This agreement made as of the 1st day of October, 1997, by and between NAD
Electronics of America, a division of Lenbrook America, L.L.C., a Delaware
L.L.C. qualified in Massachusetts having our principal place of business at 0000
Xxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxxx, XXX (hereinafter referred to as "NAD
Electronics") and:
Legal Name: __________________________________________________________________
(hereinafter referred to as "Dealer").
DBA (Trademark): _____________________________________________________________
Principal Address: ___________________________________________________________
Retail Premises: _____________________________________________________________
(For additional locations please complete Schedule A)
Telephone: _______________________ Fax: ___________________
Federal EIN# _____________________
1. APPOINTMENT OF DEALER:
The Company hereby appoints the Dealer, and the Dealer hereby accepts
such appointment as a retail dealer, upon the terms and conditions
hereinafter set forth, for, NAD Products as indicated on the attached
Schedules.
2. DEALER RESPONSIBILITIES:
(a) The Dealer shall devote best efforts to the retail sale of NAD
Products.
(b) The Dealer shall maintain a reasonable inventory of NAD Products
and adequate facilities for the storage and maintenance thereof.
(c) The Dealer shall provide adequate facilities for the purpose of
displaying and demonstrating the Products. If, in the opinion of
the NAD Electronics, such facilities detract from or interfere
with the demonstrated performance of the Products, NAD Electronics
shall have the right to require the Dealer to alter such
facilities.
(d) The Dealer shall maintain a complete record of its sales of the
Products, including date of sale, name and model number of the
Products sold, and the name and address of each purchaser, and
shall furnish such information to NAD Electronics within a
reasonable time after it is requested.
(e) The Dealer shall provide a local warranty service center for the
servicing of Products which shall be either a facility at the
dealer's office or a service facility operated by a third party.
No service facility shall be used unless NAD Electronics has
approved the use of said service facility in writing.
(f) The Dealer shall immediately notify NAD Electronics in writing of
any claims for freight related damages to any Product of which the
Dealer has knowledge.
(g) The Dealer shall employ a reasonable number of sales personnel
who, in the opinion of NAD Electronics, are (I) knowledgeable and
experienced with respect to sound reproduction in general, (II)
familiar with the NAD Products and (III) able to demonstrate the
working and uses of NAD Products to the consuming public.
(h) If, in the opinion of NAD Electronics it is necessary, the Dealer
shall maintain a training program for its sales personnel in
connection with the demonstration, use and sale of NAD Products.
(i) The Dealer shall comply with all policies and programs of NAD
Electronics which may be issued at any time in connection with the
demonstration and sale of NAD Products.
(j) The Dealer shall purchase and display at all times during the term
of this agreement, in all its locations the NAD Electronics'
Products detailed on the Schedules which are attached to and made
part of this Agreement.
(k) The Dealer must purchase a minimum of $20,000 in NAD Products, non
inclusive of parts, during the course of this Agreement to
maintain status as an authorized NAD Electronics Dealer.
(l) The Dealer must initially purchase a representative sampling of
NAD products.
3. PRICES AND TERMS:
NAD Electronics shall sell Products to the Dealer at the prices
specified in the attached Current Dealer Price Sheet (Schedule "B"), with
respect to the Products, as such schedule is in effect at the date of the
Dealer's order for such Products. All Prices shall be F.O.B. point of shipment
by NAD Electronics. Title and risk of loss or damage to the Products shall pass
to the Dealer upon delivery of such Products to the carrier at such warehouse.
NAD Electronics may amend such price schedule at any time by notice to the
Dealer specifying the effective date of the price change (which date may be the
date of such notice). NAD Electronics shall have no liability to the dealer in
connection with the Dealers inventory of unsold Products as the effective date
of such amendment. Price amendments shall apply to all Products shipped
subsequent to the effective dates of the amendment, unless otherwise allowed by
NAD Electronics. There shall be no co-operative advertising arrangements between
NAD Electronics and the Dealer except as agreed in writing by the parties.
4. DELIVERY OF PRODUCTS:
(a) All Orders for Products placed by the Dealer with NAD Electronics
and accepted by NAD Electronics shall be filled as soon as
practicable. Not withstanding the foregoing, however, delivery
dates as set forth in any purchase order for confirmation thereof
shall be deemed to be estimated only, and NAD Electronics shall
not be liable for any losses or damages, direct, or indirect,
special, consequential, incidental or otherwise, that may arise
out of any failure or delay in the delivery of any NAD Products
resulting from any cause or reason whatsoever, whether or not
caused by NAD Electronics.
(b) NAD Electronics shall have the right, at any time to effect
changes in, or to discontinue the manufacture of, any of its
products, as well as any component parts thereof or accessories
thereto, without incurring any liability to the Dealer.
(c) NAD Electronics shall have the right to allocate among its dealers
inventory with respect to any product as it may, in its sole
discretion, from time to time determine.
