Exhibit 10.15
DATABASE LICENSE AND
SUPPLY AND PURCHASE AGREEMENT
THIS DATABASE LICENSE AND SUPPLY AND PURCHASE AGREEMENT, dated as of January
17, 2000, is made by and between Xxxx.xxx, a Delaware corporation ("Xxxx.xxx"),
--------
and Lens Express, Inc., a Florida corporation ("Lens Express").
------------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Xxxx.xxx, among other things, sells and provides information
regarding medicines, face and body care products, nutritional supplements and
related products on its site located at the URL xxxx://xxx.xxxx.xxx on the
World Wide Web (the "Xxxx.xxx Site");
-------------
WHEREAS, Lens Express, among other things, sells contact lenses ("Contact
-------
Lenses") on its site located at the URL xxxx://xxx.xxxxxxxxxxx.xxx on the World
------
Wide Web (the "Lens Express Site"), and has compiled an electronic
-----------------
product/pricing database containing information pertaining to a variety of
brands and types of Contact Lenses (the "Lens Express Database"); and
---------------------
WHEREAS, Xxxx.xxx wishes to offer Contact Lenses for sale on the Xxxx.xxx
Site, and Lens Express wishes to make available to Xxxx.xxx the Lens Express
Database and certain order processing, fulfillment, shipping and customer
service functions, such that that Xxxx.xxx users may search for and purchase
Contact Lenses on and through the Xxxx.xxx Site, all in accordance with the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Grant of Rights. During the Term (as defined below), Lens Express
---------------
hereby grants to Xxxx.xxx the worldwide, non-exclusive right and license to use
all or any portion of the Lens Express Database on or in connection with the
Xxxx.xxx Site, solely in accordance with the terms and conditions of this
Agreement. Such right shall be limited to making the Lens Express Database
available to users of the Xxxx.xxx Site ("Xxxx.xxx Users") as necessary to allow
--------------
them to determine the availability of and to purchase Contact Lenses as
contemplated hereunder, and to using the Lens Express Database, in whole or in
part, in ways which effectuate the terms and conditions of this Agreement. The
license granted hereunder includes a license under any and all intellectual
property rights that Lens Express may presently have or may acquire in the
future with respect to the Lens Express Database.
2. Roles and Responsibilities; Cooperation
---------------------------------------
a. The parties agree that the intent of this Agreement is to make
all Contact Lenses offered for sale on the Lens Express Database available to
Xxxx.xxx Users on a continuous basis (subject to limited downtime as described
in Section 9(a)(vii)) in a seamless manner which does not alter the look, feel
or functionality of the Xxxx.xxx Site and to allow Xxxx.xxx Users who search the
Xxxx.xxx Site for Contact Lenses to be provided results from
the Lens Express Database. The Xxxx.xxx Site shall be the host site, and the
participation of Lens Express shall be invisible to the Xxxx.xxx Users except to
the extent determined by Xxxx.xxx. The customer experience of such Xxxx.xxx
Users utilizing the Lens Express Database shall be branded as "Xxxx.xxx,"
including, without limitation, the xxxx.xxx Contact Lens Department, the
transaction shopping cart, the customer's credit card invoice, customer service,
invoices and packaging. Notwithstanding the foregoing, Xxxx.xxx at any time may
agree, in its sole discretion, to co-brand the customer experience of such
Xxxx.xxx Users (e.g., through a banner stating "Xxxx.xxx powered by Lens
----
Express" or similar means), provided that Xxxx.xxx shall have no obligation to
do so.
b. Lens Express shall provide at no charge customized template pages
for use by Xxxx.xxx and Xxxx.xxx Users with respect to inquiries and orders,
order processing, order status, product descriptions and any other pages
reasonably deemed necessary by Xxxx.xxx from the existing Lens Express Site.
Lens Express shall be solely responsible for prescription verification and
prescription file maintenance with respect to Xxxx.xxx Users purchasing Contact
Lenses via the Lens Express Database. In addition, Lens Express shall provide
and maintain the Lens Express Database and provide services with respect to
fulfillment, shipping, customer service and other matters as set forth herein.
c. Xxxx.xxx and Lens Express agree to work together in good faith,
and to devote such resources as may reasonably be required, to implement the
terms of this Agreement. The parties agree to exchange all necessary
technological information (subject to appropriate restrictions on use and
disclosure by the recipient) in order to carry out the intent of this Agreement.
