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EXHIBIT 10.52
PRIVATE LABEL AGREEMENT
This Private Label Agreement (this "Agreement") is made and entered
into as of March 6, 2000 (the "Effective Date"), by and between Mobility
Electronics, Inc., a Delaware corporation ("Mobility"), and Cybex Computer
Products Corporation, an Alabama corporation ("Cybex"). For purposes of this
Agreement, "Cybex" shall include its subsidiaries; provided, however, that Cybex
shall be responsible for the actions and/or inactions of its subsidiaries with
respect to the performance of this Agreement. Cybex and Mobility are each
sometimes referred to herein as a "Party" and collectively as the "Parties".
1 DEFINITIONS
1.1 "Custom Products" means products, including unique plastics
and/or characteristics or other differentiating features,
developed specifically for Customer by Mobility.
1.2 "PO's" means Cybex's purchase orders issued under this
Agreement.
1.3 "Products" means, collectively, the Custom Products and the
Standard Products.
1.4 "Standard Products" means the products of Mobility described
on Attachment I of this Agreement, other than Custom Products.
2 TERM
2.1 Subject to Section 2.2 below, this Agreement shall commence on
the Effective Date and shall continue for a period of three
(3) years thereafter (the "Initial Term"); provided, however,
that the term of this Agreement shall be renewed on a
year-to-year basis thereafter (each, a "Renewal Term"), unless
either Party gives written notice to the other Party, at least
ninety (90) days prior to the end of the then-current term, of
such Party's desire to terminate this Agreement at the
expiration of the then-current term. The Initial Term and any
Renewal Term(s) are sometimes collectively referred to herein
as the "Term". Notwithstanding the above, this Agreement shall
continue after the expiration of the Term with respect, and
only with respect, to any Products on order pursuant to PO's
accepted by Mobility prior to or at the time of such
termination.
2.2 This Agreement may be terminated by either Party upon the
material breach of this Agreement by the other Party, which
breach is not cured within sixty (60) days after delivery of
written notice by the non-breaching Party to the breaching
Party.
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3 SALES AND PURCHASE OF PRODUCTS
3.1 Mobility agrees to sell the Products to Cybex on a
non-exclusive basis. Cybex hereby agrees that Mobility shall
be the exclusive manufacturer and supplier to Cybex of any of
the following products for portable or handheld computers: (i)
power products, (ii) USB docking products; (iii)split bridge
docking station products.
3.2 Mobility agrees to use commercially reasonable efforts to
develop any Custom Product requested in writing by Cybex,
subject to the remainder of this Section. Any Custom Product
shall be developed and manufactured pursuant to the terms and
conditions of this Agreement (including, without limitation,
Section 3.3 below). In addition, prior to commencing the
development of any Custom Product, the Parties shall have
mutually agreed to a development program schedule, pricing,
quantity purchase minimum and a PO lead time, which agreement
shall be in writing in the form of Attachment 2 to this
Agreement. Mobility agrees that it will not market or sell any
Custom Product to any person or entity other than Cybex.
3.3 Cybex agrees that at the time Mobility begins to develop a
Custom Product, Cybex will place a separate PO for NRE Charges
applicable to each Custom Product and that each PO will be
subject to varying engineering charges and tooling charges
(collectively, the "NRE Charges"), which will be dependent
upon the Custom Product being developed, the order of a
minimum quantity over a commercially reasonable period of
time, sufficient lead time given to Mobility and the price of
each Custom Product, with such terms agreeable by both
Parties, which PO shall be non-cancellable, with the terms of
such NRE Charges being fifty percent (50%) due and payable
upon placement of the PO, and the remaining fifty percent
(50%) due and payable upon completion of the tool.
4 ORDERING AND DELIVERY
4.1 Cybex will provide to Mobility on a calendar monthly basis a
six-month rolling forecast of anticipated purchases of
Products by Cybex within the following six-month period.
4.2 Cybex will order Products through placement of PO's from time
to time. Cybex will use its best efforts to place PO's with
Mobility using minimum lead times specified from time to time
by Mobility. In addition, Cybex agrees that each PO will
specify Product unit orders in excess of the minimum size
order established by Mobility from time to time.
