1
EXHIBIT 10.3
TECHNOLOGY TRANSFER AND LICENSE AGREEMENT
THIS TECHNOLOGY TRANSFER AND LICENSE AGREEMENT (this "Agreement") is
made as of the 1st day of June, 1999 (the "Effective Date") by and between
Perfumania, Inc., a Florida corporation ("Perfumania") and xxxxxxxxxx.xxx, inc.,
a Florida corporation ("xxxxxxxxxx.xxx").
EXPLANATORY STATEMENT
Perfumania has developed, and has all applicable rights in, a site on
the World Wide Web portion of the Internet at the URL xxxx://xxx.xxxxxxxxxx.xxx
(the "Perfumania Site") as one component of its method for establishing and
operating stores that distribute brand name and designer fragrances and related
products (the "Products").
Perfumania has formed xxxxxxxxxx.xxx as a wholly-owned subsidiary of
Perfumania to capitalize on Perfumania's core business on the World Wide Web. To
do so, Perfumania desires to transfer and/or license portions of its rights in
the Perfumania Web site to xxxxxxxxxx.xxx on the terms and conditions herein.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS.
"Assigned Materials" has the meaning set forth in Section 2.1.
"Change in Control" means any of the following involving
xxxxxxxxxx.xxx: (i) any merger, consolidation, share exchange, business
combination, or other similar transaction, (ii) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition of 75% or more of the assets of
the xxxxxxxxxx.xxx in a single transaction or series of transactions, or (iii)
any person shall have acquired beneficial ownership or the right to acquire
beneficial ownership of, 75% or more of the then outstanding shares of capital
stock of xxxxxxxxxx.xxx.
"Confidential Information" means any non-public information about a
party, including, without limitation, the party's business , vendors, customers,
products, services, employees, finances, costs, expenses, financial or
competitive condition, policies, and practices, computer software programs and
programming tools and their respective design, architecture, modules,
interfaces, databases and database structures, nonliteral elements, capabilities
and functionality, source code and object code (including, but not necessarily
limited to, the Perfumania Site), research and development efforts, marketing
and distribution efforts, licensing, cross-licensing, marketing and distribution
practices; computer software programs and other information licensed or
otherwise disclosed to a party in confidence by a third party, and any other
non-public information that does or may have economic value by reason of not
being generally known.
2
"Databases" shall mean the Product database; customer list database and
other databases associated with Perfumania Site an the Assigned Materials.
"Domain Names" shall mean the Internet domain names xxx.xxxxxxxxxx.xxx
and xxx.xxxxxxxxxxxxxxxxxxx.xxx.
"E-Commerce Business" shall mean any transactions or business
activities, now or hereafter conducted by xxxxxxxxxx.xxx, related to the online
sale or marketing of xxxxxxxxxx.xxx's products, merchandise, and services now or
hereafter sold or offered for sale.
"Materials" means all memoranda, notes, records, drawings, manuals,
disks, or other documents and media (including all copies, extracts, and
summaries thereof).
"Perfumania Content" shall mean all graphic user interfaces, text,
images, music, designs, products, computer programs, drawings, documentation,
notes, development aids, technical documentation, information and other
materials of Perfumania for use in developing and incorporated into the
Perfumania Site.
"Perfumania Marks" shall mean trademarks, service marks, logos and
trade name of Perfumania but excludes the marks XXXXXXXXXX.XXX and
XXXXXXXXXXXXXXXXXXX.XXX.
"Domain Name Marks" shall mean trademarks, service marks, logos and
trademarks incorporating the words XXXXXXXXXX.XXX and XXXXXXXXXXXXXXXXXXX.XXX.
"Software" shall mean all computer software for inventory sourcing,
special order software and other computer software owned by Perfumania, Inc.
from time to time.
