ASSIX STANDARD AGENCY AGREEMENT
THIS ASSIX STANDARD AGENCY AGREEMENT (the "Agreement") is made
and
entered into as of this 13th day of September, 1993 (the "Effective
Date"), by and between ASSIX
INTERNATIONAL, INC., a Delaware corporation ("Assix"), and 4DAY
TIRE a California
corporation ("Agent").
RECITALS
A. Assix has created a nationally recognized brand name
technically superior wheel balance
that brings the tire/wheel assembly in line with OEM
specifications.
B. Assix has developed and is the owner of a service program
of methods and processes for
wheel balancing (the "Program") and a training and certification
program for personnel utilizing
the Program.
C. Assix has valuable proprietary rights, including patents,
trademarks, service marks, trade
names, or trade dress, existing or arising at common law or by
statute, whether of not
registered or applied for, logos (collectively, the "Marks"),
copyrights, confidential
information, and know how embodied in and/or pertaining to the
Program and the materials
and equipment used therewith.
D. Assix had decided to offer tire/wheel assembly balancing
services ("wheel balancing") to
customers through the use of agents.
E. Agent is engaged in business as an automotive tire
retailer and is willing to be engaged by
Assix as an agent offering wheel balancing on behalf of Assix to
customers under the Program.
F. Subject to the terms of this Agreement, the parties have
agreed that Assix will allow Agent
to utilize the Program as its agent and will provide Agent with the
Program and the marketing
and technical advice and services necessary to fully implement the
Program.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and of other
good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged,
Assix and Agent agree as follows:
1. RECITALS AND EXHIBITS.
The parties acknowledged and agree that the recitals are true and
correct, and that by this
reference they are hereby incorporated into this Agreement. In
addition, any exhibits referred
to in this Agreement by this reference are hereby incorporated into
this Agreement.
2. RELATIONSHIP OF THE PARTIES.
The relationship created by this Agreement is that of principal and
agent. Subject to the terms
of this Agreement, Agent shall represent itself to be the legal
agent of Assix and shall have the
right and authority to bind Assix for purposes of the commitments
made by Assix for the
benefit of wheel balancing customers. Agent shall not have, nor
shall it hold itself out as
having, the power to make contracts in the name of, or binding on,
Assix, to pledge Assix's
credit, or to extend credit in Assix's name. Agent agrees to
indemnify and hold Assix harmless
in the event that any claims are made based upon any assertions of
authority by Agent to do any
of the aforesaid acts unless written authority has been expressed
in advance by Assix.
It is further understood and agreed that no individuals employed by
Agent shall be considered
to be employees of Assix, and Agents agrees this it shall be liable
for any and all expenses or
claims of whatsoever nature or kind arising against either Agent or
Assix because of the acts of
any of Agent's employees, agents, or servants, and indemnify,
defend, and hold harmless
Assix from any liability thereon.
Agent is not and shall not be considered to be a franchisee of
Assix for any purpose. Assix
does not represent or warrant the commercial or financial success
of Agent's business.
3. ASSIX OBLIGATIONS.
Assix hereby covenants and agrees to:
(a) Provide Agent with access to and use of the items listed in
Exhibit B, which are
necessary to implement the Program at Agent's location(s) (the
"Service Property");
(b) Allow Agent to use the Marks which accompany the Program to
the extent and in a
manner reasonably determined by Assix in order to effectively
market the Program at
Agent's location(s), provided, however, the Marks may be used by
Agent solely in
conjunction with the Program;
(c) Provide Agent's designated employees with the training and
technical advice necessary to
utilize the Program;
(d) Provide Agent with the training, marketing advice, and
marketing materials deemed
necessary by Assix in order for Agent to effectively market and
promote the Program;
(e) Keep Agent informed of any changes or advances in Program;
(f) Keep the Program and the Service Property in proper working
order during the term of
this Agreement, including the repair and replacement of Service
Property; provided,
however, that Assix reserves the right to determine the necessity
for replacements;
(g) Maintain the quality and performance characteristics of the
Service Property supplied to
Agent hereunder and make additions, deletions, and modifications
from time to time at
Assix's sole discretion based upon its determination as to the
materials and services that
will best enable Agent and Assix to benefit from the rights granted
in this Agreement;
(h) Deliver the Service Property to the ground floor entrance of
Agent's locations and
connect the Service Property in the place of installation. Upon
the termination of this
Agreement, in whole or in part, Assix shall disconnect the Service
Property, as
appropriate, and after it is moved to the ground floor entrance of
Agent's property by
Agent, remove the Service Property. In all events, Agent shall
reimburse Assix a final
fee for the cost of removal, freight, crating, and shipping of the
Service Property in an
amount equal to one Monthly Program Fee per Service Property unit;
(i) Obtain and pay all additional insurance (attributable solely
to the incremental risk
associated with Agent's implementation of the Program), additional
necessary licenses,
and all other additional permits required to permit Agent to offer
the Program at Agent's
location(s). Agent shall notify Assix promptly of any inspections
conducted by licensing
authorities and the results thereof; and
(j) Bear the risk of loss for defective equipment.
4. AGENT OBLIGATIONS.
Agent shall utilize the Program, as described in Exhibit A, the
Service Property, as described in
Exhibit B, and the trade names, trademarks, and service marks of
Assix (the "Marks") strictly
in accordance with the written instructions provided by Assix and
solely for the purpose of
implementing the Program on behalf of Assix at its locations(s).
Notwithstanding anything
contained in this Agreement to the contrary, Agent shall:
(a) Obtain and maintain continuously so long as this Agreement
shall remain in effect, all
licenses, permits, and authorizations necessary to Agent's
implementation of the
Program;
(b) Utilize the Marks strictly in connection with the prescribed
marketing, sale, and delivery
of all services under the Program, in accordance with Exhibit A.
Specifically, Agent
shall: (1) not impair, by act of by omission, the value of the
Marks, whether registered or
not; (2) use only the Marks designated by Assix; (3) not use
trademarks, trade names,
service marks, symbols, slogans, logos, or the like that are
confusingly similar to the
Marks; (4) use the Marks only in the names and forms authorized by
Assix; (5) not use
the Marks to incur any obligation or indebtedness on behalf of
either Agent or Assix; (6)
not use the Marks, or any word, name, or other symbol tending to be
confusingly similar
to the Marks, or part of Assix's corporate or other legal name,
including, without
limitation, in the name of any bank account of Agent, without the
express prior written
approval of Assix; (7) not in any manner represent that it has any
ownership interest in
the Marks; (8) not at any time apply for any copyright, trademark,
or patent registration
or protection with respect to any products or materials associated
with the Program and
the Service Property; and (9) immediately cease any pre-existing
use of the Marks that
conflicts with the terms of this Agreement;
(c) Display the name "Assix" and the Marks prominently in signage
located at the Agent's
location(s) in a manner which shall be clearly visible to customers
and shall reasonably
advertise and promote the name "Assix" and the Marks in connection
with such business,
subject, however, at all times to the supervision and control of
Assix. Every use of the
name "Assix" and the Marks in any display, advertisement,
promotion, or otherwise by
Agent shall be in a form and character approved in advance, in
writing, by a duly
authorized officer of Assix. Such utilization shall include,
without limitation, the display
of signage provided by Assix at each service location and the
display of the trade names,
trademarks, or service marks on all advertising and marketing
materials for the Program.
The size and number of signage to be displayed by Agent shall be
reasonable and
consistent with the other signage for automotive services at
Agent's location(s), subject to
the inspection and control by Assix;
(d) Use due care in the possession of the Service Property and the
performance of services
under the Program, including ensuring that there is sufficient
coverage at its location(s) in
time and manpower by personnel trained and certified in the
provision of wheel balancing
services under the Program;
(e) Use good faith in implementing the Program. Agent shall at
all times while this
Agreement remains in effect exert its best efforts to sell the
wheel balancing services
under the Program and shall not make any disparaging comments
regarding the Program
to customers or potential customers of the Program. Such best
efforts shall include,
without limitation, promoting the wheel balancing services to all
potential customers.
