EXHIBIT 10.33
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "AGREEMENT"), is entered into this 1st
day of February, 2007, by and between Xxxxxxx Xxxx Sourcing, LLC, a California
limited liability company, with its offices located at 000 Xxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxxx, XX 00000 (the "COMPANY"), and Akari Enterprises, LLC, a
California Limited Liability Company, with its offices located at 00000 Xxxxx
Xxxxx Xxxxx, Xxxxxxx, XX 00000 ("CONSULTANT").
In consideration of the mutual covenants and agreements set forth in
this Agreement, the parties agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
following meanings:
1.1 "AUTHORIZED REPRESENTATIVES" means those persons
identified by the Company in writing from time to time as its
Authorized Representatives. The Company's initial Authorized
Representatives are Xxxxxx Xxxx, Xxxxxx Xxxxxx and Xxx Xxxxxxx.
1.2 "CONTRACT YEAR" means the period from the date hereof to
December 31, 2007, and each 12 month period thereafter.
1.3 "DISTRIBUTION AGREEMENT" means an agreement to be entered
into by and between the Company and a Qualified Distributor pertaining
to the marketing, sale and distribution of Products by such Qualified
Distributor to high end department stores and boutiques in a specified
territory.
1.4 "EXISTING DISTRIBUTOR" means the third party distributors
of Products set forth on SCHEDULE A with whom the Company has entered
into a Distribution Agreement prior to the date hereof.
1.5 "NEW DISTRIBUTOR" means a third party distributor with
whom the Company has not entered into a Distribution Agreement prior to
the date hereof.
1.6 "PRODUCTS" means denim, knits, wovens, and other casual
apparel marketed by the Company under the brand name "Xxxxxxx Xxxx",
and such other brands as the Company may designate in writing from time
to time.
1.7 "PURCHASE ORDER" means an order or orders to purchase
Products, whether pursuant to a Distribution Agreement, or otherwise.
1.8 "QUALIFIED DISTRIBUTOR" means an (i) Existing Distributor
or (ii) a New Distributor.
1.9 "TERRITORY" means the world, excluding the United States
of America.
2. EXCLUSIVE REPRESENTATION.
2.1 APPOINTMENT. On the terms and subject to the conditions
set forth in this Agreement, the Company hereby appoints Consultant,
and Consultant hereby accepts the Company's appointment as the
Company's exclusive representative to solicit Qualified Distributors
during the Term and in the Territory to enter into Distribution
Agreements with the Company.
2.2 EXCLUSIVE TO COMPANY. Consultant shall exclusively
represent the Company and its Products during the Term and in the
Territory, and shall not market, sell, offer to sell or otherwise
promote for any third party, high end denim-based apparel and other
high end casual apparel products and shall not solicit distributors to
sell such products for third parties; provided, however, that,
notwithstanding the foregoing, Consultant shall be entitled to continue
to market and sell products under the brand names set forth on SCHEDULE
B hereto. If Consultant desires to represent another company in the
promotion of a denim based brand, Consultant will need the prior
written approval of Company, which approval may be withheld in the
Company's sole discretion. Notwithstanding the foregoing, with respect
to the companies whose brands are set forth on SCHEDULE B hereto,
Consultant may promote another denim brand that is owned or licensed by
such companies, so long as Consultant continues to satisfy all of its
obligations and duties hereunder, including its obligations set forth
in Section 6.1.1 hereto.
3. DISTRIBUTOR SOLICITATION. On the terms and subject to the conditions
set forth in this Agreement, during the Term and in the Territory, Consultant
will solicit Qualified Distributors on a best efforts basis through Consultants'
personal solicitation, for the entry into Distribution Agreements with the
Company. Consultant will also make reasonable efforts to solicit customers in
smaller countries to directly buy Products from the Company.
