VENDOR AND LICENSE AGREEMENT
THIS
VENDOR AND LICENSE AGREEMENT (this “Agreement”) is made and entered into and is
effective as of the _____ day of February, 2007, by and between Buzz
Off Insect Shield, LLC,
a North
Carolina limited liability company (“Buzz Off”), and Charleston
Basics,
INC, a
New York corporation (“Licensee”).
WITNESSETH:
WHEREAS,
Buzz Off owns the proprietary rights to processes and procedures for the
treatment of garments and other goods for insect repellency (the “Buzz Off
Process”) and trademarks, service marks and all common law rights and
registrations and registration applications related thereto listed on
Exhibit
A
hereto,
as the same may be amended by Buzz Off from time to time (the “Marks”); and
WHEREAS,
Licensee desires to have certain products manufactured by or on behalf of
Licensee treated with the Buzz Off Process and to market, sell and distribute
such products to retailers using the Marks; and
WHEREAS,
Buzz Off is willing to treat, or cause to be treated by its affiliate,
International Garment Technologies, LLC or others, Licensee's textile gear
products with the Buzz Off Process and to license Licensee to use the Marks
in
the marketing, sale, and distribution of textile gear products consisting of
cot
covers, blankets, hammocks, and folding chair covers approved by Buzz Off and
to
be distributed through Licensee’s traditional distribution channels (the
“Licensed Products”) all on the terms and conditions hereafter set forth;
NOW,
THEREFORE, in consideration of the foregoing and of the mutual promises
hereinafter set forth, the parties agree as follows:
1. Processing
and Purchase.
During
the Term (as defined in section 8), Licensee will provide quantities of products
to Buzz Off and submit orders to Buzz Off for the treatment of those products
with the Buzz Off Process, which orders shall be submitted in the form and
manner described in Section 5 herein (each, an “Order”). Upon acceptance of an
Order by Buzz Off, Buzz Off will cause products covered by the Order to be
treated with the Buzz Off Process and provide such other services as are
specified in the Purchase Order (as defined in Section 5), including, but not
limited to, finishing, packaging and labeling. This Agreement does not
constitute a commitment by Licensee to purchase any quantity of Buzz Off's
goods
or services or by Buzz Off to process goods.
2. Approval
of Products.
No type
of item will be processed unless the appropriateness, composition, design,
construction, size, and finish of such item has been approved by Buzz Off and
determined by Buzz Off to be compatible with the Buzz Off Process. Licensee
will
provide Buzz Off for testing, at no cost to Buzz Off, sufficient samples of
each
product sought by Licensee to be processed by Buzz Off to enable adequate
testing by Buzz Off (the “Test Samples”). Buzz Off will perform such tests or
analyses on the Test Samples as it deems necessary. Licensee will pay for all
testing. If, in Buzz Off's judgment, the garment is appropriate and the
composition, design, construction, size, and finish of the Test Samples are
compatible with the Buzz Off Process, Buzz Off shall notify Licensee that the
garment is acceptable for treatment with the Buzz Off Process (any such
acceptable garment being herein referred to as a “Product”).
3. Warranty
of Uniformity.
Licensee
warrants that all Products delivered to Buzz Off for treatment with the Buzz
Off
Process will be of the same composition, design, construction, size, and finish
as the Test Samples. Licensee will be liable for all losses, damages and
expenses of Buzz Off due to the failure of any Product to conform in all
respects with the Test Samples, including but not limited to the cost of
treatment. Under no circumstances will Buzz Off be liable for any loss, damage,
or expense to Licensee in connection with or by reason of the use of or
inability to use any Product if such Product does not conform in all respects
with the Test Samples.
4. Pricing.
Buzz Off
will notify Licensee of the charge per Product (the “Unit Price”) for each type
of Product (“Product Type”) to be treated with the Buzz Off Process. Unit Prices
may be adjusted by Buzz Off from time to time for repeat Orders of the same
Product Type upon written notice to Licensee of such change. The Unit Price
will
not include the costs of shipping, sales and use taxes, insurance, tariffs,
duties and similar charges, all of which will be at the expense of
Licensee.
5. Purchase
Orders.
(a) Agreement
Applies to all Purchase Orders.
All
purchase order forms and other forms or documents of purchase, including but
not
limited to, telexes, faxes, electronic mail (“email”) (hereinafter collectively
referred to as “Purchase Orders”) placed by Licensee with Buzz Off will be
subject to the terms and conditions of this Agreement, including those contained
in Section 7 herein, and in the event of any conflict between this Agreement
and
any provision of any Purchase Order, this Agreement shall apply. All Purchase
Orders are subject to acceptance by Buzz Off at its offices in Greensboro,
North
Carolina.
