1. Seller agrees, subject to availability from Seller or its participating authorized supply points, to sell to Buyer, subject to Seller's standard warranty, and Buyer agrees to buy, the following items of Seller merchandise and services under terms and conditions set forth herein: automobile and truck tires and related mechanical services. Seller's standard warranty is in lieu of all other warranties, including any warranty of merchantability or fitness for a particular purpose.
2. The items covered by this Agreement may be delivered to the Buyer (or authorized representative) by any authorized Seller supply point upon presentation of identification and authority to buy satisfactory to Seller or such supply point. Purchases under this Agreement are for application to Buyer's owned or leased vehicles, or vehicles operated solely for use in the conduct of Buyer's business, and are not to be made available to employees for use on their personal vehicles.
3. Although Buyer and Buyer-Members (as defined below) are not obligated under this Agreement to make independent minimum purchases, in the event Buyer-Members do not collectively purchase at least $100,000 of Seller manufactured product and related mechanical services hereunder during any rolling 12-month period, Seller, at its option, may terminate this Agreement under conditions set forth in Section 12 below.
4. Members of Buyer approved by Seller are authorized to make purchases under this Agreement (“Buyer-Members”). All such purchases will be subject to the terms and conditions of, and applicable to Buyer under, this Agreement. Additionally, all Member purchases must be made in accordance with Buyer-Member purchase requirements, including, without limitation, purchases will be made by approved credit cards only. Approval by Seller requires, in part, that Members of Buyer complete a separate credit application and their own National Account Agreement.
5. If Buyer issues its own credit cards or other purchase authorization, to representatives of Buyer, its subsidiaries, its lessees and/or affiliates, Buyer agrees to pay for merchandise delivered in accordance with such authority to all such card holders in accordance with the terms and conditions of the billing therefor. It is Buyer's responsibility to remove such credit cards or other forms of purchase authorization from its representatives, its subsidiaries, its lessees and/or affiliates. Buyer understands that it is Buyer's responsibility to pay for all purchases made with such credit cards and/or authorizations whenever presented to an authorized Seller supply point.
6. All invoices hereunder will be delivered to Buyer at its address set forth above or other mutually agreed address for billings; provided that such invoices may, if and to the extent from time to time mutually agreed, be delivered by electronic data interchange or Internet transmission. Upon failure of Buyer to make any payments when due, Seller may, at its option, cancel this Agreement or defer additional shipments until overdue accounts have been paid. Seller may at its discretion, decline to make deliveries except by check or other payment method satisfactory to Seller.
7. As of Effective Date, the purchase prices that Buyer’s Members will be charged for the products and services hereunder shall be as set forth in Exhibit A attached hereto and incorporated herein by reference, as modified from time to time, as set forth in Exhibit A.
8. With respect to any purchase of merchandise or services under this Agreement, if any Federal, state or local tax, excluding any tax levied on Seller's income, is either (a) required by applicable law to be collected or (b) imposed in connection with the sale of merchandise or services hereunder, whether or not collection is required by law (the taxes described in clauses (a) and (b), including, without limitation, state or local gross receipts taxes that are similar in nature to sales taxes, or state or local waste tire taxes/fees, and federal excise taxes, collectively "Taxes", or individually "Tax"), then (i) Seller will bill such Tax as a separately stated item and (ii) Buyer will timely remit such Tax to Seller. If an exemption procedure is available and Buyer complies with such procedure and provides evidence of such compliance reasonably satisfactory to Seller and meeting the requirements of Seller's billing policies and applicable tax laws, and further provided that such certificate or permit is properly issued in the name of Buyer, then Seller will not, from and after the date on which it has received such evidence and confirmed its satisfaction therewith, bill or collect such Tax with respect to transactions in the jurisdiction to which the exemption relates during the effective period of the exemption; provided, however, that all relevant purchase orders must clearly indicate that the Buyer is tax exempt and the jurisdiction of the exemption, failing which the relevant Taxes will be billed and collected, and must be paid by Buyer.
