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EXHIBIT 10.32
PURCHASE, DISTRIBUTION AND MARKETING AGREEMENT
BY AND BETWEEN
SALTON/MAXIM HOUSEWARES, INC.
AND
KMART CORPORATION
_________________________
JANUARY 27, 1997
_________________________
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PURCHASE, DISTRIBUTION AND MARKETING AGREEMENT
This Agreement ("Agreement") is entered into as of January 27, 1997 (the
"Execution Date") between Salton/Maxim Housewares, Inc., a Delaware corporation
("Salton"), and Kmart Corporation, a Michigan corporation ("Kmart").
PREAMBLE
WHEREAS, pursuant to License Agreements by and between White Consolidated
Industries, Inc. ("WCI") and Salton (the "License Agreements"), Salton has the
exclusive right and license within the United States to use the trademark
"White-Westinghouse" and all associated designs and trade dress (together, the
"Trademark") in connection with the design, manufacture, advertising, sale and
promotion of, among others, the products listed on Exhibit A hereto, each of
which will bear and include the Trademark (such products bearing the Trademark
are hereinafter referred to as the "Products");
WHEREAS, Kmart is a leading discount retailer of various consumer and
other products, including products similar to the Products; and
WHEREAS, Salton desires to grant to Kmart certain exclusive rights and
obligations to purchase, distribute, sell, market and promote the Products in
the United States, and Kmart desires to accept and exercise these rights and
obligations, upon the terms and subject to the conditions of this Agreement.
WHEREAS, simultaneously with the execution of this Agreement, Kmart is
executing an agreement with New M-Tech Corporation, an affiliate of Salton, as
defined in Section 1.1 below (the "New Tech Agreement"), for the use of the
Trademark on Audio products, Video products, Telephones, Telephone Answering
Machines and Telephone accessories all as specifically described therein, which
agreement is critical to Kmart's overall program for use of the Trademark on
Products under this Agreement with Salton, is a primary inducement for Kmart's
entering into, and is a continuing necessary component of and precondition to
Kmart's performance under this Agreement with Salton.
Accordingly, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
TERMS AND CONDITIONS
1. DEFINITIONS
As used in this Agreement, the following terms shall have the
meaning given to them below:
1.1 "Affiliate" means any Person involved in a situation where,
directly or indirectly, one Person controls, or has the power to
control, the other Person or a third party controls, or has the
power to control, both Persons.
1.2 "Discount Department Store" shall include, without
limitation, the Persons listed on Schedule 1.2 hereof as well as all
department stores which are similar to Discount Department Stores in
terms of market niche, size and product pricing which now or
hereafter may exist.
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1.3 "Person" shall include any individual, corporation,
partnership, association, cooperative, joint venture, or any other
form of business entity recognized under the law.
1.4 "sale" shall mean any action involving selling.
1.5 "sell" shall mean to, directly or indirectly, sell,
distribute, supply, solicit or accept orders for, negotiate for the
sale or distribution of, or take any other action that is in
furtherance of, any of the foregoing. "Sell" also includes any other
forms of that verb, whether active or passive, or in the past,
present, or future tense.
1.6 "United States" shall mean the United States of America,
including Puerto Rico and Guam.
2. APPOINTMENT
2.1 Appointment by Salton; Acceptance by Kmart. Subject to the
provisions of this Agreement, Salton hereby appoints Kmart as the
sole and exclusive Discount Department Store to purchase,
distribute, sell, market and promote the Products in the United
States and Kmart hereby accepts such appointment. The rights granted
to Kmart under this Agreement shall hereinafter collectively be
referred to as the "Right." No other Discount Department Store
shall have any such Right during the Term of this Agreement and/or
any extension or renewal thereof, regardless of source (i.e.,
whether from Salton or any other entity) subject to Sections 10.4
and 10.5 hereof. Notwithstanding the foregoing, nothing in this
Agreement shall be deemed to preclude the sale of Products (i) by
entities or stores other than Discount Department Stores including,
without limitation, retail department stores, specialty housewares,
gourmet and kitchen stores and national cable television programs or
(ii) by any Person outside the United States. Furthermore, nothing
in this Agreement shall preclude Kmart from purchasing products of
the type listed on Exhibit A hereto from any sources other than
Salton if such products do not bear or include or are not sold under
the Trademark, and no payments shall be due to Salton hereunder in
respect of such sales.
2.2 Territorial Limitations. Salton covenants and agrees that,
during the term of this Agreement or until this Agreement is
terminated in accordance with the provisions of Article 10 below:
2.2.1 Salton shall not, directly or indirectly, sell
any Product to a Discount Department Store in the United
States, subject to Sections 10.4 and 10.5 hereof.
2.2.2 Except with the prior written consent of Salton
(which consent may be refused in the sole, absolute and
arbitrary discretion of Salton), Kmart shall not sell any
Product to any Person outside the United States. The United
States includes Puerto Rico and Guam.
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2.2.3 The parties acknowledge and agree that the relationship
hereby established between Kmart and Salton is solely that
of buyer and seller of goods that each is an independent
contractor engaged in the operation of its own respective
business, that neither party shall be considered to be the
agent of the other party for any purpose whatsoever, except
as otherwise expressly indicated in this Agreement, and
that, except as otherwise expressly indicated in this
Agreement, neither party has any authority to enter into any
contract, assume any obligations or make any warranties or
representations on behalf of the other party. Nothing in
this Agreement shall be construed to establish a partnership
or joint venture relationship between Salton and Kmart.
Nothing in this Agreement shall be deemed in any way to
constitute a sublicense by Salton of its rights under the
License Agreement, and the relationship between the parties
hereto shall at all times be as set forth in this paragraph.
3. REPRESENTATIONS AND WARRANTIES OF SALTON
3.1 Salton represents and warrants to Kmart as follows:
3.1.1 Organization, Power and Authority. It is duly organized
and validly existing under the laws of the State of
Delaware, has all requisite power and authority to conduct
its business as now, and as proposed to be, conducted and to
execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly authorized,
executed and delivered by Salton and represents a valid and
binding obligation enforceable against Salton in accordance
with its terms.
3.1.2 No Conflicts; Consents. Execution and delivery hereof, or
performance by Salton hereunder, shall not (a) violate or
create a default under (i) Salton's Certificate of
Incorporation or by-laws (true and correct copies of which
have been delivered to Kmart), (ii) any mortgage, indenture,
agreement, note or other instrument to which it is a party
or to which its assets are subject including, without
limitation, the License Agreement or (iii) any court order
or decree or other governmental directive or (b) result in
the action of any lien, charge or encumbrance on any
material portion of Salton's assets, except as contemplated
hereby.
3.1.3 Brokers. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of
Salton.
3.1.4 Trademark/Compliance with Laws. It has the contractual
right and authority to use the Trademark for the Products as
provided in this Agreement and to grant to Kmart all rights
which are set forth in this Agreement including but not
limited to the "Right" described in Section 2.1 herein,
including but not limited to, the right to import all
Products into the United States for the full duration of
this Agreement; and Salton shall provide U.S. Customs with
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sufficient proof and documentation to enable Kmart to do so.
(Notwithstanding the foregoing, Salton shall have up to ten
(10) business days to correct any such U.S. Customs Problems
which do not affect Kmart's ability to use the Trademark in
connection with the sale of any of the Products pursuant to
this Agreement.) In addition, no other Discount Department
Store shall have the right to use the Trademark in
connection with the sale of any of the Products or sell
Products bearing the Trademark or have any of Kmart's rights
hereunder during the Term of this Agreement and any renewal
and/or extension hereof. Furthermore, this Agreement as
well as Salton's performance hereunder shall be in
compliance with all applicable laws, rules and regulations
other than immaterial violations. Any claim which Kmart
reasonably believes impairs or would impair Kmart's ability
to receive any of the benefits of this Agreement, or any
failure under this Agreement and/or under the NewTech
Agreement with respect to this (or the Salton Agreement's)
Section 3.1.4 and/or Section 2.1, whether such failure
relates to any or all Products, shall entitle Kmart, in
addition to all other rights and remedies, without resort to
the notice and cure requirements under Section 10.3 herein,
to immediately terminate this Agreement and owe nothing to
Salton except for payment for Products accepted and sold by
Kmart through the date of termination.
3.1.5 Qualifications. Throughout the Term of this Agreement and
any renewal or extension hereof, Salton shall comply with
the following requirements:
a. New Vendor Packet Compliance. Salton must have executed
and delivered to Kmart all documents required by
Kmart's New Vendor Packet, including, but not limited
to, Kmart's agreement on standard purchase order terms
and conditions attached as Exhibit B (collectively, the
"Related Documents") and must currently be in full
compliance with the same except as required by this
Agreement. Salton's execution of this Agreement shall
constitute Salton's acceptance of and agreement to the
terms and conditions contained in all of the Related
Documents to the extent not inconsistent with the terms
of this Agreement.
b. Kmart Corporation Code of Business Conduct. Salton must
be in full compliance with the Kmart Code of Business
Conduct and all applicable laws, rules and regulations,
including but not limited to child, forced, and prison
labor laws and must not have violated the Code of
Business Conduct or applicable laws during the twelve
calendar months preceding the date of execution of this
Agreement.
c. Continuing Business Conduct with Kmart Foreign
Subsidiaries and Operations. Salton must not restrict
or curtail in any way its historical business practices
and course of dealing with Kmart's foreign subsidiaries
and other foreign operations if any existed.
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d. Industry Performance. Salton must at a minimum meet
normal industry standards for performance regarding
timing and completion levels of fill rates without
substitutions.
e. Electronic Data Interchange. Salton must accommodate
and participate in Kmart's electronic data interchange
program.
4. REPRESENTATIONS AND WARRANTIES OF KMART
4.1 Kmart represents and warrants to Salton as follows:
4.1.1 Organization, Power and Authority. It is duly organized
and validly existing under the laws of the State of
Michigan, has all requisite power and authority to conduct
its business as now, and as proposed to be, conducted and
to execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly authorized,
executed and delivered by Kmart and represents a valid and
binding obligation enforceable against Kmart in accordance
with its terms.
4.1.2 No Conflicts; Consents. Execution and delivery
hereof, or performance by Kmart hereunder, shall not (a)
of Incorporation or by-laws (true and correct copies of
which have been delivered to Salton), (ii) any mortgage,
indenture, agreement, note or other instrument to which it
is a party or to which its assets are subject or (iii) any
court order or decree or other governmental directive or
(b) result in the action of any lien, charge or
encumbrance on any material portion of Kmart's assets.
4.1.3 Brokers. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of
Kmart.
5. MINIMUM ORDERS; OTHER OBLIGATIONS
5.1 Minimum Product Orders/Sales and Exclusive Remedy.
Subject to Section 5.2 hereof, during the Term of this
Agreement, Kmart agrees to place orders for a minimum
U.S. dollar amount of Products within each category
specified below (each, a "Category") from Salton [*] (the
"Minimum Product Orders") at the purchase prices
determined in accordance with Sections 7.1.1 and 7.1.2
hereof during the periods (each, a "Period," and
together, the "Periods") in each case as specified below
($ in millions). All Products ordered prior to the date
of this Agreement shall be credited against the Minimum
Product Orders for the initial Period of this Agreement.
