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EXHIBIT 10.47
AGREEMENT FOR SERVICES
BETWEEN
XXXXX XXXXXX MEDIA, LLC
AND
VVI FULFILLMENT CENTER, INC.
Table of Contents
ARTICLE 1 SERVICES......................................................................................1
Section 1.1 Providing and Purchasing Services.............................................................1
Section 1.2 Services Defined..............................................................................1
ARTICLE 2 PREPARATION AND OPERATIONS....................................................................2
Section 2.1 Preparation and Soft Launch...................................................................2
Section 2.2 Initial Operations............................................................................4
Section 2.3 Continuing Operations.........................................................................4
Section 2.4 Year Two Service..............................................................................4
Section 2.5 Merchandise...................................................................................4
Section 2.6 Shrinkage or Damage to Goods on the Premises..................................................5
ARTICLE 3 PAYMENT FOR SERVICES..........................................................................5
Section 3.1 Payments......................................................................................5
Section 3.2 Costs.........................................................................................6
Section 3.3 Invoices......................................................................................6
Section 3.4 Taxes on Payments.............................................................................6
Section 3.5 Unpaid Amounts................................................................................6
Section 3.6 Audit Rights..................................................................................6
ARTICLE 4 TERM AND TERMINATION..........................................................................7
Section 4.1 Term..........................................................................................7
Section 4.2 Early Termination.............................................................................7
ARTICLE 5 REPRESENTATIONS, WARRANTIES AND COVENANTS.....................................................9
Section 5.1 Representations, Warranties and Covenants of Contractor.......................................9
Section 5.2 Representations, Warranties and Covenants of the Company.....................................10
ARTICLE 6 OTHER TERMS AND CONDITIONS...................................................................11
Section 6.1 Force Majeure................................................................................11
Section 6.2 Compliance with Law..........................................................................11
Section 6.3 Confidentiality..............................................................................11
Section 6.4 Indemnification..............................................................................12
Section 6.5 Insurance....................................................................................13
Section 6.6 Dispute Resolution...........................................................................14
Section 6.7 Assignment...................................................................................14
Section 6.8 Notices......................................................................................14
Section 6.9 Counterparts.................................................................................15
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Section 6.10 Relationship.................................................................................15
Section 6.11 Severability.................................................................................15
Section 6.12 Waiver.......................................................................................16
Section 6.13 Publicity....................................................................................16
Section 6.14 Headings; References of Inclusion............................................................16
Section 6.15 Entire Agreement.............................................................................16
Section 6.16 Survival.....................................................................................16
Section 6.17 Third Party Beneficiaries....................................................................16
Section 6.18 Governing Law................................................................................16
Section 6.19 No Jury Trial................................................................................16
Section 6.20 Negotiated Terms.............................................................................16
Section 6.21 Amendment....................................................................................16
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Exhibits and Schedules
EXHIBIT 1 TELEMARKETING SERVICES: SPECIFICATIONS
A. Telephone Orders
B. Non-Direct Sales Related Calls
C. Security
D. Sub-contractors
EXHIBIT 2 ORDER AND RECORD SERVICES: SPECIFICATIONS
A. General requirements
B. Mail, E-mail and Fax Orders
C. Shipping and Handling (S&H) Charges
D. Reporting and Collection of Taxes, Duties, etc.
E. Special Services
F. Credit Card Authorization and Settlement
G. Drop Ship Item Processing
H. Customer Service
I. Fulfillment of Catalog Requests
J. Fraud Control
K. List Maintenance and Marketing Database
Schedule A Customer Master Records: Minimum Data Elements
Schedule B Order Master Records: Minimum Data Elements
Schedule C Returns Master Records: Minimum Data Elements
Schedule D Inventory Master Records: Minimum Data Elements
EXHIBIT 3 MERCHANDISE AND WAREHOUSE SERVICES: SPECIFICATIONS
A. Receipt and Storage
B. Quality Control
C. intentionally omitted
D. Pick/Pack/Ship Orders
E. Gift Orders and Related Services
F. Monogramming Services
G. Backorder Processing
H. Merchandise Returns and Exchanges
I. Inventory Management
J. Supplies and Consumables
K. Security
L. Special Projects
M. Reporting Requirements
EXHIBIT 4 COSTS
A. Direct Distribution Costs
B. Direct Call Receipt and Customer Service Costs
C. Direct System Costs
D. Shipping Costs
E. Credit Card and Check Processing Fees
F. Acknowledgment Regarding Travel and Consulting Expenses
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AGREEMENT FOR SERVICES
This Agreement for Services (this "Agreement") is made and entered into this
7th day of February, 2000, by and between Xxxxx Lauren Media, LLC, a limited
liability company organized under the laws of the State of Delaware (the
"Company"), and VVI Fulfillment Center, Inc., a corporation organized under the
laws of the State of Minnesota ("Contractor").
WHEREAS, the Company is engaged in the business of establishing, designing and
managing catalogs and online sales activities, and engaging in direct marketing
and other activities incident to the sale of apparel, accessories and home
products under the Polo and Xxxxx Xxxxxx Brands (as such term is defined in that
certain Amended and Restated Limited Liability Company Agreement, dated as of
the date hereof, by and among Xxxx Xxxxx Lauren Corporation, a Delaware
corporation ("Polo"), National Broadcasting Company, Inc., a Delaware
corporation, ValueVision International, Inc., a Minnesota corporation, XXXX.xxx
LLC, a Delaware limited liability company, and NBC Internet, Inc., a Delaware
corporation) and other names owned and licensed to the Company by Polo; and
WHEREAS, the Company desires to obtain telemarketing services so as to receive
and process telephone orders and receive and respond to catalog inquiries and
other pre-order inquiries regarding products information and availability, and
Contractor wishes to provide such services to the Company in accordance with the
terms hereof; and
WHEREAS, the Company desires to obtain fulfillment services so as to receive,
process and fill orders by mail, facsimile and electronic mail, and Contractor
wishes to provide such services to the Company in accordance with the terms
hereof;
NOW, THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the parties hereby agree
as follows:
ARTICLE 1
SERVICES
Section 1.1 Providing and Purchasing Services. During the Term (as hereinafter
defined), Contractor shall provide the Services (as hereinafter defined) to the
Company, and the Company shall purchase the Services from Contractor, in each
case on the terms, and subject to the conditions, set forth in this Agreement.
