VENDOR AGREEMENT
Exhibit
10.19
Effective
Date: February 27,
2004
This
Vendor Agreement (“Agreement”) is between:
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Best
Buy Purchasing LLC
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Garmin
USA, Inc. (“Vendor”)
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0000
Xxxx Xxxxxx Xxxxx
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and
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0000
Xxxx 000xx
Xxxxxx
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Xxxxxxxxx,
XX 00000
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Xxxxxx,
XX 00000
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This
Agreement is intended to set forth the terms and conditions applicable to the
purchase of goods from Vendor and their distribution, marketing and resale by
Best Buy Co., Inc. and its designated affiliates and subsidiaries.
1. License
To Sell Products
1.1 Appointment
of Authorized Dealer. Vendor appoints Best Buy Co.,
Inc., and each of its designated affiliates and subsidiaries (collectively,
“Dealer”) as an authorized dealer. The designated affiliates and subsidiaries
will include Best Buy Stores, L.P., XxxxXxx.xxx, Inc., and its subsidiaries, or
as updated from time to time upon notice to Vendor (“Affiliates”).
1.2 Territory. Vendor grants Dealer a
non-exclusive license to distribute all products Vendor sells to Dealer
(“Product” or “Products”), to end-users and commercial buyers in the United
States (and its territories), and other territories as agreed from time to time
through Dealer’s sales channels including but not limited to its present and
future retail stores, Internet web sites, distribution centers and mail order
distribution centers.
2. Pricing
and Taxes
2.1 Prices. Vendor will sell the
Products to Dealer at the prices then in effect on its current price list, as
may be changed from time to time, or as otherwise agreed between the
parties. All prices, benefits and allowances offered to Dealer will
not be less favorable than those prices, benefits or allowances extended to any
other similarly situated retail customers of Vendor. Vendor’s prices
do not include sales, use, excise, or similar taxes.
2.2 Taxes. The amount of any valid
present or future sales, use, excise, or other similar tax that is attributable
to Dealer will be paid by Dealer; or in lieu thereof, Dealer will provide Vendor
with a tax exemption certificate acceptable to the taxing
authorities.
2.3 No
Minimum Purchase Requirement. There will be no minimum purchase
or inventory commitments required of Dealer and Dealer does not guaranty any
particular sales volume with respect to Vendor’s Products.
3. Purchase
Orders
Orders
for Vendor’s Products will be initiated by electronic purchase orders submitted
by Dealer and will be binding upon the parties upon acceptance by Vendor,
provided that Dealer reserves the right to cancel a purchase order in writing at
any time prior to the shipment date. Vendor will be deemed to have
accepted a purchase order if Vendor fails to reject the purchase order by
notifying Dealer within twenty-four (24) hours of its receipt thereof, not
including weekends and nationally recognized holidays.
4. Payment
4.1 Invoices.
Vendor will send an electronic invoice to Dealer no earlier than the Product
shipment date in connection with each accepted and fulfilled purchase
order. Dealer will pay amounts due in each such invoice pursuant to
the credit terms established by the parties, which will be set forth in the
Vendor’ Program Agreement attached as an addendum hereto, as further described
in Section 10. The designated credit term will commence on the later of (a) the
date Dealer receives Products at the FOB point specified in Section 5, or
Payment will not be considered late by Vendor for purposes of calculating early
payment discounts if payment is sent by Dealer within one (1) week of the due
date or if payment is delayed because of an indebtedness of Vendor to Dealer. No
interest or other charges will be payable by Dealer upon this Agreement, or any
resulting invoice, whether claimed by reason of late payment or
otherwise. All transactions will be valued and paid in United States
currency.
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4.2 Right
to Make Offset. Dealer may offset from Vendor’s
invoice any indebtedness of Vendor to Dealer whether or not related to this
Agreement. Vendor agrees to not contest Dealer’s deduction if Vendor
fails to send a written denial thereof, including all supporting documentation,
to Dealer within ninety (90) days of the date of deduction (Dealer’s check
date). Such written denial will be made by Vendor by submitting
notice to Dealer via Dealer’s standard Dispute Control Document,
available at Dealer’s Vendor Extranet web site, xxx.xxxxxxxxxxxxxxxxx.xxx.
..
