D&H DISTRIBUTING SUPPLEMENTAL VENDOR PURCHASE AGREEMENT
EXHIBIT
10.11
D&H
DISTRIBUTING
This
agreement effective as of the 7 day of March ,
2009, by and between D&H DISTRIBUTING
CO. a Pennsylvania company with its principal place of business at ▇▇▇▇ ▇.
▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("D&H"), and TeknoCreations, a company with
its
principal place of business at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇, ("Vendor")
The
following terms and conditions apply to D&H North America and, as
appropriate, its respective customers, including but not limited to Resellers,
Integrators, And Large Format Retailers, etc.
STANDARD
TERMS: Net 45
LAUNCH TERMS: Net 60
LARGE FORMAT RETAIL TERMS: Where D&H
sells vendors' product to Large Format Retailers, the total amount of the
obligation owing from D&H to Vendor shall be limited to and not exceed the
amount of on-hand inventory at any point in time
held by D&H or the large format retailers. The terms of this
Agreement and the obligations hereunder shall be binding on the parties upon the
receipt and acceptance by D&H of the inventory.
DEFINITIONS: Large Format Retailer:
Including but not limited to CompUSA, Wal-Mart, Sam's
Club, Office Max, Office Depot, Staples, Circuit City, J&R Electronics
Boutique, Gamestop, BJ's, Amazon, Retail College Bookstores, and
others.
FREIGHT: Freight cost and risk of loss
shall be the responsibility of the Vendor, F.O.B destination. Vendor will pay
any costs incurred with mis-shipments, including but not limited to, routing
guide violations. Vendor will reimburse D&H for all concealed
shortages.
PRICE PROTECTION: If at any time Vendor
should reduce the purchase price of any product, D&H, any Large Format
Retailer, and any stocking reseller shall be entitled to full price protection
for on-hand and in-transit inventory. Full price protection will be credited to
D&H's account by Vendor by issuing a credit memo arrived at by using the
difference between last and new purchase price. If the price protection results
in a balance due and purchase owing by Vendor to D&H, and D&H does not
buy its way out of the credit balance within 30 days, then Vendor will issue a
check to D&H for the amount of the price protection due
D&H.
PENALTY CHARGES: If Vendor is at fault, Vendor agrees to
reimburse D&H for any and
all penalties,
charge hacks, and fees charged by Large Format Retailers including, but
not limited to, product
shipments. If disputes arise and cannot be settled, the Retailers numbers
are final.
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STOCK
BALANCE/DISCONTINUED STOCK: D&H may
return excess inventory for credit. Vendor shall provide D&H with 30 days
advanced written notification of product discontinuation. Upon receipt of such
notice, D&H reserves the right to return product to Vendor for credit at
full purchase price. Vendor agrees to allow Large Format Retailers to stock
rotate inventory through D&H. Vendor is liable for any freight and fees
associated with said returns. Return authorizations must be provided to D&H
within 5 days of request.
POST AUDIT PROVISION: If at any time a
large format retailer were to discover a discrepancy including, but not limited
to, price protections and shipments creating a legitimate claim on behalf of the
retailer, Vendor agrees to credit D&H to cover the large format retailer's
chargeback within 30 days of receiving supporting
documentation.
LAUNCH FUNDS: Vendor will approve a 6
(Six) month MDF Marketing Launch Program which shall be agreed to, and
finalized, prior to initial product purchase.
MARKETING FUNDS: 5% of net purchases or
$3000 per calendar quarter, whichever is greater
All
marketing funds offered by Vendor to Large Format Retailers shall be in writing,
with a copy to
D&H; these funds are above and beyond D&H's Marketing Fund accrual.
These funds shall be
credited to D&H to be passed through to the Large Format
Retailer.
D.O.A.: Vendor shall warrant all
products for a minimum period of one year (1 year) from date of sale to the end
user. D&H and Large Format Retailers (thru D&H) may return defective
product to Vendor for the length of the warranty for credit, not replacement or
repair. As appropriate, D&H will request an RMA number for defective
returns, which should be issued within 5 days from date of request. Vendor shall
pay all freight charges incurred with defective returns, including those from
Large Format Retailer to D&H.
VOLUME REBATE: 2% of Net Purchases, to
he paid quarterly
INSURANCE
COVERAGE AND INDEMNIFICATION:
Vendor,
at its own expense, must: (a) defend, or at its option settle, any Claims
against D&H, and any large format retailer resulting from (i) Vendor's
breach of the Agreement, including but not limited to its representations and
warranties, (ii) a Product recall, (iii) claims that the Product(s)
caused personal injury, death or personal property damage, and (iv) claims that
the Product(s) infringe a third party's patent, trade secret, copyright,
trademark rights or other proprietary right where such rights are enforceable as
of the Effective Date; and (b) pay any award, damages or costs (including
reasonable attorneys' fees) finally awarded by a court of competent jurisdiction
or agree on in a settlement of any such Claim. D&H
agrees to use its best efforts to give Vendor prompt written notice of
any claims, to tender the defense to Vendor
and to grant Vendor the right to control settlement and
resolution.
