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Retail Sales Agreement

RECITALS

  1. Abbyson is a premier designer and manufacturer of transitional home furnishings.
  2. Retailer is a retailer that desires to purchase products from Abbyson and to resell such products in the Retailer’s Approved Retail Locations 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 good and valuable consideration the receipt of which is hereby acknowledged, the Parties agree as follows:

  1. Appointment of Retailer as Authorized Reseller and Purchase of
    Abbyson Products.

    1. Abbyson hereby appoints Retailer, and Retainer accepts such appointment, as an authorized, independent, non-exclusive reseller to purchase products from Abbyson and to resell such products to Retailer’s retail customers only at the locations identified below ("Approved Retail Locations"), and to advertise and promote the resale of Abbyson’s products, all in accordance with the terms and conditions set forth in this Agreement. Retailer will represent the Abbyson name, brand, products and image with the highest degree of professionalism, product knowledge and integrity.
    2. Retailer may from time-to-time submit purchase orders for Abbyson products in the form attached hereto as Exhibit A ("Purchase Orders"). Abbyson may, in its sole discretion, accept or reject any Purchase Order. No Purchase Order shall be binding on Abbyson unless and until it is accepted by Abbyson. Each Purchase Order shall be subject to the terms and conditions set forth in this Agreement. The Purchaser Orders shall contain only the information set forth in the form attached hereto as Exhibit A, and Retailer shall not insert or impose any terms and conditions in any of the Purchase Orders unless approved in advance in writing by Abbyson. Any terms and conditions inserted or imposed by Retailer in any Purchase Order in violation of this Section are hereby rejected and shall be null and void and of no force or effect. Retailer’s Purchaser Order shall be deemed accepted by Abbyson if Abbyson charges Retailer’s credit card for the order as described in Section 3 below or if Abbyson signs the Purchase Order and remits it to Retailer (which can be by email or facsimile). Orders accepted by Abbyson are processed Monday-Friday, 9 am-6 pm PST, excluding major holidays. Products will be shipped based on availability. Abbyson does not process same-day pick-up from any warehouses or accommodate changes to orders at the time of a scheduled pick-up. Retailer may cancel a Purchase Order without any penalty if Retailer submits the cancellation to Abbyson before Abbyson has shipped the product. Purchase Orders that are cancelled prior to shipment will either be refunded or Retailer will be issued credit towards a future order, as determined by Abbyson.
    3. Retailer is expressly prohibited from offering for sale, selling, diverting, distributing or otherwise disposing of Abbyson products, including online, other than at the Approved Retail Locations listed above without the prior written consent of Abbyson, which consent Abbyson may withhold in its sole and absolute discretion.
    4. Retailer understands that the restrictions set forth in this Section 1 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, Retailer agrees that if it is reasonably found to be in breach of this Section 1, Retailer shall pay to Abbyson $50,000.00 (USD) per breach as liquidated damages, which amount Retailer 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 Retailer recognizes are otherwise difficult to calculate and which are fair and reasonable under the circumstances existing as of the date of this Agreement.
  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 Retailer for resale at each Approved Retail Location. The designs, specifications, finishes and materials used on Abbyson products may change from time to time, and the actual color of products delivered to Retailer 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 Retailer.
    2. Retailer shall not purchase Abbyson products from any source other than Abbyson. In order not to be assessed sales tax, Retailer shall submit to Abbyson a valid resale sales tax exemption certificate, and Retailer shall collect and remit to the appropriate taxing authorities all sales and use taxes that are payable by Retailer in connection with Retailer’s resale of Abbyson products purchased hereunder.
    3. Abbyson will provide Retailer minimum advertised pricing (the “MAP Policy”) and minimum suggested retail price ("MSRP") pricing for the Abbyson Products from time to time. In order to allow Abbyson to accomplish the efficient and proper distribution of its products, consistent with its company and/or brand image, which Retailer acknowledges is extremely important to Abbyson, Abbyson encourages Retailer to not list or advertise Abbyson products below the prices set forth in the MAP Policy on any promotional advertising or other outlet unless Retailer is running an Abbyson approved promotion. 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. Retailer 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, in each case using its best efforts to maximize the sales volumes of Abbyson products;
      2. develop and execute a marketing plan sufficient to fulfill its obligations under this Agreement;
      3. 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;
      4. 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;
      5. promptly notify Abbyson of any complaint or adverse claim about any product or its use of which Retailer becomes aware;
      6. prominently display a representative line of Abbyson products at each of its Approved Retail Locations and ensure that all products are in good working condition for the purposes of conducting sales demonstrations to potential customers;
      7. comply at all times with applicable laws and regulations; and
      8. 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. Payment and Credit Terms.

