ASSIX STANDARD AGENCY AGREEMENT
THIS ASSIX STANDARD AGENCY AGREEMENT (the "Agreement") is made
and
entered into as of this 31st day of January, 1994 (the "Effective
Date"), by and between ASSIX
INTERNATIONAL, INC., a Delaware corporation ("Assix"), and TIRES BY
WHEEL WORKS,
a California corporation ("Agent").
RECITALS
A. Assix has created a nationally recognized brand name
technically superior wheel
balance that brings the tire/wheel assembly in line with OEM
specifications.
B. Assix has developed and is the owner of a service program
of methods and processes
for wheel balancing (the "Program") and a training and
certification program for personnel utilizing
the Program.
C. Assix has valuable proprietary rights, including patents,
trademarks, service marks,
trade names, or trade dress, existing or arising at common law or
by statute, whether of not
registered or applied for, logos (collectively, the "Marks"),
copyrights, confidential information,
and know how embodied in and/or pertaining to the Program and the
materials and equipment used
therewith.
D. Assix had decided to offer tire/wheel assembly balancing
services ("wheel balancing")
to customers through the use of agents.
E. Agent is engaged in business as an automotive tire
retailer and is willing to be engaged
by Assix as an agent offering wheel balancing on behalf of the
relationship between Assix and
Wheel Works to customers under the Program.
F. Subject to the terms of this Agreement, the parties have
agreed that Assix will allow
Agent to utilize the Program as its agent and will provide Agent
with the Program and the
marketing and technical advice and services necessary to fully
implement the Program.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and of
other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged,
Assix and Agent agree as follows:
1. RECITALS AND EXHIBITS.
The parties acknowledged and agree that the recitals are
true and correct, and that by
this reference they are hereby incorporated into this Agreement.
In addition, any exhibits referred
to in this Agreement by this reference are hereby incorporated into
this Agreement.
2. RELATIONSHIP OF THE PARTIES.
The relationship created by this Agreement is that of
principal and agent. Subject to
the terms of this Agreement, Agent shall represent itself to be the
legal agent of Assix and shall
have the right and authority to bind Assix for purposes of the
commitments made by Assix for the
benefit of wheel balancing customers. Agent shall not have, nor
shall it hold itself out as having,
the power to make contracts in the name of, or binding on, Assix,
to pledge Assix's credit, or to
extend credit in Assix's name. Agent agrees to indemnify and hold
Assix harmless in the event
that any claims are made based upon any assertions of authority by
Agent to do any of the
aforesaid acts unless written authority has been expressed in
advance by Assix.
It is further understood and agreed that no individuals
employed by Agent shall be
considered to be employees of Assix, and Agents agrees this it
shall be liable for any and all
expenses or claims of whatsoever nature or kind arising against
either Agent or Assix because of
the acts of any of Agent's employees, agents, or servants, and
indemnify, defend, and hold
harmless Assix from any liability thereon.
Agent is not and shall not be considered to be a
franchisee of Assix for any
purpose. Assix does not represent or warrant the commercial or
financial success of Agent's
business.
3. ASSIX OBLIGATIONS.
Assix hereby covenants and agrees to:
(a) Provide Agent with access to and use of the items listed
in Exhibit B, which are
necessary to implement the Program at Agent's location(s) (the
"Service Property");
(b) Allow Agent to use the Marks which accompany the Program
to the extent and in a
manner reasonably determined by Assix in order to effectively
market the Program at Agent's
location(s), provided, however, the Marks may be used by Agent
solely in conjunction with the
Program;
(c) Provide Agent's designated employees with the training
and technical advice necessary
to utilize the Program;
(d) Provide Agent with the training, marketing advice, and
marketing materials deemed
necessary by Assix in order for Agent to effectively market and
promote the Program;
(e) Keep Agent informed of any changes or advances in
Program;
(f) Keep the Program and the Service Property in proper
working order during the term of
this Agreement, including the repair and replacement of Service
Property; provided, however, that
Assix reserves the right to determine the necessity for
replacements;
(g) Maintain the quality and performance characteristics of
the Service Property supplied to
Agent hereunder and make additions, deletions, and modifications
from time to time at Assix's sole
discretion based upon its determination as to the materials and
services that will best enable Agent
and Assix to benefit from the rights granted in this Agreement;
(h) Deliver the Service Property to the ground floor entrance
of Agent's locations and
connect the Service Property in the place of installation. Upon
the termination of this Agreement,
in whole or in part, Assix shall disconnect the Service Property,
as appropriate, and after it is
moved to the ground floor entrance of Agent's property by Agent,
remove the Service Property at
no charge to the Agent. In the event of termination of this
Agreement by Agent, Agent
shall reimburse Assix a final fee for the cost of removal, freight,
crating, and shipping of the
Service Property in an amount equal to one Monthly Program Fee per
Service Property unit;
(i) Obtain and pay all additional insurance (attributable
solely to the incremental risk
associated with Agent's implementation of the Program), additional
necessary licenses, and all
other additional permits required to permit Agent to offer the
Program at Agent's location(s).
Agent shall notify Assix promptly of any inspections conducted by
licensing authorities and the
results thereof; and
(j) Bear the risk of loss for defective equipment.
(k) The assigned Assix Account Manager will be compensated in
accordance with standard
bonus programs designed to provide consistent incentive for
achieving Agent profitability above
that of stated goals and objectives.
4. AGENT OBLIGATIONS.
Agent shall utilize the Program, as described in Exhibit
A, the Service Property, as
described in Exhibit B, and the trade names, trademarks, and
service marks of Assix (the "Marks")
strictly in accordance with the written instructions provided by
Assix and solely for the purpose of
implementing the Program on behalf of Assix at its locations(s).
Notwithstanding anything
contained in this Agreement to the contrary, Agent shall:
(a) Obtain and maintain continuously so long as this
Agreement shall remain in effect, all
licenses, permits, and authorizations necessary to Agent's
implementation of the Program;
(b) Utilize the Marks strictly in connection with the
prescribed marketing, sale, and delivery
of all services under the Program, in accordance with Exhibit A.
Specifically, Agent shall: (1) not
impair, by act of by omission, the value of the Marks, whether
registered or not; (2) use only the
Marks designated by Assix in connection with the program to include
special arrangements
agreed by Assix and Agent, ie. (TPP, etc); (3) not use
trademarks, trade names, service marks,
symbols, slogans, logos, or the like that are confusingly similar
to the Marks; (4) use the Marks
only in the names and forms authorized by Assix; (5) not use the
Marks to incur any obligation or
indebtedness on behalf of either Agent or Assix; (6) not use the
Marks, or any word, name, or
other symbol tending to be confusingly similar to the Marks, or
part of Assix's corporate or other
legal name, including, without limitation, in the name of any bank
account of Agent, without the
express prior written approval of Assix; (7) not in any manner
represent that it has any ownership
interest in the Marks; (8) not at any time apply for any copyright,
trademark, or patent registration
or protection with respect to any products or materials associated
with the Program and the Service
Property; and (9) immediately cease any pre-existing use of the
Marks that conflicts with the terms
of this Agreement;
(c) Display the name "Assix" and the Marks prominently in
signage located at the Agent's
location(s) in a manner which shall be clearly visible to customers
and shall reasonably advertise
and promote the name "Assix" and the Marks in connection with such
business, subject, however,
at all times to the supervision of Assix. Every use of the name
"Assix" and the Marks in any
display, advertisement, promotion, or otherwise by Agent shall be
in a form and character
approved in advance, in writing, by a duly authorized officer of
Assix. Such utilization shall
include, without limitation, the display of signage provided by
Assix at each service location and
the display of the trade names, trademarks, or service marks on all
advertising and marketing
materials for the Program. The size and number of signage to be
displayed by Agent shall be
reasonable and consistent with the other signage for automotive
services at Agent's location(s),
subject to the inspection and control by Assix;
(d) Use due care in the possession of the Service Property
and the performance of services
under the Program, including ensuring that there is sufficient
coverage at its location(s) in time and
manpower by personnel trained and certified in the provision of
wheel balancing services under the
Program;
(e) Use good faith in implementing the Program. Agent shall
at all times while this
Agreement remains in effect exert its best efforts to sell the
wheel balancing services under the
Program and shall not make any disparaging comments regarding the
Program to customers or
potential customers of the Program. Such best efforts shall
include, without limitation, promoting
the wheel balancing services to all potential customers. Agent
further agrees to comply, on or
before three (3) months prior to each anniversary date of the
Effective Date of the Agreement, with
Assix's reasonable requests for forecasts of Agent's volume and
level of Program activity and to
contribute information required by Assix to properly plan for
Assix's support of the Program and
the Service Property for the next succeeding year;
(f) Provide suitable electrical service and compressed air
and maintain the space and
environmental requirements designated by Assix;
(g) Make no alterations to the Program, nor make any repairs
to the Service Property,
other that those specifically set forth in Exhibit A or in writing
by a duly authorized officer of
Assix;
(h) Obtain authorization from Assix prior to any movement of
any portion of the Service
Property;
(i) Provide an agent or employee to accompany Assix personnel
while such personnel are
training or advising Agent's personnel hereunder or servicing the
Program after Agent's normal
business hours;
(j) Maintain its business location(s) in an attractive,
clean, orderly, and sanitary condition;
(k) Charge such prices to retail customers for AccuBalance as
the agent and Assix shall
from time to time determine to be appropriate based on market
conditions. Such prices shall be
reviewed and communicated between the agent and Assix. These
should be calculated in the
following manner. A survey will be completed by the agent and
Assix to determine the market
competitive price of a standard wheel balance and agent shall
charge a minimum of between $3.50
and $5.00 over the standard wheel balance for AccuBalance.
