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First Amendment To Collaboration Services Agreement

Collaboration Agreement

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 This Collaboration Agreement involves

AEROGROW INTERNATIONAL, INC. | AeroGrow Development Services | AeroGrow DTC Services | AeroGrow Information Services | AeroGrow International, Inc | DTC and Development Services | OMS Investments, Inc | Scotts Company LLC

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Title: FIRST AMENDMENT TO COLLABORATION SERVICES AGREEMENT
Date: 7/21/2016
Industry: Misc. Capital Goods     Sector: Capital Goods

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Exhibit 10.2

 

FIRST AMENDMENT

TO

COLLABORATION SERVICES AGREEMENT

This FIRST AMENDMENT TO COLLABORATION SERVICES AGREEMENT (this “ Amendment ”) is effective as of July 15, 2016 (the “ Effective Date ”), among The Scotts Company LLC, an Ohio limited liability company having its principal place of business at 14111 Scottslawn Road, Marysville, Ohio 43041 (“ Scotts Company ”), OMS Investments, Inc., a Delaware corporation having its principal place of business at 10250 Constellation Blvd., Suite 2800, Los Angeles, California 90067 (“ OMS ,” and together with Scotts Company, “ Scotts ”), and AeroGrow International, Inc., a Nevada corporation having its principal place of business at 6075 Longbow Dr., Suite 200, Boulder, Colorado 80301 (“ AeroGrow ”).  Scotts and AeroGrow are sometimes referred to herein collectively as the “ Parties ” and individually as a “ Party .”

WHEREAS, the Parties are parties to that certain Collaboration Services Agreement, effective as of April 22, 2013 (as amended and supplemented, the “ Collaboration Services Agreement ”); and

WHEREAS, the Parties wish to amend the Collaboration Services Agreement as set forth below.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows:

DTC and Development Services

1.

Section 1(b) of the Collaboration Services Agreement is hereby amended and restated in its entirety as follows:

AeroGrow Services .  As Scotts or any of its Affiliates may request from time to time during the term of this Agreement, AeroGrow will perform for Scotts or its Affiliates the following services (collectively, the “ AeroGrow Services ”):

(i)          the services set forth under the AeroGrow Information Services heading in the Scope of AeroGrow Services attached hereto as Exhibit B (the “ AeroGrow Information Services ”);

(ii)          the services set forth under the AeroGrow DTC Services heading in the Scope of AeroGrow Services attached hereto as Exhibit B (the “ AeroGrow DTC Services ”); and

(iii)          the services set forth under the AeroGrow Development Services heading in the Scope of AeroGrow Services attached hereto as Exhibit B (the “ AeroGrow Development Services ”).”

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2.

Section 1(d) of the Collaboration Services Agreement is hereby amended and restated in its entirety as follows:

No Implied License .  Except as set forth on Exhibit B with respect to the AeroGrow DTC Services and AeroGrow Development Services, neither Party shall acquire under this Agreement any license or other intellectual property interest, by implication or otherwise, in any know-how, or Confidential Information disclosed to it under this Agreement or under any intellectual property rights owned or controlled by the other Party or its Affiliates.

3.

Section 2(a) of the Collaboration Services Agreement is hereby amended and restated in its entirety as follows:

Scotts Reimbursement .  AeroGrow will reimburse Scotts for all reasonable out-of-pocket costs incurred by Scotts in performing the Scotts Services (the “ Scotts Reimbursement ”). No fee or other payment, besides the Scotts Reimbursement, shall be payable by AeroGrow to Scotts for the performance of the Scotts Services un der this Agreement.”

4.

Section 2(b) of the Collaboration Services Agreement is hereby amended and restated in its entirety as follows:

AeroGrow Reimbursement and Fees .  Scotts will (x) reimburse AeroGrow for all reasonable out-of-pocket costs incurred by AeroGrow in performing the AeroGrow Information Services and (y) pay AeroGrow all service fees for the AeroGrow DTC Services and AeroGrow Development Services as set forth on Exhibit B ((x) and (y) collectively, the “ AeroGrow Reimbursement and Fees ”). No fee or other payment, besides the AeroGrow Reimbursement and Fees, shall be payable by Scotts to AeroGrow for the performance of the AeroGrow Services under this Agreement.”

5.

Section 3(a) of the Collaboration Services Agreement is hereby amended and restated in its entirety as follows:

Limited Term .  Except as set forth in Sections 3(b) and 3(c), the term of this Agreement will be coterminous with the term of the Brand License Agreement (as defined in the Recitals to this Agreement) and will automatically terminate upon the expiration or the termination of the Brand License Agreement unless the Brand License Agreement is terminated prior to July 15, 2019, in which case the term of this Agreement will be extended until July 15, 2019 solely with respect to the AeroGrow Development Services.”