4.3 Statement
of Account. From
time to time upon request by Dealer, Vendor will provide a complete statement of
account that will include but not be limited to unpaid invoices and disputed
deductions. Such statement of account will also disclose all credit
memos issued and outstanding. The statement of account will be
forwarded by electronic mail in spreadsheet format or by regular mail per
Dealer’s instructions. Statements for merchandising/inventory
accounts will be separate from any statement of account for parts purchased by
Dealer for Product service and out-of-warranty repairs.
4.4 Debit Balances. If Vendor is indebted to Dealer but
there is no outstanding balance due to Vendor, Vendor will pay the amount due to
Dealer via check or wire transfer in full within thirty (30) days of receipt of
notification thereof from Dealer. If the amount in question is
disputed, the parties agree to work in good faith to reconcile the matter so
that payment to Dealer of any undisputed amount will be made within sixty (60)
days of Dealer’s original notice to Vendor. In no event will Dealer be
obligated to take a credit against future purchases.
5. Shipping
5.1
Shipping Terms: The parties hereby agree to the ground shipment terms selected
below:
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X
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FOB Destination,
Freight Prepaid by Vendor. Vendor will be responsible
for carrier selection and routing instructions. Vendor will pay
all costs and expenses incurred prior to the FOB point, including without
limitation, insurance, freight, and any notification, sort and segregation
charges. Title and risk of loss passes upon delivery at the
destination specified by Dealer, which may include but is not limited to
its stores, distribution centers, and third-party fulfillment
providers. Vendor is encouraged to utilize Dealer’s preferred
carriers to improve on-time performance, minimize transit times and reduce
the need for expedited shipments.
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o
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FOB Origin, Freight
Collect and Allowed. Dealer will be responsible for
carrier selection, routing instructions and pick-up appointments at
Vendor’s domestic origin facility. In addition, Dealer is
responsible for carrier freight payments, submitting freight claims for
loss and damage, scheduling appointments at destination, and tracking and
tracing freight in transit. Title and risk of loss passes upon
delivery at Vendor’s domestic origin shipping dock. Vendor
agrees to have Products in ship-ready condition on the ship date specified
in the applicable purchase order and provide forty-eight (48) hour notice
of pick-up request to Dealer for truckload shipments and twenty-four (24)
hour notice of pick-up request to Dealer for less-than-truckload
shipments. The attached Collaborative Transportation Agreement,
as amended from time to time by the parties, if applicable, contains
additional terms that define the parties’ responsibilities under this
shipping arrangement.
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5.2 Time
is of the Essence. TIME IS OF THE ESSENCE OF THIS
AGREEMENT WITH RESPECT TO THE SPECIFIED DATES FOR SHIPMENT OF
PRODUCT.
5.3 Expedited
Shipments. Vendor
will pay any additional freight expenses incurred in connection with an
expedited shipment arising from a shipment delay or other cause attributable to
Vendor.
5.4 Other
Charges. Any charges
related to special requests of Vendor to carrier, including loading assistance,
detention, or any other instructions, prior to title passage, will be the
responsibility of the Vendor.
5.5 Direct
Import Addendum. Terms relating to Products that
are imported by Dealer, if applicable, are set forth in the attached Direct
Import Addendum, which is incorporated herein by reference.
6. Price
Protection; Notice of Price Increases
6.1 Price
Protection. If
Vendor issues a price decrease for Products (a) the lower price will be
reflected on Vendor’s invoice with respect to any price decrease that occurs
prior to shipment and (b) Dealer will receive price protection credit with
respect to Dealer’s on-hand inventory existing on the effective date of the
price decrease, which will include Product wherever located (e.g., inventory
located in stores, warehouses, return centers and Product in transit between
these locations or from Vendor to Dealer). Dealer will submit a cost
adjustment claim to Vendor that is supported by documentation that reflects
Dealer’s inventory records of Product subject to price protection
credit.
6.2 Notice
of Price Increases. Except as otherwise agreed,
Vendor will give Dealer ninety (90) days prior written notice to Dealer of the
effective date of any price increases. A price increase will not
affect Dealer’s cost on a purchase order accepted by Vendor prior to the
effective date of such price increase.
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7.
