EXHIBIT 10.1
Sales and Fulfillment Agreement
This Sales and Service Agreement (the "Agreement") is made and entered into as
of September __, 2000 (the "Effective Date") by and between Pawnbroker.com, Inc.
("Pawnbroker.com"), a Delaware corporation with its principal office located at
85 Keystone, Suite A, Reno, Nevada, 89503, and Jewelry Edge ("Jewelry Edge"), a
________ corporation with its principal office located at __________, Texas.
WHEREAS, Pawnbroker.com operates a web site located at URL:
http://www.pawnbroker.com (the "Pawnbroker.com Web Site"), which is designed to
offer merchandise from the inventories of its participating member pawnbrokers
("Members") and to facilitate transactions between such Members and buyers or
potential buyers ("Buyers") who visit the Pawnbroker.com Web Site;
WHEREAS, Jewelry Edge is engaged in the jewelry business, including sales
and marketing of high quality jewelry products and merchandise and operating a
manufacturing, repair, cleaning, warehousing and shipping facility (the
"Consolidation Center");
WHEREAS, Jewelry Edge desires to offer jewelry merchandise for sale on the
Pawnbroker Web Site and Pawnbroker.com desires to offer such merchandise for
sale on its web sites in cooperative a marketing arrangement; and
WHEREAS, Jewelry Edge desires to provide Pawnbroker.com and its Members
certain fulfillment services, including jewelry processing, appraising,
inventory control, packaging and shipping at a predetermined service fee based
on the sale of such merchandise;
NOW, THEREFORE, in consideration of the mutual premises and covenants
hereinafter set forth, and intending to be legally bound, Pawnbroker.com and
Jewelry Edge hereby agree as follows:
1. Assignment and Sales Agreement.
1.1 Jewelry Edge agrees that it will offer up 25,000 items of jewelry
merchandise for sale on the Pawnbroker Web Site (the "Jewelry Edge
Products"). Jewelry Edge agrees that it will provide Pawnbroker.com (i) a
description of each item of offer Jewelry Edge Product listed for sale,
including the type of jewelry, price, carat weight, quality and other
information; (ii) pictures of such Jewelry Edge Product in a format that
can be posted on the Pawnbroker.com Web site; and (iii) any qualifying
information necessary for a customer to make a purchasing decision.
1.2 Pawnbroker.com shall use commercially reasonable efforts to post the
Jewelry Edge Products for sale on the Pawnbroker Web Sites and process such
order in accordance with Section 2 of this Agreement. Notwithstanding the
foregoing, Pawnbroker.com does not warrant that the use of any of the
Pawnbroker Web Site will be uninterrupted, error-free or continuously
available.
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1.3 Pawnbroker.com shall be entitled to retain a 3% commission from the Sale
Price of Jewelry Edge Products purchased through the Pawnbroker.com Web
site. "Sale Price" means the price of such product, excluding charges
related to shipping, handling insurance and sales tax, if any.
1.4 Jewelry Edge Products sold through Pawnbroker Web Site may be returned by
the purchaser to Jewelry Edge for any reason within ten days after receipt
thereof. Such right to return Jewelry Edge Products is in lieu of any other
representation or warranty, express or implied, related to Jewelry Edge
Product sold through Pawnbroker Web Site. For each return of a Jewelry Edge
Product, Pawnbroker.com may charge back to Jewelry Edge the sale price of
such product, plus shipping and handling charges and state sales tax, less
Pawnbroker.com's commissions.
2. Distribution and Fulfillment Agreement.
2.1 Jewelry Edge agrees to provide Pawnbroker.com and its Members
consolidation, distribution and fulfillment services related to jewelry
merchandise offered for sale on Pawnbroker.com (the "Pawnbroker.com
Product"). Jewelry Edge will accept Pawnbroker.com Products at its
Consolidation Center, and Jewelry Edge will, at no initial charge to
Pawnbroker.com or its Member, (i) clean and polish such item; (ii) price
each item for sale on the Pawnbroker.com Web site (such price shall include
the 3% Fulfillment Fee); (iii) photograph each item; (iv) provide a
description of the item for publishing on the Pawnbroker.com Web site; (v)
insure each item at replacement cost; and (vi) provide monthly reports on
the inventory of the Pawnbroker.com Products.