Agent further agrees to comply, on or before three (3) months prior
to each anniversary
date of the Effective Date of the Agreement, with Assix's
reasonable requests for
forecasts of Agent's volume and level of Program activity and to
contribute information
required by Assix to properly plan for Assix's support of the
Program and the Service
Property for the next succeeding year;
(f) Provide suitable electrical service and compressed air and
maintain the space and
environmental requirements designated by Assix;
(g) Make no alterations to the Program, nor make any repairs to
the Service Property, other
that those specifically set forth in Exhibit A or in writing by a
duly authorized officer of
Assix;
(h) Obtain written authorization from Assix prior to any movement
of any portion of the
Service Property;
(i) Provide an agent or employee to accompany Assix personnel
while such personnel are
training or advising Agent's personnel hereunder or servicing the
Program after Agent's
normal business hours;
(j) Maintain its business location(s) in an attractive, clean,
orderly, and sanitary condition;
(k) Charge such prices to retail customers for AccuBalance as the
agent and Assix shall
from time to time determine to be appropriate based on market
conditions. Such prices
shall be reviewed and communicated between the agent and Assix.
These should be
calculated in the following manner. A survey will be completed by
the agent and Assix to
determine the market competitive price of a standard wheel balance
and agent shall charge
a minimum of between $3.50 and $5.00 over the standard wheel
balance for
AccuBalance.
(l) Prepare and forward to Assix Central, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇
▇▇▇▇▇, fax (▇▇▇) ▇▇▇-▇▇▇▇, monthly reports, on or before 10th day
of the next
succeeding month, setting forth, on a region basis listing stores
individually: (i) the
number of tire/wheel assemblies standard balanced and AccuBalanced
by Agent and (ii)
the number of tires sold by Agent store, for the month in question;
(m) Upon termination of this Agreement, allow Assix to remove all
of the Service Property
from Agent's premises, return the Service Property to Assix in good
repair, condition,
and working order (ordinary wear and tear excepted), and cease use
of all the Marks,
copyrights, confidential information, and know-how used hereunder;
(n) Make no statement indicating or implying that performance of
the wheel balancing
services are other than as indicated in Assix's brochures, sales
literature, or training
materials, nor convey any proprietary information to anyone outside
of Agent's
organization;
(o) Make a reasonable effort to preserve the Marks against
dilution and promptly notify Assix
of any use, of which Agent has become aware, of marks which may be
confusingly
similar to the Marks; and
(p) Furnish to customers the warranty in the form set forth in
Exhibit A.
(q) In the event Assix sues Agent to enforce its rights under
Paragraph 4(b) of this
Agreement, the limitation on consequential damages found in
Paragraph 15 shall not
apply. In addition, Assix shall be entitled to recover from Agent
its reasonable attorneys
fees' and costs and all expenses incurred in accordance with
Paragraph 19.
5. COMPENSATION TO AGENT.
As compensation to Agent for Agent's services provided to Assix
under this Agreement, Assix
agrees to compensate Agent in accordance with Exhibit C.
6. INSURANCE.
(a) Assix, at its expense, hereby agrees and covenants that it
shall obtain and maintain during
the term of this Agreement the following policies of insurance
against claims, demands,
actions, liabilities, damages, losses, costs, and expenses arising
out of the subjects
covered by such policies of insurance:
(1) Worker's Compensation Insurance covering all costs, benefits,
and liability under
State Worker's Compensation and similar laws which may accrue in
favor of any
person employed by Assix, and Employer's Liability Insurance for
Assix
employees with limits not less than those required by the states in
which Agent does
business;
(2) Commercial General Liability Insurance covering Products
Liability, Completed
Operations, and Contractual Liability Insurance, specifically
endorsed to cover the
indemnity provisions of this Agreement, and coverage for Personal
Injury, with
limits of not less than $1,000,000.00 combined single limit for
bodily injury and
property damage per occurrence. To the extent that Agent provides
additional
general commercial liability insurance, it shall do so at its own
expense.
(3) Motor Vehicle Liability Insurance covering all owned vehicles
used by Assix
employees in connection with Agent's operations under this
Agreement with limits
of not less than $500,000.00 combined single limit for bodily
injury and property
damage per occurrence; and
(4) Excess Liability Insurance, including, without limitation,
coverage for Blanket
Contractual Liability, Products Liability, Completed Operations,
and Personal
Injury Insurance with limits of not less than $1,000,000.00.
(5) Casualty Insurance to cover the theft or destruction of
service property.
(b) Agent, as its expense, hereby agrees and covenants that is
shall obtain and maintain
during the term of this Agreement the following policies of
insurance adequate to fully
protect Assix as well as Agent from and against any and all claims,
demand, actions,
liabilities, damages, losses, costs, and expenses arising out of
the subjects covered by
such policies of insurance:
(1) Workers' Compensation Insurance covering all costs, benefits,
and liability under
State Workers' Compensation and similar laws which may accrue in
favor of any
person employed by Agent, and Employer's Liability Insurance for
Agent's
employees with limits not less than those required by the states in
which Agent does
business;
(2) Commercial General Liability Insurance listing Agent as the
primary insured and
Assix as an additional insured, including, without limitation,
coverage for Products
Liability, Completed Operations, and Contractual Liability
Insurance, specifically
endorsed to cover the indemnity provisions of this Agreement, and
coverage for
Personal Injury, with limits of not less than $1,000,000.00
combined single limit
for bodily injury and property damage per occurrence. To the
extent that Assix
provides additional general commercial liability insurance, it
shall do so at its own
expense.
(3) Motor Vehicle Liability Insurance with a Non-Ownership and
Hired Car Liability
Endorsement in the name of Agent covering all vehicles used by
Agent employees
in connection with Assix' operations under this Agreement with
limits of not less
than $500,000.00 combined single limit for bodily injury and
property damage per
occurrence; and
(4) Excess Liability Insurance, including, without limitation,
coverage for Blanket
Contractual Liability, Products Liability, Completed Operations,
and Personal
Injury Insurance with limits of not less than $1,000,000.00,
listing Agent as the
primary insured and Assix as an additional insured.
(5) Casualty Insurance to cover the theft or destruction of
Service Property.
7. TITLE TO PROGRAM AND SERVICE PROPERTY.
Title to and ownership of the Program, including the Marks,
copyrights, confidential
information, and know-how, shall at all times remain in Assix.
Nothing contained in this Agreement shall be construed as an
assignment or conveyance to
Agent of any right, title, or interest in and to the Marks,
copyrights, confidential information,
and know-how. Agent's use of the Marks, copyrights, confidential
information, and know-
how in any geographical area, including foreign countries, and in
any field for us shall not
create any ownership interest in Agent and shall inure to the
benefit of Assix.
All products, promotional advertising, packaging, and instructional
materials utilized in
connection with the Program and the Service Property shall contain
appropriate legends,
markings, and notices to give notice to the public of Assix's
right, title, and interest in the
Marks, copyrights, confidential information, and know-how.
Title to and ownership of the Service Property shall at all times
remain in Assix and Agent shall
have no property rights therein, but only the right to use the
Service Property as stated herein,
notwithstanding that the Service Property may now be, or hereafter
become, in any manner,
affixed or attached to, imbedded into, permanently resting on real
property or any building
thereon, or attached in any manner to that which is permanent by
means of cement, plaster,
nails, bolts, screws, or otherwise. Should Agent, during the term
of this Agreement, make,
own, or acquire rights to practice any patentable invention
relating to the Program or the
Service Property, then Agent agrees promptly to make full
disclosure thereof to Assix, and to
assign all rights it may have to any such patentable invention to
Assix. Any invention made by
an employee of Agent shall be deemed to have been made by Agent.
