MARKETING AGREEMENT
THIS AGREEMENT is made as of October 18, 1995 by and between Innovative
Accessories Inc., an Oklahoma corporation ("IA"), and Xxxx Industries
Incorporated, a Minnesota corporation ("Xxxx").
RECITALS
A. IA and its principal shareholders have granted to Xxxx International
Holdings, Inc., a Delaware corporation and the parent of Xxxx ("Holdings"), an
option (the "Option") to purchase stock of IA.
B. In connection with the Option, IA and Xxxx desire to enter into
certain arrangements regarding the distribution of certain IA products pursuant
to the terms and conditions of this Agreement.
TERMS AND CONDITIONS
In consideration of the terms and provisions of this Agreement and for
other good and valuable consideration, the receipt and sufficiency of which is
acknowledged by the execution and delivery thereof, IA and Xxxx agree as
follows:
I. EXCLUSIVE MARKETING RIGHTS
1. GENERAL.
Subject to Section I.5 hereof, IA agrees to sell its products,
as set forth on Schedule 1 hereto (the "IA Products") to Xxxx as the exclusive
marketer of the IA Products and Xxxx agrees to market the IA Products under the
Xxxx label. If IA develops any new products, such new products shall also be
subject to this Agreement.
2. PURCHASE ORDER AND QUANTITY.
All deliveries and sales of IA Products shall be initiated
pursuant to the standard Xxxx purchase order, the current version of which is
attached as Schedule 2 hereto. If the terms of any Xxxx purchase order expressly
conflict with the terms and provisions hereof, then this Agreement shall be
deemed controlling. IA shall ship the IA Products F.O.B. IA's facilities in
Oklahoma City within ten (10) working days of receipt of a purchase order. IA
agrees to supply all Xxxx'x requirements for IA's Products.
3. PRICES.
The price per unit of the IA Products shall be the standard
cost of the IA Products, as agreed to by the parties from time to time, plus
10%. The initial standard costs for the IA Products is set forth on Schedule 3
hereto. Standard cost shall not include freight charges. However, Xxxx shall pay
all freight charges, including related administrative expenses. Xxxx shall pay
all invoices on Net 15 day terms.
4. PURCHASES OUT OF INVENTORY.
IA shall sell, and Xxxx shall purchase, the IA Products at
such time as the IA Products are transferred from work-in-progress to finished
goods inventory.
5. RETENTION OF MARKETING RIGHTS.
Xxxx'x exclusive marketing rights shall not include the OEM
and private label customers specified on Schedule 4 hereto. IA retains all
marketing rights with respect to such customers.
II. REPRESENTATIONS AND WARRANTIES
IA hereby represents and warrants to the other party hereto as follows:
1. INSURANCE.
IA has obtained and will maintain product liability insurance
and blanket contractual liability insurance respecting the IA products in the
minimum amount of One Million Dollars ($1,000,000) single limit for bodily
injury, death, illness or property damage with an umbrella policy which provides
at least an additional $1,000,000 in coverage. During the term of this
Agreement, IA shall name Xxxx as an additional insured under such policies.
2. RESALE RIGHTS.
IA has not granted any resale or distribution rights or
licenses for the IA Products which would restrict or limit Xxxx'x rights
hereunder and will not do so during the term of this Agreement.
3. INTELLECTUAL PROPERTY.
IA has obtained and will maintain all patents, trademarks,
copyrights, licenses, permits and authorizations necessary to the manufacture,
packaging and other processing of the IA Products and the delivery and sale of
such products.
4. WARRANTY.
IA warrants its products to be sold under this Agreement
against all defects in material and workmanship and warrants that they are
suitable for the purposes for which they are sold. The sole remedy for warranty
coverage will be replacement of defective products.
5. AUTHORIZATION.
This Agreement has been duly and validly executed and
delivered by IA and Xxxx and constitutes the valid and binding obligation of IA
and Xxxx, respectively, enforceable against each of IA and Xxxx in accordance
with its terms.
III. MISCELLANEOUS
1. INDEMNIFICATION.
(a) IA shall indemnify and hold Xxxx harmless at all times
from, against and in respect of any and all damage, loss, claim or expense
(including any and all actions, suits, proceedings, demands, judgments,
settlements, costs and legal and other expenses) which Xxxx may sustain
resulting from (i) any misrepresentation, breach of warranty, or noncompliance
with any obligation or covenant on the part of IA to be performed under this
Agreement, or (ii) any product liability or warranty claim with respect to the
IA Products.
(b) Xxxx shall indemnify and hold IA harmless at all times
from, against and in respect of any and all damage, loss, claim or expense
(including any and all actions, suits, proceedings, demands, judgments,
settlements, costs, and legal and other expenses) which IA may sustain resulting
from any misrepresentation, breach of warranty, or noncompliance with any
obligation or covenant on the part of Xxxx to be performed under this Agreement.
2. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon, inure
to the benefit of and be enforceable by the respective heirs, executors,
administrators, legal representatives, successors and assigns of the parties
hereto. Without the consent of the other, neither IA nor Xxxx shall assign its
rights or delegate its obligations hereunder to any other person; and provided,
however, that Xxxx may assign its rights hereunder to an affiliate of Xxxx,
which shall assume Xxxx'x obligations under this Agreement.
3. ENTIRE AGREEMENT. This Agreement and the exhibits hereto contain the
entire understanding of the parties and supersede all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties to be bound.
4. COUNTERPART SIGNATURES. This Agreement may be executed in
counterparts, each of which will be deemed to be an original, but all of which
together with constitute one and the same instrument.
5. GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of Minnesota without giving
any effect to principles of conflict of laws.
6. NOTICES. All notices hereunder shall be in writing and shall be
deemed to have been given at the time when mailed by registered or certified
mail, addressed to the address below stated of the party to which notice is
given, or to such changed address as such party may have fixed by notice:
To IA: Innovative Accessories, Inc.
0000 Xxxx X-00 Xxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxx
To Xxxx: Xxxx International Holdings, Inc.
000 Xxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: Xx. Xxx Xxxxxx
provided, however, that any notice of change of address shall be effective only
upon receipt.
7. INVALIDITY.
The invalidity or unenforceability of any term or provision of this
Agreement shall not affect the other terms and provisions and such invalid or
unenforceable term or provision will, in all events, be construed and enforced
to the fullest extent permissible under applicable law.
8. WAIVER.
The failure of any party to exercise their respective rights under this
Agreement regarding any misrepresentation, breach or other default shall not
prevent such party from exercising such or any other right hereunder regarding
such or any subsequent misrepresentation, breach or default.
9. TERM.
This Agreement shall commence as of the date first above written and
shall terminate as follows:
(a) If the Option expires unexercised, this Agreement shall
terminate upon expiration of the Option, unless extended by
mutual written agreement of the parties hereto.
(b) If the Option is exercised, this Agreement shall
terminate upon the closing of such exercise.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first written above.
XXXX INDUSTRIES INCORPORATED INNOVATIVE ACCESSORIES, INC.
By: /s/ Xxx Xxxxxx By: /s/ Xxxxx X. Xxxx
Its: Chief Financial Officer Its: President