4. NEGOTIATION OF DISTRIBUTION AGREEMENTS.
4.1 CONTRACT TERMS. Immediately upon the expression by a
Qualified Distributor of interest in entering into a Distribution
Agreement, Consultant shall advise the Company by telephone, mail or in
person of the same and the proposed terms of the Distribution
Agreement, if any. The Company shall have the sole authority to
determine the scope, quantity, price, delivery requirements and other
terms of the Distribution Agreement and Consultant shall make no
commitments with respect thereto. Upon acceptance by the Company of the
proposed terms of the Distribution Agreement, Consultant shall conduct
negotiations with Qualified Distributor for purposes of entering into a
Distribution Agreement. Notwithstanding the foregoing, the Company
shall have the absolute right to refuse to enter into any Distribution
Agreement with a Qualified Distributor for any reason.
4.2 INVOICES. Unless otherwise agreed to in writing by the
Company, the Company shall render all invoices directly to Qualified
Distributors and Qualified Distributors shall be directed to submit all
payments to the Company or its designee. The Company shall have the
sole and absolute control with respect to collections from Qualified
Distributors, including the right, without the prior consent of
Consultant, to make or effect allowances, adjustments or settlements
with respect to any accounts receivable from a Qualified Distributor.
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Consultant shall forward promptly to the Company any and all amounts
that Consultant may collect or receive from any Qualified Distributor.
4.3 CHANGE IN PRODUCT OFFERINGS. The Company shall have the
right, in its sole discretion, at any time or from time to time to
modify its sales of Products, or to stop selling Products.
5. PROMOTION.
5.1 PROMOTION BY COMPANY. The Company shall determine, in its
sole and absolute discretion, whether, and to what extent, it shall
promote, advertise, market and sell the Products in the Territory and
nothing contained herein shall obligate the Company to do so.
5.2 PROMOTION BY CONSULTANT. Subject to their availability and
the requirements of the Company, the Company shall supply Consultant,
at no cost, with such reasonable quantities of literature, printed
advertisements and other promotional materials concerning the Products
that the Consultant from time to time reasonably requests; PROVIDED,
HOWEVER, nothing contained herein shall obligate the Company to prepare
or print any such product literature, printed advertisements or other
promotional literature. All such materials shall be provided in
English. In addition, the Company shall provide Consultant with such
Product educational assistance as the Company may, in its sole and
absolute discretion, determine to be appropriate to assist Consultant
in soliciting Qualified Distributors for the entry into Distribution
Agreements with the Company.
6. CONSULTANT DUTIES.
6.1 AFFIRMATIVE COVENANTS. Consultant covenants and agrees
that, at all times during the Term of this Agreement it shall:
6.1.1 devote at least one-third of Xxxxxxx Xxxx'x
business time (at least 50 hours per month), to solicit
Qualified Distributors during the Term and in the Territory to
enter into Distribution Agreements with the Company, and
otherwise to the performance of Consultant's duties hereunder;
6.1.2 introduce Authorized Representatives of the
Company to employees of Qualified Distributors who have the
corporate authority to negotiate Distribution Agreements with
the Company;
6.1.3 conduct all of its business in its own name
and, subject to the terms and conditions of this Agreement, in
such manner as it may see fit;
6.1.4 supply the Company at a minimum of once a month
with marketing data reasonably requested by the Company
relating to the marketing, distribution and sale of the
Products to Qualified Distributors, including, without
limitation, the name and address of all Qualified Distributors
that Consultant has contacted, the dates and results of such
contacts, and a status report detailing progress made with
Qualified Distributors;
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6.1.5 perform all of its obligations under this
Agreement in a manner consistent with all applicable laws and
regulations and with the principles of good conduct and
business ethics, in order to protect and enhance the name of
the Company, the reputation of the Products, and the goodwill
attached to the tradename and any trademarks in use or
hereafter adopted or used by the Company;
6.1.6 observe and comply in all material respects
with all laws and regulations of all governmental authorities
with jurisdiction over the marketing, distribution or sale of
the Products;
6.1.7 abide by the Company's policies of which it has
been made aware in writing and communicate the same to
Qualified Distributors;
6.1.8 assist the Company in establishing and
maintaining a good business relationship with Qualified
Distributors, including assisting the Company in negotiating
Distribution Agreements with Qualified Distributors; and
6.1.9 promptly advise the Company of (i) any changes
in status, organization personnel and similar matters with
respect to Consultant, and (ii) any complaints or claims
brought or threatened against Consultant with respect to the
sale of the Products to Qualified Distributors or with respect
to any alleged defect in any Products.
