EXHIBIT 10.10
[Letterhead of X.X. Xxxx & Associates, Inc.]
MANUFACTURING CERTIFICATION AGREEMENT
PARTIES:
Falcon Shoe Manufacturing Co.
#0 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000 ("Manufacturer")
and
X.X. Xxxx & Associates, Inc.
000 Xxxxx Xxxx Xxxx
P.O. Box 9329
Newark, DE 19714-9329("Gore")
IN CONSIDERATION of the mutual undertakings herein contained, the parties agree
as follows:
1. Agreement for Manufacture: Subject to the terms of this Agreement,
Manufacturer agrees to purchase footwear laminate and XXXX-SEAM(TM) tape
and other products ("Articles") only for use in the manufacture,
promotion, sale and distribution of various garments and other articles
of wearing apparel, the designs of which meet Xxxx'x standards for
functional and aesthetic characteristics, attached hereto as Schedule A
("Products").
2. Facilities: To permit Xxxx to protect and strengthen its trademark(s)
listed in Schedule B (the "Xxxx"), by ensuring that all Products are
functional and of a uniformly high quality, Manufacturer agrees that
Xxxx may take all reasonable steps necessary to continuously monitor the
quality of construction of Products produced by Manufacturer.
Manufacturer shall permit Xxxx or its authorized representatives access
to the Products manufacturing area of Manufacturer's factory and any
other facilities used by Manufacturer, including facilities of any
approved subcontractors, for the production of Products. Manufacturer's
facilities which are certified hereunder are listed in Schedule F.
Following any such inspection, Xxxx shall share with Manufacturer
comments, suggestions and technical information concerning the most
efficacious means for ensuring that Manufacturer's Products meet all
applicable standards.
3. Design Review and Samples: In order that Xxxx may confirm and ensure
that Manufacturer's Products are of a uniform high quality and in
accordance with Xxxx'x quality standards, Manufacturer agrees Xxxx may:
(a) Inspect the proposed designs of the Products to be made by
Manufacturer;
(b) Inspect and test prototypes or samples of Products;
(c) Inspect and test Articles obtained through normal commercial
channels; and
(d) Take such other steps as Xxxx may reasonably require to
accomplish these objectives.
Design review, inspection or testing may, following mutual consultation,
take place at Manufacturer's facilities or at Xxxx'x. Following review
or testing of designs, prototypes or samples by Xxxx, Manufacturer
agrees to make any changes requested by Xxxx. Manufacturer agrees not to
manufacture or sell commercial quantities of any Product until Xxxx has
given its written approval of that Product's design and construction.
4. Placing and Filling of Orders: Purchase orders from Manufacturer for
Articles shall be accepted by Xxxx only on the condition that an
approved Xxxx customer has placed a specific order with Manufacturer for
the production of Products which require that quantity of Articles. Each
Xxxx customer must confirm its order with Manufacturer to Xxxx in
writing. Manufacturer shall only produce and ship the exact quantity of
Products ordered by the Xxxx customer. Manufacture of Products in excess
of the amount ordered by the Xxxx customer is prohibited. Following
mutual consultation and agreement with Manufacturer as to quantities and
price, Xxxx may buy back any excess Articles remaining in Manufacturer's
inventory if it is not needed to complete an order for Products.
5. Approved Styles: Manufacturer understands and agrees that approval to
use the Xxxx in conjunction with a particular brand or label owned by
Manufacturer is limited to that brand or label, and use of the Xxxx with
a different brand or label owned by Manufacturer requires Xxxx'x prior
written approval even if the Product design and construction is not
modified. Where this is the case, such brands will be listed in Schedule
C. Any change in design, materials, or manufacturing process or location
for an approved style or brand must be approved in writing by Xxxx
before The Xxxx xxx be applied to Products incorporating such change.
6. Defective Products: If for any reason Manufacturer produces Products
which do not meet the quality standards set forth in Schedule A, the
defective Products shall be disposed of only in a manner expressly
approved in writing by Xxxx, whether Xxxx or any other party owns the
Products or claims any property interest in them, after all labels and
tags identifying Xxxx of the Xxxx have been removed under Xxxx'x
supervision.
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7. Sub-Contractors: Manufacturer shall not, without the prior written
consent of Xxxx, appoint any sub-contractor or otherwise cause any
seam-sealing or final assembly of Products to be performed by any party
other than Manufacturer.
8. Warranties: Manufacturer represents and warrants to Xxxx that all
Products produced hereunder shall conform to all applicable
specifications and standards including those set forth in Schedule A,
shall be free from defects in materials and workmanship, and shall be
merchantable and fit for the purposes for which they are intended.
