Exhibit 99.2
CONTRACT AND RATE QUOTATION
THIS CONTRACT AND RATE QUOTATION(“AGREEMENT”) is dated November 18, 2005 (the “Effective Date”), by and betweenNATIONAL DISTRIBUTION CENTERS, L.P.,with offices at 71 West Park Avenue, Vineland, New Jersey 08360 (hereinafter “NDC”) andENESCO GROUP, INC.(“ENESCO”),with offices at 225 Windsor Drive, Itasca, IL 60143-1225.
WITNESSETH:
WHEREAS: ENESCOhas certain goods that need to be warehoused andNDCis in the business of warehousing similar types of goods.ENESCOhas providedNDCwith the warehouse volume specifications for the handling ofENESCO’s goods, which will be incorporated into the Facility SOP (as defined below). The material specifications of the services to be provided byNDCare set forth onExhibit “A”,attached hereto and incorporated and made a material part hereof;
WHEREAS: ENESCOandNDChave read all of the terms and conditions contained in this Agreement and agree that the relationship betweenENESCOandNDCshall be governed by these terms and conditions;
WHEREAS: ENESCOhas had an opportunity to negotiate the Rates and Charges set forth inExhibit “B”,attached hereto and incorporated and made a material part hereof, and hereby agrees to make payment pursuant to this Agreement and saidExhibit “B”;
WHEREAS:ENESCOhas chosenNDCto act as a third party logistics (“3PL”) provider, for,inter alia, its expertise and professionalism andNDCshall be held accountable and responsible for performance.
NOW THEREFORE,in consideration for the mutual promises and covenants set forth below, and intending to be legally bound, the parties agree, as follows:
TERMS AND CONDITIONS
1) | ACCEPTANCE |
a) | This Agreement, including accessorial charges, attached hereto asExhibit B,and made a part hereof, must be accepted within 30 days from the proposal date by signature ofENESCO on the appropriate page of this Agreement. In the absence of written acceptance, the act of tendering goods described herein for storage or other services byNDCwithin 30 days from the proposal date shall constitute such acceptance byENESCO. |
b) | In the event that goods tendered for storage or other services do not conform to the description contained herein, or conforming goods are tendered after 30 days from the proposal date without prior written acceptance byENESCOas provided in paragraph (a) of this section,NDCmay refuse to accept such goods. IfNDCaccepts such goods,ENESCO agrees to rates and charges as set forth in this Agreement, and to all other terms and conditions of this Agreement. |
AGREEMENT
1. | SERVICES AND STAFFING |
NDCshall perform all services set forth in this Agreement, including but not limited to those set forth on Exhibit A attached hereto, (collectively, the “Services”) at the distribution center located at510 S. Enterprise Drive, Lebanon, IN 46052(the “Facility”) in accordance with the terms of this Agreement and as otherwise directed byENESCO.
NDCshall provide, in accordance with, and subject to the pricing cap in Exhibit B and thePricing Sheet attached in Supplement 1, sufficient competent, knowledgeable and fit personnel to properly and economically perform the Services. In the event that any ofNDC’s personnel are, inENESCO’s good faith opinion, objectionable, upon receipt ofENESCO’s complaint,NDCwill immediately investigate and take appropriate action.
NDCwill provide and maintain, at its cost, at all times during this Agreement, all equipment, in good and working condition, required to perform the Services.
NDCwill provideENESCOwith a copy ofNDC’s general standard operating procedures for 3PL services by no later than the Effective Date.NDCandENESCOagree to negotiate standard operating procedures for the Facility (the “Facility SOP”) by February 1, 2006, which are incorporated into and made a part of this Agreement by reference. The Facility SOP will not be modified without the prior written approval ofENESCOandNDC.
2. | COMPLIANCE |
In performing the Services,NDCshall comply with all applicable state, federal and local laws and regulations (including, without limitation, OSHA and the Fair Labor Standards Act).
