EXHIBIT 10.15
SERVICES AGREEMENT
THIS AGREEMENT (the "Agreement") is dated as of the 1/st/ day of May, 2000,
between XXXXXXXX'X INC., a Delaware corporation ("Xxxxxxxx'x"), and CRESCENT
JEWELERS, a California corporation ("Crescent").
WHEREAS, Crescent requires certain management information services related
to the operation of its retail jewelry business;
WHEREAS, Xxxxxxxx'x has developed the internal capacity and has the
employees with the technical expertise necessary to supply management
information services relating to the operation of retailing businesses like
Crescent's business;
WHEREAS, Xxxxxxxx'x is willing to supply to Crescent these management
information services; and
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, and intending to be legally bound, the parties
agree that the management information services shall be provided in accordance
with the following:
1. Supply of Services; Fee Schedule.
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Xxxxxxxx'x shall, starting on the Commencement Date (as defined below),
supply to Crescent certain management information services including, but not
limited to, the functional areas of accounting, cash management, sales, audit,
accounts payable, loss prevention, planning and management as more specifically
described on Schedule A (the "Services") to be performed by employees of
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Xxxxxxxx'x with the appropriate qualifications to perform such functions.
The annual cost of the Services are as follows:
Number of Crescent Stores in Operation at Month End Cost Per Store
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First 150 Stores................................... $7,500
Stores 151 to 200.................................. $6,500
Stores 201-250..................................... $5,500
2. Payment
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Not later than the tenth day of each month, Crescent shall submit to
Xxxxxxxx'x a schedule of the number of stores Crescent had in operation at the
end of the previous month, together with a calculation of amounts due to
Xxxxxxxx'x pursuant to Section 1 of this Agreement. The total fees listed in
each monthly notice shall be due and payable to Xxxxxxxx'x within 30 days of the
end of the previous month. If Crescent fails to timely pay any amounts due
under this Agreement, such amounts not paid shall bear interest at the prime
rate, as published by Citibank, N.A.
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The provisions of this Section 2 shall survive the termination of this
Agreement.
3. Term.
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This Agreement shall commence on September 30, 2000, and shall continue in
effect for an initial term of three years. This Agreement shall thereafter
automatically renew for succeeding periods of one year unless either party gives
notice within six months prior to the expiration of the Agreement of that
party's desire not to renew the Agreement.
4. Termination.
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a. If (i) after receipt of written notice from Xxxxxxxx'x of its
failure to pay amounts due under Section 2 of this Agreement (a "Payment
Default"), Crescent fails to pay all amounts then due and payable hereunder, or
(ii) Crescent is in material breach of any of its covenants or obligations under
this Agreement and such breach (other than a Payment Default) continues for 30
days after Xxxxxxxx'x gives written notice of the breach to Crescent, then
Xxxxxxxx'x may immediately or at any time thereafter terminate this Agreement
upon written notice to Crescent.
b. If Xxxxxxxx'x is in material breach of any of its covenants or
obligations under the Agreement, and such breach continues for 30 days after
Crescent gives written notice of the breach to Xxxxxxxx'x, then Crescent may
immediately or at any time thereafter terminate this Agreement upon written
notice to Xxxxxxxx'x.
5. Independent Contractor Status.
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x. Xxxxxxxx'x shall be an independent contractor with respect to the
Services. Each party shall be responsible for its own employees, and employees
of each party shall not be deemed to have an employment relationship with the
other party. Nothing in this Agreement creates a relationship of partnership or
joint venture between Xxxxxxxx'x and Crescent. This Section 5 shall survive the
expiration or earlier termination of this Agreement.
b. Crescent shall be solely responsible for all liabilities,
demands, damages, costs and expenses (including reasonable attorney's fees),
associated with the operation of its business and shall indemnify, defend and
hold harmless Xxxxxxxx'x and its affiliates and their respective officers and
directors, stockholders and representatives, from and against all liabilities,
claims, demands, damages, costs and expenses (including reasonable attorney
fees) arising from the conduct, actions, inactions or omissions of Xxxxxxxx'x in
connection with the Services hereunder except for any such liabilities, claims,
demands, damages, costs and expenses which result from the gross negligence or
willful misconduct of Xxxxxxxx'x or its employees.
