Contemplating a Vendor and Retailer Relationship concerning Fine Jewelry
AGREEMENT made to be effective as of [INSERT DATE] , by and between [INSERT VENDOR NAME], a [INSERT STATE OF INCORPORATION] corporation located at [INSERT ADDRESS OF VENDOR]("Vendor") and [INSERT RETAILER NAME] a [INSERT STATE OF INCORPORATION] corporation with offices [INSERT ADDRESS OF RETAILER]("Retailer").
W I T N E S S E T H :
WHEREAS, Retailer utilizes finished fine jewelry including rings, pins, necklaces, bracelets, earrings, pendants, etc. in the conduct of its business (“Consigned Merchandise”); and
WHEREAS, Vendor is willing to deliver the Consigned Merchandise to Retailer on consignment for sale by Retailer on terms and conditions set forth herein:
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the parties agree as follows:
1. Consigned Merchandise
All styles of Consigned Merchandise to be consigned to Retailer hereunder shall be jointly selected by the Vendor and Retailer. Retailer shall tag and identify Consigned Merchandise with a separate Retailer SKU number exclusively assigned to Consigned Merchandise delivered pursuant to the terms of this Agreement. The parties agree that the maximum amount of Consigned Merchandise to be consigned hereunder is One Million ($1,000,000) Dollars.
2. Sales Efforts by Retailer
Retailer shall use its best efforts to sell the Consigned Merchandise and for this purpose it agrees to keep the Consigned Merchandise properly and prominently displayed in its stores until the “Termination Date” (as hereinafter defined).
3.1 The date and place of delivery of the Consigned Merchandise ordered shall be on terms specified by Vendor in its confirmation of the initial order and of each subsequent replacement order.
3.2 Retailer shall promptly inspect all Consigned Merchandise upon receipt by Retailer and shall return to Vendor any defective Consigned Merchandise within seven (7) days of its receipt by Retailer. Retailer’s failure to inspect the Consigned Merchandise or return any defective Consigned Merchandise within said period shall be deemed a waiver of any right of Retailer with respect to rejection for non-conformity of the Consigned Merchandise and defects in workmanship.
The price for each item of the Consigned Merchandise consigned under this Agreement shall be the Vendor’s quoted price which shall be applicable during the calendar year.
5. Sales Reports and Invoices
Not later than thirty (30) days after the end of each month, Retailer shall submit to Vendor a report detailing all sales of Consigned Merchandise in the immediately preceding month. On the basis of the report received, Vendor shall issue an invoice relating to the sales of consigned Merchandise made in the course of the month, which shall be due and payable no later than sixty (60) days after the end of the month in which the sales were made. Vendor reserves the right, upon seven (7) days prior written notice to Retailer, to examine such records of Retailer which deal solely with the sale of the Consigned Merchandise for verification of the monthly reports. Retailer agrees to keep separate books and records regarding the Consigned Merchandise and its sale thereof. The examination shall be at the expense of Vendor, and shall take place during normal business hours.
6. Representations of Retailer
6.1 Retailer hereby represents and warrants to Vendor that the execution, delivery and performance by Retailer of the terms and provisions of this Agreement have been authorized by all requisite corporate action and will not violate any provision of law, any order of any court or other agency of government, the corporate charter or by-laws of Retailer or any indenture, agreement or other instrument to which it is a party, or by which it is bound, or be in conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any property or assets of Retailer, including without limitation, the Consigned Merchandise, pursuant to any such indenture, agreement or other instrument.
6.2 Retailer hereby represents and warrants to Vendor that attached hereto as Schedule A is a true and complete list of all of Retailer’s stores and business locations regardless of the name under which Retailer is conducting business at such store or location. Retailer agrees to promptly notify Vendor of any new retail stores and business locations so that Vendor may file appropriate documentation under Article 13 hereof.
7. Representations of Vendor
Vendor hereby represents to Retailer that Vendor either has good title to the Consigned Merchandise or has full power and authority to deliver the Consigned Merchandise to Retailer.
8. Return and Reconciliation
Following the date of termination of this Agreement, Retailer may return to Vendor all unsold Consigned Merchandise or Retailer shall purchase all or some of the Consigned Merchandise at its option in accordance with the terms of this Agreement. The Consigned Merchandise shall be returned in the original condition in which it was delivered to Retailer pursuant to this Agreement. Final reconciliation shall be done, upon receipt by Vendor of the actual quantity of Consigned Merchandise returned.