Returns
7.1 Return
Rights. Dealer will
have the right to return at Vendor’s expense, and for full credit or refund of
Dealer’s cost, any Products (a) against which an allegation is made that the use
of such Products infringes on any patent, trademark, trade secret, copyright,
right of privacy or publicity, or any other tangible or intangible proprietary
or intellectual property right; (b) that are not manufactured, packaged, or
labeled in accordance with industry standards and/or all applicable laws,
ordinances, rules, and regulations; (c) that are shipped in error or in
non-conformance with Dealer’s purchase order; (d) that have caused injury to
person or property; or (e) that are damaged or Defective.
7.2 Defective
Products. For
purposes of this Agreement, a “Defective” Product means any Product that is
visually or operationally defective and Product that has been returned by a
customer in accordance with Dealer’s end-user return policy. Dealer’s
end-user return policy allows for the return of most Products with or without
cause for a specified period after purchase, regardless of whether the Product
packaging has been opened or whether the Product is actually
defective.
7.3 Return
Procedures. If a
Vendor Return Authorization is first required by either party prior to Dealer’s
return of Product to Vendor, Vendor agrees to provide such Return Authorization
to Dealer within forty-eight (48) hours of Dealer’s request. Vendor will allow
delivery of return Product as of the day the Return Authorization is issued to
Dealer. If Vendor requires that Dealer make an appointment to deliver
returned Product, such appointment will be provided by Vendor within three (3)
days of the carrier’s expected arrival time. Upon shipment of the
return Product to Vendor, Dealer will send a Return Goods Memo (debit memo) to
Vendor that references the corresponding Return Authorization number, if any,
along with quantity and dollar amounts on a per unit basis. Dealer
may thereafter deduct the total dollar amount of the return Product from
Vendor’s invoice. Vendor agrees to send a credit memo to Dealer for
the amount specified in the Return Goods Memo within ninety (90) days of the
date of Dealer’s deduction. Such credit memo will reference either
Dealer’s Return Goods Memo number or the Return Authorization
number. Product returned to Vendor will be delivered in their
original, undamaged containers, provided that Vendor will not consider a
container with a removed UPC to be damaged for purposes of calculating the
return credit if such UPC was removed by an end-user in connection with a
Vendor-sponsored rebate offer. If Vendor receives Product from Dealer
that Vendor believes is non-returnable, Vendor will return such Product to
Dealer’s originating Product returns location within ninety (90) days of
Vendor’s determination and the shipment cartons will reference the original
return shipment’s Return Authorization number or Return Goods Memo
number.
7.4 Additional
Return Rights. Additional or different return
rights may be specified in a Vendor Program Agreement (e.g., stock-balancing,
defective allowances) as further described in Section 10. If the
parties agree to a defective allowance, such allowance will replace Dealer's
right to return Defective Products as provided herein, except that if the actual
defective rate for a particular Product exceeds the applicable allowance, Dealer
may either adjust the allowance accordingly or return the excess Defective
Product to Vendor for full credit or refund. A defective allowance
will have no effect upon Dealer's return rights as otherwise provided in this
Agreement.
7.5 Warranty
Returns; Appointment of Authorized Return Center. Vendor appoints Dealer as an
“Authorized Return Center” for the return by end-users of those Products under a
manufacturer’s warranty. Except as may otherwise be agreed in a
comprehensive Product Service Agreement, which will be an addendum hereto as
further described in Section 11, Dealer will (a) receive the in-warranty Product
from the end-user, (b) provide the end-user with an in-store credit (“In-Store
Credit”), and (c) send the end-user’s defective Product to Vendor after
receiving Vendor’s return authorization, if required. The appointment of Dealer
as an Authorized Return Center is non-exclusive and will include all present and
future Dealer locations which Dealer designates to accept the Product
returns. This appointment of Dealer as an Authorized Return Center
will survive the expiration or termination of this Agreement to the extent
necessary to satisfy end-user warranty requests.
8. Discontinued
Product
A
“Discontinued Product” means any Product that Vendor has stopped manufacturing
or any Product that undergoes a change in appearance or
packaging. Vendor agrees to provide Dealer with at least ninety (90)
days advance written notice of the occurrence of a Discontinued Product, or as
soon as possible in the event that the discontinuance is caused by actions taken
by a component part supplier of Vendor. Upon notice of such
Discontinued Product, Dealer may, without penalty or liability, cancel any
outstanding purchase orders pertaining to the Discontinued
Product. With respect to Dealer’s existing inventory of Discontinued
Product, Dealer may, in its sole discretion, either return such Discontinued
Product at any time to Vendor for full credit or refund, or Vendor and Dealer
will negotiate a cost markdown of such existing inventory.
