Exhibit 10.40
VENDING PLACEMENT, SUPPLY AND DISTRIBUTION AGREEMENT
BETWEEN
XXXXXXX KODAK COMPANY
AND
MAYTAG CORPORATION
AND
XXXXX-NARCO, INC.
AND
X-XXXX.XXX CORPORATION
TABLE OF CONTENTS
-----------------
1. STRATEGIC ALLIANCE ...................................................
2. VENDING SYSTEMS PLACEMENT COMMITMENTS ................................
3. EXCLUSIVE RELATIONSHIP ........ ......................................
4. SLOTTING FEES ........................................................
5. TARGET LOCATIONS ................. ...................................
6. SOLICITATION OF TARGET LOCATIONS .....................................
7. PLACEMENT AGREEMENTS .................................................
8. INSTALLATION OF VENDING SYSTEMS ....... ..............................
9. RETAIL SALE; PRICE AND TERMS. ........................................
10. PACKAGE / SIGNAGE. ...................................................
11. RETURN PRIVILEGES / STOCK BALANCING ..................................
12. INTERNET REPORTING ...................................................
13. CUSTOMER SERVICE AND VENDING SYSTEMS MAINTENANCE .....................
14. TERM / CAUSES FOR TERMINATION,........................................
15. WIND-DOWN PERIOD .....................................................
16. ESCROW OF VENDING SYSTEMS, SOFTWARE, SOURCE CODES AND
HARDWARE EQUIPMENT ...................................................
17. INDEMNIFICATION ......................................................
18. EXCLUSION OF CONSEQUENTIAL DAMAGES....................................
19. PROPRIETARY RIGHTS ...................................................
20. TAXES.................................................................
21. RIGHT TO AUDIT........................................................
22. PUBLICITY.............................................................
23. REPRESENTATIONS AND WARRANTIES........................................
24. CONFIDENTIALITY ......................................................
25. NOTICES...............................................................
26. DISPUTE RESOLUTION PROCEDURE..........................................
27. GOVERNING LAW ........................................................
28. INDEPENDENT CONTRACTORS ..............................................
29. SUCCESSORS AND ASSIGNS ...............................................
30. AMENDMENT AND WAIVER .................................................
31. DELAYS OR OMISSIONS ..................................................
32. FORCE MAJEURE ........................................................
33. SEVERABILITY .........................................................
34. SURVIVAL .............................................................
35. SCHEDULES ............................................................
36. TITLES AND SUBTITLES .................................................
37. COUNTERPARTS .........................................................
38. TIME OF THE ESSENCE...................................................
39. CROSS GUARANTY .......................................................
40. ENTIRE AGREEMENT......................................................
Schedules
---------
A. VENDING PROGRAM INSTALLATIONS / MONTHLY SLOTTING FEES
B. E-VEND STANDARD PLACEMENT AGREEMENT
C. MINIMUM PURCHASE ORDER PRICE FOR KODAK MERCHANDISE
D. VENDING PROGRAM TEAMING STRATEGY
E. DISPUTE RESOLUTION REPRESENTATIVES
F. E-VEND ESCROW AGREEMENT
G. E-VEND PACKAGING SPECIFICATIONS FOR VENDING
II
VENDING PLACEMENT, SUPPLY AND DISTRIBUTION AGREEMENT
----------------------------------------------------
THIS VENDING PLACEMENT, SUPPLY AND DISTRIBUTION AGREEMENT ("Agreement"),
dated as of this I day of P ember 2000, is by dhg and between Xxxxxxx Kodak
Company, a New Jersey corporation ("Kodak"), Maytag ag \ Corporation, a Delaware
corporation ("Maytag"), Xxxxx-Narco, Inc., a Delaware corporation and
wholly-owned subsidiary of Maytag Holdings, Inc., which is a wholly owned
subsidiary of Maytag ("Xxxxx") and x-Xxxx.xxx Corporation, a Delaware
corporation ("e-Vend") (collectively, individually and respectively defined as
"Parties" and "Party").
RECITALS
WHEREAS, Kodak is a developer, manufacturer and marketer of consumer,
professional, health and other imaging products, processes and services,
including cameras and film products.
WHEREAS, Maytag and Xxxxx have expertise in manufacturing, market
development, distribution and servicing of vending equipment.
WHEREAS, e-Vend has developed a method of distributing product from vending
machines equipped with e-Vends payment and reporting system (the "e-Vend
System"), which, among other things, enables vending machines to accept credit
and debit cards as payment, and to be remotely monitored and controlled through
the global computer network and a network operating center owned and operated by
e-Vend. WHEREAS, Kodak and e-Vend previously entered into a Vending Placement,
Supply, and Distribution Test Agreement dated May, 1999 (the "Previous
Agreement") under which Kodak and e-Vend tested the marketing and sale of Kodak
one time use cameras and film from vending machines manufactured by Xxxxx, and
equipped with the e-Vend System owned and operated by e-Vend (hereafter "Vending
Systems").
WHEREAS, Maytag and e-Vend have entered into a Strategic Alliance Agreement
dated December 8, 1999 (the "Strategic Alliance Agreement") under which Maytag
acquired a substantial minority ownership position in e-Vend.
WHEREAS, Kodak, Maytag, Xxxxx and e-Vend wish to form a strategic -III'
ance to market and execute a large scale, national vending program ("Vending
Program") under which e-Vend shall purchase all of its requirements of Kodak
consumer cameras and film which are identified in Schedule C of this Agreement
or developed during the Tenn of this Agreement ("Kodak Merchandise") from Kodak,
distribute and sell the Kodak Merchandise solely from Vending Systems installed
in Target Locations (as defined in and contemplated by Section 5 hereof) in the
continental United States in accordance with the terms set forth in this
Agreement.
WHEREAS, the Parties wish specifically to set forth their respective rights
and obligations in carrying out the objectives of the strategic alliance.
NOW THEREFORE, in consideration of the foregoing recitals, the mutual
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the Parties, intending
to be legally bound, hereby agree as follows:
1. STRATEGIC ALLIANCE.
1.1 National Vending Program. Kodak, Maytag, Xxxxx and e-Vend hereby
form a strategic alliance and agree to work together to implement the Vending
Program. In implementing the objectives of the strategic alliance, each Party
agrees to perform its respective obligations as set forth in this Agreement.
1.2 Evaluation of Global Opportunity. Maytag and e-Vend also shall
evaluate with Kodak the feasibility and desirability of a strategic alliance in
the event Kodak notifies Maytag and e-Vend in writing that Kodak wishes to
extend the Vending Program on an international basis. The terms of any such
extension shall be set forth in one or more separate agreements that are
mutually satisfactory to each Party.
2. VENDING SYSTEMS PLACEMENT COMMITMENTS.
2.1 Subject to the terms of this Agreement, e-Vend, Maytag and Xxxxx
hereby grant, and Kodak hereby accepts, the right to the space in and on the
number of activated Vending Systems as set forth on Schedule A attached hereto
for the marketing and retail sale of Kodak Merchandise from the Target Locations
during the Tenn of this Agreement (as defined below in Section 14.1).
2.2 Subject to the terms of this Agreement, Kodak hereby grants to
eVend, Maytag and Xxxxx, and e-Vend, Maytag and Xxxxx each hereby accepts, the
right during the Term of this Agreement to distribute and sell Kodak Merchandise
solely from activated Vending Systems located at Target Locations within the
United States.
2.3 Subject to Kodak's rights under Section 14.2 and 14.3, each Party
to this Agreement shall utilize all reasonable masures toy meet the number of
vending systems as set forth in Schedule A. However, the number of vending
Systems to be committed and placed in the Target Locations shall not exceed the
numbers established for each approval gate ("Gate") as set forth in Schedule A
without the explicit written approval of Kodak.
3. EXCLUSIVE RELATIONSHIP. The Vending Systems subject to this Agreement
will sell, contain and dispense only Kodak Merchandise unless written
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approval is given by Kodak and e-Vend to include other products or merchandise.
In addition, e-Vend, Maytag and Xxxxx agree that until the expiration or sooner
termination of this Agreement, they will not, directly or indirectly, purchase
or sell from any Vending Systems, vending systems, vending machines and other
unattended merchandising devices of any kind within the continental United
States, including vending machines and merchandising devices that accept only
cash as payment for products sold ("Cash Operated Machines"), any consumer
cameras and film products of a third party. The foregoing restrictions shall not
limit e-Vend, Maytag or Xxxxx in any way from selling third party products or
merchandise other than consumer cameras and film, from vending systems, vending
machines and other unattended merchandising devices of any kind not controlled
under this Agreement. Kodak agrees that until the expiration or sooner
termination of this Agreement, it shall not, directly or indirectly through a
third party, sell or permit the sale of Kodak Merchandise through vending
machines and other unattended merchandising devices of any kind within the
continental United States, other than Cash Operated Machines, provided, however,
that Kodak has not exercised its option to discontinue the Vending Program after
Gate 1 or Gate 2 as set forth in Section 14 below (and on Schedule A) and
completed any Wind-down Period (hereafter defined). In the event that Kodak does
exercise its option to discontinue the Vending Program after Gate 1 or Gate 2,
Kodak is free to pursue other vending relationships for selling its Kodak
Merchandise, and likewise Maytag, Xxxxx and/or e-Vend will be permitted to
purchase and sell from vending systems, vending machines and other unattended
merchandising devices of any kind third party consumer cameras and film products
of any kind, other than from those Vending Systems which are subject to the
Wind-down provisions of Section 14.2 or 14.3. The foregoing restriction shall
not limit Kodak in any way from selling Kodak Merchandise tough Cash Operated
Machines, except that Maytag and/or e-Vend shall have a first right of refusal
to provide Cash Operated Machines or services relating to Cash Operated Machines
under competitive industry rates and provided that their respective products and
services for that market also are competitive in Kodak's reasonable business
judgment.
4. SLOTTING FEES. In consideration of: (a) e-Vends, Maytag's and Dixie's
granting of the rights to Kodak as stated in Section 2 of this Agreement; (b)
their procuring, retrofitting, installing and maintaining Vending Systems for
distribution of Kodak Merchandise under this Agreement; and (c) their agreement
to the restrictions contained in Section 3 of this Agreement while this
Agreement is in effect, Kodak shall make monthly payments of One Hundred and
Fifty Dollars and no Cents ($150.00) ("Slotting Fees") to e-Vend for each
Vending System, up to a maximum of two thousand (2.000) vending Systems that are
activated, connected and functioning during that calendar month pursuant 10
tilts Agreemant subject to abatement as provided in Section 1 3.? of, tilts
Agreement Except in accordance with this Agreement, the first month's Slotting
Fees for each Vending System shall be billed by e-Vend to Kodak at the end of
the first month the Vending System is installed, activated, connected and
functioning. The remaining monthly Slotting Fees for each such Vending System
shall thereafter be billed by e-Vend to Kodak at the beginning of each month
and, unless the Vending System is deactivated, shall continue for the longer of
the Term of this Agreement or a
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three (3) year period from the date the Vending System is first installed and
activated. To the extent the Slotting Fees continue beyond the expiration of
this Agreement as provided above, the period between the expiration or
termination of this Agreement and the last day on which Slotting Fees are
payable shall be treated in the same manner as the Wind Down Period set out in
Section 14.2, with the provisions of Section 15 also applying to such period.
Should any Vending System be activated on any day other than the first day of
the month, the Slotting Fees for that month shall be prorated accordingly.
Except for the initial month, Slotting Fees for each activated, connected and
functioning Vending System during a particular month shall be net for payments
made within forty (40) days of the later of (i) the first day of that month or
(ii) the date the monthly invoice is received from e-Vend ("Payment Date").
Approximately five (5) business days before each Payment Date, e-Vend shall
provide to Kodak a statement of Slotting Fees due on the following Payment Date
(i.e., the statement for the November ist payment-will be provided on or about
September 25th). If a Payment Date falls on a non-business day, Slotting Fees
shall be due by the first business day thereafter.
5. TARGET LOCATIONS. The Parties agree to target the travel and leisure
market which will consist primarily of "Point of Picture" locations ("POP
Locations"), including zoos, amusement/theme parks, national parks, monuments,
other tourist attractions, stadiums and arenas, as well as transitory venues "on
the way" to POP locations ("Transitory Locations") including airports, train
stations, rest stops and welcome centers. The Parties also agree to consider new
and existing Kodak retail locations ("Retail Locations") as, solely identified
by Kodak, and at Kodak's sole discretion, on a case by case basis (approved "POP
Locations", "Transitory Locations" and "Retail Locations" are collectively
referred to herein as "Target Locations"). Maytag, Xxxxx and/or e-Vend shall
have the responsibility for identifying and procuring suitable locations for
Vending Systems placements pursuant to the Teaming Strategy attached hereto as
Schedule D. Kodak, at its sole discretion on a case by case basis, shall have
final approval regarding the selection of any Target Location with existing
Kodak business. Kodak also shall have the right, in its sole discretion, to veto
the selection of any Target Location if the selected Target Location is not
compatible with Kodak's marketing image. Where appropriate, Kodak will add value
to the process of acquiring Target Locations by making its existing contact and
account information available to, and sharing leads identifying suitable Target
Locations with, the Maytag Customer Focus Team (as defined in Section 13.3).
Placement of Vending Systems at Target Locations will be subject to the
availability or ability to procure installation and maintenance support on
commercially reasonable terms.
6. SOLICITATION OF TARGET LOCATIONS. The Parties s1i;311 Work together to
develop mutually agreed upon marketing materials for the Vending Program the
costs of which shall be paid fifty percent (50%) by e-Vend and Maytag, and fifty
percent (50%) by Kodak. Xxxxx and e-Vend, with the support and cooperation of
Kodak as provided in Section 5 above, this Section and Section 8 below, shall be
ultimately responsible for soliciting and procuring all of the Placement
Agreements (as defined in Section 7 below) with Target Locations and will only
delegate, subcontract or
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otherwise transfer this function or responsibility to third parties with
Kodak's prior written approval, which approval shall not be unreasonably
withheld. Xxxxx and e-Vend shall be fully liable for all actions of selected
third parties from such delegation, subcontracting or transfer of this function
or responsibility, notwithstanding any approval by Kodak. Xxxxx and e-Vend will
not assign this responsibility to third parties. e-Vend and Xxxxx shall use
reasonable commercial efforts to secure sufficient Placement Agreements with
Target Locations to timely achieve the number of Vending Systems as set forth in
Schedule A. Kodak shall cooperate with e-Vend and Xxxxx in their efforts to
solicit and procure Placement Agreements from Target Locations, and Kodak: (a)
shall identify for e-Vend and Xxxxx, and use good faith reasonable commercial
efforts to incorporate the Vending Program into, any sponsorship contracts Kodak
has with Kodaksponsored venues which are POP Locations or Transitory Locations;
(b) reserves its right to make joint sales calls with e-Vend and Xxxxx on all
Retail Locations and any other Target Location with at least ten (10) locations,
and e-Vend shall notify Kodak at least ten (10) business days before any such
calls are made by e-Vend. Kodak, upon receipt of such notice, shall make
reasonable commercial efforts to notify e-Vend promptly of its desire to attend
any such calls and to not unreasonably delay such calls. Kodak shall also make
commercially reasonable efforts to participate with e-Vend and Maytag at up to
two (2) trade shows per year, and shall permit e-Vend and/or Maytag sales
personnel to represent themselves as an authorized distributor of Kodak
Merchandise in their capacity as representatives of the Vending Program. Maytag,
e-Vend and Kodak shall each have at least one individual designated as a liaison
to this Vending Program.
7. PLACEMENT AGREEMENTS.
7.1 Unless otherwise agreed to by the Parties, Placement Agreements shall
be by and between e-Vend and the Target Location; shall have an initial term no
longer than the term of the initial financing or lease placed on the Vending
System to be installed at the site, which in no event will exceed three (3)
years from the date of the initial installation of the Vending System at any
site; and shall be substantially in the form of the agreement attached as
Schedule B to this Agreement ("Placement Agreements"). Kodak shall receive a
copy of each and every Placement Agreement entered into by e-Vend and the Target
Locations within two (2) weeks of its execution. Unless otherwise agreed to by
the Parties, Placement Agreements shall give e-Vend the right to install Vending
Systems and use a dedicated phone line and electrical power at the Target
Locations, and require the Target Locations to provide stocking and restocking
services for a teen of not less than one (I) year. Kodak acknowledges that there
is no guarantee that each Target Location will he willing to enter into
Placement Agreementson the above terms. Xxxxx and e-Vend shall use reasonable
commercial efforts to work with each Target Location to identify the optimal
number of Vending Systems to Install and the placement of each Vending System
within the Target Location.
7.2 No Placement Agreement shall be renewed without the prior written
consent of both e-Vend and Kodak. Each renewal tern shall be for a period of
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one (1) year, provided that by its terms, the renewal term automatically shall
terminate upon the expiration or termination of this Agreement.
7.3 Upon the expiration or earlier termination of this Agreement, and the
termination of each Placement Agreement (whether co-terminus with this Agreement
or ending during any applicable Wind-down Period), the Placement Agreement shall
not be renewed. Instead, each Party reserves the right to attempt to negotiate
and enter into a new agreement for the given site on such terms and for such
products or services as the Party, in its sole discretion, deems proper.
7.4 Maytag, Xxxxx and/or e-Vend shall maintain, at their sole cost and
expense throughout the term of each Placement Agreement and on each Vending
System, a commercial general liability insurance policy, including product
liability and personal injury and property damage liability, from a qualified
insurance company which names Kodak as an additional insured. The amount of
coverage shall be a minimum of One Million Dollars ($1,000,000) per occurrence.
In addition, e-Vend shall provide on each Vending System, at its sole cost and
expense throughout the term of each Placement Agreement, insurance coverage in
the event of theft and/or vandalism. e-Vend may self insure for theft and/or
vandalism, provided that it, at all times before reaching the Gate 2 decision
point contemplated by Section 14.3 of this Agreement, maintains a net worth of
not less than the product of One Thousand dollars ($1,000) multiplied by the
number of then activated, connected and functioning Vending Systems under this
Agreement, and should the Parties continue this Agreement beyond the Gate 2
decision point, at all times thereafter, maintains a net worth of not less than
the product of Five Hundred dollars ($500) multiplied by the number of then
activated, connected and functioning Vending Systems under this Agreement.
Maytag, Xxxxx and/or e-Vend shall provide to Kodak certificates of insurance
issued by the company or companies providing the above insurance protections
evidencing (i) that such company or companies are licensed in the states of the
Placement Agreement locations; (ii) that such company or companies have either a
Best's Rating of A- or higher, a Best's Financial Performance Rating of 7 or
higher, or a Standard & Poor rating of at least A or higher; (iii)-that such
coverage is in full force and effect and (iv) providing that no such insurance
may be canceled without at least thirty (30) days' written notice to Kodak.
8. INSTALLATION OF VENDING SYSTEMS.
8.1 Within fourteen (14) calendar days after a Placement Agreement is
executed with a Target Location e-Vend shall submit an invoice to Kodak for Five
Hundred Dollars (S500.00) to cover the costs of Shipping the Vending Systems
from eVend's or Dixie's warehouse to the Target Location and (ii) installation.
