MITSUBISHI
MITSUBISHI ELECTRONICS AMERICA, INC.
DEALER AGREEMENT
THIS AGREEMENT is made and entered into as of the ____/____ day
of_______________, 1996, by and between Mitsubishi Electronics America, Inc., a
Delaware corporation, acting by and through its Consumer Electronics Group, with
its principal office at 0000 Xxxxxxxx Xxxx., Xxxxxxxx, Xxxxxxx 00000-0000
("MELA"), and
________________________________________________________________________________
(Correct Legal Name)
a_______________________________________________________________________________
(Indicate if corporation, partnership or sole proprietorship)
with its principal office at____________________________________________________
_____________________________________________________________ ("Dealer").
(City) (State) (Zip Code)
WITNESSETH:
WHEREAS, MELA distributes consumer electronics products and accessories
therefor; and
WHEREAS, Dealer desires to sell some of the aforesaid products at retail at
specified locations; and
WHEREAS, Dealer recognized and acknowledges the importance to MELA and its
trademarks and trade names of selling such products only through authorized
dealers which have or acquire specialized skills in promoting and selling such
products and are otherwise able to fully carry out the obligations of a dealer
for such products as hereinafter set forth and only at authorized retail
locations which are fully owned and controlled by Dealer and maintained and
staffed in accordance with the requirements of this Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual covenants
hereinafter set forth, the parties hereby agree as follows:
1. DEFINITIONS.
(A) "Products" means only consumer electronic goods bearing the trademark
MITSUBISHI and/or such other trademarks as are owned or used by MELA.
MELA shall have no obligation to sell all the Products to Dealer. MELA
may select, within MELA's sole discretion, certain Products to be sold
only by certain dealers, which may or may not include Dealer.
(B) "Retail Locations" mean Dealer's retail stores which are fully owned
and controlled by Dealer and located under the store name(s) at the
address(es) set forth in the Schedule of Retail Locations attached
hereto as Exhibit A and as such Schedule may be amended by MELA from
time to time upon notice to Dealer, either upon approval by MELA of
Dealer's notice of its desire for such change pursuant to Section II
hereof or upon MELA's determination that
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Dealer has failed to fulfill its obligations under this Agreement with
respect to any Retail Location.
II. APPOINTMENT OF DEALER.
MELA hereby appoints Dealer and Dealer accepts appointment, on a
non-exclusive basis, to promote the retail sale of and sell the Products it
is offered by and purchases from MELA only at the Retail Locations and
otherwise in accordance with the applicable provisions of this Agreement.
Such appointment shall not constitute a grant of any specific territory or
geographical area. Dealer shall give MELA at least three (3) months notice
should it desire MELA to add any additional Retail Location and reasonable
notice should it desire to discontinue any Retail Location.
III. DEALER'S OBLIGATIONS.
(A) Dealer shall have the following obligations under this Agreement:
(1) Dealer shall use its best efforts to promote and sell the
products at retail and to maintain and promote the goodwill of
MELA.
(2) Dealer shall display and sell the Products only from the Retail
Locations and only to bona fide retail customers.
(3) Dealer shall comply with all applicable present and future
federal, state, county and local laws, ordinances and regulations
in connection with its promotion and sale of the Products.
(4) Dealer shall maintain the Retail Locations in an attractive,
clean, orderly and sanitary condition and maintain all of the
fixtures and furnishings therein in good condition and repair.
(5) Dealer shall display and demonstrate the Products in an
attractive and prominent manner and maintain adequate stocks of
and facilities for the Products.
(6) Dealer shall maintain an adequate sales force to carry out its
obligations under this Agreement and train its sales personnel in
connection with the demonstration, use and sale of the Products
so that such personnel will actively inform, advise and assist
retail customers for the Products in manners of Product use,
care, application, installation and service.
(7) Dealer shall maintain current information and records of the
identity, location and telephone numbers of authorized local
service centers with whom MELA has an agreement covering warranty
service of Products. Dealer shall provide such information to
retail customers upon request.