8. RECORDS AND INSPECTION.
(a) Agent shall keep records showing the date of purchase, the
purchase price, and the
identity and address or purchasers of any wheel balancing services
performed under the
Program, and shall permit Assix's duly authorized representative(s)
to examine Agent's
records, premises, and samples of wheel balancing services
performed under the
Program at any time during regular business hours to enable Assix
to determine whether
or not Agent is performing its obligations under this Agreement.
(b) Agent shall maintain and provide to Assix such financial
statements and books of account
as Assix may request from time to time, provided that such
statements and books of
account are necessary or useful for Assix to determine whether or
not Agent is
performing its obligations under this Agreement.
(c) Agent acknowledges that the goodwill and favorable reputation
associated with the Marks
are essential to the success of the Program. Accordingly, upon
reasonable notice to
Agent, Assix shall also be allowed access to the Program and
Service Property fro the
purpose of inspecting the Program and the Service Property to
assure that the quality
control provisions of this Agreement are being observed and/or to
perform necessary
maintenance or repairs.
9. WARRANTIES.
(a) Assix warrants that the Program will be provided as described
in Exhibit A, and the
Service Property will operate in substantial conformity with the
specifications and
documentation as to type, design, and capacity as described in
Exhibit B.
(b) EXCEPT AS SET FORTH HEREIN, ASSIX MAKES NO WARRANTIES EXCEPT
TO THE EXTENT REQUIRED BY LAW, EXPRESSED OR IMPLIED, WITH
RESPECT TO THE PROGRAM OR THE SERVICE PROPERTY, INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. AGENT ACKNOWLEDGES THAT THE
PROGRAM AND THE SERVICE PROPERTY ARE OF THE TYPE, DESIGN, AND
CAPACITY SUITABLE FOR ITS PURPOSES.
10.INDEMNIFICATION.
(a) Notwithstanding anything to the contrary contained within this
Agreement, Assix shall
not be liable to Agent for damages of any type to third parties
which are caused, in whole
or in part, by the negligent or intentional acts, or any other acts
of omission or
commission, of Agent, its agents, or its employees. Agent shall
protect, indemnify,
defend, and hold harmless Assix, its agents, its employees, its
officers, its directors, and
its servants from and against any and all claims, actions,
liabilities, losses, costs, and
expenses (including reasonable attorneys' fees and costs), without
limitation, arising out
of or in connection with (i) any negligent or intentional acts, or
any other acts of omission
or commission, of Agent, its agents, or its employees; (ii) any
statement indicating or
implying that performance of the wheel balancing services are other
than as indicated in
Assix's brochures, sales literature, or training materials; (iii)
any actual or threatened
material breach of this Agreement by Agent; or (iv) any actual or
threatened material act of
omission or commission by Agent, its agents, or its employees, in
connection with this
Agreement. Assix shall give to Agent prompt written notification
of any claim against it
that it believes is subject to indemnification pursuant to this
provision. In the event Assix
shall fail to give Agent prompt written notification of any such
claim, which failure
results in material detriment to the defense of such claim, Agent's
indemnification
obligations in favor of Assix as to such claim, if any, shall be
come null and void and of
no further legal force or effect.
(b) Assix shall protect, indemnify, defend, and hold harmless
Agent, its agents, its
employees, its officers, its directors, and its servants from and
against any and all claims,
actions, liabilities, losses, costs, and expenses (including
reasonable attorneys' fees and
costs) arising out of or in connection with (i) any material
malfunctioning of the Service
Property; (ii) any actual or threatened material infringement of
any United States patent,
foreign letters patent, trade name, trademark, copyright, trade
secret, or any other
proprietary right with regard to Agent's utilization of the Program
or the Service
Property; (iii) any actual or threatened material breach of
warranty by Assix; (iv) any
actual or threatened material breach of this Agreement by Assix;
(v) any actual or
threatened material act of omission or commission by Assix, its
agents, or its employees,
in connection with this Agreement. Agent shall give Assix prompt
written notification of
any claim against it that it believes is subject to indemnification
pursuant to this provision.
In the event Agent shall fail to give Assix prompt written
notification of any such claim,
which failure results in material detriment to the defense of such
claim, Assix's
indemnification obligations in favor of Agent as to such claim, if
any, shall become null
and void and of no further legal force or effect.
(c) Assix shall have the sole control and authority over the
defense, settlement, or
compromise of any claim or legal proceeding that Agent believes is
subject to
indemnification pursuant to Subparagraph (b). If the Program or
the Service Property
becomes, or in the opinion of Assix is likely to become, the
subject of a claim of
infringement of a United States patent, foreign letters patent,m
trade name, trademark,
copyright, or trade secret, Assix may, in its sole discretion,
procure for Agent the right to
continue using the Program or the Service Property, or any part of
them so as to make
Agent's use of them noninfringing. If, during the pendency of any
claim or legal
proceeding against Agent or Assix pursuant to which Agent is
prevented from utilizing
the Program or the Service Property by court order, operation or
law, or any other
reason, Agent may, as its sole remedy, withhold payment of any sums
otherwise
required to be paid over to Assix by Agent pursuant to this
Agreement.
11.CHANGE OF OWNERSHIP OF AGENT.
In order to ensure Assix that Agent will comply with its
obligations hereunder to the
satisfaction of Assix, Agent acknowledges that Assix must know and
approve who in fact
controls Agent. Any Transfer of Control by Agent or any
Controlling Person may result in the
immediate termination of this Agreement, at the sole option of
Assix. Such cancellation can be
prevented by the agent seeking prior written consent.
For purposes of this Agreement:
(a) The term "Affiliate" shall mean any natural person or other
legal entity that, directly or
indirectly, controls, is controlled by, or is under common control
with, either Agent or
any Controlling Person;
(b) "Controlling Person" shall be any natural person or other
legal entity with a fifteen
percent (15%) or greater interest in Agent or an another entity
that has, directly or
indirectly, a fifteen percent (15%) or greater interest in Agent,
or otherwise has the power
to control, directly or indirectly, the management, direction, or
day-to-day operations of
Agent. Without limiting the generality of the foregoing, a natural
person or legal entity
shall be a "Controlling Person" of Agent if it owns a fifteen
percent (15%) or greater
interest in another entity that is either a Controlling Person of
Agent or that has an indirect
ownership interest in Agent through one or more intervening levels
of direct or indirect
subsidiaries. For example, if Agent is a wholly-owned subsidiary
of another corporation
that is, in turn, owned equally by three other corporations, each
of these three
corporations who have the power (indirectly) to affect the
day-to-day operations of Agent
shall be considered a Controlling Person for purposes of this
Agreement:
(c) The term "Transfer" shall mean any voluntary sale, pledge,
encumbrance, or other
transfer or disposition (other tan a pledge granted to a financial
institution providing
financing to the pledgor); and
(d) "Transfer of Control" of Agent shall mean (a) if Agent or any
direct or indirect
Controlling Person is a partnership, any change in the identity or
respective ownership of
the partners or any of them, (b) if Agent or any direct or indirect
Controlling Person is a
corporation, any Transfer of shares comprising fifteen percent
(15%) or more of the total
number of issued and outstanding shares of Agent or such
Controlling Person, or (c) the
Transfer or change in the direct or indirect control of, or the
Transfer or change in the
power to control, directly or indirectly, the management,
direction, or day-to-day
operations of Agent or of any direct Controlling Person; provided,
however, that the
death or determination of incompetency of a partner of any natural
person constituting a
Controlling Person of Agent shall not be a "Transfer of Control."
12.TERM AND TERMINATION.