During the Term, the Company shall obtain the Services from Contractor as the
Company's sole and exclusive provider of such services and shall not at any time
during the Term obtain or contract for the Services or similar services from any
other source; provided, however, that the foregoing shall not limit the right of
the Company to enter into any other contract or agreement with any person or
entity other than Contractor to obtain any category of Services if and to the
extent Contractor is unable in any material respect to satisfy quality standards
stated in this Agreement relating to such category of Services.
Section 1.2 Services Defined.
(a) The "Services" consist of the Telemarketing Services, the Order and
Record Services and the Merchandise and Warehouse Services, each as defined
below.
(i) The "Telemarketing Services" consist of receiving and processing
telephone orders and telephone inquiries regarding merchandise, and developing
and maintaining a telemarketing system for such purposes, as specified in
Exhibit 1 to this Agreement.
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(ii) The "Order and Record Services" consist of receiving and
processing orders for merchandise by mail, facsimile and electronic mail,
providing records of such orders and related customer-service functions, and
developing and maintaining a records system for such purposes, as specified in
Exhibit 2 to this Agreement.
(iii) The "Merchandise and Warehouse Services" consist of receiving and
shipping merchandise, providing warehousing functions and merchandise management
functions and developing a system for such purposes, as specified in Exhibit 3
to this Agreement.
(b) A "Year Two Service" is any Service identified as a "Year Two
Service" in the Exhibits hereto.
ARTICLE 2
PREPARATION AND OPERATIONS
Section 2.1 Preparation and Soft Launch.
(a) The "Preparation Period" shall be the period commencing on the date
hereof and ending on the Launch Date (as hereinafter defined). The "Launch Date"
shall be (i) November 1, 2000, or (ii) such later date as the Company may
establish by written notice to Contractor given before September 1, 2000;
provided, however, that in no event shall the Launch Date be later than December
1, 2000.
(b) During the Preparation Period, Contractor shall take all such
reasonable action as is necessary to enable it to provide substantially all of
the Services (other than any Year Two Service) by the Soft Launch Date (as
hereinafter defined), including acquiring or otherwise obtaining the rights to
use (by lease, purchase or such other means as Contractor may determine) such
space, furniture, fixtures and equipment as necessary or desirable for
developing, completing and testing the systems and facilities to be utilized in
rendering the Services. During the Preparation Period, Contractor shall report
to the Company, no less frequently than once each month, all important items and
events, including the dates of arrival of fixtures and equipment and the testing
of key systems.
(c) During the Preparation Period, Contractor shall hire or otherwise
obtain the services of such personnel as needed for providing the Services,
which personnel may include newly hired personnel as well as persons currently
employed by Contractor. During the Preparation Period, Contractor shall allow
the Company reasonable input in the selection and hiring of senior officers of
Contractor to be responsible for providing the Services. Contractor shall train
and schedule such personnel so as to be capable and available to provide
substantially all of the Services (other than any Year Two Service) not later
than the Soft Launch Date.
(d) During the Preparation Period, Contractor shall test the equipment,
software and systems that Contractor intends to utilize in rendering the
Services to ensure that each has the capability of providing substantially all
of the Services (other than any Year Two Service) by the Soft Launch Date. In
connection with such testing and otherwise in preparation for the Soft Launch
Date, the Company will provide to Contractor such customer lists, databases,
policies, product information, forecasts and other information as the Company
owns (or has access to and is not prohibited from providing) and such other
assistance as Contractor may reasonably request for purposes of commencing
operations on the Launch Date and for performing the operations required during
the Soft Launch Period (as hereinafter defined).
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(e) The "Soft Launch Date" shall be 30 days prior to the Launch Date.
During the period between the Soft Launch Date and the Launch Date (the "Soft
Launch Period"), Contractor shall provide, on a trial basis, substantially all
of the Services (other than any Year Two Service) to specially selected
employees of the Company in order to test the ability of Contractor to provide
such Services. During the Soft Launch Period, Contractor shall respond to all
reasonable requests of the Company to correct or modify the provision of the
Services to conform to the specifications set forth in Exhibits 1, 2 and 3
hereto and to such other corrections and modifications as the Company may
reasonably request and to which Contractor consents (which consent shall not be
unreasonably withheld or delayed). During the Soft Launch Period, Contractor
shall take all necessary actions to ensure that substantially all of the
Services (other than any Year Two Service) are operational by the Launch Date.
(f) Without limiting Contractor's obligations to attempt to meet the
requirements of this Section, including the actions to be performed during the
Soft Launch Period, the Company acknowledges and agrees that it will not be a
breach of this Agreement if Contractor is prevented from meeting the
requirements of this Section due to delays, actions or omissions by third
parties that are beyond the control of Contractor.
