XXXXXXX PIANO & ORGAN COMPANY
AND
GENERALMUSIC S.p.A.
DISTRIBUTION AGREEMENT
This Agreement is made effective as of July 1, 1995, and is
entered into between Xxxxxxx Piano & Organ Company ("Xxxxxxx"),
with its principal office at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxx
00000-0000, and GeneralMusic S.p.A., with its principal office at
Xxx xxxxx Xxxx 00, 00000 X. Xxxxxxxx xx Xxxxxxxxx (XX) XXXXX
("GM").
W I T N E S S E T H
WHEREAS, Xxxxxxx has for many years been engaged in the
business of marketing electronic and acoustic pianos and organs;
and
WHEREAS, GM manufactures lines of electronic musical
instruments and desires to appoint Xxxxxxx as its exclusive
distributor in the Territory (as defined below) for the Products
(as defined below);
WHEREAS, Xxxxxxx desires to become the exclusive distributor
for GM and to market the Products in the Territory;
WHEREAS, Xxxxxxx and GM desire to enter this Agreement to
define the terms of their business relationship.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, and for other good and valuable consideration,
Xxxxxxx and GM agree as follows:
Article 1 - Products
1. The word "Products" used herein shall mean the following items
from GM's line of electronic pianos: the PS, RP, GRP and GWS
series products, and any products hereafter introduced by GM which
are similar to or in replacement for any such items; it being
understood and agreed by Xxxxxxx that GM will not begin to ship any
RP Products until June 30, 1995 nor ship any GRP Products until
October 31, 1995. "Products" shall also include the software for
the Products. The Products shall bear the "Xxxxxxx" and/or
"Pianovelle" name and/or such other names as Xxxxxxx may designate
from time to time. The Products shall also contain GeneralMusic's
logo or such other designation as Xxxxxxx and GM shall agree.
Product Specifications for the Products (hereinafter "Product
Specifications") are as referenced in Appendix II attached hereto.
The Production Specifications have been reviewed and agreed to by
both GM and Xxxxxxx.
2. Products shall not include GM's keyboards and modules for the
home and/or professional market (other than 76 note and 88 note
weighted keyboards with patterns as provided below in this Article
1, subsection 2), workstations, professional electronic pianos, or
GM's home or church organs (including, without limitation, the line
of church organs presently distributed by GM in the United States
through Xxxxxxx Organ Builders, Inc. and its dealership network).
Such excluded products are sometimes collectively referred to
hereinafter as the "Excluded Instruments". Notwithstanding
anything in the previous sentence to the contrary, GM understands
and agrees that Xxxxxxx shall be presumed to have the exclusive
right to sell all 76 note and 88 note weighted keyboards and
electronic pianos with patterns, and that any professional
electronic piano with built in patterns shall be presumed not to be
an Excluded Instrument unless Xxxxxxx consents in advance in
writing (which consent shall not be unreasonably withheld). GM
agrees that it will inform Xxxxxxx of any plans by GM to develop a
professional product with built-in patterns and to work with
Xxxxxxx in good faith to design any such professional products so
not to be competitive with the Products. GM and Xxxxxxx further
agree that if they cannot agree on the specifications for a
professional product that would not compete with the Products, then
the matter shall be resolved in an arbitration proceeding conducted
pursuant to Article 3, subsection 4. GM further understands and
agrees that GM's CD portable series, 61 note keyboards with
patterns, WX modules and WX2 series keyboards shall be deemed
Excluded Instruments only upon such time as provided in Article 3,
subsection 4.
Article 2 - Sale of Products
GM agrees to sell and Xxxxxxx agrees to buy and distribute Products
subject to the terms and conditions of this Agreement. This
Agreement supersedes any terms printed on the back of any Xxxxxxx
purchase order for Products to be supplied hereunder to the extent
that this Agreement and such purchase order terms may be
inconsistent with each other.
Article 3 - Exclusive Distributor
1. GM hereby appoints Xxxxxxx as its exclusive distributor of
Products within the United States, (including Alaska and Hawaii),
Canada, the Virgin Islands, Puerto Rico and Guam (the "Territory"),
with the exclusive right to distribute, market and sell Products in
the Territory. During the term of this Agreement, GM agrees not to
appoint any other entity or individual as a distributor of Products
within the Territory, nor shall it, directly or indirectly, sell or
distribute Products within the Territory. Xxxxxxx shall distribute
Products through its dealer network, as now or hereafter
constituted. Xxxxxxx further agrees that it will not sell any
Products outside of the Territory unless GM agrees in advance in
writing.
2. Except as contemplated by Article 3, subsection 4 and Articles
13 and 18, nothing in this Agreement shall be construed to: (i)
restrict Xxxxxxx from developing or from marketing or distributing
through its dealer network any Xxxxxxx instruments or products that
do not directly compete with the Products in the Territory (e.g.
Xxxxxxx may sell acoustic pianos, classical and church organs and
music lab products without restriction); (ii) restrict Xxxxxxx,
through its dealer network, from marketing or distributing outside
the Territory any Xxxxxxx instruments or products whatsoever,
whether now existing or developed hereafter, acoustical or digital,
whether or not such instruments or products compete with the
Products; (iii) provided that GM has consented in advance in
writing (which consent shall not be unreasonably withheld),
restrict Xxxxxxx from marketing or distributing within the
Territory, through its dealer network, any new digital instruments
or products developed by Xxxxxxx; (iv) restrict Xxxxxxx from
liquidating its inventories of GM's CD portable series, 61 note
keyboards with patterns, WX modules and WX2 series keyboards as
contemplated by Article 3, subsection 4; or (v) restrict Xxxxxxx'x
sale of the Wurlitzer "ButterFly" digital grand piano on or before
December 31, 1995, it being understood and agreed that after such
date neither Xxxxxxx nor Wurlitzer will ship additional "ButterFly"
digital grand pianos unless agreed in advance in writing by GM,
provided, however, that at all times Xxxxxxx and Wurlitzer dealers
may continue to sell such "ButterFly" grand pianos held in their
inventory until such inventories are exhausted.
3. Except as contemplated by Article 3, subsection 4, and
Articles 13 and 18, nothing in this Agreement shall be construed
to: (i) restrict GM's right to sell the Products outside of the
Territory, it being specifically understood and agreed by GM that
GM has no right to use the "Xxxxxxx", "Pianovelle" or "Wurlitzer"
name or any other trademark, tradename or other logo owned,
licensed or used by Xxxxxxx in connection with any such sales and
that no such name, trademark, tradename or logo shall appear on
such Products; or (ii) restrict GM's rights to sell in the
Territory any items it manufactures or distributes which are not
within the definition of Products; (iii) restrict GM from
developing any new instruments or products, acoustical and digital,
or from marketing or distributing any such new instruments or
products outside the Territory, whether or not such items compete
with the Products; or (iv) restrict GM's right to service any of
the items in Article 5.1(e).