2.2 Pawnbroker.com will pay Jewelry Edge a service fee equal to 3% of the Sale
Price of such transaction (the "Fulfillment Fee") for fulfillment services
related to all orders for Pawnbroker.com Products sold on the
Pawnbroker.com Web site and processed by Jewelry Edge under this Agreement.
Jewelry Edge will provide the following fulfillment services: (i) process
the order information such that such order is fulfilled and shipped to the
applicable customer within two (2) business days from notification by
Pawnbroker.com; (ii) ship such product by using a shipping service with a
reliable tracking method; (iii) provide such products in a manner
consistent with the way in which such products were advertised or
represented on the Pawnbroker.com Web site; (iv) use reasonable business
practices in providing service, maintenance and other assistance requested
by customers in connection the order; (v) comply with the refunds and
exchange policy on the Pawnbroker.com Web site, as such policy may be
modified from time to time during the term of this Agreement; and (vii)
comply with all applicable laws. The Fulfillment Fee shall not apply to
Jewelry Edge Products.
2.3 Jewelry Edge shall provide a monthly report to Pawnbroker.com within thirty
(30) days following the end of a calendar month of all transactions related
to Jewelry Edge Products and Pawnbroker.com Products that are sold through
the Pawnbroker.com Web site and fulfilled by Jewelry Edge, and all
applicable returns of such products during that time period. Jewelry Edge
shall provide additional reports as Pawnbroker.com may reasonably request.
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2.4 Jewelry Edge will at its sole expense at all times shall maintain a bond or
insure the Pawnbroker.com Products against loss, damage, theft or from such
casualties as Pawnbroker.com may require to cover the cost of the
Pawnbroker.com Products plus ten percent (10%) of the cost. Such insurance
shall specifically name the Pawnbroker.com as insured party with loss
payable to Pawnbroker.com. Jewelry Edge shall provide Pawnbroker.com with a
certificate of insurance as may be satisfactory to Pawnbroker.com. Unless
Jewelry Edge provides Pawnbroker.com with evidence of the insurance
coverage or bond as required by this Agreement, Pawnbroker.com may purchase
insurance at Jewelry Edge's expense to protect Pawnbroker.com's interest.
3. Order Processing by Pawnbroker.com
3.1 For each order for Jewelry Edge Products and Pawnbroker.com Products
processed through a Pawnbroker Web Site, Pawnbroker.com shall (i) bill for
and collect from customers any amounts charged with respect to any of item
purchased by customers by or through the Pawnbroker Web Site; (ii) make
available to Jewelry Edge for retrieval (via a Web site) the necessary
order information, such as dollar amount of the order, the items ordered,
and the delivery information such as name, address, phone number and email
address of each purchaser; (iii) maintain all customer and other records
pertaining to such persons. Pawnbroker.com will collect its standard charge
for shipping, handling and insurance from purchasers of Jewelry Edge
Products and will pay such amounts to Jewelry Edge. Jewelry Edge will be
responsible for shipping and handling, and Pawnbroker.com will not be
liable to Jewelry Edge if actual shipping, handling and insurance charges
exceed the amount collected by Pawnbroker.com.
4. Term and Termination
4.1 This Agreement shall commence on the Effective Date and unless sooner
terminated as provided in this agreement, shall remain in full force and
effect for a term of twelve (12) months (the "Initial Term"). Thereafter,
this Agreement shall automatically renew for successive one (1) year terms
("Renewal Term") provided, however, that a party may terminate this
Agreement on the expiration of the Initial Term or any Renewal Term by
delivering written notice of termination to the other not less than sixty
(60) days before the expiration of such Initial or Renewal Term.
4.2 In addition to any other remedy available at law or in equity, either party
may terminate this Agreement immediately, in whole or in part, without
further obligation to the other party in the event of:
(i) any breach of this Agreement by the other party that is not
remedied within 30 days notice of such breach in writing; or
(ii) the other party's making an assignment for the benefit of its
creditors, the filing of a voluntary or involuntary petition
under any bankruptcy or
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insolvency law, under the reorganization or arrangement
provisions of the United States Bankruptcy Code, or under the
provisions of any law of like import in connection with the other
party, or the appointment of a trustee or receiver for the other
party or its property.