Xxxxx shall be responsible for such shipping and installation. Xxxxx or e-Vend
shall provide to Kodak, detailed information on where each Vending System within
a particular Target Location is to be installed, including the direction the
Vending Systems will face for the delivery personnel. Xxxxx and/or e-Vend shall
use reasonable commercial efforts to provide Kodak with photographs of each
Vending System installation within five (5) business
6
days of that installation. Kodak acknowledges that, as of the date hereof, the
Vending Systems require a standard phone xxxx and dedicated, non PBX phone line
and standard 110V electrical line and outlet. If not available at a Target
Location, e-Vend and/or Xxxxx, directly or through a third party contractor,
shall install a standard phone xxxx and dedicated, non PBX phone line, and bear
all costs of such installation and maintenance. Xxxxx and/or e-Vend are solely
responsible for all other costs related to the installation of Vending Systems
including Federal, state, county and all other placement fees, licensing fees,
all applicable taxes, and all credit/debit card processing fees.
8.2 Xxxxx and/or e-Vend shall be responsible for all shipping costs
associated with returning Vending Systems to e-Vends or Dixie's warehouse upon
permanent retirement of the Vending Systems or upon expiration or termination of
this Agreement. Vending Systems cannot be permanently retired unless such
Vending System is beyond repair or has been vandalized beyond its reasonable
use, or it is technically obsolete. Each permanent retirement of a Vending
System requires Kodak's written approval. Excluding those Vending Systems
discussed in Section 8.3 below, Maytag and/or e-Vend has the right to relocate
or move any Vending System after its initial installation and shall be
responsible for all shipping and installation costs associated with these
subsequent moves, including all moves of the Vending Systems from one Target
Location to another. Once e-Vend deactivates a Vending System that is being
relocated, the Slotting Fees on the Vending System shall cease immediately, and
Xxxxx and/or e-Vend shall use reasonable commercial efforts to move the Vending
Systems within fourteen (14) calendar days. For any Vending System moved from
one Target Location to another, Slotting Fees shall be reactivated once the
Vending System is activated, connected and functioning in its relocated position
at the new Target Location. For Vending Systems which are relocated within a
Target Location, Slotting Fees shall be reactivated once the Vending Systems are
activated, connected and functioning in their relocated position.
8.3 In the event of particularly high visibility and high traffic at a
Target Location from a media/sponsorship aspect, Kodak reserves the absolute
right, not to be exercised with respect to more than ten per cent (10%) of the
activated Vending Systems in any rolling one year period, to (a) require Xxxxx
and/or e-Vend to relocate or remove a Vending System, or (b) prohibit the
relocation or removal of a Vending System, at any time and for any reason. Kodak
shall bear the reasonable costs of any such required move, including the costs
of shipping and installation at a new location. Once Kodak notifies e-Vend in
writing of its decision to relocate or permanently remove any such Vending
System, e-Vend shall notify Kodak. within two (2) business days of receipt o1
such notice from Kodak, of how many days it will take to have installed the
required standard phone xxxx and dedicated, non PBX phone line at the new Target
Location (the "Phone Install Period"). If, upon receipt of such notice. Kodak
wishes to proceed with the relocation, it shall promptly so notify e-Vend (the
"Relocation Notice"). Upon receipt of the Relocation Notice, e-Vend shall
proceed promptly with the relocation at Kodak's reasonable cost and expense,
keeping the Vending System at the existing location active and fully
functioning, until e-Vend is ready to relocate the Vending System. Should E
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Vend fail to relocate a Vending System within the longer of fourteen (14) days
from (a) the Relocation Notice or (b) the end of the Phone Install Period,
Slotting Fees will be abated from the end of the relevant fourteen (14) day
period until the Vending System is activated, connected and functioning in its
relocated position.
9. RETAIL SALE; PRICE AND TERMS.
9.1 e-Vend, Maytag and Kodak shall consult from time to time concerning the
Kodak Merchandise to be made available for retail sale from the Vending Systems.
However, Kodak shall have the ultimate right to delist or add new products to
the Kodak Merchandise provided that Kodak justifies the decision with a rational
business case which is consistent with its general marketing program for these
types of products. All requirements of Kodak Merchandise shall be purchased by
e-Vend solely through the authorized distribution centers of Kodak in the United
States and shall be sold solely through Vending Systems in the United States.
Kodak shall ship Kodak Merchandise only pursuant to written purchase orders
received by Kodak. e-Vend shall place purchase orders for Kodak Merchandise only
in pallet quantities as defined by Kodak. All forms of such purchase orders
shall include a purchase order number, quantity ordered, ship to location,
catalog number and a detailed identification of the Kodak Merchandise. Kodak
shall make commercially reasonable efforts to maintain sufficient inventory of
Kodak Merchandise to meet the Vending Systems' customer demand. Kodak shall use
reasonable commercial efforts to fill all orders from e-Vend within thirty (30)
days of receipt of orders and, if requested in writing by e-Vend, shall endeavor
to reduce the time required to fill any order before the thirty (30) day target
if needed for a particular Target Location. However, if it becomes necessary
from time to time for Kodak to discontinue shipments of Kodak Merchandise to
e-Vend for any of the Vending Systems, to revoke or modify any provisions in the
foregoing schedule, or to allocate distribution of any of its products and
services among its customers, Kodak reserves the right to take whatever
reasonable actions, in its sole judgment, Kodak determines to be fair and
appropriate.
9.2 Unless otherwise agreed to by e-Vend and Kodak with respect to a Target
Location, the amount paid by e-Vend to Kodak for the Kodak Merchandise sold by
Kodak to e-Vend shall be the greater of sixty two percent (62%) of the actual
retail price received by e-Vend for the Kodak Merchandise or the Minimum Price
(as modified by Kodak from time to time, the "Minimum Price") for each product
as set forth on Schedule C (tile greater of sixty two percent (62%) of the
actual retail price received by eVend for the Kodak Merchandise or the Minimum
Price being hereafter referred to as. the "e-Vend Purchase Price"). The Minimum
Price may only be increased when, and to extent that: (a) the cost of the
materials (exclusive of vending related packaging) used in the Kodak Merchandise
increases; (b) there is an increase in Consumer Price Index ("CPI"); or (c) the
Kodak catalog dealer price per item increases. With respect to any such
increases attributable to an increase in the CPI, Kodak shall be entitled to
raise the Minimum Price in the aggregate amount of the increase of the CPI
between the date of this Agreement and the date of the Minimum Price increase,
reduced by the amount of
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any CPI-based Minimum Price increases previously imposed. For example, if the
CPI increases by two percent (2%) in the first calendar year of this Agreement,
any Minimum Price increase based upon this CPI increase imposed by Kodak shall
be limited to two percent (2%) of the then effective Minimum Price. In the event
that Kodak does not increase the Minimum Price during any given time period, or
the Minimum Price increase is less than the CPI increase for that time period,
Kodak shall be allowed to aggregate the percentage differences between the CPI
increases and Minimum Price increases for this time period and increase the
Minimum Price accordingly. As an additional example, if the CPI increases by two
percent (2%) each year for three years, for an aggregate increase of six percent
(6%), and Kodak has then only imposed a one percent (1 %) Minimum Price increase
tied to the CPI, Kodak shall be allowed to increase the then effective Minimum
Price by up to five percent (5%) based solely upon the increases in the CPI
during this three year time period. "Consumer Price Index." in this Agreement
shall mean the consumer price index as published in the Wall Street Journal.
Under separate agreements, e-Vend shall be solely responsible for any and all
payments to Target Locations for restocking the Vending Systems, and to credit
and debit card processors for credit and/or debit card processing fees. At the
time of placing purchase orders, e-Vend shall be charged, and Kodak shall
invoice Kodak Merchandise ordered at, Kodak's catalog dealer low net price per
item (the "Dealer Cost"). Within thirty (30) days of the close of each month,
e-Vend shall deliver to Kodak a statement which reconciles the difference
between the Dealer Cost charged to e-Vend by Kodak and the eVend Purchase Price
for Kodak Merchandise purchased by e-Vend from Kodak and sold through Vending
Systems during the month (the "Reconciliation Statement"), together with such
back-up data and records as Kodak from time to time reasonably may request. In
the event the e-Vend Purchase Price exceeds the Dealer Cost, e-Vend shall
forward to Kodak with the Reconciliation Statement a check in an amount equal to
the amount by which the-e-Vend Purchase Price exceeds the Dealer Cost. In the
event the Dealer Cost exceeds the e-Vend Purchase Price, e-Vend shall be
entitled to a credit from Kodak in an amount equal to the amount of the excess.
In addition to Kodak's audit rights in Section 21, Kodak has the right to review
or audit the Reconciliation Statement and all supporting books and records. Any
e-Vend Purchase Price understatement of the purchase price shall bear interest
at the Wall Street Journal's prime interest rate plus four (4) percentage points
from the date the payment originally was due. In addition, if the e-Vend
Purchase Price is found to be understated on the Reconciliation Statement by
more than five percent (5%), Maytag and/or e-Vend shall pay for all audit costs.
9.3 Subject to the Kodak Credit Department and unless otherwise Specified
in writing by Kodak, terms of payment for arty miler of Kodak Merchandise shall
be a cash discount allowance of two percent (2%) hard on die net amount of the
invoices ("Invoice totals")fur payment within twenty-five (25) day of (late of
invoice ("DOI"), providing e-Vend does not have an account with Kodak which is
past due, and net for payments within forty (40) days of DOI. No additional
discounts or chargebacks are allowed for early payment anticipation.
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9.4 Standard shipping and handling costs for the Kodak Merchandise to
e-Vend shall be paid by Kodak on all orders from e-Vend that have a billing
value of One Thousand Dollars ($1,000) or more, excluding any applicable tax,
and calling for single shipments to a domestic United States location shipped
from Regional Distribution Centers or designated shipping points. All shipments
shall be FOB Kodak's Regional Distribution Center. Orders of less than One
Thousand Dollars ($1,000), as well as items that require special handling and
orders on which e-Vend requests a method of shipment other than that which would
normally be used by Kodak, shall be shipped at e-Vends cost FOB Kodak's Regional
Distribution Center.
Current shipping costs are approximated below, but are subject to change:
Ground Shipments:
0 to 16 kilograms: $10
17 to 46 kilograms: $25
Over 46 kilograms: $40
Air Shipments:
Under 4.4 kilograms: $20 $4.40 per kilogram for next day air service
Above 4.4 kilograms: $3.30 per kilogram for second day air service.
9.5 e-Vend shall, inspect arriving shipments promptly and any errors in
shipment shall be reported immediately upon receipt to the Kodak Regional
Distribution Center. Specifically, visible-damages and shortages shall be
reported to the carrier and to Kodak within twenty-four (24) hours after
delivery to e-Vend. Requests for adjustments on concealed damages or shortages
involving cartons received intact shall be reported by e-Vend to the Kodak
Regional Distribution Center within fifteen (15) days of receipt of the
shipment. All notices are required to be in writing, time being of the essence,
or eVend waives any rights with respect to damage or shortage claims of any
kind. Provided any damage or shortage is timely reported as set out above,
e-Vend may assert any claims for lost or damaged freight within nine (9) months
from the original date of invoice, time being of the essence. Any such requests
from e-Vend after nine (9) months for the original invoice date shall not be
investigated or honored, all rights thereto being waived. If e-Vend reports
damages or shortages in shipments in the time periods set out above, Kodak shall
bear the risk of loss of shortages and defects only, not transit damage. If
eVend fails to timely report damages or shortages as set out above, e-Vend shall
bear the risk of loss In the cases where e-Vend hears the risk of loss, Kodak
shall assist e-Vend in filing damage claims with the carrier.
9.6 e-Vends purchase orders which qualify for Kodak's shipping and handling
prepayment plan, as outlined in Section 9.4 above, shall be shipped FOB Kodak
warehouse, transportation paid to destination. Kodak shall have final approval
of the method of transportation and carrier to e-Vend. e-Vend orders that do not
qualify for the Kodak shipping and handling prepayment plan shall be prepaid,
but the charges shall be
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added to the invoice of e-Vend. If a portion of an e-Vend order which originally
qualified for the shipping and handling to be paid by Kodak backorders, the back
order shall be shipped transportation paid by Kodak, regardless of billing
value.
9.7 All Kodak Merchandise is sold without any warranty or liability of any
kind, except that which is expressly stated on, is packaged with, or accompanies
such products, processes and services, and, with respect to the sale, use, and
handling of Kodak sensitized goods are subject to the applicable limitation of
liability listed as follows:
Kodak Merchandise is warranted to be free from defects in
manufacturing, labeling, and packaging. KODAK DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN THE EVENT OF A BREACH OF FOREGOING WARRANTY, KODAK'S SOLE
OBLIGATION, AND E-VENDS, DIXIE'S OR MAYTAG'S EXCLUSIVE REMEDY, SHALL BE THE
REPLACEMENT OF SUCH DEFECTIVE MERCHANDISE, EVEN THOUGH THE DEFECT, DAMAGE,
OR LOSS IS CAUSED BY THE NEGLIGENCE OR OTHER FAULT OF KODAK, SHOULD THIS
EXCLUSIVE REMEDY FAIL ITS ESSENTIAL PURPOSE, KODAK'S ENTIRE LIABILITY SHALL
BE LIMITED TO THE REFUND OF THE PURCHASE PRICE OF THE DEFECTIVE PRODUCT.
IN NO EVENT SHALL KODAK BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL
AND/OR CONSEQUENTIAL DAMAGES, INCLUDING THE COST OF COVER.
10. PACKAGING/SIGNAGE.
10.1 All Kodak Merchandise sold from Vending Systems shall be packaged by
Kodak for shipping in pallet quantities to e-Vend so that the Kodak Merchandise
may be readily inserted into e-Vends packaging of the size described in Schedule
G. Each shipment shall be sufficiently labeled to identify the SKU's contained
in the shipment. e-Vend shall pick, package, can, label all Kodak Merchandise in
eVend's cylindrical vending containers with lids, and ship to Target Locations
at a rate of Fifty Cents (S0.50) per unit which e-Vend shall invoice Kodak.
Where economies of scale may be achieved, e-Vend shall pass those direct savings
through to Kodak and reduce the costs to Kodak accordingly. Kodak retains the
right to bring these packaging. canning and labeling processes in-louse at its
sole discretion. In the event that Kodak does bring these packaging, canning and
labeling processes in-house, Kodak shall package all Kodak Merchandise to be
sold from Vending Systems for shipping to e-Vend in accordance with e-Vends
specifications for vending as set forth in Schedule G. Kodak shall be
responsible for providing e-Vend with artwork, the use of which is solely
subject to Kodak's written approval, for can labels meeting e-Vends
specifications for vending.
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10.2 Kodak shall also be responsible for providing Xxxxx and/or e-Vend with
DURATRANS display material and signage meeting Dixie's and e-Vends
specifications for the front and side panels of each Vending System. Xxxxx
and/or e-Vend shall be responsible for coordinating the printing of all
DURATRANS display materials, signage or posters at a cost to be approved and
paid by Kodak. All DURATRANS display materials, signage or posters shall be
installed by e-Vend, Xxxxx or the Target Location personnel with all such costs
to be paid by e-Vend, Xxxxx and/or the Target Location. Xxxxx and/or e-Vend
shall bear the costs to replace the DURATRANS display materials, signage or
posters in the Vending Systems on an as needed basis due to vandalism, wear and
tear, defect, or other commercially reasonable requests by Kodak (except all
Kodak-elective DURATRANS display materials, signage or poster changes involving
marketing, special promotions, and change of logos or Kodak Marks as defined in
Section 19.2 below shall be paid by Kodak). With Kodak's written approval,
DURATRANS display materials, signage and/or posters may be customized for
special occasions.
10.3 Kodak shall have final and sole approval on all artwork used for can
labels, DURATRANS display material, signage and posters, and retains the rights
to all of the artwork. Subject to Kodak's approval, which shall not be
unreasonably withheld, e-Vend and/or Xxxxx may install and display on or
contiguous to Vending Systems its or their respective signs, logos and service
marks as e-Vend and/or Xxxxx xxxxx appropriate. e-Vend shall use its best
efforts to package and ship Kodak Merchandise within thirty (30) days of receipt
of Kodak Merchandise and artwork from Kodak for stocking in Vending Systems by
e-Vend, Xxxxx or Target Location personnel, as applicable.
11. RETURN PRIVILEGES / STOCK BALANCING.
11.1 All Kodak Merchandise is sold without return privileges except as
provided in Section 1 1.2, 14.2 and 14.3, or where the Kodak Merchandise is
determined to be defective in manufacturing, outdated sensitized goods or
shipped in error by Kodak.
11.2 Under unusual circumstances, and with prior approval of their Kodak
marketing representative and regional sales management, which approval shall not
be unreasonably withheld, e-Vend may return to Kodak in reasonable quantities
any Kodak Merchandise in accordance with Kodak's standards which may change from
tune to time.
11.3 Before returning any Kodak Merchandise to Kodak, e-Vend shall request
from Kodak, and Kodak shall issue to e-Vend. a Return Authorization Number and
shipping instructions for the Kodak Merchandise to be returned. Returns of Kodak
Merchandise otherwise authorized under any condition shall be accepted only if
the Kodak Merchandise was shipped from one of Kodak's Regional U.S. Distribution
Centers. Kodak Merchandise returns from e-Vend shall be made immediately on
receipt
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of Kodak authorization, and shipping shall be prepaid by e-Vend CIF to the Kodak
Regional Distribution Center. If the Kodak Merchandise is defective or has been
shipped incorrectly by Kodak, an adjustment will be made for the transportation
charges incurred by e-Vend through the use of a commercial carrier. Upon receipt
of returned Kodak Merchandise, Kodak shall credit e-Vends account for such
retumed Kodak Merchandise. The credit for authorized returns shall be based on
the same price as on the original invoice or the current price, whichever is
less. In any event, the same price level (Dealer Cost) shall always apply. Where
Kodak acknowledges responsibility, the price on the original invoice shall be
the basis for the credit
11.4 The expiration dating on Kodak Merchandise indicates the useful life
of these products when kept under recommended conditions. Kodak agrees that all
Kodak Merchandise shipped to e-Vend will bear an expiration date that is at
least eighteen (18) months after the date on which the particular Kodak
Merchandise is shipped by Kodak to e-Vend. E-Vend shall notify Kodak in writing
within fifteen (15) days after e-Vends receipt of any shipment from Kodak if the
Kodak Merchandise received has an expiration date which is less than the
required eighteen (18) months, and Kodak shall replace any such Kodak
Merchandise in the same manner. The Kodak Merchandise should be rotated on the
basis of expiration dates to keep stocks fresh. If the Kodak Merchandise is
retumed from e-Vend with an expiration date that is nine (9) months or less from
the date of return, and is not covered by Section 11.5 below, e-Vend shall pay a
fifteen per cent (15%) restocking fee to replace such Kodak Merchandise,
provided that such Kodak Merchandise, when originally shipped by Kodak to
e-Vend, bore an expiration date that was at least eighteen (18) months after the
date on which the particular Kodak Merchandise was shipped by Kodak to e-Vend.