(b) Form
and Delivery of Purchase Orders.
Subject
to the foregoing, Purchase Orders shall be in any reasonable form that the
parties may find appropriate from time to time. Purchase Orders shall be sent
to
Buzz Off at the following address:
Buzz
Off
Insect Shield, LLC
000
Xxxx
Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Purchase Order
Facsimile:
(000) 000-0000
Email:xxxxxxxxxxxxx@xxxxxxx.xxx
Licensee
will include in every Purchase Order (i) the Product Type and the units to
be
processed, (ii) confirmation of Unit Price, (iii) confirmation of finishing,
packaging and additional labeling requirements, (iv) date of delivery to Buzz
Off of the Products to be processed, (v) desired date of delivery of the
finished Products to common carrier and method of shipping to be used by Buzz
Off, (vi) Licensee's directed shipping address, and (vi) the name, address
and
contact information for the Licensee's contact person.
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(c) Modification
and Acceptance.
Following receipt of the Purchase Order from Licensee, Buzz Off shall either
(i)
accept such Purchase Order or (ii) notify Licensee in writing of proposed
additions and/or modifications to such Purchase Order, including any
modification in the Unit Price. Any such additions and/or modifications shall
become a part of the Purchase Order unless specifically rejected by Licensee
by
written notice to Buzz Off within three (3) business days following receipt.
If
Licensee rejects the additions and/or modifications, the Purchase Order shall
be
null and void.
(d) Buzz
Off's Cancellation of Purchase Order.
Buzz Off
may cancel any previously accepted Purchase Order if, upon inspection of the
unprocessed Products delivered by Licensee to Buzz Off for treatment with the
Buzz Off Process (“Raw Products”) or during the processing of Products pursuant
to that Purchase Order, Buzz Off determines that the Raw Products furnished
by
Licensee do not conform in all respects to the Test Samples or are otherwise
incompatible with the Buzz Off Process.
6. Quality
Audit.
Buzz Off
will perform a quality audit for visual defects prior to shipment of Products.
Buzz Off will segregate (i) all conforming Products, (ii) all Products that
are
defective due to defects in the Raw Products or their failure to conform in
all
respects to the Test Samples (each defective item a “Manufacturing Defect”), and
(iii) Products believed to be irregulars caused by Buzz Off (each a “Processing
Irregular”).
(a) Manufacturing
Defects.
Buzz Off
shall bear no liability for any Manufacturing Defect or any responsibility
for
correcting, curing, or otherwise remedying any such Manufacturing Defect.
However, if, prior to shipment of such Products to Licensee, Buzz Off identifies
any Manufacturing Defects that Buzz Off believes it can remedy, Buzz Off may,
but is not required to, notify Licensee of the quantity of items affected,
the
nature of the defect or defects, the remedial measures proposed, and the
additional charge, if any, to be paid by Licensee to Buzz Off for such
additional services. Licensee may accept or reject Buzz Off's offer to attempt
to remedy any Manufacturing Defects. BUZZ
OFF DOES NOT HEREBY WARRANT THE SUCCESS OR EFFICACY OF ANY REMEDIAL
MEASURES.
(b) Processing
Irregulars.
Licensee
shall not be responsible for the processing cost of any Processing Irregulars.
Additionally, if, in any calendar quarter, the quantity of Processing Irregulars
shipped by Buzz Off to Licensee exceeds 2 ½% of the quantity (measured in terms
of the number of items processed) of all Products shipped by Buzz Off to or
on
behalf of Licensee, Buzz Off shall pay to Licensee, within 30 days after the
end
of such calendar quarter, a sum equal to Licensee's average actual cost of
the
Raw Products of such Processing Irregulars in excess of such 2 ½ %, which amount
will constitute Buzz Off's sole liability to Licensee for Processing
Irregulars.
7. Purchase
Order Terms and Conditions.
These
terms and conditions apply to all Purchase Orders issued by Licensee pursuant
to
this Agreement. Any terms and conditions in any Purchase Order that may be
different or inconsistent with these terms and conditions shall be entirely
inapplicable, and the terms and conditions in this Agreement shall prevail
and
apply.
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(a) Terms
and Acceptance.
A
Purchase Order becomes a contract upon written acceptance by Buzz Off, or when,
pursuant to Section 5(c), Licensee accepts any additions or modifications to
such Purchase Order.
(b) Price
and Invoicing.