4.2 Upon termination or expiration of this Agreement, (i) Pawnbroker.com shall
immediately stop all active marketing and promotion of Jewelry Edge
Products, (ii) Jewelry Edge shall continue process and fulfill all customer
orders received prior to termination as necessary, and (iii) Jewelry Edge
shall immediate ship (FOB Destination), at Jewelry Edge's cost, all
Pawnbroker.com Products to Pawnbroker.com's principal office.
5. Limitations of Liability.
EXCEPT AS PROVIDED IN THIS SECTION 5, NEITHER PARTY SHALL BE LIABLE TO THE OTHER
FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING
WITHOUT LIMITATION, LOSS OF REVENUES, LOSS OF PROFITS, OR OTHER COSTS, EVEN IF
THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION
SHALL APPLY TO ANY CLAIM OR CAUSE OF ACTION WHETHER IN CONTRACT OR TORT
(INCLUDING NEGLIGENCE) STRICT LIABILITY, OR BREACH OF WARRANTY, BUT SHALL NOT
APPLY IF (I) A JEWELRY EDGE'S PRODUCT IS DETERMINED TO BE DEFECTIVE AND TO HAVE
CAUSED BODILY INJURY OR DEATH, OR (II) IF SUCH DAMAGES ARE THE RESULT OF THE
OTHER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO EVENT SHALL
PAWNBROKER.COM'S TOTAL AGGREGATE LIABILITY UNDER OR AS A RESULT OF THIS
AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY JEWELRY EDGE HEREUNDER.
6. General.
6.1 This Agreement represents the entire agreement of the parties regarding the
subject matter hereof, and supercedes all prior oral or written collateral
representations, agreements, or understandings regarding the subject matter
hereof.
6.2 This Agreement will be deemed to have been executed and delivered in the
State of Nevada and it will be governed by and construed in accordance with
the laws of the State of Nevada, excluding its choice of law rules.
6.3 All notices, requests and other communications to any party hereunder will
be in writing (including facsimile transmission or similar writing) and
will be given to such party at its address or facsimile number set forth
below or at such other address or facsimile number as such party may
hereafter specify for such purposes. Each such notice, request or other
communication will be effective (i) if given by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Section
and confirmation of receipt is obtained or (ii) if given by any other
means, when received at the address specified below.
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6.4 Neither party shall be liable for any delay or failure to meet its
obligations pursuant to this Agreement due to natural circumstances beyond
its reasonable control, including, but not limited to war, riots,
insurrection, civil commotion, fire, flood, storm or inability to obtain
necessary labor, materials or manufacturing facilities as a direct result
of such natural disasters.
6.5 If any term or provision of this Agreement is found to be invalid or
unenforceable for any reason, it shall be adjusted rather than avoided, if
possible, so as best to accomplish the objective of the parties to the
extent possible. In any event, the remaining terms and provisions shall be
deemed valid and enforceable. It is expressly understood and agreed that
each provision of this Agreement providing for a limitation of liability
disclaimer or limitation of warranties, or exclusion of damages is intended
by the parties to be severable and independent of any other provisions and
to be enforced as such.
6.6 This Agreement shall be binding on the parties and on their successors and
assigns. Except as expressly provided herein, Jewelry Edge shall not
transfer, assign or subcontract any right or obligation hereunder without
the prior written consent of Pawnbroker.com, which consent shall not be
unreasonably withheld.
6.7 The failure of either party at any time to require performance by the other
party of any provision hereof shall not affect in any way the full right to
require such performance at any time thereafter; nor shall the waiver by
either party of a breach of any provision hereof be taken or held to be a
waiver of the provision itself.
6.8 Each party to this Agreement agrees to execute and deliver all documents
and to perform all further acts and to take any and all further steps that
may be reasonably necessary to carry out the provisions of this Agreement
and the transactions contemplated hereby.
6.9 This Agreement may be executed in counterparts, each of which shall be
deemed an original, but which together shall constitute a single
instrument.
6.10 The parties are independent contractors, and neither party shall hold
itself out as an agent of the other. Except as expressly provided herein,
neither party shall have any authority to bind or obligate the other in any
manner.
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IN WITNESS WHEREOF, the Parties hereto agree to the provisions set forth
above and have executed this Agreement as of the Effective Date.
Pawnbroker.com, Inc.: JEWELRY EDGE:
Signed: Signed:
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Printed name: Printed name:
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Title: Title:
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Date: Date:
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EXHIBIT A