* Confidential Treatment Requested
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Category Up to and
(In Including 7/1/98- 7/1/99- 7/1/00- 7/1/01- 7/1/02- 7/1/03-
Millions 6/30/98 6/30/99 6/30/00 6/30/01 6/30/02 6/30/03 6/30/04
-------- --------- ------- ------- ------- ------- ------- -------
Kitchen
Housewares: $40.0 $50.0 $52.0 $54.1 $56.2 $ 58.5 $ 60.8
Personal
Care: 13.0 13.5 14.1 14.6 15.2 15.8 16.4
Heaters/Fans: 18.0 18.7 19.5 20.2 21.1 21.9 22.8
Electric
Air
Cleaners $ 6.0 $ 6.2 $ 6.5 $ 6.8 $ 7.0 $ 7.3 $ 7.6
and
Humidifiers:
Total ----- ----- ----- ----- ----- ------ ------
$77.0 $88.4 $92.1 $95.7 $99.5 $103.5 $107.6
===== ===== ===== ===== ===== ====== ======
Specific purchase orders shall be issued by Kmart from time to
time for the Products being purchased ("Specific Purchase Orders").
The Specific Purchase Orders shall be in the form and substance of the
form of purchase order annexed hereto as Exhibit C for domestic orders
and Exhibit D for import orders, both of which are incorporated herein
by this reference ("Purchase Order Forms") and shall govern and
control the terms of each purchase by Kmart of Products hereunder;
provided, that in the event of a conflict between the terms set forth
in a Specific Purchase Order and in this Agreement, the terms set
forth in this Agreement shall be determinative of such conflict. Each
Specific Purchase Order may be accepted or rejected by Salton,
provided that: (i) Salton's failure to provide Kmart with written
notice of rejection of any Specific Purchase Order within five (5)
days of Kmart's issuance thereof shall constitute Salton's acceptance
of such Specific Purchase Order; and (ii) Salton is required to
accept all Specific Purchase Orders for which [*], and all such Orders
shall automatically qualify as accepted by Salton; and (iii) Salton
is required to accept all Specific Purchase Orders which Salton is to
fill [*] ("Direct Salton Orders"), provided (a) they are issued at
prices negotiated by Kmart and Salton or; (b) are consistent with
prices quoted by Salton to Kmart; and (c) are issued within ninety
(90) days of the required delivery date and; (d) are in an order
quantity which is not inconsistent with the average order quantity on
Specific Purchase Orders issued by Kmart to Salton [*] over the
preceding one hundred twenty (120) days, and all such Orders placed
shall automatically qualify as accepted by Salton. Notwithstanding
the foregoing, Salton shall use its best efforts to fill all Specific
Purchase Orders, placed by Kmart in less than ninety (90) days from
the required delivery date. For purposes of this Agreement, in the
event that Kmart issues a Specific Purchase Order which is accepted by
Salton as set forth above and Salton [*] fails through no fault of
Kmart to timely deliver conforming Products to or on behalf of Kmart
by the required delivery date specified therein, or if for any reason,
but through no fault of Kmart, Salton is unable to procure Products
[*] then [*] the Minimum Product Orders in the applicable Category
shall be reduced by the dollar amount set forth in the Specific
Purchase Order(s) related thereto, whether or not such Products are
ultimately purchased by Kmart.
* Confidential Treatment Requested
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Kmart's deductions for documented claims whether under the Specific
Purchase Orders or otherwise, shall not reduce Kmart's fulfillment of
the Minimum Product Orders, and for purposes of determining if Kmart
has issued the Minimum Product Orders, Kmart shall be deemed to have
purchased all Products covered by a remittance regardless of
offsets/deductions for claims. If, however, Kmart issues a Specific
Purchaser Order which is accepted by Salton as set forth above and
Salton [*] timely delivers conforming Products to or on behalf of Kmart
by the required delivery date specified therein, and Kmart fails to
remit payment for such conforming Products so delivered, then such
Products shall not be counted for purposes of determining if Kmart has
issued the Minimum Product Orders, unless and until such Products are
ultimately paid for by Kmart. Notwithstanding the foregoing, Kmart
shall not be relieved of any obligation to pay for conforming Products
timely delivered to or on behalf of Kmart in accordance with any
Specific Purchase Order.
Subject to Sections 5.1 above and 5.2 below, in the event that
Kmart fails to place the Minimum Product Orders in any of the
Categories specified above within any of the periods specified above,
then Kmart shall be required to pay Salton within thirty (30) days
following the end of any such period, as Salton's sole and exclusive
remedy hereunder and upon receipt of an invoice from Salton therefor,
an amount equal to (i) (A) the Minimum Product Orders in such Category
less (B) the Actual Order Amount in such Category multiplied by (ii)
five percent (5%) (the "Fee(s)"). The "Actual Order Amount" for
purposes of this Section 5.1 shall mean, subject to Section 5.1 above
and Section 5.2 below, the positive amount, if any, obtained by adding
(i) the actual amount of Products ordered by Kmart in the applicable
Category during the applicable Period (adjusted upwards pursuant to
Section 5.1 above and 5.2 below) and (ii) the excess, if any, of (A)
the actual amount of Products ordered by Kmart in the applicable
Category during the Period (adjusted upwards pursuant to Section 5.1
above and 5.2 below) immediately prior to the applicable Period (the
"Prior Period") less (B) the Minimum Product Orders in the applicable
Category for the Prior Period. In no event, however, shall Salton's
Fees (for both ordered and unordered Products) ever exceed the amount
Salton would have received in any Category under Section 5.1 herein if
Kmart had met all Minimum Product Order commitments stated therein,
and Salton shall reconcile and refund all Fees received in excess
thereof subject to Section 7.1.2 hereof. For example, if during the
Period from the Execution Date of this Agreement through June 30,
1998, Kmart issues Product Orders in the Kitchen Housewares Category
equal to an aggregate of $48.0 million and, if during the period from
July 1, 1998 through June 30, 1999, Kmart issues Product Orders in the
Kitchen Housewares Category equal to an aggregate of $41.0 million,
then Kmart shall pay Salton, as Salton's sole and exclusive remedy for
Kmart's failure to issue the Minimum Product
* Confidential Treatment Requested
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Orders for the Products, an amount equal to $50,000 on or before
July 30, 1999 ($1.0 million x 5%). Product Orders in a particular
Category may not be used to satisfy the Minimum Product Orders in
any other Category.
5.2 Reduction of Minimum Product Orders. In the event that during
any Period aggregate retail sales of Products in the United
States for a particular Category have decreased from the Prior
Period (the amount of such reduction of sales in the United States
of Products in any particular Category is hereinafter expressed as a
percentage, and the amount by which such percentage exceeds 10% is
hereinafter referred to as the "Reduction Percentage"), then the
Minimum Product Orders for that Category for the Period following
the Prior Period (the "Adjustment Period") shall be reduced. This
reduction shall be in an amount (the "Reduction Amount") equal to
(i) the higher of (A) the Minimum Product Order commitment for the
applicable Category for the Adjustment Period or (b) the actual
Product Orders by Kmart of the Products in the applicable Category
during the Prior Period (the "Actual Prior Period Orders")
multiplied by (ii) the Reduction Percentage. The Reduction Amount
will then be subtracted from the higher of (i) the Minimum Product
Order commitment for the applicable Category for the Adjustment
Period or (ii) the Actual Prior Period Orders, to determine the new
Minimum Product Order commitment for the applicable Category for the
Adjustment Period; provided, however, that if this computation
yields an amount greater than the Minimum Product Order commitment
for such Period, then no adjustment shall be made. In addition, an
adjustment may only be made to the extent that it would not reduce
the Minimum Product Order commitment for the Adjustment Period below
80% of the amount specified for such Period for the applicable
Category under Section 5.1. All computations will be based on
prices that do not include any internal Kmart charges. By way of
example only, if retail sales of Kitchen Housewares in the United
States decrease by 30% during the Period from July 1, 1999 to June
30, 2000 and Kmart issues orders for $60.0 million of Products in
the Kitchen Housewares Category during the Period from July 1, 1999
to June 30, 2000, then the Minimum Product Orders commitment for
Kitchen Housewares for the Period from July 1, 2000 to June 30, 2001
shall be reduced from $54.1 million to $43.2 million ([30%-10%] x
$60.0 = $12.0 million; $12.0 million subtracted from $54.1 million
= $42.1 million; however, the Minimum Product Orders can never be
reduced under this Section 5.2 by more than 80% of $54.1 million
(which equals $43.2 million). For purposes of this Section 5.2,
sales of Products in the United States within a particular Category
shall be determined by reference to applicable information published
in the most widely-circulated trade publication containing such
information; provided, that if Kmart and Salton are unable to agree
upon the publication from which such information is to be derived,
then the applicable information shall be derived by reference to a
trade publication selected by Kmart and a trade publication selected
by Salton, and the applicable sales information shall be determined
on the basis of the average of the data contained in the two
publications.
5.3 Retail Sales Price. Kmart shall have sole discretion in setting the
sales price for the sale of the Products to its customers.
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6. DELIVERY
6.1 Availability of Products. Products shall be shipped in
accordance with the Specific Purchase Orders. Salton shall use its
reasonable best efforts to make available to Kmart sufficient
quantities of the Products to satisfy Kmart's Product Orders.
6.2 Product Forecasts. To assist Salton in production scheduling
for the manufacture of the Products, Kmart shall provide to Salton,
monthly, a six month rolling forecast of its requirements for
Products. The first forecast shall be provided by Kmart to Salton
within thirty (30) business days of the Execution Date of this
Agreement (to forecast the requirements for the six months ended
June 30, 1997 and for the next five succeeding calendar months) and
thereafter shall be provided to Salton on or before the 20th day of
each month (to forecast the requirements for the next six succeeding
calendar months). It is understood and agreed that all forecasts
are estimates only and Kmart shall only be bound to purchase the
Products pursuant to Specific Purchase Orders issued by it to
Salton, subject to the satisfaction of the Minimum Product Order
commitment set forth in Section 5.1 hereof; and the Fee on any
shortfall in the Minimum Product Order for any Category and Kmart's
payment for conforming Products ordered and timely delivered through
the date of Termination shall be Salton's sole and exclusive remedy
hereunder.
6.3 Shipping Arrangements; Risk of Loss. The shipping
arrangements, insurance and risk of loss relating to Products
purchased hereunder shall be specified in each Specific Purchase
Order.
7. MANUFACTURE OF PRODUCTS; PRICE AND PAYMENT TERMS
7.1 Manufacture of Products. All Products for which Specific Purchase
Orders have been issued (subject to Section 5.1 of this Agreement)
may be manufactured by or on behalf of Salton [*] Salton acknowledges
and Kmart acknowledges (based upon Salton's representation) that
under the License Agreement WCI has the right before the initial
order of a new Product within ten (10) days of submission by Salton,
to approve or reject the Product specimen, related artwork and
packaging, which consent shall not be unreasonably withheld and shall
be automatic unless rejection is communicated in writing to Kmart
within the ten (10) day period. In each such case, Salton shall be
solely responsible for making timely submission to WCI and timely
written communication to Kmart of any rejection; and Kmart shall have
no liability, whatsoever, for any claim or failure relating to or
arising from this Section 7.1.
7.1.1 Direct Salton Orders. In the event that Kmart elects
in its sole and absolute discretion to procure the
manufacture of Products directly by or on behalf of
Salton, then Kmart shall enter into an agreement with
Salton for such Products as Kmart desires to purchase
and Salton is willing to manufacture pursuant to a
purchase order identical in all respects to the
* Confidential Treatment Requested
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Purchase Order Form annexed hereto as Exhibit C for domestic
orders and Exhibit D for import orders (the "Direct Purchase Order").
The price to Kmart of Products under a Direct Purchase Order, and all
other terms and conditions not specified in this Agreement or in the
Purchase Order Form, shall be determined by mutual agreement
acceptable to each of Kmart and Salton in its sole discretion at or
prior to the time the applicable Direct Purchase Order is issued by
Kmart and accepted by Salton.