4.3 Mobility agrees to use all commercially reasonable efforts to
deliver the Products to Cybex in a timely manner, as provided
in the PO's; it being acknowledged and agreed that Mobility
will manufacture to PO's provided by Cybex and, at Mobility's
sole discretion, will not manufacture or inventory Products in
excess of PO quantities.
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4.4 All deliveries of Products will be made point of manufacture.
Mobility will accommodate other delivery requests made by
Cybex for an additional charge.
4.5 Each Product and related package shall include "EasiDock" and
"Split Bridge" logos, which logos shall be displayed
prominently in a manner acceptable to Mobility. The Products
may include any other packaging and/or marketing material in
Cybex's name as Cybex may from time to time request.
5 MOBILITY WARRANTIES
5.1 Mobility shall manufacture the Standard Products in accordance
with Mobility's specifications, which specifications may be
changed from time to time by Mobility upon at least thirty
(30) days prior written notice to Cybex. Mobility shall
manufacture Custom Products in accordance with the
specifications for such Custom Products. Mobility shall not
make any material change in the Custom Products without prior
written approval of Cybex.
5.2 Mobility warrants that all Products shall comply with all
applicable governmental certificates, and be free from defects
in design, material, workmanship and performance for a period
of two years from the date of delivery hereunder. Cybex will
provide written notice of any warranted defect promptly upon
its discovery. Upon receipt of such notice, Mobility shall
arrange for the repair or replacement, at Mobility's sole
discretion, of the Product and shall bear all costs necessary
to complete such repair or replacement. Cybex shall not be
required to return failed Products to Mobility, unless
specifically requested by Mobility. At the request of
Mobility, Cybex shall use its best efforts to deliver to
Mobility, at Mobility's cost and expense, any failed Products.
Any Products returned shall be subject to reasonable
inspection by, and the concurrence of, Mobility.
5.3 Mobility warrants that it has the unrestricted worldwide right
to manufacture, sell and deliver the Products to Cybex and
that it has in place proper authorizations and licenses from
all parties as may be necessary to deliver the Products to
Cybex.
5.4 Mobility warrants that no Products will infringe any patent,
copyright, trademark, trade secret or other proprietary or
intellectual property right of any third party. Mobility shall
indemnify, defend and hold harmless Cybex, its parent,
subsidiaries, affiliates and customers (each an "Indemnitee"
and collectively, the "Indemnities") from any damage, expense,
liability, cost (including attorneys fees and expenses)
arising out of any suit, claim, action or proceeding alleging
any such infringement. Cybex agrees to provide prompt written
notice to Mobility upon receipt by any Indemnitee of any suit,
claim, action or proceeding alleging such infringement, and
Mobility shall have the right to defend such suit, claim,
action or proceeding at its own expense. Such Indemnitee may
participate in such defense at its own expense and will
reasonably cooperate with Mobility in the defense thereof, and
such Indemnitee agrees that it will not unreasonably withhold
its consent to any settlement or compromise thereof.
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5.5 THE ABOVE WARRANTIES ARE IN LIEU OF ANY OTHER WARRANTY,
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT
LIMITATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, WHICH WARRANTIES ARE SPECIFICALLY DENIED.
6 PRODUCT PRICING AND PAYMENT
6.1 The initial pricing for Custom Products shall be as mutually
agreed to by the Parties as provided in Section 3.2 above.
6.2 The pricing for Standard Products will be Mobility's OEM
pricing for customers of similar volumes.
6.3 Products shall be provided in bulk packaging. Mobility will
use all commercially reasonable efforts to accommodate changes
in packaging and special delivery and additional and special
packaging requests by Cybex for an additional charge.
6.4 Mobility shall invoice Cybex upon delivery. Payment for
Product invoices shall be subject to a credit limit as
determined from time to time in the sole discretion of
Mobility, net thirty (30) days from date of invoice. Nothing
shall excuse Cybex's obligation to pay correct invoice amounts
for Products which have been delivered and accepted by Cybex.
6.5 All amounts payable by Cybex to Mobility under this Agreement
and under the PO's shall be paid in United States dollars.