4. In the event that GM and Xxxxxxx disagree as to whether an
instrument or product manufactured or sold by the other competes
with any of the Products and may be sold in the Territory, GM and
Xxxxxxx hereby agree that a panel of three arbitrators shall be
selected as provided herein, that such panel shall determine
whether such new instrument or product competes with any of the
Products, and that such decision (which shall be made by a majority
vote of the panel) shall be binding upon GM and Xxxxxxx for all
purposes of this Agreement. Each of GM and Xxxxxxx agree that it
shall provide all information to such arbitrators as the
arbitrators may request in order to reach a determination and that
the procedure selected by the arbitrators for conducting the
arbitration process shall be adhered to by it.
The arbitrators to be utilized pursuant to this Article 3,
subsection 4, shall be individuals who are reasonably knowledgeable
of the music and keyboard industry but may not be shareholders,
directors, officers, employees, agents, dealers or otherwise
affiliated with or at any time employed by either GM or Xxxxxxx.
Each of GM and Xxxxxxx shall select one arbitrator to serve on such
panel within fifteen days of such time that either Xxxxxxx or GM
first makes a written demand upon the other that arbitration is
desired pursuant to this subsection. The two arbitrators so
selected shall then select the third arbitrator within fifteen days
of the date that the first two arbitrators are so chosen. Once the
panel of arbitrators is selected, such panel shall determine the
time, place and manner in which the arbitration shall be conducted
subject only to the requirement that a final decision be reached
within thirty days of the full panel being selected. Each of GM
and Xxxxxxx shall pay all costs and expenses of the arbitrator
selected by it and shall each pay one half the costs and expenses
of the third arbitrator.
To allow Xxxxxxx and Wurlitzer the opportunity to liquidate
all of their inventories of GM's CD portable series, 61 note
keyboards with patterns, WX modules and WX2 series keyboards
existing as of the date of this Agreement, including all quantities
of such items on consignment or otherwise held for sale by Xxxxxxx
and Wurlitzer dealers, GM will not commence its sale in the
Territory of its CD portable series, 61 note keyboards with
patterns, WX modules, WX2 keyboards and/or any replacement models
for any of the foregoing products and instruments described in this
paragraph (including but not limited to GM's anticipated K4
keyboard intended as a replacement for the WX2 keyboard) until the
earlier of (a) the sale of all such inventories by Xxxxxxx and
Wurlitzer, (b) the purchase by GM at Xxxxxxx'x landed cost of such
inventories from Xxxxxxx and Wurlitzer pursuant to Article 10,
subsection 2, or (c) September 1, 1995 for the CD line of
instruments and October 1, 1995 for the WX line of instruments.
Thereafter, GM may sell such CD and WX instruments and products
without restriction. In the event that by October 1, 1995 Xxxxxxx
has not liquidated all such inventories and GM has not purchased
all such inventories, Xxxxxxx may thereafter continue to sell such
remaining inventories in the Territory notwithstanding that GM will
also be free to sell such products and instruments, and the
replacement models therefor, within and outside of the Territory.
However, unless and until Xxxxxxx and Wurlitzer have sold all of
their inventories of CD and WX instruments, GM will sell in the
Territory only the replacement models for such instruments.
5. Xxxxxxx further agrees that neither Xxxxxxx nor any of its
subsidiaries or affiliates will extend any offer of employment or
employ Xxxxx Xxxxxxx, GM's product specialist, without the prior
approval of GM.
Article 4 - Duties of Xxxxxxx
As the exclusive distributor of Products within the Territory,
Xxxxxxx agrees to perform the activities normally performed by a
distributor. Specifically, in such capacity, Xxxxxxx shall:
(a) use its reasonable best efforts to promote the sale of
all of the Products within the Territory through its dealer and
sales network;
(b) maintain an adequate sales and distribution network and
warehouse facilities;
(c) use its reasonable best efforts to require its dealers
who sell Products to maintain adequate inventories of Products;
(d) provide suggestions to GM regarding Product modifications
or new product development; and
(e) provide product service support required after the sale
of Products.
Article 5 - Duties of GM
1. GM agrees to perform the activities normally performed by a
manufacturer. Specifically, GM shall:
(a) provide such technical assistance as may be requested by
Xxxxxxx in connection with the sale and servicing of Products;
(b) publish, in English, in French and in Spanish (if French
and/or Spanish, respectively are available), GM's standard owners
and technical manuals and standard promotional materials (other
than product brochures which Xxxxxxx may produce on its own and at
its own expense), provided that Xxxxxxx shall keep such technical
material confidential except where its dissemination is necessary
for the sale or service of Products;
(c) forward to Xxxxxxx, in a timely manner, all inquiries,
leads and responses to advertising relating to Products from
potential customers located within the Territory;
(d) consult in good faith with Xxxxxxx regarding Xxxxxxx
suggestions related to Product modifications or new product
development;
(e) reimburse Xxxxxxx for any costs (including parts and
labor) incurred by Xxxxxxx in servicing items sold by GM prior to
the date of this Agreement which items otherwise would have
constituted Products for purposes of this Agreement, provided that
GM requests or authorizes such service prior to Xxxxxxx performing
same and provided, further, that items sold by GM to Wurlitzer
under the Distribution Agreement described in Article 30 shall
continue to be subject to the warranty provisions of that Agreement
notwithstanding the termination of that Agreement;
(f) use its best efforts to fill the orders made by Xxxxxxx
for Products pursuant to the procedures described in Appendix I
hereof;
(g) provide to Xxxxxxx reasonable technical assistance,
including access, at mutually convenient times, to a dedicated
project engineer located at GM's manufacturing facility;
(h) provide, at GM's expense, the services of one of GM's
product specialists to assist Xxxxxxx in servicing the home market
during each year that this Agreement remains in force as provided
in Article 5, subsection 2, such dates to be acceptable to Xxxxxxx,
XX and such specialist and such services to be provided at the
locations specified by Xxxxxxx from time to time, it being agreed
by Xxxxxxx that GM shall use its best efforts to work with Xxxxxxx
to provide such services in the locations desired by Xxxxxxx but
that GM shall not be obligated to arrange for such specialist to be
at a certain location unless Xxxxxxx has provided GM with 60 days
advance notice of the location desired, and provided, further, that
GM's product specialist's out of pocket disbursements shall be paid
for by Xxxxxxx, including travel expenses (it being understood that
GM shall provide the services of the product specialist located
nearest to the location specified by Xxxxxxx and that if such
specialist is unavailable so that GM desires to send a more distant
specialist to the desired location, then Xxxxxxx shall have the
option of either paying the entire travel expense of such distant
specialist or Xxxxxxx may cancel or reschedule its request for a
product specialist in the designated location); and
(i) within thirty (30) days hereof, and at least every ninety
(90) days thereafter, provide Xxxxxxx with a listing of current and
proposed Products, including product descriptions, prices or
estimated prices and the anticipated timing to bring such products
to the market.