Purchase
price for each order shall be the Unit Price for each Product Type multiplied
by
the number of items of that Product Type actually processed by Buzz Off. In
addition, Licensee shall be responsible for the costs of all shipping,
insurance, excise, use, privilege, sales, property and similar taxes, tariffs
and duties, and similar charges, which costs will be listed separately in Buzz
Off's invoice.
(c) Shipment.
Buzz Off
will ship all Products F.O.B. premises of Buzz Off or premises of Buzz Off's
subcontractor unless otherwise specifically provided on the face of the Purchase
Order. Risk of loss shall pass to Licensee upon delivery of the Products to
the
engaged common carrier.
(d) Payments.
Payment
terms are “Net 30 Days” unless otherwise agreed in advance by Buzz Off. Buzz Off
may assess late payment charges on amounts not paid within thirty (30) days
of
the invoice date at the maximum rate allowed by law or 1.5% per month (or any
portion thereof), whichever is less. Licensee shall also pay or reimburse Buzz
Off for all costs and expenses (including reasonable attorneys' fees) incurred
or paid by Buzz Off in collecting amounts due from Licensee or in enforcing
Licensee's obligations hereunder.
(e) Quantity
Audit.
Upon
receipt, Buzz Off shall perform a physical audit (the “Quantity Audit”) to
verify the quantity of Raw Products shipped by Licensee and delivered to Buzz
Off or its subcontractor. Charges for processing will, in all cases, be based
on
the number of items actually received by Buzz Off as determined by the Quantity
Audit. Licensee agrees that Buzz Off will adjust the Purchase Order to reflect
the quantity so determined. Buzz Off shall not be responsible for any loss
or
damage of Licensee caused by Licensee's failure to deliver to Buzz Off the
exact
quantity of Raw Products stated in the Purchase Order.
(f) Delivery.
Buzz Off
will use commercially reasonable best efforts to ensure that Products are
delivered to, or made available for pick-up by, the common carrier on the date
specified by Licensee in the Purchase Order, subject to receipt by it of the
Raw
Products in a timely manner. In any event, Buzz Off will be not be liable to
Licensee for late delivery of Products to the common carrier for any amounts
in
excess of the price charged to Licensee by Buzz Off for the processing of such
Products, and Buzz Off will have no liability if the late delivery of such
Products is due, in whole or in part, to the late delivery to Buzz Off of the
Raw Products for processing or due to Manufacturing Defects.
(g) Termination.
Buzz Off
may terminate any Purchase Order immediately if Licensee becomes insolvent,
is
unable to pay its debts as they mature or is the subject of a petition in
bankruptcy, whether voluntary or involuntary, or of any other proceeding under
bankruptcy, insolvency or similar laws, or makes an assignment for the benefit
of creditors, or is named in, or its property is subject to, a suit for
appointment of a receiver, or is dissolved or liquidated. In the event of such
termination, Licensee shall remain liable for the purchase price of any Buzz
Off
Processing performed pursuant to the Purchase Order, as well as all other costs
pursuant to Section 7(b) above. Any Products delivered pursuant to such a
terminated Purchase Order, as well as any Raw Products returned to Licensee,
will, upon payment in full of all amounts owed by Licensee to Buzz Off, be
shipped Freight Prepaid by Licensee F.O.B. premises of Buzz Off or Buzz Off's
subcontractor. Buzz Off shall be entitled to pursue any remedy provided in
law
or equity, including injunctive relief and the right to recover any damages
it
may have suffered by reason of such termination to the extent that such damages
are otherwise authorized by this Agreement.
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(h) Buzz
Off's Lien on Goods.
Licensee
hereby grants Buzz Off a security interest in all Raw Products and Products
of
Licensee in Buzz Off's possession to secure all amounts owed by Licensee to
Buzz
Off.
(i) Force
Majeure.
Neither
party hereto shall be considered in default of the Agreement or any Purchase
Order thereunder, or be liable for damages thereof, for any failure of
performance hereunder occasioned by an Act of God, war or warlike activity,
insurrection or civil commotion, governmental regulatory action whether or
not
with proper authority, if the party so affected gives prompt notice to the
other, provided, however, that increase(s) or decrease(s) in the price of raw
material is not for the purposes of this Section 7(i) considered a force
majeure. In the event of a suspension of any obligation by reason of this
subsection that extends beyond ten (10) days, the party not affected may, at
its
option, elect to cancel those aspects of the Purchase Order that are reasonably
feasible to terminate.
(j) Buzz
Off's Warranty.