(g) If Contractor is unable to provide all or any portion of the
Services by the date required hereunder, then Contractor shall engage one or
more third parties (each a "Subcontractor") to provide such Services
("Subcontracted Services"), and Contractor, while providing the remaining
Services, shall continue to develop its capability to provide the Subcontracted
Services. Contractor shall include in its regular reports to the Company
(pursuant to Section 2.1(b) above) information about any need for any
Subcontractor and about the status of negotiations with any potential
Subcontractor. The parties hereby acknowledge that any potential inability of
Contractor to provide all of the Services by November 1, 2000 may require
negotiations with potential Subcontractors as early as May 2000. The final
selection of any Subcontractor (but not the terms of any agreement therewith)
shall be subject to the Company's consent (which consent shall not be
unreasonably withheld or delayed). Notwithstanding the foregoing, Contractor
shall provide the Company with the terms of any agreement with any Subcontractor
at the time Contractor seeks the consent of the Company described in the
immediately preceding sentence. As between Contractor and the Company,
Contractor shall be responsible for the performance of Subcontracted Services
(as specified in the Exhibits hereto), subject to the limitations on liability
in Section 6.4 below. Contractor shall ensure that all standards and
specifications attached as Exhibits hereto which relate to the Services to be
performed by any Subcontractor shall become part of the terms and conditions of
any agreement with such Subcontractor. Contractor shall be responsible for any
Services performed (or failed to be performed, as the case may be) by each
Subcontractor and shall be liable for any Losses (as hereinafter defined)
arising from any such performance or non-performance to the same extent that
Contractor would be liable if it were providing such Services (e.g., the bad
faith, gross negligence, willful misconduct or fraud of any Subcontractor would
be attributed to Contractor). Contractor shall provide prompt notice to the
Company of the date on which Contractor shall have the capability to provide any
Subcontracted Services to facilitate the smooth transition of such Subcontracted
Services to Contractor. The parties acknowledge and agree that the engagement of
any Subcontractor under this Section shall not cause the Company to incur
additional payment obligations hereunder; therefore, any Costs for Subcontracted
Services shall not exceed the Costs that would have been incurred if Contractor
(rather than such Subcontractor) had provided such Subcontracted Services, and
any excess Costs for the Subcontracted Services shall be borne solely by
Contractor. In the event Contractor fails to perform all or any portion of the
Services hereunder (except any Year Two Service) or to secure any Subcontractor
in accordance with this Section 2.1(g) by December 1, 2000, then the Company
shall have the right to terminate this Agreement and may pursue such remedies as
are available to it at law or in equity.
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Section 2.2 Initial Operations.
(a) Prior to the Soft Launch Date, each of the Company and Contractor
shall designate in writing an individual as the designating party's
representative (the "Company Representative" and the "Contractor
Representative", respectively), with each such individual having the authority
to represent his or her designating party with respect to matters relating to
this Agreement, including making decisions for and executing documents on behalf
of such party, performing the actions described in Section 2.2(c) below and
executing amendments to this Agreement. Each party may from time to time name a
replacement for its representative by written notice to the other pursuant to
the notice provisions herein.
(b) During the period commencing on the next day following the Launch
Date and continuing through the last day of the sixth full calendar month
following such next day (the "Initial Operations Period"), Contractor shall
provide all of the Services (other than any Year Two Service).
(c) Within five days after the end of each full calendar month during
the Initial Operations Period, the Company Representative and the Contractor
Representative shall meet at the principal place of business of the Company or
Contractor to (i) review the Services as provided during that portion of the
Initial Operations Period then elapsed, (ii) identify any alleged deficiencies
in such Services and any alleged failure by Contractor or the Company to fulfill
its obligations hereunder, (iii) determine such actions, if any, that each party
shall take to remedy any such deficiency or failure, and (iv) prepare and sign a
report describing such actions (an "Adjustment Report").
Section 2.3 Continuing Operations. Commencing on the next day following the
termination of the Initial Operations Period, Contractor shall provide all the
Services (other than Year Two Services) in accordance with this Agreement, as
adjusted in accordance with each Adjustment Report (as applicable). Within 30
days following the end of each calendar quarter, the Company Representative and
the Contractor Representative shall meet at the principal place of business of
the Company or Contractor, review the Services during the preceding calendar
quarter, and determine any adjustments needed to cause each party to fulfill its
obligations under this Agreement.
Section 2.4 Year Two Service. Commencing on the first anniversary of the Launch
Date, Contractor shall provide each Year Two Service (in addition to the other
Services).
Section 2.5 Merchandise; Forecasts.
(a) Throughout the Term, the Company shall provide to Contractor
sufficient inventory of merchandise to allow Contractor to perform the Services
in accordance with the terms hereof. Contractor shall have no liability to the
Company or otherwise for any loss caused directly or indirectly by the Company's
failure to provide sufficient inventory of merchandise. The Company shall cause
all merchandise to be such that it does not include or contain any hazardous,
controlled or regulated substances, or any substance or material that is
perishable or otherwise subject to expiration or deterioration, it being
understood that the merchandise may include fragrances and any other merchandise
that is stored in the ordinary course of business in Polo's distribution center
in Greensboro, North Carolina. The Company shall not ship to Contractor (or
permit any other person to ship to Contractor) any merchandise unless it is
prepaid. Contractor may reject any shipment of merchandise which does not comply
in all material respects with the requirements of this Agreement.
(b) Within 90 days after the date of this Agreement, the Company shall
provide Contractor with a business plan that sets forth forecasts of future
sales and orders (the "Original Forecast"), and Contractor shall take such
actions as are necessary to meet the demand reflected in the Original Forecast
plus an additional 20% of all forecasted amounts. Throughout the Term, the
Company shall provide to
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Contractor from time to time updated forecasts of future sales and orders
("Updated Forecasts" and together with the Original Forecast, the "Forecasts").
The timing and scope of the Forecasts shall be as mutually agreed by the Company
and Contractor from time to time. The Company and Contractor acknowledge and
agree that the Forecasts will be the basis for Contractor's retention of
personnel and other resources to support the Services. Contractor shall
(i) take such actions as are necessary to meet any demand for
Services anticipated in the then-applicable Updated Forecast to the
extent that such demand for any three-month period does not exceed 120%
of the actual demand for the preceding three-month period (the "120%
Limit"),
(ii) take such actions as are necessary to meet any demand for
Services exceeding the 120% Limit so long as the Company shall have
provided a Forecast predicting such demand to Contractor at least 180
days in advance of the date on which such demand is experienced, and
(iii) use its reasonable best efforts to meet any demand for
Services in excess of any demand described in the immediately preceding
clauses (i) or (ii); provided, however, that if Contractor shall have
used such reasonable best efforts, then Contractor shall not be liable
for any reduction in the quality or speed of Services caused by such
additional demand, and such reduction shall not be a breach of this
Agreement.
Section 2.6 Shrinkage or Damage to Goods on the Premises.
(a) Shrinkage. Contractor is permitted (i) a zero allowance for
shrinkage on Collection Brands (as defined in the LLC Agreement), to the extent
shipped to Contractor and (ii) shrinkage of one-tenth of one percent of total
units shipped for all other goods measured against the Company's perpetual
inventory. Contractor will be charged costs for shrinkage in excess of this
allowance at the Company's cost unless the excess shrinkage is due to damaged
goods, which will be handled as described below.