11.5 In general, no credit or allowance will be provided by Kodak for Kodak
Merchandise received within two (2) months of, or after its expiration date, and
shall be deemed outdated, provided that such Kodak Merchandise, when originally
shipped by Kodak to e-Vend, bore an expiration date that was at least eighteen
(18) months after the date on which the particular Kodak Merchandise was shipped
by Kodak to e-Vend. E-Vend shall report, and file claims with respect to, any
Kodak Merchandise received with an expiration date which is less than the
required eighteen (18) months, and Kodak shall replace same within the time
periods, in the same manner, and subject to the terms and conditions, provided
for shortages as set out in Section 9.5 above. Small amounts of outdated Kodak
Merchandise that e-Vend tray occasionally accumulate may be returned to the
appropriate Kodak Regional Distribution ('enter for credit consideration ()n
such returns x% when in reasonable quantities. an allowance of twenty five per
cent (25(degree),o) of the current lowest net price on outdated Kodak
Merchandise will be made. This applies only to Kodak Merchandise shipped from ;1
Kodak regional Distribution Center, provided the Kodak Merchandise is returned
in the original packages with seals unbroken and transportation charges prepaid.
Kodak reserves the right to determine whether quantities of returned outdated
Kodak Merchandise are reasonable, and whether the allowance should be made in
full. Quantities of less than five stock keeping units ("SKU") of Kodak
Merchandise in a separate shipment are not acceptable.
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In order for Kodak to process the credit promptly, an itemized list of the
returned Kodak Merchandise, identified by the catalog number, must accompany
each shipment from eVend.
11.6 If, at the time Kodak Merchandise is returned to Kodak, e-Vend has no
account payable balance owing to Kodak, then Kodak will issue a check to eVend
within forty-five (45) days in an amount equal to the amount that e-Vend was
originally billed for such Kodak Merchandise. All transportation charges
incurred with respect to pre-approved returned Kodak Merchandise, excluding
outdated Kodak Merchandise, shall be paid by Kodak.
12. INTERNET REPORTING.
12.1 All Vending Systems shall report by phone line on a daily basis to
e-Vends data collection network hosted by e-Vend on its secure Internet Web
server located at e-Vends network operating center (the "Network"). e-Vend shall
develop and maintain throughout the Term of this Agreement plus the first to
occur of three (3) years after the tennination or expiration of this Agreement,
or until Kodak is no longer dealing with Vending Systems, a secure location on
the Network which Kodak shall have irrevocable access twenty four (24) hours per
day, seven (7) days per week and three hundred sixty five (365) days per year
(366 days during leap year), via password from any remote personal computer with
Internet access in order to download sales results from each Vending System into
Excel. The secure location will report daily transactions for each Vending
System, including price and products sold, total transactions at all Vending
Systems, as well as -transactions over varying time periods as may be selected
by Kodak. The secure location shall also report average daily sales of each SKU
of Kodak Merchandise per Vending System, average daily sales of each SKU of
Kodak Merchandise for all Vending Systems, and the daily functioning status of
each Vending System. Kodak, from time to time, may provide input to e-Vend
regarding the display and fonnat of the above data reported and e-Vend will
endeavor to accommodate Kodak's requests to the extent it is commercially
reasonably fore-Vend to do so. Kodak shall be able to see Vending Systems are
activated, connected and operating as of each daily report when logging onto the
Network. e-Vend shall use reasonable commercial efforts to use the Network to
manage inventory efficiently and maintain appropriate stocking levels to meet
consumer demand for Kodak Merchandise.
12.2 At any time one or more of the Vending Systems is (are) not
functioning for any reason e-vend shall immediately notify Kodak the reason(s)
the Vending machines is (are) down the remedy to repair tile Vending Systems and
put it (them) back into operating ststus and tile timing when such remedy shall
be implemented.
12.3 e-Vend shall provide Kodak, both electronically and via hardcopy, a
monthly sales report for each SKU of Kodak Merchandise and each Vending System,
and in total, from the highest to the lowest price points by month and year to
date.
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13. CUSTOMER SERVICE AND VENDING SYSTEMS MAINTENANCE
13.1 e-Vend will provide Kodak Merchandise technical assistance and
customer service twenty-four (24) hours per day, seven (7) days per week and
three hundred and sixty five (365) days per year (366 days during leap year),
which shall include the maintenance of a toll-free customer service telephone
line, to purchasers of Kodak Merchandise from the Vending Systems. e-Vend shall
place a sign with its phone number(s) on all of the Vending Systems indicating
that it is responsible for, and should be contacted with respect to, any
maintenance issues or customer complaints, including without limitation,
whenever a Vending System destroys a credit/debit card or does not function
properly. In addition, Xxxxx and/or e-Vend shall commit to maintain a sufficient
amount of inventory of spare and replacement parts to adequately supply the
activated, connected and functioning Vending Systems.
13.2 e-Vend and Xxxxx agree to maintain Vending Systems under this
Agreement in good working order. Xxxxx and/or e-Vend shall provide fully
operational and substantially reliable software systems to operate the Vending
Systems and process all transactions contemplated in this Agreement. Xxxxx and
e-Vend shall also maintain the software system in good working order, use
commercially reasonable efforts to repair any errors, failures or malfunctions
within forty eight (48) hours or less, which may include the installation of a
substitute Vending System or portions thereof. Kodak acknowledges that the
ability to process credit and debit card transactions is dependent upon third
party service providers, including telecommunication providers, and credit and
debit card processors. Accordingly, Vending Systems inability to process
transactions may occur from time to time. However, Vending Systems failures or
malfunctions which occur more than four (4) times per year on a rolling basis
with respect to one percent (1 %) or more activated Vending Systems for more
than two consecutive days shall be cause for termination of this Agreement as
stated in Section 14 below. Exclusive of its ability to terminate this Agreement
for causes as stated in Section 14 below, in the event of Vending Systems
failures or malfunctions which have not been corrected within the forty eight
(48) hour time period, e-Vend shall xxxxx, during the period the Vending System
is inactive, all Slotting Fees under Section 4 and on Schedule A of this
Agreement.
13.3 Xxxxx agrees to maintain supply arrangements with e-Vend and
sufficient production capacity to supply e-Vend with Vending Systems necessary
to allow the Parties to timely achieve the number of activated Vending Systems
as set forth on Schedule A. In addition, Maytag agrees to create and maintain
during the Tern of this Agreernent, and during the Wind-down Period for each
Vending System, a "Customer Focus Team" consisting of at least one full-time and
one part-time Maytag employee who will (a) lead e-Vend, Kodak and Xxxxx in
identifying Target Locations and developing sales materials for the Vending
Program; (b) leverage and manage Maytag's distribution network in the vending
industry to assist e-Vend as needed in efficiently installing Vending Systems at
Target Locations; and (c) manage a service network for on-site
15
maintenance of both the hardware and software systems, at e-Vends sole expense,
of Vending Systems to assist e-Vend, as needed, in the performance of its
obligations under Section 13.2 of this Agreement.
13.4 Xxxxx and e-Vend shall use commercially reasonable efforts repair or
replace, as applicable, any Vending System that is stolen, damaged or vandalized
beyond reasonable use to full operation within fourteen (14) days of being
notified that Vending System is inoperable. Should Xxxxx and/or e-Vend fail to
correct, repair or replace the inoperable Vending System within this fourteen
(14) day period, Slotting Fees will be abated from the end of the fourteen (14)
day period until the Vending System is activated, connected and properly
functioning.
13.5 Under this Agreement, Xxxxx shall be responsible for all of the
maintenance, technical assistance and customer service supporting the hardware
and equipment used in this Vending Program, and e-Vend shall be responsible for
all of the maintenance, technical assistance and customer service supporting the
software and data management associated with this Vending Program.
14. TERM / CAUSES FOR TERMINATION.
14.1 Unless sooner terminated pursuant to this Section, or extended
pursuant to Section 14.3, this Agreement shall have a term (the "Term")
beginning on the date hereof and continuing until December 31, 2003.
14.2 Within ninety (90) days after the installment and activation of the
first five hundred (500) Vending Systems by e-Vend, Xxxxx and/or Maytag, Kodak,
in its sole discretion, may terminate this Agreement for any reason by providing
Maytag and/or e-Vend written notice ("First Termination"). On the day Kodak
provides written notice to Maytag and/or e-Vend to exercise the First
Termination ("First Termination Date"), Kodak shall have the option to: (a)
buy-out the leasing or financing on all such activated and properly functioning
Vending Systems relating to this Agreement on the First Termination Date at the
same price incurred by Maytag, Xxxxx and/or e-Vend; or (b) continue the Vending
Program under this Agreement, including the payment of Slotting Fees, for the
Wind-down Period for each activated Vending System from the date each Vending
System is first installed. For the purposes of Sections 14.2 and 14.3, the
period between the termination of this Agreement and the expiration of the three
(3) year period beginning with the initial installation and activation of each
Vending System is called the "Wind-down Period No additional Vending Systems
shall be installed nor activated after this First Termination Date. In addition,
e-Vend, MAytag and Xxxxx shall have no Obligation to install or activate any
additional Vending Systems upon the Installment and activation of the fist five
hundred (500) Vending Systems unless and until the passage, without receipt from
Kodak of a First Termination Notice, of ninety (90) days, or receipt from Kodak
of a notice that it is waiving its right to exercise the First Termination. In
the case where Kodak buys-out the leasing or financing on the Vending Systems
activated and functioning on the First Termination Date, all unused Kodak
Merchandise in e
i6
Vend's inventory as of the First Termination Date may be returned to Kodak in
accordance with Kodak's standard return procedures as stated in Sections 11.3
through 11.5 above, and all Kodak trademark and other Kodak identification must
be removed from all non-activated Vending Systems and associated materials. If
at the Gate I decision point, but no more than ninety (90) days after the
installment and activation of the first five hundred (500) Vending Systems by
e-Vend, Xxxxx and/or Maytag, Kodak decides not to terminate this Agreement,
Kodak, in its sole discretion, shall determine and provide written notice to
e-Vend and Maytag of the next quantity of additional Vending Systems which shall
be installed and activated by e-Vend, Xxxxx and/or Maytag up to a maximum of an
additional one thousand five hundred (1,500) Vending Systems ("Gate 2
Quantity").
14.3 Within ninety (90) days after the installment and activation of the
Gate 2 Quantity of Vending Systems by e-Vend, Xxxxx and/or Maytag, Kodak, in its
sole discretion, may elect to terminate this Agreement for any reason with
written notice to Maytag and/or e-Vend ("Second Termination"). On the day Kodak
provides written notice to Maytag and/or e-Vend to exercise the Second
Termination ("Second Termination Date"), Kodak shall again have the option to:
(a) buy-out the leasing or financing on all such activated and properly
functioning Vending Systems relating to this Agreement on the Second Termination
Date at the same price incurred by Maytag, Xxxxx and/or e-Vend; or (b) continue
the Vending Program under this Agreement, including the payment of Slotting
Fees, for the Wind-down Period for each activated Vending System froth the date
each Vending System is first installed. No additional Vending Systems shall be
installed nor activated after this Second Termination Date. In addition, e-Vend,
Xxxxx and Maytag shall have- no obligation to install or activate any additional
Vending Systems upon the installment and activation of the Gate 2 Quantity of
Vending Systems unless and until the passage, without receipt from Kodak of a
Second Termination Notice, of ninety (90) days, or receipt from Kodak of a
notice that it is waiving its right to exercise the Second Termination. In the
case where Kodak buys-out the leasing or financing on the Vending Systems
activated and functioning on the Second Termination Date, all unused Kodak
Merchandise in e-Vends inventory as of the Second Termination Date may be
returned to Kodak in accordance with Kodak's standard return procedure as stated
in Sections 11.3 through 11.5 above, and all Kodak trademark and other Kodak
identification must be removed from all non-activated Vending Systems and
associated materials. If, at the Gate 2 decision point, Kodak decides not to
terminate this Agreement, within ninety (90) days after the installment and
activation of the Gate 2 Quantity plus a thirty (30) day extension to be
exercised by Kodak, if needed, the Parties hereto Tall attempt to mutually agree
on the terms and conditions necessary to effect a three (3) years extension on
this Agreement including among other things: reviewing best business practices
and trying to determine the balance of Vending Systems, up to a cumulative total
of ten thousand (10,000) Vending Systems, to be installed and activated for the
balance of the Term; and mutually agree on a new monthly Slotting Fee for all
Vending Systems installed and activated during the Tenn of this Agreement.
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14.4 Maytag, Xxxxx and e-Vend shall use their best efforts to continue to
drive innovation in their respective technical competencies regarding packaging
and wireless vending technology. Maytag, Xxxxx and e-Vend shall also make
commercially reasonable efforts to pioneer or compete as the "leaders in
technology" in the wireless vending technology field. Given this, Kodak may
terminate this Agreement immediately with seven (7) day written notice to
Maytag, Xxxxx or e-Vend, if Maytag's, Dixie's and eVend's expenditures for
research and development for wireless vending and remote vending data management
and storage and other successor technologies falls below an aggregate of Five
Hundred Thousand dollars (S500,000.00) during any rolling twelve (12) month
period of the calendar year beginning with the year, 2001.
14.5 Kodak may terminate this Agreement immediately if Maytag, Xxxxx or
e-Vend has not cured any material breach of this Agreement within thirty (30)
days after written notice of a material breach of this Agreement has been
provided by Kodak, as the non-breaching Party, to Maytag, Xxxxx and e-Vend. If
Kodak terminates this Agreement due to any material breach by either Maytag,
Xxxxx or e-Vend as stated in the previous sentence, then Kodak, in addition to
such other remedies as may be available under this Agreement, at law or in
equity or otherwise, shall have no liability to the nonbreaching Party. Maytag
and e-Vend may terminate this Agreement immediately if Kodak has not cured any
material breach of this Agreement within thirty (30) days after written notice
of a material breach of this Agreement has been provided by Maytag and eVend, as
the non-breaching Parties, to Kodak. Upon tennination of this Agreement by eVend
and Maytag in connection with an uncured material breach of this Agreement by
Kodak pursuant to the immediately preceding sentence, e-Vend shall be entitled
to recover from Kodak the net present value of the remaining balance due on the
leasing or financing on all activated and properly functioning Vending Systems
relating to this Agreement upon such termination, and e-Vend, Xxxxx and Maytag
shall have such other remedies as may be available under this Agreement, at law,
in equity or otherwise.
14.6 Any Party shall have the right to terminate this Agreement immediately
upon delivering to the p Party or its representatives written notice of such
tennination if any other Party: (a) becomes insolvent, or requests its creditors
for a moratorium, or enters into a general :assignment for the benefit of
creditors or an agreement of composition with its creditors, or suffers the
appointment of a temporary or permanent receiver, trustee or custodian for all,
or substantial part of its assets that is not dismissed within thirty (30) days;
or (b) files a voluntary petition for relief under Title 1 I of the United State
Code, as amended for time to time (the "Bankruptcy Code"), or if an Order for
Relief under the Bankruptcy Code is entered against it, or if a petition or
answer is tiled proposing entry of an Order for Relief under the Bankruptcy Code
(which pension or answer is not discharged or denied within sixty (60) days
after the filing thereof), or (c) commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to it or any such proceeding is commenced against
any Party which is not dismissed for a period of sixty (60) days.
18
15. WIND-DOWN PERIOD. In the event Kodak elects to continue the Vending
Program including payment of Slotting Fees during the Wind-down Period under
Sections 14.2 or 14.3, or if Slotting Fees are payable after the expiration or
termination of this Agreement under Section 4, then as to each Vending System
that is then installed, activated and functioning: (a) the Parties shall have
all applicable obligations and rights as if this Agreement was still in effect;
and (b) these rights and obligations with respect to a given Vending System
shall expire on the last day before the third (3rd) anniversary of the date the
Vending System was first installed.
16. ESCROW OF VENDING SYSTEMS, SOFTWARE, SOURCE CODES AND HARDWARE
EQUIPMENT.
16.1 To secure Maytag's guaranty of e-Vends performance under this
Agreement as set out in Section 39, and to induce Kodak to enter into this
Agreement, Maytag and e-Vend, as soon as practically possible, but no more than
thirty (30) days, time being of the essence, after the execution of this
Agreement, shall enter into an escrow agreement ("e-Vend Escrow Agreement")
substantially in the form attached as Schedule F to this Agreement and deliver a
copy to Kodak, and shall deposit with the Escrow Agent the Escrow Property as
defined in the e-Vend Escrow Agreement. Failure to timely execute the e-Vend
Escrow Agreement shall entitle any Party to terminate this Agreement. The e
-Vend Escrow Agreement shall be maintained for Maytag's and Kodak's benefit
until the last to occur of the expiration or termination of this Agreement, or
the end of any Wind-down Period.
16.2 In the event e-Vend (a) becomes insolvent, or requests its creditors
for a moratorium, or enters into a general assignment for the benefit of
creditors or an agreement of composition with its creditors, or suffers the
appointment of a temporary or permanent receiver, trustee or custodian for all
or substantial part of its assets that is not dismissed within thirty (30) days;
or (b) files a voluntary petition for relief under Title 11 of the Bankruptcy
Code, or if an Order for Relief under the Bankruptcy Codes entered against it,
or if a petition or answer is filed proposing entry of an Order for Relief under
the Bankruptcy (which petition or answer is not discharged or denied within
sixty (60) days after the filing thereof; or (c) commences any other proceeding
under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to it or any such proceeding is
commenced against e-Vend which is not dismissed for a period of sixty (60) days,
then Escrow Agent (as defined) shall release and distribute the Escrow property
to Maytag as set out, and in accordance with, the e-Vend Escrow Agreement e-Vend
shall also deliver into escrow assignments of e-vend's rights, title and
interest in and to the Escrow Property, exclusive of the e-Vend Software and
Sourcecodes. Title to the e-Vend Software and Sourcecodes, as defined in the
e-Vend Escrow Agreement, shall remain vested in e-Vend. However, Maytag, under
non-exclusive license from e-Vend, and if so directed by Kodak, will be entitled
to use the eVend Software to perform and complete the obligations of e-Vend
and/or Maytag under this Agreement on all activated and properly functioning
Vending Systems at the time of
19
release of e-Vend Software by Escrow Agent as contemplated by this Agreement.
The license to the e-Vend Software granted to Maytag under this Agreement will
continue until the last to occur of three (3) years beyond the termination or
expiration of this Agreement, or for so long as Kodak pays, and is obligated to
pay, Slotting Fees under this Agreement.
