(Version September 1, 2014)
The following Standard Terms and Conditions, as amended from time to time, are a supplement to the Master US Customer Agreement (the "Agreement") and shall apply to all sales of Products, as defined in the Agreement, to Customer. These Standard Terms and Conditions can be found at www.voxxdealers.com.
a. Customer shall make every effort to promote and sell Products in a manner that is consistent with the high quality image of Products. Customer shall utilize promotional materials that are made available by VOXX in Customer's promotional and sales efforts. Customer's promotional and sales efforts relative to Products shall be at least equivalent to that afforded to competing products.
b. Customer shall conduct its operations in such a manner as to promote good relations with end users. Customer shall make no false, misleading or disparaging representations, including advertisements, to any consumer or any other person concerning Products. Customer agrees not to engage in "bait and switch" or any other unfair trade practices with respect to Products.
c. Customer shall conduct its business at all times in strict compliance with all applicable federal, state and local laws and regulations.
d. Customer shall respond promptly to end-user inquiries and complaints concerning Products and shall relay to VOXX adequate information and documentation so that any end user will be accorded his or her full warranty rights. Customer agrees to make no warranties or representations to end users or to the trade with respect to Products except such as may be approved in writing by VOXX.
e. Customer shall not perform or attempt to perform warranty repairs to Products without the advance written authorization of VOXX. If Customer has not been authorized to perform warranty repairs, Customer shall comply with VOXX's procedures in effect from time to time concerning disposition of any products as may be returned to Customer for warranty repairs. If Customer is authorized by VOXX to perform warranty repairs on VOXX's behalf, Customer shall comply with VOXX's warranty procedures in effect from time to time, including, but not limited to, procedures regarding warranty validation and submission of claims for warranty service compensation.
f. Customer shall keep such records with regard to its sales of Products as are required by any applicable federal, state or local laws or regulations. Regardless of any such laws or regulations, Customer shall maintain Product sell-through data, which Customer shall make available to VOXX upon VOXX's request. This sell-through data shall not contain any end user information whatsoever and Customer agrees to indemnify and hold harmless VOXX if any such information is released to VOXX.
g. Customer shall comply with all policies set forth in Section 4.
a. Customer agrees to maintain one or more retail stores for the sale of Products to end users. This is to be done through a sales program and in a sales environment that displays and promotes the unique technical aspects as well as the high quality image established by VOXX for its products.
b. Because Products are differentiated in the marketplace based upon their uniqueness and technical performance, it is essential that Products be displayed, demonstrated and presented in an environment in which the unique and technical aspects can be fully explained and actively demonstrated in a sales presentation. Customer shall maintain adequate floor space as specified by VOXX in order to properly display and demonstrate Products.
c. Each of Customer's sales personnel shall be conversant with consumer loudspeaker and electronic products in general and shall be thoroughly familiar with Products sold by Customer. Customer shall conduct any necessary training of its personnel and shall require its personnel to study any promotional materials, sales literature, specification sheets, and any other relevant materials issued by VOXX to Customer.
a. Internet Sales Policy. Customer shall not sell or solicit orders of Products via telephone, mail order or the internet without first entering into a separate agreement with VOXX for such sales. Notwithstanding anything in the Agreement, Customer may promote the Products on the internet such that it is clear to potential end users that the Products may only be purchased from the Customer at its Authorized Locations, as defined in the Agreement. Any display of or reference to Products on the Customer's website may be subject to the prior written approval of VOXX in its sole discretion.
b. Transshipping and Unauthorized Sales Policy. Customer shall not transship Products outside of the Territory, as defined in the Agreement, or sell Products to any person or entity Customer knows or has reason to believe is purchasing Products for the purposes of further resale, transshipment, distribution, transfer, export, sale or lease. If Products shipped to Customer are located or identified by VOXX as available for resale by any unauthorized source, such location or identification by VOXX shall be presumptive evidence of a material breach of the Agreement.
c. UPP Policy. VOXX has a Unilateral Price Policy ("UPP") that is subject to change by VOXX in its sole discretion. It is Customer's responsibility to periodically check the VOXX dealer website, www.voxxdealer.com, for the latest version of the UPP and any updates to or suspensions of the policy, as VOXX will not send out UPP notices independent of this website. Customer represents and warrants that it has read, understands, and will comply with the UPP, and that failure to comply is a material breach of the Agreement. The UPP applies to advertised prices only, and does not apply to actual resale prices.
