AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of the 19th day of
September, 2002, by and between QVC, Inc. ("QVC"), a Delaware corporation with
its principal place of business at Studio Park, 0000 Xxxxxx Xxxxx, Xxxx Xxxxxxx,
XX 00000, and Xxxxxx Technologies, Inc. ("Company"), a Delaware corporation with
its principal place of business at 0000 Xxxxxx Xxxx Xxxx., Xxxxxxx Xxxxx, XX
00000.
BACKGROUND
A. QVC and its affiliates promote, market, sell and distribute
(collectively, "Promote") products through various means and media, including
without limitation, their televised shopping programs (the "Programs").
B. Company manufactures, develops and/or sells items that incorporate,
include and/or are otherwise associated with the material known as "ComforTemp"
(all such items that incorporate, include and/or are otherwise associated with
the material known as "ComforTemp" regardless of whether Company uses the words
"ComforTemp" or any other trademark, tradename, or logo in connection with such
material and/or such items, manufactured, developed or sold by Company, whether
now in existence or developed hereafter, are collectively referred to
hereinafter as the "Products").
C. Company licenses other manufacturers and/or vendors (the
"Licensees") to manufacture, sell, distribute and develop products incorporating
the material known as "ComforTemp". QVC may from time to time issue Purchase
Orders for the Products to such Licensees and/or Company.
D. Company and QVC desire that QVC Promote the Products through certain
means and media, and that a mutually agreed upon representative of Company
(hereinafter referred to collectively as the "Spokesperson"), appear on certain
of the Programs to assist QVC in promoting the Products.
NOW, THEREFORE, incorporating the foregoing background, in
consideration of the Purchase Order(s) (as defined below) issued or to be issued
by QVC to Company, for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Grant of License and Other Rights.
(a) Company grants to QVC and its affiliates throughout the Term (as
defined in paragraph 3 below) of this Agreement: (i) the exclusive right in the
United States, its territories and possessions, the United Kingdom, Germany, and
Japan to Promote the
Products through Direct Response Television Programs (as defined below); (ii)
the nonexclusive worldwide right to Promote the Products through all means and
media other than Direct Response Television Programs; and (iii) the right to
use, publish, reproduce and transmit the trademarks, trade names and/or logos
used and/or developed by Company in connection with the Products, including
without limitation, the words "ComforTemp" (whether now in existence or created
hereafter, collectively, the "Trademarks") to Promote the Products in accordance
with the terms and conditions of this Agreement. In addition, Company grants to
QVC and its affiliates the nonexclusive right (subject to the provisions of
paragraph 5 below) to use the rights granted in (i), (ii) and (iii) above during
the Sell-Off Period (as defined in paragraph 3 below). For purposes of this
Agreement, "Direct Response Television Programs" shall mean any televised
program which requests a consumer to respond to any promotion of any product or
service by mail, telephone or other electronic means, which program: (A)
contains an intermittent or continuous call to action, and devotes at least
twenty percent (20%) of its programming time to the promotion of products or
services; or (B) is otherwise in the style of a televised retailing program.
(b) Company shall cause the Spokesperson to grant to QVC and its
affiliates (i) throughout the Term of this Agreement, the exclusive worldwide
right to use his/her name, likeness, image, voice and performance (the
"Endorsement") to Promote the Products through Direct Response Television
Programs, in accordance with the terms and conditions of this Agreement, and
(ii) throughout the Term of this Agreement and the Sell-Off Period, the
nonexclusive worldwide right to use the Endorsement to Promote the Products
through any means and media. Hereinafter, the rights granted to QVC pursuant to
subparagraph (a) of this paragraph 1 and this subparagraph (b) are collectively
referred to as the "License".
2. Products.
(a) From time to time, QVC may issue to Company a purchase order, the
current form of which is attached hereto as Exhibit "A" and incorporated herein
by reference (any such purchase order, as may be issued from time to time, is
hereinafter referred to as a "Purchase Order"). Hereafter, any purchases of
Products by QVC shall be made according to the terms set forth in this Agreement
and on any such Purchase Order(s). This paragraph 2, together with all other
terms of each Purchase Order, shall survive the expiration or termination of
this Agreement. Notwithstanding anything to the contrary contained in this
Agreement or otherwise, QVC makes no representations or warranties with respect
to (i) the amount of Products that may be sold through the Programs, if any,
(ii) the number of times, if any, the Products may be offered for sale on the
Programs, or (iii) the amount of revenue, if any, that may be generated through
any sales of Products on the Programs. This Agreement does not obligate QVC to
purchase any Products from Company or to Promote or sell any Products. QVC
expressly reserves the right to Promote products that are in competition with
the Products.
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(b) During the Term of this Agreement, Company and/or the Spokesperson,
at their sole expense, shall provide to QVC or its designee, upon the request of
QVC, (i) all research and development for the Products, and subject the Products
to all necessary or appropriate quality control procedures, independent consumer
and market research, and other testing to ensure that the Products fully comply
with all claims made or to be made about the Products and any applicable state
and federal laws, rules and regulations, (ii) consulting and advisory services
with respect to QVC's efforts to Promote the Products, and (iii) such other
creative input as QVC may deem appropriate from time to time.
