AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this 10th
day of October 1998, by and between CARQUEST Products, Inc., a corporation
organized and existing under the laws of the state of North Carolina (the
"Company"), and Xxxxxx Xxxxxxxx, a corporation organized and existing under the
laws of the state of ________ (the "Supplier").
BACKGROUND
The Company is licensed by The CARQUEST Corporation ("CARQUEST Corp.*)
to use and to grant licenses to use certain trademarks owned by CARQUEST Corp.
The Company has developed and will continue to develop a program identified by
such marks to assist its Members (the "Members") and their customers in the
promotion, marketing, distribution and sales of quality automotive parts,
supplies, accessories, and equipment. Each Member is a wholesale distributor of
automotive replacement parts. The Company desires by this Agreement to permit
the Supplier to use the trademark CARQUEST, as shown on Exhibit, A hereto on
certain automotive parts to be produced packaged by the Supplier for the Company
and/or one or more Members.
NOW, THEREFORE, in consideration of the premises and the mutual covenant
and agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and
Supplier agree as follows:
SECTION 1
License
1.1 Grant of License. Subject to the terms and conditions of the Agreement the
Company hereby grants to the Supplier the non-exclusive, nontransferable
license and right to use the xxxx "CARQUEST" and design, on merchandise
items approved by the Company (the "Products") to be manufactured, sold or
otherwise provided by the Supplier to the Company and/or Members. This
license and right shall continue with respect to Supplier until the
termination of the Agreement pursuant to the terms hereof.
1.2 Ownership of Xxxx and Design. The Supplier acknowledges The CARQUEST
Corporation's exclusive right, tide and interest in and to the xxxx
"CARQUEST" and design; and the Supplier shall not at any time do or cause
to be done any act or thing contesting or in any way impairing or tending
to impair any part of such right, title, and interest.
The Supplier acknowledges the Company's exclusive right, title and interest
in and to the xxxx "CARQUEST" and design, and the rights of The CARQUEST
Corporation, which are licensed for purposes of this Agreement to the
Company to the marks
"CARQUEST", and the Supplier shall not at any time do or cause to be done
any act or thing contesting or in any way impairing or tending to impair
any part of such rights, title and interest.
1.3 Rules, Regulations and Policies. The Supplier agrees to comply with such
reasonable rules, regulations and policies as may from time to time be
adopted and established by the Company with respect to the use of
"CARQUEST", in the sale of the Products by the Supplier to the Company or
to any Member.
1.4 Adverse Claims. The Supplier shall immediately notify the Company in
writing of any adverse claim made against it with respect to the use of
"CARQUEST".
1.5 Assignment and Use. The Supplier may not sell, transfer, assign or
sublicense its license and right to use "CARQUEST".
SECTION 2
Additional Obligations of Supplier
2.1 Insurance. The Supplier represents, warrants and agrees that it shall at
all times during the continuation of this Agreement maintain in full force
and effect product liability insurance in a minimum amount of one million
dollars ($1,000,000) covering the Products. Such insurance shall protect
the interest of the Company, The CARQUEST Corporation, and Members. Such
insurance shall name as insureds, either directly or by way of endorsement,
the Company, The CARQUEST Corporation, and Members. In addition, the
Supplier, upon the Company's request, agrees to furnish evidence of such
insurance to the Company.
2.2 Patent Specifications, Other Rules and Laws. The Supplier represents,
warrants, and agrees that it has not and will not misappropriate or
infringe upon the intellectual property ('Including, without limitation,
copyrights, patent rights and trade secrets) of others in connection with
the manufacture and sale of the Products. The Supplier further represents,
warrants and agrees that the Products will comply with all applicable laws,
ordinances, rules, arid regulations, either state, federal or local. The
Supplier shall provide any and all information needed by the Company to
comply with all applicable law ordinances, rules and regulations, either
state, federal or local. This information will include, but not be limited
to, the lawful handling, storage, transportation and sale of the Products.
2.3 Quality of Products. The Supplier represents, warrants and agrees that the
Products will be merchantable and fit for the purpose or purposes intended.
2.4 Indemnification. (a) The Supplier shall indemnify and hold harmless the
Company and each Member against any and all liabilities, losses, damages,
costs, and expenses, including court costs and reasonable attorney's fees,
that the Company or any Member may incur or sustain by reason of any claim,
demand, legal actions or judgment based upon or arising out of (i) any
alleged or actual misappropriation or infringement by the Supplier of the
trade secrets, patent rights, trademarks, copyrights or other industrial
property rights of others in connection with the Supplier's manufacture
and/or sale of the Products, or (ii) any alleged or actual defects of any
kind in the design, manufacture, preparation, or handling of the Products;
provided that the Supplier shall not be liable for the gross negligence or
willful misconduct of the Company or any Member. The Supplier agrees to
defend any action, suit, or proceeding brought against the Company or any
Member insofar as such action, suit, or proceeding is based upon or arises
out of the matters referred to in this section 2.4(a); provided that, upon
the Supplier's assumption of such defense, the Supplier shall not be liable
for any attorney's fees of the Company or any Member. The Company or any
Member claiming indemnification hereunder shall provide prompt notice to
the Supplier of any claim, demand or legal action in respect of which
indemnification may be claimed; provided that the failure to provide such
notice shall not release the Supplier for any liability except and solely
to the extent that the Supplier is materially prejudiced by such failure.
The Supplier shall not be liable for any settlement without its prior
written consent.
