MERCHANDISE SOURCING AGREEMENT
This Merchandise Sourcing Agreement (this "Agreement") is made and entered into
as of the 18TH day of FEBRUARY, 1999, by and between DS-MAX U.S.A. Inc., a
California corporation ("Company"), and Xxxx Sports, Inc. a California
corporation ("BSI"), Xxxx Sports Canada Inc., a Quebec, Canada corporation
("BSC") and Xxxx Sports Australia Pty Ltd., an Australian corporation ("BSA")
(collectively "Xxxx").
WHEREAS Xxxx is in the business of obtaining and selling to third parties
various types of bicycle helmets and other bicycle accessories;
AND WHEREAS the Company and its related companies are in the business of, among
other things, locating independent product and service suppliers in Asia and
facilitating product acquisition from Asia and business operations in Asia for
merchandisers;
AND WHEREAS Xxxx desires to have the Company facilitate Xxxx'x purchase of
bicycle helmets and bicycle accessories in Asia;
AND WHEREAS the Company desires to facilitate Xxxx'x purchase of bicycle helmets
and bicycle accessories in Asia;
NOW THEREFORE in consideration of the mutual covenants and promises contained in
this Agreement, the parties hereto agree as follows:
ARTICLE 1
APPOINTMENT
1.1 Retention
---------
Xxxx hereby retains the Company as Xxxx'x sole and exclusive buying agent for
the purchase, in accordance with the terms hereof, of bicycle helmets and
bicycle accessories manufactured in, and distributed from China, Taiwan, Hong
Kong, Thailand, Indonesia, Pakistan, India, South Korea and Singapore ("Asia")
for use by BSI, BSC and BSA (individually "Product" and collectively
"Products"). The parties acknowledge that the definition of Products shall
exclude, and this Agreement shall not relate to, unless otherwise agreed: (i)
any bicycle helmet or bicycle accessory manufactured outside of Asia; (ii) any
bicycle helmet or bicycle accessory manufactured by Xxxx or any of its
affiliates; (iii) any bicycle helmet or bicycle accessory acquired for use by
any division of Xxxx other than BSI, BSC or BSA, unless otherwise agreed, or
(iv) the purchase by Xxxx or its affiliates of product lines for which Xxxx or
its affiliates act as a distributor, including, without limitation, the Xxxxx,
Fizyk, Rock Shox and Vittoria Tires product lines.
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1.2 Acceptance
----------
The Company hereby agrees to be Xxxx'x sole buying agent for Xxxx'x purchase, in
accordance with the terms hereof, of Product.
ARTICLE II
SERVICES AND COMPENSATION
-------------------------
2.1 Orders
------
Xxxx will place orders for Products with suppliers identified by the Company and
approved by Xxxx, and the Company will serve as Xxxx'x buying agent to purchase
such Products. Xxxx will send purchase orders to the Company and the Company
will forward Xxxx'x purchase orders to the suppliers.
2.2 Advances
--------
To permit Xxxx to pay its Asian suppliers in accordance with the suppliers'
terms or the terms of Xxxx'x purchase order, the Company may from time to time
advance on Xxxx'x behalf and for Xxxx'x account only a revolving line of credit
with the Company ("Loan Advance"). Any Loan Advance required to pay expenses
associated with Product, including (without limitation) payments to suppliers,
cost of samples, courier costs, third party costs and all other associated
expenses (hereinafter collectively the "Purchase Price") shall be repaid within
45 days of Xxxx'x receipt of the Products for which the Loan Advance was made
without regard to the date of the Loan Advance. No interest will accrue on any
such Loan Advance providing however that in the event of any default in the
timely repayment of the Loan Advance, interest shall accrue from the date of
default to the date of payment at the rate of 1.5% per month. If Xxxx defaults
in repayment of any Loan Advance, in addition to any other rights and remedies
available to the Company, the full outstanding aggregate balance of Loan
Advances may at the Company's sole and absolute discretion become immediately
due and payable, without further demand by the Company and the Company may cease
rendering any or all services provided by it pursuant to this Agreement.
