This Requirements Supplier Agreement involves
Governing Law: Arkansas Date: 3/30/2004
Industry: Audio and Video Equipment Sector: Consumer Cyclical
SUPPLIER NUMBER: 138122-10-0 EFFECTIVE DATE: 01/23/2003
This Supplier Agreement ("Agreement") between the party listed below
("Supplier") and Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, Wal-Mart
Stores East, Inc., Wal-Mart Stores Texas, LP, Sam's West, Inc., Sam's East, Inc.
and affiliates (hereinafter referred to collectively as "Company") sets forth
Supplier's qualifications and the general terms of the business relationship
between Company and Supplier. The parties agree that all sales and deliveries of
all Merchandise (as defined below) by Supplier to Company and all Orders (as
defined below) by Company will be covered by and subject to the terms of this
Agreement, the Standards for Suppliers (which is attached and incorporated by
reference) and any Order signed or initialed (electronically or otherwise) by an
Authorized Buyer (as defined below) for Company. This Agreement becomes
effective on the date shown above and remains effective for the term set forth
herein. The execution and submission of this Agreement does not impose upon
Company any obligation to purchase Merchandise.
GENERAL SUPPLIER INFORMATION
SUPPLIER'S BUSINESS CLASSIFICATION: (PLEASE DISREGARD THIS SECTION IF SUPPLIER
IS NOT A FEMALE OR MINORITY-OWNED BUSINESS)
Woman-Owned? Minority Owned?
BLACK ASIAN-PACIFIC AMERICAN INDIAN ESKIMO HISPANIC NATIVE AMERICAN ALEUT
If Supplier falls within any of the above classes, and has been certified as
minority-owned by a government agency or purchasing council, Supplier is
qualified for the first step in the Wal-Mart Minority/Female Owned Business
Development Program (the "Supplier Development Program"). Supplier agrees to
provide to Company a copy of its certification as a prerequisite to
qualification in the Supplier Development Program. For further information,
please contact the Wal-Mart Supplier Development Office at 1-800-604-4555.
Enter the Federal Taxpayer Identification Number (TIN) of the Supplier Named
If a TIN has not been issued, enter the Employer's Social Security Number.
Type of Payee (Check Only One): Individual/Sole Proprietorship X Corporation
<S> <C> <C>
SUPPLIER INFORMATION: ROCKFORD CORPORATION PRESIDENT: GARY SUTTLE PHONE: 4805173084
Address: 546 S. ROCKFORD DR. ACCT EXECUTIVE OR V.P. SALES: DAN PHONE: 4805173004
City/State/Zip: TEMPE, AZ 85281 ACCT. CONTACT: BILL JACKSON PHONE: 4805173073
ADDRESS TO MAIL PAYMENT: ADDRESS TO SEND ORDERS:
Supplier Name: ROCKFORD CORPORATION SUPPLIER NAME: ROCKFORD CORPORATION
Address: 546 S. ROCKFORD DR. Attention: JIM SANDO
Address 2: Address: 600 S. ROCKFORD DR.
City/State/Zip: TEMPE, AZ 85281 City/State/Zip: TEMPE, AZ 85281
Factor Name: Street Address for use by delivery services
other than the U.S. Mail, if not already
Supplier Also Doing Business As: (Attach a shown in the Purchase Order address above.
list to Agreement if Space below is
SUPPLIER NUMBER: Room:
Expedite Orders: Phone: Extension#:
ADDRESS TO MAIL CLAIM DOCUMENTATION: ADDRESS TQ SEND
ATTENTION: JIM SANDO
Supplier Name: ROCKFORD CORPORATION
Address: 600 S. ROCKFORD DR.
Attention: JIM SANDO
City/State/Zip: TEMPE, AZ 85281
Address: 600 S. ROCKFORD DR.
Accounting Phone Number: Extension #:0
4805173032 City/State/Zip: TEMPE, AZ 85281
Toll Free Number: 8003662349 Fax Number: 4809663983
Has Supplier or any related entity previously conducted business with Company?