3. | LOSS AND DAMAGE |
A. | During the term of this Agreement,NDCshall have the exclusive care, custody and control of all property tendered byENESCO(the “Product”) from the time it is received byNDCat the Facility until it is removed from the Facility.NDCshall be liable for any loss (including, without limitation, any theft or shrinkage) or damage caused to Product and other property stored at the Facility as a result ofNDCnegligence or willful misconduct.NDCshall receive a shrinkage allowance of one-tenth of one percent (0.10%) of the inventory throughput (based on unit count) at the Facility for the first six months from the Effective Date and, for the remainder of the term of this Agreement thereafter at five-hundredths of one percent (0.05%) of the annualized (on each full calendar year or pro rated portion thereof) inventory throughput (based on unit count) at the Facility. NDC is responsible for all shrinkage and theft above the shrinkage allowance pursuant hereto. |
B. | ENESCOshall file any claim withNDCfor loss or damage within six (6) months of the dateENESCOlearns of such loss or damage. Within sixty (60) calendar days after receipt of any claim,NDCwill either pay the manufacturer’s landed cost or refuse payment in writing in accordance with the agreed upon Facility standard operating procedures (as referenced in Section 1 above). |
C. | ENESCOclaim must be supported by reasonably detailed copies of documentation of its landed cost at the Facility (i.e., manufacturing costs plus freight, handling, duties and licensor royalties) for the damaged items. |
D. | IfNDClearns of any loss or damage to Product and/or property in the Facility,NDC will immediately notifyENESCOof such fact and request instructions. |
4. | PERIOD OF AGREEMENT |
The term of this Agreement is from the Effective Date through December 31, 2010. The anticipated Facility opening date is currently scheduled for December 19, 2005, with first inbounds to be received through inventory transfer on December 27, 2005.NDCwill commence billing for storage related charges (i.e., those listed as “Fixed –Storage Costs” in Section II of the Pricing Sheet on Supplement 1 to this Agreement) on January 1, 2006 for the total monthly Facility space under lease.NDCwill invoiceENESCOfor fixed and variable labor costs (i.e., those listed as “Fixed – Labor Costs” in Section I and as “Variable – Labor Costs” in Section III of the Pricing Sheet on Supplement 1 to this Agreement) incurred in December 2005 for training, Facility preparation and Product receiving.ENESCOandNDCwill negotiate any agreed-upon renewal term for this Agreement during the six (6) months prior to expiration of this Agreement.NDCwill not invoiceENESCOfor any start-up fees incurred in connection with this Agreement other than those specified in the Pricing Sheet attached to this Agreement.
The termination or expiration of this Agreement shall not relieve or release either party from any rights, liabilities or obligations that may have accrued under the law or terms of this Agreement prior to such termination or expiration.
5. | TAXES |
ENESCOagrees to pay directly to the taxing authority all property taxes, licenses, and charges and assessments onENESCOProduct andENESCOpersonal property within the Facility levied by any properly constituted governmental authority.NDCagrees to pay and holdENESCOharmless from all taxes assessed or levied uponNDCwith respect to the Services and the Facility.
6. | FACILITY AND EQUIPMENT |
NDCagrees that it will not use the Facility for any purpose other than for the performance of the Services, and or public warehousing business for compatible products of non-direct competing companies.NDCwill not permit any third party to have access toENESCOProduct and property at the Facility without the prior written approval ofENESCO. In the event the Facility (or any other facility used to perform the Services) is used to store or otherwise handle hazardous or flammable materials of NDC or any third party, or any other materials that result in an increased premium on the insurance carried byENESCOcovering loss of the Product (collectively, “Hazardous Materials”),NDCagrees that it will either take all steps necessary, or required byENESCO’s insurers, to eliminate the increase in anyENESCOinsurance premium associated with or related to the Hazardous Materials orNDCwill reimburseENESCOupon demand byENESCOfor the increase inENESCO’s insurance premiums associated with or related toNDC’s storage or handling of the Hazardous Materials.
NDCagrees that it will maintain the Facility in proper working condition at all times during the term of this Agreement.NDCshall not make any changes in the Facility or purchase any additional racking, information technology software/hardware, or material handling equipment affecting costs without the prior written approval ofENESCO.
ENESCOwill have access to the Facility at all times during normal business hours for the Facility.ENESCOwill provide advance notice of any personnel desiring access to the Facility reasonably in advance to permitNDCto arrange for an escort at the Facility.
