EXHIBIT 10.28
SALES AND SERVICE REPRESENTATIVE AGREEMENT
THIS SALES REPRESENTATIVE AGREEMENT (this "AGREEMENT"), is entered into
this 13th day of November, 2009, by and between Talon International, a Delaware
corporation located at 21900 Burbank Blvd., Woodland Hills, CA 91367, USA (the
"COMPANY"), and The Link Trading LLC, a company formed under the laws of
California located at 6205 Busch Drive, Malibu, CA 90265 ("REPRESENTATIVE").
In consideration of the mutual covenants and agreements set forth in
this Agreement, the parties agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms
have the following meanings:
1.1 "DESIGNATED CUSTOMER" means any third party listed on
Exhibit A hereto (i) with whom the Company does not
have a preexisting business relationship as of the
date of this Agreement, (ii) who is not an entity
engaged in the retail sales of zipper products in the
United States or the manufacture of such products, or
any affiliate or subsidiary of any such entity, (iii)
with whom the Company establishes a business
relationship as a direct result of Representative's
solicitation efforts hereunder, and (iv) who is not
an Excluded Customer. The Company may at any time and
from time to time update Exhibit A and identify
additional third parties as a Designated Customer,
provided they are not Excluded Customers.
1.2 "EXCLUDED CUSTOMER" means any third party not listed
on Exhibit A hereto with whom the Company may have a
preexisting business relationship with, or has
previously solicited business from or had a past
relationship with the Company.
1.3 "PRODUCTS" means the Company's products bearing the
Talon(TM), Tag-it, or Tekfit trademark, and apparel
trim products specifically developed by Talon or for
Designated Customers.
1.4 "PURCHASE ORDER" means an order or orders to purchase
Products from the Company placed by a Designated
Customer.
1.5 "TERM" has the meaning set forth in Section 10.1
hereof.
1.6 "TERRITORY" means the U.S.
2. REPRESENTATION. On the terms and subject to the conditions set
forth in this Agreement, the Company hereby appoints
Representative, and Representative hereby accepts the
Company's appointment, for the solicitation of Purchase Orders
during the Term, on a non-exclusive basis within the
Territory. The Company and each of its affiliates shall, at
all times, have the unrestricted and unconditional right to
promote, distribute and sell, and to grant to any third party
the right to promote, distribute and sell, Products in the
Territory upon such terms and conditions as the Company, in
its sole and absolute discretion, in each instance shall
determine.
3. CUSTOMER SOLICITATION. On the terms and subject to the
conditions set forth in this Agreement, Representative will
solicit Purchase Orders only during the Term and solely
through the direct solicitation of Designated Customers within
the Territory. Representative agrees that it shall not solicit
any Excluded Customer. The Company and Representative shall
endeavor to maintain a list of Designated Customers and to
update such list from time to time during the Term.
4. TERMS OF SALE AND PRICING.
4.1 PRICING. Subject to the provisions of this Section
4.1, the Company shall have the sole and absolute
right at any time and from time to time to establish,
change, alter or amend prices, charges, terms and
conditions governing the sale of Products. The
purchase prices for Products quoted by
Representative, if any, shall be as set forth on the
Company's price list (the "PRICE LIST") then in
effect, as the same may be modified by the Company
from time to time. Representative shall not quote any
other price to a customer or potential customer
unless expressly authorized to do so in writing by
the Company. The Company reserves the right to change
the Price List at any time by notice to the
Representative PROVIDED, at least five (5) days prior
to any material change in list prices for any of the
Products, the Company will use its commercially
reasonable efforts to give notice of the change to
Representative, specifying in the notice the
effective date of the change. The Company shall not
apply a price change to any Purchase Order for which
Representative has quoted a price in writing to the
applicable Designated Customer prior to effectiveness
of the price change, provided that such Purchase
Order is made to the Company within 30 days of the
effective date of the change and the Purchase Order
specifies delivery of the Products within 60 days
from the date of the Purchase Order.
