PRODUCTS AND ORDERING
- Products. FWP will make available FWP stationery products (“Products”) on www.fwpretailerportal.ca (the “FWP Website”), or in a catalogue available to Retailer on request, the Products available for purchase, together with the prices (exclusive of applicable taxes and shipping costs) for such Products. FWP may remove, discontinue, or add new Products from time to time.
- Retailer may, from time to time, request to purchase Products through FWP’s Website or request from FWP an order form which Retailer may complete and submit to FWP by email.
- FWP will accept or reject a request to purchase Products. Each request to purchase Products that FWP accepts in writing is an “Order”. FWP has no obligation to provide any Products which are not part of an Order.
- Minimum First Order. Retailer agrees that the minimum order amount for the first Order is $2000 (each, exclusive of applicable taxes and shipping costs). If Retailer’s first request to purchase Products does not meet this minimum order amount, FWP may reject such request to purchase Products or accept such request to purchase Products and invoice Retailer for the minimum first Order amount.
- If some Products in an Order are unavailable, FWP will so notify Retailer and permit Retailer to replace such Product(s) with similar Product(s), remove such Product from its Order, wait for the backordered Product to become available before the whole Order is shipped, or to have the unavailable Product(s) ship separately. Any additional shipping costs will be invoiced to and paid by the Retailer.
INVOICING AND PAYMENT
- With each Order, FWP will issue an invoice indicating the amounts payable by Retailer for such Order, including the fees for the Products, applicable taxes, and shipping costs.
- Payment is due upon FWP’s issuance of such invoice, unless otherwise indicated in such invoice. Unpaid amounts will incur interest at the lesser of 18% annually or the highest rate permitted by law.
- Retailer may pay by credit card or wire transfer, and, for shipments within Canada. Any fees associated with Retailer’s choice of payment mechanism will be paid by Retailer. Retailer will pay FWP in US dollars.
SHIPPING AND RISK
- Retailer will select the method of shipment of and the carrier for the Products. FWP may, in its sole discretion, without liability or penalty, make partial shipments of Products to Retailer. Each shipment constitutes a separate sale, and Retailer will pay for the units of Products shipped, whether the shipment is in whole or partial fulfillment of an Order.
- Unless expressly agreed by the Parties in writing otherwise, FWP will deliver the Products to the delivery point set out in the Order or otherwise agreed to by the Parties in writing (the “Delivery Point”), using its standard methods for packaging and shipping the Products. All prices are EXW to the Delivery Point, Incoterms 2020.
- FWP will issue Retailer a shipping confirmation once an Order is shipped, in part or in whole. Retailer acknowledges that FWP has no liability for shipments which are delivered earlier or later than the estimated delivery date.
- Title. Title to the Products, and all risks related to the Products, pass to Retailer at the time of delivery to Retailer’s designated carrier at the Delivery Point.
- Security Interest. To secure Retailer’s prompt and complete payment and performance of any and all present and future indebtedness, obligations, and liabilities of Retailer to FWP under this Agreement, Retailer hereby grants FWP a security interest, in priority to all other liens, security interests, and encumbrances, in all inventory of Products purchased under this Agreement for which FWP does not receive payment in full at the time of the Order, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, and all proceeds (including insurance proceeds) of the foregoing.
DUTIES OF RETAILER
- During the Term, the Retailer will, at its own expense:
- make its best efforts to advertise and promote the sale of the Products, and to make regular and sufficient contact concerning the Products with present and potential customers;
- maintain adequate staff with appropriate training sufficient for the performance of its obligations under this Agreement;
- satisfy all legal requirements for the delivery or import and sale of the Products, including product safety standards, packaging requirements as to warning and labelling, and all required registrations and approvals;
- sell the Products in accordance with this Agreement;
- promptly notify the FWP of the details of any claim or litigation affecting or relating to the Products;
- maintain the Products in a suitable environment for such Products, meaning out of direct heat, humidity, and sunlight, and kept in a humidity-controlled environment;
- provide quarterly written reports to the FWP on sales of the Products and any updates to Retailer contact information;
- subject to Section 8, include Products in Retailer’s promotional channels (including newsletters, social media, blogs, and podcasts) no less frequently than on a monthly basis;
- maintain commercial general liability insurance in the amount of $1,000,000.00 and provide proof of such insurance to FWP on FWP’s request; and
- withhold or collect all tax instalments required to be withheld or collected by it on time and remit to the appropriate taxing authorities all amounts payable to or deemed by any rule of law to be held for the benefit of that taxing authority, and provide to FWP on demand proof that all of those payments and remittances have been made.
