TERMS OF SERVICE
1. Merchandise. Brand sells products, services and merchandise in the conduct of its business as defined in the Order Form (“Merchandise”). All styles of Merchandise to be Provided to Fourpost hereunder shall be mutually selected by the Brand and Fourpost. Fourpost shall tag and identify Merchandise with a separate Fourpost SKU number exclusively assigned to Merchandise delivered pursuant to the terms of this Agreement.
2. Sales Efforts by Fourpost. Fourpost shall use its commercially reasonable efforts to sell the Merchandise, and for this purpose it agrees to keep the Merchandise properly and prominently displayed in its stores until the “Termination Date” (as defined in the Order Form). Fourpost makes no representation or guarantee regarding the likelihood of sale, or the length of time it will take for Brand’s items to sell. Brand must approve any price promotion or discount in advance, provided that Brand agrees that any sale, price promotion, or discount offered on its website or directly to its own customers that is known publicly will be extended to the Merchandise offered for sale by Fourpost. Fourpost and Brand will mutually agree on the sales price of Merchandise and the length of time it will be displayed for sale. Brand acknowledges that items not immediately displayed for sale, and/or off-season items, may be placed in an off-site storage area by Fourpost.
3.1 The date and place of delivery of the Merchandise to Fourpost shall be on terms mutually agreed upon between the parties in the initial order, and of each subsequent replacement order. Upon or before delivery of the products, Brand will provide a complete and accurate inventory list of the products Brand will be sending to Fourpost. This list must include but not limited to the number of products, the name/ description of each product, the suggested retail purchase price and must be signed by both Fourpost and the Brand upon acceptance. As well as in accordance with Fourposts inventory management guidelines which are made available in Retails online dashboard. Unless otherwise agreed to, Brand will be responsible for payment of shipping of Merchandise to Fourpost.
3.2 Fourpost shall promptly inspect all Merchandise upon receipt by Fourpost and shall identify any discrepancies as well as return to Brand within thirty (30) days of its receipt by Fourpost, any defective Merchandise, at Brand’s cost and expense.
3.3 All additions and changes to Brand’s inventory and product line must be processed through Fourpost’s online dashboard.
4. Prices and Commission. The price for each item of the Merchandise under this Agreement shall be the Brand’s quoted price which shall be applicable during the term of this Agreement. Per the fully executed Order Form and upon the sale of one or more of Brand’s items, Fourpost will retain its portion of the price a customer paid for each item of Merchandise (the “Revenue Share”).
5. Sales Reports and Invoices. Not later than thirty (30) days after the end of each month, Fourpost shall submit to Brand the Revenue Share payment along with a report detailing all sales of Merchandise for such month (the “Sales Report”). Brand reserves the right, upon seven (7) days’ prior written notice to Fourpost, to examine such records of Fourpost which deal solely with the sale of Brand’s Merchandise for verification of the monthly reports. Fourpost agrees to keep separate books and records for Brand regarding the Merchandise and its sale thereof. The examination shall be at the expense of Brand and shall take place during normal business hours.
6. Representations of Fourpost. Fourpost hereby represents and warrants to Brand that the execution, delivery and performance by Fourpost 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 Fourpost 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 Fourpost, including without limitation, the Merchandise, pursuant to any such indenture, agreement or other instrument.
7. Representations of Brand. Brand hereby represents to Fourpost that Brand either has good title to the Merchandise or has full power and authority to deliver the Merchandise to Fourpost. Brand represents that Merchandise will not be counterfeit, fake, knockoff, imitation, lookalike, replica of or in any manner an infringement upon any trademarked or copyrighted product or merchandise of any third party. Brand agrees to leave merchandise with the Fourpost for a minimum of two hundred and ten (210) days, with the aforementioned time period to begin upon the effective date as specified herein. Upon receipt of written request from Fourpost, Brand agree to promptly replenish Merchandise in a timely manner. Brand will send new Merchandise within seven (7) days of its receipt of a request from Fourpost.
8. Return and Reconciliation. Following the date of termination of this Agreement, Fourpost shall have the option to (a) return to Brand all unsold Merchandise, or (b) purchase, at a mutually agreed price, all or some of the Merchandise in accordance with the terms of this Agreement. The Merchandise shall be returned in the original condition in which it was delivered to Fourpost pursuant to this Agreement. Final reconciliation shall be done, upon receipt by Brand of the actual quantity of Merchandise returned. Unless otherwise agreed upon, Brand will be responsible for payment of shipping any remaining Merchandise back to Brand at Brand’s address above. Such items will be returned to Brand within sixty (60) days of termination of this Agreement.
9.1 Title to the Merchandise shall at all times remain with Brand until the Merchandise is fully paid for by consumer or Fourpost, or returned by Fourpost. Upon receipt by Fourpost of the Merchandise, Fourpost shall bear the entire risk of loss, theft, damage or destruction from any cause whatsoever except as outlined in subsection (b) below.
(a) Fourpost agrees to hold the Merchandise and proceeds thereof in trust for Brand and to indemnify and hold Brand 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 Merchandise except as provide below in subsection (b).