(8) Dealer shall designate and employee to act as Service Liaison to
MELA's Service Department and either provide service to retail
customers or direct them to authorized service centers in such
manner as to eliminate calls by customers to MELA regarding
operation, installation and service.
(9) Dealer shall make prompt payment of all invoices rendered by MELA
to Dealer in accordance with the terms thereof. Dealer shall not
make any deductions or set-offs of any kind from any payments
becoming due to MELA, unless Dealer shall have first received a
credit memorandum form MELA authorizing such deduction.
(10) Dealer shall promptly report to MELA any serious or potentially
serious charge, complaint or claim involving any Product or the
manner of offering or selling any Product.
(11) In accordance with applicable federal law pertaining to consumer
radiation protection, Dealer shall maintain for at least five (5)
years records regarding each Product sold by Dealer identifying
the model and serial number, date of sale and name and address of
the purchaser. Depending upon separate agreement with MELA's
Service Department, Dealer shall either maintain such records at
Dealer's place of business or promptly transmit them to MELA at
least monthly. Dealer shall promptly transmit to MELA all such
records whenever required by law and in the event Dealer
discontinues dealing in the Products.
(B) The following provisions shall also apply under this Agreement:
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(1) Notwithstanding the foregoing provisions of this Agreement,
Dealer may sell products to other authorized dealers who have
current dealer agreements with MELA, but only for sale at their
authorized retail locations under such agreements. Dealer shall
in no event be authorized to sell the Prod8ucts to any other
merchant(s) with the intent or for the purpose of resale.
(2) In no event shall Dealer be authorized to sell to or through mail
orders or mail order catalogs, TV shopping networks and/or
on-line services unless Dealer shall have been specifically and
expressly authorized for such sales in writing by MELA, with
MELA's sole discretion. For purposes of this provision , "mail
orders" shall include any sales resulting from advertising
published or broadcast beyond the geographical business service
areas of Dealer's Retail Locations, regardless of whether
"catalogs" are involved.
(3) To qualify for co-op advertising funds and other promotional
allowances which may be offered by MELA, Dealer shall strictly
comply with all applicable, written MELA guidelines, policies and
procedures as shall be in effect from time to time. Failure to
comply with any such guideline, policy and procedure or with any
provision of this Agreement may render Dealer ineligible to
receive all or any portion of such funds or allowances, as
determined by MELA in its discretion. no such funds or allowances
shall be earned until and unless the underlying Products are paid
for in full.
(4) Dealer represents and warrants that all of the information Dealer
provides to MELA or to any third party in connection with its
obligations under this Agreement or the purchase or sale of
Products shall be accurate and complete to the best of Dealer's
knowledge and shall not be false or misleading.
IV. DEALER'S MINIMUM PURCHASE.
(A) Dealer shall order and take delivery of Products for not less than an
aggregate of $100,000 per Retail Location annually. Dealer understands
and agrees that failing to achieve this minimum may result in the
termination of this Agreement by MELA, but achieving it does not
preclude such termination in accordance with Section V(B0 of this
Agreement.
(B) MELA may, at its sole discretion and upon thirty (30) days prior
notice to Dealer, increase such minimum annual purchase for any
succeeding year. Dealer shall notify MELA within thirty (30) days of
such notice in the event Dealer declines to purchase such minimum
amount for the succeeding year, in which case this Agreement shall
automatically expire at the end of its then current term.
(C) Nothing contained in this section shall preclude any separately
designed business plan(s) or quota(s) which may be mutually agreed
upon between Dealer and MELA based on Dealer's specific circumstances
and/or location.
V. TERM AND TERMINATION.
(A) The term of this Agreement shall become effective on the date first
above written and, unless terminated in accordance with Section V(B)
hereof, shall continue in effect until June 30, 1997, after which it
shall automatically expire; provided that MELA may extend the term of
this Agreement for successive one-year terms from July 1 to June 30,
subject to Dealer's concurrence. MELA shall give Dealer notice prior
to each expiration date if it elects to extend the Agreement.