- During the Term, the Retailer will, at its own expense:
SALE OF PRODUCTS
- Retailer will only sell Products directly to end-customers.
- Retailer will advertise and sell the Products to end-customers, as follows:
- at “Regular Price” or the equivalent, using 100% of the then-current MSRP for such Product as provided to Retailer by FWP from time; or
- as being “On Sale” or the equivalent using 85-99% of the then-current MSRP for such Product as provided to Retailer by FWP from time.
- Retailer will not place any/all Products on sale for more than 25 days per calendar year.
- Permission for special pricing for Products, including, but not limited to additional discounts, and inclusion in bundles must be requested by Retailer and will be determined on a case-by-case basis.
- Retailer will only sell Products through Retailer’s own branded website or physical store.
- Retailer will not sell Products on third-party marketplaces including, but not limited to Amazon, Ebay, Taobao.com, without the prior written express consent of FWP.
- Retailer will sell Products in their original packaging. Retailer will not alter, combine, or repackage Products with other Products or products.
RETURNS, EXCHANGES, RECALLS
- Within 7 days of Retailer’s receipt of Products, Retailer will inspect all Products and advise FWP of any discrepancies with the applicable Order or alleged factory defects in the Products or damage to the Products during shipping. Retailer will be deemed to have accepted the Products if it does not notify FWP in writing of any claim of discrepancy or defect within such time. If the Retailer modifies the Products, the Products are immediately ineligible for return or exchange.
- Return or exchange requests must be made in writing to FWP quoting the Order number and reasons for return. No returns or exchanges will be accepted without FWP’s prior approval and delivery instructions for shipping for such Products. No returns or exchanges will be available where Retailer has altered or modified the Products, misapplied the Products, not followed FWP’s instructions in respect to the Products or have subjected Products to unusual or non-recommended use or handling.
- In the event of a return, return shipping will be paid by Retailer. In the event of an exchange of Products, Retailer is responsible for all shipping fees, both for shipping Products back to FWP as well as the shipping of the new Product to the Retailer.
- Retailer will not sell any Products which FWP and Retailer agree are defective but are not required to be returned to FWP.
- All Products are non-refundable. In the event of a return pursuant to this Article 6, FWP will issue to Retailer a credit which Retailer may use towards a future Order.
- Retailer will be responsible for any refund, exchange or return requests made by end-customers.
- FWP reserves the right to recall Products from time to time. On receipt of notice from Retailer of a recall of any Products, Retailer will promptly cease to sell any recalled Products. Retailer will promptly cooperate with FWP’s instructions in the event of recall, including returning all recalled Products to FWP, at FWP’s cost.
MARKETING AND PROMOTION
- Retailer will market and sell the Products during the Term in accordance with the following:
- Retailer will consult regularly with FWP in connection with marketing strategies for the Products;
- Retailer will advertise and promote FWP and the Products only in a manner that will reflect favourably on FWP and the Products;
- Retailer will ensure that all advertising or promotional material complies with FWP’s brand guidelines, as FWP may provide from time to time;
- Retailer will submit to FWP for its approval all advertising and promotional materials for the Products and FWP which are not supplied by FWP in accordance with Section 7.3;
- if, in sole opinion of FWP, any advertising or promotional material used by Retailer is misleading or deceptive to the public or is of a quality, format, character or nature that is detrimental or otherwise injurious to FWP or the Products, Retailer will, upon written notice to it from FWP, immediately stop using and remove from circulation such advertising or promotional material;
- Retailer will prominently display in all advertisements and promotional material, a notice stating that it is an independent contractor selling the Products under license from FWP; and
- Retailer will report regularly to FWP on marketing conditions affecting marketing and sale of Products.
