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THE MAKER’S HUB INC.
Below you will find our Supplier/Distributor Agreement. All sellers are required to sign this agreement with an electronic signature before subscribing to be a seller with The Maker's Hub Handmade Boutique. A link will be provided to complete this requirement.
This Distribution Agreement (this "Agreement"), dated as of [DATE] (the "Effective Date"), is entered into between [DISTRIBUTOR NAME], [a/an] [JURISDICTION OF INCORPORATION/FORMATION] [corporation/limited partnership] ("Distributor") and [SUPPLIER NAME], [a/an] [JURISDICTION OF INCORPORATION/FORMATION] [corporation/limited partnership] ("Supplier", and together with Distributor, the "Parties", and each, a "Party").
WHEREAS Distributor is in the business of [marketing and] reselling Goods (as defined below);
WHEREAS Supplier is in the business of [manufacturing/producing] and selling the Goods;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set out herein and, for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1.Definitions.
"Agreement" has the meaning set out in the preamble.
"Confidential Information" has the meaning set out under Section 9.
"Distributor" has the meaning set out in the preamble.
"Effective Date" has the meaning set out in the preamble.
"Good" means any good that is identified in the Product Application Form
"Indemnified Party" has the meaning set out under Section 11.
"Losses" has the meaning set out under Section 12.
"Party" has the meaning set out in the preamble.
"Supplier" has the meaning set out in the preamble.
"Term" has the meaning set out under Section 8.
"Territory" means limited to territories governed by Canadian provincial or territorial law.
2.Non -Exclusive Appointment. Supplier hereby appoints Distributor to act as a non-exclusive distributor of Goods to customers located in the Territory during the Term in accordance with the terms and conditions of this Agreement. Nothing contained herein shall restrict Distributor from having the right to obtain or retain the rights to resell any other goods, including goods that may compete with the Goods.
3.2 Supplier Obligations. Supplier shall, at no cost to Distributor, provide:
(a)any necessary cooperation, information, material and support (including sales literature and samples of Goods) as Distributor may request regarding the marketing, advertising, promotion and sale of Goods, and shall notify Distributor promptly in the event of any material changes in such information; [and]
(b)training to Distributor's sales associates regarding Goods before the roll-out of any new Goods and from time to time as requested by Distributor [. /; and]
(c) [technical support to Distributor's customers and, as requested by Distributor, provide support contact information, escalation procedures and any other support-related information to Distributor for all Goods.]
4.Agreement to Purchase and Sell Goods.
4.1 Terms of Sale; Orders. Supplier shall make available and sell Goods to Distributor at the prices under terms and conditions set out in the Agreement. Distributor is not required to purchase any minimum amount or quantity of Goods.
4.2 Price. The prices for Goods sold under this Agreement shall be as per [Supplier's price list in effect at the time of the Agreement]. The prices to be paid by Distributor shall be no less favourable to Distributor than the prices paid by any other customer. [Distributor retains the right to immediately set-off rejections of Goods or discrepancies on invoices against current or future invoices for all orders.]
4.3 Payment Terms. Supplier shall pay pre-authorized monthly subscription payments for active product listing(s). Distributor shall pay all Supplier amounts sold less commission fees owed to the Distributor bi-weekly or monthly increments as agreed.
Distributor shall make all payments in Canadian dollars by cheque or automated clearing house.
4.4 Availability; Changes in Goods. Supplier shall:
(a)provide Distributor with [ONE] months' notice before discontinuing a Good, and Distributor may, at its sole discretion.
(b)notify Distributor at least [14] days before the date that Supplier introduces any new Good or replacement of a Good and make such Good available for sale by Distributor on or before the date it is first introduced in the marketplace.
If any new Good under Section 4.4(b) negatively affects Distributor's ability to sell any similar Good then in Distributor's inventory, Distributor can declare its inventory of such similar Good functionally discontinued, shall so notify Supplier and shall have the right to return those Goods under Section 6.
