CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.1
[xxx.xxx logo] SUPPLY AND FULFILLMENT AGREEMENT
This Supply and Fulfillment Agreement ("Agreement") is effective as of
March 6, 2001 ("Effective Date") by and between Xxx.Xxx Inc., a Delaware
corporation, ("Xxx.Xxx"), and Direct Source Distributing, Inc. a Texas
corporation, ("Distributor").
R E C I T A L S
A. Xxx.Xxx is in the business of operating an Internet superstore through
an e-commerce enabled Web site offering a comprehensive selection of goods
through several specialty stores within its Web site.
B. Distributor is in the business of distributing and fulfilling products
in the electronics and clearance product categories.
C. Xxx.Xxx and Distributor desire to enter into this Agreement to provide
the terms upon which Distributor will provide distribution and fulfillment
services to Xxx.Xxx in the electronics and clearance product categories.
A G R E E M E N T
NOW THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Development and Operation of the Web Site. Xxx.Xxx shall create,
-----------------------------------------
operate and maintain a web site that allows shoppers to browse, select and
purchase electronics and clearance products online (the "Web Site"). Xxx.Xxx
shall be responsible for maintaining the Web Site's front-end and user interface
during the Term. Xxx.Xxx shall also be responsible for receiving, validating
and executing the purchase transaction associated with product orders placed by
customers of the Web Site.
2. Distributor's General Fulfillment Obligations. Distributor agrees to
---------------------------------------------
fulfill and distribute Xxx.Xxx's requirements of all electronics and clearance
products carried in
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
1
Distributor's inventory that are ordered by Xxx.Xxx on behalf of its customers
(the "Products"). Such distribution and fulfillment shall be performed in
accordance with the terms and conditions of this Agreement and the Xxx.Xxx
Distributor's Operation Manual, attached hereto as Exhibit A (the "Operations
Manual"). Distributor also agrees to provide buying, inventory management,
merchandise planning, fulfillment, shipping, storage and returns services for
the Products as described in this Agreement and in the Operations Manual.
3. Products.
--------
a. Product Inventory. Distributor shall make available to Xxx.Xxx
-----------------
all of the products that it carries in its inventory from time to time during
the Term. Upon the Effective Date of this Agreement, Distributor shall maintain
an aggregate of approximately [***] unique SKUs in the product categories listed
on Exhibit B attached hereto. Distributor shall maintain a SKU selection of
comparable brand quality and breadth within such product categories during the
Term. In addition, Distributor will use its commercially reasonable best
efforts to expand the current SKU selection within existing product categories
and expand into new product categories of electronics and clearance products
during the Term. Distributor also agrees to use its commercially reasonable
best efforts to maintain its ability to distribute, and Xxx.Xxx's ability to
resell, products from manufacturers that are currently authorized for resale
over the Internet. Further, Distributor shall endeavor to cause other vendors
and manufacturers to allow Distributor to distribute, and Xxx.Xxx to resell,
products that are currently unauthorized for resale over the Internet.
b. Reserve and Segregated Inventory. From time to time Xxx.Xxx may
--------------------------------
identify certain Products to be reserved for Xxx.Xxx subject to the terms and
conditions of the Operations Manual, upon receipt of a xxx.xxx Purchase Order
committing to purchase the Products. Distributor shall reserve such Products for
Xxx.Xxx [***]. In the event it becomes commercially unfeasible to reserve
products, Distributor shall not be obligated to reserve products for Xxx.xxx.
c. Priority/Constrained Product. Distributor shall reserve
----------------------------
constrained products for Xxx.Xxx on terms that are [***] in accordance with the
terms of the Operations Manual. In addition, Distributor shall support any
allocation of inventory designated by particular manufacturers to be received by
Xxx.Xxx. Xxx.Xxx shall not be limited with respect to the quantity of advanced
orders that it places with Distributor for such constrained products.
d. Markdowns. Distributor shall offer Xxx.Xxx various products
---------
during the Term at prices [***].
e. Product Information. Distributor shall provide timely, accurate
-------------------
and properly formatted Product pictures, images, literature, descriptions,
vendor links, price information, product reviews and all other content that
Distributor has, or receives from time to time during the Term, for the Products
to allow for "live" posting on the Xxx.Xxx site (the "Product Information").