(d) NAD Electronics has the right (I) t refuse to accept any order
placed by the Dealer, (II0 cancel any purchase order previously
placed by the Dealer or (III) refuse or delay shipment of Products
pursuant to any such purchase order, in each case immediately upon
the breach by the Dealer to meet any payment schedules, credit or
other financial requirement which may, from time to time, be
established by NAD Electronics.
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5. RESTRICTIONS ON SALES BY THE DEALER:
(a) The Dealer shall not offer Products for sale except at the retail
location set forth previously or, if applicable, at additional
retail locations set forth in Schedule "A" which shall be attached
and made part of this Agreement or from such other locations as
may be approved in advance by NAD Electronics in writing.
(b) The Dealer shall refrain from any mail order telephone order
techniques in the marketing or sale of NAD Products.
(c) The Dealer shall not sell the Products other than to retail
customers, except that the Dealer may sell Products to other
authorized Dealers provided that NAD Electronics has given its
prior consent to any such sales.
(d) The Dealer shall refrain from any Internet marketing unless
approved by NAD Electronics in writing.
6. TERMINATION:
(a) This Agreement shall become effective upon execution by both NAD
Electronics and the Dealer and shall continue in full force and
effect until December 31, 1998, on which date this Agreement shall
terminate unless extended in writing by both parties hereto.
(b) This Agreement may also be terminated at any other time upon not
less than 30 days written notice by one party hereto to the other,
in which event this Agreement shall terminate on the date set
forth in such notice.
(c) This Agreement shall terminate forthwith in the event that either
party shall become insolvent, or enter into liquidation or
receivership or any procedure for the settlement of debts,
including voluntary or involuntary bankruptcy proceedings.
(d) NAD Electronics shall have the right to terminate this agreement
at any time in the event of a breach of this Agreement by the
Dealer and the failure of the Dealer to cure such breach within 30
days after notice thereof from NAD Electronics, provided, however,
that this Agreement shall be terminated immediately, upon notice
from NAD Electronics to the Dealer, in the event that (I) the
Dealer presents checks or other forms of payment which are
returned to NAD Electronics for lack of sufficient funds or
dishonored for any other reason, (II) The Dealer fails to meet any
payment schedule, credit or other financial requirements which may
from time to time be established by NAD Electronics, or (III) the
Dealer shall commit any breach of the provisions of Section 5 of
this Agreement, including without limitation any sale of Products
by the Dealer other than to retail customers without consent of
NAD Electronics.
(e) No termination of this Agreement shall release either party from
any financial obligation that may be accrued or owed to other
party (whether then or thereafter due to such other party) as of
the termination date. Notwithstanding the foregoing, neither party
shall be liable to the other party solely by reason of the
termination of this Agreement for any expenditures, investments,
commitments or any losses or damages of any kind, whether direct,
indirect, special consequential, incidental or otherwise,
sustained by reason of such termination. NAD Electronics shall not
be required to fill pending orders if this agreement is terminated
by reasons of a breach by the Dealer.
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7. WARRANTY:
NAD Electronics' sole warranty and representation to the Dealer with
respect to any Products shall be set forth in the warranty card included with
such Product. In the event any Products are not as warranted to the Dealer, then
NAD Electronics' sole obligation shall be to repair or replace, at its option,
such defective Products, as more particularly set forth in such warranty cards.
In no event and under no circumstances shall NAD Electronics be liable to the
Dealer or to any other individual or entity for any indirect, special,
consequential or incidental losses or damages including, without limitation,
lost profits. EXCEPT AS EXPRESSLY SET FORTH OR REFERRED TO IN THIS AGREEMENT,
NAD ELECTRONICS MAKES NO WARRANTIES TO THE DEALER, EITHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
8. REPURCHASE OPTION:
The Dealer hereby grants to NAD Electronics an option, exercisable by
notice given at any time within 30 days following any termination of this
Agreement, to repurchase from the Dealer all or any party of the Dealers
inventory of Products, at the prices set forth in the prevailing dealer price
schedule for the price paid therefore by the Dealer, whichever shall be the
lesser. Payment of the repurchase price shall be made by NAD Electronics to the
Dealer, whichever shall be the lesser. Payment of the repurchase price shall be
made by NAD Electronics either by (I) the issuance to the Dealer of a credit
equal to the repurchase price, to be applied to the reduction of the
indebtedness of the Dealer then owing NAD Electronics, or (II) if the repurchase
price shall exceed the then current indebtedness of the Dealer to NAD
Electronics, by payment of such excess to the Dealer within 20 days after the
receipt by NAD Electronics returned Products.
9. CONDUCT AND RELATIONSHIP OF DEALER:
(a) The Dealer shall make no warranties or representations with
respect to any of the Products, except as such may be expressly
approved in writing by NAD Electronics, and shall at no time
engage in any trade practices with respect to NAD Electronics any
of the Products which, in the opinion of NAD Electronics may be
deemed to be unfair trade practices.