7. | TITLE |
NDCwill provide immediate notification of Product received at the Facility for storage onENESCO’s behalf by proper recording of receipts. The receipt byNDC’swarehouse management system (“WMS”) is acknowledgement of the Product having been received in good condition unless otherwise noted by NDC (subject to the Facility SOP). It is expected that such notifications will take place electronically (in an agreed upon format) between bothENESCOandNDC.
Title toENESCOProduct shall remain withENESCOuntil title is transferred atENESCO’s direction.
IfENESCOinstructsNDCto store and segregate third-party product,NDCshall segregate such products fromENESCOProduct, to facilitate visual periodic inspection, if required byENESCO.
NDCwill pay promptly all indebtedness for labor, materials, tools, and equipment incurred by it in the performance of this Agreement and will not allow any liens to attach toENESCOProduct and property for any reason.NDCwill have sole responsibility to all vendors (including the lessor of the Facility) ofNDC. There are no third-party beneficiaries to this Agreement. Further, in the eventENESCOrequires a waiver from the landlord of the Facility of any and all claims that the landlord of the Facility may have against the Property, NDC will use commercially reasonable efforts to obtain such waiver within ten (10) calendar days.
NDCwill only useENESCOproperty for the benefit ofENESCO.
8. | INDEMNIFICATION |
NDCwill indemnifyENESCOagainst liability, loss and expense incurred byENESCOresulting from, arising from, or in any way related to: (i)NDCnegligent acts or omissions or willful misconduct in its performance of this Agreement; (ii) anyNDCvendor of equipment, software or other goods or services; (iii) any employment liability and employment practices liability forNDC’s personnel performing the Services; or (iv) any governmental or regulatory fines or assessments related to the Facility andNDC’s performance of the Services and operation of the Facility; provided, however, this indemnity shall not apply to the extent such liability, loss or expense is caused by the negligence or willful misconduct ofENESCO.
ENESCOwill indemnifyNDCagainst liability, loss and expense incurred byNDCresulting from, arising from, or in any way related to: (i)ENESCO’snegligent acts or omissions or willful misconduct in its performance of the Agreement; (ii) anyENESCOvendor of equipment, software or other goods or services; (iii) any employment liability and employment practices liability forENESCO’s personnel performing pursuant to this Agreement; or (iv) any governmental or regulatory fines or assessments related toENESCO’s performance of this Agreement provided, however, this indemnity shall not apply to the extent such liability, loss or expense is caused by the negligence or willful misconduct ofNDC.
9. | SAFETY AND HEALTH |
NDCshall develop, implement, continually maintain and improve a formal and written safety and health program.NDCwill conduct reviews of its safety and health programs and provideENESCO with the results of those reviews in writing upon request byENESCO.
NDCshall comply with safety practices required by law and such additional safety measures, as both parties deem necessary.
NDCwill prepare and maintain a disaster recovery plan for the Facility that is reasonably satisfactory toENESCO.NDCwill provideENESCOwith a copy of the disaster recovery plan on or before March 1, 2006.
10. | FORCE MAJEURE |
Except as otherwise provided, the obligations ofNDCto furnish and ofENESCOto use, the Services provided for in the Agreement shall be temporarily abated during any period(s) in which either of the parties is unable to comply with the requirements of this Agreement by reasons of any Act of God or the public enemy, or other similar contingencies, beyond the reasonable control of the affected party. By way of clarification, labor troubles (e.g., strike or slow-down) with NDC employees or contractors are not considered a force majeure event. Similarly, failure to pay an undisputed invoice byENESCOfor any reason will not constitute a force majeure event. The Party affected shall promptly notify the other party in writing, stating reasons for its inability to comply with the provisions of the Agreement. Notwithstanding the foregoing,NDCshall not be excused from performance of the Services by a force majeure event to the extent that compliance withNDC’s disaster recovery plan will avoid any such nonperformance. Further, if any event of force majeure (which is not anENESCOforce majeure event) continues and prevents performance byNDCfor more than thirty (30) daysENESCO may, in its sole discretion, terminate this Agreement, without further liability other than as specified in Section 13 below, upon fifteen (15) calendar days prior written notice toNDC.