17. INDEMNIFICATION.
17.1 e-Vend shall defend, indemnify and hold Kodak, Maytag, Xxxxx and the
Target Locations harmless from and against any and all losses, damages,
liabilities, claims, demands, lawsuits and expenses, including court costs and
reasonable attorney's fees ("Claims") arising out of an allegation that personal
injury or property damage was caused by the e-Vend System (as defined in the
Recitals above), or by eVend's packaging of the Kodak Merchandise discussed in
Section 10.1 above, to any third party, or an allegation of any infringement by
the e-Vend System (exclusive of content furnished by Kodak) of any patent,
copyright, trademark, service xxxx, right of privacy or publicity or any other
intellectual property rights of a third party. If such an infringement claim is
asserted, or if Kodak, Xxxxx and/or Maytag believes one likely, eVend shall have
the right, but no obligation, to procure a license from the party claiming or
likely to claim infringement. Notwithstanding the foregoing, e-Vend has no
responsibility to defend, indemnify or hold Maytag, Xxxxx and/or Kodak harmless
from and against any Claims of whatever nature arising out of personal injury or
property damage caused by Maytag, Xxxxx or Kodak or their employees or agents.
17.2 Maytag shall defend, indemnify and hold e-Vend, Kodak and the Target
Locations harmless from and against any and all Claims arising out of an that
personal injury or property damage was caused by any Vending Systems (exclusive
of the e-Vend System or Claims caused by e-Vends packaging of the Kodak
Merchandise discussed in Section 10.1 above), to any third party, or an
allegation of any infringement by the Vending Systems (exclusive of the e-Vend
System and Kodak Merchandise furnished by Kodak) of any patent, copyright,
trademark, service xxxx, right of privacy or publicity or any other intellectual
property rights of a third party. If such an infringement claim is asserted, or
if Kodak and/or e-Vend believes one likely, Maytag and Xxxxx shall have the
right, but no obligation, to procure a license from the party claiming or likely
to claim infringement. Notwithstanding the foregoing, Maytag and Xxxxx have no
responsibility to defend, indemnify or hold e-Vend and/or Kodak harmless from
and against any Claims of whatever nature arising out of personal injury or
property damage caused by Kodak of its employee of agents
17.3 Kodak shall defend, indemnify and hold e-Vend, Maytag. Xxxxx and the
Target Locations harmless from and against an%: and all Claims arising out of
any allegation that the Kodak Merchandise cause personal injury or property
damage to any third party, and/or an allegation that the artwork, graphics,
images, text or other content furnished by Kodak, contained in or included on
the Kodak Merchandise, any Kodak approved promotional materials for the Vending
Program provided by Kodak, including
20
product can labels and DURATRANS display materials, infringe any design patent,
copyright, trademark, service xxxx, right of privacy or publicity or any other
intellectual property rights of a third party. If such an infringement claim is
asserted, or if Maytag, Xxxxx and/or e-Vend believes one likely, Kodak shall
have the right, but no obligation, to procure a license from the party claiming
or likely to claim infringement. Notwithstanding the foregoing, Kodak has no
responsibility to defend, indemnify or hold e-Vend, Xxxxx and/or Maytag harmless
from and against any Claims of whatever nature arising out of personal injury or
property damage caused by e-Vend, Xxxxx or Maytag or their respective employees
or agents.
17.4 Maytag, Xxxxx and/or e-Vend shall be responsible for getting
permission to place Vending Systems in Target Locations through the Placement
Agreements, and shall defend, indemnify and hold Kodak harmless from and against
any and all Claims arising out of an allegation for trespass arising out of any
acts or omissions of e-Vend, Xxxxx or Maytag or by any other person or entity
other than Kodak in connection with the performance or fulfillment of this
Agreement. In addition, if e-Vend is not performing or fulfilling its
obligations under this Agreement, and Kodak needs to perfonn such duties, then
e-Vend shall defend, indemnify and hold Kodak harmless from and against any and
all Claims arising out of an allegation for trespass arising out of any acts or
omissions in connection with the performance or fulfillment of e-Vends or
Maytag's obligations under this Agreement.
17.5 The foregoing rights of indemnification shall be conditioned on the
indemnified Party (i) furnishing prbmpt notification of any claim subject to
indemnity to the indemnifying Party; (ii) permitting the indemnifying Party to
control the defense and settlement of any third-party claim or action, provided
that the indemnified Party shall have the tight to approve any such settlement,
which approval shall not be unreasonably withheld; and (iii) cooperating in the
defense by the indemnifying Party at the indemnifying Party's expense.
17.6 The indemnifying Party will have no obligation with respect to any
claim based upon any modification of the Vending Systems or Kodak Merchandise or
the use or sale of Vending Systems or Kodak Merchandise in combination with
products or components not furnished by the indemnifying Party or if the claim
would not have occurred but for such modification, use or sale.
17.7 The indemnification provisions provided by each Party in this Section
17 of the other Parties shall include each Party's officers, directors, and
shareholders, and shall include the costs, expenses and reasonable attorneys
fees incurred by the Party being indemnified as a result of the assertion
orprotection of any indemnified claim.
18. EXCLUSION OF CONSEQUENTIAL DAMAGES. - NO PARTY, UNDER ANY
CIRCUMSTANCES, SHALL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL (INCLUDING,
WITHOUT LIMITATION, LOST PROFITS
21
AND ECONOMIC DAMAGES), INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN,
EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES
OCCURRING.
19. PROPRIETARY RIGHTS.
19.1 e-Vend advises that it has proprietary rights in its packaging and
vending technology, e-Vend System, network and related hardware and software,
and service xxxx or trademark rights in the marks "e-Vend", "x-Xxxx.xxx" and
"Powered by x-Xxxx.xxx", exclusive ownership of which shall remain with e-Vend.
No interest in any such rights e-Vend may have, including any associated
goodwill, shall be transferred to or acquired by Kodak through the execution and
performance of this Agreement.
19.2 The Kodak Merchandise may bear one or more Kodak trademarks in its
product names ("Kodak Marks"). e-Vend, Xxxxx and Maytag may not remove, alter,
or otherwise modify or conceal any Kodak Marks on the Kodak Merchandise. Subject
to Kodak's prior written approval, which may be granted or withheld in Kodak's
sole and absolute discretion, e-Vend, Xxxxx and Maytag, during the Term of this
Agreement and any Wind-down Period only, may use the Kodak Marks on Vending
Systems subject to this Agreement or in advertising but only where the
advertising directly refers to the Kodak Vending Systems or Kodak Merchandise or
states the fact that e-Vend, Xxxxx and Maytag are distributors of such Kodak
Merchandise and only in accordance with such terms and conditions as Kodak from
time to time may establish. e-Vend, Xxxxx and MAytag are not authorized to use
any other Kodak Marks, including, without limitation, the name Kodak or any
Kodak corporate symbol at any other time or for any other purpose. Kodak retains
all rights in the Kodak Marks. e-Vend, Xxxxx and Maytag recognize the great
value of the publicity and goodwill associated with the Kodak Marks and
acknowledges that such goodwill exclusively accrues to the benefit of and
belongs to Kodak. e-Vend, Xxxxx and Maytag have no rights of any kind whatsoever
with respect to the Kodak Marks. e-Vend, Xxxxx and Maytag may not use the Kodak
Marks on or in connection with any goods or services (including but not limited
to promotional and merchandising items such as key chains, mugs and T-shirts)
other than the Kodak Merchandise, except as preapproved in writing by Kodak.
20. TAXES. e-Vend shall be responsible for collecting and paying any and
all applicable state and federal sales taxes arising from the sale of Kodak
Merchandise from Vending Systems and shall indeninifv and hold harmless Kodak
against any claims, damages, losses or liabilities, including reasonable
attorneys fees, resulting from e-Vends failure to do so. To the extent that a
single sales or similar tax pertaining to e-Vends purchase or lease of Vending
Systems or with respect to Slotting Fees on those Vending Systems is imposed,
e-Vend shall be responsible for such tax and shall indemnify and hold Kodak
harmless against the same. In the event more than one separate sales or similar
tax is imposed with respect to e-Vends purchase or lease of Vending Systems and
the Slotting Fees with respect to those Vending Systems, one
22
against e-Vend with respect to its purchase or lease of the Vending Systems and
the other against Kodak with respect to Slotting Fees, Kodak and e-Vend shall
each be responsible for fifty percent (50%) of any such tax which is imposed
with respect to Slotting Fees only. Either Party may from time to time, at its
option, challenge the imposition of any such second-tier tax. In the event Kodak
and/or e-Vend challenge(s) the imposition of any sales or similar tax, each
shall be solely responsible for its costs or expenses, including reasonable
attorneys' fees, that it incurs in connection with such challenge ("Challenge
Costs"), and neither party shall have any responsibility for the other's
Challenge Costs.
21. RIGHT TO AUDIT. Kodak shall have the right to perform any factory,
field; accounting or other audit in connection with this Agreement.
22. PUBLICITY. The Parties agree to cooperate in issuing a joint press
release announcing the strategic alliance formed by this Agreement and the
national roll out of the Vending Program after the execution of this Agreement
in a form that is acceptable to all Parties. All press releases announcing this
Agreement and the national roll out of the Vending Program must be approved in
final form by all Parties. Except as otherwise required by law or in accordance
with good faith or advice by legal counsel, for so long as this Agreement is in
effect, none of the Parties shall issue or cause the publication of any press
release or other public announcement with respect to the subject matter of this
Agreement without the express prior written approval of the other Parties as to
form, content, medium and all other aspects of the press or media. Without the
prior written consent of Maytag, Kodak or e-Vend, as the case may be, none of
the Parties shall use the others' names or arty confusingly similar variations
thereof, in any marketing materials, product descriptions, point-of-purchase
materials, or annual or periodic reports, or otherwise. Such approval and
consent, if granted, will be at the sole and absolute discretion of the granting
Party, on such terms and conditions as the granting Party from time to time may
establish.
23. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants to
the others, that:
(a) it is a corporation duly incorporated and validly existing and in good
standing under the laws of the states of New Jersey or Delaware, as applicable;
(b) it has full requisite corporate right. power and authority to execute,
deliver anal enter into this Agreement and perform its obligations under each of
this Agreement
(c) it is duly licensed, authorized or qualified 10 den business and is in
good standing in every jurisdiction in which a license, authorization or
qualification is required for the ownership or leasing of its assets or the
transaction of business of the character transacted by it, except where the
failure to be so licensed, authorized or
23
qualified would not have a material adverse effect on the Party's ability to
fulfill its obligations under this Agreement;
(d) its execution, delivery and performance of this Agreement do not (i)
contravene or constitute a default under any contractual restriction binding on
or affecting it or any of its properties or certificate of incorporation or
by-laws or (ii) to the best of its knowledge, require any consent, pennit or
approval of any U.S. governmental agency or authority;
(e) this Agreement has been duly executed and delivered by it and is a
legal, valid and binding obligation thereof enforceable against it in accordance
with its terms; and
(f) to the best of its knowledge, there are no claims, judgments or
settlements binding on it or any of its affiliates, or pending or threatened
claims or litigation against it or any of its affiliates, which would prevent or
impede its performance under this Agreement.
24. CONFIDENTIALITY.
24.1 During the performance of each Party's respective obligations under
this Agreement, each Party may come to have knowledge of certain confidential
information relating to the other Party's business, financial matters and/or
trade secrets, which shall be deemed to include the tenns of this Agreement
("Confidential Information"). All quantities, prices, forecasts, specifications,
product planning information and delivery information shall also be deemed
Confidential Information and shall be kept strictly confidential by all Parties.
In no event shall any Party disclose the Confidential Information of any other
Party to any third party without the prior written "consent of the owner of the
Confidential Information, which consent may be conditioned upon the agreement of
the third party to maintain the confidentiality of the information. Confidential
Information shall not include information that: (i) was known to the recipient
prior to disclosure; (ii) was independently developed by recipient without use
of or reference to confidential information of another party; (iii) was
disclosed to recipient by a third party without any violation of a
confidentiality agreement to the best of recipient's knowledge; or (iv) is
generally available to the public. Each Party shall be responsible for any
brcach of this provision by its employees and shall notify all relevant
employees and agents of the confidentiality obligations set forth herein.
Notwithstanding anything contained herein to the contrary it .hall not he ;l
breach of this provision for any party to disclose such information required to
be disclosed in connection with an adminsitrative regulatory or judicial
processs or proceeding provided, however, that prompt notice to the
non-disclosing Party is given of tile possibility of such disclosure and that
tile Party which may be compelled to disclose shall use its reasonable best
efforts to resist disclosure.
24.2 Any Confidential Infonnation furnished by Kodak to e-Vend, Xxxxx
and/or Maytag shall be returned (to the extent it is in e-Vends, Dixie's and/or
24
Maytag's possession, custody or control) by e-Vend, Xxxxx and/or Maytag to Kodak
upon expiration or earlier termination of this Agreement. Any Confidential
Information furnished by e-Vend, Xxxxx and/or Maytag to Kodak shall be returned
(to the extent it is in Kodak's possession, custody or control) by Kodak to
e-Vend, Xxxxx and/or Maytag upon the expiration or earlier termination of this
Agreement. The Confidential Information shall be kept in a secure fashion in a
manner consistent with the treatment of confidential information within the
applicable Party so as to prevent disclosure to third parties. Internal
dissemination of the Confidential Information by the Parties shall be limited to
those of its employees whose duties justify a need to know the Confidential
Information, and such employees shall be obligated to comply with this Section
24.
25. NOTICES. All notices or other communications required or permitted
under this Agreement or given in connection herewith shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the Party to be
notified; (b) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient, if not, then on the next business day; (c) five
(5) days after having been sent by first-class registered or certified mail,
return receipt requested, postage prepaid; or (d) one (1) day after deposit with
a nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt; and shall be addressed as follows:
If to Maytag, to:
Maytag Corporation
000 Xxxx Xxxxxx Xxxxxx Xxxxx
X.X. Xxx 00
Xxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Maytag Corporation
000 Xxxx Xxxxxx Xxxxxx Xxxxx
X.X. Xxx 00 Xxxxxx, Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to Dixie, to:
Xxxxx-Narco, Inc.
One Xxxxx Xxxxx Xxxxxxxxx
X.X. Xxxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: 000-000-0000
25
With a copy to:
Maytag Corporation
000 Xxxx Xxxxxx Xxxxxx Xxxxx
X.X. Xxx 00 Xxxxxx, Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to Kodak, to:
Xxxxxxx Kodak Company
0 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Kodak Company
General Counsel Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
26
If to e-Vend, to:
x-Xxxx.xxx Corporation
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
26. DISPUTE RESOLUTION PROCEDURE
26.1 If, in the opinion of one Party, another Party has failed to comply
with the requirements of this Agreement, or to perform its obligations in a
satisfactory manner, then this dispute resolution procedure will be invoked. In
order to expedite the prompt resolution of any disputes which may arise
hereunder, all Parties agree that this dispute resolution procedure will be
employed prior to any Party availing itself of any legal remedies (except for
injunctive relief and the right to terminate this Agreement as provided in
Section 14 above) against another party.
26.2 The aggrieved party will provide the other Parties with a dispute
notice (the "Dispute Notice"), and the dispute will be referred to the initial
level representatives (the "Initial Level") identified in Schedule E. Maytag and
Xxxxx shall designate a single representative to represent the both of them at
this Initial Level and a single representative for the Mediation Level (as
defined in the next Section).
26.3 In the event a dispute has not been resolved at the Initial Level, or
a corrective plan of action has not been mutually agreed upon, within thirty
(30) calendar days of the giving of the Dispute Notice, then any Party may seek
resolution of the dispute at the mediation level (the "Mediation Level") by a
written notice to all of the other Parties (the "Mediation Notice"). At the
Mediation Level, each Party shall endeavor in good faith to resolve the dispute
by mediation administered by the American Arbitration Association under its
Commercial Mediation Rules before resorting to litigation or some other dispute
resolution procedure. The entire mediation proceeding shall be confidential and
all discussions, representations and statements made during the mediation, as
well as any communications, thoughts, impressions or notes of the mediator, will
be inadmissible and not subject to discovery in any future litigation,
arbitration or other proceeding. The Parties agree to use all reasonable efforts
to meet within fifteen (15) calendar days after the Mediation Notice to begin
mediation and to resolve tile dispute The Panics agree to participate in food
faith in the mediation to its conclusion as designated by the mediator
26.4 If the Parties are not successful in resolving the dispute through
mediation, or a corrective plan of action has not been agreed upon, the earlier
of sixty (60) days froth the date of the Dispute Notice or sixty (60) days from
the Mediation Notice, then any Party may commence litigation or other
proceedings in connection with the dispute, all rights being reserved.
27
27. GOVERNING LAW.
27.1 This Agreement shall be governed in all respects by the laws of the
State of New York as such laws are applied to agreements between New York
residents entered into and performed entirely in New York. Subject to the
provisions of Section 26 and the remainder of this Section 27, disputes may be
brought in any court with appropriate jurisdiction. Without limiting the
foregoing, each Party irrevocably consents to the jurisdiction of the state
courts of New York and the United States District Court for the Eastern District
of New York with respect to all matters arising from this Agreement, for that
limited purpose only, and each Party waives any objections to venue in such
courts and agrees that process may be served in the manner provided herein for
giving of notices or otherwise as allowed by the applicable court; provided,
however, that each Party agrees not to commence any action, suit or proceeding
in state court unless the United States District Court for the Eastern District
of New York lacks subject matter jurisdiction with respect to the dispute or
otherwise is unable to hear the matter.
27.2 Each Party agrees to comply with all applicable laws, rules and
regulations in the performance of its obligations under this Agreement
28. INDEPENDENT CONTRACTORS. Each Party to this Agreement is, and at all
times will remain, an independent contractor and no Party shall represent itself
to be the agent, joint venturer, or partner of another Party hereto or, except
for Xxxxx and Maytag, to be related, to any other Party. No representations
shall be made or acts done by any Party which would establish any apparent
relationship of agency, joint venture, or partnership ' No employer-employee
relationship or agent-principal relationship shall be deemed created by this
Agreement. Maytag, Xxxxx and e-Vend are not authorized to enter into any
agreements or contracts of any kind, including the Placement Agreements, on
behalf of Kodak and they are not authorized to bind Kodak in any manner. Kodak
is not authorized to enter into any agreements or contracts of any kind,
including the Placement Agreements, on behalf of e-Vend, Xxxxx and/or Maytag,
and Kodak is not authorized to bind e-Vend, Xxxxx and/or Maytag in any manner.
29. SUCCESSORS AND ASSIGNS.
29.1 Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors and assigns
of the Parties hereto. This Agreement shall be Iii full force and effect,
provided that such successors and assigns have camparable expertise and net
worth to the Parties of this Agreement upon Ow occurrence of (i) ::n initial
public offering or public sale of additional shares of any [)arty',, or their
,subsidiaries' Stick (as applicable); (ii) a change of control event (including,
but not limited to, an acquisition of any Party); or (iii) other sale,
acquisition or merger of any Party.
29.2 Except as otherwise provided herein, the rights and obligations of the
Parties hereunder shall neither be assigned nor delegated without the prior
written
28
consent of the other Parties, provided that any Party may assign or delegate
their respective rights and obligations hereunder, in whole or in part, to any
parent or subsidiary or affiliate of e-Vend, Maytag or Kodak in existence at the
time of execution of this Agreement, upon prior written notice to the other
Parties. Such assignment shall not diminish any rights or duties that e-Vend,
Xxxxx, Maytag or Kodak may have had prior to the effective date of assignment.