7.1.2 Orders from [*] pursuant to a purchase order identical in all respects
to the Purchase Order Form annexed hereto as Exhibit C for
domestic orders and Exhibit D for import orders (the "[*] Purchase
Order"). Kmart shall make direct payments to [*] of the amounts owed
under such [*] Purchase Order for conforming Products timely delivered
(the "[*] Payments"). Salton shall remain liable for the [*] Payments
in the event Kmart fails to make such [*] Payments. Kmart shall
indemnify and hold harmless Salton and its officers, directors,
employees and agents from and against any claim, liability or damages,
including related costs and attorneys' fees, of which it is timely
advised in writing resulting from the failure by Kmart to make [*]
Payments, or otherwise perform, in accordance with the terms of the
[*] Purchase Orders unless such failure is caused or contributed to by
Salton, Windmere or WCI. Kmart shall control the defense and
settlement of any claims for which such indemnify is provided.
Nothing in this Agreement shall be construed to limit or restrict
Kmart in any fashion from dealing directly with [*] Salton shall not
be liable for the failure to perform, including warranties, [*] unless
and except to the extent that such failure is caused or contributed to
by Salton, Windmere or WCI.
7.1.3 Purchase Orders from Kmart to Salton Relating to [*] Kmart
agrees that delivery [*] of the Products in conformity with the
applicable [*] Purchase Order shall be deemed, without any further
agreement or instrument, the agreement of Kmart to purchase such
Products from Salton in the manner set forth in Section 7.1.2 above
and in this Section 7.1.3 on exactly the same terms and conditions
provided [*] under the [*] Purchase Order issued by Kmart at a price
equal to the sum of (i) the [*] Payment for such Products plus (ii)
five percent (5%) of the "first cost" of such [*] Payment (the "first
cost" being the price up to the f.o.b. point of shipment, net of any
taxes, freight costs, customs fees, duties, etc.). (The amounts set
forth in (i) and (ii) are collectively referred to herein as the
"Salton Payment"). Upon delivery [*] of the conforming Products
identified in the [*] Purchase Order to Kmart, together with the
related invoice, Kmart shall at its sole and exclusive option either
(i) pay the Salton Payment to Salton whereupon Salton shall pay the
[*] Payment to [*] or (ii) pay the [*] Payment directly to [*] and
remit the difference between the Salton Payment and the [*] Payment
directly to Salton. Kmart's exercise of either of the preceding
options shall extinguish any and all rights of Salton to such
payments.
* Confidential Treatment Requested
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7.1.4 Aggregate Sales Reports. Within ten (10) days after the end of
each calendar month during the term of this Agreement, Kmart
shall provide Salton with a written statement (the "Kmart
Statement") indicating, with respect to the preceding month, (i) the
aggregate dollar amount of all purchases of Products [*] under this
Agreement and the quantity and types of Products so purchased, (ii)
the aggregate dollar amount of [*] Payments made directly to [*]
upon delivery of the Products, (iii) the aggregate dollar amount of
the Salton Payments made directly to Salton upon delivery of
conforming Products. Salton shall have the right, upon reasonable
notice and at reasonable times, within six (6) months following its
receipt of the Kmart Statement to review the books and records of
Kmart with respect only to (i), (ii) and (iii) above for the period
covered by such Kmart Statement, to confirm the accuracy of the
payments made hereunder provided that such right of review shall not
be exercisable more than once per year and provided further that is
such review reveals an underpayment of more than one percent (1%) of
the amount to which Salton is entitled hereunder, then Salton may
conduct such review twice per year. The cost and expenses of such
examination shall be paid solely by Salton; provided, that if such
examination reveals an underpayment to either Salton of more than
one percent (1%) of the amount to which Salton is entitled
hereunder, then the reasonable out of pocket costs and expenses of
such examination shall be paid by Kmart upon receipt of an invoice
therefor with support documentation attached. Notwithstanding the
foregoing, the first Aggregate Sales Report will not be issued until
after February 15, 1997.
7.1.5 Examination by Independent Auditors. The independent auditors
for each of Salton and Windmere-Durable Holdings, Inc. ("Windmere")
presently Deloitte & Touche and Xxxxx Xxxxxxxx L.L.P., shall have
the right during the term of this Agreement at any time that either
Salton or Windmere requires audited financial statements (e.g. in
connection with the preparation of their respective annual reports,
bank loans or certain acquisitions) to review the books and records
of Kmart, but in no event more than twice per year. Any additional
audits shall be conducted only with Kmart's express prior written
consent, which shall not be unreasonably withheld, and shall be only
for the purpose of confirming the accuracy of, and relating only to,
the financial information required to be provided to Salton
hereunder as set forth in Section 7.1.4 herein, including, all [*]
Purchase Orders. All information obtained by such auditors in the
course of such review shall be maintained by such auditors as
confidential and shall not be disclosed to any party, including
Windmere and/or Salton, without the express prior written consent of
Kmart. The cost and expenses of such examination shall be paid
solely by Salton and/or Windmere, as the case may be; provided, that
if such
* Confidential Treatment Requested
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examination reveals an underpayment of more than one percent
(1%) of the amount to which Salton is entitled hereunder, then the
reasonable out of pocket costs and expenses of such examination
shall be paid by Kmart upon receipt of an invoice therefor with
support documentation attached.
7.1.6 Assignment of Rights. In consideration of Kmart entering into this
Agreement and agreeing to pay [*] directly subject to and in
accordance with the terms hereof, this Agreement shall constitute
the automatic assignment to Kmart of all rights of Salton against
[*] with respect to Products purchased from [*] pursuant to this
Agreement, which rights may not be enforced by Salton. Salton
shall have no liability with respect to any non-performance of
[*] unless Salton, Windmere or WCI causes or contributes to such
non-performance. This Agreement shall also constitute the
automatic and irrevocable assignment of the [*] Payment portion of
the Salton Payment to [*], and such payment is not assignable to any
other party, including Salton.
7.1.7 Sole and Exclusive Remedy of Salton. Salton's sole and exclusive
remedy relating to any [*] Purchase Order or any failure under
this entire Section 7 shall be against Kmart for its payment of the
difference between the Salton Payment and the [*] Payment or for
enforcement of Kmart's indemnification obligation under Section
7.1.2 hereunder. Salton shall have no right to enforce against
Kmart, Kmart's payment of the [*] Payment portion of the Salton
Payment unless Kmart shall have wrongfully failed to pay such amount
to [*] upon timely delivery of conforming Products under a [*]
Purchase Order. Salton shall have no right to enforce performance
or seek any other remedy against [*] hereunder or under any [*]
Purchase Order.
7.1.8 Invoicing Requirements/Payment Terms.
A. Salton will follow the invoicing requirements provided by
Kmart from time to time.
B. Payment for all Direct Salton Orders of Products f.o.b.
Asia ("Import Products") and purchased hereunder shall be as
follows: (i) Direct Salton Orders shall be made by wire
transfer within five (5) business days following the receipt of
goods ("ROG") provided the International Department has received
(i) the original invoice, (ii) an original signed xxxx of lading
and (iii) the customary signed Kmart Inspection certificate for
goods manufactured overseas.
C. Payment for all domestic Direct Salton Orders purchased
hereunder shall be made by check issued within ten (10) business
days of receipt of goods ("ROG") provided Kmart has received
the applicable invoice.
D. Payment for all domestic and Import [*] Orders purchased
hereunder shall be made pursuant to Section 7.1.3
* Confidential Treatment Requested
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herein. If Kmart, in its sole and exclusive discretion
exercises the payment option set forth in (ii) under Section
7.1.3, Salton shall invoice Kmart for the difference between
the Salton Payment and the TPM Payment after Salton receives
each Aggregate Sales Report described in Section 7.1.4 herein.
Salton shall prepare and submit 2 invoices covering each
Aggregate Sales Report: one for import orders and one for
domestic orders. The invoices shall be directed to:
FOR DOMESTIC ORDERS: FOR IMPORT ORDERS:
Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx
Manager, Accounting Operations Director, International
Kmart Corporation Administration
0000 Xxxx Xxx Xxxxxx Xxxx Xxxxx Xxxxxxxxxxx
Xxxx, XX 00000 0000 Xxxx Xxx Xxxxxx Xxxx
Xxxx, XX 00000
Kmart shall pay all such invoices within ten (10) business days of receipt.
7.1.9 Stand-by Letter of Credit. Kmart shall open, within ten (10) business
days of the Execution Date, a transferable and assignable stand-by
irrevocable letter of credit in the sum of $10,000,000 in favor of
Salton from a financial institution reasonably acceptable to Salton
("Letter of Credit") which can only be drawn upon for Kmart's failure
to pay for Direct Salton Orders of conforming Products which are
timely shipped f.o.b. Asia as further described in this Section and
for no other reason (including, but not limited to, any Salton
Payment) Salton shall have as its sole and exclusive remedy for
Kmart's failure to pay for such Products, notwithstanding Section
10.3 herein, the right to draw on the Letter of Credit at any time and
from time to time provided all of the following procedures are
followed by Salton and all of the following conditions are met:
(i) Kmart has failed to pay for such Products as provided herein (ii)
Salton has provided Kmart with the required written notice and
opportunity to cure pursuant to Section 10.3 herein and has submitted
an affidavit signed by the Chief Financial Officer of Salton as
follows: "Salton has timely delivered conforming Products f.o.b. Asia
to Kmart, Kmart has taken deliveries of such Products and Salton has
invoiced Kmart therefor. Kmart Corporation owes Salton/Maxim
Housewares, Inc. $___________ pursuant to invoices [invoice numbers to
be inserted] (iii) A copy of such invoices and the corresponding
inspection certificates indicating that the Products have passed
inspection and corresponding original bills of lading duly signed by
an authorized officer of Kmart are annexed to the affidavit; (iv);
Kmart has failed to pay the amount owing when due after receipt of an
invoice therefor and a notice specifying such amount and describing
the obligation including respective purchase order number(s), (v).
Kmart has received such notice on _____, sixty (60) days have elapsed
(for individual obligations of up to $2 million) or thirty (30) days
have elapsed (for individual obligations of more than $2 million), and
Kmart has failed to pay the amount owing or provide proof that the
amount is not owing.
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Salton shall provide Kmart with ten (10) days prior written notice of
its intent to submit such affidavit to draw on the Letter of
Credit and shall not be entitled to submit such affidavit if Kmart can
prove payment of the amount claimed owing or that the goods were not
conforming or timely delivered or otherwise resolve the dispute within
such ten (10) day period. The Letter of Credit shall be in form and
substance reasonably satisfactory to Salton and shall terminate on
December 15, 1997.
7.1.10 Currency Exchange. Prices charged Kmart and payments made by Kmart to
Salton for the Products shall be in U.S. dollars.
8. RETURNS, ALLOWANCES AND WARRANTIES
8.1 Terms of Specific Purchase Order to Control. The terms and
conditions of this Agreement, including the Purchase Order Forms, as
well as the terms and conditions set forth in each Specific Purchase
Order shall determine the rights and obligations of the parties with
respect to returns, allowances and warranties relating to Products
ordered thereunder.
9. DAMAGES, INDEMNIFICATION AND INSURANCE
9.1 Indemnification. To the fullest extent permitted by law, Salton
shall reimburse, indemnify, defend and hold harmless, Kmart, its
directors, officers and employees and subsidiaries and
affiliates and each of their respective directors, officers and
employees from and against any damage, loss, expense or penalty, or any
claim or action therefor, by or on behalf of any person or entity,
arising out of the performance or failure of performance of this
Agreement including but not limited, to any claim or failure with
respect to Sections 2 or 3 hereof.