Yes _ No X If so, under what name(s)?
STANDARD TERMS AND CONDITIONS
1. DEFINITIONS. As used in this Agreement or any Company issued Order, the
following capitalized words shall have the following meanings:
(a) "Account" shall mean any right to receive payments arising under this
(b) "Anticipation" shall mean the intentional or unintentional payment of
obligations prior to the due date which results in a monetary adjustment in
amounts payable to supplier.
(c) "Authorized Buyer" shall mean any General Merchandise Manager, Divisional
Merchandise Manager, Buyer 1, 2 or 3 and replenishment manager assigned to the
Wal-Mart category/department corresponding to the purchased Merchandise.
(d) "Merchandise" shall mean all products, goods, materials, equipment,
articles, and tangible items supplied by Supplier to Company and all packaging,
instructions, warnings, warranties, advertising and other services included
(e) "Electronic Data Interchange" ("EDI") shall mean the moving of information
regarding specific business processes (invoicing, ordering, reporting, etc.)
electronically between two or more businesses. The information is transmitted
electronically structured according to standards mandated by Company.
(f) "End of Month Dating" shall mean payment terms beginning at the first of the
following month rather than from the receipt of merchandise, if the merchandise
is received on or after the 24th of the month.
(g) "High Risk Supplier" shall mean a Supplier identified as such by Company in
view of the nature of the Supplier's products, the severity of claims made
against Supplier's products, the frequency of claims made, past litigation
involving the Supplier's products and other factors deemed relevant by Company.
(h) "Order" shall mean any written or electronic purchase order issued by
(i) "Recall" shall mean any removal of Merchandise from the stream of commerce
initiated by Supplier, a government entity or Company.
(j) "Standards" shall mean the Wal-Mart Stores, Inc. Standards for Suppliers,
(k) "Vendor Master" shall mean the accounting department of Company responsible
for control and processing of new supplier agreements and updates to existing
2. ORDERS; CANCELLATION. Supplier may ship only after receipt of an Order.
Acceptance of an Order may be made only by shipment of the Merchandise in
accordance herewith. Acceptance is expressly limited to all of the terms and
conditions of such Order, including, all shipping, routing and billing
instructions and all attachments and supplemental instructions delivered
therewith. Shipments made contrary to Company's routing instructions will be
deemed F.O.B. Destination (either store, club or warehouse). Supplier's invoice,
confirmation memorandum or other writing may not vary the terms of any Order.
Supplier's failure to comply with one or more terms of an Order shall constitute
an event of default and shall be grounds for the exercise by Company of any of
the remedies provided for in this Agreement or by applicable law. Projections,
past purchasing history and representations about quantities to be purchased are
not binding, and Company shall not be liable for any act or expenditure
(including but not limited to expenditures for equipment, materials, packaging
or other capital expenditures) by Supplier in reliance on them. Company may
cancel all or any part of an Order at any time prior to shipment.
3. SUPPLIER FINANCIAL INFORMATION; SALES TO COMPANY. Supplier shall submit to
Company with this Agreement one of the following: (1) a complete set of audited
current financial statements, (2) a current Dun & Bradstreet financial report,
or (3) if publicly held, Supplier's most recent annual report to shareholders
and management proxy information. If Company's purchases from Supplier are
anticipated by Supplier to constitute twenty percent (20%) or more of Supplier's
gross annual sales on a calendar year basis. Supplier agrees to notify Company
of this fact, in writing, within thirty (30) days of Supplier becoming aware of
4. PAYMENT TERMS; CASH DISCOUNT; ANTICIPATION. Supplier shall transmit invoices
on the same day Merchandise is shipped, but payment terms shall date from
Company's receipt of the Merchandise. If Supplier selects End of Month Dating on
Appendix 1 hereto, Merchandise received after the 24th of any month shall be
payable as if received on the first day of the following month. Any cash
discount selected by Supplier on Appendix 1 will be calculated on the gross
amount of Supplier's invoice. Anticipation may be taken upon the mutual consent
of the parties.