3. Term.
(a) Generally. The initial term of this Agreement (the "Initial Term")
shall commence on ********* and shall expire ******* after ************* after
the date hereof. Upon the expiration of the Initial Term, this Agreement shall
automatically and continually renew for additional one-year terms (each, a
"Renewal Term," and the Initial Term and all Renewal Terms being collectively
referred to herein as the "Term") in perpetuity, unless (i) either party
notifies the other party in writing, at least 30 days prior to the end of the
Initial Term or any Renewal Term, as the case may be, of its intent to terminate
the Agreement, and (ii) Net Sales of Products during the Initial Term or such
Renewal Term are less than the Minimum Amount (as such terms are defined in
paragraphs 3(d) and (e) hereof).
(b) Right to Cure. Notwithstanding anything to the contrary contained
in paragraph 3(a) hereof, if Company gives QVC timely notice of its intent to
terminate the Agreement due to insufficient Net Sales for the Initial Term or
then-current Renewal Term, as the case may be, then QVC may cure such shortfall
by purchasing or issuing purchase order(s) for Products in quantities which, if
sold during such period and added to existing Net Sales for such period, would
yield Net Sales equaling or exceeding the Minimum Amount for such period. In
such case, such notice of termination shall be deemed rescinded, and the
Agreement shall renew for another Renewal Term. Net Sales derived from Products
ordered pursuant to such right to cure shall not be counted toward the Minimum
Amount applicable to the next succeeding Renewal Term.
(c) Failure to Achieve Minimum Amount. If Company gives QVC timely
notice of its intent to terminate the Agreement due to insufficient Net Sales
for the Initial Term or then-current Renewal Term, as the case may be, and QVC
fails to exercise its right to cure under paragraph 3(b) hereof, then the
Agreement shall terminate at the conclusion of such Term, whereupon QVC may
continue to exercise the License rights, including the Endorsement, on a
nonexclusive basis (subject to the provisions of paragraph 5 below) for as long
as necessary to Promote the Products through any means or media (i) to sell off
any of its remaining inventory of Products, (ii) to place additional orders for
Products to fulfill any remaining unfilled customer orders for Products, and
(iii) to have such additional orders fulfilled by Company (the "Sell-Off
Period"). Failure
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of QVC to achieve the Minimum Amount in the Initial Term or any Renewal Term
shall not constitute a breach of this Agreement.
(d) Minimum Amount. For purposes of this Agreement, "Minimum Amount"
shall mean *****************, and for each succeeding Term, ************* of the
Minimum Amount applicable to the immediately preceding Term.
(e) Net Sales. For purposes of this Agreement, "Net Sales" shall mean
the aggregate amount of all revenue generated through the sale of Products
(including Products purchased by QVC from Licensees and Company) by QVC and its
affiliates during the applicable term excluding freight, shipping and handling
charges, customer returns, and sales, use and other taxes.
4. Appearances.
(a) If requested by QVC, Company shall cause the Spokesperson to make
******** on the Programs during each year during the Term of this Agreement. For
purposes of this Agreement, an "Appearance" shall mean a one (1) to three (3)
day period during which the Products may be offered for sale on certain of the
Programs. Company shall cause the Spokesperson to agree to appear in promotional
announcements featuring the Programs, at dates and times determined by QVC,
subject to her reasonable availability. Unless otherwise determined by QVC, all
Appearances and promotional announcements shall take place at QVC's studios in
West Chester, Pennsylvania. Any costs and expenses of the Spokesperson that may
arise in connection with all Appearances and promotional announcements,
including without limitation, travel, lodging and food, shall be borne by
Company. QVC makes no representations or warranties with respect to the number
of Appearances, if any, that it may request the Spokesperson to make. Company
and QVC may mutually agree to replace any Spokesperson at any time during the
Term of this Agreement. In the event of the death or disability of the
Spokesperson, or the failure of the Spokesperson to make an Appearance required
pursuant to this Agreement for any other reason, Company shall use its best
efforts to provide an alternative Spokesperson satisfactory to QVC.
(b) Company agrees to protect, defend, hold harmless and indemnify QVC
and its affiliates, employees, agents, officers and directors, from and against
any and all claims, actions, suits, costs, liabilities, damages and expenses
(including, without limitation, all attorney's fees and court costs) arising out
of or related to any acts or omissions of Company or Spokesperson in connection
with the Appearances, which obligation shall survive the expiration or
termination of this Agreement.
5. Non-Compete. Except as contemplated hereunder and without the prior
written consent of QVC, neither Company nor Spokesperson shall, during the Term
of this Agreement, ****** ********* following the expiration or termination of
this
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Agreement, promote, advertise, endorse or sell (or otherwise cause or permit a
third party to promote, advertise, endorse or sell) any goods, services, or
products, including without limitation the Products, anywhere in the United
States, its territories and possessions, the United Kingdom, Germany, and Japan
by means of Direct Response Television Programs. In addition to the foregoing,
******************************************************************************
******************************************************************************.
Notwithstanding the foregoing, in the event that during the Term of this
Agreement, Spokesperson's association with Company is terminated for any reason
and, in connection with such termination, Spokesperson's role as the
Spokesperson under this Agreement is terminated, then Spokesperson's obligations
pursuant to this paragraph 5, except the obligations with respect to the
Products, shall terminate upon the later of the **************************. In
the event that during the Term of this Agreement, Spokesperson's role as the
Spokesperson under this Agreement is terminated for any reason other than in
connection with the termination of Spokesperson's association with Company, then
Spokesperson's obligations pursuant to this paragraph 5, except the obligations
with respect to the Products, shall terminate upon the date which is
********************************* *******. Spokesperson's obligations with
respect to the Products shall in all cases ********** as set forth in the first
sentence of this paragraph 5. This provision shall survive the expiration or
termination of this Agreement.