2. ASSIGNMENT AND LICENSES.
2.1 Assignment. Perfumania hereby transfers, grants, conveys,
assigns and relinquishes exclusively to xxxxxxxxxx.xxx in perpetuity (or for the
longest period of time otherwise permitted by law) for any and all use in
electronic commerce including, but not limited to, the World Wide Web portion of
the Internet, all of its right, title and interest in and to the Perfumania
Site, the Databases, the Perfumania Content, the Software, and any Materials,
forms, images and text viewable on the Internet, any HTML elements relating
thereto (collectively, the "Assigned Materials"). Perfumania shall make the
Assigned Materials available to xxxxxxxxxx.xxx at such times and in such format
as the parties shall mutually agree.
2.2 Perfumania Marks, Domain Names, and Domain Name Marks. Subject
to the terms and conditions herein, Perfumania hereby grants to xxxxxxxxxx.xxx
an exclusive (even as to Perfumania), worldwide, fully paid-up right and license
to (i) use and reproduce the Perfumania Marks in digital form and combine such
digitized versions with other digitized text, graphics or materials of
xxxxxxxxxx.xxx that are included within the Perfumania Site, (ii) use,
2
3
reproduce, transmit, communicate, display, distribute and sublicense the
Perfumania Marks as part of the Perfumania Site and in connection with the
E-Commerce Business, (iii) use, reproduce, transmit, communicate, display,
distribute, and sublicense the Domain Name Marks in connection with the
E-Commerce Business and incorporate the XXXXXXXXXX.XXX xxxx within
xxxxxxxxxx.xxx's corporate or other legal name; and (iv) use the Domain Names
and determine the domain name server addressing thereof for website, electronic
mail, and all other present and future Internet and communications functions in
connection with the E-Commerce Business. Except as specifically set forth above,
Perfumania does not transfer to xxxxxxxxxx.xxx any rights to the Perfumania
Marks, Domain Name, or Domain Name Marks.
2.3 Licenses to Perfumania. Subject to the terms and conditions
herein, xxxxxxxxxx.xxx hereby grants Perfumania a non-exclusive, worldwide,
fully paid-up right and license to (i) provide materials for posting on the
Perfumania Site in connection with the operation of its retail sale and
distribution of Products through physical stores in the United States, which
materials shall be posted by xxxxxxxxxx.xxx provided they do not unreasonably
interfere with xxxxxxxxxx.xxx's business operations and (ii) to sublicense its
rights hereunder to entities or individuals located outside the United States
pursuant to terms and conditions approved by xxxxxxxxxx.xxx.
2.4 License Restrictions. Except as otherwise expressly permitted
herein, Perfumania may not (a) adapt, alter, modify, translate or create
derivative works of the Perfumania Site; (b) reverse engineer, decompile,
disassemble, or reconstruct the source code for the Perfumania Site; or (c)
reverse engineer, reconstruct, ascertain, adapt, alter or modify, the
proprietary protocols, algorithms, internal instructions and command sets used
in the operation of the Perfumania Site.
2.5 Support. The parties acknowledge that unless otherwise agreed
in writing, Perfumania shall not be responsible for upgrading, supporting or
otherwise maintaining the Assigned Materials in any form or manner whatsoever.
3. QUALITY CONTROL.
3.1 Monitoring by Perfumania. xxxxxxxxxx.xxx agrees that its
operations of the E-Commerce Business at the Perfumania Site shall be of a first
rate nature. xxxxxxxxxx.xxx understands and agrees that Perfumania has the right
to and will monitor the quality of xxxxxxxxxx.xxx's operations under the
Perfumania Marks for compliance with this Agreement.
3.2 Quality Standards. In the course of operating the E-Commerce
Business at the Perfumania Site, xxxxxxxxxx.xxx shall maintain and adhere to
standards of quality and technical specifications set forth from time to time by
Perfumania with respect to the appearance and manner of use of the Perfumania
Marks. Any form of use of the Perfumania Marks not specifically provided for by
Perfumania shall be adopted by xxxxxxxxxx.xxx only upon prior written approval
by Perfumania. If any use of the Perfumania Marks on the Perfumania Site
conflicts with, interferes with or is detrimental to Perfumania's reputation or
business, in Perfumania's reasonable discretion, Perfumania will promptly notify
xxxxxxxxxx.xxx of same and xxxxxxxxxx.xxx shall immediately discontinue any such
use.
