EXHIBIT 10.13
MAYTAG
COMMERCIAL
ON-PREMISE LAUNDRY
DISTRIBUTOR
SALES AGREEMENT
1996-1998
MAYTAG Company, having a place of business at Newton, Iowa (hereinafter referred
to as Company) and Xxx-Xxxx Co., Inc., a Delaware Corporation, having a place of
business located at Cambridge, Massachusetts (hereinafter referred to as
Distributor) mutually agree as follows:
1. Distributor shall undertake to engage in the business of selling those
Maytag brand commercial on premise laundry equipment listed below:
(Distributor must initial on the line beside the products Distributor
agrees to sell or provide).
__x___ Commercial Non Coin Top-Load Washers
__x___ Commercial Non Coin Front-Load Washers
__x___ Commercial Non Coin Single-Load Dryers
__x___ Commercial Non Coin Stack Dryers
__x___ Commercial Non Coin Multi-Load Dryers
along with accessories for non coin commercial installation in on premise
laundry, "OPL" locations in the area of primary marketing responsibility as
described on the attached list(s) and to diligently devote its time and
abilities in developing the sales potential for the indicated Maytag brand
commercial OPL equipment in the area in such a manner as will justify
continuance of this Agreement by Company.
It is understood the statement of "area" in this Agreement is intended to
insure that all sales opportunities throughout the United States or Canada
are specifically assigned for accountability. It is not the intention to
restrict sales of Distributors to such areas; provided it is understood
that every sale of commercial OPL equipment, wherever made, carries with it
the full range of Distributor responsibility to purchaser, including that
of installation, warranty service and post-warranty service as required.
Company shall provide and Distributor shall accept quotas on unit appliance
sales for the area of its primary marketing responsibility. Credit against
quota is not given for sales outside this area so Distributor or Company
will deduct such sales from reports of quota attainment. Although these
quotas are to be considered as reasonable sales objectives and not as legal
obligation, when they are accepted by Distributor it shall be the
responsibility of Distributor to make every reasonable effort to meet such
quotas. Distributor shall recognize and promote Company's marketing
programs and exert every effort to insure success of these programs in
Distributor's area of primary responsibility.
2. On a mutually non-exclusive basis, Company shall sell to Distributor such
models of Maytag brand commercial appliance in the categories initialed by
Distributor, including repair parts and accessories for the same, in such
quantities as Distributor will order
and purchase, provided the item ordered has been made available by Company
for general sale to its other Distributors of commercial appliances and in
the judgment of Company it is appropriate to market it in the area herein
described. Where an item is being made available, but is in short supply,
Company reserves the right to allocate the available supply among its
commercial Distributor in the manner that Company considers most equitable.
All orders of Distributor shall be subject to acceptance by Company at its
home office in Newton, Iowa. Prices and terms to be those in effect at the
time of shipment with all prices and terms being subject to change without
notice. Any order form used by Distributor containing terms and conditions
of purchase shall not vary or add to the terms of this Agreement.
3. Distributor shall make every reasonable effort to insure that all non-
Maytag brand commercial equipment furnished to an OPL customer is of the
highest possible quality. Distributor shall, in every instance, inform the
OPL customer (prior to sale) the names of the manufacturers of such other
appliances, that such appliances are not the product of Company, and that
any guarantee or representation of the quality or performance of such
appliance is by its manufacturer and not by Company.
4. Company issues a printed warranty on each Maytag Brand commercial appliance
and Company hereby grants the same warranty to all Maytag brand commercial
appliances purchased by Distributor. Distributor agrees to assume any
labor responsibilities under the warranty. Distributor agrees to indemnify
and hold Company harmless, including providing the necessary defense,
against any and all claims based upon any labor warranty.
5. Distributor is to assume the responsibility under this Agreement of
assuring the commercial purchasers that proper service is available during
the warranty period as well as continuing service as needed, either through
Distributor's own service organization or through Distributor-approved
independent service organizations, and shall furnish Company with a current
list showing the names and addresses of such organizations. Distributor
shall also provide commercial purchaser with an up-to-date list of
competent service organizations that may be used, information regarding
where parts may be procured, appropriate service information made available
by Company, and a time and place of offering of service training courses.
