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Designer Trade Program Agreement

RECITALS

Abbyson is a premier designer and manufacturer of transitional home furnishings. Designer is an independent partner that desires to purchase products from the Abbyson Designer online portal (the "Abbyson Portal") and to resell such products to clients in approved methods identified below, on the terms and conditions set forth in this Agreement.

NOW THEREFORE, in consideration of the promises, covenants, warranties, conditions contained herein and for other good and valuable consideration the receipt of which is hereby acknowledged, the Parties agree as follows:

  1. Appointment of Designer as Authorized Reseller.

    1. Abbyson hereby appoints Designer, and Designer accepts such appointment, as an authorized, independent, non-exclusive, reseller of products purchased from the Abbyson Portal, all in accordance with the terms and conditions set forth in this Agreement. Designer covenants that it shall represent the Abbyson name, brand, products and image with the highest degree of professionalism, product knowledge and integrity.
    2. Designer may from time-to-time submit an order for products from the Abbyson Portal. After receiving an order through the Abbyson Portal, Abbyson may, in its sole discretion, accept or reject any such order. No order shall be binding on Abbyson unless and until it is accepted by Abbyson.
  2. Resale of Products.

    1. To accomplish the efficient and proper distribution of its products, consistent with its company and/or brand image, Abbyson reserves the right to limit the products that may be offered to Designer for resale through the Abbyson Portal. The designs, specifications, finishes and materials used on Abbyson products may change from time to time, and the actual color of products delivered to Designer may vary from the photographic image. Abbyson further reserves the right to discontinue the manufacturing or sale of any product or item and to modify or change fabric content, labels, graphics, color variations, and/or construction of the products ordered by Designer without notice.
    2. In order not to be assessed sales tax, Designer shall submit to Abbyson documents to qualify as a reseller (i.e.: business licenses, reseller certificates and permits, tax ID). Designer shall collect and remit to the appropriate taxing authorities all sales and use taxes that are payable by Designer in connection with Designer resale of Abbyson products purchased hereunder.
    3. Designer may sell products only directly to its clients, and Designer is prohibited from reselling any items over the internet that were purchased on the Abbyson Portal. In order to allow Abbyson to accomplish the efficient and proper distribution of its products, consistent with its company and/or brand image and Minimum Advertised Pricing ("MAP") policy, which Designer acknowledges is extremely important to Abbyson. Designer may resell Abbyson products to its clients at any desired price they choose, including a price below, at, or above MAP as long as products are not sold over the internet and Designer does not disclose a price below MAP online. It is Abbyson's general policy to cease doing business with any reseller that advertises products below the prices set forth in the MAP policy.
    4. Designer is prohibited from any type of internet sales or advertising that includes suggested product price. Internet advertisement includes any form of communication or suggestion anywhere on or through a “personal” website or Internet about prices regarding Abbyson products. Any unsolicited offers on the website that include a suggested price for an Abbyson product are strictly prohibited. Each Designer may advertise and run promotions of any Abbyson products to clients at any desired price they choose, including a price below, at, or above as long as products are kept offline.
    5. Designer understands that the restrictions set forth in Sections 2(c) and 2(d) are vital for the maintenance of Abbyson's brand and distribution structure and that Abbyson has expended a large amount of effort and resources in building its brand and distribution structure. Therefore, in addition to its other rights and remedies available to Abbyson, Designer agrees that if it is reasonably found to be in breach of Sections 2(c) or 2(d), Designer shall pay to Abbyson $50,000.00 (USD) per breach as liquidated damages, which amount Designer acknowledges is not meant or intended as a penalty but as a reasonable estimate of the damages as of the date of this Agreement, which Designer recognizes are otherwise difficult to calculate and which are fair and reasonable under the circumstances existing as of the date of this Agreement.
    6. Designer shall, in good faith and at its own expense:
      1. market, advertise, promote and resell Abbyson products to its customers consistent with good business practice and in accordance with this Agreement, in each case using its best efforts to maximize the sales volumes of Abbyson products;
      2. have, and ensure its employees have, sufficient knowledge of the products purchased from Abbyson, the industry and products competitive with each such product (including specifications, features and benefits) so as to be able to explain in detail to its customers the benefits of the Abbyson products as compared to competing products;
      3. market, advertise, promote and resell the products and conduct business in a manner that reflects favorably at all times on Abbyson products and the good name, goodwill and reputation of Abbyson;
      4. promptly notify Abbyson of any complaint or adverse claim about any product or its use of which Designer becomes aware;
      5. comply at all times with applicable laws and regulations; and
      6. obtain and maintain all certifications, credentials, authorizations, licenses and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement.
  3. Shipping; Pick-Up.