4.5 Allocation. Subject to Section 4.4, Supplier shall maintain sufficient Goods inventory to permit it to fill orders as required herein. In the event of any shortage of Goods in Supplier's inventory, Supplier shall, on order by Distributor, ship to Distributor at least as many units of the Good as Supplier committed. If any Good is subject to limited availability at any time and Distributor has placed purchase orders for such Good, then either before or after the date such Good becomes subject to limited availability, Supplier agrees to notify Distributor before filling any purchase order for such Good, and Distributor has the right, in its sole discretion and without liability or penalty, to cancel any existing purchase order for such Good.
5.Product Listing Procedure.
5.1 Product Application. Distributor shall issue product application to Supplier [in written form via facsimile [, / or] email]. Supplier shall fill promptly for Distributors review.
5.2 Acceptance and Rejection of Product Application. Distributor shall confirm to Supplier the receipt of product application hereunder within [10] business days following Supplier's receipt thereof and shall fill promptly and to the best of its ability.
6 Acceptance of Goods. If Distributor determines, in its sole discretion, that Goods delivered under this Agreement:
(a)are damaged, defective or otherwise do not conform to the [make/model number/UPC/SKU/[PRODUCT IDENTIFIER]] listed in the applicable purchase order; or
(b)were delivered to Distributor as a result of Supplier's error, Distributor may either:
(i)reject such Goods for a refund plus any inspection, test, shipping, handling and transportation charges paid by Supplier; or
(ii)require prompt correction or replacement of such Goods.
In each case the exercise by Distributor of any other rights available to Distributor under this Agreement or applicable law shall not be limited.
7.[Use of Supplier's Name and Trademarks. Distributor and its authorized independent sales representatives, sub-distributors, successors and assigns are hereby authorized to:
(a)use Trademarks, service marks, and trade names of Supplier and [, to the extent Supplier can grant such authorization,] any third party licensing Supplier in connection with advertising, promoting, or reselling the Goods; and
(b)refer to and advertise itself as an authorized distributor of the Goods.]
8.Term; Termination.
8.1 Term. The term of this Agreement commences on the Effective Date and terminates on [DATE] of non-renewal at least [14] days before the end of the then-current term, or unless and until earlier terminated as provided under this Agreement or applicable law (the "Term"). If [either Party/Distributor] provides timely notice of its intent not to renew this Agreement, then, unless earlier terminated in accordance with its terms, this Agreement terminates on the expiration of the then-current Term.
8.2 Termination Rights. Either Party may terminate this Agreement upon notice to the other:
(a)except as otherwise specifically provided under this Section 8.2, if the other Party is in breach of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured within [14] days following the other Party's receipt of notice of such breach;
(b)if the other Party:
(i)becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
(ii)files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
(iii)seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts;
(iv)makes or seeks to make a general assignment for the benefit of its creditors; or
(v)applies for or has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c)[with [14] days' notice, at any time and for any reason.]
[Except for termination under Section 8.2(c), any termination under this Section 8.2 is effective on receipt of notice of termination.
8.3 Effect of Expiration or Termination. Upon the expiration or earlier termination of this Agreement:
(a)All related purchase orders are automatically terminated; and
(b)[ Each Party shall promptly [return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other Party's Confidential Information.
9.Confidential Information. From time to time during the Term either Party may disclose or make available to [Supplier/the other Party] information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, "Confidential Information"). Confidential Information shall not include information that, at the time of disclosure is:
(a)in the public domain;
(b)known to the receiving party at the time of disclosure; or
(c)rightfully obtained by the receiving party on a non-confidential basis from a third party.
The receiving party shall not disclose any such Confidential Information to any person or entity, except to the receiving party's employees who have a need to know the Confidential Information for the receiving party to perform its obligations here under. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed.
10.Supplier's Compliance with Laws; Warranties.
10.1 Compliance with Laws. Supplier is in compliance with and shall comply with all applicable statutes, laws, regulations, rules, codes and ordinances. Supplier has and shall maintain in effect all the licences, permissions, authorizations, consents, certifications, credentials and permits that it needs to carry out its obligations under this Agreement.
10.2 Warranties. Supplier warrants to Distributor that for a period of [1] months from the date of delivery, all Goods delivered on that date will:
(a)be free from any defects in workmanship, material, and design;
(b)conform to applicable specifications and other requirements specified by Distributor;
(c)be fit for their intended purpose and operate as intended;
(d)be merchantable;
(e)be free and clear of all liens, security interests or other encumbrances; and
(f)not infringe or misappropriate any third party's patent or other intellectual property rights.