Salton shall reimburse, indemnify, defend and hold harmless Kmart, its
directors, officers and employees and subsidiaries and affiliates and
each of their respective directors, officers and employees from and
against all third-party claims alleging that any Products and or any
Right furnished under this Agreement infringe any patent, copyright,
trademark or other proprietary right or constitute a misuse of any
trade secret information and shall pay all costs, attorneys fees,
settlement payments and damages arising in connection with any such
claims. Kmart agrees to timely advise Salton of any such suit, claim
or proceeding, and to extend reasonable cooperation to Salton in the
defense or settlement of such suit, claim or proceeding, but Salton
shall have sole control thereof. In the event that an injunction is
obtained against Kmart's use, purchase, distribution, sale, marketing
and/or promotion of any Products and/or any Right in whole or in part,
Salton shall promptly, at its option either: (a) procure for Kmart the
right to continue using, purchasing, distributing, selling, marketing
and/or promoting such Products enjoined from use, or (b) replace or
modify the same so that Kmart's use, sale or possession is not subject
to any such injunction, or (c) at Kmart's option refund to Kmart all
amounts paid to Salton for such Products and such Right, including but
not limited to all Salton Payments.
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9.2 Insurance. Salton shall, during the Term of this Agreement,
maintain the following insurance coverages as indicated or as
required by law, whichever shall be greater, with insurers in good
standing and authorized to do business under the laws of the
State(s) where performance hereunder shall occur:
(a) Comprehensive General Liability, naming Kmart as an additional
insured including, but not limited to, Contractual
Liability and Products Liability, with broad form property
damage and bodily injury (including Personal Injury) coverage.
The minimum limits for each shall be $2,000,000 per occurrence.
(b) All insurance required in Exhibits B and C hereto, as well as
that required under each Purchase Order.
(c) Employee fidelity insurance, workers compensation insurance and
employer's liability insurance as required by all
applicable federal, state or other laws, rules or regulations.
Prior to execution of this Agreement, Salton shall tender to Kmart
certificates of insurance evidencing the coverage required to
be maintained by Salton hereunder. The certificates must provide
that no change or cancellation of insurance shall be made without
thirty (30) days prior written notice to Kmart.
9.3 Survival. The provisions of this Section 9 shall
survive the termination or expiration of this Agreement.
10. TERM AND TERMINATION
10.1 Term. The Term of this Agreement shall be a period,
commencing on the Execution Date and terminating on June 30, 2004,
unless earlier terminated in accordance with this Section 10 of this
Agreement.
10.2 Extension of Terms. If neither Kmart nor Salton terminate this
Agreement pursuant to Section 10.3, 10.4 or 10.5, as
applicable, Kmart shall have the right to extend the term of this
Agreement for successive one-year periods through June 30, 2011, by
delivering written notice to Salton of its desire to so extend this
Agreement on or before May 30 of any year during the Term or any
extension period, as applicable. Upon any such extension, the
Minimum Product Orders for each Category shall be increased at an
annual rate of no more than four percent (4%) from the amount of
Minimum Product Orders in the immediately preceding year during each
year in which the Term has been so extended. Kmart may terminate
this Agreement without cause on sixty (60) days prior written notice
at any time during any extension period without cost or penalty.
10.3 Termination by Either Party. The occurrence of one or more of
the following events shall constitute a default of the party
responsible for the occurrence of such event ("Default"):
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(a) Material breach of the Agreement, including, without limitation,
(i) the failure of Salton to supply Products and/or provide
services as provided for herein with such diligence as will insure
compliance with all delivery, installation, completion and other
dates specified herein, (ii) the failure of Kmart to pay or
reimburse any material amounts which are due to be paid or
reimbursed hereunder; (iii) any failure relating to Section 2.1,
Section 3.1.4 and/or Section 9 herein; or (iv) New Tech's breach of
the NewTech Agreement;
(b) Failure or material breach of any material condition, obligation,
covenant, representation or warranty set forth herein; or
(c) Insolvency, or the institution of proceedings by or against a party
under any federal or state bankruptcy or insolvency law or an
assignment for the benefit of all or substantially all creditors
which proceeding is not stayed within sixty (60) days of filing; or
the cessation of operations or doing business for any reason.
Upon the occurrence of a Default, the non-defaulting party shall provide
written notice (the "Notice") to the defaulting party specifying the
nature of the Default and the conduct required to cure such Default. The
defaulting party shall have 60 days following the date the Notice is
received by the non-defaulting party to cure the Default (30 days for
non-payment by Kmart under a Specific Purchase Order where the amount
involved exceeds $2,000,000). If the Default is not cured by the
defaulting party within such period, the non-defaulting party may elect to
either specifically enforce performance hereof or terminate this
Agreement. If, however, Kmart defaults Salton's remedies shall not
exceed the amount Salton would have received as its sole and exclusive
remedy under Section 5 herein with respect to Minimum Product Orders which
have not been placed as of the effective date of the Default or
Termination. In the event of Salton's Default or wrongful termination of
this Agreement, Kmart shall not owe Salton any damages under Section 5 of
this Agreement.
A party's failure to demand cure of or terminate this Agreement as a
result of a prior Default shall not be deemed a waiver by the party of the
right to demand cure of or to terminate this Agreement as a result of a
subsequent Default. Unless otherwise indicated to the contrary in this
Agreement, the rights set forth hereinabove are cumulative and in
addition to those otherwise provided by law.
10.4 Termination at Option of Kmart. (a) Kmart shall have the right to
terminate this Agreement without cause in its sole discretion effective on
June 30, 2002, by giving Salton written notice at any time up to June 30,
2000. Following delivery of such notice to Salton, the parties shall
continue to be bound by all of the terms and conditions of this Agreement
through June 30, 2002; provided, that the Minimum Product Purchase
commitment, for the period of July 1, 2001 through June 30, 2002, as set
forth in Section 5.1 hereof, shall be reduced to 25% of the amounts set
forth in said Section 5.1; and provided further, that after June 30, 2000,
Salton may commence marketing plans for the sale of Products to any other
Person, including other Discount Department Stores, and, after July
31, 2001 Salton may
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market and sell Products to any other Person, including Discount
Department Stores, notwithstanding Section 2.1 hereof. If Kmart
does not elect to terminate this Agreement in accordance with the
foregoing sentences of this Section 10.4, then Kmart shall have the
right to terminate this Agreement without cause in its sole
discretion effective June 30, 2003 and on each June 30 thereafter
during the term of this Agreement by giving written notice to Salton
of its desire to so terminate this Agreement. Upon any such
termination, Kmart shall owe nothing to Salton beyond payment for
Products accepted by Kmart as of the effective date of termination.
Kmart shall be required to perform all Specific Purchase Orders
issued prior to the effective date of such termination, and Kmart
shall have no further obligation following such termination.
(b) Notwithstanding the foregoing, it is specifically agreed by
the parties hereto that in the event Kmart terminates the Agreement
at any time and such termination is not in accordance with this
Section 10.4(a), or is otherwise in violation or breach of this
Agreement, Kmart's liability hereunder shall not exceed an amount
equal to the Fees specified in Section 5 herein for the Minimum
Product Orders which have not been placed as of the effective date
of such termination and for payment for Orders of conforming
Products timely delivered through the date of such termination,
Kmart shall be required to perform all Specific Purchase Orders
issued prior to the effective date of such termination, and Kmart
shall have no further obligation following such termination.
10.5 Termination at Option of Salton. Salton shall have the right to
terminate this Agreement effective on June 30, 2002, by giving Kmart
written notice at any time up to June 30, 2000. Following delivery
of such notice to Kmart, the parties shall continue to be bound by
all of the terms and conditions of this Agreement through June 30,
2002; provided, that the Minimum Product Purchase commitment, for
the period of July 1, 2001 through June 30, 2002, as set forth in
Section 5.1 hereof, shall be reduced to 25% of the amounts set forth
in said Section 5.1; and provided further, that after June 30, 2000,
Salton may commence marketing plans for the sale of Products to any
other Person, including other Discount Department Stores, and, after
July 31, 2001 Salton may market and sell Products to any other
Person, including Discount Department Stores, notwithstanding
Section 2.1 hereof. In the event that Salton does not elect to
terminate this Agreement in accordance with the foregoing sentences
of this Section 10.5, then Salton shall have the right to terminate
this Agreement without cause in its sole discretion effective June
30, 2003 and on each June 30 thereafter during the term of this
Agreement by giving at least 12 months prior written notice to Kmart
of its desire to so terminate this Agreement. Upon any such
termination, Kmart shall owe nothing to Salton beyond payment for
Products accepted by Kmart as of the effective date of such
termination.
10.6 Duties Following Termination. Upon Termination of this
Agreement, neither party shall have any obligation to the other
party except as hereinafter set forth in this Section 10.6.
Notwithstanding the termination or expiration of this Agreement
pursuant to this Article 10 or any other provision of this
Agreement, unless otherwise indicated in this Agreement, all rights
and obligations which were incurred or which matured under specific
Purchase Orders issued prior to the effective date of termination or
expiration shall survive termination and be subject to enforcement
under the terms of this Agreement. Termination of this Agreement
shall not affect any duty of Kmart or Salton under Sections 9.1,
11.1, 11.2, 11.3, 12.1, 12.4, 12.6, 12.11, 12.13 or 12.14 existing
prior to the
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effective date of termination or expiration, all of which are
intended to survive termination. Kmart shall have the right to
distribute, sell, market and promote all existing inventory of
Products ordered pursuant to Specific Purchase Orders prior to the
termination of this Agreement, and to use all packaging materials,
labels, tags, signage, advertising and promotional materials to
effectuate the sale of such Products.
10.7 Non-interference. Except for negotiations involving Salton
or with a Third Party Manufacturer, Kmart agrees that, except with
Salton, it will not, during the Term of this Agreement or any
extension or renewal thereof negotiate, obtain information or
discuss with or enter into any agreement with any person or entity
covering the licensing, purchase, sale, marketing or distribution of
the Trademark for any of the Categories of Product purchased by
Kmart from Salton.
10.8 Termination of the NewTech Agreement. If the NewTech Agreement is
terminated at any time for any reason, Kmart may, in its sole
option, elect to terminate this Agreement, and upon such
termination, owe nothing further under this Agreement beyond payment
for Products accepted and sold by Kmart through the date of
termination.
11. CONFIDENTIALITY/PRESS RELEASES
11.1 Confidentiality and Non-Disclosure. Salton agrees that any
and all information in any form that is provided to Salton or any of
its representatives as part of this Agreement is provided and
received in confidence, and Salton, shall at all times preserve and
protect the confidentiality of such information, and of any other
proprietary or non-public information of or relating to Kmart or any
of its related companies of which it or any of its representatives
becomes aware or acquires during the performance of this Agreement
(such information is hereinafter referred to as "Confidential
Information"). Salton also agrees that it shall take all reasonable
steps to ensure that such Confidential Information will not be
disclosed to, or used by any person, association or entity except
its own employees, and then only to the extent necessary to permit
it to perform this Agreement.
Each of Salton and Kmart agrees to keep the Minimum Product Orders,
pricing, and Term of this Agreement (including rights of extension
and termination) strictly confidential, except that each of Salton
and Kmart shall be permitted to disclose any and all information
concerning the transactions contemplated hereby to the extent it is
legally required to do so, whether under applicable securities laws
or otherwise, provided, that Salton will use its reasonable best
efforts to file with the Securities and Exchange Commission or any
other applicable regulator or court a request for confidential
treatment of the pricing and other business terms set forth in this
Agreement.