2. For purposes of Article 5, subsection 1(h), GM shall provide
the services of its product specialists for a minimum of 30 days
during the first year of this Agreement. In each subsequent year,
GM shall provide the services of its product specialists based upon
the dollar amount of Products purchased by Xxxxxxx pursuant to this
Agreement in the immediately preceding year and that Xxxxxxx shall
be entitled to ten days of services of GM's product specialists for
each $1,000,000 of Products purchased by Xxxxxxx (e.g. if Xxxxxxx'x
purchases of Products equal $8,000,000 in the third year, then GM
shall make its product specialists available for 80 days in the
fourth year). In the event that Xxxxxxx'x purchases would exceed
$3,000,000 prior to the end of the first year, GM shall also
provide additional services of its product specialists during the
first year on this same basis.
Article 6 - Product Development
1. GM agrees to use its reasonable best efforts to perform the
development services described herein (the "Services"), including
but not limited to those development services set forth in Article
6, subsection 2, which are directed towards the development of
enhanced digital piano products to be sold by Xxxxxxx as Products
within the Territory. In addition to the Services specified in
subsection 2 below, GM also agrees that it will continue its
individual efforts to develop new products and that GM will seek to
introduce a new generation of digital products no less than every
eighteen to twenty four months during the term of this Agreement.
2. GM agrees that commencing with the effectiveness of this
Agreement, GM will use its reasonable best efforts to undertake the
following product enhancements and introductions:
(a) to produce an entry level slab version digital piano
(with optional stand);
(b) to incorporate the Xxxxxx-Xxxxx and IMX sound enhancement
circuits in certain Products to be agreed upon by Xxxxxxx and GM;
(c) to place the Xxxxxxx and Pianovelle name on all new
digital pianos constituting Products sold to Xxxxxxx pursuant to
this Agreement;
(d) subject to receipt by GM of all necessary information
from Xxxxxxx including the decoding process described in Article 6,
subsection 3(c), to incorporate into all Pianovelle Products with
built-in high density disk drives the ability to read PianoDisc,
Disklavier and Clavinova files in addition to standard midi files;
(e) to incorporate Xxxxxxx'x custom rhythms into as many
Products as possible as agreed upon by Xxxxxxx and GM;
(f) to allow Xxxxxxx to incorporate the R.P. piano sound in
the development of Xxxxxxx'x silent series acoustic pianos and to
assist Xxxxxxx as requested in such process, provided that any such
systems developed or owned by GM shall be available to GM for
incorporation by GM into other products not subject to this
Agreement and GM's right to do so shall survive termination of this
Agreement;
(g) to work with Xxxxxxx to simplify the user interface of
all Products, both current and future models; and
(h) to develop prototype models that may be displayed at the
January, 1996 NAMM show of instruments that implement Xxxxxxx'x
proposals described in clauses (d) and (e).
3. Xxxxxxx agrees that commencing with the effectiveness of this
Agreement, Xxxxxxx will assist GM in accomplishing the items set
forth in subsection 2 above by undertaking the following actions:
(a) to consider using one chip (64 note polyphony) in model
two (RPI version) product offerings and the most economical chip(s)
in model one (slab version) product offerings, to stay consistent
with GM's future Product line;
(b) to provide GM with a schematic and component box for
incorporating the Xxxxxx-Xxxxx and IMX circuits;
(c) to provide GM, for use in Xxxxxxx Products only, with the
ENSONIQ decoding process for the ability to read competitive files,
in accordance with the Confidentiality and Non-Competition
Agreement dated as of July 1, 1995 among Xxxxxxx, XX and ENSONIQ;
(d) to make Xxxxxxx'x custom rhythms available for GM's use
in Xxxxxxx Products only; and
(e) to work with GM to simplify the user interface of all
Products, both current and future models.
GM agrees that it shall not use any of the technology,
software, hardware, trade secrets, know-how or other proprietary
information provided to it by Xxxxxxx, whether or not such
technology, software, hardware, trade secrets, know-how or other
proprietary information is owned or licensed by Xxxxxxx, and not
previously known by, subsequently developed by or otherwise made
available to GM from other sources, for any purpose other than as
specifically set forth in this Agreement or otherwise expressly
agreed to in writing by Xxxxxxx.
Xxxxxxx agrees that it shall not use any of the technology,
software, hardware, trade secrets, know-how or other proprietary
information provided to it by GM, whether or not such technology,
software, hardware, trade secrets, know-how or other proprietary
information is owned or licensed by GM, and not previously known
by, subsequently developed by or otherwise made available to
Xxxxxxx from other sources, for any purpose other than as
specifically set forth in this Agreement or otherwise expressly
agreed to in writing by GM.
Article 7 - Marketing
1. As provided in this Article 7, subsection 1, GM agrees to
contribute to Xxxxxxx'x advertising within the Territory for the
Products with an advertising campaign to be mutually agreed upon.
Xxxxxxx will direct the development and placement for such
advertisements. In the first year of this Agreement, subsequent to
Xxxxxxx'x purchase and payment of $500,000 of Products, GM will
contribute an amount equal to the amount expended by Xxxxxxx, up to
a maximum contribution by GM of $50,000. In each subsequent year,
GM will contribute an amount equal to the amount expended by
Xxxxxxx, up to a maximum contribution by GM equal to the lesser of
$50,000 or 1% of the dollar amount of Products purchased and paid
for by Xxxxxxx in the year most recently ended.
2. Each of Xxxxxxx and GM will make periodic marketing visits to
the other's facilities at times mutually agreed upon. The
traveling party shall be responsible for its own travel expenses
except that the host company shall provide lodging accommodations.