9. Vendor
Performance and Operations Standards
Other
terms that are relevant to doing business with a particular operating division
of Dealer or Affiliate may be found in the Vendor Performance and Operations
Standards, which is a part of this Agreement and incorporated herein by
reference. The Vendor Performance and Operations
Standards may be accessed at Dealer’s Vendor Extranet web site, xxx.xxxxxxxxxxxxxxxxx.xxx The
Vendor Performance and
Operations Standards includes but is not limited to information
concerning Electronic Data Interchange (EDI), Shipping and Routing Guides and
the Shipping Performance Management Program, all of which may be updated from
time to time by Dealer upon notice to Vendor.
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10. Vendor
Program Agreement
Dealer
and Vendor may agree upon certain business terms from time to time concerning
matters such as Products, pricing, market development/cooperative
advertising/merchandising funds, invoice credit terms, stock rotation, volume
rebates, new store allowances, and the like. Such terms will be
contained in one or more Vendor Program Agreements, which will be considered an
addendum hereto, as amended from time to time by the parties. In the
event of conflict between business terms of any Vendor Program Agreement and
this Agreement, the business terms contained in such Vendor Program Agreement
will control.
11. Product
Service and Warranty Repairs
Dealer is
committed to meeting its customers’ high expectations concerning post-sale
service and warranty repairs. A comprehensive Product Service Agreement between
the parties may be necessary to ensure customer satisfaction. If
applicable, the attached Product Service Agreement controls the servicing and
warranty repairs of the Products and will be executed by both parties prior to
or simultaneous with the execution of this Agreement.
12. Trademarks;
Vendor-Provided Content
12.1 Trademark
Use. Vendor grants
Dealer a license to use, exhibit, excerpt, reproduce, publish, publicly perform
and transmit via the Internet and otherwise use all trade names, trademarks, and
service marks associated with the Products to promote and sell the Products.
This Agreement does not grant Vendor any right or license to use Dealer’s trade
names, trademarks or service marks, promotional material, copy, graphics,
themes, strategies, inventions, program, and files without first obtaining
Dealer’s express written approval.
12.2 Vendor
Content. Vendor may
provide to Dealer, without limitation, Product specifications, images, and other
textual, graphical and/ or multimedia content regarding the Products for use in
preparing advertising and promotional material (“Vendor
Content”). Vendor hereby grants Dealer a license to use, exhibit,
excerpt, reformat, modify, reproduce, publish, publicly perform and transmit via
the Internet and otherwise use such Vendor Content for the purpose of
advertising and promoting the Products.
12.3 Use
After Termination. Upon termination of this
Agreement, Dealer may continue to advertise and promote the Products, using the
Vendor’s trade names, trademarks, service marks and Vendor Content until
inventory depletion.
13. Confidentiality
This
Agreement and any information marked as confidential or, regardless of form
(written/electronic/oral) or marking, is of the nature that a reasonable person
would understand its owner would not want it disclosed to the public will be
considered to be Confidential Information. Further, Confidential
Information will also include (a) any document or data transaction between the
parties; (b) matters of a technical nature such as trade secret processes or
devices, know-how, data, formulas, inventions (whether or not patentable or
copyrighted), specifications and characteristics of products or services planned
or being developed, and research subjects, methods and results, (c) matters of a
business nature such as information about costs, profits, pricing, policies,
markets, sales, suppliers, customers (e.g., names and addresses), product plans,
and marketing concepts, plans or strategies, (d) matters relating to project
initiatives and designs, (e) matters of a human resources nature such
as employment policies and practices, personnel, including individual names,
addresses, and telephone numbers; compensation and employee benefits, (f) other
information of a similar nature not generally disclosed to the
public. Each party agrees not to disclose Confidential Information
except to employees, or a third party subject to a similar confidentiality
agreement, which have a need to know to perform their
responsibilities. Each party agrees to take at least the same
precautions to protect Confidential Information as such party would utilize to
ensure the protection, confidentiality and security of its own confidential
information. Each Party, at its own expense, will properly use security
procedures that are reasonably sufficient to ensure that all transmissions of
documents are authorized and to protect its business records and data from
improper access. Confidential Information will not include any
information which (a) is or becomes generally known or available through no act
or failure to act by the receiving party; (b) is already known by the receiving
party as evidenced by its written records; (c) is hereafter rightfully furnished
to the receiving party by a third party without restriction on disclosure; or
(d) is disclosed in response to a valid order by a court or other governmental
body, provided that the receiving party provides the disclosing party with prior
written notice of such disclosure as soon as reasonably possible in order to
permit the disclosing party to seek confidential treatment of such
information. Upon the expiration or earlier termination of this
Agreement, a party may, in writing, request either the prompt return or
destruction, and a written certification of such destruction, of any
Confidential Information provided to the other party. Each party
further acknowledges that monetary damages may not alone be a sufficient remedy
for unauthorized disclosure of Confidential Information and that the
non-disclosing party will be entitled to seek all remedies and damages available
in law and equity, including but not limited to such injunctive relief as may be
deemed proper by a court of competent jurisdiction.
