BY ELAN-POLO ARE STILL IN USE BY CONSUMERS, OBTAIN AND MAINTAIN AT
ITS OWN COST AND EXPENSE FROM A QUALIFIED INSURANCE COMPANY LICENSED TO DO
BUSINESS IN TEXAS AND HAVING BOTH A MOODY'S RATING OF B+ OR BETTER AND AN A.M.
BEST RATING OF A-VII OR BETTER, PRODUCT LIABILITY INSURANCE FOR ALL SUCH WHEELED
FOOTWEAR, INCLUDING THE SHOE SKATES, WITH COVERAGE FROM CLAIMS FOR PERSONAL
INJURY (INCLUDING BODILY INJURY AND DEATH) AND PROPERTY DAMAGE, AND NAMING
HEELYS, INC., HEELING AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS
AND SHAREHOLDERS, AS ADDITIONAL INSUREDS, AND SHALL CONTAIN A WAIVER OF
SUBROGATION WITH RESPECT TO THE ADDITIONAL INSUREDS.
AN ENDORSEMENT LISTING
HEELING, AND ITS AFFILIATES, SUCH AS HEELYS INC., AS ADDITIONAL INSUREDS SHALL
BE PROVIDED IN THE FORM AS SHOWN IN THE ATTACHED EXHIBIT D.
SUCH POLICY SHALL
PROVIDE PROTECTION AGAINST ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION RELATED TO
OR ARISING OUT OF WHEELED FOOTWEAR, INCLUDING, FOR EXAMPLE, ANY DEFECT, ALLEGED
DEFECT OR OTHERWISE, OF ANY SUCH PRODUCTS, INCLUDING THE SHOE SKATES, THE
EXISTING INVENTORY, OR ANY SKATE OR WHEELED FOOTWEAR MADE OR SOLD BY ELAN-POLO
OR AT ITS DIRECTION, INCLUDING ANY MATERIAL USED IN CONNECTION THEREWITH OR ANY
USE THEREOF.
THE AMOUNT OF COVERAGE SHALL NOT BE LESS THAN $1,000,000 PER
OCCURRENCE AND $2,000,000 IN THE AGGREGATE.
THE POLICY SHALL PROVIDE FOR AT
LEAST 30 DAYS UNRESTRICTED NOTICE TO HEELING FROM THE INSURER BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IN THE EVENT OF ANY MODIFICATION,
CANCELLATION, OR TERMINATION THEREOF.
THE POLICY SHALL BE PRIMARY AND NOT
CONTRIBUTORY, AND SHALL BE ON AN OCCURRENCE BASIS.
ELAN-POLO SHALL FURNISH
HEELING AT ALL TIMES (INCLUDING ON THE EFFECTIVE DATE) A CURRENT COPY OF SUCH
POLICY,
13
AS WELL AS A CERTIFICATE OF INSURANCE EVIDENCING SAME.
IN NO EVENT SHALL
ELAN-POLO MANUFACTURE, HAVE MADE, DISTRIBUTE, OR SELL ANY SHOE SKATES OR OTHER
SKATES OR WHEELED FOOTWEAR UNDER THIS AGREEMENT OR THE TECHNOLOGY AGREEMENT
PRIOR TO RECEIPT AND ACCEPTANCE BY HEELING OF SUCH EVIDENCE OF INSURANCE.
ELAN-POLO ACKNOWLEDGES AND AGREES THAT ITS OBLIGATIONS SET FORTH IN THIS
AGREEMENT, INCLUDING, FOR EXAMPLE, ELAN-POLO'S OBLIGATIONS TO INDEMNIFY, DEFEND
AND HOLD HARMLESS OF PARAGRAPH 17 OR ELSEWHERE IN THIS AGREEMENT, SHALL NOT BE
LIMITED BY THE INSURANCE REQUIREMENTS OF THIS
PARAGRAPH.
19.
EACH OF THE PARTIES AGREE, IMMEDIATELY UPON
REQUEST THEREFOR, TO PREPARE, EXECUTE, ACKNOWLEDGE, DELIVER, OR FILE SUCH OTHER
AND FURTHER PAPERS, FORMS, INSTRUMENTS, AND DOCUMENTS, AND TO TAKE SUCH OTHER
AND FURTHER ACTION, AS MAY BE NECESSARY OR CONVENIENT TO EVIDENCE, PERFECT, OR
ENFORCE ANY OF THE RIGHTS AND OBLIGATIONS ARISING UNDER OR IN CONNECTION
HEREWITH OR WITH ANY DOCUMENT OR AGREEMENT REFERRED TO HEREIN OR OTHERWISE TO
CONSUMMATE OR CARRY OUT THE INTENT OF THIS AGREEMENT.
20.
ELAN-POLO, INCLUDING ITS AFFILIATES,
OFFICERS AND AGENTS, WILL NOT PROVIDE OR DISCLOSE TO ANY THIRD PARTY THE TERMS
OR PROVISIONS OF THIS AGREEMENT OR THE TECHNOLOGY AGREEMENT; PROVIDED, HOWEVER,
THAT ELAN-POLO IS NOT PRECLUDED FROM PROVIDING OR DISCLOSING THE TERMS OR
PROVISIONS OF THIS AGREEMENT (A) IN