These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Distributor.
These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Distributor's discovery of the non-compliance of the Goods with the foregoing warranties.
Distributor may pass through to its customers all warranties granted by Supplier under this Agreement, and Supplier agrees to assist Distributor in processing any warranty claims relating to the Goods.
11.General Indemnification. Supplier shall indemnify, defend and hold harmless Distributor, its officers, directors, employees, interns, agents, affiliates, service providers, successors and permitted assigns (collectively, "Indemnified Partyagainst any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including [reasonable] legal fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, "Losses"), relating to any claim of a third party arising out of or occurring in connection with the Goods from Supplier or Supplier's negligence, willful misconduct or breach of this Agreement. Supplier shall not enter into any settlement without Distributor's prior written consent.
12.Intellectual Property Indemnification. Supplier shall indemnify, defend and hold Indemnified Party harmless against any and all Losses arising out of or in connection with any claim that Indemnified Party's use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Supplier enter into any settlement without Distributor's prior written consent.
13.[Limitation of Liability. EXCEPT FOR LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, [NEITHER PARTY IS LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR AGGRAVATED DAMAGES, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAD BEEN DISCLOSED IN ADVANCE BY THE OTHER PARTY OR WAS FORESEEABLE, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.Insurance. After the Effective Date, Supplier shall, at its own expense, maintain and carry insurance in full force and effect that includes, but is not limited to, commercial general liability (including product liability) with financially sound and reputable insurers. Upon Distributor's request, Supplier shall provide Distributor with a certificate of insurance and policy endorsements for all insurance coverage and shall not do anything to invalidate such insurance. The certificate of insurance shall name Distributor as an additional insured. Supplier shall provide Distributor with [14] days' advance written notice in the event of a cancellation or material change in Supplier's insurance policy. Except where prohibited by law, Supplier shall require its insurer to waive all rights of subrogation against Distributor's insurers and Distributor or the Indemnified Parties.]
15.Entire Agreement. This Agreement, including and together with any related exhibits, schedules, forms, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. In the event of conflict between the terms of this Agreement and the terms or other document submitted by one Party to the other, this Agreement shall control unless the Parties specifically otherwise agree in writing.
16.Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing (personal delivery, email, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid).
17. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction[; provided that, if any fundamental term or provision of this Agreement (including [FUNDAMENTAL TERMS]) is invalid, illegal or unenforceable, the remainder of this Agreement shall be unenforceable].
18.Amendments. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
19.Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
20.Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute in any other agreement between the Parties or otherwise.
21.Assignment. Supplier shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Distributor. Any purported assignment or delegation in violation of this section shall be null and void. No assignment or delegation shall relieve Supplier of any of its obligations hereunder. Distributor may at any time assign, transfer or subcontract any or all of its rights or obligations under this Agreement without Supplier's prior written consent.
23.Successors and Assigns. This Agreement is binding on and ensures to the benefit of the Parties to this Agreement and their respective [permitted] successors and [permitted] assigns.
24.No Third-Party Beneficiaries. Subject to the next paragraph, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
The Parties hereby designate Indemnified Parties as third-party beneficiaries of Section 12 and Section 13 with the right to enforce those provisions.
25.Choice of Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto[, and all matters arising out of or relating to this Agreement,] are governed by, and construed in accordance with, the laws of [ONTARIO] and the federal laws of Canada applicable therein [without giving effect to any choice or conflict-of-laws provision or rule (whether of [ONTARIO] or any other jurisdiction)].
26.Forum Selection. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions[, including contract, equity, tort, fraud and statutory claims], in any forum other than in the courts of ONTARIO, Canada, and each Party irrevocably and unconditionally submits to the [non-]exclusive jurisdiction of such courts in any such action, litigation or proceeding. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
27.[Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including exhibits, schedules, attachments and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby.]
28.Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party's reasonable control, without such Party's fault or negligence, and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a "Force Majeure Event"). Changes in cost or availability of materials, components or services, market conditions, or supplier actions or contract disputes will not excuse performance by Supplier under this section 28. A Party shall give the other Party prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. An affected Party shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under this Agreement.
29.Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
