ANY TEXT REMOVED PURSUANT TO THE COMPANY'S CONFIDENTIAL TREATMENT REQUEST HAS
BEEN SEPARATELY SUBMITTED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION AND
IS MARKED [***] HEREIN.
EXHIBIT 10.6(a)
BUYING AGENCY AGREEMENT
BUYING AGENT: ▇▇▇▇▇ ▇▇▇▇▇ International, Ltd., a subsidiary of ▇▇▇▇
International Hong Kong Ltd.
ADDRESS: ▇▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
18 Sung on Street
▇▇▇▇ ▇▇▇, Hong Kong
COMMISSION RATE: [***]%
TERRITORY: Mauritius, Madagascar, Australia, New Zealand, and the
continent of Asia, including (a) that portion of Asia commonly referred to
as the Middle East (excluding the portion of the Middle East, if any,
located in Africa), (b) the Indian subcontinent, and (c) Sri Lanka.
TERM: From: June 29, 2005 ("Effective Date") until terminated
This Buying Agency Agreement ("Agreement"), is made as of the Effective
Date listed above, by and between ▇▇▇▇▇ ▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇.▇.▇. ("▇▇▇▇▇ ▇▇▇▇▇"), and Buying Agent
WHEREAS, ▇▇▇▇▇ ▇▇▇▇▇ imports Product (defined below) into the United
States or Canada as specified by ▇▇▇▇▇ ▇▇▇▇▇ ("Country of Import") for resale in
the United States and/or Canada and desires to engage the services of Buying
Agent to assist ▇▇▇▇▇ ▇▇▇▇▇ in the export of Product from the Territory (defined
below) and the shipment of Product to the Country of Import;
NOW, THEREFORE, it is agreed as follows:
1. Certain Definitions. Throughout this document, definitions (typically
capitalized words and phrases) are utilized. In addition to the definitions
provided within this Agreement, the following definitions (and related
provisions) are also used in this document.
1.1 "Affiliate" shall mean a person or entity controlling, controlled
by, or under common control with the subject person or entity, as
well as any person or entity that has any material, economic or
financial relationship or association with the subject entity.
1.2 "Authorized Officer" shall mean ▇▇▇▇▇ ▇▇▇▇▇'▇ Vice President -
Global Sourcing and Supply Chain Operations (or such successor
position, if any, hereafter specified by ▇▇▇▇▇ ▇▇▇▇▇ in writing).
1.3 "Buying Agent" shall include its agents, employees, directors,
owners, and any Subagent approved by ▇▇▇▇▇ ▇▇▇▇▇ in compliance with
this Agreement.
1.4 "Law" shall mean any statute, code, court decision, court order,
regulation, or other governmental directive or order.
1.5 "Product" shall mean any product, goods, services, merchandise or
any other item (a) that ▇▇▇▇▇ ▇▇▇▇▇ purchases from Seller, including
a Seller of Product the sale for which is suspended or terminated,
(b) about which ▇▇▇▇▇ ▇▇▇▇▇ negotiates (including negotiations
through Buying Agent) for the purchase thereof, or (c) about which
▇▇▇▇▇ ▇▇▇▇▇ shall become interested in commencing negotiations
concerning the purchase thereof.
1.6 "Seller" shall mean any person or entity from which ▇▇▇▇▇ ▇▇▇▇▇
purchases Product and, unless otherwise approved in writing by ▇▇▇▇▇
▇▇▇▇▇, Seller shall also be the manufacturer of the Product. In
addition, the term "Seller" shall include any person or entity with
whom ▇▇▇▇▇ ▇▇▇▇▇ negotiates (including negotiations by Buying Agent
on ▇▇▇▇▇ ▇▇▇▇▇'▇ behalf), has negotiated, or is interested in
negotiating concerning the purchase of any Product. Seller shall
also include any person or entity with whom ▇▇▇▇▇ ▇▇▇▇▇ has
contracted concerning the purchase of Product and such contract has
been suspended or terminated.
1.7 Whenever this Agreement references a manufacturer of Product other
than the Seller ("Submanufacturer"), the parties acknowledge and
agree that a Submanufacturer shall not be allowed unless approval of
the Submanufacturer is provided by ▇▇▇▇▇ ▇▇▇▇▇ in writing. Any
obligation or responsibility of Buying Agent with respect to Seller,
including the obligations to inform, obtain appropriate
documentation from, inspect, and otherwise obtain compliance with
the provisions of the Purchase Documents, shall apply to a
Submanufacturer. A Submanufacturer shall perform all of the
obligations of and make all of the representations, warranties and
certifications that are required of a Seller under the Purchase
Documents, but the foregoing shall not limit or decrease the
obligations of the actual Seller in such transaction.
1.8 "Territory" shall mean the Territory listed above and such other
Territory(ies), if any, as ▇▇▇▇▇ ▇▇▇▇▇'▇ Authorized Officer shall
hereafter approve in writing.
1.9 Except to the extent when such meaning is not reasonably plausible,
the reference of a word, including Product or Seller, in the
singular form shall include the plural. The phrase "such as" shall
be construed to mean "by way of illustration only and without
limitation." The word "including" shall be deemed to mean
"including, but not limited to."
2. Buying Agent Retained - General Obligations. During the term of this
Agreement, Buying Agent agrees to act solely in the capacity of a non-exclusive
buying agent for the benefit of and on behalf of ▇▇▇▇▇ ▇▇▇▇▇ in the Territory
pursuant to the terms and provisions of this Agreement. In its capacity as ▇▇▇▇▇
▇▇▇▇▇'▇ buying agent, the Buying Agent shall represent ▇▇▇▇▇ ▇▇▇▇▇ with respect
to its purchase from Sellers of Product made in the Territory by Sellers and to
provide assistance necessary to ensure the proper export of Product from the
Territory and the shipment of Product to the Country of Import. With respect to
any Product not manufactured in the Territory, Buying Agent shall not act as
▇▇▇▇▇ ▇▇▇▇▇'▇ buying agent and shall not expressly or impliedly represent itself
(by communication or any other conduct) to be ▇▇▇▇▇ ▇▇▇▇▇'▇ buying agent. Buying
Agent agrees to provide personnel, facilities, resources, and all other items
necessary or appropriate to enable Buying Agent to efficiently and effectively
perform its obligations under this Agreement.
3. Specific Covenants. In addition to and without limiting Buying Agent's other
obligations under this Agreement, including Buying Agent's general obligations
stated in Section 1 and its obligations under applicable law, Buying Agent shall
perform the following specific covenants:
3.1 Purchase Documents. Buying Agent shall obtain from ▇▇▇▇▇ ▇▇▇▇▇ and
become familiar with all documents that evidence or relate to ▇▇▇▇▇
▇▇▇▇▇'▇ purchase of Product from Seller as such documents are
modified by ▇▇▇▇▇ ▇▇▇▇▇ from time to time, including all terms and
conditions of each purchase order, ▇▇▇▇▇ ▇▇▇▇▇'▇ Vendor Compliance
Manual (Buying Agent hereby acknowledges receipt of a copy of such
Vendor Compliance Manual or internet access thereto) and any other
documentation provided by ▇▇▇▇▇ ▇▇▇▇▇ related to any purchase of
Product, including ▇▇▇▇▇ ▇▇▇▇▇'▇ other policies, procedures and
requirements, such as quality assurance requirements and product
specifications (collectively "Purchase Documents"). Buying Agent
acknowledges that it is not practical for ▇▇▇▇▇ ▇▇▇▇▇ to provide
notice to each buying agent, including Buying Agent, and each Seller
whenever any Purchase Document is modified. Consequently, Buying
Agent agrees that it bears the
1
ANY TEXT REMOVED PURSUANT TO THE COMPANY'S CONFIDENTIAL TREATMENT REQUEST HAS
BEEN SEPARATELY SUBMITTED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION AND
IS MARKED [***] HEREIN.
responsibility for monitoring all such Purchase Documents so as to
be constantly apprised of the then-current version thereof,
including all changes thereto, and informing Seller of all such
changes.
