Exhibit 10.1
SUPPLY AGREEMENT
----------------
SUPPLY AGREEMENT ("Agreement"), dated as of November 1, 1999, by and
between ARTWORK AND BEYOND, INC., a Delaware corporation, with a principal place
of business located at 761 Coates Avenue, Holbrook, New York 11741 (the
"Corporation"), and ROSS GALLERIES, INC., a New York corporation, with a
principal place of business located at 761 Coates Avenue, Holbrook, New York
("Ross").
RECITALS
--------
The purpose of this agreement is to set out the terms on which the
Corporation will purchase prints of works of art, framed and unframed, including
lithographs, serigraphs, artagraphs and photographs ("Art"), exclusively from
Ross, and Ross will supply such Art to the Corporation exclusively for sale on
the Internet.
1. TERM
This Agreement shall commence as of November 1, 1999 and shall continue
for a period of seven years. Thereafter, this Agreement is terminable on180
days' written notice of termination being delivered by either party. If not so
terminated, then this Agreement shall continue until terminated by either party
on 180 days' written notice.
2. SUPPLY COMMITMENT
Ross will supply the Corporation's requirements for Art, and the
Corporation shall purchase all of the Corporation's requirements for Art from
Ross; provided, however, that the Corporation may purchase Art from a party
other than Ross (i) if such Art is not available through Ross or (ii) if the
same quality of Art offered by Ross is available from a third party at a lower
price. During the term of this Agreement, Ross shall not sell Art through the
Internet nor shall Ross supply framed Art to any party (other than the
Corporation) for sale directly or indirectly through the Internet. Ross shall
cooperate with the Corporation to develop an inventory management system under
which the Corporation will be able to determine Ross' inventory of Art available
for purchase by the Corporation's customers.
3. PRICE
A schedule of agreed prices of the Art is attached as Schedule I to
this Agreement. These prices can be varied by Ross upon ten days' written notice
to the Corporation. From time to time, Ross will deliver to the Corporation a
written supplement to Schedule I setting forth a list of additional available
works of Art and their prices and deleting works of Art that are no longer
available.
4. PAYMENT
A schedule of agreed payment terms is attached as Schedule II to this
Agreement. These terms can only be varied by written agreement between the
parties. The Corporation shall ensure that Ross receives payment on or before
the relevant due date specified in Schedule II.
5. CHANGE IN CIRCUMSTANCES
Both parties will consult with each other in the event of any
significant change in circumstances in their businesses affecting this
Agreement.
6. DELIVERY
Ross will use its best efforts to supply all orders "On Time and In
Full". Unless otherwise agreed between the Corporation and Ross, Ross shall
deliver all Art directly to the Corporation's customers f.o.b. Ross' warehouse
in accordance with the Corporation's instructions. The Corporation and Ross will
amend this Agreement to add the manner of shipment and payment terms for
shipping Art to the Corporation's customers.
7. CONFIDENTIALITY
Each party will take all proper steps to keep confidential all
Confidential Information (as defined in this Section 7) of the other which is
disclosed to or obtained by it pursuant to or as a result of this Agreement, and
will not divulge the same to any third party and will allow access to the same
to only such staff as may be involved in carrying out this agreement and then on
the basis that they will respect such Confidential Information, except to the
extent that any such Confidential Information becomes public through no fault of
that party. The parties acknowledge that Ross shall have the right to use
Confidential Information obtained from the Corporation to satisfy Ross'
obligations to the Corporation under this Agreement. Upon termination of this
Agreement each party will return to the other any written data (without
retaining copies thereof) provided for the purposes of this Agreement.
Notwithstanding the termination or expiration of this Agreement for whatever
reason the obligations and restriction in this clause shall be valid for a
period of five years from the date of signature hereof. "Confidential
Information" means all information disclosed by one party to the other in
writing or otherwise, provided that each such item of information would appear
to a reasonable person to be confidential or either contains or bears thereon,
in either case a prominent position, or is accompanied by a written statement
that the same is confidentia1 or proprietary.
8. FORCE MAJEURE
If either party is prevented from carrying out any of its obligations
under this Agreement by circumstances beyond its control (such circumstances
hereinafter being referred to as "Force Majeure") then for so long as such Force
Majeure continue neither party shall be liable to the other for a failure to
perform such obligations as a result of Force Majeure; provided, however, that
each party shall as soon as reasonably practicable on becoming aware of
circumstances constituting Force Majeure notify the other of the nature of the
Force Majeure and its likely duration. In the case of force majeure affecting
Ross, the Corporation may, if it so elects, employ another company, business or
person to perform any obligations so affected by Force Majeure until such Force
Majeure terminates and Ross is again able to satisfy its obligations under this
Agreement.
9. MISCELLANEOUS.
9.1 Notices. All notices, requests and demands to or upon the
respective parties to this Agreement shall be in writing and shall be deemed to
have been given or made when delivered by hand or sent by certified or
registered United States mail, return receipt requested, addressed to the
parties at their respective addresses set forth herein or to such other address
as a party shall designate by notice to the other parties in the manner provided
herein for giving notice.
9.2 Further Assurances. The parties hereto shall at any time make,
execute and deliver any and all such further and other agreements, documents,
and instruments as may be reasonably required for the purposes of giving full
force and effect to this Agreement and to the provisions hereof.
9.3 Entire Agreement: Amendments. This Agreement constitutes the
entire agreement of the parties hereto with respect to the matters contained
herein and supersedes all prior agreements of the parties, whether written or
oral. The provisions of this Agreement may from time to time be amended,
supplemented or otherwise modified or waived only by a written agreement signed
by all of the parties hereto.
9.4. Governing Law. This Agreement and the rights, and obligations
of the parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
9.5 Gender. Words of the masculine gender used in this Agreement
mean and include correlative words of the feminine and neuter genders and words
imparting the singular number mean and include the plural number and vice versa.
9.6. Waiver. Any waiver by any party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provisions of this
Agreement. The failure of a party to insist upon strict adherence to any terms
of this Agreement on one or more occasions shall not be considered a waiver of,
or deprive that party of the right thereafter to insist upon strict adherence
to, that term or any other term of this Agreement. Any waiver must be in
writing.
9.7 Severability. If any provision of this Agreement is invalid,
illegal, or unenforceable, the balance of this Agreement shall remain in effect,
and if any provision is inapplicable to any person or circumstances, it shall
nevertheless remain applicable to all other persons and circumstances.
9.8 Counterparts. This Agreement may be executed by one or more of
the parties hereto in any number of separate counterparts, and all such
counterparts taken together shall be deemed to constitute one and the same
instrument.
9.9 Headings. Any headings preceding the text of the several
sections hereof shall be solely for convenience of reference and shall not
constitute a part of this Agreement, nor shall they affect its meaning,
construction or effect.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by each of the parties hereto on the day and year first above written.
ARTWORK AND BEYOND, INC.
By: /s/ Howard Blum
--------------------------
Name: Howard Blum
Title: President
By: /s/ Jay Camina
--------------------------
Name: Jay Camina
Title: Vice President
ROSS GALLERIES, INC.
By: /s/ Jay Camina
--------------------------
Name: Jay Camina
Title: President