(a) The term of this Agreement will commence on the Effective Date
stated above and shall
continue until otherwise terminated in accordance with this
Agreement.
(b) Either Assix or Agent shall have the right to terminate this
Agreement by giving written
notice of termination to the other party of no less than twelve
(12) months.
(c) Assix shall have the option and right to terminate this
Agreement:
(1) Effective upon giving notice to Agent:
(i) In the event Agent fails to perform or comply with any term or
provision of this Agreement, and such failure is not remedied to
Assix's satisfaction within one (1) month of written notice thereof
from Assix (or such longer period as applicable law may require),
or
in the event Agent repeatedly fails to perform or comply with one
or
more term or provision of this Agreement, whether or not such non-
compliance is corrected after notice; or
(ii) In the event Agent, upon two (2) weeks prior written notice,
shall fail
to duly pay all amounts due to Assix; or
(iii) Agent or any Controlling Person engages in any unethical
business
conduct that is reasonably likely to affect adversely the goodwill
or
reputation of Assix; or
(iv) In the event Agent introduces and/or supports any proceedings
challenging the validity of any of the Marks, copyrights,
confidential
information, know-how, patent applications, or other proprietary
rights, whether registered or not, of Assix; or
(v) Immediately following the agent providing any written notice
of
termination to Assix for any reason, the agent agrees to nominate
a
senior management participant for the purposeds of working with
Assix to determine the cause and the remedy for such termination.
Agent agrees to evaluate the resulting report concerning the
recommended cure for such reason for termination for a 30 day
period
and Assix and the agent agree to implement such recommendations.
Such agreement to not be unreasonably withheld.
(2) Effective without notice to Agent or further action of any
kind: In the event Agent
becomes insolvent or is subject to any bankruptcy, insolvency, or
similar
proceeding, makes an assignment for the benefit of creditors,
becomes unable to
pay its debts as they become due, goes into liquidation or winding
up, or in the
event a receiver is appointed for a substantial part of Agent's
assets; or
(3) At the option of Assix, after one (1) month's prior written
notice to Agent: In the
event of a decision by any government or agency thereof or any
tribunal which, in
the sole discretion of Assix, has the effect of preventing Assix
from realizing the
benefits of this Agreement or which might threaten the protection
of Assix's name,
reputation, or proprietary rights, including its marks, copyrights,
confidential
information, know-how, or any other information pertaining to the
Program or the
Service Property.
13.EFFECT OF TERMINATION.
In the event of the termination of this Agreement for any reason:
(a) Agent shall surrender and cease to exercise all rights granted
under this Agreement, cease
all use of the Program, the Service Property, and Assix's name and
Marks in any and all
connections, and refrain from representing any of its services
after termination as "Assix
services" or as being the "same as Assix", "similar to Assix", or
in any other way trading upon
the name "Assix" or the Marks.
(b) Termination of this Agreement shall not relieve Agent from its
obligation to pay to Assix all
moneys that may be due at the date of termination, without any
reduction or offset whatsoever.
(c) Agent shall immediately cease using and return within a period
of one (1) month following
the termination of this Agreement, all property of Assix,
including, without limitation, all
confidential and proprietary written materials (and all copies
thereof) received from Assix.
Such materials will be delivered in person to an Assix employee or
returned via courier service
to be signed for by the recipient.
(d) Agent shall be deemed to have transferred and conveyed to
Assix any trademarks, service
marks, trade names, good will, or other rights which may have been
obtained by Agent in
connection with its use of the Program or the Service Property or
which, notwithstanding the
intention of the parties not to create any such rights, may have
vested in Agent in connection
with Agent's authorized activities hereunder, and that Agent will
execute any instruments
requested by Assix in suitable form to accomplish or confirm the
foregoing. Any such
instrument of assignment, transfer, or conveyance shall be without
consideration other than the
mutual covenants and consideration provided for in this Agreement.
14.COMPLIANCE.
Each party shall in the conduct of its business and in the
performance of this Agreement
comply fully with all applicable Federal, State, and local laws,
ordinances, rules and
regulations.
15.CONSEQUENTIAL DAMAGES.
Neither party shall be liable to the other for any loss of profit
or any consequential or incidental
damages upon the breach of this Agreement, except as otherwise
provided herein.
16.SALES PROCEDURES.
Prices and terms of sale quoted by Agent for wheel balancing
services under the Program shall
be those prices and terms as are then in effect. Such prices and
terms may be revised by Assix
in its sole discretion, from time to time. Agent agrees that it
will not deviate from the
established price and sales policies without express authorization
in advance and in writing by
Assix.
17.NON-COMPETITION AND NON-SOLICITATION.
(a) During the term of this Agreement, Agent shall not offer any
other "tire flex correction
services" or services similar to the Program to any of its
customers. Additionally, in the
event this Agreement is terminated, Agent shall not offer any tire
flex correction services
or services similar to the Program to any of its customers at any
location(s) which is (are)
within a twenty-five (25) mile radius of any location(s) in which
Agent offered wheel
balancing services under the Program for a period of two (2) years
following the
termination of the Program.
(b) During the term of this Agreement, and for a period of two (2)
years following the
termination of this Agreement, Agent shall not entice, solicit for
hire, or hire away any of
Assix's then current or former personnel to work in any way in or
for any business that
is or may be, directly or indirectly, competitive with either Assix
or the Program.
18.SPECIFIC PERFORMANCE.
Agent agrees that damages at law will be an insufficient remedy to
Assix in the event of
Agent's breach of this Agreement, and that Assix shall be entitled,
upon application to a court
of competent jurisdiction, to obtain injunctive relief to enforce
the provisions of this
Agreement, which injunctive relief shall be in addition to any
other rights or remedies available
to Assix.
▇▇.▇▇▇▇▇▇▇▇'S FEES AND COSTS.
In the event that Assix is required to engage the services of legal
counsel to enforce its rights
under this Agreement against Agent, regardless of whether such
action results in litigation,
Assix shall be entitled to reasonable attorney's fees and costs
from Agent, which, in the event
of litigation, shall include fees and costs incurred at trial and
on appeal.
20.SEVERABILITY.
If all or any portion of any provision of this Agreement is held to
be void, unenforceable, or
illegal for any reason, such decision shall not affect the validity
or enforceability of all or any
of the remaining provision or provisions hereof, and this Agreement
shall be construed as if the
unenforceable or illegal provision had never been included.
21.WAIVER.
No term or provision hereof shall be deemed waived and no breach
excused, unless such
waiver or consent shall be in writing and signed by the party
claimed to have waived or
consented. Any consent by any party to, or waiver of, a breach by
the other, whether express
or implied, shall not constitute a consent to, waiver of, or excuse
for any other different or
subsequent breach.
22.ASSIGNMENT OF AGREEMENT.
This Agreement shall be binding upon the respective heirs, personal
representatives, and
successors of the parties. Assix may assign or delegate part or
all of this Agreement. Agent
acknowledges that is necessary for Assix to select its agents in a
manner that assures that an
Agent authorized to provide wheel balancing under the Program is
capable of fulfilling the
obligations pertaining thereto and, therefore, no assignment,
delegation, or transfer may be
made by Agent without the prior written consent of Assix. If Agent
transfers, assigns, or
attempts to transfer or assign this Agreement or any part thereof,
expressly or by operation of
law, without the prior written consent of Assix, then Assix, at its
option, may immediately
terminate this Agreement upon the provision of one (1) month's
advance written notice to
Agent.
23.CHOICE OF LAW; VENUE.
This Agreement shall be governed by and construed in accordance
with the laws of the State of
Florida. Exclusive venue for any litigation instituted hereunder
shall be Hillsborough County,
Florida.
24.PUBLICITY
Except as necessary to comply with applicable law, neither party
will issue any press release or
any publicity or advertising information related to this Agreement
without obtaining the other
party's advance written consent (which consent shall not be
unreasonably withheld).