6. Representations, Warranties and Covenants.
(a) Company represents, warrants and covenants, which representations,
warranties and covenants shall continue during the Term of this Agreement and
shall survive the expiration or termination of this Agreement, that: (i) it
possesses the full power and exclusive right to grant the License to QVC; (ii)
the execution, delivery and performance of this Agreement by Company does not
violate any agreement, instrument, judgment, order or award of any court or
arbitrator or any law, rule or regulation; (iii) each Product shall comply with
all foreign, federal, state, county, municipal or other statutes, laws, orders
and regulations of any governmental or quasi-governmental entity; (iv) QVC's use
of the License, and QVC's Promotion of the Products as permitted hereunder, will
not infringe or otherwise violate the copyrights, trademarks, or other
proprietary rights of third parties or constitute unfair competition; (v) all
claims concerning the Products made by Company are, and will be, true and
correct at the time such claims are made, and supported by data which complies
with applicable law; and (vi) except as contemplated hereunder, there exist no
agreements, or other arrangements, for Company to endorse, promote, advertise,
or sell any Products through Direct Response Television Programs. Company shall
provide QVC with any and all documents reasonably required or requested by QVC
at any time and from time to time to support the representations and warranties
herein contained. Company shall cause any Spokesperson to agree to the
provisions set forth in paragraphs 1(b), 2(b), 3, 4, 5, 6(b), 7, 8 and 9 of this
Agreement by such Spokesperson executing Exhibit "B" attached hereto and
incorporated herein by reference.
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(b) The Spokesperson shall represent, warrant and covenant, which
representations, warranties and covenants shall continue during the term of this
Agreement and shall survive the expiration or termination of this Agreement,
that: (i) he/she possesses the full power and exclusive right to grant the
Endorsement to QVC; (ii) the execution, delivery and performance of this
Agreement does not violate any agreement, instrument, judgment, order or award
of any court or arbitrator or any law, rule or regulation; (iii) QVC's use of
the Endorsement, and QVC's Promotion of the Products as permitted hereunder,
will not infringe or otherwise violate the copyrights, trademarks or other
proprietary rights of third parties or constitute unfair competition; (iv) all
claims concerning the Products made by Spokesperson are, and will be, true and
correct at the time such claims are made, and supported by data which complies
with applicable law; and (v) except as contemplated hereunder, there exist no
agreements, or other arrangements, for the Spokesperson to endorse, promote,
advertise, or sell any Products through Direct Response Television Programs. The
Spokesperson shall provide QVC with any and all documents reasonably required or
requested by QVC at any time and from time to time to support the
representations and warranties herein contained.
7. Confidentiality. Company and the Spokesperson shall acknowledge and
agree that any and all information regarding QVC or its operations disclosed to
them in conjunction with this Agreement, and any information regarding the sale
and promotion of Products and/or products by QVC, will be treated as
confidential information and will not be disclosed to any third party at any
time during the term of this Agreement, including any Renewal Term(s), and
thereafter. Company agrees and the Spokesperson shall agree that any such
information will not be used for any purposes by Company or any Spokesperson
other than for purposes contemplated by this Agreement. Confidential information
shall not be deemed to include information which (a) is public knowledge or
becomes generally available to the public other than as a result of disclosure
by Company or the Spokesperson; (b) becomes available to Company or the
Spokesperson, on a non-confidential basis, from a source (other than QVC or its
agents) who is not bound by a confidentiality agreement with QVC; or (c) is in
the possession of Company or the Spokesperson prior to disclosure by QVC,
provided that the source was not bound by a confidentiality agreement with QVC.
Notwithstanding the foregoing, Company may disclose confidential information (i)
to its attorneys, accountants, bankers and financial advisors, provided that the
same agree to the terms of this confidentiality provision; or (ii) to comply
with any court order or applicable law, provided that Company notifies QVC in
writing and in advance of any intention to disclose such information and gives
QVC adequate opportunity to interpose an objection or take action to assure
confidential handling of such confidential information. Company and the
Spokesperson each agree that in the event of a breach or threatened breach of
the terms of this paragraph 7 and/or the provisions of paragraph 5, QVC shall be
entitled to seek from any court of competent jurisdiction, preliminary and
permanent injunctive relief which remedy shall be cumulative and in addition to
any other rights and remedies to which QVC may be entitled. Company acknowledges
and agrees and the Spokesperson shall acknowledge
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and agree that the confidential information and other information referred to in
this paragraph 7 and the prohibitions provided in paragraph 5 above, are
valuable and unique and that such breach of such provisions will result in
immediate irreparable injury to QVC. The rights and obligations of the parties
set forth in this paragraph 7 shall survive and continue after the termination
or expiration of this Agreement.
(b) Notwithstanding the foregoing, Company may disclose to Licensees
that Company is obligated under an agreement to prevent Licensees from
promoting, advertising, endorsing or selling any Products anywhere in the United
States, its territories and possessions, the United Kingdom, Germany, and Japan
by means of Direct Response Television Programs.