(l) Prepare and forward to Assix Central, 000 X. Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxx, XX
00000, fax (000) 000-0000, monthly reports, on or before 10th day
of the next succeeding month,
setting forth, on a region basis listing stores individually: (i)
the number of tire/wheel assemblies
standard balanced and AccuBalanced by Agent and (ii) the number of
tires sold by Agent store,
for the month in question(Unless otherwise agreed by Assix and
Agent);
(m) Upon termination of this Agreement, allow Assix to remove
all of the Service Property
from Agent's premises, return the Service Property to Assix in good
repair, condition, and
working order (ordinary wear and tear excepted), and cease use of
all the Marks, copyrights, and
confidential information used hereunder;
(n) In the event that the agent is using the complimentary
product (TM6000), the agent will
provide wheel-balancers which meet industry standards for use in
connection with the Program.
Any new or replacement wheel-balancers which Agent subsequently
adds to its location(s) shall
have quality and performance characteristics at least as good as
the wheel-balancers currently
utilized by Agent;
(o) Make no statement indicating or implying that performance
of the wheel balancing
services are other than as indicated in Assix's brochures, sales
literature, or training materials, nor
convey any proprietary information to anyone outside of Agent's
organization;
(p) Make a reasonable effort to preserve the Marks against
dilution and promptly notify
Assix of any use, of which Agent has become aware, of marks which
may be confusingly similar
to the Marks; and
(q) Furnish to customers the warranty in the form set forth
in Exhibit A.
(r) In the event Assix sues Agent to enforce its rights under
Paragraph 4(b) of this
Agreement, the limitation on consequential damages found in
Paragraph 15 shall not apply. In
addition, Assix shall be entitled to recover from Agent its
reasonable attorneys fees' and costs and
all expenses incurred in accordance with Paragraph 19.
(s) Assix will honor confidentiality of all strategic
information supplied by Agent.
5. COMPENSATION TO AGENT.
As compensation to Agent for Agent's services provided to
Assix under this
Agreement, Assix agrees to compensate Agent in accordance with
Exhibit C.
6. INSURANCE.
(a) Assix, at its expense, hereby agrees and covenants
that it shall obtain and
maintain during the term of this Agreement the following policies
of insurance against claims,
demands, actions, liabilities, damages, losses, costs, and expenses
arising out of the subjects
covered by such policies of insurance:
(1) Worker's Compensation Insurance covering all costs,
benefits, and liability
under State Worker's Compensation and similar laws which may accrue
in favor of any person
employed by Assix, and Employer's Liability Insurance for Assix
employees with limits not less
than those required by the states in which Agent does business;
(2) Commercial General Liability Insurance covering
Products Liability,
Completed Operations, and Contractual Liability Insurance,
specifically endorsed to cover the
indemnity provisions of this Agreement, and coverage for Personal
Injury, with limits of not less
than $1,000,000.00 combined single limit for bodily injury and
property damage per occurrence.
To the extent that Agent provides additional general commercial
liability insurance, it shall do so at
its own expense.
(3) Motor Vehicle Liability Insurance covering all owned
vehicles used by Assix
employees in connection with Agent's operations under this
Agreement with limits of not less than
$500,000.00 combined single limit for bodily injury and property
damage per occurrence; and
(4) Excess Liability Insurance, including, without
limitation, coverage for Blanket
Contractual Liability, Products Liability, Completed Operations,
and Personal Injury Insurance
with limits of not less than $1,000,000.00.
(b) Agent, as its expense, hereby agrees and covenants
that is shall obtain and
maintain during the term of this Agreement the following policies
of insurance adequate to fully
protect Assix as well as Agent from and against any and all claims,
demand, actions, liabilities,
damages, losses, costs, and expenses arising out of the subjects
covered by such policies of
insurance:
(1) Workers' Compensation Insurance covering all costs,
benefits, and liability
under State Workers' Compensation and similar laws which may accrue
in favor of any person
employed by Agent, and Employer's Liability Insurance for Agent's
employees with limits not less
than those required by the states in which Agent does business;
(2) Commercial General Liability Insurance listing Agent
as the primary insured
and Assix as an additional insured, including, without limitation,
coverage for Products Liability,
Completed Operations, and Contractual Liability Insurance,
specifically endorsed to cover the
indemnity provisions of this Agreement, and coverage for Personal
Injury, with limits of not less
than $1,000,000.00 combined single limit for bodily injury and
property damage per occurrence.
To the extent that Assix provides additional general commercial
liability insurance, it shall do so at
its own expense.
(3) Motor Vehicle Liability Insurance with a
Non-Ownership and Hired Car
Liability Endorsement in the name of Agent covering all vehicles
used by Agent employees in
connection with Assix' operations under this Agreement with limits
of not less than $500,000.00
combined single limit for bodily injury and property damage per
occurrence; and
(4) Excess Liability Insurance, including, without
limitation, coverage for Blanket
Contractual Liability, Products Liability, Completed Operations,
and Personal Injury Insurance
with limits of not less than $1,000,000.00, listing Agent as the
primary insured and Assix as an
additional insured.
7. TITLE TO PROGRAM AND SERVICE PROPERTY.
Title to and ownership of the Program, including the
Marks, copyrights, and
confidential information, shall at all times remain in Assix.
Nothing contained in this Agreement shall be construed as
an assignment or
conveyance to Agent of any right, title, or interest in and to the
Marks, copyrights, confidential
information, and know-how. Agent's use of the Marks, copyrights,
and confidential information,
in any geographical area, including foreign countries, and in any
field for us shall not create any
ownership interest in Agent and shall inure to the benefit of
Assix.
All products, promotional advertising, packaging, and
instructional materials
utilized in connection with the Program and the Service Property
shall contain appropriate legends,
markings, and notices to give notice to the public of Assix's
right, title, and interest in the Marks,
copyrights, and confidential information.
