EXHIBIT 10.39
VENDOR AGREEMENT
Effective Date: February 21, 2006
THIS VENDOR AGREEMENT (the "Agreement") is made and entered into by and between
Best Buy Purchasing LLC, a Minnesota corporation ("Best Buy"), having its
principal office at 0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx, 00000, U.S.A.,
and SLS International, Inc., a corporation organized under Delaware law
("Vendor"), having its principal office at 0000 X. Xxxxxxx, Xxxxx, XX 00000.
WHEREAS, This Agreement is intended to set forth the terms and conditions
applicable to the purchase of goods from Vendor and their distribution,
marketing and resale by Best Buy Purchasing LLC and its designated affiliates.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereby agree as follows:
1. LICENSE TO SELL PRODUCTS
1.1 Appointment of Authorized Dealer. Vendor appoints Best Buy Purchasing LLC
and each of its designated affiliates (collectively, "Dealer") as an authorized
dealer. The designated affiliates will include Best Buy Stores, L.P., and
XxxxXxx.xxx, Inc., or as updated from time to time upon notice to Vendor
("Affiliates").
1.2 Territory. Vendor grants Dealer a non-exclusive license to distribute any
products Vendor sells to Dealer ("Product" or "Products"), to end-users and
commercial buyers in the United States (and its territories), Canada and other
territories as may be agreed to by the parties from time to time. Dealer shall
sell the Products through Dealer's sales channels including but not limited to
its present and future retail stores in the Territory, Internet web sites,
distribution centers and mail order distribution centers.
2. PRICING AND TAXES
2.1 Prices. Vendor will sell the Products to Dealer at the prices then in effect
on its current price list, as may be changed from time to time, or as otherwise
agreed between the parties. All prices, benefits and allowances offered to
Dealer will not be less favorable than those prices, benefits or allowances
extended to any other similarly situated customers of Vendor. Vendor's prices do
not include sales, use, excise, or similar taxes.
2.2 Taxes. The amount of any valid present or future sales, use, excise, or
other similar tax that is attributable to Dealer will be paid by Dealer; or in
lieu thereof, Dealer will provide Vendor with a tax exemption certificate
acceptable to the taxing authorities.
2.3 No Minimum Purchase Requirement. Dealer shall have no obligation or
liability to purchase all or any particular volume of any type of Products or
parts from the Vendor. Dealer does not guarantee, and is not obligated to issue,
any particular number or type of purchase orders with the Vendor. Dealer shall
not be liable to the Vendor for loss of business or revenues, or excess
inventory, if Dealer's purchase orders do not meet the Vendor's expectations.
3. PURCHASE ORDERS
Orders for Vendor's Products will be initiated by electronic purchase orders
submitted by Dealer and will be binding upon the parties upon acceptance by
Vendor, provided that Dealer reserves the right to cancel a purchase order at
any time prior to the shipment date. Vendor will be deemed to have accepted a
purchase order if Vendor fails to reject the purchase order by notifying Dealer
within twenty-four (24) hours of its receipt thereof, not including weekends and
nationally recognized holidays.
4. PAYMENT
4.1 Invoices. All Vendor invoices will be sent via Electronic Data Interchange
(EDI) to Dealer no earlier than the Product shipment date in connection with
each accepted and fulfilled purchase order. Dealer will pay amounts due in each
such invoice pursuant to the credit terms established by the parties, which will
be set forth in the Vendor Program Agreement, the terms of which will be agreed
to by the parties and which will be attached as an addendum hereto, as further
described in Section 10. The designated credit term will commence on the later
of (a) the date Dealer receives Products at the FOB point specified in Section
5, or (b) the date Dealer is authorized to resell the applicable Products, i.e.
the "street date." Payment will not be considered late by Vendor for purposes of
calculating early payment discounts if payment is sent by Dealer within one (1)
week of the due date or if payment is delayed because of an EDI communication
failure or due to an indebtedness of Vendor to Dealer. No interest or other
charges will be payable by Dealer upon this Agreement, or any resulting invoice,
whether claimed by reason of late payment or otherwise. All transactions will be
valued and paid in United States currency.
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4.2 Right to Make Offset. Dealer may offset from Vendor's invoice any
indebtedness of Vendor to Dealer, whether or not related to this Agreement.