    1. All in-stock products will generally ship within 2-4 business days. Designer shall be solely responsible for all shipping charges (including shipping fees associated with returns, refusals, and address changes or errors) and all insurance costs. All products will be shipped to the shipping address set forth in Designer's order on the Abbyson Portal. Shipments are F.O.B. Abbyson’s distribution facility, currently in Moorpark, California, USA. All risk of loss to the products shall be transferred to and borne by Designer once the products are transferred to the common carrier.
    2. If Designer has indicated that it will pick up the order, the pick-up location will be 5155 Goldman Avenue, Moorpark, California 93021, unless otherwise indicated by Abbyson. Abbyson will notify Designer of available pick-up date. All risk of loss to the products shall be transferred to and borne by Designer once the products are transferred to Designer or its common carrier at the pick-up location.
  4. Returns.

    1. Abbyson offers a 7 day return policy as set forth in this Section 4. If Designer desires to return any product for any reason, Designer must notify Abbyson and obtain a Return Merchant Authorization Number (“RMA Number”) within 7 days of receiving the product. The RMA Number is valid for 14 days and the product must arrive at Abbyson’s facility within such 14 day period. The RMA Number must be placed on the outside of the return box, adjacent or on the shipping label. Returns without a permitted RMA Number will be rejected. Items *MUST* be returned to the following address:

      5155 Goldman Avenue
      Moorpark, California 93021
      ATTN: Return Department

    2. Designer shall be solely responsible for all freight costs (initial delivery and returns), and all freight charges on returned merchandise must be prepaid by Designer. C.O.D. deliveries will not be accepted. However, if Designer returns the product because it was damaged when transferred to the common carrier or is defective, Abbyson shall be responsible for all freight costs.
    3. Designer shall pay a re-stocking fee of 25% of the price of the returned product, unless the product was returned because it was previously damaged when transferred to the common carrier or is defective. If Designer claims damage or defect, Designer must email pictures of the damage or defect to Abbyson when requesting the RMA Number. Abbyson will determine whether the damage occurred prior to transfer to the common carrier or whether there is a defect. If Designer does not return the full order or returns product that was damaged after Abbyson’s initial transfer of the product to the common carrier, Abbyson shall have the right to charge appropriate amounts to Designer. For any product that is timely returned and is confirmed by Abbyson to be in new and re-sellable condition, Designer will be given a credit memo for the price of the product minus the restocking fee. Credit memos expire 30 days from the issue date. If returned product is not in new and re-sellable condition, Designer will pay the full price for the product (and for any shipping charges for the return of the product back to Designer) unless Abbyson and Designer agree to any alternate resolution.
  5. Limited Warranty.

