Master Supply Agreement
Exhibit
10.1
This
Master Supply Agreement (hereinafter the “Agreement”) is made the 10th
day of
July, 2007 (hereinafter the “Effective Date”), by and between VERSADIAL, INC., a
Nevada corporation with offices located at Xxxxx 0000, 000 Xxxxxxx Xxxxxx,
Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter the “Supplier”), and AVON PRODUCTS, INC., a
New York corporation with offices located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter “Avon”).
WHEREAS,
Supplier
is engaged in the business of manufacturing, selling and distributing raw
ingredients, components, packaging materials and/or finished goods to
manufacturers and/or distributors for resale and wishes to manufacture,
distribute and sell to Avon such products;
WHEREAS,
Avon
has
agreed to purchase certain products from Supplier as specifically set forth
on
the purchase confirmation delivered contemporaneously with the delivery of
this
Agreement (the “Purchase Confirmation”);
WHEREAS,
Avon
may
desire from time to time to purchase some or all of its requirements for certain
products from Supplier; and
WHEREAS,
Avon
and
Supplier are entering into this Agreement to establish their respective rights
and obligations with respect to all orders by Avon for the purchase of such
products from Supplier.
NOW,
THEREFORE,
in
consideration of the recitals set forth above, the mutual promises herein
contained and for other good and valuable consideration the receipt and adequacy
of which is hereby acknowledged, Avon and Supplier agree as
follows:
1. Definitions.
The
following terms shall have the meanings given in this Section, unless explicitly
stated otherwise:
1.1 Account
Manager.
“Account Manager” shall have the meaning set forth in Section 14.
1.2 Agreement.
“Agreement” shall have the meaning set forth in the recitals above.
1.3 Avon.
“Avon”
shall have the meaning set forth in the recitals above.
1.4 Supplier.
“Supplier” shall have the meaning set forth in the recitals above.
1.5 Competitor.
“Competitor” shall mean any company or any subsidiary, affiliate or division of
a company whose principal business is the manufacture, sale and distribution
of
women’s beauty products (e.g., cosmetics, skin care and personal care
products).
1.6 Confidential
Information.
“Confidential Information” shall have the meaning set forth in Section
20.
1.7 Effective
Date.
“Effective Date” shall have the meaning set forth in the recitals
above.
1.8 Products.
“Products” shall mean those products identified in the Purchase Confirmation as
may be amended from time-to-time by Avon and Supplier.
1.9 Required
Supplier Insurance.
“Required Supplier Insurance” shall have the meaning set forth in Section
25.
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1.10 Product
and Service Level Standards.
The
Product and Service Level Standards listed on the Purchase
Confirmation.
1.11 Term.
“Term”
shall have the meaning set forth in Section 7.
1.12 Third
Party Supplier.
“Third
Party Supplier” shall have the meaning set forth in Section 15(b).
2. Purpose.
The
purpose of this Agreement is to satisfy the ultimate customer by entering into
a
long-term, mutually beneficial business relationship which will increase total
value through continuous improvement processes. It is understood between the
parties that the use of the terms "partnering" and "partnership" in this
Agreement or any of the Exhibits thereto shall not create a legal partnership
between the parties. These terms are used solely to indicate a spirit of
cooperation and sharing.
3. Mutual
Understanding of Governing Principles.
The
parties mutually understand and agree that the following principles will govern
this Agreement:
(a)
The
relationship shall be viewed and managed as a whole rather than as individual
transactions.
(b)
Both
Avon and Supplier are totally committed to continuous improvement in cost,
quality, productivity, and technology.
(c)
The
parties recognize that a shared destiny in business decisions will result in
a
long-term, productivity-based relationship and agree to share information,
at
either party’s discretion, on a confidential basis to achieve this
end.
4. Scope.
This
Agreement shall apply to all divisions, subsidiaries, affiliates, locations,
and
operations of Avon and Supplier.
5. Purchase
Orders.
