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EXHIBIT 10.30
LICENSE AND DISTRIBUTION AGREEMENT
THIS AGREEMENT, dated as of March 19, 1998, is between Garden Botanika,
Inc. ("Garden Botanika") and Hunter Packaging Ltd. ("Hunter").
Garden Botanika sells a high-quality retail product line under the
trademark "Garden Botanika." Garden Botanika owns or has rights (i) to certain
formulations and graphics for such products and (ii) to the Garden Botanika
Trademarks listed on Schedule A, as well as owning valuable goodwill associated
with, and which stems from, the Garden Botanika Trademarks. Garden Botanika and
Hunter desire to make certain arrangements under which Garden Botanika will
license Hunter the right to manufacture and sell certain of its products to the
Lodging Industry.
It is therefore agreed as follows:
1. Appointment of Hunter as Distributor.
Subject to the terms and conditions of this Agreement, including the
limitations and restrictions of Section 2 below, Garden Botanika hereby appoints
Hunter as the exclusive distributor of the Garden Botanika products listed on
Schedule B (the "Licensed Garden Botanika Products"), except as otherwise
provided herein, to hotels, motels, inns, resorts, spas, timeshares, cruise
lines, railway lines and airlines (the "Lodging Industry"), located or operating
in the Western Hemisphere. Schedule B may be amended from time to time with the
mutual consent of the parties. Subject to the restrictions of Section 2 below,
Garden Botanika further (i) appoints Hunter as its nonexclusive distributor of
Licensed Garden Botanika Products to the Lodging Industry located or operating
outside of the Western Hemisphere, and (ii) recognizes and acknowledges that
Hunter may make use of second-tier or intermediary distributors, such as Cysco
Corporation) in carrying out the terms of this Agreement.
2. Separate Westin Agreement; Limitations and Restrictions on
Hunter and Garden Botanika.
(a) The parties understand and agree that they are also parties to a
separate agreement dated as of October 20, 1997 (the "Westin Agreement") under
the terms of which Hunter has been given the right to solicit, distribute and
sell certain Garden Botanika products to the Westin Hotel Company or for use in
hotels, motels, inns or resorts controlled by the Westin Hotel Company
(collectively, the "Westin"). Hunter specifically acknowledges and agrees that
the distributorship granted by the terms of this Agreement is separate and apart
from any understanding, now or in the future, regarding the supply of amenities
to the Westin and that the exclusivity granted by this Agreement shall be
limited to the extent that Hunter or an alternative distributor may be employed
by Garden Botanika to supply the Westin with amenities bearing Garden Botanika
trademarks. Either this Agreement or the Westin
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Agreement may be enforced, amended, terminated or otherwise acted upon by the
parties in accordance with its terms without affecting the terms of the other
agreement.
(b) Hunter shall not sell or agree to sell Licensed Garden Botanika
Products for use outside of the Western Hemisphere without Garden Botanika's
prior written consent, which consent shall not be unreasonably withheld;
provided, however, that Garden Botanika shall retain the right, unless it
provides prior written consent waiving this right in whole or in part, to
terminate Hunter's distribution of Licensed Garden Botanika Products at any one
or more locations outside of the Western Hemisphere, for any reason, upon ninety
(90) days written notice. The parties understand and agree that nothing in this
Agreement shall preclude Garden Botanika from granting an exclusive license to a
party other than Hunter in one or more countries outside of the Western
Hemisphere, provided 90-days advance notice is given with respect to any country
in which Hunter is then doing business; and, provided further that Garden
Botanika has not waived its right to grant such a license in the particular
instance at issue.
(c) Hunter shall not ship Licensed Garden Botanika Products to any
second-tier or intermediate distributor unless that distributor first enters a
distribution agreement, the terms of which shall be substantially similar to
this Agreement (excluding, however, license rights) and which shall be approved
by Garden Botanika.
(d) During the term of this Agreement, Hunter shall not take any of the
following actions:
(i) sell any of the Licensed Garden Botanika Products under any
trademark other than the Garden Botanika Trademarks or use the same
formula for any other product;
(ii) use any of Garden Botanika's designs, packaging, labeling or
formulas in the manufacture or sale of any product other than in the
manufacture and sale of the Licensed Garden Botanika Products as
permitted herein;
(iii) sell any of the Licensed Garden Botanika Products to anyone
who is not in the Lodging Industry or for any purpose other than
distribution within such industry, unless such sale is approved in
advance in writing by Garden Botanika, in its sole discretion; or
(iv) use the name "Garden Botanika" in its company name, in the
name of a division or in any other name under which Hunter conducts its
business, or otherwise use any names, marks or symbols of Garden
Botanika, including but not limited to the Garden Botanika Trademarks
(or any names, marks or symbols which are similar thereto) which might
tend to confuse, deceive or mislead purchasers or prospective
purchasers. The words "names, marks or symbols" as used in this section
include, but are not limited to, corporate and private names,
trademarks, symbols, designations,
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indicia, slogans and other means of identifying the products of Garden
Botanika or Hunter.