8. Publicity. Except for incidental non-derogatory remarks necessitated
by the services provided hereunder, neither Company nor the Spokesperson shall
issue any publicity or press release regarding their contractual relations with
QVC or otherwise make any oral or written reference to QVC regarding their
activities hereunder, without obtaining QVC's prior written consent, and
approval of the contents thereof. Neither Company nor the Spokesperson shall
utilize any trade name, service xxxx, trademark, or copyright belonging to QVC
without the prior written consent of QVC.
9. Miscellaneous.
(a) Amendment. This Agreement may not be varied, amended, or modified
unless in writing signed by the parties hereto.
(b) No Assignment. This Agreement and the rights and obligations
hereunder are not assignable and any such assignment shall be null and void,
except for assignments to a business entity of which Company is a majority owner
and exercises management control, *********************************************
*******************************************************************************.
(c) Governing Law. This Agreement shall be construed according to the
internal laws of the Commonwealth of Pennsylvania, without regard to conflict of
laws principles. Each of QVC, Company and the Spokesperson hereby consents to
the exclusive jurisdiction of the state courts of the Commonwealth of
Pennsylvania, Xxxxxxx County, and the United States District Court for the
Eastern District of Pennsylvania, in all matters arising out of this Agreement.
Each of Company and the Spokesperson consents to service of process by certified
mail, return receipt requested, at the address indicated in the opening
paragraph hereof.
(d) Notices. All notices provided for hereunder shall be sent via
certified mail, return receipt requested, or by reputable overnight carrier, to
the addresses indicated
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in the opening paragraph hereof. All notices sent to QVC shall be sent to the
attention of Executive Vice President, Merchandising, and Senior Vice President,
General Counsel.
(e) Entire Agreement. This Agreement supersedes all prior
communications between the parties regarding the subject matter hereof, whether
oral or written, and constitutes the entire understanding of the parties.
(f) Remedies and Waiver. No delay or failure on the part of any party
hereto in exercising any right or remedy under this Agreement, and no partial or
single exercise thereof, shall constitute a waiver of such right or remedy or of
any other right or remedy. The rights and remedies provided in this Agreement
shall be in addition to, and not in lieu of, any rights and remedies provided in
any Purchase Order(s) or under applicable law. The rights and remedies provided
in this Agreement and the Purchase Order are intended to be consistent and
cumulative. However, to the extent needed to resolve any conflict between this
Agreement and the terms and conditions of any Purchase Order, the terms and
conditions of this Agreement shall govern.
(g) Severability. If any term or condition of this Agreement or the
application thereof shall be illegal, invalid or unenforceable, all other
provisions hereof shall continue in full force and effect as if the illegal,
invalid or unenforceable provision were not a part hereof. The headings used in
this Agreement are for the convenience of the parties only and shall not be
construed in the interpretation of any provisions of this Agreement.
(h) No Joint Venture. Nothing herein contained shall be construed to
place the parties in the relationship of partners or joint venturers, and none
of the parties hereto shall have the power to obligate or bind the others in any
manner whatsoever. Each of the parties hereto agrees that in performing its
duties under this Agreement it shall be in the position of an independent
contractor.
(i) License of Intellectual Property. Company acknowledges and agrees
that this Agreement shall constitute an executory contract within the meaning
and scope of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, 11 U.S.C. ss.
365, under which Company is a licensor of Intellectual Property (as defined
below), and as to which QVC shall have the right to make an election under
Section 365(n) of the United States Bankruptcy Code, 11 U.S.C. ss. 365(n). For
purposes of this Agreement, the rights granted to QVC hereunder Agreement shall
be deemed to constitute "Intellectual Property" for purposes of Section 365(n)
of the United States Bankruptcy Code, 11 U.S.C. ss. 365(n), and as used therein,
notwithstanding any limitation or definition to the contrary in the United
States Bankruptcy Code, 11 U.S.C. ss.101, et seq., including, but not limited
to, provisions of Section 101(35A) of the United States Bankruptcy Code, 11
U.S.C. ss. 101(35A).
(j) Interpretation and Construction. This Agreement has been fully and
freely negotiated by the parties hereto, shall be considered as having been
drafted jointly by the
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parties hereto, and shall be interpreted and construed as if so drafted, without
construction in favor of or against any party on account of its participation in
the drafting hereof.
(k) Facsimile. This Agreement may be executed and delivered via
electronic facsimile transmission with the same force and effect as if it were
executed and delivered by the parties simultaneously in the presence of one
another.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have executed this Agreement as of the date first above written.
XXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. XxXxxxxxx
-------------------------------------
Title: V.P. Business Development & Secretary
QVC, INC.
By: /s/ Xxxx Xxxxx
-------------------------------------
Title: Vice president
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Exhibit "A"
THIS PURCHASE ORDER ("Order") IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THE
TERMS AND CONDITIONS HEREOF. Oral or written notice of acceptance by Vendor,
preparation to perform by Vendor and/or shipment of all or any part of the
merchandise specified in this Order ("Merchandise") shall constitute acceptance
by Vendor of the terms and conditions contained herein. BY ACCEPTANCE OF THIS
ORDER, VENDOR REPRESENTS AND AGREES AS FOLLOWS:
1. If the shipping or delivery dates set forth on the face hereof cannot be met,
Vendor will promptly inform Buyer in writing of Vendor's best possible shipping
or delivery dates which shall become part of this Order, if at all, only upon
Buyer's written acceptance thereof.
