test

DEFINITIONS.
As used in this Agreement, the following terms have the meanings ascribed to them below:

“Agreement” shall mean this distributor agreement and all schedules hereto, as may be amended, modified, replaced and supplemented, from time to time.
“Affiliate”, with respect to either the Distributor or the Supplier, means any other person or entity that directly or through one or more intermediaries controls, is controlled by, or is under common control with such Party at any time during the term of this Agreement.  For purposes of this definition, “control” and its cognates shall mean the ownership of (a) at least fifty percent (50%) of the outstanding voting securities of an entity, or (b) at least fifty percent (50%) of the decision-making authority of an entity.
“Contract Year” means any one-year period during the term of this Agreement beginning on the Effective Date or an anniversary thereof.
“Net Invoice Value” means the total invoice amount paid by the Distributor to the Supplier for the Products, less all trade discounts, if any, and all separate charges for taxes, transportation, insurance, special boxing or crating, installation charges, storage, special patterns, special test equipment and the like that are applicable to the Products.
“Products” means those tires manufactured and/or marketed by the Supplier and listed in Exhibit A hereto, as revised from time to time by the Supplier upon written notice to the Distributor.
“Standard Terms and Conditions” means the Supplier’s standard Terms and Conditions of Sale, as revised from time to time by the Supplier and duly notified in writing to the Distributor from time to time.  A copy of the Supplier’s Standard Terms and Conditions currently in effect is attached hereto as Exhibit B.
“Standard Warranty” means Supplier’s standard, printed Product warranty for consumer or commercial end-users, as applicable, that is in effect at the time of sale of any Product to the end-users.  A copy of the Standard Warranty for consumers that is currently in effect is attached hereto as Exhibit C-1.  A copy of the Standard Warranty for commercial end-users that is currently in effect is attached hereto as Exhibit C-2.
APPOINTMENT AND AUTHORITY OF THE DISTRIBUTOR.
Appointment.  Subject to the terms and conditions of this Agreement, the Supplier hereby appoints the Distributor as a non-exclusive distributor of the Products for the Territory (as defined below).  Distributor accepts said appointment and agrees to use its best efforts to maximize sales of the Products in the Territory. For the avoidance of doubt, the Supplier reserves the right to, without compensation of any kind owed to the Distributor, (a) make direct sales of the Products through any medium to end users in the Territory (which right shall include, without limitation, acquiring all or substantially all of the assets or equity interests of a distributorship and selling the Products through such distributorship in the Territory), (b) make direct sales of Products to original equipment manufacturers (“OEMs”) for incorporation into other goods to be sold in the Territory and/or (c) appoint one or more other distributors, dealers, and/or sales agents for Products in the Territory.
No Delegation of the Distributor’s Responsibilities.  The Distributor may not appoint any sub-distributors, sub-agents or other persons (collectively, “sub-distributors”) to perform its obligations under this Agreement, in whole or in part, without the prior written consent of the Supplier.  In the event the Supplier provides such consent, the Distributor agrees that it will obligate all of its sub-distributors to be bound by all of the terms, conditions and restrictions to which the Distributor is bound under this Agreement, and the Distributor agrees to cause all such sub-distributors to comply with such terms, conditions and restrictions.  Nothing contained in this Agreement, nor any consent granted pursuant to this Section 2.2, shall be construed to create any relationship whatsoever between Supplier and any sub-distributor, the Supplier shall have no obligation or liability to any such sub-distributors under this Agreement, and all of the Supplier’s obligations under this Agreement shall be only to the Distributor unless otherwise expressly set forth in this Agreement.
Distributor’s Independence.  Subject to the terms and conditions of this Agreement, the Distributor is authorized to sell any Products purchased from the Supplier in such manner, at such prices and upon such terms as the Distributor shall determine, in accordance with the terms of this Agreement.  The Distributor is an independent contractor, not an agent or employee of the Supplier. The Distributor is not authorized to assume or create any obligation or responsibility, including but not limited to obligations based on warranties or guarantees or other contractual obligations, on behalf or in the name of the Supplier.  The Distributor shall not misrepresent its status or authority or relationship with the Supplier to any third party. The Distributor shall take no action which would or might confer “permanent establishment” or any equivalent status (as defined in applicable law or tax treaty) on the Supplier anywhere in the Territory or anywhere else in the world, or otherwise subject the Supplier to taxation in any country.
DISTRIBUTOR OBLIGATIONS.
Resale.  The Distributor shall only resell the Products directly to dealers or end-users located within the country in which the Distributor has its principal business offices on the date of this Agreement as identified below Distributor’s signature to this Agreement (the “Territory”) and to no other country without the express written consent of the Supplier.
Floor Purchase Requirements.  TheDistributor agrees to purchase from the Supplier no less than a certain specified Net Invoice Value of Products for certain specified periods of time (the “Floor Purchase Requirements”).  The Floor Purchase Requirements for the first Contract Year are set forth in Exhibit D attached hereto.  The Distributor and the Supplier agree to negotiate in good faith the Floor Purchase Requirements to be applicable during each subsequent Contract Year.
Trademarks.  During the term of this Agreement, the Distributor is authorized to use Supplier’s trade name or any of Supplier’s trademarks relating to the Products (collectively, the “Trademarks”), but only for display purposes in connection with sales of Products in the Territory.  The Distributor shall not use the Trademarks as part of the Distributor’s trade or business name or in any other way which the Supplier considers misleading or objectionable.  The Trademarks are and shall remain the sole and exclusive property of the Supplier. The Distributor shall not remove or alter any copyright notices or any Trademarks from the Products or add any notices, marks or labels of any kind except as expressly permitted hereunder or authorized by the Supplier in writing in advance, except that the Distributor shall alter the label of the Products solely to the extent necessary to comply with law under Section 3.6.  The Distributor shall not grant or attempt to grant to any third party any right or license to use the Trademarks. The Distributor hereby specifically acknowledges and agrees that it does not have, nor will it claim to have, any proprietary rights in the Products. The sole right which is granted to the Distributor regarding the Products is to sell the Products under the terms and conditions of this Agreement. In the event the Distributor shall be deemed to have acquired any ownership rights in the Trademarks, the Distributor agrees to necessarily execute all documents reasonably requested by the Supplier to fully assign all such rights in the Trademarks to the Supplier, without any cost to the Supplier.
Confidential Information.  The Distributor shall not give, loan, exhibit, sell, transfer or disclose to any person or company any specifications, drawings, photographs, designs, price or customer lists, ideas or any other business or confidential information furnished by the Supplier to the Distributor at any time (collectively, the “Confidential Information”).  Further, the Distributor may only use the Confidential Information for purposes of performing its obligations under this Agreement.  Such Confidential Information shall be and remain the exclusive property of the Supplier. The terms of this Section 3.4 shall survive expiration or termination of this Agreement for a period of five (5) years immediately following such expiration or termination.  Notwithstanding anything in this Agreement to the contrary, each Party’s rights, duties and obligations, whether arising under this Agreement or at law, with respect to any Confidential Information that constitutes a ‘trade secret’ shall continue until such Confidential Information is no longer considered a trade secret under applicable law.  The Distributor shall bind in writing its employees, officers, sales, technical, maintenance and service representatives, and other third parties (if any) to whom Confidential Information is disclosed as permitted hereunder, to the terms and conditions contained herein.
Changes to Products.  The Supplier reserves the right to, in its sole discretion, change the design or specification or to discontinue the manufacture or sale of any or all of the Products at any time without prior notice to the Distributor.  If the Supplier changes the design or specification or discontinues the manufacture or sale of any of the Products, the Supplier shall have no obligation to make any such changes to design or specification in any Products previously ordered by or shipped to the Distributor or to fill any order for any discontinued Product submitted to the Supplier after the date of notice of such discontinuance.
Licenses; Compliance with Laws.  The Distributor shall obtain and maintain, in the name of the Supplier whenever possible, all licenses, permits and other governmental approvals necessary to permit the purchase of and payment for Products by the Distributor hereunder and to otherwise permit the Distributor’s performance hereunder.  The Distributor shall comply with any and all governmental laws and regulations which may be applicable to the Distributor by reason of its execution of this Agreement and its agreement to act as a distributor of Products in the Territory. By placing each order hereunder, the Distributor represents and warrants that it has obtained all requisite governmental approvals, licenses and permits to enable Distributor to comply with all of the provisions of this Agreement and that such approvals, licenses and permits remain in full force and effect.  The Distributor shall comply with all federal, state, provincial and territorial tire registration laws, including but not limited to the requirements of 49 U.S.C. Section 30117 (as amended from time to time) and any rules or regulations promulgated thereunder (including 49 Code of Federal Regulations Part 574), as such laws, rules or regulations may be amended from time to time. The Distributor shall adhere to all laws pertaining to proper disposal, scrapping, and recycling of Products. The Distributor shall, at its own expense, comply with the Supplier’s instructions in the event of a safety recall involving the Products.  The Distributor will ensure compliance with all applicable federal and provincial, marketing, packaging and labelling laws and regulations, including but not limited to the federal Consumer Packaging and Labelling Act, R.S.C., 1985, c. C-38, the Quebec Charter of the French Language, chapter C-11.