(e) During the term of this Agreement, except as provided by Section
2(a) above, Garden Botanika shall not appoint any other person or entity as a
distributor of products manufactured by Garden Botanika or bearing Garden
Botanika Trademarks to be sold for use as amenities by the Lodging Industry in
the Western Hemisphere.
3. Best Efforts of Hunter.
Hunter shall at all times during the term of this Agreement maintain an
adequate sales force and use its reasonable best efforts, in each case to
promote the distribution and sale of Licensed Garden Botanika Products to the
Lodging Industry.
4. Manufacture.
Garden Botanika hereby grants to Hunter the right to manufacture the
Licensed Garden Botanika Products or to have such products manufactured for
Hunter. Upon request, Garden Botanika shall promptly furnish Hunter with the
formulations and specifications of the Licensed Garden Botanika Products to be
manufactured and the specifications for the packaging required for such Licensed
Garden Botanika Products, except that Garden Botanika reserves the right to
withhold the formulations and specifications of any specific Licensed Garden
Botanika Product that it does not approve for manufacture and sale by Hunter in
accordance with this Agreement. Hunter shall supply Garden Botanika with samples
of the formulations of the Licensed Garden Botanika Products so produced,
including packaging and labels, in order that Garden Botanika may determine that
such products reasonably conform to its formulations and specifications. Hunter
or its manufacturer may produce such number of the approved Licensed Garden
Botanika Products as may be necessary or appropriate to effect the distribution
provided for in this Agreement. Hunter agrees that such formulations and
specifications are the sole property of Garden Botanika and agrees to maintain
said formulations and specifications in the strictest of confidence and to exert
its reasonable best efforts to safeguard said formulations and specifications
for the exclusive benefit of Garden Botanika.
5. Trademark, Etc.
(a) Grant of License. Garden Botanika hereby grants to Hunter the right,
during the term of this Agreement, to use the Garden Botanika Trademarks and the
packaging, formulations and specifications furnished to Hunter by Garden
Botanika in the manufacture, labeling and selling of the Licensed Garden
Botanika Products, solely in accordance with the provisions of this Agreement,
with the right to sublicense a manufacturer or manufacturers, (such sublicensee
to have the right only to manufacture Licensed Garden Botanika Products for sale
to Hunter). The Garden Botanika Trademarks may be used by Hunter only on or in
connection with the Licensed Garden Botanika Products. If requested by Garden
Botanika, signs, labels, packaging materials, advertisements, product coverings
and other written
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materials bearing the Garden Botanika Trademarks shall display either the "R" or
the "TM" notice of trademark registration, depending on which notice of
trademark registration Garden Botanika instructs Hunter to display. The Garden
Botanika Trademarks shall be applied in compliance with all applicable laws and
regulations and as Garden Botanika may reasonably request. Hunter recognizes
that Garden Botanika has all rights, title and interest in and to the Garden
Botanika Trademarks, including the goodwill of the business symbolized thereby,
and Hunter shall at any time, whether during or after the term of this
Agreement, execute any documents reasonably requested by Garden Botanika to
confirm its ownership rights. Hunter further agrees to use the Garden Botanika
Trademarks only in conformance with the trademark guidelines and standards
furnished to Hunter by Garden Botanika.
(b) Quality of Products.
(i) All Licensed Garden Botanika Products manufactured by or for
Hunter shall be manufactured (x) strictly in accordance with the formulations
and manufacturing standards furnished to Hunter by Garden Botanika, and (y)
utilizing only ingredients and packaging components which are approved by Garden
Botanika and obtained from suppliers approved by Garden Botanika.
(ii) Hunter shall furnish to Garden Botanika, and shall cause its
manufacturers to furnish to Garden Botanika, "batch" samples of the each of the
formulated Garden Botanika Products for its testing and approval. Hunter also
agrees to perform microbiological testing on all batches of Garden Botanika
Products in a manner customary in the industry and as reasonably requested by
Garden Botanika and to periodically submit copies of its test documentation to
Garden Botanika. Garden Botanika shall receive advance notice of production
schedules and, upon three business days' notice, have the right to be present
and audit the manufacturing process.
