EXHIBIT 10-a-2
ACE HARDWARE CORPORATION INTERNATIONAL RETAIL MERCHANT AGREEMENT
This Agreement is made and entered into by and between ACE HARDWARE
CORPORATION, a Delaware corporation, having its general offices at
0000 Xxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 60521,60523, U.S.A.
(hereinafter referred to as "Company"), and:
___________________________________________________________________
[Corporate or Partnership Name]
an independent merchant having its general offices at:
___________________________________________________________________
[Corporate or Partnership Address]
(hereinafter referred to as "International Retail Merchant") which
operates a retail business outside the United States of America,
its territories or possessions, at the location(s) set forth in the
attached Exhibit A;
WITNESSETH:
In consideration of the respective undertakings and covenants
herein contained, Company and International Retail Merchant agree
as follows:
1. Concurrently with the submission of this Agreement for
acceptance by Company, International Retail Merchant shall
include payment to Company in the amount of U.S. $5,000.00 as
an application processing fee for each retail business
location set forth on Exhibit A. Upon acceptance of this
Agreement by Company, the said fee becomes non-refundable. If
Company elects not to accept this Agreement, then the said fee
will be refunded to International Retail Merchant.
2. As of the date of acceptance by Company hereof, Company grants
to International Retail Merchant, upon and subject to the terms and
conditions set forth herein, the right to purchase from Company for
resale at retail only from International Retail Merchant retail
location(s) set forth on Exhibit A, such merchandise as Company
regularly offers for sale, including merchandise under private
labels containing the name "ACE" or "ACE"Ace" or "Ace Hardware".
The minimum volume of merchandise that must be purchased by
International Retail Merchant from Company hereunder shall be U.S.
$200,000.00, exclusive of all handling charges, per year, based
upon the anniversary date of this Agreement.
3. All amounts becoming payable by International Retail Merchant
pursuant to Company's billing statements shall be payable in
United States currency.
4. International Retail Merchant shall not be required to pay to
Company any charges or assessments for any national advertising
program sponsored or established by Company for advertising in the
United States of America, its territories or possessions.
5. The price of merchandise sold to International Retail Merchant
hereunder shall be the regular dealer cost of such
merchandise, plus the regular dealer handling charge then in
effect (hereinafter the "Subtotal"), plus any International
Retail Merchant handling charge in effect from time to
time.the amount of three per cent (3%) of the Subtotal. It is
mutually understood and agreed that the regular dealer cost of
merchandise and the regular dealer handling charge may be
changed by Company at any time during the term hereof, but the
International Retail Merchant handling charge set forth herein
may be changed by Company only upon sixty (60) days advance
written notice to International Retail Merchant.
6. International Retail Merchant agrees to pay all amounts shown
as currently due on Company's billing statements for purchases
of merchandise, supplies and services made by International
Retail Merchant with such promptness as shall enable Company
to receive payment no later than the 10th day following the
date of the statement (it being understood that all invoices
for merchandise purchased on extended payment terms become
currently due when other items billed are not paid when due),
and pay a service charge per bi-weekly billing statement on
any past due balance in such amount as Company may, from time
to time, impose on its dealers generally.
7. International Retail Merchant shall provide Company with a
standby irrevocable letter of credit, issued or confirmed by a
United States bank approved by Company, or with such other
instruments or collateral as Company shall deem to be
appropriate in order to secure the prompt payment of the
indebtedness to it incurred by International Retail Merchant
from time to time.
8. All orders for merchandise, supplies and services placed by
International Retail Merchant shall be subject to acceptance
or nonacceptance by Company at its corporate headquarters, now
located in Oak Brook, Illinois, U.S.A. Company shall cause
all items ordered by International Retail Merchant to be
shipped to International Retail Merchant's designated
receiving terminal in the United States for shipment by
International Retail Merchant only to International Retail
Merchant location listed hereinabove. Title to all such
merchandise and supplies shipped to International Retail
Merchant shall pass to International Retail Merchant upon
delivery to such receiving terminal. International Retail
Merchant shall be responsible for and agrees to pay to Company
all costs and charges related to the delivery of such items to
said terminal.