3
4
3.3 Advertising Materials. Prior to using the Perfumania Marks in
connection with any advertising and promotional materials (the "Advertising
Materials"), xxxxxxxxxx.xxx shall provide to Perfumania for its approval samples
of the Advertising so that Perfumania may monitor use of the Perfumania Marks.
Perfumania reserves the right to disapprove such Advertising Materials if
Perfumania reasonably determines that the Perfumania Marks are improperly used
therein. Perfumania shall have five (5) working days after receipt of such
samples to indicate its disapproval by written notice to xxxxxxxxxx.xxx. If no
written objection is received by xxxxxxxxxx.xxx within five working days, the
samples will be deemed to have been approved.
3.4 Samples. xxxxxxxxxx.xxx agrees to furnish, at no charge, to
Perfumania, from time to time as requested, representative samples of
Advertising Materials and any other articles or materials to which it affixes
the Perfumania Marks.
4. OWNERSHIP; MARKING.
4.1 Perfumania Marks. xxxxxxxxxx.xxx acknowledges Perfumania's
right, title and interest in and to the Perfumania Marks and acknowledges that
nothing herein shall be construed to accord to xxxxxxxxxx.xxx any rights in any
of the Perfumania Marks except as expressly provided herein. xxxxxxxxxx.xxx
acknowledges that its use of the Perfumania Marks will not create in it any
right, title or interest in the Perfumania Marks except as permitted herein.
xxxxxxxxxx.xxx represents and warrants with respect thereto, as follows: (i)
xxxxxxxxxx.xxx will not at any time challenge Perfumania's right, title or
interest in the Perfumania Marks or the validity of any of the Perfumania Marks
or any application or registration thereof; (ii) xxxxxxxxxx.xxx will not do or
cause to be done or omit to do anything, the doing, causing, or omitting of
which would contest or in any way impair or tend to impair the rights of
Perfumania in the Perfumania Marks; (iii) xxxxxxxxxx.xxx will not represent that
it has any ownership in or rights with respect to the Perfumania Marks other
than rights conferred by this Agreement; and (iv) xxxxxxxxxx.xxx will not,
either during or subsequent to the Term of this Agreement, use any trademark,
service xxxx, trade name, insignia or logo that is confusingly similar to or a
colorable imitation of any of the Perfumania Marks except as permitted herein.
If any foreign tribunal of any kind or nature of competent jurisdiction takes
action resulting in Perfumania being defeased of the Perfumania Marks and
xxxxxxxxxx.xxx is granted the Perfumania Marks or may take action to acquire
such Perfumania Marks, xxxxxxxxxx.xxx will immediately and without need of
request by Perfumania, take all action necessary to either (a) assign such
Perfumania Marks to Perfumania or Perfumania's designee or (b) acquire such
Perfumania Marks at Perfumania's expense and upon such acquisition, assign such
Perfumania Marks to Perfumania or Perfumania's designee.
4.2 Domain Name Marks. Perfumania will (i) apply for registration
of the XXXXXXXXXX.XXX and XXXXXXXXXXXXXXXXXXX.XXX marks with the United States
Patent and Trademark Office ("PTO"), (ii) will take all necessary and reasonable
steps to obtain such registrations, (iii) shall keep xxxxxxxxxx.xxx informed of
the status of such applications, and (iv) shall file Section 8 and 15
declarations, file renewal applications, and take all other
4
5
necessary and reasonable steps to obtain and maintain effective federal
registrations for the Domain Name Marks during the Term of this Agreement.