(B) Notwithstanding anything to the contrary contained in this Agreement,
either party may terminate this Agreement, with or without cause, at
any time upon giving the other party notice, such termination to be
effective immediately upon receipt of such notice by such other party
or after any applicable minimum notice as may be required by law under
the circumstances. Grounds for cause shall include, but not be limited
to, (1) non-payment by Dealer of any indebtedness of Dealer to MELA
whether arising by virtue of this Agreement or otherwise when due or
declared due, (2) violation of Subsection III(B)(1) or (2) hereof, (3)
failure to meet or exceed the minimum purchase required under
Subsection IV(A) hereof or other mutually agreed quota(s) or business
plan(s), if applicable, (4) unethical or unlawful practices, (5) a
material change in ownership or control of Dealer or (6) the breach of
any other obligation of Dealer under this Agreement.
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(C) Upon termination of this Agreement, MELA shall have the option to
repurchase from Dealer all or any part of Dealer's inventory of
Products at the then prevailing price to Dealer or the price paid
therefor by Dealer, whichever may be the lesser (the "Repurchase
Price"), pursuant to the following procedure:
(1) within five (5) days after the effective date of termination,
Dealer shall submit to MELA a written schedule reflecting all
Products then owned by or in the Possession of Dealer, which
schedule shall identify each Product by model number and shall
indicate the quantity thereof on hand;
(2) within ten (10) days after the receipt of such schedule by MELA,
MELA shall have the right to inspect the inventory reflected on
such schedule;
(3) within twenty (20) days after completion of MELA's inspection of
such inventory or after expiration of the inspection period if no
inspection is conducted, MELA shall give notice of its election
to repurchase all or any part of such inventory;
(4) upon receipt of such notice to repurchase, Dealer shall forthwith
deliver such Products as may be specified therein to a carrier
designated by MELA; and
(5) MELA shall pay the Repurchase Price to the extent such Products
are delivered to MELA in good condition, in the original
packaging, by the issuance to Dealer of a credit corresponding to
the Repurchase Price to be applied to the deduction of any
current indebtedness of Dealer to MELA, and, if the Repurchase
Price shall exceed the indebtedness of Dealer to MELA, by payment
of such excess to Dealer within thirty (30) days after the
deliver of such Products to MELA.
(D) Immediately upon the termination of this Agreement, Dealer shall cease
to represent itself as an authorized Dealer of MELA with respect to
the Products and shall otherwise discontinue all conduct and
activities which might lead the public to believe that Dealer is
authorized by MELA to sell Products. Dealer shall cease to advertise
and shall remove all signs, posters, plaques and the like regarding
the Products and Dealer's relationship with MELA, and Dealer shall
promptly destroy, if so directed by MELA in writing, or otherwise
shall return to MELA's regional salesperson or corporate offices, all
such materials, any postage for which MELA shall reimburse Dealer upon
receipt. Notwithstanding the foregoing provisions of this subsection,
Dealer shall have the right to sell in accordance with the provisions
of this Agreement those Products which shall be in its inventory on
the date of termination and which MELA shall not repurchase pursuant
to the provisions of Subsection V(C) hereof.
(E) Termination of this Agreement _________________owing to MELA (whether
then or thereafter due to MELA) or operate to discharge any liability
that has been incurred by Dealer prior to termination or may be
incurred by Dealer after termination. Except as qualified by the
prece3ding sentence, neither party shall, by reason of the termination
of this Agreement, be liable to the other for loss of business, loss
of profits, loss of goodwill or any other losses, costs, damages or
expenses, whether direct, indirect, special, incidental, consequential
or otherwise, sustained by reason of any such termination.
VI. DEALER'S FINANCIAL CONDITION.
Dealer shall make available to MELA such statements of Dealer's financial
condition as MELA may from time to time request. MELA reserves the right at
all times, either generally or with respect to any specific purchase order
of Dealer, to vary, change or limit the amount or duration of credit to be
allowed to Dealer. MELA shall have the right at any time to require payment
for any Products on a cash-in-advance basis. Dealer shall execute and
deliver to MELA upon request such security agreements, UCC-1's and other
agreements and instruments as MELA may request to convey to MELA a security
interest in all Products purchased by Dealer from MELA, all proceeds
thereof and all receivables and contract rights arising upon the resale
thereof by Dealer.