(b) Damages Due to Negligence. In addition to the above, Contractor is
liable for damage to the goods when the goods are in Contractor's possession,
custody or control in the course of performing the services under this
Agreement, including the receipt, handling, storage, picking and packing of the
goods for shipment, if such damage is caused by Contractor's negligent errors or
omission or its failure to exercise reasonably prudent care under the
circumstances. Contractor is not an insurer and is not liable for damage which
was unforeseeable and which could not have been prevented by Contractor's
exercise of reasonable care.
ARTICLE 3
PAYMENT FOR SERVICES
Section 3.1 Payments.
(a) In consideration of Contractor's undertaking to provide the
Services hereunder, the Company shall pay to Contractor in accordance with
Section 3.3 each amount determined in accordance with this Article 3 (each a
"Payment").
(b) For each calendar month during the Term of this Agreement, the
Payment shall be an amount (computed in United States dollars) equal to 110% of
all Costs (as hereinafter defined) incurred by Contractor during such month.
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Section 3.2 Costs. For each calendar month, the "Costs" shall consist of all
reasonable direct costs and expenses paid or incurred by Contractor to provide
Services during or with respect to such month, including those listed in Exhibit
4, in each case determined by the accrual method of accounting, in accordance
with generally accepted accounting principles consistently applied ("GAAP"). For
purposes of this Agreement, any reasonable cost or expense of any type listed in
Exhibit 4 hereto shall be included as a Cost.
Section 3.3 Invoices.
(a) For each calendar month, Contractor shall provide to the Company an
invoice showing in reasonable detail all Costs for such month and the Payment
for such month. Such Payment will be due 30 days after submission of such
invoice to the Company.
(b) If Contractor receives, after submitting an invoice to the Company,
any refund, rebate or other reduction of any Costs reflected on such invoice,
then Contractor shall take such refund, rebate or reduction into account and
shall credit the Company on the next invoice following Contractor's receipt of
such refund, rebate or other reduction. If Contractor determines, after
submitting an invoice to the Company, that any Cost was overstated or
understated on such invoice or was included on or omitted therefrom in error, or
that the Payment shown thereon was otherwise erroneously stated, then Contractor
shall correct such Payment by a credit or charge (as the case may be) and state
such credit or charge on the next invoice following such determination, and the
amount of such credit or charge shall be included in the Payment shown on such
next invoice (provided, however, that no Payment shall be increased without the
Company's consent unless such increase is reflected on an invoice received by
the Company within 90 days of the invoice originally stating such payment). No
later than 120 days after the end of the Term, Contractor shall provide a final
invoice settling any such understatements or overstatements.
Section 3.4 Taxes on Payments. If any Payment is subject to any sales tax,
service tax, use tax, gross-receipts tax, value-added tax or other tax of a
similar nature or having similar effect, Contractor shall compute such tax
according to the applicable legal requirements, shall state the amount of such
tax on each invoice to which it applies, and the amount of such tax shall become
part of the Payment shown thereon.
Section 3.5 Unpaid Amounts. If any Payment or part thereof is not paid when due,
interest shall accrue on the unpaid principal amount of such Payment from and
after the date which is 10 days after the date the same became due at the lower
of (a) the highest rate permitted by law in New York and (b) 2% per annum above
the prime rate of interest in effect from time to time at The Chase Manhattan
Bank, New York, New York, or any successor bank.
Section 3.6 Audit Rights. No later than 90 days after the end of each fiscal
year of the Company, Contractor shall deliver to the Company a statement of the
Services provided and related Costs in such fiscal year (the "Servicing
Statement"). The Company shall have 90 days to review the Servicing Statement.
Contractor shall grant the Company and the Company's accountants and
representatives such access as may be reasonably requested to the books, records
or other information relating to such Services and Costs in Contractor's
possession or control that may be used or is useful in such review, it being
understood that such information shall be subject to the confidentiality
obligations herein. Unless the Company delivers a written notice of objection to
Contractor on or prior to the 90th day after the Company's receipt of the
Servicing Statement, specifying in reasonable detail all disputed items (an
"Objection Notice"), the Company shall be deemed to have accepted and agreed to
such Servicing Statement for and all Services provided by Contractor. If the
Company delivers an Objection Notice, the Company and Contractor shall resolve
such dispute pursuant to Section 6.6 of this Agreement. If the
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Company and Contractor fail to resolve such dispute pursuant to Section 6.6, any
disputed amounts shall be submitted for resolution to a neutral arbitrator. Each
of the Company and Contractor agrees to execute, if so requested by such
arbitrator, a reasonable engagement letter. The costs, expenses and fees of such
arbitrator shall be borne by the Company and Contractor based upon the ratio of
(a) that portion of the disputed amount not awarded to each party, to (b) the
total disputed amount (e.g., if the Company demanded a refund of $100,000, all
of which Contractor disputed, and the arbitrator awarded $40,000 to the Company,
then the Company would pay 60% of the costs, expenses and fees and Contractor
would pay 40%).
ARTICLE 4
TERM AND TERMINATION
Section 4.1 Term. The term of this Agreement shall commence on the date of this
Agreement and shall continue until June 30, 2010 (the "Initial Term"), and shall
thereafter automatically renew for successive periods of one year (each a
"Renewal Term") unless either party gives notice of non-renewal not less than
120 days before the expiration of the Initial Term or any Renewal Term (as
applicable). The "Term" of this Agreement consists of the Initial Term plus each
Renewal Term.
Section 4.2 Early Termination.
(a) Notwithstanding any other remedy available to Contractor, in the
event that the Company materially breaches this Agreement and:
(i) Contractor notifies the Company in writing (with
specificity) that the Company has materially breached this Agreement
and the Company has not cured such alleged breach within 30 days of its
receipt of such notice (or, if such breach is not capable of being
totally cured due to the nature of such breach and the Company fails to
take all reasonable actions to prevent recurrence of such breach within
60 days of such notice and has not in fact prevented the recurrence of
such breach by such 60th day); or
(ii) the Company admits in writing its inability to pay its
debts generally; makes a general assignment for the benefit of
creditors; has any proceeding instituted by or against it seeking to
adjudicate it as bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief or
composition of the Company or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a
receiver, trustee or similar official for it or any substantial part of
its property; provided, however, that in the case where such proceeding
is involuntarily instituted against the Company, such proceeding
remains undismissed after 30 days,
then, in any such case, Contractor shall have the right, but not the obligation,
to terminate this Agreement, without prejudice to the rights of the parties
hereunder, by written notice to the Company given within 30 days after the
30-day or 60-day period (as applicable) described in the preceding clause (a)(i)
or within 30 days after any event described in the preceding clause (a)(ii).
