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HomeMy WebLinkAboutQUMPUS, INC.~:~,~ AGREEMENT TERMINATION ,~, a<<n -.~ ~~, ~; CMG Please complete this form when the attached agreement is no longer in effect. Return form to the Sr. Deputy Clerk of the Council (M-30). Ca11647-5238 if `you have any questions. The agreement with !,(~Yt,(~,Lc~ y~ , No.~'~~~-D~~ was completed on '~ k~~ ~~ ~ ,and final payment has been made. Department: ~, ~ ~` C ~'~.-'x Signature: ~ r '~~~, ~~.~.-~ C~!~ Date: _ C~.' ~ ~~-' Revised 3-2-07 City of Santa Ana Clerk of the Council , . , N-2007 -033 O:/..JJ3 (I) (5.6<o/as) ONLINE BOOK SALES SERVICES AGREEMENT THIS ONLINE BOOK SALES PROGRAM SERVICES AGREEMENT is made and entered into this 12th day of March, 2007 by and between the City of Santa Ana, acting through the Santa Ana Public Library located at 26 Civic Center Plaza, Santa Ana, California 92701, hereinafter referred to as "SAPL" and Qumpus, Inc., d/b/a Belter World Books, located at 55740 Currant Road, Mishawaka, Indiana, 46545, hereinafter referred to as "BWB". WIT N E SSE T H: WHEREAS, BWB is engaged in the business of collecting, transporting, and selling large volumes of Surplus Books (as hereinafter defined), and providing income to libraries, secondhand stores and other large volume donors, as well as to reading and literacy causes around the world; and WHEREAS, SAPL desires to obtain BWB's services pursuant to the terms and conditions set forth herein; and WHEREAS, BWB has agreed to provide such services subject to the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto promise and agree as follows: ARTICLE I Exclusive Reseller 1.1 SAPL hereby engages aWB as its exclusive agent to manage, transport, sell and distribute SAPL's Surplus Books and to manage and conduct all Surplus Book distribution and resale services on behalf of SAPL during the term of this Agreement which ends December 31, 2008 and can be renewed any time thereafter; and BWB hereby agrees to be retained by SAPL subject to the terms and conditions hereinafter set forth. 1.2 The above exclusivity clause does not prevent SAPL from donating Surplus Books directly to other non-profit organizations. ARTICLE II SAPL's Obligations 2.1 SAPL shall be responsible for selecting, collecting, and packaging all Surplus Books. For purposes of this Agreement, the term "Surplus Books" shall mean all books that SAPL wishes to sell, destroy or give away. These books being in saleable condition (without substantial spine or cover damage, water spots or other discoloration, torn or missing pages, and without substantial marking) and otherwise in compliance with the quality requirements of BWB as published from time to time, in its own discretion. 2.2 SAPL shall provide the Surplus Books ready for pick-up. 2.3 SAPL shall comply with the minimum quantity guidelines unless otherwise agreed in writing between the parties. For the purposes of this agreement, the minimum quantity of books per individual shipment is one-hundred and fifty (150) books or six (6) fully packed standard sized boxes. i\~'-,IJn."'nnc. t\l(lr P~Q~tlREP !URK ")iY PROCEED CLERi; Of COUNCIL DATE, /j~.J..~o7 - 1 - 2.4 The relationship with BWB is exclusive, and SAPL acknowledges and agrees that it shall make available all Surplus Books, and shall not be permitted to "pick-over" or permit any third party to "pick-over" the books prior to shipment. 2.5 Friends of READ/Orange County is the pre-approved 501(c)3 non-profit Literacy Partner. Friends of READ/Orange County is a legitimate 501(c)3 non-profit Literacy Partner that has a proven operating history and is eligible for any proceeds from sales as set forth in Article IV, Paragraph 4.2., Subparagraph (b) 2.6 SAPL acknowledges that BWB does not accept mass-market paperbacks, book club editions, Time Life Series books, The Modern Library Series books, encyclopedia sets (complete or incomplete), magazines, periodicals, volume serials, Reader's Digest Condensed books, catalogs, tax documents, government documents, directories, desk reference books, academic journals, custom course packets or LP Records. 2.7 SAPL shall designate a representative who shall be responsible for administrative matters pertaining to this Agreement who shall have authority to designate and authorize Surplus Books for pick-up, and who shall have access to account and sale information on BWB's website. ARTICLE III BWB's Obligations 3.1 BWB shall name an accou nt representative to handle SAPL's account who shall be responsible for administrative matters pertaining to this performance of services under this Agreement. 