d. Serial Number Policy. Customer shall not remove or deface the serial numbers of Products, and further, shall not otherwise deface or alter Products or Product packaging.
a. VOXX shall provide to Customer promotional materials, sales literature, and other specification sheets.
b. VOXX, through its sales representatives, shall provide training to Customer and its personnel to increase Customer's knowledge with respect to Products.
c. VOXX shall maintain such promotional programs it believes will enhance the sale of Products.
d. VOXX may change the design, models, and features of the Products or their parts, or discontinue any products, without notice to Customer and without incurring any liability whatsoever to the Customer. In addition, VOXX may at any time change consumer warranty or service policies without incurring any liability to Customer.
e. VOXX shall honor all warranty claims made in accordance with the warranty card provided in the Product carton.
f. VOXX hereby grants Customer a royalty-free, non-exclusive, limited right and license to use VOXX trademarks, trade names, copyrighted materials, and other promotional and advertising material (known collectively as "VOXX Marks") for the sole purpose of advertising and promoting the sale of Products, subject to VOXX's branding guidelines available at http://www.voxxintl.com/branding. VOXX Marks may not be used in any unlawful manner or in any manner that would lessen the value of VOXX Marks. To be clear, Customer shall have no right to file trademark, copyright, trade dress, or domain name applications containing any VOXX Marks. If Customer does make such application, it shall be for VOXX's benefit and immediately transferred to VOXX. All proprietary rights and goodwill in VOXX Marks shall inure to the benefit of VOXX and not Customer. Customer does not own any interest in VOXX Marks and Customer's right to use VOXX Marks shall terminate immediately upon termination of the Agreement. Customer shall notify VOXX immediately if Customer learns of any infringement, potential infringement or unauthorized use of the VOXX Marks by a third party.
a. Customer shall provide to VOXX, at its request, current and accurate information pertaining to Customer's financial condition. Customer represents and warrants to VOXX that it is in a good and substantial financial condition and is able to pay all bills when due. This warranty is continuing and shall apply with full force and effect throughout the term of the Agreement.
b. All orders from Customer are subject to acceptance by VOXX. VOXX shall have the right, for any reason whatsoever, to reject any order, in whole or in part.
c. Products shall be sold to Customer at prices and terms established by VOXX and in effect at the time of acceptance of each of Customer's orders. VOXX shall provide to Customer, from time to time, a price list setting forth VOXX's prices to Customer (the "Price List"), which shall become a part of the Agreement. VOXX shall have the right to modify the Price List to Customer at any time without notice in its sole discretion. VOXX will issue a new Price List to Customer when prices are modified. When a new Price List is issued by VOXX, it shall automatically become a part of the Agreement and shall supersede all prior Price Lists on and after its effective date.
d. ANY TERMS, CONDITIONS OR PROVISIONS SET FORTH IN CUSTOMER'S PURCHASE ORDERS OR OTHER BUSINESS FORMS THAT ARE DIFFERENT OR IN ADDITION TO THE TERMS, CONDITIONS OR PROVISIONS OF THIS AGREEMENT, ANY DOCUMENT INCORPORATED HEREIN, THE PRICE LIST, OR ANY SEPARATE SECURITY AGREEMENT OR GUARANTY AS MAY BE EXECUTED BY THE PARTIES, SHALL BE DEEMED OBJECTED TO BY VOXX AND SHALL BE OF NO FORCE OR EFFECT WHATSOEVER UNDER ANY CIRCUMSTANCES, NOTWITHSTANDING ANY FAILURE BY VOXX TO COMMUNICATE FURTHER OBJECTIONS THERETO.
e. VOXX shall attempt to fill all orders within a reasonable period of time. In the event that VOXX is unable to fill all orders in their entirety, VOXX shall have the right to apportion the available products among any or all of its customers and distributors in such manner and make delivery at such times as VOXX may deem appropriate.
f. Prices of the Products do not include taxes of any nature. Customer shall pay such taxes in full when invoiced by VOXX or shall supply tax exemption certificates acceptable to appropriate taxing authorities.
g. All deliveries of Products and parts shall be FOB Origin (VOXX's factory or warehouse) INCOTERMS 2000, unless otherwise specified in the bill of lading accompanying a Product shipment. It is agreed that beneficial ownership of and risk of loss or damage to all merchandise shipped under the Agreement shall remain in VOXX until it is delivered to the carrier for shipment. Thereafter, the beneficial ownership of and risk of loss or damage to all merchandise shall remain and stay with Customer.