30. AMENDMENT AND WAIVER.
30.1 This Agreement may be amended or modified with respect to the rights
or obligations of a particular party only upon the written consent of that
Party.
30.2 The obligations of a Party under this Agreement may be-waived only
with the written consent of each of the other Parties and the rights of a Party
under this Agreement may be waived only by the written consent of that Party.
31. DELAYS OR OMISSIONS. It is agreed that no delay or omission to exercise
any right, power or remedy accruing to any Party, upon any breach, default or
noncompliance by another Party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any such breach,
default or noncompliance, or any acquiescence therein, or of or in any similar
breach, default or noncompliance thereafter occurring. It is further agreed that
any waiver, permit, consent or approval of any kind or character by a Party of
any breach, default or noncompliance under this Agreement or any waiver on such
Party's part of any provisions or conditions of this Agreement must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, by law, or otherwise
afforded to any Party, shall be cumulative and not alternative.
32. FORCE MAJEURE. Except for payments due under this Agreement, none of
the Parties will be responsible for any failure to perform due to causes beyond
its reasonable control, including but not limited to acts of God, war, riot,
embargoes, acts of civil or military authorities, fire, floods, earthquakes,
accidents, strikes, mechanical failure, or fuel crises, provided that such Party
gives prompt written notice thereof to the other Parties.
33. SEVERABILITY. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of' tile
remianing provisions shall not in any way be affected or impaired thereby.
34. SURVIVAL Only those obligations under Sections 16, 19 and 24 of this
Agreement, the obligation that e-Vend, Xxxxx and/or Maytag shall stop using the
Kodak Marks as stated in Section 19.2, and the obligation to continue certain
Slotting Fee payments for a period of time under Section 4, shall survive the
expiration or termination of this Agreement, except that in the event of a
Wind-down Period under Sections 14.2 or 14.3 or the continuation of certain
Slotting Fee payments under Section 4, the provisions
29
of Section 15 shall control and survive the termination of this Agreement. No
other obligations under this Agreement shall survive the expiration or
termination of this Agreement.
35. SCHEDULES. The provisions of all of the Schedules described herein and
attached hereto are hereby deemed fully incorporated into this Agreement by
reference herein. This Agreement and the attached Schedules constitute the full
and entire understanding and agreement among the Parties with regard to the
subjects hereof and no Party shall be liable or bound to any other in any manner
by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
36. TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience or reference only and are not to be
considered in construing this Agreement.
37. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
38. TIME OF THE ESSENCE. Unless otherwise expressly provided herein, where
there are deadlines mentioned in this Agreement, time is of the essence.
39. CROSS GUARANTY.
39.1 Maytag and e-Vend each guarantees the performance of the other in this
Agreement as if the duty of the performance under this Agreement were each of
its own. Without limiting the foregoing, Maytag shall be responsible for all
payments and sums due from e-Vend to Kodak, and e-Vend shall be responsible for
payments and sums due from Maytag to Kodak. Kodak shall be able to enforce the
obligations of Maytag and e-Vend under this Agreement against Maytag or e-Vend
or both. Maytag also guarantees the performance of Xxxxx in this Agreement as if
Dixie's duty of performance under this Agreement were its own. Kodak shall be
able to enforce the obligations of Xxxxx under this Agreement against either
Maytag or Xxxxx or both.
39.2 In the event that Kodak, up to and including the installation and
activation of the first five hundred (500) Vending Systems, wishes to exercise
its rights under Section 39.1 against Maytag in connection with a failure by
c-Vend or Xxxxx 14) Perform their respective obligations under- this Agreement,
or against c Vcnd III connection with a failure by Maytag or Xxxxx to perform
their respective: obligation under this Agreement, it shall provide Maytag,
Xxxxx and e-Vend with written notice of' such exercise: (a) of at least five (5)
days in advance with respect to any monetary failure or non-monetary failures
which substantially prevent the operation or supply of more than twenty percent
(20%) of the Vending Systems then in place; or (b) at least fifteen (15) days in
advance with respect to any other non-monetary failures (the "Other Failures").
30
Notwithstanding the foregoing, the Vending Systems cure requirements of Section
13.2 and 13.4 are still applicable.
39.3 In the event that Kodak, after the installation and activation date of
the five hundredth (500th) Vending Systems but before installation and
activation of the Gate 2 Quantity (as defined in Section 14.2), wishes to
exercise its rights under Section 39.1 against Maytag in connection with a
failure by e-Vend or Xxxxx to perform their respective obligations under this
Agreement, or against e-Vend in connection with a failure by Maytag or Xxxxx to
perform their respective obligations under this Agreement, it shall provide
Maytag, Xxxxx and e-Vend with written notice of such exercise: (a) of at least
five (5) days in advance with respect to any monetary failure or non-monetary
failures which substantially prevent the operation or supply of more than
fifteen percent (15%) of the Vending Systems then in place; or (b) at least
fifteen (15) days in advance with respect to any Other Failures. Notwithstanding
the foregoing, the Vending Systems cure requirements of Section 13.2 and 13.4
are still applicable.
39.4 In the event that Kodak, after the installation and activation of the
Gate 2 Quantity of Vending Systems but before the expiration or earlier
termination of this Agreement (up to a maximum cumulative total of ten thousand
(10,000) Vending Systems), wishes to exercise its rights under Section 39.1
against Maytag in connection with a failure by e-Vend or Xxxxx to perform their
respective obligations under this Agreement, or against e-Vend in connection
with a failure by Maytag or Xxxxx to perform their respective obligations under
this Agreement, it shall provide Maytag, Xxxxx and eVend with written notice of
such exercise: (a) of at least five (5) days in advance with respect to any
monetary failure or non-monetary failures which substantially prevent the
operation or supply of more than one percent (1 %) of the Vending Systems then
in place; or (b) at", least fifteen (15) days in advance with respect to any
Other Failures. Notwithstanding the foregoing, the Vending Systems cure
requirements of Section 13.2 and 13.4 are still applicable.
39.5 Notwithstanding the foregoing provisions in Sections 39.2, 39.3 and
39.4, if any Other Failures cannot reasonably be cured within the fifteen (15)
day period, then provided the required Party commences to cure the Other
Failures within the initial fifteen (15) days, and thereafter diligently
prosecutes the cure to completion, tile tirne to cure the Other Failures (and
the corresponding minimum advance notice to the guarantor) will be extended to
such time as reasonably may be necessary to cure same, not to exceed thirty (30)
days.
39.6 If (i) MAytag and e-Vend received notice of any failure of e-Vend to
pert-01111 its obligations under this Agreement pursuant to Sections 39.2, 39.3
or 39.4, which failure has not been cured within tile notice period provided for
above, and (ii) Maytag notifies Kodak in writing to snake all further payments
to e-Vend under this Agreement directly to Maytag (the "Payment Direction
Notice"), then, from five (5) days after the date of the Payment Direction
Notice, Kodak will pay directly to Maytag any and all sums due or amounts
otherwise owing from Kodak to e-Vend under this
31
Agreement (other than any payments already processed and sent by Kodak to
e-Vend), and e-Vend hereby expressly consents to such payment. Such obligation
of Kodak shall terminate five (5) days after receipt from Maytag of written
notice rescinding the Payment Direction Notice and Kodak shall resume making all
further payments (other than any payments already processed and sent by Kodak to
Maytag) under this Agreement to e-Vend. Kodak's compliance with the foregoing,
if properly elected by Maytag, is an express condition to Maytag's obligation to
perform the obligations of eVend under this Section 39. Kodak is hereby
irrevocably authorized and directed to pay the Slotting Fees to Maytag as set
out in this Section as full satisfaction of Kodak's obligations to pay Slotting
Fees under this Agreement.
32
40. ENTIRE AGREEMENT.
40.1 Each Party acknowledges that no representation. statement,
understanding, or agreement has been made other than what is expressly set forth
in this Agreement. No Party has relied on anything done or said with respect to
this Agreement, its duration, termination, renewal or with respect to the
relationship between the Parties, other than what is expressly set forth in this
Agreement. All Parties agree that there are no other representations or
understandings which change or modify the terms of this Agreement to prevent
this Agreement from becoming effective as written, or that in any way affects or
relates to the subject matter hereof. Maytag and e-Vend also acknowledge that
the terms and conditions of this Agreement are fair and reasonable.
40.2 This Agreement terminates and supersedes any prior agreements,
including the Previous Agreement, between the Parties. '
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date set forth in the first paragraph hereof.
XXXXXXX KODAK COMPANY
BY:
----------------------------------
`
Name:
----------------------------------
Title:
----------------------------------
MAYTAG CORPORATION
By:
----------------------------------
`
Name:
----------------------------------
Title:
----------------------------------
X-XXXX.XXX CORPORATION
----------------------------------
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
XXXXX-NARCO, INC.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
32
40. ENTIRE AGREEMENT.
40.1 Each Party acknowledges that no representation, statement,
understanding, or agreement has been made other than what is expressly set forth
in this Agreement. No Party has relied on anything done or said with respect to
this Agreement, its duration, termination, renewal or with respect to the
relationship between the Parties, other than what is expressly set forth in this
Agreement. All Parties agree that there are no other representations or
understandings which change or modify the terns of this Agreement to prevent
this Agreement from becoming effective as written, or that in any way affects or
relates to the subject matter hereof. Maytag and e-Vend also acknowledge that
the terms and conditions of this Agreement are fair and reasonable.
40.2 This Agreement terminates and supersedes any prior agreements,
including the Previous Agreement, between the Parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date set forth in the first paragraph hereof.
XXXXXXX KODAK COMP NY
BY:
----------------------------------
`
Name:
----------------------------------
Title:
----------------------------------
MAYTAG CORPORATION
By:
----------------------------------
`
Name:
----------------------------------
Title:
----------------------------------
X-XXXX.XXX CORPORATION
----------------------------------
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
XXXXX-NARCO, INC.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
33
Schedule A
Vending Program Installations per Approval "Gate"
-------------------------------------------------
and
---
e-Vend Monthly Slotting Fee Pavment Schedule
--------------------------------------------
per Connected and Functioning Vending Svstems
---------------------------------------------
Number of Activated Vending Monthly Slotting Fees
Systems per Approval "Gate" Per Vending Systems
Gate 1: Up to 500 Units $150.00
Gate 2: An Additional 500 - 1,500 Units $150.00
Gate 3: Up to 10,000 Cumulative Total To Be Re-evaluated/
Negotiated***
*** Kodak and Maytag/e-Vend shall negotiate the terms of this Agreement when
Kodak has made such determination to continue with the Vending Systems placement
program.
A-1
Schedule B
e-Vend Standard Placement Agreement (attached)
----------------------------------------------
B-1
VENDING SYSTEM PLACEMENT AGREEMENT
----------------------------------
THIS VENDING SYSTEM PLACEMENT AGREEMENT, dated this ______________ day
of____________ 2000, is between x-Xxxx.xxx Corporation, having an address at 000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx, XX 00000 ("E-VEND") and , having an address
at________________ (the "Company").
E-VEND is engaged in the business of installing, operating and maintaining
a network of credit card operated vending systems ("Vending Systems") which
dispense Kodak T" photographic and imaging products, processes and services
("Merchandise") from Vending Systems.
The Company owns or otherwise has the right to occupy the location or
locations identified on Schedule One attached to and made a part of this
Agreement (a "Location," and if more than one, the "Locations").
E-VEND, alone, is responsible and liable for its obligations and
commitments under this Agreement including the installation, operation and
maintenance of the Vending Systems at each Location, and the Company shall look
exclusively to E-VEND for the performance of same.
The Company and E-VEND wish to confirm their agreement under which E-VEND
will install and maintain Vending Systems offering Merchandise at the Locations.
In consideration of the mutual promises contained herein, and for other
good and valuable consideration, the parties, intending to be legally bound,
hereby agree as follows:
1. Recitals Incorporated. The foregoing recitals are incorporated into this
Agreement.
2. Installation of `Vending Svstems. Subject to the terms and conditions of
this Agreement, the Company hereby grants to E-VEND, and it designees, a
nonexclusive license and tight to enter onto each Location to install, repair,
maintain and replace at each Location a Vending System stocked with Merchandise
and /or the Merchandise for the term set forth on Schedule One. The Company
shall furnish and provide adequate space and facilities for the installation,
operation and maintenance of Vending Systems without hindrance. Promptly after
execution of this Agreement, the Company shall designate managers of each
Location who shall consult with a representative of E-VEND to identify
appropriate space within Locations for the installation of Vending Systems. Each
Vending System requires a standard phone xxxx and phone line and standard 1 110V
electrical line and outlet, the costs of installation and maintenance of which
shall be borne by the Company. In designating space for Vending Systems, the
parties shall seek to place Vending Systems in areas with high foot traffic,
visibility and convenient customer access to the Vending System, without undue
interference with the Company's operations or traffic flow, while also seeking
to minimize phone and electrical line installation costs.
3. Company Stocking Semices. Should the Company elect to do so on Schedule
One to this Agreement, the Company shall be responsible for Stocking and
restocking Vending Systems in accordance with Evend's instruction during the
term of this Agreement E-VEND representatives shall provide any necessary
training concerning its stocking requirements to managers of the Locations and
shall provide tire managed of each Location with a key to the Vending machine.
The parties anticipate that stocking service requirement shall he similar to
those requirement tit stock a beverage vending machine. Stocking service will
essentially consist of receiving Merchandise from E-VEND, stocking that
Merchandise into the appropriate columns in the Vending System in accordance
with E-VEND's instructions, reporting to E-VEND concerning inventory received
and stocked, occasionally installing promotion-specific posters on the front of
the Vending System using tape or other adhesive provided by EVEND, and
occasionally removing from the Vending Systems and shipping (at E-VEND's
expense) obsolete inventory in accordance with E-VEND's instructions. The
Merchandise may bear one or more
B-2
Kodak""' trademarks in its product names ("Kodak Marks"). E-VEND and the Company
may not remove, alter, or otherwise modify or conceal any Kodak Marks on the
Merchandise. E-VEND and the Company may not use the Kodak Marks on or in
connection with any goods or services (including but not limited to promotional
and merchandising items such as key chains, mugs and T-shirts) other than the
Merchandise, except as preapproved in writing by the Xxxxxxx Kodak Company.
4. Company Commissions. In consideration of the Company's grant of rights
and services provided under this Agreement, if the Company has elected to
provide Stocking services under Paragraph 3 of the Agreement, E-VEND shall pay
to the Company commissions equal to twenty percent (20%) of E-VEND's net
revenues from the Vending Systems during the term of this Agreement; otherwise,
if the Company has elected not to provide stocking services, E-VEND shall pay to
the Company commissions equal to fifteen percent (15%) of E-VEND's net revenues
from the Vending Systems during the term of this Agreement. Net revenues shall
mean E-VEND's gross revenues from the sale of Merchandise from the Vending
Systems at the Location or Locations, less sales or similar taxes and less
returns. Commissions shall be payable within thirty (30) days after each
calendar quarter in which net revenues are received by E-VEND during the term.
Each commission payment to the Company shall be accompanied by a report which
shows E-VEND's gross revenue from each Vending System, all adjustments to gross
revenue to arrive at net revenue, and the calculation of the Company's
commission based on net revenue for the calendar quarter. In the event E-VEND
pays commissions on Merchandise which is returned in a subsequent period, E-VEND
shall be entitled to full credit for the commissions paid with respect to the
returned Merchandise, which E-VEND may apply against any balance due to the
Company, or if no balance is due, invoice the Company for the amount of the
credit, in which event the Company shall issue a check to E-VEND within thirty
(30) days of receipt of E-VEND's invoice. No commissions shall be due in
connection with promotional (free of charge to consumers) distribution of
Merchandise from Vending Systems.
5. Customer Service. E-VEND will provide product technical assistance and
customer service, which shall include the maintenance of a twenty-four hour per
day, seven days per week toll-free customer service telephone line, 'to
purchasers of Merchandise from the Vending Systems. EVEND will be responsible
for Handling customer returns and the Location agrees to refer any customer
return requests to E-VEND.
6. Term. The initial tern of this Agreement shall be as specified on
Schedule One and shall continue thereafter for additional one year periods on
the same terms and conditions unless either party provides written notice of
termination to the other at least 30 days prior to the expiration of the initial
term or any renewal term. In addition, any renewal term automatically shall
terminate on the expiration or termination of E-VEND's underlying agreement with
the Xxxxxxx Kodak Company.
7. Title to Machines. Title to each Vending System placed by E-VEND shall
at all times be and remain exclusively with E-VEND and the Company agrees it
will take no action detrimental to E-VEND with respect thereto and shall not
assert any claim or interest therein. E-VEND may change, service, modify,
access, replace or remove the Vending Systems at any time during the terra of
this Agreement.
8. Indemnification. e-Vend shall defend, indemnify and hold the Company
harmless from and against any and all losses, damages, liabilities, claim,
demand,, lawsuits and expenses, including, court costs and reasonable attorney's
fees ("Claims") arising out of any causes of action or claims that the Vending
Systems or products dispensed therefrom causc personal injury or property damage
to any third party or any causes of action or claims that the Vending Systems or
products infringe any patent, copyright. trademark, service xxxx, right of
privacy or publicity or any other intellectual property rights of a third party.
The foregoing rights of indemnification shall be conditioned on the Company (i)
furnishing prompt notification of any claim subject to indemnity to E-VEND; (ii)
permitting E-VEND to control die defense and settlement of any third-party claim
or action; and (iii) cooperating in the defense by E-VEND at E-VEND's expense.
B-3
9. Insurance. E-VEND shall maintain throughout the term of this Agreement,
at its sole cost and expense, a commercial general liability insurance policy,
including product liability and personal injury and property damage liability,
from a qualified insurance company approved by the Company which names the
Company as an additional insured. The amount of coverage shall be a minimum of
One Million Dollars ($1,000,000) per occurrence. E-VEND shall provide to the
Company certificates of insurance issued by die company or companies providing
such insurance protection evidencing that such coverage is in full force and
effect and providing that no such insurance may be canceled without at least 10
days' written notice to the Company at the Company's address provided above.
10. Exclusion Of Consequential Damages. NEITHER PARTY SHALL, UNDER ANY
CIRCUMSTANCES, BE LIABLE TO THE OTHER FOR CONSEQUENTIAL (INCLUDING, WITHOUT
LIMITATION, LOST PROFITS), INCIDENTAL, INDIRECT OR SPECIAL DAMAGES ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, EVEN IF
SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
11. Confidentiality. During the performance of each party's respective
obligations hereunder, each party may come to have knowledge of certain
confidential information relating to the other party's business, financial
matters and/or trade secrets, which shall be deemed to include the terms of this
Agreement. Each party agrees that it will not use the other party's confidential
information for any purpose except as consistent with the performance of this
Agreement and further agrees that it will not disclose any such confidential
information to any person except on a need-to-know basis in order to fulfill its
obligations hereunder. In no event shall either party disclose the confidential
information of the other party to any third party without the prior written
consent of the other party, which consent may be conditioned upon the agreement
of the third party to maintain the confidentiality of the information.