2.3 Compensation
------------
Xxxx shall pay the Company as compensation for its services pursuant to this
Agreement, a fee equal to 6% of the Purchase Price net of any taxes (the "Fee")
within 45 days from Xxxx'x receipt of the Products on which the Fee is based.
For the purposes of this Agreement receipt of the Product by Xxxx shall be
deemed to have occurred upon the date which is the later of the date specified
for delivery of the Product as set out in Xxxx'x Purchase Order or the Product
is available for shipment from the port of origin. The Fee will not be included
in the Purchase Price of the Products but will be separately designated on the
invoice.
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2.4 No Liability
------------
The Company shall not take title to or possession of any Products, shall not
have any interest in any Products, shall not have any obligation to accept
returns, and shall not bear the responsibility for the risk of loss of Product.
ARTICLE III
COVENANTS OF THE COMPANY
3.1 Conduct of Business Generally
-----------------------------
The Company agrees to conduct its business, including, without limitation, to
use its personnel, facilities, goodwill, know-how, computer systems,
communications network and financial resources, to (i) identify sources of
Product and (ii) ensure that requisitions for Product placed by Xxxx with
sources identified by the Company result in timely delivery to Xxxx of Products
of quality and price acceptable to Xxxx. Without limiting the foregoing, the
Company agrees that it will:
(a) provide staff and internal systems sufficient to satisfy its obligations
hereunder and to permit Xxxx to eliminate personnel involved in the
sourcing of Product;
(b) assist in the negotiation of the most favorable pricing and other terms
relating to the purchase of Product by Xxxx;
(c) act as a liaison between Xxxx'x design and marketing personnel and sources
of Product regarding design and engineering issues;
(d) Provide adequate facilities in Hong Kong to accommodate office show rooms,
meeting space and the test facility referenced in Section 3.3; and
(e) Provide adequate supervision of all persons employed or engaged by it in
connection with the satisfaction of its obligations hereunder.
3.2 Order Placement, Product Shipment, Rejected Product
---------------------------------------------------
The Company will place orders for Product on behalf of Xxxx only upon written
instruction from Xxxx and only upon such terms and specifications as Xxxx shall
designate. The Company is not authorized to place any such order with a source
other than the specific source approved by Xxxx for that order.
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The Company will, at Xxxx'x direction, (i) coordinate shipment of Product,
including consolidations, coordination and delivery thereof and (ii) prepare the
documentation related to Product shipments. The Company will, at Xxxx'x request,
assist in expediting Product shipment.
The Company will, at Xxxx'x request, return Products rejected by Xxxx or the
Company and, at Xxxx'x request, make appropriate claims against the source of
such rejected Product, including, without limitation, claims for refund or
credit.
3.3 Sampling, Test Facility and Quality Control
-------------------------------------------
The Company will assist Xxxx in ensuring that Product purchased by Xxxx is
manufactured in accordance with Xxxx'x specifications. Without limiting the
foregoing, the Company will without discretion, in conformity with standards,
specifications and other direction supplied from time to time by Xxxx: (i)
collect samples of Product and arrange for the shipment thereof to locations in
the United States, the test facility referenced below, or otherwise, (ii)
establish, staff, maintain and operate a test facility to test Product samples,
(iii) coordinate certification testing with outside labs, and (iv) provide
quality control of in-plant production prior to shipping. Xxxx may, at its
expense, inspect the test facility at any time and may observe the Company's
in-plant production quality control processes, in each case, in order to ensure
compliance with Xxxx'x specifications.
3.4 Invoices and Document Control
-----------------------------
The Company will obtain from sources of Product purchased by the Company on
behalf of Xxxx, and will deliver to Xxxx, copies of all invoices for such
purchases. The Company will provide document control including, purchase orders,
invoices, shipping documents, and process control records relating to the
manufacture and testing of components and finished goods.
3.5 Compliance with Law
-------------------
In connection with the satisfaction of its obligations under this Agreement, the
directors, officers, employees or agents of the Company and their respective
affiliates will comply with all applicable law, and none of them (i) will use
any funds for unlawful contributions, gifts, entertainment or other unlawful
expenses related to political activity, (ii) make any direct or indirect
unlawful payments to government officials or others or establish or maintain any
unlawful or unrecorded funds, (iii) violate any of the provisions of The Foreign
Corrupt Practices Act of 1977, or any rules or regulations promulgated
thereunder or (iv) receive any illegal discounts or rebates or violate any
antitrust laws.