Vendor agrees to not contest Dealer's deduction if Vendor fails to send a
written denial thereof, including all supporting documentation, to Dealer within
ninety (90) days of the date of deduction (Dealer's check date). Such written
denial will be made by Vendor by submitting notice to Dealer via Dealer's
standard Dispute Control Document, available at Dealer's Vendor Extranet web
site, XXX.XXXXXXXXXXXXXXXXX.XXX.
4.3 Statement of Account. From time to time upon request by Dealer, Vendor will
provide a complete statement of account that will include but not be limited to
unpaid invoices and disputed deductions. Such statement of account will also
disclose all credit memos issued and outstanding. The statement of account will
be forwarded by electronic mail in spreadsheet format or by regular mail per
Dealer's instructions. Statements for merchandising/inventory accounts will be
separate from any statement of account for parts purchased by Dealer for Product
service and out-of-warranty repairs.
4.4 Debit Balances. If Vendor is indebted to Dealer but there is no outstanding
balance due to Vendor, Vendor will pay the amount due to Dealer via check or
wire transfer in full within thirty (30) days of receipt of notification thereof
from Dealer. If the amount in question is disputed, the parties agree to work in
good faith to reconcile the matter so that payment to Dealer of any undisputed
amount will be made within sixty (60) days of Dealer's original notice to
Vendor. In no event will Dealer be obligated to take a credit against future
purchases.
5. SHIPPING
5.1 Shipping Terms: The parties hereby agree to the ground shipment terms
selected below:
[ ] FOB Destination, Freight Prepaid by Vendor. Vendor will be responsible
for carrier selection and routing instructions. Vendor will pay all
costs and expenses incurred prior to the FOB point, including without
limitation, insurance, freight, and any notification, sort and
segregation charges. Title and risk of loss passes upon delivery at the
destination specified by Dealer, which may include but is not limited
to its stores, distribution centers, and third-party fulfillment
providers. Vendor is encouraged to utilize Dealer's preferred carriers
to improve on-time performance, minimize transit times and reduce the
need for expedited shipments.
[X] FOB Origin, Freight Collect and Allowed. Dealer will be responsible for
carrier selection, routing instructions and pick-up appointments at
Vendor's domestic origin facility. In addition, Dealer is responsible
for carrier freight payments, submitting freight claims for loss and
damage, scheduling appointments at destination, and tracking and
tracing freight in transit. Title and risk of loss passes to Dealer
upon delivery at Vendor's domestic origin shipping dock. Vendor agrees
to have Products in ship-ready condition on the ship date specified in
the applicable purchase order and provide forty-eight (48) hour notice
of pick-up request to Dealer. The attached Collaborative Transportation
Agreement, as amended from time to time by the parties, if applicable,
contains additional terms that define the parties' responsibilities
under this shipping arrangement.
5.2 Time is of the Essence. TIME IS OF THE ESSENCE OF THIS AGREEMENT WITH
RESPECT TO THE SPECIFIED DATES FOR SHIPMENT OF PRODUCT.
5.3 Expedited Shipments. Vendor will pay any additional freight expenses
incurred in connection with an expedited shipment arising from a shipment delay
or other cause attributable to Vendor. Dealer will pay any additional freight
expenses incurred in connection with an expedited shipment arising from a
shipment delay or other cause attributable to Dealer.
5.4 Other Charges. Any charges related to special requests of Vendor to carrier,
including loading assistance, detention, or any other instructions, prior to
title passage, will be the responsibility of the Vendor.
5.5 Direct Import Addendum. Terms relating to Products that are imported by
Dealer, if applicable, are set forth in the attached Direct Import Addendum,
which is incorporated herein by reference.
6. PRICE PROTECTION; NOTICE OF PRICE INCREASES
6.1 Price Protection. If Vendor issues a price decrease for Products (a) the
lower price will be reflected on Vendor's invoice with respect to any price
decrease that occurs prior to shipment and (b) Dealer will receive price
protection credit with respect to Dealer's on-hand inventory existing on the
effective date of the price decrease, which will include Product wherever
located (e.g., inventory located in stores, warehouses, return centers and
Product in transit between these locations or from Vendor to Dealer). Dealer
will submit a cost adjustment claim to Vendor that is supported by documentation
that reflects Dealer's inventory records of Product subject to price protection
credit.