3. Orders; Fulfillment and Shipping.
--------------------------------
a. If a Xxxx.xxx User purchases Contact Lenses through the Lens
Express Database (a "Contact Lens Order") through the Xxxx.xxx Site (each such
------------------
purchaser, a "Purchaser"), Xxxx.xxx shall, as promptly as is technically
---------
feasible, [**], notify Lens Express of such Contact Lens Order. Following such
notification, Lens Express shall, as promptly as is technically feasible, notify
Xxxx.xxx if such Contact Lens Order is not available for purchase. If such
Contact Lens Order is available for purchase, then Lens Express shall, as
promptly as is technically feasible and commercially reasonable, cause such
Contact Lens Order to be shipped, as directed by Xxxx.xxx, either: (i) directly
to the Purchaser at the address specified by Xxxx.xxx in such notification; or
(ii) to the Xxxx.xxx distribution center. Xxxx.xxx and Lens Express hereby agree
to the standards for quality control, which will at a minimum dictate that Lens
Express cannot fulfill with contracts that are labeled as samples or "not for
resale" of all services and timeliness of order fulfillment set forth on
Schedule 3(a), which is attached hereto and made a part hereof.
-------------
b. Lens Express shall be responsible for the shipment of, and shall
cause to be shipped, each Contact Lens Order purchased by a Purchaser pursuant
to the terms of this Agreement, regardless of whether or not such Contact Lens
Order is filled by Lens Express from inventory or available to Lens Express from
a third party. Lens Express shall provide shipping
**Confidential treatment has been
requested with respect to the
information contained within the
"[**]" markings. Such marked
portions have been omitted from
this filing and have been filed
separately with the Securities and
Exchange Commission.
of Contact Lens Orders by Priority Mail at no charge to Xxxx.xxx or the
Purchaser. Upon request by a Purchaser, Lens Express shall provide overnight
shipping by Federal Express at Lens Express' best negotiated rate with Federal
Express.
c. With respect to the supply of Contact Lenses for fulfillment of
Contact Lens Orders, Lens Express shall treat Xxxx.xxx no less favorably than it
treats any other third party. To the extent that Lens Express has any shipping
backlog or is suffering any delays with respect to shipping Contact Lenses, Lens
Express shall use its commercially reasonable efforts so that Contact Lens
Orders to be shipped pursuant to this Agreement shall have shipping priority at
least equal to other Lens Express Contact Lens shipments.
d. Lens Express shall comply with all reasonable Xxxx.xxx invoicing
requirements which do not materially increase Lens Express' handling costs.
Fees to be charged by Lens Express as a result of Xxxx.xxx requirements which
materially increase Lens Express' handling costs shall be mutually agreed on by
the parties. Shipments of Contact Lens Orders directly to a Purchaser shall be
shipped in Standard USPS priority mail packaging provided to Lens Express by the
USPS. The package may include up to three (3) package inserts (not to exceed
one ounce in weight), that will be provided by Xxxx.xxx at its cost, but will
not contain any materials promoting or referencing Lens Express.
e. Other than with respect to Xxxx.xxx invoicing requirements Lens
Express may not, pursuant to this Agreement, use the Xxxx.xxx name, or any
Xxxx.xxx logos, trade names or trademarks, without the prior written consent of
Xxxx.xxx. During the Term, Lens Express hereby grants to Xxxx.xxx the
worldwide, non-exclusive right and license to use, subject to the prior written
consent of Lens Express, which consent shall not be unreasonably withheld, the
Lens Express name and Lens Express logos and trademarks as provided by Lens
Express to Xxxx.xxx for use on the Xxxx.xxx site. Other than as provided in
this Section 3(e), Xxxx.xxx may not use the Lens Express name, or any Lens
Express logos, trade names or trademarks, without the prior written consent of
Lens Express.
f. [**] Purchasers located in the United States shall, to the extent
such orders are sourced by Lens Express within the United States, have their
Contact Lens Orders picked, packed and ready to be shipped, by whichever of the
shipping options offered by Xxxx.xxx chosen, at the docking station within 24
hours of the corresponding order confirmation and/or prescription verification
whichever occurs later. [**]
4. Pricing and Payment Terms.
-------------------------
a. Xxxx.xxx shall be responsible for the credit card billing and
collections with respect to Contact Lens Orders. Each Purchaser shall pay
Xxxx.xxx, in accordance with the pricing and payment terms set forth on the
Xxxx.xxx Site, for each Contact Lens Order purchased by them.