Buzz Off
expressly warrants that all Products will have been treated in conformance
with
the Buzz Off Process. The temporary white frosting effect known to both parties
is not considered a breach of Buzz Off's warranty.
BUZZ
OFF'S LIMITATION OF WARRANTIES.
BUZZ OFF MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE FITNESS OF ANY OF
THE
PRODUCTS FOR ANY PARTICULAR PURPOSE. BUZZ OFF MAKES NO WARRANTY, EXPRESS OR
IMPLIED, AS TO THE MERCHANTABILITY OTHER THAN THOSE PROVIDED HEREIN OF ANY
PRODUCTS EXCEPT AS PROVIDED HEREIN, NOR DOES BUZZ OFF MAKE ANY WARRANTY OF
ANY
KIND, EXPRESS OR IMPLIED.
(k) Licensee's
Warranties of Title and Quality of Raw Products.
Licensee
warrants that it has good title, free of encumbrances, to the Raw Products
delivered to Buzz Off pursuant to each Purchase Order issued by Licensee under
this Agreement. Licensee further warrants that the Raw Products will conform
in
all respects with the Test Samples and will be free from defects in design,
material and workmanship that would make them unsuitable for the Buzz Off
Process.
(l) LIMITATION
OF LIABILITIES.
ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, WHERE BUZZ
OFF
WARRANTS ANY PRODUCT, EITHER UNDER THIS AGREEMENT OR AS A MATTER OF LAW, IF
THERE IS A BREACH OF SUCH WARRANTY, LICENSEE'S ONLY AND EXCLUSIVE REMEDY SHALL
BE THE CORRECTION OF DEFECTS OR REFUND OF THE PROCESSING PRICE, AS DESCRIBED
HEREIN. THIS SHALL BE THE LIMIT OF BUZZ OFF’S LIABILITY. NEITHER LICENSEE NOR
BUZZ OFF SHALL BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING
BUT NOT LIMITED TO LOSS OF PROFITS. ANY ACTION RESULTING FROM ANY BREACH ON
THE
PART OF A PARTY AS TO GOODS OR SERVICES DELIVERED HEREUNDER MUST BE COMMENCED
WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
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(m) Assignment.
Buzz Off
may assign the performance of all or part of any Purchase Order, but Buzz Off
will remain responsible for completion of such Purchase Order.
8. Term.
This
Agreement shall continue for a term of seven years from the date hereof (the
“Initial Term”) and thereafter until terminated by either party by not less than
30 days' written notice (the Initial Term together with any term continuing
thereafter being referred to herein as the “Term”).
9. Grant
of License.
Buzz Off
hereby grants to Licensee for the Term a nonexclusive royalty-free license
to
use the Marks in connection with the marketing, sale and distribution to
retailers of Licensed Products within the distribution area as described in
Exhibit
B
(“Distribution Area”). It is understood and agreed that Buzz Off may from time
to time, upon no less than ninety (90) days’ prior written notice to Licensee,
amend Exhibit
A
to add
new Marks thereto or to delete therefrom Marks it no longer desires to use
with
respect to Licensed Products of the type being offered by Licensee.
10. Ownership
Of Marks.
Licensee
acknowledges the ownership of the Marks in Buzz Off and agrees that Licensee
will do nothing inconsistent with such ownership, that all use of the Marks
by
Licensee shall inure to the benefit of and be on behalf of Buzz Off and that
Licensee will provide reasonable assistance to Buzz Off in recording this
Agreement with appropriate government authorities if requested by Buzz Off.
Licensee agrees that nothing in this Agreement shall give Licensee any right,
title or interest in the Marks other than the right to use the Marks in
accordance with this Agreement. If Licensee has obtained or obtains in the
future any right, title or interest in the Marks (including any marks which
are
confusingly similar to the Marks, colorable imitations, translations or
transliterations thereof), Licensee agrees that it shall take all actions
necessary to assign such rights, title and interest to Buzz Off, including
executing any and all instruments deemed necessary or desirable by Buzz Off
to
transfer such right, title or interest to Buzz Off. Licensee agrees that it
will
not challenge the title of Buzz Off in and to the Marks or challenge the
validity of the patents, provisional patents or patents pending and other
intellectual property related to the Buzz Off Process.
11. Form
of Use.
Licensee
agrees to use the Marks only in the form and manner and with appropriate legends
as reasonably and uniformly prescribed in writing from time to time by Licensor,
and not to use any other trademark, tradename or service xxxx in combination
with any of the Marks without prior written approval of Licensor. Any
trademarks, tradenames or service marks using the Marks in combination with
other trademarks, tradenames or service marks shall be the property of
Licensor.