The Product Information, including updated Production Information, shall be free
of charge to Xxx.Xxx. Such materials shall be updated regularly as provided in
the Operations Manual. All Product information shall be maintained and updated
by Distributor on
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
2
an individual SKU basis. Where available, Distributor will provide Xxx.Xxx with
the manufacturer's suggested retail price, along with any product information
and marketing materials that Distributor has received. Distributor has all
rights and licenses necessary to permit Xxx.Xxx to use and display such Product
Information and materials on the Web Site and to market, resell and distribute
such Products to its customers, including without limitation, all rights and
licenses necessary with respect to the use and display of the Product
Information and brand names, logos and trademarks of the applicable
manufacturers and suppliers of the Products.
f. Product Database. Distributor shall provide to Xxx.Xxx a
----------------
database, maintained and updated by Distributor, in accordance with the
specifications of the Operations Manual (the "Product Database"). The Product
Database shall contain information regarding all of the products that
Distributor carries in its inventory from time to time during the Term. Such
information shall include, without limitation, SKU numbers, product
availability, catalog product descriptions, pricing and such other information
as Xxx.xxx shall reasonably request. Distributor shall update this information
in accordance with the terms of the Operations Manual. Such updates shall
include, without limitation, the addition of SKU numbers and other information
for added SKUs, the removal of SKU numbers and other information for unavailable
SKUs (including predictive measurements for availability), revised SKU
availability, updated product descriptions, pricing and other information that
is reasonably required by Xxx.Xxx.
g. SKU Management. Distributor shall provide SKU management for SKU
--------------
bundling, promotional SKUs and SKU substitution in accordance with the terms of
the Operating Manual.
h. Distributor/Dealer Status. In discussions with manufacturers and
-------------------------
vendors, the parties will cooperate to establish distributor status for
Distributor and Authorized Dealer status for Xxx.Xxx.
4. License.
-------
a. License to Product Information and Product Database. Distributor
---------------------------------------------------
grants to Xxx.Xxx, a fully-paid, nontransferable, nonexclusive license for the
Term of this Agreement to use and distribute or display the Product Information
and the Product Database in connection with the promotion and sale of Products.
5. Order Processing.
----------------
a. Order Submittal. Xxx.Xxx's purchase orders for Products shall be
---------------
submitted to Distributor electronically via EDI, or otherwise in accordance with
the procedures set forth in the Operations Manual. Distributor shall maintain
EDI capability in accordance with the Operations Manual in order to receive,
process, confirm and record product orders in the time frame established in the
Operations Manual. All purchase orders issued under this Agreement shall be
subject to the terms and conditions of the Operations Manual.
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
3
b. Distributor's Order Confirmation. Distributor shall confirm its
--------------------------------
receipt of Product orders and provide such other information as is required by
the Operations Manual.
c. Distributor's Technical Standards. Distributor shall maintain
---------------------------------
EDI capability during the Term and process transactions according to the
specifications set forth in the Operations Manual. Distributor shall also
maintain the other technical standards set forth in the Operations Manual.
6. Order Fulfillment. In addition to the general terms of this
-----------------
Section 6, service level requirements for order fulfillment shall also be
governed by the terms of the Operations Manual.
a. Fulfillment Undertaking. Distributor shall provide order
-----------------------
fulfillment (picking, packing and shipping) for Xxx.Xxx customers who purchase
Products from the Web Site. Distributor shall assemble, package and ship all
orders in accordance with the specifications of the Operations Manual. Orders
will be packaged with no reference to Distributor and, whenever practicable,
Distributor will package and ship SKUs in a single order together.
b. Common Carriers. All shipments will be made using Distributor-
---------------
approved carriers, among which includes, without limitation, UPS, USPS and
Federal Express. Distributor shall specify by written notice to Xxx.Xxx the
carriers that are approved and the types of service to be offered. Distributor
shall ship in accordance with the type of delivery specified in each customer's
order, or as otherwise specified in the Operations Manual. Any upgrades in
shipment from that specified by the customer will be without any additional
charge to Xxx.Xxx or the customer. Distributor will also negotiate with each
carrier to receive the latest pull times available in order to provide same day
shipment on the maximum number of orders.
c. Risk of Loss. All Shipments under this Agreement shall be F.O.B.