9.1 Title to the Consigned Merchandise shall at all times remain in Vendor until fully paid for by Retailer. Upon receipt by Retailer of the Consigned Merchandise, Retailer shall bear the entire risk of loss, theft, damage or destruction from any cause whatsoever, Retailer agrees to hold the Consigned Merchandise and proceeds thereof in trust for Vendor and to indemnify and hold Vendor harmless from and against any and all liabilities, damages, losses, costs, expenses, suits, claims, demands or judgments of any nature (including, without limitation, attorney’s fees and expenses) arising from or connected with any loss, theft, damage or destruction of the Consigned Merchandise.
9.2 Retailer shall immediately inform Vendor in writing of any loss, theft, damage or destruction of any of the Consigned Merchandise. Should any of the Consigned Merchandise be lost because of an event of loss, theft, damage or destruction, Vendor shall include the purchase price of such Consigned Merchandise in its monthly invoice issued to Retailer pursuant to Section 5 above and Retailer shall pay the same according to said terms.
Retailer shall promptly pay any and all sales, use or other taxes, duties or assessments imposed by any governmental authority in a particular jurisdiction with respect to the possession, consignment or delivery of the Consigned Merchandise hereunder.
Retailer shall not use, modify, commingle or otherwise deal with the Consigned Merchandise or any part thereof except in the ordinary course of its business as now being conducted, and, unless such Consigned Merchandise is being returned to Vendor, in no event shall any of the Consigned Merchandise be removed from Retailer=s place of business or that of its designated stores prior to the payment of the purchase price for such Consigned Merchandise by the Retailer’s customer.
Following the delivery of Consigned Merchandise, Retailer shall insure the Consigned Merchandise for its full value for and against all risks of loss. Retailer shall be responsible to and shall reimburse the Vendor for all loss and expense to Vendor resulting from damage to or the theft or destruction of the Consigned Merchandise from any cause whatsoever, whether or not insured, from the time received by it until returned to Vendor. Retailer shall deliver to Vendor a certificate of insurance relating to the Consigned Merchandise naming Vendor a "loss Payee" thereunder. Retailer warrants that it will promptly pursue all remedies and payments in the event of a loss and will immediately notify Consignor of any loss.
13. Security Interest
Vendor shall have and retain a security interest in all Consigned Merchandise delivered hereunder and the proceeds thereof and all additions, substitutions, products and accessions thereto and thereof, which security interest shall continue until the Consigned Merchandise is returned to Vendor pursuant to Article 8 hereto, or the full purchase price for all of the Consigned Merchandise delivered hereunder and not returned to Vendor is paid to Vendor. The parties agree that this Agreement creates a true consignment and that all deliveries of Consigned Merchandise hereunder shall constitute true consignments of the Consigned Merchandise and not the purchase and sale of Merchandise by Retailer. Retailer agrees that Vendor may execute, file and/or record any notice, financing statement, continuation statement, instrument or document that Vendor may consider reasonably necessary or desirable to create, preserve, continue, effect or validate the security interest granted hereunder, including, without limitation, the giving of any document to Vendor=s creditors. Retailer expressly authorizes Vendor to file one or more financing statements, continuation statements or other documents under the Uniform Commercial Code ("UCC") of any state or the Federal Bankruptcy Code, with or without Retailer=s signature, naming Retailer as debtor and Vendor (or its assignee) as secured party. Retailer agrees not to grant a security interest in or file a financing statement with respect to or in any way covering the Consigned Merchandise which names a party other than Vendor as secured party without Vendor’s prior written consent
14. Events of Default
The following shall be considered Events of Default:
14.1 Retailer’s failure to submit to Vendor a report detailing all sales of Consigned Merchandise within the time frame set forth in Paragraph 5 hereinabove.
14.2 Retailer’s failure to adhere to the terms herein, including but not limited to, failure to make prompt payment of all amounts owed pursuant to this Agreement, and honor all warranties and covenants. This includes without limitation, the obligations of Retailer to make payments in strict accordance with the time limits set forth in Paragraph 5 hereinabove.
14.3 A material adverse change in Retailer’s financial condition which Vendor, in its sole discretion, deems material using sound business judgment.
14.4 Liquidation, an assignment for the benefit of creditors, dissolution or the discontinuance of the operation of the business of Retailer for any reason.
14.5 Failure of Retailer to remove by payment or bond any lien or attachment against the Consigned Merchandise within thirty (30) days.
14.6 The occurrence of any substantial loss, theft or destruction or damage to Vendor=s Consigned Merchandise delivered hereunder which is not fully covered by insurance.
14.7 The sale, assignment, or other transfer of greater than fifty (50%) percent in the aggregate, of the share ownership of the Retailer or the sale or any other transfer of twenty (25%) percent or more in the aggregate of the assets of Retailer during the term of this Agreement.
15. Default Remedies
15.1 Upon default by Retailer, Vendor may declare all liabilities, indebtedness and obligations of Retailer to Vendor arising under this Agreement immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, anything contained herein to the contrary notwithstanding.