25.NOTICES.
Any notice, communication, or demand required or permitted to be
given under this Agreement
will be sufficiently given or made for all purposes if delivered in
person, by facsimile
transmission, by reputable courier, or by certified mail, return
receipt requested, as follows:
(a) If to Assix: Mr. R. Park ▇▇▇▇▇▇, III with
copy to: ▇▇▇▇▇ ▇▇▇▇▇▇,Esquire
President ▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇
Assix International, Inc. One
TampaCity Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ #▇▇▇ Post Office
Box 3391
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇,▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) If to Agent:
with copy to:
26.ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement and understanding
between the parties with
respect to the subject matter hereof and merges all prior
discussions and agreements between
them. This Agreement shall not be supplemented, modified,d or
amended except by a written
instrument signed by the President of Assix and by a duly
authorized officer of Agent, and no
other person has or shall have the authority to supplement, modify,
or amend this Agreement in
another manner.
IN WITNESS WHEREOF, the parties have signed this Assix Standard
Agency Agreement this
13th day of September, 1993.
"ASSIX"
ATTEST: ASSIX INTERNATIONAL, INC.
By: /S/▇▇▇▇▇▇▇ ▇. Gardner_____ By: /S/R. Park ▇▇▇▇▇▇,
III_____
Secretary President
[Corporate Seal]
"AGENT"
ATTEST:
By: /S/▇▇▇▇▇ Jessen_________ By: /S/▇▇▇▇▇▇ ▇. Carr_________
Secretary
[Corporate Seal] Its: President________________
EXHIBIT A
DESCRIPTION OF ACCUBALANCE PROGRAM
AccuBalance Program Goals
The goals of the AccuBalance program are to:
1. Improve the consumer's perception of the quality of the Agent's
products and services by the Agent
providing a value-added, COMPLETE wheel balancing service in
conjunction with the consumer's
procurement, from the Agent, of:
[a] high-quality, aftermarket replacement tires and,
[b] ride-related services, such as alignments and
shocks/struts.
2. Increase the Agent's profitability potential by providing a
value-added, COMPLETE wheel balancing
service that exceeds the specifications of traditional wheel
balancing.
This service is more complete and consistent than the
specifications of traditional, after-market wheel
balancing and is similar to the demanding specifications of the new
car and automobile tires original
equipment manufacturer.
AccuBalance Program Elements
The AccuBalance Program is a comprehensive and consistent
discipline composed of six elements:
Element # 1. Service Property, designed, engineered and
manufactured to effectively measure and
balance, and if necessary, adjust passenger tire's and light-truck
tire's force variation of the tire's loaded
radial runout, then to balance the tire using the built in wheel
balancer.
SEE EXHIBIT "B"
Element # 2. A proprietary, AccuBalance Implementation system that
facilitates the on-time, on-
specification, on-budget installation of the entire program at all
the Agent's locations.
Element # 3. An in-store, Merchandising system that initially
trains and subsequently reinforces all Agent
personnel in the proper methods of selling, performing and
monitoring the financial achievements of the
AccuBalance service. This merchandising system consists of
promotional marketing material to maintain
the sales person's (or service advisor's/counter person's) emphasis
on the AccuBalance program and
provides on-site support and assistance, as deemed necessary by
Assix, to maintain the profitability targets
for AccuBalance. As necessary, the merchandising system also
contains consumer educational material
and promotional material to educate the consumer on the maintenance
requirements of wheel balancing.
Element # 4. A proprietary, Service Management system that assures
the wheel balancing service is
delivered to the consumer in a consistent manner within the
specifications of the automobile, the tire and the
wheel manufacturers and other manufacturers and providers of
ride-related products and services. This is
critical to the success of the Assix proven excellence objectives
and to the success of the entire AccuBalance
program. This service management system includes providing the
Agent's designated employees with
proper training and technical advice necessary to deliver the
5-step, COMPLETE Wheel Balance to the
consumer.
Element # 5. A proprietary, Profitability Measurement and
Monitoring system to track, report,
analyze and notify the Agent of their levels of achievement of the
mutually agreed profitability potential. The
system recognize Agent locations not achieving their full profit
potential as well as those that are exceeding
their financial objectives. The system identifies these
under-performing locations and dispatches a ASSIX
Merchandizing Specialist to assist the Agent in consistently
achieving the Agent's targeted financial
objectives.
Element # 6. A comprehensive Remedial Maintenance system for the
service property, including
engineering changes, deletions and modifications as ASSIX deems
necessary to maintain the service
property in proper working order.
ACCUBALANCE MARKET
ASSIX perceives that a large market exists for the AccuBalance,
COMPLETE wheel balancing service.
The sale of tire and ride-related services is effected primarily
through tire retailers with multiple dealer
outlets. The market for wheel balancing exceeds approximately $1
billion per year, based on approximately
150 million passenger tires, 25 million light truck tires, a
balance penetration rate of 100% and
approximately $6.00 per tire balance price.
The tire retailer shall sell the AccuBalance COMPLETE wheel balance
for $3.50/$5.00 per tire more than
the price of traditional, conventional or basic wheel balancing in
each of the Agent's market areas. This base
price for basic wheel balancing is contained as item # 34 in the
United States Consumer Price Index, which
measures approximately 289 urban areas each quarter. (A copy of the
quarter 3,1989, index is attached).
In the event the Agent uses a "National" price for their basic
wheel balancing, AccuBalance shall be sold
for $3.50 to $5.00 per tire more than that "National" price.
This calculation of market size for AccuBalance is further defined
by the amount of opportunities within
the retail business unit. The effectiveness of the AccuBalance
program is measured by the number of
AccuBalance sold in relation to the number of new tires sold in the
retail unit. the opportunities are based
on the level of tires sales and related tire-service work performed
in each retail establishment. As an
example:
Opportunities for sale of AccuBalance Number of
Penetration
Tires Available Available Percentage
New tires sold 2.5 100% 100%
Old tires on vehicle NOT REPLACED 1.5 50%
63%
Alignments - without tires sales 4.0
25%
40%
Shocks/Struts without tire sales 4.0
25%
40%
COMPLETE 243%
95% of the tires that are replaced are balanced. If a 50%
penetration of the balance of the available
penetrable market is achieved this equates to 1/2 of 143% or 71%.
Adding this to the 95%, the realistic rate
of selling AccuBalance is about 166% in relation to the number of
new tires sold.
DESCRIPTION OF PROGRAM ELEMENT # 1 - SERVICE PROPERTY
SEE EXHIBIT B
DESCRIPTION OF PROGRAM ELEMENT # 2 - IMPLEMENTATION
A PROPRIETARY, STEP-BY-STEP, ACCUBALANCE IMPLEMENTATION SYSTEM THAT
FACILITATES THE ON-TIME, ON-SPECIFICATION, ON-BUDGET INSTALLATION
OF THE
ENTIRE PROGRAM AT ALL THE AGENT'S LOCATIONS.
System Phase # 1 - Agent's Line Management Agreement
ASSIX AND THE AGENT'S executive management mutually agree on the
financial profitability goals and
the progression of their accomplishment though a series of
escalating "objectives" expressed as percentages
of tires receiving the AccuBalance process in relation to the total
number of passenger and appropriate light
truck tires that are sold and installed by the Agent.
The implementation time schedule is agreed in this step and the
number of programs to be installed are
estimated based on the number of tires sold in each of the Agent's
retail locations.
1. The financial goals and objectives are cascaded down through the
Agent's operational management
through a letter from the Executive Management level of the Agent.
2. The terms and conditions of the agreement between Assix and the
Agent are summarized in a letter that
cascades throughout the Agent's management hierarchy and is SIGNED
BY THE APPROPRIATE
MANAGEMENT LEVELS OF BOTH THE AGENT AND ASSIX. This letter serves
as one of support for
the entire program as agreed by Assix and the Agent.
