AGREEMENT
THIS AGREEMENT, is made and entered into this _____ day of
__________________, 1997, by and between Sport-Xxxxx, Inc., a Colorado
Corporation ("Sport-Xxxxx") with principal offices at 0000 Xxxx 00xx Xxxxxx,
Xxxxxx, XX 00000 and _____________________________ (Distributor) with
principal offices at:
______________________________________________________________________________
RECITALS
A. Sport-Xxxxx is the manufacturer and supplier of women's and
men's sport apparel (collectively The Product).
B. Sport-Xxxxx represents that, it is the exclusive manufacturer
of the Product under various tradenames or trademarks, including, but not
limited to, the tradename Xxxxx and that it has the sole right to grant an
exclusive license and/or distributorship to sell and promote the sale of the
Product in the country/countries of ___________________________
C. Sport-Xxxxx desires to grant to Distributor the exclusive right
to distribute the Product in the country/countries of _____________________.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, together with the mutual
promises contained herein, the parties do hereby agree as follows:
1. SALES TERRITORY. The Distributor shall be the exclusive
distributor of the Product in the country/countries of ___________________
_____________________________ (the Territory).
2. SALE. Sport-Xxxxx shall cause to be manufactured, sold, and
delivered to Distributor, the Product.
3. PRICE. The prices to be charged to Distributor will be as set
forth on Exhibit A attached hereto and incorporated herein by reference.
4. PAYMENT. The terms of payment are as set forth on Exhibit B
attached hereto and incorporated herein by reference, entitled "Distribution
Policies and Procedures."
5. DELIVERY, FREIGHT, INSURANCE, AND EXPORT REQUIREMENTS.
Delivery shall be F.O.B. Denver. There shall be no responsibility of
Sport-Xxxxx for delivery, freight, carriage, insurance or licenses and
official authorizations for customs compliance, and custom duties for
exporting.
6. COVENANTS OF SPORT-XXXXX. Sport-Xxxxx covenants as follows:
a. If the Distributor is not in default of payment, Sport-Xxxxx
shall supply the Distributor with its product in the regular
course of its business in accordance with the terms and
provisions of this Agreement.
b. Sport-Xxxxx shall not knowingly supply the Product to third
parties for export to the defined Territory without the
prior written consent of the Distributor.
c. Sport-Xxxxx shall furnish to Distributor ongoing technical
assistance as shall be reasonably necessary.
7. COVENANTS OF DISTRIBUTOR. Distributor shall maintain adequate
sales service and warehouse facilities and shall use its best efforts to
market and sell at wholesale and/or retail the Product, and shall make
adequate advertising expenditures to promote and secure the maximum sale and
distribution throughout the Territory.
a. The Distributor shall maintain facilities and a business and
sales organization to develop the distribution and sale of
the Product to retail and wholesale outlets.
b. The Distributor shall purchase and maintain an inventory of
the Product sufficient to meet the retail and wholesale
needs of the Territory.
c. Distributor shall pay promptly for the product in accordance
with the terms and provisions of this Agreement.
d. Distributor shall be solely responsible for any expense of
any kind whatsoever incurred by Distributor in the
advertising, sale, or distribution of the Product.
8. TERM OF AGREEMENT. This Agreement shall be for an initial term
of one year commencing from the date of execution of this Agreement. Such
Agreement shall be renewed automatically for successive one year periods
unless terminated in accordance with the provisions of Paragraph 9 herein.
9. TERMINATION OF AGREEMENT. This Agreement may be terminated as
follows:
a. Either party on ninety (90) days prior written notice to
the other may terminate this Agreement, for any reason,
without prejudice to any rights of either party to monies
due or to become due under this Agreement.
b. If the Distributor is in default on any payment past due for
a period of thirty (30) days, or the Distributor defaults in
performing any of the other terms of this Agreement and
continues in default for a period of thirty (30) days after
written notice thereof or, if the Distributor is adjudicated
bankrupt or insolvent, or a receiver is appointed for it,
then Sport-Xxxxx may terminate this Agreement by giving
notice to the Distributor at least thirty (30) days before
the time when such termination is to take effect, and
thereupon, this Agreement shall become void, without
prejudicing the rights of either parties to monies due or to
become due under this Agreement.