11. | INSURANCE |
ENESCOshall maintain a standard fire and extended coverage insurance policy on its Property in the Facility sufficient to cover loss of the Property for reasons other than the negligence and willful misconduct ofNDCand any shrinkage or other liability ofNDCunder this Agreement.
NDCagrees to purchase and carry during the terms of this Agreement and any extensions hereof:
A. | Policies of automobile liability insurance covering bodily injury and property damage liability in the amount of ONE MILLION ($1,000,000) combined single limit per accident. The automobile liability insurance required ofNDCunder the terms of this Agreement shall insureNDC, its directors, officers, employees and liability for agents and subcontractors and all owned, hired, leased, and non-owned vehicles used in connection with this Agreement. |
B. | Policies of general liability insurance including blanket contractual liability, personal injury liability and completed operations covering bodily injury and property damage of an amount not less than ONE MILLION DOLLARS ($1,000,000) combined single limit per occurrence, FIVE MILLION DOLLARS ($5,000,000) general aggregate, ONE MILLION DOLLARS ($1,000,000) products completed operations aggregate, ONE MILLION DOLLARS ($1,000,000) personal and advertising injury.NDCalso agrees to carry: (i) excess liability insurance with a limit of liability not less than FIVE MILLION DOLLARS ($5,000,000) per occurrence and in the aggregate. The commercial general liability policy required byNDCunder the terms of the Agreement shall insureNDC, its directors, officers, employees, andNDC liability for agents and subcontractors, and shall also include contractual liability covering all indemnification wording contained in this Agreement. |
C. | NDCagrees to purchase and carry, and to require its subcontractors or agents to purchase and carry, during the term of this Agreement and any extensions hereof policies of workers’ compensation and unemployment insurance required by the laws of Indiana, protecting and coveringNDCand its employees, subcontractors and their employees in such amounts as are required by the statutes of Indiana. |
D. | NDCagrees to purchase and carry a minimum of FIVE MILLION DOLLARS ($5,000,000) and a maximum of FIVE MILLION DOLLARS ($5,000,000) ofNDCWarehouse Legal Liability for the protection ofENESCOproduct. |
E. | The insurance carrier(s) specified must possess a rating of A- or higher in the Best’s Key Rating Guide. |
F. | Enesco Group, Inc. and its subsidiaries and affiliates for the benefit of itself and its affiliated entities and subsidiaries and their respective directors and officers, employees, representatives and agents (collectively, the “Enesco Parties”), must be named as additional insured parties with respect to commercial general liability, commercial automobile liability, warehouse legal liability and excess liability. All policies must be primary over any coverage held byENESCOwith respect to any liability ofNDCarising under this Agreement and contain a provision that the policy will not be cancelled, failed to be renewed or materially altered without thirty (30) days’ prior written notice toENESCO. IfNDCelects to self-insure any of the insurance required ofNDChereunder, then the self-insured will be considered an insurance carrier for purposes of this paragraph. Each self-insured retention(s) and all deductible amounts will be treated as though they were recoverable under required insurance.NDCfurther agrees that general liability insurance will be maintained for two (2) years following the termination of this Agreement orNDC will purchase a tail coverage policy that will provide claims-incurred coverage within the required limits set forth above for any potential matters incurred during the term of this Agreement.NDCwaives and must require its insurers to waive all rights of subrogation of any of its insurers againstENESCOand the Enesco Parties on account of any and all claimsNDCmay have against the Enesco Parties with respect to insurance actually carried or required to be carried pursuant to this Agreement. This subrogation waiver will preclude the assignment of any insurance claim againstENESCOor any of the Enesco Parties by way of subrogation to any insurer.NDCagrees to give immediately to each appropriate insurer, written notice, if required, of the terms of this waiver, and if necessary, have said insurance policies properly endorsed to prevent the invalidation of the insurance coverages by reason of this waiver, if required by the insurance policies.NDCwill indemnify, defend and holdENESCOand the Enesco Parties harmless against any loss or expense, including, without limitation, reasonable attorneys’ fees, resulting from the failure to obtain such insurance subrogation waiver.NDCwill submit toENESCOCertificates of Insurance for all policies prior to execution of this Agreement and upon any policy renewal thereafter. Any incidents, accidents, claims or potential claims of whichNDChas knowledge shall be communicated toENESCO’s risk management department within fifteen (15) days of such knowledge. |
If any federal, state or local government authority shall require minimum amounts of insurance in excess of the amounts as prescribed herein, such required insurance minimum will take precedence.
