, the LLC may\nfrom time to time, in its sole discretion, place orders for Products with B&N\n(each an 'Order'). 'Products' shall mean books, magazines and other products\ngenerally sold by B&N in its retail stores. Nothing in this Agreement is\nintended to limit the LLC from placing orders for Products with any other\nentity.\n\n                     (b) Once an Order is placed by the LLC, B&N shall use its \ncommercially reasonable efforts to fill such Order as promptly as practical in\naccordance with the terms of such Order. Products ordered hereunder by the LLC\nshall be delivered to the LLC's warehouse at 308A Herrod Blvd., Dayton, New\nJersey 08810, unless otherwise mutually agreed upon by the parties hereto. B&N\nshall give Orders placed by the LLC equal priority with Orders placed by any\nother entity, including, without limitation, B&N. B&N shall not be responsible\nfor any delays by third-party suppliers in the filling of any Order.\n\n                  2. Price. For all Products ordered by the LLC under this\nAgreement, B&N shall charge the LLC B&N's cost for such Products plus\nIncremental Overhead (as defined below). Payment for Orders shall be due 30 days\nfrom the date of such Order, provided that B&N shall refund any payments made\nfor Orders which B&N is unable to fill within 30 days of such determination by\nB&N. 'Incremental Overhead' shall mean the cost incurred by B&N and its\nAffiliates to third parties, including, without limitation, costs for shipping\nand handling, and any direct labor costs incurred by B&N and its Affiliates in\nexcess of the cost that would have been incurred in the absence of the\nperformance by B&N and its Affiliates of B&N's obligations \n\n\nhereunder.\n\n                  3. No Agency. The parties hereto are independent contractors\nand nothing in this Agreement is intended to, nor shall it, create any agency,\npartnership or joint venture relationship between them. With respect to any\nthird party, no party hereto, or any of its officers, directors, employees or\nagents, shall have the right or authority to bind or otherwise obligate the\nother party hereto in any way as a consequence of this Agreement.\n\n                  4. Termination. This Agreement shall terminate on the date\nthat either B&N and its Affiliates or BAG and its Affiliates cease to own a\nMembership Interest of at least 10% of the outstanding Membership Interests, but\nmay be terminated earlier as follows:\n\n                     (a) the LLC may, in accordance with the provisions of \nSection 4.7(a) of the LLC Agreement, terminate this Agreement on thirty (30)\ndays' prior written notice to B&N.\n\n                     (b) B&N may terminate this Agreement:\n\n                     (i)   within the sixty (60) day period following the\n                  one hundred and eightieth day (180) after a transfer pursuant\n                  to Section 7.3 of the LLC Agreement;\n\n                     (ii)  the LLC is in default of the terms of this\n                  Agreement and such default continues for more than thirty (30)\n                  days after written notice thereof to the LLC and BAG (as such\n                  term is defined in the LLC Agreement), provided that such\n                  default is not principally as a result of the action or\n                  inaction of the BN Managers;\n\n                     (iii) in the event that B&N or the LLC shall (A)\n                  apply for or consent to the appointment of, or the taking\n                  possession by, a receiver, custodian, trustee, examiner,\n                  liquidator or the like of itself or of all or any substantial\n                  part of its property, (B) make a general assignment for the\n                  benefit of its creditors, (C) commence a voluntary case under\n                  the Federal Bankruptcy Code of 1978, as amended, or (D) file a\n                  petition as a debtor seeking to take advantage of any other\n                  law relating to bankruptcy, insolvency, reorganization,\n                  liquidation, dissolution, arrangement or winding-up, or \n                  composition or readjustment of its debts; or\n\n                     (iv)  if a proceeding or case shall be commenced\n                  against any of B&N or the LLC, without such party's\n                  application or consent, seeking (A) its reorganization,\n                  liquidation, dissolution, arrangement or winding-up, or the\n                  composition or readjustment of its debts, (B) the appointment\n                  of a receiver, custodian, trustee, examiner or liquidator or\n                  the like of such party or of all or any substantial part of\n                  its property, or (C) similar relief in respect of such party\n                  under any law relating to bankruptcy, insolvency,\n                  reorganization, liquidation, \n\n                                      -2-\n\n                  dissolution, arrangement or winding-up, or composition or \n                  adjustment of debts, and such proceeding or case shall \n                  continue undismissed, or an order, judgment or decree \n                  approving or ordering any of the foregoing shall be entered \n                  and continue unstayed and in effect, for a period of 60 or \n                  more days.\n\n                  5. Miscellaneous. (a) This Agreement shall be governed by the\ninternal laws of the State of New York without giving effect to the conflict of\nlaw principles thereof.\n\n                     (b) Neither party shall be liable to fulfill its \nobligations hereunder, or for delays in performance, due to causes beyond its\nreasonable control, including, but not limited to, acts of God, acts or\nomissions of civil or military authority, fires, strikes, floods, epidemics,\nriots or acts of war.\n\n                     (c) This Agreement sets forth the entire agreement\nbetween the parties hereto with respect to the subject matter hereof and is\nintended to supersede all prior negotiations, understandings and agreements. No\nprovision of this Agreement may be waived or amended, except by a writing signed\nby the parties hereto.\n\n                     (d) This Agreement may be executed in one or more \ncounterparts, each of which shall be deemed an original and together which shall\nconstitute one and the same instrument.\n\n                     (e) The failure of either party to exercise any right or \nremedy provided for herein shall not be deemed a waiver of any right or remedy\nhereunder.\n\n                     (f) If any provision of this Agreement is determined by a \ncourt of competent jurisdiction to be invalid or otherwise unenforceable, such\ndetermination shall not affect the validity or enforceability of any remaining\nprovisions of this Agreement. If any provision of this Agreement is invalid\nunder any applicable statute or rule of law, it shall be enforced to the maximum\nextent possible so as to effect the intent of the parties, and the remainder of\nthis Agreement shall continue in full force and effect.\n\n                     (g) Any and all notices or other communications hereunder \nshall be sufficiently given if in writing and sent by hand, telecopier,\nreputable overnight courier or by certified mail, return receipt requested,\npostage prepaid, addressed to the party to receive the same at its address as\nset forth on page 1 hereof, or to such other address as the party to receive the\nsame shall have specified by written notice given in the manner provided for in\nthis Section 5(g). Such notices or other communications shall be deemed to have\nbeen given on the date of such delivery. Either party may change its address for\nthe purpose of this Agreement by notice to the other party given as aforesaid.\n\n                     (h) This Agreement shall be binding upon and inure to the \nbenefit of each of the parties hereto and their respective successors and\nassigns, provided that the LLC may\n\n                                      -3-\n\nnot assign any of its rights hereunder without the prior written consent of B&N.\n\n                     (i) The section headings used herein are for the \nconvenience of the parties only, are not substantive and shall not be used to \ninterpret or construe any of the provisions contained herein.\n\n                  IN WITNESS WHEREOF, the parties hereto have executed this \nAgreement on the date first set forth above.\n\n                                           BARNES & NOBLE, INC.\n\n                                           By:\n                                              ---------------------------------\n                                              Name:\n                                              Title:\n\n                                           barnesandnoble.com llc\n\n\nBy: barnesandnoble.com inc., its\n    managing member\n\n By:___________________________\n    Name:\n    Title:\n\n\n                                      -4-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6857],"corporate_contracts_industries":[9492],"corporate_contracts_types":[9613,9619],"class_list":["post-42875","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-barnes---noble-inc","corporate_contracts_industries-retail__books","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42875","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42875"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42875"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42875"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42875"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}