xxxxxxxxxx.xxx acknowledges Perfumania's right, title and interest in and to the
Domain Name Marks and acknowledges that nothing herein shall be construed to
accord to xxxxxxxxxx.xxx any rights in any of the Domain Name Marks except as
expressly provided herein. xxxxxxxxxx.xxx acknowledges that its use of the
Domain Name Marks will not create in it any right, title or interest in the
Domain Name Marks except as permitted herein. xxxxxxxxxx.xxx represents and
warrants with respect thereto, as follows: (i) xxxxxxxxxx.xxx will not at any
time challenge Perfumania's right, title or interest in the Domain Name Marks or
the validity of any of the Domain Name Marks or any application or registration
thereof; (ii) xxxxxxxxxx.xxx will not do or cause to be done or omit to do
anything, the doing, causing, or omitting of which would contest or in any way
impair or tend to impair the rights of Perfumania in the Domain Name Marks;
(iii) xxxxxxxxxx.xxx will not represent that it has any ownership in or rights
with respect to the Domain Name Marks other than rights conferred by this
Agreement; and (iv) xxxxxxxxxx.xxx will not, either during or subsequent to the
Term of this Agreement, use any trademark, service xxxx, trade name, insignia or
logo that is confusingly similar to or a colorable imitation of any of the
Domain Name Marks except as permitted herein. If any foreign tribunal of any
kind or nature of competent jurisdiction takes action resulting in Perfumania
being defeased of the Domain Name Marks and xxxxxxxxxx.xxx is granted the Domain
Name Marks or may take action to acquire such Domain Name Marks, xxxxxxxxxx.xxx
will immediately and without need of request by Perfumania, take all action
necessary to either (a) assign such Domain Name Marks to Perfumania or
Perfumania's designee or (b) acquire such Domain Name Marks at Perfumania's
expense and upon such acquisition, assign such Domain Name Marks to Perfumania
or Perfumania's designee.
4.3 Marking. xxxxxxxxxx.xxx shall cause the appropriate
designation "TM", "SM" or the registration symbol "(R)" to be placed adjacent to
each of the Perfumania Marks and Domain Name Marks in connection with each use
or display thereof, including, without limitation, the Advertising Materials,
and to indicate such additional information as Perfumania shall reasonably
specify from time to time concerning the license rights under which
xxxxxxxxxx.xxx uses the Perfumania Marks and Domain Name Marks.
4.4 Warranties by Perfumania. Perfumania hereby warrants that its
business operations under the Perfumania Marks shall be of a first rate nature.
If any use of the Perfumania Marks by Perfumania interferes with or is
detrimental to xxxxxxxxxx.xxx's reputation or business, xxxxxxxxxx.xxx shall
promptly notify Perfumania of same and Perfumania shall immediately discontinue
any such use. Perfumania warrants, for itself and its successors and assigns,
that it shall prominently and continuously use the xxxx PERFUMANIA as a
trademark, in its retail business, in advertising, as the primary and notorious
trade name for its retail stores, and in interstate commerce. Perfumania
warrants, for itself and its successors and assigns, that it will maintain
active federal trademark registration(s) for PERFUMANIA during the Term of this
Agreement and that it will not, through action or inaction, allow its rights
and/or its retail goodwill in the Perfumania Marks to become diminished or
impaired during the Term of this Agreement.
5. NON-COMPETITION. Perfumania covenants that, except as otherwise
provided herein or
5
6
approved in writing by xxxxxxxxxx.xxx, for a continuous uninterrupted period
commencing upon the Effective Date and continuing for three (3) years after the
termination or expiration of this Agreement, for any reason, Perfumania will
not, either directly or indirectly, or through, on behalf of or in conjunction
with any person, persons, partnership, corporation or other entity, (i) own,
maintain, engage in, be employed by, advise, assist, invest in, franchise, make
loans to, or have any interest in any business which is the same as or
substantially similar to xxxxxxxxxx.xxx's E-Commerce Business or (ii) sell or
offer for sale Products in any venue other than, through, and at retail stores
not on the World Wide Web or other portion of the Internet.
If the period of time or the area specified above, should be finally
adjudged as unreasonable or unenforceable in any proceeding, then the period of
time shall be reduced by such number of months or the area shall be reduced by
the elimination of such portion thereof or both, so that such restrictions may
be enforced in such area and in such time as is adjudged to be reasonable.