In addition, these letters reinforce the key points of the Agent's
and Assix's agreement and endorses the P3
manual, as well as the proper methods of selling and performing the
proprietary, DART - Dealer
Action Response Trac and the information contained in the manual
containing the complete information
about the AccuBalance program is provided to the Agent's
operational locations at various times, as
approached.
This information is covered in detail and in person by an
authorized, Assix management individual with each
level of the Agent's LINE MANAGEMENT from the senior executive
management level through to the
operating management at the retail unit's level.
PROGRAM ELEMENT # 3 - PROGRAM MANAGERS
PROGRAM MANAGERS
Program Managers are dedicated merchandising support professionals.
They are responsible for
the successful implementation and continuance of the AccuBalance
program in their assigned
territory. Their duties include, but are not limited to:
1. Conducting additional training of new retail unit personnel
while reinforcing any previous
training performed during initial implementation with existing
personnel.
Sell the TOTAL Job. Including AccuBalance.
2. Ensuring that the AccuBalance sales techniques are being used
on a daily basis while selling
AccuBalance in the retail unit. This is accomplished through visits
by the Program Manager with
the retail unit manager. A Program Manager will be provided
direction as to where to spend his
time during a month based on the relative profitability performance
of the assigned retail units in
his territory.
3. Working directly with the retail unit management, sales and
service advisor personnel in
responding to a fall in the AccuBalance percentages with positive
corrective measures.
4. Monitoring the quality and placement of signage and quantity of
literature present within the
retail environment.
5. Building a positive and professional relationship with all
retail unit personnel.
6. Developing promotional programs from time to time that will
positively influence the success of
the AccuBalance program in that retail unit.
7. Briefing the retail unit manager on the degree of sales
personnel understanding and compliance
with the AccuBalance program.
PROGRAM ELEMENT # 4 -- AccuBalance Service
The AccuBalance service consists of 5 steps when a new tire is
purchased and 4 steps when balancing a
tire that is not being replaced.
Step # 1 - IF THE TIRE IS TO BE REPLACED: (Replacement tires)
Demount the old tire and mount the high-quality, replacement tire.
Using a machine called a Tire Changer, used tires are removed from
the rims.
1. The wheel covers and valve cores are removed carefully to
prevent damage - an authorized wheel cover
puller is used (other tools, such as a screwdrivers, are not
acceptable).
2. The lug nuts are carefully removed and placed in the wheel cover
or other convenient location where they
will not be lost or misplaced. Upon removal of the lug nuts, they
and the wheel studs are carefully
examined for damage.
All existing balance weights are removed prior to placing the old
wheel on the Tire Changer or on the
Service Property. If the tire is not replaced, the process
proceeds immediately to the Service Property
Combi.
The old wheels are mounted on the Tire Changer in a COMPLETELY
DEFLATED state.
3. The tire and rim assembly are separated in exact accordance with
the operating instructions of the
manufacturer of the Tire Changer. In the event that this is not
known, the training manuals of the Agent
and/or Assix are followed. Assix reserves the right to inspect
Agent manuals and make recommendations as
to the proper procedures. However, as a minimum the instructions
should contain the following:
[a]. The wheel must be centered on the cone and securely
tightened, BY HAND. If the stem is being
replaced, the old stem should be removed using an authorized value
stem removing tool.
[b]. In no event should the bead breaker shoe be allowed to
ride up over the edge of the rim.
[c]. The beads of the tire and the old, used and potentially
stressed rim should be well lubricated to
prevent further damage to the rim.
[d]. The operator should keep fingers, hands and forearms
clear of the forward travel of the
mount/demount tool, while the beads are being demounted. If the
tire has a tube, the mount/demount tool
should be well lubricated, with lubricant that meets Assix
specifications and the tube should be removed
prior to demounting the lower bead.
4. The new high-quality replacement tire is mounted on the old,
potentially stressed rim.
[a]. The rim is wire brushed to remove excess rubber particles
and/or scraps to insure a proper seal.
[b]. The new, valve stem and the beads of the tire are
properly lubricated using an Assix authorized
lubricant and stem tool.
[c]. The operator should keep fingers, hands and forearms
clear of the forward travel of the
mount/demount tool, while the beads are being mounted.
[d]. If the tire requires a tube, the tube must be inserted
before the top bead is put into place.
[e]. The tire beads should be properly seated, beginning to
hold air. At this point, the cone should
be loosened one full turn and the tire should be filled with small
amounts of air administered in short bursts
until the beads seat.
[f]. At all times while seating the beads of the tire, no part
of the operators body should be over the
tire.
[g]. Inflate the tire.. Never exceed 40 PSI, If the beads
are not properly seated by the time the
machine's air pressure reaches 40 PSI, the operator has been
unsuccessful in following the proper operating
procedures and the tire should be deflated, re-lubricated and
inflated again.
[h]. The machine's indicated pressure should be carefully
checked using an authorized ASSIX hand
gauge to assure that the tire is inflated to 35 p.s.i. This
prepares the tire for the next step of the 5-step
COMPLETE wheel balance.
STEP # 2 - Administering the Tire Matching Technology using the
service property.
The Combi is a patented machine that applies hydraulic pressure to
the rotating, inflated tire to simulate
actual driving conditions. The Combi detects the amount of flex
variation in the complete wheel assembly,
including the potentially stressed rims, and, if greater than the
manufacturers specifications, adjusts the
wheel assembly to conform to the following specifications:
Adherence to these specifications results in a more uniform tire
footprint while the car is being driven on the
road.
SYS-7000 COMBINATION MATCHER/BALANCER OPERATING
PROCEDURE
1. Remove the tire/wheel assembly from the car. ▇▇▇▇ the wheel
position (i.e., RF, LF, RR,
LR) on the serial side of the tire.
2. Clean stones and loose debris from the tire tread.
3. Check inflation pressure in the tire and adjust to 35 P.S.I.
4. Mount the tire/wheel assembly onto the shaft of the Combi as
detailed in coning instructions.
a. Place spring on tire shaft.
b. Select proper size cone for rim center hole and place on
shaft.
c. Place tire & rim assembly on Combi shaft (lug bolt side out).
d. Place speed nut on shaft and tighten.
e. Front coning is required on some wheel styles. If so,
eliminate spring on shaft.
5. Open buffer cover. Start the machine by placing your finger
on "system start" (Combi only)
button on the panel. Very little pressure is required to operate
the controls. Begin in the
"fine" cycle. Combi will automatically choose the appropriate
cycle.
6. Align the roller assembly by unlocking lower black knob and
slide assembly to center of tire.
7. Align rasps to cover as much of the outside shoulder of the
tire as possible. Be sure that both
rasps contact the tire at the same time. Secure them in position.
8. Adjust the distance between the face of the rasps and the
tread surface to 1/8" preferably, and
a maximum of 1/4" by rotating the knurled knob of the roller
control assembly. Rotating the
control knob counterclockwise decreases the distance--clockwise
increases it.
Never buff the full circumference of the tire. Rasps must have
clearance to tire, except when
actually buffing selected portions of the tire.
9. The logic control will then decide if the assembly is good,
requires buffing, or must be
rejected.If the decision is "good" or "reject", the appropriate
light comes on, and the machine
shuts down (stops rasp and tire rotation and unloads tire). If the
decision is "buff" the
"match" light comes on and the Combi will determine the cycle
automatically.
9A. A slight deviation in the lateral overlap of the rasp may be
necessary to compensate for
variables in the tire tread surface to maintain a uniform distance
of the rasps to the tread.
10. The rasps will advance towards the tire whenever the force
variation signal exceeds the "low"
value (20 in the "Auto" buff cycle) after the delay, allowing that
portion of the tire
circumference to travel from the drum to the rasps. The rasps will
retract when the signal
drops below the low, value, again with the delay.