This
Agreement does not constitute a purchase order. Purchases under this Agreement
shall be made with purchase orders issued by individual Avon subsidiary or
affiliate procurement departments which, in turn, shall be subordinate to all
terms or Exhibits in this agreement. In the case of purchases made under this
Agreement for the United States, the Purchase Order Terms and Conditions with
Avon Products, Inc., attached to the Purchase Confirmation, apply to such
purchases. Notwithstanding the foregoing, both parties have agreed to the terms
and conditions set forth on the Purchase Confirmation. In the absence of any
other written agreement applicable to any purchase made pursuant to this
Agreement, such purchase(s) shall be subject to the terms and conditions of
this
Agreement and the individual Avon subsidiary or affiliate procurement
departments then-current purchase order terms and conditions (to the extent
such
terms and conditions are not inconsistent with the terms and conditions of
this
Agreement). Except as otherwise expressly set forth in the Purchase
Confirmation, in the event of a conflict between the provisions in the body
of
the Purchase Confirmation, the Agreement and the Purchase Order Terms and
Conditions, the provisions in the body of the Purchase Confirmation shall
prevail. Except as otherwise expressly set forth in the Purchase Confirmation
or
this Agreement, in the event of a conflict between the provisions in this
Agreement and the Purchase Order Terms and Conditions, the provisions of this
Agreement shall prevail.
5.1 Placement
of Orders.
Avon
will place all orders for Products by one of the following methods:
(a) Sending
to Supplier a purchase order utilizing the individual Avon subsidiary or
affiliate procurement departments then-current purchase order terms and
conditions, which are subordinate to the terms in this Agreement, regardless
of
whatever is represented on the individual Purchase Order; or
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(b) Transmitting
the order to Supplier by telephone, electronic mail, facsimile transmission,
telex, cable, wire, telecopy, telegram, or similar means of communication.
Such
order shall be subject to the same limitations of the previous
paragraph.
(c) All
submitted Purchase Orders have to be accepted by Supplier, who cannot reject
an
order if it is received at least sixty (60) days prior to ship date and is
within the monthly capacity as determined in the exercise of its good faith
business judgment. Once accepted by Supplier, Avon cannot cancel or adjust
the
order, without agreement from Supplier which will not be unreasonably withheld.
5.2 Exclusion
of Additional or Inconsistent Terms.
Supplier agrees that any terms or conditions set forth on any documents or
forms
utilized by Supplier which are inconsistent with, or are not included in, this
Agreement or the individual Avon subsidiary or affiliate procurement departments
then-current purchase order terms and conditions shall be of no force or effect
unless signed by an authorized employee of Avon.
5.3 Purchase
Obligation.
Avon
agrees to purchase from Supplier the quantities of Product at the prices set
forth in the Purchase Confirmation and subject to the price discount set forth
in the credit memo between the parties dated May 8, 2007, (“Credit Memo”). The
parties acknowledge that a Credit Memo has been issued in connection with
Supplier’s obligation to supply the Products to Avon under this Agreement.
Supplier agrees to timely deliver to Avon the quantities of Product ordered,
in
accordance with the delivery schedule and other terms provided for herein and
in
the Purchase Confirmation.
6. Continuous
Improvement; Changes.
(a) The
Products shall meet mutually accepted specifications. The specifications shall
describe the Products as a function of Supplier's process capabilities using
mutually accepted measurements, sampling methods, and testing frequencies.
All
additions, changes or deletions to specifications shall be confirmed in writing
by both parties.
(b) Supplier
shall notify Avon in writing of any proposed specification changes to the
Products and obtain Avon's acceptance prior to making the change. Supplier
may
replace or modify the components and raw materials used to manufacture the
Products only when such changes are evaluated and approved in writing by
Avon.
(c) Avon
shall have the right at any time to propose changes to Product designs,
specifications, materials, packaging, time and place of delivery, and method
of
transportation. Supplier agrees to use reasonable commercial efforts within
the
scope of its obligations to its licensors of rights and its other Protected
Rights as defined below to evaluate and meet, to the extent practicable, Avon's
requests under this Section; provided, however, that Supplier shall notify
Avon
within thirty (30) days if Supplier is not able to meet such request. If any
such changes cause an increase or decrease in the cost, or the time required
for
performance, an equitable adjustment shall be made and this Agreement shall
be
modified in writing accordingly acknowledging that the cost of such changes
will
be borne by Avon.
(d) Supplier
and Avon agree to actively pursue a program of continuous improvement in regards
to the Products and their relationship on both technical and commercial levels.