(b) Brand agrees to indemnify and hold Fourpost 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 (i) damages to property or personal injury caused by or resulting from the Merchandise, (ii) use of the Merchandise or defect in the Merchandise, or (iii) the assertion of any infringement or other claims alleging that the Merchandise, the Merchandise trademark, the Brand’s Logo, or any materials violate the intellectual property rights of any third party.
9.2 Fourpost shall inform Brand in writing within ninety (90) days of any loss, theft, damage or destruction of any of the Merchandise. Brand will promptly provide Fourpost with an invoice of the wholesale cost of such Merchandise. Should any of the Merchandise be lost because of an event of loss, theft, damage or destruction, Fourpost shall include the wholesale price of such Merchandise in its monthly invoice issued to Brand pursuant to Section 5 above and Fourpost shall pay the same according to said terms.
10. Taxes. Fourpost 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 or delivery of the Merchandise hereunder.
11. Insurance. Following the delivery of Merchandise, Fourpost shall insure the Merchandise for its full value, for and against all risks of loss. Fourpost shall be responsible to, and shall reimburse the Brand, for all loss and expense to Brand resulting from damage to or the theft or destruction of the Merchandise from any cause whatsoever, whether or not insured, from the time Merchandise is received by Fourpost until returned to Brand.
12. Events of Default. The following shall be considered Events of Default:
12.1 Fourpost Default: (i) Fourpost’s failure to submit to Brand the Sales Report as set forth herein, following ten (10) days’ written notice of such failure and Fourpost’s failure to cure within said ten (10) day period; (ii) Fourpost’s failure to make prompt payment of the Revenue Share as set forth herein, following ten (10) days’ written notice of such failure to Fourpost and Fourpost’s failure to cure within said ten (10) day period; or (iii) Fourpost’s failure to adhere to any other of the terms, provisions, conditions or covenants of this Agreement for more than thirty (30) days after written notice of such failure or such additional period as is reasonably necessary to cure the same.
12.2 Brand Default: In the event of any failure of Brand (i) to pay timely any sums due under this Agreement or the Order Form, or (ii) to perform timely any of the terms, conditions or covenants of this Agreement by Brand, then Fourpost, in addition to all other rights or remedies it may have, shall have the right thereupon, or at any time thereafter, to terminate this Agreement by giving ten (10) days’ written notice of such failure to Brand and Brand’s failure to cure within said ten (10) day period.
13. Default Remedies. Upon an Event of Default and any subsequent failure to cure by Fourpost, Fourpost shall within sixty (60) days return to Brand, at Fourpost’s expense in the case of a Fourpost Default and at Brand’s expense in the case of a Brand default, all Merchandise delivered hereunder in a form acceptable to Brand or make payment for such Merchandise to Brand.
14.1 Upon the occurrence of an Event of Default and any subsequent failure to cure by Fourpost, pursuant to Article 12 herein, Brand may terminate this Agreement including the Order Form, following ten (10) days’ prior written notice to Fourpost and Fourpost’s failure to cure within said ten (10) day period.
14.2 Within thirty (30) days following the Termination Date, Fourpost shall either (a) return all or any portion of the Merchandise which remain unsold, (b) for any Merchandise not returned, pay Brand pursuant to Article 4 herein, or (c) obtain the written consent of Brand to continue to hold the Merchandise.
14.3 Fourpost may, at any time during the term of this Lease, in its sole discretion and with or without cause, elect to terminate this Lease upon thirty (30) days advance written notice to Brand.
15. Marketing Requirements. Brand hereby authorizes Fourpost to use Brand's Trade Name, Logo and a brief description of Merchandise in connection with any media advertising or public relations communications, including but not limited to, marketing materials, Fourpost’s website and Fourposts social media channels.
16. Modification. No modification, amendment, supplement, or waiver to this Agreement shall be binding unless approval has been obtained in writing and signed by both parties.
17. Notices. All notices or other communications pursuant to this Agreement shall be in writing and shall be deemed valid and sufficient if delivered by U.S. Mail, certified, return receipt requested (in which case, they shall be deemed to have been received by Brand three (3) days after deposit in the U.S. Mail), or by recognized overnight courier service (in which case they shall be deemed delivered on the date of the courier service's proof of delivery), or by an electronic transmission. Time is of the essence with respect to Brand's performance of every provision of this Agreement.
18. Waiver. The waiver, express or implied, by any party of any right hereunder shall not constitute a waiver of any other right.
19. Assignment and Transferability. Neither party may assign its rights or delegate its obligations hereunder without the prior consent of the other party, and any such assignment or delegation, in the absence of such consent, shall be void and without effect.
20. Entire Agreement: Integration and Merger: Acceptance of Terms: This Agreement, the Order Form, and any agreements incorporated by reference herein, are integrated agreements, containing the entire agreements between the parties as to the matters addressed herein, and incorporating all prior discussions and agreements (the “Agreements”).
21. Jurisdiction and Governing Law. Any legal action or proceeding relating to this Agreement shall be instituted in the Judicial District in which the Center is located. Fourpost and Brand agree to submit to the jurisdiction of and agree that venue is proper in the aforesaid courts in any such legal action or proceeding. For USA: This Agreement shall be construed and enforced in accordance with the laws of New York. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in the county in which the Center is located.
Version Dated 07.01.2019