Forecasts.  The Distributor shall (at its expense) (a) within 10 (ten) calendar days after the first day of each month during the term of this Agreement, provide the Supplier with an updated rolling three (3) month sales forecast, by Product, which shall include shipping dates that it expects to request.
Personnel.  The Distributor shall (at its expense) establish, train and maintain a qualified and competent sales and service organization adequate to promote, market, sell and service the Products throughout the Territory and to perform the Distributor’s obligations under this Agreement, and Distributor shall provide a level of Product service that equals or exceeds the best standards in the applicable industry.
Inventory.  The Distributor (at its expense) shall maintain an inventory of Products in the amounts set forth on Exhibit E.
Reporting.  The Distributor shall (at its expense) (a) provide the Supplier with a written report on a quarterly basis throughout the term of this Agreement that contains such information as the Supplier may request relating to business development, market trends and pricing and (b) keep Supplier fully informed of all governmental, commercial and industrial activities and plans that do or could affect the sale of the Products in the Territory.
No Sales to Certain Entities.  The Distributor shall not sell the Products to any discount retailer of tires or to any distributor or dealer that does not keep an adequate stock of Supplier’s products in its inventory, including, but not limited to, those entities listed on Exhibit F attached hereto.
Drop Shipments.  The Distributor may request that the Supplier ships goods directly to a customer of the Distributor, and the Supplier shall use commercially reasonable efforts to accommodate such requests; provided, that the Net Invoice Value of all Products drop shipped directly to customers of the Distributor in any given Contract Year shall not exceed twenty percent (20%) of the Net Invoice Value of all the Products purchased by the Distributor from the Supplier in such Contract Year. Drop shipments will not be made outside the contiguous 48 States of the United States.
SUPPLIER OBLIGATIONS.
Promotional Literature.  Without charge, the Supplier shall provide the Distributor with sales, marketing and technical information and promotional and descriptive literature applicable to the Products, all in reasonable quantities as determined by the Supplier.
Recalls.  The Supplier shall notify the Distributor of any safety recalls or modifications of the Products and provide to the Distributor instructions and/or parts, as the Supplier determines necessary, for their rectification.
SALES PROCEDURE.
Orders.  Orders for the Products placed by the Distributor from time to time hereunder must be in writing and shall specify the quantities, Products, shipping instructions and shipping schedule requested by the Distributor.  The Supplier may refuse to accept any order in its discretion. All shipping dates are estimates, but the Supplier shall use commercially reasonable efforts to deliver all orders within the Distributor’s requested delivery schedule as set forth in an accepted order.  The Distributor’s exclusive remedy for delays of delivery of, or the inability to deliver, Products for circumstances within the Supplier’s reasonable control shall be rescission of the applicable order. In the case of a Product shortage, the Supplier reserves the right to allocate its production first to Supplier’s needs, then to the OEMs, and then among its other customers (including its distributors) on such basis as the Supplier may determine, in its sole discretion.  The Supplier reserves the right to make delivery in installments, unless otherwise expressly stipulated by the Parties; all such installments to be separately invoiced and paid for when due per each such invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve the Distributor of its obligations to accept remaining deliveries.
Standard Terms and Conditions.  All orders from the Distributor shall be subject to the terms of this Agreement, together with such terms and conditions of the Standard Terms and Conditions that are not inconsistent with the terms of this Agreement, as supplemented by the specific quantities, shipping instructions and shipping schedule agreed upon in each case.  The terms of this Agreement, as so supplemented, shall constitute the entire agreement between the Parties with respect to sales of the Products by the Supplier to the Distributor; no additional or different terms set forth in the purchase order, acknowledgment or other forms or correspondence of the Distributor shall govern any such sales.
Packaging.  The Supplier shall package the Products in accordance with its standard practices and shall arrange for shipment of the Products from the place of manufacture or storage to the point of destination set forth in the order.
PRICE AND PAYMENT.
Prices.  The prices for the Products shall be the Supplier’s applicable prices for the Products in effect at the time, as set forth in the Supplier’s distributor price list in effect at that time (the “Price List”), minus any applicable discounts.  A copy of the Price List currently in effect is attached hereto as Exhibit G.  All prices hereunder are quoted and payable in U.S. Dollars.  In the event Distributor orders Products or quantities of Products which are not listed in the Price List, the price(s) shall be as quoted by the Supplier. The Supplier reserves the right to change prices in the Price List upon thirty (30) calendar days’ written notice to the Distributor.
Volume Discounts.  The Distributor shall receive a discount off the prices set forth in the Price List in accordance with Part I of Exhibit H attached hereto (the “List Price Discounts”).  The Distributor shall also receive a discount for any Products bought in shipping container-sized quantities as set forth in Part II of Exhibit H (the “Container Discount”).  For the avoidance of doubt, the Distributor shall be entitled to both the List Price Discount and, if applicable, the Container Discount on the same order.  The applicable discounts shall be reflected on each invoice issued pursuant to Section 6.4 below.
Rebates.  The Distributor shall also receive a volume bonus rebate if it purchases and pays for a certain Net Invoice Value of Products in any given calendar year during the term of this Agreement.  The volume bonus rebate currently in effect is reflected in Part III of Exhibit H attached hereto (the “Rebate”).  The Rebate, if any, shall be paid by the Supplier to the Distributor within thirty (30) calendar days after the end of each calendar year during the term of this Agreement.  In order to receive any Rebate, Distributor must be current on all invoice payments that are dated within the calendar year on which the Rebate is being calculated. The Distributor and the Supplier may, by written mutual agreement signed by both Parties, update Exhibit H from time to time.
Invoices.  The Supplier will issue its invoice to the Distributor upon delivery of Products by the Supplier to Distributor unless otherwise stated or agreed.  Payment shall be due net sixty (60) calendar days after the date of Supplier’s invoice. Any amount not paid within three (3) calendar days, of as and when due shall bear interest at the rate of three percent per annum (3%) over and above the bank rate per annum, calculated on a daily basis.
Taxes and Fees.  Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, VAT, export tax, import tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Supplier and Distributor (specifically excluding any income tax, corporate tax, franchise tax or similar tax payable by the Supplier) shall be paid by the Distributor in addition to the prices quoted or invoiced.  In the event the Supplier is required to pay any such tax, fee, interest or charge, the Distributor shall reimburse Supplier therefor upon demand. The Distributor shall also pay any collection fees and attorneys’ fees incurred by the Supplier in collecting payment of the purchase price and any other amounts for which the Distributor is liable under this Agreement.
[Co-Op Marketing Allowance.  The Distributor shall accrue a co-op marketing allowance in an amount equal to the Allowance Amount (as defined on Exhibit H).  The Distributor is entitled to use the co-op marketing allowance on the Approved Marketing Activities (as defined on Exhibit H).  In order to obtain reimbursement for the Approved Marketing Activities, Distributor shall submit to the Supplier documentation evidencing Distributor’s payment therefor in form and substance satisfactory to the Supplier and must submit its co-op claim with supporting documents for the previous calendar year within the first 60 days (60 days include all public holidays and weekends) of the subsequent  year Within thirty (30) days after receipt of such satisfactory documentation, Supplier shall reimburse Distributor for the cost paid by the Distributor for the Approved Marketing Activities, up to the accrued Allowance Amount. Any co-op marketing allowance accrued by the Distributor shall be used in the calendar year in which it was accrued and shall not carry over to subsequent calendar years.]
WARRANTIES, LIMITATIONS ON LIABILITY, INDEMNIFICATION, AND INSURANCE.
Standard Warranty.  All Products are warranted by the Supplier directly to the end-user of the Product on the terms of the Standard Warranty.  The Distributor shall extend to each end-user the applicable Standard Warranty and shall not extend any other warranty with respect to Products.  THE SUPPLIER HEREBY EXCLUDES AND DISCLAIMS ANY AND ALL WARRANTIES TO THE DISTRIBUTOR, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTY ARISING FROM USAGE OF TRADE OR COURSE OF DEALING.  FOR THE AVOIDANCE OF DOUBT, THE SUPPLIER MAKES NO WARRANTY TO THE DISTRIBUTOR WHATSOEVER.
Indemnification.  The Distributor shall be responsible for any representations or statements which were not specifically authorized by the Supplier, and agrees to indemnify, defend, and hold Supplier harmless from and against any and all losses, liabilities, damages, or costs (including but not limited to reasonable attorneys’ fees) resulting therefrom.  The Distributor shall further indemnify, defend, and hold Supplier harmless from and against any and all losses, liabilities, damages, or costs arising from (i) the Distributor’s negligence or willful misconduct, (ii) a breach of this Agreement by the Distributor, including, without limitation, a breach of the confidentiality or intellectual property provisions of this Agreement, (iii) the Distributor’s failure to comply with any law, rule, regulation or ordinance or failure to obtain or maintain any permit or license required thereunder or (iv) The Distributor’s or its purchasers’ installation of the Products on any vehicle.
DAMAGE DISCLAIMER; LIABILITY CAP.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, UNDER NO CIRCUMSTANCES SHALL SUPPLIER OR ITS AFFILIATES BE LIABLE UNDER THIS AGREEMENT OR OTHERWISE FOR ANY SPECIAL DAMAGES, INCIDENTAL DAMAGES OR CONSEQUENTIAL DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM THE DESIGN, MANUFACTURE, INSTALLATION, SALE, USE OR REPAIR OF THE PRODUCT, WHETHER BASED UPON WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER SUPPLIER WAS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.  Without limiting the generality of the foregoing, the Supplier specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute goods or services, or for any other types of economic loss, or for claims of the Distributor’s customers or any third party for any such damages, costs or losses.  IN NO EVENT SHALL SUPPLIER’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY THE DISTRIBUTOR TO SUPPLIER FOR THE PRODUCTS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