***NOTE*** If buffing is uneven, open the lid, and re-adjust. It
is not
necessary to stop the machine to readjust the rasps, simply open
the lid and adjust
when rotation stops.
***WARNING*** DO NOT ATTEMPT TO STOP THE RASPS IN ANY
MANNER-THEY WILL STOP WITHIN A FEW SECONDS.
11. The rasps should make smooth, even buffs, without pounding or
bouncing against the tire.
a. If the rasps pound on the tire, causing digging or
cupping, they are probably too far
away from the tire in the retracted position. Lift the lid, and
adjust the small roller so that the rasps
are closer to (but not touching) the tire in the retracted
position.
b. If the rasps bounce very lightly in a "hit and miss"
manner on the tire, the "buff"
pressure (air pressure, actuating the advance/retract mechanism) is
too low or too high.. Raise
pressure until bouncing ceases.
12. The buffing will continue until the low value (20) is achieved
or 3 minutes have elapsed,
whichever occurs first. If the low value is achieved, the "good"
light will come on.
Exceeding the time limit indicates the tire did not respond
adequately to the buffing. Check
for proper mounting of the tire and accurate positioning of rasps.
***NOTE***
The Combi is automatic, and you should not have to stand over it
while it completes the cycle.
However, occasionally you should look to be sure that your settings
are correct. Remember, the
machine will only do what you have instructed it to.
STEP # 4 - APPLYING MANUFACTURER'S RECOMMENDED AIR PRESSURE USING
THE
OWNER'S MANUAL OR BENNENT GARFIELD'S TIRE BOOK.
STEP # 5 - MOUNTING THE ENTIRE ASSEMBLY ON THE CAR WITH UNIFORM LUG
TIGHTNESS AND HAND TORQUING THE LUG NUTS TO THE MANUFACTURER'S
SPECIFICATIONS.
Proper procedures with reinstalling the wheels on the vehicle can
eliminate wheel rattles. Over tightening the
lug nuts can warp brake rotors, causing an unsafe condition when
the brakes are applied. Wheels may
become warped and mounting holes have become deformed or cracked
because of incorrect tightening
pressure.
All tightening should be begun by hand, using a torque-limiting
impact tool adjusted to the low setting and
just making the lug nuts "snug". The proper tightening pattern is
1-3-5-2-4 for a five bolt configuration and
1-3-4-2 for a four bolt configuration. Following this, the tire
should be thoroughly cleaned of any
manufacturer installed coating on the whitewall of the tires. The
wheel cover is then replaced using a rubber
hammer.
THESE FIVE STEPS COMPLETE THE ACCUBALANCE PROCESS AND ASSURE
THE CONSUMER OF THE TOTAL RIDE VALUE ASSOCIATED WITH THE NEW
TIRES, ALIGNMENT, STRUTS OR OTHER RIDE-RELATED SERVICE WORK.
PROGRAM ELEMENT # 5 - MONITORING AND MEASURING
SPECIFIC
CONCERN: Assix first identifies actual "opportunity" AGENT sites
and then directs the
manpower to the place where it will be of maximum benefit to the
Agent.
Physical visits by Assix field personnel are replaced by telephonic
contact and
status reviews.
OBJECTIVES: To develop a tracking/trending system to promptly
direct Assix field personnel
to statistically designated "opportunity" AGENT sites.
To analyze and report usage statistics to all AGENT'S on a
continuing periodic
basis.
To analyze and report usage statistics to all levels of Assix
management
personnel on a continuing periodic basis.
To make our AGENTS the most effective and profitable
marketeers of ride-
related products and services within the automobile aftermarket.
To achieve complete consumer satisfaction for our ride-related
products and
services.
C.A.R.D.S./TRACS PROGRAM
(Consistent, Achievement Reporting Discipline System -.
Tracking Recording Accounting Control Systems)
TRAC$ is on AGENT performance control, data collection,
profitability analysis reporting
system. The system's purpose is three-fold:
1. Collect, analyze and provide AccuBalance performance and trend
information to Assix's
current AGENT'S on a monthly basis;
2. Track and analyze incoming performance data on Assix's initial
implementations on a
weekly basis;
3. Provide detail and summary data/analysis to Assix personnel so
they can assist their
assigned AGENT'S in reaching their agreed objectives.
The system is primarily designed to spotlight under performing
stores but also highlights
stores that are well ahead of quota. The system is directed at
units made up of stores, districts,
regions and also on the national level.
PROGRAM ELEMENT # 6 - SCOPE OF PREVENTATIVE AND REMEDIAL
MAINTENANCE
SERVICE
ASSIX maintains all the Tire Matching System 7000 service property
through a field service
organization consisting of Service Property Specialists, a 1-800
support telephone network and a
dispatching system. Service property service is provided five days
per week; Monday through
Friday. Repairs are made on a "best efforts" basis generally not
longer than forty-eight (48) hours.
Response time begins when the call is received at by ASSIX Central
and the Service Property
Specialist is contacted. It terminates when the problem has been
resolved.
All incoming calls are received by the ASSIX Central dispatch team.
An experienced Technical
Support Representative is on hand to attempt to resolve simple
problems over the phone directly
with the retail unit personnel. This avoids unnecessary delays.
All calls received during a month
are summarized and evaluated to determine areas that may need
improvement.
ESCALATION PROCEDURE
Should any problem not be resolved within forty-eight (48) hours,
a set of escalation procedures
take effect:
If a problem is not resolved within forty-eight (48) hours, the
ASSIX Regional Manager is notified
by ASSIX Central. The ASSIX Regional Manager begins to assist in
taking corrective action.
Should the problem not be resolved within thirty-six (36) hours,
the National Service Manager is
notified and takes appropriate action as needed. If the problem is
not corrected within forty-eight
(48) hours, the National Operations Manager is notified. At that
time, the National Operations
Manager will determine the time remaining to resolve the problems
will notify the appropriate
Agent management with an estimated time of resolution. At this
point, depending upon the
severity of the problem, it may become necessary to ship new
service property as a major unit
replacement (MUR) to the retail unit. This decision will be made
by the President of ASSIX
International, Inc.
SERVICE PROPERTY SPECIALIST
Service Property Specialists are trained specifically to maintain
and repair the Tire Matching
System 7000 service property. They are responsible for the entire
Tire Matching System 7000
population in an assigned area. Their responsibilities include but
are not limited to:
1. Performing all repairs on a Tire Matching System 7000 within
a forty-eight (48) hour
period of time. Communicate with ASSIX Central when a service
property will not be
repaired within a forty-eight (48) hour period of time. (refer to
Escalation Procedure)
2. Maintain a compliment of spare parts in his van.
3. Provide additional training in the use of the Tire Matching
System 7000 to any new
employee in the back shop.
4. Complete call reports on all repairs and visits made to the
retail unit and obtain Agent
Management's written acknowledgement of the performance of such
service.
5. Build a positive and professional relationship with all retail
unit personnel.
6. Read, study and understand all aspects of the Tire Matching
System 7000 and attend
regularly scheduled Service Property training classes conducted by
ASSIX International, Inc.
at its locations
THE AGENCY RELATIONSHIP
ASSIX Responsibilities
1. ASSIX will supply each location with the AccuBalance Service
Property in the proper
numbers to adequately deliver the COMPLETE wheel balance. This
will be accomplished
without the Agent making any capital investment in the service
property.
2. ASSIX will install the AccuBalance Service Property when the
Agent has located air supply
and power outlet within five feet of recommended service property
location.
3. ASSIX will spend time in each retail unit location to train
Agent personnel on the operation
and sales of the AccuBalance Program. This is done by providing an
AccuBalance for each
employee's car, holding retail unit training meetings and working
in the retail unit with all
sales and service personnel for up to 4 days or until Agent is
satisfied every auto center
employee is trained and the program has been installed to meet the
Agent's and Assix's
objectives.