14. Additional
Obligations of Vendor
14.1 Product
Materials. Vendor
will provide to Dealer, at no charge, adequate copies of any marketing and
technical information, service manuals, detailed Product specifications,
end-user warranties and other Product data and materials.
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14.2 Training. Vendor will assist with
the training of Dealer personnel on Dealer’s premises as reasonably necessary to
ensure that Dealer’s sales and service personnel will be adequately
knowledgeable with respect to the Products.
14.3 Product
Samples. If
requested, Vendor will deliver Product samples on a timely basis and at no cost
to Dealer.
14.4 Compliance
with Laws. Vendor
will notify Dealer within ten (10) days regarding the existence and nature of
Vendor’s knowledge of any possible material non-compliance with applicable laws,
or its notice of a claim from a consumer (which, individually or in the
aggregate, may reasonably be expected to result in material liability to Vendor
and/or Dealer) that a Product is defective or does not comply with all
applicable laws.
15. Representations
and Warranties
15.1 Vendor’s
Representations and Warranties. Vendor represents and warrants to
Dealer that (a) it has the authority to enter into this Agreement and to sell
the Products to Dealer, free and clear of all liens, charges, encumbrances, or
other restrictions, and that the persons signing this Agreement on behalf of
Vendor are authorized to sign; (b) the Products will be free from defects in
material and workmanship, and will be fit and safe for the use(s) normally and
reasonably intended; (c) the Products are of merchantable quality and will
perform in conformance with specifications and Vendor samples; (d) it will
provide a manufacturer’s warranty to end-users of the Products that is generally
consistent with or superior to industry standards; (e) it will comply with all
applicable federal, state, and local laws and regulations in performing its
obligations under this Agreement, including but not limited to laws and
regulations pertaining to product design, manufacture, packaging and labeling
and, if applicable, importation and the Foreign Corrupt Practices Act; and (f)
the Products are not produced, manufactured, assembled or packaged by the use of
forced labor, prison labor or forced or illegal child labor and that the
Products were not trans-shipped for the purpose of mislabeling, evading quota or
country of origin restrictions or for the purpose of avoiding compliance with
forced labor, prison labor or child labor laws.
15.2 Dealer’s
Representations and Warranties. Dealer represents and warrants to
Vendor that (a) it has the authority to enter into this Agreement, and that the
persons signing this Agreement on behalf of Dealer are authorized to sign; (b)
it will comply with all applicable federal, state, and local laws; and (c) it
will exert commercially reasonable efforts to promote and sell the Products
consistent with Dealer’s sales, marketing and merchandising plans, as may be
amended from time to time in Dealer’s sole and absolute discretion.
16. Term
and Termination
16.1 Term. This Agreement will be
effective for an initial term of one (1) year commencing on the Effective Date
hereof and will automatically renew for successive periods of one (1) year each
following the initial term of this Agreement unless either party gives the other
written notice to the contrary at least thirty (30) days prior to the scheduled
date of renewal or unless sooner terminated as provided herein.
16.2 Termination. Either party may
terminate this Agreement at any time without cause upon ninety (90) days written
notice to the other party. In the event a party is in material breach
of this Agreement, this Agreement may be terminated immediately by the
non-breaching party, provided that notice describing the breach has been
provided to the breaching party and the breaching party has failed to cure such
breach within thirty (30) days of its receipt thereof.