h. VOXX shall have the right to establish credit limits and financial requirements for Customer, which VOXX may alter from time to time in its sole discretion. VOXX may, at any time, require cash in advance of the shipping of any order.
i. Customer shall pay all invoices when due. Customer shall pay interest to VOXX on all invoices not paid when due at the lesser of (i) 1.5% per month, or (ii) the highest amount permitted by applicable law until paid in full. Customer shall not take deductions from sums otherwise payable to VOXX, unless a credit memorandum has been issued by VOXX to Customer. If Customer becomes delinquent in payment of invoices or other financial requirements established by VOXX or, if in the opinion of VOXX, Customer's credit becomes impaired, VOXX may take such actions as it may deem necessary to protect its financial position, including, but not limited to the following:
i. VOXX may refuse to accept any new orders, may cancel or delay shipment of any orders accepted previously or may stop any shipment in transit;
ii. VOXX may refuse to extend further credit and may require advance payment; and
iii. VOXX may declare all outstanding amounts immediately due and payable, notwithstanding any credit terms previously extended.
j. No payment to VOXX of any lesser amount than that due to VOXX shall be deemed to be other than a payment on account, and no endorsement or statement on any payment instrument or in any letter or other writing accompanying any partial payment shall create an accord and satisfaction. VOXX may accept any payment without prejudice to its right to recover any remaining balance. Customer relinquishes any right to set off.
k. In the event that VOXX institutes litigation or takes other measures to collect sums owed by Customer, VOXX shall be entitled to an award of reasonable attorney's fees and other costs incurred by VOXX in connection with the litigation and collection efforts.
l. Customer shall not return any products delivered to Customer without the prior written consent of VOXX. All returns are subject to a 15% restocking fee and Customer shall pay all return freight charges.
Customer shall provide, at its own expense, minimum insurance coverage consisting of Commercial General Liability Insurance with minimum limits of $1,000,000 general aggregate/$500,000 occurrence to cover all loss and liability for damages on account of bodily injury, including death resulting therefrom, and injury to or destruction of property caused by or arising from any and all operations of Customer ("Insurance Policy"). Insurance Policy shall include premises and operations, products, completed operations, and blanket contractual liability. Insurance Policy shall be endorsed to include VOXX and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively "VOXX Indemnified Parties") as additional insured. Insurance Policy shall provide VOXX with at least 30 days prior notice of non-renewal, cancellation, reduction in limits, or any material change. Insurance Policy should be written with insurance company(s) with a Best's rating of at least A- and should be licensed to do business in the state(s) where Company has its operations.
a. Customer agrees to and does hereby fully indemnify VOXX Indemnified Parties against any and all losses, damages, liabilities, claims, actions, judgments, settlements, fines, costs, or expenses of whatever kind, including attorneys' fees, arising out of or relating to any claim asserted by any third party against a VOXX Indemnified Party (i) relating to a breach of the Agreement by Customer; (ii) negligent act(s) or omissions(s) of Customer, its employees or agents; or (iii) alleging or relating to any bodily injury, death of any person, or damage to real or tangible personal property caused by the acts or omissions of Customer, its employees or agents.
b. VOXX EXTENDS LIMITED EXPRESS WARRANTIES SOLELY TO END USERS OF THE PRODUCTS AS SPECIFIED IN THE WARRANTY CARDS INCLUDED IN-CARTON WITH PRODUCTS; THESE LIMITED EXPRESS WARRANTIES ARE NOT EXTENDED TO CUSTOMER. VOXX MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND TO CUSTOMER WITH RESPECT TO THE PRODUCTS. ALL IMPLIED WARRANTIES, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXCLUDED.
c. IN NO EVENT SHALL VOXX BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHERE SUCH EXCLUSION IS PERMITTED BY LAW, EVEN IF ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY OCCUR, FOR ANY CAUSE ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH) OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. IN NO EVENT SHALL VOXX'S AGGREGATE AND CUMULATIVE LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH) OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING FROM OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF PURCHASES MADE BY CUSTOMER FROM VOXX OF THE SPECIFIC PRODUCT OR PARTS IN QUESTION.
a. The Agreement and all documents incorporated by reference into the Agreement, including the current version of the Standard Terms and Conditions, shall be in force from the Effective Date as stated in the Agreement until terminated as provided in this Section 9 or superseded by a new agreement.