Insurance.  The Distributor shall, at its own expense, maintain in force policies of insurance with reputable insurers sufficient in coverage and amounts to secure its obligations and potential liabilities.  Such insurance shall list the Supplier as an additional insured and be in form and substance reasonably satisfactory to the Supplier and, in any event, shall include commercial general liability insurance with policy limits of at least Two Million U.S. Dollars (USD $2,000,000.00) each occurrence for bodily injury, Two Million U.S. Dollars (USD $2,000,000.00) each occurrence for damage to property, or, alternatively, Four Million U.S. Dollars (USD $4,000,000.00) combined single limit each occurrence for injury and property damage combined.  At Supplier’s request, Distributor shall provide certificates satisfactory to Supplier evidencing such insurance and copies of such insurance policies. Such insurance shall not, however, limit Distributor’s obligations or potential liability under this Agreement.
TERM AND TERMINATION.
Term.  The term of this Agreement shall commence as of the Effective Date and, unless sooner terminated pursuant to this Agreement, shall remain in full force and effect for an initial term of [three (3) years].  Thereafter, this Agreement will be automatically terminated, unless otherwise mutually renewed by Parties in writing, for additional, successive terms of one year.
Automatic Termination on Insolvency.  This Agreement shall automatically terminate, without notice to the Distributor of any kind, in the event the Distributor ceases to exist or becomes insolvent or the subject of an “order for relief” as that term is defined in the U.S. Bankruptcy Code.
Termination by the Supplier.  At any time during the term of this Agreement, the Supplier may terminate this Agreement by written notice to the Distributor, effective either upon receipt or, if applicable, upon the expiration of any applicable cure period, upon any of the following causes:
death or incapacity of an individual proprietor, partner or majority shareholder of the Distributor.
the transfer, without Supplier’s consent, whether voluntary or involuntary, whether by operation of law or otherwise, of any interest in the ownership, management or control of the Distributor.
the violation of any provision of this Agreement by the Distributor or by its agents or employees that continues for thirty (30) days after notice to the Distributor thereof.
if Distributor ceases to purchase Products from the Supplier or to otherwise act as a distributor of the Products for a period of two (2) consecutive months.
failure by the Distributor to operate in the normal course of business for ten (10) consecutive business days, or termination of its business.
closeout or sale of a substantial part of the Distributor’s business related to the Products or the commencement of dissolution or liquidation of the Distributor.
Distributor’s relocation or establishment of a new or additional place of business involving the sale of Products without Supplier’s prior written consent.
if performance by the Distributor is delayed or suspended as a result of a force majeure event as provided in Article 9 hereof and such delay or suspension continues for a period of one hundred twenty (120) days.
if Distributor or its agents or employees participate in conduct that is injurious or detrimental to the Distributor’s customers, the public welfare, or Supplier.
any material misrepresentation made by the Distributor to the Supplier in seeking appointment as a the Distributor or in negotiating this Agreement, in obtaining credit for purchases from the Supplier, or in obtaining reimbursement for warranty or other work from the Supplier.
the material falsification of a record by the Distributor.
failure of the Distributor to satisfy a payment obligation as it becomes due and payable to the Supplier.
default by the Distributor under any security agreement between the Distributor and the Supplier or the revocation or discontinuance of any guaranty of the Distributor’s present or future financial obligation to the Supplier.
conviction of any principal officer, majority shareholder, partner or manager of a felony.
Distributor’s failure to comply with applicable laws pertaining to the sale and service of the Products.
Distributor fails to comply substantially with any other reasonable requirement imposed upon the Distributor by the Supplier, which is not discriminatory as compared with requirements imposed on other similarly situated distributors of Products, either by its terms or in the manner of its enforcement, or the Distributor fails to execute, upon the Supplier’s request, a new agreement or an amendment to this Agreement within sixty (60) days following written notice thereof by the Supplier to the Distributor.
for any other reason constituting “Good Cause” (or similar term) under any applicable statute or any other event deemed to be acceptable grounds for termination under applicable law.
Termination by the Distributor.  The Distributor may terminate this Agreement at any time during the term of this Agreement, by written notice to the Supplier, when the Supplier has failed to perform its obligations hereunder and such failure continues for ninety (90) days after receipt of such notice by the Supplier.
Termination for Convenience.  Either Party may terminate this Agreement for convenience at any time during the term of this Agreement by providing ninety (90) days’ prior written notice to the other Party.
Effect of Termination.
Neither Party shall be entitled to any compensation or reimbursement for inability to recoup any investment made in connection with performance under this Agreement, loss of prospective profits or anticipated sales or other losses occasioned by termination of this Agreement.
The provisions of this Agreement that by their nature or their terms are intended to survive its expiration or termination, and any and all obligations that arise prior to expiration or termination, shall survive expiration or termination of this Agreement.  For the avoidance of doubt the following provisions shall survive expiration or termination: Articles 7 and 10 and Sections 3.4 and 8.6.
Upon expiration or termination of this Agreement, any and all balances owed by the Distributor to the Supplier that are then outstanding shall become immediately due and payable without further notice or demand, which is hereby expressly waived.
Within 30 days after expiration or termination of this Agreement, the Supplier shall pay to the Distributor any Rebate owed to the Distributor for such calendar year as calculated in accordance with Section 6.3.
Upon termination of this Agreement or upon request by the Supplier, the Distributor shall return to the Supplier all records, books, customer, prospect or price lists, drawings, blueprints, instruction sheets, advertising and promotional materials and all of the Supplier’s supplies of every kind and character, and all other documents relating to the business of the Supplier which may be in the possession or under the control of the Distributor, including, without limitation, all Confidential Information.  In addition, upon termination of this Agreement, the Distributor shall immediately cease any use of the Trademarks.
FORCE MAJEURE.  Neither Party shall have liability to the other for any failure to deliver or perform, or for delay in delivering or performing any obligations due to causes outside the reasonable control of the Party, such as acts of God, fire, flood, terrorism, war and civil disturbance, riot, acts of governments, third-party criminal acts, currency restrictions, labor shortages or disputes, unavailability of materials, fuel, power, energy or transportation facilities, and failures of suppliers or subcontractors to effect deliveries.  However, nothing in this Article shall be construed, under any circumstances, to relieve The Distributor from any payment obligations owed to the Supplier whether for Products sold by the Supplier to the Distributor or otherwise, or to relieve the Supplier from any payment obligation owed to the Distributor under this Agreement.
MISCELLANEOUS.
Entire Agreement.  This Agreement constitutes the entire agreement between the Distributor and/or any of its Affiliates, on the one hand, and the Supplier and/or any of its Affiliates, on the other hand, superseding all prior oral or written agreements, policies, understandings, representations, warranties and negotiations, on the subject of the continuing relationship between the Distributor and/or any of its Affiliates, on the one hand, and the Supplier and/or any of its Affiliates, on the other hand, including without limitation any unwritten distributor arrangement between the Supplier or its Affiliates and the Distributor or its Affiliates (and all course of dealing established thereunder); and there are no conditions affecting this Agreement which are not expressed herein.
Amendments.  Except as otherwise provided herein, this Agreement may be amended only by a writing signed by both Parties hereto.
Governing Law; Arbitration.  This Agreement, and all disputes between the Supplier and the Distributor that arise out of or relate to the negotiation, performance or enforcement of this Agreement, shall be governed by and construed and enforced in accordance with the substantive and procedural laws of the State of New York, without regard to conflicts of laws principles.  If any provisions of this Agreement shall be prohibited or invalid under New York law, such provisions shall be ineffective only to the extent of such prohibition or invalidity, without affecting the validity or enforceability of the remaining provisions of this Agreement. THE PARTIES AGREE THAT THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY.  All disputes under, concerning or relating to this Agreement shall be resolved by mandatory binding arbitration.  The arbitration proceeding shall be administered by the American Arbitration Association (“AAA”). Arbitration shall be conducted in accordance with the AAA Commercial Arbitration Rules.  If there is any inconsistency between the terms hereof and any such rules, the terms and procedures set forth herein shall control. A single arbitrator will resolve the dispute and shall be selected by mutual agreement of the Parties.  If the Parties are unable to agree to an arbitrator, the AAA shall select and appoint the arbitrator. The arbitration shall be conducted in Atlanta, Georgia. All statutes of limitation applicable to any dispute shall apply to any arbitration proceeding.  All discovery activities shall be expressly limited to matters directly relevant to the dispute being arbitrated and subject to limitation by the arbitrator to a level commensurate with the amount in controversy and complexity of the issues involved. Judgment upon any award rendered in arbitration may be entered in any court having jurisdiction.  EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO TRIAL BY JURY RELATING TO THIS AGREEMENT OR ANY DISPUTE ARISING HEREUNDER.
Notice.  Any notice required or permitted to be given hereunder shall be in writing and shall be: (i) personally delivered; (ii) transmitted by postage prepaid certified mail; (iii) transmitted by a recognized overnight courier service; or (iv) transmitted by electronic mail with a request for electronic receipt confirmation, to the receiving Party as follows, as elected by the Party giving such notice:
If to Supplier:
APOLLO VREDESTEIN TIRES INC
1175 Peachtree St. NE
10th Floor
Atlanta, GA 30361
Attention: [UPDATE] / Regional Head
Email: [UPDATE]
 