5. SET-OFF; RESERVATION OF ACCOUNT; CREDIT BALANCE. Company may set off against
amounts payable under any Order all present and future indebtedness of Supplier
to Company arising from this or any other transaction whether or not related
hereto. If Company determines that Supplier's performance under an Order and/or
this Agreement is likely to be impaired, Company may establish a reserve on
Supplier's Account to satisfy Supplier's actual or anticipated obligations to
Company arising from any such Order or this Agreement, by withholding payment of
Supplier's invoices. Supplier agrees that any credit balance will be paid in
cash to Company upon written request. Payments of monies owed to Company must be
mailed to: Wal-Mart Stores, Inc., P.O. Box 500646, St. Louis, MO 63150-0646.
6. NOTICE REGARDING ASSIGNMENT OF ACCOUNTS; ACCOUNT DISPUTES. Supplier shall
provide Company written notice of an assignment, factoring, or other transfer of
its Account at least 30 days prior to such assignment, factoring, or other
transfer taking legal effect. Such written notice shall include the name and
address of the assignee/transferee, the date the assignment is to begin, and
terms of the assignment, and shall be considered delivered upon receipt of such
written notice by Vendor Master. Supplier may have only one assignment,
factoring or transfer of its Account effective at any time. The assignment of
any Account hereunder shall not affect Company's rights set forth in Section 5
of this Agreement. Supplier shall defend indemnify and hold Company harmless
from any and all lawsuits, claims, demands, actions, damages (including
reasonable attorney fees, court costs, obligations, liabilities or liens)
arising from or related to the assignment, transfer or factoring of its Account.
Supplier releases and waives any right, claim or action against Company for
amounts due and owing under this Agreement where Supplier has not complied with
the notice requirements of this provision. Notices required pursuant to this
Section shall be mailed to: Wal-Mart Stores. Inc., Attn: Vendor Master, 1108
S.E. 10th St. Bentonville, AR 72716-0680.
Notwithstanding the foregoing, any dispute or any other circumstance, Company
reserves the right to remit payment to Supplier.
7. TAXES. The prices set forth in any Order are deemed to include all taxes. If
any manufacturer's excise or other similar or different taxes are paid on the
Merchandise described in any Order and if such tax, or any part thereof, is
refunded to Supplier, then Supplier shall immediately pay Company the amount of
8. PRICE PROTECTION; PRICE GUARANTEE AND NOTICE OF PRICE INCREASES. Supplier
guarantees its prices against manufacturer's or Supplier's own price decline. If
Supplier reduces its price on any Merchandise sold to Company, which Merchandise
has not yet been delivered to Company by Supplier or, if consistent with
Supplier's practice, which Merchandise is currently in Company's inventory
(including Merchandise on hand, in warehouses and in transit), Supplier shall at
Company's discretion either issue a check or give Company a credit equal to the
price difference for such Merchandise, multiplied by the units of such
Merchandise to be delivered by Supplier and/or currently in Company's inventory.
For all Merchandise not yet shipped to Company, Supplier agrees to meet the
price of any of its competitors selling comparable merchandise. If a court,
regulatory agency or other government entity with jurisdiction finds that the
prices on an Order are in excess of that allowed by any law or regulation of any
governmental agency, the prices shall be automatically revised to equal a price
which is not in violation of said law or regulation. If Company shall have made
payment before it is determined that there has been a violation of this section,
Supplier shall promptly refund an amount of money equal to the difference
between the price paid for the Merchandise and the price which is not in
violation of this section. If contemporaneously
with Supplier's sale of Merchandise to the Company, Supplier sells or offers to
any competitor of Company any merchandise of like grade and quality at lower
prices and/or on terms more favorable than those stated on the Order, the prices
and/or terms of the Order shall be deemed automatically revised to equal the
lowest prices and most favorable terms at which Supplier shall have sold or
shall have offered such merchandise and payment shall be made accordingly. If
Company shall become entitled to such lower prices, but shall have made payment
at any prices in excess thereof; Supplier shall promptly refund the difference
in price to Company. If there is a price increase, Supplier shall give Company
written notice of any such increase at least sixty (60) days prior to the
effective date of the increase.