b. Either party may terminate the Agreement without cause at any time upon the giving of thirty (30) days prior written notice.
c. Either party shall have the right to terminate the Agreement "for cause" immediately upon the delivery of notice. For purposes of the Agreement, the term "for cause" shall include, but not be limited to, the following:
i. Breach of any provision of the Agreement;
ii. Failure to pay any indebtedness owed to VOXX when due;
iii. Any other action or omission by Customer which, in VOXX's sole judgment, adversely affects the interest of VOXX in promoting and marketing of its products, including but not limited to violating the policies set forth in Section 4 of these Standard Terms and Conditions;
iv. Either party making a material false representation, report or claim in connection with the business relationship of the parties, or engaging in fraud or criminal misconduct;
v. Customer attempting to assign the Agreement, except as permitted by the Agreement, or if there is any change in control of Customer's business or any material change in the management of such business;
vi. Customer failing to purchase Products during any consecutive 120-day time period; or
vii. Insolvency, liquidation, or termination of business by either party; or the adjudication of bankruptcy of, or the appointment of a receiver for a party; or the invocation of any law for the relief of debtors by a party; or the filing by others against it of any similar proceeding.
d. VOXX shall not be liable to Customer because of the termination of the Agreement, regardless of the circumstances of termination, for compensation, reimbursement or damages of any kind, including damages because of lost or prospective profits or because of expenditures, investments, leases, or any other types of commitment made by Customer in connection with its business.
e. Upon termination of the Agreement by either party:
i. VOXX may, in its sole discretion, reject all or part of any Product orders placed by the Customer, and delay shipment of, or cancel any unshipped orders from Customer. Customer waives any claim for compensation in connection with such rejection and cancellation. VOXX may, in its sole discretion, permit Customer to place final orders sufficient to satisfy Customer's outstanding sales commitments made by Customer prior to termination, provided that Customer is current in its financial obligations to VOXX and that such final orders are paid in advance of shipping.
ii. All amounts owed to VOXX shall become due and payable, even if longer terms had been previously provided.
iii. Customer shall immediately cease representing to the public in any manner that it is an authorized reseller and/or installer of VOXX Products and shall cease all usage of VOXX Marks, including but not limited to, on any and all websites, advertisements, or signs that designate Customer as an authorized reseller and/or installer of VOXX Products, or that include a VOXX Mark. Customer shall notify and instruct all publications and others that may list or publish Customer's name as an authorized reseller and/or installer of VOXX Products (including telephone directories, Yellow Pages, and other business directories) to discontinue such listings.
iv. VOXX shall have the option to repurchase, but shall not be obligated to repurchase, any or all of new, undamaged, unopened and current Products owned by Customer as of the effective date of termination. Repurchase shall be at the net invoice prices at which such products were originally purchased by Customer from VOXX, less any discounts and allowances which VOXX may have been given to Customer for such products and reasonable costs for handling and processing. Within ten (10) days following the effective date of termination of the Agreement, Customer shall submit to VOXX a list of all new, undamaged, unopened and current Products owned by Customer as of the effective date of termination. VOXX shall notify Customer within thirty (30) days of receipt of said product list should VOXX, in its sole discretion, choose to exercise said repurchase option.
a. VOXX and Customer agree that their relationship is that of buyer and seller only, and Customer shall be considered an independent contractor at all times with respect to its relationship with VOXX. The Agreement shall not create a relationship as employer and employee, franchiser and franchisee, master and servant, principal and agent, partnership, or joint venture between VOXX and Customer. Under no conditions shall Customer, its agents or employees be considered the general agent of VOXX. Neither Customer, nor its agents or employees shall represent themselves directly or by implication as an agent of VOXX, except as previously authorized in writing by VOXX.
b. The Customer is appointed as an authorized VOXX customer because of VOXX's confidence in Customer, which is personal in nature. VOXX relies upon the continued active participation of certain individuals in the operations of Customer. Customer may not assign, transfer or sell its rights under the Agreement (or delegate its obligations hereunder) without the prior written consent of VOXX. Customer shall give written notice to VOXX, together with all necessary information, no less than thirty (30) days prior to affecting such transfer, but such notice shall not obligate VOXX to continue to deal with Customer or to deal with any transferee. For purposes of the Agreement, any change in ownership or active management shall be deemed a transfer that requires the prior consent of VOXX.