12. | DEFAULT AND TERMINATION |
A. | Defaults by eitherENESCOorNDCmust be cured following written notice from the other within the time period, if any, specified below. If the party in default fails to so cure, the other may terminate this Agreement on written notice to the party in default given in advance, if required below.ENESCOmay also terminate this Agreement as set forth in Supplement 1 attached to this Agreement. |
B. | The following defaults shall have no cure period, may not be cured by the party in default and the notice of termination may be effective when delivered to the party in default: theft; gross negligence; gross mismanagement; felony violations of the law or its equivalent; or in the event the party becomes insolvent, has a petition under any chapter of the bankruptcy laws filed by or against it, make a general assignment for the benefit of its creditors, or has a receiver appointed for it; or ifNDCshould, in any instance, attempt to sell, assign, delegate or transfer any of its rights and obligations under this Agreement without having obtainedENESCO’s prior written consent thereto, or if there should occur any material change inNDCownership, economics or operations. To be considered default hereunder, the party, not its employees as individuals, must be accountable for the theft or felony violation of the law or its equivalent. |
C. | All other defaults shall have a forty-five (45) calendar day cure period and termination shall be effective sixty (60) calendar days from the end of the cure period if the defaulting party has been unable to cure. |
13. | RIGHTS OF PARTIES UPON TERMINATION |
Upon expiration or termination of this Agreement for any reason:
A. | NDCshall return toENESCO, at the Facility, all inventory, pallets, package materials and other items owned byENESCO, in the same condition as originally provided, ordinary wear and tear excepted.NDCwill be responsible, at its cost, for all: (i) repair toENESCOmaterials and equipment made necessary by the acts or omissions ofNDC, reasonable wear and tear excepted; and (ii) replacement ofENESCOmaterials or equipment that is lost or destroyed byNDCor as a result ofNDC’s acts or omissions, at the depreciated value at the time of such loss or destruction. |
B. | NDCshall return toENESCOand immediately cease all use of confidential information (as provided in Section 15 below) furnished byENESCO. |
C. | NDCshall return toENESCOall records, reports and documentation in its possession. However,NDCmay keep a copy as confidential and proprietary information subject to Section 15 below. |
D. | The obligations of either party relating to termination (this Section 13), loss and damage (Section 3), payment obligations, title (Section 7), confidential information (Section 15) and indemnification (Section 8), as well as any other obligations that by their nature survive the expiration or termination of this Agreement (e.g., purchase of a tail policy under Section 11 above) as set out in this Agreement shall survive the termination, expiration or non-renewal of this Agreement for one (1) year, except for the tail policy coverage required by Section 11 above, which will survive for 2 years, and the parties confidentiality obligations, which will survive without limitation. |
E. | If this Agreement is terminated for any reason other than a breach or default byNDC,ENESCOshall, without prejudice to any other rights or remedies ofENESCO, pay any remaining undisputed, approved and unpaid Startup Costs as set forth on Exhibit B within 30 business days of theNDCinvoice date as well as any outstanding unamortized principal amounts of capital investments costs approved of in writing and in advance byENESCO including Warehouse Management System Hardware/Software, Racking, Equipment, and remaining Facility lease expenses/charges for the term of the original Agreement.ENESCOwill not be liable for payment of such amounts in the event of a default or breach byNDC. |
If this Agreement is terminated prior to the end of the initial term (as set forth in Section 4 above) for a breach or default byNDC,ENESCOwill, in its sole discretion and without prejudice to any other rights and remedies ofENESCOat law or in equity (including, without limitation, any right to damages), undertake one of the following:
i) | enter into negotiations withNDCand the lessor of the Facility forENESCOto assume the lease for the Facility and from and after its assumption of the lease for the Facility,ENESCOwill have no further liability toNDCpursuant to this Agreement except as set forth in Section 4 above and this Section 13(E) below; |
ii) | continue to pay the monthly “Rent/Cam/Regional” expense line item as set forth in the Pricing Sheet attached in Supplement 1 for the remainder of the initial term of this Agreement andNDChereby covenants thatENESCO, upon paying said monthly rent, will and may peaceably and quietly hold and enjoy the said Facility andENESCOwill have no additional liability toNDCpursuant to this Agreement except as set forth in Section 4 above and this Section 13(E) below; or |
iii) | enter into negotiations withNDCand the lessor of the Facility for a buyout of the lease for the Facility, and upon payment of any agreed lease buyout payment byENESCO,ENESCOwill have no further liability toNDCpursuant to this Agreement except as set forth in Section 4 above. |
In the eventENESCOelects subsection (i) or (ii) of this Section 13(E) above,ENESCOagrees to payNDCfor one half (1/2) of the outstanding unamortized principal cost for “Rack Depreciation Expense” (amortized on a daily basis) remaining for the initial term of this Agreement as set forth in the Pricing Sheet attached in Supplement 1. Upon payment of one half of the discounted remaining unamortized principal cost for “Rack Depreciation Expense” as set forth above,NDChereby irrevocably assigns all ownership, right, title and interest in and to all racking at the Facility toENESCO, free and clear of all liens.