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12. Quality
Standards for Use of the Marks.
Licensee
agrees:
(a) All
Licensed Products must bear one or more of the Marks. Only Licensed Products
may
be marketed, sold or distributed bearing one or more of the Marks, and the
Marks
may not be used in connection with the design, manufacture, advertisement,
promotion, distribution, sale or other use of any product or service other
than
Licensed Products.
(b) Licensee
will supply Buzz Off with specimens of all Licensee’s uses of the Marks upon
request.
(c) All
advertising, packaging and promotional material that may be used by Licensee
in
merchandising the Licensed Products under the Marks (the “Promotional and
Packaging Material”), and all other uses of the Marks, shall be submitted to
Buzz Off for Buzz Off’s approval or disapproval prior to any release thereof by
Licensee. If such approval or disapproval is not received by Licensee within
thirty (30) days after transmittal of such material to Buzz Off, such right
of
approval or disapproval shall be deemed waived and such material shall be
considered approved. Buzz Off has the right to disapprove of any such material
for any reasonable cause or reason. If Buzz Off shall give notice of disapproval
of any such material, Licensee shall not use or distribute such Promotional
and
Packaging Material.
(d) The
Licensed Products and all Promotional and Packaging Material shall contain
appropriate legends, markings and/or notices as reasonably required from time
to
time by Buzz Off, to give appropriate notice to the consuming public of Buzz
Off’s right, title and interest thereto. Licensee agrees that each usage of the
Marks shall be followed by either the “®” symbol (if a U.S. federal registration
has issued and is in full force and effect for the subject Licensed Products)
or
the “TM” symbol (if an applicable U.S. federal registration has not issued), as
appropriate, and by the appropriate symbol(s) indicating foreign
registration.
(e) To
assure
that the provisions of the Agreement are being observed, Licensee agrees that
it
will allow Buzz Off or its designees to enter Licensee’s premises, during
regular business hours and upon reasonable notice, for the purpose of inspecting
the Licensed Products and the Promotional and Packaging Material relating to
the
Licensed Products.
(f) In
the
event Buzz Off gives Licensee written notice that the requirements and standards
established by Buzz Off concerning the nature and quality of the Licensed
Products or the use of the Marks and notice requirements hereinabove referred
to
are not met or in the event that said requirements and standards for use of
the
Marks and notice requirements are not maintained throughout the period of
offering for sale, sale, advertising, promotion, shipment and/or distribution
of
any Licensed Products hereunder, then Licensee shall immediately discontinue
any
and all offering for sale, sale, advertising, promotion, shipment and
distribution of the Licensed Products in connection with which said requirements
and standards or trademark usage and notice requirements have not been met,
until such time as all such failures to comply herewith have been cured to
Buzz
Off’s satisfaction.
7
(g) The
license under this Agreement does not include any right to sublicense the Marks
or have any products or product components bearing the Marks made on behalf
of
Licensee by third parties.
(h) Licensee
will notify Buzz Off of any unauthorized use of the Marks by others promptly
as
it comes to Licensee’s attention. Buzz Off shall have the sole right and
discretion to bring infringement or unfair competition proceedings involving
the
Marks and to recover and retain any and all damages and remedies. At Buzz Off’s
request and expense, Licensee shall provide reasonable assistance to Buzz Off
with any such proceedings.
13. Use
of Other Insect Repellent Processes.
During
the Term, Licensee will not market or sell products treated with a process
purporting to provide insect repellency other than the Buzz Off Process or
use
Licensee’s trademarks or trade names, or any derivations thereof on any such
product.
14. Relationship
of the Parties.
Buzz Off
shall act solely as an independent contractor, and nothing herein shall at
any
time be construed to create a relationship of employer and employee,
partnership, principal and agent, or joint venture as between Licensee and
Buzz
Off or Buzz Off’s representatives. Buzz Off and its representatives shall have
no right or authority, and shall not attempt to enter into any contract,
commitment or agreement, or incur any debt or liability of any nature in the
name of or on behalf of the Licensee. Similarly, Licensee and its
representatives shall have no right or authority, and shall not attempt to
enter
into any contract, commitment or agreement, or incur any debt or liability
of
any nature in the name of or on behalf of Buzz Off.
15.
Exclusivity
Agreement. Licensee
is a major producer of folding cots and folding camp chairs and desires to
have
certain exclusive rights to the application to folding cots and folding camp
chairs of the Buzz Off Process. Buzz Off agrees that it will treat folding
cots
and folding camp chairs to be distributed prior to April 15, 2008 exclusively
for, or on behalf of, Licensee.
