Drop Ship Agreement

Please fill out the drop ship agreement below before listing Franny and Jet products in your web store.

 
Buyer Name *
Buyer Name
Phone *
Phone
Address *
Address
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This agreement (the “Agreement”) is made and entered into as of the Effective Date set forth by the company (hereinafter referred to as “Distributor") listed above and Franny and Jet (hereinafter referred to as “Manufacture”) whose address is 12835 Texana Street, San Diego, California 92129. WHEREAS, Manufacturer manufactures certain goods, including those described on its website listed above and may in the future provide additional goods and services as from time to time determined by Manufacturer (the “Products”); and WHEREAS, Manufacturer desires to contract with Distributor to market and sell such Products on its website listed above - or otherwise; NOW, THEREFORE, in consideration of the foregoing recitals and mutual covenants hereinafter set forth, and other good and valuable consideration, Manufacturer and Distributor agree as follows: 1. Marketing and Sale of Products. 1.1. Sale to Purchasers. Subject to the limitations set forth herein, Manufacturer hereby appoints Distributor as Manufacturer’s distributor to market and sell Products to third parties (such third parties to whom Products are being sold by Distributor being hereinafter referred to as the “Purchasers” or individually as a “Purchaser”). 1.2. Independent Contractor. For all purposes under this Agreement and the performance of Distributor’s services, Distributor shall be an independent contractor for the sale of the Products. Distributor shall not be deemed to be, nor shall anything contained herein be construed to make Distributor a joint venturer, partner, employee or franchisee of Manufacturer. Distributor shall have the sole right to determine the price of any Products sold to Purchasers. 1.3. Purchase and Sale of Products to Distributor. The Distributor will buy and sell the Products in Distributor’s own name and on Distributor’s own account. 1.3.1. Unless otherwise agreed to in writing between the parties, purchases of Products will be on a cash basis with one hundred percent (100%) of the purchase price paid to Manufacturer at the time of order by credit card or other agreed upon method of payment. 1.3.2. Distributor will be entitled at all times to buy from Manufacturer the Products at twenty five percent (25%) less than the Manufacturer’s best retail rate as set forth on the Manufacturer's website or otherwise. 1.3.3. Manufacturer will provide Distributor with a price list and update the list as needed to set forth the then current Product offerings and price lists for the Products identifying the retail price for the Products. The price list will also state approximate delivery times for each Product. The retail prices on the price list will be consistent with prices offered on the website or otherwise and the actual prices then in effect by Manufacturer for third-party customers. 1.4. Ordering and Delivery of Products 1.4.1. Orders for the Products by the Distributor to Manufacturer shall be made in writing by email. Orders placed by Distributor will be deemed accepted unless Manufacturer notifies Distributor in writing within three (3) business days of order that the Products are not available stating the reasons therefor. If rejected, Manufacturer will use commercially reasonable efforts to offer Distributor alternative Products available for order in lieu of the Products ordered under the rejected order. If Distributor has paid for the ordered Products in advance and an acceptable substitution is not made, Distributor will be entitled to reimbursement of the payment or credit to other purchases, at Distributor’s election. 1.4.2. Manufacturer agrees to provide Distributor the ordered Products in an accurate and timely manner to the shipping location directed by Distributor, normally within five (5) to seven (7) business days of order submittal. In the event of any delay beyond that time in delivery, Manufacturer must provide Distributor notice of the delay as soon as possible of becoming aware of the delay in delivery and Distributor may, within ten (10) days of receipt of written notice of the delay in delivery, cancel the order without liability. If Distributor has paid for the ordered Products in advance, Distributor will be entitled to reimbursement of the payment or credit to other purchases, at Distributor’s election. 1.4.3. Manufacturer will ship Products to the Distributor’s requested customer name and location by reputable carrier at reasonable shipping rates and terms. Distributor will be responsible for reimbursement or payment of the applicable shipping costs, without markup by Manufacturer as well as all excise fees or taxes for the Products. 