In the eventENESCOelects subsection (ii) of this Section 13(E) above,ENESCOhereby agrees to indemnify, defend and hold harmlessNDCfor any liability ofNDCarising under the lease for the Facility due to damage to the Facility caused byENESCOor any third-party 3PL provider contracted byENESCOto provide services at the Facility.
F. | Within ten (10) calendar days of any termination or expiration of this Agreement,NDC shall release toENESCOallENESCOdata via an electronic data transfer or file transfer protocol (EDI or FTP, respectively), electronic copy (in a format reasonably requested byENESCO) and/or hard copy. If anyENESCOdata is withheld byNDC,NDCagrees thatENESCO will have no adequate remedy at law and will be entitled to immediate equitable relief, without bond and without the necessity of showing actual money damages. Further,NDC agrees that ifENESCO’s data is withheld byNDCand not returned within ten (10) calendar days of any termination of this Agreement,ENESCOwill not be liable to make any payments pursuant to Section 13 or Section 4 above until such time asENESCOreceives its data. |
14. | ACCOUNTABILITY-WAREHOUSING |
NDCshall maintain complete records onENESCOProduct onNDC’s computer system, showing quantities received, inventoried, shipped, on hand, damaged, plus any other detail as directed byENESCO.NDCshall provide reports on the foregoing as described in Exhibit E or as subsequently directed byENESCO.ENESCOmay, no more than once per calendar quarter, for the term of this Agreement and for one (1) year after expiration or termination, upon prior notice, auditNDC’s business records, policies and procedures, security and computer systems to confirm the Services, inventories and any handling of the Product.NDCwill provideENESCOand its auditors and inspectors with access toNDC’s management and personnel and any networks, computers, data centers and records for the purpose of performing audits or inspections ofNDC’s charges for Services, compliance with policies and procedures, inventories and compliance with the terms of this Agreement. In the event that any overcharge of greater than 20% for Services in any calendar quarter byNDCis discovered during any audit,NDCwill immediately refund the amount of any discrepancies, plus interest (at the prime rate as reported in the Wall Street Journal on the date ofENESCO’s invoice toNDC) and will be responsible for and pay, upon invoice, all fees and expenses ofENESCOrelated to the audit up to five thousand dollars ($5,000). No claim of overcharges may be made byENESCOmore than 12 months following the earlier of the date payment was made or the dateENESCOfirst learned about any incorrect charge.