Perfumania acknowledges and agrees that the covenants not to compete
set forth in this Agreement are fair and reasonable and will not impose any
undue hardship on Perfumania, since Perfumania has other considerable experience
which affords it the opportunity to derive income from other endeavors.
6. FEES AND COSTS.
6.1 Royalties. The licenses granted in Article 2 shall be royalty-
free as between Perfumania and xxxxxxxxxx.xxx, provided, however, that to the
extent that any royalty shall be deemed by applicable tax law to exist by virtue
of this Agreement, xxxxxxxxxx.xxx will be responsible for any withholding or
value-added taxes associated therewith.
6.2 Costs and Expenses. All costs and expenses incurred by either
party xxxxxxxxxx.xxx in carrying out its obligations under this Agreement shall
be paid by such party and neither party shall be entitled to any reimbursement
from the other.
7. CONFIDENTIALITY.
7.1 Nondisclosure and Nonuse. Each party receiving Confidential
Information, including, but not limited to, Materials containing Confidential
Information, shall (a) disclose such Confidential Information to only those
directors, officers, employees and agents of such party (i) whose duties justify
their need to know such information and (ii) who have been clearly informed of
their obligation to maintain the confidential, proprietary and/or trade secret
status of such Confidential Information; and (b) use such Confidential
Information only for the purposes set forth in this Agreement. Each party
receiving Confidential Information shall treat such information as strictly
confidential, and shall use the same care to prevent disclosure of such
information as such party uses with respect to its own confidential and
proprietary information, which shall not be less than the care a reasonable
person would use under similar circumstances. Notwithstanding the foregoing,
each party may disclose Confidential Information to the extent necessary
pursuant to applicable federal, state or local law, regulation, court order, or
other legal
6
7
process, provided the receiving party has given the disclosing party prior
written notice of such required disclosure and, to the extent reasonably
possible, has given the disclosing party an opportunity to contest such required
disclosure at the disclosing party's expense.
7.2 Notice. The receiving party will notify the disclosing party
immediately in the event the receiving party learns of any unauthorized
possession, use or knowledge of the Confidential Information and/or Materials
containing Confidential Information, and will cooperate with the disclosing
party in any litigation against any third persons necessary to protect the
disclosing party's rights with respect to the Confidential Information and
Materials.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Authority. Each party represents and warrants that it has
authorized the person who has signed this Agreement on behalf of such party to
execute and deliver this Agreement to the other party.
8.2 Assigned Materials. Perfumania represents and warrants that
(i) it is the sole and exclusive owner of the entire right, title, and interest
in and to the Assigned Materials, free and clear of any liens or claims; (ii) to
the knowledge of Perfumania, the Assigned Materials do not infringe the rights
of any other person or entity; (iii) to the knowledge of Perfumania, no claim of
any such infringement or violation has been threatened or asserted, and no such
claim is pending against Perfumania; (iv) Perfumania has not entered into any
agreement, license, release, or order that restricts the right of Perfumania or
xxxxxxxxxx.xxx to use the Assigned Materials in any way; and (v) the execution,
delivery, and performance of this Agreement by Perfumania does not and will not
violate any security agreement, indenture, order, or other instrument to which
Perfumania is a party or by which it or any of its assets is bound.
9. DISCLAIMERS AND LIMITATION OF LIABILITY.
9.1 Disclaimer. EXCEPT AS PROVIDED IN ARTICLE 8 ABOVE, NEITHER
PARTY ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
ASSIGNED MATERIALS, THE PROPRIETARY MARKS OR THE XXXXXXXXXX.XXX XXXX INCLUDING
BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
9.2 Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES SUCH AS LOSS OF PROFITS OR
INABILITY TO USE THE PERFUMANIA SITE OR ASSIGNED MATERIALS.