9. Accessory Items Bearing the Xxxx: Manufacturer may enter into agreements
with third parties for the supply of accessory items bearing the Xxxx
only with the prior written approval of Xxxx, to ensure that such
accessory items shall be manufactured only in the quantities needed to
meet Manufacturer's specific contracts for Products and shall be sold
only to Manufacturer.
10. Trademark: Manufacturer recognizes and affirms Xxxx'x ownership of the
Xxxx and acknowledges that the Xxxx has become famous. Manufacturer
agrees to do nothing inconsistent with Xxxx'x ownership of the Xxxx and
agrees that its use of the Xxxx shall inure to the benefit of Xxxx and
be on Xxxx'x behalf. Nothing herein shall give Manufacturer any right,
title or interest in the Xxxx, nor shall Manufacturer do, or through
inaction allow to be done, any act contesting or in any way impairing
Xxxx'x right, title or interest in and to the Xxxx or its validity.
Manufacturer agrees to use the Xxxx:
(a) Only in the manner set forth in the guide for the proper use of
the Xxxx which is attached hereto as Schedule B, or
(b) In any other manner approved by Xxxx in writing and in advance.
Manufacturer agrees not to use the Xxxx on any Products
displaying any other trademark or brand name unless it is listed
on a schedule to this Agreement or otherwise approved in writing
by Xxxx.
11. Confidential Information: All materials, documents, information and
equipment which Xxxx supplies or discloses to Manufacturer, whether in
writing or orally, shall be considered proprietary trade secrets of
Xxxx. Manufacturer agrees not to disclose any such matters to any third
party without Xxxx'x advance written consent or to use it in any way
detrimental to Xxxx'x interests. Manufacturer further agrees to make
sure that the dissemination of such information among its employees is
restricted to those persons who have a demonstrated need to have access
to it to design, make, promote and sell Products, and then only after
securing a pledge of confidentiality from them. However, confidential
information subject to the restrictions of this paragraph shall not
include
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(a) information currently in the public domain;
(b) information which becomes public through no fault of
Manufacturer;
(c) information previously known to Manufacturer prior to its
disclosure to Manufacturer by Xxxx, as shown by its
contemporaneous written records; or
(d) information disclosed to Manufacturer by a third party not in
breach of any agreement.
Xxxx agrees to give comparable treatment to any of Manufacturer's
proprietary information which is specifically identified as such in
writing at the time of disclosure. The obligations of each party under
this paragraph will remain in full force and effect for three (3) years
following any termination of this Agreement. In order to protect the
Confidential Information, trade secrets, know-how, proprietary
information and other information developed by Xxxx at great expense and
which Xxxx will be required to disclose to Manufacturer in order to
implement this Agreement, Manufacturer agrees that it will not
manufacture any garment or other products of any kind containing any
taped waterproof, breathable product other than XXXX-TEX products during
the term of this Agreement and for three (3) years after it is
terminated.
12. Term and Termination:
(a) This Agreement shall take effect on the date indicated below and
shall continue in force for one (1) year from that date. This
Agreement may be terminated by either party at any time
thereafter by giving ninety (90) days' advance written notice. If
this Agreement is not so terminated, then it shall automatically
be renewed for successive one (1) year periods, subject to
earlier termination as provided herein.
(b) This Agreement may be terminated at any time by an agreement in
writing signed by both Parties.
(c) In the event of a breach of this Agreement by either party at any
time, this Agreement may be terminated by the other party by
giving (30) days written notice specifying the breach, provided
however, that the breaching party shall have the opportunity to
cure the specified breach within that thirty (30) day period to
the satisfaction of the other party, in which case this Agreement
shall remain in effect.
13. Consequences of Termination: Upon the termination of this Agreement
Manufacturer agrees to:
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(a) Immediately return to Xxxx all instruction books, technical
pamphlets, photographs, catalogues, advertising material,
specifications and all other materials or documents sent to
Manufacturer and relating to the business of Xxxx or any Articles
which Manufacturer may then have in its possession or control;
(b) Immediately deliver to Xxxx or otherwise dispose of as Xxxx
directs in writing any Articles or accessories which Manufacturer
may have in its possession or under its control;
(c) Immediately stop manufacturing, distributing, selling, or in any
way dealing with any Articles or any carton, container, packing
or wrapping material, or advertising, promotional or display
material pertaining to the Articles which display either the Xxxx
or Xxxx'x name.
(d) Immediately discontinue any further use of the Xxxx when
Manufacturer's then-existing stock of Products which comply with
Xxxx'x quality standards is exhausted; destroy all printed
material bearing the Xxxx; and not use any trademarks similar to
the Xxxx.