3.6 Exclusivity
-----------
While this Agreement is in effect, the Company will not act as a buying agent
for any other person or entity of goods that would be included within the
definition of Product if purchased by Xxxx hereunder and will not purchase
Product other than pursuant to this Agreement.
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ARTICLE IV
COVENANTS OF XXXX
-----------------
4.1 Insurance
---------
Xxxx shall maintain at its sole expense throughout the term of this Agreement
product liability insurance naming the Company as a named additional insured
party with an insurer and in an amount reasonably acceptable to the Company.
Xxxx shall deliver to the Company within 10 days of the execution of this
Agreement certificates of insurance evidencing the coverage required by this
section.
4.2 Assistance
----------
BSI shall assist, at the Company's request, in the identification, hiring and
training of personnel by the Company necessary to meet its obligations
hereunder, further, Xxxx shall provide all specifications, protocols, directions
and instructions to the Company as contemplated by Section 3.3 of this
Agreement.
4.3 Fees and Loans
--------------
Xxxx shall pay Fees and repay Loan Advances as and when same are due.
4.4 Exclusivity
-----------
While the Agreement is in effect, Xxxx shall not purchase Products other than
pursuant to this Agreement.
ARTICLE V
TRADEMARKS
5.1 Trademarks
----------
Xxxx may not use the trademarks or trade names of the Company or its affiliates
without prior written consent of the Company. The Company and its affiliates may
not use the trademarks, trade names or design patents of Xxxx or any of its
affiliates without prior written consent of Xxxx. Nothing contained herein shall
limit in any respect Xxxx'x use and application of its trademarks, trade names
or design patents.
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ARTICLE VI
TERM, TERMINATION AND EFFECT OF TERMINATION
6.1 Term
----
The Term of this Agreement shall commence from the date of execution of this
Agreement and unless terminated as hereinafter provided, this Agreement and the
appointment of the Company hereunder shall continue in force indefinitely. There
will be a period of transition during which Xxxx will begin to transition
purchases of Product to the Company. Effective April 1, 1999, Xxxx will place
with the Company all purchase orders for Product. The Company shall be entitled
to Fees on all Products shipped on or after (but not before) April 1, 1999.
6.2 Immediate Termination By Either Party
-------------------------------------
Upon the occurrence of any of the following events, either party may terminate
this Agreement effective immediately upon written notice to the other:
(a) The other party shall be or become insolvent as defined in the
Bankruptcy Code, or is not generally paying its debts as such debts
become due; makes any general assignment for the benefit of
creditors; or becomes involved in a receivership, reorganization or
any other law for the relief of debtors.
(b) The other party shall fail to perform properly in all material
respects its obligations hereunder and such failure shall not be
remedied within fifteen (15) days after receipt of written notice
pursuant to Section 8.2.
6.3 Termination on Notice by Either Party
-------------------------------------
Either Party may terminate this Agreement at any time by giving the other party
at least ninety (90) days prior written notice. Loan Advances and Fees will be
due on all Product ordered during such ninety (90) day period.
ARTICLE VII
LIMITATION ON WARRANTIES AND RELIANCE; INDEMNIFICATION
7.1 Limitations on Warranties and Reliance
--------------------------------------
Xxxx hereby acknowledges that the Company's expertise is in facilitating
business operations in Asia and that the Company's expertise or knowledge about
any aspect of the design, engineering or manufacture of bicycle helmets or
bicycle accessories is limited to the training, standards, direction and other
information provided to the Company with respect to Product testing and
compliance by Xxxx. The Company shall be entitled to rely entirely upon Xxxx to
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provide appropriate product specifications and for compliance with all
applicable legal requirements, including (without limitation) those related to
consumer product safety and, other than for acts of gross negligence or
intentional misconduct, it shall incur no liability for or in respect of any
action taken, suffered or omitted by it in good faith and in accordance with
such standards and direction. The Company makes no warranties whatsoever
regarding the Products and shall and does hereby assign to Xxxx any warranty
with respect thereto to which the Company may be entitled. Xxxx expressly agrees
that any claim it may have arising out of or related in any manner whatsoever to
the Products, other than claims for breaches of this Agreement, shall be
asserted against the actual manufacturer and not against the Company. EXCEPT FOR
MATTERS EXPRESSLY COVERED BY THIS AGREEMENT THE COMPANY DISCLAIMS ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE) RELATED IN ANY MANNER WHATSOEVER TO THE
PRODUCTS.