4. ASSIX will furnish Agent with materials it deems necessary to
support the sale of the
AccuBalance COMPLETE WHEEL BALANCE.
5. ASSIX will service the Tire Matching System 7000 service
property, including all parts
and correct any problems caused by normal wear, through its
coordinated service network.
6. ASSIX will retrain new retail unit personnel periodically or
as needed to increase
AccuBalance sales to the targeted levels. ASSIX will check
periodically on the Agent's
service property operating procedures.
7. ASSIX will provide Agent with an analysis of the AccuBalance
profit potential within each
of their retail units on a monthly basis; during the initial
implementation, this will be done
weekly.
8. ASSIX will continue the day-to-day follow-up until the
mutually agreed, target financial
objective for AccuBalance-to-tires-sold is reached. Following this
level of achievement,
follow-up will be on an as-needed basis.
The benefits of this program will mean increased revenue and
profits, provide a program with no
capital outlay, and give the consumer a tangible added value
service.
Agent's Responsibilities
1. Provide a letter from Agent senior management to operating
line management of the Agent's
retail operations and management indicating support of the
implementation of the program.
2. Provide a letter of introduction from Agent, to Region
Managers, and other management,
indicating the establishment of goals and objectives for the
AccuBalance brand of the
COMPLETE WHEEL BALANCE program implementation.
3. Provide a designated management person with whom ASSIX can
coordinate the program;
this individual will have the authority to implement actions
essential to the program's
success.
4. Provide ASSIX the performance statistics for the AccuBalance
brand of the COMPLETE
WHEEL BALANCE program, including number of new tires sold, number
of standard
balances and number of AccuBalance performed. These will be faxed
weekly to 1-800-
753-5444 or telephoned in to ▇-▇▇▇-▇▇▇-▇▇▇▇ during the trial
implementation, so ASSIX and
Agent can monitor sales results. Also, monthly reports will be
used for any appropriate fee
▇▇▇▇▇▇▇▇ per tire.
5. Each retail unit will install the proper electrical and air
outlets, prior to AccuBalance being
installed.
6. Require all retail unit personnel to attend a training meeting
on AccuBalance in each retail
unit location. Management attendance is required in all meetings.
The meeting size will be
such that all personnel will have the ability to ask questions, and
receive full information
concerning the program. A series of special sessions will be held
for all persons involved in
the actual selling of the AccuBalance service.
7. All retail unit personnel will receive the AccuBalance brand
of the COMPLETE WHEEL
BALANCE during the initial installation period, at no cost to them
or to Assix.
8. Use of AccuBalance identification materials as supplied and
directed by ASSIX.
9. Install the AccuBalance System Combi
10. Agent shall clearly differentiate between a traditional,
standard, basic, old style wheel balance
and the AccuBalance COMPLETE wheel balance. The warranty for the
AccuBalance
shall be at least 4 times as attractive to the consumer as the
warranty for the traditional,
standard, basic, old style wheel balance. This means that the
warranty for the "old style" will
not exceed 3,000 miles and the warranty for the AccuBalance
COMPLETE wheel balance
would be 10,000 miles.
11. Instruct all tire sales personnel to offer AccuBalance on each
selling opportunity, including
ride-related services such as alignment, strut sales, etc. in
accordance with the selling
procedures as agreed by Agent and ASSIX.
12. ASSIX will be notified by Agent when new personnel are hired
so additional training can be
provided by ASSIX.
Assix reserves the right, upon provision of thirty (30) days
advance written notice to Agent, to
revise this Exhibit.
This concludes Exhibit "A"
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
EXHIBIT "B"
SERVICE PROPERTY
1. Combination Matcher/Balance System
2. Quick Lock Adapter
3. Rasp T. Handle (1)
4. #6979-00 Backplated/sleeve (1)
5. #6080-00 Spring Backplate (1)
6. #6081-00 Cone #1 (1)
7. #6082-00 Cone #2 (1)
8. #6083-00 Cone #3 (1)
9. #6087-00 Top Plate (1)
10. #6090-00 Spacer (Large) (1)
11. #6091-00 Spacer (Small) (1)
12. #6092-00 Wing Nut (1)
13. Misc. Mounting Plates/Bolts (4)
14. Miscellaneous advertising materials that Assix considers
necessary as
printed material, signs, banners, etc
Assix reserves the right, upon provision of thirty (30) days
advance written
notice to Agent, to revise this Exhibit..
EXHIBIT C
COMPENSATION DUE TO AGENT
GROSS REVENUE FROM PROGRAM LESS ASSIX FEES SHOWN BELOW AS
DUE AND PAYABLE OF THE SPECIFIC SCHEDULE OF INVOICING AS
SET FORTH.
1. Monthly Service Fee per Program $429.00
The first monthly service fee will be invoiced upon completion
of training and installation
acceptance and pro-rated at a cost of $14.33 per calendar day
remaining in the month after the
date of installation acceptance by the Agent.
Subsequent monthly service fees will be invoiced in advance on
approximately the twentieth
(20th) day of the prior month.
2. Usage Fee per Tire $.25
The usage fee will be invoiced on approximately the twentieth
day of the month, based on
tires serviced during the prior month. Agents will submit to Assix
Central on the last
working day of each month the number of tires serviced with revenue
collected under the
Program in such month. In the event this information is not
received by Assix within ten
(10) days of the end of the month, the usage fees due shall be
estimated by Assix and
invoiced accordingly.
3. Assix may increase the above fees (Initial, Monthly Service
Fee per program and Usage Fee
per tire serviced), upon thirty (30) days prior written notice to
Agent following the
anniversary date. Any increase will apply on the effective date as
specified in such notice.
4. Invoices shall be due in full upon receipt.
FOLLOWING THE AGENT BEING CURRENT IN AMOUNTS DUE TO
ASSIX, the balance of all revenues generated by Agent following
the
payment of all amounts due Assix shall be retained by Agent for its
own
account as compensation under this agreement.
Assix reserves the right, upon provision of thirty (30) days
advance written notice to Agent,
to revise this Exhibit.
MODIFICATION OF ASSIX STANDARD AGENCY AGREEMENT
Irrespective of any contradictory language or provisions
contained in the foregoing Assix
Standard Agency Agreement entered into between the undersigned, the
following provisions shall
apply and govern the parties:
1. The Agent, 4 Day Tire Stores, shall have final approval and
determination of the prices
to be charged its customers for services rendered using AccuBalance
equipment
owned by Assix International and installed at 4 Day Tire Store
locations.
2. Any revisions of the provisions in Exhibits A or B by Assix
shall be made only upon
no less than twelve (12) months written notice to Agent, 4 Day Tire
Stores.
3. The Assix Standard Agency Agreement aforesaid may be
terminated only by either
party giving notice to the other party of no less than twelve (12)
months.
4. Twelve months after the effective date of this Agreement, the
amount due to Assix
under Exhibit C may be increased if Agent is notified sixty (60)
days before the twelve
month period expires. Any increase for the monthly service fee
under this section will
not exceed 5%.
IN WITNESS WHEREOF, the parties have signed this Modification
of Assix Standard
Agency Agreement this 13th day of September, 1993.
"ASSIX"
ATTEST: ASSIX INTERNATIONAL, INC.
By: /S/▇▇▇▇▇▇▇ ▇. Gardner_____ By: /S/R. Park ▇▇▇▇▇▇,
III_______
Secretary President
[ Corporate Seal ]
"AGENT"
ATTEST: 4day TIRE STORES
By: /S/▇▇▇▇▇ Jessen__________ By: /S/▇▇▇▇▇▇ ▇. Carr_____
Secretary President
[ Corporate Seal ]