3.2 Translation. If and to the extent required under applicable law or
otherwise necessary or prudent in order to conduct business with
Seller on an efficient and effective basis in the Territory, Buying
Agent shall be responsible for the accurate translation of all such
Purchase Documents from English into the local language of the
Territory to assist Seller in dealing with ▇▇▇▇▇ ▇▇▇▇▇; provided
that Buying Agent shall clearly explain to Seller in writing when
any such translated documents are employed for any purpose (and
shall otherwise never waive or modify) ▇▇▇▇▇ ▇▇▇▇▇'▇ requirement
that the English version of all Purchase Documents shall always
control.
3.3 Requirements Prior to Purchase. Prior to agreement upon the purchase
of Product with any Seller, Buying Agent shall use commercially
reasonable efforts to ensure Seller has fully complied with ▇▇▇▇▇
▇▇▇▇▇'▇ vendor set up process (as it shall from time to time be
modified), including providing to ▇▇▇▇▇ ▇▇▇▇▇ all documentation
required in connection therewith.
3.4 Retention of Documents. Whenever under this Agreement Buying Agent
is required to provide any document (or information) to ▇▇▇▇▇ ▇▇▇▇▇,
upon receipt of ▇▇▇▇▇ ▇▇▇▇▇'▇ written direction to Buying Agent,
Buying Agent shall, in lieu of transmitting such documents (or
information) to ▇▇▇▇▇ ▇▇▇▇▇, retain such documents (or information)
on behalf of ▇▇▇▇▇ ▇▇▇▇▇ for such period as ▇▇▇▇▇ ▇▇▇▇▇ shall direct
(but in no event less than six years) and, upon request from ▇▇▇▇▇
▇▇▇▇▇, provide such documents (or information) to ▇▇▇▇▇ ▇▇▇▇▇.
3.5 Transmittal of Documentation. Prior to agreement upon the purchase
of Product pursuant to the Purchase Documents, Buying Agent shall
use commercially reasonable efforts to supply to ▇▇▇▇▇ ▇▇▇▇▇ such
information and items, including samples, as shall be necessary and
prudent in order to fully inform ▇▇▇▇▇ ▇▇▇▇▇ concerning the
propriety of purchase of the Product from Seller. When ▇▇▇▇▇ ▇▇▇▇▇
has elected to offer to purchase Product from Seller upon certain
terms and conditions reduced to writing in the Purchase Documents,
Buying Agent shall, upon receipt of such Purchase Documents (a)
review such Purchase Documents and verify the accuracy thereof,
including the country of origin, the FOB location, payment terms,
and applicable dates, numbers, addresses and other information, and
(b) expeditiously transmit all Purchase Documents to Seller.
3.6 Seller's Agreement. Buying Agent shall, in a time frame that is
commercially reasonable and consistent with ▇▇▇▇▇ ▇▇▇▇▇'▇ procedures
and policies, obtain the written agreement (in the manner prescribed
by ▇▇▇▇▇ ▇▇▇▇▇'▇ Purchase Documents) of Seller to all required
Purchase Documents and shall promptly transmit that written
agreement by Seller to ▇▇▇▇▇ ▇▇▇▇▇.
3.7 Additional Communication with Seller. Buying Agent shall communicate
to Seller in a timely and accurate way (a) all production
requirements, including specifications, (b) all applicable labeling,
packaging, billing, and shipping requirements, and (c) other
pertinent information, including delivery dates and other material
dates.
3.8 Pre-Production Inspection. Prior to the commencement of production
of any Product (or any part thereof), Buying Agent shall inspect
and, to the extent otherwise required under the Purchase Documents,
test fabric or any other components of the Product, and inspect, and
to the extent otherwise required under the Purchase Documents, test
a fully completed sample of the Product.
3.9 Inspection During Production. After production of the Product
commences, but prior to completion of all of the Product, Buying
Agent shall, if requested by ▇▇▇▇▇ ▇▇▇▇▇, inspect, and to the extent
otherwise required under the Purchase Documents, test sample Product
during the process of production.
3.10 Certain Inspection Reports. Upon completion of any testing or
inspection required by the Purchase Documents, Buying Agent shall
promptly complete and transmit to ▇▇▇▇▇ ▇▇▇▇▇ a complete and
accurate inspection report in a form acceptable to or pre-approved
by ▇▇▇▇▇ ▇▇▇▇▇.
3.11 Final Inspection. Buying Agent shall use commercially reasonable
efforts to ensure that Seller shall provide prompt notice to Buying
Agent when ordered Products are ready for shipment, and, upon
receipt of such notice, Buying Agent shall perform final inspection
in compliance with inspection procedures acceptable to or
pre-approved by ▇▇▇▇▇ ▇▇▇▇▇, including preparation of a Certificate
of Inspection in a form acceptable to or pre-approved by ▇▇▇▇▇
▇▇▇▇▇. A copy of such Certificate of Inspection shall be provided to
Seller and retained by Buying Agent.
3.12 Seller's Invoice. Before a Seller's invoice is submitted to ▇▇▇▇▇
▇▇▇▇▇ for payment, Buying Agent shall (a) obtain from Seller an
accurate, English-language invoice(s) in U.S. Dollars for the
Product, (b) verify unit prices and the quantities of the Product
that are actually invoiced and shipped, (c) ensure that any
applicable discount (such as any volume discount), claim, offset or
other deduction from or reduction of the purchase price
(collectively "Reduction") has been properly calculated and
implemented on the applicable invoice(s), (d) sign each invoice to
indicate that all notations and information thereon is accurate (or
otherwise provide clear and unambiguous documentary verification of
such accuracy, such as placement of Buying Agent's chop thereon),
(e) verify that all shipping documents comply with the Purchase
Documents, including compliance with the Customs laws of the Country
of Import and other applicable law (such as a description of each
item of Product sufficient to satisfy the Customs laws of the
Country of Import).
3.13 Consolidation. Upon ▇▇▇▇▇ ▇▇▇▇▇'▇ request, Buying Agent shall assist
(e.g., communicate with a forwarder per instruction from ▇▇▇▇▇
▇▇▇▇▇) in the consolidation of shipments, including shipments from
one or more Seller, to reduce ▇▇▇▇▇ ▇▇▇▇▇'▇ shipping costs.
3.14 Export and Import Documentation. Buying Agent shall use commercially
reasonable efforts to ensure the preparation and acquisition of all
documentation in accurate, complete and legally compliant form that
is necessary or prudent to export Product from the Territory and
import Product to the Country of Import, including any quota
documentation and any documentation related to applicable trade
agreements.
3.15 Document Coordination. Buying Agent shall coordinate and provide
assistance to ensure proper preparation and delivery of all
documents related to the Product in the manner and with number of
copies required by ▇▇▇▇▇ ▇▇▇▇▇. All such documents shall be prepared
in English.
3.16 Legal Compliance. Buying Agent shall to maintain a thorough
knowledge of and use commercially reasonable efforts to ensure that
the Product, as well as all conduct related thereto, complies with
applicable law, including laws applicable to the export from the
Territory and import into the Country of Import.
3.17 Buying Agent's Invoice. Buying Agent shall prepare a separate,
English-language invoice for the amount of the commission (expressed
only in U.S. Dollars) to which Buying Agent is entitled under this
Agreement. The Buying Agent's invoice shall include (and shall not
be deemed effective or complete unless it includes) a copy of the
Seller's invoice identifying ▇▇▇▇▇ ▇▇▇▇▇ as the purchaser, and, as
requested by ▇▇▇▇▇ ▇▇▇▇▇, either Forwarders Cargo Receipt ("FCR"),
House Air Way ▇▇▇▇ ("HAWB"), House ▇▇▇▇ of Lading ("HBL") or
Original ▇▇▇▇ of Lading ("OBL") corresponding to each shipment
billed ("Specified Documents"), a list and documentary evidence of
all shipments made, and the invoiced price(s) upon which the
commission is based. If ▇▇▇▇▇ ▇▇▇▇▇ shall hereafter agree in writing
to accept an invoice from Seller stated in a currency other than
U.S. Dollars, such invoice amount shall be converted by the Buying
Agent into U.S. Dollars based upon the average daily
2
ANY TEXT REMOVED PURSUANT TO THE COMPANY'S CONFIDENTIAL TREATMENT REQUEST HAS
BEEN SEPARATELY SUBMITTED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION AND
IS MARKED [***] HEREIN.
exchange rate (as listed in The Wall Street Journal, or, if The Wall
Street Journal shall fail to provide such rate, as listed in another
publication or source reasonably specified by ▇▇▇▇▇ ▇▇▇▇▇) for the
month in which shipment of the Product occurs, and the commission
payable to the Buying Agent shall be based on that converted U.S.