VII. TERMS OF SALE TO DEALER.
(A) MELA shall, during the term of this Agreement, sell Products to Dealer
solely upon the terms and conditions contained in this Agreement. Any
different terms and conditions which may
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be contained in Dealer's purchase order forms or other such writings
are hereby rejected by MELA and shall not be binding upon the parties,
except as to the identification of the Products and the quantities
involved. Prices to dealer shall be in accordance with applicable
price quotations or periodic price sheets issued by MELA and shall be
F.O.B., MELA's shipping point. Prices are subject to change at any
time. Payment terms shall be in accordance with schedules issued by
MELA from time to time and may be modified by MELA on a monthly or
other periodic basis either for dealers generally or as to Dealer
individually.
(B) Title and risk of loss to all Products sold by MELA to Dealer shall
pass to Dealer upon delivery of the Products by MELA to the carrier.
Accordingly, Dealer shall have the responsibility to file any claims
with the carrier. MELA shall, without incurring any liability,
exercise its own discretion in selecting the method of shipment and
the carrier.
(C) Prices do not include, and Dealer shall bear the cost of, any taxes,
levies, duties and fees of any kind, nature or description whatsoever
applicable to the sale of any Products by MELA to dealer, and Dealer
shall forthwith pay to MELA all such sums upon demand, except for any
such taxes or other charges as to which Dealer shall provide MELA, at
the time of the submission of its purchase order to MELA,
documentation establishing exemption therefrom acceptable to MELA and
the appropriate taxing authority.
(D) Delivery dates as set forth in any purchase order or confirmation
thereof are only estimates. MELA shall in no event be liable to Dealer
for any delay or failure of delivery. Delay or failure of delivery of
any shipment shall not relieve Dealer of its obligations to accept
such shipment or any other shipment.
(E) Each shipment of Products to Dealer shall constitute a separate sale,
obligating Dealer to pay therefor, whether such shipment be in whole
or only partial fulfillment of any purchase order or confirmation
issued in connection therewith.
(F) MELA shall have the right to allocate its inventory of Products in
such manner as it may, in its sole discretion, from time to time
determine.
(G) MELA shall have the right at any time, in its sole discretion, to
reject or to decline to fill any purchase order, either in whole or in
part, placed by Dealer.
(H) MELA shall have the right, in its sole discretion, to sell exclusively
and/or to cease selling any one or more Products to any individual
dealer or category of dealers, including Dealer, at any time.
(I) MELA shall have the right, in its sole discretion, to cancel or reduce
the quantities of any Products included in any purchase order accepted
by MELA or to delay the shipment thereof if Dealer shall fail to meet
payment schedules or other credit, financial or business requirements
established by MELA.
(J) -
(K) MELA MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PRODUCTS EXCEPT AS EXPRESSLY STATED IN A WRITTEN LIMITED WARRANTY FOR
THE BENEIFT OF THE CONSUMER ACCOMPANYING THE PRODUCTS AND/OR AS
EXPRESSLY STATED IN A SEPARATE SERVICE CENTER AGREEMENT WITH DEALER.
MELA DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS. UNDER NO
CIRCUMSTANCES SHALL MELA BE LIABLE TO DEALER OR ANY OTHER PERSON FOR
ANY LOSSES, COSTS, DAMAGES OR EXPENSES, WHETHER DIRECT, INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE, SUSTAINED BY REASON
OF ANY BREACH OF ANY WARRANTY.