Supplier shall promptly advise Avon of any changes to raw material,
manufacturing, process or any other reasonably available technological advances
which Supplier becomes aware of and which may result in Product improvements
or
cost reductions, provided that Supplier has no third party restrictions on
the
sharing of such information. Supplier agrees to use reasonable commercial
efforts to reduce the cost of supply of the Products and to incorporate, to
the
extent practicable, cost improvement techniques developed or suggested by Avon,
provided, however, that any capital or developmental costs shall be borne by
the
parties in amounts mutually agreed by the parties pursuant to good faith
discussions.
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7. Term.
This
Agreement shall commence on the Effective Date and shall expire at the end
of a
two (2) year period (the “Term”) from the date of first commercial shipment of
Products unless otherwise earlier terminated pursuant to the terms and
conditions of this Agreement.
8. Termination
for Cause.
(a)
Default.
Either
party has the right to terminate this Agreement if the other party is in default
of any obligation hereunder, which default is incapable of cure or which
default, being capable of cure, has not been cured within thirty (30) days
after
receipt of written notice of such default (or such additional cure period as
the
non-defaulting party may authorize).
(b)
Act
of
Insolvency.
Either
party may regard the other party as in default of this Agreement and may
terminate this Agreement immediately by written notice to the other party,
if
the other party becomes insolvent, makes a general assignment for the benefit
of
creditors, suffers or permits the appointment of a receiver for its business
or
assets, becomes subject to any proceeding under any bankruptcy or insolvency
law
whether domestic or foreign, or has wound up or liquidated, voluntarily or
otherwise.
(c)
Right
of Avon to Terminate.
In the
event Avon, for any reason, elects to discontinue selling Products, it may
at
any time terminate this Agreement by giving Supplier thirty (30) days notice
of
its intent to do so.
(d)
Effect
of Termination.
The
termination or expiration of this Agreement shall not affect the rights and
obligations of the parties accrued prior to the effective date of such
termination or expiration.
9. Pricing.
(a)
The
prices and/or pricing formula for the Products, as established by the Purchase
Confirmation, shall be applicable to all purchase orders issued under this
Agreement.
(b)
Supplier
represents and warrants that the pricing for the Products is no greater than
the
lowest price at which such Products or similar materials are sold by Supplier
to
any other competitive customer or Third Party Supplier. Supplier further
covenants that, during the Term of this Agreement and any renewal periods,
if
Supplier grants to any competitive customer or Third Party Supplier a price
for
any Products or similar material (similar in terms of quality and delivery
terms) and said Third Party Supplier or competitive customer has offered
Supplier similar or less commercial terms than Avon, which is less than the
price then in effect for Avon, which is subject to the quantity of Products
offered, Supplier shall make such lower price immediately available to Avon
without action or request by Avon.
(c)
If
Avon is able to obtain raw materials that are equivalent with Products (in
terms
of quality and delivery terms) at a net price lower than Suppliers net price
for
raw materials, and said raw materials, as approved by Avon, are available for
Supplier to purchase at more advantageous terms, inclusive of delivery and
availability considered both on an individual and long term ordering basis,
Supplier will either purchase said materials or provide Avon with a cost savings
equal to the material savings cost.
10. Invoicing
and Payment.
(a)
Invoices will be submitted by Supplier to the Avon's location indicated on
the
individual purchase order. Invoices will reference Avon's purchase order number
and will contain such other information as Avon may reasonably
request.
(b)
Avon
shall pay all undisputed amounts on each Supplier invoice for Products as
specifically set forth on the Purchase Confirmation.
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11. Conditions
to Avon's Obligations. The
obligation of Avon to consummate the transactions contemplated by this Agreement
is, at its option, subject to the specific conditions set forth in the Purchase
Confirmation.
12. Delivery
Dates.
Delivery dates stated on releases against Avon's blanket purchase order and
Supplier's acknowledgment thereof shall be the date availability of the Products
by Supplier at its shipping points (e.g., Supplier’s distribution facility in
North America for Products destined for Avon’s North American markets and
Supplier’s distribution facility in Nuremberg/Geroldsgruen, Germany, for
Products destined for Avon’s markets outside North America).
13. Intentionally
Deleted.
14. Account
Management Personnel.
