AGREEMENT
This Agreement is between XXX INTERNATIONAL MANUFACTURING, INC. ("XXX")
and XXXXXXXXXXXX.XXX ("Retailer").
XXX is a manufacturer and wholesale distributor of jewelry items (the
"Products"). XXX employs various means of marketing and distributing the
products, including, without limitation, compiling and producing a catalog which
is updated from time-to-time. The catalogs and all supplements thereto are
copyrighted materials and have been and will continue to be developed and
updated at great expense to XXX (collectively, the "Catalog").
Retailer has purchased and will continue to purchase Products from
time-to-time from XXX. Retailer has also requested that KlM make the Catalog
available to Retailer for display solely on Retailer's internet website to
promote the sale of the Products by Retailer.
KlM is willing to grant Retailer a non-exclusive limited right to
display the Catalog on Retailer's internet website subject to the terms and
conditions of this Agreement.
Based upon the foregoing recitals, the mutual covenants and
undertakings set forth below and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Grant. XXX hereby grants Retailer a limited, non-exclusive license
(the "License") solely for the purpose of displaying the Catalog on Retailer's
internet website and provided Retailer is not in default under this Agreement or
any other agreement, written or oral, with KlM. As a condition precedent to this
Agreement, Retailer agrees to prominently and conspicuously xxxx and identify
ail displays or depictions of the Catalog as being copyrighted materials owned
solely by, XXX in such form and content as may be approved by XXX. Retailer
expressly acknowledges that XXX is the sole owner of the Catalog and all related
rights thereto and XXX xxx grant similar rights to display or otherwise use the
Catalog or any portion thereof to other persons or entities at such times and
upon such terms as XXX xxx decide in its sole and absolute discretion. KIM's
right to grant such rights to third parties is in addition to KIM's unlimited
rights to use the Catalog for its own purposes in any manner whatsoever.
2. Efforts. As a material inducement to XXX to enter into this
Agreement, Retailer agrees to use its best efforts to actively market and
promote sales of the Products in a manner consistent with the first-class image
of XXX and the Products.
3. Limited Rights. Except as expressly provided herein, Retailer shall
have no right whatsoever to use the Catalog or any portion thereof in any other
manner, including, without limitation, copying, making extracts, permitting
others to download or otherwise duplicate all or arty portion of the Catalog.
Retailer acknowledges that KlM has invested years of effort and substantial sums
of money to produce, develop and continually refine all aspects of the Catalog
and the Catalog is critical to KIM's ability to sell Products and in maintaining
the first class image of KlM and the Products.
4. No Royalties. Retailer shall not be obligated to pay KlM any
royalties for displaying the Catalog on Retailer's internet website during the
term of this Agreement.
5. No Ownership or Other Rights. Retailer hereby acknowledges the
proprietary nature of the Catalog and its contents and that Retailer has no
right, title or interest to the Catalog and all use of the Catalog shall inure
to the benefit of KlM. Retailer shall have no right whatsoever to change, alter
or modify any part of the Catalog whether on Retailer's internet website or
otherwise.
6. Term. This Agreement may be terminated by either party upon five
days' prior notice. Notwithstanding the preceding sentence, this Agreement and
ail of Retailer's rights hereunder shall immediately and automatically terminate
upon Retailer's breach of any term or provision of this Agreement or any other
agreement with KlM, including, without limitation, any failure to timely pay any
monies now or hereafter due KlM. Upon termination o this Agreement, with or
without cause, Retailer shall immediately return to KlM all copies of the
Catalog or any portions thereof regardless of the form (e.g. electronic, tape,
paper or otherwise) and destroy or delete any back-up or other copies of the
Catalog.
7. Waiver. The failure of a party to enforce any provision of this
Agreement shall not constitute a waiver of such party's right to thereafter
enforce such provision or to enforce arty other provision at any time.
8. Modification. The terms of this Agreement cannot be modified except
by a written instrument signed by the parties.
9. Entire Agreement. All prior negotiations and understandings of the
parties relating to the subject matter hereof are merged herein. This instrument
contains the entire agreement between the parties relating to such subject
matter and supersedes all agreements, written and oral, if any, relating
thereto.
10. Attorneys' Fees. The prevailing party in any suit brought to
enforce or interpret this Agreement shall be entitled to recover reasonable
attorneys' fees in addition to any other relief awarded.
11. Notice. Any notice required or permitted to be sent hereunder shall
be effective when actually delivered or when mailed by certified mail, return
receipt requested to the party entitled to receive such notice at the address
set forth on the signatory page hereof. Each party may change its address for
notice by notice to the other party.
12. Governing Law, Jurisdiction and Venue. This Agreement and the
fights and obligations of the parties hereunder shall be governed by and
construed and enforced in accordance with the laws of the State of Texas. In any
dispute or proceeding to enforce or interpret this Agreement, the parties
expressly consent to the exclusive jurisdiction of the state and federal courts
of Dallas County, Texas and venue shall be proper in Dallas County.
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Effective the 10th day of September, 1999.
XXX INTERNATIONAL MANUFACTURING, INC.
Address:
00000 Xxxxxxxx Xxxxxxxxx By: ______________________________
Suite 310 C. Xxxx Xxx, General Manager
Xxxxxx, Xxxxx 00000-0000
RETAILER
Address: XXXXXXXXXXXX.XXX, INC.
0000 X. Xxxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
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Suite 262 Title: President
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Xxxx Xxxxx, XX 00000 Printed Name: Xxxxx X. Xxxxxxxxx
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