c. The parties shall take all reasonable steps to ensure that all Confidential Information (as defined below) of a party acquired by virtue of the Agreement shall not be disclosed or made use of by the non-disclosing party for any purposes other than those of the Agreement. Confidential Information means any and all technical data, information, materials and other know-how presently owned by or developed by either party during the term of the Agreement which relate to Products, their manufacture, promotion, marketing, advertising, pricing or use ("Confidential Information"). Confidential Information shall not include any information that (a) is lawfully in the possession of the receiving party prior to receipt from the disclosing party, (b) that is or becomes generally available to the public through no fault of or action by the receiving party, (c) is or becomes available to the receiving party on a non-confidential basis from a source, other than the disclosing party, and such source is not prohibited from disclosing such information by any contractual, legal or fiduciary obligation to the disclosing party, or (d) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information. Upon a disclosing party's request at any time during the term of the Agreement or after termination, the other party shall return to the disclosing party all Confidential Information furnished hereunder and shall not retain in its possession any copies of such Confidential Information unless required by law. This subsection shall survive the termination of the Agreement and shall remain in full force and effect. If a party breaches or threatens or attempts to breach this subsection, the other party shall be entitled to seek injunctive relief, damages and to recover from the breaching party its costs and expenses, including attorneys' fees, incurred in the enforcement of any such provision. In the event the receiving party is required as a matter of law to disclose Confidential Information, including by court or administrative order, it is agreed that it will immediately notify the disclosing party of such requirement. The receiving party agrees to cooperate in good faith in the disclosing party's efforts to obtain a protective order or other relief, protection, or other reasonable assurance that confidential treatment will be afforded the Confidential Information. If, after notice to the disclosing party and in the absence of a protective order, the receiving party is nonetheless compelled as a matter of law to disclose the Confidential Information, it will do so without liability hereunder; provided, however, that it may disclose to the party compelling disclosure only that part of the Confidential Information as it is required by law to disclose.
d. The Agreement shall be governed by and construed in accordance with the laws of the State of New York. Customer acknowledges that execution of the Agreement and the placement of orders for products hereunder constitutes the transacting of business in the State of New York. The Agreement shall for all purposes be governed by and construed in accordance with the laws of the State of New York. Any dispute, controversy or claim arising out of or relating to the Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, but specifically excluding any claims by or against third parties, (known collectively as "Claims") will be referred to and finally determined by arbitration in accordance with the JAMS Arbitration Rules. The tribunal will consist of a sole arbitrator. The place of arbitration will be New York, NY, U.S.A. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. In any arbitration arising out of or related to the Agreement, the arbitrator(s) are not empowered to award any damages limited or excluded herein, except where permitted by statute, and the parties waive any right to recover any such damages. The parties shall bear their own legal fees, costs and expenses in arbitration; provided, however, the arbitral panel in any arbitration may award legal fees. Nothing in this Section shall preclude either party from seeking interim or provisional relief concerning any Claims, including a temporary restraining order, a preliminary injunction, or an order of attachment, at any time prior to or during arbitration. Any such interim or provisional relief must be brought in the courts located in Suffolk County, State of New York. Each party irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding and waives any objection it may now or hereafter have to venue or to convenience of forum.
e. Notices given with respect to the terms of the Agreement shall be in writing and shall be served personally, by certified or registered mail, or by a nationally-recognized overnight courier. Said notices shall be addressed to Customer at the address set forth in the Agreement and to VOXX, addressed Voxx Electronics Corp., 150 Marcus Blvd., Hauppauge, New York 11788, Attention: Legal Department. The addresses for such notice may be changed from time to time by written notice.
f. Either party shall be excused from any failure or delay in performance (with the exception of any failure or delay by Customer in making payments to VOXX) resulting directly or indirectly from product shortages, inability to obtain raw materials from usual sources of supply, transit failure or delay, labor disputes, government orders or restrictions, fire, flood or other acts of nature, accident, war, civil disturbances, or any other cause(s) beyond such party's reasonable control.
g. The waiver by either party of any breach of the Agreement by the other party in a particular instance shall not operate as a waiver of subsequent breaches of the same or different kind. The failure of either party to exercise any rights under the Agreement in the particular instance shall not operate as a waiver of said party's right to exercise the same or different rights in subsequent instances.
h. In the event that any of the provisions of the Agreement or the applications of any such provisions to the parties hereto with respect to their obligations hereunder shall be held by a court of competent jurisdiction to be unlawful, invalid, void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.