If to the Distributor:
[__________________]
[__________________]
[__________________]
Attention: [__________________]
Email: [__________________]
 
Assignment.  This Agreement may not be assigned by the Distributor, whether voluntarily or by operation of law, without the consent of Supplier.  This Agreement, or any of Supplier’s rights hereunder, may be assigned by the Supplier upon notice to the Distributor.
Counterparts.  This Agreement may be executed in one (1) or more counterparts, including by facsimile or electronic (e.g., .PDF) transmission, all of which will be considered one and the same Agreement and each of which will be deemed an original.
Severability.  If any of the terms or conditions of this Agreement are held by any court of competent jurisdiction to contravene, or to be invalid under, the laws of any governmental body having jurisdiction over the subject matter of this Agreement, such contravention or invalidity shall not invalidate the entire Agreement.  Instead, this Agreement shall be construed as if it did not contain the particular provision or provisions held to be invalid, and an equitable adjustment shall be made and necessary provisions added so as to give effect to the intention of the Parties as expressed in this Agreement at the time of the execution of this Agreement and of any amendments to this Agreement.
Waiver.  The failure of either Party to enforce, or to require performance by the other Party of, any of the provisions of this Agreement will not be construed to be a waiver of such provisions or the right of the Party to thereafter enforce each and every such provision.
Headings.  Headings contained in this Agreement are inserted for purposes of convenience of reference only and shall not constitute a part of this Agreement.
Language.  This Agreement has been expressed in English at the wish of the Parties.  The Parties confirm and agree that the English-language version of this Agreement shall govern and control any translation of this Agreement into any other language.  Ce contrat a été rédigé en anglais a la volonté des les parties.  Les parties conviennent et confirment leur volonté que la version en langue anglaise du présent contrat prévaut sur toute autre version.
 [signature page follows]