**Confidential treatment has been
requested with respect to the
information contained within the
"[**]" markings. Such marked
portions have been omitted from
this filing and have been filed
separately with the Securities and
Exchange Commission.
b. [**]
c. Lens Express shall invoice Xxxx.xxx [**], or at such other times
as mutually agreed upon by the parties, for each shipped Contact Lens Order,
including amounts, if any, to be reimbursed for shipping, and Xxxx.xxx shall pay
such invoices [**] by Xxxx.xxx. Lens Express shall provide Xxxx.xxx with
electronic files for billing and payment coordination. [**]
d. [**] following the date that an Contact Lens Order was shipped by
Lens Express pursuant to the terms of this Agreement, Xxxx.xxx may notify Lens
Express that it shall be returning such Contact Lens Order to Lens Express. Upon
such notification, Lens Express shall credit Xxxx.xxx's account in an amount
equal to the price paid by Xxxx.xxx for such Contact Lens Order. Xxxx.xxx may
wait a reasonable amount of time to physically return any returned Contact Lens
Order to Lens Express so that it can ship returns back to Lens Express in bulk.
Xxxx.xxx shall pay all shipping costs for returning such returned Contact Lenses
to Lens Express. Additionally, any significant customer returns that are the
result of a mispick on Lens Express's part will be credited, along with Lens
Express covering the full cycle of shipping costs that such a return and
reshipment necessitates.
e. After the first year of the Term, the parties shall assess actual
sales and cost data and shall commence good faith negotiations regarding pricing
based on such actual data. If at such time the parties are unable to reach
mutually agreeable terms regarding pricing, then this Agreement shall continue
with its current pricing terms.
f. [**]
**Confidential treatment has been
requested with respect to the
information contained within the
"[**]" markings. Such marked
portions have been omitted from
this filing and have been filed
separately with the Securities and
Exchange Commission.
5. Customer Service; Reporting.
---------------------------
a. All customer service calls from Xxxx.xxx Users and Purchasers
shall go directly to Xxxx.xxx customer service agents. Such Xxxx.xxx customer
service agents shall answer questions regarding navigation of the Xxxx.xxx Site
and the pre-delivery status of Contact Lens Orders. Questions that refer to
specific product information regarding Contact Lenses or that require the
specific expertise of Lens Express with respect thereto shall be forwarded to
Lens Express' customer service agents. Lens Express and Xxxx.xxx agree to
jointly create customer service scripts and escalation criteria to ensure a high
level of service while taking advantage of Xxxx.xxx's existing customer service
capacity and making best efforts to use Xxxx.xxx's software at Xxxx.xxx's
expense.
b. No less than once per day, Lens Express shall provide reports, in
form and substance and by means reasonably acceptable to Xxxx.xxx, with respect
to the status of orders, shipment, delivery, and returns.
6. Maintaining and Updating the Lens Express Database.
--------------------------------------------------
a. Lens Express shall have the sole responsibility for maintaining
and updating the Lens Express Database. Lens Express shall update the Lens
Express Database as promptly as is technically feasible and commercially
reasonable.
b. Contact Lens listings in the Lens Express Database shall include
condition abbreviations and identity SKUs in all cases using ISBN, LoC or other
identifiers, to be mutually agreed upon. In addition the Lens Express Database
shall permit confirmation of availability of each Contact Lens Order.
7. Non-Exclusive Arrangement; Future Arrangements.
----------------------------------------------
a. The provision of services to Xxxx.xxx by Lens Express pursuant to
the terms and conditions of this Agreement is non-exclusive. Lens Express may
enter into similar arrangements with other parties. Pursuant to the binding LOI
by and between Xxxx.xxx and Lens Express dated December 8, 1999 (made a part
hereof by reference), Xxxx.xxx agrees to integrate back-end systems only with
Lens Express in the contact space and Xxxx.xxx agrees that it will send all
orders for contact lenses to Lens Express for fulfillment. Within the confines
and limitations of the foregoing Xxxx.xxx may incorporate any other database
(including any database developed by Xxxx.xxx or any of its affiliates) into the
Xxxx.xxx Site for the sale of contact lenses.