1.5. Defects and Returns. Due to product sanitary reasons, the Manufacture will not accept returns of any kind unless there is a product defect which will be determined by the Manufacture on a case by case basis. In the event of a product defect, once they receive their product order, Purchasers have seven (7) days to report the defect to the Distributor. After seven (7) days claims for defective or incorrect orders after this period will not be granted and are completely at the expense of the Distributor. Once the product order leaves The Manufacture it becomes the property and responsibility of the shipment delivery company to ensure its safe delivery. The Manufacture will not accept damaged product returns due to fault of the shipment delivery company and therefore, damaged product orders must seek resolvement from the shipment delivery company themselves. 2. Trademark Protection. 2.1. Manufacturer to Protect. Manufacturer will take or cause to be taken at its expense during the period of this Agreement such action as it shall in its absolute discretion consider to be necessary and advisable to maintain trademark protection. Manufacturer shall have the sole and exclusive right to take at its expense such action as it may deem necessary or desirable in law or equity or otherwise to stop infringement or threatened infringement by third parties of Manufacturer's interests in the Products and the trademarks associated therewith. 2.2. Distributor’s Compliance. The Distributor will resell the Products only under the trademarks and trade styles of Manufacturer. 2.3. Notice of Infringement. The Distributor shall give prompt notice in writing to Manufacturer if it comes to Distributor’s attention that any third party claims an infringement of Manufacturer’s rights through the use of the trademarks or the trade styles under which the Products are sold and it shall be Manufacturer’s obligation to take action to protect against the infringement as Manufacturer determines appropriate under the circumstances. Distributor shall have no financial obligation to protect against any third-party infringement. 2.1. Manufacturer to Protect. Manufacturer will take or cause to be taken at its expense during the period of this Agreement such action as it shall in its absolute discretion consider to be necessary and advisable to maintain trademark protection. Manufacturer shall have the sole and exclusive right to take at its expense such action as it may deem necessary or desirable in law or equity or otherwise to stop infringement or threatened infringement by third parties of Manufacturer's interests in the Products and the trademarks associated therewith. 2.2. Distributor’s Compliance. The Distributor will resell the Products only under the trademarks and trade styles of Manufacturer. 3. Additional Distributor Obligations. 3.1. Activities. The Distributor will use all commercially reasonable efforts to sell Products. Distributor may market, promote and advertise Products to Purchasers with the expenses to be paid by Distributor unless otherwise agreed in writing. 3.2. Fair Dealing. In connection with Distributor’s sale of the Products, Distributor will adhere to the reasonably highest standards of honesty, integrity, fair dealing and ethical conduct in all dealings with Purchasers and the general public with respect to the Products. Distributor shall refrain from any business or advertising practice which is knowingly injurious to the business or reputation of Distributor or Manufacturer. 3.3. Notice of Complaints. Distributor shall promptly report to Manufacturer any material complaints received from Purchasers related to Products or otherwise arising under this Agreement. 3.4. Compliance with Applicable Laws. Distributor represents and warrants to Manufacturer that Distributor will comply with all applicable laws, rules and regulations in connection with Distributor’s activities under this Agreement and the sale of any Products. The Distributor shall be solely responsible for the compliance of all advertising and promotional material. 3.5. No Restriction on Business Activities. The parties acknowledge that this Agreement does not restrict the ability of Distributor to engage in Distributor’s existing or prospective business activities with respect to any current and future customers in addition to the distribution activities set forth herein as to the Products. 3.6. No Additional Warranties. Except with Manufacturer’s prior written consent, Distributor shall make no representations or warranties to Purchasers or other third parties, either express or implied, with respect to Products or otherwise. 4. Additional Manufacturer Obligations. 4.1. Activities. Manufacturer will use commercially reasonable efforts to timely fulfill and perform Manufacturer’s duties and responsibilities to the Distributor. Manufacturer will promptly respond to all requests of Distributor for approvals of orders, quotes, Products specifications, information requests and other information concerning Manufacturer or its Products. 4.2. Fair Dealing. In the conduct of its business and any representations as to the Manufacturer or its Products, Manufacturer will adhere to the reasonably highest standards of honesty, integrity, fair dealing and ethical conduct in all of its dealings with Distributor, Purchasers, and the general public. Manufacturer shall refrain from any business or advertising practice which is knowingly injurious to the business or reputation of Distributor or Manufacturer. 