Article 8 - Quantity
1. As of the date hereof, Xxxxxxx represents to GM that Xxxxxxx
has a good faith, reasonable belief that Xxxxxxx will place orders
to purchase not less than U.S. $5,700,000 (the "Minimum Order") of
Products during the first twenty four months of this Agreement, in
the quantity and on the delivery dates as set forth in Appendix I
consistent with Xxxxxxx'x Initial Forecast (as defined in Article
19). Xxxxxxx further represents to GM that Xxxxxxx has a good
faith, reasonable belief that during the first twenty four months
of this Agreement, Xxxxxxx will place orders amounting in the
aggregate to no less than the Minimum Order as follows: Through
the first six months, a total of $500,000 of Products; through the
first twelve months, a total of $1,700,000 of Products; and through
the first eighteen months, a total of $3,400,000 of Products (the
"Incremental Orders"). Xxxxxxx shall place firm orders from time
to time through delivery of its purchase orders to GM in accordance
with the procedures established in Appendix I (hereinafter
"Orders"). In the event that Xxxxxxx fails to purchase Products in
the first twenty four months of this Agreement having a value at
least equal to the Minimum Order or at least equal to the
Incremental Order for any earlier six months interval, such failure
shall be grounds for immediate termination of this Agreement by GM
upon written notice provided at any time during the six months
following the time period in which such Minimum Order or
Incremental Order was not made, notwithstanding any other
provisions of this Agreement to the contrary; provided, however,
that following any termination of this Agreement, GM shall fill
Orders as set forth in, and pursuant to the terms of, Article 20,
subsection 5. In the event that Xxxxxxx fails to purchase $500,000
of Products in the first six months of this Agreement due to the
inability of GM to ship RP Products subsequent to June 30, 1995,
the minimum order requirement for the first six months shall
automatically be deemed reduced in dollar amount by the dollar
amount of RP Products that were not timely shipped, and the minimum
order requirement in every later interval specified in this
Agreement shall also be reduced by the amount of RP Products
ordered by Xxxxxxx in accordance with the procedures established in
Appendix I and not available for shipment. GM also agrees that for
purposes of determining whether the Minimum Order amounts have been
satisfied, the purchases by Xxxxxxx from GM of electronic
components for use in the 675 limited edition Pianovelle models to
be manufactured by Xxxxxxx shall be included in calculating
Xxxxxxx'x aggregate purchases of Products up to an aggregate
maximum of $200,000.
2. Following the expiration of the first twenty four months of
this Agreement, for each year thereafter (including all renewal
terms) Xxxxxxx will place Orders in both the first six months of
such year and in the second six months of such year in an amount
equal to 50% of one half of the annualized minimum purchase
commitment agreed upon for that year (the "Semi-Annual Order"). If
Orders in the first six months of any such year exceed the Semi-
Annual Order, such excess Orders shall be counted in determining
whether Xxxxxxx has placed sufficient Orders in the second six
months of that same year. In the event that Xxxxxxx fails to
purchase Products in any such six month period having a value at
least equal to the Semi-Annual Order, such failure shall be grounds
for immediate termination of this Agreement by GM upon written
notice provided at any time during the six months following the
time period in which such Semi-Annual Order was not made,
notwithstanding any other provisions of this Agreement to the
contrary; provided, however, that following any termination of this
Agreement, GM shall fill Orders as set forth in, and pursuant to
the terms of, Article 20, subsection 5.
Article 9 - Shipment and Risk of Loss
Upon GM's receipt of Orders, the time of shipment of Products shall
be made in accordance with the procedures set forth in Appendix I.
Title and risk of loss shall pass to Xxxxxxx upon delivery of
Products to the freight carrier selected by Xxxxxxx. Except as
expressly set forth herein or as otherwise agreed to from time to
time by GM and Xxxxxxx, all Products shall be shipped only against
irrevocable letters of credit.
Article 10 - Prices and Expenses
1. Prices of Products shall be F.O.B. GM's manufacturing
facility, as set forth in Appendix III, denominated in U.S.
Dollars.
2. Xxxxxxx and GM agree that it is anticipated that GM may, at
its option, purchase those items in Xxxxxxx'x and/or Wurlitzer's
inventory pursuant to Article 3, subsection 4, and as GM and
Xxxxxxx may agree (the "Inventory"), subject to GM's prior
inspection and approval of same. Payment for any such Inventory
purchased by GM shall be to Xxxxxxx by wire transfer, pursuant to
instructions from Xxxxxxx, within thirty (30) days after delivery
of such items by Xxxxxxx to GM. Upon the earlier of (a) the sale
by Xxxxxxx and Wurlitzer of such inventories, (b) GM's purchase of
all such remaining inventories, or (c) September 1, 1995 for the CD
line of instruments and October 1, 1995 for the WX line of
instruments, GM may then sell such instruments and products, and
the replacement models therefor, as provided in Article 3,
subsection 4.
3. All taxes, excise and other charges levied on the production
or sale of the Products purchased hereunder prior to shipment by GM
shall be the responsibility of and shall be paid by GM. All
shipping costs, taxes, tariffs, customs, duties, or similar charges
payable after GM's shipment of Products hereunder shall be paid by
Xxxxxxx.
4. GM shall accommodate UL, FCC and CSA follow-up inspections.
GM shall obtain, at its sole expense, necessary permits under
applicable UL (to the extent reasonably available), FCC, CSA and
other standards for all Products Xxxxxxx desires listed with those
agencies.
Article 11 - Payment
1. Xxxxxxx shall issue or cause to be issued irrevocable letters
of credit in the amount of the purchase price of the Products to be
shipped each month, no later than the scheduled date of shipment in
that month. Said letters of credit, shall be in form and substance
and shall be issued by a bank reasonably acceptable to GM.
2. GM reserves the right to charge interest on overdue accounts
at the lesser of 1% per month or the maximum rate allowed by Ohio
law.
Article 12 - Warranty Obligations
1. General. Subject to the remaining Sections of this Article
12, Seller warrants to Buyer that all Products shall comply with
the Product Specifications, shall be free from defects in material
or workmanship under normal use and service for a period of five
(5) years from the date the Product is sold by Xxxxxxx to a
customer, and shall be free from any liens or encumbrances created
by, through or under GM. If a Product furnished to Xxxxxxx under
this Agreement proves to be defective, in material or workmanship,
during such five year period, or if at the date of shipment such
Product fails to conform to the Product Specifications and GM was
notified of this failure within such five year period, and provided
that the Product has not been damaged by neglect, abuse, accident
or unauthorized alteration, GM will provide to Xxxxxxx a
replacement part in exchange for the return by Xxxxxxx to GM of the
defective or nonconforming part.