7 CONFIDENTIAL INFORMATION AND COVENANTS NOT-TO-COMPETE
7.1 All copies of any confidential information delivered by any
Party to the other Party pursuant to or as a result of this
Agreement shall, upon the written request of the Party
delivering the same, be promptly returned by the Party
receiving the same, and each receiving Party agrees that it
will hold in confidence such confidential information
delivered from the other Party and shall use such confidential
information only in furtherance of and in connection with this
Agreement and its performance hereunder and not for any other
purpose. For purposes of the preceding sentence, "confidential
information" shall not include information which: (i) is or
becomes generally available to the public other than as a
result of disclosure which is in violation of this Section;
(ii) was known by the receiving Party on a nonconfidential
basis prior to the disclosure thereof; or (iii) is acquired by
the receiving Party from a third party who has not
confidential commitment to the delivering Party with respect
to the same.
7.2 Cybex agrees that during the Term, neither Cybex nor any of
its affiliates shall, directly or indirectly, for itself or on
behalf of any other corporation, person, firm, partnership,
association, or any other entity (whether as an individual,
agent, servant, employee, employer, officer, director,
shareholder, manager, member, investor, principal, consultant
or in any other capacity): (i) develop, acquire,
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manufacture, sell or offer for sale, or enter into or
negotiate any agreement, understanding or arrangement to
develop, acquire, manufacture, sell or offer for sale, any
place in the world any product which is directly or indirectly
competitive with any Product for usage with portable or
handheld computers, or (ii) finance any person or entity in
any manner or in any way inconsistent with the intents and
purposes of (i) above.
In the event of Cybex's breach, or threatened breach, of any
term or provision contained in this Section 7.2, Cybex agrees
that Mobility and/or its affiliates shall be entitled to the
right of specific performance and/or both temporary and
permanent injunctive relief. It is the intent of each of the
Parties that the covenants not-to-compete contained in this
Section 7.2 be enforced to the fullest extent permitted by
applicable law. Accordingly, should a court of competent
jurisdiction determine that the scope of any covenant is too
broad to be enforced as written, it is the intent of each of
the Parties hereto that the court should reform such covenant
to such narrower scope as it may determine is necessary to
make such covenant enforceable. Each of the Parties hereto
recognizes and agrees that this Section 7.2 is necessary and
essential to the protection of the business conducted and to
be conducted in the future by the Parties and/or their
respective affiliates, and to enable the Parties to realize
and drive all of the benefits, rights and expectations of this
Agreement; that the area and duration of the covenants herein
are in all aspects, under the circumstances of this Agreement,
reasonable; and that good and valuable consideration exists
for the such Party agreeing to be bound by such covenants.
8 MARKETING PRODUCTS
8.1 Cybex agrees to use its best efforts to market and sell the
Products on a non-exclusive basis.
9 PO CHANGES
9.1 Cybex may, upon written notice, modify any PO within the
following parameters:
(a) PO's for Products to be delivered within thirty (30)
days from the date of any such notice are
non-cancellable and may not be rescheduled.
(b) PO's for Products to be delivered between thirty one
(31) days and sixty (60) days from the date of any
such notice are not cancellable, but can be
rescheduled for a maximum of thirty (30) days from
the original delivery date.
(c) PO's for Products to be delivered more than sixty
(60) days from the date of any such notice may be
rescheduled or canceled prior to the commencement of
such sixty (60) day period, and may be rescheduled
during such sixty (60) day period as provided in (b)
above.
(d) PO's for NRE Charges are non-cancellable and cannot
be rescheduled.
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10 DISPUTES
10.1 The Parties will attempt to resolve disputes through ascending
levels of management. Disputes which cannot be resolved by
negotiation between the Parties may be referred to arbitration
by an international arbitral body acceptable to both Parties,
provided no arbitrator shall have authority to award any
indirect or speculative damages (including, without
limitation, consequential, incidental, special or punitive
damages).
11 GOVERNING LAW
11.1 This Agreement, and PO's issued hereunder, shall be governed
by and interpreted in accordance with the substantive and
procedural laws of the State of Arizona, United States of
America, and each Party hereby submits to the jurisdiction and
venue of the courts of the State of Arizona, county of
Maricopa.