4.3. Notice of Complaints. Manufacturer shall promptly report to Distributor any material complaints received from Purchasers related to Products or otherwise arising under this Agreement and will use reasonable efforts to promptly correct any deficiencies in performance applicable to the complaints. 4.4. Compliance with Applicable Laws. Manufacturer represents and warrants to Distributor that it will comply with all applicable laws, rules and regulations in connection with its activities under this Agreement and the sale and delivery of any Products. 4.5. Exclusivity. Distributor’s rights to market and sell the Products of Manufacturer are not exclusive and Manufacturer shall have the right to market and sell the Products contemporaneously with Distributor. 4.6. Reasonable Assistance. Manufacturer will reasonably assist Distributor in the marketing and sale of Products including providing Distributor with marketing tools such as pictures, signs, logos, and other designs and marks as well as the right to use any such materials for catalogs and any print or websites in connection with the promotion of the Products. 5. Term and Termination. 5.1. Term. The initial term of this Agreement shall end six (6) months after the Effective Date (the “Initial Term”). Thereafter, this Agreement shall be automatically renewed for successive one (1) year periods (each a “Renewal Term”) unless and until either party gives written notice of its intention not to renew (i) at least ninety (90) days prior to the expiration of the Initial Term or then existing Renewal Term (collectively the Initial Term and any Renewal Terms are referred to hereafter as the “Term”). 5.2. Termination by Manufacturer. This Agreement may be terminated immediately by Manufacturer upon the occurrence of any of the following events: 5.2.1. The breach by Distributor of Distributor’s obligations in this Agreement and failure to correct such breach within thirty (30) days after the date on which Manufacturer gives written notice of such breach stating in reasonable detail the reasons for the breach; or 5.2.2. The filing by Distributor of a petition in bankruptcy or insolvency; the filing of any petition or answer seeking reorganization, readjustment, or arrangement of the business or indebtedness of Distributor under any law relating to bankruptcy or insolvency. 5.3. Termination by Distributor. This agreement may be terminated by Distributor upon the occurrence of the following events: 5.3.1. The breach by Manufacturer of any of its obligations in this Agreement and failure to correct such breach within thirty (30) days after the date on which Distributor gives written notice of such breach stating in reasonable detail the reasons for the breach; or 5.3.2. The filing by Manufacturer of a petition in bankruptcy or insolvency; the filing of any petition or answer seeking reorganization, readjustment, or arrangement of the business or indebtedness of Manufacturer under any law relating to bankruptcy or insolvency. 5.4. Post Termination Activities as to Products. Upon termination of this Agreement, the Distributor will cease selling the Products and will also refrain from using any identical or confusingly similar trademark or brand name, any identical or confusingly similar trade styles and any material otherwise connected with the Products. 6. Limitations of Liability. 6.1. Personal Injury or Death or Property Damage. Each party shall indemnify and hold the other party harmless from and against, all claims, liability, loss, expense (including costs and attorney fees) and damages resulting from any injury or death to persons or damage to property, whether or not covered by insurance, arising from any act or omission of the indemnifying party or any of his or its employees, servants and representatives. 6.2. Limitation Of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF GOODWILL OR LOSS OF PROFITS, ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF SUCH PARTY’S OBLIGATIONS HEREUNDER. 7. Confidentiality. 7.1. During and after the term of this Agreement, each party (the “Recipient”) will keep in strictest confidence all information identified by the other party (the “Disclosing Party”) as confidential or proprietary, and all other information that, by its nature, is confidential. Such information specifically includes, without limitation, information regarding Disclosing Party’s facilities, technical capabilities and operations, business plans and strategies, product marketing, costs, customer relations, training-related literature and materials and all information relating to Purchasers or prospects such as, without limitation, customer lists, contact information, proposals, notes, correspondence, technical requirements and designs. Except as specifically authorized by the Disclosing Party in advance in writing, in furtherance of this Agreement, or as otherwise required by law, the Recipient will not, at any time, use, publish, communicate, or otherwise disclose to any third party any such information. In the event Recipient is required by law to make a disclosure, the Recipient shall promptly notify the Disclosing Party and give the Disclosing Party an adequate opportunity to raise an objection or take other action to assure confidential handling of such information. In all cases, the Recipient shall treat all confidential information of the Disclosing Party with at least the same degree of care as it treats its own confidential information, which shall be at least a reasonable degree of care. Both parties expressly agree that monetary damages may not be sufficient compensation for a violation of this section, and that the Disclosing Party shall be entitled to injunctive relief from any court of competent jurisdiction for any such violation, in addition to, and not in any way limiting, any other rights that party may have against the Recipient at law or in equity 8. Miscellaneous Provisions. 