10. INDEMNIFICATION; INFRINGEMENT.
10.1 Indemnification. Perfumania shall defend, at its own expense
(or in Perfumania's discretion, settle), indemnify, and hold xxxxxxxxxx.xxx
harmless from and against any loss, injury, demand, cost, expense or claim
(including reasonable attorneys' fees) arising out of any
7
8
allegation that the Assigned Materials infringe any patents, copyrights, trade
secrets or other proprietary rights of any third party, provided that
xxxxxxxxxx.xxx timely notifies Perfumania in writing of any such claim, provided
that failure to timely notify Perfumania shall not constitute a defense unless
Perfumania is harmed as a result.
10.2 Exceptions. Perfumania shall have no liability pursuant to
Section 10.1 to the extent (i) such claim is based upon the combination,
operation or use of any Assigned Materials with products or content owned by any
person or entity other than Perfumania; (ii) such claim is based upon the
combination by xxxxxxxxxx.xxx of any Assigned Materials or modifications of any
products or content supplied by any person or entity other than Perfumania; or
(iii) such claim is based upon xxxxxxxxxx.xxx's use of a Assigned Material in a
manner which is inconsistent with the terms of this Agreement and if such
infringement would not have occurred but for such use.
10.3 Infringement of Marks by Third Parties.
10.3.1 Notice. Perfumania and xxxxxxxxxx.xxx shall each
provide the other with prompt notice of any apparent infringement of
any of the Perfumania Marks or the Domain Name Marks, any petition to
cancel any registration of any of the Perfumania Marks or the Domain
Name Marks or any attempted use of or any application to register any
xxxx confusingly similar to, or a colorable imitation of, any of the
Perfumania Marks or the Domain Name Marks of which it becomes aware.
10.3.2 Action by Perfumania. Perfumania, at its sole
discretion, may have sole responsibility to, or may elect to have
xxxxxxxxxx.xxx, at Perfumania's expense: (i) institute and prosecute
any actions for infringement of the Perfumania Marks and the Domain
Name Marks; (ii) defend any petition to cancel any registration of any
of the Perfumania Marks or the Domain Name Marks; (iii) oppose any
attempted use of or any application to register any xxxx confusingly
similar to, or a colorable imitation of, any of the Perfumania Marks or
Domain Name Marks; and (iv) defend any claim alleging trademark
infringement. Any damages and costs recovered through such proceedings
shall belong exclusively to Perfumania, and Perfumania shall be solely
responsible for all costs and expenses (including attorney's fees) of
prosecuting such actions. xxxxxxxxxx.xxx shall provide Perfumania with
any requested assistance in connection with such proceedings, and
Perfumania shall reimburse xxxxxxxxxx.xxx's reasonable out-of-pocket
costs of providing such assistance.
10.4 Third-Party Infringement Claims.
10.4.1 Notice. Perfumania and xxxxxxxxxx.xxx shall each
provide the other with prompt notice of any claim alleging trademark
infringement involving the use by xxxxxxxxxx.xxx of the Perfumania
Marks or the Domain Name Marks
8
9
in connection with conducting the E-Commerce Business at the Perfumania
Site of which it becomes aware.
10.4.2 Action by Perfumania. Perfumania, at its sole
discretion, may have sole responsibility for, or may elect to have
xxxxxxxxxx.xxx pursue, at Perfumania's expense, defending against any
and all claims charging trademark infringement involving the use by
xxxxxxxxxx.xxx of the Perfumania Marks or the Domain Name Marks.
xxxxxxxxxx.xxx shall provide Perfumania with any requested assistance
in connection with such proceedings, and Perfumania shall reimburse
xxxxxxxxxx.xxx's reasonable out-of-pocket costs of providing such
assistance. Perfumania shall keep xxxxxxxxxx.xxx informed of the status
of such proceeding and supply xxxxxxxxxx.xxx with any requested
documents regarding such proceedings. Any expenses, damages, or
judgments (including attorney's fees) in connection with claims
alleging trademark infringement involving the use by xxxxxxxxxx.xxx of
the Perfumania Marks or the Domain Name Marks in connection with the
E-Commerce Business at the Perfumania Site shall be the responsibility
of Perfumania without any claim against xxxxxxxxxx.xxx for any portion
thereof, except to the extent that such expenses, damages, or judgments
(including attorney's fees) paid by Perfumania were on account of the
action or inaction of xxxxxxxxxx.xxx.