------------
Distributor's shipping facility. Title and risk of loss shall pass to Xxx.Xxx
upon Distributor's delivery of the Product to the common carrier at the point of
shipment. Xxx.Xxx and/or the shipper shall be responsible for damage and loss
of the Product during shipment to the Customers. In the event of shipping damage
or orders lost during shipment, Distributor will use commercially reasonable
efforts to process, on Xxx.xxx's behalf, freight claims associated with lost or
damaged Products.
d. Shipping. Distributor shall ship orders with Xxx.Xxx packing
--------
slips, invoices and labels and with no reference to Distributor, and otherwise
in accordance with the Operations Manual. Unless otherwise specified, Products
shall be prepared for shipment and shipped in a manner which is: (1) in
accordance with good commercial practice, (2) acceptable to the customer's
specified shipper, and (3) adequate to insure safe arrival of the Product at the
destination. Other Distributor requirements for shipping are described in the
Operations Manual.
e. Inventory Warehouse. Distributor's inventory shall be maintained
-------------------
at facilities owned or controlled by Distributor. Distributor shall be
responsible for warehousing, at its own expense, all products sold through the
Web Site.
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
4
f. Communications and Reports. All Product orders transmitted by
--------------------------
Xxx.Xxx to Distributor and all confirmations of Product orders, shipments and
reports transmitted by Distributor shall be provided in a form reasonably
acceptable to Xxx.Xxx and shall be communicated electronically via EDI in
accordance with the Operations Manual. Both parties will endeavor to maximize
their communication link up with the joint goal of attaining "real time" and
positive operational efficiencies. This includes, but is not limited to,
inventory availability, order processing, order status, shipment tracking,
pricing and accounting, and such other communications as may be expanded per the
Operations Manual. Distributor shall transmit to Xxx.Xxx, via EDI, the reports
required pursuant to the Operations Manual.
g. Operations Manual. The Operations Manual for Xxx.Xxx's
-----------------
Distributors is subject to change at Xxx.Xxx's sole discretion, provided that no
such change shall materially increase the operational or economic obligations of
Distributor hereunder without Distributor's consent; changes will be
incorporated with prior notification and discussion with Distributor. Changes
will be oriented to improve operational efficiencies and to obtain "real time"
communication.
h. Customer Service/Account Support. Xxx.Xxx shall be responsible
--------------------------------
for providing customer support to customers of the Web Site. Subject to the
terms of the Operation Manual, Distributor shall provide to Xxx.Xxx Product
inventory levels and availability, order and shipping confirmation, order
tracking information as made available to Distributor by the common carrier, and
such other Product and order information that is commercially reasonably
available to Distributor.
Distributor shall designate an account manager that is responsible for
the oversight of the business relationship between Xxx.Xxx and Distributor, the
management of the dedicated customer service representatives and any performance
and service issues that may arise during the Term as set forth in the Operations
Manual.
7. Returns. The product return policy and process is set forth in the
-------
Operations Manual.
8. Customer Data. All information and other data collected from
-------------
customers' use of the Web Site and the placement of orders shall be the
exclusive property of Xxx.Xxx and Confidential Information of Xxx.Xxx under
Section 20 of this Agreement. Such information and data shall not be provided
or disclosed to Distributor except as reasonably necessary to perform its
obligations under this Agreement and may be used by Distributor only as
reasonably necessary to perform its obligations under this Agreement.
9. Export of Products. The distribution and fulfillment of
------------------
Distributor's product inventory shall take place within the United States and
may include other international territories that the parties shall mutually
agree during the Term. Distributor shall grant Xxx.Xxx the necessary export
rights and provide the necessary capability to fulfill international orders
during the Term in accordance with the Operations Manual.
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
5
10. Prices and Payment.
------------------
a. Product Prices.
--------------
(i) The prices at which Xxx.Xxx purchases Product from
Distributor is, and shall continue to be, [***].
(ii) Distributor shall credit to Xxx.Xxx any funds received by
Distributor from their product vendors upon the satisfaction of vendor rebate
programs; provided however, that Xxx.Xxx shall only be entitled to receive a
percentage of such vendor rebates equal to [***].