Title to and ownership of the Service Property shall at
all times remain in Assix and
Agent shall have no property rights therein, but only the right to
use the Service Property as stated
herein, notwithstanding that the Service Property may now be, or
hereafter become, in any
manner, affixed or attached to, imbedded into, permanently resting
on real property or any building
thereon, or attached in any manner to that which is permanent by
means of cement, plaster, nails,
bolts, screws, or otherwise. Should Agent, during the term of this
Agreement, make, own, or
acquire rights to practice any patentable invention relating to the
Program or the Service Property,
then Agent agrees promptly to make full disclosure thereof to
Assix, and to assign all rights it may
have to any such patentable invention to Assix. Any invention made
by an employee of Agent
shall be deemed to have been made by Agent.
8. RECORDS AND INSPECTION.
(a) Agent shall keep records showing the date of
purchase, the purchase
price, and the identity and address or purchasers of any wheel
balancing services performed under
the Program, and shall permit Assix's duly authorized
representative(s) to examine Agent's
invoices reflecting the above listed information, premises, and
samples of wheel
balancing services performed under the Program at any time during
regular business hours to
enable Assix to determine whether or not Agent is performing its
obligations under this Agreement.
(b) Agent acknowledges that the goodwill and
favorable reputation
associated with the Marks are essential to the success of the
Program. Accordingly, upon
reasonable notice to Agent, Assix shall also be allowed access to
the Program and Service Property
fro the purpose of inspecting the Program and the Service Property
to assure that the quality
control provisions of this Agreement are being observed and/or to
perform necessary maintenance
or repairs.
9. WARRANTIES.
(a) Assix warrants that the Program will be provided as
described in Exhibit A, and
the Service Property will operate in substantial conformity with
the specifications and
documentation as to type, design, and capacity as described in
Exhibit B.
(b) EXCEPT AS SET FORTH HEREIN, ASSIX MAKES NO
WARRANTIES
EXCEPT TO THE EXTENT REQUIRED BY LAW, EXPRESSED OR IMPLIED, WITH
RESPECT TO THE PROGRAM OR THE SERVICE PROPERTY, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. AGENT ACKNOWLEDGES THAT THE PROGRAM AND THE
SERVICE PROPERTY ARE OF THE TYPE, DESIGN, AND CAPACITY SUITABLE FOR
ITS
PURPOSES.
10. INDEMNIFICATION.
(a) Notwithstanding anything to the contrary
contained within this
Agreement, Assix shall not be liable to Agent for damages of any
type to third parties which are
caused, in whole or in part, by the negligent or intentional acts,
or any other acts of omission or
commission, of Agent, its agents, or its employees. Agent shall
protect, indemnify, defend, and
hold harmless Assix, its agents, its employees, its officers, its
directors, and its servants from and
against any and all claims, actions, liabilities, losses, costs,
and expenses (including reasonable
attorneys' fees and costs), without limitation, arising out of or
in connection with (i) any negligent
or intentional acts, or any other acts of omission or commission,
of Agent, its agents, or its
employees; (ii) any statement indicating or implying that
performance of the wheel balancing
services are other than as indicated in Assix's brochures, sales
literature, or training materials; (iii)
any actual or threatened material breach of this Agreement by
Agent; or (iv) any actual or threatened
material act of omission or commission by Agent, its agents, or its
employees, in connection with
this Agreement. Assix shall give to Agent prompt written
notification of any claim against it that it
believes is subject to indemnification pursuant to this provision.
In the event Assix shall fail to
give Agent prompt written notification of any such claim, which
failure results in material detriment
to the defense of such claim, Agent's indemnification obligations
in favor of Assix as to such
claim, if any, shall be come null and void and of no further legal
force or effect.
(b) Assix shall protect, indemnify, defend, and
hold harmless Agent, its
agents, its employees, its officers, its directors, its
shareholders, and its servants from and against
any and all claims, actions, liabilities, losses, costs, and
expenses (including reasonable attorneys'
fees and costs) arising out of or in connection with (i) any
material malfunctioning of the Service
Property; (ii) any actual or threatened material infringement of
any United States patent, foreign
letters patent, trade name, trademark, copyright, trade secret, or
any other proprietary right with
regard to Agent's utilization of the Program or the Service
Property; (iii) any actual or threatened
material breach of warranty by Assix; (iv) any actual or threatened
material breach of this
Agreement by Assix; (v) any actual or threatened material act of
omission or commission by Assix,
its agents, or its employees, in connection with this Agreement.
Agent shall give Assix prompt
written notification of any claim against it that it believes is
subject to indemnification pursuant to
this provision. In the event Agent shall fail to give Assix prompt
written notification of any such
claim, which failure results in material detriment to the defense
of such claim, Assix's
indemnification obligations in favor of Agent as to such claim, if
any, shall become null and void
and of no further legal force or effect.
(c) Assix shall have the sole control and authority
over the defense,
settlement, or compromise of any claim or legal proceeding that
Agent believes is subject to
indemnification pursuant to Subparagraph (b). If the Program or
the Service Property becomes, or
in the opinion of Assix is likely to become, the subject of a claim
of infringement of a United States
patent, foreign letters patent trade name, trademark, copyright, or
trade secret, Assix may, in its
sole discretion, procure for Agent the right to continue using the
Program or the Service Property,
or any part of them so as to make Agent's use of them
noninfringing. If, during the pendency of
any claim or legal proceeding against Agent or Assix pursuant to
which Agent is prevented from
utilizing the Program or the Service Property by court order,
operation or law, or any other reason,
Agent may, as its sole remedy, withhold payment of any sums
otherwise required to be paid over
to Assix by Agent pursuant to this Agreement.
11. CHANGE OF OWNERSHIP OF AGENT.
In order to ensure Assix that Agent will comply with
its obligations
hereunder to the satisfaction of Assix, Agent acknowledges that
Assix must know and approve
who in fact controls Agent. Any Transfer of Control by Agent or
any Controlling Person may
result in the immediate termination of this Agreement, at the sole
option of Assix. Such
cancellation can be prevented by the agent seeking prior written
consent.
For purposes of this Agreement:
(1) The term "Affiliate" shall mean any natural
person or other legal
entity that, directly or indirectly, controls, is controlled by, or
is under common control with, either
Agent or any Controlling Person;
(2) "Controlling Person" shall be any natural
person or other legal entity
with a fifteen percent (15%) or greater interest in Agent or an
another entity that has, directly or
indirectly, a fifteen percent (15%) or greater interest in Agent,
or otherwise has the power to
control, directly or indirectly, the management, direction, or
day-to-day operations of Agent.
Without limiting the generality of the foregoing, a natural person
or legal entity shall be a
"Controlling Person" of Agent if it owns a fifteen percent (15%) or
greater interest in another entity
that is either a Controlling Person of Agent or that has an
indirect ownership interest in Agent
through one or more intervening levels of direct or indirect
subsidiaries. For example, if Agent is a
wholly-owned subsidiary of another corporation that is, in turn,
owned equally by three other
corporations, each of these three corporations who have the power
(indirectly) to affect the day-to-
day operations of Agent shall be considered a Controlling Person
for purposes of this Agreement:
(3) The term "Transfer" shall mean any voluntary
sale, pledge,
encumbrance, or other transfer or disposition (other than a gift,
sale, pledge encumbrance, or other
transfer between the Agent's present shareholders or a pledge
granted to a financial institution
providing financing to the pledgor); and
(4) "Transfer of Control" of Agent shall mean (a)
if Agent or any direct
or indirect Controlling Person is a partnership, any change in the
identity or respective ownership
of the partners or any of them, (b) if Agent or any direct or
indirect Controlling Person is a
corporation, any Transfer of shares comprising fifteen percent
(15%) or more of the total number
of issued and outstanding shares of Agent or such Controlling
Person, or (c) the Transfer or
change in the direct or indirect control of, or the Transfer or
change in the power to control,
directly or indirectly, the management, direction, or day-to-day
operations of Agent or of any direct
Controlling Person; provided, however, that the death or
determination of incompetency of a
partner of any natural person constituting a Controlling Person of
Agent shall not be a "Transfer of
Control."
12. TERM AND TERMINATION.
(a) The term of this Agreement will commence on the
Effective Date
stated above and shall continue for sixty (60) months, unless
otherwise terminated in accordance
with this Agreement.