11.2 The United Nations Convention on the International Sale of
Goods shall not apply to this Agreement or any PO issued
thereunder.
12 LIMITATION OF LIABILITY
12.1 Each Party hereby waives any right to recover any indirect or
speculative damages (including, without limitation,
consequential, incidental, special or punitive damages) from
the other Party.
13 GENERAL PROVISIONS
13.1 The Parties agree that Mobility shall bear the loss for the
destruction of any completed or partially completed Products
which may occur prior to delivery thereof ("delivery" being
defined as F.O.B. point of shipment), and that Cybex shall
bear the loss from the destruction or breakage of any Products
after delivery thereof.
13.2 This Agreement is subject to strikes and lockouts or refusal
of employees to work, or the inability of Mobility to be able
to cause Products manufactured for Mobility outside of the
United States of America to be delivered into the United
States of America, and for such cause that portion of this
Agreement affected thereby may be suspended during the
continuance thereof. Impossibility of performance by reason of
any legislative, executive or judicial act of any government
or state any other similar or dissimilar cause which cannot be
prevented by either Party or by the exercise of proper
diligence, shall excuse performance of this Agreement.
Bankruptcy of either Party shall allow the other Party, at its
sole discretion, to terminate this Agreement. The Parties
agree that the Party who is unable to perform its obligations
hereunder because of any of the reasons set forth in this
Section 13.2 shall give prompt written notice to the other
Party of such inability to perform.
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13.3 This Agreement and all terms, covenants and conditions
contained herein shall inure to the benefit of and shall be
binding upon the undersigned Parties and their respective
heirs' executors, administrators, trustees, successors and
assigns. Neither Party may assign or transfer any of its
rights or obligations hereunder without prior written consent
of the other Party, which consent shall not be unreasonably
withheld.
13.4 All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been
delivered on the date on which it is hand-delivered or
delivered by facsimile, or on the fifth business day following
the date on which it is mailed, first-class, postage prepaid,
and registered or certified with return receipt requested. For
purposes of notice, the addresses of the parties shall be:
If to Cybex: Cybex Computer Products Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Executive Vice President
If to Mobility: Mobility Electronics, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Chief Executive Officer
Any Party may change its address for notice by written notice
given to the other Party in accordance with this Section.
13.5 Any debts, obligations, covenants or liabilities accrued
hereunder between the Parties hereto shall survive the
expiration or termination of this Agreement for whatever
reason.
13.6 This Agreement (including the Attachments hereto) constitutes
the entire agreement between the Parties regarding the subject
matter hereof and supersedes all prior agreements and
understandings, both written and oral, between the Parties
with respect to the subject matter hereof. Each of the Parties
agrees to take such actions as may be necessary or desirable
to implement and retain the intent and spirit of this
Agreement, and omit to take such actions which could hinder
the furtherance of such intent and spirit.
13.7 If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws
effective during the term, such provision shall be
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fully severable and this Agreement shall be construed and
enforced as if such illegal invalid or unenforceable provision
never comprised a part hereof, and the remaining provisions
hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or
by its severance herefrom. Furthermore, in lieu of such
illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement a provision as
similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and
enforceable.
13.8 The headings in the Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning of
this Agreement.
13.9 This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of this
shall constitute one and the same instrument but only one of
which need be produced.
EXECUTED as of the date first above written.
MOBILITY ELECTRONICS, INC.
By: /s/ XXXXXXX X. XXXXX
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Its: President and Chief Executive
Officer
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CYBEX COMPUTER
PRODUCTS CORPORATION
By: /s/ XXXXXXX XXXXXXXX
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Its: Executive Vice President
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Attachment 1
Standard Products
1. Mobility's complete line of distribution power products, docking station
products and monitor stands as published from time to time.
2. Mobility's complete line of distribution USB products as published from
time to time.
3. Mobility's complete line of distribution Split Bridge universal docking
products as published from time to time.
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ATTACHMENT 2
NEW CUSTOM PRODUCT FORM
Product Specification:
NRE Charge:
Tooling Charge:
Product Charge:
Forecast:
Date:
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CYBEX COMPUTER
PRODUCTS CORPORATION
By:
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Its:
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MOBILITY ELECTRONICS, INC.
By:
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Its:
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