Dollar amount. Buying Agent's invoice may not include any extra cost
or fee other than the agreed-upon commission. In the event that a
Reduction is applicable to a Seller's invoice, but such Reduction is
not included on the invoice or is disputed by Seller, ▇▇▇▇▇ ▇▇▇▇▇
may, without limitation on its other rights and remedies under this
Agreement or applicable law against Seller or Buying Agent, reduce
the commission payable to Buying Agent to recover some or all of the
amount of such Reduction directly from Buying Agent.
3.18 Shipment Coordination. Upon export of such Product from the
Territory, Buying Agent shall use commercially reasonable efforts to
supervise and provide assistance to ensure that all required
documentation (such as Seller's invoice and packing list, the
Certificate of Inspection, such other documents as are requested by
▇▇▇▇▇ ▇▇▇▇▇, including such documents as are appropriate depending
on the mode of shipment, or, such other documents as are required by
applicable law to export the Product from the Territory (or other
country approved by ▇▇▇▇▇ ▇▇▇▇▇ in writing) and import the Product
into the Country of Import) are tendered to the appropriate person
or entity (depending on the method of shipment), including any
person or entity specified by ▇▇▇▇▇ ▇▇▇▇▇. All such documents shall
be tendered within a timeframe that is the shorter of (a) any
timeframe specified by ▇▇▇▇▇ ▇▇▇▇▇, (b) any timeframe required under
applicable law, including Custom Laws, and (c) any timeframe
necessary in order to comply with various custom Programs, including
the Customs Trade Partnership Against Terrorism of the United States
Customs and Border Protection ("C-TPAT") and the Partnership In
Protection ("PIP") of the Canadian Customs and Revenue Agency, and
the so-called "24-hour rule."
3.19 Factory Inspections. Buying Agent shall, from time to time as
required by the Purchase Documents or as otherwise requested by
▇▇▇▇▇ ▇▇▇▇▇, visit the manufacturing and other facilities of Seller
as may be necessary or appropriate to complete any inspections
permitted or required by the Purchase Documents or this Agreement,
including supervision and confirmation of corrections identified in
any inspection or otherwise requested by ▇▇▇▇▇ ▇▇▇▇▇.
3.20 Meeting Assistance. Buying Agent shall use commercially reasonable
efforts to facilitate, assist, advise, and act as translator at any
meetings between ▇▇▇▇▇ ▇▇▇▇▇ and a Seller or at any other meetings
with any other person or entity related to the Product.
3.21 Negotiations Concerning Claims. In the event that there shall exist
a Reduction by ▇▇▇▇▇ ▇▇▇▇▇ against the Seller pursuant to the
Purchase Documents or applicable law, including any Reduction
arising from damage to Product, Product replacement, retrofit of
Product, Product recall or late shipment of Product, Buying Agent
shall use its best efforts to protect the interests of ▇▇▇▇▇ ▇▇▇▇▇
and assist ▇▇▇▇▇ ▇▇▇▇▇ in resolving such matters to ▇▇▇▇▇ ▇▇▇▇▇'▇
satisfaction in a cost-effective and expeditious way and, in all
events, in compliance with the Purchase Documents and directions
received by ▇▇▇▇▇ ▇▇▇▇▇. Without limiting any of ▇▇▇▇▇ ▇▇▇▇▇'▇
rights or remedies against Seller or Buying Agent under this
Agreement or applicable law, if Buying Agent shall fail to fulfill
its obligations under this subparagraph, ▇▇▇▇▇ ▇▇▇▇▇ may, without
limiting ▇▇▇▇▇ ▇▇▇▇▇'▇ claim or Reduction against Seller, retain
Buying Agent's commission as liquidated damages to compensate ▇▇▇▇▇
▇▇▇▇▇ for damages, including administrative and other costs,
incurred in connection with such breach. ▇▇▇▇▇ ▇▇▇▇▇ and Buying
Agent agree that such liquidated damages are a reasonable
approximation of such costs.
3.22 Warehousing. Buying Agent shall arrange, upon request of ▇▇▇▇▇ ▇▇▇▇▇
(at ▇▇▇▇▇ ▇▇▇▇▇'▇ expense or the Seller's expense, as directed by
▇▇▇▇▇ ▇▇▇▇▇), warehousing of Product (on terms and conditions
approved in advance by ▇▇▇▇▇ ▇▇▇▇▇).
3.23 Periodic Reports. Buying Agent shall prepare and deliver to ▇▇▇▇▇
▇▇▇▇▇ written reports on a regular basis (no less than two times a
year and, in addition, at such other times as are appropriate and/or
requested by ▇▇▇▇▇ ▇▇▇▇▇) describing (a) market and other conditions
in the Territory, (b) information related to Product produced in the
Territory that may be of interest to ▇▇▇▇▇ ▇▇▇▇▇, including
alternate sources of Product, and (c) other relevant information,
including information about Seller (such as, whenever known, the
financial or other business condition of Seller), and any actual or
potential inability of Seller to perform its obligations under the
Purchase Documents. At least annually and upon request by ▇▇▇▇▇
▇▇▇▇▇, Buying Agent and ▇▇▇▇▇ ▇▇▇▇▇ shall meet to evaluate
implementation of this Agreement, including ▇▇▇▇▇ ▇▇▇▇▇'▇
satisfaction therewith. Such meeting shall, at ▇▇▇▇▇ ▇▇▇▇▇'▇
election, include an evaluation of the financial and other
capability of the Buying Agent to perform its obligations under this
Agreement.
3.24 Trade Fairs. From time to time as reasonably requested by ▇▇▇▇▇
▇▇▇▇▇, Buying Agent shall attend trade fairs on behalf of ▇▇▇▇▇
▇▇▇▇▇ and procure and forward to ▇▇▇▇▇ ▇▇▇▇▇ samples or offers to
sell Product from such trade fairs.
3.25 Buying Trips. Buying Agent shall assist and accompany ▇▇▇▇▇ ▇▇▇▇▇ in
preparation of buying trips for ▇▇▇▇▇ ▇▇▇▇▇'▇ personnel visiting the
Territory and render all necessary or requested assistance in
connection with such trips.
3.26 Assisting ▇▇▇▇▇ ▇▇▇▇▇. Buying Agent shall perform such other
reasonable services requested by ▇▇▇▇▇ ▇▇▇▇▇ from Buying Agent as
are reasonably necessary to assist ▇▇▇▇▇ ▇▇▇▇▇ in its purchase from
Seller. Without limiting the foregoing, Buying Agent shall provide
assistance necessary to ensure full and continuing compliance with
the Purchase Documents, including (a) compliance with security and
related measures (such as those related to the C-TPAT and the PIP),
and ▇▇▇▇▇ ▇▇▇▇▇'▇ other policies and procedures, and (b) resolution
of any export or import disputes, problems, or delays, including
those related to merchandise embargoed, excluded, or otherwise
denied entry, including any material delay of entry.
Unless otherwise specifically agreed in writing by ▇▇▇▇▇ ▇▇▇▇▇ in advance,
Buying Agent's commission payable pursuant to this Agreement constitutes full
payment for performance of all of Buying Agent's obligations under this
Agreement.
4. Negative Covenants.
Buying Agent and its Affiliates shall NOT:
4.1 fill orders for ▇▇▇▇▇ ▇▇▇▇▇ out of any stocks or inventory owned
directly or indirectly by Buying Agent or its Affiliate;
4.2 share any commission or income in any manner directly or indirectly
with any Seller or an Affiliate thereof;
4.3 obtain a direct or indirect ownership interest in, or any control
of, or any financial interest in, any Seller or an Affiliate
thereof;
4.4 receive directly or indirectly any payment, rebate, gift or other
form of remuneration or other item from any Seller or any Affiliate
thereof;
4.5 guarantee the costs of or furnish any raw materials to any Seller;
4.6 without the express written permission of ▇▇▇▇▇ ▇▇▇▇▇, provide any
release or waiver to Seller, agree to any modification of any term
or condition of the Purchase Documents, or cause ▇▇▇▇▇ ▇▇▇▇▇ to
incur any obligations beyond those to which ▇▇▇▇▇ ▇▇▇▇▇ has
expressly agreed in the Purchase Documents;
3
ANY TEXT REMOVED PURSUANT TO THE COMPANY'S CONFIDENTIAL TREATMENT REQUEST HAS
BEEN SEPARATELY SUBMITTED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION AND
IS MARKED [***] HEREIN.