Consultant shall perform its obligations to the Company in a manner and
during such hours as determined by Consultant in its reasonable discretion;
provided that at all times Consultant performs such obligations in a manner
consistent with the terms of this Agreement.
6.2 NEGATIVE COVENANTS. Consultant covenants and agrees that,
at all times during the Term, it shall not, without the prior written
consent of the Company:
6.2.1 make or give any representations, warranties,
guarantees or assurances to any Qualified Distributor or other
third party respecting the quality, efficacy, safety,
merchantability or fitness for any particular purpose of the
Products;
6.2.2 use any promotional or advertising materials in
connection with the exercise of its rights hereunder or
otherwise unless and until such materials have received the
Company's prior written approval;
6.2.3 use the Company's trade names or trademarks
except as provided herein; or
6.2.4 present to Qualified Distributors an
opportunity to obtain any Products as part of a package,
bundle or concurrent purchase with any product or service
provided by any person other than the Company without the
prior written consent of the Company.
6.3 CUSTOMER RELATIONSHIP RESPONSIBILITIES. If and when
requested by the Company, Consultant agrees to assist Company to hire a
qualified person or persons to manage the Company's customer
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relationship functions in accordance with procedures established by the
Company from time to time and communicated to Consultant, including:
6.3.1 entering orders for Products made by Qualified
Distributors into the Company's ERP system;
6.3.2 handling and processing Product return
authorizations;
6.3.3 handling support for Qualified Distributors,
including liaising with Qualified Distributors concerning the
status of placed Product orders;
6.3.4 preparing weekly sell-through reports, and
reports of monthly, quarterly and annual projections by
Qualified Distributor;
6.3.5 attending Company planning meetings relating to
the marketing, sale and distribution of Products in the
Territory;
6.3.6 attending tradeshows at which the Products are
represented; and
6.3.7 providing the Company with information
concerning apparel trends affecting the Products.
7. COMMISSIONS.
7.1 ADVANCE. In consideration of the timely, full and complete
performance by Consultant of its obligations under this Agreement, and
subject to the provisions of this Agreement, the Company shall pay to
Consultant a non-refundable monthly advance recoupable against
Commissions (the "MONTHLY ADVANCE") of five thousand dollars ($5,000),
payable on the first (1st) day (or if such day is not a business day,
then the next business day) of each month during the Term of the
Agreement, with the first such payment due March 1, 2007; provided,
however, that the unrecouped portion of the total aggregate Monthly
Advances hereunder shall not exceed $10,000 at any time. The Monthly
Advance shall be recoupable, on a dollar for dollar basis, against
Commissions earned as provided below, and no Commissions shall be paid
to Consultant at any time while the Monthly Advance has not been
recouped in full.
7.2 COMMISSIONS. Subject to full recoupment of the aggregate
amount of all Monthly Advances paid to Consultant, during the Term of
the Agreement, the Company shall pay Consultant a commission (the
"COMMISSION") in an amount equal to the sum of:
a) With respect to the first $10,000,000 of Net International
Sales during any Contract Year which are collected by the
Company, (i) five percent (5%) of Net Sales with respect to
all Purchase Orders placed by (A) New Distributors in the
Territory and (B) retail customers in the Territory who buy
Products directly from the Company and (ii) four percent (4%)
of Net Sales with respect to all Purchase Orders placed by
Existing Distributors; and
b) With respect to all Net International Sales in excess of
$10,000,000 during any Contract Year which are collected by
the Company, three percent (3%) of Net Sales with respect to
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all Purchase Orders placed by Qualified Distributors in the
Territory and retail customer in the Territory who buy
Products directly from the Company.