Such termination shall be effective on the 120th day after the date such notice
of termination is given.
(b) Notwithstanding any other remedy available to the Company, in the
event that Contractor materially breaches this Agreement and:
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(i) the Company notifies Contractor in writing (with
specificity) that Contractor has materially breached this Agreement and
Contractor has not cured such alleged breach within 30 days of its
receipt of such notice (or, if such breach is not capable of being
totally cured due to the nature of such breach and Contractor has not
taken all reasonable actions to prevent recurrence of such breach
within 60 days of such notice and has not in fact prevented the
recurrence of such breach by such 60th day); or
(ii) Contractor admits in writing its inability to pay its
debts generally; makes a general assignment for the benefit of
creditors; has any proceeding instituted by or against it seeking to
adjudicate it as bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or
composition of Contractor or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a
receiver, trustee or similar official for it or any substantial part of
its property; provided, however, that in the case where such proceeding
is involuntarily instituted against Contractor, such proceeding remains
undismissed after 30 days,
then, in any such case, the Company shall have the right, but not the
obligation, to terminate this Agreement, without prejudice to the rights of the
parties hereunder, by written notice to Contractor given within 30 days after
the 30-day or 60-day period (as applicable) described in the preceding clause
(b)(i) or within 30 days after any event described in the preceding clause
(b)(ii). Such termination shall be effective on the 120th day after the date
such notice of termination is given.
(c) Notwithstanding clauses (a)(i) and (b)(i) above, if a party
believes in good faith that it has not breached this Agreement, it shall so
inform the other party within 10 days of receipt of notice of the alleged
breach, and the time periods set forth in clause (a)(i) or (b)(i), as the case
may be, shall be tolled for 60 days or such longer period as the parties may
reasonably agree (the "Tolling Period") in order to allow representatives from
each party to meet to resolve the disagreement. Promptly after commencement of
the Tolling Period, the non-breaching party shall provide the breaching party
(if any) with a reasonable written proposal in reasonable detail for curing the
alleged breach, and a termination right shall occur only if the breaching party
fails to comply with the terms of such proposal. The time periods set forth in
clauses a(i) or b(i), as the case may be, shall resume if no resolution is
reached during the Tolling Period.
(d) The parties acknowledge and agree that certain failures of
performance that may be breaches of this Agreement (including, for example,
failure to pay an amount on or before the due date thereof, failure to provide a
report on or before the due date thereof, or shipping an order to a destination
outside the Territory) cannot be totally cured due to the expiration of the time
period or the irrevocability of the act and that such a failure is not intended
to give rise to a right of termination hereunder if such failure is not chronic
or frequent and the failing party does remedy such failure to the extent
possible (by, for example, paying such amount or delivering such report) and
takes all actions necessary to prevent recurrence of such failure.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.1 Representations, Warranties and Covenants of Contractor. Contractor
represents, warrants and covenants to the Company as follows:
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(a) Contractor is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Minnesota.
(b) Contractor has all requisite corporate power and authority to
execute and deliver this Agreement and perform all of its obligations under this
Agreement.
(c) Contractor is duly authorized or qualified to do business and is in
good standing in each jurisdiction in which authorization or qualification is
required for the ownership or leasing of its assets or the transaction of
business of the character transacted by it, except where the failure to be so
authorized or qualified would not have any material adverse effect on
Contractor's ability to fulfill its obligations under this Agreement.
(d) Execution, delivery and performance of this Agreement have been
duly authorized by Contractor, and this Agreement constitutes a valid and
binding agreement of Contractor, enforceable in accordance with its terms.
(e) Contractor is in compliance in all material respects with all laws
applicable to Contractor, except where the failure to be in such compliance
would not impair in any material respect Contractor's ability to fulfill its
obligations under this Agreement.
(f) As of the date of this Agreement, there is no outstanding
litigation or other legal dispute to which Contractor is a party which, if
decided unfavorably to Contractor, would reasonably be expected to have a
material adverse effect on Contractor's ability to fulfill its obligations under
this Agreement.
(g) The Services provided by Contractor shall be performed in a good,
workmanlike, timely and professional manner by adequate numbers of qualified
persons fully familiar with the requirements for the Services, and Contractor
shall use all necessary and desirable computer software, technology, databases,
networks, systems and other automated, computerized or related equipment
("Software") and other materials in connection with such performance.
(h) Contractor's performance of the Services and use of all Software
created by or on behalf of Contractor in connection therewith shall not
infringe, misappropriate or otherwise violate any intellectual property of the
Company, Polo or any other third party.
(i) With respect to any Software used by Contractor that interfaces,
interacts or connects in any manner ("Contractor Interfacing Software") to any
Software owned or otherwise used by the Company ("Company Software"), Contractor
Interfacing Software shall not communicate, transmit or cause any bugs, design
errors, defects, Trojan Horses, viruses or other corruptions or impairments to
the Company Software. If Contractor becomes aware of or receives notice from the
Company or otherwise of any of the foregoing circumstances, Contractor shall, if
applicable, immediately notify the Company of same and shall use its best
efforts, at Contractor's expense, to remedy such circumstances and repair all
harm as soon as possible.
(j) Contractor shall cause sales of merchandise hereunder to be
fulfilled only for orders placed by customers with addresses within the
Territory (as hereinafter defined) and shall cause such merchandise to be
shipped only to destinations within the Territory. The "Territory" shall mean
the United States of America (including the District of Columbia) and its
possessions and territories and other areas subject to its jurisdiction
(including the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands). Notwithstanding
the foregoing, the Company may from time to time expand the Territory to include
any additional country by providing written notice to Contractor of such
expansion; provided, however, that such expansion shall
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not be effective until Contractor shall have had a reasonable period to
integrate such expansion into the Services.