7.2 Indemnification by BSI
----------------------
BSI agrees to indemnify and hold harmless (in accordance with the provisions of
and subject to the limitations set forth in Section 7.4) the Company and its
affiliates and their directors, officers, employees, agents, attorneys and
consultants and their successors and assigns (the "Company Group Members") from
and against any and all Losses and Expenses incurred by the Company Group
Members in connection with or arising from: (a) any breach, or alleged breach,
by Xxxx or other failure of Xxxx to perform any of the covenants of Xxxx
contained in this Agreement; and (b) any Third Party Product Liability Claim,
except to the extent such Third Party Product Liability Claim results from the
gross negligence or intentional misconduct of any Company Group Member with
respect to the fulfillment of this Agreement.
7.3 Indemnification by the Company
------------------------------
The Company agrees to indemnify and hold harmless (in accordance with the
provisions of and subject to the limitations set forth in Section 7.4) Xxxx and
its affiliates and their directors, officers, employees, agents, attorneys and
consultants and their successors and assigns (the "Xxxx Group Members") from and
against any and all Losses and Expenses incurred by the Xxxx Group Members in
connection with or arising from any breach, or alleged breach, by the Company or
other failure of the Company to perform any of the covenants of the Company
contained in this Agreement, excluding Product Liability Claims with respect to
which, and only to the extent that BSI is required to provide indemnification
pursuant to Section 7.2(b).
7.4 Additional Limitations
----------------------
(a) An indemnifying party shall have no obligation to pay
indemnification for any Loss or Expense to the extent that recovery
for such Loss or Expense is actually paid to the indemnified party
under any policy of insurance. To the extent that an indemnified
party is subsequently paid by an insurance company for any Loss or
Expense with respect to which payment was previously received by
the indemnified party hereunder, the indemnified party shall
promptly, upon receipt of the insurance proceeds, reimburse the
indemnifying party from the insurance proceeds in an amount up to
the indemnifying party's prior payment to the indemnified party
with respect to such Loss or Expense.
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(b) In calculating any Loss or Expense there shall be deducted the
amount of any income tax benefit available to any indemnified
person (or any of its affiliates) with respect to such Loss or
Expense (after giving effect to the tax effect of receipt of the
indemnification payments).
7.5 Notice of Claims
----------------
(a) If the Company believes that it has suffered or incurred any Loss
or incurred any Expense for which the Company believes BSI is
required to provide indemnification pursuant to Section 7.2, the
Company shall so notify Xxxx promptly in writing describing such
Loss or Expense, the amount thereof, if known, and the method of
computation of such Loss or Expense, all with reasonable
particularity and containing a reference to the provisions of this
Agreement in respect of which such Loss or Expense shall have
occurred. If any action at law or suit in equity is instituted by
or against a third party with respect to which the Company intends
to claim any liability or expense as Loss or Expense under this
Article VII, the Company shall notify Xxxx promptly in writing of
such action or suit.
(b) If Xxxx believes that it has suffered or incurred any Loss or
incurred any Expense for which Xxxx believes the Company is
required to provide indemnification pursuant to Section 7.3, Xxxx
shall so notify the Company promptly in writing describing such
Loss or Expense, the amount thereof, if known, and the method of
computation of such Loss or Expense, all with reasonable
particularity and containing a reference to the provisions of this
Agreement in respect of which such Loss or Expense shall have
occurred. If any action at law or suit in equity is instituted by
or against a third party with respect to which Xxxx intends to
claim any liability or expense as Loss or Expense under this
Article VII, Xxxx shall notify the Company promptly in writing of
such action or suit.