2. Parts; Parts Inventory. GM shall furnish Xxxxxxx, at GM's
expense(including the cost of freight unless the parts are shipped
in the same container as any Products), with replacement parts as
needed from time to time during the term of this Agreement, and
with a replacement part for each defective part under warranty
returned to GM by Xxxxxxx (with the cost of freight to return the
defective part to be at GM's expense). Xxxxxxx shall pay for any
replacement part which failed after the expiration of the
applicable warranty period and such replacement parts shall be sold
by GM to Xxxxxxx at GM's cost. In order to facilitate required
servicing of Products, upon the commencement of the Initial Term,
GM shall provide to Xxxxxxx at no cost an inventory of replacement
parts having a value of U.S. $20,000 (based upon GM's then current
parts prices) which inventory shall be maintained at such $20,000
level throughout the term of this Agreement. GM and Xxxxxxx shall
mutually agree from time to time upon the types and quantities of
replacement parts to be maintained in such inventory. On a
quarterly basis (unless a different time period is agreed upon in
writing by Xxxxxxx and GM), (a) Xxxxxxx shall pay GM for all non-
warranty replacement parts used by Xxxxxxx from such inventory
during the previous quarter, and (b) GM shall replenish the
inventory by shipping to Xxxxxxx additional parts to replace all
parts used from the inventory during the preceding quarter,
including parts used both for warranty repair and for non-warranty
repair. To the extent a repair requires parts not in such
inventory, Xxxxxxx may request such parts pursuant to Article 12,
subsection 6.
3. Labor. For a period of 12 months after Xxxxxxx'x sale of a
particular Product, GM shall reimburse Xxxxxxx for all reasonable
labor charges and other expenses incurred to repair any Products
found to be defective in workmanship or materials.
4. Recall. In the event of a field recall or modification of any
Product requested by GM or required by a governmental agency, GM
shall be responsible (and shall reimburse Xxxxxxx for) all costs
incurred in order to complete such recall or modification program.
5. Replacement. If a warranty problem arises with respect to a
Product, which problem cannot be satisfactorily resolved upon the
diligent best efforts of Xxxxxxx and GM following the replacement
or repair of parts and the expenditure of all needed labor costs,
GM will provide additional parts and labor in an attempt to resolve
the problem in the field if necessary. If such extraordinary
efforts fail to resolve such a warranty problem, GM will provide a
replacement unit for the defective Product at no additional charge
to Xxxxxxx or the customer.
6. Warranty Requests. GM will honor all warranty replacement
parts requests from Xxxxxxx. GM agrees to use its best efforts to
ship warranty replacement parts within two (2) business days of
receipt of an authorized request. If GM determines return of the
defective part is required, it must be returned to GM within sixty
(60) days of the date Xxxxxxx receives the replacement part or the
requesting entity will be billed for the replacement part at the
then current parts price.
7. Freight and Duty. During the parts warranty period described
in Article 12, subsection 1, shipping and duty costs for the
shipment by GM of replacement parts shall be borne by GM, provided
that such shipment is normal UPS (or equivalent Italian shipping
method). If Xxxxxxx requests that the parts be shipped by an
expedited method (Federal Express, Air, Next Day, etc.) such
shipping costs, shall be borne by Xxxxxxx. Xxxxxxx shall also be
responsible for all shipping and duty costs for the shipment by GM
of replacement parts no longer under warranty and for the return of
defective parts to GM.
Article 13 - Confidential Information
Both parties agree to treat as confidential all of the information,
in whatever form, provided to the other or mutually exchanged with
respect to each party's business, the transactions contemplated
hereunder and the Products, including without limitation all
software, hardware, firmware, prototypes, work in progress, related
know-how and documentation, patents, copyrights, trade secrets,
specifications and schematics, and shall cause their directors,
officers, employees and agents at all times to treat such information as
confidential. Unless specifically stated in this Agreement
or set forth in a separate writing, nothing in this Agreement shall
be construed to grant a transfer of, license or other right in or
with respect to any technology, technology related information or
intellectual property by either Xxxxxxx or GM to the other party.
This Article 13 shall not apply to any information:
(a) which the receiving party lawfully had in its possession
prior to its receipt from the other party;
(b) which is part of the public domain at the time of receipt
from the other party, or which has become part of the public domain
after receipt from the other party through no fault of the
receiving party;
(c) which shall have been lawfully obtained from a third
party who has the right to make such disclosure;
(d) which is required to be disclosed by statute, rule or
regulation or by a court of law;
(e) is or becomes generally known or available by publication
or is released on a non-confidential basis by the disclosing party
in writing; or
(f) is independently developed by one party hereto without
use of the other party's confidential information.
Article 14 - No Diversion of Business; Non-Competition
1. GM shall not, either for itself or on behalf of any person,
firm, corporation or any other entity, directly or indirectly,
divert or attempt to divert from Xxxxxxx any business relating to
Xxxxxxx'x sale of Products in the Territory. In connection
therewith, at no time during the term of this Agreement shall GM,
either for itself or on behalf of any person, firm, corporation or
any other entity, directly or indirectly own, control, or
participate in the ownership or control of, or be employed by or on
behalf of, any business involving or relating to instruments or
products which are similar to the Products and which is competitive
with Xxxxxxx'x business in the Products in the Territory.
Notwithstanding the foregoing, Xxxxxxx agrees that any activities
of GM described in Article 3, subsection 3 shall not be a breach of
this Article 14, and subject to the conditions set forth below in
this Article 14, that GM has an existing dealer network in the
Territory for organs and professional products and instruments,
that GM will honor its contractual commitments to such dealers, and
that any such activities by GM shall not be a breach of this
Article 14.
2. Except as permitted by Article 3, subsection 2, Xxxxxxx shall
not, either for itself or on behalf of any person, firm,
corporation or any other entity, directly or indirectly, (i)
develop for sale in the Territory products similar to the Products,
or (ii) purchase for sale from others any products which compete
with the sale of the Products in the Territory. In connection
therewith, at no time during the term of this Agreement shall
Xxxxxxx, either for itself or on behalf of any person, firm, corporation
or any other entity, directly or indirectly own, control, or participate
in the ownership or control of, or be employed by or on behalf of, any
business involving or relating to pianos which are similar to the Products
and which are competitive with GM's business in the Products in the Territory.
3. The parties recognize that a breach of this Article 14 by one
party will cause irreparable harm to the other party and that
actual damages may be difficult to ascertain and in any event may
be inadequate. Accordingly, GM and Xxxxxxx agree that in the event
of such breach, the non-breaching party shall be entitled to
injunctive relief in addition to such other legal or equitable
remedies as may be available.