(L) If Dealer shall default in the payment of any indebtedness to MELA
when and as the same shall become due and payable and such default
shall continue for a period of ten (10) days, then all the liabilities
and obligations of Dealer to MELA, whether or not then due, shall at
MELA's option, without notice to Dealer, become immediately due and
payable. All past due invoices of MELA to Dealer shall bear interest
at the rate of 1 1/2% per month or the highest applicable rate
permitted by law, whichever is less, and Dealer shall also be liable
to MELA for all costs incurred, including attorney's fees and costs,
in pursuing collection of its invoices from Dealer or otherwise
enforcing any other provisions of this Agreement.
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(M) MELA confirms that product liability insurance written by an insurance
company licensed to do business in the United States in the amount of
not less than $2,000,000 combined single limit is maintained with
respect to the Products. Except to the extent of the applicable
coverage under such product liability insurance, Dealer shall have no
claim or right against MELA with respect to any suits or claims
against Dealer by any third persons resulting from the occurrence of
any event within the scope of the coverage of such insurance (without
reference to the dollar amount of coverage), and MELA shall bear no
responsibility or liability to Dealer with respect to any such suites
or claims by any third persons or any liabilities, losses, expenses or
damages incurred or suffered by Dealer as a result thereof.
(N) The Products are being sold to Dealer in the United States. If
applicable, any exporting of Products is by Dealer and not MELA.
Accordingly, Dealer shall be responsible for, at its own risk and
expense, any necessary export license or permit and nay other approval
or documentation which may be required for or in connection with the
export of the Products.
VIII. NO AGENCY.
The relationship established between MELA and Dealer by this Agreement is
that of vendor and vendee, and Dealer shall not be deemed an agent of MELA
for any purpose whatsoever. Dealer shall have no right or authority to
assume or create any liability or obligations of any kind, whether express
or implied, on behalf of MELA. Dealer shall not make any claims, warranties
or representations on behalf of MELA, except such as may be provided by
MELA or approved in writing by MELA. Dealer shall indemnify and hold
harmless MELA form and against any and all claims, actions, liabilities,
losses, costs, damages and expenses, including attorneys' fees and costs,
arising out of any breach by Dealer of the foregoing provision or of
Subsection III(B)(4) hereof.
IX. INTELLECTUAL PROPERTY RIGHTS MATTERS.
(A) Subject to the terms and conditions set forth in this Section, MELA
shall, at its own expense, defend or at its option settle any claim, suit
or proceeding brought against Dealer on the issue of infringement of any
United States patent or copyright in connection with any Product supplied
by MELA to Dealer in accordance with this Agreement. MELA agrees to pay,
subject to the limitations hereinafter set forth, any final judgment
entered against Dealer on such issue in any such claim, suit or proceeding
defended by MELA. MELA's obligations hereunder shall be subject to the
conditions that Dealer notify MELA in writing of any such claim, suit or
proceeding promptly after Dealer shall have received notice or obtained
knowledge thereof, and, at Dealer's expense, provide MELA full information
and assistance as requested by MELA in such defense. MELA reserves the
right in the event of any such claim, suit or proceeding to modify or
replace the affected Products to eliminate the alleged infringement, to
obtain al license to eliminate the alleged infringement or to give Dealer a
refund of the price of the affected Products in lieu of any other
obligations or responsibilities hereunder. MELA shall have no liability for
any infringement arising out of: (I) the combination of any Product with
any other Product whether or not furnished to Dealer by MELA; (ii) the
modification of any Product unless such modification was made by MELA; or
(iii) any information, data, service or application assistance not
furnished to Dealer by MELA. MELA shall not be liable for any costs or
expenses incurred without MELA's written authorization, and in no event
shall MELA's total liability to Dealer under, or as a result of compliance
with, this provision exceed the aggregate sum paid to MELA by Dealer for
the affected Products. The foregoing states the entire responsibility of
MELA, and the exclusive remedy of Dealer, with respect to any alleged
intellectual property right infringement or violation in connection with
the products, and MELA shall in no event be liable for loss of use or for
incidental, indirect or consequential damages, whether in contract or in
tort, by virtue of any such infringement or violation. No sale under this
Agreement shall convey any license by implication, estoppel or otherwise
under any propriety or patent rights of MELA except for the right to resell
the Products in accordance with this Agreement.