(c) The amount to which an indemnified person shall be entitled under
this Article VII shall be determined: (i) by the written agreement
between the indemnified person and the indemnifying party; (ii) by
final judgment or decree of a court of competent jurisdiction; or
(iii) by any other means to which the indemnified person and the
indemnifying party shall agree. The judgment or decree of a court
shall be deemed final when the time for appeal, if any, shall have
expired and no appeal shall have been taken or when all appeals
taken have been finally determined. The indemnified person shall
have the burden of proof in establishing the amount of the Loss and
Expense suffered by it.
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(d) Notwithstanding the foregoing, the failure of any person hereto to
give any notice described in this Section 7.5 shall not relieve any
party hereto of its obligations hereunder, except to the extent
such failure shall have prejudiced such party.
7.6 Third Party Claims
------------------
(a) Subject to Section 7.6(b), any person indemnified under this
Article VII shall have the right to conduct and control, through
counsel of its choosing, any Third Party Claim and the person
indemnified may compromise or settle the same, provided that the
indemnified person shall give the indemnifying party at least 10
days' advance notice of any proposed compromise or settlement. The
indemnified person shall permit the indemnifying party to
participate in the defense of any Third Party Claim through counsel
chosen by it, provided that the fees and expenses of such counsel
shall be borne by the indemnifying party. Subject to Section
7.6(b), any compromise or settlement with respect to a claim for
money damages effected after the indemnifying party by notice to
the indemnified person shall have disapproved such compromise or
settlement shall discharge the indemnifying party from liability
with respect to the subject matter thereof, and no amount in
respect thereof shall be claimed as Loss or Expense under this
Article VII.
(b) If the remedy sought in any Third Party Claim is solely money
damages and will have no continuing effect on the business,
reputation or future business prospects of any indemnified person,
the indemnifying party shall have 15 business days after receipt of
the notice referred to in the last sentence of Section 7.6(a) to
notify the indemnified person that it elects to conduct and control
such Third Party Claim. If the indemnifying party gives the
foregoing notice, the indemnifying party shall have the right to
undertake, conduct and control, through counsel of its own choosing
and at the sole expense of the indemnifying party, the conduct and
settlement of such Third Party Claim, and the indemnified person
shall cooperate with the indemnifying party in connection
therewith; provided that (i) the indemnifying party shall not
thereby permit to exist any lien, encumbrance or other adverse
charge upon any asset of any indemnified person; (ii) the
indemnifying party shall permit the indemnified person to
participate in such conduct or settlement through counsel chosen by
the indemnified person, but the fees and expenses of such counsel
shall be borne by the indemnified person except as provided in
clause(iii) below; and (iii) the indemnifying party shall agree
promptly to reimburse to the extent required under this Article VII
the indemnified person for the full amount of any Loss arising from
or relating to such Third Party Claim and all related Expense
incurred by the indemnified person, except fees and expenses of
counsel for the indemnified person incurred after the assumption of
the conduct and control of such Third Party Claim by the
indemnifying party. So long as the indemnifying party is contesting
any such Third Party Claim in good faith, the indemnified person
shall not pay or settle any such Third Party Claim. Notwithstanding
the foregoing, the indemnified person shall have the right to pay
or settle any such Third Party Claim, provided that in such event
the indemnified person shall waive any right to indemnity therefor
by the indemnifying party, and no amount in respect thereof shall
be claimed as Loss or Expense under this Article VII.
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7.7 Certain Definitions
-------------------
As used in this Article VII the following terms have the meanings specified or
referred to in this Section 7.7 and shall be equally applicable to both the
singular and plural forms.
"Expenses" means any and all reasonable expenses incurred in connection with
investigating, defending or asserting any claim, action, suit or proceeding
incident to any matter indemnified against hereunder (including, without
limitation, court filing fees, court costs, arbitration fees or costs, witness
fees, and reasonable fees and disbursements of legal counsel, investigators,
consultants, expert witnesses, accountants and other professionals).