(iii) All prices are in U.S. dollars and do not include
applicable U.S. federal or state sales or use taxes, which shall be included in
Customer invoices and shall be the responsibility of Xxx.Xxx for the applicable
Product shipment.
b. Shipping Costs. Shipping rates for Xxx.Xxx shall be as [***],
--------------
and will include detail on an order by order basis. Xxx.Xxx will set shipping
prices to be charged to customers. Xxx.Xxx will be credited with any rebates
received by Distributor for volume discounts, claim refunds and time in transit
refunds.
c. Payment. Distributor will invoice Xxx.Xxx for the Products and
-------
all shipping costs incurred each day. Invoices and credits received during
dated from the 1st to the 15th of each month will accumulated by Xxx.xxx and the
aggregate total will be due and payable net on the 1st day of the month
following the invoice date. Invoices and credits received during dated from the
16th to the end of each month will accumulated by Xxx.xxx and the aggregate
total will be due and payable net on the 15th day of the month following the
invoice date. All payments shall be by check or wire transfer to Distributor's
account at [***] Distributor may designate. All payments by check shall be
deemed to have been paid on the postmark date upon which such payment was sent
to Distributor.
d. Records/Audit Rights. Distributor shall keep and maintain
--------------------
detailed and accurate books and records with regard to shipping costs and the
Operations Manual at such address(es) as it shall notify Xxx.Xxx of in writing
from time to time. Xxx.Xxx or its representatives shall be entitled to review
and audit such books and records and/or compliance with the terms of this
Agreement during normal business hours upon reasonable notice to Distributor, as
applicable, and copy pertinent materials from such books and records relating to
the audit.
11. Distributor Representations and Warranties. Distributor represents
------------------------------------------
and warrants to Xxx.Xxx:
a. that it has the rights and licenses (including without limitation
appropriate sublicense rights) necessary to permit Xxx.Xxx to market, resell,
and distribute the Products via the Web Site, and to use, display and distribute
the Product Information and Product
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
6
Database and such other product materials, images, and information and related
logos, product and brand names and trademarks of the applicable Product
manufacturers and suppliers;
b. that the manufacturers and vendors of the Products do not
prohibit Xxx.Xxx from allowing the resale of such Products via the Internet;
c. that the Product Information and the Product Database as
delivered to Xxx.Xxx shall not (i) infringe any intellectual property rights of
any person or any rights of publicity, personality, or privacy of any person;
(ii) violate any law, statute, ordinance, or regulation (including without
limitation, the laws and regulations governing export control, unfair
competition, anti-discrimination, consumer protection, or false advertising);
(iii) be defamatory, libelous or trade libelous, unlawfully threatening, or
unlawfully harassing; (iv) be obscene, pornographic, or indecent; (v) violate
any community or Internet standard; or (vi) contain any inaccuracies with regard
to the descriptions, prices and availability of the Products.
d. that (i) it has the full authority and legal right to carry out
the terms of this Agreement; (ii) it has taken all action necessary to authorize
the execution and delivery of this Agreement; (iii) this Agreement is a legal,
valid, and binding obligation of Distributor and Xxx.Xxx as the case may be,
enforceable in accordance with its terms, except as limited by bankruptcy and
other laws of general application relating to or affecting the enforcement of
creditors' rights; and (iv) it has not entered into and is not currently a party
to any agreement that conflicts with the terms of this Agreement;
e. that the Products (i) shall be free and clear of all liens and
encumbrances, (ii) shall be free from defects (including without limitation in
workmanship, material, manufacture and design), and (iii) will comply with the
requirements of the orders placed by customers of the Web Site.
12. Xxx.Xxx Representations and Warranties. Xxx.Xxx represents and
--------------------------------------
warrants that (i) it has the full authority and legal right to carry out the
terms of this Agreement; (ii) it has taken all action necessary to authorize the
execution and delivery of this Agreement; (iii) this Agreement is a legal,
valid, and binding obligation of Distributor and Xxx.Xxx as the case may be,
enforceable in accordance with its terms, except as limited by bankruptcy and
other laws of general application relating to or affecting the enforcement of
creditors' rights; and (iv) it has not entered into and is not currently a party
to any agreement that conflicts with the terms of this Agreement
13. Year 2000 Compliance. Each party represents and warrants that its
--------------------
data and information systems used in the performance of its obligations
hereunder are Year 2000 Compliant. For purposes of this Agreement, "Year 2000
Compliant" shall mean that a party's data and information systems have not been
materially affected by any inability to, individually and in combination,
completely and accurately address, present, produce, store and calculate data
involving dates before, on or after January 1, 2000.