4.7 prepay or pay on behalf of the Seller, any charges related to
samples, including sample export charges or freight costs;
4.8 conduct business under any trade name owned, used by or licensed to
▇▇▇▇▇ ▇▇▇▇▇, including the trade name "▇▇▇▇▇ ▇▇▇▇▇" except as
provided, if at all, in any separate written license agreement
between ▇▇▇▇▇ ▇▇▇▇▇ and Buying Agent (the parties hereto acknowledge
that this subparagraph shall not modify such license in any way);
provided that the foregoing restriction shall not prohibit Buying
Agent from accurately explaining to Sellers its role and obligations
pursuant to this Agreement;
4.9 assist in any manner the manufacture, sale, shipping, or other use
of any items, including Product, to any person or entity other than
to ▇▇▇▇▇ ▇▇▇▇▇, if (i) such item is manufactured based upon design
or other specifications of ▇▇▇▇▇ ▇▇▇▇▇ or its licensor(s), (ii) such
item includes, is based on, or otherwise reflects or incorporates
any trade name, trademark, copyright or other items of any kind in
which ▇▇▇▇▇ ▇▇▇▇▇ claims any ownership interests or protection,
including any intellectual property right, or (iii) where the
manufacture, shipping or other use of such items violate or infringe
any patent, trademark, copyright or other intellectual property
right of ▇▇▇▇▇ ▇▇▇▇▇ or its licensors;
4.10 share, disclose, sell or lend to any person or entity (other than
▇▇▇▇▇ ▇▇▇▇▇ and Buying Agent) or otherwise use any information
related to ▇▇▇▇▇ ▇▇▇▇▇, except as expressly permitted pursuant to
this Agreement or the Purchase Documents including, but not limited
to, the price of Product, other economic terms related to actual or
proposed purchase of Product, merchandising or other plans related
to the Product, retail pricing of Product, distribution or other use
of Product, the volume of Product purchased by ▇▇▇▇▇ ▇▇▇▇▇,
commission(s) paid to Buying Agent, any production requirements,
including specifications, proposed style(s) of Product, ship
date(s), and any other information related to any Product or any
transaction(s) related thereto (even if such information would not
cause any competitive disadvantage to ▇▇▇▇▇ ▇▇▇▇▇);
4.11 participate in (or to fail to inform ▇▇▇▇▇ ▇▇▇▇▇ of) any operation
or activity related to or involving the transshipment of Products,
or knowingly allow any Seller of Product to transship or participate
in any operation or activity related to or involving the
transshipment of Product;
4.12 participate in, or fail to provide prompt notice to ▇▇▇▇▇ ▇▇▇▇▇ of
any actual or suspected conduct by a Seller related to, any
fraudulent, unlawful or unethical conduct;
4.13 act as a Seller's agent with respect to any Product; or
4.14 engage in conduct prohibited by or inconsistent with the Purchase
Documents.
5. Standards of Performance by Buying Agent. Buying Agent shall, in a fiduciary
capacity on behalf of ▇▇▇▇▇ ▇▇▇▇▇, perform its obligations under this Agreement,
including its obligations to negotiate on behalf of ▇▇▇▇▇ ▇▇▇▇▇ in such a manner
as ▇▇▇▇▇ ▇▇▇▇▇ directs and to arrange for the purchase of Product by ▇▇▇▇▇ ▇▇▇▇▇
pursuant to and in strict conformity with this Agreement, the Purchase Documents
and other terms and conditions specified by ▇▇▇▇▇ ▇▇▇▇▇. Without limiting the
foregoing, Buying Agent shall use its best efforts on behalf of ▇▇▇▇▇ ▇▇▇▇▇ to
perform all of its obligations under this Agreement, including negotiating terms
and conditions for purchase of Products that complies with ▇▇▇▇▇ ▇▇▇▇▇'▇
standard Purchase Documents and such other requirements or standards as ▇▇▇▇▇
▇▇▇▇▇ shall hereafter communicate to Buying Agent.
6. Payment to Buying Agent. Subject to the other terms and provisions of this
Agreement, ▇▇▇▇▇ ▇▇▇▇▇ shall pay a commission to the Buying Agent with respect
to each purchase contract. At ▇▇▇▇▇ ▇▇▇▇▇'▇ election, it may treat reasonably
contemporaneous purchase contracts from the same Seller (or its Affiliates) as
one purchase contract for purposes of this Section. Payment of the commission to
Buying Agent shall occur within thirty (30) days of ▇▇▇▇▇ ▇▇▇▇▇'▇ receipt of
Buying Agent's invoice prepared in compliance with the Agreement so long as the
following conditions are satisfied: (a) all Product that is the subject of the
purchase contract ("Subject Product") has been shipped, (b) ▇▇▇▇▇ ▇▇▇▇▇ has
received of all documents required under this Agreement with respect to the
Subject Product, and (c) Seller has been paid for the Subject Product. Buying
Agent's commission for each purchase contract shall equal Commission Rate
multiplied by the Net Vendor Cost of the Subject Product. Net Vendor Cost shall
mean the Vendor Cost listed on the applicable purchase order minus ▇▇▇▇▇ ▇▇▇▇▇'▇
volume discount policy. Buying Agent hereby acknowledges receipt of ▇▇▇▇▇
▇▇▇▇▇'▇ volume discount policy (or internet access thereto) and shall be
responsible for monitoring all changes thereto as are made by ▇▇▇▇▇ ▇▇▇▇▇ from
time to time without any obligation by ▇▇▇▇▇ ▇▇▇▇▇ to provide notice of such
changes to Buying Agent.
7. Indemnity By Buying Agent. Buying Agent shall defend, indemnify and hold
▇▇▇▇▇ ▇▇▇▇▇ harmless for all fines, claims, suits, damage, penalties, damages,
interest, losses, settlements, expenses, cost, and other amounts, including
reasonable attorney's fees, expert fees and other court or other dispute
resolution costs, related to or arising out of actual or alleged (a) failure of
Buying Agent to fully and timely perform all obligations under this Agreement,
(b) conduct that is not fully compliant with applicable law, (c) any negligent
conduct, intentional misconduct or error (regardless of negligence or intent) of
Buying Agent, including misconduct involving or related to transshipping, quota
evasion, incorrect assessment or verification of component materials, any error
or misstatement in any Certificate of Inspection or any other report or
information provided by Buying Agent. No representation, remedy, warranty, or
covenant, including any indemnity, contained in this Agreement or the
performance thereof shall limit the scope of any other representation, warranty,
covenant or remedy contained herein or implied by applicable law.
8. Code of Conduct. Without limiting any other provision of this Agreement,
Buying Agent hereby acknowledges receipt of the ▇▇▇▇▇ ▇▇▇▇▇'▇ Factory Workplace
Code of Conduct. Without limiting Buying Agent's other obligations under this
Agreement, Buying Agent shall ensure that each Seller has received copies of
written (including faxed or electronic versions of or internet access to) all
Purchase Documents, including the Vendor Compliance Manual (such as the Factory
Workplace Code of Conduct contained therein). Without limiting Buying Agent's
obligations under the above Section entitled Specific Covenants, (a) Buying
Agent shall, prior to arranging for ▇▇▇▇▇ ▇▇▇▇▇ to enter into any contract of
purchase of any Product from any Seller, inspect the facilities of Seller to
verify strict compliance with the Factory Workplace Code of Conduct, (b)
noncompliance by any Seller at any time with any of the Purchase Documents,
including the Factory Workplace Code of Conduct, must be reported immediately in
writing by Buying Agent to ▇▇▇▇▇ ▇▇▇▇▇, (c) Buying Agent shall take all
appropriate steps to correct such noncompliance and confirm such correction to
▇▇▇▇▇ ▇▇▇▇▇, and (d) if Buying Agent shall obtain notice of knowledge of any
actual or alleged failure of any Seller to comply with the terms and provisions
of the Purchase Documents (such as the Factory Workplace Code of Conduct),
including such allegations that may be contained in any news media or any
allegations made by factory workers, nongovernmental organizations or other
persons or entities, Buying Agent shall immediately provide ▇▇▇▇▇ ▇▇▇▇▇ with an
accurate and complete description thereof. Without limiting the foregoing,
Buying Agent shall cooperate with and facilitate and, prior to finalizing any
purchase order contract, inform Seller of its obligation to cooperate with and
facilitate, inspections (including inspections without notice) of manufacturing
facilities and other facilities as required by ▇▇▇▇▇ ▇▇▇▇▇, including such
inspections carried out by such persons, entities or organizations retained by
▇▇▇▇▇ ▇▇▇▇▇ to conduct such inspections or to whom ▇▇▇▇▇ ▇▇▇▇▇ has granted the
right to conduct such inspections (as reflected in the Purchase Documents). By
way of illustration, in the event that ▇▇▇▇▇ ▇▇▇▇▇, as now or hereafter
reflected in the Purchase Documents, has (or shall) become a member of a
multi-party organization, such as the Fair Labor Association ("FLA"), Buying
Agent shall cooperate with and facilitate (and cause Seller to cooperate with
and facilitate) inspections (including inspections without notice) conducted by
such third party organization, such as the FLA.