(k) Contractor shall be responsible for all risk of direct physical
loss of any inventory while it is in Contractor's possession or control during
the term of this Agreement.
Section 5.2 Representations, Warranties and Covenants of the Company. The
Company represents, warrants and covenants to Contractor as follows:
(a) The Company is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The Company has all requisite corporate power and authority to
execute and deliver this Agreement and perform all of its obligations under this
Agreement.
(c) The Company is duly authorized or qualified to do business and is
in good standing in each jurisdiction in which authorization or qualification is
required for the ownership or leasing of its assets or the transaction of
business of the character transacted by it, except where the failure to be so
authorized or qualified would not have any material adverse effect on the
Company's ability to fulfill its obligations under this Agreement.
(d) Execution, delivery and performance of this Agreement have been
duly authorized by the Company, and this Agreement constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms.
(e) The Company is in compliance in all material respects with all laws
applicable to the Company, except where the failure to be in such compliance
would not impair in any material respect the Company's ability to fulfill its
obligations under this Agreement.
(f) As of the date of this Agreement, there is no outstanding
litigation or other legal dispute to which the Company is a party which, if
decided unfavorably to the Company, would reasonably be expected to have any
material adverse effect on the Company's ability to fulfill its obligations
under this Agreement.
(g) The Company's performance of its obligations pursuant to this
Agreement and use of all Software created by or on behalf of the Company in
connection therewith shall not infringe, misappropriate or otherwise violate any
intellectual property of Contractor, Polo or any other third party.
(h) With respect to any Company Software that interfaces, interacts or
connects in any manner ("Company Interfacing Software") to any Software owned or
otherwise used by Contractor ("Contractor Software"), the Company Interfacing
Software shall not communicate, transmit or cause any bugs, design errors,
defects, Trojan Horses, viruses or other corruptions or impairments to the
Contractor Software. If the Company becomes aware of or receives notice from
Contractor or otherwise of any of the foregoing circumstances, the Company
shall, if applicable, immediately notify Contractor of same and shall use its
best efforts, at the Company's expense, to remedy such circumstances and repair
all harm as soon as possible.
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ARTICLE 6
OTHER TERMS AND CONDITIONS
Section 6.1 Force Majeure. If and to the extent that a party's performance of
any of its obligations under this Agreement is limited, hindered or delayed by
fire, flood, earthquake, or other similar acts of God, acts of war, terrorism,
riots, civil disorders, rebellions or revolutions, or any other cause beyond the
reasonable control of such party (each a "Force Majeure Event"), then such party
shall be excused for such limitation, hindrance or delay as is caused by the
Force Majeure Event, while (a) such Force Majeure Event continues to be the
cause and (b) such party continues to use its best efforts to fully perform,
whenever and to whatever extent reasonably practicable under the circumstances
(including through the use of alternate sources, workaround plans or other
means). Such party shall promptly notify the other party of the occurrence of
the Force Majeure Event and describe in reasonable detail the nature of the
Force Majeure Event and how such party plans to mitigate its effect. However, if
the Force Majeure Event is a catastrophic loss or other loss that as a result of
which a party fails to perform any substantial portion of its obligation
hereunder and such failure continues for more than 10 days, the party whose
ability to perform has not been so affected may, by written notice given within
60 days after the end of such 10-day period, terminate this Agreement with
respect to (i) the portion of this Agreement that the affected party is unable
to perform, and (ii) any additional portion of this Agreement that is integrated
with such terminated portion to such an extent that it is not reasonably
feasible for the affected party to continue providing such additional portion
(in each case giving consideration to factors such as the practical grouping of
various portions of the Services, the affected party's ability to continue
providing such portions and the other party's ability to replace such portions).
Section 6.2 Compliance with Law.
(a) At all times while this Agreement is in effect, Contractor shall
comply in all material respects with all laws applicable to Contractor, except
where the failure to be in such compliance would not impair in any material
respect Contractor's ability to fulfill its obligations under this Agreement.
(b) At all times while this Agreement is in effect, the Company shall
comply in all material respects with all laws applicable to the Company, except
where the failure to be in such compliance would not impair in any material
respect the Company's ability to fulfill its obligations under this Agreement.
Section 6.3 Confidentiality. Each party shall hold in confidence all
confidential information relating to or obtained from the other party, and
neither party shall disclose, publish, release, transfer or otherwise make
available to any person any confidential information of the other party in any
form. Each party may, however, disclose to its officers, directors, contractors
and employees the other party's confidential information to the extent that such
disclosure is reasonably necessary for the performance of the disclosing party's
obligations under this Agreement; provided, however, that the disclosing party
shall cause such officers, directors, contractors and employees to comply with
this Section and to preserve the confidentiality of such confidential
information in accordance with this Section. The obligations in this Section do
not prohibit disclosure of information to the extent it (a) is required by
applicable law, regulation or legal process, (b) is or becomes generally known
to the public other than through the disclosing party or its officers,
employees, agents or affiliates, (c) is lawfully obtained from a third party
under no duty of confidentiality, known to the disclosing party, to the party to
whom the confidentiality obligation is owed, (d) was otherwise in the possession
of the disclosing party prior to disclosure, or (e) was independently developed
by a third party.
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Section 6.4 Indemnification.
(a) Indemnification by Contractor. Subject to Section 6.4(d) below,
Contractor shall indemnify the Company and its affiliates, and each of their
respective officers, directors, employees, agents and representatives
(collectively, the "Company Indemnified Parties") from, and defend and hold the
Company Indemnified Parties harmless from and against, any damages, liabilities,
claims, judgments and expenses, including reasonable attorneys' fees, ("Losses")
suffered, incurred or sustained by the Company Indemnified Parties resulting
from or arising out of:
(i) any breach of this Agreement by Contractor;
(ii) the inaccuracy, untruthfulness or breach of any
representation or warranty made by Contractor under this Agreement; or
(iii) any claim for damages (whether for personal injury,
property damage or otherwise) resulting from any act or omission by
Contractor (including any of Contractor's personnel).