    1. Abbyson offers a one-year limited warranty on its merchandise, which warranty can be found on www.abbyson.com/pages/warranty (the “Limited Warranty”). The Limited Warranty is subject to all of the limitations and exclusions set forth therein. Abbyson may change its Limited Warranty from time to time, but the Limited Warranty in effect at the time a product is sold to Designer shall remain in effect for such product. EXCEPT FOR THE LIMITED WARRANTY, ABBYSON MAKES NO REPRESENTATIONS OR WARRANTIES OR INDEMNITIES WITH REGARD TO ITS PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, ALL OF WHICH ARE HEREBY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.
    2. The Limited Warranty is not transferrable by the Designer's original purchaser of the product ("Original Purchaser") should the Original Purchaser subsequently re-sell the product. Designer shall be solely responsible for any additional or aftermarket warranties provided by Designer to its customers (“Excess Warranties”), and shall defend, indemnify and hold Abbyson harmless from any and all Claims (as defined below) arising from or in connection with any such Excess Warranties.
  6. Marketing and Advertising.

    Designer is prohibited from featuring or otherwise utilizing any Abbyson products, brand names or trademarks in any advertising, in any medium, without the prior written approval of Abbyson, which approval Abbyson may withhold in its sole and absolute discretion. Samples of proposed advertising shall be submitted to Abbyson for approval as early in the concept/design process as possible, but in all cases no later than fifteen (15) business days prior to Designer’s intended use thereof. Any advertising approval granted by Abbyson shall be revocable and restricted to use by Designer in such mediums as approved by Abbyson. Designer acknowledges that its breach of the provisions contained in this paragraph would cause irreparable injury to Abbyson, that monetary damages, as a matter of law, would be inadequate to remedy such injury, and that Abbyson, in addition to any other remedies available, shall be entitled to seek and obtain injunctive relief without posting a bond or security, which is hereby waived by Designer.
  7. Confidentiality.

    During the course of this Agreement, Designer may be provided or have access to Abbyson’s Confidential Information. “Confidential Information” means all information, materials or documents relating to Abbyson or its business or products that is not generally known in the trade or industry, including without limitation the price at which Designer purchased and sold any Abbyson product. Designer shall not use for any purpose other than implementation of this Agreement any portion of Abbyson’s Confidential Information. Designer shall protect all Abbyson Confidential Information with the same degree of care as it uses to protect its confidential information but in no event less than reasonable care. Designer shall also keep the terms of this Agreement confidential and shall not disclose the terms of this Agreement to any other party. Designer shall be responsible for any breach of this Agreement by any person to whom it has provided any Confidential Information. Designer shall be held accountable for any activity that takes place on the Abbyson Portal with Designer's login credentials. It is up to the Designer to make sure that login credentials are kept secure and not shared under any circumstance. Designer is responsible for all orders placed and any misuse of the site under Designer's credentials.
  8. Intellectual Property.

    Abbyson is the owner of all intellectual property and designs contained in or on the products ordered or purchased or shipped to the Designer or its clients, including, without limitation, all designs, prints, artwork, silhouettes, patterns, Abbyson trademarks, logos, trade dress, copyrights and the like (the “Abbyson Intellectual Property”), and any use of such rights by Designer insures to the sole benefit of Abbyson. Except for the right to resell Abbyson products as set forth in this Agreement, nothing in this Agreement shall convey to Designer any license, right, interest, title or ownership to the Abbyson Intellectual Property. As used herein, the term “Abbyson Intellectual Property” shall include all trade secret, patent, copyright, trademark and other intellectual property rights throughout the world. Designer shall deliver to Abbyson for its review and approval all materials containing or displaying any Abbyson Intellectual Property or otherwise referring to Abbyson before displaying such material, and all such materials shall first be approved as to quality and appropriateness by Abbyson. Designer shall promptly discontinue the display or use of any Abbyson Intellectual Property or change the manner in which the Abbyson Intellectual Property is displayed or used when requested by Abbyson.
  9. Indemnification.