15. | CONFIDENTIALITY |
A. | NDCis the owner of proprietary and valuable trade secrets and confidential information (“NDCinformation”) andENESCOis the owner of proprietary and valuable trade secrets and confidential information (“ENESCOInformation”), with each party’s confidential information including but not limited to warehousing methods and processes manufacturing methods and processes, customer lists, manufacturer lists/identities, pricing, intellectual property, marketing and financial plans and data, and product development information and strategic plans. |
B. | NDCagrees that all information, materials, documentation and data provided byENESCO and reproductions thereof relative toENESCOInformation are exclusivelyENESCO’s confidential and proprietary property and shall be held in strictest confidence byNDC. Such information shall be disclosed only to such persons in the direct employ ofNDCwho have a business need to know it and who shall have agreed to abide by the terms of this Agreement. Neither the nature nor the content of anyENESCOInformation shall, directly or indirectly, be disclosed to others or used for the benefit of any person other thanENESCO without the prior written permission ofENESCO.NDCrecognizes that unauthorized use or disclosure of such information would cause irreparable harm toENESCO. |
C. | ENESCOagrees that all information, materials, documentation and data provided byNDC and reproductions thereof relative toNDCInformation are exclusivelyNDCconfidential and proprietary property and shall be held in strictest confidence byENESCO. Such information shall be disclosed only toENESCOcontractors (excluding any contractor that is a competitor ofNDC) that agree in writing to keep the NDC information confidential, and such persons in the direct employ ofENESCOwho have a business need to know it and who have agreed to abide by the terms of this Agreement. Neither the nature nor the content of anyNDCInformation shall, directly or indirectly, be disclosed to others or used for the benefit of any person other thanNDCwithout the prior written permission ofNDC. ENESCO recognizes that unauthorized use or disclosure of such information would cause irreparable harm to NDC. |
D. | This Agreement shall not protect information communicated between the parties: |
(1) | Which the receiving party can demonstrate to have been previously known to it, without restriction, by sources other than the disclosing party; or |
(2) | Which is or becomes publicly known through no wrongful act of the receiving party; or |
(3) | Which the receiving party can demonstrate to have been independently developed by the receiving party for a party other than disclosing party and without use of any information of the disclosing party; or |
(4) | Which is approved for release in writing by the disclosing party. |
E. | Nothing in this Agreement shall be construed as granting or conferring any rights by license or otherwise, express or implied, to the information disclosed or obtained pursuant to this Agreement. |
16. | NOTICES |
NDCshall submit information and documents toENESCOas follows or as directed in writing by theENESCOdesignated Contract Administrator. Either party may change the addresses noted below by advising the other party in writing of the change.
A. | Invoices |
ENESCO | ||
Attn: | Michael Rumak |
Sr. VP Operations & Chief Information Officer
ENESCO GROUP, INC.
225 Windsor Drive
Itasca, IL 60143
B. | Accountability reports and routine performance summaries: |
ENESCO | ||
Attn: | Michael Rumak |
Sr. VP Operations & Chief Information Officer
ENESCO GROUP, INC.
225 Windsor Drive
Itasca, IL 60143
C. | Correspondence involving the contractual relationship: |
ENESCO | ||
Attn: | Michael Rumak |
Sr. VP Operations & Chief Information Officer
ENESCO GROUP, INC.
225 Windsor Drive
Itasca, IL 60143
With a copy to: |
General Counsel
ENESCO GROUP, INC.
225 Windsor Drive
Itasca, IL 60143
D. | ENESCOcorrespondence and payment toNDC: |
Correspondence:
James Vogel
President & COO
National Distribution Centers, L.P.
1515 Burnt Mill Road
Cherry Hill, New Jersey 08003
Josiah Knapp
Senior Vice President, General Counsel
National Distribution Centers, L.P.
1515 Burnt Mill Road
Cherry Hill, New Jersey 08003
Darin Richards
National Distribution Centers, L.P.
200 McCormick Blvd.
Columbus, OH 43213
Payments:
National Distribution Centers
71 West Park Avenue
Vineland, NJ 08360
Attention: Accounts Receivables
For specific inquiries regarding all Accounts Receivable issues, contact Paul Davis at 800-922-5088 the Lebanon, IN Facility manager.
17. | INDEPENDENT CONTRACTOR |
NDCshall perform this Agreement as an independent contractor hired byENESCO. Nothing contained herein shall be construed to be inconsistent with this relationship and status.NDC shall take no action inconsistent with this relationship and status. NDCshall be responsible for furnishing all of the labor necessary and space necessary to perform its obligations hereunder.NDCshall have control over the manner in which it and its employees perform the Services provided for hereunder, pursuant to the staffing guidelines of Exhibit B, and the Pricing Sheet attached in Supplement 1. During the term of this Agreement, all personnel assigned to the Services byNDCshall be considered employees ofNDC, andNDCshall be responsible for the payment of their entire compensation and all other benefits earned in connection with Services performed pursuant to this Agreement in addition to all amounts, including those related to unemployment, that may be required to be paid after employment. This obligation ofNDCincludes, without limitation, making all deductions required of employers by state, federal and local laws and making contributions for unemployment compensation funds and the withholding and payment of all taxes and other charges and amounts owed by an employer, including, without limitation, collection of tax at source of wages as required by law and compliance with social security (FICA) and unemployment (FUTA) withholding and payment requirements.