9. SUPPLIER EDI RESPONSIBILITIES.
(a) Supplier shall electronically receive Orders and send Company invoices via
EDI unless otherwise agreed to by Company in writing.
(b) Supplier shall assure that access by its employees to the EDI interchange is
restricted by password to those persons authorized to contractually bind
(c) Supplier's use of the EDI interchange acknowledges Supplier's review and
acceptance of the terms and requirements for using the EDI system to contract
(d) Supplier will establish a user I.D. to identify itself, and the presence of
this user I.D. in the EDI interchange will be sufficient to verify the source of
the data and the authenticity of the document.
(e) Documents containing the user I.D. will constitute a signed writing, and
neither party shall contest the validity or enforceability of the document on
the basis of lack of a signature or sufficient identification of the parties.
(f) EDI documents or printouts thereof shall constitute originals.
(g) EDI documents will be retained by both Company and Supplier in a form that
is accessible and reproducible.
(h) If Company agrees to waive the EDI requirements of this section of this
Agreement, Orders may be sent via overnight mail at Supplier's expense.
10. PURCHASE COSTS AND CONDITIONS. Supplier is responsible for verifying the
accuracy of costs, discounts, allowances and all other terms of sale on all
Orders. If incorrect information exists, Supplier shall notify Company not less
than twenty-four (24) hours prior to shipment. If a change is necessary, no
shipment is to commence without written confirmation of the change from an
authorized member of Company's merchandising department. If Merchandise ships
prior to discovery of an error on the Order, the parties shall confer within
forty-eight (48) hours of such discovery to determine the actions to be taken
regarding the erroneous Order.
11. SHIPPER LOAD AND COUNT RESPONSIBILITIES. Supplier who is shipping a full
truckload collect to Company will be responsible for monitoring its shipping
process including closing the trailer and sealing it with a Supplier-provided
seal. The seal number must be referenced and identified as the seal number on
all copies of the Bill of Lading. If Supplier fails to seal the trailer, the
driver will seal the trailer on Supplier's behalf. The driver will then document
that seal number on the Bill of Lading before providing Supplier with its copy.
If a shortage occurs, Supplier shall be liable for such shortage.
12. DELIVERY TIME. THE TIME SPECIFIED IN AN ORDER FOR SHIPMENT OF MERCHANDISE IS
OF THE ESSENCE OF THIS AGREEMENT AND IF SUCH MERCHANDISE IS NOT SHIPPED WITHIN
THE TIME SPECIFIED, COMPANY RESERVES THE RIGHT, AT ITS OPTION AND WITHOUT
LIMITATION, TO CANCEL THE ORDER AND/OR REJECT ANY MERCHANDISE DELIVERED AFTER
THE TIME SPECIFIED. In addition to the aforementioned remedy, Company may
exercise any other remedies provided for in this Agreement or provided by
applicable law, including but not limited to those remedies provided by the
Uniform Commercial Code. Notwithstanding Company's right to cancel shipment, or
to reject or revoke acceptance of Merchandise, Supplier agrees to inform Company
immediately of any actual or anticipated failure to ship all or any part of an
Order or the exact Merchandise called for in an Order on the shipment date
specified. Acceptance of any Merchandise shipped after the specified shipment
date shall not be construed as a waiver of any of Company's rights or remedies
resulting from the late shipment.