In
consideration for this exclusive arrangement from Buzz Off, Licensee agrees
to
treat at least 10,000 products. Licensee agrees that it will treat at least
5,000 products prior to April 15, 2008, and that the total minimum commitment
of
10,000 products will be treated by April 15, 2009. These minimum commitment
quantities may consist of folding cots, folding camp chairs, blankets
(non-exclusive item), hammocks, or sleeping bags (non exclusive
item).
Licensee
may represent to Buzz Off in writing on or before March 1, 2008 that Licensee
believes it will provide, and will make a good faith effort to provide, a
minimum of 20,000 product units to Buzz Off for treatment with the Buzz Off
Process during the year ending April 15, 2009, which representations will be
based on reasonable production projections provided simultaneously in writing
to
Buzz Off. If Buzz Off receives such representation and projections on or before
March 1, 2008 that it reasonably believes to be made in good faith, Buzz Off
agrees that the exclusivity period shall continue through April 15, 2009.
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Licensee
may represent to Buzz Off in writing on or before March 1, 2009 that Licensee
believes it will provide, and will make a good faith effort to provide, a
minimum of 40,000 product units to Buzz Off for treatment with the Buzz Off
Process during the year ending April 15, 2010, which representations will be
based on reasonable production projections provided simultaneously in writing
to
Buzz Off. If Buzz Off receives such representation and projections on or before
March 1, 2009 that it reasonably believes to be made in good faith, Buzz Off
agrees that the exclusivity period shall continue through April 15,
2010.
15. Notices.
Except
as otherwise provided herein, any written notices hereunder to be effective
shall be delivered by telex, confirmed fax, email, overnight delivery or
ordinary mail to the address of the other party first above set forth
below:
| If to Licensee: | Charleston Basics, Inc. | |
| Address: | __________________________________________________ | |
| __________________________________________________ | ||
| Attention: | __________________________________________________ | |
| Facsimile: | __________________________________________________ | |
| Email: | ___________________________________________________ | |
| If to Buzz Off: |
Buzz Off Insect Shield, LLC
000
Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
Email:
xxxxxxxxxxxxx@xxxxxxx.xxx
|
16. Entire
Agreement.
The
provisions contained in this Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof, and no statement
or inducement with respect to the subject matter hereof by either party hereto
or by any agent or representative of either party hereto that is not contained
in this Agreement shall be valid or binding between the parties. Any terms
and
conditions or any other provision in any Purchase Order issued by Licensee
or
acknowledgement document used by Buzz Off that may be different or inconsistent
with this Agreement shall be entirely inapplicable, and this Agreement shall
prevail over all such other Purchase Orders, sale acknowledgements, or other
documents which may be used in the implementation or the administration of
this
Agreement.
17. Confidential
Information - Nonuse and Nondisclosures.
(a) As
used
herein, “Confidential Information” means information about either party, in
whatever format, furnished to the other party by or on behalf of the party
furnishing the information, including, but not limited to, information regarding
policies and procedures; concepts; tools; techniques; contracts; business
records; marketing information and plans; demographic information; financial
and
accounting data and projections; pricing data; operations; basic store
inventory; entry into new, geographic and/ or product market(s); location of
new
stores and offices (including proposed locations); lawsuits and/ or claims;
management philosophy; customer lists; rental activity reports; sell-through
activity reports; and confidential information received from third parties
pursuant to a confidential disclosure agreement.
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(b) Confidential
Information does not include information that: (i) was available to the public
prior to the time of disclosure; (ii) becomes available to the public through
no
act or omission of the party asserting that the information is not confidential;
or (iii) was communicated rightfully to such party free of any obligation of
nondisclosure and without restriction as to its use. The party asserting that
the information is not confidential shall bear the burden of demonstration
that
the information falls under one of the exceptions described in this Subsection
18(b).
(c) Each
party agrees, with respect to the Confidential Information of the other party,
to: (i) hold the Confidential Information in confidence and refrain from
disclosing Confidential Information, or transmitting any documents or copies
of
documents containing Confidential Information, to any other party except as
permitted under the terms of this Agreement; (ii) use the Confidential
Information only to assist its performance of this Agreement (including
supplying or purchasing (or discussing with the other party the supply or
purchase of) the Products) and for no other purposes and; (iii) not disclose
any
Confidential Information except to such party’s directors, officers, employees
and representatives (including outside attorneys, accountants and consultants)
(collectively, its “Representatives”), who need such information for the purpose
of performing its obligations under this Agreement (or Representatives who
agree
to be bound by the provisions of this Agreement) and such party shall prevent
any breach of the terms of this Agreement by its Representatives. Each party
shall use at least the standard of care with respect to protecting the
Confidential Information that it accords its own proprietary and confidential
information.