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6.2 Notice of Price Increases. Except as otherwise agreed, Vendor will give
Dealer ninety (90) days prior written notice to Dealer of the effective date of
any price increases. A price increase will not affect Dealer's cost on a
purchase order accepted by Vendor prior to the effective date of such price
increase.
7. RETURNS
7.1 Return Rights. Dealer will have the right to return for full credit or
refund of Dealer's cost any Products (a) against which an allegation is made
that the use of such Products infringes on any patent, trademark, trade secret,
copyright, right of privacy or publicity, or any other tangible or intangible
proprietary or intellectual property right; (b) that are not manufactured,
packaged, or labeled in accordance with industry standards and/or all applicable
laws, ordinances, rules, and regulations; (c) that are shipped in error or in
non-conformance with Dealer's purchase order; (d) that have caused injury to
person or property; and (e) that are damaged or Defective. Returned Products
will be shipped FOB Origin, Freight Collect from Dealer's product return center,
distribution center or stores, as the case may be.
7.2 Defective Products. For purposes of this Agreement, a "Defective" Product
means any Product that is visually or operationally defective and Product that
has been returned by a customer in accordance with Dealer's end-user return
policy. Dealer's end-user return policy allows for the return of most Products
with or without cause for a specified period after purchase, regardless of
whether the Product packaging has been opened or whether the Product is actually
defective.
7.3 Return Procedures. If a Vendor Return Authorization is first required by
either party prior to Dealer's return of Product to Vendor, Vendor agrees to
provide a unique Return Authorization number to Dealer within two (2) business
days of Dealer's request. Vendor will allow delivery of return Product as of the
day the Return Authorization is issued to Dealer. If Vendor requires that Dealer
make an appointment to deliver returned Product, such appointment will be
provided by Vendor within three (3) days of the carrier's expected arrival time.
Upon shipment of the return Product to Vendor, Dealer will send a Return Goods
Memo (debit memo) to Vendor that references the corresponding Return
Authorization number, if any, along with quantity and dollar amounts on a per
unit basis. Dealer may thereafter deduct the total dollar amount of the return
Product from Vendor's invoice. Vendor agrees to send a credit memo to Dealer for
the amount specified in the Return Goods Memo within ninety (90) days of the
date of Dealer's deduction. Such credit memo will reference either Dealer's
Return Goods Memo number or the Return Authorization number. Product returned to
Vendor will be delivered in their original, undamaged containers, provided that
Vendor will not consider a container with a removed UPC to be damaged for
purposes of calculating the return credit if such UPC was removed by an end-user
in connection with a Vendor-sponsored rebate offer. In the event Dealer
rightfully requests a return of Products under this Agreement and Vendor fails
to timely provide a Return Authorization or accept delivery thereof, Dealer may
take any action in its sole and reasonable discretion at Vendor's expense, which
may include but is not limited to storage, liquidation or destruction of the
Products, provided however that if Dealer liquidates the Products, Dealer shall
not be entitled to refund or credit. If Vendor receives Product from Dealer that
Vendor believes is non-returnable and Dealer agrees, Vendor will return such
Product to Dealer's originating Product returns location at Dealer's expense
within ninety (90) days of Vendor's determination and the shipment cartons will
reference the original return shipment's Return Authorization number or Return
Goods Memo number.
7.4 Additional Return Rights. Additional or different return rights may be
specified in a Vendor Program Agreement (e.g., stock-balancing, defective
allowances) as mutually agreed to by the parties, as further described in
Section 10, and as may be attached hereto. If the parties agree to a defective
allowance, such allowance will replace Dealer's right to return Defective
Products as provided herein, except that if the actual defective rate for a
particular Product exceeds the applicable allowance, Dealer may either adjust
the allowance accordingly or return the excess Defective Product to Vendor for
full credit or refund. A defective allowance will have no effect upon Dealer's
return rights as otherwise provided in this Agreement.
7.5 Warranty Returns; Appointment of Authorized Return Center. Vendor appoints
Dealer as an "Authorized Return Center" for the return by end-users of those
Products under a manufacturer's warranty. Except as may otherwise be agreed in a
comprehensive Product Service Agreement, which will be an addendum hereto as
further described in Section 11, Dealer will (a) receive the in-warranty Product
from the end-user, (b) provide the end-user with an in-store credit ("In-Store
Credit"), and (c) send the end-user's defective Product to Vendor after
receiving Vendor's return authorization, if required. The appointment of Dealer
as an Authorized Return Center is non-exclusive and will include all present and
future Dealer locations which Dealer designates to accept the Product returns.