Confidential information shall not include information that: (i) was known to
the recipient prior to disclosure; (ii) was independently developed by the
recipient without use of or reference to confidential information of the other
party; (iii) was disclosed to recipient by a third party without any violation
of a confidentiality agreement to the best of recipient's knowledge; or (iv) is
generally available to the public. Each party shall be responsible for any
breach of this provision by its employees and shall notify all employees and
agents of the confidentiality obligations set forth herein. Notwithstanding
anything contained herein to the contrary, it shall not be a breach of this
provision for either party to disclose such information required to be disclosed
in connection with an administrative, regulatory or judicial process or
proceeding; provided, however, that prompt notice to the non-disclosing party is
given of the possibility of such disclosure and that the party which may be
compelled to disclose shall use its reasonable best efforts to resist
disclosure.
12. Notices. All notices, payments, or deliveries called for by this
Agreement shall be deemed sufficient upon actual delivery to the respective
address of each party set forth above or upon mailing by registered or certified
mail, return receipt requested to such address, or to such other address as a
party may designate in writing from time to time.
13. Independent Contractors. The parties to this Agreement are independent
contractors and this Agreement shall not create or imply any agency relationship
between the parties, nor ;hall this Agreement constitute a joint venture or
partnership between the parties.
14. Assignment the rights of either xxxxx under tins Agreement may be
assigned in whole or in part, by either pany without tile prior Written consent
of tile other, provided that tile Company _ may not, through assignment or
otherwise, change any Location without E-VEND's prior written consent, which may
be granted or withheld in E-VEND's sole and absolute discretion. This Agreement
shall inure to the benefit of and be binding upon, and enforceable against, the
parties hereto and their respective successors and assigns. Any assignment
contrary to the terms hereof shall be null and void and of no force or effect.
Any assignee of the Company must have a sufficient interest in the real property
on, and adjacent to the site on, which the Vending System is located to permit
the full and proper performance of this Agreement
B-4
15. Partial Invalidity. If any provision of this Agreement shall be deemed
to be unlawful or unenforceable by a court of competent jurisdiction, such
determination shall have no effect on the validity and enforceability of the
other terms and conditions of this Agreement, and the challenged term shall be
deemed deleted.
16. Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed an original, and each of which alone and both of which
together, shall constitute one and the same instrument.
17. Entire Agreement. This Agreement and the Schedule expressly
incorporated herein constitute the entire agreement between the parties and
supersede all prior statements, representations, and agreements on the subject
matter hereof. This Agreement may be amended only by a writing that refers to
this Agreement and is signed by both parties.
18. Survival. All obligations under Sections 4, 8, 10 and 1 I of this
Agreement shall survive the expiration or termination of this Agreement.
19. Governing Law. This Agreement has been made in Delaware and shall be
governed by and construed in accordance with the laws of the State of Delaware
applicable to contracts made and performed within the State of Delaware.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
E-VEND:
x-Xxxx.xxx Corporation
By:
----------------------------
Xxxxx X. Xxxxxxx
President & CEO
THE COMPANY:
[Insert Company Name]
By:
-------------------------
B-5
SCHEDULE ONE
(of Vending System Placement Agreement)
COMPANY LOCATIONS:
Please indicate whether the Company will provide Stocking Services under
Paragraph 3:
The Company will provide stocking services under Paragraph 3______________
The Company will not provide stocking services under Paragraph 3__________
Term: One year
Initial:____________
THE. COMPANY:______
E-Vend____________
B-6
Schedule C
Minimum Purchase Order Price (Pallet Quantities)
------------------------------------------------
for Kodak Merchandise
---------------------
Product Minimum Price
Max Flash $8.05
Max Daylight $6.19
Max HQ $8.67
Switchable $8.67
Access $8.36
Max 400 -2 Pack $7.43
APS 200 - 2 Pack $8.05
C-1
Schedule D
----------
Teaming Strategy
Sales
--------------------------- ----------------------------------------- ----------------------------------------------
Prioritized Roll- Kodak Maytag/Xxxxx/e-Vend
Out Locations
--------------------------- ----------------------------------------- ----------------------------------------------
1. Point of Picture Sponsorship reps team with * Take the lead in identifying and
(POP) Maytag/Xxxxx/e-Vend to securing all POP locations.
incorporate vending into all * Team with Kodak's sponsorship
appropriate sponsorship venues. reps to place machines in
Kodak's Vending Manager will sponsorship venues.
work with Maytag/Xxxxx/e- * Where Kodak has relationships with
Vend on strategy and minimal venues outside of the sponsorship
execution. agreements, we retain the right to
Provide some POP location lists introduce Vend to
through Kodak's association the customer.
memberships, etc.
Kodak Project Liaison will
coordinate efforts and
consider other reasonable requests for
participation.
--------------------------- ----------------------------------------- ----------------------------------------------
2. On the Way to Same as above, but only if Lead the sales effort to identify and
POP applicable on a Location basis. place machines.
--------------------------- ----------------------------------------- ----------------------------------------------
3. Retails This tier of location shall be the tertiary priority.
New non-Kodak Kodak has the ultimate right to schedule and have a representative present
retail locations during all meetings and sales calls with these locations.
Kodak shall have the right to approve and/or modify
all contracts and placement agreements prior to
presentation to all retail locations.
--------------------------- ----------------------------------------------------------------------------------------
D-1
4. Retail * This class of trade is the fourth priority and is not
Existing Kodak viewed as a primary driver of growing the vending market.
retail locations Opportunities will be assessed on a case-by-case basis.
Maytag/Xxxxx/e-Vend acknowledges the fact that Kodak has
existing selling relationships that may cause Kodak and
Maytag/Dixief/-Vend to modify the program based on existing
Kodak contracts and/or partnerships; Kodak acknowledges that
it is bound by the exclusivity clause and its parameters set
forth in the agreement.
Kodak has the ultimate right to schedule and have a
representative present during all meetings and sales calls
with these locations. Kodak shall have the right to approve
and/or modify all contracts and placement agreements prior
to presentation to all retail locations.
D-2
Teaming Strategy (continued)
Installation
--------------------------- ---------------------------------------- -------------------------------------------------
Prioritized Roll-Out Kodak Vend
Locations
--------------------------- ---------------------------------------- -------------------------------------------------
1. Point of Picture Kodak is not required in this * Full execution utilizing internal
(POP) stage, but reserves the right to competencies.
be there should we desire.
--------------------------- ---------------------------------------- -------------------------------------------------
2. On the Way to Kodak is not required in this * Full execution utilizing internal
POP stage, but reserves the right to competencies.
be there should we desire.
--------------------------- ---------------------------------------- -------------------------------------------------
3. Retail Reserve the right to be there * Full execution utilizing internal
(Collective) should we desire pursuant to competencies.
Sales matrix
--------------------------- ---------------------------------------- -------------------------------------------------
Maintenance
--------------------------- ---------------------------------------- -------------------------------------------------
Prioritized Roll-Out Kodak Vend
Locations
--------------------------- ---------------------------------------- -------------------------------------------------
1. Point of Picture N/A * Full execution utilizing internal
(POP) competencies.
--------------------------- ---------------------------------------- -------------------------------------------------
2. On the Way to N/A * Full execution utilizing internal
POP competencies.
--------------------------- ---------------------------------------- -------------------------------------------------
3. Retail N/A * Full execution utilizing internal
(Collective) competencies.
--------------------------- ---------------------------------------- -------------------------------------------------
D-3
Schedule E
Dispute Resolution Representatives
----------------------------------
Initial Level:
Kodak Maytag / Xxxxx e-Vend
----- -------------- ------
Vice President, Maytag Vice President of Vice President &
Cameras Business Unit Corporate Development General Counsel
Mediation Level:
Kodak Maytag /Xxxxx e-Vend
----- ------------- ------
President of Maytag President of President & CEO
Consumer Imaging, Commercial Solutions
U.S. & Canada Region
E-1
Schedule F
ESCROW AGREEMENT
THIS SOFTWARE ESCROW AGREEMENT ("Escrow Agreement"), dated as of
this_________ day of______________ 2000, is by and between x-Xxxx.xxx
Corporation ("Vendor") and Maytag Corporation ("Maytag") and NAME,
Attorney-at-law, &_____________________ LOCATION ("Escrow Agent ") (collectively
and individually defined as "Parties" and "Party").
WHEREAS, Vendor, Maytag and the Xxxxxxx Kodak Company ("Kodak") entered
into a Vending, Placement, Supply and Distribution Agreement (the "Vending
Agreement") of even date herewith.
WHEREAS, to secure Maytag's guaranty of Vendor's obligations under the
Vending Agreement and to induce Kodak to enter into the Vending Agreement,
Vendor has agreed to pledge or assign, in escrow, all rights and obligations
under the "Placement Agreement," including, without limitation, an assignment of
all "Placement Agreements" and non-exclusive rights to use all software, source
codes and other aspects of the "eVend System," each as defined in the Vending
Agreement, for the sole purpose of completing performance of Maytag's and
Vendor's obligations under the Vending Agreement
WHEREAS, the Escrow Agent is prepared to act as Escrow Agent for Vendor and
Maytag.
NOW THEREFORE, the Parties agree as follows:
1. Transfer of the Soureecodes
Vendor will deliver the Sourcecodes of the e-Vend software contained in the
eVend System and necessary to run the Vending Program ("e Vend Software") to the
Escrow Agent within ten days from the signature of this Escrow Agreement. The
Sourcecodes will be readable with Windows NT.
Vendor warrants that the Sourcecodes which will be deposited correspond to
the technical development of the e-Vend Software as of the time of the execution
of the Vending Agreement, and that any revised, enhanced or replacements to the
e-Vend Software when and as tile%! are made front time to tinge. shall be
deposited with the Escrow Agent within ten days from till from such
revision enhancement or replacment to the e-Vend Software
2. Escrow Property
(a) Rights to the Sourcecodes: Vendor will transfer, on a fiduciary basis,
ownership of the media containing the Sourcecodes and the rest of tile e-Vend
Software to the Escrow Agent, excluding the intellectual property rights
embodied in the Soureecodes.
F-1
If the Escrow Agent delivers the Sourcecodes and the rest of the e-Vend
Software to Maytag in accordance with Section 5.1 of this Escrow Agreement,
Maytag, under nonexclusive license from Vendor, will be entitled to use the
Sourcecodes and the rest of the e-Vend Software solely to perform and complete
the obligations of Vendor and/or Maytag under the Vending Agreement on all
activated and properly functioning Vending Systems at the time of release of the
Sourcecodes by Escrow Agent as contemplated by this Escrow Agreement. The
license to the Sourcecodes granted to Maytag under this Escrow Agreement will
continue until the last to occur of three (3) years beyond the ternination or
expiration of the Vending Agreement, or for so long as Kodak pays, and is
obligated to pay, Slotting Fees under the Vending Agreement. Maytag shall at all
times maintain the confidentiality of the Sourcecodes and use the Sourcecodes
only as contemplated by this Escrow Agreement. Title and all intellectual
property rights in the Sourcecodes shall at all times remain solely with the
Vendor.
(b) Assignment of Placement Agreements: Vendor shall execute and deliver
with this Escrow Agreement an assignment of Placement Agreements (the "Placement
Agreement Assignment") substantially in the form attached hereto as Exhibit A.
(c) Assignment of Equipment: In addition, Vendor shall execute and deliver
into escrow with this Escrow Agreement an assignment of all of the rights to,
and contracts and leases relating to, equipment (e-g., Vending Systems and
network equipment) of Vendor now or hereafter acquired which are necessary for
the full and proper performance of Vendor's or Maytag's obligations under the
Vending Agreement (the "Equipment Assignment") substantially in the form
attached hereto as Exhibit B.
3. Custody by the Escrow Agent
The Escrow Agent shall hold the Sourcecodes and the rest of the e-Vend
Software, the Placement Agreement Assignment, and the Equipment Assignment in a
safe place for the Tenn of the Vending Agreement, and any Wind-down Period
provided therein; at the completion of which the Sourcecodes and the rest of the
e-Vend Software, the Placement Agreement Assignment, and the Equipment
Assignment, if not previously delivered to Maytag pursuant to this Escrow
Agreement, shall be returned to Vendor.
The Escrow Agent will inform Vendor of any loss, damage or theft of the
Sourcecodes and the rest of the e-Vend Software, the Placement Agreement
Assignment, or the Equipment Assignment. In this case. Vendor undertakes to
deliver immediately to the Escrow Agent another copy of the Sourcecodes and the
rest of the e-Vend Software, 10 re-execute the Placement Agreement Assignment or
to re-execute the Equipment
4. Control of the Sourcecodes and the (test of the e-Vend Software
Each Party to this Escrow Agreement has the right to verify on the premises
of tile Escrow Agent the availability of a current and updated version of the
Sourcecodes and the rest of the e-Vend Software. The verification includes the
right to check that the data carrier contains the Sourcecodes and the rest of
the e-Vend Software. Each Party to this Escrow Agreement shall announce its
intentions at least three (3) days in advance so that the other Parties may
attend such verification.
F-2
At the end of each three-month period or in case of new releases,
Vendor will update the Sourcecodes and the rest of the e-Vend Software.
F-3
5. Release of the Escrow Property
The Escrow Agent irrevocably undertakes to release the Sourcecodes and the
rest of the e-Vend Software, the Placement Agreement Assignment and the
Equipment Assignment (collectively and individually the "Escrow Property), as
follows:
5.1 Any and all of the Escrow Property, upon receipt of joint written
instructions from Vendor, Maytag and Kodak; or
5.2 Any and all of the Escrow Property, upon presentation of a judicial
decision enforceable in the state of New York; or
5.3 If Maytag delivers written notice to Escrow Agent, copy to Kodak and
Vendor, certified by an officer of Maytag, that one of the events specified in
(a), (b) or (c) below has occurred, and if within five (5) days thereafter
Vendor has not produced an affidavit of an executive officer of Vendor, with a
copy to Kodak, clearly refuting that the claimed event has not occurred (the
"Affidavit"), then on the sixth (6th) day, Escrow Agent shall release to Maytag
the Sourcecodes and the rest of the e-Vend Software:
In the event (a) Vendor becomes insolvent, or requests its creditors
for a moratorium, or enters into a general assignment for the benefit of
creditors or an agreement of composition with its creditors, or suffers the
appointment of a temporary or permanent receiver, trustees or custodian for
all or a substantial part of its assets that is not dismissed within thirty
(30) days; or (b) Vendor files a voluntary petition for relief under Title
I l of the Bankruptcy Code, or if an Order for Relief under the Bankruptcy
Code is entered against it, or if a petition or answer is filed proposing
entry of an Order for Relief under the Bankruptcy Code (which petition or
answer is not discharged or denied within sixty (60) days after the filing
thereof); or (c) Vendor commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to it or any such proceeding is
commenced against Vendor which is not dismissed for period of sixty (60)
days.
5.4 Maytag, at any time within ninety (90) days after the notice to the
Escrow Agent under Section 5.3 above, may give notice to the Escrow Agent. with
copies to Vendor and Kodak, directing the Escrow Agent to deliver the Placement
Agreement Assignment t() MAytag In the event such notice is given and Vendor
liar clot produced the Affidavit under Section 5.3, the Escrow Agent shall
deliver the Placement Agreement Assignment to Maytag. If Maytag does not timely
direct the Escrow Agent to deliver the Placement Agreement Assignment to Maytag,
Escrow Agent shall deliver the Placement Agreement Assignment to Vendor or its
estate, as applicable. .
5.5 Maytag, at any time within ninety (90) days after the notice to the
Escrow Agent under Section 5.3 above, may give notice to the Escrow Agent, with
copies to
F-4
Vendor and Kodak, directing the Escrow Agent to deliver the Equipment Assignment
to Maytag. In the event such notice is given and Vendor has not produced the
Affidavit under Section 5.3, the Escrow Agent shall deliver the Equipment
Assignment to Maytag, and Maytag shall be obligated to pay to Vendor's estate
the then existing fair market value of the equipment covered by the Equipment
Assignment. The fair market value shall be: (a) the value then agreed upon by
Maytag and the authorized representatives of Vendor's estate, and approved by
any supervising court; or (b) in the absence of such an agreement, as determined
by any court with jurisdiction over the Parties and the subject matter of the
disagreement. If Maytag does not timely direct the Escrow Agent to deliver the
Equipment Assignment to Maytag, Escrow Agent shall deliver the Equipment
Assignment to Vendor or its estate, as applicable.
5.6 Maytag agrees to subordinate its rights under the Equipment Assigninent
to the security interest of any equipment lessor or purchase money lender,
provided the lessor or lender, as applicable, grants Maytag the right, at its
option, to assume the equipment lease or loan upon the release of the Equipment
Assignment to Maytag, with Maytag being thereafter liable for all payments then
owed or subsequently coming due under the lease or the loan, other than late
charges, penalties or expenses of collection, including attorney fees,
previously charged or incurred. Upon the happening of any event described in
clauses (a), (b) or (c) of Section 5.3, above, Vendor hereby irrevocably
authorizes any equipment lessor or lender with an interest in the equipment
covered by the Equipment Assignment to provide to Maytag, upon written request,
an accounting of all amounts then due under the applicable lease or loan, as
well as a copy of all relevant lease or loan documents which Maytag would be
assuming if it exercised its rights under this Section.
6. Duties of the Escrow Agent
The Escrow Agent shall keep the Sourcecodes, Assignment and Equipment
Assignment with the same care as its own matters. It will not incur any
liability for loss of data or access to the data by non-authorized persons.
Except as provided in this Escrow Agreement, Escrow Agent agrees that it shall
not disclose or otherwise make available to any third party, or make any use of
the Sourcecodes, Assignment or Equipment Assignment without Vendor's prior
written consent.
The Escrow Agent's sole duties and obligations are those specifically
stated herein.
The Escrow Agent shall not be responsible for any action or omission unless
he-she was grossly negligent OT- acted or failed to act in bad faith.
7. Fees
The Excrow Agent shall lie compensated for any special service required or
necessary to the exercise of his/her function on the basis of his/her normal
professional charge.
All Parties are jointly liable towards the Escrow Agent for the payment of
the Escrow Agent's fee.
Vendor and Maytag undertake jointly and severally to hold harmless and
indemnify the Escrow Agent from any liability or expense that he/she may incur
by virtue
F-5
of any claim or dispute in connection herewith which may arise between Vendor
and Maytag including attorneys' fees.
8. Conflict of Interest
Vendor and Maytag duly acknowledge that the function of the Escrow Agent
will not disqualify him/her to further represent and advise Vendor in any
dispute with Maytag or Kodak.
9. Death of the Escrow Agent
In case of death of the Escrow Agent, his/her function shall be taken over
by another person appointed jointly by all Parties and approved by Kodak in
writing.
10. Amendments
Any amendment or supplement to this Escrow Agreement shall be valid only if
made in written form, signed by the Parties, and approved in writing by Kodak.