 

Exhibit A

Products

Vredestein brand Passenger Vehicle (PV) Tires including but not limited to the following designs

 

Arctrac

Comtrac

Comtrac 2

Quatrac 5

Quatrac Pro

Snowtrac 5

Sportrac 5

Sprint Classic

Ultrac Satin

Ultrac Vorti

Ultrac Vorti R

Wintrac ICE

Wintrac xtreme S

Wintrac Pro




Vredestein brand Agricultural and Industrial (OHT) Tire including but not limited to the following designs

 

FAKTOR-S

Flotation+

FlotationTrac

Multi Rill

Traxion 85

TRAXION HARVEST

TRAXION VERSA

Traxion XXL

Traxion+

V61




Exhibit B

Standard Terms and Conditions

APOLLO VREDESTEIN TIRES INC
TERMS & CONDITIONS OF SALE FOR DISTRIBUTOR AGREEMENT

 

1. ENTIRE AGREEMENT. All purchases of Products from the Supplier by the Distributor shall be subject to these standard Terms & Conditions of Sale (the “Standard Terms”). The terms contained in or incorporated into these Standard Terms and that certain Distributor Agreement between Supplier and Distributor, as amended from time to time (collectively, the “Contract”), will be the entire agreement between Supplier and Distributor on the subject of the transaction described herein; there are no conditions to those agreements that are not so contained or incorporated. The Supplier objects to any additional or different terms or conditions contained in any request for quotation, purchase order, or other document or communication previously or hereafter provided by the Distributor to the Supplier. No such additional or different terms or conditions will be of any force or effect. There are no conditions to this Contract that are not so contained or incorporated in this Contract by reference.

