EXHIBIT 10.9
AGREEMENT dated May 1, 2002, between LADY XXXX EXCLUSIVE COSMETICS, INC., 00
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 ("LADY XXXX"); and SUMMIT
ENVIRONMENTAL CORP. INC, 000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxx 00000 ("SUMMIT").
WHEREAS, LADY XXXX is the manufacturer of cosmetics sold on a private label
basis; and
WHEREAS, SUMMIT seeks to be an agent of LADY BURD'S products in the Dallas-Fort
Worth, Texas metropolitan area; and
WHEREAS, the parties having now reached an agreement upon the terms and
conditions of their agreement, and now intend to set forth those terms in
writing:
NOW, it is therefore agreed:
1. Relationship: LADY XXXX hereby appoints SUMMIT as its exclusive sales
agent within the Territory described. This appointment follows the
terms and conditions set forth in this agreement, for the solicitation
and acceptance of orders for the described products.
2. Territory: The sales territory is all of the states and territories of
the United States.
3. Rights of Agent: Summit will have the exclusive right to solicit and
take orders for new customers within the territory for all products
manufactured by LADY XXXX.
4. PRICES; CREDIT; ORDER TERMS; CONFORMATION:
a. SUMMIT will solicit and take orders at prices specified by
LADY XXXX.
b. Orders taken by SUMMIT will not be binding upon LADY XXXX
unless and until LADY XXXX has accepted the order, terms of
payment, and creditworthiness of the customer.
5. COMMISSIONS:
a. Unless otherwise stated, LADY XXXX will pay commission on all
uncancelled customer orders received from the territory, at a
rate equal to 15-20%* percent of the selling price.
Commissions will be paid to the agent on a monthly basis upon
orders for which LADY XXXX has received full payment. (* 20 %
due upon attaining $50,000 in sales orders in any given
month.)
b. LADY XXXX will have the right to establish a reserve of not
greater than fifteen (15%) percent of payable commissions
against returns. Reserves, if established, will be reconciled
by LADY XXXX not later than 1 year after the reserve is
established.
c. SUMMIT will not be entitled to commission on sales to
customers who have ordered LADY XXXX merchandise at any time
prior to the making of this agreement.
6. SUMMIT'S OBLIGATIONS; REPRESENTATIONS:
a. During the term of this agreement, SUMMIT will not become
interested in, sell or offer for sale any product that
competes with the products of
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LADY XXXX or that would conflict with the best interests of
LADY XXXX.
b. SUMMIT would not use for any purpose the LADY XXXX name, LADY
XXXX product name, images, trademark, trade names or product
descriptions in any advertising or printed or published or
electronically displayed material, without the prior written
consent of LADY XXXX.
c. Seller represents that in entering into and performing this
agreement, it is not in breach of any agreement with any other
party or doing anything which would be actionable by a third
party under the statutes or common law of the United States or
any state thereof.
d. SUMMIT agrees to indemnify, defend and paying for by providing
a defense by counsel of LADY BURD's choice, and hold LADY XXXX
harmless against any and all claims, actions, proceedings,
hearings, mediation, arbitrations, administrative proceedings,
legal fees, disbursements, travel expenses, and any and all
other charges of any kind and nature asserted against LADY
XXXX arising out of the alleged acts or omissions of SUMMIT.
e. Any cost or sum which LADY XXXX is caused to incur by reason
of SUMMIT's failure to meet its obligation under the above
paragraph may be set off by LADY XXXX from commissions due to
SUMMIT.
f. SUMMIT is and will be responsible for all of its own
administrative and sales expenses, including but not limited
to showroom, trade show, office, transportation, automobile,
insurance, telecommunications and all other costs of
conducting its business.
7. Term; Termination:
a. This agreement will be for a term of one (1) year from the
date hereof. This agreement will be renewable for successive
one (1) year periods unless sooner terminated by either party
pursuant to the terms of this agreement.
b. Either party may terminate this agreement without cause upon
not less than sixty (60) days notice to the other party.
c. Either party may terminate this agreement for cause
immediately after written notice to the other party.
d. For purposes of this agreement, "For cause" means a) a breach
of or failure to perform any obligations under this agreement;
b) any act by a party that would cause to bring disrepute to
it or to the other party c) its officers, directors, or sales
representatives filing for protection under the bankruptcy
laws of the United States or under the law of any state; c)
the commission of a crime.