8. Policies and Customer Information. All Xxxx.xxx Users, including
---------------------------------
Purchasers, shall be deemed to be customers of Xxxx.xxx. Accordingly, all
Xxxx.xxx rules, policies and operating procedures concerning customer orders,
customer service and product sales shall apply to Xxxx.xxx Users and Purchasers.
Xxxx.xxx may change its policies and operating procedures at any time. Xxxx.xxx
shall determine the prices to be charged for products, including Contact Lenses,
and/or other merchandise sold in accordance with its own pricing policies.
Prices and availability may vary from time to time. Xxxx.xxx shall use
commercially reasonable efforts to
present accurate information, but Xxxx.xxx cannot guarantee the availability or
price of any particular item. The parties hereto hereby agree that title to any
information collected by Xxxx.xxx with respect to Xxxx.xxx Users and Purchasers,
including the names, addresses, and e-mail addresses thereof, shall be owned by
Xxxx.xxx, and Xxxx.xxx shall have the sole and exclusive right to send re-order
reminders and other marketing materials to such Xxxx.xxx Users and Purchasers.
Xxxx.xxx shall have no obligation to share such information with Lens Express;
provided, however, that Lens Express shall have the right to receive such
information about Purchasers as is needed to satisfactorily complete its duties
hereunder, but provided further that Lens Express shall hold and use such
information only as necessary to perform its obligations of this Agreement and
will under no circumstances share this information with any third parties.
9. Representations and Warranties.
------------------------------
a. Lens Express hereby represents and warrants to Xxxx.xxx as
follows:
i. This Agreement has been duly and validly executed and
delivered by Lens Express and constitutes the legal, valid and binding
obligation of Lens Express, enforceable against Lens Express in accordance with
its terms.
ii. Lens Express is duly incorporated, validly existing and in
good standing under the laws of the State of Florida, and has full corporate
power and authority to execute, deliver and perform this Agreement.
iii. The execution, delivery and performance by Lens Express of
this Agreement and the consummation by it of the transactions contemplated
hereby shall not, with or without the giving of notice, the lapse of time or
both, conflict with or violate (A) any provision of law, rule or regulation to
which Lens Express is subject, (B) any order, judgment or decree applicable to
Lens Express or binding upon its assets or properties, (C) any provision of the
by-laws or certificate of incorporation of Lens Express or (D) any agreement or
other instrument applicable to Lens Express or binding upon its assets or
properties.
iv. To the best of its knowledge, no consent, approval or
authorization of, or exemption by, or filing with, any governmental authority or
any third party is required to be obtained or made by Lens Express in connection
with the execution, delivery and performance of this Agreement or the taking by
Lens Express of any other action contemplated hereby.
v. There is no pending or, to the best knowledge of Lens
Express, threatened claim, action or proceeding against Lens Express, or any
affiliate thereof, with respect to the execution, delivery or consummation of
this Agreement and, to the best knowledge of Lens Express, there is no basis for
any such claim, action or proceeding.
vi. It is the sole and exclusive owner of the Lens Express
Database and/or has the right to license the Lens Express Database to Xxxx.xxx
in accordance with, and in the manner contemplated by, the terms and conditions
of this Agreement; the license granted by Lens Express to Xxxx.xxx hereby does
not and shall not breach, conflict with or constitute a
default under any agreement or other instrument applicable to Lens Express or
binding upon its assets or properties; and the Lens Express Database does not
and shall not infringe upon any rights, including any trademark, trade name,
service xxxx, copyright or other personal or proprietary right, of any other
person or entity.
vii. It shall make the most current operating version of the Lens
Express Database available to Xxxx.xxx in accordance with the terms and
conditions of this Agreement on a continuous basis; provided, that the parties
shall mutually agree upon limited scheduled downtime of the Lens Express
Database for maintenance, which downtime shall be scheduled only during
Xxxx.xxx's lowest usage times.
viii. To the best of its knowledge, the information included in the
Lens Express Database is accurate in all material respects.
ix. There is no material contained in the Lens Express Database that
is libelous or violative of the right of privacy or publicity of any person,
firm, corporation or other entity, and the utilization of the Lens Express
Database by Xxxx.xxx pursuant to and in accordance with this Agreement shall not
violate the rights of any person, firm, corporation or other entity.