14. Indemnification. Distributor agrees to indemnify and defend Xxx.Xxx
---------------
and its customers against, and hold Xxx.Xxx and its customers free and harmless
from, any and
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
7
all loss, damage, settlement or expense (including legal expenses), as incurred,
resulting from or arising out of any breach of any of Distributor's
representations and warranties in Section 11 or otherwise with respect to the
distribution and sale of any of the Products, the use thereof or any Product
defects; provided that Xxx.Xxx immediately notifies Distributor, in writing, of
any notice or claim of such loss, damage or expense involving the Products of
which it becomes aware, and permits Distributor to control, in a manner not
adverse to Xxx.Xxx, the defense, settlement, adjustment or compromise of any
such claim using counsel reasonably acceptable to Xxx.Xxx. Distributor may
employ counsel, at its own expense to assist it with respect to any such claim.
Distributor shall carry and maintain insurance coverage satisfactory to Xxx.Xxx
to cover the above.
15. Mutual Liability Limitation. UNDER NO CIRCUMSTANCES WILL EITHER
---------------------------
PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT.
16. Quarterly Review. The parties agree to meet in person or by
----------------
teleconference at the beginning of every quarter to discuss (i) market trends,
(ii) new products, (iii) revisions of existing products, (iv) special
promotions, as well as (v) Xxx.Xxx's evaluation of the quality and timeliness of
Distributor's performance. Distributor's performance with respect to the
following criteria: headcount support for customer service, inventory planning,
merchandising, the Product Information and Product Database, technology
upgrades, manufacturer relationships, data quality, fulfillment rate and order
turnaround time. Additional meetings and/or discussions will be conducted as
necessary to achieve the incentive goals.
17. Term and Termination.
--------------------
a. Unless terminated earlier as provided herein, this Agreement
shall have a term of one (1) year from the Effective Date, and shall be
automatically renewed for up to five (5) additional one (1) year periods after
the initial term, unless either party is otherwise notified by the other in
writing at least thirty (30) days prior to the applicable anniversary date of
the Effective Date of this Agreement. If the parties continue to do business
with each other after such termination or after the expiration of the above term
without full documentation, the relevant terms hereof will continue to govern
the relationship unless otherwise expressly agreed in writing and except that
the relationship may be terminated unilaterally by either party upon thirty (30)
days written notice to the other.
b. Termination for Cause. This Agreement may be terminated by a
---------------------
party for cause immediately by written notice upon the occurrence of any of the
following events:
(i) If the other ceases to do business, or otherwise
terminates its business operations; or
(ii) If the other shall fail to promptly secure or renew any
license, registration, permit, authorization or approval for the conduct of its
business in the manner contemplated by this Agreement or if any such license,
registration, permit, authorization or
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
8
approval is revoked or suspended and not reinstated within sixty (60) days and
the foregoing has a material adverse effect on either party's ability to perform
its obligations hereunder on the other party; or
(iii) If the other materially breaches any material provision of
this Agreement and fails to cure such breach within thirty (30) days of written
notice describing the breach; or
(iv) If the other becomes insolvent or seeks protection under
any bankruptcy, receivership, trust deed, creditors arrangement, composition or
comparable proceeding, or if any such proceeding is instituted against the other
(and not dismissed within 90 days).
c. Each party understands that the rights of termination hereunder
are absolute. Neither party shall incur any liability whatsoever for any
damage, loss or expenses of any kind suffered or incurred by the other (or for
any compensation to the other) arising from or incident to any termination or
expiration of this Agreement by such party which complies with the terms of the
Agreement whether or not such party is aware of any such damage, loss or
expenses.
d. In the event of any termination or expiration, (i) Distributor
shall continue to fulfill any orders then pending and (ii) Distributor shall
continue to handle and process any returns of Products it receives from
customers for a period of ninety (90) days after the effective date of such
termination.
e. Termination is not the sole remedy under this Agreement and,
whether or not termination is effected, all other remedies will remain
available.
f. In addition to any provisions that survive termination or
expiration according to their terms and payment obligations, the following
sections shall survive termination or expiration of this Agreement: Sections 7,
8, 10, 11, 12, 14, 15, 17, 20-31.
