May 1,

Transcription

1 May 1, 2007

2 Terms & Conditions Acceptance; Entire Agreement. Acceptance by Customer of delivery of goods constitutes acceptance by Customer of the following terms and conditions. Any additional or different terms proposed by Customer shall be deemed to have been objected to by Fellowes, shall be of no force or effect, and shall not be binding upon or enforceable against Fellowes. These terms and conditions constitute the entire agreement and understanding between the parties and supersede any and all prior agreements, understandings and communications with Customer, oral or written, relating to the goods that Fellowes or any of its subcontractors may provide (collectively, the "Goods"). No course of dealing or course of performance, either prior to, during or after the delivery of the Goods, shall be relevant or admissible by Customer to supplement, explain or vary these Terms and Conditions. The invalidity or unenforceability of any Terms and Conditions shall not affect the validity or enforceability of any other term or condition of this Invoice, and the remaining terms and conditions of this Invoice shall remain in full force and effect. No waiver, amendment or modification of this Invoice shall be binding upon or enforceable against Fellowes until approved in writing by a Fellowes Authorized Signatory. Prices. Prices quoted by Fellowes are subject to change without notice. Prices billed on invoice at time of shipment shall govern. Unless otherwise stated, all prices are quoted in U.S. Dollars. Fellowes will not accept or process purchase orders that contain pricing different from the standard prices. Credit. Fellowes may, in its sole discretion, extend credit to the Customer. For credit limits in excess of $10,000, Fellowes requires audited financial statements prior to initial credit approval and on an annual basis thereafter. Fellowes shall perform periodic credit reviews using credit reporting agencies, trade references, industry trade groups and banks. In the event of a material adverse change in Customer s credit standing or in the event that Customer does not comply with the terms of these provisions, Fellowes shall have the right to change terms of payment, and Fellowes obligation to provide Goods will be subject to reaching mutual agreement on revised terms. Payment. All payments are to be made in U.S. Dollars, and all amounts payable by Customer shall be due and payable in full 30 days after invoice date. Fellowes will not accept the unilateral assessment of any fee, marketing support, co-op or other advertising, expense reimbursement, rebate, offset or any other financial or marketing support not explicitly authorized in writing by an authorized officer of Fellowes. Any amounts not paid in full within 30 days after invoice shall be subject to a late payment charge of 1-1/2% per month (or, if less, the maximum amount permitted by law) from the date due until paid. Fellowes obligation to provide Goods is subject to receipt of prompt payment of all invoices pursuant to the terms of this and other agreements we may have with Customer. Progress billing of interest due or a failure to bill for interest due shall not constitute a waiver of Fellowes right to charge interest on all amounts past due to the date payment is received. Should any portion of an invoice become disputed you agree to pay the undisputed portion according to its terms, and you will notify us promptly of the dispute. Both parties agree to use their best efforts to resolve the disputed portion of such invoice within 30 days. Fellowes shall have the right to set off against any amount that Fellowes may be obligated to pay to Customer any amounts due or to become due to Fellowes from Customer and its divisions, subsidiaries and affiliated companies. Fellowes may assign payments due to a wholly owned subsidiary without consent. Delivery. Delivery dates for the Goods shall be established by mutual agreement of Fellowes and Customer. The minimum order size is $500. Minimum order size for prepaid shipments is $1,000. Fellowes may at its option accept orders not meeting the minimum order size subject to a shipping and handling fee. All deliveries will be made in accordance with the Fellowes Domestic Shipping Guide, a current copy of which can be found at Unless this Invoice expressly specifies otherwise, all Goods shall be delivered F.O.B. the shipping platform at the shipping facility, and all shipping and transportation costs from the shipping platform at such facility shall be borne by Customer and all risk of loss, damage or late delivery shall pass to Customer upon loading at the shipping platform at such facility. Fellowes shall have no responsibility for any failure of or delay in delivery caused by or attributable to war, sabotage, riot, civil disorder, fire, flood, earthquake, explosion, accident, natural or manmade disaster, governmental action, shortage or interruption of supply of materials, supplies, equipment or energy, transportation problem, strike, labor stoppage or slowdown, or other cause beyond the reasonable control of Fellowes. Taxes. The prices for the Goods do not include sales, use and other taxes, duties and other governmental fees and charges that may be applicable to the Goods, and Customer shall be responsible for and pay upon demand all such taxes, duties and other governmental fees and charges (other than income taxes of Fellowes), - 1 -

