VENDOR AGREEMENT
Exhibit
10.19
Effective
Date: February 27,
2004
This
Vendor Agreement (“Agreement”) is between:
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.
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.
4.1 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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4.4 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.
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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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.
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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.
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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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.
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.
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.
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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.
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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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.
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:
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Notices To Dealer:
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Garmin
USA, Inc
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Best
Buy Purchasing LLC
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0000
Xxxx 000xx
Xxxxxx
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0000
Xxxx Xxxxxx Xxxxx
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Xxxxxx,
XX 00000
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Xxxxxxxxx,
XX 00000
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Attn: Director
of Marketing
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Attn:
Senior Vice President, Merchandising
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Copy
to: National Sales Manager, Xxx Xxxxxxx
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Copy
To: Senior Buyer, ___________________________
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Copy
To: General Counsel, Legal Department
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Copy
To: General Counsel, Legal Department
Copy
To: Manager, Vendor
Relations
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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.
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Addenda
(check if applicable)
Each
checked Addendum is hereby incorporated into and made a part of this
Agreement:
x
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Vendor
Program Agreement
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o |
Configure to Order Agreement
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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)
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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)
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GARMIN USA, Inc: | ||||
Authorized Officer: |
/s/
Xxxx Xxxxxx
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Authorized Officer: |
/s/
Xxxx X. Xxxxxx
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(Signature)
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(Signature)
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Name: |
Xxxx
Xxxxxx
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Name: |
Xxxx
X. Xxxxxx
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(Please
Print)
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(Please
Print)
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Title: | V.P. Finance | Title: | Director of Marketing | ||
Date: | March 1, 2004 | Date: | February 14, 2004 |
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