9. International Retail Merchant shall be solely responsible for
and shall pay when due all import or export permit fees,
customs duties and taxes of any nature imposed upon the sales
made by Company to International Retail Merchant by the United
States Government or the government of the Country in which
International Retail Merchant's place of business is located.
International Retail Merchant shall fully indemnify Company
for the amount of any such fees, duties and taxes, together
with any interest or penalties thereon, which Company may be
required to pay as a result of International Retail Merchant's
failure to do so.
10. At its sole discretion and notwithstanding the provisions of
Paragraph 2 above, Company may limit, or restrict the
quantities or types of merchandise sold to International
Retail Merchant hereunder.
11. International Retail Merchant's rights hereunder shall be non-
exclusive, and Company reserves the right to sell in
International Retail Merchant's Country and elsewhere such
products as Company may, in its sole discretion, elect to
sell, either directly or through any other distributors or
dealers selected or appointed at any time by Company.
International Retail Merchant shall not be entitled to any
compensation from Company by reason of, or with respect to
sales made directly by Company or through any other
distributor or dealer of Company.
12. Nothing herein shall be deemed in any way to limit the right
of International Retail Merchant to determine the prices or
terms at which products purchased through Company shall be
resold by International Retail Merchant. It is expressly
understood that International Retail Merchant may resell such
products at any prices determined by International Retail
Merchant, whether greater or lesser than any prices listed or
suggested by Company.
13. International Retail Merchant hereby agrees to comply with any
and all laws, regulations and governmental orders of the
United States of America, the several States, or the Country
in which International Retail Merchant's business is located,
which may be applicable to the sale and distribution of the
products purchased by International Retail Merchant from
Company, or to the conduct of International Retail Merchant's
business operations, as the case may be. International Retail
Merchant agrees to order only such merchandise as may lawfully
be resold without alterations in labeling or otherwise in the
Country in which International Retail Merchant's business is
located, and agrees to indemnify Company and hold it harmless
from and against any and all claims, suits, proceedings,
demands, actions, judgments, orders, fines or penalties
arising in connection with the actual or alleged failure of
such merchandise to comply with any laws, regulations or
governmental requirements applicable to the sale or resale
thereof.
14. Company shall supply International Retail Merchant with such
quantities of sales aids as Company, in its sole discretion,
deems necessary or desirable. All such sales aids shall be in
the English language. All copyrights which may be issued or
applied for with respect to such sales aids, or any
translations thereof, shall be issued or applied for in the
name of Company, and shall be the sole property of Company.
15. International Retail Merchant shall not have authority to
represent Company in International Retail Merchant's Country
or elsewhere as an agent, nor to bind Company to any contract,
representation, understanding, act or deed concerning Company
or any products sold by it. Neither the making of this
Agreement, nor the performance of any part of the provisions
hereof shall be construed to constitute International Retail
Merchant as an agent or representative of Company for any
purpose, nor shall this Agreement be deemed to establish a
joint venture or partnership between the parties. All sales
of merchandise by International Retail Merchant shall be for
its own account, it being understood that International Retail
Merchant is an independent business reselling products which
are purchased from Company.
16. International Retail Merchant agrees to return no merchandise
to Company without the written consent of Company first being
obtained.
17. (a) Company hereby grants International Retail Merchant
a non-exclusive, royalty-free license to use the service
marks "ACE" and "ACE HARDWARE""Ace" and "Ace Hardware"
(hereinafter "the Xxxx") in connection with the retail
hardware services offered and performed by International
Retail Merchant at the location(s) set forth on Exhibit A
only, and in connection with private label merchandise
purchased from Company for resale from the said
location(s). Such use of the Xxxx by International
Retail Merchant shall commence within one (1) year of the
effective date of this Agreement by displaying a Company
exterior store identification sign in compliance with the
requirements set forth in the Company Identity Standards
Manual.