2. PRICES. Unless otherwise provided in this Contract, prices quoted are subject to change by the Supplier without notice. Prices do not include applicable taxes, fees, duties, insurance, export, shipping or other governmental fees or charges, all of which shall be paid by the Distributor, either directly or by reimbursement to the Supplier on Supplier’s demand therefor. Any claim for tax exemption by the Distributor shall, if applicable, be effective only after receipt of proper exemption forms by the Supplier, but in no event after delivery has been made. All prices listed in Supplier’s publications are intended as a source of general information only and not as an offer to sell, and all prices contained therein are subject to confirmation by formal quotation by the Supplier. No order shall be binding upon Supplier until received and accepted by the Supplier in its sole discretion. All prices, and amounts payable, under this Contract are in U.S. Dollars.

3. CANCELLATION. No order may be cancelled or altered by the Distributor except upon terms and conditions acceptable to the Supplier, as evidenced by the Supplier’s written consent. In the event of such an approved cancellation by the Distributor, Supplier shall be entitled to payment of the full price for the Products, less the amount of any expenses saved by the Supplier by reason of the cancellation.

4. CHANGES. Supplier may at any time make such changes in design and construction of products, components or parts as Supplier deems appropriate, without notice to the Distributor. Supplier may furnish suitable substitutes for products unobtainable because of priorities or regulations established by any governmental authority or non-availability of products from suppliers at commercially reasonable prices.

5. FREIGHT POLICY. The Supplier shall package the Products in accordance with its standard practices and shall arrange for shipment of the Products from the place of manufacture or storage to the point of destination set forth in the order. Unless otherwise provided by Supplier, the Products will be delivered to the Distributor EXW Supplier’s premises in Atlanta, Georgia (as the shipping term is defined in Incoterms 2010).  The Supplier will not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond Supplier’s control, including but not limited to any act of God, act of the Distributor, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, act of terrorism, riot, delay in transportation, or inability to obtain necessary labor, materials or goods. In the event of any such delay, the date of delivery will be extended for a period equal to the time lost because of the delay. The Distributor’s exclusive remedy for other delays, and for the Supplier’s inability to delivery for any reason, will be rescission of its agreement to purchase. Title to the Products shall pass to the Distributor and all risk of loss or damage to such Products shall be borne by the Distributor upon delivery. All Products shall be inspected upon receipt from the carrier, and claims should be filed with the carrier immediately in the event there is evidence of damage or loss. In any event, all claims for shortage, or that Products are nonconforming shall be made in writing thirty (30) calendar days after delivery, or shall forever be barred. Orders may be subject to a shipping and handling charge and/or fuel and other surcharges as applicable, for all of which Distributor shall be responsible. Freight shall be paid as follows:

 (a) For PV (passenger vehicle) purchases: the Supplier shall pay freight costs on shipments to the contiguous US (48 states) with a shippable weight of over 2,000 pounds. In other cases (where the shippable weight is less than 2,000 pounds), the Distributor shall pay to Supplier $10 per tire as payment for freight.

 (b) For OHT (off-highway) purchases: the Supplier shall pay freight costs on shipments to the contiguous US (48 states) with a shippable weight of over 3,000 pounds. In other cases (where the shippable weight is less than 3,000 pounds), the Distributor shall pay to Supplier the actual freight costs incurred.

Actual freight will be charged to the Distributor for shipments to Canada, Alaska, Hawaii, and other US territories.

Distributor shall be solely responsible to pay any demurrage charges or fees resulting from Distributor’s failure to timely accept shipping containers

6. PAYMENT TERMS. All payment terms set forth in this Contract are subject to the Supplier’s approval of the Distributor’s credit, in Supplier’s discretion; if such approval is withheld, payment will be due in advance of Supplier’s performance. If payment is made by the Distributor in cash or wire transfer within ten (10) days after the date of the invoice, Distributor shall be entitled to a reduction of the amount of such invoice in an amount equal to 3% of the costs of the Products that are the subject of such invoice and if payment is made by the Distributor in cash or wire transfer within thirty (30) days (but not within ten (10) days) after the date of the invoice, Distributor shall be entitled to a reduction of the amount of such invoice in an amount equal to 1% of the costs of the Products that are the subject of such invoice (it being understood that such discounts shall not be taken on taxes, shipping or handling fees, or other similar charges). In case of payment via credit card, cash or anticipation discounts will not be given to the Distributor and such payments may be subject to a service surcharge where applicable laws permit such levy. If production or shipment of completed goods, or other Supplier performance, is delayed by the Distributor, Supplier may immediately invoice, and Distributor will immediately pay, the percentage of the purchase price corresponding to the percentage of completion; in addition, Distributor will compensate Supplier for storage of completed goods or work in process during any such delay, whether stored at Supplier’s facility or at an independent storage facility.

7. NO OFFSET. Distributor shall pay for the Products in full, without any set-off, counterclaim, recoupment or other similar rights Distributor may have against Supplier. If Distributor is required under law to withhold or deduct any amount from the payment due to the Supplier, Distributor shall increase the sum it pays to the Supplier by the amount necessary for the Supplier to receive an amount equal to the sum it would have received if no withholdings or deductions had been made.

8. RETURN POLICY. Products may be returned only with Supplier’s written consent by contacting Supplier to obtain a returned products authorization number. Products must (a) be in new, salable condition, (b) not be a discontinued product, and (c) be in their original packaging subject to inspection when they are received at Supplier’s warehouse.  Further, no Products will be accepted for return after the expiration of 3 years from the DOT date printed on the sidewall of the tire, or 1 year after the date of purchase. Freight for returned Products shall be paid by the Distributor. In addition to the Distributor paying for the freight costs for returning the Products, Distributor shall pay to the Supplier a freight and restocking charge equal to 10% of the price of the returned Products.

9. CUMULATIVE REMEDIES. Supplier’s rights and remedies under this Contract are cumulative and in addition to all other rights and remedies available to the Supplier at law or in equity.

10. INDEPENDENT CONTRACTORS. The Parties understand and agree that nothing contained in this Contract shall be construed as creating a joint venture, partnership or other similar arrangement between the Parties.

11. UPDATES. THESE STANDARD TERMS MAY BE MODIFIED, AMENDED AND UPDATED FROM TIME TO TIME AT THE DISCRETION OF SUPPLIER UPON WRITTEN NOTICE TO THE DISTRIBUTOR.