x. To the best of its knowledge, the Lens Express Database does not
contain any infection, viruses worms, Trojan horses or other code that manifests
contaminating or destructive properties.
xi. It is the sole and exclusive owner of the Lens Express name and
the Lens Express logos and trademarks provided or to be provided by Lens Express
to Xxxx.xxx for use on the Xxxx.xxx Site in accordance with the terms of Section
3(e) of this Agreement and/or has the right to license such name and logos and
trademarks to Xxxx.xxx in accordance with, and in the manner contemplated by,
the terms and conditions of this Agreement; such license granted by Lens Express
to Xxxx.xxx does not and shall not breach, conflict with or constitute a default
under any agreement or other instrument applicable to Lens Express or binding
upon its assets or properties; and the use of the Lens Express name and such
logos and trademarks by Xxxx.xxx as contemplated by Section 3(e) of this
Agreement does not and shall not infringe upon any rights, including any
trademark, trade name, service xxxx, copyright or other personal or proprietary
right, of any other person or entity.
b. Xxxx.xxx hereby represents and warrants to Lens Express as
follows:
i. This Agreement has been duly and validly executed and delivered
by Xxxx.xxx and constitutes the legal, valid and binding obligation of Xxxx.xxx,
enforceable against Xxxx.xxx in accordance with its terms.
ii. Xxxx.xxx is duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has full power and authority to
execute, deliver and perform this Agreement.
iii. The execution, delivery and performance by Xxxx.xxx of this
Agreement and the consummation by it of the transactions contemplated hereby
shall not, with or without the giving of notice, the lapse of time or both,
conflict with or violate (A) any provision of law, rule or regulation to which
Xxxx.xxx is subject, (B) any order, judgment or decree applicable to Xxxx.xxx or
binding upon its assets or properties, (C) any provision of the organizational
documents of Xxxx.xxx or (D) any agreement or other instrument applicable to
Xxxx.xxx or binding upon its assets or properties.
iv. To the best of its knowledge, no consent, approval or
authorization of, or exemption by, or filing with, any governmental authority or
any third party is required to be obtained or made by Xxxx.xxx in connection
with the execution, delivery and performance of this Agreement or the taking by
Xxxx.xxx of any other action contemplated hereby.
v. There is no pending or, to the best knowledge of Xxxx.xxx,
threatened claim, action or proceeding against Xxxx.xxx, or any affiliate
thereof, with respect to the execution, delivery or consummation of this
Agreement and, to the best knowledge of Xxxx.xxx, there is no basis for any such
claim, action or proceeding.
vi. It is the sole and exclusive owner of all logos, trademarks and
service marks provided or to be provided by Xxxx.xxx to Lens Express to
facilitate the performance of Lens Express' obligations under this Agreement
and/or has the right to license such name and logos and trademarks to license to
Lens Express in accordance with, and in the manner contemplated by, the terms
and conditions of this Agreement; and any such license does not and shall not
breach, conflict with or constitute a default under any agreement or other
instrument applicable to Xxxx.xxx or binding upon its assets or properties; and
to the best of its knowledge, the use of any such logos, trademarks and service
marks by Lens Express as contemplated by this Agreement does not and shall not
infringe upon any rights, including any trademark, trade name, service xxxx,
copyright or other personal or proprietary right, of any other person or entity.
10. Term; Termination.
-----------------
a. The term of this Agreement (the "Term") shall commence on the
----
date hereof and shall continue through December __, 2002, unless earlier
terminated as provided in clauses (b) and (c) below.
b. Either party shall have the right to terminate this Agreement by
delivery of written notice of termination to the other party hereto in the event
such other party materially breaches any representation, warranty, covenant or
agreement made by it hereunder or otherwise fails to perform any of its material
obligations hereunder and such breach or failure is not cured within thirty (30)
days after delivery of such notice; provided, however, that each party shall be
entitled to terminate this Agreement effective upon delivery of notice in the
event of a breach by the other party of the provisions of Sections 12 and 13
hereof.
c. If any law prohibits online commerce such as that conducted by
Xxxx.xxx, this Agreement shall automatically terminate.
d. Except as otherwise provided in this Agreement, upon such
effective date of termination, each party's rights and obligations hereunder
shall terminate; provided, however, that the rights and obligations of the
parties hereto under Sections 4d, 8, 9, 10, 12, 13, 14, 15 and 16 hereof shall
survive such expiration and termination.