3.2 BWB shall arrange and pay for all shipment of books from a central freight location designated by SAPL to a warehouse storage facility operated by BWB. Title to the books shall pass to BWB when picked up from the centra/ freight location designated by SAPL. Nothing herein shall limit BWB's ability to discard in an environmentally sensitive manner or donate any of SAPL's Surplus Books at any time in accordance with Article IV, Paragraphs 4.5. and 4.6. hereof. 3.3 BWB will catalogue, store and ship all books sold. BWB will be responsible for all pricing and advertising of books for sale, and will cover all costs of online bookselling, including inventorying, storage, and customer service. 3.4 All proceeds of sale shall be collected and disbursed in accordance with Article IV hereof. 3.5 BWB will use its best efforts to ship all books within two (2) business days of sale. - 2 - , , ARTICLE IV Distribution of Sales Proceeds and Unsold Books 4.1 All sales prices for Surplus Books shall be determined by BWB in its sole discretion. 4.2 Proceeds from sales of Surplus Books supplied by SAPl shall be disbursed as follows: (a) 15% of net proceeds are paid to SAPl on a quarterly basis (b) 5% of net proceeds are paid on a quarterly basis directly to Friends of READ/Orange County as the Literacy Partner pre-approved by BWB. (c) 80% of net proceeds are retained as a commission by BWB to cover all operating expenses incurred in connection with collecting, transporting, processing, inventorying, shipping, marketing, selling, providing customer service, and developing software for the volume of books received from SAPL. 4.3 Net Proceeds shall be the amount received from the third-party marketplace, less the commission paid to the online marketplace and any reimbursement expenses (I.e. shipping, handling, etc.). 4.4 No percentage of net proceeds shall be payable to SAPl for any shipment of books of less than the minimum shipment amount as set forth in Article II, Paragraph 2.3. 4.5 Any non-merchantable books (due to condition and/or failure to sell within a timeframe to be determined solely by BWB) may be discarded in an environmentally sensitive manner or donated at any time by BWB to a Literacy Partner or any other tax-exempt organization of BWB's choosing, and no further compensation shall be due to SAPL. Literacy Partners are those non-profit or charitable organizations dedicated to providing or supporting literacy, books, and reading programs selected by BWB in its own discretion. 4.6 BWB reserves the right to take any book offline at anytime. Books that are not sold shall be discarded in an environmentally sensitive manner or donated to any Literacy Partner of BWB's choosing. 4.7 Payment of the amount determined in Paragraph 4.2., above shall be made on a quarterly basis and postmarked within thirty (30) days from the last day of the calendar on March 31.t, June 30th, September 30th, and December 31.,- For the purposes of this agreement, the first payment will become due within thirty (30) days from March 31, 2007. 4.8 BWB's records relating to the determination of net proceeds and amounts payable to SAPl under Paragraph 4.2(a) shall be available during normal business hours for examination by an accountant selected by SAPl, solely for the purpose of verifying payments hereunder. If conducting such examinations, SAPl's accountant shall have access to all records which SAPl reasonably believes to be relevant to the calculation of the payments. Such examination shall be at SAPl's expense. - 3 - ARTICLE V Term and Termination 5.1 This Agreement shall commence as of the date hereof and shall continue thereafter until December 31, 2008 ("Initial Term"). 5.2 This Agreement shall be open for renewal for additional periods of one year (each a "Renewal Term") upon signature of a renewal contract. 5.3 Notwithstanding the provisions of Paragraphs 5.1 and 5.2 above, this Agreement and all rights granted to the parties hereto shall immediately terminate upon the occurrence of any of the following: (a) At the option of SAPL, exercised by delivery of a written notice from SAPL to BWB, at any time subsequent to the breach by BWB of its obligations to pay SAPL any amounts under this Agreement in the time period and manner described in Article IV, above. (b) At the option of either party, exercised by delivery of a notice to the other party, if the other party shall have defaulted in any of its other obligations (excepting the payment obiigations described in Subparagraph (a), above, which default is not remedied within thirty (30) days after receipt of notice from such party to the other specifying the nature of such default. 