4.2 OFFER AND ACCEPTANCE. Representative shall not accept
Purchase Orders for any of the Products in the name
of the Company without the prior written approval of
the Company. Immediately upon the expression by the
Designated Customer of interest in placing a Purchase
Order, Representative shall advise the Company by
telephone, facsimile, electronic mail or in person of
the terms of the Purchase Order. Subject to Section
4.1 hereof, the Company shall have the sole authority
to determine the scope, quantity, price, delivery
requirements and other terms of the Purchase Order
and Representative shall make no commitments with
respect thereto. The Company shall have the absolute
right to accept or reject any Purchase Order for
whatever reason. No Purchase Order shall be binding
upon the Company until the Company accepts the
Purchase Order in accordance with its standard
policies and procedures. Subject to Section 4.1
hereof, unless otherwise expressly requested by the
Company, the Company shall conduct all negotiations
with respect to a Purchase Order. Representative
shall, if requested by the Company, assist the
Company in such negotiations.
4.3 INVOICES. Unless otherwise agreed to in writing by
the Company, the Company shall render all invoices
directly to each Designated Customer and such
Designated Customer shall be directed to submit all
payments to the Company. The Company shall have the
sole and absolute control with respect to collections
from Designated Customers, including the right,
without the prior consent of Representative, to make
or effect allowances, adjustments or settlements with
respect to any accounts receivable from a Designated
Customer. Representative shall hold in trust and
forward as promptly as practicable to the Company any
and all amounts that Representative may collect or
receive from any Designated Customer on account of
the placement of a Purchase Order or purchase of
Products pursuant thereto.
4.4 CHANGE IN PRODUCT OFFERINGS. The Company shall have
the right, in its sole discretion, at any time or
from time to time to change the design or
specifications of the Products, discontinue Products
or add new Products, modify its sales of Products,
and/or stop the availability or selling of Products.
5. PROMOTION. The Company shall determine, in its sole and
absolute discretion, whether, and to what extent, it shall
promote, advertise, market and sell the Products and nothing
contained herein shall obligate the Company to do so.
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6. MATERIALS. The Company shall supply Representative with such
reasonable quantities of product literature, printed
advertisements and other promotional materials concerning the
Products that the Company may, in its sole and absolute
discretion, determine to be appropriate to assist
Representative in soliciting Designated Customers; PROVIDED,
HOWEVER, nothing contained herein shall obligate the Company
to prepare or print any such product literature, printed
advertisements or other promotional materials. All such
materials shall be provided in the language originally used by
the Company in their preparation. In addition, the Company
shall provide Representative with such Product educational
assistance as the Company may, in its sole and absolute
discretion, determine to be appropriate to assist
Representative in soliciting Designated Customers.
7. REPRESENTATIVE DUTIES.
7.1 Representative covenants and agrees that, at all
times during the Term it shall:
7.1.1 subject to Section 3 hereof, devote such
time as it reasonably determines may be
necessary to sell and promote the Products
within the Territory through direct
solicitation of Designated Customers or
other methods designed to expand the market
for the Products;
7.1.2 introduce executives of the Company to
representatives of Designated Customers who
have the corporate authority to negotiate a
Purchase Order with the Company;
7.1.3 conduct all of its business in its own name
and, subject to the terms and conditions of
this Agreement, in such manner as it may see
fit;
7.1.4 supply the Company with periodic written
reports of sales and other marketing data
reasonably requested by the Company relating
to the marketing, distribution and sale of
the Products, including, without limitation,
the name and address of all Designated
Customers and potential customers that
Representative has contacted, and the dates
and results of such contacts;
7.1.5 perform all of its obligations under this
Agreement in a manner consistent with all
applicable laws and regulations and with the
principles of good conduct and business
ethics, in order to protect and enhance the
name of the Company, the reputation of the
Products, and the goodwill attached to the
trade name and any trademarks in use or
hereafter adopted or used by the Company;
7.1.6 observe and comply in all material respects
with all laws and regulations of all
governmental authorities with jurisdiction
over the Representative or over the
marketing, distribution or sale of the
Products;
7.1.7 abide by the Company's policies of which it
has been made aware in writing and
communicate the same to Designated
Customers;
7.1.8 assist the Company in establishing and
maintaining a good business relationship
with Designated Customers; and
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7.1.9 promptly advise the Company of (i) any
changes in status, organization, personnel
and similar matters with respect to
Representative, and (ii) any complaints or
claims brought or threatened against
Representative with respect to its actions
as Representative hereunder, the marketing,
promotion or sale of the Products or any
alleged defect in any Products.