In the course of performance of this Agreement, Salton may disclose
certain information to Kmart which Salton considers proprietary and
confidential. In order
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to be considered as proprietary and confidential and, thus, subject
to the following restrictions, Salton must comply with both of the
following requirements prior to disclosure of the information: (i)
the information must be clearly and conspicuously identified in
writing as "PROPRIETARY AND CONFIDENTIAL INFORMATION OF SALTON';
and (ii) Salton must limit its dissemination of the information to
an authorized representative of Kmart (i.e., one listed on attached
Exhibit E) with a need to know such information in furtherance of
the performance of this Agreement (the "Authorized Recipient")
Provided Salton has complied with (i) and (ii) above, the
Authorized Recipient shall maintain the confidentiality of such
information to the same extent Kmart protects its own proprietary
information and shall not disclose it to anyone other than Kmart
employees, agents and/or consultants with a need to know who shall
also be subject to this restriction.
Confidential Information shall not include information that a party
can demonstrate by written evidence:
(i) is in the public domain (provided that
information in the public domain has not and does not come
into the public domain as a result of the disclosure by the
receiving party or any of its Affiliates);
(ii) is known to the receiving party or any of its
Affiliates prior to the disclosure by the other party; or
(iii) becomes available to the party on a
non-confidential basis from a source other than an Affiliate
of that party or the disclosing party.
11.2 Press Releases. Salton shall not issue any press releases
relating to this Agreement or its relationship with Kmart without
the prior written approval by an authorized representative of either
the Corporate Affairs Department or the Investor Relations
Department of Kmart as to the contents thereof.
11.3 The Press Release confidentiality and non-disclosure
obligations contained herein shall survive and continue after
termination of this Agreement or any related agreements the parties
may execute, and shall bind each of Salton's and Kmart's legal
representatives, successors and assigns.
12. GENERAL TERMS AND CONDITIONS
12.1 Dispute Resolution. All disputes arising out of, or in
relation to, this Agreement (other than disputes arising out of any
claim by a third party in an action commenced against a party) shall
be referred for decision forthwith to a senior executive of each
party who is not personally involved in the dispute. If no
agreement can be reached through this process within thirty (30)
days of request by one party to the other to nominate a senior
executive for dispute resolution, then either party shall be
entitled to pursue any and all available legal remedies.
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12.2 No Assignment. Other than as specifically set forth in this
Agreement, this Agreement may not be assigned nor may the
performance of any duties hereunder be delegated by either party
without the prior written consent of the other party; provided, that
any such attempted assignment shall be void and shall not relieve
the assignor from any of its obligations hereunder or under any
other document or agreement delivered by such party pursuant to, or
delivered (or acknowledged to have been delivered) contemporaneously
with or in connection with the execution of, this Agreement, which
shall continue to be binding upon such party notwithstanding any
such attempted assignment.
12.3 Notices. Any notice required or permitted to be given under
this Agreement shall be sufficiently given if in writing and
delivered by registered or certified mail (return receipt
requested), facsimile (with confirmation of transmittal), overnight
courier (with confirmation of delivery), or hand delivered to the
appropriate party at the address set forth below, or at such other
address as such party may from time to time specify for that purpose
in a notice similarly given:
If to Salton: Salton/Maxim Housewares, Inc.
000 Xxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxx
Fax: (000) 000-0000
with a copy to (other than Greenberg, Traurig, Hoffman, Lipoff,
regularly prepared notices, reports, etc. Xxxxx & Quentel, P.A.
required to be delivered hereunder): 0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
and
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx
Fax: (000) 000-0000
If to Kmart: Kmart Corporation
0000 X. Xxx Xxxxxx Xxxx
Xxxx, Xxxxxxxx 00000
Attn: Divisional Vice President
Home Electronics/Home Appliances
Fax: (000) 000-0000
with a copy to (other than Kmart Corporation
regularly prepared notices, reports, etc. Legal Department
required to be delivered hereunder): 0000 X. Xxx Xxxxxx Xxxx
Xxxx, Xxxxxxxx 00000
Attn: General Counsel
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Any such notice shall be effective (i) if sent by mail, as
aforesaid, three (3) business days after mailing, (ii) if sent by
facsimile, as aforesaid, when sent, and (iii) if sent by courier or
hand delivered, as aforesaid, when received. Provided, that if any
such notice shall have been sent by mail and if on the date of
mailing thereof or during the period prior to the expiry of the
third business day following the date of mailing there shall be a
general postal disruption (whether as a result of rotating strikes
or otherwise) in the United States, then such notice shall not
become effective until the third business day following the date of
resumption of normal mail service.
12.4 Governing Law and Consent to Jurisdiction. THIS AGREEMENT
SHALL BE DEEMED TO HAVE BEEN EXECUTED AND DELIVERED IN TROY,
MICHIGAN, AND SHALL BE CONSTRUED, INTERPRETED AND ENFORCED UNDER
AND IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF MICHIGAN.
SALTON AGREES TO EXERCISE ANY RIGHT OR REMEDY IN CONNECTION WITH
THIS AGREEMENT EXCLUSIVELY IN, AND HEREBY SUBMITS TO THE
JURISDICTION OF, THE STATE OF MICHIGAN COURTS OF OAKLAND COUNTY,
MICHIGAN OR THE UNITED STATES DISTRICT COURT IN DETROIT, MICHIGAN.
12.5 Binding Agreement. This Agreement shall be binding upon the
parties hereto, and their respective successors and permitted
assigns, whether by operation of law or otherwise.
12.6 Entire Agreement. This Agreement and all other documents and
instruments specifically incorporated by reference herein contain
the entire agreement and understanding of the parties with respect
to the subject matter hereof and thereof and supersedes all
negotiations, prior discussions and agreements relating to the
subject of this Agreement. Any terms or conditions in any forms of
Salton used in the performance of this Agreement which are in
conflict with or in addition to the terms and conditions of this
Agreement shall be void. This Agreement may not be amended or
modified except by a written instrument signed by all of the parties
hereto.
12.7 Headings. The headings to the various articles and
paragraphs of this Agreement have been inserted for convenience only
and shall not affect the meaning of the language contained in this
Agreement.
12.8 Waiver. The waiver by any party of any breach by another
party of any term or condition of this Agreement shall not
constitute a waiver of any subsequent breach or nullify the
effectiveness of that term or condition.
12.9 Counterparts. This Agreement may be executed in identical
duplicate copies exchanged by facsimile transmission. The parties
agree to execute two identical original copies of the Agreement
after exchanging signed facsimile versions. Each identical
counterpart shall be deemed an original, but all of which together
shall constitute one and the same instrument.
12.10 Severability of Provisions. If, for any reason whatsoever,
any term, covenant or condition of this Agreement or the application
thereof to any party or circumstance
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is to any extent held or rendered invalid, unenforceable or
illegal, then such term, covenant or condition:
(i) is deemed to be independent of the remainder of such
document and to be severable and divisible therefrom and its
validity, unenforceability or illegality does not affect,
impair or invalidate the remainder of such document or any
part thereof; and
(ii) continue to be applicable and enforceable to the
fullest extent permitted by law against any party and
circumstances other than those as to which it has been held
or rendered invalid, unenforceable or illegal.
12.11 Limitation on Damages. Except with respect to Salton's
liability under Section 9 of this Agreement, neither party shall be
liable to the other party for incidental, consequential, punitive or
exemplary damages arising in connection with this Agreement or the
performance, omission of performance or termination hereof, even if
said party has been advised of the possibility of such damages and
without regard to the nature of the claim or the underlying theory
or cause of action (whether in contract, tort or otherwise). In
addition, in no event shall Kmart be liable for direct or any other
damages in excess of the amount to which Salton is entitled to under
Section 5 herein for Minimum Product Orders which have not been
placed as of the effective date of the Default or Termination plus
payment due for Products accepted by Kmart as of such date, nor
shall Kmart's aggregate liability under this Agreement exceed such
amount.
12.12 Force Majeure. Time is of the essence in the performance of
all parts of this Agreement; provided, however, performance by
either party shall be excused during the period in which such
performance is made reasonably impossible because of a strike, act
of God or change in laws ("Force Majeure"). Salton, however, shall
use reasonable diligence to procure substitute performance. If the
period during which performance is excused due to Force Majeure
exceeds ten (10) days, then either party may terminate its
obligations under any Specific Purchase Orders without liability,
and such cancelled Order(s) shall continue to count towards
fulfillment of the commitments set forth in Section 5 herein. If
the period of Force Majeure excusing Salton's performance exceeds
120 days and such non-performance relates to more than 20% of the
Minimum Product Orders during any Period, then Kmart may terminate
this entire Agreement without further obligation to Salton. Upon
any such termination, nothing shall be due from Kmart beyond payment
for Products accepted by Kmart as of the effective date of
termination.
12.13 Kmart Marks. Salton acknowledges Kmart Properties Inc.'s
("KPI") exclusive right, title and interest in and to all
trademarks, trade names, service marks, logos, assignees, program
and event names, identifications and other proprietary rights and
privileges which it licenses to Kmart with the right to sublicense
(the "Kmart Marks"). This Agreement and its various provisions are
not a license or assignment of any right, title or interest in the
Kmart Marks by KPI or Kmart to Salton. Salton shall not in any
manner represent that it has any ownership in the Kmart Marks and
shall not do or cause to be done anything impairing Kmart's
exclusive license in
22
24
the Kmart Marks. Salton shall not use, print or duplicate the
Kmart Marks except and only if Salton has obtained prior approval
as provided herein. Salton's use of the Kmart Marks is limited to
the Term of this Agreement; upon termination hereof, Salton shall
immediately cease all use of the Kmart Marks. Salton shall not
assign or attempt to assign any rights with regard to the Kmart
Marks which arise hereunder; any such attempted assignment shall be
void.
12.14 White Westinghouse Marks. Kmart acknowledges WCI's
exclusive right, title and interest in and to the Trademarks. This
Agreement and its various provisions are not a license or assignment
of any right, title or interest in the Trademark or the License
Agreement by Salton or WCI to Kmart. Kmart shall not do or cause to
be done anything impairing Salton's exclusive license in the
Trademark. Kmart's use of the Trademark is limited to the terms and
conditions contained in this Agreement; upon termination hereof,
Kmart shall immediately cease all use of the Trademark other than in
connection with the sale, advertising or merchandising of Product
inventory and order commitments (if any) existing at the time of
such termination. Kmart shall not assign or attempt to assign any
rights with regard to the Trademark which arise hereunder; any such
attempted assignment shall be void.
12.15 No Third Party Beneficiaries. The parties hereto expressly
agree that there shall be no third party beneficiaries to this
Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the Execution Date.
SALTON/MAXIM HOUSEWARES, INC. KMART CORPORATION
By: By:
(Signature) (Signature)
Name: Name:
Title: Title:
23
25
EXHIBIT A
DESCRIPTION OF PRODUCTS
KITCHEN HOUSEWARES:
Irons
Can Openers
Mixers
Food Processors
Electric Knives
Popcorn Makers
Toasters
Toaster Ovens
Coffee Makers
Espresso/Cappuccino Makers
Bread Machines
Pasta Makers
Doughnut Makers
Woks
Pressure Cookers
Ice Tea Makers
Sandwich Makers
Waffle Irons/Waffle Makers
Pancake Grills
Portable Grilling Machines
Ice Cream Makers
Yogurt Makers
Juice Makers
Juice Extractors
PERSONAL CARE:
Hair Dryers
Hair Curlers
Curling Wands and Brushes
Make up Mirrors
Nail, Face, Feet and Body Care Products
Massagers
FANS AND HEATERS:
Portable Cooling Fans
Portable Room Heaters and Heater/Fan
Combinations
ELECTRIC AIR CLEANERS AND HUMIDIFIERS:
Humidifiers
Air Cleaners
24
26
SCHEDULE 1.2
DISCOUNT DEPARTMENT STORES
Xxxx Dept. Stores
Baby Superstore
Best Buy
Best Products Co.
Bradlees
Caldor Corp.