This appointment of Dealer as an Authorized Return Center will survive the
expiration or termination of this Agreement to the extent necessary to satisfy
end-user warranty requests.
8. DISCONTINUED PRODUCT
A "Discontinued Product" means any Product that Vendor has stopped manufacturing
or any Product that undergoes a change in appearance or packaging. Vendor agrees
to provide Dealer with at least ninety (90) days advance written notice of the
occurrence of a Discontinued Product, or as soon as possible in the event that
the discontinuance is caused by actions taken by a component part supplier of
Vendor. Upon notice of such Discontinued Product, Dealer may, without penalty or
liability, cancel any outstanding purchase orders (orders which have not yet
been shipped by Vendor) pertaining to the Discontinued Product. With respect to
Dealer's existing inventory of Discontinued Product, Dealer and Vendor will work
together in good faith to either negotiate a cost markdown of such existing
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inventory, or return such Discontinued Product to Vendor for full credit or
refund; provided, however, if the parties do not mutually agree to either of the
former, Dealer reserves the right to return the Discontinued Product for full
credit or refund.
9. VENDOR PERFORMANCE AND OPERATIONS STANDARDS
Other terms that are relevant to doing business with a particular operating
division of Dealer or Affiliate may be found in the Vendor Performance and
Operations Standards, which is a part of this Agreement and incorporated herein
by reference. The Vendor Performance and Operations Standards may be accessed at
Dealer's Vendor Extranet web site, XXX.XXXXXXXXXXXXXXXXX.XXX The Vendor
Performance and Operations Standards may include but is not limited to
information concerning Electronic Data Interchange (EDI), Returns Procedures,
Routing and Shipping Guides and the Shipping Performance Management Program, all
of which may be updated from time to time by Dealer upon notice to Vendor.
10. VENDOR PROGRAM AGREEMENT
Dealer and Vendor may agree upon certain business terms from time to time
concerning matters such as Products, pricing, market development/cooperative
advertising/merchandising funds, invoice credit terms, stock rotation, volume
rebates, new store allowances, and the like. Such terms will be contained in one
or more Vendor Program Agreements, which will be considered an addendum hereto,
as amended from time to time by the parties in writing. In the event of conflict
between business terms of any Vendor Program Agreement and this Agreement, the
business terms contained in such Vendor Program Agreement will control.
11. PRODUCT SERVICE AND WARRANTY REPAIRS
Dealer is committed to meeting its customers' high expectations concerning
post-sale service and warranty repairs. A comprehensive Product Service
Agreement between the parties may be necessary to ensure customer satisfaction.
If applicable, the attached Product Service Agreement controls the servicing and
warranty repairs of the Products and will be executed by both parties prior to
or simultaneous with the execution of this Agreement.
12. TRADEMARKS; VENDOR-PROVIDED CONTENT
12.1 Trademark Use. Vendor grants Dealer a license to use, exhibit, excerpt,
reproduce, publish, publicly perform and transmit via the Internet and otherwise
use all trade names, trademarks, and service marks associated with the Products
for the sole purpose of promoting and selling the Products. This Agreement does
not grant Vendor any right or license to use Dealer's trade names, trademarks or
service marks, promotional material, copy, graphics, themes, strategies,
inventions, program, and files without first obtaining Dealer's express written
approval, provided however that Vendor may refer to Dealer as an outlet for the
Products.
12.2 Vendor Content. Vendor may provide to Dealer, without limitation, Product
specifications, images, and other textual, graphical and/ or multimedia content
regarding the Products for use in preparing advertising and promotional material
("Vendor Content"). Vendor hereby grants Dealer a license to use, exhibit,
excerpt, reformat, modify, reproduce, publish, publicly perform and transmit via
the Internet and otherwise use such Vendor Content for the sole purpose of
advertising and promoting the Products.
12.3 Use After Termination. Upon termination of this Agreement, Dealer may
continue to advertise and promote the Products, using the Vendor's trade names,
trademarks, service marks and Vendor Content until inventory depletion.