7.2 Representative covenants and agrees that, at all
times during the Term it shall not, without the prior
written consent of the Company:
7.2.1 make or give any representations,
warranties, guarantees or assurances to any
Designated Customer or other third party
respecting the quality, efficacy, safety,
merchantability or fitness for any
particular purpose of any Product;
7.2.2 use any promotional or advertising materials
relating to any Product in connection with
the exercise of its rights or performance of
its obligations hereunder or otherwise
unless and until such materials have
received the Company's prior written
approval;
7.2.3 directly or indirectly, offer, pay, promise
to pay, or authorize the payment of any
money or thing of value to any foreign
official or any person, in violation of the
United States Foreign Corrupt Practices Act
or any other similar law or regulation;
7.2.4 use the Company's trade names or trademarks
except as provided herein;
7.2.5 propose or present to any Designated
Customer an opportunity to obtain any
Products as part of a package, bundle or
concurrent purchase with any product or
service provided by any entity other than
the Company; or
7.2.6 sell or promote the Products outside of the
Territory.
7.2.7 represent itself, or allow itself to be
represented, in any manner as an affiliate,
subsidiary, subdivision or branch of the
Company or any of its affiliates, or as an
agent or representative thereof other than a
representative for purposes of soliciting
Purchase Orders pursuant to this Agreement,
to any Designated Customer or other third
party, including without limitation any
retailer, apparel brand, manufacturers agent
or factory.
8. COMMISSIONS.
8.1 COMMISSIONS. In consideration of the timely, full and
complete performance by Representative of its
obligations under this Agreement, and subject to the
terms and conditions of this Section 8 and the other
provisions of this Agreement, the Company shall pay
to Representative a commission (the "COMMISSION")
with respect to Gross Receipts collected from each
Purchase Order placed by a Designated Customer
following the direct and substantial solicitation of
the Designated Customer by Representative. The
Commission shall be paid monthly in the following
amounts:
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8.1.1. with respect to each such Purchase Order for
Products to be delivered to factories or
agents of the Designated customers for
ultimate export to the Territory, the amount
equal to 7.0% of Gross Receipts to the
Company resulting from such Purchase Order
placed by such Designated Customer, subject
to adjustment as described in paragraph
8.1.2 below; PROVIDED, that if the Company
is required by such Designated Customer to
obtain approval of the Products by such
Designated Customer or any contractor
manufacturing on behalf of such Designated
Customer, the amount of the Commission will
equal 5.0% of such Gross Receipts; and
8.1.2. with respect to the commission percentages
noted in paragraph 8.1.1. above, the
commission percentage shall be lowered in
0.5% increments for every similar decline
that the Company's average direct margin
percentage on the Designated Customer
purchase orders, falls below the Company's
average direct margin percentage on all
other purchase orders excluding the
Designated Customers. Such average direct
margin percentages and applicable Commission
percentages to be determined and applied
quarterly on a divisional basis for the
Company's Talon, Trim and Tekfit products.
8.1.3. with respect to the Commissions earned, an
amount equal to 2% of the Gross Receipts of
such Purchase Orders collected from the
Designated Customer shall be withheld from
the Commission payments to the
Representative and shall be applied as a
payment, first against the outstanding
interest and then against the outstanding
principal balance of the Note Payable owed
to the Company by the Representative, until
such Note Payable is paid in full.