 





Exhibit C-1

Standard Warranty – Consumers

VREDESTEIN LIMITED WARRANTY

This Warranty only applies to the original retail purchaser, from an authorized Vredestein dealer located in the 50 United States or the District of Columbia or any province or territory of Canada, of a new replacement Vredestein-brand tire that was installed on a vehicle used for personal, family or household purposes, and that remain on the same vehicle on which they were originally installed.

This Warranty includes the following coverages (as described in more detail below):

30-Day Trial Period;

Mileage Tread-Wear Coverage;

Road Hazard Replacement Program; and

Coverage for Defects in Workmanship and Materials.

30-Day Trial Period (Quatrac5, Ultrac Vorti R, Ultrac Vorti, and Wintrac xtreme S tread designs only)

If, for any reason, you are not satisfied with a new set of four Vredestein Quatrac5, Ultrac Vorti R, Ultrac Vorti, or Wintrac xtreme S tires installed on the same vehicle, you may return them to the original place of purchase for a full refund within 30 days after purchase.

Mileage Tread-Wear Coverage (Quatrac 5 tread design only)

If any of a set of four Vredestein Quatrac 5 tires installed on the same vehicle reaches the end of its “usable tread life” before 45,000 miles (72,420 kms), you will be given a credit toward a new Vredestein Quatrac 5 tire equal to the proportionate cost of the new tire for the difference between 45,000 miles (72,420 kms) and the number of miles that the original tire was used.  (For example, if the original tire has been used for 30,000 miles (48,280 kms) when the claim is made, you will get a credit equal to one-third of the cost of the replacement tire.) In order to make a claim under this coverage, you must rotate the tires every 6,000 miles (9,956 kms) or as recommended by the vehicle manufacturer, and must provide evidence of rotation upon request.

Road Hazard Replacement Program (Quatrac5, Ultrac Vorti R, Ultrac Vorti, and Wintrac xtreme S tread designs only)

You will be given a new tire, free of charge, if any of a set of four Quatrac5, Ultrac Vorti R, Ultrac Vorti, or Wintrac xtreme S tires installed on the same vehicle suffers non-repairable damage from puncture, snag, cut, bruise or impact break caused by road hazards (for example, nails, glass, potholes and other debris) before the earlier of the loss of 2/32” (1.59 mm) of tread depth or one (1) year from the date of purchase.

Coverage for Defects in Workmanship and Materials (all tread designs)

If any Vredestein-brand tire, or any of its component parts, fails due to defects in materials or workmanship appearing within one (1) year from the date of purchase and before the loss of 2/32” (1.59 mm) of tread depth, Vredestein will give you a new tire free of charge. If any Vredestein-brand tire, or any of its component parts, fails due to defects in materials or workmanship after one (1) year from the date of purchase, or after the loss of 2/32” (1.59 mm) of tread depth, but there remains at least 2/32” (1.59 mm) of tread depth on the tire, Vredestein will issue a credit to you equal to the original purchase price of the tire times the percentage of the original tread depth that remains on the tire at the time that it fails; that credit may be applied against the purchase price of a new Vredestein tire.

Provisions that Apply to All Coverages

The above warranty extends only to the original retail consumer and does not extend to purchasers who are not consumers (e.g., commercial entities).

There are no express warranties on Vredestein-brand tires other than this Warranty.  ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE ARE LIMITED TO THE DURATION OF THIS EXPRESS WARRANTY.  Some states and other jurisdictions do not allow limitation on how long an implied warranty lasts, so the above limitation may not apply to you.

UNDER NO CIRCUMSTANCES, WHETHER FOR BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT, OR ON ANY STRICT LIABILITY THEORY, WILL VREDESTEIN BE LIABLE FOR ANY ECONOMIC LOSS, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.  Some states and other jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above exclusion may not apply to you.

This Warranty does not cover taxes or the cost of any services that you incur for anyone to inspect, attempt to repair or remove any tires covered by this Warranty, or to replace, handle, mount or balance replacement tires, or any other charges for labor (labour).  Under all circumstances you will be responsible to pay those taxes and costs.

No claim may be made under this warranty after the expiration of 8 years from the DOT date printed on the sidewall of the tire.  Further, this Warranty does not apply to:

Original equipment tires;

Replacement tires provided under any warranty claim; or

Tires damaged due to misuse or misapplication, road hazards (except under the Road Hazard Replacement Program), or mechanical problems with your vehicle, or tires used in any racing-related activities, professional or competitive events.

To make a claim under this Warranty, contact the dealer from which you purchased the tires.  (If that dealer no longer exists, or no longer handles Vredestein tires, contact Vredestein at the contact details set out below.)  You may be required to sign a claim form supplied by the dealer or Vredestein.

This Warranty gives you specific legal rights, and you may also have other rights which vary from state to state.

For further assistance, contact Apollo Vredestein Tires Inc by phone at 1(877) 234-0867 weekdays during the hours of 9:00 to 5:00 EST or by mail at 1175 Peachtree St NE, 10th Floor, Atlanta, GA 30361, US.

 

Exhibit C-2

Standard Warranty – Commercial End-Users

VREDESTEIN LIMITED COMMERCIAL WARRANTY

This Warranty only applies to the original purchaser, from an authorized Vredestein dealer located in the 50 United States or the District of Columbia or any province or territory of Canada, of a new replacement Vredestein-brand tire that was installed on a vehicle used for commercial, industrial, or institutional purposes, and that remain on the same vehicle on which they were originally installed.

This Warranty includes the following coverages (as described in more detail below):

30-Day Trial Period;

Mileage Tread-Wear Coverage;

Road Hazard Replacement Program; and

Coverage for Defects in Workmanship and Materials.

30-Day Trial Period (Quatrac5, Ultrac Vorti R, Ultrac Vorti, and Wintrac xtreme S tread designs only)

If, for any reason, you are not satisfied with a new set of four Vredestein Quatrac5, Ultrac Vorti R, Ultrac Vorti, or Wintrac xtreme S tires installed on the same vehicle, you may return them to the original place of purchase for a full refund within 30 days after purchase.

Mileage Tread-Wear Coverage (Quatrac 5 tread design only)

If any of a set of four Vredestein Quatrac 5 tires installed on the same vehicle reaches the end of its “usable tread life” before 45,000 miles (72,420 kms), you will be given a credit toward a new Vredestein Quatrac 5 tire equal to the proportionate cost of the new tire for the difference between 45,000 miles (72,420 kms) and the number of miles that the original tire was used.  (For example, if the original tire has been used for 30,000 miles (48,280 kms) when the claim is made, you will get a credit equal to one-third of the cost of the replacement tire.) In order to make a claim under this coverage, you must rotate the tires every 6,000 miles (9,956 kms) or as recommended by the vehicle manufacturer, and must provide evidence of rotation upon request.