Circuit City Stores
Comp USA
Consolidated Stores
Xxxxxx Xxxxxx/Target
Dollar General
Dollar Tree Stores
Xxxxxxxx-ALCO Stores
Family Bargain
Family Dollar
50-Off Stores
Fred's
Good Guys
Hills
Home Shopping Network
X. Xxxxx & Son
Lechters
Xxxxxxxx'x Inc.
MacFrugal's Bargains
Melville Corp.
Xxxxx (Xxxx)
Xxxxxxxxxx Wards
99 Cents Only
Office Depot
OfficeMax
Pamida
Phar-Mor
Price Costco
Xxxxxxx
Xxxx Stores
S & K Famous Brands
Sears
Service Merchandise
ShopKo Stores
Staples
Tops Appliance City
Toys "R" Us
Tuesday Morning
Value City Dept. Stores
Venture
Waban
Wal-Mart Stores
Woolworth
25
27
PURCHASE ORDER TERMS AND CONDITIONS EXHIBIT B
Vendor and Kmart Corporation, 0000 Xxxx Xxx Xxxxxx Xxxx, Xxxx Xxxxxxxx
00000-0000, ("Buyer") agree, to the fullest extent permitted by law, to be
bound by all terms and conditions contained or incorporated herein, all of
which are a part of each Purchase Order issued to Vendor by Buyer ("Order") and
should be carefully read. Any provisions in Vendor's invoices, billing
statements, acknowledgment forms or similar documents which are inconsistent
with the provisions of an Order shall be of no force or effect. The cost price
set forth in each Order includes the cost of manufacturing packaging, labeling
and shipping unless otherwise specified in the Order.
1. Vendor's Acceptance. Vendor's commencement of or promise of shipment of
the Merchandise shall constitute Vendor's agreement that it shall
deliver the Merchandise in accordance with the terms and conditions of the
applicable Order. Vendor agrees to follow the shipping and invoicing
instructions issued by Buyer's stores, warehouses, buying offices and
Transportation and Accounting Departments, which instructions are
incorporated by reference into the applicable Order.
2. Vendor's Representations and Warranties. Vendor represents and warrants to
Buyer, in addition to all warranties implied by law, that each item of
Merchandise described on the face of an Order (or in an EDI or telephone
Order), together with all related packaging and labeling and other material
furnished by Vendor ("Merchandise"), shall : (a) be free from defects in
design, workmanship and/or materials including without limitation, such
defects as could create a hazard to life or property; (b) conform in all
respects with all applicable federal, state and local laws, Orders and
regulations, including without limitation, those regarding (I) safety, (ii)
content, (iii) flammability, (iv) weights, measures and sizes, (v) special
use, care, handling, cleaning or laundering instructions or warnings, (vi)
processing, manufacturing, labeling, advertising, selling, shipping and
invoicing, (vii) registration and declaration responsibility, and (viii)
occupational safety and health; (c) copyright not infringe or encroach upon
Buyer's or any third party's personal, contractual or proprietary rights,
including without limitation, patents trademarks, copyrights, rights of
privacy or trade secrets; and (d) conform to all of Buyer's specifications
and to all articles shown to Buyer as Merchandise samples.
3. Vendor's indemnification of Buyer. Vendor agrees to reimburse, indemnify,
hold harmless and to defend at its expense (or to pay any attorney's
fees incurred by Buyer) Buyer and its subsidiary and affiliate companies
against all damage, loss, expenses, claim, liability or penalty, including
without limitation, claims of infringement of patents, copyrights,
trademarks, unfair composition, bodily injury, property or other damage,
arising out of any use, possession, consumption or sale of said Merchandise
and form any failure of Vendor to property perform an Order. Vendor shall
not be relieved of the forgoing indemnity and related obligations by
allegations or any claim of negligence on the part of Buyer; provided,
however, Vendor shall not remain or be liable hereunder to the extent any
injury or damage is finally judicially determined to have been proximately
caused by the sole negligence of
28
Buyer. Vendor shall obtain adequate insurance to cover such liability
under each Order and shall provide copies of the applicable certificate(s)
of insurance annually to Buyers's Vendor Database Department at the above
address.
4. Defective or Non-conforming Merchandise. If any Merchandise is defective,
unsuitable, does not conform to all terms hereof and of the Order and
all warranties implied by law, Buyer may at its options return it to Vendor
for full credit or refund of the purchase price or repair it at Vendor's
expense, and may charge Vendor such price or expense and the cost of any
incurred inbound and outbound freight and a handling, storage and
inspection charge of 7 1/2% of the returned Merchandise invoice price. Buyer
shall be under no duty to inspect any Merchandise before resale thereof,
and resale, or repackaging or repacking for the purpose of resale, shall
not constitute a waiver of, or otherwise limit, any of the Buyer's rights
resulting from defective or non-conforming Merchandise.
5. Buyers Right to Cancel. Buyer may without notice cancel, terminate and/or
rescind all or part of an Order in the event Vendor Breaches or fails
to perform any of its obligations in any material respect, or in the event
Vendor becomes insolvent or proceedings are instituted by or against Vendor
under any provisions of any federal or state bankruptcy or insolvency laws
or Vendor ceased its operation. Time is of the essence to each Order and
Vendor's failure to meet any delivery date shall constitute a material
breach of the Order. Vendor agrees to inform Buyer immediately in writing
of any failure to timely ship all or any part of an Order, and Buyer's
acceptance of any Merchandise after the applicable delivery date shall not
constitute a waiver of, or otherwise limit, any of Buyer's rights resulting
form the late delivery nor obligate Buyer to accept delivery of additional
Merchandise under the Order.
6. Special Features. All Merchandise designs, patents and trade names which
are supplied by Buyer to Vendor or which are distinctive of Buyer's
private label Merchandise ("Special Features") shall be the property of
Buyer and shall be used by Vendor only for Buyer. Buyer may use the Special
Features on or with respect to goods manufactured by others and obtain
legal protection for the Special Features including, without limitation,
patents, patent designs, copyrights and trademarks. Merchandise with
Special Features which is not delivered to Buyer for any reason shall not
be sold or transferred to any third party without written authorization of
Buyer and unless and until all labels, tags, packaging and markings
identifying the Merchandise to Buyer have been removed.
7. Deductions and Set off. Any sums payable to Vendor shall be subject to
all claims and defenses of Buyer, whether arising from this or any
other transaction, and Buyer may set off and deduct against any such sums
all present and future indebtedness of Vendor to Buyer. Buyer shall provide
a copy of the deduction voucher(s) for debits taken by Buyer against
Vendor's account as a result of any returns or adjustments. Vendor shall
be deemed to have accepted each such deduction unless Vendor, within 90
days following receipt of the deduction voucher, notifies Buyer in writing
as to why a deduction should not be made and provides documentation of the
reason(s) given. Such written notice shall be directed to Buyer's Vendor
Audit Department at the above address. Buyer shall not be liable to Vendor
for any interest or late charges.
29
8. Michigan Contract and Jurisdiction. EACH ORDER, AND ALL OTHER ASPECTS
OF THE BUSINESS RELATIONSHIP BETWEEN BUYER AND VENDOR, SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
MICHIGAN. VENDOR AGREES, WITH RESPECT TO ANY LITIGATION WHICH RELATES TO
ANY ORDER OR WHICH OTHERWISE ARISES DIRECTLY OR INDIRECTLY OUT OF OR IN
CONNECTION WITH SAID BUSINESS RELATION OR ANY TRANSACTION OF ANY NATURE
BETWEEN BUYER AND VENDOR, TO COMMENCE SAME (I) EXCLUSIVELY IN (AND VENDOR
HEREBY CONSENT TO THE JURISDICTION OF) THE STATE OF MICHIGAN COURTS OF
OAKLAND COUNTY, MICHIGAN OR THE UNITED STATES DISTRICT COURT IN DETROIT,
MICHIGAN; AND (II) WITHIN 18 MONTHS FROM THE DATE OF BUYER'S LAST ORDER TO
VENDOR OR THE PERIOD PRESCRIBED BY THE APPLICABLE STATUE OF LIMITATIONS,
WHICHEVER IS SOONER.
9. Miscellaneous. (A) All rights granted to Buyer hereunder shall be in
addition to and not in lieu of Buyer's rights arising by operation of
law. (B) any provisions of a hard copy Order which are typewritten or
handwritten by Buyer shall supersede any contrary or inconsistent printed
provisions therein. (c) No modification of terms of an Order shall be
valid without the written authorization of Buyer. (D) Should any of the
provisions of an Order be declared by a court of competent jurisdiction to
be invalid, such decision shall not affect the validity of any remaining
provisions.
10. Direct to Store and Distribution Center Invoice & Shipping Instructions.
(a) Each invoice shall include Buyer's Order number, Vendor's
stock/style number, and Buyer's code number for each item on the invoice.
No substitutions of Merchandise shall be made without the written
authorization of Buyer. (B) Each Order may be invoiced separately. (c) an
Order may not be filled at a price higher than that shown on its face or
transmitted without the written authorization of Buyer. (D) If freight
costs are to be paid by Buyer, Vendor shall ship via the method and/or
route specified in the instruction provided by Buyer's Transportation
Department, shall make ONE COMPLETE shipment of the Merchandise and shall
NOT make PARTIAL shipments without the written authorization of Buyer. (E)
Vendor shall make n NO PACKAGE QUANTITY CHANGE on an Order without the
written authorization of the Buyer.
11. Additional Distribution Center Shipping Instructions. (A) The applicable
xxxx of lading must be delivered to the Distribution Center at time of
Merchandise delivery. (B) Vendor shall mar the contents of each
Distribution Center carton clearly on the outside of the carton, case, or
package. (c) Merchandise not packaged or shipped in quantities Order by
Buyer shall at Buyer's option be returned to Vendor at Vendor's expense.
Vendor shall be charged a handling charge of 7 1/2% of the Merchandise
invoice price on all Merchandise not packaged or shipped as Ordered.
12. Merchandise Testing, Merchandise shall, at Buyer's option, be subject to
domestic or overseas testing.
30
Vendor agrees to pay for all fees and costs associated with such testing
(which fees and costs are set forth in Buyer's current Quality Assurance
Manual or other documentation provided to Vendor), The testing of Vendor's
Merchandise by or on behalf of Kmart is not a substitute for Vendor's
responsibilities, hereunder including without limitation, those relating to
warranty and indemnification under Paragraphs 2 and 3 above.
13. Buyer Information/Orders. Buyer may at its discretion provide Vendor with
certain confidential or proprietary information relating to Buyer's
purchase and/or sale of Vendor's Merchandise. Vendor acknowledges that
such information, together with any other information of or pertaining to
Buyer provided to Vendor by Buyer or learned by Vendor as a consequence of
the business relationship between Buyer and Vendor (the "Buyer
Information") is provided and received in confidence and Vendor shall at
all times preserve and protect the confidentiality thereof. Vendor agrees
to take all necessary steps to ensure that the Buyer Information shall not
be disclosed to, or used by any person, association or entity except
Vendor's own employees having a need to know. BUYER MAKES NO WARRANTY WITH
RESPECT TO THE BUYER INFORMATION OR THE ACCURACY OR COMPLETENESS THEREOF.
AND IS PROVIDING SAME ON AN 'AS IS' BASIS; ALL IMPLIED WARRANTIES WITH
RESPECT TO THE Buyer INFORMATION, INCLUDING HOSE OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. Vendor acknowledges and
agrees that any sales forecast, quantity purchase estimates or similar
projections received from Buyer are not purchase commitments of Buyer, but
rather represent estimates for planning purposes only, and that the Buyer
shall have no obligation to purchase or otherwise compensate Vendor for any
of Vendor's finished products, or unfinished raw materials, not covered by
an Order.