(b) Company does not guarantee, warrant or offer any patent
or trademark protection to International Retail Merchant
on any of the products purchased by International Retail
Merchant from Company, and Company shall not be obligated
or liable in any way to indemnify International Retail
Merchant for any actual or alleged violations of patent
or patent rights, or trademark, service xxxx, trade name
or other intellectual property rights arising from or in
connection with the sale or use of any products, programs
or services purchased from Company by International
Retail Merchant or the exercise of any rights granted
hereunder.
(c) International Retail Merchant agrees to use the Xxxx only
in the form, manner, and logotype previously approved by
Company in writing and to comply with all guidelines and
instructions from time to time issued by Company with
respect thereto. All use of the Xxxx shall clearly and
conspicuously disclose that the Xxxx is owned by, or used
under license from Company.
(d) The quality of the services in connection with which the
Xxxx is used shall be of high quality as determined by
Company, and otherwise in accordance with such
specifications as Company may, from time to time,
prescribe.
(e) In no event shall the license herein granted be construed
as authorizing International Retail Merchant to use any
marks, trade names, slogans or logos of Company other
than as specifically licensed hereunder. International
Retail Merchant agrees that it shall not place or cause
to be placed the names "ACE" or "ACE"Ace" or "Ace
Hardware" on any merchandise without the Company's prior
written consent.
(f) International Retail Merchant agrees not to adapt or vary
the Xxxx or create or use any trademark, service marks,
trade names, symbols or logos that are confusingly
similar to those owned by Company, whether or not
licensed hereunder. International Retail Merchant also
agrees to at no time use the Xxxx in association or
conjunction with any trade name, trademark or service
xxxx owned or registered by a competitor of Company.
(g) Company expressly disclaims any and all liability to
International Retail Merchant or to any third party and
International Retail Merchant agrees to indemnify and to
hold Company harmless from and against any claims, suits,
losses, damages or expenses with respect to any actual or
alleged invalidity of the Xxxx or in connection with
International Retail Merchant's use of the Xxxx, or the
use of the services furnished by International Retail
Merchant in connection therewith.
18. International Retail Merchant acknowledges Company's ownership
of the Xxxx, and agrees that it will not do or permit any act to be
done which may impair such ownership. International Retail
Merchant agrees that all use of the Xxxx by it shall inure to the
benefit of, and be on behalf of, Company. International Retail
Merchant agrees that it will never in any manner represent that it
has an ownership interest in the Xxxx, or contest the ownership of
the Xxxx by Company, or attack the validity of the license herein
granted. International Retail Merchant agrees to execute, upon
request, such documents as Company may deem necessary or desirable
to acknowledge Company's ownership of the Xxxx, or to register,
retain, enforce or defend the Xxxx.
(i) International Retail Merchant agrees to notify Company of
any unauthorized use of the Xxxx by others, as promptly
as such use may come to International Retail Merchant's
attention. Company shall have the sole and exclusive
right, but not the obligation, to register or renew the
Xxxx or to commence infringement, opposition or other
proceedings with respect thereto.
(j) International Retail Merchant agrees at no time to adopt
or use, or authorize, permit or condone the use by any
other person or firm, of any name, word or xxxx which is
similar to or likely to be confused with, any trade name,
trademark or service xxxx belonging to or registered by
Company, whether or not licensed hereunder, (it being
understood and agreed that all variations or adaptations
of any trademarks or service marks owned or registered by
Company shall be the exclusive property of Company and
that Company shall have the exclusive right to register
the same and to license the use thereof).
19. International Retail Merchant agrees to keep in strict
confidence all checklists, microfiche films, videograms,
bulletins, catalogs, price lists, order forms and other
documents and information furnished by Company with respect to
the merchandise, programs and services which are available
from Company, and at no time to divulge or display any of the
foregoing, other than in connection with International Retail
Merchant's transactions with Company or for the purpose of
promoting International Retail Merchant's business.
International Retail Merchant agrees to comply with all policy
statements and guidelines communicated from time to time by
Company with respect to any confidential information belonging
to Company and at no time to authorize, permit or condone the
use of any of the foregoing by any other person or firm.