(b) The Dealer is authorized to hold itself to the public as an
"authorized Dealer" for NAD Electronics in order to promote the
sale of NAD Products and is authorized to use any trademarks,
slogans, labels, and designs owned by NAD Electronics and used by
it in connection with advertising, displaying and otherwise
promoting the sale of the Products under the rules and regulations
laid down from to time by NAD Electronics. It is understood and
agreed that all right, title and interest in and to said
trademarks, tradenames, slogans, labels, and designs, and the
goodwill pertaining thereto, are reserved by and shall at all
times vest and remain in NAD Electronics, and the Dealer will not
contest the validity of the slogans, labels and designs. Upon the
termination of this Agreement for any reason the Dealer shall
immediately cease to represent itself as a NAD Electronics Dealer,
shall otherwise desist from all conduct or representations which,
in the opinion of NAD Electronics, might imply or indicate that
the Dealer is authorized by NAD Electronics to sell the Products
and shall have no rights whatsoever to any use of the trademarks,
tradenames, slogans, labels and design.
10. INDEMNIFICATION:
The Dealer agrees to indemnify NAD Electronics and to hold it harmless
from and against any and all liability, damage or expense (including costs and
attorney's fees) arising out of or relating to the acts or omissions of the
Dealer, its employees or agents, in connection with the duties of the Dealer
under this Agreement, or incurred by NAD Electronics in enforcing any provision
of this Agreement.
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11. NON-ASSIGNABILITY:
No right or interest of the Dealer hereunder arising out of this
Agreement may be assigned or otherwise transferred, whether by operation of law
or otherwise, without the prior written consent of NAD Electronics, and no
delegation of any obligation owed by the Dealer hereunder shall be made without
prior written consent of NAD Electronics. Any such attempted assignment, other
transfer or delegation shall be void for all purposes.
12. NOTICES:
All notices and other communications required or permitted hereunder
shall be in writing and shall be deemed to have been given or made when
personally delivered or sent by certified mail, return receipt requested,
postage prepaid, to the addressee thereof at its address set forth on Page 1 of
this Agreement, or such other address as either party may hereafter communicate
to the other party hereto in like manner.
13. SEVERABILITY:
The invalidity or unenforceability of any provisions of this Agreement
shall not effect the validity or enforceability of the remaining provisions
hereof, but this Agreement shall be construed as if not containing the
provisions held invalid or unenforceable in the jurisdiction in which so held,
and the remaining provisions of this agreement shall remain in full force and
effect.
14. CONSTRUCTION:
The validity, construction and performance of this Agreement
shall be governed by the law of the Commonwealth of Massachusetts in
the United States of America. Any controversy, dispute or claim arising
out of or relating to this Agreement or the breach of it shall be
settled by binding arbitration, to be conducted in English in the
Commonwealth of Massachusetts, United States of America in accordance
with the UNCITRAL Arbitration Rules in effect on the date of this
contract. The appointing authority shall be the American Arbitration
Association. The case shall be administered by the American Arbitration
Association in accordance with its "Procedures for the Cases under the
UNCITRAL Arbitration Rules." The award of the arbitrators shall be final
and biding on the parties, and judgment thereon may be entered in any
court having jurisdiction thereof.
15. MISCELLANEOUS:
(a) Except for co-operative advertising agreements, if any, entered
into as contemplated in section 3, this Agreement contains the
entire understanding of the parties with respect to its subject
matter and no amendment or waiver of any provision hereof shall be
valid unless in writing, signed by each of the parties hereto.
(b) This Agreement supersedes any and all prior agreements, whether
written or oral, entered into between the Dealer and NAD
Electronics with respect to the subject matter hereof, except that
nothing herein contained shall be construed as intended to relieve
or release either party from any obligation which such party may
owe to the other pursuant to any such prior Agreement.
(c) No waiver by either party of any breach hereof shall be deemed a
waiver of any preceding or succeeding the breach. No failure by
either party to exercise any right or privilege hereunder shall be
deemed a waiver of such parties right to exercise the sale or any
other right or privilege hereunder to any subsequent time to
times.
If there is any conflict between the terms and conditions of this
Agreement and the terms and conditions of any purchase order given by the
Dealer and accepted by NAD Electronics or of any confirmation of any purchase
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order given by NAD Electronics, then in such event, the terms
and conditions of this agreement shall prevail and shall be conclusively binding
upon both the Dealer and NAD Electronics.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
NAD ELECTRONICS: DEALER:
NAD Electronics of America
A Division of Lenbrook America, L.L.C. _________________________________
LEGAL NAME (Please Type or Print)
________________________ _________________________________
Xxxxxx X. Xxxxx BY (Authorized Signature)
President
_________________________________
TITLE
DATE: __________________ DATE: ___________________________
WITNESS:
_________________________________
NAD REPRESENTATIVE (Please Type
or Print)
______________________________ _________________________________
Xxxxxxx X. Xxxxxxx BY: (Signature)
Director of Sales and Marketing
_________________________________
TITLE (Please Type of Print)
DATE: _______________________ DATE: ___________________________
o If the Dealer is a corporation, indicate the office of the person signing the
Agreement on behalf of the corporation. If the Dealer is a partnership, the
same should be signed by a partner, who should indicate by use of the word
"Partner". If the Dealer is a proprietorship, the same should be indicated by
use of the title "Sole Proprietor".
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