(b) Indemnification by the Company. Subject to Section 6.4(d) below,
the Company shall indemnify Contractor and its affiliates, and each of their
respective officers, directors, employees, agents and representatives
(collectively, the "Contractor Indemnified Parties") from, and defend and hold
Contractor Indemnified Parties harmless from and against, any Losses suffered,
incurred or sustained by Contractor Indemnified Parties resulting from or
arising out of
(i) any breach of this Agreement by the Company;
(ii) the inaccuracy, untruthfulness or breach of any
representation or warranty made by the Company under this Agreement; or
(iii) any claim for damages (whether for personal injury,
property damage or otherwise) resulting from any act or omission by the
Company (including any of the Company's personnel).
(c) Procedures for Third-Party Claims. If any third-party claim is
asserted against a party entitled to indemnification hereunder (the "Indemnified
Party"), then the Indemnified Party shall promptly (in any event within 30 days)
give notice thereof to the party that is obligated to provide indemnification
(the "Indemnifying Party"). Upon receipt of such notice, if the Indemnifying
Party elects to defend such third party claim, the Indemnified Party shall
cooperate in all reasonable respects with the Indemnifying Party and its
attorneys in the investigation and defense of such claim and any appeal arising
therefrom, and so long as the Indemnifying Party is defending such third party
claim in good faith, the Indemnified Party shall not pay, settle or compromise
such third party claim. If the Indemnifying Party elects to defend such third
party claim, the Indemnified Party shall have the right to participate in the
defense of such third party claim, at the Indemnified Party's sole cost and
expense. In the event, however, that representation by counsel to the
Indemnifying Party of both the Indemnifying Party and the Indemnified Party
creates a conflict of interest for such counsel, then such Indemnified Party may
employ separate counsel to represent or defend it in any such action or
proceeding and the Indemnifying Party will, subject to the provisions of this
Article 6, pay the reasonable fees and disbursements of such counsel. The
Indemnifying Party shall not, without the written consent of the Indemnified
Party, (i) settle or compromise any third party claim or consent to the entry of
any judgment which does not include as an unconditional term thereof the
delivery by the claimant or plaintiff to the Indemnified Party of a written
release from all liability in respect of such third party claim or (ii) settle
or compromise any third party
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claim in any manner other than by payment of money damages or other money
payments (and in such case only so long as the Indemnifying Party has
acknowledged in writing its obligation to indemnify). If the Indemnifying Party
does not elect to defend such third party claim or does not defend such third
party claim in good faith, the Indemnified Party shall have the right, in
addition to any other right or remedy it may have hereunder, at the Indemnifying
Party's expense, to defend such third party claim; provided, however, that (i)
such Indemnified Party shall not have any obligation to participate in the
defense of, or defend, any such third party claim; (ii) such Indemnified Party's
defense of or its participation in the defense of any such third party claim
shall not in any way diminish or lessen the indemnification obligations of the
Indemnifying Party under this Article 6; and (iii) such Indemnified Party may
not settle any claim without the prior written consent of the Indemnifying
Party, which will not be unreasonably withheld.
(d) Limitations on Liability. In no event shall either party's
liability hereunder include any special, indirect, incidental or consequential
Losses or damages, even if such party shall have been advised of the possibility
of such potential Losses or damages, except in the case of bad faith, gross
negligence, willful misconduct or fraud or in the event such damages are awarded
against an Indemnified Party by a court of competent jurisdiction in a third
party claim. Contractor's liability for Losses arising from any act or omission
related to Services shall be limited to the amount actually paid to Contractor
by the Company for such Services, and Contractor's total liability shall be
limited to the aggregate amount actually paid by the Company for Services
through the date the applicable claim was first made by the Company, except in
the case of bad faith, gross negligence, willful misconduct or fraud or in the
event such damages are awarded against an Indemnified Party by a court of
competent jurisdiction in a third party claim. Each party shall diligently
pursue any claims it may have against insurance companies or third parties in
respect of any Losses suffered by such party. Any monetary amounts recovered
from insurance companies or third parties shall be excluded in calculating
Contractor's total liability for purposes of the second preceding sentence.
Section 6.5 Insurance.
(a) At all times while this Agreement is in effect, Contractor shall
maintain policies of insurance providing coverage of the types and in the
respective amounts set forth below:
(i) statutory workers' compensation insurance in accordance
with all Federal, state and local requirements;
(ii) commercial general liability insurance in an amount not
less than $5,000,000 (which may be satisfied by either primary or
excess coverage);
(iii) comprehensive automobile liability covering all vehicles
used in connection with providing Services in an amount not less than
$1,000,000 per occurrence (combined single limit for bodily injury and
property damage);
(iv) the same levels of insurance coverage on the Company's
inventory in Contractor's possession as Contractor maintains with
respect to its own inventory in the same or similar warehouses.
(b) Contractor shall, upon the Company's request from time to time,
furnish to the Company certificates of insurance evidencing all such coverage.
Section 6.6 Dispute Resolution. For any dispute arising under this Agreement
that is not resolved informally, either party may give to the other party notice
of the dispute, including reasonable detail
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concerning the alleged deficiency in performance of the other party. The Company
Representative and the Contractor Representative shall then meet in person at
the principal place of business of Contractor and attempt in good faith to reach
an agreement resolving the dispute. If they do not reach such an agreement
within seven days after such notice is given, then each of them shall produce a
detailed report about the dispute for his or her immediate supervisor, who shall
meet in person at the principal place of business of Contractor and attempt in
good faith to reach an agreement. If they do not reach such an agreement within
the period specified below, then each party shall refer the dispute to higher
levels of management as shown below. In each case, the parties' specified
respective representatives shall meet in person at the principal place of
business of Contractor, shall attempt in good faith to reach an agreement and,
if they do not do so within the period specified, shall refer the dispute to the
next level at the end of such period.
----------------------------------------------------------------------------------------------------------------------
Period of Resolution
Management Level Company Management Level Contractor Management Level Efforts
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
First Level Representative's Supervisor Representative's Supervisor 14 days
----------------------------------------------------------------------------------------------------------------------
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Second Level Chief Financial Officer Chief Financial Officer 7 days
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Third Level President/CEO President/CEO 7 days
----------------------------------------------------------------------------------------------------------------------
If the parties have not signed a written agreement resolving the dispute by the
end of the period specified for the Third Level, then either party may pursue
such remedies as are available to it at law or in equity.