    Designer shall indemnify, defend, and hold harmless Abbyson, its licensors, subsidiaries, and affiliates, and its and their respective officers, directors, shareholders, members, managers, vendors, employees, agents, successors, and assigns (collectively, “Indemnified Parties”) from and against any and all claims, penalties, fees, liabilities, interests, losses (including loss of profit), damages, lawsuits, and/or expenses of any kind (including, without limitation, reasonable attorneys’ fees, whether or not suit is filed, and litigation costs) (collectively "Claims") suffered or incurred by Indemnified Parties which are in connection with or in any way related to a breach by Designer of any covenant, acknowledgement, representation and/or warranty made by Designer in this Agreement or any acts or omissions of Designer or its personnel or agents or contractors.
  10. Termination.

    Nothing contained herein shall give rise to an obligation on the part of Abbyson to continue to sell product to Designer, and the Parties acknowledge and agree that either Party may terminate this Agreement at any time, with or without cause, and with or without advance notice. Any such termination shall not affect the obligations of Designer, whether hereunder set forth or otherwise existing, with regard to any orders through the Abbyson Portal previously shipped or then pending. Abbyson shall decide whether or not to fulfill pending orders through the Abbyson Portal on a case by case basis. Upon a termination of this Agreement, Designer shall cease all marketing and advertising of Abbyson products. However, sections 2(c), 2(d), 5, 6, 7, 8, 9, 11, 12, 13, and 14 and any other provisions of this Agreement that by the nature or intent of their terms should survive shall survive the termination of this Agreement.
  11. Abbyson’s Buy-Back Right.

    Within thirty (30) days following a termination of this Agreement pursuant to Section 10, Designer shall notify Abbyson in writing of the product number and quantity of all Abbyson products in Designer’s remaining inventory. On or before the thirtieth (30th) day after Abbyson receives the notice, Abbyson may, in its sole discretion, offer to purchase all or a portion of any remaining inventory free of all liens, claims or encumbrances, at a price equal to the lesser of Designer’s cost therefor and Abbyson’s then-prevailing reseller price. Designer must accept Abbyson’s offer and promptly deliver, at Designer’s expense and risk of loss, the ordered Abbyson product to Abbyson’s designated carrier for delivery to Abbyson. Repurchased Abbyson product must be returned in its original packaging, unopened and undamaged. Abbyson shall pay the repurchase price to Designer either by the issuance of a credit against any indebtedness of Designer to Abbyson, or if the repurchase price exceeds the indebtedness, by payment of the excess to Designer within fourteen (14) days after delivery to Abbyson.
  12. Audits.

    During the term of this Agreement and for one (1) year thereafter, Designer agrees to keep and maintain accurate books and records in reasonable detail regarding its performance under this Agreement, and Abbyson shall during normal business hours have the right to audit such books and records that are relevant to Abbyson and this Agreement upon prior written notice to Designer.
  13. Prohibited Acts.

    1. engage in any unfair, competitive, misleading or deceptive practices respecting Abbyson, Abbyson’s trademarks or products, including any product disparagement or “bait-and-switch” practices; or
    2. sell, either directly or indirectly, or assign or transfer, any products to any person when Designer knows or has reason to suspect that the person may resell any or all of the products to a third party, including any third party reseller or distributor.
  14. Miscellaneous