In view of Distributor's prominent public identification with Company, to
avoid customer misunderstanding and deception, Distributor agrees that to
the extent it uses other than Maytag-authorized repair parts in the repair
of Maytag brand commercial appliances, it will inform the customer of the
fact of such substitution and will, in addition, clearly indicate on the
customer's invoice that a part has been substituted for a Maytag-authorized
part.
6. Distributor shall provide, on an annual basis, a list of sales personnel
showing name, address and territory covered. Distributor shall also
forward to the Company, one copy of its annual statement of financial
condition and one copy of its statement of income
and expense as promptly as possible after the close of its fiscal year.
7. Distributor recognizes that Maytag Corporation is the owner of the marks
Maytag and its Company SYMBOL. During the terms of this Agreement,
Distributor shall be permitted to use these marks in its advertising;
however, such usage by Distributor shall not be construed as the granting
of a license for any Maytag Corporation marks. Distributor's use shall be
in accordance with the standards established by Maytag Corporation for
their protection and shall be subject to Maytag Corporation's complete
right of control over the manner and extent of use and of the right of
Company to compel discontinuance of such usages.
Distributor may not use the name and xxxx Maytag as part of its trade name
unless such use is expressly authorized by Company in writing and shall
never use it in a manner to indicate that Distributor is other than an
independent contractor, as distinguished from an agent or employee of
Company.
Upon request or upon termination of this Agreement, Distributor shall
immediately discontinue and relinquish any and all permitted uses of the
name Maytag and of the marks Maytag and its Company Symbol in telephone
directories, on store fronts, on signs, on posterboards, in newspapers and
periodicals, on trucks, on stationery or in any manner whatsoever and
advertising and promotional material on Maytag brand commercial appliances
shall be destroyed. In the event Distributor does not promptly discontinue
use of these marks and legal action is commenced to compel compliance,
Company or Maytag Corporation in such action shall be entitled to be
reimbursed for all costs, attorney's fees and other expenses, which shall
be in addition to any other rights of recovery.
Distributor shall not permit any OPL customer to use the xxxx Maytag or the
Company Symbol without the express written permission of Company.
8. Distributor is not in any respect an agent, representative, joint venturer,
partner or employee of Company or Maytag Corporation. In furtherance of
this fact, Distributor shall accept full responsibility for any
representations made to its customers, including but not limited to those
dealing with questions of profitability, location, facilities, equipment
and service requirements. Further, Distributor agrees to indemnify and
hold Company and Maytag Corporation harmless, including providing of
necessary defense against any and all claims made by customers based upon
Distributor's representations.
9. It is agreed that wholesale price sheets and information will be treated by
Distributor as confidential and shall not be revealed, disseminated or
displayed to the public because they are not prepared to provide consumer
understanding and may, therefore, mislead consumers.
10. Neither Company nor Distributor shall be held in default for failure of
performance under this Agreement, due to strikes, riots, insurrections,
fire, acts of God, inability to
obtain labor, machinery, material or merchandise or for any cause beyond
their reasonable control.
11. Except as otherwise provided by applicable State, Provincial, or Federal
law, this Agreement may be terminated at any time with or without cause by
either Company or Distributor by a ninety (90) day written notice of
cancellation, duly signed on behalf of the party electing to terminate the
Agreement and delivered to the other party. Deposit of such notice in the
United States Certified Mail (in the case of a foreign Distributor the
nearest foreign equivalent) with the requisite postage, and properly
addressed to the addressee at its last known place of business shall be
deemed delivery of the notice.
In the event of termination, Distributor may, within the ninety (90) days
prior to the effective date of termination, make written request for a
review of the decision to terminate to the Vice President Strategic
Marketing of Company setting forth the reasons Distributor believes
termination should not take place. Such request shall not stay or extend
the effective date of termination. The Vice President Strategic Marketing
will, within fifteen (15) days of receipt of such request, reach a decision
and immediately notify Distributor of the decision.