(b) Either Assix or Agent shall have the right to
terminate this
Agreement by giving written notice of termination to the other
party of no less than twelve (12)
months.
(c) Assix shall have the option and right to
terminate this Agreement:
(1) Effective upon giving notice to Agent:
(i) In the event Agent fails to perform or comply
with any term or
provision of this Agreement, and such failure is not remedied to
Assix's satisfaction within one (1)
month of written notice thereof from Assix (or such longer period
as applicable law may require),
or in the event Agent repeatedly fails to perform or comply with
one or more term or provision of
this Agreement, whether or not such non-compliance is corrected
after notice; or
(ii) In the event Agent, upon two (2) weeks prior
written notice, shall
fail to duly pay all amounts due to Assix; or
(iii) Agent or any Controlling Person engages in
any unethical business
conduct that is reasonably likely to affect adversely the goodwill
or reputation of Assix; or
(iv) In the event Agent introduces and/or supports
any proceedings
challenging the validity of any of the Marks, copyrights,
confidential information, know-how,
patent applications, or other proprietary rights, whether
registered or not, of Assix; or
(v) Immediately following the agent providing any
written notice of
termination to Assix for any reason, the agent agrees to nominate
a senior management participant
for the purposes of working with Assix to determine the cause and
the remedy for such
termination. Agent agrees to evaluate the resulting report
concerning the recommended cure for
such reason for termination for a 30 day period and Assix and the
agent agree to implement such
recommendations. Such agreement to not be unreasonably withheld.
(2) Effective without notice to Agent or further
action of any kind: In
the event Agent becomes insolvent or is subject to any bankruptcy,
insolvency, or similar
proceeding, makes an assignment for the benefit of creditors,
becomes unable to pay its debts as
they become due, goes into liquidation or winding up, or in the
event a receiver is appointed for a
substantial part of Agent's assets; or
(3) At the option of Assix, after one (1) month's
prior written notice to
Agent: In the event of a decision by any government or agency
thereof or any tribunal which, in
the sole discretion of Assix, has the effect of preventing Assix
from realizing the benefits of this
Agreement or which might threaten the protection of Assix's name,
reputation, or proprietary
rights, including its marks, copyrights, confidential information,
know-how, or any other
information pertaining to the Program or the Service Property.
(4) Assix agrees not to install a "new agent",
without first obtaining written
consent from Agent, within fifteen (15) miles of the San Jose, CA
city limits for a period not to
exceed the term of this agreement. In return, Agent agrees to
make every effort to maintain a
consistent performance level, (AccuBalance to Tires Sold) at or
above the 115% xxxx. Agent
understands that any rights of exclusivity granted herein will be
revoked in the event Agent
performance is below 115% for three consecutive months.
(d) Agent shall have the option and right to
terminate this Agreement:
(1) Effective twelve (12) months following giving
notice to Assix:
(i) In the event Assix fails to perform or comply
with any term or
provision of this agreement, and such failure is not remedied to
Agent's satisfaction within one (1)
month of written notice thereof from Agent (or such longer period
as applicable law may require),
or in the event Assix repeatedly fails to perform or comply with
one or more term or provision of
this Agreement, whether or not such non-compliance is corrected
after notice; or
(ii) In the event of a material change in the
ownership of Assix.
(iii) In the event Assix refuses to remain
"competitive" with duplicate
programs, or to offer similar Agent arrangements.
(2) Effective immediately upon giving notice to
Assix:
(i) In the event Assix becomes insolvent or is
subject to any
bankruptcy, insolvency or similar proceeding, makes an assignment
for the benefit of creditors,
becomes unable to pay its debts as they become due, goes into
liquidation or winding up, or in the
event a receiver is appointed for any part of Assix's assets; or
13. EFFECT OF TERMINATION.
In the event of the termination of this Agreement
for any reason:
(a) Agent shall surrender and cease to exercise all
rights granted under
this Agreement, cease all use of the Program, the Service Property,
and Assix's name and Marks
in any and all connections, and refrain from representing any of
its services after termination as
"Assix services" or as being the "same as Assix", "similar to
Assix", or in any other way trading
upon the name "Assix" or the Marks.
(b) Termination of this Agreement shall not relieve
Agent from its
obligation to pay to Assix all moneys that may be due at the date
of termination, without any
reduction or offset whatsoever.
(c) Agent shall immediately cease using and return
within a period of
one (1) month following the termination of this Agreement, all
property of Assix, including,
without limitation, all confidential and proprietary written
materials (and all copies thereof) received
from Assix. Such materials will be delivered in person to an Assix
employee or returned via
courier service to be signed for by the recipient.
(d) Agent shall be deemed to have transferred and
conveyed to Assix
any trademarks, service marks, trade names, good will, or other
rights which may have been
obtained by Agent in connection with its use of the Program or the
Service Property or which,
notwithstanding the intention of the parties not to create any such
rights, may have vested in Agent
in connection with Agent's authorized activities hereunder, and
that Agent will execute any
instruments requested by Assix in suitable form to accomplish or
confirm the foregoing. Any such
instrument of assignment, transfer, or conveyance shall be without
consideration other than the
mutual covenants and consideration provided for in this Agreement.
14. COMPLIANCE.
Each party shall in the conduct of its business and
in the performance of this
Agreement comply fully with all applicable Federal, State, and
local laws, ordinances, rules and
regulations.
15. CONSEQUENTIAL DAMAGES.
Neither party shall be liable to the other for any
loss of profit or any
consequential or incidental damages upon the breach of this
Agreement, except as otherwise
provided herein.
16. SALES PROCEDURES.
(A) Prices and terms of sale quoted by Agent for
wheel balancing
services under the Program shall be those prices and terms as are
then in effect. Such prices and
terms may be revised by Assix in its sole discretion, from time to
time. Agent agrees that it will
not deviate from the established price and sales policies without
express authorization in advance
and in writing by Assix excepting shall be permitted to run special
promotions for wheel balancing
services, such promotions not to last longer than thirty (30) days.
(B) Agent may, without obtaining the express
written authorization of
Assix, quote and sell the wheel balancing services under the
program at a price equal to or greater
than that charged by any of Agents' competitors using the Program
or equipment manufactured by
Assix.
17. NON-COMPETITION AND NON-SOLICITATION.
(a) During the term of this Agreement, Agent shall
not offer any other
"tire flex correction services" or services similar to the Program
to any of its customers.
Additionally, in the event this Agreement is terminated, Agent
shall not offer any tire flex
correction services or services similar to the Program to any of
its customers at any location(s)
which is (are) within a twenty-five (25) mile radius of any
location(s) in which Agent offered
wheel balancing services under the Program for a period of two (2)
years following the termination
of the Program.
(b) During the term of this Agreement, and for a
period of two (2) years
following the termination of this Agreement, Agent shall not
entice, solicit for hire, or hire away
any of Assix's then current personnel to work in any way in or for
any business that is or may be,
directly or indirectly, competitive with either Assix or the
Program.
18. SPECIFIC PERFORMANCE.
Agent agrees that damages at law will be an
insufficient remedy to Assix in
the event of Agent's breach of this Agreement, and that Assix shall
be entitled, upon application to
a court of competent jurisdiction, to obtain injunctive relief to
enforce the provisions of this
Agreement, which injunctive relief shall be in addition to any
other rights or remedies available to
Assix.
19. ATTORNEY'S FEES AND COSTS.
In the event that Assix or Agent is required to
engage the services of legal
counsel to enforce its rights under this Agreement, regardless of
whether such action results in
litigation, the prevailing party shall be entitled to reasonable
attorney's fees and costs from other,
which, in the event of litigation, shall include fees and costs
incurred at trial and on appeal.
20. SEVERABILITY.
If all or any portion of any provision of this
Agreement is held to be void,
unenforceable, or illegal for any reason, such decision shall not
affect the validity or enforceability
of all or any of the remaining provision or provisions hereof, and
this Agreement shall be
construed as if the unenforceable or illegal provision had never
been included.