(c) Similar Trademarks. During the term of this Agreement and for a
period of five (5) years thereafter, Hunter shall not use for any product
similar to any of the Garden Botanika Products (i) any trademark, trade name,
symbol, trade dress, label or package bearing any resemblance to the Garden
Botanika Trademarks, or (ii) any of the packaging or labels used
by Hunter on the Licensed Garden Botanika Products.
6. Royalties and Expenses.
(a) In General. In consideration of the rights granted to Hunter by
Garden Botanika, subject to Section 6(b) below, Hunter shall pay to Garden
Botanika a royalty of five percent (5.0%) of Hunter's "gross sales" of all
Licensed Garden Botanika Products; provided, however, that the parties recognize
and acknowledge that, for competitive reasons, specific accounts may require a
different royalty structure, and the parties, by mutual written consent, may
modify royalty obligations with respect to such specific accounts. For the
purposes of this Agreement, "gross sales" shall mean the total sales, income or
revenue received in connection with Garden Botanika Products sold or licensed by
Hunter or any licensee, whether for cash or credit without reserve for failure
to collect and without any deduction for commissions or
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selling expenses, adjusted by the exclusion or deduction of (i) freight, if and
only if Hunter's prices are not F.O.B. Hunter's manufacturing site, and, (ii)
refunds to or returns from customers, if originally included in gross sales;
provided, further, that such gross sales and royalty may be calculated in
accordance with the attached Schedule C, if any, as may be amended from time to
time. The parties recognize and agree that freight charges may be deducted from
total sales in amounts actually incurred or as a reasonable percentage of total
sales, in accordance with Hunter's standard procedures and subject to Garden
Botanika's right of audit in Section 7. Payment of royalties for gross sales in
any one month shall be on standard terms of net 30 days as of the end of the
month in which such sales occurred.
(b) Minimum Royalties. In the event sales do not generate sufficient
royalties in accordance with Section 6(a) above to produce the following minimum
royalty amounts, Hunter agrees to pay the following minimum royalties,
regardless of sales, for the periods indicated below:
CONTRACT YEARS MINIMUM ROYALTIES
Year 1 U.S. $175,000
Year 2 U.S. $200,000
Year 3 U.S. $225,000
Year 4 U.S. $250,000
The commencement of the first contract year for which minimum royalties
are to be paid shall begin six months from the date of this Agreement, and each
subsequent contract year shall run sequentially thereafter so that the minimum
royalty of the fourth contract year shall be paid 54 months from the date of
this Agreement. Payment of the minimum royalties owed shall be made no later
than 45 days after the last day of the applicable period.
(c) Late Payments. Payments not postmarked by the due date shall be
accompanied by an additional interest amount equal to 1-1/2% for each 30 days
past due or portion thereof.
7. Reports; Right of Audit.
(a) During the term of this Agreement, Hunter shall furnish Garden
Botanika with the following items at the times specified below:
(i) Hunter shall send Garden Botanika a statement with each
royalty check showing the gross invoice value of all Licensed Garden
Botanika Products shipped under this Agreement during the royalty
period, the calculation of the royalties to be paid for such period and
an itemization of freight costs, if any, deducted from sales when
pricing is other than F.O.B. Hunter's manufacturing site; and
(ii) Within ninety (90) days after the end of each calendar year,
Hunter shall send to Garden Botanika a statement certified by Hunter's
independent auditors,
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verifying its gross sales of Licensed Garden Botanika Products during
such year, a recalculation of the royalties to be paid to Garden
Botanika for such year, a reconciliation to the amounts actually paid
and payment for any remaining balance due for the year.
(b) Hunter shall permit Garden Botanika, at Garden Botanika's expense,
upon at least three (3) business days prior notice, to examine its relevant
books and records during its regular business hours for the purpose of verifying
the statements given by Hunter to Garden Botanika pursuant to this Section 7 and
Hunter's compliance with Section 6, including, if applicable, the reasonableness
of the percentage applied to total sales for deducting freight costs. If such
examination discloses that the gross sales reported by Hunter for any payment
period are understated by any amount, or if the percentage applied to total
sales for deducting freight costs results in an overstatement of freight costs
by more than five percent (5%), Hunter shall pay Garden Botanika the full amount
of the resulting underpayment of royalties, if any, plus the costs actually
incurred by Garden Botanika for the examination.