20. Upon the termination hereof, International Retail Merchant
agrees to immediately return to Company at International
Retail Merchant's sole expense, all such documents and items
and any equipment related thereto which have been provided by
Company. International Retail Merchant further agrees, upon
the termination hereof, to immediately cease and desist from
all use of the Xxxx in any way, to apply to the appropriate
governmental authorities in the Country to cancel the
recording, if any, of this Agreement, to remove all signage
bearing the Xxxx, and to destroy all printed or visual
materials of any sort bearing the Xxxx.
21. International Retail Merchant agrees to refrain from making
any representation that a product purchased from Company can
be used for a purpose or in a manner not intended by its
manufacturer, and International Retail Merchant assumes full
responsibility for, and hereby indemnifies Company and holds
it harmless from and against any and all claims asserted
against Company (a) which are based upon or arise out of any
such representation or (b) which are based upon or arise out
of any act performed by International Retail Merchant to
assist International Retail Merchant's customer in using a
product purchased from Company, or to alter, install, repair
or service any product purchased by International Retail
Merchant from Company.
22. International Retail Merchant further agrees to indemnify
Company and hold it harmless from and against any and all
claims for (a) charges asserted against Company by another
party for services provided by such party to International
Retail Merchant or for merchandise shipped by another party at
International Retail Merchant's request and (b) damages
demanded from Company in connection with any occurrence
concerning which it is alleged that International Retail
Merchant functioned as an agent of the Company.
23. International Retail Merchant further agrees to indemnify
Company and hold it harmless for the amount of all attorneys'
fees and expenses reasonably incurred by it in:
(a) enforcing compliance by International Retail Merchant
with the provisions of this Agreement or enforcing
collection of any past due balances owing by
International Retail Merchant on Company's billing
statements,
(b) defending any claims asserted against Company which are
based upon or arise out of any occurrence of the types
described in Paragraphs 13, 18, 19, 20 and 21 hereof or
in attempting to avoid or mitigate any losses to Company
in connection therewith, and
(c) in protecting any security interest of Company granted in
any property of International Retail Merchant in the
event that International Retail Merchant becomes a debtor
in bankruptcy or insolvency proceedings.
24. International Retail Merchant agrees to notify Company in
writing:
(a) prior to or concurrently with the effective date thereof,
as to any change in the legal form of ownership of
International Retail Merchant (such as, for example, a
change from individual or partnership form to corporate
form, or vice versa), it being understood that no such
change will operate to release from liability to Company
any party previously responsible for International Retail
Merchant's obligations hereunder without the written
consent of Company,
(b) as promptly as feasible, as to the death of any partner
having an interest in any partnership by which
International Retail Merchant is owned or the death of
any stockholder owning 50% or more of the voting stock of
International Retail Merchant if International Retail
Merchant is incorporated, or
(c) not less then 30 days prior to the closing of the trans-
action, as to the name and address of each proposed buyer
or transferee in any proposed sale, assignment or
transfer of 50% or more of the ownership interest(s) of
International Retail Merchant or of the business operated
at the location of International Retail Merchant's
business indicated hereinabove or of all of the capital
stock (both voting and non-voting) owned by the holder(s)
in a corporation owning the business operated at such
location if 50% or more of the outstanding voting stock
of such corporation is owned by such holder(s).
25. International Retail Merchant agrees to furnish Company with
annual financial statement of their year end and such current
financial statements and related information, including
purchase and sales figures, concerning International Retail
Merchant's business as shall reasonably be requested from time
to time by Company.
26. If requested at any time by Company, International Retail
Merchant shall maintain at International Retail Merchant's
sole expense with an insurance carrier or carriers approved by
Company a policy or policies of liability insurance with a
coverage limit of not less than U.S.$5,000,000.00 per
occurrence with respect to any claims for damages to property,
personal injuries or wrongful death which are based upon or
arise out of any occurrence concerning which it is alleged
that International Retail Merchant functioned as an agent of
Company, or that International Retail Merchant, Company, or
either of them is otherwise liable therefor, except for claims
based on or arising out of the sole negligence of Company.