14. Food Vendors. The following amendments to the above terms and conditions
hall apply to any food products purchased from Vendor by Buyer (any
other Merchandise purchased from Vendor by Buyer shall be governed by the
foregoing, without amendment): (I) Paragraph 4 - delete "or repair it at
Vendor's expense" in line 3 and delete "and a handling, storage and
inspection charge of 7 1/2% of the returned Merchandise invoice price"
starting in Line 4; (ii) Paragraph 10 - delete the remainder of (d)
starting with ", shall make ONE COMPLETE ..." starting in line 6; and (iii)
Paragraph 12 - delete in its entirety.
31
[KMART LETTERHEAD]
___________ 19___________
Dear Sir/Madam:
This letter will confirm that the Purchase Order Terms and Conditions on the
reverse side hereof (the "Terms") shall apply to all purchase orders issued to
Vendor by Kmart, whether by telephone, hard copy, electronically or otherwise.
Please note that the instructions in item 11 of the Terms are applicable to
Distribution Center purchase orders only.
Receipt of this confirmation is REQUIRED before Vendor will be authorized to
receive purchase orders from Kmart Corporation.
Please have the chairman, president or a vice president of Vendor confirm that
the Terms will apply to all Kmart orders issued to Vendor by signing and
returning one original of this letter (WITH NO CHANGES OF ANY KIND) to the
address below no later than 7 business days from the above date. Retain the
other original or a copy for your files. This letter must be signed by the
company which is paid by Kmart.
Very truly yours,
Kmart Corporation
--------------------------------- --------------------------------------------
Signature Registered Legal Name of Vendor
--------------------------------- --------------------------------------------
Title Address
--------------------------------------------
City State Zip
-------------------------------------------
Vendor Officer Signature
(Chairman, President or Vice President only)
--------------------------------------------
Print Name
RETURN TO:
ATTN
----------------------------- --------------------------------------------
KMART CORPORATION Title
0000 XXXX XXX XXXXXX XXXX
XXXX XX 00000-0000
32
PURCHASE ORDER TERMS AND CONDITIONS EXHIBIT C
Vendor and Kmart Corporation, 0000 Xxxx Xxx Xxxxxx Xxxx, Xxxx Xxxxxxxx
00000-0000, ("Buyer") agree, to the fullest extent permitted by law, to be
bound by all terms and conditions contained or incorporated herein, all of
which are a part of each Purchase Order issued to Vendor by Buyer ("Order") and
should be carefully read. Any provisions in Vendor's invoices, billing
statements, acknowledgment forms or similar documents which are inconsistent
with the provisions of an Order shall be of no force or effect. The cost price
set forth in each Order includes the cost of manufacturing packaging, labeling
and shipping unless otherwise specified in the Order.
1. Vendor's Acceptance. Vendor's commencement of or promise of shipment of
the Merchandise shall constitute Vendor's agreement that it shall
deliver the Merchandise in accordance with the terms and conditions of
the applicable Order. Vendor agrees to follow the shipping and
invoicing instructions issued by Buyer's stores, warehouses, buying
offices and Transportation and Accounting Departments, which
instructions are incorporated by reference into the applicable Order.
2. Vendor's Representations and Warranties. Vendor represents and warrants
to Buyer, in addition to all warranties implied by law, that each item
of Merchandise described on the face of an Order (or in an EDI or
telephone Order), together with all related packaging and labeling and
other material furnished by Vendor ("Merchandise"), shall : (a) be free
from defects in design, workmanship and/or materials including without
limitation, such defects as could create a hazard to life or property;
(b) conform in all respects with all applicable federal, state and
local laws, Orders and regulations, including without limitation, those
regarding (I) safety, (ii) content, (iii) flammability, (iv) weights,
measures and sizes, (v) special use, care, handling, cleaning or
laundering instructions or warnings, (vi) processing, manufacturing,
labeling, advertising, selling, shipping and invoicing, (vii)
registration and declaration responsibility, and (viii) occupational
safety and health; (C) not infringe or encroach upon Buyer's or any third
party's personal, contractual or proprietary rights, including without
limitation, patents trademarks, copyrights, rights of privacy or trade
secrets; and (d) conform to all of Buyer's specifications and to all
articles shown to Buyer as Merchandise samples.
3. Vendor's indemnification of Buyer. Vendor agrees to reimburse,
indemnify, hold harmless and to defend at its expense (or to pay any
attorney's fees incurred by Buyer) Buyer and its subsidiary and
affiliate companies against all damage, loss, expenses, claim,
liability or penalty, including without limitation, claims of
infringement of patents, copyrights, trademarks, unfair composition,
bodily injury, property or other damage, arising out of any use,
possession, consumption or sale of said Merchandise and form any
failure of Vendor to property perform an Order. Vendor shall not be
relieved of the forgoing indemnity and related obligations by
allegations or any claim of negligence on the part of Buyer; provided,
however, Vendor shall not remain or be liable hereunder to the extent
any injury or damage is finally judicially determined to have been
proximately caused by the sole negligence of
33
Buyer. Vendor shall obtain adequate insurance to cover such liability
under each Order and shall provide copies of the applicable
certificate(s) of insurance annually to Buyers's Vendor Database
Department at the above address.
4. Defective or Non-conforming Merchandise. If any Merchandise is
defective, unsuitable, does not conform to all terms hereof and of the
Order and all warranties implied by law, Buyer may at its options
return it to Vendor for full credit or refund of the purchase price or
repair it at Vendor's expense, and may charge Vendor such price or
expense and the cost of any incurred inbound and outbound freight and a
handling, storage and inspection charge of 7 1/2% of the returned
Merchandise invoice price. Buyer shall be under no duty to inspect any
Merchandise before resale thereof, and resale, or repackaging or
repacking for the purpose of resale, shall not constitute a waiver of,
or otherwise limit, any of the Buyer's rights resulting from defective
or nonconforming Merchandise.
5. Buyers Right to Cancel. Buyer may without notice cancel, terminate
and/or rescind all or part of an Order in the event Vendor Breaches or
fails to perform any of its obligations in any material respect, or in
the event Vendor becomes insolvent or proceedings are instituted by or
against Vendor under any provisions of any federal or state bankruptcy
or insolvency laws or Vendor ceased its operation. Time is of the
essence to each Order and Vendor's failure to meet any delivery date
shall constitute a material breach of the Order. Vendor agrees to
inform Buyer immediately in writing of any failure to timely ship all
or any part of an Order, and Buyer's acceptance of any Merchandise
after the applicable delivery date shall not constitute a waiver of, or
otherwise limit, any of Buyer's rights resulting form the late delivery
nor obligate Buyer to accept delivery of additional Merchandise under
the Order.
6. Special Features. All Merchandise designs, patents and trade names
which are supplied by Buyer to Vendor or which are distinctive of
Buyer's private label Merchandise ("Special Features") shall be the
property of Buyer and shall be used by Vendor only for Buyer. Buyer
may use the Special Features on or with respect to goods manufactured
by others and obtain legal protection for the Special Features
including, without limitation, patents, patent designs, copyrights and
trademarks. Merchandise with Special Features which is not delivered
to Buyer for any reason shall not be sold or transferred to any third
party without written authorization of Buyer and unless and until all
labels, tags, packaging and markings identifying the Merchandise to
Buyer have been removed.
7. Deductions and Set off. Any sums payable to Vendor shall be subject to
all claims and defenses of Buyer, whether arising from this or any
other transaction, and Buyer may set off and deduct against any such
sums all present and future indebtedness of Vendor to Buyer. Buyer
shall provide a copy of the deduction voucher(s) for debits taken by
Buyer against Vendor's account as a result of any returns or
adjustments. Vendor shall be deemed to have accepted each such
deduction unless Vendor, within 90 days following receipt of the
deduction voucher, notifies Buyer in writing as to why a deduction
should not be made and provides documentation of the reason(s) given.
Such written notice shall be directed to Buyer's Vendor Audit
Department at the above address. Buyer shall not be liable to Vendor
for any interest or late charges.
34
8. Michigan Contract and Jurisdiction. EACH ORDERS AND ALL OTHER ASPECTS OF
THE BUSINESS RELATIONSHIP BETWEEN BUYER AND VENDOR, SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
MICHIGAN. VENDOR AGREES, WITH RESPECT TO ANY LITIGATION WHICH RELATES TO
ANY ORDER OR WHICH OTHERWISE ARISES DIRECTLY OR INDIRECTLY OUT OF OR IN
CONNECTION WITH SAID BUSINESS RELATION OR ANY TRANSACTION OF ANY NATURE
BETWEEN BUYER AND VENDOR, TO COMMENCE SAME (I) EXCLUSIVELY IN (AND
VENDOR HEREBY CONSENT TO THE JURISDICTION OF) THE STATE OF MICHIGAN
COURTS OF OAKLAND COUNTY, MICHIGAN OR THE UNITED STATES DISTRICT COURT IN
DETROIT, MICHIGAN; AND (II) WITHIN 18 MONTHS FROM THE DATE OF BUYER'S
LAST ORDER TO VENDOR OR THE PERIOD PRESCRIBED BY THE APPLICABLE STATUE OF
LIMITATIONS, WHICHEVER IS SOONER.
9. Miscellaneous. (A) All rights granted to Buyer hereunder shall be in
addition to and not in lieu of Buyer's rights arising by operation of
law. (B) any provisions of a hard copy Order which are typewritten or
handwritten by Buyer shall supersede any contrary or inconsistent printed
provisions therein. (c) No modification of terms of an Order shall be
valid without the written authorization of Buyer. (D) Should any of the
provisions of an Order be declared by a court of competent jurisdiction
to be invalid, such decision shall not affect the validity of any
remaining provisions.
10. Direct to Store and Distribution Center Invoice & Shipping
Instructions. (a) Each invoice shall include Buyer's Order number,
Vendor's stock/style number, and Buyer's code number for each item on
the invoice. No substitutions of Merchandise shall be made without the
written authorization of Buyer. (B) Each Order may be invoiced
separately. (c) an Order may not be filled at a price higher than
that shown on its face or transmitted without the written authorization
of Buyer. (D) If freight costs are to be paid by Buyer, Vendor shall
ship via the method and/or route specified in the instruction provided
by Buyer's Transportation Department, shall make ONE COMPLETE shipment
of the Merchandise and shall NOT make PARTIAL shipments without the
written authorization of Buyer. (E) Vendor shall make n NO PACKAGE
QUANTITY CHANGE on an Order without the written authorization of the
Buyer.
11. Additional Distribution Center Shipping Instructions. (A) The
applicable xxxx of lading must be delivered to the Distribution Center
at time of Merchandise delivery. (B) Vendor shall mar the contents of
each Distribution Center carton clearly on the outside of the carton,
case, or package. (c) Merchandise not packaged or shipped in
quantities Order by Buyer shall at Buyer's option be returned to Vendor
at Vendor's expense. Vendor shall be charged a handling charge of 7
1/2% of the Merchandise invoice price on all Merchandise not packaged
or shipped as Ordered.
12. Merchandise Testing. Merchandise shall, at Buyer's option, be subject to
domestic or overseas testing. Vendor agrees to pay for all fees and
costs associated with such testing
35
(which fees and costs are set forth in Buyer's current Quality
Assurance Manual or other documentation provided to Vendor). The testing
of Vendor's Merchandise by or on behalf of Kmart is not a substitute for
Vendor's responsibilities, hereunder including without limitation, those
relating to warranty and indemnification under Paragraphs 2 and 3 above.