8. Marketing.
(a) In General. In order to promote the maximum distribution of the
Licensed Garden Botanika Products to the Lodging Industry, Garden Botanika and
Hunter shall reasonably cooperate with each other on the marketing,
merchandising and sales techniques and in the use of promotional materials for
the sale of the Licensed Garden Botanika Products. Hunter may use advertising,
or other marketing and promotional material, for distribution in connection with
the Licensed Garden Botanika Products that it reasonably believes is consistent
with the upscale image of the Licensed Garden Botanika Products, unless Garden
Botanika disapproves of same, in its sole discretion, upon written notice to
Hunter.
(b) Approval of Advertising and Packaging Requirements. Hunter agrees to
submit proposed advertising and packaging to Garden Botanika reasonably in
advance of its submission for use for the prior written approval of Garden
Botanika, which approval shall not be withheld unreasonably and which approval
or disapproval shall be communicated to Hunter by Garden Botanika within five
business days of receipt. If Hunter has not been contacted within such five
business days, then the particular submission will be considered approved. It is
understood and agreed that Hunter may, at its option, include its telephone
number on Licensed Garden Botanika Products, in which case Hunter shall promptly
refer any and all inquiries about Garden Botanika Licensed Products directly to
Garden Botanika, so long as Hunter's telephone number does not appear directly
on a consumer product.
9 . Inquiries.
Garden Botanika shall promptly turn over to Hunter all inquiries to
Garden Botanika from the Lodging Industry with respect to any of the Licensed
Garden Botanika Products. Hunter shall promptly and diligently respond to all
such inquiries.
10. Restriction.
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Except in connection with amenities programs involving the Westin, Garden
Botanika shall not sell any Garden Botanika Products or products bearing Garden
Botanika Trademarks to any distributor, wholesaler or other intermediary that
Garden Botanika has reason to believe will resell such products to the Lodging
Industry (as defined herein) in the Western Hemisphere.
11. Confidentiality.
Each party acknowledges that during the term of this Agreement,
it may have access to or become acquainted with various trade secrets and
confidential proprietary information of the other, including, but not limited
to, the formulations, specifications, marketing plans and new product ideas
relating to the Licensed Garden Botanika Products which they furnish to each
other or which are discussed by either party. Neither party shall use the trade
secrets or proprietary information obtained from the other party for any purpose
other than for the sale of Garden Botanika products in accordance with this
Agreement or the Westin Agreement. Neither party shall disclose any such trade
secrets or proprietary information to anyone except their respective employees,
subcontractors or their successors and assigns who in their judgment have a need
to know the information in order for each party to carry out this Agreement or
the Westin Agreement. Each of Hunter and Garden Botanika shall use its best
efforts to prevent any further disclosure by its employees or subcontractors,
including obtaining confidentiality agreements from them.
12. Term of Agreement.
Unless sooner terminated in accordance with the provisions of Section
13, the term of this Agreement shall commence on the date first above written
and shall continue in full force and effect for a period of 54 months.
13. Termination by Garden Botanika.
In addition to any other rights that Garden Botanika may have under this
Agreement, Garden Botanika may terminate this Agreement for cause, as follows:
(a) without prior written notice or legal action by Garden Botanika:
(i) if Hunter makes any assignment of assets or business for the
benefit of creditors, or if a trustee or receiver is appointed to
administer or conduct its business or affairs, or if it enters into any
proceeding in bankruptcy or reorganization (other than an offering of
its stock for sale to the public), or if it enters into any other
proceeding under any law for the relief of creditors; provided, however,
that if any matter covered by this Section 13(a)(i) is affected without
being voluntarily initiated by Hunter, Hunter shall have a period of
sixty (60) days to cause such matter to be terminated, and if the matter
is terminated within the sixty (60) day period, no termination of rights
shall result under this section;
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(ii) if Hunter commits a material breach of Section 5(b)(i)
relating to quality control; provided that "material breach" is
understood to mean (x) material deviations in the quality of products or
packaging and (y) deviations in a material amount of products, or
products with packaging, that do not meet quality standards that, in the
case of each of (x) and (y) are shipped for sale and are not recalled
and removed from distribution, as well as (z) repeated failures in any
one year to meet quality standards under the terms of subparagraph (b)
below;
(iii) if Hunter commits a material breach of the confidentiality
provisions contained in Section 11; or
(iv) if Hunter fails to pay minimum royalties when due as
provided by Section 6;
(b) subject to subparagraph (a) (ii) (z) above, if Hunter commits a
breach of Section 5(b)(i) relating to quality control that is not otherwise a
"material breach" as defined under Section 13(a)(ii) above, by giving Hunter at
least fourteen (14) days notice of termination and an opportunity to cure,
provided that products not meeting quality standards are promptly recalled and
removed from distribution; or
(c) if Hunter commits a breach of any of the other terms or conditions
of this Agreement, by giving Hunter at least ninety (90) days notice of
termination and an opportunity to cure (which notice shall set forth with
specificity the alleged breach).
