SECOND AMENDMENT TO THE CONTENT LICENSE, MARKETING AND SALES AGREEMENT
Exhibit
10.1
SECOND
AMENDMENT TO THE CONTENT LICENSE, MARKETING AND SALES AGREEMENT
This
Second Amendment (this “Second Amendment”) effective as of April 20, 2009
(“Second Amendment Effective Date”), by and between ▇▇▇▇▇▇▇.▇▇▇, Inc. (“Client”)
and eFashion Solutions, LLC (“EFS”), hereby amends that certain Content License,
Marketing and Sales Agreement entered into by the parties and effective as of
January 15, 2008, as amended by that certain First Amendment, dated as of March
1, 2008 (the “First Amendment;” collectively, the “Agreement”). All
capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Agreement. This Second Amendment is hereby
incorporated into the Agreement by reference.
WHEREAS,
pursuant to Section 14.5 of the Agreement, the parties wish to amend the
Agreement as set forth herein.
NOW,
THEREFORE, in consideration of the mutual promises and covenants herein and for
other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, Client and EFS agree as follows:
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1.
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International
Sales.
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1.1. Pursuant
to Section 2.5 of the Agreement, subject to certain conditions, for a period of
one (1) year after launch of the Websites (the “US Shipping Period”), EFS was
permitted to fulfill orders placed by customers in the UK and Australia with
Merchandise manufactured, stored in and shipped from the United States without
being required to sell the products of international
Licensees. Client hereby agrees to extend the US Shipping Period
until December 31, 2009. In addition, EFS may fulfill orders, as
provided in Section 2.5 of the Agreement, placed by customers in those countries
set forth in Exhibit 1, attached hereto and hereby incorporated by reference
(collectively, the “US Shipping Territory”), subject to such restrictions as set
forth in Exhibit 1. EFS shall be solely responsible for compliance
with all applicable local Laws with respect to any Merchandise sold in and/or
shipped to any US Shipping Territory country, as well as local Laws applicable
to the sale and shipment of such Merchandise.
1.2. EFS
shall pay Client pursuant to Section 6.1 of the Agreement for all Net
Merchandise Sales generated from orders originating from within the US Shipping
Territory, and no incremental (i.e., additional) Minimum Royalty shall be due
through December 31, 2009.
1.3. Not
later than October 31, 2009, EFS shall present Client with a written proposal
outlining deal terms for the continuation of the US Shipping Period, which terms
shall include a proposal for an incremental (i.e., additional) Minimum Royalty
in connection with the grant of rights for such sales.
1.4. In
the event that at the end of the US Shipping Period, (i) the parties have failed
to agree to terms for an extended US Shipping Period; or (ii) in Client’s
reasonable determination, EFS has not received a material number of orders from
the US Shipping Territory, or from any country included therein, upon written
notice to EFS Client may either:
(a) Terminate
the US Shipping Period; or
(b) Remove
the non-performing countries from the US Shipping Territory.
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2.
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Miscellaneous.
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2.1. No
Replacement. Except as expressly set forth herein, no
provision of this Second Amendment shall be interpreted to replace or delete any
provision of the Agreement. All provisions of the Agreement which are
not expressly replaced or deleted by this Second Amendment shall remain in full
force and effect and shall, where appropriate, apply to the terms of this Second
Amendment. In the event of any conflict between the Agreement and
this Second Amendment, the terms of this Second Amendment shall
control.
2.2. Counterparts. This
Second Amendment may be executed in any number of counterparts. Any
counterpart may be executed by facsimile, unless notarization is required under
applicable law. All counterparts shall collectively constitute one
and the same agreement.
2.3. Entire
Agreement. The terms and conditions contained in this Second
Amendment and the Agreement (including the exhibits and/or schedules attached
thereto) constitute the entire agreement between the parties relating to the
subject matter and shall supersede all previous communications between the
parties with respect to the subject matter of this Second Amendment or of the
Agreement.
IN
WITNESS WHEREOF, the parties hereto, intending this Second Amendment to be
effective as of the Second Amendment Effective Date, have caused this Second
Amendment to be executed by their respective duly authorized
officers.
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EFASHION
SOLUTIONS, LLC
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▇▇▇▇▇▇▇.▇▇▇,
INC.
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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Date:
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Date:
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EXHIBIT
1
US
SHIPPING TERRITORY & RESTRICTIONS
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Country
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Restrictions
(if any)
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Australia
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No
EFS Produced Merchandise of men’s or women’s underwear or
loungewear.
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Brazil
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No
fragrances, cosmetics or similar goods.
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Canada
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No
restrictions.
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China
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No
magazines, DVDs, videos or other content items.
No
sex toys/aids or similar goods.
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Japan
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No
fragrances, cosmetics or similar goods.
No
cell phones or cell phone accessories.
No
computer software.
No
non-alcoholic beverages.
No
razors.
No
lights.
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Mexico
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No
restrictions.
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South
Africa
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No
fragrances, cosmetics or similar goods.
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UK
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No
EFS Produced Merchandise apparel through June 30,
2009.
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