16.3 Events
on Termination.
(a) Without
Cause. Upon
expiration or the termination of this Agreement without cause, the parties will
agree to either (i) completion by Dealer of sell-through of the remaining
Product inventory; or (ii) return of the remaining Product inventory to Vendor,
for which Dealer will receive a refund, at cost, less one-half (1/2) of the
return freight expenses.
(b) For
Cause. Upon
termination of this Agreement for cause, the parties will agree to either (i)
completion by Dealer of sell-through of the remaining Product inventory; or (ii)
return of the remaining Product inventory to Vendor at the breaching party’s
expense, and Dealer will receive a refund at Dealer’s cost for all returned
Products.
17. Indemnification
Vendor
will indemnify, defend, and hold Dealer, its parent, affiliates, agents and
employees, harmless from and against any and all claims, actions, liabilities,
losses, costs and expenses arising from or in connection with (a) Vendor’s
breach of this Agreement, including but not limited to its representations and
warranties; (b) acts or omissions of Vendor relating to the Products which
includes, but is not limited to claims that the Products, or use thereof, caused
personal injury, death, or real or personal property damage; (c) a Product
recall, whether or not initiated by Vendor; (d) claims that the Products or any
Vendor Content infringe, misappropriate or injure a third party’s intellectual
property or proprietary rights; (e) false or misleading Product specifications
or other Vendor Content provided to Dealer to promote and sell the Products; and
(f) Vendor’s failure to promptly perform its obligations in connection with a
rebate offer. Dealer agrees to give Vendor prompt written notice of
any claims, to tender the defense to Vendor, and to grant Vendor the right to
control settlement and resolution. Vendor agrees to pay all costs of
liability, settlement and defense, including attorney fees and
costs.
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Accordingly,
Dealer will indemnify, defend, and hold Vendor, its parent, affiliates, agents
and employees, harmless from and against any and all claims, actions,
liabilities, losses, costs and expenses arising from or in connection with (a)
Dealer’s breach of this Agreement, including but not limited to its
representations and warranties. Vendor agrees to give Dealer prompt
written notice of any claims, to tender the defense to Dealer, and to grant
Dealer the right to control settlement and resolution. Dealer agrees
to pay all costs of liability, settlement and defense, including attorney fees
and costs.
18. Insurance
18.1 Comprehensive
/ Commercial General Liability. Vendor will procure and maintain
throughout the term of this Agreement a policy of comprehensive general or
commercial general liability insurance with a combined single limit of not less
than one million dollars ($1,000,000) for each occurrence.
18.2 Workers
Compensation; Automobile Liability. If Vendor’s agents will be
entering Dealer’s premises, Vendor will procure and maintain throughout the term
of this Agreement: (a) Workers Compensation insurance in an amount not less than
the statutory limits and (b) automobile liability insurance with a combined
single limit of not less than one million dollars ($1,000,000) for each
occurrence for personal injury, including death, and property
damage.
18.3 Umbrella
Coverage. Vendor
will procure and maintain throughout the term of this Agreement Umbrella
coverage of not less than five million dollars ($5,000,000).
18.4 Requirements.
Vendor will supply Dealer with a Certificate of Insurance with respect to each
of the foregoing policies, except Workers Compensation, that names BEST BUY CO.,
INC., ITS SUBSIDIARIES & AFFILIATES as an Additional Insured, and which also
provides that such insurance will not be canceled or changed unless at least
thirty (30) days prior written notice has been given to Dealer. The
insurance required hereunder will be issued by an insurance company or companies
authorized to do business in the United States. Vendor’s insurance
will be primary and required to respond to and pay claims prior to other
coverage.
19. Assignment
19.1 Assignment. This Agreement may not be
assigned by either party without first obtaining the other party’s express
written consent, which consent will not be unreasonably withheld; provided,
however, that Dealer may assign this Agreement, without obtaining Vendor’s
express written consent, to (a) a successor corporation resulting from a merger,
consolidation, or non-bankruptcy consolidation or to a purchaser of all or
substantially all of Dealer’s assets or a majority, or controlling interest in
Dealer’s voting stock, provided that the purchaser’s net worth at the time of
purchase is equal to or greater than that of Dealer, and further provided that
the purchaser is not a competitor of Vendor; and (b) a present or future
subsidiary or affiliate. Any attempted assignment in violation of
this Agreement will be null and void.