21. WAIVER.
No term or provision hereof shall be deemed waived
and no breach
excused, unless such waiver or consent shall be in writing and
signed by the party claimed to have
waived or consented. Any consent by any party to, or waiver of, a
breach by the other, whether
express or implied, shall not constitute a consent to, waiver of,
or excuse for any other different or
subsequent breach.
22. ASSIGNMENT OF AGREEMENT.
This Agreement shall be binding upon the respective
heirs, personal
representatives, and successors of the parties. Assix may assign
or delegate part or all of this
Agreement. Agent acknowledges that is necessary for Assix to
select its agents in a manner that
assures that an Agent authorized to provide wheel balancing under
the Program is capable of
fulfilling the obligations pertaining thereto and, therefore, no
assignment, delegation, or transfer
may be made by Agent without the prior written consent of Assix.
If Agent transfers, assigns, or
attempts to transfer or assign this Agreement or any part thereof,
expressly or by operation of law,
without the prior written consent of Assix, then Assix, at its
option, may immediately terminate
this Agreement upon the provision of one (1) month's advance
written notice to Agent.
23. CHOICE OF LAW; VENUE.
This Agreement shall be governed by and construed in
accordance with the
laws of the State of Florida. Exclusive venue for any litigation
instituted hereunder shall be
Hillsborough County, Florida.
24. PUBLICITY
Except as necessary to comply with applicable law,
neither party will issue
any press release or any publicity or advertising information
related to this Agreement without
obtaining the other party's advance written consent (which consent
shall not be unreasonably
withheld).
25. NOTICES.
Any notice, communication, or demand required or
permitted to be given
under this Agreement will be sufficiently given or made for all
purposes if delivered in person, by
facsimile transmission, by reputable courier, or by certified mail,
return receipt requested, as
follows:
(a) If to Assix: Mr. R. Park Xxxxxx, III with
copy to: Xxxxx X. Xxxxxx,
President Xxxxx, Xxxxxxx & Xxxx
Assix International, Inc. One
Tampa CityCenter
000 Xxxx Xxxxxxx Xxxxxx Xxxxx 0000
Xxxxx #000 Post Office
Box 3391
Xxxxx, Xxxxxxx 00000
Xxxxx,Xxxxxxx 00000
(b) If to Agent:
with copy to:
26. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement and
understanding between
the parties with respect to the subject matter hereof and merges
all prior discussions and
agreements between them. This Agreement shall not be supplemented,
modified or amended
except by a written instrument signed by the President of Assix and
by a duly authorized officer of
Agent, and no other person has or shall have the authority to
supplement, modify, or amend this
Agreement in another manner.
IN WITNESS WHEREOF, the parties have signed this
Assix Standard
Agency Agreement this 31st day of January, 1994.
"ASSIX"
ATTEST: ASSIX INTERNATIONAL, INC.
By: /S/Xxxxxxx X. Xxxxxxx By: /S/R. Park Xxxxxx, III
Secretary President
[Corporate Seal]
"AGENT"
ATTEST: TIRES BY WHEEL WORKS
By: /S/Xxxx X. Xxxxxxxxxx By: /S/Xxxx
Hexner___________
Secretary
[Corporate Seal] Its: CEO____________________
EXHIBIT A
DESCRIPTION OF ACCUBALANCE PROGRAM
AccuBalance Program Goals
The goals of the AccuBalance program are to:
1. Improve the consumer's perception of the quality of the Agent's
products and services by the Agent
providing a value-added, COMPLETE wheel balancing service in
conjunction with the consumer's
procurement, from the Agent, of:
[a] high-quality, aftermarket replacement tires and,
[b] ride-related services, such as alignments and
shocks/struts.
2. Increase the Agent's profitability potential by providing a
value-added, COMPLETE wheel balancing
service that exceeds the specifications of traditional wheel
balancing.
This service is more complete and consistent than the
specifications of traditional, after-market wheel
balancing and is similar to the demanding specifications of the new
car and automobile tires original
equipment manufacturer.
AccuBalance Program Elements
The AccuBalance Program is a comprehensive and consistent
discipline composed of six elements:
Element # 1. Service Property, designed, engineered and
manufactured to effectively measure and
balance, and if necessary, adjust passenger tire's and light-truck
tire's force variation of the tire's loaded
radial runout, then to balance the tire using the built in wheel
balancer.
SEE EXHIBIT "B"
Element # 2. A proprietary, AccuBalance Implementation system that
facilitates the on-time, on-
specification, on-budget installation of the entire program at all
the Agent's locations.
Element # 3. An in-store, Merchandising system that initially
trains and subsequently reinforces all Agent
personnel in the proper methods of selling, performing and
monitoring the financial achievements of the
AccuBalance service. This merchandising system consists of
promotional marketing material to maintain
the sales person's (or service advisor's/counter person's) emphasis
on the AccuBalance program and
provides on-site support and assistance, as deemed necessary by
Assix, to maintain the profitability targets
for AccuBalance. As necessary, the merchandising system also
contains consumer educational material
and promotional material to educate the consumer on the maintenance
requirements of wheel balancing.
Element # 4. A proprietary, Service Management system that assures
the wheel balancing service is
delivered to the consumer in a consistent manner within the
specifications of the automobile, the tire and the
wheel manufacturers and other manufacturers and providers of
ride-related products and services. This is
critical to the success of the Assix proven excellence objectives
and to the success of the entire
AccuBalance program. This service management system includes
providing the Agent's designated
employees with proper training and technical advice necessary to
deliver the 5-step, COMPLETE Wheel
Balance to the consumer.
Element # 5. A proprietary, Profitability Measurement and
Monitoring system to track, report,
analyze and notify the Agent of their levels of achievement of the
mutually agreed profitability potential. The
system recognize Agent locations not achieving their full profit
potential as well as those that are exceeding
their financial objectives. The system identifies these
under-performing locations and dispatches a ASSIX
Merchandising Specialist to assist the Agent in consistently
achieving the Agent's targeted financial
objectives.
Element # 6. A comprehensive Remedial Maintenance system for the
service property, including
engineering changes, deletions and modifications as ASSIX deems
necessary to maintain the service
property in proper working order.
ACCUBALANCE MARKET
ASSIX perceives that a large market exists for the AccuBalance,
COMPLETE wheel balancing service.
The sale of tire and ride-related services is effected primarily
through tire retailers with multiple dealer
outlets. The market for wheel balancing exceeds approximately $1
billion per year, based on approximately
150 million passenger tires, 25 million light truck tires, a
balance penetration rate of 100% and
approximately $6.00 per tire balance price.
The tire retailer shall sell the AccuBalance COMPLETE wheel balance
for $3.50/$5.00 per tire more than
the price of traditional, conventional or basic wheel balancing in
each of the Agent's market areas. This base
price for basic wheel balancing is contained as item # 34 in the
United States Consumer Price Index, which
measures approximately 289 urban areas each quarter.
In the event the Agent uses a "National" price for their basic
wheel balancing, AccuBalance shall be sold
for $3.50 to $5.00 per tire more than that "National" price.
This calculation of market size for AccuBalance is further defined
by the amount of opportunities within
the retail business unit. The effectiveness of the AccuBalance
program is measured by the number of
AccuBalance sold in relation to the number of new tires sold in the
retail unit. the opportunities are based
on the level of tires sales and related tire-service work performed
in each retail establishment. As an
example:
Opportunities for sale of AccuBalance Number of
Penetration
Tires Available Available Percentage
New tires sold 2.5 100%
Old tires on vehicle NOT REPLACED 1.5 50%
63%
Alignments - without tires sales 4.0
25% 40%
Shocks/Struts without tire sales 4.0
25% 40%
COMPLETE 243%
95% of the tires that are replaced are balanced. If a 50%
penetration of the balance of the available
penetrable market is achieved this equates to 1/2 of 143% or 71%.
Adding this to the 95%, the realistic rate
of selling AccuBalance
is about 166% in relation to the number of new tires sold.