2. Vendor hereby grants to Buyer the irrevocable right, by all means now or
hereafter existing, to: (a) market, promote the sale of and sell the
Merchandise; (b) use the trademarks, trade names, trade dress, service marks,
patents and copyrights (collectively the "Marks") registered, owned, licensed to
or used by Vendor in connection with the Merchandise; (c) use, perform, play,
synchronize and/or demonstrate, as applicable, the Merchandise, its contents,
and/or any promotional, advertising or similar material supplied by Vendor for
use in connection with such Merchandise ("Promotional Material"); and (d) use
the names, photographs, likenesses, voices and/or biographies of any individuals
performing in or otherwise associated with the production of the Merchandise as
contained in the Merchandise, its contents and/or any Promotional Material.
Buyer makes no representations with regard to the number of times, if any, that
Merchandise will be marketed or promoted by Buyer.
3. In addition to and without prejudice to any and all other warranties, express
or implied by law, Vendor represents, warrants and covenants to Buyer that: (a)
Vendor possesses all licenses, permits, rights, powers and consents required to
enter into and perform this Order, to sell to Buyer the Merchandise referenced
herein and to grant to Buyer the rights granted herein; (b) Vendor's performance
hereunder does not violate any agreement, instrument, judgment, order or award
of any court or arbitrator; (c) all Merchandise furnished hereunder, including
the production, sale, packaging, labeling, safety, testing, importation and
transportation thereof, and all representations, advertising, prices, and
allowances, discounts or other benefits made, offered or authorized by Vendor in
connection therewith, shall at all times comply with all applicable federal,
state, local, industry and foreign statutes, laws, rules, regulations and
orders, standards and guidelines (collectively, "Laws"); (d) all claims
concerning the Merchandise
made by Vendor and its agents are, and will be, true and correct at the time
such claims are made and supported by data which compiles with applicable Laws;
(e) where applicable, reasonable and representative tests as prescribed by Laws
or governmental authorities have been performed or will be performed before
shipment from Vendor to the warehouse designated by Buyer (the "Warehouse"); (f)
all Merchandise furnished hereunder shall be new, first quality merchandise and
conform to all representations by Vendor, instructions, specifications, and
samples, shall be free from all defects (including latent defects) in
workmanship, material and design, and shall not be reworked, rebuilt or
refurbished merchandise; (g) all manufacturers' warranties are effective and
enforceable by both Buyer and its customers; (h) all Marks which are part of or
appear in connection with the Merchandise and/or Promotional Material, and/or
any component thereof, are valid and genuine, and the sale, promotion of the
sale and performance of the Merchandise and/or Promotional Material, and/or any
component thereof, will not infringe upon any domestic or foreign Marks, rights
of privacy or publicity and/or any other third party rights, or cause Buyer to
be liable to Vendor or any third party for any additional fees, costs or
expenses; (i) the title of Vendor to the Merchandise is good and free and clear
of all encumbrances and liens, and its transfer hereunder rightful; (j) neither
the Merchandise nor any component part thereof is subject to any import quota
restriction, rule or regulation preventing or forbidding the importation, use,
promotion for sale or sale of the Merchandise or any component part thereof, or
any duty, tariff, or penalty in connection therewith, except as previously
disclosed in writing by Vendor to Buyer; (k) the Merchandise and similar goods
are not and have not been subject to product liability or infringement claims,
except as disclosed on the face hereof; (l) the same or similar merchandise is
not being and will not be offered to any other purchaser at a lesser cost or
under more favorable terms than appear herein; and (m) Vendor shall maintain for
the life of the Merchandise general liability insurance coverage on the
Merchandise, including full product liability, infringement and advertising
injury, in amounts no less than One Million Dollars per occurrence, unless
otherwise specified on the face hereof, with carriers acceptable to Buyer, and
which shall include broad form Vendor's coverage in favor of Buyer, and Vendor
will promptly provide Buyer with a certificate of insurance naming Buyer as an
additional insured. Vendor agrees to provide Buyer with any and all documents
requested or required by Buyer at any time and from time to time to support the
representations, warranties and covenants herein contained.
4. Vendor hereby agrees to protect, defend, hold harmless and indemnify Buyer,
its subsidiaries and affiliates, and each of their respective customers,
programming and other distributors, employees, agents, officers, directors,
successors and assigns, from and against any and all claims, actions, suits,
costs, liabilities, damages and expenses (including, but not limited to, all
direct, special, incidental, exemplary and consequential damages and losses of
any
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kind [including, without limitation, present and prospective lost profits and
lost business] and reasonable attorneys' fees) based upon or resulting from: (a)
any alleged or actual infringement of the Marks, rights of publicity or privacy
and/or any other third party rights arising from the sale, promotion of the sale
and/or performance of the Merchandise, its contents and/or the Promotional
Material ; (b) any alleged or actual defect in any of the Merchandise; (c) any
alleged or actual injury or death to person or damage to property arising out of
the furnishing, use or performance of the Merchandise; (d) breach by Vendor of
any representations, warranties or covenants; and (e) any alleged or actual
violation by Vendor and/or the Merchandise of any applicable Laws. In the event
Buyer notifies Vendor in writing of a claim, demand, action, suit or other
matter ("Claim") to which the foregoing indemnity applies, Vendor shall provide
prompt assurance of its ability to so indemnify Buyer, to Buyer's reasonable
satisfaction, and Vendor shall commence to defend such Claim, at its sole cost
and expense, within five (5) days after receiving Buyer's written notice. If
Vendor fails to provide such assurance or fails to commence such defense within
such five(5)-day period, Buyer may, at its option, assume the defense or
settlement of such Claim in its own name and all recoveries from such Claim
shall belong to Buyer. In the latter event, which shall be in addition to any
and all other rights Buyer may have at law or in equity, Buyer may elect counsel
to represent it, and Vendor shall be solely responsible for the payment or
reimbursement, at Buyer's option, of counsel fees and all other fees and costs
incurred in defending such Claim, for any and all damages arising thereunder,
and for any and all amounts paid by Buyer in settlement thereof. In addition,
Vendor shall be responsible for all costs of any kind incurred by Buyer in
responding to any discovery or legal process served upon Buyer, its subsidiaries
and/or affiliates in connection with litigation between a third party and Vendor
(or any person or entity affiliated with Vendor), which costs shall be charged
to Vendor or deducted from amounts due to Vendor, at Buyer's option.