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c. Upon termination of this Agreement, for any reason, the
Distributor shall discontinue the use of Sport-Xxxxx'x
tradenames, logos, labels, or other advertising media and
shall remove all advertising relating thereto and in the
event of failure to do so, Sport-Xxxxx may take whatever
action necessary to remove such advertising at the
Distributor's expense.
d. Upon the termination of this Agreement for any reason,
Sport-Xxxxx shall have the option to repurchase the Product
in the possession of the Distributor and available for sale,
at prices originally billed to the Distributor and with
deductions for monies due or to become due to Sport-Xxxxx
under this Agreement. As to any of the Product not
repurchased by the company, the Distributor shall have the
right to dispose of the Product in the regular course of its
business, and for this purpose, the restrictions of
subparagraph 9(c) shall be deferred until twelve months
after termination of this Agreement.
10. CONTINGENCIES. Sport-Xxxxx shall not be liable for any delay
in manufacture or delivery due to fires, strikes, labor disputes, or, civil
commotion, delays in transportation, shortages of labor or material, or other
causes beyond the control of Sport-Xxxxx. The existence of such causes of
delay shall justify the suspension of manufacture, and shall extend the time
of performance on the part of Sport-Xxxxx to the extent necessary to enable
it to make delivery in the exercise of reasonable diligence after the causes
of delay have been removed. However, in the event of the existence of any
such causes of delay, Distributor may cancel the purchase of such portion of
the Product as may have been subjected to such delay, provided such portion
of the Product has not been manufactured nor is in the process of manufacture
at the time of Distributor's notice of cancellation arrives at Sport-Xxxxx'x
business address as set forth herein.
11. IMPORTATION. The Distributor represents that the Product is
purchased for the purpose of exportation to the country/countries of
__________________________________________
12. TRADENAME. The tradenames, trademarks and logos now used or
hereafter acquired relating to the Product are the exclusive property of
Sport-Xxxxx. Nothing in this Agreement shall be construed in any way which
would give the Distributor any interest in such name, except the right to use
it in connection with its sale by Distributor under this Agreement. Upon
termination of this Agreement, subject and terms and provisions of Paragraph
9(d), the Distributor shall abandon all use of the tradenames, trademarks,
and logos of the Product.
13. CONFIDENTIALITY; COMPETITION. The design of the Product
constitute trade secrets of Sport-Xxxxx and are confidential. It is
understood by Distributor that the confidential nature of the design of the
Product, is a legitimate business interest of Sport-Xxxxx and it is necessary
to protect such information by keeping it secret and confidential. To
protect Sport-Xxxxx'x trade secrets as well as their ability to operate as
competitors in the marketplace, Distributor hereby agrees not to disclose,
directly or indirectly, the trade secrets of Sport-Xxxxx. This covenant will
be effective upon execution of this Agreement.
During the term of this Agreement, Distributor agrees to not
manufacture, carry, or distribute for sale, any product that utilizes the
design of the Product or that competes with the Product of Sport-Xxxxx
without the prior written consent of Sport-Xxxxx.
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14. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties, their heirs, successors, representatives, and
assigns.
15. NOTICE. Any notice to be given by either party to the other in
this Agreement shall be in writing, shall be addressed to the party, at the
address specified at the beginning of this Agreement, and shall be deemed to
be given when deposited in express overnight mail, prepaid, in the case of
Sport-Xxxxx, in the United States, and in the case of Distributor, in
_______________________________________________________________.
16. GOVERNING LAW. This Agreement and the performance of the
parties hereunder shall be governed and interpreted in accordance with the
laws of the State of Colorado.
17. JURISDICTION. In the event of any dispute arising between the
parties in connection with the performance of this Agreement, any appropriate
state or federal court located in the City and County of Denver, State of
Colorado, USA shall have exclusive jurisdiction over any case or controversy
arising under or in connection with this Agreement and shall be a proper
forum in which to adjudicate such case or controversy.
18. ENTIRE AGREEMENT. This Agreement embodies the entire
understanding of the parties and there are no other agreements or
understandings, oral or written, between the parties relating to the subject
matter hereof.
19. ASSIGNMENT. This Agreement may be assigned by Sport-Xxxxx in
its sole and absolute discretion. This Agreement shall not be assigned by
Distributor and the performance of its duties shall not be delegated.
Distributor shall have no right to grant sublicenses under this Agreement
without the prior written consent of Sport-Xxxxx, which consent may be
withheld by Sport-Xxxxx in its sole and absolute discretion.
20. MODIFICATION. No modification or amendment of this Agreement
shall be valid or binding upon the parties unless made in writing and signed
on behalf of each of such parties by their respective representatives.
Executed as of the day and year first above written.
SPORT-XXXXX, INC.,
a Colorado Corporation (DISTRIBUTOR)
By: By:
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Title: Title:
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