11. Applicable law and jurisdiction
This Agreement shall be governed by and construed in accordance with the
laws of the state of New York. Any dispute between the parties relating to this
Escrow Agreement may be brought in any court with jurisdiction over the Parties
and the subject matter. Without limiting the foregoing, the Parties each
irrevocably consent to the jurisdiction of the state courts of New York and the
United States District Court for the Eastern District of New York for all
matters arising from this Escrow Agreement, and for that limited purpose only;
provided; however, that each Party agrees not to commence any action, suit or
proceeding in the state court unless the United States District Court for the
Eastern District of New York lacks subject matter jurisdiction with respect to
the dispute or otherwise is unable to hear the matter.
[SIGNATURE CONTINUE ON NEXT PAGE]
F-6
IN WITNESS WHEREOF, the Vendor and Maytag hereto have executed this Escrow
Agreement as of the date set forth in the first paragraph hereof.
VENDOR:
X-XXXX.XXX CORPORATION MAYTAG CORPORATION
By By
_______________________ ____________________________
Signature Signature
Name Name
_______________________ ____________________________
(Type or Print) (Type or Print)
Title Title
_______________________ ____________________________
Date Date
_______________________ ____________________________
ESCROW AGENT
By
_______________________
Signature
Name
_______________________
(Type or Print)
Title:
_______________________
Date:
_______________________
F-7
Exhibit A
to the e-Vend Escrow Agreement
ASSIGNMENT OF PLACEMENT AGREEMENTS
----------------------------------
THIS ASSIGNMENT OF PLACEMENT AGREEMENTS (this "Assignment"), dated as
of_________________ , 2000, between x-Xxxx.xxx Corporation (the "Assignor") and
Maytag Corporation (the "Assignee"),
WITNESSETH:
WHEREAS, the Assignor and the Assignee, together with Xxxxx-Narco, Inc. and
the Xxxxxxx Kodak Company ("Kodak"), are parties to a Vending, Placement, Supply
and Distribution Agreement (the "Vending Agreement") and an Escrow Agreement
(the "Escrow Agreement"), each of even date herewith, whereby the parties have
agreed to assign, in escrow, the "Placement Agreements" (as defined in the
Vending Agreement) for the sole purpose of securing the performance of
Assignor's obligations under the Vending Agreement.
NOW, THEREFORE, to induce Assignee and Kodak to enter into the Vending
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The Assignor hereby assigns, transfers and sets over unto the
Assignee,-absolutely and not as a collateral assignment, all the Assignor's
rights, title and interests in and to each of the Placement Agreements, whether
now existing or hereafter entered into, except to the extent reserved below,
including, without limitation, in such assignment (a) any and all rights of the
Assignor to compel performance of the terms of the Placement Agreements, (b) all
rights, benefits and claims under all warranty and indemnity provisions
contained in the Placement Agreements, (c) the benefit of all insurance payments
provided for in the Placement Agreements and (d) the right to any other moneys
due and to become due to the Assignor under the Placement Agreements.
Notwithstanding the foregoing, so long as none of the Events (as defined in
Section 4 below) shall have occurred, and upon the occurrence of an Event, for
so long as Escrow Agent has not released this Assignment to Assignee pursuant to
Section 5.4 of the Escrow Agreement, the Assignee Irrevocably authorized the
Assignor without affecting tile terms- of' tills Assignment (]) to exercise in
its ,own name and solely enjoy all benefits (-)fall rights and powers under such
Placement Agreements including the right to all moneys due or to become due, and
(ii) to enforce any warranty or indemnity under such Placement Agreements and to
retain any recovery or benefit resulting from the enforcement of any such
warranty or indemnity.
2. It is expressly agreed that anything herein to the contrary
notwithstanding, the Assignor shall remain liable under the Placement Agreements
to
F-8
perform all of its obligations thereunder and the Assignee shall have no
obligation or liability under the Placement Agreements by reason of, or arising
out of, this Assignment nor shall the Assignee be required or obligated in any
manner to perform or fulfill any obligations of the Assignor under or pursuant
to any of the Placement Agreements, or to make any payment or to make any
inquiry, as to the nature or sufficiency of any payment received by it, or to
present or file any claim or to take any other action to collect or enforce the
payment of any amounts which may have been assigned to it or to which it may be
entitled hereunder at any tune or times; provided, however, that should Assignee
demand release of this Assignment from Escrow Agent pursuant to Section 5.4 of
the Escrow Agreement, and should Escrow Agent thereafter release this Assignment
to Assignee, Assignee shall assume and become liable for all obligations of
Assignor under the Placement Agreements and shall indemnify and hold Assignor
harmless against the same.
3. The Assignor agrees that so long as this Assignment is in effect, it
will not, without the prior written consents of the Assignee and Kodak, which
consents shall not be unreasonably withheld or delayed, amend, modify or permit
to be amended or modified in any material respect any of the Placement
Agreements or waive or permit to be waived any material provisions of any of the
Placement Agreements, or exercise any right to terminate or cancel any of the
Placement Agreements or consent or agree to, or suffer or pennit, the
termination thereof whether or not on account of any default therein specified.
4. The Assignor hereby irrevocably appoints the Assignee, its successors
and assigns, the Assignor's true and lawful attorney-in-fact with full power (in
the naive of the Assignor or otherwise) at any time after an Event (as
hereinafter defined) has occurred, to do any act or-assert any right under any
or all of the Placement Agreements which Assignor, itself, could do or assert.
Without limiting the generality of the proceeding sentence, upon the occurrence
of an Event, Assignor irrevocably authorizes Assignee to ask, require, demand,
and receive any and all moneys and claims for moneys due and to become due
under, or arising out of, each of the Placement Agreements to the extent that
the same have been assigned by this Assignment, to endorse any checks or other
instruments or orders in connection with the Placement Agreements, to file any
claims or take any action or institute (or, if previously commenced, assume
control of) any proceedings and to obtain any recovery in connection with the
Placement Agreements as deemed necessary by the Assignee. An "Event" shall occur
when one of the following events occurs, including the passage of any applicable
grace period: (a) Assignor becomes insolvent, or requests its creditors for a
moratorium, or enters into a general assignment for the benefit of creditors or
an a(-,reement of composition with its creditors, or suffers the appointment of
a temporary or permanant receiver, trustees or custodian for all or substantial
part of its assets that is not dismissed within thirty (30) days; or (b)
Assignor tiles a voluntary petition for relief under Title 1 1 of the Bankruptcy
Code, or if an Order for Relief under the Bankruptcy Code is entered against it,
or if a petition or answer is filed proposing entry of an Order for Relief under
the Bankruptcy Code (which petition or answer is not discharged or denied within
sixty (60) days after the filing thereof); or (c) Assignor commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in
F-9
effect relating to it or any such proceeding is commenced against Assignor which
is not dismissed for period of sixty (60) days.
5. The Assignor agrees that at any time and from time to time, upon the
written request of the Assignee, the Assignor will promptly and duly execute and
deliver any and all such further instruments and documents as the Assignee may
reasonably request in obtaining the full benefits of this Assignment and of the
rights and powers herein granted.
6. The Assignor hereby represents and wanants that the Assignor has not
assigned or pledged, and hereby covenants that it will not assign or pledge, so
long as this Assignment shall remain in effect, the whole or any part of the
rights hereby assigned to anyone other than the Assignee, its successors or
assigns. The Assignor also covenants and agrees that it will not take any action
or fail to take any action or institute any proceedings the taking or omission
of which might result in the material alteration or impairment of any of the
Placement Agreements or this Assignment or any of the rights created by any of
the Placement Agreements or this Assignment.
7. Capitalized terms used herein and not defined shall have the meanings
assigned to such terms in the Vending Agreement or the Escrow Agreement. All
other terms shall have the meanings herein specified unless the context
otherwise requires. Such definitions shall be equally applicable to the singular
and plural forms of the terms defined.
"Assignee" shall- have the meaning specified in the first paragraph of this
Assignment.
"Assignment" shall mean this Assignment as the same may be modified,
supplemented or amended from time to time in accordance with its terms.
"Assignor" shall have the meaning specified in the first paragraph of this
Assignment.
8. No material amendment or modification of any of the Placement Agreements
and no material consent, waiver or approval with respect thereto shall be valid
unless approved in writing by Assignee and Kodak, which approval shall not be
unreasonably withheld or delayed. The Assignor shall promptly notify the
Assignee and Kodak of, and provide to the Assignee and Kodak copies of, any
default notices under any of the Placement Agreement
9. The Assignee is authorized at the expense of the Assignor to sign and
file, at any time and from time to time, without the signature of the Assignor,
any and all Uniform Commercial Code financing statements, changes thereto or
renewals thereof in connection with this Assigrunent which the Assignee may
reasonably deem to be necessary or advisable in order to perfect or maintain any
security interest granted hereby. In the event that the Assignee files any such
financing statements. changes or renewals without the
F-10
signature of the Assignor, it shall provide the Assignor and Kodak with notice
thereof as soon as practicable after such filing.
10. Each and every right, power and remedy herein given to the Assignee
shall be cumulative and shall be in addition to every other right, power and
remedy of the Assignee now or hereafter existing at law, in equity or by
statute, and each and every right, power and remedy, whether herein given or
otherwise existing, may be exercised from time to tune, in whole or in part, in
accordance with the terms of this Assignment and as often and in such order as
may be deemed expedient by the Assignee, and the exercise or the beginning of
the exercise of any right, power or remedy shall not be construed to be a waiver
of the right to exercise at the same rime or thereafter any other right, power
or remedy. No delay or omission by the Assignee in the exercise of any right or
power or in the pursuance of any remedy accruing upon any breach or default by
the Assignor shall impair any such right, power or remedy or be construed to be
a waiver of any such right, power or remedy or to be an acquiescence therein.
11. Any provision of this Assignment which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and shall not invalidate or render unenforceable such
provisions in any other jurisdiction. In the event that it should transpire that
by reason of any law or regulation in force or to become in force, or by reason
of a ruling of any court whatsoever, or by any other reason whatsoever, the
Assignment herein contained is either wholly or partly defective, the Assignor
hereby undertakes to fumish the Assignee with an alternative assignment or
alternative security and/or to do all such other acts as, in the opinion of the
Assignee, shall be required in order to ensure and give effect to the full
intent of this Assignment.
12. Except as otherwise specified herein, all notices, requests, demands y'
or other communications to or upon Kodak and the respective parties hereto shall
be deemed to have been duly given or made to Kodak or the party to which such
notice, request, demand or other communication is required or permitted to be
given or made under this Assignment, effective upon receipt, by first class
postage prepaid and addressed to such party or Kodak at its address as set forth
in the Vending Agreement, or at such other address as Kodak or any of the
parties hereto may hereafter notify the others in writing.
13. None of the terms and conditions of this Assignment may be changed,
waived, modified or varied in any manner whatsoever unless in writing duly
signed by the Assign or the Assignee and Kodak
14. The obligations o1 the Assignor hereunder- shall remain in full force
and effect without regard to, and shall not be impaired by, (a) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or the like of the Assignor or (b) any amendment to or modification of, any
exercise or nonexercise, or any waiver of, any right, remedy, power or privilege
under or in respect of, this Assignment, the Vending Agreement the Escrow
Agreement or any of the Placement Agreements, whether or not the Assignor shall
have notice or knowledge of any of the foregoing.
F-11
15. This Assignment shall be binding upon the Assignor and its successors
and assigns and shall inure to the benefit of the Assignee and Kodak, and their
successors and assigns, provided that the Assignor may not transfer or assign
any or all of its rights or obligations hereunder without the prior written
consents of the Assignee and Kodak, which consents shall not be unreasonably
withheld. All agreements, statements and representations made by the Assignor
herein or in any certificate or other instrument delivered by the Assignor or on
its behalf under this Assignment shall be considered to have been relied upon by
the Assignee and shall survive the execution and delivery of this Assignment,
the Vending Agreement and the Escrow Agreement.
16. In the event of expiration or earlier termination of the Vending
Agreement and the end of any Wind Down Period (as defined in the Vending
Agreement), Assignee agrees to reassign back to Assignor the Placement
Agreements provided Assignor has not allowed one of the Events described in
Section 4 occur, or if this Assignment has not been released by Escrow Agent to
Assignee pursuant to Section 5.4 of the Escrow Agreement in connection with the
occurrence of an Event..
17. This Assignment and the rights and obligations of the parties hereunder
shall be construed in accordance with and be governed by the laws of the State
of New York. Any dispute between the parties relating to this Assignment may be
brought in any court with jurisdiction over the parties and the subject matter.
Without limiting the foregoing, the Assignor and Assignee each irrevocably
consent to the jurisdiction of the state courts of New York and the United
States District Court for the Eastern District of New York for all matters
arising from this Assignment, and for that limited purpose only; provided,
however, that each party agrees not to commence any action, suit or proceeding
in state court-vnless the United States District Court for the Eastern District
of New York lacks subject matter jurisdiction with respect to the dispute or
otherwise is unable to hear the matter.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed and delivered by their duly authorized officers as of the date first
above written.
X-XXXX.XXX CORPORATION, MAYTAG CORPORATION,
as Assignor as Assignee
By By
_______________________ ____________________________
Signature Signature
Name Name
_______________________ ____________________________
(Type or Print) (Type or Print)
Title Title
_______________________ ____________________________
F-12
Date Date
_______________________ ____________________________
F-13
Exhibit B
to the e-Vend Escrow Agreement
ASSIGNMENT OF EQUIPMENT AND
RELATED CONTRACTS AND LEASES
THIS ASSIGNMENT OF EQUIPMENT AND RELATED CONTRACTS AND LEASES (this
"Assignment"), dated as of____________ , 2000, between x-Xxxx.xxx Corporation
(the "Assignor") and Maytag Corporation (the "Assignee"),
WITHNESSETH
WHEREAS, the Assignor and the Assignee, together with Xxxxx-Narco, Inc. and
the Xxxxxxx Kodak Company ("Kodak"), are parties to a Vending, Placement, Supply
and Distribution Agreement (the "Vending Agreement") and an Escrow Agreement
(the "Escrow Agreement"), each of even date herewith, whereby the parties have
agreed to assign, in escrow, all of Assignor's rights, title and interest in and
to all equipment necessary for the performance of Assignor's obligations under
the Vending Agreement, including without limitation, the Vending Systems and
related network hardware (collectively and individually the "Equipment"),
together with all contracts, leases or other agreements pertaining to the
Equipment (the "Equipment Contracts") for the sole purpose of securing the
perfonnance of Assignor's obligations under the Vending Agreement.
NOW, THEREFORE, to induce Assignee and Kodak to enter into the Vending
-Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The Assignor hereby assigns, transfers and sets over unto the Assignee,
absolutely and not as a collateral assignment, all the Assignor's rights, title
and interests in and to the Equipment and each of the Equipment Contracts,
whether now existing or hereafter acquired or entered into, except to the extent
reserved below, including, without limitation, in such assignment (a) any and
all tights of the Assignor to compel performance of the terns of the Equipment
Contracts", (b) all tights, benefits and claims under all warranty and indemnity
provisions pertaining to the Equipment contained in the Equipment Contracts, (c)
the benefit of all insurance payments pertaining to the Equipment provided for
in the Equipment Contracts and (d) the right to ANY OTHER MONEYS due and toy
become due: to the Assignor pertaining to the Equipment under the Equipment
Contracts. Notwithstanding the foregoing, so long as none of the Events (as
defined in Section 4 below) shall have occurred, and upon the occurrence of an
Event, for so long as Escrow Agent has not released this Assignment to Assignee
pursuant to Section 5.5 of the Escrow Agreement, the Assignee irrevocably
authorizes the Assignor, without affecting the terms of this Assignment, (i) to
exercise in its own name and solely enjoy all benefits of all rights and powers
pertaining to the Equipment and under such Equipment Contracts, including the
right to all moneys due or to become due with respect thereto, and (ii) to
enforce any
F-14
warranty or indemnity pertaining to the Equipment under such Equipment Contracts
and to retain any recovery or benefit resulting from the enforcement of any such
warranty or indemnity.
2. It is expressly agreed that anything herein to the contrary
notwithstanding, the Assignor shall remain liable for the Equipment and under
the Equipment Contracts to perform all of its obligations thereunder and the
Assignee shall have no obligation or liability for the Equipment or under the
Equipment Contracts by reason of, or arising out of, this Assignment nor shall
the Assignee be required or obligated in any manner to perform or fulfill any
obligations of the Assignor for the Equipment or under or pursuant to any of the
Equipment Contracts, or to make any payment or to make any inquiry, as to the
nature or sufficiency of any payment received by it, or to present or file any
claim or to take any other action to collect or enforce the payment of any
'amounts which may have been assigned to it or to which it may be entitled
hereunder at any time or times; provided, however, that should Assignee demand
release of this Assignment from Escrow Agent pursuant to Section 5.5 of the
Escrow Agreement, and should Escrow Agent thereafter release this Assignment to
Assignee, Assignee shall assume and become liable for all obligations of
Assignor under the Equipment Contracts, including all financing or leasing
obligations of Assignor relating to the same, and shall indemnify and hold
Assignor harmless against the same..
3. The Assignor agrees that so long as this Assignment is in effect, it
will not, without the prior written consents of the Assignee and Kodak, which
consents shall not be unreasonably withheld or delayed, (a) dispose of any
Equipment unless replaced by Equipment which is at least comparable in quality,
or (b) amend, modify or permit to be amended or modified in any material respect
any of the Equipment Contracts or waive or permit to -be waived any material
provisions of any of the Equipment Contracts, or exercise any right to terminate
or cancel any of the Equipment Contracts or consent or agree to, or suffer or
permit, the termination thereof whether or not on account of any default therein
specified.
4. The Assignor hereby irrevocably appoints the Assignee, its successors
and assigns, the Assignor's true and lawful attomey-in-fact with full power (in
the name of the Assignor or otherwise) at any time after an Event (as
hereinafter defined) has occurred, to do any act or assert any right pertaining
to the Equipment or under any or all of the Equipment Contracts which Assignor,
itself, could do or assert. Without limiting the generality of the preceding
sentence, upon the occurrence of an Event, Assignor invocable authorizes
Assigncc to take possession of the Equipment and/or to ask, require, demand and
receive any and all motleys and claims for moneys due and to become due which
pertain to or arise out of the Equipment or any of the Equipment Contracts to
the cxtent that the same have been assigned by this Assigmnent, to endorse any
checks or other instruments or orders in connection with the Equipment or the
Equipment Contracts, to file any claims or take any action or institute (or, if
previously commenced, assume control of) any proceedings and to obtain any
recovery in connection with the Equipment or the Equipment Contracts as deemed
necessary by the Assignee. An "Event" shall occur when one of the following
events occurs, including the passage of any applicable grace period:
F-15
(a) Assignor becomes insolvent, or requests its creditors for a moratorium, or
enters into a general assignment for the benefit of creditors or an agreement of
composition with its creditors, or suffers the appointment of a temporary or
permanent receiver, trustees or custodian for all or substantial part of its
assets that is not dismissed within thirty (30) days; or (b) Assignor files a
voluntary petition for relief under Title 11 of the Bankruptcy Code, or if an
Order for Relief under the Bankruptcy Code is entered against it, or if a
petition or answer is filed proposing entry of an Order for Relief under the
Bankruptcy Code (which petition or answer is not discharged or denied within
sixty (60) days after the filing thereof); or (c) Assignor commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to it or any such
proceeding is commenced against Assignor which is not dismissed for period of
sixty (60) days.