Such termination of this Agreement by cancellation or its termination by
expiration, will automatically effective on the date thereof, cancel all
undelivered purchase orders placed by Distributor with Company, whether or
not accepted by Company. Both Distributor and Company shall waive any
claim for compensation in connection with such cancellation of undelivered
purchase orders. Further, neither Company nor Distributor shall be liable
with such cancellation of undelivered purchase orders. Further, neither
Company nor Distributor shall be liable to the other because of the
termination of this Agreement for compensation, reimbursement or damages on
account of the loss of prospective profits on anticipated sales or on
account of expenditures, investments, leases or any type of commitments
made in connection with the business of either of them.
12. In the event of the termination of this Agreement, Company shall have for a
period of fifteen (15) days from and after the date of said termination,
the exclusive option, exercisable by giving a written notice, to purchase
all or any part of the inventory of new, used and repossessed Maytag brand
commercial appliances owned by Distributor upon that date at the following
prices: New Maytag brand commercial appliances at the price for which such
appliances were sold to Distributor by Company, less any discounts or
allowances granted and plus actual freight (or the regular commercial truck
rate in the event transported in Distributor's own truck) apportionable to
those appliances for which the option is exercised; used or repossessed
Maytag brand commercial appliances at 75% of the current price for similar
new appliances. Distributor shall not sell or offer for sale any Maytag
brand commercial appliances to anyone else during such option period
without written permission from Company and, if required by Company, will
assemble, at the place of business mentioned in this Agreement, all Maytag
brand commercial appliances Distributor owned on said
termination date. The option of repurchase herein described shall also
apply to any new accessories or new repair parts, as they are defined by
Company, at a price computed by the formula prescribed for new appliances.
13. This Agreement supersedes all previous agreements covering this
Distributorship. There are no agreements, written or oral, as to the terms
and conditions of this Distributorship except those contained herein, and
it is expressly understood by Distributor that no subsequent agreement
modifying or altering the terms hereof shall bind Company unless in
writing, duly signed by an officer or the Commercial Division Manager of
Company at Newton, Iowa.
14. All questions arising out of or under this Agreement shall be governed by
the domestic laws of the State of Iowa.
15. This Agreement is personal to Distributor and terminates upon the sale of
the business or an assignment or transfer of the business assets or the
capital stock of a corporation. Further, the Agreement can be declared
terminated by Company if there is a change in operating management prior to
written notice to Company and its written approval of such change.
16. This Agreement, having first been executed by Distributor, shall become
effective and binding upon both Company and Distributor upon the date of
its execution by an officer or the Commercial Division Manager of Company
at Newton, Iowa, and except as otherwise provided by applicable State,
Provincial or Federal law thereafter shall remain effective until June 30,
1998, unless previously terminated by cancellation as provided in Paragraph
11 hereof.
17. Distributor certifies in executing this Agreement that Maytag brand
commercial appliances, accessories and repair parts purchased from Company
are for resale, that it holds an active registration or resale number and
that it will account to the appropriate state, province or city for any
retailer's occupation tax due as a result of the sale of this property at
retail.
--------------------------------------- ---------------------------------------
(TAXING BODY, STATE PROVINCE OR CITY) (SALES TAX REGISTRATION NUMBER)
This Agreement entered into this ______ day of _______________, 19_____
DISTRIBUTOR MAYTAG COMPANY
--------------------------------------- ---------------------------------------
(Firm Name) (Commercial District Sales Manager)
By By
---------------------------------- -------------------------------------
(Signature and Title) (Commercial Division Manager)
MAYTAG
COMMERCIAL DISTRIBUTOR SALES AGREEMENT
1996-1998
Xxx-Xxxx Company, Inc.
7283
Maytag Company, having a place of business at Newton, Iowa (hereinafter referred
to as Company) and Xxx-Xxxx Company, Inc. a(an) Delaware Corporation, having a
place of business located at Charlotte, North Carolina, (hereinafter referred to
as Distributor) mutually agree as follows:
1. Distributor shall undertake to engage in the business of selling those
Maytag brand commercial on premise laundry equipment listed below:
(Distributor must initial on the line beside the products Distributor
agrees to sell or provide).