19.2 Assignment
of Accounts Receivable. If Vendor assigns payments to an
assignee/factor, Vendor understands and agrees that Vendor and the
assignee/factor will be required to sign Dealer’s standard acknowledgment form
to assure Dealer that the assignee/factor understands the rights and obligations
being assigned, including the right of Dealer to make offsets.
20. Audit
Rights; Claims
20.1 Audit
Rights. Upon
reasonable prior written notice and at reasonable times during regular business
hours, each party will have the right to audit the other party’s books and
records to assure compliance with the terms and conditions of this
Agreement. If the audit reveals that a party is not performing in
material compliance with the terms of this Agreement, then, in addition to any
other legal and equitable rights and remedies available, the party not in
compliance will reimburse the other for the reasonable costs of the
audit.
20.2 Claims. Except as otherwise
provided in this Agreement, claims by either party, however asserted, will be
commenced within two (2) years from the date the cause of action
accrues.
21.
Conflict of Interest and Code of Conduct Policies
Vendor
agrees to respect and abide by Dealer’s conflict of interest and code of conduct
policies, which are available at xxx.xxxxxxxxxxxxxxxxx.xxx and
may be amended from time to time by Dealer. Vendor should contact Dealer’s email
hotline at xxxxxx.xxxxxxxxx@xxxxxxx.xxx
for information concerning Dealer’s policies and to discuss any ethical or
conduct concerns that they may have as a result of their contact with Dealer
personnel. Vendor understands and acknowledges that Dealer’s conflict
of interest and code of conduct policies address Vendor-paid travel, gifts and
gratuities, offering and accepting bribes, family members and close personal
relationships involving employees of both parties, personal investments in the
other party, Vendor-sponsored charitable and other events, Vendor product
samples, Vendor promotional copies, direct personal purchases from Vendors by
Dealer employees, and awards, incentives and other spiffs from
vendors. Vendor agrees to avoid conflict of interest situations with
Dealer and to deal at arms length with Dealer. Dealer similarly
agrees to abide by Vendor’s policies concerning these subject
matters.
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22. Force
Majeure
Neither
party will be in breach of this Agreement solely due to causes beyond the
control and without the fault or negligence of such party. Such
causes may include, but are not restricted to, acts of God or of a public enemy,
acts of the government in either its sovereign or contractual capacity, fires,
floods, epidemics, quarantine restrictions, strikes, freight embargoes, power
failure, or failure of the U.S. postal system, but in every case the failure to
perform will be beyond the control and without fault or negligence of the party
failing to perform. Each party will inform the other of any Force Majeure event
within five (5) business days of its occurrence.
23. Notices
All
notices, requests, demands and other communications that are required or may be
given under this Agreement will be in writing and will be deemed to have been
duly given if hand-delivered or mailed by either registered or certified mail,
return receipt requested, or by a nationally recognized overnight courier
service, receipt confirmed. In the case of notices via first-class
mail or courier service, notices will be deemed effective upon the date of
receipt. Notices will be addressed to the parties as set forth below,
unless either party notifies the other of a change of address, in which case the
latest noticed address will be used:
|
Notices To Vendor:
|
Notices To Dealer:
|
|
Garmin
USA, Inc
|
Best
Buy Purchasing LLC
|
|
0000
Xxxx 000xx
Xxxxxx
|
0000
Xxxx Xxxxxx Xxxxx
|
|
Xxxxxx,
XX 00000
|
Xxxxxxxxx,
XX 00000
|
|
Attn: Director
of Marketing
|
Attn:
Senior Vice President, Merchandising
|
|
Copy
to: National Sales Manager, Xxx Xxxxxxx
|
Copy
To: Senior Buyer, ___________________________
|
|
Copy
To: General Counsel, Legal Department
|
Copy
To: General Counsel, Legal Department
Copy
To: Manager, Vendor
Relations
|
24. General
24.1 Relationship
of the Parties. The
relationship between the parties will be that of independent
contractor. Nothing herein will be construed as creating or
constituting the relationship of employer/employee, franchiser/franchisee,
principal/agent, partnership, or joint venture between the parties.
