TERMS AND CONDITIONS
The undersigned, as an authorized signatory for the Retailer, hereby certifies on the Retailer’s behalf that the information provided on this application is true. Endeavor Design Inc. (Endeavor) is hereby authorized to obtain credit information on the Retailer from time to time from any source. Endeavor extends credit as a privilege and has the right to revoke credit and change terms. Upon Endeavor’s approval of the Retailer’s Credit and execution of this Credit Application and Sales Agreement, the parties shall be bound by these terms and the terms and conditions set out in Schedule A attached hereto.
RETAIL SALES AGREEMENT
THIS AGREEMENT (this “Agreement”) is made between the Retailer and Endeavor Design Inc. (“Endeavor”), effective as at the date of execution by Endeavor.
1. Authorization: Subject to the provisions herein and for the duration of this Agreement, Endeavor hereby authorizes and grants the Retailer the non-exclusive right to sell products distributed by Endeavor (the “Products”) to customers at approved retail locations (the “Retail Locations”) set out in the Credit Application to which this Schedule of terms and conditions is attached (the “Credit Application”).
2. Ordering (a) the prices of the Products are subject to change without notice; (b) all orders shall be subject to acceptance or rejection by Endeavor; and (c) Endeavor reserves the right to cancel any of the Retailer’s orders if the Retailer has failed to make payment on its account with Endeavor.
3. Order Cancellation: Any request by the Retailer to cancel all or part of any order must be submitted in writing to Endeavor and such request is subject to the approval of Endeavor, which must be issued in writing by an authorized management member of Endeavor. Special orders and orders exceeding a value of $20,000 are not subject to cancellation.
4. Cancel Date: The Retailer acknowledges that Endeavor’s cancellation date for an order, as written on the order form, shall govern unless a request has been made by the Retailer in writing and authorized by Endeavor.
5. Sales, Marketing & Distribution: In selling the Products, the Retailer hereby represents, warrants, covenants and agrees as follows:
(a) to pay for any and all of the Retailer’s orders in a timely manner;
(b) not to sell, divert, distribute, or otherwise dispose of or offer for resale any Products outside the Retail Locations without the prior written consent of Endeavor, which may be unreasonably withheld;
(c) not to sell or solicit orders for Products from customers outside the Retail Locations, including using means such as mail, door to door sales, phone, fax, e-mail or internet without the prior written consent of Endeavor which may be unreasonably withheld;
(d) not to use any advertising or promotional material in respect of the Products without the prior written consent of Endeavor, which may be unreasonably withheld;
(e) any and all promotional and marketing materials and displays provided to the Retailer, unless otherwise purchased, remain the property of Endeavor and may be removed by Endeavor without reason. The Retailer agrees to pay to Endeavor any costs associated with the removal and any costs incurred for repairing such materials and displays if the same was damaged during the Retailer’s possession;
(f) the Retailer, its representatives and employees shall conduct all of its business activities relating to the sale or distribution of the Products in a lawful manner, consistent with the highest standards of fair trade, fair competition and business ethics;
(g) the Retailer releases Endeavor from liability to the Retailer and its customers arising out of or by virtue of the failure of Endeavor to fill accepted orders, or for its delay in filling accepted orders of the Retailer;
(h) Endeavor shall have the exclusive right to determine, from time to time, the Products which will be available to the Retailer, and may at any time, without notice to the Retailer, add, modify or discontinue any or all of the Products; and
(i) the Retailer will make all reasonable efforts to cooperate with Endeavor on the timing and planning of promotions of the Products by the Retailer, including sales and discount promotions, with the intent of maximizing sales revenue of, and protecting the market position of, the Products.
6. Shipping: Endeavor will be using its primary shipping company unless another courier is requested. All freight charges are the responsibility of the Retailer, and all freight charges will be reflected on the invoice. Endeavor may choose to accommodate the Retailer’s request to use a shipping company other than the one regularly used by Endeavor provided that the Retailer shall pay all expenses incurred as a result. Shipments that are held by Endeavor, upon request of the Retailer, will be held for up to two weeks from the order date without penalty, beyond which a surcharge may be imposed by Endeavor. NRI Distribution is responsible for all logistics for Endeavor.
7. Refused orders: After more than one failed attempt by the carrier to deliver to the Retailer and the return of Retailer’s ordered Product to Endeavor, Endeavor will charge the Retailer for all its shipping costs to and from the Retailer. In the event that such Product is restocked, a handling fee of twenty percent (20%) of the total invoice amount will be charged to the Retailer’s account. In such event, the Retailer’s account will be classified as a cash on delivery, cash pre-pay, or P.D.C. account.
8. Title to Products: Title to the ownership of all the Products shall remain with Endeavor at the Retailer’s risk until all amounts due to Endeavor from the Retailer from time to time are paid in full and all terms of this Agreement are performed, at which time absolute title shall pass to the Retailer.
9. Errors in Shipment: All errors in any shipped order must be reported in writing by the Retailer to Endeavor within two (2) business days after the receipt of goods; otherwise, the Retailer shall be deemed to have accepted the applicable shipment as proper fulfillment of the applicable purchase order.