18. Indemnification.
(a) Buzz
Off’s Indemnity.
Buzz Off
agrees to indemnify and hold harmless Licensee, its agents, employees and
officers harmless from and against any Loss (as hereafter defined) resulting
from or arising with respect to any suit, demand or claim (1) by any third
party alleging facts or circumstances which involve any negligent or tortious
act or omission by Buzz Off, (2) arising out of any uncured breach of this
Agreement by Buzz Off, or (3) any claim of infringement related to the
Marks or the Buzz Off Process.
(b) Licensee’s
Indemnity.
Licensee
agrees to indemnify and hold Buzz Off, its agents, employees and officers
harmless from and against any Loss resulting from or arising with respect to
any
suit, demand, claim (1) by any third party alleging facts or circumstances
which involve any negligent or tortious act or omission by Licensee,
(2) arising out of any uncured breach of this Agreement by Licensee, or
(3) arising out of Licensee’s advertising or sales of Licensed Products,
including any claim of infringement related to the use of trademarks or
tradenames other than the Marks used by Licensee in connection with such
advertising or sales.
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(c) Notice
of Claims.
If an
indemnified party reasonably believes that it may incur a Loss covered by the
foregoing indemnification provisions, it shall deliver written notice to the
indemnifying party of the facts which are the basis of an indemnification claim
hereunder and setting forth an estimated amount of any potential Loss, if
possible, and the sections of this Agreement upon which the claim for
indemnification for such Loss is based (a “Claim Notice”). If an indemnified
party receives notice of a third-party claim for which it intends to seek
indemnification hereunder, it shall give the indemnifying party prompt written
notice of such claim, so that the indemnifying party’s defense of such claim
under Section 19(d) hereunder may be timely instituted.
(d) Defense
of Third Party Claims.
The
indemnifying party under this Section 19 shall have the right to conduct and
control, through counsel of its own choosing, which counsel shall be reasonably
acceptable to the indemnified party, any third-party claim, action or suit,
but
the indemnified party may, at its election, participate in the defense of any
such claim, action or suit at its sole cost and expense. Except with the prior
written consent of the indemnified party, no indemnifying party, in the defense
of such claim or litigation, shall consent to entry of any judgment or order,
interim or otherwise, or enter into any settlement that provides for injunctive
or other nonmonetary relief affecting the indemnified party or that does not
include as an unconditional term thereof the giving by each claimant or
plaintiff to such indemnified party of a release from all liability with respect
to such claim or litigation. In the event that the indemnifying party does
not
accept the defense of any matter as above provided, then, without waiving its
right to be indemnified pursuant to this Section 19, the indemnified party
shall
have the full right to defend against any such claim or demand and shall be
entitled to settle or agree to pay in full such claim or demand. In any event,
the indemnifying party and the indemnified party shall cooperate in the defense
of any claim or litigation subject to this Section 19 and the records of each
shall be available to the other with respect to such defense.
(e) Loss.
References herein to “Loss” or “Losses” shall mean any and all damages, claims,
losses, expenses, costs, obligations and liabilities, including, without
limitation, liabilities for reasonable attorneys’ fees (except as otherwise
provided in Section 20(d)) and related expenses incurred by the party incurring
the Loss or Losses, excluding, however, loss of profits and prospective
damages.
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19. Arbitration.
Any
dispute or controversy arising between the parties to this Agreement involving
the interpretation or application of any provision of this Agreement, or arising
out of this Agreement, shall be submitted to arbitration at Greensboro, North
Carolina, pursuant to the Commercial Rules (the “Rules”) of the American
Arbitration Association (“AAA”) by an arbitrator mutually agreed upon by the
parties. Such arbitrator shall be selected by the parties hereto no later than
ten (10) days after AAA notifies each party that a demand for arbitration has
been filed (“Arbitrator Designation Period”). In the event Buzz Off and Licensee
are unable to agree on an arbitrator within the Arbitrator Designation Period,
AAA shall appoint a neutral arbitrator in accordance with the Rules no later
than ten (10) days following the expiration of the Arbitrator Designation
Period. The designated arbitrator shall not be an agent, employee, shareholder
or affiliate of Buzz Off or Licensee. The arbitrator may, in his or her
discretion, award to the prevailing party its costs of the proceeding, including
attorneys’ fees and expenses. The decision of the arbitrator shall be final and
binding on the parties, and judgment upon the decision may be entered in the
state courts or federal courts having jurisdiction over Guilford County, North
Carolina.