Company shall be named as an additional insured party in each
such policy and Company shall be furnished with a certificate
of insurance evidencing such coverages as are required herein.
27. International Retail Merchant shall, at International Retail
Merchant's sole expense, take such steps as may be required in
International Retail Merchant's Country to satisfy any laws or
requirements with respect to declaring, notarizing, filing,
recording, or otherwise rendering this Agreement valid.
28. This Agreement shall be for an initial term of one (1) year,
commencing with the date of acceptance hereof by Company, and
shall thereafter be automatically renewed for successive one
(1) year periods unless written notice of termination is given
by either party no later than thirty (30) days prior to the
expiration of the then current term; provided, however, that
if a longer period of advance notice is required by any
applicable statute, rule, or regulation, then such notice
shall comply with such requirement. Notwithstanding the
foregoing, Company reserves the right to terminate this
Agreement upon three (3) days' advance written notice to
International Retail Merchant in the event that any payment
owing to Company for merchandise or services supplied to
International Retail Merchant is not received within fifteen
(l5) days after the date on which such payment is due.
Further, notwithstanding the foregoing, the closing down of
the business operated at International Retail Merchant's
location set forth hereinabove shall automatically cause this
Agreement to be terminated unless such business is moved to
another location to which Company consents. This Agreement
shall also immediately terminate upon the giving of written
notice by Company to International Retail Merchant at any time
after International Retail Merchant becomes bankrupt,
insolvent or makes an assignment for the benefit of creditors.
This Agreement shall also immediately terminate upon written
notice of termination by Company in the event that
International Retail Merchant is in breach of any provision
hereof and fails to cure such breach following written notice
of breach by Company and a reasonable period, which need not
exceed thirty (30) days from the date of mailing of such
notice, to cure such breach.
29. Notwithstanding anything herein to the contrary, if
International Retail Merchant is an individual sole
proprietor, this Agreement shall automatically terminate upon
the death of such individual. If International Retail
Merchant is a partnership, this Agreement shall automatically
terminate upon the death of a member of such partnership.
However, with Company's approval (which approval shall not be
unreasonably withheld), such business may continue to be
operated under this Agreement by the estate of such deceased
individual sole proprietor or by the person(s) to whom
ownership of said business is to be distributed by such
deceased individual's estate or by the person(s) or
partnership succeeding to the interest of such deceased member
of a partnership owning the business.
30. If International Retail Merchant is a corporation, this
Agreement shall automatically terminate upon the consummation
of any sale or transfer of all of the shares of capital stock
(both voting and non-voting) of such corporation held by the
holder or holders of 50% or more of its outstanding voting
stock.
31. Any provision of this Agreement, with regard to which the
right of Company to change the terms thereof has been
reserved, shall be deemed to have been modified as of the
effective date set forth in an advance written notice of such
change given by Company to International Retail Merchant.
36. 32. If any amendment hereto is proposed by Company during the
term hereof, then this Agreement shall be deemed to have been
modified effective as of the date specified in a sixty (60) day
advance written notice thereof given by Company to International
Retail Merchant in order to place the Agreement in conformity with
such amendment. International Retail Merchant's act of continuing
to do business with Company after the effective date of such
amendment shall be deemed to constitute International Retail
Merchant's consent to be bound thereby. If International Retail
Merchant does not consent to be bound by such amendment, then
International Retail Merchant may terminate this
Agreement by written notice thereof to Company, which notice must
be received by Company on or prior to the effective date of
the proposed amendment.
33. The signing of this Agreement by International Retail Merchant
constitutes an application only, and this Agreement shall not
be effective unless and until it has been duly accepted and
countersigned by Company at its principal office in Illinois.