24.2 Governing
Law; Jurisdiction. This Agreement will be governed
by and interpreted under the laws of the State of Minnesota. Vendor
and Dealer expressly consent and submit to the exclusive jurisdiction of the
state and federal district courts located in Minneapolis,
Minnesota.
24.3 Enforceability. If any provision of this
Agreement is held to be unenforceable by a court of competent jurisdiction, such
provision will be more narrowly and equitably construed so that it becomes legal
and enforceable, and the entire Agreement will not fail on account thereof and
the balance of the Agreement will continue in full force and
effect.
24.4 No
Waiver. Any of the
provisions of this Agreement may be waived by the party entitled to the benefit
thereof. Neither party will be deemed, by any act or omission, to
have waived any of its right or remedies hereunder unless such waiver is in
writing and signed by the waiving party, and then only to the extent
specifically set forth in such writing. A waiver with reference to
one event will not be construed as continuing or as a bar to or waiver of any
other right or remedy, or as to a subsequent event.
24.5 Counterparts
and Electronics Signature. This Agreement may be executed in
one or more counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument. This
Agreement may be executed by facsimile or other “electronic signature” (as
defined in the Electronic Signatures in Global and National Commerce Act of
2000) in a manner agreed upon by the parties hereto.
24.6 Entire
Agreement; Amendments. This Agreement, including any
addenda or exhibits attached hereto, contains the entire Agreement between the
parties with respect to the subject matter hereof, supersedes all prior
agreements, negotiations and oral understandings, if any, and may not be
amended, supplemented, or modified in any way, except by an amendment in writing
and signed by authorized representatives of the parties hereto. No
amendment will be effected by the acknowledgement or acceptance of a purchase
order, invoice, or other forms stipulating additional or different
terms. This Agreement will inure to the benefit of and be binding
upon each of the parties and their respective successors, assigns, heirs,
executors, administrators, trustees and legal representatives.
24.7 Reservation
of Rights. Duties
and obligations imposed by this Agreement and rights and remedies available
hereunder will be in addition to and not a limitation of duties, obligations,
rights and remedies otherwise imposed or available by law except as otherwise
provided herein. In particular, the rights and remedies available to
Dealer under the Uniform Commercial Code are specifically incorporated
herein. When Dealer has exercised the right to reject a nonconforming
shipment or elected to return Product to Vendor as provided herein, Vendor will
not have the right to cure improper tender which might otherwise be available
under law.
Page 7 of
9
24.8 Headings. Headings used in this
Agreement are for the purposes of convenience only and will not affect the legal
interpretation of this Agreement.
24.9 Draftsmanship. Each of the parties
hereto has been represented by its own counsel. In the event of a
dispute, no provision of this Agreement will be construed in favor of one party
and against the other by reason of the draftsmanship of this
Agreement.
24.10 Survival. The expiration or
termination of this Agreement will not terminate vested rights of either party
from any liabilities or obligations incurred under this Agreement prior to or
which by their nature are intended to survive expiration or termination,
including but not limited to provisions relating to confidentiality,
indemnification, returns, and proprietary rights.
Page 8 of
9
Addenda
(check if applicable)
Each
checked Addendum is hereby incorporated into and made a part of this
Agreement:
|
x
|
Vendor
Program Agreement
|
o |
Configure to Order Agreement
|
| o | Product Service Agreement | o | Consignment Agreement |
| x | Certificate of Insurance | o | Collaborative Transportation Agreement |
| x |
Vendor Performance and Operations Standards
(available at xxx.xxxxxxxxxxxxxxxxx.xxx)
|
o | Direct Import Addendum |
IN
WITNESS WHEREOF, this Agreement is made effective as of the date first written
above.
|
BEST BUY PURCHASING
LLC
(on
behalf of its Affiliates)
|
GARMIN USA, Inc: | ||||
| Authorized Officer: |
/s/
Xxxx Xxxxxx
|
Authorized Officer: |
/s/
Xxxx X. Xxxxxx
|
||
|
(Signature)
|
(Signature)
|
||||
| Name: |
Xxxx
Xxxxxx
|
Name: |
Xxxx
X. Xxxxxx
|
||
|
(Please
Print)
|
(Please
Print)
|
||||
|
|
|||||
| Title: | V.P. Finance | Title: | Director of Marketing | ||
| Date: | March 1, 2004 | Date: | February 14, 2004 |
Page 9 of
9
