Fillable Product Exclusivity Agreement (Page 2 of 4) in pdf

Product Exclusivity Agreement

(Global)

This Exclusivity Agreement (the “Agreement”) is made on the “Effective Date” specified below between Destination

Maternity Corporation (the “Buyer”) and the party identified as “Vendor” (including any third party controlling, controlled by,

under common control with or otherwise affiliated with Vendor) (individually and collectively, “Vendor”). The terms of this

Agreement are in addition to, and not in limitation of, the Company’s standard Purchase Order Terms and Conditions in effect

and as modified from time to time by the Buyer at its sole discretion and without notice to Vendor.

Buyer has placed and/or will place orders with Vendor for the purchase of maternity and/or nursing apparel and/or

related accessories (“Maternity and Nursing Product”) via Purchase Orders (each a “Purchase Order”). As an inducement to

Buyer commencing or continuing its purchase of goods from Vendor, and in consideration of such purchase(s), Vendor has

agreed to the restrictions set forth in this Agreement.

In consideration of the mutual promises contained in this Agreement and any Purchase Order, and for other good and

valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

Exclusivity; Non-Solicitation; Non-Hire. For so long as Vendor sells goods to Buyer and for one year after

Buyer’s last receipt of goods from Vendor, Vendor covenants and agrees that Vendor shall not do any of the following, directly

or indirectly, anywhere in the world:

(a) except with respect to Purchase Orders between Buyer and Vendor, Vendor will not engage or participate in

the business of designing, manufacturing, marketing, selling, or offering for sale Maternity and Nursing Product, or become

interested in (as owner, stockholder, lender, partner, co-venturer, director, officer, employee, agent, consultant or otherwise) any

third party engaged in the business of designing, manufacturing, marketing, selling, or offering for sale Maternity or Nursing

Product (other than through ownership of not more than 2% of any class of securities of any corporation that has a class of

securities registered pursuant to the Securities Exchange Act of 1934);

(b) Vendor will not influence or attempt to influence any vendor of goods or services to Buyer or any other third

party with which Buyer has a business relationship to terminate or modify any written or oral agreement or course of dealing

with Buyer; or

employment, consulting, agency, distributorship or any other arrangement with Buyer, or (2) employ or retain, or arrange to

have any other third party employ or retain, any third party who has been employed or retained by Buyer at any time within the

two-year period preceding such proposed employment or retention.

Right to Market Vendor Product as Exclusive. Vendor understands that Buyer may, from time to time (in

Buyer’s sole discretion) advertise and/or otherwise market that the Maternity and Nursing Product provided by Vendor to Buyer

pursuant to any Purchase Orders are “exclusive” to Buyer and/or are “exclusively” available to Buyer’s customers (such as, for

example only, by advertising in-store, online or otherwise that such Maternity and Nursing Product is “Exclusively Available at

Motherhood®!” or “Only Available at Destination Maternity®!)”). Vendor hereby represents and warrants that such Maternity

and Nursing Product will be exclusive to Buyer and hereby authorizes Buyer to advertise and/or market Maternity and Nursing

Product provided by Vendor to Buyer as “exclusive” in any manner and in any form that Buyer determines in Buyer’s sole

discretion. Vendor hereby provides Buyer a worldwide, royalty free license to use any of Vendor’s trademarks and/or

tradenames associated with Maternity and Nursing Product provided by Vendor in such advertising and/or marketing activities.

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Product Exclusivity Agreement Page 2