8.2 DEFINITIONS. For the purposes of computing and
determining the Commission:
8.2.1 "GROSS RECEIPTS'" of any Purchase Order
shall mean the total amount actually
collected by the Company as a result of the
applicable Designated Customer with respect
to the sale of the Products included in the
Purchase Order, less all sales, excise,
import, value-added or use taxes or duties
and all other taxes or governmental levies
of any kind, any shipping or delivery costs
and expenses, all costs and expenses
relating to import or export quotas, and
bona fide trade discounts, rebates,
royalties and allowances and similar items
actually incurred by the Company with
respect to the sale of such Products; and
8.2.2 a Purchase Order shall be deemed to be
placed "FOLLOWING THE DIRECT AND SUBSTANTIAL
SOLICITATION OF THE DESIGNATED CUSTOMER BY
REPRESENTATIVE" only if:
(a) The Purchase Order is for the
purchase of Products by a
Designated Customer or its third
party agent for export to or final
use in the Territory; and
(b) Representative has contacted the
Designated Customer by telephone or
in person for the purpose of
introducing a Designated Customer
to the Company, and Representative
has actively and substantially
assisted in the first sale of
Products to the Designated Customer
following such solicitation; and
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For purposes of clarity, subject to Section 8.5 below, the parties acknowledge
and agree that once Representative is entitled to a Commission with respect to
Gross Receipts collected from a Purchase Order placed by a Designated Customer,
Representative shall continue to be entitled to a Commission with respect to all
Gross Receipts from subsequent Purchase Orders placed by the same Designated
Customer during the Payment Period regardless of whether Representative assists
the Company in connection with any subsequent Purchase Order. With respect to
any Designated Customer, the "Payment Period" is equal to the shorter of (i) the
remaining time of the initial term of this Agreement at the time the first
Purchase Order of such Designated Customer is placed, and (ii) the period until
termination of this Agreement due to other than expiration of the Term (if any),
and is subject in all respects to the final sentence of Section 8.5 below. The
Company may, in its sole discretion, extend the Payment Period in conjunction
with subsequent renewals, if any, of this Agreement upon the expiration of the
initial term.
8.3 PAYMENT. Representative will earn the Commission with
respect to any Gross Receipts on the day upon which
such Gross Receipts are actually collected by the
Company. The Company shall pay all Commissions
earned, if any, to Representative on the thirtieth
(30th) day of the month following the end of the
calendar month during which the applicable Gross
Receipts are collected by the Company. For example,
Commission payments earned during March shall be made
by April 30th.
8.4 CREDITS. With respect to any Gross Receipts collected
from any Purchase Order for which Representative has
earned or received a Commission hereunder, if the
Company subsequently refunds or grants the applicable
Designated Customer a credit for all or any part of
such Gross Receipts, regardless of the reason
therefor, the Company may (i) with respect to any
Commission earned but not yet paid, reduce the
Commission to be paid by a corresponding
proportionate amount, or (ii) with respect to any
Commission already paid, (a) require the
Representative to, and if so required the
Representative shall, refund to the Company a
corresponding proportionate amount of the Commission
previously paid within ten (10) days of notification
to Representative or (b) deduct the corresponding
proportionate amount of the Commission previously
paid from the next payments due Representative
hereunder.
8.5 EFFECT OF TERMINATION. If this Agreement is
terminated for any reason whatsoever, except for
termination by the Company due to breach by
Representative pursuant to Section 10.3 hereof,
Representative shall be entitled to receive the
aggregate amount of Commissions (determined in
accordance with Sections 8.2 and 8.4 above) earned by
the Representative with respect to Gross Receipts
collected by the Company pursuant to Purchase Orders
placed by a Designated Customer prior to termination,
which amounts shall be paid as provided in Section
8.3 above; PROVIDED that the Company shall have the
full right to offset and deduct against any
Commissions due any and all sums then due and owing
to the Company from Representative, not including the
Note Payable. The Company acknowledges that the
Company's obligation to pay Commissions for Purchase
Orders placed before termination by Designated
Customers shall survive termination of this
Agreement. If this Agreement is terminated by the
Company due to breach by Representative pursuant to
Section 10.3 hereof, the Representative shall not be
entitled to any further payments by the Company from
the date of termination, while the Company shall
continue to have the full right to claim a refund
from Representative for any refunds or credits the
Company extends to a Designated Customer pursuant to
Section 8.4 of this Agreement.