Supplier shall appoint an account manager, satisfactory to Avon, (“Account
Manager”) with overall responsibility for Supplier’s performance under this
Agreement. Subject to and in accordance with the terms and requirements of
this
Agreement, the Account Manager shall:
(a)
ensure that the Product and Service Level Standards in the Purchase Confirmation
are met;
(b)
meet
at least once per month with designated Avon representatives to review
Supplier’s performance, coordinate the provision of Products to Avon and discuss
future Avon requirements including, but, not limited to, review of new products,
promotional activity, volume forecasts, special handling items, review of
Supplier’s current staffing and capacity and any new systems
requirements;
(c)
ensure that adequate Supplier personnel are available and provided the tools,
training, and support necessary to meet performance requirements;
(d)
respond to all inquiries from Avon regarding its Products;
(e)
supervise Supplier personnel to ensure that services are provided in accordance
with this Agreement; and
(f)
serve
as the principal interface between Supplier and Avon with respect to all issues
relating to the services.
15. Product.
(a)
Supplier shall provide a secured source of supply and protection against
allocations for the Products. The parties acknowledge that Products to be
delivered hereunder may be subject to obligations to licensors of the Protected
Rights, and no representation or warranty can be made by Supplier that a third
party source of supply can be secured or is available.
16. Technological
Obsolescence.
(a)
In
the event that one or more of the Products becomes obsolete or technologically
inferior during the Term of this Agreement or any renewal periods (as evidenced
by commercially reasonable standards), Avon hereby grants Supplier the right
of
first opportunity over a 90 day period to work with Avon to develop a successor
product designed to replace the obsolete or inferior Product.
(b)
If
Supplier accepts such right and the parties develop a replacement product,
the
sales by Supplier to Avon of such successor product shall be governed by the
terms of this Agreement (at a mutually acceptable price). The product
specifications and the price shall be set forth in writing as an amendment
to
this Agreement.
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17. Design
of Products.
Supplier shall have responsibility for producing Products which are
non-infringing and comply with all current local, state, and federal
governmental specifications and standards existing at the time of the sale
of
such Products to Avon. Further, Supplier is responsible for producing Products
which are of good workmanship and performance and of merchantable quality and
fit for the purpose intended.
18. Hazardous
Conditions.
(a)
In
the event that Supplier or Avon learns of any issue relating to a potential
safety hazard or unsafe condition in any of the Products produced hereunder,
or
is advised of such by competent authorities of any government having
jurisdiction over such Products, it will immediately advise the other party
by
the most expeditious means of communication. The parties shall cooperate in
communication with the public and governmental agencies and in correcting any
such condition that is found to exist.
(b)
Avon
shall consult with Supplier prior to making any statements to the public or
to
any governmental agency concerning issues related to the safety hazard or unsafe
condition except in circumstances in which a failure to do so would prevent
the
timely notification which may be required to be given under an applicable law
or
regulation.
(c)
Expenses associated with the correction of a safety hazard or unsafe condition,
caused by or associated with Products produced by Supplier, including reasonable
attorneys' fees, court costs, expenses, and the like, if they become necessary,
shall be solely Supplier's responsibility, subject only to any other arrangement
negotiated by the parties in light of the particular facts and circumstances
then existing.
19. Representations
and Warranties.
Supplier represents, warrants, and covenants to Avon as follows:
(a) The
Products will be free from defects in workmanship and material and design,
and
will be merchantable, fit, and sufficient for their intended use and particular
purpose.
(b) The
Products and their immediate packaging will comply with all applicable laws,
regulations, and ordinances of United States of America and the European
Union.
(c) The
Products and their manufacture and use do not violate or infringe upon the
rights of third parties, including contractual, employment, trade secrets,
proprietary information trademark, copyright, and patent rights.
(d) This
paragraph shall only apply to the extent it is applicable to the Products.
The
Products, their ingredients and materials used in manufacturing such Products
will be free from, and shall not be derived from, bovine (i.e., cattle) born,
raised or slaughtered in countries where the United States Food and Drug
Administration has declared that Bovine Encapholy Spongifom (“BSE”) is known to
exist or presents an undue risk of introducing BSE as set forth in 9 C.F.R.
§94.18, and as amended (“BSE Countries”). In addition, Supplier and Avon
covenants, represents and warrants that the Products, their ingredients and
materials used in manufacturing such Products will be free from, and shall
not
be derived from, the specific bovine tissues (brain,
spinal cord, ileum, lymph nodes, proximal colon, spleen, tonsil, dura mater,
pineal gland, placenta, cerebrospinal fluid, pituitary gland, adrenal gland,
distal colon, nasal mucosa, sciatic nerve, bone marrow, liver, lung, pancreas,
thymus gland) obtained from cattle born,
raised or slaughtered in countries other than BSE Countries.