5.4 Notwithstanding anything herein to the contrary, BWB reserves the unilateral right to refuse to accept any more Surplus Books from SAPL, thereupon terminating this Agreement, but such refusal shall not affect its obligation to sell the Surplus Books already received from SAPL and inventoried for sale. ARTICLE VI Confidentiality; Title to Property 6.1 BWB and SAPL agree that during the course of dealing with each other prior to and through the term of this Agreement, each Party may have or may become aware of information regarding the other Party that is confidential or proprietary in nature, including but not limited to information concerning its business, processes, SAPL donors, SAPL's administration and its related offices, software, marketing, pricing, formulas, customers, suppliers, vendors, operations, and finances. Therefore, the Parties agree that they will take all reasonable steps necessary to maintain the confidentiality of any such information, to treat any such information as confidential, and not to disclose any such information to any third party without the prior written consent of the non-disclosing Party, uniess such third party is an authorized agent or employee that must be familiar with such information in the normal course of their work. The Parties agree not to use any information disclosed between the Parties, or under this Agreement, for any purpose other than the purposes of this Agreement. 6.2 Unless stated otherwise, the Parties agree that their obligations under this Section 6.1 shall continue for the duration of the Agreement and for a period of two (2) years beyond any termination or expiration of this Agreement. Failure to comply with any provisions in this Section 6 on the part of either Party shall entitie the other Party to equitable remedies in addition to all other remedies at law or under this Agreement. -4- ~ . ARTICLE VII Miscellaneous 7.1 Any notice required or permitted to be given shall be in writing and shall be deemed to be sufficiently given and received in all respects when personally delivered or when deposited in the United States mail. certified mail, postage prepaid, return receipt requested, addressed the addressee at its last address furnished to the sender in writing by the addressee for the purpose of receiving notices, or, unless or until such address shall have been so furnished, addressed to the addressee at the address indicated below its signature to this Agreement. 7.2 All terms, covenants and conditions of this Agreement are contained herein and in the Exhibit hereto and there are no other warranties, obligations, covenants or understandings between the parties other than those expressed herein. 7.3 This Agreement may not be assigned by either party without the express prior written consent of the other party hereto; provided, however, that this Agreement and the rights and remedies of the parties hereto shall inure to the benefit of the parties and their corporate successors or the purchasers of substantially all of the assets or stock of either party hereto. Subject to the terms of the foregoing sentence, this Agreement shall be binding upon the parties hereto; their respective successors, legal representatives and permitted assigns. 7.4 The failure of either party to enforce any of this Agreement or its failure to declare a default shall apply only to the particular instance and shall not operate as its continuing waiver or estoppel barring enforcement of any term or provision hereof. 7.5 This Agreement shall be governed by and constructed in accordance with the internal laws of the State of California. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day, month and year first above written. CITY OF SANTA ANA a~l '/ '1..