3 notwithstanding that responsibility for collection or payment of such taxes, duties and other governmental fees and charges may be imposed by law on Fellowes or any of its subcontractors. LIMITED WARRANTY; LIMITATIONS ON LIABILITY. Fellowes grants a limited warranty to the end-users of its Goods, the terms of which are included with each product. Fellowes warrants to the Customer solely that, subject to the terms, conditions and limitations hereof, the Goods conform to the specifications set forth in the Fellowes catalog and will be transferred to customer free and clear of any and all encumbrances. FELLOWES MAKES NO OTHER WARRANTIES AND GIVES NO OTHER ASSURANCES OR GUARANTEES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY GOODS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. FELLOWES SOLE LIABILITY IN CONNECTION WITH ANY GOODS THAT ARE DEFECTIVE OR DELIVERED LATE SHALL BE LIMITED TO EITHER (i) REFUNDING TO THE CUSTOMER A PERCENTAGE OF THE TOTAL PRICE (EXCLUSIVE OF TAXES, SHIPPING AND OTHER SEPARATE CHARGES) THAT THE CUSTOMER HAS PAID TO FELLOWES FOR ALL GOODS PROVIDED EQUAL TO THE PERCENTAGE OF ALL GOODS PROVIDED THAT ARE DEFECTIVE OR DELIVERED LATE DUE TO THE SOLE FAULT OF FELLOWES AND ITS SUBCONTRACTORS, OR (ii) AT FELLOWES OPTION, REPLACING FOR THE CUSTOMER, AT NO CHARGE TO THE CUSTOMER, THE GOODS THAT ARE DEFECTIVE OR DELIVERED LATE DUE TO THE SOLE FAULT OF FELLOWES AND ITS SUBCONTRACTORS. IN NO EVENT SHALL FELLOWES OR ANY OF ITS SUBCONTRACTORS BE LIABLE FOR (i) ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, INTEREST, LOST PROFITS OR INTERRUPTION OF BUSINESS), EVEN IF FELLOWES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES RESULT FROM ANY RECOMMENDATIONS MADE BY FELLOWES, OR (ii) ANY LOSSES, DAMAGES, LIABILITIES, SUITS OR CLAIMS THAT ARE COVERED BY ANY INSURANCE MAINTAINED BY OR ON BEHALF OF THE CUSTOMER OR ARE OTHERWISE RECOVERABLE FROM THIRD PARTIES. IN ADDITION, THE LIABILITY OF FELLOWES AND ITS SUBCONTRACTORS FOR LOSSES, DAMAGES, LIABILITIES, SUITS AND CLAIMS, REGARDLESS OF THE FORM OF ACTION (WHETHER BASED ON CONTRACT, ON NEGLIGENCE, ON STRICT LIABILITY OR OTHERWISE) AND THE PERSON OR ENTITY BRINGING SUCH ACTION, SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT (EXCLUSIVE OF TAXES, SHIPPING, AND OTHER SEPARATE CHARGES) ACTUALLY PAID TO FELLOWES BY THE CUSTOMER FOR THE GOODS AT ISSUE. ANY ACTION AGAINST FELLOWES MUST BE BROUGHT WITHIN ONE YEAR OF THE CAUSE OF ACTION FIRST ARISING. Claims by Customer. Customer shall notify Fellowes via Fax at (203) shortages or overages that occur detailing PO #, item #, quantity ordered, and quantity received. All such notifications must be made within 72 hours of receipt of the Goods. A Fellowes Customer Service Representative will respond with the proposed resolution within two weeks. All claims by Customer with respect to any invoice, including, but not limited to, claims related to defects and late delivery in connection with any Goods, must be submitted to Fellowes in writing within a period of 30 days from earlier of the date of receipt or the date of invoice. Any claims not submitted in writing within such 30-day period shall be deemed to have been waived by Customer, and failure to submit a claim within such 30-day period shall constitute irrevocable acceptance of and an admission that the Goods meets all specifications and delivery requirements and otherwise fully complies with these Terms and Conditions. Governing Law; Consent to Jurisdiction; Etc. All transactions between the parties shall be governed by and construed and interpreted in accordance with the laws (other than laws relating to conflicts of law) of the State of Illinois. Customer irrevocably consents and submits to the jurisdiction of any federal or state court in the State of Illinois for any action by Fellowes to collect any amount due to Fellowes in connection with the Goods, and Fellowes shall be entitled to recover from Customer all attorneys' fees and other costs and expenses that Fellowes may incur in connection with any such action. Fellowes. References in this Packet to "Fellowes" include Fellowes, Inc., and its divisions, subsidiaries and affiliated companies, and references in this Packet to "Customer" include the person or entity specifically identified in this Invoice as "Customer" and its divisions, subsidiaries and affiliated companies