    1. Until Retailer is approved for credit terms by Abbyson, Retailer must pay for all purchased products in advance by credit card. To facilitate credit card payments, Retailer shall submit to Abbyson a credit card payment authorization in the form attached hereto as Exhibit B (the “Credit Card Authorization”). Abbyson may require an updated Credit Card Authorization form from time to time. Abbyson will charge the designated credit card for product that is in stock and ordered pursuant to a Purchase Order, prior to shipping. If an item is on back order, Retailer’s credit card will not be charged until the product reaches Abbyson’s warehouse and is prepared for shipping.
    2. In an event that the card identified in the Credit Card Authorization is declined and Abbyson is not able to charge the amount due to that credit card, Retailer shall provide Abbyson with an alternate credit card authorization with 48 hours after Abbyson notifies Retailer that its card was declined. If Retailer becomes aware that its designated credit card is no longer active, Retailer shall provide Abbyson with a new Credit Card Authorization as soon as possible but no later than 48 hours after becoming aware.
    3. Abbyson may elect to extend credit terms to Retailer in Abbyson’s sole discretion. Abbyson generally considers granting credit terms after the customer has, at a minimum, maintained a $10,000 monthly volume of product purchases for 6 consecutive months. In order to qualify for credit terms and credit limits, Retailer must submit a written credit application to Abbyson and shall update its financial information and credit application promptly upon Abbyson’s request. If approved, Abbyson will offer Retailer such terms as Abbyson deems appropriate in its sole and absolute discretion. Should Retailer be granted credit terms and credit limits, said credit terms and credit limit shall be subject to change or reduction at any time by Abbyson in its sole discretion upon notice to Retailer. If credit terms are given, for any accounts that are past due for more than 2 weeks, Abbyson will not process any new orders until the past due total is settled in full.
    4. Upon any delinquent payment by Retailer, all outstanding invoices shall immediately become due and payable. Past due amounts shall be immediately due and payable with or without demand. Notwithstanding the foregoing, all past-due term accounts shall incur a finance charge equal to the lesser of one and a half percent (1.5%) interest per month on the unpaid balance and the maximum interest permitted by applicable law, until the owing amount is paid in full. A past-due account may cause any or all of Retailer’s accounts to be placed on credit hold, and may prevent Retailer from receiving pre-booked and/or other merchandise. Returned checks (N.S.F., account closed, uncollected funds, etc.) are charged a minimum $25.00 handling fee for each item returned. If it becomes necessary for Abbyson to collect on any delinquent amount from Retailer, whether itself or through a collection agency or attorney, Retailer agrees to pay all costs of collection, including court costs and all attorneys' fees incurred by Abbyson upon demand by Abbyson
  4. Shipping; Pick-Up

    1. All in-stock products will generally ship within 2-4 business days. Retailer 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 on the Purchase Order. 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 Retailer once the products are transferred to the common carrier.
    2. If the Purchase Order states that Retailer 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 Retailer of available pick up date. All risk of loss to the products shall be transferred to and borne by Retailer once the products are transferred to Retailer or its common carrier at the pick-up location.
  5. Returns.

    1. Abbyson offers a 7 day return policy as set forth in this Section 5. If Retailer desires to return any product for any reason, Retailer 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. Retailer shall be solely responsible for all freight costs (initial delivery and return), and all freight charges on returned merchandise must be prepaid by Retailer. C.O.D. deliveries will not be accepted. However, if Retailer 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. Retailer 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 Retailer claims damage or defect, Retailer 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 Retailer 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 Retailer. For any product that is timely returned and is confirmed by Abbyson to be in new and re-sellable condition, Retailer 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, Retailer will pay the full price for the product (and for any shipping charges for the return of the product back to Retailer) unless Abbyson and Retailer agree to any alternate resolution.
  6. Marketing and Advertising.

    1. Retailer 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 Retailer’s intended use thereof. Any advertising approval granted by Abbyson shall be revocable and restricted to use by Retailer only at the Approved Retail Locations and such other locations approved by Abbyson in writing. Retailer 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 nadequate 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 Retailer.
    2. Retailer hereby authorizes Abbyson to list Retailer on Abbyson’s website and marketing materials as a reseller of Abbyson products and to identify the Approved Retail Locations. Abbyson shall not have any obligation to list Retailer on Abbyson’s website and marketing materials as a reseller of Abbyson products or to identify the Approved Retail Locations.
  7. Limited Warranty.