FWP Product Images.
- FWP may from time to time provide Retailer with access to an online FWP portal containing FWP-approved Product images (“Product Images”).
- Subject to the terms of this Agreement, FWP grants Retailer a limited right to display Product Images in connection with the promotion and sale of the Products during the Term.
- Retailer will not modify Product Images without the prior written consent of FWP.
Use of FWP Marks.
- Retailer may from time to time seek approval from FWP to develop advertising and promotional materials using FWP’s FERRIS WHEEL PRESS word mark and logo. At FWP’s sole discretion, FWP may authorize use of its word mark, logo, or both (the “Marks”) to Retailer in accordance with this Section 7.3.
- Subject to the terms of this Agreement, FWP grants Retailer a limited right to use the Marks for the sole purpose of promoting and selling the Products as follows:
- Retailer will provide FWP, for FWP’s prior written approval, a written proposal setting out the nature of the proposed promotional or advertising material using the Marks;
- following FWP’s written approval of a proposal received pursuant to Section 7.3(b)(i), Retailer may create promotional and advertising material using the Marks for FWP’s prior written authorization to use in accordance with such proposal; and
- following FWP’s written authorization to use specific promotional and advertising material using the Marks, Retailer may use such materials only in connection with the promotion and sale of the Products during the Term and in accordance with the proposal pursuant to which such materials were created.
- Any promotional or advertising materials created pursuant to this Section 7.3 will belong to FWP. Retailer assigns to FWP all intellectual property rights in such materials to FWP. Retailer will cause its personnel involved in the creation of such materials to execute an express and irrevocable waiver of all moral rights which Retailer or its personnel may have, as authors, in such materials. Retailer will execute all applications, agreements or other instruments that may be reasonably requested by FWP for the purpose of enabling Retailer to comply with this Section 7.3.
- The Parties agree that:
- FWP owns all right, title and interest in and to the Marks and all goodwill associated with the Marks;
- Retailer will not use the Marks in any manner that would be detrimental to or inconsistent with the good name, goodwill, reputation or image of FWP;
- before and after the termination of this Agreement, Retailer will not directly or indirectly, apply to register or assist any other person in applying to register a trademark which consists of or contains “FWP”, “Ferris Wheel Press”, or similar terms, which consists of or contains design features similar to those in the Ferris Wheel Press logo;
- before and after the termination of this Agreement, Retailer will not, directly or indirectly, register or assist any other person in registering a domain name which consists of or contains “FWP”, “Ferris Wheel Press”, or similar terms;
- before and after the termination of this Agreement, Retailer will not, directly or indirectly, dispute or contest the validity or ownership of the Marks or assist any other person in disputing or contesting the validity or ownership of the Marks;
- Retailer will execute all applications, agreements or other instruments that may be reasonably requested by FWP for the purpose of protecting the interests and rights of FWP in the Marks and Product Images;
- Retailer will notify FWP promptly of any suspected unauthorized use, infringement or passing off, or any pending or threatened litigation or other proceeding, concerning the Marks which may come to its attention;
- if FWP prosecutes, defends or conducts suits involving the Marks including actions involving infringement or passing off, or undertakes any actions or proceedings reasonably necessary for the protection of the Marks, at FWP’s request, Retailer will provide, at the cost of FWP, every assistance to FWP in taking any of those actions.
- Publicity. Except in accordance with this Section 7.5, Retailer will not advertise or issue any information, publication, document, or article (including photographs or videos) for publication or media releases or any other publicity, or communicate directly with consumers on social media, relating to the Products, FWP, or this Agreement without the prior written approval by FWP. Retailer will refer to FWP any media inquiries concerning the Products, FWP, or this Agreement.
- Nothing in this Agreement will be deemed in any way to constitute a transfer or assignment of the Marks or Product Images by FWP to Retailer, or to give Retailer any right, title or interest in or to the Marks or Product Images, and Retailer acknowledges that the Marks and Product Images and all goodwill associated with the Marks and Product Images are and will remain the exclusive property of FWP.