DESCRIPTION OF PROGRAM ELEMENT # 1 - SERVICE PROPERTY
SEE EXHIBIT B
DESCRIPTION OF PROGRAM ELEMENT # 2 - IMPLEMENTATION
A PROPRIETARY, STEP-BY-STEP, ACCUBALANCE IMPLEMENTATION SYSTEM THAT
FACILITATES THE ON-TIME, ON-SPECIFICATION, ON-BUDGET INSTALLATION
OF THE
ENTIRE PROGRAM AT ALL THE AGENT'S LOCATIONS.
System Phase # 1 - Agent's Line Management Agreement
ASSIX AND THE AGENT'S executive management mutually agree on the
financial profitability goals and
the progression of their accomplishment though a series of
escalating "objectives" expressed as percentages
of tires receiving the AccuBalance process in relation to the total
number of passenger and appropriate light
truck tires that are sold and installed by the Agent.
The implementation time schedule is agreed in this step and the
number of programs to be installed are
estimated based on the number of tires sold in each of the Agent's
retail locations.
[a] The financial goals and objectives are cascaded down through
the Agent's operational management
through a letter from the Executive Management level of the Agent.
[b] The terms and conditions of the agreement between Assix and the
Agent are summarized in a letter that
cascades throughout the Agent's management hierarchy and is SIGNED
BY THE APPROPRIATE
MANAGEMENT LEVELS OF BOTH THE AGENT AND ASSIX. This letter serves
as one of support for
the entire program as agreed by Assix and the Agent.
In addition, these letters reinforce the key points of the Agent's
and Assix's agreement and endorses the P3
manual, as well as the proper methods of selling and performing the
proprietary, DART - Dealer
Action Response Trac and the information contained in the manual
containing the complete information
about the AccuBalance program is provided to the Agent's
operational locations at various times, as
approached.
This information is covered in detail and in person by an
authorized, Assix management individual with each
level of the Agent's LINE MANAGEMENT from the senior executive
management level through to the
operating management at the retail unit's level.
PROGRAM ELEMENT # 3 - ACCOUNT MANAGERS
ACCOUNT MANAGERS
Account Managers are dedicated Assix merchandising support
professionals. They are responsible
for the successful implementation and continuance of the
AccuBalance program in their assigned
territory. Their duties include, but are not limited to:
1.) Conducting additional training of new retail unit personnel
while reinforcing any previous
training performed during initial implementation and follow up for
the life of the account.
Sell the TOTAL Job. Including AccuBalance.
2.) Ensuring that the AccuBalance sales techniques are being used
on a daily basis while selling
AccuBalance in the retail unit. This is accomplished through visits
by the Account Manager with
the retail unit manager. An Account Manager will be provided
direction as to where to spend his
time during a month based on the relative profitability performance
of the assigned retail units in
his territory.
3.) Working directly with the retail unit management, sales and
service personnel in responding to
a fall in the AccuBalance percentages with positive corrective
measures.
4.) Monitoring the quality and placement of signage and quantity
of literature present within the
retail environment.
5.) Building a positive and professional relationship with all
retail unit personnel.
6.) Developing promotional programs from time to time that will
positively influence the success
of the AccuBalance program in that retail unit.
7.) Briefing the retail unit manager on the degree of sales
personnel understanding and compliance
with the AccuBalance program.
PROGRAM ELEMENT # 4 -- AccuBalance Service
The AccuBalance service consists of 5 steps when a new tire is
purchased and 4 steps when balancing a
tire that is not being replaced.
Step # 1 - IF THE TIRE IS TO BE REPLACED: (Replacement tires)
Demount the old tire and mount the high-quality, replacement tire.
Using a machine called a Tire Changer, used tires are removed from
the rims.
a. The wheel covers and valve cores are removed carefully to
prevent damage - an authorized wheel cover
puller is used (other tools, such as a screwdrivers, are not
acceptable).
b. The lug nuts are carefully removed and placed in the wheel cover
or other convenient location where they
will not be lost or misplaced. Upon removal of the lug nuts, they
and the wheel studs are carefully
examined for damage.
All existing balance weights are removed prior to placing the old
wheel on the Tire Changer or on the
Service Property. If the tire is not replaced, the process
proceeds immediately to the Service Property
Combi.
The old wheels are mounted on the Tire Changer in a COMPLETELY
DEFLATED state.
c. The tire and rim assembly are separated in exact accordance with
the operating instructions of the
manufacturer of the Tire Changer. In the event that this is not
known, the training manuals of the Agent
and/or Assix are followed. Assix reserves the right to inspect
Agent manuals and make recommendations as
to the proper procedures. However, as a minimum the instructions
should contain the following:
1. The wheel must be centered on the cone and securely
tightened, BY HAND. If the stem is being
replaced, the old stem should be removed using an authorized value
stem removing tool.
2. In no event should the bead breaker shoe be allowed to ride
up over the edge of the rim.
3. The beads of the tire and the old, used and potentially
stressed rim should be well lubricated to
prevent further damage to the rim.
4. The operator should keep fingers, hands and forearms clear
of the forward travel of the
mount/demount tool, while the beads are being demounted. If the
tire has a tube, the mount/demount tool
should be well lubricated, with lubricant that meets Assix
specifications and the tube should be removed
prior to demounting the lower bead.
d. The new high-quality replacement tire is mounted on the old,
potentially stressed rim.
1. The rim is wire brushed to remove excess rubber particles
and/or scraps to insure a proper seal.
2. The new, valve stem and the beads of the tire are properly
lubricated using an Assix authorized
lubricant and stem tool.
3. The operator should keep fingers, hands and forearms clear
of the forward travel of the
mount/demount tool, while the beads are being mounted.
4. If the tire requires a tube, the tube must be inserted
before the top bead is put into place.
5. The tire beads should be properly seated, beginning to hold
air. At this point, the cone should be
loosened one full turn and the tire should be filled with small
amounts of air administered in short bursts
until the beads seat.
6. At all times while seating the beads of the tire, no part
of the operators body should be over the
tire.
7. Inflate the tire.. Never exceed 40 PSI, If the beads are
not properly seated by the time the
machine's air pressure reaches 40 PSI, the operator has been
unsuccessful in following the proper operating
procedures and the tire should be deflated, re-lubricated and
inflated again.
8. The machine's indicated pressure should be carefully
checked using an authorized ASSIX hand
gauge to assure that the tire is inflated to 35 p.s.i. This
prepares the tire for the next step of the 5-step
COMPLETE wheel balance.
STEP # 2 - Administering the Tire Matching Technology using the
service property.
The Combi is a patented machine that applies hydraulic pressure to
the rotating, inflated tire to simulate
actual driving conditions. The Combi detects the amount of flex
variation in the complete wheel assembly,
including the potentially stressed rims, and, if greater than the
manufacturers specifications, adjusts the
wheel assembly to conform to the following specifications:
Adherence to these specifications results in a more uniform tire
footprint while the car is being driven on the
road.
SYS-7000 COMBINATION MATCHER/BALANCER OPERATING
PROCEDURE
1. Remove the tire/wheel assembly from the car. Xxxx the wheel
position (i.e., RF, LF, RR, LR)
on the serial side of the tire.
2. Clean stones and loose debris from the tire tread.
3. Check inflation pressure in the tire and adjust to 35 P.S.I.
4. Mount the tire/wheel assembly onto the shaft of the Combi as
detailed in coning instructions.
a. Place spring on tire shaft.
b. Select proper size cone for rim center hole and place on
shaft.
c. Place tire & rim assembly on Combi shaft (lug bolt side out).
d. Place speed nut on shaft and tighten.
e. Front coning is required on some wheel styles. If so,
eliminate spring on shaft.
5. Open buffer cover. Start the machine by placing your finger on
"system start" (Combi only)
button on the panel. Very little pressure is required to operate
the controls. Begin in the "fine"
cycle. Combi will automatically choose the appropriate cycle.