9. Compliance with Law. When acting as agent for ▇▇▇▇▇ ▇▇▇▇▇ or otherwise
performing its obligations under this Agreement ("Agency Conduct"), Buying Agent
shall comply with all applicable law, including (without limitation) the United
States Foreign Corrupt Practices Act. Buying Agent hereby acknowledges that (a)
this Agreement and the Purchase Documents imposed on Buying Agent and Seller
obligations in addition to the obligations of Buying Agent and Seller under
applicable law, and (b) consequently, the satisfaction of obligations imposed on
Buying Agent or Seller by applicable law are not sufficient to satisfy the
additional obligations of Buying Agent or Seller under this Agreement or the
Purchase Documents, including ▇▇▇▇▇ ▇▇▇▇▇'▇ policies and requirements contained
therein. This Agreement and the Purchase Documents are not intended to limit or
diminish Buying Agent's obligations under applicable law. With respect to Agency
Conduct, applicable law shall mean any law applicable in any country, including
any political subdivision thereof, (a) in which the Buying Agent is deemed to
conduct business
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ANY TEXT REMOVED PURSUANT TO THE COMPANY'S CONFIDENTIAL TREATMENT REQUEST HAS
BEEN SEPARATELY SUBMITTED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION AND
IS MARKED [***] HEREIN.
on behalf of ▇▇▇▇▇ ▇▇▇▇▇, or (b) that asserts jurisdiction over any aspect of
Agency Conduct. With respect to Product, applicable law shall include the
applicable law of the country in which the Product (or any portion thereof) is
made, manufactured, processed, assembled, labeled, or shipped from and the law
of the Country of Import. ▇▇▇▇▇ ▇▇▇▇▇ shall comply with applicable law in
connection with conduct governed by this Agreement.
10. Confidential Information.
10.1 Information shall be deemed proprietary or confidential if (a) it is
considered by ▇▇▇▇▇ ▇▇▇▇▇ to be proprietary or confidential and
Buying Agent knows or has reason to know that ▇▇▇▇▇ ▇▇▇▇▇ considers
it to be proprietary or confidential, or (b) it is the type of
information that is treated as proprietary or confidential by
regional or national retailers in the United States. Without
limiting the foregoing, any information concerning the design,
specifications, or manufacture of Product, the contents of the
Purchase Documents, including the VCM, merchandising or other retail
strategies, including cost and pricing data, and customer lists
shall be conclusively deemed to be proprietary or confidential. Any
and all information disclosed by ▇▇▇▇▇ ▇▇▇▇▇ that is proprietary or
confidential and is disclosed in any manner (and regardless of
whether such information is specifically labeled as such) is
considered confidential information, unless such information falls
within the exceptions set forth below (hereinafter "Confidential
Information").
10.2 Buying Agent agrees to hold any Confidential Information disclosed
to it in confidence, to cause its employees, agents or other third
parties to hold such Confidential Information in confidence, and to
use its best efforts (and, in all events, no less than the same
standard of care and procedures used to protect its own proprietary
and confidential information) to protect the confidential nature of
the Confidential Information. Buying Agent shall not disclose
Confidential Information to others or use it for purposes other than
to perform its obligations under this Agreement.
10.3 Buying Agent agrees to limit disclosure of Confidential Information
to those employees or agents necessary for the performance of Buying
Agent's obligations hereunder and only to such employees and agents
who have agreed to be bound by the obligations herein.
10.4 Buying Agent hereby acknowledges that it is aware, and agrees that
it will advise all of those persons who are involved in the
performance of Buying Agent's obligations hereunder, that applicable
law, including securities laws, may prohibit any person who has
received material, non-public information concerning ▇▇▇▇▇ ▇▇▇▇▇
(including information about ▇▇▇▇▇ ▇▇▇▇▇ or its business that is not
generally available to the public) from purchasing or selling
securities of ▇▇▇▇▇ ▇▇▇▇▇ while in possession of such non-public
information, and from communicating that information to any other
person who may purchase or sell securities of ▇▇▇▇▇ ▇▇▇▇▇ or who may
otherwise violate such laws by the use or communication thereof.
Buying Agent specifically acknowledges these obligations and agrees
to be bound thereby.
10.5 Confidential Information shall not include any information which (a)
was publicly available at the time of disclosure; (b) became
publicly available after disclosure without breach of this Agreement
by the Buying Agent; (c) was in Buying Agent's possession prior to
disclosure, as evidenced by Buying Agent's written records, and was
not the subject of an earlier confidential relationship with ▇▇▇▇▇
▇▇▇▇▇; (d) was rightfully acquired by Buying Agent after disclosure
by ▇▇▇▇▇ ▇▇▇▇▇ from a third party who was lawfully in possession of
the information and was under no obligation to ▇▇▇▇▇ ▇▇▇▇▇ to
maintain its confidentiality; (e) is independently developed by
Buying Agent's employees or agents who have not had access to the
Confidential Information; or (f) is required to be disclosed by the
Buying Agent pursuant to judicial order or other compulsion of law,
provided that Buying Agent shall provide to ▇▇▇▇▇ ▇▇▇▇▇ prompt
notice of such order and comply with any protective order imposed on
such disclosure.
10.6 At any time requested by ▇▇▇▇▇ ▇▇▇▇▇, Buying Agent shall return or
destroy all documents, samples or other materials embodying
Confidential Information, shall retain no copies thereof, and shall
certify in writing that such destruction or return has been
accomplished.
11. Certain Alleged Rights in Work. Buying Agent agrees that all services
provided by Buying Agent, including any matters resulting therefrom and anything
performed, contributed, or prepared by Buying Agent or its employees or agents
pursuant to this Agreement, all patents, copyrights, trade marks, trade secrets
and other proprietary rights, together with equivalent rights in or based on
such works (the "Subject Work") have been specially ordered and commissioned by
▇▇▇▇▇ ▇▇▇▇▇, shall be deemed works-made-for-hire from the moment of creation,
and are and shall be the sole and exclusive property of ▇▇▇▇▇ ▇▇▇▇▇. Without
limiting the foregoing, Buying Agent, its employees and agents hereby sell,
assign, transfer and convey the Subject Work and any improvements thereto,
exclusively, irrevocably, and perpetually, together with all right, title, and
interest throughout the world therein, including without limitation, the right
to secure registrations, renewals, reissues, and extensions thereof. No rights
of any kind related to the Subject Work are reserved to or by Buying Agent or
shall revert to Buying Agent who expressly waives any rights of attribution or
integrity. Buying Agent specifically agrees to obtain all appropriate releases
and assignments necessary to convey to ▇▇▇▇▇ ▇▇▇▇▇ the rights described in this
Section, including but not limited to, releases and assignments from its
employees and agents. Buying Agent, its employees and agents agree to make full
disclosure to ▇▇▇▇▇ ▇▇▇▇▇ concerning all Subject Work.