All orders for merchandise, supplies and services placed by
International Retail Merchant pursuant to this Agreement shall
be transmitted to Company at said office, and International
Retail Merchant shall be deemed to have consented and agreed
that:
(a) all provisions of this Agreement shall be interpreted and
construed in accordance with the substantive laws of the
State of Illinois, U.S.A.; and
(b) any suit brought by Company against International Retail
Merchant to enforce any provision of this Agreement or
seeking any relief in connection with or arising out of
the relationship between Company and International Retail
Merchant may be instituted in an appropriate state or
federal court in the State of Illinois and International
Retail Merchant hereby expressly submits to the
jurisdiction of said court for purposes of the
enforcement of this Agreement and all matters related to
this Agreement.
34. Neither this Agreement nor any interest of International
Retail Merchant herein shall be assignable or subject to transfer
or encumbrance by International Retail Merchant at any time without
Company's prior written consent.
35. Except as otherwise specifically provided, all notices
required or permitted to be given hereunder by one party to
the other party shall be effective if personally delivered or
airmailed or sent by telex or telefax to the addresses set
forth hereinabove or to such other address as either party
designates to the other in writing for the receipt of notices
hereunder, with receipt deemed within fourteen (14) days after
airmailing or within two (2) days after sending by telex or
telefax.
36. The English version of this Agreement shall govern in the
event of any variations between the English version and any
translation hereof, and shall be used exclusively in any
arbitration, legal proceeding or suit hereunder.
37. 36. The failure of either party to enforce its rights under
any provision hereof shall not be deemed a waiver of such
rights for purposes of future enforcement. No modification of
this Agreement or any waiver of rights hereunder shall be of
any force and effect unless in writing and signed by the party
against whom enforcement of such waiver or modification is
sought.
38. The terms and conditions set forth in any purchase order or
other document shall be effective only to the extent that the
same shall not be inconsistent with the terms and conditions
hereof.
39. Any provision or provisions hereof, which contravene the law
of any state or country in which this Agreement is effective,
shall, in such state or country, to the extent of such
contravention of law, be deemed separable, and shall not
impair the validity of any other term, condition, or provision
hereof.
IN WITNESS WHEREOF, this Agreement has been executed on this
_________ day of _________________________, 20_____, by the
person(s) signing it for International Retail Merchant, whose
authority to sign shall be deemed to have been duly authorized by
International Retail Merchant.
International Retail Merchant:
_____________________________________
[Corporate or Partnership Name]
(COMPANY SEAL) By:__________________________________
Printed name:________________________
Title:_______________________________
(If International Retail Merchant is
a corporation, the corporate name
should be written hereon followed by
the signature and title of an
appropriate officer. If
International Retail Merchant is a
partnership, the partnership name
should be written hereon followed by
the signatures of all partners.)
ACCEPTED for Ace Hardware
Corporation at Oak Brook,
Illinois this _____ day
of ________________, 20____.
By:________________________
________________________
(Title of Officer)
(CORPORATE SEAL)
ACE HARDWARE CORPORATION INTERNATIONAL RETAIL MERCHANT AGREEMENT
EXHIBIT A
The following is(are) the retail business location(s) applicable to
the International Retail Merchant Agreement:
DATE OF
NAME OF BUSINESS ADDRESS (LOCATION)
AFFILIATION
1.
___________________________________________________________________
____________________
2.
___________________________________________________________________
____________________
3.
___________________________________________________________________
____________________
4.
___________________________________________________________________
____________________
5.
___________________________________________________________________
____________________
International Retail Merchant:
________________________________
_________
[Corporate or Partnership
Name]
(COMPANY SEAL)
By:____________________________________(COMPANY SEAL)
By:_____________________________
__________
Printed
Name:______________________________
Title:__________________________
___________
(If International Retail
Merchant is a corporation, the
corporate name should be written
hereon followed by the signature
and title of an appropriate
officer. If International
Retail Merchant is a
partnership, the partnership
name should be written hereon
followed by the signatures of
all partners.)
ACCEPTED for Ace Hardware Corporation
at Oak Brook, Illinois this ____ day
of __________________, 20____.
By:___________________________________
___________________________________
(Title of Officer)
(CORPORATE SEAL)