6. Align the roller assembly by unlocking lower black knob and
slide assembly to center of tire.
7. Align rasps to cover as much of the outside shoulder of the
tire as possible. Be sure that both
rasps contact the tire at the same time. Secure them in position.
8. Adjust the distance between the face of the rasps and the tread
surface to 1/8" preferably, and a
maximum of 1/4" by rotating the knurled knob of the roller control
assembly. Rotating the control
knob counterclockwise decreases the distance--clockwise increases
it.
Never buff the full circumference of the tire. Rasps must have
clearance to tire, except when
actually buffing selected portions of the tire.
9. The logic control will then decide if the assembly is good,
requires buffing, or must be
rejected.If the decision is "good" or "reject", the appropriate
light comes on, and the machine shuts
down (stops rasp and tire rotation and unloads tire). If the
decision is "buff" the "match" light
comes on and the Combi will determine the cycle automatically.
9A. A slight deviation in the lateral overlap of the rasp may be
necessary to compensate for
variables in the tire tread surface to maintain a uniform distance
of the rasps to the tread.
10. The rasps will advance towards the tire whenever the force
variation signal exceeds the "low"
value (20 in the "Auto" buff cycle) after the delay, allowing that
portion of the tire circumference to
travel from the drum to the rasps. The rasps will retract when the
signal drops below the low,
value, again with the delay.
***NOTE*** If buffing is uneven, open the lid, and re-adjust. It
is not necessary to stop the
machine to readjust the rasps, simply open the lid and adjust when
rotation stops.
***WARNING*** DO NOT ATTEMPT TO STOP THE RASPS IN ANY MANNER-THEY
WILL STOP WITHIN A FEW SECONDS.
11. The rasps should make smooth, even buffs, without pounding or
bouncing against the tire.
a. If the rasps pound on the tire, causing digging or
cupping, they are probably too far
away from the tire in the retracted position. Lift the lid, and
adjust the small roller so that the rasps
are closer to (but not touching) the tire in the retracted
position.
b. If the rasps bounce very lightly in a "hit and miss"
manner on the tire, the "buff"
pressure (air pressure, actuating the advance/retract mechanism) is
too low or too high.. Raise
pressure until bouncing ceases.
12. The buffing will continue until the low value (20) is achieved
or 3 minutes have elapsed,
whichever occurs first. If the low value is achieved, the "good"
light will come on. Exceeding the
time limit indicates the tire did not respond adequately to the
buffing. Check for proper mounting
of the tire and accurate positioning of rasps.
NOTE***
The Combi is automatic, and you should not have to stand over it
while it completes the cycle.
However, occasionally you should look to be sure that your settings
are correct. Remember, the
machine will only do what you have instructed it to.
STEP # 4 - APPLYING MANUFACTURER'S RECOMMENDED AIR PRESSURE USING
THE
OWNER'S MANUAL OR BENNENT GARFIELD'S TIRE BOOK.
STEP # 5 - MOUNTING THE ENTIRE ASSEMBLY ON THE CAR WITH UNIFORM LUG
TIGHTNESS AND HAND TORQUING THE LUG NUTS TO THE MANUFACTURER'S
SPECIFICATIONS.
Proper procedures with reinstalling the wheels on the vehicle can
eliminate wheel rattles. Over tightening the
lug nuts can warp brake rotors, causing an unsafe condition when
the brakes are applied. Wheels may
become warped and mounting holes have become deformed or cracked
because of incorrect tightening
pressure.
All tightening should be begun by hand, using a torque-limiting
impact tool adjusted to the low setting and
just making the lug nuts "snug". The proper tightening pattern is
1-3-5-2-4 for a five bolt configuration and
1-3-4-2 for a four bolt configuration. Following this, the tire
should be thoroughly cleaned of any
manufacturer installed coating on the whitewall of the tires. The
wheel cover is then replaced using a rubber
hammer.
THESE FIVE STEPS COMPLETE THE ACCUBALANCE PROCESS AND ASSURE
THE CONSUMER OF THE TOTAL RIDE VALUE ASSOCIATED WITH THE NEW
TIRES, ALIGNMENT, STRUTS OR OTHER RIDE-RELATED SERVICE WORK.
PROGRAM ELEMENT # 5 - MONITORING AND MEASURING
SPECIFIC
CONCERN: Assix first identifies actual "opportunity" AGENT sites
and then directs the
manpower to the place where it will be of maximum benefit to the
Agent.
Physical visits by Assix field personnel are replaced by telephonic
contact and
status reviews.
OBJECTIVES: To develop a tracking/trending system to promptly
direct Assix field personnel
to statistically designated "opportunity" AGENT sites.
To analyze and report usage statistics to all AGENT'S on a
continuing periodic
basis.
To analyze and report usage statistics to all levels of Assix
management
personnel on a continuing periodic basis.
To make our AGENTS the most effective and profitable
marketeers of ride-
related products and services within the automobile aftermarket.
To achieve complete consumer satisfaction for our ride-related
products and
services.
C.A.R.D.S./TRACS PROGRAM
(Consistent, Achievement Reporting Discipline System -.
Tracking Recording Accounting Control Systems)
TRAC$ is on AGENT performance control, data collection,
profitability analysis reporting
system. The system's purpose is three-fold:
1. Collect, analyze and provide AccuBalance performance and trend
information to Assix's
current AGENT'S on a monthly basis;
2. Track and analyze incoming performance data on Assix's initial
implementations on a
weekly basis;
3. Provide detail and summary data/analysis to Assix personnel so
they can assist their
assigned AGENT'S in reaching their agreed objectives.
The system is primarily designed to spotlight under performing
stores but also highlights
stores that are well ahead of quota. The system is directed at
units made up of stores, districts,
regions and also on the national level.
PROGRAM ELEMENT # 6 - SCOPE OF PREVENTATIVE AND REMEDIAL
MAINTENANCE
SERVICE
ASSIX maintains all the COMBI System 7000 service property through
a field service
organization consisting of Service Property Specialists, a 1-800
support telephone network and a
dispatching system. Service property service is provided five days
per week; Monday through
Friday. Repairs are made on a "best efforts" basis generally not
longer than forty-eight (48) hours.
Response time begins when the call is received at by ASSIX Central
and the Service Property
Specialist is contacted. It terminates when the problem has been
resolved.
All incoming calls are received by the ASSIX Central dispatch team.
An experienced Technical
Support Representative is on hand to attempt to resolve simple
problems over the phone directly
with the retail unit personnel. This avoids unnecessary delays.
All calls received during a month
are summarized and evaluated to determine areas that may need
improvement.
ESCALATION PROCEDURE
Should any problem not be resolved within forty-eight (48) hours,
a set of escalation procedures
take effect:
If a problem is not resolved within forty-eight (48) hours, the
ASSIX Regional Manager is notified
by ASSIX Central. The ASSIX Regional Manager begins to assist in
taking corrective action.
Should the problem not be resolved within thirty-six (36) hours,
the National Service Manager is
notified and takes appropriate action as needed. If the problem is
not corrected within forty-eight
(48) hours, the National Operations Manager is notified. At that
time, the National Operations
Manager will determine the time remaining to resolve the problems
will notify the appropriate
Agent management with an estimated time of resolution. At this
point, depending upon the
severity of the problem, it may become necessary to ship new
service property as a major unit
replacement (MUR) to the retail unit. This decision will be made
by the President of ASSIX, Inc.
SERVICE PROPERTY SPECIALIST
Service Property Specialists are trained specifically to maintain
and repair the COMBI System
7000 service property. They are responsible for the entire COMBI
System 7000 population in an
assigned area. Their responsibilities include but are not limited
to:
1.) Performing all repairs on a COMBI System 7000 within a
forty-eight (48) hour period of
time. Communicate with ASSIX Central when a service property will
not be repaired within a
forty-eight (48) hour period of time. (refer to Escalation
Procedure)
2.) Maintain a compliment of spare parts in his van.