12. Term. This Agreement shall commence on the Effective Date listed above and
shall remain in effect until (a) it is superseded by a subsequent agreement or
(b) it is terminated in writing by either party ("Termination Notice"). Except
as expressly provided in this Agreement, any Termination Notice shall be
effective sixty (60) days after receipt by the other party hereto. All
Termination Notices will be sent by fax (with a follow-up copy by express
courier) and deemed given upon delivery (or when delivery is refused) of the
first of such notices to be delivered. Except in the case of a For Cause
Termination, with respect to offers to purchase placed through the Buying Agent
by ▇▇▇▇▇ ▇▇▇▇▇ and accepted by a Seller prior to the date on which a Termination
Notice is received by the recipient, all rights and duties hereunder shall
continue to apply thereto regardless of a Termination Notice given by either
party. Except as otherwise stated in the previous sentence, in the event of any
termination of this Agreement, Buying Agent has no further rights or remedies
against ▇▇▇▇▇ ▇▇▇▇▇, including any right to payment of or reimbursement for any
costs, expenses, compensation or amount, including any amount on account of loss
of employment or business, any efforts on behalf of ▇▇▇▇▇ ▇▇▇▇▇ ("Termination
Compensation"). Notwithstanding any provision in this Agreement, in the event
Buying Agent violates its obligations hereunder, ▇▇▇▇▇ ▇▇▇▇▇ may terminate the
Agreement at any time effective immediately upon Buying Agent's receipt of the
Notice of Termination ("For Cause Termination") and, in such event, ▇▇▇▇▇ ▇▇▇▇▇
shall have no obligation to Buying Agent, including any obligation for payment
of any commission, fees, charges, or Termination Compensation. In the event that
any of the following shall occur or be deemed by ▇▇▇▇▇ ▇▇▇▇▇ to be imminent: (a)
Buying Agent ceases to conduct business, (b) there shall be a material change in
Buying Agent's operations, such as a material reduction in the location of its
operations or scale or scope of its services, (c) there shall be a material
change in the identity of person(s) who assist ▇▇▇▇▇ ▇▇▇▇▇ within the Buying
Agent's organization, or (d) control of the ownership interest or the sale of
the majority of Buying Agent's assets shall occur, then, ▇▇▇▇▇ ▇▇▇▇▇ may
terminate this Agreement, which termination shall be effective upon receipt of
the Notice of Termination by Buying Agent ("Immediate Termination Not For
Cause"), but such termination shall not be deemed a For Cause Termination. A
termination of this Agreement shall not constitute a waiver of or serve to
estop, modify or limit any right or remedy of ▇▇▇▇▇ ▇▇▇▇▇ against Buying Agent
or Seller under this Agreement or applicable law. At any time, ▇▇▇▇▇ ▇▇▇▇▇ may
elect to transact business with any other buying agent in addition to or in lieu
of Buying Agent.
13. Changes. Any future amendments to this Agreement or waiver of the rights or
remedies hereunder must be agreed to in a writing signed by both parties. ▇▇▇▇▇
▇▇▇▇▇ may assign this Agreement upon notice thereof to Buying Agent. Except as
provided in Exhibit A attached hereto, Buying Agent's interest in this Contract
may not be assigned and its obligations hereunder may not be delegated without
the written consent of ▇▇▇▇▇ ▇▇▇▇▇.
14. Election of Remedies. In the event of a breach of this Agreement by Buying
Agent, including any Subagent, ▇▇▇▇▇ ▇▇▇▇▇ shall be entitled to all rights and
remedies contained in this Agreement or as otherwise provided under applicable
law. To the greatest extent allowed under applicable law, all of ▇▇▇▇▇ ▇▇▇▇▇'▇
5
ANY TEXT REMOVED PURSUANT TO THE COMPANY'S CONFIDENTIAL TREATMENT REQUEST HAS
BEEN SEPARATELY SUBMITTED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION AND
IS MARKED [***] HEREIN.
remedies under this Agreement or applicable law shall be cumulative and the
election of a particular remedy shall not preclude or limit ▇▇▇▇▇ ▇▇▇▇▇ from
electing or relying upon any other such remedy.
15. Governing Law and Disputes. Without regard to any conflicts of law
provisions, this Agreement shall, for all purposes, be governed by and be
construed in accordance with the laws of the State of Washington; provided that
the foregoing agreement concerning choice of law applicable to the construction
of this Agreement shall not limit Buying Agent's obligation to comply with any
other law applicable to the Agency Conduct or the Product. In the event of a
dispute arising out of this Agreement (whether or not an action is commenced),
the prevailing party in such dispute shall be entitled to recover from the other
party its reasonable attorneys fees and costs (including, without limitation,
expert fees) incurred in connection with such dispute. Buying Agent submits to
the jurisdiction of a court of competent jurisdiction sitting in King County,
Washington, U.S.A. in connection with any dispute arising out of this Agreement
or matters related hereto, and, unless specifically waived in writing signed by
▇▇▇▇▇ ▇▇▇▇▇, venue shall be proper in the event of such a dispute only in such a
court. Except as otherwise expressly provided in this Agreement, no remedy or
election made hereunder shall be deemed exclusive, but shall, whenever possible,
be cumulative with all other rights and remedies of ▇▇▇▇▇ ▇▇▇▇▇ at law or under
this Agreement.
16. Insolvency. In the event of any proceeding, whether voluntary or
involuntary, in bankruptcy or insolvency, or a similar proceeding is instituted
by or against any of the parties, including proceedings under the Bankruptcy
laws of the United States or elsewhere, the bankruptcy, insolvency or
receivership laws of any state of the United States or elsewhere or in the event
of an appointment with or without consent to any receiver or assignee for the
benefit of creditors, either party may, at its option if and to the extent
allowed under applicable law, terminate this Agreement upon notice to the other
party, which termination shall constitute a For Cause Termination.
17. Insurance. Buying Agent will maintain and provide ▇▇▇▇▇ ▇▇▇▇▇ with a
certificate of insurance at all times during the term of this Agreement
reflecting the following coverage: Commercial General Liability insurance (or
similar coverage) with a minimum of $1,000,000 per occurrence and, if not
covered by such Commercial General Liability insurance, coverage for Buyer's
errors or omissions in performing its obligations hereunder, in an amount no
less than $1,000,000 per applicable event. ▇▇▇▇▇ ▇▇▇▇▇ and its subsidiaries must
be listed on all such policies as additional insureds (or similar applicable
status) and the policies shall provide a waiver of subrogation in favor of ▇▇▇▇▇
▇▇▇▇▇ and the certificate shall evidence such waiver. Compliance by a Seller
with the covenants concerning insurance in the Purchase Documents and the
compliance of Buying Agent with the covenants, representations and warranties
concerning insurance contained in this Agreement shall not limit or affect ▇▇▇▇▇
▇▇▇▇▇'▇ rights and remedies under this Agreement or applicable law. Without
limiting the foregoing, the limits of liability of insurance procured by a
Seller or Buying Agent shall not limit Buying Agent's liability under this
Agreement or applicable law.
18. Miscellaneous.
18.1 The invalidity or unenforceability of any provision in this
Agreement shall not limit the enforcement of any other provision.
This Agreement shall be binding upon and benefit the parties hereto,
their personal representatives, successors and assigns. This
Agreement contains the complete statement of the parties' agreement
as of the date hereof with respect to any matter mentioned herein.
No prior agreement, correspondence, negotiations or understanding
pertaining to any such matter shall be effective to construe,
interpret or modify the terms hereof. Whenever ▇▇▇▇▇ ▇▇▇▇▇ is
entitled to approve or consent under this Agreement, it shall be
entitled to withhold, provide and/or condition its approval or
consent in its business judgment. No waiver of any right or remedy
of ▇▇▇▇▇ ▇▇▇▇▇ shall be effective unless provided by ▇▇▇▇▇ ▇▇▇▇▇ in
writing signed by ▇▇▇▇▇ ▇▇▇▇▇'▇ Authorized Officer. A waiver by
▇▇▇▇▇ ▇▇▇▇▇ or a failure by Buying Agent to perform one or more of
any term or condition of this Agreement shall not constitute a
waiver or excuse for nonperformance of any future performance
pursuant to such term or condition and shall not constitute a waiver
or excuse of nonperformance as to any other term or condition of the
Agreement. If ▇▇▇▇▇ ▇▇▇▇▇ shall consent to or approve any conduct or
condition, such consent or approval shall not be deemed to render
unnecessary obtaining ▇▇▇▇▇ ▇▇▇▇▇'▇ consent or approval to any
subsequent conduct or condition.