(e) Manufacturer will not claim that the use of the Xxxx by
Manufacturer had created any right, title or interest in and to
the Xxxx or Manufacturer's part and shall take whatever steps are
necessary to ensure that all the goodwill connected with the Xxxx
remains Xxxx property.
14. Registration: Whenever registration of this Agreement with the relevant
government authorities is necessary to preserve Xxxx'x rights to the
Xxxx or under this Agreement, Manufacturer shall properly register this
Agreement. In the event Manufacturer is unable to do so, it shall
immediately notify Xxxx in writing.
15. Notices: All notices to be given to either party pursuant to this
Agreement shall be deemed to be given when sent if dispatched by telex
with confirmed answer back, by telefax with confirmed answer back, by
prepaid first class mail, or by first class prepaid air mail, return
receipt requested, in all cases to the parties at the following
addresses:
If to Xxxx: X.X. Xxxx & Associates, Inc.
Fabrics Division
Attention: Xxxxx Xxxxxxxxx
000 Xxxxxxx Xxxx, Xxxxxxxx 0
X.X. Xxx 000
Xxxxxx, XX 00000
Telefax: 410/392-3849
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with a copy to X.X. Xxxx & Associates, Inc.
Legal Offices
000 Xxxxx Xxxx Xxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Telefax: 302/731-9098
If to Manufacturer: Falcon Shoe Manufacturing Co.
Attention: Xx. Xxx Xxxxxxxx
#0 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telefax: _________________
Either party may change its address for receiving notice by giving
written notice of its new address pursuant to this paragraph.
16. Assignment: Xxxx may assign in whole or in part from time to time its
rights and obligations under this Agreement to any third party. Without
Xxxx'x prior written consent, Manufacturer shall not transfer or assign
this Agreement or any of its rights or obligations hereunder, and any
such purported transfer or assignment shall be void unless Xxxx, in its
sole and absolute discretion, consents to it in writing. Any material
change in the record or beneficial ownership of Manufacturer shall be
deemed to be an attempted transfer of this Agreement.
17. No Partnership or Agency: Nothing in this Agreement shall be deemed to
create a fiduciary relationship, partnership, joint venture or agency
relationship between the parties. Manufacturer shall have no authority
to bind Xxxx or to contract in the name of or create any liability of
Xxxx.
18. Waiver: The failure of either party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a
waiver, nor shall such failure deprive that party or limit its exercise
of the right thereafter to insist upon strict adherence to that term or
any other terms of this Agreement.
19. Language, Governing Law, Jurisdiction: This Agreement is written in the
English language, which shall prevail over any translations hereof, and
shall be governed by and construed in accordance with the laws of the
State of Delaware, U.S.A., not including its choice of law provisions.
20. Amendment: This Agreement may be amended only in a written document
dated after the date of this Agreement signed by the Party sought to be
charged, except for Schedules A, B and F to this Agreement which
Schedules may be amended by Xxxx at
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its discretion from time to time by sending a copy of the new Schedule
to Manufacturer.
21. Entire Agreement: This Agreement and the attached Schedules is intended
to be the final written expression of all the terms included herein and
the complete and exclusive statement of the Parties' agreement on the
subject governed hereby. These terms may not be contradicted by evidence
of any prior agreement or of a contemporaneous oral agreement, may be
amended only as provided in the paragraph titled Amendment, and may
otherwise be explained, supplemented, modified, altered, waived or
suspended only by a writing signed by both Parties. This Agreement and
its Schedules shall for purposes of interpretation, construction and all
other purposes be deemed to have been drafted by both Parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives on the date shown above.
FALCON SHOE MANUFACTURING CO. X.X. XXXX & ASSOCIATES, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------- ---------------------------------
Xxxxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxxx
---------------------------- ---------------------------------
(Print name) (Print name)
JWB/jes
UNIVMCA
2/9/93
Attachments
Schedule A: Quality Standards
Schedule B: Trademark Usage Guide(s)
Schedule F: List of Manufacturing Location(s)
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SCHEDULE A
XXXX-TEX(R) FOOTWEAR QUALITY STANDARDS
End Use Application: Hunting Footwear
A. Waterproofness
1. All footwear must be constructed with XXXX-SEAM(TM) tape and Xxxx
Seam Sealing Machines using current, seam sealing materials or
other approved materials and technology.
2. All booties must be tested after manufacture using a Xxxx Bootie
Testing Machine (BTM) or other approved test that is set to
inflate the bootie to a pressure of 1 psi. Booties must not leak
air bubbles at a rate greater than 1 bubble per 7 seconds.