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6. Assignment and Delegation.
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This Agreement shall not be assignable by any of the parties hereto without
the written consent of the other party, and no party may unreasonably withhold
such consent. Notwithstanding the foregoing, either party may assign this
Agreement, without written consent, to an entity that is a wholly-owned
subsidiary of the assignor.
7. Force Majeure.
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Neither Xxxxxxxx'x nor Crescent shall be liable for any failure to perform
hereunder arising from causes or events beyond the reasonable control and
without the fault or negligence of the party failing to perform including,
without limitation, labor disputes of any kind. If it appears to either party
that an event is likely to occur which would interfere with such party's
performance hereunder, such party shall notify the other party immediately of
the event and of its likely duration. In the event of such failure, the
obligation of the party shall be suspended until the cause of such suspension
shall have been removed.
8. Governing Law.
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This Agreement shall be governed by and construed in accordance with the
laws of the State of Georgia, without regard to conflicts of law principles.
9. Notices.
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Any notice, request, consent, approval, waiver and other communication to a
party hereunder shall be in writing and shall be deemed duly given when sent by
first class mail, postage prepaid, or delivered by hand, or by telex or
facsimile transmission to such party. Unless changed by written notice to the
other hereunder, all notices shall be addressed to the address shown below:
To Xxxxxxxx'x:
Xxxxxxxx'x Inc.
0 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxx Xxxxx
with a copy to:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxx X. XxXxxxxxx
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To Crescent:
Crescent Jewelers
000 00/xx/ Xxxxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxxx Xxxxxxx
10. Dispute Resolution.
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a. In the event of any dispute arising in connection with this
Agreement, the parties shall endeavor to resolve such dispute amicably by
discussion and mutual accord. Such discussions shall include meetings between
senior management of Crescent and Xxxxxxxx'x. In the event that the parties are
unable to mutually resolve such dispute through such meetings, then either party
may submit any unresolved controversy or claim arising out of or relating to
this contract, or the breach thereof, to be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
in Atlanta, Georgia, and judgment upon the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. The parties shall
split equally the cost of the arbitrators. Any award rendered by the
Arbitrator(s) may include compensatory damages and costs but under no
circumstances shall either party be liable for nor shall the arbitrator(s) award
any incidental, consequential or special (including punitive or multiple)
damages.
b. Notwithstanding anything herein to the contrary, the existence of
a dispute (other than payment of the price) shall not reduce the obligation of
Xxxxxxxx'x to continue to provide Services hereunder during the pendency of the
dispute resolution procedure, or following the resolution of such dispute,
unless the resolution of the dispute contains a finding of a material default by
Crescent or Xxxxxxxx'x as the case may be; provided, however, the foregoing
shall in no way limit the amount of damages or type of relief (whether monetary
or injunctive) to which Crescent or Xxxxxxxx'x is entitled under law or the
provisions of this Agreement.
11. Integration; Amendment.
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This Agreement supersedes all prior negotiations, commitments and writings
pertaining to the subject matter hereof. Except as otherwise provided in this
Agreement, this Agreement may be amended only by a written instrument duly
executed by both Xxxxxxxx'x and Xxxxxxxx.
00. Waiver.
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Any waiver at any time, by either Xxxxxxxx'x or Crescent of its rights with
respect to the other party to this Agreement, or with respect to any other
matter arising in
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connection with this Agreement, shall not be considered waived with respect to
any subsequent default or matter.
13. No Third Party Beneficiaries.
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Nothing in this Agreement, whether express or implied, is intended to
confer any rights or remedies under or by reason of this Agreement on any person
other than the parties and their respective successors and assigns, nor is
anything in this Agreement intended to relieve or discharge the obligation or
liability of any third persons to a party to this Agreement, nor shall any
provision hereof give any third persons any right or subrogation or action
against any party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
XXXXXXXX'X INC. CRESCENT JEWELERS
By:__________________________ By:_____________________________
Name:________________________ Name:___________________________
Title:_______________________ Title:__________________________
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