- Retailer will market and sell the Products during the Term in accordance with the following:
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF RETAILER
- Retailer represents, warrants, and covenants to FWP that:
- it is an entity duly established and existing under the laws of the jurisdiction of its establishment, and has all necessary power and capacity to enter into and perform its obligations under this Agreement;
- it has duly executed and delivered this Agreement and this Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms;
- the execution and delivery by it of this Agreement, and the performance of its obligations under this Agreement, do and will not breach or result in a default under any of its other obligations or agreements, any applicable law to which it is subject, or any contract or covenant by which it is bound;
- there is no action, litigation or other proceeding in progress, pending or, to its knowledge, threatened against it which might result in a material adverse change in its financial condition or which would materially adversely affect its ability to perform its obligations under this Agreement; and
- it will perform its obligations in good faith, exercising reasonable skill, care, and diligence, all in accordance with this Agreement and applicable law.
- Retailer represents, warrants, and covenants to FWP that:
- FWP may from time to time disclose to Retailer information of a confidential or proprietary nature in connection with this Agreement (the “Confidential Information”). Confidential Information includes this Agreement, price lists, marketing strategies, FWP’s terms and conditions for Orders, and any and all data collected from or through FWP’s social media channels.
- Except for personally identifiable information, which will always remain Confidential Information, Confidential Information does not include information which (a) was available to or known by the public before the Effective Date, (b) was or is obtained from a source other than FWP or any person bound by a duty of confidentiality to FWP, or (c) is or becomes available to or known by the public other than as a result of improper disclosure by Retailer or any of its representatives.
- Retailer will not use or disclose the Confidential Information for any purpose other than to exercise or perform its rights and obligations under this Agreement.
- Retailer agrees to safeguard the Confidential Information from unauthorized use and disclosure, using efforts that, at a minimum, are no less than either (a) the degree of care that Retailer employs for protecting the confidentiality of its own information that it does not wish to disclose, and (b) a reasonable degree of care. Upon the termination of the Agreement, or earlier if so requested by FWP, Retailer will return or destroy all copies of the Confidential Information.
- If Retailer is required by law to disclose any of the Confidential Information, Retailer will provide FWP with prompt written notice to permit FWP to seek an appropriate protective order or agency decision or to waive compliance by Retailer with the provisions of this Article 9.
- This Agreement is effective as of the Effective Date and will continue in accordance with its terms and conditions until terminated in accordance with this Agreement (the “Term”).
- FWP may terminate this Agreement or an Order, in whole or in part, on notice to Retailer. FWP may also elect to suspend or delay shipment of an Order, in whole or in part, on notice to Retailer. FWP’s termination of an Order will not terminate this Agreement or any other Order. FWP’s termination of this Agreement will terminate all then-outstanding Orders.
- Retailer may terminate an Order on notice to Retailer prior to such Order being shipped.
- On termination, FWP may require Retailer to return to FWP all Products then in Retailer’s possession or control or may permit Retailer to continue to sell such Products. If FWP permits Retailer to continue to sell such Products, Retailer will continue to comply with Section 7 of this Agreement. At FWP’s request, Retailer will destroy or deliver to FWP, at FWP’s option, any advertising or promotional materials bearing the Marks.
WARRANTIES, INDEMNITY, LIMITATION OF LIABILITY
- FWP makes no warranties or conditions, expressed or implied, arising from statute, course of dealing, usage of trade or otherwise, including any implied warranty or condition of merchantability, quality or fitness for a particular purpose in respect of the Products or in connection with this Agreement.
- Retailer agrees to indemnify, defend, and hold harmless FWP and against, any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including legal fees and court costs) by reason of or arising out of Retailer’s breach of this Agreement, negligence, fraud, or willful misconduct.
- Except in respect of Retailer’s breaches of Sections 8 and 10, each Party’s maximum aggregate liability to the other under this Agreement is the amount paid or payable by Retailer to FWP for Products purchased under this Agreement, and in no event will a Party be liable to the other for any indirect, special, incidental, consequential, punitive or exemplary damages, including loss of data, loss of goodwill, loss of revenue or loss of profits, regardless of the form of action, whether in contract or in tort, including negligence, even if a Party has been advised of the possibility of such damages.
