SKY HIGH SUPPLY,INC. CONSIGNMENT AGREEMENT
NOW, THEREFORE, in consideration of the foregoing promises, the mutual covenants contained herein and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Consignment Stock; Consignment Period.
(a) Within ten (10) calendar days after the Effective Date, Consignor will place at Consignee's location on a consignment basis, such quantities and types of telecommunication items (the "Products".) Consignor shall provide and deliver all Products to Consignee's location at its sole expense, FOB Consignee. By entering into this Agreement, Consignor grants Consignee the right to use the brand's logos, likeness, product images and other reasonable intellectual property on the Consignee's website and any marketing materials provided by Consignee.
(b) The consignment period for any Product in the Consigned Inventory shall commence on the date the Product is accepted by Consignee and shall end one hundred and eighty (180) days thereafter ("Consignment Period"). The Consignment Period may be extended upon mutual written agreement of both parties.
Section 2. Condition Of Consigned Inventory; Acceptance Of Consigned Inventory.
(a) Consignee will only accept Products that are authentic, clean, and in excellent condition. Any defects should be brought to Consignee's attention upon delivery of the Products. Consignee will document condition of all Products in a report and such report will be made available to Consignee upon request. Consignor agrees that the condition of the Product may affect the value of the Product.
(b) Upon receipt of Consigned Inventory, Consignee shall evaluate each Product in the Consigned Inventory to determine its quality and authenticity. Any Product that fails to meet Consignee's quality and authenticity standards will be returned to Consignor, at Consignor's expense.
Section 3. Right To Sell Consigned Inventory.
Consignor hereby grants to Consignee the right to sell Consigned Inventory on behalf of Consignor pursuant to this Agreement. During the Consignment Period, Consignee shall use commercially reasonable efforts to make available for purchase the Consigned Inventory on Consignee's website located at www.skyhigh-supply.com. Consignee reserves the right to include Consigned Inventory as part of the sales and promotions that Consignee offers to its customers.
Section 4. Pricing; Payment.
(a) Consignor's who are vendors of Consignee shall provide Consignee with a merchandising pricing sheet that lists the minimum sale price ("Floor Price") for each Product in the Consigned Inventory. Consignor's who are customers of Consignee shall receive a Price for each Product in the Consigned Inventory via email within three (3) days after the Consigned Inventory is placed at Consignor's location pursuant to Section 1 of this Agreement. Consignee agrees to maintain the Price, and will accept nothing less than such Price for any Product sold, unless otherwise agreed upon in writing by the parties. Notwithstanding the foregoing, Consignee reserves the right, in its sole discretion, to adjust the sale price of any Product in the Consigned Inventory.
(b) Upon sale of Product(s) to Consignee's customers, Consignee shall remit to Consignor the Price for such Product ("Consignor Share") and retain the difference between the actual sale price and the Price for such Product as set forth herein. Upon expiration of time period set forth in Consignee's return policy located at www.skyhigh-supply.com, on the fifteenth (15th) day of the following month, Consignee shall pay Consignor, Consignor Share from all sales of Consigned Inventory made during the immediately preceding month. All such payments shall be made by a method mutually agreeable to the parties. Notwithstanding the foregoing, in no event shall Consignee be obligated to make any such payments to Consignor unless and until Consignee receives the proceeds from any such sale.
Section 5. Title; Risk Of Loss.
All Consigned Inventory shall remain the property of Consignor until Consignee sell's it to Consignee's customer. Consignee shall acquire no right, title or interest in the Consigned Inventory other than the right to possess the Consigned Inventory as a Consignee and sell the Consigned Inventory on behalf of Consignor pursuant to the terms of this Agreement. Consignee accepts all risk of loss and full responsibility for the condition of, any shortages in and the payment for all Consigned Inventory which may be lost, stolen, damaged or destroyed while in its possession or control. Consignee shall use commercially reasonable efforts to (i) identify all Consigned Inventory as being the property of Consignor, (ii) separate Consigned Inventory from other property of Consignee, and (iii) maintain complete and accurate records concerning the Consigned Inventory.
Section 6. Return Of Consigned Inventory.
At any time after the termination of the Consignment Period, Consignor may, by written notice to Consignee, request return of Products from the Consigned Inventory. All such returns will at Consignor's expense.
Section 7. Term; Termination.
This Agreement will be effective from the time Consignor clicks "I Agree" ("Effective Date") and shall continue in full force and effect thereafter unless sooner terminated as provided for herein. Either party may terminate this Agreement, at any time, without cause, upon fifteen (15) days written notice to the other party.
Section 8. Limitation Of Liability.
(a) NEITHER PARTY, OR THEIR RESPECITVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, OR FOR ANY LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS, OR LOSS OF GOODWILL OR REPUTATION, WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THE PRODUCTS, THE USE THEREOF, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
(b) IN NO EVENT SHALL CONSIGNEE BE LIABLE, IN THE AGGREGATE, FOR ANY DIRECT DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY IN LAW OR IN EQUITY, IN EXCESS OF THE ACTUAL SALE PRICE RECEIVED BY CONSIGNEE FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM.
(c) To the extent the exclusions and limitations of liability set forth in this Section is not permitted under applicable law, Consignee's liability in such case will be limited to the greatest extent permitted by law.
Section 9. Indemnification.
Consignor hereby agrees to indemnify, defend and hold harmless Consignee against any and all claims, demands, actions, losses, expenses, damages, liabilities, costs (including, without limitation, interest, penalties and reasonable attorneys' fees) and judgments arising from a third party claim against Consignee arising from (i) Consignee's sale of the Product, or (ii) Consignor's breach of the warranty set forth in Section 8.
Section 10. Independent Contractor.
Consignor and all of Consignor's employees, agents, and contracted staff (collectively "Consignor's Staff") while performing any services pursuant to this Agreement are independent contractors and not employees of Consignee. Consignor's Staff are not eligible for and may not participate in any Consignee health, welfare, pension, disability, insurance, leave or any other benefit of employment plan or program. Consignee will not provide worker's compensation insurance for any Consignor Staff or withhold any taxes or other required withholding to any pay to any Consignor Staff; Consignor is solely responsible for these obligations, if any, to Consignor's Staff.
Section 11. Insurance.
Consignee shall procure, at its own cost and expense, insurance coverage in amounts as may be expected of a diligent and professional company in the industry, taking properly into account its obligations and liabilities under this Agreement, and shall name Consignor as an additional insured for general liability coverage under this Agreement. Such insurance coverage shall be maintained during the Term of this Agreement. All policies shall contain a minimum of thirty (30) days' notice of cancellation or material change, which notice shall include Consignor. Consignee shall furnish certificates of insurance upon reasonable request by Consignor and provide renewal certificates at least thirty (30) days' prior to the expiration of the policy.
CONSIGNOR ACKNOWLEDGES THAT CONSIGNOR HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. .