As an example, if Net International Sales in the Territory for
a Contract Year are $18,000,000, and $1,000,000 of the first $10,000,000 of such
Net International Sales are to Existing Distributors, $4,000,000 of the first
$10,000,000 of such Net International Sales are to "Existing Distributors" as
defined in the Versatile Agreement (defined below), and the remaining $5,000,000
of the first $10,000,000 of such Net International Sales are to New Distributors
of Product, Consultant shall be entitled to receive a Commission of $690,000
($5,000,000 * 5% + $1,000,000 * 4% + $4,000,000 * 4% + $8,000,000 * 3%). The
Company shall pay Commissions to Consultant on the fifteenth (15th) day (or if
such day is not a business day, then the next business day) of the month
following the end of the calendar month during which payment for such Net Sales
is received by the Company.
7.3 DEFINITIONS. For the purposes of computing and determining
the Commission:
7.3.1 "NET SALES" of any Purchase Order shall mean
the total of all charges invoiced by Company for sales of
Products, LESS trade discounts, returns and other customary
allowances. No commission is due on freight, insurance and
other transport related expenses.
7.3.2 "NET INTERNATIONAL SALES" means the aggregate
of Net Sales as defined herein and "Net Sales" as defined in
that certain Consulting Agreement dated as of the date hereof
by and among Consultant and Versatile Entertainment, Inc., a
California corporation (the "VERSATILE AGREEMENT").
7.4 CREDITS. With respect to any Purchase Order for which
Consultant has received a Commission hereunder, if the Company
subsequently refunds or grants a customer a credit for all or any part
of the Net Sales with respect to such Purchase Order following receipt
by Consultant of the Commission with respect thereto, regardless of the
reason therefor, Consultant shall within 10 days following receipt from
the Company of notice of such refund or credit reimburse the Company
for all amounts received by Consultant as Commissions with respect to
the amount so refunded or credited; and upon failure of Consultant to
make such reimbursement, the Company shall have the right, in addition
to any other rights which it may have at law or under this Agreement,
to offset an amount equal to such reimbursement from the next payments
due Consultant hereunder.
7.5 EFFECT OF TERMINATION. If Consultant's appointment as a
representative of the Company shall terminate for any reason whatsoever
(including the expiration of this Agreement) Consultant shall be
entitled to receive (a) the aggregate amount of Commissions (determined
in accordance with SECTION 7.2 above) with respect to sales made by the
Company in the Territory pursuant to Purchase Orders placed by
Qualified Distributors and customers prior to such termination and (b)
so long as Consultant is not terminated pursuant to Section 10.2 or
Section 10.4 hereof (in which case Consultant shall not be eligible to
receive the payments set forth in this Section 7.4(b)), for a period of
six (6) months after the date of such termination, the aggregate amount
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of Commissions (determined in accordance with SECTION 7.2 above) with
respect to sales made by the Company in the Territory pursuant to
Purchase Orders placed by Qualified Distributors and customers existing
at the time of termination, which amounts shall be paid as provided in
SECTION 7.2 above; PROVIDED that the Company shall have the full right
to offset against any Commissions due any and all sums then due and
owing to the Company from Consultant.
7.6 REPORTING. The Company shall provide Consultant with a
monthly report accounting for the Purchase Orders for which a
Commission is due and the amount of the Commission (including a
calculation of Net Sales). The monthly report shall accompany each
Commission payment.
7.7 INSPECTION RIGHTS. Consultant shall have the right no more
than once every calendar year, continuing until one (1) year after the
end of the Term, to examine or have its independent auditors examine
the Company's books, records and accounts that are relevant to the
determination of amounts due Consultant hereunder. Each examination
will be conducted at the Company's place of business during the
Company's normal business hours with at least fifteen (15) business
days' prior written notice to the Company. Consultant shall pay the
fees and expenses for the examination, including those of any auditor;
except that, if any examination discloses an underpayment to Consultant
of 10% or more in accounting for the period being examined, then the
Company shall, in addition to paying the underpaid amount, pay the
reasonable fees and expenses of Consultant, including any auditor, for
that examination, up to an amount equal to the amount of the
underpayment.
8. CONSULTANT'S EXPENSES. Except as provided in SECTION 5.2, Consultant
shall be responsible for all regular business expenses of Consultant and its
employees and agents. Travel and entertainment expenses specifically incurred by
Consultant at the request of the Company will be reimbursed by Company.