(e) Supplier
has the full corporate authority to execute and deliver this Agreement and
to
carry out the transactions contemplated hereby. This Agreement is binding and
enforceable upon Supplier in accordance with its terms. With respect to any
contract or agreement, including license agreements, to which Supplier is a
party or may be bound, the execution and delivery by Supplier of this Agreement
and the consummation of the transactions contemplated hereby will not result
in
any violation, conflict or default, or give to other any interest or rights,
including rights of termination, cancellation or acceleration.
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(f) Supplier
shall be in compliance, and continue to remain in compliance during the Term
of
this Agreement, with Avon’s then-current Supplier Code of Conduct.
20. Confidential
Information.
(a)
Confidential
Information.
“Confidential Information” shall mean any and all information disclosed by Avon
to Supplier or Supplier to Avon, that either Party designates as being
confidential or which, under the circumstances surrounding disclosure, ought
to
be treated as confidential, including, without limitation, that relating to:
(i)
either Party’s business, such as financial data, business plans and strategies,
business operations and systems, trade secrets; and (ii) the medical records,
names, addresses, telephone numbers, social security account numbers, dates
of
birth, wages, payroll, compensation, bank account numbers and all other personal
information of and pertaining to either Party’s sales representatives,
employees, customers, and/or vendors and their dependents; and/or (iii) either
Party’s technology, such as systems, discoveries, inventions, improvements,
research, development, know-how, designs, product specifications, software,
codes, flow charts, schematics, blue prints, prototypes, devices, hardware,
technical documentation, and manufacturing processes.
(b)
Nondisclosure
of Confidential Information.
Supplier or Avon shall neither: (i) disclose, disseminate or publish
Confidential Information received hereunder to any person or entity without
the
prior written consent of the other Party, except to employees of either Party
who have a need to know, who have been informed of the Parties obligations
hereunder, and who have agreed in writing not to use or disclose Confidential
Information; nor (ii) use Confidential Information for any purpose other than
the to provide the Services. Both Parties agree to use reasonable care, but
in
no event less than the same degree of care that it uses to protect its own
most
highly confidential information, to prevent any unauthorized disclosures of
Confidential Information.
(c)
Exceptions.
Supplier or Avon shall have no obligation under this Agreement to maintain
in
confidence any information which either Party can prove: (i) is disclosed in
a
printed publication available to the public; or (ii) is otherwise in the public
domain at the time of disclosure or subsequently becomes part of the public
domain through no fault of either Party or persons or entities to whom either
Party has disclosed such information; or (iii) is in the possession of either
Party prior to the time of disclosure by either Party and is not subject to
any
duty of confidentiality; or (iv) is approved for release in writing by either
Party; or (v) either Party is compelled to disclose or deliver in response
to a
law, regulation, or governmental or court order (to the least extent necessary
to comply with such order), provided that either Party notifies the other Party
promptly after receiving such order to give either Party time to contest such
order.
(d)
Injunctive
Relief.
The
Parties acknowledge and agree that either Party will not have adequate relief
at
law in the event of any breach or threatened breach by either party of any
of
the provisions of this Section, and that in such event the non-offending party
shall be entitled, in addition to all remedies available at law, to injunctive
or other equitable relief, without the necessity of posting bond
therefor.
21. Audits
and Maintaining Records.
Supplier agrees to keep complete and accurate records in connection with this
Agreement, individual purchase orders issued pursuant to this Agreement between
supplier and Avon, Product sold to Avon and fees charged to Avon, including
records and documentation of all charges to Avon relating thereto, relating
to
this Agreement and any prior agreement with Avon, and to preserve such records
for the lesser of: (i) six (6) years; or (ii) three (3) years after the
expiration or termination of this Agreement. Avon, or Avon’s representatives,
shall have the right, at Avon’s expense, from time to time, upon forty-eight
(48) hours notice to Supplier, and no more than two (2) times annually, to,
examine and make extracts from all such records of charges to Avon.
22. Patents.
(a)
Supplier hereby represents that, to the best of its knowledge, there are no
third-party patents, trade secret, or copyright rights which would be infringed
by the manufacture, use, or sale of the Products to be supplied hereunder,
other
than the Protected Rights or licenses thereto and that Supplier has the right
to
use all such Protected Rights. Supplier makes no representation as to the
underlying intellectual property rights of Avon (e.g., Avon’s formulations used
in the Products).