13. CONFIDENTIALITY
This Agreement and any information marked as confidential or, regardless of form
(written/electronic/oral) or marking, is of the nature that a reasonable person
would understand its owner would not want it disclosed to the public will be
considered to be Confidential Information. Further, Confidential Information
will also include (a) any document or data transaction between the parties; (b)
matters of a technical nature such as trade secret processes or devices,
know-how, data, formulas, inventions (whether or not patentable or copyrighted),
specifications and characteristics of products or services planned or being
developed, and research subjects, methods and results, (c) matters of a business
nature such as information about costs, profits, pricing, policies, markets,
sales, suppliers, customers (e.g., names and addresses), product plans, and
marketing concepts, plans or strategies, (d) matters relating to project
initiatives and designs, (e) matters of a human resources nature such as
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employment policies and practices, personnel, including individual names,
addresses, and telephone numbers; compensation and employee benefits, (f) other
information of a similar nature not generally disclosed to the public. Each
party agrees not to disclose Confidential Information except to employees, or a
third party subject to a similar confidentiality agreement, which have a need to
know to perform their responsibilities. Each party agrees to take at least the
same precautions to protect Confidential Information as such party would utilize
to ensure the protection, confidentiality and security of its own confidential
information. Each Party, at its own expense, will properly use security
procedures that are reasonably sufficient to ensure that all transmissions of
documents are authorized and to protect its business records and data from
improper access. Confidential Information will not include any information which
(a) is or becomes generally known or available through no act or failure to act
by the receiving party; (b) is already known by the receiving party as evidenced
by its written records; (c) is hereafter rightfully furnished to the receiving
party by a third party without restriction on disclosure; or (d) is disclosed in
response to a valid order by a court or other governmental body, provided that
the receiving party provides the disclosing party with prior written notice of
such disclosure as soon as reasonably possible in order to permit the disclosing
party to seek confidential treatment of such information. Upon the expiration or
earlier termination of this Agreement, a party may, in writing, request either
the prompt return or destruction, and a written certification of such
destruction, of any Confidential Information provided to the other party. Each
party further acknowledges that monetary damages may not alone be a sufficient
remedy for unauthorized disclosure of Confidential Information and that the
non-disclosing party will be entitled to seek all remedies and damages available
in law and equity, including but not limited to such injunctive relief as may be
deemed proper by a court of competent jurisdiction.
14. ADDITIONAL OBLIGATIONS OF VENDOR
14.1 Product Materials. Vendor will provide to Dealer, at no charge, an adequate
number of Product samples, adequate copies of any marketing and technical
information, service manuals, detailed Product specifications, end-user
warranties and other Product data and materials.
14.2 Training. Vendor will assist with the training of Dealer personnel on
Dealer's premises as reasonably necessary to ensure that Dealer's sales and
service personnel will be adequately knowledgeable with respect to the Products.
14.3 Compliance with Laws. Vendor will notify Dealer within ten (10) days
regarding the existence and nature of Vendor's knowledge of any material
non-compliance with applicable laws, or its notice of a claim from a consumer
(which, individually or in the aggregate, may reasonably be expected to result
in material liability to Vendor and/or Dealer) that a Product is defective or
does not comply with all applicable laws.
15. REPRESENTATIONS AND WARRANTIES
15.1 Vendor's Representations and Warranties. Vendor represents and warrants to
Dealer that (a) it has the authority to enter into this Agreement and to sell
the Products to Dealer, free and clear of all liens, charges, encumbrances, or
other restrictions, and that the persons signing this Agreement on behalf of
Vendor are authorized to sign; (b) the Products will be free from defects in
material and workmanship, and will be fit and safe for the use(s) normally and
reasonably intended; (c) the Products are of merchantable quality and will
perform in conformance with specifications and Vendor samples; (d) it will
provide a manufacturer's warranty to end-users of the Products that is generally
consistent with or superior to industry standards; (e) it will comply with all
applicable federal, state, and local laws and regulations in performing its
obligations under this Agreement, including but not limited to laws and
regulations pertaining to product design, manufacture, packaging and labeling
and, if applicable, importation and the Foreign Corrupt Practices Act; and (f)
the Products are not produced, manufactured, assembled or packaged by the use of
forced labor, prison labor or forced or illegal child labor and that the
Products were not trans-shipped for the purpose of mislabeling, evading quota or
country of origin restrictions or for the purpose of avoiding compliance with
forced labor, prison labor or child labor laws.