11. Audit Rights. Lens Express shall maintain true and correct books of
------------
account containing a record of all information necessary to calculate the price
paid by Xxxx.xxx for Lens Express Contact Lenses and corresponding Lens
Express published prices, for the term and for a period of three (3) years
following the term. Xxxx.xxx or its independent outside auditors shall be
entitled to review, at its cost, during Lens Express' regular business hours and
upon not less than ten (10) business days prior notice, such books and records
for the purpose of verifying the accuracy of such information and calculations.
Any such review shall be made not more than twice in any twelve (12) month
period. In the event that in the course of or as a result of any such review
Xxxx.xxx or its agent discovers any discrepancy from information previously
distributed to Xxxx.xxx, then, such discrepancy shall be remedied and, if such
discrepancy resulted in overpayments by Xxxx.xxx during the relevant period in
an amount exceeding 5% of the amount actually paid, Lens Express shall bear the
cost of such audit.
12. Confidentiality. The existence and terms of this Agreement, and any
---------------
other information pursuant to or in connection with this Agreement which would
be deemed "Confidential Information" under the Confidentiality Agreement dated
September 28, 1999 between Xxxx.xxx and Lens Express (the "NDA Agreement") shall
-------------
be treated as Confidential Information under the NDA Agreement and shall, during
the term of this Agreement and for the three (3) year period following the date
of this Agreement, be governed by the confidentiality provisions of the NDA
Agreement. Notwithstanding the foregoing, with respect to filing obligations
under the securities laws, each party shall, to the extent that it is required
to file this Agreement, file this Agreement in redacted form reasonably approved
by the other party prior to such filing.
13. Publicity.
---------
a. Notwithstanding the provisions of Section 12 hereof, promptly
after the execution of this Agreement, Xxxx.xxx shall have the right, but not
the obligation, to issue a press release describing the terms of the
relationship between the parties that has been established by this Agreement;
provided, that Lens Express shall have the right to review such document prior
to release.
b. Subject to Section 12 hereof and clause (a) above, neither party
shall (i) create, publish, distribute or permit any written material which makes
reference to the other party hereto without first submitting such material to
the other party and receiving the prior written consent of such party, which
consent shall not be unreasonably withheld or delayed, nor (ii) disclose to the
public or any third party (other than such party's attorneys, accountants and
prospective investors) the relationship between them or the transactions
contemplated by this Agreement without receiving the prior written consent of
the other party, which consent shall not be unreasonably withheld or delayed.
In furtherance of, and in no way limiting the foregoing,
the parties agree to refrain from using each other's names, trademarks or logos
on any outside communications, including correspondence to dealers, press
releases, advertisements, and marketing materials without the prior written
consent of the other party. The parties shall work together to develop
pre-approved "talking points" to facilitate consistent messages and responses to
dealers and the press inquiring about the Lens Xxxxxxx-Xxxx.xxx relationship
14. Indemnification.
---------------
a. Each party (an "Indemnifying Party") hereby agrees to indemnify
------------------
and hold harmless the other party and its subsidiaries and affiliates, and their
respective directors, officers, employees, agents, shareholders, partners,
members and other owners, against any and all claims, actions, demands,
liabilities, losses, damages, judgments, settlements, costs and expenses
(including reasonable attorneys' fees) (any or all of the foregoing hereinafter
referred to as "Losses") insofar as such Losses (or actions in respect thereof)
------
arise out of or are based on any claim that, if true, would constitute a breach
of any representation or warranty made by the Indemnifying Party.
b. Lens Express hereby agrees to indemnify and hold harmless
xxxx.xxx and its subsidiaries and affiliates, and their respective directors,
officers, employees, agents, shareholders, partners, members and other owners,
from and against any and all Losses insofar as such Losses (or actions in
respect thereof) arise out of or are related to any third party claim relating
to Contact Lenses and any other products or services supplied by Lens Express,
including, but not limited to, any claim (whether based on strict liability, in
tort, negligence, breach of express or implied warranty or other legal theory)
that personal injury, death or property damage was caused by a defect in design,
material or manufacture of any such Contact Lenses, products or services.