18. Insurance. Distributor agrees to maintain insurance, [***], against
---------
loss or damage by fire or other casualty to the Product inventory or other
assets in the possession at any time of Distributor, against any loss arising
from any business interruption or other Distributor outages, and against any
claims and liability growing out of either product liability, advertising
liability or trademark or service xxxx, patent or copyright infringement with
respect to such Product inventory, the Product Information or the Product
Database or other assets. Distributor, at Xxx.Xxx's request, shall provide a
Certificate of Insurance for the Distributor reflecting such coverage.
Distributor agrees to maintain at all times during the Term insurance coverage
on its distribution facilities at reasonable levels. Distributor shall name
Xxx.xxx as an additional Insured under its applicable insurance policies.
19. Assignment. This Agreement may not be assigned by either party
----------
without the prior written consent of the other party, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, (a) either party may
assign this Agreement, upon notice to, and without the consent of the other
party, to any person or entity that acquires the assignor's business or
substantially all of the assignor's assets by merger, stock sale, or other means
provided that the assignee is capable of performing assignor's obligations under
this Agreement,
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
9
provided that any assignee of Distributor cannot be reasonably deemed a
competitor of Xxx.Xxx. Any attempted assignment in violation of this Section 20
shall be void.
20. Confidentiality. Xxx.Xxx and Distributor acknowledge that, in the
---------------
acquire information, identified as confidential, about the other party, its
business activities and operations, its technical information and trade secrets,
of a highly confidential and proprietary nature, including without limitation,
marketing records and plans, forecasts and strategies, merchandising records,
customer records and mailing lists, cost structures, allocation and pass through
procedures, staffing levels, systems information, technology, technical
information, know-how, computer programs, and general financing and business
plans and information (all such information relating to Xxx.Xxx or Distributor
being "Confidential Information" and the party to whom such Confidential
Information relates being the "Proprietary Party"). Each party will hold the
other party's Confidential Information in strict confidence and will use
reasonable precautions to prevent the unauthorized disclosure or access to the
other party's Confidential Information. Each party shall employ at least those
precautions that such party employs to protect its own confidential or
proprietary information. Distributor and Xxx.Xxx agree that each will not,
during the Term hereof or thereafter and unless otherwise instructed by the
Proprietary Party in writing, (i) divulge, furnish, disclose, or make accessible
to any third party (other than directors, officers, employees, agents, advisors
and potential investors of either party thereto) any of the other's Confidential
Information; provided however, that each party may disclose Confidential
Information or other information regarding this Agreement for which disclosure
is required by the Securities and Exchange Commission; or (ii) make use of any
of the other's Confidential Information, other than as reasonably necessary for
performance under this Agreement; provided however, that Confidential
Information shall not include any information which (i) at the time of
disclosure by the other party or thereafter is generally available to and known
by the public other than through any action or inaction of such party, (ii) was
available to the other party on a non-confidential basis from a source other
than the Proprietary Party, provided that such source is not bound by a
confidentiality agreement, or contractual or fiduciary obligation with the
Proprietary Party, or (iii) has been independently acquired or developed by the
other party by persons without access to such information and without use of any
Confidential Information of the Proprietary Party, and without violating any
obligations under this Agreement, or of any other agreement between Xxx.Xxx and
Distributor. Each party, with prior written notice to the Proprietary Party,
may disclose such Confidential Information to the minimum extent possible that
is required to be disclosed to a governmental entity or agency in connection
with seeking any governmental or regulatory approval, or pursuant to the lawful
requirement or request of a governmental entity or agency, provided that
reasonable measures are taken to guard against further disclosure, including
without limitation, seeking appropriate confidential treatment or a protective
order, or assisting the other party to do so.