"Losses" means any and all losses, costs, obligations, liabilities, settlement
payments, awards, judgments, fines, penalties, damages, expenses, deficiencies
or other charges.
"Product Liability Claim" means a claim that a defective Product caused personal
injury.
"Third Party Claim" means a third party claim, action, suit, proceeding,
investigation or other claim giving rise to a claim for indemnification under
this Agreement.
"Third Party Product Liability Claim" means a Third Party Claim that is a
Product Liability Claim.
7.8 Covenant Not To Xxx
-------------------
Xxxx agrees that it will not pursue any Product Liability Claim against any
Company Group Member other than with respect to Product Liability Claims
resulting from the gross negligence or intentional misconduct of a Company Group
Member.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Independent Contractor
----------------------
The relationship between the Company and Xxxx is that of principal (Xxxx) and
buying agent (Company). This Agreement does not and is not intended to create in
any manner or for any purpose whatsoever and nothing in it shall be construed to
create an employer-employee, partnership or joint venture relationship or any
other relationship other than that of principal and Independent Contractor. The
Company's authority as a buying agent shall be limited to the authority
expressly granted by Xxxx in, or in accordance with, this Agreement.
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The Company shall be solely responsible for the payment of any and all
compensation to any of its employees or agents performing services on its behalf
in furtherance of the Company's obligations hereunder, and shall also be
responsible for all federal, state, local and other taxes applicable to any such
payments to its employees and agents. The Company agrees to indemnify and hold
harmless Xxxx from any claim or liability relating to the payment or nonpayment
of applicable taxes.
8.2 Notices
-------
All notices, requests, offers and other communications required or permitted to
be made under this Agreement shall be in writing and shall be deemed to have
been duly given when received if personally delivered; when transmitted if
transmitted by telecopy, electronic or digital transmission method; the day
after sent, if sent for next day delivery to a domestic address by a recognized
overnight delivery service (e.g. Federal Express); and upon receipt, if sent by
certified or registered mail, return receipt requested. In each case notice
shall be sent to:
To the Company or its affiliates at: DS-MAX U.S.A. Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxxx Xxxxxxxx
With a copy to: DS-MAX U.S.A. Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX
Xxxxxx X0X 0X0
Attention: Xx. Xxxxxx X. Xxxxxxx
To Xxxx: Xxxx Sports, Inc.
0000 Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx Xxxxx
Or at such other address as either party most recently may have designated in
writing to the other party.
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8.3 Assignment
----------
Neither this Agreement nor any of the rights or obligations hereunder may be
assigned by any party without the prior written consent of the other party.
8.4 Sole and Entire Agreement
-------------------------
This Agreement constitutes the sole and entire existing agreement between the
parties with respect to the subject matter hereof, and completely and correctly
expresses all of the rights and obligations of the parties. All prior
agreements, conditions, practices, customs, usages and obligations are
completely superseded and revoked, insofar as any such prior agreement,
condition, practice, custom, usage or obligation might have given rise to any
enforceable right.
8.5 Waivers
-------
The waiver in any particular instance or series of instances of any term or
condition of this Agreement or any breach hereof by any party shall not
constitute a waiver of such term or condition or of any breach thereof in any
other instance.
8.6 Amendment
---------
This Agreement is subject to amendment only by subsequent written agreement
between, and executed by, the parties hereto. Commencement or continuation of
any custom, practice or usage by any party shall not constitute an amendment
hereof or otherwise give rise to enforceable rights or create obligations of any
party.
8.7 Separability
------------
If any one or more provisions, clauses, paragraphs, subclauses or subparagraphs
contained in this Agreement shall for any reason be held to be invalid, illegal,
void or unenforceable, the same shall not affect any other provision, clause,
paragraph, subclause or subparagraph of this Agreement, but this Agreement shall
be construed as if such invalid, illegal, void or unenforceable provision,
clause, paragraph, subclause or subparagraph had never been contained herein.
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8.8 Duration of Rights
------------------
Rights and obligations created by or arising under this Agreement shall
terminate automatically upon termination of this Agreement, except as otherwise
expressly provided herein. The agreements contained in Section 4.1, 8.11 and
Article VII shall survive the termination of this agreement.