Consultant may also be reimbursed by Company for entertainment and travel
expenses not incurred by Consultant at the request of the Company, so long as
such expenses are pre-approved by the Company, which approval may be withheld by
the Company in its sole discretion.
9. CERTAIN DISCLAIMERS AND LIMITATIONS ON LIABILITIES. Nothing
contained in this Agreement shall constitute any representation or warranty by
the Company, including, without limitation, any representation or warranty
respecting the quality, efficacy, safety, merchantability or fitness for any
particular purpose of the Products. In no event shall the Company be liable for
incidental, consequential, indirect, special or punitive damages or for loss of
revenue, loss of business, or other financial loss arising out of or in
connection with the marketing, distribution or sale of the Products, or the
solicitation of Qualified Distributors in the Territory for entry into
Distribution Agreements with the Company.
10. TERM AND TERMINATION.
10.1 TERM. The term (the "TERM") of the appointment granted
herein shall commence on February 1, 2007 (the "EFFECTIVE DATE") and
continue until December 31, 2009, unless earlier terminated as provided
herein. The Term may be extended for one or more additional periods
only upon the written agreement of the Company and Consultant.
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10.2 TERMINATION FOR NON-PERFORMANCE. Company may terminate
this Agreement without liability upon thirty (30) days prior written
notice to Consultant in the event that (i) Company does not enter into
four Distribution Agreements with Qualified Distributors as a result of
Consultant's efforts hereunder in the first Contract Year, (ii) Company
does not enter into two Distribution Agreements with Qualified
Distributors as a result of Consultant's efforts hereunder in the
second Contract Year and (iii) at any time thereafter, Consultant is
not using its best efforts to present to the Company Qualified
Customers with whom the Company may enter into Distribution Agreements
with.
10.3 AUTOMATIC TERMINATION. This Agreement terminates
automatically on the occurrence of any of the following events: (i) the
bankruptcy, insolvency, liquidation or dissolution of the Company or
Consultant; or (ii) the death or disability (continuing for more than
60 days) of Xxxxxxx Xxxx.
10.4 TERMINATION FOR BREACH. Either party may terminate this
Agreement immediately if the other party fails to perform or comply
with one or more of its material obligations under this Agreement and
fails to rectify that breach within twenty (20) days of written notice
thereof.
10.5 TERMINATION BY VERSATILE ENTERTAINMENT, INC. Company may
terminate this Agreement if the Company's affiliate, Versatile
Entertainment, Inc., terminates its Consulting Agreement with
Consultant, entered into on even date herewith.
10.6 CONSEQUENCES OF EXPIRATION OR TERMINATION. Upon
termination of this Agreement:
10.6.1 ADVERTISING AND PROMOTION. Consultant shall
immediately upon termination of this Agreement cease to engage
in advertising or promotional activities concerning the
Products; cease using the Company's Trademarks, and cease to
represent, in any manner, that Consultant has been designated
by the Company to offer or sell the Products or solicit
Qualified Distributors for the entry into Distribution
Agreements.
10.6.2 CLAIMS FOR INDEMNITY. NEITHER PARTY SHALL, IN
CONNECTION WITH THE TERMINATION OF THIS AGREEMENT, HAVE THE
RIGHT TO CLAIM ANY INDEMNITY, REIMBURSEMENT, OR COMPENSATION
FOR ALLEGED LOSS OF CLIENTELE, GOODWILL, LOSS OF PROFITS ON
ANTICIPATED SALES OR THE LIKE OR HAVE ANY OTHER RIGHT TO
COMPENSATION FOR LOSSES OR DAMAGES RESULTING FROM THE
TERMINATION, EACH PARTY ACKNOWLEDGING THAT IT HAS DECIDED AND
WILL DECIDE ON ALL INVESTMENTS, EXPENDITURES, AND COMMITMENTS
IN FULL AWARENESS OF THE POSSIBILITY OF ITS LOSSES OR DAMAGES
RESULTING FROM SUCH TERMINATION AND IS WILLING TO BEAR THE
RISK THEREOF. FOR THE SAKE OF CLARITY, NOTHING IN THIS SECTION
SHALL IMPACT THE COMPANY'S OBLIGATIONS PURSUANT TO SECTION
7.4(b) HEREOF.