15.2 Dealer's Representations and Warranties. Dealer represents and warrants to
Vendor that (a) it has the authority to enter into this Agreement, and that the
persons signing this Agreement on behalf of Dealer are authorized to sign; (b)
it will comply with all applicable federal, state, and local laws; and (c) it
will exert commercially reasonable efforts to promote and sell the Products
consistent with Dealer's sales, marketing and merchandising plans, as may be
amended from time to time in Dealer's sole and absolute discretion.
16. TERM AND TERMINATION
16.1 Term. This Agreement will be effective for an initial term of one (1) year
commencing on the Effective Date hereof and will automatically renew for
successive periods of one (1) year each following the initial term of this
Agreement unless either party gives the other written notice to the contrary at
least thirty (30) days prior to the scheduled date of renewal or unless sooner
terminated as provided herein.
16.2 Termination. Either party may terminate this Agreement at any time without
cause upon ninety (90) days written notice to the other party. In the event a
party is in material breach of this Agreement, this Agreement may be terminated
immediately by the non-breaching party, provided that notice describing the
breach has been provided to the breaching party and the breaching party has
failed to cure such breach within thirty (30) days of its receipt thereof.
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16.3 Events on Termination.
(a) Without Cause. Upon expiration or the termination of this Agreement
without cause, the parties will agree to either (i) completion by Dealer of
sell-through of the remaining Product inventory; or (ii) return of the remaining
Product inventory to Vendor, for which Dealer will receive a refund, at cost,
less one-half (1/2) of the return freight expenses.
(b) For Cause. Upon termination of this Agreement for cause, the
parties will agree to either (i) completion by Dealer of sell-through of the
remaining Product inventory; or (ii) return of the remaining Product inventory
to Vendor at the breaching party's expense, and Dealer will receive a refund at
Dealer's cost for all returned Products.
17. INDEMNIFICATION
Vendor will indemnify, defend, and hold Dealer, its parent, affiliates, agents
and employees, harmless from and against any and all claims, actions,
liabilities, losses, costs and expenses arising from or in connection with (a)
Vendor's breach of this Agreement, including but not limited to its
representations and warranties; (b) acts or omissions of Vendor relating to the
Products which includes, but is not limited to claims that the Products, or use
thereof, caused personal injury, death, or real or personal property damage; (c)
a Product recall, whether or not initiated by Vendor; (d) claims that the
Products or any Vendor Content infringe, misappropriate or injure a third
party's intellectual property or proprietary rights; (e) false or misleading
Product specifications or other Vendor Content provided to Dealer to promote and
sell the Products; and (f) Vendor's failure to promptly perform its obligations
in connection with a rebate offer. Dealer agrees 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. Vendor agrees to pay all costs of
liability, settlement and defense, including attorney fees and costs..
Dealer will indemnify, defend and hold Vendor, it affiliates, agents and
employees, harmless from and against any and all claims, actions, liabilities,
losses, costs and expenses arising from or in connection with (a) Dealer's
breach of this Agreement, including but not limited to its representations and
warranties; and (b) acts or omissions of Dealer relating to the Products,
including but not limited to, altering Vendor Content or the Products so as to
violate any intellectual property or proprietary rights of third parties.
18. INSURANCE
18.1 Comprehensive / Commercial General Liability. Vendor will procure and
maintain throughout the term of this Agreement a policy of comprehensive general
or commercial general liability insurance with a combined single limit of not
less than one million dollars ($1,000,000) for each occurrence.
18.2 Workers Compensation; Automobile Liability. If Vendor's agents will be
entering Dealer's premises, Vendor will procure and maintain throughout the term
of this Agreement: (a) Workers Compensation insurance in an amount not less than
the statutory limits and (b) automobile liability insurance with a combined
single limit of not less than one million dollars ($1,000,000) for each
occurrence for personal injury, including death, and property damage.
18.3 Umbrella Coverage. Vendor will procure and maintain throughout the term of
this Agreement Umbrella coverage of not less than ten million dollars ($
10,000,000).