20. Termination.
Buzz Off
shall have the right to terminate this Agreement (a) following the Initial
Term, upon one hundred eighty (180) days’ prior written notice to Licensee
without any cause or reason, (b) immediately in the event of the filing of
proceedings by or against Licensee under applicable bankruptcy laws or any
affirmative act of insolvency by Licensee, or upon the appointment of any
receiver or trustee to take possession of the properties of Licensee or upon
the
dissolution and winding-up, sale, consolidation, merger, or any sequestration
by
governmental authority of Licensee, or (c) upon breach of any of the
provisions hereof by Licensee that shall remain uncured after a cure period
of
thirty (30) days after such breach is communicated to Licensee in writing.
Following the Initial Term, upon one hundred eighty (180) days’ prior written
notice to Buzz Off, Licensee may terminate this Agreement without any cause
or
reason. Upon termination of this Agreement for any reason, Licensee shall be
entitled to dispose of any stocks of the Licensed Products in Licensee’s
possession or already confirmed for treatment by Buzz Off using the Buzz Off
Process (the “Ordered Products”) for a period of one hundred eighty (180) days
from the later of the date of the notice of termination under this Section
21 or
the date of receipt by Licensee of the Ordered Products; provided, however,
that
Licensee will provide Buzz Off with a statement showing the number and
description of the items of the Licensed Products it has on hand at the date
of
termination and provided further that it will continue to comply in all respects
with the terms of this Agreement.
21. General.
(a) Applicable
Law.
This
Agreement shall be interpreted according to the laws of the State of North
Carolina, without giving effect to its choice of law rules.
(b) Remedies.
The
rights and remedies of the parties provided in this Agreement shall be
exclusive.
(c) Headings.
The
section headings contained in this Agreement are for reference purposes only
and
shall not affect in any way the meaning or interpretation of this
Agreement.
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(d) Waiver.
Licensee’s or Buzz Off’s waiver of any term or condition of this Agreement must
be in writing and shall not be construed to be a waiver of any other term or
condition hereof. Licensee’s or Buzz Off’s waiver of any term or condition of
the Agreement shall not be deemed a waiver of subsequent breach of the same
term
or condition of this Agreement.
(e) Amendments.
No
provision of this Agreement may be modified, waived or amended except by a
written instrument duly executed by each of the parties hereto. Any such
modifications, waivers or amendments shall not require additional consideration
to be effective.
(f) Assignment.
This
Agreement, and the rights and obligations of Licensee hereunder, may not be
assigned or delegated by Licensee without Buzz Off’s prior written consent, to
be given or withheld in Buzz Off’s sole discretion. Buzz Off shall be free to
transfer or assign all or any part of this Agreement at any time.
(g) Survival
of Rights.
Notwithstanding anything to the contrary contained herein, such obligations
which remain executory after expiration of the Term of this Agreement shall
remain in full force and effect until discharged by performance, and such rights
as pertain thereto shall remain in force until their expiration.
(h) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
(i) Severability.
In case
any provision in or obligation under this Agreement shall be invalid, illegal
or
unenforceable in any jurisdiction, the validity, legality and enforceability
of
the remaining provisions or obligations, or of such provision or obligation
in
any other jurisdiction, shall not in any way be affected or
impaired.
(j) Survival
of Provisions.
The
rights, obligations, limitations, and remedies contained in Sections 10, 14,
18,
19, 20 and 22 of this Agreement shall survive any modification, amendment,
suspension or termination of this Agreement to the maximum extent permitted
by
law.
SIGNATURE
PAGE FOLLOWS
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IN
WITNESS WHEREOF, by their execution below, the parties hereto have agreed to
all
of the terms and conditions of this Agreement.
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BUZZ
OFF:
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Buzz
Off Insect Shield, LLC
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| By: | ||
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Xxxxxx
X. Xxxxxxx,
Chief
Executive Officer
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LICENSEE:
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| Charleston Basics, Inc. | ||
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| By: | ||
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| Name: | ||
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|
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| Title: | ||
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14
Exhibit
A
Marks
of Licensor
Buzz
Off,
Insect Shield, Insect Repellent Gear and any combination thereof.
Exhibit
B
Distribution
Area
The
District of Columbia, Puerto Rico and all states of the United States.