5. Time is of the essence. Buyer reserves the right to cancel this Order or any
part hereof, with no liability or obligation to Vendor, in the event: (a) Buyer
is notified that any Merchandise or Xxxx infringes or is alleged to infringe
upon any third party rights; (b) Vendor breaches or is anticipated to breach
this Order; (c) Merchandise conforming to specifications will not be shipped or
delivered on the dates and in the quantities specified on the face hereof; (d)
fire, flood, windstorm, earthquake, war, strike, or any other casualty or
occurrence of a similar nature substantially and adversely affects Buyer's
premises or business; or (e) any substantial change to Buyer's business (for
whatever reason) occurs.
6. Merchandise shipped or delivered to the Warehouse prior to the first
permitted ship or delivery date specified on the face hereof, may, at Buyer's
option, be returned to Vendor, at Vendor's risk and expense, and upon such
return, shall be held by Vendor for Buyer until shipment or delivery on the
specified date. Merchandise shipped or delivered to the
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Warehouse after the last permitted ship or delivery date specified on the face
hereof may, at Buyer's option, be returned to Vendor, at Vendor's risk and
expense, and upon such return, Buyer may cancel this Order, in whole or in part,
without liability. Unless otherwise stated on the face hereof, Vendor shall ship
the Merchandise in one shipment. In the event of shipment or receipt of an
unauthorized quantity, Buyer may, at its option, either reject or accept the
entire shipment unless partial shipments are authorized on the face hereof.
Additional freight charges resulting from partial shipments shall be borne by
Vendor. Partial shipments shall not cause Vendor's obligations to become
severable. Unless otherwise stated on the face hereof, Vendor shall pay or
reimburse Buyer, at the direction of Buyer, for all freight, packing and
insurance incident to the shipment of the Merchandise, including, but not
limited to, loading and unloading charges, mileage charges, taxes, tolls and
other fees. Vendor agrees to follow Buyer's instructions with respect to
shipment, routing and packaging. Vendor's failure to comply with the terms and
conditions set forth in this Section or in Buyer's shipping regulations
(including chargeback program) ("Regulations") or in any applicable standards
provided by Buyer to Vendor ("Standards"), in effect as of the date of this
Order, and which are incorporated herein by reference, may, at Buyer's option,
result in the imposition of charges as set forth in such documents. In addition,
any breach by Vendor of the provisions of Section 3(d) hereof shall result in
the imposition of charges upon Vendor for all costs incurred by Buyer as a
result of such breach (including, but not limited to, the cost of customer
refunds and all administrative costs). Any charges assessed as set forth herein
may be deducted from any amounts due or which may become due to Vendor. Copies
of the Regulations and the Standards are available to Vendor upon written
request to Buyer.
7. Merchandise furnished hereunder which is not in compliance with this Order,
the Regulations or the Standards, which is returned by any of Buyer's customers
for any reason, which fails to meet Buyer's quality control tests, which fails
to meet Buyer's carrier's quality, drop or other tests, or which is or may be
used in conjunction with merchandise furnished and rejected (or acceptance
thereof revoked) under this Order or another order, may be rejected (or
acceptance thereof by Buyer revoked) at Buyer's option and returned to Vendor.
All expense of unpacking, examining, repacking, storing, returning and
reshipping any Merchandise rejected (or acceptance of which has been revoked) as
aforesaid shall be at Vendor's expense and risk. With respect to such returned
Merchandise, Buyer shall, at its option, receive a credit or refund of all
amounts paid by Buyer for such Merchandise, including, without limitation,
in-bound freight charges (notwithstanding contrary Freight Terms, if any, set
forth on the face hereof). In the event that Buyer shall opt to receive a
refund, Vendor shall pay Buyer in immediately available funds within fifteen
(15) days of Buyer's request. In the event that Buyer shall opt to receive a
credit, Buyer may apply such credit toward any amounts due or which may become
due to Vendor. Vendor agrees that Merchandise rejected or
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returned for any reason pursuant to the terms of this Order, whether or not such
rejection is disputed by Vendor, will not be resold or otherwise distributed by
Vendor unless all labels or other characteristics identifying Buyer and/or
displaying any trade name or trademark of Buyer have been first removed.