9. CERTAIN DISCLAIMERS AND LIMITATIONS ON LIABILITIES.
9.1 Nothing contained in this Agreement shall constitute
any representation or warranty by the Company,
including, without limitation, any representation or
warranty respecting the quality, efficacy, safety,
merchantability or fitness for any particular purpose
of the Products.
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9.2 In no event shall the Company be liable for
incidental, consequential, indirect, special or
punitive damages or for loss of revenue, loss of
business, or other financial loss arising out of or
in connection with the exercise or non-exercise of
any right contemplated by Section 4.4 hereof or
otherwise in connection with the marketing,
distribution or sale of the Products.
10. TERM AND TERMINATION.
10.1 TERM. The term (the "TERM") of this Agreement shall
commence on the date of this Agreement and continue
for an initial period of 24 months unless earlier
terminated as provided herein. The Term may be
extended for one or more additional periods only upon
the written agreement of the Company and
Representative. Notwithstanding the effective date of
this agreement, business introductions, nominations
and orders for Products secured by Representative
since May 2009 but prior to the commencement date
shall nevertheless be treated as secured after the
effective date of this agreement.
10.2 TERMINATION FOR CONVENIENCE. Either party may
terminate this Agreement for any reason without
liability upon 30 days prior written notice to the
other party.
10.3 TERMINATION FOR BREACH. Either party may terminate
this Agreement immediately if the other party fails
to perform or comply with one or more of its material
obligations under this Agreement and fails to rectify
that breach within 10 days of written notice thereof.
10.4 ADVERTISING AND PROMOTION. Upon termination of this
Agreement, Representative shall within 10 days from
the date of termination (a) remove from
Representative's premises and deliver to the Company
all signs, promotional and advertising materials
relating to the Products or containing the Company's
brand name or any trade marks or trade names of the
Company, (b) cease to engage in advertising or
promotional activities concerning the Products, and
(c) cease to represent, in any manner, that
Representative has been designated by the Company to
offer or sell the Products. The obligations set forth
in this Section 10.4 shall survive termination of
this Agreement.
10.5 CLAIMS FOR INDEMNITY. NEITHER PARTY SHALL, IN
CONNECTION WITH THE TERMINATION OF THIS AGREEMENT,
HAVE THE RIGHT TO CLAIM AGAINST THE OTHER PARTY ANY
INDEMNITY, REIMBURSEMENT OR COMPENSATION FOR LOSS OF
CLIENTELE, GOODWILL, LOSS OF PROFITS ON ANTICIPATED
SALES OR THE LIKE OR HAVE ANY OTHER RIGHT TO
COMPENSATION FOR LOSSES OR DAMAGES RESULTING FROM
SUCH TERMINATION, EACH PARTY ACKNOWLEDGING THAT IT
HAS DECIDED AND WILL DECIDE ON ALL INVESTMENTS,
EXPENDITURES AND COMMITMENTS MADE IN CONNECTION WITH
THIS AGREEMENT IN FULL AWARENESS OF THE POSSIBILITY
OF ITS LOSSES OR DAMAGES RESULTING FROM SUCH
TERMINATION AND IS WILLING TO BEAR THE RISK THEREOF.
NOTHING IN THIS SECTION 10.5 SHALL LIMIT ANY
LIABILITY OF ANY PARTY HEREUNDER ARISING OUT OF OR IN
CONNECTION WITH ANY BREACH OF ITS OBLIGATIONS
HEREUNDER.
10.6 SURVIVING TERMS. Covenants set forth in this
Agreement expressly designated to survive its Term
shall survive termination of this Agreement.