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(b)
Supplier will defend any suit or proceeding brought against Avon or its
customers, exclusive of suits or proceedings based on formulas supplied by
Avon,
based on a claim that the manufacture, use, or sale of any Products purchased
from Supplier hereunder constitutes an infringement of any patent or copyright
of any country or any trade secret, provided Supplier is notified in writing
and
given authority, information, and assistance (at Supplier's expense) for the
defense of same, and shall pay all damages and costs awarded therein against
Avon or Avon's customers in such suit or proceeding. If, as a result of any
such
suit or proceeding, the use or sale of any Products purchased by Avon from
Supplier hereunder is enjoined, Supplier shall, at its own expense and option,
either (1) procure the right for Avon and Avon's customers to use and sell
such
Products, (2) replace the same with interchangeable Products which have
substantially the same quality and performance but which are noninfringing,
(3)
modify any infringing Products so they become noninfringing, or (4) authorize
Avon to return said enjoined Products and refund to Avon the full purchase
price
and any direct costs of Avon associated with such return.
(c)
Supplier shall have no liability to Avon and Avon's customers, and Avon shall
indemnify Supplier for any such claims of infringement insofar as any such
claim
is found to arise solely from the inclusion in Products purchased from Supplier
hereunder of designs provided by Avon and incorporated in the Products without
the written agreement of Supplier and as directed by Avon.
(d)
Supplier agrees, upon receipt of notification, to promptly assume full
responsibility for defense of any suit or proceeding which may be brought
against Avon or any of its agents or customers, for alleged patent infringement,
exclusive of suits or proceedings related to product formula.
(e)
Protected Rights:
i)
Avon
recognizes that Supplier has certain rights and privileges in connection with
the Product and its registered trademarks (“Trademarks”), claimed marks and
licenses in connection with the Product, and Patents (all jointly hereinafter
referred to as the “Protected Rights”).
ii) Avon
understands and agrees that as part of the agreement to advertise, sell,
merchandise and distribute the Products, Avon is hereby granted the right to
use
the Protected Rights in all markets in which Avon intends to advertise, sell,
merchandise and distribute such Products. Such grant conveys to the Avon no
greater rights than those expressly stated in the written agreements between
the
parties and that in particular, Avon shall at no time acquire any legal or
equitable right, title or interest of any sort in the Protected Rights or in
the
use thereof. The grant to use the Protected Rights is in connection with the
advertising, sale, merchandising and distribution of the Product and for no
other purposes. As between them, the parties acknowledge that Supplier has
the
exclusive right to use Supplier as part of a corporate name, and the right
of
Avon to use Supplier in connection with the Products is solely for the duration
of this Agreement.
iii) Avon
recognizes the significant value of good will associated with the Protected
Rights and acknowledges that all of same belong exclusively to Supplier. Avon
shall not take any action or permit any action that may prejudice, impair or
otherwise adversely affect the Protected Rights or the good will associated
therewith. Avon agrees that it will not during the term of this agreement or
thereafter attack the title of Supplier in and to the Protected Rights, nor
shall Avon have any claim under common law for access to the Protected Rights.
iv) Avon
will
cooperate with and take any reasonable actions requested by Supplier in
connection with any enforcement or infringement action related to the Protected
Rights. Supplier, if it so desires, may commence or prosecute any claims or
suits in its own name or in the name of Avon or join Avon as a party thereto.
Avon shall notify Supplier in writing of any infringements or imitations by
others of the Product or Protected Rights which may come to Avon’s attention.
Avon shall not institute any suit or take any action on account of Supplier
without first obtaining the prior written consent of Supplier to do
so.
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v) Avon
shall not, at any time, intentionally or recklessly, do or suffer to be done
any
act or thing which may adversely affect the rights of Supplier in and to the
Intellectual Property Rights (as defined in the Purchase Confirmation),
Protected Rights or any registrations thereof which, directly or indirectly,
may
reduce the value of the Intellectual Property Rights.
vi) Upon
termination of this agreement, Avon shall execute such documents as Supplier
may
request disclaiming any ownership in the Protected Rights, promptly upon demand
by Supplier.
23. Product
Liability.