Authorization is expressly granted to Buyer to return Merchandise without
additional authorization, and Vendor hereby agrees to accept such returns even
without Buyer's request for return authorization labels. Merchandise returned or
rejected by Buyer is not to be replaced by Vendor without the prior written
approval of Buyer. Vendor acknowledges that the Buyer does not inspect each item
at receipt of Merchandise and that defects, imperfections or nonconformity with
any representations, warranties or covenants set forth herein may not be
discovered by Buyer until Merchandise shall have been purchased by its customers
and returned to Buyer. Buyer's inspection, discovery of a breach of warranty,
failure to make an inspection or failure to discover a breach of warranty shall
not constitute a waiver of any of Buyer's rights or remedies whatsoever.
8. If a percentage greater than zero is indicated in the "Sale or Return"
designation on the face hereof, then this is a "sale or return" transaction as
defined in the Uniform Commercial Code as enacted in Pennsylvania, 13 Pa. C.S.,
Division 2. In addition to its right to return Merchandise as provided elsewhere
in this Order, Buyer may return to Vendor, for credit or cash, at Buyer's
option, all or any portion of the following: (a) with respect to "sale or
return" transactions only, any Merchandise which is not sold by Buyer up to the
percentage indicated in the "Sale or Return" designation on the face hereof
(based on the aggregate amount of this Order) within sixty (60) days after
remittance of the Subsequent Payment (as defined in Section 11 herein) or, if no
Subsequent Payment, within one hundred and eighty (180) days after remittance of
Buyer's Initial Payment to Vendor (as defined in Section 11 herein); and (b)
with respect to all transactions, any Merchandise which has been sold to and
then returned by customers at any time. The expenses incident to the return of
Merchandise to Vendor under the foregoing clause (a) shall be paid by Buyer,
unless otherwise specified on the face hereof. The expenses incident to the
return of Merchandise to Vendor under the foregoing clause (b) shall be paid or
reimbursed by Vendor in accordance with Section 7 of this Order. Buyer is not
obligated to pay for any Merchandise returned to Vendor and is therefore
entitled to an immediate and full refund of any and all monies previously paid
to Vendor on account of such returned Merchandise. If Vendor fails or refuses to
make arrangements for the return of Merchandise satisfactory to Buyer within
five (5) days of receipt of Buyer's request for return authorization, if any,
Buyer may make such arrangements on Vendor's behalf and at Vendor's risk and
expense. If Vendor fails or refuses to accept any returned Merchandise and/or to
remit such refund to Buyer in a timely manner and in accordance with the terms
of this Order, Buyer may debit such amount against Vendor's account and/or take
such other action as it may deem necessary or desirable to recover the
5
monies owed by Vendor. Buyer may also, at its option and in its sole discretion,
dispose of such Merchandise at any time and in any manner whatsoever and deduct
from the proceeds thereof any and all losses, damages, claims, cost and expenses
suffered or incurred by Buyer in connection with such Merchandise. The rights of
Buyer set forth in this Section are in addition to, and not in lieu of, any and
all other rights and remedies available to Buyer pursuant to this Order,
applicable law or in equity.
9. If a percentage greater than zero is indicated in the "Payment Reserve"
designation on the face hereof, then Buyer will withhold an amount equal to such
percentage of the aggregate purchase price set forth on the face hereof (the
"Reserve") from its Initial Payment and/or Subsequent Payment, at Buyer's
option, to Vendor for the Merchandise, in anticipation of customer returns and,
if a "sale or return" transaction, the return of unsold Merchandise to Vendor.
With respect to the portion of the Reserve allocable to customer returns, if the
aggregate amount of such returns exceeds the Reserve amount, then such excess
shall, at Buyer's option, be immediately debited against Vendor's account or
paid by Vendor to Buyer within fifteen (15) days of receipt of Buyer's request
for such payment, and if the aggregate amount of such returns is less than the
Reserve amount, then the remaining balance of the Reserve allocable to customer
returns shall, at Buyer's option, be credited to Vendor's account or paid to
Vendor.
10. Vendor shall not assign this Order, or any part hereof, without the prior
written consent of Buyer, and any such attempted assignment shall be void at the
election of Buyer. All claims for money due or to become due from Buyer shall be
subject to deduction by Buyer for any set-off, recoupment or counterclaim
arising out of this Order or any other of Buyer's orders or agreements with
Vendor, whether such set-off, recoupment or counterclaim arose before or after
any assignment by Vendor.
11. Unless specified otherwise on the face hereof, the time for payment shall
begin to accrue upon receipt of Merchandise at the Warehouse or receipt of
invoice, whichever occurs later. If EOM pay terms are set forth on the face
hereof and the Merchandise or invoice, as applicable, is received on or after
the twenty-fifth day of the month, End of Month terms begin on the first (1st)
day of the immediately succeeding month. If pay terms are set forth in both the
"Initial Payment" and "Subsequent Payment" designations on the face hereof, then
(a) the "Initial Payment" designation sets forth the terms of Buyer's initial
payment to Vendor for the Merchandise received, which payment will be the
aggregate purchase price for such Merchandise less the Reserve (as defined in
Section 9) and adjusted for any credits, debits, customer returns, refunds,
allowances and unsold Merchandise (where applicable) as of the time of such
payment (collectively, "Adjustments"), and (b) the "Subsequent Payment"
designation sets forth the terms of any subsequent payment due from Buyer to
Vendor, which payment will be the Reserve after Adjustments. If no payment terms
are set forth in the "Subsequent Payment" designation, then the "Initial
Payment" will be the
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aggregate purchase price for such Merchandise after Adjustments. Payment of all
or any portion of the invoice does not constitute acceptance of any Merchandise
covered by this Order and is without prejudice to any and all rights, remedies,
claims or defenses of Buyer against Vendor and/or any third party.