4 Authorized Territory/ Exclusive Product Line Fellowes and Customer hereby agree that Customer is authorized to sell Fellowes products solely for shipment, directly or indirectly, within the continental United States. Further, Customer agrees that under no circumstances will Customer sell Fellowes products, directly or indirectly, to the following entities, including subsidiaries and joint ventures, regardless of location: Best Buy, Inc. Circuit City CompUSA Meijer Fry s Electronics Costco Sears/Kmart Office Depot OfficeMax Radio Shack Staples Target Wal-Mart Airports Duty-Free Shops Apple, Inc. The Authorized Territory may be amended from time to time in writing by the parties hereto. Any sales outside of the Authorized Territory must be approved by Fellowes, in writing, before solicitation. Both parties hereto agree that any violation of this section constitutes a material breach of this Agreement that will result in immediate termination and forfeiture of any and all Marketing Support dollars. Notwithstanding termination under this provision, any obligations owed to Fellowes by Customer shall survive the Agreement. Customer shall promptly report any sales made that do not conform to said Authorized Territory and shall disgorge to Fellowes any profits derived therefrom. Customer represents and warrants that it will not market or distribute any products which are substantially similar to the Fellowes Body Glove designs. In addition, Customer represents and warrants that it will not divert opportunities for sales of Fellowes Body Glove products to other products carried by Customer. In addition to legal and equitable remedies for violations of the foregoing, Fellowes has the right to immediately terminate any distribution rights of Customer. Fellowes shall in no way be obligated to repurchase any inventory of Customer

5 Lead Time and Forecasting Policy The Customer shall provide Fellowes with a ninety (90) day on or before the twenty-fifth (25 th) of each month, of which the Firm Forecast will go into effect thirty (30) days out or the first of the following month. The first thirty (30) days of that ninety (90) day forecast will be considered a firm forecast (Firm Forecast). Any Firm Forecast will communicate the Customer s intent to purchase said forecasted products and will be followed by a purchase Order document on or before the last day of the applicable month. The Customer s thirty (30) day Firm Forecast may be plus or minus 10% in accuracy, Accuracy Tolerance. This means that the customer may Order up to ten percent (10%) less than the Products in the thirty (30) day Firm Forecast without penalty or cost. If, however, the Accuracy Tolerance exceeds minus 10% Fellowes reserves the right to charge the Customer up to 50% of the shortfall. If the Customer s actual purchases are in excess of those quantities identified in the forecast by greater than ten percent (10%), or Customer requests adjustments to inventory levels greater than ten percent (10%) due to an updated/revised/adjusted thirty (30) day firm forecast, the estimated lead-time will be adjusted up to 60 days. Unless otherwise mutually agreed upon in writing, lead-time for all PACKAGED Product and/or Services within the Firm Forecast timeframe shall be three business days from time of acceptance of a Purchase Order to dispatch within the continental United States, provided the Purchase Order is within the Accuracy Tolerance. Should the Customer fail to provide an updated forecast on the twenty-fifth (25 th ) of the month, then the forecast provided the previous month shall represent the Customer s estimated demand for the following month, Example 90-day rolling and 30 day firm forecast: Forecasted purchase provided Dec. 25th Actual units purchased in Jan. January February March 1000 units 1200 units 1300 units 900 units 1080 units 1170 units For example, the ninety (90) day forecast submitted on December 25 th is the 30 day Firm Forecast starting February 1 st. January s forecast would have been firm on November 25 th. In the example above, if Customer were not to provide a forecast on January 25 th, then February s quantity of 1200 units would become the firm forecast for February. Customer Return Policy - 4 -

