THIS TERMINATION
AGREEMENT (the “Agreement”) is entered into this
29 th
day of March 2006 by and
between Odimo Incorporated, a Delaware corporation (the “
Company ”), and SDG Marketing, Inc., a British Virgin
Island corporation (“ SDG ”).
WHEREAS, the
Company and SDG are parties to that certain Supply Agreement dated
as of March 30, 2004 (the “Supply Agreement”) pursuant
to which SDG agreed to sell diamonds and jewelry to the Company
upon the terms and conditions contained therein; and
WHEREAS, the
Company and SDG desire to terminate the Supply Agreement upon the
terms and subject to the conditions contained in this
Agreement.
NOW THEREFORE, in
consideration of the mutual promises and undertakings set forth in
this Agreement, the parties, intending to be legally bound, agree
as follows:
1.
TERMINATION OF SUPPLY AGREEMENT. Effective as of the date hereof, the Supply
Agreement and the respective rights and obligations of the parties
thereunder are hereby terminated, cancelled and of no further force
or effect.
2. RETURN OF
INVENTORY; RISK OF LOSS ON RETURNED INVENTORY;
RELEASE
2.1 Return of
Inventory. Immediately upon execution of this Agreement, the
Company shall return to SDG the Loose Diamonds previously delivered
to the Company by SDG and such other diamonds listed on
Exhibit A hereto. For purposes of this Agreement,
“Loose Diamonds” shall mean loose stone diamonds
accompanied by a GIA certificate and supplied by SDG.
2.2 Risk of
Loss . Risk of loss to the Loose Diamonds shall pass to SDG
upon delivery thereof to SDG, except such loss or damage resulting
from any negligent act of the Company or its agents. If requested
by SDG, the Company shall provide SDG with a certificate of
insurance naming SDG as loss payee on any insurance policy covering
the Loose Diamonds whereby any losses shall be paid to SDG and the
Company as their interest may appear.
(a) In
consideration of each party’s mutual release and the
performance of all duties and obligations imposed hereunder, and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, SDG, its predecessors,
successors, officers, directors, current and former employees,
agents, representatives, heirs, attorneys, and assigns, and the
Company, its predecessors, successors, officers, directors, current
and former employees, agents, representatives, heirs, attorneys,
and assigns, hereby completely release and forever discharge each
other and each party’s past, present, and future officers,
directors, shareholders, employees, attorneys, principals, agents,
servants, representatives, subsidiaries, parents, related entities,
affiliates, partners, predecessors, successors-in-interest, heirs,
assigns, and all other persons, corporations, or other entities
with whom any of the parties’ have now or may hereafter be
affiliated, of and from any and all claims, demands, obligations,
actions, causes of actions, orders, judgments, rights, damages,
costs, attorneys’ fees, losses of services, expenses,
profits, or compensation, whether based on a tort, contract,
contribution, indemnification, or
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