ENESCOhereby authorizesNDCto be its agent for the limited purpose of acting as “consignor” or “receiver” ofENESCOproducts or materials, equipment and supplies used in the distribution of its Product. Such authorization shall include signing or certifying thatENESCO has properly classified, described, packaged marked or labeled materials or Product for shipment and that they are in proper condition for transportation according to the applicable regulations of the Department of Transportation and the Interstate Commerce Commission.NDCis also authorized to certify and acknowledge receipt, after ascertaining the accuracy of carrier’s count and the delivery condition of the Product or other goods involved.
18. | APPLICABLE LAW |
The laws of the State of Illinois shall govern the terms of this Agreement.
19. | DISPUTES & ARBITRATION |
Because of the critical importance of the obligations undertaken byNDCunder the Agreement to the operations ofENESCO, the expertise whichNDChas represented it will utilize in connection with the fulfillment of its obligations, and the reliance ofENESCOonNDC’s expertise for the fulfillment ofENESCO’s business objectives,NDCassumes an independent obligation to continue performance of its obligations under the Agreement in all respects regardless of any dispute (other than non-payment of undisputed amounts byENESCO) which may arise betweenENESCOandNDC in connection with any claims byNDCthatENESCOhas breached its obligations under the Agreement.NDCundertakes this independent obligation without prejudice to any rights or remedies it may otherwise have in connection with any dispute betweenNDCandENESCO.
20. | SUCCESSORS AND ASSIGNS |
This Agreement shall apply to and be binding on the successors and assigns of the parties; provided, however, that no assignment shall be effective without the prior written consent of the non-assigning party. Notwithstanding the foregoing,ENESCOmay assign this Agreement in its entirety to any subsidiary or affiliate ofENESCOor to any successor ofENESCOby way of merger, acquisition, reorganization or other corporate transfer.
21. | COUNTERPARTS AND EXCHANGES BY FAX |
This Agreement may be executed simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by fax shall be sufficient to bind the parties to the terms and conditions of this Agreement.
22. | PRESS RELEASES AND FILINGS |
ENESCOandNDCshall mutually agree on the timing and contents of any press release(s) related to this Agreement.ENESCOagrees to provideNDCwith a courtesy copy of any regulatory filings required byENESCOin advance of filing.
23. | ENTIRETY |
This Agreement, together with the Exhibits specifically referenced and attached hereto, embodies the entire understanding betweenENESCOandNDCand there are no Agreements, understanding, conditions, warranties, or representation, oral or written, express or implied, with reference to the subject matter hereof which are not merged herein. Except as otherwise specifically stated, no modification hereto shall be of any force or effect unless: (1) reduced to writing and signed by both parties hereto; and (2) expressly referred to as being modifications of this Agreement.
[Signatures on next page.]
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In witness thereof, the parties have caused this Agreement to be executed by their duly authorized representative.
NATIONAL DISTRIBUTION CENTERS ENESCO GROUP, INC.
L.P.
By: /s/ James Vogel | By: /s/ Anthony G. Testolin | |
James Vogel | Anthony G. Testolin | |
TITLE: President & | TITLE: Chief Accounting Officer | |
Chief Operating Officer | ||
DATE: 11/18/2005 | DATE: 11/18/2005 | |
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EXHIBITS AND SCHEDULES OMITTED
EXHIBIT “A” SERVICES
EXHIBIT “B” SERVICE CHARGES
EXHIBIT “C” REVIEW PERIODS
EXHIBIT “D” SCOPE OF WORK
EXHIBIT “E” REPORTS
SUPPLEMENT 1 ENESCO KEY PERFORMANCE MEASURES
PRICING SHEET
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