13. REPRESENTATIONS, WARRANTIES AND GUARANTEES. By acceptance of an Order,
Supplier represents, warrants and guarantees that:
(a) The Merchandise will be new and not used, remanufactured, reconditioned or
refurbished, and will comply with all specifications contained in such Order and
will be of equal or better quality as all samples delivered to Company;
(b) The Merchandise is genuine and is not counterfeit, adulterated, misbranded,
falsely labeled or advertised or falsely invoiced within the meaning of any
applicable local, state or federal laws or regulations;
(c) The Merchandise has been labeled, advertised and invoiced in accordance with
the requirements (if applicable) of the Wool Products Labeling Act of 1939, the
Fur Products Labeling Act, the Textile Fiber Products Identification Act and any
other applicable local, state or federal laws or regulations, and the sale of
the Merchandise by Company does not and will not violate any such laws;
(d) Reasonable and representative tests made in accordance with the requirements
of the Flammable Fabrics Act (if applicable) show that the Merchandise is not so
highly flammable as to be dangerous when worn by individuals;
(e) The Merchandise is properly labeled as to content as required by applicable
Federal Trade Commission Trade Practice Rules, the Fair Labor Standards Act, the
Federal Food, Drug and Cosmetics Act and similar local, state or federal laws,
rules or regulations;
(f) The Merchandise shall be delivered in good and undamaged condition and
shall, when delivered, be merchantable and fit and safe for the purposes for
which the same are intended to be used, including but not limited to consumer
(g) The Merchandise does not infringe upon or violate any patent, copyright,
trademark, trade name, trade dress, trade secret or, without limitation, any
other rights belonging to others, and all royalties owed by Supplier, if any,
have been paid to the appropriate licensor;
(h) All weights, measures, sizes, legends or descriptions printed, stamped,
attached or otherwise indicated with regard to the Merchandise are true and
correct, and conform and comply with all laws, rules, regulations, ordinances,
codes and/or standards of Federal, state and local governments relating to said
(i) The Merchandise is not in violation of any other laws, ordinances, statutes,
rules or regulations of the United States or any state or local government or
any subdivision or agency thereof, including but not limited to all laws and
regulations relating to health, safety, environment, serial and identification
numbers, labeling and country of origin designation, toxic substances, OSHA and
EPA regulations, Federal Meat Inspection Act or Poultry Products Inspections Act
(or any other food safety statute) and the requirements of California
Proposition 65, and such Merchandise or the sale thereof by Company do not and
will not violate any such laws;
(j) All Merchandise shall have an accurate twelve (12) digit
manufacturer-assigned UPC number that complies with Company's UPC requirements,
as amended from time to time;
(k) There is no other impediment or restriction, legal or otherwise that limits,
prohibits or prevents Supplier from selling and delivering the Merchandise to
Company or limits, prohibits or prevents Company from reselling the Merchandise
to its customers;
(l) The Merchandise is mined, produced, manufactured, assembled and packaged in
compliance with the Standards; and (m) The Merchandise is not transshipped for
the purpose of mislabeling, evading quota or country of origin restrictions or
avoiding compliance with the Standards. Where applicable, Supplier agrees to
provide Company with a current, complete and accurate Material Safety Data Sheet
("MSDS") for said Merchandise.
It shall be within the sole discretion of Company to determine if
Supplier has breached the above-mentioned representations, warranties and
guarantees. In addition to the representations, warranties and guarantees
contained in this paragraph, all other representations, warranties and
guarantees provided by law, including but not limited to any warranties provided
by the Uniform Commercial Code, are specifically incorporated herein. Nothing
contained in this Agreement or an Order shall be deemed a waiver of any
representations, warranties or guarantees implied by law.
