***This is a Sample Agreement meant to be used as a starting point only. The Support Center cannot give legal advice, so please be sure to consult your attorney before entering into an agreement with your client***
FORMS MANAGEMENT, PROMOTIONAL PRODUCTS AND ECOMMERCE CONTRACT
THIS CONTRACT entered into as of ______day of ______, 2017.
BETWEEN:
CLIENT NAME, a company having its executive offices in the City of City, State/Province.
(Hereinafter referred to as "Customer")
AND
YOUR LEGAL NAME (Proforma NAME), a company having its head office in the City of State, Province and trading under the business style of "Proforma NAME"
(Hereinafter referred to as "Proforma")
WHEREAS:
This Print and Promotional eCommerce Contract (“Contract”) is made and entered into between Proforma ( “Proforma”), and ______(the “Customer”).
RECITALS
This Contract sets forth the basic terms and conditions pursuant to which Proforma shall sell and Customer shall purchase the Products and Services in Proforma’s Print and Promotional Program.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Contract, Proforma and Customer hereby agree as follows:
1. Effective Date. The effective date of this Contract is ______, 2017.
2. Term of Contract. This Contract shall be in effect for an initial period of (3) years. It shall be renewed for an unlimited number of terms each of one year unless either party gives the other 90 days’ written notice. The Contract may be terminated without cause by either Proforma or Customer upon 90 days’ prior written notice to the other party.
This Contract shall automatically terminate if Customer becomes the subject of any proceeding relating to bankruptcy or the relief of debtors. Either Proforma or Customer may terminate this Contract upon the material breach of any terms or conditions of this Contract by the other party and failure to cure the breach within 30 days of the receipt of written notice of the breach from the non-breaching party (which notice will set forth all particulars of the alleged default) (or if such breach is not reasonably susceptible to cure within such thirty (30) day period, then if the breaching party does not commence cure within such thirty (30) day period and thereafter diligently pursue cure). The terms and conditions contained in this Contract shall continue to apply to any Products and Services covered by any Purchase Orders which were issued by Customer and accepted by Proforma prior to the date this Contract was terminated.
3. Products and Services. The term “Products” shall mean all goods including, but not limited to, the printed business forms, business cards and stationery, promotional merchandise, apparel, gifts and custom-manufactured merchandise. The term “Services” shall mean all including, but not limited to, storage services in Proforma’s warehouses (the “Storage Services”), fulfillment and distribution. The Products will be manufactured in accordance with Proforma’s general specifications for the Products and any special specifications which have been agreed upon between Proforma and Customer. Proforma’s general specifications for the Products are available upon Customer’s request.
4. Additional Services. Proforma shall furnish Customer during the term of this Contract, without charge, (i) recommendations on forms and acquisition control functions, (ii) merchandise analysis and productivity analysis with the purpose of increased efficiency, innovation and cost reduction, and (iii) recommendations on inventory control functions.
5. eCommerce. The material which Proforma will make available to Customer staff and departments will be set out in a custom eCommerce solution provided by Proforma. Development costs (if applicable) will be quoted to and approved by Customer before beginning the work. All materials in such eCommerce solution must be pre-approved by Customer prior to release to Customer staff and departments. Customer will determine in its sole discretion the material to be included in the on line catalog. Proforma will add images of products ordered ordered by staff members not already on the store so others can see new ideas in promotional products. Should Customer determine in its discretion that any part of the materials or catalog does not meet its standards, it may work with Proforma to make reasonable changes to the materials or the form of the online company store to conform to its specifications. If coding is required for changes, Proforma will make the cost known to Customer prior to proceeding.
6. Stock Availability. Proforma will work with its vendors to ensure stock availability to cover reasonable consumption expectations. Unless otherwise previously agreed to by both parties, Customer will own the inventory for all in-stock merchandise. If an order item is in stock, Proforma will ship it within forty-eight hours after the order and payment is received from an individual or department, provided this transaction occurs during normal business hours. For orders received and paid for over a holiday or weekend, in-stock merchandise will ship within 48 hours of business hours resuming after said holiday or weekend.