3. Licensee is responsible for assuring that all finished footwear
is waterproof.
4. Finished footwear must be tested for waterproofness using either
a hydrostatic water test or another method that has been approved
by Xxxx. Reduced testing levels will be permitted on production
lines which can be shown to produce 100% waterproof product on a
continuing basis. New test methods may be developed and
instituted for in process testing of footwear.
5. The licensee must work to limit the potential water weight gain
of the finished products by using construction materials which
minimize water absorption and retention.
B. Breathability
1. XXXX-TEX(R) footwear must be breathable and meet the criteria in
Addendum A1. Components in the construction of the upper portion
of the product that are completely impermeable to moisture vapor
transmission, are not permitted unless the components have been
approved by Xxxx. Examples of components that Xxxx will approve
are toe boxes, heel counters and eyelets.
2. Licensee and Xxxx will work together to improve the breathability
of the licensee's footwear. This includes participation in Xxxx'x
effort to continually improve breathability standards for
licensed footwear. Participation requires that the licensee make
available to Xxxx finished footwear for Moisture Vapor
Transmission Rate (MVTR) testing.
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C. Fit
1. Waterproof footwear must be constructed using patterns that
provide acceptable donning and comfortable fit.
D. Other Components
1. All components must be appropriate for wet service and any
unique, end use specific, environmental conditions. Examples of
unacceptable components are poorly attached soles, low grade
leathers and materials that are mechanically unstable in water.
E. Model Approval
1. All models of footwear utilizing XXXX-TEX(R) fabric must be
approved by Gore prior to production. A sample of each model of
footwear, representative of the product that will be sold by the
licensee, must be submitted to and approved through Xxxx'x
footwear laboratory. Model approval may be revoked if a
previously qualified model fails to maintain conformance to the
quality standards and specifications.
2. Xxxx'x evaluation may include, but is not limited to:
a) hydrostatic testing for waterproofness
b) flex testing for waterproofness
c) MVTR testing of finished products for breathability
d) analysis of the pattern and construction for donning, fit,
wicking, height of functional waterproofness, insulation
properties and overall product quality.
e) review of the labeling and distribution plans to ensure
the product if appropriate for its intended end use.
f) the specific test methods and quality specification for a
particular type of footwear as described in Addendum A1.
3. At Xxxx'x discretion, one model number may be used to represent
several others when the models differ only with respect to
cosmetic changes.
4. Men's styles should be submitted in sizes 9-10 medium (D),
women's models in sizes 6-8 medium (B).
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F. Labeling
1. All licensed models must be clearly labeled with the brand name
under which the product will be sold. Additionally, each piece of
footwear must be clearly labeled as containing XXXX-TEX fabric.
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ADDENDUM A1
QUALITY SPECIFICATIONS FOR
HUNTING XXXX-TEX(R) FOOTWEAR
A. TEST OF WATERPROOFNESS
1. Footwear must pass greater than or equal to 500,000 flex
cycles without leakage using the Xxxx water exclusion
tester.
B. TEST OF BREATHABILITY
1. The minimum requirement for breathability as measured
using the Xxxx Boot MVTR Test are as follows:
Men's Women's
Size 42 (US 9-10) Size 37 (US 6-8)
----------------- ----------------
Boots
2.5 g/hr. 2.0 g/hr.
C. DESIGN REQUIREMENTS
1. Waterline: The minimum waterproof height is 75% of the
total height. The height is measured from the featherline.
2. Waterproof gusset construction is required for tongues.
3. Padding is required on sharp edges to protect XXXX-TEX(R)
fabric from abrasion or puncture, especially around the
heel counters, toe puffs, eyelets, etc.
4. A permanently attached "XXXX-TEX(R)" label is required.
5. All seams must be sealed.
6. Bootie style construction is required.
D. Technical suggestions for materials are available upon request.
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SCHEDULE B
MANUFACTURING CERTIFICATION AGREEMENT
BETWEEN
FALCON SHOE MANUFACTURING CO.
AND
X.X. XXXX & ASSOCIATES, INC.
Licensed Trademark(s)
---------------------
"XXXX-TEX"
"Guaranteed To Keep You Dry"
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SCHEDULE B
GUIDE FOR PROPER USE OF THE "XXXX-TEX" TRADEMARK
As a growing company, X.X. Xxxx & Associates, Inc. owns many valuable
trademarks which identify and distinguish our products from those of other
companies. Xxxx'x trademarks are well known and signify to our customers that
they are buying quality, state-of-the-art products from a company with a
reputation for innovation, dependability, and integrity. Significant time,
effort, and money has been spent in the research, development, and promotion of
these products.