21. Notices. Any notice or other communication required or permitted
-------
to be made or given to either party under this Agreement shall be deemed
sufficiently made or given on the date of delivery if delivered in person, by
facsimile, or by overnight commercial courier service with tracking capabilities
with costs prepaid, or three (3) days after the date of mailing if sent by
certified first class U.S. mail, return receipt requested and postage prepaid,
at the address
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
10
of the parties set forth below or such other address as may be given from time
to time under the terms of this notice provision.
If to Distributor:
Direct Source Distributing, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
[***]
With a copy to:
Direct Source Distributing, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: General Counsel
[***]
General Counsel
If to Xxx.Xxx:
Xxx.Xxx Inc.
00 Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
[***]
Attn: Xxxxx Xxxxxx
With a copy to:
Xxx.Xxx Inc.
00 Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
[***]
Attn: General Counsel
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
11
22. Controlling Law and Jurisdiction. This Agreement shall be governed,
--------------------------------
of California and the United States, without regard to the conflicts of laws
provisions thereof. Unless waived by Xxx.Xxx (which it may do in its sole
discretion) the exclusive jurisdiction and venue of any action with respect to
the subject matter of this Agreement shall be the Superior Court of California
for the County of Orange or the United States District Court for the Central
District of California and each of the parties hereto submits itself to the
exclusive jurisdiction and venue of such courts for the purpose of any such
action. Service of process in any such action may be effected in the manner
provided in Section 21 for delivery of notices.
23. Waivers and Amendments. Except as otherwise expressly provided
----------------------
herein, any provision of this Agreement may be amended and the observance of any
provision of this Agreement may be waived (either generally or any particular
instance and either retroactively or prospectively) only with the written
consent of the parties. However, it is the intention of the parties that this
Agreement be controlling over additional or different terms of any order,
confirmation, invoice or similar document, even if accepted in writing by both
parties, and that waivers and amendments shall be effective only if made by non-
pre-printed agreements clearly understood by both parties to be an amendment or
waiver.
24. Severability. In the event that any provision of this Agreement
------------
shall be unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall only apply
to such provision and shall not render this Agreement unenforceable or invalid
as a whole; and, in such event, such provision shall be modified or interpreted
so as to best accomplish the objective of such unenforceable or invalid
provision within the limits of applicable law or applicable court decision and
the manifest intent of the parties hereto.
25. Relationship of the Parties. The parties hereto expressly
---------------------------
understand and agree that the other is an independent contractor in the
performance of each and every part of this Agreement, is solely responsible for
all of its employees and agents and its labor costs and expenses arising in
connection therewith. This Agreement does not make either party the employee,
agent or legal representative of the other.
26. Complete Agreement. This Agreement (and all Exhibits hereto)
------------------
constitutes the entire understanding and agreement with respect to the subject
matter hereof and supersedes all proposals, oral or written, all negotiations,
conversations, or discussions between or among the parties relating to the
subject matter of this Agreement and all past dealing or industry custom.
27. No Third-Party Beneficiaries. The parties do not intend, nor shall
----------------------------
any clause be interpreted, to create under this Agreement any obligations or
benefits to, or rights in, any third party from either Xxx.Xxx of Distributor.
28. Publicity. Neither party shall issue any press release
---------
regarding this Agreement or otherwise disclose the existence or terms of this
Agreement without the prior
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
12
written consent of the other party except to the extent such disclosure is
required by law and only if the disclosing party provides reasonable prior
notice to the other party of the disclosure.
29. Headings. Section headings are for reference only and shall not
--------
affect the interpretation of this Agreement.
30. Successors in Interest. This Agreement and all of the provisions
----------------------
the successors in interest and assigns of the parties.
31. Counterparts. This Agreement may be executed in any number of
------------
separate counterparts each of which when executed by and delivered to the other
party shall be an original as against the party whose signature appears thereon,
but all such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
persons duly authorized as of the date and year first above written.
XXX.XXX INC.
By /s/ Xxxxx Xxxxxx
-----------------------------------------
Name Xxxxx Xxxxxx
---------------------------------------
Title SVP Operations and Technology
--------------------------------------
DISTRIBUTOR
By /s/ Xxxx Xxxxx
-----------------------------------------
Name Xxxx Xxxxx
---------------------------------------
Title President, Direct Source Distributing
--------------------------------------
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
13