18.4 Requirements. Vendor will supply Dealer with a Certificate of Insurance
with respect to each of the foregoing policies, except Workers Compensation,
that names BEST BUY CO., INC., ITS SUBSIDIARIES & AFFILIATES as an Additional
Insured, and which also provides that such insurance will not be canceled or
changed unless at least thirty (30) days prior written notice has been given to
Dealer. The insurance required hereunder will be issued by an insurance company
or companies authorized to do business in the United States. Vendor's insurance
will be primary and required to respond to and pay claims prior to other
coverage.
19. ASSIGNMENT
19.1 Assignment. This Agreement may not be assigned by either party without
first obtaining the other party's express written consent, which consent will
not be unreasonably withheld; provided, however, that either party may assign
this Agreement, without obtaining the other party's express written consent, to
(a) a successor corporation resulting from a merger, consolidation, or
non-bankruptcy consolidation or to a purchaser of all or substantially all of
either party's assets or a majority, or controlling interest in either party's
voting stock, provided that the purchaser's net worth at the time of purchase is
equal to or greater than that of the party in question, and further provided
that the purchaser is not a competitor of the other party; and (b) a present or
future subsidiary or affiliate. Any attempted assignment in violation of this
Agreement will be null and void.
19.2 Assignment of Accounts Receivable. If Vendor assigns payments to an
assignee/factor, Vendor understands and agrees that Vendor and the
assignee/factor will be required to sign Dealer's standard acknowledgment form
to assure Dealer that the assignee/factor understands the rights and obligations
being assigned, including the right of Dealer to make offsets.
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20. AUDIT RIGHTS; CLAIMS
20.1 Audit Rights. Upon reasonable prior written notice and at reasonable times
during regular business hours, each party will have the right to audit the other
party's books and records to assure compliance with the terms and conditions of
this Agreement. If the audit reveals that a party is not performing in material
compliance with the terms of this Agreement, then, in addition to any other
legal and equitable rights and remedies available, the party not in compliance
will reimburse the other for the reasonable costs of the audit.
20.2 Claims. Except as otherwise provided in this Agreement, claims by either
party, however asserted, will be commenced within two (2) years from the date
the cause of action accrues.
21. CONFLICT OF INTEREST AND CODE OF CONDUCT POLICIES
Vendor agrees to respect and abide by Dealer's conflict of interest and code of
conduct policies, which are available at XXX.XXXXXXXXXXXXXXXXX.XXX and may be
amended from time to time by Dealer. Vendor should contact Dealer's email
hotline at XXXXXX.XXXXXXXXX@XXXXXXX.XXX for information concerning Dealer's
policies and to discuss any ethical or conduct concerns that they may have as a
result of their contact with Dealer personnel. Vendor understands and
acknowledges that Dealer's conflict of interest and code of conduct policies
address Vendor-paid travel, gifts and gratuities, offering and accepting bribes,
family members and close personal relationships involving employees of both
parties, personal investments in the other party, Vendor-sponsored charitable
and other events, Vendor product samples, Vendor promotional copies, direct
personal purchases from Vendors by Dealer employees, and awards, incentives and
other spiffs from vendors. Vendor agrees to avoid conflict of interest
situations with Dealer and to deal at arms length with Dealer. Dealer similarly
agrees to abide by Vendor's policies concerning these subject matters.
22. FORCE MAJEURE
Neither party will be in breach of this Agreement solely due to causes beyond
the control and without the fault or negligence of such party. Such causes may
include, but are not restricted to, acts of God or of a public enemy, acts of
the government in either its sovereign or contractual capacity, fires, floods,
epidemics, quarantine restrictions, strikes, freight embargoes, power failure,
or failure of the U.S. postal system, but in every case the failure to perform
will be beyond the control and without fault or negligence of the party failing
to perform. Each party will inform the other of any Force Majeure event within
five (5) business days of its occurrence.
23. NOTICES
All notices, requests, demands and other communications that are required or may
be given under this Agreement will be in writing and will be deemed to have been
duly given if hand-delivered or mailed by either registered or certified mail,
return receipt requested, or by a nationally recognized overnight courier
service, receipt confirmed. In the case of notices via first-class mail or
courier service, notices will be deemed effective upon the date of receipt.