3.) Provide additional training in the use of the COMBI System
7000 to any new employee in
the back shop.
4.) Complete call reports on all repairs and visits made to the
retail unit and obtain Agent
Management's written acknowledgement of the performance of such
service.
5.) Build a positive and professional relationship with all retail
unit personnel.
6.) Read, study and understand all aspects of the COMBI System
7000 and attend regularly
scheduled Service Property training classes conducted by ASSIX
International, Inc. at its locations
THE AGENCY RELATIONSHIP
ASSIX Responsibilities
1. ASSIX will supply each location with the AccuBalance Service
Property in the proper
numbers to adequately deliver the COMPLETE wheel balance. This
will be accomplished
without the Agent making any capital investment in the service
property.
2. ASSIX will install the AccuBalance Service Property when the
Agent has located air supply
and power outlet within five feet of recommended service property
location.
3. ASSIX will spend time in each retail unit location to train
Agent personnel on the operation
and sales of the AccuBalance Program. This is done by providing an
AccuBalance for each
employee's car, holding retail unit training meetings and working
in the retail unit with all
sales and service personnel for up to 4 days or until Agent is
satisfied every auto center
employee is trained and the program has been installed to meet the
Agent's and Assix's
objectives.
4. ASSIX will furnish Agent with materials it deems necessary to
support the sale of the
AccuBalance COMPLETE WHEEL BALANCE.
5. ASSIX will service the COMBI System 7000 service property,
including all parts and
correct any problems caused by normal wear, through its
coordinated service network.
6. ASSIX will retrain new retail unit personnel periodically or
as needed to increase
AccuBalance sales to the targeted levels. ASSIX will check
periodically on the Agent's
service property operating procedures.
7. ASSIX will provide Agent with an analysis of the AccuBalance
profit potential within each
of their retail units on a monthly basis; during the initial
implementation, this will be done
weekly.
8. ASSIX will continue the day-to-day follow-up until the
mutually agreed, target financial
objective for AccuBalance-to-tires-sold is reached. Following this
level of achievement,
follow-up will be on an as-needed basis.
The benefits of this program will mean increased revenue and
profits, provide a
program with no capital outlay, and give the consumer a
tangible added value
service.
Agent's Responsibilities
1. Provide a letter from Agent senior management to operating
line management of the Agent's
retail operations and management indicating support of the
implementation of the program.
2. Provide a letter of introduction from Agent, to
Regional/District Managers, and other
management, indicating the establishment of goals and objectives
for the AccuBalance brand
of the COMPLETE WHEEL BALANCE program implementation.
3. Provide a designated management person with whom ASSIX can
coordinate the program; this
individual will have the authority to implement actions essential
to the program's success.
4. Provide ASSIX the performance statistics for the AccuBalance
brand of the COMPLETE
WHEEL BALANCE program, including number of new tires sold, number
of standard
balances and number of AccuBalance performed (Unless otherwise
agreed by Assix and
Agent), so ASSIX and Agent can monitor sales results. Also,
monthly reports will be used
for any appropriate fee xxxxxxxx per tire.
5. Each retail unit will install the proper electrical and air
outlets, prior to AccuBalance being
installed.
6. Require all retail unit personnel to attend a training meeting
on AccuBalance in each retail
unit location. Management attendance is required in all meetings.
The meeting size will be
such that all personnel will have the ability to ask questions, and
receive full information
concerning the program. A series of special sessions will be held
for all persons involved in
the actual selling of the AccuBalance service.
7. All retail unit personnel will receive the AccuBalance brand
of the COMPLETE WHEEL
BALANCE during the initial installation period, at no cost to them
or to Assix..
8. Use of AccuBalance identification materials as supplied and
directed by ASSIX.
9. Facilitate installation of the AccuBalance COMBI System 7000
10. Agent shall clearly differentiate between a traditional,
standard, basic, old style wheel balance
and the AccuBalance COMPLETE wheel balance. The warranty for the
AccuBalance shall
be at least 4 times as attractive to the consumer as the warrantee
for the traditional, standard,
basic, old style wheel balance. This means that the warrantee for
the "old style" will not
exceed 3,000 miles and the warrantee for the AccuBalance COMPLETE
wheel balance
would be between 12,000 and, preferably, 15,000 miles. In no event
shall the warrantee for
the AccuBalance be less than one year. Eliminate current
"lifetime balance" and all forms of
"life of the tire" and "balance at will" warrantees on the standard
type balance.*
11. Instruct all tire sales personnel to offer AccuBalance on each
selling opportunity, including
ride-related services such as alignment, strut sales, etc. in
accordance with the selling
procedures (XXXXX) as agreed by Agent and ASSIX.
12. ASSIX will be notified by Agent when new personnel are hired
so additional training can be
provided by ASSIX.
Assix reserves the right, upon provision of thirty (30) days
advance written notice to Agent, to
revise this Exhibit.
* for trade old style, etc. balances
This concludes Exhibit "A"
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
EXHIBIT "B"
SERVICE PROPERTY
1. Combination Matcher/Balance System
2. Quick Lock Adapter
3. Rasp T. Handle (1)
4. #6979-00 Backplated/sleeve (1)
5. #6080-00 Spring Backplate (1)
6. #6081-00 Cone #1 (1)
7. #6082-00 Cone #2 (1)
8. #6083-00 Cone #3 (1)
9. #6087-00 Top Plate (1)
10. #6090-00 Spacer (Large) (1)
11. #6091-00 Spacer (Small) (1)
12. #6092-00 Wing Nut (1)
13. Misc. Mounting Plates/Bolts (4)
14. Miscellaneous advertising materials that Assix considers
necessary as
printed material, signs, banners, etc
Assix reserves the right, upon provision of thirty (30) days
advance written
notice to Agent, to revise this Exhibit..
EXHIBIT C
COMPENSATION DUE TO AGENT
GROSS REVENUE FROM PROGRAM LESS ASSIX FEES SHOWN BELOW AS
DUE AND PAYABLE OF THE SPECIFIC SCHEDULE OF INVOICING AS
SET FORTH.
1. Initial Fee per Program $300.00
The above fee will be invoiced upon completion of
implementation of the program at the
Agent's location. Each program includes items as described in
Exhibit A. In the event that
more than one program is installed at a single, retail location,
Agent will be billed only one
initial fee per month until the total number of initial fees due
for such location are billed.
2. Installation of Service Property (per set of Service
Property) $558.00
3. Usage Fee Per AccuBalance Sold to 115% AB to TS $ .65
"Usage fee" will apply to any revenued AccuBalance, upgrades
inclusive.
The usage fee per AccuBalance sold fee will be invoiced upon
completion of training and
installation.
Agent shall pay usage fees only on tires sold upon which an
AccuBalance fee was received
by Agent, up to 115% AB to TS. Agent shall not be responsible
for a usage fee per tire on
any standard balance done on Agent's other tire balancing equipment
nor on "no need-no
charge" balance checks done on the Assix equipment, unless revenue
to Agent results.
The usage fee will be invoiced on approximately the twentieth
day of the month, based on
tires serviced during the prior month. Agents will submit to Assix
Central on the last
working day of each month the number of tires serviced, and
AccuBalance performed with
revenue collected under the Program in such month. In the event
this information is not
received by Assix within ten (10) days of the end of the month, the
usage fees due shall be
estimated by Assix and invoiced accordingly.
4. Assix may increase the above fees to a maximum of 5% (Initial
per program and Usage Fee
per tire serviced), upon thirty (30) days prior written notice to
Agent following the
anniversary date. Any increase will apply on the effective date as
specified in such notice.
Invoices shall be due in full upon receipt.
FOLLOWING THE AGENT BEING CURRENT IN AMOUNTS DUE TO
ASSIX, the balance of all revenues generated by Agent following
the
payment of all amounts due Assix shall be retained by Agent for its
own
account as compensation under this agreement.
Assix reserves the right, upon provision of thirty (30) days
advance written notice to Agent,
to revise this Exhibit.