If an ordered item is not in stock, Proforma will ensure that the item is available within a reasonable time period after the order is received. Proforma undertakes to have reasonable amounts of the materials contained in the catalog in stock so as to avoid unnecessary delays. The inventory levels will be determined by joint agreement between Customer and Proforma. Proforma also agrees to provide Customer with an inventory report in a form acceptable to Customer acting reasonably.
In the event this contract is terminated for any reason, Proforma will immediately invoice any and all product and storage services to Customer for branded Products containing or bearing the Customer’s logo; and Customer agrees to pay such invoice upon receipt. Customer should also arrange to move any such inventory to another storage location of their choice and shall pay any and all cost associated with moving the stock inventory. Storage services will continue to be invoiced to Customer until such time their inventories have been removed from Proforma’s warehouse facility should any such inventories exist.
7. Customer Support. General: Proforma shall accept orders for Merchandise from Customer employees via telephone, email and through its online company store or stores. Proforma shall provide accessibility to customer service assistance using email contact, telephone numbers and fax numbers and shall timely respond to and satisfy reasonable Customer inquiries and concerns within a maximum timeframe of twenty-four (24) hours during normal business days. Customer service shall be provided from 8:00 am until 5:00 pm, ET, during Monday through Friday of each week, holidays excepted. Proforma will respond to all customer concerns placed during normal business hours (8 am – 5 pm ET) on the same business day. Proforma will respond to all customer concerns placed after normal business hours the following business day.
(i) Online Company Store(s). At a previously-agreed upon expense (if applicable), Proforma shall design, establish, maintain and operate one or more division specific online company stores (individually referred to herein as the “Website” and collectively referred to the "Websites") throughout the Term of this Agreement.
(a) Website Availability. The Websites shall be made available to Customer employees twenty-four (24) hours per day, seven (7) days per week. In the event that there are technical issues restricting website availability, Proforma shall promptly provide a published alternative off-line ordering option.
(b) Website Content. The Websites shall display Merchandise pertinent to each of the applicable locations or subsidiaries of Customer that is participating in the programs offered hereunder ("Participating Divisions"), and shall itemize, on a per item basis, the price and availability of size, design and colour.
(c) Website Updates. The Websites shall be updated on a timetable agreed upon by Customer and Proforma.
(d) Website Security. Proforma shall provide that the Websites are secure and undertake commercially reasonable best efforts necessary to protect the identity of Customer employees and the integrity of Customer computer systems and software.
(ii) Training & Support. Upon implementation of the Websites, Proforma shall supply training and support to Customer employees if required. The timeline and platform of this training will be mutually agreed to by both parties. Further, Proforma shall supply ongoing support and maintenance of the Websites and its marketing efforts throughout the Term of this Agreement, including a 12-month marketing plan which will be developed both by Proforma and Customer.
(iii) Main Contact. OWNER NAME, or another individual pre-approved by Customer, will be Customer’s main point of contact for daily and operational questions. OWNER NAME will be Customer’s National Account Manager and available as needed. OWNER NAME will also be the main contact for any marketing plans and initiatives, including the 12-month marketing plan to educate users about Proforma. OWNER NAME is also the contact for any issue that requires immediate escalation. Our goal is to deliver excellence in our service, and that includes responding quickly to issues requiring escalation.
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(iv). Marketing the Program. Proforma, in conjunction with Customer, will promote the online website and overall partnership/program via a customized 12-month marketing plan as referenced above. Customer will provide necessary resources and internal support to assist Proforma in marketing the store to end users.
(v). Regular Business Reviews. Proforma will conduct quarterly business reviews with Customer to ensure Customer’s satisfaction with Proforma’s service. These business reviews can be more frequent at the discretion of Customer and will include evaluation of program performance plus opportunities to further partner in the coming quarter. OWNER NAME will provide an agenda ahead of these meetings for Customer’s input to ensure maximum benefit. Customer agrees that necessary internal stakeholders will be available for these meetings.
(iv). Returns. Proforma will take back orders that do not meet Customer requirements within 30 days of purchase's arrival. Returns or exchanges will be handled immediately by Proforma’s Quality Assurance department. There are no returns on discounted or closeout items. Proforma will not accept returns on customized, decorated or washed merchandise unless defective.