4. In the event that GM and Xxxxxxx disagree as to whether any
instruments or products compete with the Products, the disagreement
shall be settled by arbitration pursuant to Article 3, subsection
4 hereof. If one party fails to adhere to the terms of any
arbitration decision rendered pursuant to Article 3, subsection 4,
the other party shall then be entitled to terminate this Agreement
and seek all relief and remedies as provided in this Article 14.
Article 15 - Non-assignability
Neither this Agreement nor any rights or obligations hereunder may
be assigned by either party to any third party without the prior
written consent of the other party.
Article 16 - Parts
1. Xxxxxxx shall have complete discretion on its sales, pricing,
and distribution of all of the Products in the Territory.
2. GM will maintain sufficient spare parts at GM's manufacturing
facility as is reasonably necessary to support all warranty and
service needs for all Products, including a parts inventory for
discontinued models or Products for five (5) years after such item
may have been discontinued.
Article 17 - Insurance
GM hereby agrees at all times to maintain insurance coverage with
such companies and in such amounts as XX xxxxx appropriate (but not
less than $1,000,000 per occurrence) so as to protect and hold
harmless Xxxxxxx at all times from claims of warranty liability
caused by GM-produced Products purchased by Xxxxxxx hereunder. GM
shall provide Xxxxxxx with evidence of such insurance as requested
by Xxxxxxx from time to time and, upon the request of Xxxxxxx,
shall use its best efforts to have Xxxxxxx listed as an additional
named insured on such policies.
Article 18 - Proprietary Rights
1. GM shall indemnify and hold harmless Xxxxxxx from and against
any and all costs, damages and expenses related to any allegation,
claim or suit that Xxxxxxx'x sale of the Products violates or
infringes upon the patent, copyright or other proprietary rights of
any third party, except with respect to parts or components
specified by Xxxxxxx, for which Xxxxxxx will indemnify and hold
harmless GM.
2. Nothing in this Agreement shall be construed as a grant by
Xxxxxxx to GM of a license or any other right to use the "Xxxxxxx",
"Pianovelle" or "Wurlitzer" name or any other trademark, tradename
or other logo owned, licensed or used by Xxxxxxx, except in
connection with the delivery of Products to Xxxxxxx for resale
under the "Xxxxxxx" or "Pianovelle" name. Except as set forth in
the preceding sentence, GM acknowledges that it has no interest,
title or right in or to the "Xxxxxxx", "Pianovelle" or "Wurlitzer"
name, or to any other trademark, tradename or other logo owned,
licensed or used by Xxxxxxx, by virtue of this Agreement or otherwise.
3. All trademarks, tradenames and the software (including,
without limitation, the design and manufacture of the song disks,
ROM packs and similar data storage and retrieval devices) of GM
associated with the Products shall remain the exclusive property of
GM and no rights to such trademarks, tradenames or software shall
vest in Xxxxxxx because of this Agreement. Xxxxxxx shall cease use
of such trademarks, tradenames and software (it being understood
that Xxxxxxx is only being granted the right to sell software
relating to the Products pursuant to this Agreement) promptly upon
termination of this Agreement.
Article 19 - Forecasts; Duration
1. Xxxxxxx'x best estimate of its forecast of Products expected
to be purchased by Xxxxxxx over the twenty four months following
the execution of this Agreement is attached hereto as Appendix IV
(the "Initial Forecast"), it being understood that orders for such
Products shall become binding Orders only in accordance with the
procedures set forth in Appendix I. Prior to the end of month
twenty one following the execution of this Agreement, Xxxxxxx shall
provide GM with a forecast of Products expected to be purchased by
Xxxxxxx in months twenty five through thirty six of the term of
this Agreement. Thereafter, Xxxxxxx shall provide a forecast no
later than month thirty three for months thirty seven through forty
eight, and no later than ninety days prior to the commencement of
each year within each renewal term of this Agreement.
2. This Agreement shall become effective on July 1, 1995 and
remain valid and binding for four (4) years from that date (the
"Initial Term"), unless earlier terminated pursuant to the
provisions of Article 8 or Article 20.
3. Following the expiration of the Initial Term, this Agreement
will be automatically renewed for successive periods of four (4)
years each, provided that not less than ninety (90) days prior to
the expiration of the Initial Term and the expiration of each
subsequent term, (i) Xxxxxxx shall submit a new forecast to GM
covering the twenty four month period beginning at the conclusion
of the period covered by the last forecast submitted, which
forecast must be reasonably acceptable to GM; (ii) Xxxxxxx and GM
must agree on a new price list for the Products, which price list
shall supersede and replace Appendix III hereto; and (iii) neither
Xxxxxxx nor GM has provided written notice to the other that the
notifying party is terminating the Agreement at the end of the
current four year term. Thereafter, annual forecasts would be
provided in the manner contemplated by Article 19, subsection 1.
4. The provisions of this Agreement shall be considered unchanged
upon renewal unless expressly altered in writing and agreed by the
parties.
5. Upon the expiration of this Agreement pursuant to this Article
19, GM shall fill all firm Orders in accordance with the last
delivery schedule provided to GM in accordance with Appendix I
prior to such expiration.
Article 20 - Termination
1. GM may terminate this Agreement upon thirty (30) days prior
written notice if during the Initial Term Xxxxxxx fails to
purchase, during the first twenty four months of this Agreement
Products equal in dollar amount to U.S. $5,700,000, and during
months twenty five through forty eight of this Agreement, U.S.
$6,270,000. Xxxxxxx and GM further agree that GM shall have no
right to terminate this Agreement pursuant to this subsection 1 if
Xxxxxxx'x failure to purchase the required quantity of Products is
due to GM's inability to ship sufficient Product quantities and/or
GM's failure to develop new and replacement Products as
contemplated by Article 6 hereof.
2. Xxxxxxx may terminate this Agreement upon thirty (30) days
prior written notice if during the Initial Term or during any
twelve month period thereafter, GM fails to timely ship the
quantity of Products for which Orders have been placed and/or GM
fails to develop new and replacement Products as contemplated by
Article 6 hereof.