8. CONFIDENTIAL INFORMATION:
a. LADY XXXX has developed and maintains confidential information
including but not limited to customer lists, customer
requirements, customer names, and addresses; customer order
history and pricing; information containing secret processes;
machines, components, inventions, creations, systems, designs,
materials and software; manufacturing, production and assembly
techniques, packaging design
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and techniques, formulas, laboratory data and testing, pending
patent applications compositions, improvements, ideas,
inventions, clauses, specifications, or acts relating to LADY
BURD's products and services; and financing plans, financial
projections and other business information related to present
or prospective business activities of LADY XXXX. All
information and all documents, records, notebooks, drawings,
photographs and any repositories or representations of such
information are hereinafter referred to as "Confidential
Information."
b. To the extent LADY XXXX makes available any Confidential
Information to SUMMIT for any purpose, SUMMIT will hold such
Confidential Information in confidence and will not divulge
it, in whole or in part, to any third party, except in
confidence to those of its employees, if any, who require
knowledge of such Confidential Information for the purpose of
making sales of LADY BURD's products. Each of said employees
first must agree in writing to abide by the terms of this
agreement to maintain confidentiality of LADY BURD's
Confidential Information. This duty will survive the
termination of this agreement.
c. SUMMIT will surrender to LADY XXXX all Confidential
Information, documents, records, notebooks, drawings,
photographs, digital version of same, as well as all copies in
its possession, of any of the Confidential Information upon
demand by LADY XXXX or notice of termination of this
agreement, whichever first occurs.
d. SUMMIT will be liable to LADY XXXX for any and all damages
caused by the violation of SUMMIT to its employees to LADY
XXXX for all costs, expenses and legal fees incurred by LADY
XXXX to enforce the covenant of confidentiality against
SUMMIT, its employees or any third party.
9. POST-TERMINATION OBLIGATIONS OF SUMMIT:
a. For a period of twelve months, following termination of this
agreement, SUMMIT agrees that it will not, directly or
indirectly contact, solicit cosmetic sales or accept cosmetic
orders from any customer to whom LADY XXXX has made a sale
within a period of twelve months prior to the date of
termination of this agreement.
b. For a period of twelve months following the termination of
this agreement, SUMMIT agrees that it will not, directly or
indirectly, do business in the territory in competition with
the business of LADY XXXX.
c. SUMMIT recognizes that immediate and irreparable harm will
result to LADY XXXX if SUMMIT breaches any of the terms and
conditions of paragraphs 8 and 9 of this agreement, and,
accordingly, SUMMIT consents to entry of temporary,
preliminary and permanent injunctive relief by any court of
competent jurisdiction against it to restrain such breach, in
addition to any other remedies or claims for money damages
that LADY XXXX may seek. SUMMIT agrees to render an equitable
accounting of all earnings, profits and other benefits arising
from such violations and to pay all costs and counsel fees
incurred by LADY XXXX in enforcing this agreement.
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d. The existence of a claim or cause of action by SUMMIT against
LADY XXXX of any type and for any reason whatsoever, whether
predicated upon this agreement or otherwise, will not
constitute a defense by LADY XXXX to the enforcement of this
covenant.
10. CONTROLLING LAW: This agreement was entered into and will be
interpreted within the laws of the State of New York.
11. JURISDICTION: The parties agree that the federal and states courts
situated in the state of New York.
12. SERVICE OF PROCESS: For purposes of this agreement service of legal
papers by certified mail, return receipt requested upon the parties at
the addresses listed in this agreement.
13. NOTICE: For purposes of this agreement, written notice sent by
certified mail, return receipt requested, will constitute valid notice.
Notice will be deemed effective five (5) days after the delivery of the
notice to the United States Postal Service.
14. ENTIRE AGREEMENT: This agreement constitutes the complete and entire
understanding of the parties and supersedes any and all oral or written
representations, understandings or agreements between the parties. This
agreement may not be modified except in a writing signed by both
parties.
15. BINDING EFFECT: This agreement is binding upon the parties, their
heirs, successors or assigns.
IN WITNESS WHEREOF, the parties have executed this agreement on the
date first above written.
LADY XXXX EXCLUSIVE COSMETICS, INC.
By: /s/ Xxxxxxx Xxxx
-----------------
SUMMIT ENVIRONMENTAL CORPORATION, INC.
By: /s/ Xxxxx Xxxxxx, Vice President
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Exhibit 10.9
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