10.6.3 SURVIVING TERMS. Covenants set forth in this
Agreement designated to survive its term, shall survive
termination of this Agreement.
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11. CONFIDENTIALITY.
11.1 CONFIDENTIAL MATERIAL. Consultant acknowledges that the
Company's trade secrets, including, without limitation, price lists,
pricing information, customer lists, customer names and contacts, trade
knowledge, financial information, financial projections, unprinted and
printed data, and other tangible or intangible property and all
inventions, including, without limitation, any and all processes,
innovations, ideas, designs, developments, methods, and other
discoveries or developments whether or not patentable, all know-how,
modifications or improvements to any of the foregoing, and all related
tangible or intangible property, constitute confidential material (the
"CONFIDENTIAL MATERIAL") which (i) are valuable, confidential,
proprietary and unique information and trade secrets of the Company,
and (ii) are and shall remain the sole and exclusive property of the
Company. Consultant further acknowledges that the Company shall have,
in addition to other remedies available at law, the right to enjoin the
use of the Confidential Material in any manner conflicting with this
Agreement or in derogation of the Company's proprietary rights, and
that other remedies are inadequate to protect the Company's rights in
the Confidential Material.
11.2 NON DISCLOSURE. Other than in connection with the
performance of its obligations under this Agreement, or to the extent
required by law or judicial process, Consultant shall not use for its
own benefit, nor disclose to any third party, any Confidential
Material. Consultant shall inform its employees and agents who may come
into contact with the Confidential Material that it is confidential in
nature, and Consultant shall take reasonable precautions to prevent the
unauthorized exploitation, transfer, or disclosure by such employees
and agents. If Consultant is requested by oral questions,
interrogatories, requests for information or documents, subpoena, civil
or criminal investigative demand or similar process to disclose any
Confidential Material, Consultant will, if legally permissible, provide
the Company with immediate notice of such request so that the Company
may consider seeking a protective order in respect thereof. Consultant
agrees to cooperate with the Company in connection with any action
undertaken by the Company to protect any unauthorized disclosure or use
of any Confidential Material.
12. ARBITRATION.
12.1 PROCEDURES. Except as otherwise expressly provided in
SECTION 12.3 below, all disputes arising in connection with this
Agreement or any contract of sale hereunder shall be finally settled by
arbitration in Los Angeles, California, in accordance with the rules
set forth in the California Code of Civil Procedure, Section 1280 ET
SEQ. (the "RULES OF ARBITRATION") and the provisions of Section 1283.05
of the Rules of Arbitration are expressly incorporated herein. Judgment
on the award rendered by the arbitration panel (the "ARBITRATION
PANEL") may be entered in any court of competent jurisdiction.
Any party that desires to initiate arbitration proceedings may
do so by delivering written notice to the other party (the "ARBITRATION
NOTICE") specifying (x) the nature of the dispute or controversy to be
arbitrated; (y) the name and address of the arbitrator appointed by the
party initiating such arbitration; and (z) such other matters as may be
required by the Rules of Arbitration. The party who receives an
Arbitration Notice shall appoint an arbitrator and notify the
initiating party of such arbitrator's name and address within 30 days
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after delivery of the Arbitration Notice; otherwise, a second
arbitrator shall be appointed at the request of the party who delivered
the Arbitration Notice. The two arbitrators so appointed shall appoint
a third arbitrator who shall be chairman of the Arbitration Panel and
the "neutral arbitrator" for purposes of the Rules of Arbitration.
12.2 FINAL DECISIONS. All decisions of the Arbitration Panel
shall be final, conclusive and binding on all parties and shall not be
subject to judicial review.
12.3 INJUNCTIVE OR EQUITABLE RELIEF. Notwithstanding anything
to the contrary contained in this SECTION 12, any claim by the Company
for injunctive or other equitable relief, including specific
performance, may be brought in any court of competent jurisdiction, and
any judgment, order or decree relating thereto shall have precedence
over any arbitral award or proceeding.