__x__ Commercial Non Coin Top-Load Washers
__x__ Commercial Non Coin Front-Load Washers
__x__ Commercial Non Coin Single-Load Dryers
__x__ Commercial Non Coin Stack Dryers
__x__ Commercial Non Coin Multi-Load Dryers
along with accessories for commercial installation in new and existing
self-service coin laundries, multiple housing locations, dealers, and to
route operators in the area of primary marketing responsibility as
described on the attached list(s) and to diligently devote its time and
abilities in developing the sales potential for the indicated Maytag brand
commercial OPL equipment in the area in such a manner as will justify
continuance of this Agreement by Company.
It is understood the statement of "area" in this Agreement is intended to
insure that all sales opportunities throughout the United States or Canada
are specifically assigned for accountability. It is not the intention to
restrict sales of Distributors to such areas; provided it is understood
that every sale of commercial appliances, wherever made, carries with it
the full range of Distributor responsibility to purchaser, including that
of installation, warranty service and post-warranty service as required.
Company shall provide and Distributor shall accept quotas on unit sales for
the area of its primary marketing responsibility. Credit against quota is
not given for sales outside this area so Distributor or Company will deduct
such sales from reports of quota attainment. Although these quotas are to
be considered as reasonable sales objectives and not as legal obligation,
when they are accepted by Distributor it shall be the responsibility of
Distributor to make every reasonable effort to meet such quotas.
Distributor shall recognize and promote Company's marketing programs and
exert every effort to insure success of these programs in Distributor's
area of primary responsibility.
2. Distributor shall undertake to engage in the business of selling Maytag
household washers and dryers for installation in new multiple housing
projects and existing
projects which are substantially remodeled and to develop this market with
Distributor's primary area of marketing responsibility.
3. Distributor shall submit orders on forms provided by Company for these
products. Only sales meeting the qualifications set forth on the form
provided by Company shall qualify for Distributor pricing.
4. On a mutually non-exclusive basis, Company shall sell to Distributor such
models of Maytag brand commercial appliances in the categories initialed by
Distributor, including repair parts and accessories for the same, in such
quantities as Distributor will order and purchase, provided the item
ordered has been made available by Company for general sale to its other
Distributors of commercial appliances and in the judgment of Company it is
appropriate to market it in the area herein described. Where an item is
being made available, but is in short supply, Company reserves the right to
allocate the available supply among its commercial Distributors in the
manner that Company considers most equitable. All orders of Distributor
shall be subject to acceptance by Company at its home office in Newton,
Iowa. Prices and terms to be those in effect at the time of shipment with
all prices and terms being subject to change without notice. Any order
form used by Distributor containing terms and conditions of purchase shall
not vary or add to the terms of this Agreement.
5. Distributor shall make every reasonable effort to insure that all non-
Maytag brand commercial equipment furnished to an operator are of the
highest possible quality. Distributor shall, in every instance, inform the
OPL customer (prior to sale) the names of the manufacturers of such other
appliances that such appliances are not the product of Company, and that
any guarantee or representation of the quality or performance of such
appliance is by its manufacturer and not by Company.
6. Company issues a printed warranty on each Maytag Brand commercial appliance
and Company hereby grants the same warranty to all Maytag brand commercial
appliances purchased by Distributor. Distributor agrees to assume any
labor responsibilities under the warranty. Distributor agrees to indemnify
and hold Company harmless, including providing the necessary defense,
against any and all claims based upon any labor warranty.
7. Distributor is to assume the responsibility under this Agreement of
assuring the commercial purchasers that proper service is available during
the warranty period as well as continuing service as needed, either through
Distributor's own service organization or through Distributor-approved
independent service organizations, and shall furnish Company with a current
list showing the names and addresses of such organizations. Distributor
shall also provide commercial purchaser with an up-to-date list of
competent service organizations that may be used, information regarding
where parts may be procured, appropriate service information made available
by Company, and a time and place of offering of service training courses.
In view of Distributor's prominent public identification with Company, to
avoid customer misunderstanding and deception, Distributor agrees that to
the extent it uses other than Maytag-authorized repair parts in the repair
of Maytag brand commercial appliances, it will inform the customer of the
fact of such substitution and will, in addition, clearly indicate on the
customer's invoice that a part has been substituted for a Maytag-authorized
part.