    1. IN NO EVENT SHALL ABBYSON BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT DESIGNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ABBYSON’S AGGREGATE LIABILITY ARISING UNDER, WITH RESPECT TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL MONIES PAID BY DESIGNER TO ABBYSON UNDER THIS AGREEMENT FOR THE PRODUCTS GIVING RISE TO ABBYSON’S LIABILITY.
    2. All causes of action by Designer against Abbyson must be brought to suit within one (1) year following the date on which the event which first gave rise to the cause of action occurred or within one (1) year following expiration or termination of this Agreement, whichever is earlier, it being the express intent of the Parties to limit the applicable statute of limitations during which Designer may bring a claim against Abbyson.
    3. Designer is acting as an independent contractor to Abbyson. Each Party acknowledges that the other Party is neither an agent, partner nor joint venturer of such Party. Neither Party shall make any contract, agreement or commitment for or on behalf of the other Party. The Parties acknowledge that this Agreement is not a franchise or business opportunity agreement and does not create a franchise or business opportunity relationship between the Parties.
    4. The rights and duties of Designer under this Agreement are personal and may not be assigned, transferred, subcontracted, or delegated by Designer without prior written consent of Abbyson, which consent Abbyson may withhold in its sole and absolute discretion. Any transfer of fifty percent (50%) or more of the ownership interest in, outstanding voting securities of, or control of, Designer or the merger of Designer into or with any third party or entity, or the sale of all or substantially all of the assets of Designer shall be deemed an assignment for the purposes of this Section 14(d). Abbyson may assign all or any part of its interest in this Agreement or payments hereunder without the consent of Designer. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the Parties hereto and their respective heirs, legal representatives, successors and permitted assigns.
    5. This Agreement is subject to and, to the extent of a conflict, superseded by, any terms of service for the Abbyson Portal ("Terms of Service"). Abbyson may update or modify the Terms of Service at any time or without prior notice. For this reason, Designer should review the Terms of Service prior to each purchase. By accessing or using any part of the Abbyson Portal, Designer agrees to be bound by such Terms of Service.
    6. This Agreement and all transactions contemplated hereby, shall be governed by, construed and enforced in accordance with the laws of the State of California, without regard to the conflict-of-laws provisions of such state. The Parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of California and any United States District Court situated in the State of California for the purpose of construing and enforcing this Agreement. Each of the Parties hereto submits to the exclusive personal jurisdiction of the courts located in Ventura County, California and waives any defense of forum non conveniens. Each Party further agrees that personal jurisdiction over such Party may be effected by service of process by registered or certified mail addressed as provided below in this Agreement, and that when so made shall be as if served upon such Party personally within the State of California.
    7. Should any Party hereto institute any action or proceeding at law or in equity, or in connection with an arbitration, to enforce any provision of this Agreement, including an action for declaratory relief, or for damages by reason of an alleged breach of any provision of this Agreement, or otherwise in connection with this Agreement, or any provision thereof, the prevailing Party shall be entitled to recover from the losing Party or Parties reasonable attorneys’ fees and costs for services rendered to the prevailing Party in such action or proceeding.
    8. This Agreement and the Purchase Orders contains the entire agreement between the Parties relating to the subject matter hereof and any representation, promise or condition not incorporated herein shall not be binding upon either Party.
    9. Any and all notices to be given hereunder by any Party shall be in writing. A notice shall be validly given or made to the other Party if served either personally or if deposited in the United States mail, certified or registered, postage prepaid, or if transmitted by overnight courier at the address set forth on the first page of this Agreement. If such notice, demand or other communication is served personally, service shall be conclusively deemed made at the time of such personal service. If such notice, demand or other communication is given by mail, such shall be conclusively deemed given seventy-two (72) hours after the deposit thereof in the United States mail, or if by carrier service, upon confirmation of delivery by the carrier. Any Party hereto may change its address for receiving notices by a written notice given in the manner aforesaid to the other Party or Parties hereto.
    10. No amendment, change or modification of this Agreement shall be valid, unless in writing and signed by all of the Parties hereto.
    11. No waiver by any Party hereto of a breach of any provision of this Agreement shall constitute a waiver of any preceding or succeeding breach of the same or any other provision hereof.
    12. Except for Designer's payment obligations, neither Party will be responsible for any default under this Agreement by reason of strikes, power or environmental conditions, riots, wars, acts of terrorism, fire, acts of God, or any other cause beyond its reasonable control, provided that the affected Party shall promptly give notice thereof to the other Party, and shall take commercially reasonable steps to overcome the effects of such event as soon as possible, and such Party's delay in performance shall be excused only for the period of delay caused by such event.
    13. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and shall become effective when the counterparts have been signed by each Party hereto and delivered to the other Party. Facsimile or electronic counterparts (pdf) shall be deemed original counterparts for all purposes hereunder and shall constitute enforceable original documents.

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