12. Until date of shipment or delivery to Buyer, Vendor shall meet its lower
prices and the lower prices of legitimate competition, or accept cancellation at
Buyer's option. Buyer, in its sole discretion, shall determine the price at
which Merchandise shall be offered for sale to its customers and shall retain
all handling and shipping charges collected from its customers.
13. For purposes of this Order, "Confidential Information" means any agreement
between Buyer and Vendor, all information in whatever form transmitted relating
to the past, present or future business affairs, including without limitation,
the sale or pricing of Merchandise, customer lists and other customer
information, research, development, operations, security, broadcasting,
merchandising, marketing, distribution, financial, programming and data
processing information of Buyer or another party whose information Buyer has in
its possession under obligations of confidentiality, which is disclosed by
Buyer, its subsidiaries, affiliates, employees, agents, officers or directors to
Vendor or which is produced or developed during the working relationship between
the parties. Confidential Information shall not include any information of Buyer
that is lawfully required to be disclosed by Vendor to any governmental agency
or is otherwise required to be disclosed by law, provided that before making
such disclosure Vendor shall give Buyer an adequate opportunity to interpose an
objection or take action to assure confidential handling of such information.
Vendor shall not disclose any Confidential Information to any person or entity
except employees of Vendor as required in the performance of their
employment-related duties in connection with this Order, nor will Vendor use the
Confidential Information for any purpose other than those purposes expressly
contemplated herein. Vendor shall not use any information obtained from Buyer's
customers (e.g., through warranty cards or otherwise) to offer for sale to such
customers any goods or services. Vendor shall not include with any Merchandise,
any information that would enable Buyer's customers to acquire, either directly
or indirectly, any additional merchandise from persons other than Buyer without
first obtaining Buyer's written consent. In the event of a breach or threatened
breach of this Section by Vendor, Buyer shall be entitled to obtain from any
court of competent jurisdiction, preliminary and permanent injunctive relief,
including, but not limited to, temporary restraining orders, which remedy shall
be cumulative and in addition to any other rights and remedies to which Buyer
may be entitled. Vendor agrees that the Confidential Information referred to in
this Section is valuable and unique and that disclosure or use thereof in breach
of this Section will result in immediate irreparable injury to Buyer. Vendor
shall inform those persons or entities having access or exposure to Confidential
Information
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hereunder, of Vendor's obligations under this Section.
14. This Order shall be governed by the laws of the Commonwealth of Pennsylvania
applicable to contracts to be performed wholly therein, regardless of place of
acceptance. Vendor and Buyer expressly exclude the application of the United
Nations Convention on Contracts for the International Sale of Goods, if
applicable. Vendor hereby consents to the exclusive jurisdiction of the state
courts of the Commonwealth of Pennsylvania for the County of Xxxxxxx and the
federal courts for the Eastern District of Pennsylvania in all matters arising
hereunder. Vendor hereby irrevocably agrees to service of process by certified
mail, return receipt requested, to its address as set forth on the face of this
Order or to such other address as Vendor may deliver to Buyer in writing.
15. No waiver by Buyer of any term, provision or condition hereof shall be
deemed to constitute a waiver of any other term, provision or condition of this
Order, or a waiver of the same or of any other term, provision or condition with
regard to subsequent transactions or subsequent parts of the same transaction,
including without limitation, subsequent shipments under this Order.
16. If any provision contained in this Order shall be determined to be
unenforceable or prohibited by law, then such provision shall be void, and the
remaining provisions herein shall not in any way be affected or impaired
thereby.
17. Vendor shall not issue any publicity or press release regarding Buyer or
Buyer's activities hereunder without first obtaining Buyer's prior written
approval and consent to such release.
18. This Order and any other written warranties and specifications, the
Regulations and Standards, and the terms, conditions and agreements herein and
therein, constitute the full understanding of the parties hereto and a complete
and exclusive statement of the terms of the parties' agreement concerning the
Merchandise furnished hereunder.
19. No condition, understanding or agreement purporting to modify or vary the
terms of this Order shall be binding unless hereafter made in writing and duly
executed by the party to be bound, and no modification shall be effected by the
acknowledgment or acceptance of this Order or of invoices, shipping documents or
other documents containing terms or conditions at variance with or in addition
to those set forth herein.
20. Notwithstanding any legal presumption to the contrary, the covenants,
conditions, representations, indemnities and warranties contained in this Order,
including, but not limited to Sections 3, 4, 7 and 13 hereof, shall survive
inspection, delivery, acceptance and payment, shall be binding upon Vendor and
its successors and permitted assigns, and shall run in favor of Buyer and its
successors and assigns.
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Exhibit "B"
I, ______________, hereby acknowledge the terms and conditions set forth in the
above Agreement, and, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, agree to be personally bound by the provisions set forth in paragraphs
1(b), 2(b), 3, 4, 5, 6(b), 7, 8 and 9 of the above Agreement.
_________________________
Date : _________________________