(a)
Supplier agrees to protect, defend, hold harmless, indemnify, and reimburse
Avon
and its distributors, dealers, affiliates, insurers, and customers during the
term of this Agreement and any time thereafter for any and all costs and
expenses (including, but not limited to, reasonable attorneys' fees and
expenses, overhead, settlements, judgments, and court costs) arising out of
or
related to any liability, demand, lawsuit, or claim alleging or asserting in
whole or in part, (1) any Failure of Products to comply with applicable
specifications, warranties, and certifications under this Agreement; (2) the
negligence or fault of Supplier in design, testing, development, manufacture,
or
otherwise with respect to Products or parts therefor; or (3) claims, demands,
or
lawsuits that, with respect to the Products or any parts thereof allege product
liability, strict product liability, or any variation thereof.
(b)
Avon
agrees to protect, defend, hold harmless, and indemnify in a similar fashion
from and against any liability, claim, demands, or cost or expense that is
the
result of design or other special requirements specified by Avon and actually
incorporated in the Products at the direction of Avon, or if Supplier is
uninformed of such changes.
(c)
Avon
also agrees to protect, defend, hold harmless, and indemnify Supplier in a
similar fashion from and against any liability, claim, demands, or cost or
expense arising out of death of or injury to any person or damage to tangible
property which is the result of the negligence or other fault of
Avon.
24. Product
Recall.
(a)
In
the event that any of the Products are found by Supplier, Avon, or any
governmental agency or court having jurisdiction to contain a defect, serious
quality or performance deficiency, or not to be in compliance with any standard
or requirement so as to require or make advisable that such Products be reworked
or recalled, Supplier or Avon will promptly communicate all relevant facts
to
the unaware Party and undertake all corrective actions, including those required
to meet all obligations imposed by laws, regulations, or orders, and shall
file
all necessary papers, corrective action programs, and other related documents,
provided that the Parties shall cooperate with and assist one another in any
such filing and corrective action, and provided that nothing contained in this
section shall preclude either Party from taking such action as may be required
of it under any such law or regulation. The responsible Party, to be determined
by reason of recall, shall perform all necessary repairs or modifications at
its
sole expense, and pay all costs associated with a recall, except to any extent
that Supplier and Avon shall agree to the performance of such repairs upon
mutually acceptable terms.
(b)
The
parties recognize that it is possible that other Supplier-manufactured products
might contain the same defect or noncompliance condition as do the Products
for
Avon. Avon and Supplier agree that any recall involving any Products
manufactured for Avon shall be treated separately and distinctly from similar
results of Supplier's brand products, provided that such separate and distinct
treatment is lawful and that Supplier shall in no event fail to provide at
least
the same protection to Avon on such Products as Supplier provides to its other
customers in connection with such similar recalls. Each party shall consult
the
other prior to making any statements to the public or a governmental agency
concerning issues relating to potential safety hazards affecting the Products,
except where such consultation would prevent timely notification required to
be
given under any such law or regulation.
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25. Insurance.
(a)
Required
Insurance.
Supplier shall, during the term of this Agreement and for three (3) years
thereafter, maintain the insurance coverage as specifically set forth on the
Purchase Confirmation (“Required Supplier Insurance”), at its sole cost and
expense, issued by a nationally recognized insurance carrier acceptable to
Avon
with an A.M. Best Rating of A or better.
(b)
Additional
Insureds.
Supplier shall include Avon, its subsidiaries and affiliates as additional
insureds under its liability policies, including the provisions of such policies
insuring Supplier’s obligations under the indemnity provisions of this
Agreement.
(c)
Certificates
of Insurance.
Upon
Avon’s request Supplier shall provide evidence of such insurance in the form of
certificates of insurance which shall include provision for thirty (30) days
prior notice to Avon of change or cancellation of the policy.
(d)
No
Limitation by Insurance.
Supplier’s indemnities and obligations under this Agreement shall not be limited
or defined in any fashion whatsoever by the amount of Required Supplier
Insurance, as defined in this Section, or by any limitations or restrictions
on
the amount or type of damages.
26. Publicity.
Supplier and its employees, agents and representatives will not, without Avon’s
prior written consent in each instance, use in advertising, publicity or
otherwise Avon’s name or the name of any of Avon’s affiliates, or the name of
any of its officers or employees, nor any trade name, trademark, trade device,
service xxxx, symbol or any abbreviation, contraction or simulation thereof
owned by Avon or its affiliates, nor represent, directly or indirectly, that
any
product or service provided by Supplier has been approved or endorsed by Avon,
nor refer to the existence of the Agreement in press releases, advertising
or
materials distributed to prospective customers.