14. Termination by Hunter.
In addition to any other rights that Hunter may have under this
Agreement, Hunter may terminate this Agreement, without prior written notice or
legal action by Hunter, if Garden Botanika makes any assignment of assets or
business for the benefit of creditors, or if a trustee or receiver is appointed
to administer or conduct its business or affairs, or if it enters into any
proceeding in bankruptcy or reorganization (other than an offering of its stock
for sale to the public), or if it enters into any other proceeding under any law
for the relief of creditors, or if it ceases to do business using the name
"Garden Botanika" for any reason; provided, however, that if any matter covered
by this Section 14 is affected without being voluntarily initiated by Garden
Botanika, Garden Botanika shall have a period of sixty (60) days to cause such
matter to be terminated, and if the matter is terminated within the sixty (60)
day period, no termination of rights shall result under this section.
15. Effect of Termination.
Upon termination or expiration of this Agreement, Hunter:
(a) shall have three (3) months from the date of termination to sell out
its then-existing inventory of products bearing the Garden Botanika Trademarks
and shall account for,
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and pay royalties on, all such sales not later than thirty (30) days after the
close of the three (3) month period; provided, however, that Licensed Garden
Botanika Products that fail to meet the quality standards of Section 5(b)(i)
shall be destroyed and not sold;
(b) shall not be entitled to termination payments, compensations,
reimbursement or damages on account of any loss of prospective profits on
anticipated sales or on account of expenditures, including for advertising,
promotion or for manufacturing facilities, investments, leases, or other
commitments relating to the business of Hunter, including without limitation,
damages claimed by reason of Hunter's reliance on further continuance of this
Agreement. The termination of this Agreement shall not discharge either party
from its obligation to pay any sums due to the other party hereunder, including,
but not limited to, any amounts awarded by judicial determination or binding
arbitration for wrongful termination; and
(c) shall, in the event of early termination for cause by Garden
Botanika pursuant to Section 13, owe Garden Botanika the minimum royalties
payable over the balance of the unexpired term of the Agreement, in addition to
any accrued but unpaid royalties.
16. Relationship of Parties.
The relationship between Garden Botanika and Hunter under this Agreement
is solely that of licensor and licensee. Hunter is not the agent of Garden
Botanika for any purpose and has no right to bind Garden Botanika nor shall
Hunter hold itself out as having any such authority, and Garden Botanika is not
the agent of Hunter for any purpose and has no right to bind Hunter nor shall
Garden Botanika hold itself out as having any such authority.
17. Force Majeure.
Neither party shall be responsible for any failure or delay in the
performance of acts contemplated by this Agreement due to circumstances beyond
its control, including, without limitation, acts of God, fires, floods, wars,
labor disputes or embargoes.
18. Infringement.
(a) If any action is known to Hunter to be threatened or brought against
Garden Botanika and/or Hunter based, in whole or in part, on the terms and
provisions of this Agreement or the Garden Botanika Trademarks, Hunter shall
promptly notify Garden Botanika, and Garden Botanika shall respond to such
threat or defend such action in any manner and on any terms Garden Botanika
shall, in its sole discretion, deem appropriate. Garden Botanika shall bear all
attorneys' fees and costs of any response or action relating to the matters
described in Section 18 (a) and (b) hereof, and Hunter shall cooperate fully
with Garden Botanika in connection with any such response or action.
(b) In the event that any infringement of the Garden Botanika Trademarks
comes to the attention of Hunter, then Hunter shall promptly notify Garden
Botanika of such infringement. Garden Botanika shall be entitled in its sole
discretion to take whatever steps it
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deems necessary to stop such infringement and/or recover damages therefor.