 

6.

Section 6 of the Collaboration Services Agreement is hereby amended and restated in its entirety as follows:

Ownership .  Except as provided for in Exhibit B with respect to the AeroGrow DTC Services and the AeroGrow Development Services: (a) this Agreement and the performance of this Agreement will not affect the ownership of any copyrights

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or other intellectual property rights of either Party; (b) neither Party will gain, by virtue of this Agreement, any rights of ownership of copyrights, patents, trade secrets, trademarks or any other intellectual property rights owned by the other Party; (c) except as otherwise set forth in the Transaction Agreements, the Party providing the applicable Service will own all copyrights, patents, trade secrets or other intellectual property rights subsisting in any deliverable that subsists in whole or in part of works developed by such Party for purposes of this Agreement; (d) each Party acknowledges and agrees that each shall retain exclusive ownership of its own respective data and other intellectual property provided to the other pursuant to this Agreement; (e) neither Party shall use the other Party’s data for any purpose other than the performance of, or as otherwise permitted by, this Agreement in accordance with its provisions; and (f) the receiving Party will own all data generated by or for it in the course of performing the applicable Services, and shall at all times have a right to access and be provided with copies of that data.”

7.

Exhibit B to the Collaboration Services Agreement is hereby amended and restated in its entirety by Exhibit B attached to this Amendment.

8.

Section 13(k) of the Collaboration Services Agreement is hereby amended and restated in its entirety as follows:

“(k)           Entire Agreement .  This Agreement, together with the Transaction Agreements, sets forth the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous agreements or understands respecting such subject matter.  The Exhibits to this Agreement are incorporated into and form an integral part of this Agreement.”

Miscellaneous

9.

Incorporation with Collaboration Services Agreement . This Amendment is executed and delivered pursuant to the Collaboration Services Agreement and shall be subject to the terms and conditions of, and interpreted in accordance with, the Collaboration Services Agreement.  Except as amended hereby, the Collaboration Services Agreement and each of the provisions contained therein shall remain in full force and effect as from the Effective Date.  Capitalized terms defined in the Collaboration Services Agreement and not otherwise defined herein shall have the meanings given to them in the Collaboration Services Agreement.

10.

Counterparts .  This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same Amendment.

[Signature page follows]

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The Parties have caused this Amendment to be executed as of the Effective Date.

 

 

THE SCOTTS COMPANY LLC

 

 

By:    __________________________________

Name:

Title:

 

 

 

OMS INVESTMENTS, INC.

 

 

By:    __________________________________

Name:

Title:

 

 

 

AEROGROW INTERNATIONAL, INC.

 

 

By:    __________________________________

Name:

Title:

 

[Signature Page to Amendment to Collaboration Services Agreement]

 


 

  EXHIBIT B

 

AEROGROW SERVICES

 

AeroGrow Information Services

 

·

AeroGrow will provide Scotts with copies of AeroGrow’s consumer lists, including email addresses and all other data regarding those consumers, subject to compliance with applicable law.

AeroGrow DTC Services

 

Services :

AeroGrow will provide Scotts and its Affiliates with Direct to Consumer fulfillment capabilities with respect to products of Scotts’ and its Affiliates, including:

 

·

Consumer service, including order entry and processing and payment collection.

·

Product storage and order fulfillment through its third-party fulfillment center.

 

·

Web-site development (in some cases, Scotts may develop its own websites and transmit orders to AeroGrow).

·

Assistance in analysis of customers, trends and buying patterns.

 

·

Development of a customer database.

·

Design and implementation of testing around marketing message, appropriate products for the channel and pricing.

 

·

Returns processing.

 

AeroGrow shall cause its third-party fulfillment center to accept shipment of and store products of Scotts and its Affiliates at its fulfillment center in an orderly manner, in accordance with substantially the same degree of care that is exercised to protect AeroGrow’s own goods, and in substantially the same manner and under the same storage conditions that are utilized with respect to AeroGrow’s own goods.  The title to Scotts’ or its Affiliates’ products that are subject to the AeroGrow DTC Services shall not transfer from Scotts or its applicable Affiliate to AeroGrow.

 

Limitations :

AeroGrow will support all of Scotts’ and its Affiliates’ direct fulfillment needs (to the extent requested by Scotts and its Affiliates; however , AeroGrow will not be expected to significantly expand its computer systems or its fulfillment center in order to meet Scotts’ or its Affiliates&r


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