14. INDEMNIFICATION. Supplier shall protect, defend, hold harmless and indemnify
Company, including its officers, directors, employees and agents, from and
against any and all lawsuits, claims, demands, actions, liabilities, losses,
damages, costs and expenses (including attorneys' fees and court costs),
regardless of the cause or alleged cause thereof, and regardless of whether such
matters are groundless, fraudulent or false, arising out of any actual or
(a) Misappropriation or infringement of any patent, trademark, trade dress,
trade secret, copyright or other right relating to any Merchandise;
(b) Death of or injury to any person, damage to any property, or any other
damage or loss, by whomsoever suffered, resulting or claimed to result in whole
or in part from any actual or alleged use of or latent or patent defect in, such
Merchandise, including but not limited to (i) any actual or alleged failure to
provide adequate warnings, labelings or instructions, (ii) any actual or alleged
improper construction or design of said Merchandise, or (iii) any actual or
alleged failure of said merchandise to comply with specifications or with any
express or implied warranties of Supplier;
(c) Violation of any law, statute, ordinance, governmental administrative order,
rule or regulation relating to the merchandise, or to any of its components or
ingredients, or to its manufacture, shipment, labeling, use or sale, or to any
failure to provide a Material Safety Data Sheet or certification;
(d) Act, activity or omission of Supplier or any of its employees,
representatives or agents, including but not limited to activities on Company's
premises and the use of any vehicle, equipment, fixture or material of Supplier
in connection with any sale to or service for the Company; and
(e) Any installation by Supplier of Merchandise covered by this Agreement.
Supplier shall promptly notify Company of the assertion, filing or service of
any lawsuit, claim, demand, action, liability or other matter that is or may be
covered by this indemnity, and shall immediately take such action as may be
necessary or appropriate to protect the interests of Company, its officers,
directors, employees and agents. Any and all counsel selected or provided by
Supplier to represent or defend Company or any of its officers, directors,
employees or agents shall accept and acknowledge receipt of Company's Indemnity
Counsel Guidelines, and shall conduct such representation or defense strictly in
accordance with such Guidelines. If Company in its sole discretion shall
determine that such counsel has not done so, or appears unwilling or unable to
do so, Company may replace such counsel with other counsel of Company's own
choosing. In such event, any and all fees and expenses of Company's new counsel,
together with any and all expenses or costs incurred on account of the change of
counsel, shall be paid or reimbursed by Supplier as part of its indemnity
obligation hereunder. Company shall at all times have the right to direct the
defense of, and to accept or reject any offer to compromise or settle, any
lawsuit, claim, demand or liability asserted against Company or any of its
officers, directors, employees or agents. The duties and obligations of Supplier
created hereby shall not be affected or limited in any way by Company's
extension of express or implied warranties to its customers.
15. RECALLS. If Merchandise is the subject of a Recall, whether initiated by
Supplier, Company or a government entity (including the issuance of safety
notices), Supplier shall be responsible for all matters and costs associated
with the Recall, including but not limited to:
(a) Consumer notification and contact;
(b) All expenses and losses incurred by Company in connection with such Recall
(and where applicable, any products with which the Recalled Merchandise has been
packaged, consolidated or commingled), including but not limited to refunds to
customers, lost profits, transportation costs and all other costs associated
(c) Initial contact and reporting of the Recall to any government agency having
jurisdiction over the affected Merchandise.
If a government agency initiates any inquiry or investigation relating to the
Merchandise or similar goods manufactured or supplied by Supplier, Supplier
shall notify Company immediately thereof and take reasonable steps to resolve
the matter without exposing Company to any liability or risk.
16. LIMITATION OF DAMAGES. In no event shall Company be liable for any punitive,
special, incidental or consequential damages of any kind (including but not
limited to loss of profits, business revenues, business interruption and the
like), arising from or relating to the relationship between Supplier and
Company, including all prior dealings and agreements, or the conduct of business
under or breach of this Agreement or any Order, Company's cancellation of any
Order or Orders or the termination of business relations with Supplier,
regardless of whether the claim under which such damages are sought is based
upon breach of warranty, breach of contract, negligence, tort, strict liability,
statute, regulation or any other legal theory or law, even if Company has been
advised by Supplier of the possibility of such damages.
17. REMEDIES. Supplier's failure to comply with any of the terms and conditions
of this Agreement or any Order shall be grounds for the exercise by Company of
any one or more of the following remedies:
(a) Cancellation of all or any part of any undelivered Order without notice,
including but not limited to the balance of any remaining installments on a