10. Returns: The Retailer will not be permitted to return any Products unless: (a) there has been a shipping error made by Endeavor and such Products are non-defective, and the return is handled and approved by a Endeavor sales representative for the region; or (b) the Products are defective and an authorization number has been issued for the defective Products by the Returns Department of Endeavor. All returned Products must be accompanied by a copy of the customer’s sales receipt and all shipping costs associated with the return of the Products will be the Retailer’s responsibility.
11. Warranties: Warranty for the Products will be limited to items that have been sold at retail within 12 months.
12. Deadlines: Endeavor reserves the right to cancel any order that it deems not within a reasonable timeframe of the specified deadlines or delivery window. All orders past the deadline date will be packed and shipped with goods that are still available and sent as is, with no guarantee of size run or colours. The end shipping window date on the order form does not apply to orders submitted past the deadline The Retailer acknowledges that receipt of an order before the deadline date does not guarantee complete delivery.
13. Signing: This Agreement, when signed by both parties, and subject to Endeavor’s approval of the Retailer’s credit, is a legally binding contract.
14. Credit Application: Any approval by Endeavor of the Retailer’s Credit Application shall not be effective unless executed and delivered by Endeavor in writing within sixty (60) days of receipt of the Credit Application by Endeavor. Endeavor may deliver its approval by mail, e-mail, or facsimile. The Retailer’s account will be opened on a cash on delivery or pre‑paid cash basis, and the credit limit of the Retailer’s account will be determined by Endeavor at its sole discretion.
15. Payment Terms: Endeavor may charge interest at a rate of two percent (2%) per month (or 24% per annum) on any overdue accounts of the Retailer until such account is paid in full. Any payment made by the Retailer shall be applied firstly to interest. The Retailer agrees to pay Endeavor any costs associated with collecting any of the Retailer’s overdue accounts, including collection fees, lawyer fees, court costs, and any other expenses. Endeavor may also charge a $20.00 handling fee for each returned cheque issued by the Retailer.
16. Relationship Between Parties: This Agreement does not in any way create an employer/employee relationship, partnership or agency between Endeavor and the Retailer or the Retailer’s employees or both.
17. Termination: This Agreement may be terminated, at any time, by either party, with or without cause, and without penalty, compensation or reimbursement except as otherwise specifically set forth in this Agreement, upon: (a) at least thirty (30) days written notice if terminated without cause; or (b) immediately if terminated for a breach that, if capable of being cured, remains uncured for a period of thirty (30) days from the date of receipt by the breaching party of a written notice of breach. Upon the termination of this Agreement any unfulfilled orders for the Products shall automatically be cancelled and all rights granted by Endeavor to the Retailer shall immediately be relinquished.
18. Notices: Any notice, request, consent or approval required or permitted to be given or made pursuant to any provision of this Agreement shall be in writing and shall be delivered personally, sent by pre-paid registered mail, sent by e-mail or transmitted by facsimile addressed to the recipient as follows:
(a) To Endeavor Design Inc. 439 Railway Street Vancouver BC V6A 1A7 or Fax (604) 646 4737 or email@example.com
(b) to the Retailer at the address, facsimile number and e-mail address set out in the Credit Application;
or at such other address as the party to whom such writing is to be given shall have last notified to the party giving the same in the manner provided in this clause. Any such notice or other communication shall be deemed to have been given and received on the day on which it was delivered or transmitted (or, if such day is not a business day, on the next following business day) or, if mailed, on the third business day following the date of mailing; provided, however, that if at the time of mailing or within three business days thereafter there is or occurs a labour dispute or other event which might reasonably be expected to disrupt the delivery of documents by mail, any notice or other communication hereunder shall be delivered or transmitted by means of recorded electronic communication as aforesaid. For the purposes of this Agreement, “business day” is defined as a day that is not a Saturday, Sunday or public statutory holiday in the Province of British Columbia.
19. Enurement: This Agreement shall enure to the benefit of and be binding upon the Parties and their respective heirs, executors, administrators, successors and assigns, but it is personal to the Retailer who may not assign the whole or any part of this Agreement without Endeavor’s prior written consent.
20. Governing Law: This Agreement shall be construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein.
21. Amendments: No supplement or amendment to this Agreement will be binding, unless consented to in writing by the parties to this Agreement.
22. Severability: The invalidity or unenforceability of any covenant or provision of this Agreement shall not affect the validity or enforceability of any other covenant or provision of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable covenant or provision were omitted.
23. Non-Waiver: The failure of either party to this Agreement to insist upon strict performance of any obligation of the other party contained in this Agreement will not be construed as a waiver or relinquishment for the future of any such obligation.
24. Time is of Essence: Time shall be of the essence of this Agreement.
25. Counterparts: This Agreement may be executed in separate counterparts and by facsimile, each of which counterparts when so executed and delivered shall be deemed an original, and all such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF the parties have executed the Credit Application and Sales Agreement to which these terms and conditions are attached, effective as of the day and year first above written next to the execution by Endeavor.