8.9 Captions; Definitions
---------------------
Any captions of articles, sections, subsections or paragraphs of this Agreement
are solely for the convenience of the parties and are not a part of this
Agreement or to be used for the interpretation of this Agreement or any
provision hereof. Capitalized terms used herein without definition have the
meanings assigned them in the Agreement.
8.10 Applicable Law
--------------
The parties hereto hereby irrevocably submit in any suit, action or proceeding
arising out of or related to this Agreement or any of the transactions
contemplated hereby or thereby to the jurisdiction and venue of state and
federal courts located in Santa Xxxxx County, California and hereby waive any
and all objections to such jurisdiction that they may have under the laws of the
State of California or the United States and they hereby waive any and all
claims that such suit, action or proceeding is brought in an inconvenient forum
that they may have under the laws of the State of California or the United
States.
8.11 Confidentiality
---------------
(a) The parties agree that the terms of this Agreement are to be held
confidential and shall not be disclosed to any other person or
entity, except as required by law or legal process, and except that
either party may disclose the terms hereof to its legal counsel or
other advisors.
(b) The parties recognize that the sales techniques, operations
manuals, memoranda, corporate documents, financial documents, trade
information, purchase schedules, vendor schedules, manufacturing
sources, catalogues, price lists, customer lists, pricing structure
and other information used by them in the purchasing, promotion,
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distribution or sale of products is confidential information
(hereinafter "Confidential Information"). The parties also
recognize that the Confidential Information of each of the parties
(1) was designed and developed by such party at great expense and
over lengthy periods of time; (2) is secret, confidential and
unique; (3) constitutes the exclusive property and/or trade secrets
of such party, and (4) that any use of the Confidential Information
by the other of them for any purpose other than in accordance with
this Agreement and in furtherance of obligations hereunder would be
wrongful and would cause irreparable injury to the aggrieved party
for which damages are not an adequate remedy.
(c) Except as its duties hereunder may require, or as each party may
otherwise consent in writing, the parties will not at any time
disclose or use, either during the term or after the expiration or
termination of this Agreement, the Confidential Information of the
other party. The parties agree that they will not use or disclose
any confidential information obtained from a competitor.
(d) Xxxx and the Company agree that in the event either party commits a
breach or threatens to commit a breach of any of the provisions of
this Section 8.11 the other party (the "Aggrieved Party") shall
have the right and remedy to have the provisions of this Section
8.11 specifically enforced by any court having jurisdiction, it
being acknowledged and agreed that any such breach or threatened
breach will cause immediate irreparable injury to the Aggrieved
Party and that money damages will not provide an adequate remedy at
law for any such breach or threatened breach. Such right and remedy
shall be in addition to, and not in lieu of, any other rights and
remedies available to the Aggrieved Party under this Agreement or
at law or in equity.
8.12 Counterparts
------------
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
8.13 Covenant not to Compete and Confidentiality
-------------------------------------------
During the term of this Agreement, neither the Company nor any of its officers,
directors, stockholders, employees, agents, representatives or any affiliates,
if any thereof will (1) engage in the same or similar line of business as that
carried on by Xxxx; or (2) directly or indirectly, serve, advise or be employed
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by any individual firm or corporation or other business or entity engaged in the
same or similar line of business as that carried on by Xxxx; or (3) represent,
offer for sale or sell any bicycle accessories, helmets, bicycle or other goods
that are similar to or competitive with the Products.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement or
caused this Agreement to be duly executed on their respective behalf, by their
respective officers thereunto duly authorized, all as of the day and year first
above written.
SIGNED, SEALED AND DELIVERED ) DS-MAX U.S.A. INC.
In the presence of )
) per:
) Xxxxxxxx Xxxxxxxx
) Chief Executive Officer
)
) XXXX SPORTS, INC.
)
) per:
) Xxxx Xxxxx
) Group President
)
) XXXX SPORTS CANADA, INC.
)
) per:
) Xxxx Xxxxxxxxx
) President
)
) XXXX SPORTS
) AUSTRALIA PTY LTD.
)
)
) per:
) Xxxxx Xxxxxxxx
) General Manager