18.2. This Agreement may be executed in counterparts. The parties
specifically agree that facsimile signatures shall be effective to
bind the parties hereto. Each person who executes this Agreement
represents that he or she is duly authorized to execute this
Agreement in the capacity signed below and, as such, to bind the
principal, if any, on whose behalf the signatory signs this
document.
18.3 The parties recognize and agree that time is of the essence in the
performance of Buying Agent's obligations under this Agreement.
Without limiting any of ▇▇▇▇▇ ▇▇▇▇▇'▇ other remedies, ▇▇▇▇▇ ▇▇▇▇▇
may offset any amount owed to ▇▇▇▇▇ ▇▇▇▇▇ by Buying Agent (under
this Agreement, another contract or applicable law) against any
amount owed by ▇▇▇▇▇ ▇▇▇▇▇ to Buying Agent (under this Agreement,
another contract or applicable law). Notwithstanding the foregoing
and without limiting ▇▇▇▇▇ ▇▇▇▇▇'▇ other rights hereunder, if Buying
Agent fails to perform any of its obligations under this Agreement,
including failure of any aspect of the Product, including quantity
or quality thereof, to comply with the Purchase Documents (which
full and complete performance is an express condition to payment of
any commission or other amount to Buying Agent), no commission (or
other amount or compensation based on any theory whatsoever) shall
be deemed due to Buying Agent and, if any such failure or breach is
discovered after payment of the commission, the commission shall be
immediately refunded upon demand.
18.4 Article and section headings are not to be a part of this Agreement
and shall not be used to interpret, limit or otherwise affect the
meaning of this Agreement or any provision hereof. This Agreement
shall be interpreted in accordance with the fair and reasonable
meaning of the words of this Agreement and, in that connection,
Buying Agent and ▇▇▇▇▇ ▇▇▇▇▇ respectively represent that it has been
represented or has had the opportunity to be represented by its
counsel in connection with the negotiation and execution of this
Agreement and that each has become familiar with the provisions of
this Agreement, which provisions have been fully negotiated between
▇▇▇▇▇ ▇▇▇▇▇ and Buying Agent. ▇▇▇▇▇ ▇▇▇▇▇ and Buying Agent agree
that the provisions hereof are not to be construed either for or
against either party as the drafting party.
18.5 Whenever any conduct is prohibited by the terms of this Agreement,
the Purchase Documents or applicable law, Buying Agent shall not
directly or indirectly participate in, facilitate, allow, or fail to
give prompt notice to ▇▇▇▇▇ ▇▇▇▇▇ of any conduct designed to achieve
or cause the prohibited conduct in any way by or through any person
or entity, including any Affiliate of any Seller or of Buying Agent.
In order to ensure compliance with this Agreement and the Purchase
Documents, ▇▇▇▇▇ ▇▇▇▇▇ shall be entitled to audit the records of the
Buying Agent upon reasonable notice at any location(s) at which
Buying Agent conducts or has conducted business and Buying Agent
shall fully cooperate in such audit, including collecting such
requested documents as ▇▇▇▇▇ ▇▇▇▇▇ shall request at the location
specified for the audit.
18.6 This Agreement is not intended to confer any rights or remedies upon
any person or entity that is not a party hereto. Without limiting
the foregoing, Seller is not a third party beneficiary of this
Agreement and no obligation of Buying Agent hereunder shall modify
Seller's obligations under the Purchase Documents or applicable law
or limit Seller's obligation for any breach of the Purchase
Documents or applicable law.
18.7 Any representations, warranties or obligations of Buying Agent
(whether express or implied) shall survive any inspection, testing,
shipment, or acceptance of the Product, payment therefor, payment of
any commission therefor and resale to ▇▇▇▇▇ ▇▇▇▇▇'▇ customers.
18.8 Except as provided below, in performing its obligations under this
Agreement, Buying Agent shall direct communication concerning any
Purchase Documents or Product (or matters related to the foregoing)
to the ▇▇▇▇▇ ▇▇▇▇▇ Buyer listed on the Purchase Documents (or such
other person as such Buyer or other authorized representative of
▇▇▇▇▇ ▇▇▇▇▇ shall specify) at such place (or other contact
information) as such Buyer (or other specified person) shall
provide. Notwithstanding the foregoing, any notice or communication
concerning the subject matter of this
6
ANY TEXT REMOVED PURSUANT TO THE COMPANY'S CONFIDENTIAL TREATMENT REQUEST HAS
BEEN SEPARATELY SUBMITTED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION AND
IS MARKED [***] HEREIN.
Agreement ("Changes") or any proposed change or exception to, or
waiver of, any of ▇▇▇▇▇ ▇▇▇▇▇'▇ standard Purchase Documents,
including the terms and conditions thereof, the Vendor Compliance
Manual, and ▇▇▇▇▇ ▇▇▇▇▇'▇ other policies, requirements or procedures
("Deviations") shall be sent to ▇▇▇▇▇ ▇▇▇▇▇'▇ Authorized Officer at
▇▇▇▇▇ ▇▇▇▇▇'▇ address listed below or such other address as ▇▇▇▇▇
▇▇▇▇▇ shall hereafter specify. Buying Agent acknowledges that no
Changes or Deviations may be made except in writing (including
email) by ▇▇▇▇▇ ▇▇▇▇▇'▇ Authorized Officer.
18.9 In the event that ▇▇▇▇▇ ▇▇▇▇▇ shall institute any communication or
other system, including electronic data interchange (EDI), related
to the purchase of Product or any matters described or referenced in
the Purchase Documents, at Buying Agent's sole cost and expense,
Buying Agent shall acquire, install and maintain in good operating
condition any such hardware, software and other items as are
necessary to effectively participate in and facilitate communication
related thereto. Without limiting the foregoing, Buying Agent shall
use its best efforts to maintain continuous email communication with
▇▇▇▇▇ ▇▇▇▇▇.
18.10 Notices given pursuant to this Agreement to Buying Agent shall be
provided to Buying Agent's address listed above unless and until
such different address is provided by Buying Agent to ▇▇▇▇▇ ▇▇▇▇▇'▇
Authorized Officer in writing. Without limiting the other provisions
hereof, all notices given pursuant to this Agreement shall be in
writing and deemed received upon delivery to or receipt by the
addresse or when delivery is declined.
19. Exhibits. The exhibits, if any, listed on the List of Exhibits (below) are
incorporated herein.
20. Execution. This Agreement shall not be valid unless and until it is executed
by all parties listed below and Buying Agent's executed version is delivered to
▇▇▇▇▇ ▇▇▇▇▇.
List of Exhibits:
EXHIBIT A
▇▇▇▇▇ ▇▇▇▇▇, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, VP Global Sourcing and Supply Chain Operations
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇.▇.
▇▇▇▇▇ ▇▇▇▇▇ International, Ltd.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------------------------
Name Printed/Typed: ▇. ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
7
ANY TEXT REMOVED PURSUANT TO THE COMPANY'S CONFIDENTIAL TREATMENT REQUEST HAS
BEEN SEPARATELY SUBMITTED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION AND
IS MARKED [***] HEREIN.
EXHIBIT A
(▇▇▇▇▇ ▇▇▇▇▇ International, Ltd.)
to that certain Buying Agency Agreement dated June 29, 2005,
by and between ▇▇▇▇▇ ▇▇▇▇▇, Inc. and ▇▇▇▇▇ ▇▇▇▇▇ International, Ltd.
This Exhibit A is incorporated into the attached Buying Agency Agreement
("Agreement"). The terms and provisions of this Exhibit shall supersede any
inconsistent provisions of the attached Agreement.
