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 500 Bodwell St.
Ext., Avon, MA 02322 (“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:
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.
The
following document spells out the terms of an agreement
between
Atsco Footwear LLC and
Skin Inc.
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a.
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It
is agreed that the length of this agreement shall be for one (1)
year, beginning November 15th, 2007 through November 15
th ,
2008 (the “Term”).
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b.
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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 15
th ,
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.
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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.
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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.
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e.
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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.
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3.
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Commission and Fees. The
following Commissions and Fees will apply:
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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.
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a.
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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.
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b.
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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.
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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.
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Commission
will be invoiced separately at time of all shipments to Skins
Footwear LLC.
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a.
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All
invoices billed by Atsco Footwear LLC, to Skins Inc. will be paid
Net 30 days.
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Agent
hereby agrees with Buyer to perform the following services for
Buyer:
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a.
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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.
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To
keep apprised of shipping conditions and availability of production
to meet Buyer’s needs as hereinabove described;
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c.
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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;
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d.
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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.
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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.
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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.
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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.
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To
obtain invoices, receipts and other suitable evidence from the
export suppliers and/or manufacturers of merchandise ordered by
Buyer and to verify
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