8.1. Severability. Should any part or portion of this Agreement be held to be invalid, the balance of the provisions shall remain unaffected and shall be enforceable if possible to give effect to the original intent thereof. 8.2. Further Assurances. The parties agree to take such further or additional action and execute and deliver to the other party such further and additional instruments, agreements or other documents as shall be reasonably requested by the other party in order to complete, assure or evidence the transactions and agreements contemplated hereby. 8.3. Governing Law. This Agreement, its formation, construction and interpretation shall be governed by the laws of the State of California. 8.4. Controversy. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration hearing shall take place in New Jersey, before a single arbitrator. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. 8.5. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and may not be modified or amended except by instrument in writing signed by both parties. This Agreement supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to the subject matter hereof, including, but not limited to, the prior arrangements between the parties for the provision of Products or other services to the Purchasers. 8.6. Assignment. Distributor may assign the rights and obligations under this Agreement to an entity under the control of Distributor upon written notice to Manufacturer. Otherwise, neither party may assign, pledge, mortgage or otherwise encumber, or in any manner sell or transfer, any of its rights or obligations under this Agreement without the prior written consent of the other party. This Agreement shall inure to the benefit of and be binding on the heirs, successors and permitted assigns of each of the parties. 8.7. Force Majeure. If the performance of this Agreement or of any obligation hereunder is interfered with by reason of any circumstances beyond the reasonable control of the party affected, including, without limitation, fire, explosion, power failure, acts of God, war, revolution, civil commotion, acts of public enemies, any law, order, regulation, ordinance or requirement of any government or legal body or any representative of any such government or legal body or labor unrest, including, without limitation, strikes, slowdowns, picketing or boycotts, then the party affected shall be excused from such performance on a day-to-day basis to the extent of such interference and the other party shall likewise be excused from performance of its obligations on a day-to-day basis to the extent such party’s obligations relate to the performance so interfered with, provided that the party so affected shall use reasonable efforts to remove such causes of nonperformance. If such removal is not obtained within ninety (90) days, the other party may terminate this Agreement without penalty. 8.8. Notices. Any notice or communication required or permitted to be given hereunder shall be sufficiently given when delivered to the other party and must be (i) delivered by hand delivery, (ii) mailed by certified mail, postage prepaid, return receipt requested, or (iii) sent by overnight delivery service, to the address indicated on the initial page of this Agreement, or at such other addresses as may hereafter be furnished in writing by either party to the other party and such notice shall be deemed to have been given as of the date so delivered, mailed or sent. 8.9. Waiver. The failure by either party at any time or times to require performance by the other party of any provision of this Agreement shall in no manner affect the right of the other party to enforce the same. The waiver by either party of a breach of any provision hereof shall never be construed to be a waiver of any succeeding breach of such provisions or a waiver of the provision itself. 8.10. Survival. The terms and provisions contained in this Agreement that by their sense and context are intended to survive the performance thereof by the parties shall survive the completion of performance and termination of this Agreement, including, without limitation, provisions for indemnification, confidentiality and the making of any and all payments due hereunder. 8.11. Attorney’s Fees. The prevailing party in any legal proceeding against the other party to this Agreement brought under or with relation to the Agreement or a breach thereof shall, in addition to its damages, be entitled to recover its court costs and reasonable attorney’s fees.
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