Section 6.7 Assignment. Neither party may, without the consent of the other
party, assign this Agreement or any rights or obligations hereunder, except that
either party may assign this Agreement without such consent to an entity that
succeeds to all or substantially all of the assigning party's business and
assets, provided such entity assumes the assigning party's rights and
obligations hereunder. The consent of a party to any assignment of this
Agreement does not constitute such party's consent to any further assignment.
Any assignment in violation of this Section is void.
Section 6.8 Notices. Any notice or other communication required or permitted
hereunder shall be in writing, and shall be deemed to have been given upon
receipt if and when delivered personally, sent by facsimile transmission (the
confirmation being deemed conclusive evidence of such delivery) or by courier
service or three business days after being sent by registered or certified mail
(postage prepaid, return receipt requested) as follows:
If to the Company: Xxxxx Xxxxxx Media, LLC
c/o Xxxx Xxxxx Lauren Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to: Xxxx Xxxxx Lauren Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
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and a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxxxxxx
(Facsimile No.: (000) 000-0000
If to Contractor: VVI Fulfillment Center, Inc.
c/o ValueVision International, Inc.
0000 Xxxxx Xxx Xxxx
Xxxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx,
Chief Operating Officer and
Executive Vice President
Facsimile No.: (000) 000-0000
with a copy to: National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
(Corporate & Transactions Group)
Facsimile No.: (000) 000-0000
and a copy to: Faegre & Xxxxxx LLP
0000 Xxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Facsimile No.: (000) 000-0000
Either party may change its address or facsimile number for notice purposes by
giving the other party notice (pursuant to this Section) of the new address or
facsimile number and the date upon which it will become effective.
Section 6.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which taken
together shall constitute one single agreement.
Section 6.10 Relationship. Contractor is engaged by the Company only for the
purposes and to the extent set forth in this Agreement, and its relationship to
the Company shall be that of an independent contractor, and nothing contained in
this Agreement is to be construed to make either party a partner, joint
venturer, principal, agent or employee of the other. Neither party hereto shall
have the right or authority to act for or to bind the other in any way or to
sign the name of the other or to represent that the other is in any way
responsible for the acts or omissions of the other.
Section 6.11 Severability. If any term or provision of this Agreement, or the
application thereof to any person or circumstances, is held by a court of
competent jurisdiction to be invalid or unenforceable, then each remaining
provision of this Agreement shall nonetheless remain in full force and effect.
Section 6.12 Waiver. No delay or omission by either party to exercise any right
or power it has under this Agreement shall impair or be construed as a waiver of
such right or power. A waiver by any party of any breach or covenant shall not
be construed to be a waiver of any succeeding breach or any other covenant. Any
waiver must be signed by the party waiving its rights.
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Section 6.13 Publicity. Neither party shall publish any advertising, promotion,
press release or other public statement relating to this Agreement in which the
other party's name or xxxx is mentioned (or which contains language from which
such name or xxxx is implied or may be inferred) without the other party's prior
written consent; provided, however, that either party may disclose the existence
of this Agreement in connection with any discussion of its business generally.
The obligations in this Section do not prohibit such disclosure to the extent
required by law, rule, regulation or stock exchange rule, but any party making
any such required disclosure shall use its reasonable best efforts to provide to
the other party advance notice of such requirement and an opportunity to seek a
court order or other relief preventing such disclosure.
Section 6.14 Headings; References of Inclusion. The headings of the sections and
paragraphs in this Agreement are for convenience only and do not affect the
construction or interpretation of the Agreement. Each reference herein to
"including" or "includes" shall be deemed to be followed by the words "without
limitation."
Section 6.15 Entire Agreement. This Agreement is the entire agreement between
the parties with respect to its subject matter, and there are no other
representations, understandings or agreements between the parties relating to
such subject matter.
Section 6.16 Survival. This Article 6 and each provision hereof shall survive
the expiration or termination of this Agreement and shall remain in full force
and effect notwithstanding any such expiration or termination.
Section 6.17 Third Party Beneficiaries. This Agreement shall not inure to the
benefit, or create any right or cause of action in or on behalf of, any person
or entity other than the parties and Polo.
Section 6.18 Governing Law. This Agreement and the rights and obligations of the
parties under this Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Section 6.19 No Jury Trial. Each party hereby knowingly, voluntarily and
irrevocably waives its right to any trial by jury and agrees that any dispute in
a court shall be decided solely by a judge (without the use of a jury).
Section 6.20 Negotiated Terms. The parties agree that the terms and conditions
of this Agreement are the result of negotiations between the parties and that
this Agreement may not be construed in favor of or against any party by reason
of the extent to which any party or its professional advisors participated in
the drafting or other preparation of this Agreement.
Section 6.21 Amendment. No amendment to any provision of this Agreement is valid
unless in writing and signed by an authorized representative of each party.
* * * * *
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IN WITNESS WHEREOF, each party has caused this Agreement to be signed and
delivered by its duly authorized representative, effective as of the date first
above written.
XXXXX XXXXXX MEDIA, LLC
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Its: President
-----------------------------------------
VVI FULFILLMENT CENTER, INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Its:
-----------------------------------------
GUARANTY
Effective as of the date of the foregoing Agreement for Services (the
"Agreement") between Contractor and the Company (each as defined in the
Agreement), ValueVision International, Inc., a Minnesota corporation and parent
corporation of Contractor ("ValueVision"), in consideration of the execution by
the Company of the Agreement, does hereby unconditionally guaranty to the
Company the full and timely performance of all obligations of Contractor under
the Agreement. ValueVision further agrees that this Guaranty shall be
irrevocable and shall continue in effect notwithstanding any extension or
modification of any guarantied obligation, or any act or thing (except full and
timely performance of all guarantied obligations) which might otherwise operate
as a legal or equitable discharge of ValueVision.
VALUEVISION INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Its: Vice Chairman
-------------------------------------
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