8. Distributor shall provide, on an annual basis, a list of sales personnel
showing name, address and territory covered. Distributor shall also
forward to the Company, one copy of its annual statement of financial
condition and one copy of its statement of income and expense as promptly
as possible after the close of its fiscal year.
9. Distributor recognizes that Maytag Corporation is the owner of the marks
Maytag and its Company Symbol. During the terms of this Agreement,
Distributor shall be permitted to use these marks in its advertising;
however, such usage by Distributor shall not be construed as the granting
of a license for any Maytag Corporation marks. Distributor's use shall be
in accordance with the standards established by Maytag Corporation for
their protection and shall be subject to Maytag Corporation's complete
right of control over the manner and extent of use and of the right of
Company to compel discontinuance of such usages.
Distributor may not use the name and xxxx Maytag as part of its trade name
unless such use is expressly authorized by Company in writing and shall
never use it in a manner to indicate that Distributor is other than an
independent contractor, as distinguished from an agent or employee of
Company.
Upon request or upon termination of this Agreement, Distributor shall
immediately discontinue and relinquish any and all permitted uses of the
name Maytag and of the marks Maytag and its Company Symbol in telephone
directories, on store fronts, on signs, on poster boards, in newspapers and
periodicals, on trucks, on stationery or in any manner whatsoever and
advertising and promotional material on Maytag brand commercial appliances
shall be destroyed. In the event Distributor does not promptly discontinue
use of these marks and legal action is commenced to compel compliance,
Company or Maytag Corporation in such action shall be entitled to be
reimbursed for all costs, attorney's fees and other expenses, which shall
be in addition to any other rights of recovery.
10. Distributor must make every effort to identify each coin laundry using
Maytag brand commercial appliances by signs, decals, etc., utilizing the
words "Maytag Washer Equipped" or "Maytag Washer and Dryer Equipped" in
accordance with written specifications as to shape, size and color
combinations, which are available to Distributor through Company. All such
identification materials not prepared by Company must be submitted to
Company for its prior approval, which approval will be governed by the
written specifications. In no event may the name and xxxx Maytag be used
in the firm or trade name of any customer of Distributor, except to point
out that a
particular location has an installation of Maytag brand commercial washers
or washers and dryers by using the combination of words set out in the
first sentence of this paragraph.
Any violation of this latter provision must be brought to Company's
attention by Distributor as it becomes known to it. In the event
Distributor fails to notify Company of a violation or has in some way not
enforced the prohibition, Company shall have the right, as to all
violations occurring after the date of this Agreement, to take any steps
necessary to correct the unauthorized use of Maytag and to charge back to
the Distributor all expenses incurred, which shall be in addition to any
other remedy. Further, Distributor must incorporate in its contract
documents signed by a commercial purchaser of washers or dryers for
installation in a laundry open to the general public the agreement of
purchaser to discontinue advertising the business as equipped with Maytag
brand commercial appliances if so requested by Distributor or Company on
the grounds that the business has ceased to meet reasonable standards of
maintenance and cleanliness or has advertised in any way that it deceptive
to the consuming public.
11. Distributor is not in any respect an agent, representative, joint venturer,
partner or employee of Company or Maytag Corporation. In furtherance of
this fact, Distributor shall accept full responsibility for any
representations made to its customers, including but not limited to those
dealing with questions of profitability, location, facilities, equipment
and service requirements. Further, Distributor agrees to indemnify and
hold Company and Maytag Corporation harmless, including providing of
necessary defense against any and all claims by customers based upon
Distributor's representations.
12. It is agreed that wholesale price sheets and information will be treated by
Distributor as confidential and shall not be revealed, disseminated or
displayed to the public because they are not prepared to provide consumer
understanding and may, therefore, mislead consumers.
13. Neither Company nor Distributor shall be held in default for failure of
performance under this Agreement, due to strikes, riots, insurrections,
fire, acts of God, inability to obtain labor, machinery, material or
merchandise or for any cause beyond their reasonable control.
14. Except as otherwise provided by applicable State, Provincial, or Federal
law, this Agreement may be terminated at any time with or without cause by
either Company or Distributor by a ninety (90) day written notice of
cancellation, duly signed on behalf of the party electing to terminate the
Agreement and delivered to the other party. Deposit of such notice in the
United States Certified Mail (in the case of a foreign Distributor the
nearest foreign equivalent) with the requisite postage, and properly
addressed to the addressee at its last known place of business shall be
deemed delivery of the notice.