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Vendor
shall purchase and maintain
a commercial general liability (occurrence) policy, which policy shall
include coverage for premises and operations; products; contractual liability;
broad form property damage, and personal injury liability. The policy shall have
a combined single limit for bodily injury and property damage of $1,000,000 each
occurrence; $1,000,000 for
personal
injury liability; $2,000,000 aggregate for products; and $5,000,000 general
aggregate. D&H
Distributing Co. shall be named as an additional insured tinder this policy and
Vendor shall provide D&H a Certificate as evidence of
such.
The
respective rights and obligations of the parties under this paragraph shall
survive any termination
of this Vendor Agreement.
CONFIDENTIALITY: During
the course of
this
agreement each party may disclose
to the other certain
Confidential Information. Such information shall be identified as confidential
or by similar
designation at the time of disclosure and shall include but not be limited to
lists of actual or
prospective customers, financial and business information. Each party agrees
that during and after the
term of this agreement that it shall not divulge, use, sell, exchange,
giveaway or transfer in any way Confidential
Information.
GOVERNING LAW: Pennsylvania
law without regard to its conflict of law provisions shall govern
the interpretation and enforcement of this Agreement, and all matters
arising out of or relating to it. Dauphin County, PA shall
be the appropriate venue and jurisdiction of all controversies. Vendor
submits to jurisdiction in Pennsylvania.
EFFECTIVE
DATE OF CONTRACT: This
agreement shall commence upon both parties' execution and remain in
effect until
terminated, with or without cause, by either party with 60 days' written
notice. Any insolvency, adjudication of bankruptcy, filing of voluntary or
involuntary petition in bankruptcy, or any assignment for the benefit of
creditors, by or against Vendor,
shall be a breach of this Agreement and D&H shall be entitled,
upon notice of such action, to immediately terminate this
Agreement.
TERMINATION
BUYBACK: In the event of termination, Vendor agrees to repurchase
D&H's entire inventory, as well as any Large Format Retailer's inventory, of
both original factory sealed products and defective products at full purchase
price. Upon the repurchase, Vendor will pay any fees, including but not limited
to, freight costs incurred with the return shipments. Repurchase of inventory
shall be affected within 30 days of D&H's request and D&H
may offset any indebtedness of D&H to Vendor with this repurchase.
Upon credit being issued to and received into the D&H account, Vendor shall
promptly process a check within 30 days to D&H for the remaining balance. In
the event of termination by either party, Vendor will not withhold defective
return authorizations.
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RETURNS
AFTER TERMINATION: D&H may return any product to Vendor for credit
against outstanding invoices or for cash refund if no invoices are outstanding,
for a period of 180 days following the expiration or earlier termination of this
agreement. Any credit for refund due D&H for returned product shall be equal
to the full purchase price of the product. Vendor will pay for any costs
associated with
return shipments including, but not limited to, freight
costs.
DISPUTE
RESOLUTION: The
parties will initially attempt to resolve any claim or controversy arising
out of this Agreement through negotiation or non-binding mediation. Any dispute
that cannot be
amicably resolved within 90 days of the date of the initial notice of dispute
may be submitted
to the state courts of Pennsylvania for resolution. The parties consent
to the jurisdiction of the Pennsylvania courts. This provision shall not
preclude either party from resorting to judicial proceedings if good faith
efforts to resolve the dispute under mediation are
unsuccessful.
This
Agreement constitutes the entire Agreement between the parties regarding its
subject matter.
This Agreement supersedes any and all previous proposals, representations or
statements,
oral or written. Any previous agreements between the parties pertaining
to the subject matter of this Agreement are expressly terminated. Any
modifications to this Agreement must be in writing and signed by authorized
representatives of both parties. Notwithstanding any other provision in this
agreement to the contrary, D&H shall not be deemed in default under this
agreement if it withholds any payment to Vendor because of a legitimate dispute
between the parties.
Each
party represents that they are duly authorized to enter into this Agreement on
be, if of their respective Corporations
| /s/ ▇▇▇▇ ▇▇▇▇▇ | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| (Signature) | (Signature) |
| ▇▇▇▇ ▇▇▇▇▇, VP Sales and Marketing | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, VP of Purchasing |
| (Please Print) | |
| DATE: 3/7/08 | DATE: 3/26/08 |
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