11. CONFIDENTIALITY.
11.1 CONFIDENTIAL MATERIAL. Representative acknowledges
that the Company's proprietary information relating
to the Products and its business and the Company's
trade secrets, including, without limitation, price
lists, pricing information, customer lists, customer
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names and contacts, trade knowledge, financial
information, financial projections, unprinted and
printed data, all inventions, including, without
limitation, any and all processes, innovations,
ideas, designs, developments, methods, and other
discoveries or developments whether or not
patentable, all know-how, modifications or
improvements to any of the foregoing, and all related
tangible or intangible property, constitute
confidential material (the "CONFIDENTIAL MATERIAL")
which (i) are valuable, confidential, proprietary and
unique information and trade secrets of the Company,
and (ii) are and shall remain the sole and exclusive
property of the Company. Representative further
acknowledges that the Company shall have, in addition
to other remedies available at law, the right to
enjoin the use of the Confidential Material in any
manner conflicting with this Agreement or in
derogation of the Company's proprietary rights, and
that other remedies are inadequate to protect the
Company's rights in the Confidential Material.
11.2 NON DISCLOSURE. Other than in connection with the
performance of its obligations under this Agreement,
or to the extent required by law or judicial process,
Representative shall not use for its own benefit, nor
disclose to any third party, any Confidential
Material. Nothing in this Agreement authorizes
Representative to disclose any Confidential Material
to any Designated Customer or potential Designated
Customer. Representative shall allow access to
Confidential Material by its employees and agents
only to the extent necessary to perform its
obligations hereunder. Representative shall inform
its employees and agents who access the Confidential
Material that it is confidential in nature and shall
cause such employees and agents to abide by the same
restrictions with respect to such Confidential
Material as are imposed on the Representative,
including without limitation by prohibiting and
preventing any unauthorized exploitation, transfer,
or disclosure by such employees and agents. If
Representative is requested by any governmental
authority with jurisdiction over the Representative
through oral questions, interrogatories, requests for
information or documents, subpoena, civil or criminal
investigative demand or similar process to disclose
any Confidential Material, Representative will
provide the Company with immediate notice of such
request so that the Company may consider seeking a
protective order in respect thereof. Representative
agrees to cooperate with the Company in connection
with any action undertaken by the Company to protect
any unauthorized disclosure or use of any
Confidential Material.
11.3 RETURN OF CONFIDENTIAL MATERIAL. Upon the Company's
request, Representative shall promptly either deliver
to the Company or destroy, in accordance with the
Company's instructions, all written Confidential
Material and Confidential Material in electronic
form, including any such Confidential Material
incorporated into other materials, and any copy,
extract, summary or other reproduction (whatever the
form or storage medium) of such Confidential
Material. The obligations set forth in this Section
11.3 shall survive the termination of this Agreement.
12. RESOLUTION OF REPRESENTATIVE DISPUTES. In the event of a
dispute among Representative and other sales representatives
of the Company as to any matter involving this Agreement or
the sale of the Products, Representative agrees to submit such
dispute to the Company for resolution and agrees to be bound
by the decision reached by the Company in its sole and
absolute discretion.
13. PROTECTION TRADEMARKS, TRADENAMES AND OTHER INTELLECTUAL
PROPERTY
13.1 TRADEMARKS. The Company hereby grants to
Representative the non exclusive right to use within
the Territory the trademarks "Talon(TM)" and all
other trademarks and tradenames that the Company may
expressly authorize the Representative to use in
writing from time to time (the "Trademarks") solely
in connection with the marketing of the Products
during the Term of this Agreement; PROVIDED, that
Representative shall not have the right to use the
Trademarks, or any of them, as part of the name of
its business, as part of a name under which it does
business or as part of its internet domain name or
email address. The Company may at any time, in its
sole and absolute discretion, revoke this
nonexclusive right to use the Trademarks.
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13.2 DISPLAY. Representative shall attach, use and display
the Trademarks on all packaging, promotional and
advertising materials to be used in connection with
the marketing, distribution and sale of the Products.
Representative shall furnish the Company with copies
of all of its promotional and advertising material
that makes use of the Trademarks, and if
Representative shall make all alterations, additions
and modifications to such materials as Company
reasonably requests.