13. TRADEMARKS AND TRADENAMES.
13.1 TRADEMARKS. The Company hereby grants to Consultant the
nonexclusive right to use within the Territory the tradenames "Xxxxxxx
Xxxx", and all other trademarks, tradenames and logos that the Company
may designate in writing from time to time (the "TRADEMARKS") solely in
connection with the marketing and promotion of the Products during the
Term of this Agreement and in connection with the solicitation of
Qualified Distributors for the entry into Distribution Agreements with
the Company. Consultant shall not have the right to use the Trademarks,
or any of them, as the name of its business, or as a name under which
it does business. The Company may at any time, in its sole and absolute
discretion, revoke this nonexclusive right to use the Trademarks.
13.2 DISPLAY. Consultant shall attach, use and display the
Trademarks on all promotional and advertising materials to be used in
connection with the marketing and sale of the Products, and in
connection with the solicitation of Qualified Distributors for the
entry into Distribution Agreements with the Company. Consultant shall
furnish the Company with copies of all of its promotional and
advertising materials that make use of the Trademarks, and, if
reasonably requested by the Company, Consultant shall make alterations,
additions and modifications to such materials.
13.3 OTHER USES PROHIBITED. Without the prior written consent
of the Company, Consultant shall not use or display any trademarks,
tradenames or service marks except the Trademarks in connection with
the marketing and sale of the Products, and in connection with the
solicitation of Qualified Distributors for the entry into Distribution
Agreements with the Company.
14. MISCELLANEOUS.
14.1 INDEPENDENT CONTRACTOR. It is the intention of the
Company and Consultant that the Company and Consultant are, and shall
be deemed to be, independent contractors with respect to the subject
matter of this Agreement, and nothing contained herein shall be deemed
or construed in any manner whatsoever as creating any partnership,
joint venture, employment or other similar relationship between the
Company and Consultant.
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14.2 ASSIGNMENT. Consultant may not transfer the rights or
delegate the duties provided for under the terms of this Agreement
without the prior written consent of the Company, which consent the
Company may withhold in the exercise of its sole and absolute
discretion. All terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective transferees, successors and assigns.
14.3 NOTICES. All notices, requests, consents and other
communications that are required or permitted hereunder shall be in
writing and shall be delivered personally, sent by telecopier or
facsimile transmission and confirmed by mailing a confirmation copy
registered or certified air mail, postage prepaid or mailed by
certified or registered mail, postage prepaid, return-receipt requested
(in which case it shall be deemed given two business days after
mailing) to the addresses listed in the introductory paragraph of this
Agreement. Such address may be changed from time to time by either
party by providing written notice to the other in the manner set forth
in this SECTION 14.3.
14.4 GOVERNING LAW. This Agreement shall be interpreted and
its effects shall be determined in accordance with the laws of the
State of California, without regard to the conflicts of laws and
principles thereof.
14.5 SEVERABILITY. If any provision of this Agreement is held
to be invalid, illegal or unenforceable for any reason or in any
respect whatsoever, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
14.6 WAIVER. The waiver by any party hereto of any breach or
default shall not constitute a waiver of any different or subsequent
breach or default. No waiver to this Agreement shall be effective
unless stated in writing and signed by authorized representatives of
all parties.
14.7 ENTIRE AGREEMENT. This Agreement, when signed by the
authorized representatives of all parties hereto, shall constitute the
only agreement among them with respect to the subject matter hereof and
shall supersede all prior agreements, oral or written. This Agreement
may be amended only by a writing singed by all parties hereto.
14.8 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.
14.9 TAXES. Consultant shall bear the expense of any tax which
may be payable by Consultant in respect of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of the date first above written.
COMPANY:
XXXXXXX XXXX SOURCING, LLC
a California limited liability company
By: /s/ Xxxxxx Xxxx
----------------------------
Xxxxxx Xxxx
Its: Manager
CONSULTANT
Akari Enterprises, LLC
a California Limited Liability Company
By: /s/ Xxxxxxx Xxxx
----------------------------
Xxxxxxx Xxxx
Its: President
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