9. Seller shall not be liable for any failure to perform, including, without limitation, any delay in delivery or failure to deliver, whether directly or indirectly, occasioned by acts of God, fire, flood, riot, insurrection, war, terrorism, epidemic, strike, labor trouble, interruption of transportation facilities, inability to obtain or produce materials or products, restrictions by any governmental authority, or other cause, similar or otherwise, beyond Seller's reasonable control. If Buyer is required to meet a minimum purchase requirement, but Seller is unable to provide products or similar products for Buyer’s purchase due to a cause within Seller’s reasonable control, Buyer may purchase products from another source until such inability is cured. Such exception shall not apply to a force majeure event or other cause beyond Seller’s reasonable control.
10. Any and all information provided by or on behalf of either party to the other under this Agreement, in any form, shall be referred to as "Confidential Information" hereunder and the receiving party agrees that it will not, except as required by applicable law, permit the duplication, use or disclosure of any such Confidential Information (other than use for purposes hereof and duplication or disclosure for or to its own employees, agents or representatives who must have such information in connection herewith or for the performance of their obligations to the receiving party). The party receiving Confidential Information shall be responsible for any unauthorized disclosure made by any of its employees, agents, or representatives; provided that the parties shall not be liable to one another for disclosures or use of Confidential Information of the other party by any employee of a party who makes such disclosure or engages in such use more than ten years after the employee terminates his or her employment with such party. Each party's obligation to protect the other party's Confidential Information as set forth above shall survive the termination of this Agreement for a period of five years. Notwithstanding the foregoing, for purposes of this Agreement, "Confidential Information" does not include information that: (a) is in the recipient's possession at the time the information was received; (b) is publicly available or which later becomes so available other than as a result of the recipient's action or inaction; (c) becomes known to the recipient from a third party who has the right to disclose such information without breach of an actual or implied obligation of trust or confidence to the discloser known to the receiving party; or (d) is independently developed by either party without use of the Confidential Information provided to the developing party hereunder. This Agreement grants no rights whatsoever to either party in all or any portion of the Confidential Information, patents, copyrights, trade secrets, trademarks, service marks, logos, other identifiers or other intellectual property rights of the other party whether created prior to, during or after the performance of this Agreement.
11. This Agreement may not be assigned by Buyer, in whole or in part, by operation of law or otherwise, without the prior written consent of Seller. This Agreement will be enforceable by, and ensure to the benefit of, the parties hereto and their permitted successors and assigns, no other person or entity shall have any right, benefit or remedy under or by reason hereof. Except as otherwise set forth herein, claims, demands and notices hereunder must be sent to the parties at their respective addresses set forth above. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, superseding any and all prior representations, discussions, agreements, understandings and obligations, oral or written, relating thereto. This Agreement may not be amended or varied except by an instrument in writing executed by the authorized representatives of both parties. Purchase orders do not modify the terms hereof. This Agreement shall be governed under and construed in accordance with the substantive laws of the state of Ohio without regard to conflicts of law principles or rules, and any dispute relating to the relationship created hereby shall be heard and determined in the state or federal courts in Summit County, Ohio. This Agreement does not create any relationship between the parties other than independent entities contracting for the sale of the merchandise and services described herein, and neither of the parties is, will be deemed to be, or will represent itself as, the agent or partner of the other. Authorized supply points of Seller other than Seller or its company owned stores are independent entities and not the agents, subcontractors, partners or representatives of Seller and Seller does not control or warrant the provision of services by such supply points. No waiver of any provision hereof shall be deemed to be a continuing waiver or a waiver of any other provision hereof. This Agreement may be executed in counterparts, and by the parties hereto in separate counterparts, each of which shall be deemed to be an original but all of which, taken together, shall constitute one and the same Agreement.
12. This Agreement shall become effective as of
(India Standard Time) and is subject to cancellation with or without cause upon fifteen (15) days prior written notice by either party to the other. Termination will apply to all shipments after the effective date of termination.