- Except in respect of a Party’s obligation to pay, no Party will be deemed to be in default or in breach of this Agreement if its delay in meeting, or its failure or inability to meet, any of its obligations under this Agreement is caused by or arises from any event which is beyond of its reasonable control, including acts of God; laws, orders, rules, regulations, acts and restraints of armies, militaries, enemies, terrorists, and governmental authorities; war, revolutions, mobilization, political and civil unrest or insurrection, embargos, disturbances and riots; epidemics, outbreak of disease, and quarantine; inclement weather including floods, storms, tornados, hurricanes, tsunamis, earthquakes, volcanic eruptions and landslides; explosions and fire; labour issues including disputes, walkouts, strikes, slowdowns, lockouts and picketing; damage, destruction or expropriation of property; delays or defaults in or caused by, and shortages of, power, water, transportation and common carriers, facilities, labour, subcontractors, goods, materials and supplies; breakdowns in or the loss of production; the non-availability of relevant markets and the state of the marketplace.
- Governing Law. This Agreement is governed by the laws of the Province of Ontario and the federal laws of Canada applicable herein, without regard to conflict of law principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- If the Parties are unable to settle a dispute arising from this Agreement, then formal written notice will be provided to the Parties’ respective representatives. In the event such representatives are not able to resolve the dispute within ten business days of the receipt of such notice, then such dispute will be escalated to the Parties’ respective senior representatives, who will have an additional ten business days to resolve such dispute.
- In the event the dispute remains unresolved after the expiry of such period, then either Party may request that the matter proceed to arbitration before a single arbitrator to be chosen jointly by the Parties in accordance with the laws of Ontario then in effect.
- In the event that the Parties are unable to agree to an arbitrator within ten business days of the earliest request to arbitrate the dispute in question, either Party may apply to a court of competent jurisdiction in Toronto, Ontario to name an arbitrator. The decision of the arbitrator, which may include an award of costs in the matter, will be final and binding upon the Parties. The location of the arbitration will be Toronto, Ontario, and the language of arbitration will be English. The Arbitration Rules of the ADR Institute of Canada, Inc. will apply.
- Interim Relief. Notwithstanding the provisions of Section 13.2, each Party will retain the right and nothing will prevent either Party from seeking immediate injunctive relief if, in its business judgment, such relief is necessary to protect its interests prior to utilizing or completing the dispute resolution processes described in Section 13.2.
- Assignment. Retailer may not assign or otherwise transfer this Agreement, in whole or in part, without the prior written consent of FWP. To the extent FWP consents to Retailer’s assignment of this Agreement, in whole or in part, FWP will at all times remain liable for the acts or omissions of the assignee or transferee, as applicable.
- Relationship of Parties. This Agreement will not be construed to and does not create a relationship of partnership, employment, or joint venture between the Parties. Except as expressly set out in this Agreement, neither Party has the authority to bind, or execute documents on behalf of the other Party without the other Party’s prior written consent.
- Currency. All amounts referred to in this Agreement are in American dollars, except otherwise expressly stated.
- Severability. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is deemed to be separate, severable, and distinct.
- Waiver. The waiver by either Party to this Agreement or any breach of any term of this Agreement will not prevent the subsequent enforcement of that term and will not be deemed a waiver of any subsequent breach.
- Survival. The following sections will survive the expiration or termination of this Agreement, regardless of the reasons for its expiration or termination, in addition to any other provision which by law or by its nature should survive: Sections 7, 9, 10, 11, and 13.
- Amendments. This Agreement may only be amended by written agreement duly executed by authorized representatives of the Parties.
- Entire Agreement. This Agreement and all Orders accepted by FWP set out the complete understanding of the Parties regarding the subject matter hereof, and neither Party will have any obligation to the other Party except as set out herein explicitly.
- Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which will constitute one and the same Agreement. A document signed and transmitted electronically will be treated as an original and will have the same binding effect as an original signature on an original document.