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Exhibit 10.57
SUPPLIER AGREEMENT
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
NATIVE HAWAIIAN
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
Below.
If a TIN has not been issued, enter the
Employer's Social Security Number.
TIN: 860394353.
Type of Payee (Check Only One):
Individual/Sole Proprietorship X Corporation
Partnership Other
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SUPPLIER INFORMATION: ROCKFORD CORPORATION
PRESIDENT: GARY SUTTLE
PHONE: 4805173084
Address:
546 S. ROCKFORD DR.
ACCT EXECUTIVE OR V.P. SALES: DAN PHONE:
4805173004
MCLEOD
Address 2:
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
insufficient):
SUPPLIER NUMBER:
Room:
Expedite Orders: Phone: Extension#:
4805173032
ADDRESS TO MAIL CLAIM DOCUMENTATION:
ADDRESS TQ SEND
PRICING TICKETS:
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
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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
Agreement.
(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
therewith.
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(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
Company.
(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,
attached hereto.
(k) "Vendor Master" shall mean the
accounting department of Company responsible
for control and processing of new supplier
agreements and updates to existing
agreements.
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
such possibility.
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
such refund.
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
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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
Supplier.
(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
electronically.
(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
use;
(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
Merchandise;
(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;
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(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
alleged:
(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 C