15.2 Upon default, Retailer shall within fifteen (15) days return to Vendor, at Retailer’s expense, all Consigned Merchandise delivered hereunder in a form acceptable to Vendor, or make payment for such Consigned Merchandise to Vendor. In the event of Retailer’s failure to make immediate return or payment, Vendor may proceed to enforce payment and exercise all rights and remedies it may have against Retailer as provided by the UCC as well as any other rights and remedies to which Vendor may be entitled in law or equity, all of which may be exercised singularly or concurrently. Retailer agrees to pay all fees and expenses, including reasonable attorney’s fees, incurred by Vendor in enforcing its rights, powers and remedies under this Agreement.
16. Outstanding Balance Retailer agrees that as of the date of this Agreement the outstanding balance of Consigned Merchandise delivered by Vendor to Retailer and not sold by Retailer is $ as (if left blank then zero) set forth in Schedule B attached hereto. Such Consigned Merchandise is now subject to all of the terms and conditions of this Agreement.
17. Term and Termination
17.1 This Agreement shall commence as of the date first written above and unless sooner terminated pursuant to this Article 17, shall continue thereafte until such time as Retailer has complied with Article 17.3 below or if extended by the parties in writing for an additional period as extended. Notwithstanding anything to the contrary in this Article 17 Vendor may terminate this Agreement at any time, upon forty five (45) days prior written notice to Retailer. The termination of this Agreement as provided for in this Article 17 is referred to as the Termination Date.
17.2 Upon the occurrence of any Event of Default pursuant to Article 14 herein, Vendor may immediately terminate this Agreement by sending Retailer written notice of termination.
17.3 Within thirty (30) days from the Termination Date Retailer shall either (i) return all or any portion of the Consigned Merchandise which remain unsold, (ii) for any Consigned Merchandise not returned, pay Vendor pursuant to Article 4 herein, or (iii) obtain the written consent of Vendor to continue to hold the Consigned Merchandise. All Consigned Merchandise returned to Vendor must not be defective and must be in saleable condition.
No modification, amendment, supplement, or waiver to this Agreement shall be binding unless in writing and signed by both parties.
19.1 All notices or other communications pursuant to this Agreement shall be in writing and shall be deemed valid and sufficient if delivered by personal service or overnight courier or if dispatched by certified mail, email, postage prepaid, in any post office, addressed as follows:
If to Vendor: [insert address & email]
If to Retailer: [insert address & email]
19.2 A party hereto may change its address by notice to the other in the manner set forth above. Notices and other communications rendered as herein provided shall be in writing and be deemed to have been given on the day on which personally served or if sent by overnight express mail service or by certified or registered mail, return receipt requested, postage prepaid on the fifth (5th) day after being posted, or the date of actual receipt, whichever date is earlier.
The waiver, express or implied, by any party of any right hereunder shall not constitute a waiver of any other right.
21. Assignment and Transferability
Retailer may not assign its rights or delegate its obligations hereunder without the prior consent of Vendor, and any such assignment or delegation, in the absence of such consent, shall be void and without effect. Vendor may assign this Agreement to any third party providing that such third party agrees to be bound by the terms and condition of this Agreement to the same extent as Vendor.
If any provision of this Agreement shall be finally determined by competent authority to be invalid or unenforceable in any jurisdiction such invalidity or unenforceability shall attach only to such provision and jurisdiction. Such provision shall be deemed severed to the extent of such invalidity or unenforceability and shall not affect or render invalid or unenforceable any other provision of this Agreement. Subject to such severance, this Agreement shall continue in force and effect in accordance with its other terms and conditions.
23. Entire Agreement
This Agreement supersedes all prior communications and understandings between the parties hereto with respect to the subject matter hereof and constitutes their sole and entire agreement with respect to the subject matter hereof.
24. Further Action
Retailer, agrees that, from time to time, it will execute and deliver any and all additional and supplemental agreements, documents, and instruments and do such other acts as required by Vendor in Vendor’s judgment, to be necessary or desirable to carry out the intents and purposes of this Agreement and the consummation of the transactions contemplated thereby.
The headings herein are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.
26. Jurisdiction and Governing Law
26.1 This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
26.2 Retailer hereby submits to the jurisdiction of the courts of the State of New York and the United States District Court for the Southern District of New York, as well as to the jurisdiction of all courts from which an appeal may be taken from the aforesaid courts, for the purpose of any suit, action or other proceeding arising out of this Agreement, and expressly waives any and all objections it may have as to venue in any of such courts.
IN WITNESS WHEREOF, Vendor and Retailer have caused this Agreement to be executed by their duly authorized officers to be effective as of the day and year first above mentioned.