1. ▇▇▇▇▇ ▇▇▇▇▇ and Buying Agent acknowledge that, simultaneously herewith
and as a condition precedent to the effectiveness of this Agreement, (a) ▇▇▇▇▇
▇▇▇▇▇, Inc., and ▇▇▇▇▇ ▇▇▇▇▇ International, Ltd ("EBI") have entered into a
Buying Agency Agreement ("EBI Agreement"), (b) ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇
International (Americas), Inc., ("EBIA") have entered into Buying Agency
Agreement ("EBIA Agreement"), (c) ▇▇▇▇▇ ▇▇▇▇▇ and EBI have entered into a
License Agreement ("EBI License"), and (d) ▇▇▇▇▇ ▇▇▇▇▇ and EBIA have entered
into a License Agreement ("EBIA License"). In the event that the EBI Agreement
shall be terminated, then the EBI License, the EBIA License and the EBIA
Agreement (or any of the foregoing) shall, at ▇▇▇▇▇ ▇▇▇▇▇'▇ election, be deemed
terminated as of the effective date of the termination of the EBI Agreement. A
default under the EBI Agreement, the EBI License, the EBIA Agreement or the EBIA
License shall be deemed to be a default under each such Agreement. Regardless of
the present or future relationship between EBI and EBIA, such entities
(including their successors and assigns) shall always constitute Affiliates of
each other for all purposes under this Agreement until the EBIA License and the
EBIA Agreement are both terminated.
2. Unless and until both the EBI License and the EBIA License are both
terminated, Buying Agents and their Affiliates shall not directly or indirectly
serve as a buying agent (or similar function) for any other person or entity
other than ▇▇▇▇▇ ▇▇▇▇▇, its joint ventures and its duly authorized licensees of
▇▇▇▇▇ ▇▇▇▇▇. In the event that both the EBI License and the EBIA License shall
be terminated, for so long as this Agreement is not terminated, Buying Agent and
its Affiliates may serve as a buying agent for any person or entity that is not
a direct or indirect competitor of ▇▇▇▇▇ ▇▇▇▇▇. Notwithstanding the foregoing,
for purposes of this Agreement, an Affiliate of ▇▇▇▇▇ ▇▇▇▇▇, its joint ventures,
and its duly authorized licensees are deemed not to constitute a direct or
indirect competitors of ▇▇▇▇▇ ▇▇▇▇▇. Without limiting any other remedies of
▇▇▇▇▇ ▇▇▇▇▇ for a violation of this Section 2 of Exhibit A, in the event of a
violation thereof (the period during which such violation shall exist shall be
referred to as the "Violative Period"), ▇▇▇▇▇ ▇▇▇▇▇ shall not be liable for any
commission for the purchase of any Product (and, if such commission has been
paid, Buying Agent shall immediately refund to ▇▇▇▇▇ ▇▇▇▇▇ commission for any
Product) that constitutes Violative Product. For purpose of this section,
Violative Product shall mean (a) any Product subject to a purchase contract that
was
ANY TEXT REMOVED PURSUANT TO THE COMPANY'S CONFIDENTIAL TREATMENT REQUEST HAS
BEEN SEPARATELY SUBMITTED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION AND
IS MARKED [***] HEREIN.
negotiated or executed during the Violative Period or (b) any Product that was
manufactured, shipped, accepted or paid for by ▇▇▇▇▇ ▇▇▇▇▇ during the Violative
Period.
3. Notwithstanding the prohibition against assignment of its interest in
this Agreement by Buying Agent and the prohibition of delegation of Buying
Agent's duties hereunder, ▇▇▇▇▇ ▇▇▇▇▇ agrees that the performance of
obligations, including the making of representations and warranties, required of
Buying Agent under this Agreement may be performed by (a) an Affiliate of Buying
Agent or (b) a person or entity not affiliated with ▇▇▇▇▇ ▇▇▇▇▇ ("Subagent"),
but only if (1) such Affiliate or Subagent is approved in writing by ▇▇▇▇▇
▇▇▇▇▇, which approval must be signed by the Authorized Officer of ▇▇▇▇▇ ▇▇▇▇▇,
(2) all such performance of covenants, including making of representation and
warranties, by such an Affiliate or Subagent shall be deemed to have been made
by Buying Agent hereunder, (3) and to the extent performance by such Affiliate
or Subagent is approved by ▇▇▇▇▇ ▇▇▇▇▇, such approval shall in no way limit the
liability of Buying Agent under this Agreement or the rights and remedies of
▇▇▇▇▇ ▇▇▇▇▇ against such Buying Agent. In no event shall ▇▇▇▇▇ ▇▇▇▇▇'▇ approval
of performance under this Agreement by an Affiliate or Subagent be deemed to
constitute an express or implied license to such Affiliate or Subagent,
including any license contained in the EBI License or the EBIA License, unless
and until such a license is agreed upon in a writing executed by the Authorized
Officer and such Affiliate or Subagent. Without limiting the foregoing, at the
election of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ may withhold its approval of any Affiliate
or Subagent unless and until such Affiliate or Subagent assumes in writing for
the benefit of ▇▇▇▇▇ ▇▇▇▇▇ the obligations under the this Agreement with respect
to any Product for which it performs the obligations of the Buying Agent and, in
such case, such assumption shall not limit or modify the obligations of Buying
Agent under this Agreement (by way of illustration only, (a) such assumption
shall not create any guarantor defenses or reduce the liability of Buying Agent
under this Agreement to secondary liability and (b) it is acknowledged and
agreed that Buying Agent shall always be primarily liable for all obligations
under this Agreement).
4. Notwithstanding the Section of the Agreement entitled Term, except for
a For Cause Termination, or an Immediate Termination Not For Cause, which
terminations shall be effective immediately upon notice to Buying Agent, all
other terminations of this Agreement shall be effective on the day that is 365
days from the date on which the Termination Notice is received by the addressee.
5. The parties acknowledge and agree that Section 10 of the Agreement
addresses the confidentiality concerns of ▇▇▇▇▇ ▇▇▇▇▇. The following provision,
which addresses the confidentiality concerns of Buying Agent, is hereby added to
the Agreement.
ANY TEXT REMOVED PURSUANT TO THE COMPANY'S CONFIDENTIAL TREATMENT REQUEST HAS
BEEN SEPARATELY SUBMITTED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION AND
IS MARKED [***] HEREIN.
10. Confidential Information.
10.1 Information shall be deemed proprietary or confidential
if it is specified in writing by Buying Agent when it is
provided to ▇▇▇▇▇ ▇▇▇▇▇ ("Confidential Items").
10.2 ▇▇▇▇▇ ▇▇▇▇▇ agrees to hold any Confidential Items
disclosed to it in confidence. ▇▇▇▇▇ ▇▇▇▇▇ shall not
disclose Confidential Items to others or use it for
purposes other than to perform its obligations under
this Agreement.
10.3 ▇▇▇▇▇ ▇▇▇▇▇ agrees to limit disclosure of Confidential
Items to those employees or agents necessary for the
performance of Buying Agent's obligations hereunder.
10.4 Confidential Items shall not include any information
which (a) was publicly available at the time of
disclosure; (b) became publicly available after
disclosure without breach of this Agreement by the ▇▇▇▇▇
▇▇▇▇▇; (c) was in ▇▇▇▇▇ ▇▇▇▇▇'▇ possession prior to
disclosure, and was not the subject of an earlier
confidential relationship with ▇▇▇▇▇ ▇▇▇▇▇; (d) was
rightfully acquired by ▇▇▇▇▇ ▇▇▇▇▇ after disclosure by
Buying Agent from a third party who was lawfully in
possession of the information and was under no
obligation to Buying Agent to maintain its
confidentiality; (e) is independently developed by ▇▇▇▇▇
▇▇▇▇▇'▇ employees or agents who have not had access to
the Confidential Items; or (f) is required to be
disclosed by the ▇▇▇▇▇ ▇▇▇▇▇ pursuant to judicial order
or other compulsion of law, provided that ▇▇▇▇▇ ▇▇▇▇▇
shall provide to Buying Agent prompt notice of such
order and comply with any protective order imposed on
such disclosure.
6. Unless specifically requested by ▇▇▇▇▇ ▇▇▇▇▇ with respect to specific
Product, Buying Agent shall not be obligated to provide to ▇▇▇▇▇ ▇▇▇▇▇ Specified
Documents (defined in Section 3.17 of this Agreement); provided that the
preceding clause shall not limit or affect Buying Agent's other obligations
under this Agreement.
7. The phrase "thirty (30)" in Section 6 of this Agreement is deleted and
replaced by the phrase "seven (7)".
List of License Agreements: ____________________________
____________________________