Notices will be addressed to the parties as set forth below, unless either party
notifies the other of a change of address, in which case the latest noticed
address will be used:
Notices To Vendor: Notices To Dealer:
------------------ ------------------
SLS International, Inc. Best Buy Purchasing LLC
0000 X. Xxxxxxx 0000 Xxxx Xxxxxx Xxxxx
Xxxxx, XX 00000 Xxxxxxxxx, XX 00000-0000
Attn: Ed Moist Attn: Senior Vice President, Merchandising
417-883-4549 Copy To: Manager, Vendor Relations
Copy To: General Counsel, Legal Department
24. GENERAL
24.1 Relationship of the Parties. The relationship between the parties will be
that of independent contractor. Nothing herein will be construed as creating or
constituting the relationship of employer/employee, franchiser/franchisee,
principal/agent, partnership, or joint venture between the parties.
24.2 Governing Law; Jurisdiction. This Agreement will be governed by and
interpreted under the laws of the State of Minnesota.
24.3 Enforceability. If any provision of this Agreement is held to be
unenforceable by a court of competent jurisdiction, such provision will be more
narrowly and equitably construed so that it becomes legal and enforceable, and
the entire Agreement will not fail on account thereof and the balance of the
Agreement will continue in full force and effect.
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24.4 No Waiver. Any of the provisions of this Agreement may be waived by the
party entitled to the benefit thereof. Neither party will be deemed, by any act
or omission, to have waived any of its right or remedies hereunder unless such
waiver is in writing and signed by the waiving party, and then only to the
extent specifically set forth in such writing. A waiver with reference to one
event will not be construed as continuing or as a bar to or waiver of any other
right or remedy, or as to a subsequent event.
24.5 Counterparts and Electronics Signature. This Agreement may be executed in
one or more counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument. This Agreement may
be executed by facsimile or other "electronic signature" (as defined in the
Electronic Signatures in Global and National Commerce Act of 2000) in a manner
agreed upon by the parties hereto.
24.6 Entire Agreement; Amendments. This Agreement, including any addenda or
exhibits attached hereto, contains the entire Agreement between the parties with
respect to the subject matter hereof, supersedes all prior agreements,
negotiations and oral understandings, if any, and may not be amended,
supplemented, or modified in any way, except by an amendment in writing and
signed by authorized representatives of the parties hereto. No amendment will be
effected by the acknowledgement or acceptance of a purchase order, invoice, or
other forms stipulating additional or different terms. This Agreement will inure
to the benefit of and be binding upon each of the parties and their respective
successors, assigns, heirs, executors, administrators, trustees and legal
representatives.
24.7 Reservation of Rights. Duties and obligations imposed by this Agreement and
rights and remedies available hereunder will be in addition to and not a
limitation of duties, obligations, rights and remedies otherwise imposed or
available by law except as otherwise provided herein.
24.8 Headings. Headings used in this Agreement are for the purposes of
convenience only and will not affect the legal interpretation of this Agreement.
24.9 Draftsmanship. Each of the parties hereto has been represented by its own
counsel. In the event of a dispute, no provision of this Agreement will be
construed in favor of one party and against the other by reason of the
draftsmanship of this Agreement.
24.10 Survival. The expiration or termination of this Agreement will not
terminate vested rights of either party from any liabilities or obligations
incurred under this Agreement prior to or which by their nature are intended to
survive expiration or termination, including but not limited to provisions
relating to confidentiality, warranties, indemnification, returns, and
proprietary rights.
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ADDENDA (CHECK IF APPLICABLE)
Each checked Addendum is hereby incorporated into and made a part of this
Agreement:
[X] Vendor Program Agreement [ ] Configure to Order Agreement
[X] Product Service Agreement [X] Consignment Agreement
[X] Certificate of Insurance [X] Collaborative Transportation Agreement
[X] Vendor Performance and Operations Standards [ ] Direct Import Addendum
(available at xxx.xxxxxxxxxxxxxxxxx.xxx)
IN WITNESS WHEREOF, this Agreement is made effective as of the date first
written above.
BEST BUY PURCHASING LLC VENDOR: SLS INTERNATIONAL, INC.
(on behalf of its Affiliates)
Authorized Officer: Authorized Officer:
------------------ ------------------
(Signature) (Signature)
Name: Xxxxxx Xxx Name: Xxxxxx Xxxxx
Title: VP-Vendor Management Title: President
Date: February 28, 2006 Date: February 21, 2006
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