11. TERM; TERMINATION.
11.1 Term. Except as otherwise provided below, the term of this
Agreement shall be perpetual commencing on the Effective Date (the "Term").
11.2 Termination for Breach. Should either party commit a material
breach of its obligations hereunder, or should any of Perfumania's
representations and warranties provided to xxxxxxxxxx.xxx be untrue in any
material respect, the other party may, at its option, terminate this Agreement,
upon thirty (30) days written notice of termination, which notice shall identify
and describe the basis for such termination. If, prior to the expiration of such
period, the defaulting party cures such default, termination shall not take
place.
11.3 Termination for Change in Control. Perfumania may terminate
this Agreement automatically upon written notice to xxxxxxxxxx.xxx upon a Change
in Control of xxxxxxxxxx.xxx.
11.4 Post-Termination Obligations. Upon the termination or
expiration of this Agreement for any reason, all rights of xxxxxxxxxx.xxx shall
immediately cease. xxxxxxxxxx.xxx shall not operate or conduct business under
any name or in any manner that might tend to give the general public the
impression that this Agreement is still in force, or that xxxxxxxxxx.xxx has any
right to use any of the Perfumania Marks. Additionally, xxxxxxxxxx.xxx shall
assign to Perfumania any and all rights it has in the Domain Names and the
Domain Name Marks.
9
10
11.5 Survival. The termination or expiration of this Agreement
shall not relieve either party of any obligation or liability accrued hereunder
prior to or subsequent to such termination or expiration, nor affect or impair
the rights of either party arising under this Agreement prior to or subsequent
to such termination or expiration, except as expressly provided herein.
12. APPLICABLE LAW; ARBITRATION.
12.1 Arbitration. Except with respect to any action for which
Perfumania or xxxxxxxxxx.xxx may be entitled to injunctive relief under the
federal Xxxxxx Act, 15 U.S.C. ss. 1051 et seq. as may be amended, any dispute,
controversy or claim arising out of or relating to this Agreement or the breach,
termination or validity thereof, shall be finally settled in accordance with the
commercial arbitration rules of the American Arbitration Association (the "AAA")
then obtaining, by a panel of three arbitrators. Each party shall have the right
to appoint one arbitrator from the list of arbitrators supplied to the parties
by the AAA, and the two arbitrators so appointed shall appoint the third.
The place of arbitration shall be Miami, Florida, U.S.A. The language
of the arbitration shall be in English. The arbitrators shall determine the
matters in dispute in accordance with the internal law of the State of Florida,
without reference to the Convention on Contracts for the International Sale of
Goods. Except as precluded by the United Nations Convention on the Recognition
and Enforcements of Foreign Arbitral Awards, the internal procedural and
substantive laws of Florida and the United States Federal Arbitration Act shall
govern all questions of arbitral procedure, arbitral review, scope of arbitral
authority, and arbitral enforcement.
The parties agree that the award of the arbitrators shall be the sole
and exclusive remedy between them regarding any claims, counterclaims, issues or
accountings presented or pled to the arbitrators, that the award shall be made
and shall be promptly payable in U.S. dollars, free of any tax, deduction or
offset, and that any costs, fees or taxes instant to enforcing the award shall,
to the maximum extent permitted buy law, be charged against the party resisting
such enforcement.
The award shall include interest from the date of damages incurred for
breach or other violation of this Agreement, and from the date of the award
until paid in full, at a rate to be fixed by the arbitrators.
12.2 Limitations on Commencement of Arbitration. No claim may be
submitted by a party to arbitration in accordance with this Article 12 unless
notified to the other party within one (1) year of the date on which the
submitting party first knew or should have known of the existence of the facts
indicating the existence of such dispute.