Hunter will fully cooperate and assist Garden Botanika in any such prosecution
of such action. Any damages recovered in any such action shall be applied as
follows: first, to reimbursement of Garden Botanika for costs and expenses
incurred in connection therewith; and second, divided proportionately between
the parties in accordance with the relative damages suffered by each.
(c) In the event Garden Botanika becomes aware of any infringement of
the Garden Botanika Trademarks and fails to take action or commence proceedings
within sixty (60) days of having received written notice thereof from Hunter,
then Hunter, at its expense, shall have the right to initiate and pursue such
action. Any damages recovered in any such action shall be applied as follows:
first, to reimbursement of Hunter for costs and expenses incurred in connection
therewith; and second, divided proportionately between the parties in accordance
with the relative damages suffered by each.
19. Indemnity.
(a) Hunter shall indemnify and hold Garden Botanika harmless from and
against any claim, suit, loss, liability, damage or expense, including
attorneys' fees and costs, that may be sustained or incurred by Garden Botanika
as a result of or in connection with the breach of any representation, warranty
or covenant made by Hunter in this Agreement (except to the extent caused by the
negligent or willful misconduct or actions of Garden Botanika).
(b) Garden Botanika assumes no liability to Hunter or any of its
sublicensees or other third parties with respect to claims of any nature arising
from defects in the Licensed Garden Botanika Products manufactured or sold by
Hunter or its sublicensees under the Garden Botanika Trademarks, with the
exception of products manufactured by Garden Botanika. Hunter shall indemnify
and hold Garden Botanika harmless from and against any claim, suit, loss,
liability, damage or expense, including reasonable attorneys' fees and costs,
that may be sustained or incurred through claims of third parties against Garden
Botanika arising out of, or in connection with Hunter's manufacture,
distribution, sale or other disposition of the Licensed Garden Botanika
Products, except (i) any claim that the use of the Garden Botanika Trademarks or
the manufacture, use or sale of the Licensed Garden Botanika Products infringes
upon any patent, trademark, trade secret or other proprietary right, or
misappropriates any trade secret of any third party, or (ii) insofar as any such
claims may arise from (a) any products manufactured by Garden Botanika, (b) any
breach of this Agreement by Garden Botanika, (c) any invalidity or defect in the
title of Garden Botanika to the Garden Botanika Trademarks or the packaging,
formulations or specifications furnished to Hunter by Garden Botanika hereunder,
not caused by any act or default of Hunter, or (d) the instructions given to
Hunter by Garden Botanika, provided such instructions have been properly carried
out by Hunter.
20. Miscellaneous.
(a) Power and Authority. Each of the parties hereto represent and
warrant that it has the requisite power and authority to execute, enter and
perform this Agreement in accordance with its terms.
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(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the law of Washington applicable to agreements made and to be
performed in Washington. In the event any dispute arising hereunder cannot be
resolved by mutual agreement, any legal action thereafter prosecuted or
initiated under this Agreement shall be brought in the Superior Court of King
County, State of Washington. The parties to this Agreement waive any other
choice of law, jurisdiction or venue rights which they might otherwise have.
(c) Fees and Expenses. In the event of any dispute or litigation
pursuant to this Agreement, the prevailing party in such action shall be
entitled to its fees, costs and expenses, including reasonable attorneys' fees
and court costs. Except as otherwise provided under the terms of this Agreement,
each party shall bear its own legal and accounting expenses in connection with
the transactions contemplated hereby.
(d) Notices. Any notice or other communications under this Agreement
shall be in writing and shall be considered given when mailed by registered
mail, return receipt requested, to the parties at the following addresses (or at
such other address as a party may specify by notice to the other):
Garden Botanika
8624 154th Avenue N.E.
Redmond, Washington 98052
U.S.A.
Hunter Packaging Ltd.
2380 South Service Road
Oakville, Ontario
Canada L6L 5M9
(e) Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
(f) Enurement. This Agreement shall enure for the benefit of and be
binding upon the parties hereto and their successors and permitted assigns,
provided that neither party may assign this Agreement without the consent of the
other except when such assignment is by operation of law pursuant to a merger or
amalgamation with an affiliate.
(g) Complete Agreement. This Agreement contains a complete statement of
all the arrangements between the parties and cannot be changed or terminated
orally.
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(h) Headings. The headings in this Agreement are solely for convenience
of reference and shall not affect its interpretation.
GARDEN BOTANIKA, INC.
By: /s/ Michael W. Luce
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Its: President
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HUNTER PACKAGING LTD.
By: /s/ John D. Hunter
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Its: President
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