13.3 OTHER USES PROHIBITED. Without the prior written
consent of the Company, Representative shall not use
or display any trademarks, tradenames or service
marks except the Trademarks in connection with the
marketing of the Products.
13.4 REGISTRATION PROHIBITED. During the Term and
thereafter, Representative shall not register in its
own name or on behalf of any other entity with any
Trademark Bureau any other governmental or other
body, or claim any other intellectual property rights
with respect to, any Trademarks, within the Territory
or any other jurisdiction. Representative shall cause
all of its employees and agents to abide by the same
restrictions with respect to the Trademarks as are
imposed on Representative. The obligations set forth
in this Section 13.4 shall survive the termination of
this Agreement.
14. MISCELLANEOUS.
14.1 NO PARTNERSHIP. Nothing contained in this Agreement
shall be deemed or construed in any manner whatsoever
as creating any partnership, joint venture or other
similar relationship between the Company and
Representative.
14.2 ASSIGNMENT. Representative may not transfer the
rights or delegate the duties provided for under the
terms of this Agreement without the prior written
consent of the Company, which consent the Company may
withhold in the exercise of its sole and absolute
discretion. All terms and provisions of this
Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective
permitted transferees, successors and assigns.
14.3 NOTICES. All notices, requests, consents and other
communications that are required or permitted
hereunder shall be in writing and shall be (a)
delivered personally, (b) sent by telecopier,
facsimile or electronic mail with confirmation or
acknowledgment of transmission or confirmation by
mailing a confirmation copy registered or certified
air mail, or (c) sent via the fastest service
provided by an internally recognized express delivery
service such as Federal Express or United Parcel
Service (in which case it shall be deemed given two
business days after deposit with such service) to the
addresses listed on Exhibit B hereto. Such address
may be changed from time to time by either party by
providing written notice to the other in the manner
set forth in this Section 14,3.
14.4 GOVERNING LAW AND ARBITRATION. This Agreement and any
contract of sale concluded in accordance with this
Agreement shall be interpreted and their effects
shall be determined in accordance with the laws of
the State of California, without regard to the
conflicts of laws and principles thereof. Any
controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be
settled by arbitration in Los Angeles, California,
administered by the American Arbitration Association
in accordance with its Commercial Arbitration
procedures, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having
jurisdiction thereof.
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14.5 SEVERABILITY. If any provision of this Agreement is
held to be invalid, illegal or unenforceable for any
reason or in any respect whatsoever, such invalidity,
illegality or unenforceability shall not affect any
other provisions of this Agreement, and this
Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been
contained herein.
14.6 WAIVER. The waiver by any party hereto of any breach
or default shall not constitute a waiver of any
different or subsequent breach or default. No waiver
to this Agreement shall be effective unless stated in
writing and signed by authorized representatives of
all parties.
14.7 ENTIRE AGREEMENT. This Agreement, when signed by the
authorized representatives of each party hereto,
shall constitute the only agreement between them with
respect to the subject matter herein and shall
supersede all prior agreements, oral or written. This
Agreement may be amended only by a writing singed by
each party hereto.
14.8 COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed
an original, but all of which together shall
constitute one and the same instrument.
14.9 TAXES. Representative shall bear the expense of any
tax which may be payable by Representative in respect
of this Agreement or the transactions contemplated
herein.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of the date first above written.
COMPANY:
TALON INTERNATIONAL, INC.
By: /s/ Lonnie D. Schnell
---------------------------------
Name: Lonnie D. Schnell
Its: Chief Executive Officer
REPRESENTATIVE:
THE LINK TRADING LLC
By: /s/ Colin Dyne
---------------------------------
Name: Colin Dyne
Its: Manager
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EXHIBIT A
TO
SALES REPRESENTATIVE AGREEMENT
DESIGNATED CUSTOMERS
Phillips-Van Heusen Corporation (NYSE: PVH)
EXHIBIT B
TO
SALES REPRESENTATIVE AGREEMENT
NOTICE INFORMATION