(B) Dealer shall not acquire any right to or interest in any trademark or
trade name owned or used by MELA, except the right to use such trademarks
and trade names as appear on the
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Products and on MELA's promotional materials therefor when received by
Dealer in any manner approved by MELA and shall discontinue all such use
upon the termination of this Agreement except as permitted by Section V(D)
hereof. Dealer shall not use any trademark or trade name of MELA as part of
its corporate or business name.
X. GENERAL PROVISIONS
(A) Dealer shall not assign or otherwise transfer this Agreement or any
interest in or rights under this Agreement without the prior written
consent of MELA. Any such purported assignment or transfer shall be
null, void and of no effect.
(B) Dealer shall give MELA notice of any proposed transaction affecting
the ownership of ten percent or more of Dealer's capital stock, if
Dealer shall be a corporation, the interest or any portion of the
interest of any partner, if Dealer shall be a partnership, or the
ownership of all or any part of the business, if Dealer shall be an
individual partnership.
(C) Except as hereinafter provided, all questions or controversies arising
out of or in any manner relating to this Agreement shall be submitted
to arbitration in Atlanta, Georgia according to the Commercial Rules
of the American Arbitration Association, and the award or decision
made by the arbitrator or arbitrators therein shall be binding upon
the parties. Nothing herein contained shall be construed as in any way
affecting MELA's right to institute and prosecute a lawsuit in any
court of competent jurisdiction to effect the collection of any monies
due to MELA from Dealer or to protect trademark rights.
(D) Any failure on the part of MELA to enforce at any time or for any
period of time any provision of this Agreement shall not be deemed or
construed to be a waiver of such provision or of the right of MELA
thereafter to enforce such provision or any other provision of this
Agreement.
(E) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Georgia, except as to questions of arbitrary,
which shall be determined by the Federal Arbitration Act.
(F) This Agreement supersedes any and all prior understandings and
agreements, whether written or oral, entered into between Dealer and
MELA with respect to the subject matter of this Agreement.
(G) This Agreement represents and incorporates the entire understanding of
the parties with respect to its subject matter, and each party
acknowledges that there are no warranties, representations, covenants
or understandings of any kind, nature or description whatsoever made
by either party to the other with respect to such subject matter,
except such as are expressly contained in this Agreement.
(H) Except as otherwise provided in Section X(i) hereof, neither this
Agreement nor the exhibits hereto shall be subject to change or
modification, except by the execution of another written agreement
duly executed by the parties.
(I) If and to the extent that any provision of this Agreement or portion
thereof shall be determined by any legislature or court to be in whole
or in part invalid and unenforceable, such provision or portion
thereof shall be deemed to be surplusage and, to the extent not so
determined to be invalid or unenforceable, each provision or part of
this Agreement shall remain in full force and effect.
(J) All notices under this Agreement shall be in writing and shall be sent
by recognized overnight delivery service or registered or certified
mail, return receipt requested and with all postage prepaid, to each
party at its address set forth on the fist page hereof, in the case of
MELA to the attention of the President, Consumer Electronics Group or,
in the case of either party, to such other address as is provided by
notice given in accordance herewith.
(K) The headings to the sections of this Agreement are included merely for
convenience of reference and shall not affect the meaning of the
language included therein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
MITSUBISHI ELECTRONICS AMERICA, INC. ---------------------------------
(Dealer)
By: By:
------------------------- ------------------------------
------------------------- ------------------------------
(Print Name and Title) (Print Name and Title)
(In the event Dealer is a corporation, only a duly authorized officer may sign
this Agreement and the title of the officer should be specified. In the event
Dealer is a partnership, only a partner may sign this Agreement, and "partner"
should be indicated as title. In the event Dealer is a sole proprietorship, this
should be indicated.)
The completed Application and Dealer Agreement shall not take effect until
approved at MELA's Consumer Electronics Group headquarters in Norcross, Georgia
and signed by an authorized officer of MELA
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