27. Exclusivity.
Avon
shall have the sole and exclusive rights to advertise, promote, market, sell,
distribute and exploit certain of the Products in specific markets and
territories as specifically set forth on the Purchase Confirmation.
28. Force
Majeure.
If
either party becomes unable to perform any of its obligations under this
Agreement or to enjoy the fruits of this Agreement because of any event
(hereinafter referred to as “Force Majeure Event”) which is unavoidable and
beyond the control of the nonperforming party (including, but not limited to,
a
judicial or governmental decree, regulation, or other direction not the fault
of
the party who has been so affected, communication line failure, power failure,
and any natural disaster or act of God), the party who has been affected shall
immediately send the other party a notice thereof and shall take all steps
required to resume performance as soon as possible. Upon receipt of such notice,
the party so affected may suspend performance of its obligation hereunder to
the
extent made necessary by the Force Majeure Event. If the nonperfoming party
has
been unable to resume full performance within ninety (90) days of the
commencement of the Force Majeure Event, the unaffected party may terminate
this
Agreement by giving written notice to the nonperforming party.
29. General
Provisions.
(a)
Assignment.
Neither
this Agreement, nor any of the rights or interests by Avon or Supplier
hereunder, may be assigned, transferred, or conveyed by operation of law or
otherwise without the prior written consent of the other party, except to a
parent or subsidiary thereof, in which event the party so assigning shall remain
obligated and liable to the other party for the full and complete performance
of
this Agreement by the parent or subsidiary to which this Agreement is
assigned.
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(b)
Governing
Law; Venue.
The
parties to this Agreement specifically agree that the provisions of the United
Nations Convention on Contracts for the International Sale of Products do not
apply to the interpretation of this Agreement. This contract shall be governed
by and construed in accordance with the laws of the State of New York, including
that state’s Uniform Commercial Code. Whenever any conflict exists between the
terms of this Agreement and the provisions of such Uniform Commercial Code,
the
terms of this Agreement and the provisions of such Uniform Commercial Code,
the
terms of this Agreement shall govern. Any legal action or proceeding with
respect to this Agreement or any Purchase Order shall be brought in the federal
or state courts sitting in the City and County of New York, New York; and the
parties hereby consent to the exclusive personal jurisdiction of the aforesaid
courts.
(c)
Notices.
Notices, reports, and other communications with respect to this Agreement will
be referred to appropriate individuals within the respective Avon and Supplier
organizations as required.
(d)
Survival
of Rights of Parties.
The
termination of this Agreement shall not release either party from any liability,
obligation, or agreement which, pursuant to any provision of this Agreement,
is
to survive or be performed after such expiration or termination.
(d)
Subject
Headings.
The
subject headings on this Agreement have been placed thereon for the convenience
of the parties and shall not be considered in any question of interpretation
or
construction of this Agreement.
(e)
Waivers
and Amendments.
The
failure of either party to enforce at any time or for any period of time any
provision of this Agreement shall not be construed as a waiver of such provision
or of the right of such party thereafter to enforce such provision. In addition,
no terms or provisions of this Agreement may be changed, waived, discharged,
or
terminated orally but only by an instrument in writing signed by the party
against whom the enforcement of such change, waiver, discharge, or termination
is sought. Supplier and Avon agree to renegotiate in good faith any provision
of, or addition to, this Agreement.
(f)
Complete
Agreement.
This
Agreement, in combination with the purchase orders issued pursuant hereto,
constitutes the entire agreement between the parties relative to the Products
listed in the Purchase Confirmation , and supersedes and replaces all prior
or
contemporaneous agreements, written or oral, between the parties regarding
such
Products.
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the Effective Date set forth
above.
AVON
PRODUCTS, INC.
|
|||
By:
/s/
Xxxxxx X Xxxxxxxx
|
|||
Name:
Xxxxxx
X Xxxxxxxx
Title:
VP
- Sourcing
|
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By:
/s/ Xxxxxxxx Xxxxxxxx
|
|||
Name:
Xxxxxxxx Xxxxxxxxx
Title:
CEO
|
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