3. Either party may terminate this Agreement upon written notice
provided more than 90 days in advance of the expiration of any four
year term of this Agreement or upon fourteen (14) days written
notice in the event that:
(a) the other party fails to pay any sum payable hereunder
within ten (10) days of when it is due;
(b) the other party fails to comply with or perform any
agreement or obligation (other than an obligation to pay any sum
payable hereunder) to be complied with or performed by such other
party in accordance with this Agreement if such failure is not
remedied on or before the thirtieth (30th) day after notice of such
failure is given to such other party; or
(c) the other party, (i) is dissolved; (ii) becomes insolvent
or fails or is unable or admits in writing its inability generally
to pay its debts as they become due; (iii) makes a general
assignment, arrangement or composition with or for the benefit of
its creditors; (iv) institutes or has instituted against it a
proceeding seeking a judgment of insolvency or bankruptcy or any
other relief under any bankruptcy or insolvency law or other
similar law affecting creditors' rights, or a petition is presented
for the winding-up or liquidation of such other party and, in the
case of any such proceedings or petition instituted or presented
against it, such proceeding or petition (x) results in a judgment
of insolvency or bankruptcy or the entry of an order for relief or
the making of an order for the winding-up or liquidation of such
other party, or (y) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (v) has a resolution passed for its winding-
up or liquidation; (vi) seeks or becomes subject to the appointment
of an administrator, receiver, trustee, custodian or other similar
official for it or for all or substantially all its assets
(regardless of how brief such appointment may be, or whether any
obligations are promptly assumed by another entity or whether any
other event described in this clause (vi) has occurred and is
continuing); (vii) any event occurs with respect to such other
party which, under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in clauses (i) to
(vi) (inclusive); or (viii) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of
the foregoing acts.
4. Upon a termination by Xxxxxxx pursuant to this Article 20, no
additional work on any Orders shall be undertaken by GM unless
specifically authorized in writing by Xxxxxxx.
5. Upon a termination by GM pursuant to this Article 20 or
Article 8, GM will complete the manufacture of Products for which
firm Orders have been received prior to the sixtieth day following
Xxxxxxx'x receipt from GM of GM's notice of termination. If
termination by GM results from a non-payment of obligations by
Xxxxxxx, XX may suspend work on all firm Orders until Xxxxxxx pays
such past due amounts. GM's obligation to fill Firm Orders
pursuant to this subsection 5 shall be subject to receipt by GM of
reasonably satisfactory assurances from Xxxxxxx, following a
written request for such assurances by GM to Xxxxxxx, that in
connection with filling such orders GM will receive payment from
Xxxxxxx pursuant to this Agreement. Unless Xxxxxxx has been, or
is, delinquent on the payment of any invoice by GM to Xxxxxxx under
this Agreement in the six months preceding the date of termination,
Xxxxxxx and GM agree that a letter from a Xxxxxxx officer
confirming Xxxxxxx'x intent to purchase and pay for the Products
which are the subject of such Firm Orders shall constitute
satisfactory assurance.
Article 21 - Remedies
In addition to all other rights and remedies specified in this
Agreement or otherwise provided by law, the parties shall be
entitled to the following:
1. If delivery is not made as specified in this Agreement,
Xxxxxxx may terminate this Agreement as to all or any portion of
the Products ordered.
2. Payment for the Products delivered hereunder shall not
constitute acceptance thereof. Xxxxxxx shall have the right to
inspect and reject all Products delivered hereunder upon receipt of
shipment. GM will promptly replace or correct the Products as set
forth in Article 12.
3. Each party shall indemnify and hold the other party harmless
from all liability, loss, damage and expenses (including reasonable
attorneys' fees) resulting from or arising out of breach by the
other party of any of its duties or obligations under this
Agreement or from the error, omission, negligence or intentional
act of the other party, its employees or agents in the use, sale or
distribution of Products as contemplated herein.
4. NEITHER PARTY SHALL BE ENTITLED TO RECOVER ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES UPON ANY BREACH BY THE OTHER PARTY UNDER OR
RELATED TO THIS AGREEMENT.
5. In the event of a breach of this Agreement by either party,
the non-breaching party shall be entitled, in addition to such
other relief as may be available to it, to all types of equitable
relief (including without limitation the issuance of an injunction
or temporary restraining order) as may be necessary or useful to
cause the breaching party to comply with its obligations under this
Agreement.
Article 22 - Notices
1. Effectiveness. Any notice or communication in respect of this
Agreement will be sufficiently given to a party if in writing and
delivered in person, sent by certified or registered mail or the
equivalent (with return receipt requested) or by overnight courier,
or given by facsimile (with confirmation received) at the address
or facsimile number specified below. A notice or communication
will be effective:
(a) if delivered by hand or sent by overnight courier, on the
day it is delivered (or if that day is not a business day, on the
first following business day); or
(b) if sent by facsimile, on the day the recipient's
confirmation is received (or if, after the close of business, on
the first following business day); or
(c) if sent by certified or registered mail or the equivalent
(return receipt requested), on the date set forth on the receipt.
2. Change of Address. Either party may by notice to the other
change the address or facsimile number at which notices or
communications are to be given.
3. Addresses: Xxxxxxx Piano & Organ Company
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
Facsimile Number: (000) 000-0000
Phone Number: (000) 000-0000
GeneralMusic S.p.A.
Xxx xxxxx Xxxx 00
00000 X. Xxxxxxxx xx Xxxxxxxxx (XX)
Xxxxx
Attention: Xx. Xxxxxx Xxxxxxx
Facsimile Number: 011-39-541-957595
Phone Number: 000-00-000-000000
Article 23 - Force Majeure
Neither party shall be liable, directly or indirectly, in any manner
for its failure, of or delay in fulfillment of any obligations under this
Agreement, owing to Acts of God, governmental restrictions, war, warlike
conditions, fire, riot, strike, flood,accident or any other cause or
circumstances beyond such party's reasonable control. In the event of any
Force Majeure which prevents either party from fulfilling its obligations
hereunder for a period exceeding one hundred fifty (150) consecutive calendar
days, the other party shall be free to terminate this Agreement in accordance
with the provisions of Article 20.
Article 24 - Governing Law
The validity, construction and performances of this Agreement and
any terms and conditions of sale to be made hereunder shall be
governed by and interpreted in accordance with the laws of Ohio.
Article 25 - Jurisdiction and Venue
The parties hereby submit to the jurisdiction of, and waive any
venue objections against, the United States District Court for the
Southern District of Ohio, the Xxxxxxxx County Common Pleas Court
of the State of Ohio, and any mutually agreed to alternative
dispute resolution proceeding taking place in Xxxxxxxx County,
Ohio, in any litigation arising out of the Agreement.