Unfortunately, trademarks can be lost if they are not used correctly. A
trademark is lost when it become generic and sneaks into the language as a
common name description of the product, as distinguished from the source and
identity of the product. If a trademark becomes generic, the original owner
loses exclusive rights to use the xxxx. Any competitor can then use the
trademark and take advantage of the advertising and promotion dollars spent by
the former owner. Some famous former trademarks that have become generic are
nylon, escalator, kerosene, and zipper.
Fortunately, it is fairly easy to protect our trademarks. You need only
follow these six rules of proper trademark usage:
1. A trademark should always be used in a manner that will distinguish it
from the surrounding text. Capitalize trademarks completely, use
initials caps with quotes, bold face type, or italics, or as a minimum,
use initial caps. It is preferred that XXXX-TEX not be separated, i.e.,
GORE on one line and TEX on another. The generic product name should not
be capitalized.
Right: Garments of XXXX-TEX(R) fabric
Wrong: Garments of xxxx-tex fabric
2. Always follow trademark with the appropriate trademark notice and
footnote. The appropriate trademark notice should appear at least once
in each piece of printed matter, preferably the first time the trademark
appears. The footnote usually appears at the bottom of the last page.
Example: XXXX-TEX(R) fabric
Footnote: (R)Registered Trademark of X.X. Xxxx & Associates,
Inc.
Example: XXXX-TEX(TM) insert
Footnote: (TM)Trademark of X.X. Xxxx & Associates, Inc.
3. Most importantly, a trademark is a proper adjective and when used in
print such as in advertising, catalogues, promotions, brochures, hang
tags, radio, etc. must always be
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followed by its generic or common name. The trademark should never be
used alone when it appears in text.
Right: XXXX-TEX(R) glove insert
Wrong: gloves made of XXXX-TEX
When a trademark is used directly on an article, such as a parka,
jacket, shoes, golf suit, etc., manufactured under license to the trademark
owner's specifications, then the article itself supplies the noun and the
trademark can stand alone.
Right: XXXX-TEX(TM) alone on a label incorporated in a
parka, jacket, rainsuit, etc.
When a trademark is used in print such as in advertising, catalogues,
hangtags, promotions, brochures, radio, etc., in reference to a licensed
product, it must be followed by its generic or common name.
Right: XXXX-TEX(R) parka, XXXX-TEX(R) gloves
4. Trademarks should never be used in the possessive sense.
Right: The popularity of XXXX-TEX(R) products.
Wrong: XXXX-TEX's popularity
5. Do not coin new words or terms for a trademark.
Wrong: This fabric has been GORE-TEXED
Wrong: GORE-TEXABLE fabric
6. Trademarks identify and distinguish our products from those of other
companies, therefore, our trademarks must not be combined or
intermingled with the trademarks of other companies.
Right: XXXX-TEX(R) golf shoes from ETONIC(R)
XXXX-TEX(R) shoes, the ULTRALIGHT(TM) collection
from
TIMBERLAND(TM)
XXXX-TEX(R) parka - EXTREME GEAR(TM) from THE NORTH
FACE(R)
Wrong: ETONIC XXXX-TEX golf shoes
TIMBERLAND'S XXXX-TEX ULTRALIGHTS
THE NORTH FACE XXXX-TEX EXTREME GEAR
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SCHEDULE B
Guide To The Proper Use Of The Trademark
"GUARANTEED TO KEEP YOU DRY"
"GUARANTEED TO KEEP YOU DRY" is a slogan trademark to be used in
connection with outerwear manufactured under the auspices of X.X. Xxxx &
Associates, Inc. It shall only be used on garment styles approved by X.X. Xxxx &
Associates, Inc.
The trademark should be used either in all caps or initial caps with the
registered (R) following:
GUARANTEED TO KEEP YOU DRY(R)
Guaranteed to Keep You Dry(R)
Since slogans do not require the use of a noun, it may be used alone as
above. However, it may also be used in the following manner:
GUARANTEED TO KEEP YOU DRY(R) program
GUARANTEED TO KEEP YOU DRY(R) label
The slogan "GUARANTEED TO KEEP YOU DRY(R)" should never be sued in a
non- trademark manner such as:
This parka is guaranteed to keep you dry. Alternative wording shall be
used, for example:
This parka is engineered so you stay comfortable and dry.
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SCHEDULE F
MANUFACTURING CERTIFICATION AGREEMENT
BETWEEN
FALCON SHOE MANUFACTURING CO.
AND
X.X. XXXX & ASSOCIATES, INC.
Manufacturing Location(s)
-------------------------
Falcon Shoe Manufacturing Co.
#0 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
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