13. MISCELLANEOUS.
13.1 Force Majeure. Neither party will be responsible for any
failure to fulfill its obligations due to causes beyond its reasonable control,
including without limitation, acts or
10
11
omissions of government or military authority, acts of God, materials shortages,
transportation delays, fires, floods, labor disturbances, riots, wars, or
inability to obtain any export or import license or other approval of
authorization of any government authority.
13.2 Compliance with Import/Export Restrictions. Perfumania and
xxxxxxxxxx.xxx shall comply with all of the then-current applicable laws, rules
and regulations of the United States (and any other countries having
jurisdiction) relating to the use of encryption technology and the import and
export of technology, software and technical data, including, but not limited
to, any regulations of the United States Office of Export Administration, to the
extent permitted by applicable law in the applicable jurisdiction, and of any
other applicable governmental agencies, and shall not export or re-export any
technology, software, technical data or the direct product of such technology,
software and technical data to any proscribed country listed in such applicable
laws, regulations and rules unless properly authorized.
13.3 Changes and Modifications. This Agreement may be modified only
upon the execution of a written consent by Perfumania and xxxxxxxxxx.xxx.
13.4 No Waiver. No failure of either party to exercise any power
reserved to it by this Agreement, or to insist upon strict compliance with any
obligation or condition hereunder, and no custom or practice of the parties at
variance with the terms hereof, shall constitute a waiver of such party's right
to demand exact compliance with any of the terms herein. Waiver by either party
of any particular default by the other party shall not affect or impair such
party's rights with respect to any subsequent default of the same, similar or
different nature. No delay, forbearance or omission of either party to exercise
any power or right arising out of any breach or default by the other party of
any of the terms, provisions or covenants hereof shall affect or impair such
party's right to exercise the same, and no such delay, forbearance or omission
shall constitute a waiver by such party of any right hereunder or of the right
to declare any subsequent breach or default and to terminate this Agreement
prior to the expiration of its term.
13.5 Notices. Any and all notices required or permitted under this
Agreement shall be in writing and shall be personally delivered or dispatched by
courier or overnight delivery, to the respective parties at the following
addresses unless and until a different address has been designated by written
notice to the other party:
If to Perfumania, to: 00000 X.X. 000xx Xxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Xxxx Xxxxxx, President
If to xxxxxxxxxx.xxx to: 00000 X.X. 000xx Xxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxx, CEO
Any notice sent by overnight delivery shall be deemed to have been
given one day after the date and time of dispatch.
11
12
13.6 Severability. Should any term or provision of this Agreement
be finally determined by a court of competent jurisdiction to be void, invalid,
unenforceable or contrary to law or equity, the offending term shall be modified
and limited (or if strictly necessary, deleted) only to the extent required to
conform to the requirements of law and the remainder of this Agreement (or, as
the case may be, the application of such provisions to other circumstances)
shall not be affected thereby but rather shall be enforced to the greatest
extent permitted by law.
13.7 Captions. All captions in this Agreement are intended solely
for the convenience of the parties, and none of the captions shall be deemed to
affect the meaning, or construction of any provision hereof.
13.8 References. All references herein to the masculine, neuter or
singular shall be construed to include the masculine, feminine, neuter or plural
where applicable.
13.9 Counterparts. This Agreement may be executed in one or more
originals, each of which shall be deemed an original.
13.10 Exhibits. Any appendixes, exhibits and schedules are hereby
incorporated by reference and are part of this Agreement as if expressly set
forth at length herein.
13.11 Entire Agreement. This Agreement and the Exhibits attached
hereto constitutes the entire, full and complete Agreement between the parties
hereto concerning the subject matter hereof, and they supercede all prior
agreements.
IN WITNESS WHEREOF, the parties hereto have duly executed, sealed and
delivered this Agreement on the day and year first above written.
PERFUMANIA, INC., a Florida corporation
By: /s/ Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxxxx
Its: Chairman of the Board and
Chief Executive Officer
xxxxxxxxxx.xxx, inc., a Florida corporation
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx
Chief Executive Officer
12