15. Disclaimers. Xxxx.xxx makes no representation that the operation of
-----------
the Xxxx.xxx Site shall be uninterrupted or error free, and Xxxx.xxx shall not
be liable in any way for any damages relating to, or the consequences of, any
such interruptions or errors. Lens Express makes no representations that the
Lens Express Database shall uninterrupted or error free, and Lens Express shall
not be liable in any way for any damages relating to, or the consequences of,
any such interruptions or errors.
16. Miscellaneous.
-------------
a. This Agreement shall be governed by and construed in accordance
with the laws of the State of California, without giving effect to the conflict
of law principles thereof.
b. This Agreement constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and supersedes any and all
prior agreement, written and oral, with respect thereto. No change, amendment
or modification of any provision of this Agreement shall be valid unless set
forth in a written instrument signed by both parties.
c. The failure of either party to exercise any right or remedy
provided for herein shall not be deemed a waiver of any right or remedy
hereunder.
d. Any and all notices and other communications to either party
hereunder shall be in writing and deemed delivered (i) upon receipt if by hand,
overnight courier or telecopy (provided that in the event of a telecopy,
concurrently therewith a copy is mailed in accordance with clause (ii) hereof)
and (ii) three days after mailing by first class, certified mail, postage
prepaid, return receipt requested (1) if to Lens Express to 000 XX 00xx Xxxxxx,
Xxxxxxxxx Xxxxx, Xxxxxxx 00000, attention: Xxxxx X'Xxxxx, telecopier no.: 954-
246-2017, and (2) if to Xxxx.xxx to 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx,
XX 00000, attention: Xxxx Xxxxx, telecopier no.: 415-__________, or to such
other address for a party as shall be specified by like notice.
e. This Agreement does not constitute either party an agent, legal
representative, joint venturer, partner or employee of the other for any purpose
whatsoever and neither party is in any way authorized to make any contract,
agreement, warranty or representation or to create any obligation, express or
implied, on behalf of the other party hereto.
f. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and together which shall constitute
one and the same instrument.
g. The section headings used herein are for the convenience of the
parties only, are not substantive and shall not be used to interpret or construe
any of the provisions contained herein. All references to the term "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation"
h. This Agreement and the provisions hereof shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
successors and permitted assigns; provided, however, that neither party shall
have the right to assign its rights or obligations hereunder to any other person
or entity without the prior written consent of the other party; but further
provided, that such consent shall not be required for a transfer of this
Agreement pursuant to the sale of all or substantially all of such party's
business. Notwithstanding the foregoing, this Agreement shall continue in full
force and effect following a Change of Control (as defined below). For purposes
of this Section, the term "Change of Control" with respect to either party means
the occurrence of one or more of the following events: (i) after the date of
this Agreement, any person or entity (other than any person or entity who is the
beneficial owner of such party's voting securities as of the date of this
Agreement) becomes a beneficial owner (as such term is defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended) directly or
indirectly of securities representing 50% or more of the total number of voting
securities of such party; or (ii) persons who constitute such party's board of
directors prior to any transaction or series of transactions cease to constitute
at least 50% of such party's board of directors as a result of such transaction
or series of transactions; or (iii) any merger, consolidation, liquidation or
sale of assets involving such party where an unaffiliated third party is the
surviving entity of such transaction, or any combination of the foregoing.
i. Each provision of this Agreement shall be considered severable
and if, for any reason, any provision hereof is determined to be invalid and
contrary to, or in conflict with, any existing or future law or regulation by
any court or agency having valid jurisdiction, such provision shall be given the
maximum permissible effect, and such invalidity or illegality shall not impair
the operation or affect the remaining provisions of this Agreement; and the
latter shall continue to be given full force and effect and bind the parties
hereto and such invalid provisions shall be deemed not to be a part of this
Agreement.
j. Neither party shall be liable for failure to fulfill its
obligations hereunder, or for delays in performance, due to causes beyond its
reasonable control, including acts of God, acts or omissions of civil or
military authority, fires, strikes, floods, epidemics, riots or acts of war.
k. With respect to each new item or product category added to the
Lens Express Database or offered for sale by Lens Express, the parties hereto
agree that prior to such addition or offering they shall enter into good faith
negotiations regarding the sale of such products or items on the Xxxx.xxx Site.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
LENS EXPRESS, INC.
By: /s/ Xxxxx X'Xxxxx
Name: Xxxxx X'Xxxxx
Title:Executive Vice President
XXXX.XXX
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President of Corporate Development