(b) The Company shall indemnify and hold harmless the Supplier against any
and all liabilities, losses, damages, costs, and expenses, including
court costs - and reasonable attorneys fees, that the Supplier may
incur or sustain by reason of any claim, demand, legal actions or
judgment based upon or arising out of any alleged or actual
infringement of the trademarks, copyrights or other industrial
property rights of others in connection with the Supplier's use of the
"CARQUEST" trademark and design in accordance with this went; provided
that the Company shall not be liable for the gross negligence or
willful misconduct of the Supplier. The Company agrees to defend any
action, suit, or proceeding brought against the Supplier insofar as
such action, suit or proceeding is based upon or arising out of the
matters referred to in this section 2.4(b); provided that, upon the
Company's assumption of such defense, the Company shall not be liable
for any attorney's fees of the Supplier. The Supplier shall provide
prompt notice to the Company of any claim, demand or legal action in
respect of which indemnification may be claimed; rovi ell that the
failure to provide such notice shall not release the Company from any
liability except and solely to the extent that the Company is
materially prejudiced by such failure. The Company shall not be liable
for any settlement without its prior written consent.
2.5 Miscellaneous. The Supplier agrees that it shall not produce and/or sell
any Products or any other product or products under the xxxx "CARQUEST" and
design, except to the Company or to a Member. The Supplier further agrees
that it will not adopt or use any word or xxxx that is likely to be similar
to or confusing with the xxxx "CARQUEST" and design, or on any products
that it supplies to other companies, including, but not limited to, the use
of any reproduction, counterfeit copy, or colorable imitation of the
designation of "CARQUEST", or in any sale, offering for sale or advertising
of any such products.
SECTION 3
Termination
3.1 Termination. This Agreement may be terminated by the Company or Supplier at
any time after 30 days written notice given by the terminating party to the
other party to this Agreement.
3.2 Effect of Termination. Upon termination of this Agreement, the Supplier
shall immediately (i) pay to the Company the full amount, if any, which it
then owes to the Company under this Agreement, (ii) discontinue all use of
"CARQUEST" as a trademark, service xxxx, or trade name on the Products, and
(iii) refrain from doing any acts, whether or not specified above, which
would indicate that the Supplier is or was authorized to use the xxxx
"CARQUEST" and design on the Products; provided, however. that
notwithstanding the termination of the Agreement, the Supplier shall have
the right and license to use "CARQUEST" to the extent permitted by any
other agreements with the Company and any Member unless such other
agreements are also terminated. Upon termination of this Agreement, the
Company shall immediately (i) pay to the Supplier the full amount, if any,
which the Company then owes to the Supplier pursuant to this Agreement, and
(ii) purchase from the Supplier all Products ordered by the Company from
the Supplier in containers bearing the xxxx "CARQUEST" and design,
provided, however. the Supplier acknowledges and agrees that the Company
shall not be responsible for and by executing this Agreement has not and is
not guaranteeing the obligations of any Member to the Supplier for Products
purchased or ordered from the Supplier by any Member.
3.3 Termination Costs. Upon termination of this Agreement, the Supplier agrees
to reimburse the Company for all costs and expenses incurred by it,
including attorney's fees, as a result of the Supplier's failure or refusal
to comply with the terms of section 3.2 above or with any other terms and
conditions of this Agreement. Upon termination of this Agreement, the
Company agrees to reimburse the Supplier for all costs and expenses
incurred by it, including attorney's fees, as a result of the Company's
failure or refusal to comply with the terms of section 3.2 above or with
any other terms and conditions of the Agreement.
SECTION 4
Miscellaneous
4.1 Specific Performance. The parties hereby declare that it is impossible to
measure in money the damages that will accrue to a party to the Agreement
by reason of the failure of any party to perform any of its obligations
under this Agreement. Accordingly, if a party to this Agreement shall
institute any actions or proceedings to enforce the provisions of this
Agreement, any party against whom such action or proceeding is brought
hereby waives the claim or defense therein that such party has an adequate
remedy at law, and such party shall not urge in any such action or
proceeding the claim or defense that however, shall not prevent any party
from seeking a remedy at law for any breach of this Agreement.
4.2 Notice. Any and all notices, offers, acceptances, or any other
communication provided for in this Agreement shall be given in writing by
personal delivery by registered or certified mail which shall be addressed
to the address set forth below for each party or such other address as may
be designated by any party by notice given to the other parties hereto.
4.3 Separability of Provisions. The invalidity or unenforceability of any
particular provision of the Agreement shall not affect the other provisions
of this Agreement, and this Agreement shall be construed in all respects as
if such invalid or unenforceable provision were omitted.
4.4 Entire Agreement; Modifications. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof
and shall supersede any prior agreements and understandings between the
parties with respect to subject-matter. This Agreement may not be modified
or amended except in writing signed by each of the parties hereto. This
Agreement shall not be modified or amended -W-the terms of any purchase
order, acknowledgment or confirmation of sale; `or other similar documents
issued by the Company, the Supplier, or any Member in connection with the
purchase or sale of the Products.
4.5 Benefits. All of the terms, covenants, agreements and conditions contained
in this Agreement shall be binding upon and inure to the benefit of all
parties hereto, and their respective successors, assigns and legal
representatives, unless prohibited in this Agreement.
4.6 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Indiana.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
CARQUEST Products, Inc.
By /s/ Xxxx Xxxx
----------------
Title: Product manager
000 X. Xxxxxx Xxxx 000 X.
Xxx Xxxxxx, XX 00000
SUPPLIER
Xxxxxx Xxxxxxxx Corp.
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Title: President
Address: 00 Xxxxxx Xx.,
Xxxxx, XX 00000