8. Purchase Orders. The Customer shall order Products and Services by issuing to Proforma a signed Purchase Order or Reorder Notice (the “Purchase Orders”) which shall be governed by the specific terms and conditions contained in this Contract. The Purchase Orders shall specify the specifications, quantity, description, prices and delivery destination for the Products. In the event any discrepancy or conflict exists between any provision in any Purchase Order and any provision in this Contract, the provision contained in this Contract shall be controlling.
9. Prices. The prices for the Products and Services do not include the amount of shipping costs or of any sales, use, excise or other taxes. If Customer makes any changes in the Products after the Products have been scheduled for production or after the proofs have been approved by Proforma, Customer shall pay Proforma for any additional costs incurred by Proforma resulting from the changes in the Products.
The prices for the Storage Services shall be determined by Proforma based upon Proforma’s understanding of the volume, activity levels and nature of the Storage Services to be provided by Proforma. The prices for these Storage Services shall hereinafter be referred to sometimes as the “Storage Service Fees”. The Storage Service Fees and shipping charges shall be invoiced when the Products are reshipped to Customer. The Products Prices, Service Fees and Storage Service Fees shall hereinafter be referred to collectively as the “Purchase Prices and Fees”.
10. Taxes. Customer shall pay all taxes, including, but not limited to, sales, excise, use and ad valorem taxes which arise from the sale, use or storage of the Products or the furnishing of the Services and for which Proforma is responsible to collect unless Customer has furnished Proforma with an applicable exemption certificate.
11. Terms of Payment. Customer shall pay Proforma the Purchase Prices and Fees upon receipt of Proforma’s invoice. Our standard payment terms are Net 30. For those staff participants placing credit card orders, the payment card will be required at the time the order is placed at the online store.
12. Rebate. In addition to the foregoing pricing structure, Proforma shall provide Customer with rebates for each calendar year, or portion thereof, during the Term based on gross annual purchases of Merchandise.
(i) Calculation of Rebate. The calculation of the rebate on an annual basis shall be set forth as follows.
(a) Two percent (2%) if gross annual purchases exceeds $250,000.00;
(b) Three percent (3%) if gross annual purchases exceeds $500,000.00.
(ii) Calculation of Rebates. Purchases for purposes of calculating the rebate shall include the sale of all Merchandise by Proforma to Customer. Purchases shall be calculated prior to invoicing for sales taxes, if any, and applicable freight charges (the “Purchases Subject to Rebate”). Proforma shall accumulate Purchases Subject to Rebate for each contract year, or portion thereof, during the Term of this Agreement and compare the result with the foregoing rebate schedule. Purchases Subject to Rebate shall be applied to the applicable rebate percentage.
(iii) Payment of Rebates. Rebates shall be calculated and disbursed on an quarterly basis. The calculation period shall begin on the 1st day of contract year of the Term of this Agreement and shall end on the last day of the third month. Proforma shall disburse the resulting rebate to Customer on or before the fifteenth (15th) day following month during the Term.
12. Shipping Terms. Customer shall pay all shipping charges for the Products from the manufacturing plant or warehouse (“Shipping Point”). Proforma shall ship the Products by the least expensive manner unless otherwise specified in writing by Customer. Customer shall pay all special freight costs for partial shipments, air express shipments or other expedited shipments (when applicable) made at Customer’s request.
13. Delivery Terms. The Products shall be delivered F.O.B. Shipping Point. All incidents of ownership to the Products including, but not limited to, title to the Products and risk of loss shall immediately pass to Customer upon delivery of the Products to the carrier at the Shipping Point; provided, however, Proforma shall retain the risk of loss for any Products which Proforma has stored for Customer at a Proforma warehouse until such time as the Products are delivered to a carrier for shipment to Customer. Notwithstanding the foregoing, however, Proforma’s liability is expressly limited to correction by repair or replacement. Proforma shall not be liable for any damages which Customer incurs by delay in delivery of the Products. If Customer refuses or fails to accept delivery of the Products, Customer shall pay Proforma the entire Products Prices for the Products. Proforma shall have no obligation to either store for Customer’s benefit or resell any Products which Customer has ordered in the event Customer refuses or fails to accept delivery of the Products.