In the event of termination, Distributor may, within the ninety (90) days
prior to the effective date of termination, make written request for a
review of the decision to
terminate to the Vice President Strategic Marketing of Company setting
forth the reasons Distributor believes termination should not take place.
Such request shall not stay or extend the effective date of termination.
The Vice President Strategic Marketing will, within fifteen (15) days of
receipt of such request, reach a decision and immediately notify
Distributor of the decision.
Such termination of this Agreement by cancellation or its termination by
expiration, will automatically effective on the date thereof, cancel all
undelivered purchase orders placed by Distributor with Company, whether or
not accepted by Company. Both Distributor and Company shall waive any
claim for compensation in connection with such cancellation of undelivered
purchase orders. Further, neither Company nor Distributor shall be liable
with such cancellation of undelivered purchase orders. Further, neither
Company nor Distributor shall be liable to the other because of the
termination of this Agreement for compensation, reimbursement or damages on
account of the loss of prospective profits on anticipated sales or on
account of expenditures, investments, leases or any type of commitments
made in connection with the business of either of them.
15. In the event of the termination of this Agreement, Company shall have for a
period of fifteen (15) days from and after the date of said termination,
the exclusive option, exercisable by giving a written notice, to purchase
all or any part of the inventory of new, used and repossessed Maytag brand
commercial appliances owned by Distributor upon that date at the following
prices: New Maytag brand commercial appliances at the price for which such
appliances were sold to Distributor by Company, less any discounts or
allowances granted and plus actual freight (or the regular commercial truck
rate in the event transported in Distributor's own truck) apportionable to
those appliances for which the option is exercised; Used or repossessed
Maytag brand commercial appliances at 75% of the current price for similar
new appliances. Distributor shall not sell or offer for sale any Maytag
brand commercial appliances to anyone else during such option period
without written permission from Company and, if required by Company, will
assemble, at the place of business mentioned in this Agreement, all Maytag
brand commercial appliances Distributor owned on said termination date.
The option of repurchase herein described shall also apply to any new
accessories or new repair parts, as they are defined by Company, at a price
computed by the formula prescribed for new appliances.
16. This Agreement supersedes all previous agreements covering this
Distributorship. There are no agreements, written or oral, as to the terms
and conditions of this Distributorship except those contained herein, and
it is expressly understood by Distributor that no subsequent agreement
modifying or altering the terms hereof shall bind Company unless in
writing, duly signed by an officer or the Commercial Division Manager of
Company at Newton, Iowa.
17. All questions arising out of or under this Agreement shall be governed by
the domestic laws of the State of Iowa.
18. This Agreement is personal to Distributor and terminates upon the sale of
the business or an assignment or transfer of the business assets or the
capital stock of a corporation. Further, the Agreement can be declared
terminated by Company if there is a change in operating management prior to
written notice to Company and its written approval of such change.
19. This Agreement, having first been executed by Distributor, shall become
effective and binding upon both Company and Distributor upon the date of
its execution by an officer or the Commercial Division Manager of Company
at Newton, Iowa, and except as otherwise provided by applicable State,
Provincial or Federal law thereafter shall remain effective until June 30,
1998, unless previously terminated by cancellation as provided in Paragraph
11 hereof.
20. Distributor certifies in executing this Agreement that Maytag brand
commercial appliances, accessories and repair parts purchased from Company
are for resale, that it holds an active registration or resale number and
that it will account to the appropriate state, province or city for any
retailer's occupation tax due as a result of the sale of this property at
retail.
______________________________________ _______________________________________
(TAXING BODY, STATE PROVINCE OR CITY) (SALES TAX REGISTRATION NUMBER)
This Agreement entered into this ______ day of _______________, 19_____
DISTRIBUTOR MAYTAG COMPANY
______________________________________ _______________________________________
(Firm Name) (Commercial District Sales Manager)
By__________________________________ By_____________________________________
(Signature and Title) (Commercial Division Manager)