Road Hazard Replacement Program (Quatrac5, Ultrac Vorti R, Ultrac Vorti, and Wintrac xtreme S tread designs only)

You will be given a new tire, free of charge, if any of a set of four Quatrac5, Ultrac Vorti R, Ultrac Vorti, or Wintrac xtreme S tires installed on the same vehicle suffers non-repairable damage from puncture, snag, cut, bruise or impact break caused by road hazards (for example, nails, glass, potholes and other debris) before the earlier of the loss of 2/32” (1.59 mm) of tread depth or one (1) year from the date of purchase.

Coverage for Defects in Workmanship and Materials (all tread designs)

If any Vredestein-brand tire, or any of its component parts, fails due to defects in materials or workmanship appearing within one (1) year from the date of purchase and before the loss of 2/32” (1.59 mm) of tread depth, Vredestein will give you a new tire free of charge. If any Vredestein-brand tire, or any of its component parts, fails due to defects in materials or workmanship after one (1) year from the date of purchase, or after the loss of 2/32” (1.59 mm) of tread depth, but there remains at least 2/32” (1.59 mm) of tread depth on the tire, Vredestein will issue a credit to you equal to the original purchase price of the tire times the percentage of the original tread depth that remains on the tire at the time that it fails; that credit may be applied against the purchase price of a new Vredestein tire.

Provisions that Apply to All Coverages

The above warranty extends only to purchasers who are non-consumers (e.g., commercial or institutional entities) and does not apply to consumers.

THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED.  VREDESTEIN EXPRESSLY DISCLAIMS AND EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

UNDER NO CIRCUMSTANCES, WHETHER FOR BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT, OR ON ANY STRICT LIABILITY THEORY, WILL VREDESTEIN BE LIABLE FOR ANY ECONOMIC LOSS, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

This Warranty does not cover taxes or the cost of any services that you incur for anyone to inspect, attempt to repair or remove any tires covered by this Warranty, or to replace, handle, mount or balance replacement tires, or any other charges for labor (labour).  Under all circumstances you will be responsible to pay those taxes and costs.

No claim may be made under this warranty after the expiration of 8 years from the DOT date printed on the sidewall of the tire.  Further, this Warranty does not apply to:

Original equipment tires;

Replacement tires provided under any warranty claim; or

Tires damaged due to misuse or misapplication, road hazards (except under the Road Hazard Replacement Program), or mechanical problems with your vehicle, or tires used in any racing-related activities, professional or competitive events.

To make a claim under this Warranty, contact the dealer from which you purchased the tires.  (If that dealer no longer exists, or no longer handles Vredestein tires, contact Vredestein at the contact details set out below.)  You may be required to sign a claim form supplied by the dealer or Vredestein.

For further assistance, contact Apollo Vredestein Tires Inc by phone at 1(877) 234-0867 weekdays during the hours of 9:00 to 5:00 EST or by mail at 1175 Peachtree St NE, 10th Floor, Atlanta, GA 30361, US.

 

Exhibit D

Floor Purchase Requirements

[Apollo to provide]

 

Exhibit E

Inventory

[Apollo to provide]

 

Exhibit F

Discount Retailers

1. Sam’s Club
2. Costco
3. eBay
4. Simple Tire
5. Wal-Mart
6. Amazon.com
7. Amazon Marketplace
8. BJ’s Wholesale Club
9. Delticom / Tires Easy



Exhibit G

Distributor Price List

[Apollo to provide]

 

Exhibit H [USE THIS EXHIBIT H FOR CATEGORY B DISTRIBUTORS]

Discounts and Rebates

 

Part I.  List Price Discounts
Distributor shall receive a 50% discount off of the List Prices at the time of invoicing.
Part II.  Container Discounts
Distributor shall receive an additional 5% discount for any Products ordered in a shipping container sized quantity and shipped directly via such container to the Distributor, to be applied after the initial discount specified in Part I of this Exhibit.
Part III.  Rebates
In accordance with Section 6.3 of this Agreement, Supplier shall pay to the Distributor a Rebate calculated based on the following percentage of the Net Invoice Value paid by the Distributor in the prior calendar year during the term of this Agreement:
Net Invoice Value in a Calendar Year
Rebate Percentage

Less than or equal to $100,000


0%

Greater than $100,000 but less than or equal to $200,000


1%

Greater than $200,000 but less than or equal to $300,000


2%

Greater than $300,000 but less than or equal to $400,000


3%

Greater than $400,000 but less than or equal to $500,000


4%

Greater than $500,000


5%
 
[Part IV.  Co-Op Marketing Allowance
The “Allowance Amount” means [__]% of the Net Invoice Value paid by the Distributor [in the prior calendar year].
The Approved Marketing Activities” mean [_________________________].]

Exhibit H [USE THIS EXHIBIT H FOR CATEGORY B DISTRIBUTORS]

Discounts and Rebates

 
 
Part I.  List Price Discounts
Distributor shall receive a 52.5% discount off of the List Prices at the time of invoicing.
Part II.  Container Discounts
Distributor shall receive an additional 5% discount for any Products ordered in a shipping container sized quantity and shipped directly via such container to the Distributor, to be applied after the initial discount specified in Part I of this Exhibit.
Part III.  Rebates
In accordance with Section 6.3 of this Agreement, Supplier shall pay to the Distributor a Rebate calculated based on the following percentage of the Net Invoice Value paid by the Distributor in the prior calendar year during the term of this Agreement:
Net Invoice Value in a Calendar Year
Rebate Percentage

Less than or equal to $600,000


0%

Greater than $600,000 but less than or equal to $750,000


1%

Greater than $750,000 but less than or equal to $1,000,000


2%

Greater than $1,000,000 but less than or equal to $1,500,000


3%

Greater than $1,500,000 but less than or equal to $2,000,000


4%

Greater than $2,000,000


5%
 
[Part IV.  Co-Op Marketing Allowance
The “Allowance Amount” means [__]% of the Net Invoice Value paid by the Distributor [in the prior calendar year].
The Approved Marketing Activities” mean [_________________________].]