-< ~Y:4 By: David N. Ream City Manager Patricia E. Healy Clerk of the Cou~cii By: Nam. ustin 01 nd Title: Director 4555 Mansell RD Suite 300 Alpharetta, GA 30022 APPRSlVED AS TO FORM: RECO-o/lM NDED F?R APPROVAL j; /\../ R ichar Executive Director - Library 26 Civic Center Plaza Santa Ana, California 92701 - 5 - EXHIBIT A Book Transport and Packing Guidelines As you might imagine, the freight transportation of donated books is our single biggest expense. In order to keep costs low, we ask the following of our partners: 1. Ship no less than 150 books or 6 cartons at a time; and, 2. When shipping between 6 and 70 cartons per shipment, print your own UPS Shipping Labels via a web portal we will provide you access to (provided you have given us 3 day's notice that your shipment is ready and needs to be picked up). Otherwise, when shipping more than 70 cartons at a time, please contact your BWB account executive to make shipping arrangements. PLEASE NOTE: WE DO NOT ACCEPT MASS-MARKET PAPERBACKS, BOOK CLUB EDITIONS, TIME LIFE SERIES BOOKS, MODERN LIBRARY BOOKS, ENCYCLOPEDIA SETS (COMPLETE OR INCOMPLETE), MAGAZINES, PERIODICALS, VOLUME SERIALS, READER'S DIGEST CONDENSED BOOKS, CATALOGS, TAX DOCUMENTS, GOVERNMENT DOCUMENTS, DIRECTORIES, DESK REFERENCE BOOKS, ACADEMIC JOURNALS, CUSTOM COURSE PACKETS, OR LP RECORDS. -6- - . EXHIBIT B How to Pack a Carton You might be asking yourself, "What? A guide on boxing up books! How hard could it be to box up books?" Well, its not that it's difficult to do, so much as there is a right way and a wrong way of doing it. And if books are packaged the wrong way, not oniy will the books suffer severe spine damage, but it can also make the transportation of these boxes a logistical nightmare. Keep in mind that these books often travei in boxes over 1,000 miles before they are unpacked! So here is a quick guide to ensure smooth travel... Packino the boxes with books Make sure to pack the books so that they lay flat in the box (It's much less stressful on the book, especially when under the weight of literally tons of other books I). The basic scheme is to basically fill a box up with two columns of books all the way to the top. If you have a bunch of mid-sized books, then its best to put them in two to a stack, sideways. You can put books in vertically to fill in any gaps, but NEVER place a hardcover book in a box with its binding up, or facing you as you pack it. It's not as important with paperbacks (where the end of the pages are flush with the cover), but this is torture for a hardcover book, so always place the bindings face down for hardcover texts. Stack the books flush all the way even with the top of the box. This is extremely important!!! If you oniy pack the box up only part of the way to the top, then it loses all structural integrity. Cardboard has no strength by itself, but if it is tightly packed with books, then a box is very strong since the books help hold its shape. Keep in mind that when these boxes are shipped, they are stacked as high as 5 boxes high, so these boxes are under an incredible amount of weight. Books, as you know by now are very heavy, which brings us to our last point of caution. Always use extreme care when lifting book boxes. Always lift with your legs, and never bend at the waist to pick up a book box. It's always worth the extra time and care to get into proper lifting position then to hastily pick up a heavy box while your back is twisted or contorted. Thanks for your attention to this matter! - 7 - EXHIBIT C How to Palletize your Books pal.let'ize (pa-I&-"t1z)transitive verb: to place on, transport, or store by means of pallets (SOURCE: "Palletize." Def. 1. Merriam-Webster's Online Dictionary. 2004. <http://www.merriam- webster. com/cg ibin/ dictionary?book=Dictionary& va=palletize>. Here are some tips to building a sturdy, road-worthy pallet: The first step is to make sure you've got all your books boxed up, in (preferably) uniform sized boxes (Piease refer to Exhibit B). Once you have all your books in boxes, palletizing is pretty easy if you remember these few tips. 1) Avoid stacking boxes directly on top of, and in-iine with, one another. This results in a very 'toppie- happy' pallet. Having 9 columns (assuming a 3x3 base structure) of book boxes will definitely topple over in transit. 2) Do not stack your boxes over 4-5 layers high. Depending on how sound your pallet structure is, you can get away with a pallet 6 boxes in height, but usually 4-5 is high enough. 3) Don't be bashful with your shrink wrap. It is fairly cheap material, and if extra wrapping keeps your pallet of boxes from toppling while in transit, then it was well worth it. Poor Form: Boxes in vertical columns Good Form: Interlocking/overlapping structure If you are stuck with a bunch of different sized boxes - try to save all of the odd shaped boxes for one pallet, and do as much uniform box palletizing as you can - do your best to build an interlocking, sound structure and lay it thick with the shrink wrap. Thanks for you attention to this matterl - 8 -