    1. Abbyson offers a one-year limited warranty on its merchandise, which warranty can be found on www.abbyson.com/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 Retailer 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 APPLICABLE LAW.
    2. Retailer may pass on the Limited Warranty to the Retailer’s original purchaser of the product ("Original Purchaser"). The Limited Warranty is not transferrable by the Original Purchaser should the Original Purchaser subsequently re-sell the product. Retailer shall be solely responsible for any additional or aftermarket warranties provided by Retailer to its customers (“Excess Warranties”), and shall defend, indemnify and hold Abbyson harmless from any and all Claims (as defined in Section 12 below), arising from or in connection with any such Excess Warranties.
  8. Confidentiality.

    During the course of this Agreement, Retailer 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 Retailer purchased and sold any Abbyson product. Retailer shall not use for any purpose other than implementation of this Agreement any portion of Abbyson’s Confidential Information. Retailer 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. Retailer shall be responsible for any breach of this Agreement by any person to whom Retailer has provided any Confidential Information. Retailer shall also keep the terms of this Agreement confidential and shall not disclose the terms of this Agreement to any other party.
  9. Indemnification.

    Retailer 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, interests, losses (including loss of profit), damages, lawsuits, liabilities, 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 Retailer of any covenant, acknowledgement, representation and/or warranty made by Retailer in this Agreement or any act or omission of Retailer or its personnel or agents or contractors.
  10. Intellectual Property.

    Abbyson is the owner of all intellectual property contained in or on the products ordered or purchased or shipped to the Retailer 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 Retailer inures to the sole benefit of Abbyson. Except for the right to resell Abbyson products as set forth in this Agreement, nothing in this Agreement or any Exhibit to this Agreement shall convey to Retailer 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. Retailer 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. Retailer 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.
  11. At-Will Termination.

    Nothing contained herein shall give rise to an obligation on the part of Abbyson to continue to sell product to Retailer, 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 Retailer, whether hereunder set forth or otherwise existing, with regard to any Purchase Orders previously shipped or then pending. Abbyson shall decide whether or not to fulfill pending Purchase Orders on a case by case basis. Upon a termination of this Agreement, Retailer shall cease all marketing and advertising of Abbyson products and shall sell its inventory of Abbyson product on hand as soon as possible at the Approval Retail Locations. The provisions of Sections 2, 3(b), 3(d), 4(b), 5, 6, 7, 9, 10, 12, 13, 14, and 15 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.
  12. Abbyson’s Buy-Back Right.

    Within thirty (30) days following a termination of this Agreement pursuant to Section 11, Retailer shall notify Abbyson in writing of the product number and quantity of all Abbyson products in Retailer’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 Retailer’s cost therefor and Abbyson’s then-prevailing reseller price. Retailer must accept Abbyson’s offer and promptly deliver, at Retailer’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 Retailer either by the issuance of a credit against any indebtedness of Retailer to Abbyson, or if the repurchase price exceeds the indebtedness, by payment of the excess to Retailer within fourteen (14) days after delivery to Abbyson.
  13. Audits.

    During the term of this Agreement and for one (1) year thereafter, Retailer 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 Retailer.
  14. Prohibited Acts.

    Notwithstanding anything to the contrary in this Agreement, neither Retailer nor Retailer’s personnel shall:
    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 Retailer 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.
  15. 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 RETAILER 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 RETAILER TO ABBYSON UNDER THIS AGREEMENT FOR THE PRODUCTS GIVING RISE TO ABBYSON’S LIABILITY.
    2. All causes of action by Retailer 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 the 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 a Party may bring a claim against the other Party.
    3. Retailer 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 Retailer under this Agreement are personal and may not be assigned, delegated, transferred, or subcontracted by Retailer 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, Retailer or the merger of Retailer into or with any third party or entity, or the sale of all or substantially all of the assets of Retailer company shall be deemed an assignment for the purposes of this Section 15(d). Abbyson may assign all or any part of its interest in this Agreement or payments hereunder without the consent of Retailer. 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. If any provision of this Agreement shall be held to be contrary to law, the remaining provisions shall remain in full force and effect and the invalid provision shall be reformed to the extent possible to give effect to the intended meaning and purpose so long as the economic or legal substance of this Agreement is not affected in any manner materially adverse to either Party.
    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 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 Retailer'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.

The undersigned have read, understood and agree with the terms set forth in this Retail Sales Agreement as of the date first set forth above.

ABBYSON RETAILER
COMPANY: ABBYSON LIVING LLC COMPANY:
By: By:
Name: Name:
Title: Title:

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