Dealer Agreement: Toh-Atin Publishing Company                                                                                                                                                                             

Scope.  This Agreement applies to all images obtained from Toh-Atin (“Toh-Atin Products”) by Dealer.  Subject to the terms and conditions set forth below, Toh-Atin appoints Dealer as a non-exclusive distributor of Toh-Atin Products.

License.  For as long as this Agreement is in effect, except as set forth in section 3.a below Toh-Atin grants Dealer a non-exclusive, royalty free, worldwide license to distribute and publicly display information regarding Toh-Atin Products, including photographs and/or other depictions, in Dealer’s show booth(s), show room(s), store(s) and via the internet on Dealer’s website (“Website”) for the limited purpose of marketing and selling Toh-Atin Products pursuant to this Agreement.  Title to and ownership of all intellectual property rights of Toh-Atin Products and any other information shall remain at all times with Toh-Atin or its third party licensors.  In order to protect and preserve the value and goodwill of Toh-Atin Products, and to ensure that Toh-Atin Products are displayed in a high quality manner, the following conditions shall apply. 

a.             Dealer shall engage in no sale, offer of sale, distribution, advertisement, bidding or marketing of Toh-Atin Products via the Internet website known as "e-Bay" or any other internet "auction" or "bidding" site. 

b.             Dealer shall not sell Toh-Atin Products to any other dealer who sells, offers for sale, or engages in distribution, advertisement, bidding or marketing of Toh-Atin Products via the Internet website known as "e-Bay" or any other internet "auction" or "bidding" site. 

c.             Dealer shall not sell Toh-Atin Products to discount retail chain merchandising stores such as Wal-Mart, Sam's Club, K-Mart, Target, etc., or to anyone who will sell Toh-Atin Products to such discount retail chain merchandising stores.

d.             Except with the advance written permission of Toh-Atin, which shall be granted only for good cause shown by Dealer to Toh-Atin’s satisfaction, Dealer shall not sell Toh-Atin Products for less than the minimum retail price established by Toh-Atin, including a realistic price for framing where images are sold framed. 

Prohibitions:

a.             Except with the advance written permission of Toh-Atin, Dealer shall not actively advertise or market – or display on the walls of a booth, in a folio bin or a video presentation – Toh-Atin Products at the Denver Merchandise Mart, or at “Cowboy Christmas” in Las Vegas, Nevada.

b.             Dealer shall not transfer Toh-Atin Products to canvas without express written permission, in advance, from Toh-Atin or the individual artist whose image(s) is/are involved.

c.             Dealer shall not frame or sell calendar, book or catalog pages.

d.             In accordance with Federal Copyright laws, reproduction of any image is prohibited.

Products and Product Information.   At its discretion, Toh-Atin will notify Dealer of additional offerings of Toh-Atin Products available for distribution by Dealer.  Also at its discretion, Toh-Atin will generate information relating to Toh-Atin Products and, prior to delivering that information to Dealer, will use best its efforts to assure the accuracy of that information.

Presentation on Website.  Toh-Atin reserves the right, in its discretion, to prohibit the display of any particular Toh-Atin Product(s) on Dealer’s Website.  Toh-Atin also reserves the right, in its discretion, to require Dealer to modify the way in which any particular Toh-Atin Product(s) is/are displayed or described on Dealer’s Website.  If Toh-Atin provides Dealer with Toh-Atin Products containing watermarks, Dealer shall display those Toh-Atin Products in low resolution with the watermarks whenever they are displayed on Dealer’s Website.  Dealer shall not post lower than "minimum retail" prices on any images of Toh-Atin Products on Dealer’s Website. 

Indemnification. Dealer shall defend and indemnify Toh-Atin against any and all claims, liabilities, losses, damages, costs and expenses, including reasonable attorney's fees, that Toh-Atin may incur as a result of claims in any form by third parties arising from: 

a              Dealer's breach of any covenants set forth in this Agreement or regarding Toh-Atin Products;

b              Dealer's noncompliance with the Confidentiality provisions of this Agreement; or

c              infringement of proprietary rights, misrepresentation or defamation in whole or in part caused by or attributable to Dealer.

Limitation of Liability.  EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THE SECTION OF THIS AGREEMENT IMMEDIATELY ABOVE:

A.            NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, HOWEVER ARISING (INCLUDING NEGLIGENCE) OUT OF OR IN CONNECTION WITH THIS AGREEMENT; AND

B.            TOH-ATIN SHALL NOT BE LIABLE TO DEALER IN AN AMOUNT GREATER THAN ANY AMOUNT ACTUALLY PAID BY DEALER TO TOH-ATIN UNDER THIS AGREEMENT.

Confidentiality.  Dealer shall not disclose to any third party any information regarding its purchases or sale of Toh-Atin Products in terms of quantities, dollar volumes, revenues, returns, or similar information.

Term, Termination of Agreement and Effect.  This Agreement shall remain in effect until terminated by either Party by means of written notice to the other Party at its address set forth above.

Upon Termination of Agreement.  Toh-Atin will at its option either (a) fulfill all pending orders, in which case the provisions of this Agreement shall survive to the limited extent applicable to such orders, or (b) cancel all pending orders and, after subtracting any amounts owed by Dealer to Toh-Atin, refund to Dealer any payments already made for such pending orders and any credits due to Dealer.  Further, the Parties shall promptly reconcile accounts payable and receivable and bring the balance owed, if any, current.  Dealer shall no longer include Toh-Atin Products in its advertising and, within five days of termination, shall remove all Toh-Atin Products from its Website.

Independent Contractors.  The Parties are independent contractors, and no agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.  Neither Party shall make any warranties or representations on behalf of the other Party.

Governing Law.  This Agreement shall be governed and construed in accordance with the laws of the State of Colorado without giving effect to conflict of law principles.  Both Parties submit to jurisdiction in Colorado, and any cause of action arising under this Agreement shall be brought in a court in La Plata County, Colorado.  In the event legal proceedings are brought to enforce this Agreement, the prevailing Party shall be entitled to an award of reasonable attorney's fees and costs.

Entire Agreement; Waiver.  This Agreement sets forth the entire understanding and agreement of the Parties, and it supersedes any and all oral or written agreements or understandings between the Parties, regarding its subject matter.  This Agreement  may be changed only by a writing signed by both Parties.  The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of this Agreement.

Assignment.   This Agreement shall not be assigned by either Party without the prior written consent of the other Party.

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