13. Buyer Information/Orders. Buyer may at its discretion provide Vendor
with certain confidential or proprietary information relating to
Buyer's purchase and/or sale of Vendor's Merchandise. Vendor
acknowledges that such information, together with any other information
of or pertaining to Buyer provided to Vendor by Buyer or learned by
Vendor as a consequence of the business relationship between Buyer and
Vendor (the "Buyer Information") is provided and received in confidence
and Vendor shall at all times preserve and protect the confidentiality
thereof. Vendor agrees to take all necessary steps to ensure that the
Buyer Information shall not be disclosed to, or used by any person,
association or entity except Vendor's own employees having a need to
know. BUYER MAKES NO WARRANTY WITH RESPECT TO THE BUYER INFORMATION OR
THE ACCURACY OR COMPLETENESS THEREOF. AND IS PROVIDING SAME ON AN 'AS
IS' BASIS; ALL IMPLIED WARRANTIES WITH RESPECT TO THE Buyer INFORMATION,
INCLUDING HOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
ARE EXCLUDED. Vendor acknowledges and agrees that any sales forecast,
quantity purchase estimates or similar projections received from Buyer
are not purchase commitments of Buyer, but rather represent estimates for
planning purposes only, and that the Buyer shall have no obligation to
purchase or otherwise compensate Vendor for any of Vendor's finished
products, or unfinished raw materials, not covered by an Order.
14. Food Vendors. The following amendments to the above terms and
conditions hall apply to any food products purchased from Vendor by
Buyer (any other Merchandise purchased from Vendor by Buyer shall be
governed by the foregoing, without amendment): (I) Paragraph 4 - delete
"or repair it at Vendor's expense" in line 3 and delete "and a
handling, storage and inspection charge of 7 1/2% of the returned
Merchandise invoice price" starting in Line 4; (ii) Paragraph 10 -
delete the remainder of (d) starting with ", shall make ONE COMPLETE
..." starting in line 6; and (iii) Paragraph 12 - delete in its
entirety.
36
[KMART LETTERHEAD]
___________ 19___________
Dear Sir/Madam:
This letter will confirm that the Purchase Order Terms and Conditions on the
reverse side hereof (the "Terms") shall apply to all purchase orders issued to
Vendor by Kmart, whether by telephone, hard copy, electronically or otherwise.
Please note that the instructions in item 11 of the Terms are applicable to
Distribution Center purchase orders only.
Receipt of this confirmation is REQUIRED before Vendor will be authorized to
receive purchase orders from Kmart Corporation.
Please have the chairman, president or a vice president of Vendor confirm that
the Terms will apply to all Kmart orders issued to Vendor by signing and
returning one original of this letter (WITH NO CHANGES OF ANY KIND) to the
address below no later than 7 business days from the above date. Retain the
other original or a copy for your files. This letter must be signed by the
company which is paid by Kmart.
Very truly yours,
Kmart Corporation
--------------------------------- --------------------------------------------
Signature Registered Legal Name of Vendor
--------------------------------- --------------------------------------------
Title Address
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City State Zip
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KMART CORPORATION Title
0000 XXXX XXX XXXXXX XXXX
XXXX XX 00000-0000
37
TERMS AND CONDITIONS EXHIBIT D
THIS ORDER CONTRACT IS UPON THE FOLLOWING TERMS AND CONDITIONS:
1. Seller's commencement of or promise of shipment of the Merchandise shall
constitute Seller's agreement that it will deliver the Merchandise in
accordance with the terms and conditions contained or incorporated herein,
all of which are a part of the Order Contract and should be carefully read.
Any provision in Seller's invoices, billing statements, acknowledgments
forms or other documents which are inconsistent with the provisions of this
Order Contract shall be of no force or effect.
2. Seller represents and warrants to Kmart Corporation ("Buyer"), in addition
to all warranties implied by law, that each item of Merchandise described
on the face hereof, together with all retail packaging, labeling, and other
material furnished by seller ("Merchandise") shall (a) be free from defects
in design, workmanship or materials, including without limitation such
defects as could create a hazard to life or property, (b) conform in all
respects with all applicable federal, state and local laws, orders and
regulations, including, without imitation, those concerning the marking of
the country of origin, fiber content, care labeling and shrinkage, as
Merchandise not in compliance and not properly marked is subject to heavy
penalty (c) not infringe or encroach upon Buyer's or any third party's
personal, contractual or proprietary rights, including, without limitation,
patents, trademarks, trade names, copyrights, rights of privacy or trade
secrets; and (d) conform to all of Buyer's specifications and to all
articles shown to Buyer as Merchandise samples. Seller further represents
and warrants that it has ascertained that no child, forced or prison labor
is utilized in the manufacture of Merchandise.
3. Seller agrees to reimburse, indemnify, hold harmless and defend at Seller's
expense (or pay any attorney's fees incurred by Buyer) Buyer and its
subsidiary and affiliate companies against all damage, loss, expense,
claim, liability, fine, settlement or penalty, including, without
limitation, claims of infringement of patents, copyrights and trademarks,
unfair competition, bodily injury, or property or other damage arising out
of any use, possession, consumption or sale of the Merchandise or failure
to provide complete, accurate and acceptable (to U.S. Customs) information
and documentation relating to, without limitation, the country of origin or
failure of Seller to perform promptly this Order Contract. Seller shall
obtain adequate insurance to cover its liability under this Order Contract
and shall provide copies of the applicable certificates(s) of insurance to
Buyer
4. Acceptance of Merchandise by Buyer after inspection does not release or
discharge Seller from any liability for damages or from any other remedy of
Buyer for Seller's breach of any promise or warranty, expressed or implied.
This Order of Contract may at Buyer's option be deemed canceled if the
Merchandise ordered herein is not covered by a full set of "Clean" "On
Board" Ocean Bills of Lading and Buyer's inspection Certificate dated on or
before the shipping date specified on the face hereof. Any such
cancellation shall be without prejudice to all other rights and remedies
occurring to Buyer by reason of Seller's breach, unless a written extension
of shipping date(s) was previously granted in writing to Seller by Buyer,
if any of the terms, conditions, or warranties of or underlying this Order
Contract, express
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or implied, are not strictly complied with by Seller with respect to any
shipment or installment shipment of the Merchandise order herein, Buyer
has the right, in addition to all other rights and remedies accruing to
Buyer by reason of Seller's breach, to refuse to accept any or all
deliveries of Merchandise ordered herein, buy any acceptance by Buyer of
any such singular shipment or installment shipment shall not be deemed
(whether or not Buyer notifies Seller of its demand for strict compliance
with respect to future shipment installments) a waiver by Buyer of any of
its rights to refuse any future shipments hereunder or of any other rights
or remedies.
5. All Merchandise design, patents and trademarks which are supplied by Buyer
to Seller or which are distinctive of Buyer's private label Merchandise
("Special Features") shall be the property of Buyer and shall be used by
Seller only for Buyer. Buyer may use the Special Features on or with
respect to goods manufactured by others and obtain legal protection for the
Special Features including, without limitation, patents, design patents,
copyrights and trademarks. Merchandise which is not delivered to Buyer for
any reason shall not be sold or transferred to any third party without
written authorization of Buyer and unless and until all labels, tags,
packaging and markings identifying the Merchandise to Buyer have been
removed.
6. THIS ORDER CONTRACT SHALL BE CONSTRUED AND ENFORCED UNDER AND IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF MICHIGAN. ANY UNSETTLED DISPUTE
HEREUNDER WHERE THE AMOUNT IN CONTROVERSY IS LESS THAN OR EQUALS $50,000
(U.S.) SHALL BE FINALLY SETTLED BY ARBITRATION, HELD IN THE UNITED STATES
OF AMERICAN AT DETROIT, MICHIGAN AND CONDUCTED IN ACCORDANCE WITH THE RULES
OF THE AMERICAN ARBITRATION ASSOCIATION. JUDGEMENT UPON ANY ARBITRATION
AWARD RENDERED, IF NOT SATISFIED WITHIN NINETY (90) DAYS, MAY BE ENTERED IN
ANY COURT HAVING JURISDICTION, OR APPLICATION MAY BE MADE TO ANY SUCH COURT
FOR A JUDICIAL RECOGNITION, ACCEPTANCE AND ORDER OF ENFORCEMENT, AS THE
CASE MAY BE IN ANY UNSETTLED DISPUTE HEREUNDER WHERE THE AMOUNT IN
CONTROVERSY EXCEEDS$50,000 (U.S.). IT IS HEREBY MUTUALLY AGREED THAT SELLER
SHALL EXERCISE ANY RIGHT OR REMEDY EXCLUSIVE IN, AND HEREBY CONSENTS TO THE
JURISDICTION OF, THE UNITED STATES DISTRICT COURT IN DETROIT, MICHIGAN.
7. (A) All rights granted to Buyer hereunder shall be in addition to and not
in lieu of Buyer's rights arising by operation of law; (b) any provision of
this Order Contract which are typewritten or handwritten by Buyer shall
supersede any contrary or inconsistent printed provisions; (c) no
modification of terms of this Order Contract shall be valid, including,
without limitation, price increase, unless in writing and signed by Buyer;
(d) should any of the provision of this Order Contract be declared by a
court of competent jurisdiction to be invalid, such decision shall not
affect the validity of any remaining provision; (e) all of the terms herein
shall apply to additional quantities of Merchandise order by Buyer except
to the extent covered by a new written agreement; and (f) all documents
prepared in connection
39
with this Order Contract must be written in the English language and in
U.S. currency figures.
8. Neither this Order Contract nor any right, duty or obligation hereunder is
assignable without the prior written consent of Buyer, nor shall Buyer be
under any obligation TO recognize any assignment of monies payable
hereunder.
9. Seller agrees to prepare and produce all documents which are necessary for
the Merchandise to clear U.S. Customs and which are otherwise required by
applicable laws or regulations, the Letter of Credit or instructions set
forth on the face hereof.
10. All shipping cartons are to be marked and packed in accordance with Buyer's
international Department Standard Instructions to foreign Shippers In
addition, Seller agrees to follow any shipping instructions issued directly
to Seller by Buyer's International Department
11. Without in any way limiting Buyer's other rights and remedies arising under
paragraph 2 above, seller agrees that any Merchandise, packaging that (1)
misstates the true country of origin, or (2) is made in whole or in part by
child or prison labor, will be a material breach of this Order Contract
resulting in cancellation of this Order Contract and Liability of Seller to
Buyer for liquidated damages equal to t the total FOB-factory cost of the
Merchandise plus all freight, import/export charges and other costs
incurred for the shipment or return (or destruction at Buyer's election)
of seized or redelivered Merchandise.
12. Except for the right to receive payment, Seller hereby assigns all of its
rights (expressed and implied under any purchase order Seller issues to a
manufacturer for Merchandise or any component thereof covered by this Order
Contract including, without limitation, right of warranty and
indemnification obligation on the part of Buyer to a manufacturer in
connection with the Merchandise. This partial assignments shall not act to
limit Buyer's rights and remedies elsewhere under this Order Contract.
13. Merchandise shall, at Buyer's option, be subject to domestic or overseas
testing. Seller agrees to pay for all fees and costs associated with such
testing (which fees and costs are set forth in Buyer's current Quality
Assurance Manual or other documentation provided to Seller). The testing
of Seller's Merchandise by or on behalf of Kmart is not a substitute for
Seller's responsibilities, hereunder including without limitation, those
relating to warranty and indemnification under Paragraphs 2 and 3 above.
Address All Correspondence
Regarding This Order Contract To: Kmart Corporation
International Department
0000 Xxxx Xxx Xxxxxx Xxxx
Xxxx XX 00000-0000
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EXHIBIT E
AUTHORIZED REPRESENTATIVES OF KMART
Senior Vice President General Merchandise Manager, Hardlines
Divisional Vice President, Merchandising Hardlines
Buyer, Appliances, Music, Electronics
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