5. The Assignor agrees that at any time and from time to time, upon the
written request of the Assignee, the Assignor will promptly and duly execute and
deliver any and all such further instruments and documents as the Assignee may
reasonably request in obtaining the full benefits of this Assignment and of the
rights and powers herein granted.
6. The Assignor hereby represents and warrants that the Assignor has not
assigned or pledged, and hereby covenants that, except for pledges or grants of
security interests to purchase money equipment lessors or purchase money
lenders, it will not assign or pledge, so long as this Assignment shall remain
in effect, the whole or any part of the Equipment rights hereby assigned to
anyone other than the Assignee,-its successors or assigns. Assignee hereby
consents to pledges or grants of security interests Assignor may make to
purchase money equipment lessors or purchase money lenders with respect to the
Equipment, and Assignee agrees to subordinate its rights under this Assignment
to the rights or security interests of any Equipment lessor or purchase money
lender, provided the lessor or lender, as applicable, grants Maytag the right,
at its option, to assume the equipment lease or loan upon the release of the
Equipment Assignment to Maytag by Escrow Agent pursuant to Section 5.5 of the
Escrow Agreement, with Maytag being thereafter liable for all payments then owed
or subsequently coming due under the lease or the loan. The Assignor also
covenants and agrees that it will not take any action or fail to take any action
or institute any proceedings the taking or omission of which might result in the
material alteration or impairment of any of the Equipment or the Equipment
Contracts or this Assignment or any of the rights created by any of the
Equipment Contracts or tills Assignment
7. Capitalized terms used herein and not defined shall have the meaning
assigned to such terns in the Vending Agreement or the Escrow Agreement. All
other terms shall have the meanings herein specified unless the context
otherwise requires. Such definitions shall be equally applicable to the singular
and plural forms of the terms defined.
"Assignee" shall have the meaning specified in the first paragraph of this
Assignment
F-16
"Assignment" shall mean thus Assignment as the same may be modified,
supplemented or amended from time to time in accordance with its terms.
"Assignor" shall have the meaning specified in the first paragraph of this
Assignment.
8. No material amendment or modification of any of the Equipment Contracts
and no material consent, waiver or approval with respect thereto shall be valid
unless approved in writing by the Assignee and Kodak, which approval shall not
be unreasonably withheld or delayed. The Assignor shall promptly notify the
Assignee and Kodak of, and provide to the Assignee and Kodak copies of, any
default notices under any of the Equipment Contracts.
9. The Assignee is authorized at the expense of the Assignor to sign and
file, at any time and from time to time, without the signature of the Assignor,
any and all Uniform Commercial Code financing statements, changes thereto or
renewals thereof in connection with this Assignment which the Assignee may
reasonably deem to be necessary or advisable in order to perfect or maintain any
security interest granted hereby. In the event that the Assignee files any such
financing statements, changes or renewals without the signature of the Assignor,
it shall provide the Assignor and Kodak with notice thereof as soon as
practicable after such filing.
10. Each and every right, power and remedy herein given to the Assignee
shall be cumulative and shall be in addition to every other right, power and
remedy of the Assignee now or hereafter existing at law, in equity or by
statute, and each and every right power and remedy, whether herein given or
otherwise existing, may be exercised from time to time, in whole or in part, in
accordance with the terms of this Assignment and as often and in such order as
may be deemed expedient by the Assignee, and the exercise or the beginning of
the exercise of any right, power or remedy shall not be construed to be a waiver
of the right to exercise at the same time or thereafter any other right, power
or remedy. No delay or omission by the Assignee in the exercise of any right or
power or in the pursuance of any remedy accruing upon any breach or default by
the Assignor shall impair any such right, power or remedy or be construed to be
a waiver of any such right, power or remedy or to be an acquiescence therein.
11 Any provision of this Assignment which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction. be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining prov
isions hereof and shall not invalidate or render unenforceable such provisions
in any other jurisdiction. In the event that it should transpire that by reason
of any law or regulation in force or to become in force, or by reason of a
ruling of any court whatsoever, or by any other reason whatsoever, the
assignment herein contained is either wholly or partly defective, the Assignor
hereby undertakes to furnish the Assignee with an alternative assignment or
alternative security and/or to do all such other acts as, in the opinion of the
Assignee, shall be required in order to ensure and give effect to the full
intent of this Assignment
F-17
12. Except as otherwise specified herein, all notices, requests, demands or
other communications to or upon Kodak and the respective parties hereto shall be
deemed to have been duly given or made to Kodak or the party to which such
notice, request, demand or other communication is required or permitted to be
given or made under this Assignment, effective upon receipt, by first class
postage prepaid and addressed to such party or Kodak at its address as set forth
in the Vending Agreement, or at such other address as Kodak or any of the
parties hereto may hereafter notify the others in writing.
13. None of the terms and conditions of this Assignment may be changed,
waived, modified or varied in any manner whatsoever unless in writing duly
signed by the Assignor, the Assignee and Kodak.
14. The obligations of the Assignor hereunder shall remain in full force
and effect without regard to, and shall not be impaired by, (a) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or the like of the Assignor or (b) any amendment to or modification of, any
exercise or nonexercise, or any waiver of, any right, remedy, power or privilege
under or in respect of, this Assignment, the Vending Agreement, the Escrow
Agreement or any of the Equipment Contracts, whether or not the Assignor shall
have notice or knowledge of any of the foregoing.
15. This Assignment shall be binding upon the Assignor and its successors
and assigns and shall inure to the benefit of the Assignee and Kodak, and their
successors and assigns, provided that the Assignor may not transfer or assign
any or all of its rights or obligations hereunder without-the prior written
consents of the Assignee and Kodak, which consents shall not be unreasonably
withheld. All agreements, statements and representations made by the Assignor
herein or in any certificate or other instrument delivered by the Assignor or on
its behalf under this Assignment shall be considered to have been relied upon by
the Assignee and shall survive the execution and delivery of this Ass] gnment
the Vending Agreement and the Escrow Agreement.
16. In the event of expiration or earlier termination of the Vending
Agreement and the end of any Wind Down Period (as defined in the Vending
Agreement), Assignee agrees to reassign back to Assignor the Equipment and the
Equipment Contracts provided Assignor has not allowed one of the Events
described in Section 4 occur, or if this Assignment has not been released by
Escrow Agent to Assignee pursuant to Section 5.5 of the Escrow Agreement in
connection with the occurance of an Fvent.
17. This Assignment an(] the rights and obligations of the parties
hereunder shall be construed in accordance with and he ;governed by the laws of
the State of New York. Any dispute between tile parties relating to this
Assignment may be brought in any court with jurisdiction over the parties and
the subject matter. Without limiting the foregoing, the Assignor and Assignee
each irrevocably consent to the jurisdiction of the state courts of New York,
the state courts of Delaware and the United States District Court for the
Eastern District of New York for all matters arising from this Assignment, and
for that limited purpose only; provided, however, that each party agrees not to
commence any
F-18
action, suit or proceeding in state court unless the United States District
Court for the Eastern District of New York lacks subject matter jurisdiction
with respect to the dispute or otherwise is unable to hear the matter.
[SIGNATURES CONTINUE ON NEXT PAGE]
F-19
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed and delivered by their duly authorized officers as of the date first
above written.
X-XXXX.XXX CORPORATION, MAYTAG CORPORATION,
as Assignor as Assignee
By By
----------------------------------- -----------------------------
Signature Signature
Name Name
----------------------------------- -----------------------------
(Type or Print) (Type or Print)
Title Title
----------------------------------- -----------------------------
Date Date
----------------------------------- -----------------------------
F-20
Schedule G
e-Vend Packaging Specifications for Vending Kodak Merchandise
-------------------------------------------------------------
The Kodak product should be packaged into a cylindrical container having a
diameter of not less than 2.6" and not more than 3.0". The container should be
not less than 4.9" and not more than 7.2" in height. The walls of the container
should be parallel to each other with no variation in the diameter along the
height of the container. The walls of the container should be smooth on all
sides so that the container can spin freely without obstruction when it is
placed next to containers of the same style or another smooth surface. The
container material should be as rigid as possible and must resist punctures and
crushing during normal handling and the typical vending cycle. The ends of the
container should be as smooth and as uniform as possible with no opening
mechanisms or other items which protrude above the surface of container end. The
container should be able to be opened by the end user without any special tools
or equipment and should pose no safety hazard in doing so. The container should
have a label or some other indication of the specific product which is packaged
into the container on one of the container ends and it should be plainly
apparent what product is packaged in the container when looking at this
container end. The label or markings on the outer walls of the container should
display any pertinent or required consumer information for the purchase of the
product contained within.
Kodak Vending Placement Supply and Distribution agr FINAL
G-1
FIRST AMENDMENT TO
VENDING PLACEMENT, SUPPLY AND DISTRIBUTION AGREEMENT
THIS AMENDMENT (this "Amendment") is made as of the ____ day of
December, 2000 by and between Xxxxxxx Kodak Company, a New Jersey corporation
("Kodak"), Maytag Corporation, a Delaware corporation ("Maytag"), Xxxxx-Narco,
Inc., a Delaware corporation and wholly-owned subsidiary of Maytag Holdings,
Inc., which is a wholly-owned subsidiary of Maytag ("Xxxxx") and x-Xxxx.xxx
Corporation, a Delaware corporation ("e-Vend") (collectively, individually and
respectively defined as "Parties" and "Party"). This Amendment amends the
VENDING PLACEMENT, SUPPLY AND DISTRIBUTION AGREEMENT between the Parties of even
date herewith (the "Agreement").
RECITALS
WHEREAS, the Parties have entered into the Agreement for the
distribution and sale of Kodak Merchandise solely from Vending Systems installed
in Target Locations throughout the continental United States; and -
WHEREAS, the Parties now desire to amend certain provisions of the
Agreement to accurately reflect their agreement.
NOW, THEREFORE, to induce the execution and delivery of the Agreement
by all Parties, and for other good and valuable consideration, the receipt,
sufficiency and incontestability of which hereby are acknowledged, the Parties
agree as follows:
(1) All capitalized terms not otherwise defined herein shall that the
meanings ascribed to them in the Agreement.
(2) The following new Section 14.7 is hereby added to the Agreement:
14.7 Notwithstanding anything in this Agreement, at any time
during the term of this Agreement, during or after any Wind-Down Period
or upon the expiration or termination of this Agreement, the Parties
agree that all Kodak Marks and other Kodak identification shall be
removed from any Vending System which is deactivated and/or retired
from the Vending Program within fourteen (14) calendar days from the
date of such de-activation and/or retirement. Upon the termination or
expiration of this Agreement, or if a Wind Down Period occurs, then the
latter of (i) the termination or expiration of this Agreement or (ii)
after any Wind-Down Period, the Parties agree that all Kodak Marks and
other Kodak identification shall be removed from all Vending Systems
and that none of the Parties will operate, service or sell to any third
parties any Vending Systems bearing Kodak Marks or other Kodak
identification without the express written permission of Kodak. In
addition, Xxxxx, Maytag and/or e-Vend shall not thereafter use any
Kodak Marks or other Kodak identification in connection with the sale
or distribution of any goods or merchandise from any such de-activated
and/or retired Vending System. This Section 14.7 shall survive the
expiration or termination of this Agreement. Upon the termination or
expiration of this Agreement, or if a Wind Down Period occurs, then the
latter of (i) the termination or expiration of this Agreement or (ii)
after any Wind-Down Period, Maytag. Xxxxx and e-Vend each agree to
certify in writing that all Kodak Marks and other Kodak identification
have been removed from all Vending Systems and that they otherwise have
complied with the requirements of this Section 14.7.
(3) This Amendment shall be governed in all respects by the laws of the
State of New York as such laws are applied to agreements between New York
residents entered into and performed entirely in New York. Without limiting the
foregoing, each Party irrevocably consents to the jurisdiction of the state
courts of New York and the United States District Court for the Eastern District
of New York with respect to all matters arising from this Agreement, for that
limited purpose only, and each Party waives any objections to venue in such
courts and agrees that process may be served in the manner provided herein for
giving of notices or otherwise as allowed by the applicable court; provided,
however, that each Party agrees not to commence any action, suit or proceeding
in state court unless the United States District Court for the Eastern District
of New York lacks subject matter jurisdiction with respect to the dispute or
otherwise is unable to hear the matter.
4) Except as noted above, the terms and conditions of the Agreement
remain in full force and effect.
IN WITNESS WHEREOF, the parties have duty executed this Amendment as of
the date first written above.
XXXXXXX KODAK COMPANY MAYTAG CORPORATION
---------------------------- ---------------------------
Signature Signature
---------------------------- ---------------------------
Name Name
---------------------------- ---------------------------
Title Title
---------------------------- ---------------------------
Date Date
X-XXXX.XXX CORPORATION XXXXX-NARCO, INC.
/s/ Xxxxxxx X. Xxxxxx
---------------------------- ---------------------------
Signature Signature
Xxxxxxx X. Xxxxxx
---------------------------- ---------------------------
Name Name
VP, Sales & Marketing
---------------------------- ---------------------------
Title Title
December 18, 2000
---------------------------- ---------------------------
Date Date
2
[LETTERHEAD OF XXXXX XXXXXXX LLP]
July 5, 2001
VIA FEDERAL EXPRESS
-------------------
Xxxxxx X. Xxxxxxx
Vice President & General Counsel
x-Xxxx.xxx Corporation
000 X. Xxxxxx Xx., Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
RE: Second Amendment to Vending Agreement
Dear Xxx:
Enclosed is a fully executed original of the "Second Amendment to
Vending Placement, Supply and Distribution Agreement" between Xxxxxxx Kodak
Company and x-Xxxx.xxx. Xxxxx-Narco, Inc. and Maytag Corporation for your files.
It was a pleasure working with you. I wish for many successes to e-Vend
and Kodak in this project.
Yours very truly,
/s/ Xxx X. Xxxxxxx
Xxx X. Xxxxxxx
Enclosure
cc: Xxxxx Xxxxxxxx, Esq. (w/o encl.)
IN WITNESS WHEREOF, the parties have duty executed this Amendment as of
the date first written above.
XXXXXXX KODAK COMPANY MAYTAG CORPORATION
/s/ Xxxxx Xxxxxxx
---------------------------- ---------------------------
Signature Signature
Xxxxx Xxxxxxx
---------------------------- ---------------------------
Name Name
President
---------------------------- ---------------------------
Title Title
6/20/01
---------------------------- ---------------------------
Date Date
X-XXXX.XXX CORPORATION XXXXX-NARCO, INC.
/s/ Xxxxx X. Xxxxxxx
---------------------------- ---------------------------
Signature Signature
Xxxxx X. Xxxxxxx
---------------------------- ---------------------------
Name Name
President & CEO
---------------------------- ---------------------------
Title Title
2/28/01
---------------------------- ---------------------------
Date Date
2
SECOND AMENDMENT TO
VENDING PLACEMENT, SUPPLY AND DISTRIBUTION AGREEMENT
THIS SECOND AMENDMENT (this "Second Amendment") is made as of the
_______ day of February, 2001 by and between Xxxxxxx Kodak Company, a New Jersey
corporation ("Kodak"), Maytag Corporation, a Delaware corporation ("Maytag"),
Xxxxx-Narco, Inc., a Delaware corporation and wholly-owned subsidiary of Maytag
Holdings, Inc., which is a wholly-owned subsidiary of Maytag ("Xxxxx") and
x-Xxxx.xxx Corporation, a Delaware corporation ("e-Vend") (collectively,
individually and respectively defined as "Parties" and "Party").
RECITALS
WHEREAS, the Parties entered into a certain Vending Placement Supply
and Distribution Agreement, dated December 1, 2000, for the distribution and
sale of Kodak Merchandise solely from Vending Systems installed in Target
Locations throughout the continental United States (the "Vending Agreement");
WHEREAS, the Parties entered into a First Amendment to Vending
Placement, Supply and Distribution Agreement, dated December 1, 2000, whereby
the Parties agreed to the removal provisions of Kodak Marks from the Vending
Systems (the "First Amendment") (the First Amendment collectively with the
Vending Agreement shall be defined as the "Agreement"); and
WHEREAS, the Parties, at the request of Maytag and e-Vend, now desire
to amend certain provisions of the Agreement as they relate to the e-Vend Escrow
Agreement attached to the Agreement as Schedule F.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises contained herein, and for other good and valuable consideration, the
receipt, sufficiency and incontestability of which hereby are acknowledged, the
Parties agree as follows:
(1) All capitalized terms not otherwise defined herein shall that the
meanings ascribed to them in the Agreement.
(2) Effective as of the date first written above, the Agreement is
hereby amended by deleting the original Schedule F and substituting in lieu
thereof the attached Comprehensive Preferred Escrow Agreement between eVend,
Maytag and DSI Technology Escrow Services, Inc. ("DSI"), dated March 28, 2001,
as the "e-Vend Escrow Agreement."
(3) Maytag and e-Vend agree to timely perform all of their obligations
under the e-Vend Escrow Agreement, as amended hereby, including making timely
payments to the Escrow Agent.
(4) At all times during the Term of this Agreement, or during any
Wind-Down Period as defined this Agreement, Maytag and e-Vend each agree to send
to Kodak a copy of any notice or other communication which Maytag or e-Vend may
give or receive (including, without limitation, any notice or communication
received from DSI) under the e-Vend Escrow Agreement within five (5) business
days after each such notice or communication is given or received.
(5) In the event that either Maytag or e-Vend default in their
obligation to the Escrow Agent under the e-Vend Escrow Agreement, Kodak, at its
option and in its sole discretion, may elect to cure the default, and Maytag and
e-Vend each hereby irrevocably authorize the Escrow Agent to accept performance
from Kodak in such event. The foregoing sentence imposes no obligation on Kodak
under the e-Vend Escrow Agreement, such action shall not cure the default of
Maytag or e-Vend , as applicable, under the Agreement or this Second Amendment,
all rights of Kodak being reserved.
(6) Except as noted above, the terms and conditions of this Agreement
remain in full force and effect.
[SIGNATURES CONTINUE ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have duly executed this Second
Amendment as of the date first written above.
IN WITNESS WHEREOF, the parties have duty executed this Amendment as of
the date first written above.
XXXXXXX KODAK COMPANY MAYTAG CORPORATION
/s/ Xxxxx X. Xxxxxxxx
---------------------------- ---------------------------
Signature Signature
Xxxxx X. Xxxxxxxx
---------------------------- ---------------------------
Name Name
SR. Vice President
---------------------------- ---------------------------
Title Title
3/17/01
---------------------------- ---------------------------
Date Date
X-XXXX.XXX CORPORATION XXXXX-NARCO, INC.
/s/ Xxxxxx X. Xxxxxxxx
---------------------------- ---------------------------
Signature Signature
Xxxxxx X. Xxxxxxxx
---------------------------- ---------------------------
Name Name
President
---------------------------- ---------------------------
Title Title
3/2/01
---------------------------- ---------------------------
Date Date