Article 26 - Arbitration
Except for those disputes subject to Article 3, subsection 4 of
this Agreement (which disputes shall be handled as provided
therein), any dispute, controversy or claim arising in connection
with this Agreement, including without limitation with respect to
any claim for indemnification, shall be settled by arbitration if
so requested in writing by either party hereto. The arbitration
shall be conducted by three arbitrators, who shall be appointed
pursuant to the rules of the American Arbitration Association
("AAA"). The arbitration shall be held in Cincinnati, Ohio and
shall be conducted in accordance with the commercial arbitration
rules of the AAA, provided, however, that the parties shall have
the right to take depositions and to conduct discovery in any such
arbitration proceeding in accordance with the Federal Rules of
Civil Procedure without the need to obtain the consent or approval
of the arbitrators. The determination of the arbitrators shall be
final and binding on the parties. Judgment upon the award rendered
by the arbitrators may be entered in any court having jurisdiction.
Article 27 - Announcement
Neither Xxxxxxx nor GM shall make any announcement or disclosure
regarding this Agreement without the written consent of the other,
except (i) as may be required by applicable law, including without
limitation the rules and regulations of the Securities and Exchange
Commission, (ii) to those persons or entities who have or may
acquire a financial interest in either Xxxxxxx or GM, including
without limitation bankers and prospective investors; and (iii)
that each party shall be free to make its own communication to its
dealers, provided that at least 48 hours in advance of any
communication to its dealers, each party shall provide to the other
party a copy of any such communication which names such other party
in connection with any matter that is a subject of, or would
reasonably be considered to be within the scope of, this Agreement
and the parties agree to work with each other in good faith in the
event of any disagreement regarding such communications.
Article 28 - Future Orders
The terms and conditions of this Agreement shall apply to all
additional purchase orders delivered by Xxxxxxx to GM for Products
pursuant to the procedures described in Appendix I hereof. Such
additional purchase orders shall be deemed addenda to this
Agreement.
Article 29 - Relationship of the Parties
The relationship between Xxxxxxx and GM hereunder is solely that of
purchaser and seller. None of Xxxxxxx, its employees or its agents
are granted any authority to assume or create any obligation or
responsibility, express or implied, on behalf of or in the name of
GM, or to bind GM in any manner whatsoever, and shall not hold
themselves out as agents or representatives of GM for any purpose.
None of GM, its employees or its agents are granted any authority
to assume or create any obligation or responsibility, express or
implied, on behalf of or in the name of Xxxxxxx, or to bind Xxxxxxx
in any manner whatsoever, and shall not hold themselves out as
agents or representatives of Xxxxxxx for any purpose.
Article 30 - Effectiveness of this Agreement; Termination of
Wurlitzer Agreement
This Agreement shall become effective upon the execution by both
Xxxxxxx and GM of this Distribution Agreement. Upon the
effectiveness of this Distribution Agreement, the existing
distribution agreement between GM and Xxxxxxx'x wholly-owned
subsidiary, The Wurlitzer Company, dated March 9, 1994 shall be
terminated. Notwithstanding such termination, each party
thereunder shall continue to be responsible for its respective
obligations which arose under the Agreement prior to such
termination.
Article 31 - Counterparts
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same instrument and shall
become effective when one or more counterparts have been signed by
each of the parties, it being understood that both parties need not
sign the same counterpart.
Article 32 - Enforceability
If for any reason a court of competent jurisdiction finds any
provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced to
the maximum extent permissible so as to effect the intent of the
parties, and the remainder of this Agreement will continue in full
force and effect. This Agreement has been negotiated by the
parties and their respective counsel. This Agreement will be
interpreted fairly in accordance with its terms and without any
strict construction in favor of or against either party.
Article 33 - Entire Agreement
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, and supersedes and
replaces all prior or contemporaneous understandings or agreements,
written or oral, regarding such subject matter. No amendment to or
modification of this Agreement will be binding unless in writing
and signed by a duly authorized representative of both parties.
IN WITNESS WHEREOF, the parties hereto have caused this
Distribution Agreement to be signed and sealed by their duly
authorized officer or representatives as of the date first above
written.
XXXXXXX PIANO & ORGAN COMPANY
BY: XXXXX X. XXXXXXXXX
Xxxxx X. Xxxxxxxxx, President
GENERALMUSIC S.p.A.
BY: XXXXXXX XXXXXXX
Xxxxxxx Xxxxxxx, Managing
Director
AGREED (for purposes of Article 30 only):
THE WURLITZER COMPANY
BY: XXXXXXX XXXXX
Xxxxxxx Xxxxx
TITLE: Vice President
APPENDIX I
ORDERS AND SHIPPING SCHEDULE
Xxxxxxx hereby purchases from GM in accordance with the terms
set forth in the Agreement to which this Appendix is attached:
REQUESTED
DELIVERY
PRODUCT QUANTITY DATE
APPENDIX I (cont.)
Xxxxxxx shall prepare and deliver to GM not less than 60 days
prior to the commencement of each calendar quarter (i) a schedule
setting forth a firm purchase order by month for such calendar
quarter; and (ii) a projection of all purchases anticipated by
Xxxxxxx for months four through twelve following the date of the
firm purchase order.
Following receipt from Xxxxxxx of its firm purchase orders, GM
will prepare and provide to Xxxxxxx delivery schedules, with such
delivery to occur not later than 120 days after the date of
Xxxxxxx'x submission of the purchase order.
APPENDIX II
PRODUCT SPECIFICATIONS
Xxxxxxx hereby acknowledges that the product specifications
for items currently manufactured by GM and falling within the
definition of Products as of the date of the execution of the
Distribution Agreement to which this Appendix II is attached are
satisfactory to Xxxxxxx. Xxxxxxx and GM agree that from time to
time they may work together to develop additional product
specifications for additional items to be manufactured by GM and
added to the definition of Products.
APPENDIX III
Prices *
GENERALMUSIC PRODUCT PRICING
(In U.S. Dollars)
RPS
RP 1 PVC
RP 2 PVC
RP 2 HPF
PS1500
PS2500
GRP 3
GPS2500
Bench PVC
Bench HPF
_______________________
* Prices are firm for six months after products first become
available for shipment, and thereafter may be increased or
decreased by GM, upon sixty (60) days prior written notice, to
preserve GM's existing profit margins for the Products, including
increases necessary to defray the increased costs of labor and
materials, provided, however, that if any product shall increase in
price by more than 5% over any consecutive twelve month period,
then GM, following written request from Xxxxxxx, shall provide
Xxxxxxx with such information as is reasonably necessary to
demonstrate that such price increase(s) was required to preserve
GM's existing profit margin.
APPENDIX IV
INITIAL FORECAST
FIRST SIX MONTHS
FIRST TWELVE MONTHS
FIRST EIGHTEEN MONTHS
YEARS ONE AND TWO (first 24 months)