6 The Fellowes name has stood for quality and value since our inception in We focus on ensuring that the products we put our name on are top quality. Listed below is an updated Customer Return Policy. This agreement overrides any previous agreements, and can only be altered by an officer of Fellowes. The major change involves an updated return policy that we have instituted as of October 1, 2006 following the restructuring of prices. We are committed to reducing the nonvalue-added costs associated with returned products. We view this as an opportunity in partnership with our customers to eliminate costs on both sides of the equation. Returns Fellowes will not accept the return of defective products. Fellowes will not accept the return of products that have been discontinued. Overstock Merchandise Fellowes evaluates overstock return requests on a case-by-case basis. Special order and custom products may not be returned. Items on the promotional or liquidation grid sections may not be returned. Overstock returns will be subject to a 20% restocking charge and will require a stock-balancing ratio of 2 new units, of equivalent value, ordered for each 1 unit returned. To qualify for credit, all merchandise must be returned in full and in salable condition. External Shipping Damage If you receive shipping cartons from a package carrier (UPS, Federal Express, etc.) that show obvious damage, we ask that you refuse the shipment. If you receive a Less Than Truckload (L.T.L.) or Trailer Load shipment that shows obvious damage, we ask that you list the damage on the carrier s delivery receipt and accept receipt of the shipment. In all cases, please contact Customer Service within 72 hours to be credited for shortage or damage. Concealed Shipping Damage or Shipment Errors In order to receive a credit, please notify Fellowes Customer Service of any concealed damage or shortage within 72 hours of delivery. Shipping Return Merchandise to Fellowes 1) Return merchandise must be shipped to Fellowes prepaid unauthorized collect shipments will be refused. 2) Reference your RA number and include a packing list, which includes item numbers, quantities, and number of skids and return-from store number (if applicable). 3) Products must arrive in complete condition, with all pieces and manuals in the original unit outer and packaging without store stickers or shipping labels. No credit will be issued for damaged product. Damaged product, not accepted by Fellowes, may be requested to be returned, to the customer, at customer s expense. 4) Please package all products to prevent shipping damage. Fellowes will not be responsible for damage that occurs in transit. 5) All returned merchandise MUST be returned to the following address: Body Glove Attn: Returns Dept RA # 250 Dodge Ave East Haven, CT

7 EDI Guidelines To assist in the organization, ease and cost minded approach to business, Fellowes incorporates several Electronic Data Interchange (EDI) transactions with customers that are able to comply with ANSI standards. Fellowes choice of EDI standard is ANSI Transactions that are supported by Fellowes are: Invoice Purchase Order Advance Shipment Notification Purchase Order Change Electronic Funds Transfer The following steps and timelines are necessary to build the electronic relationship for EDI: Step Description 1. Prospective EDI customer to send requirements to Fellowes for review 2. Fellowes will create the desired layout based on ANSI standards of customer Timeline 2 weeks to review and respond with concerns/problems 4 weeks 3. Test phase 1 week 4. Parallel phase As Requested 5. Go live Based on completion and satisfaction of prior steps Fellowes can establish EDI relationships with customers who meet minimum annual purchase volume of at least $250,000. If your company qualifies, please advise your sales representative. Once an EDI relationship is established, both parties must mutually agree in writing to any additions or changes, including the implementation times of such changes. In all electronic relationships, each party will be responsible for their respective costs of implementation and operation

8 Fellowes Directory Fellowes, Inc. 250 Dodge Ave East Haven, CT Main Telephone: (877) Main Fax: (203)