DEALER AGREEMENT
BUSINESS TELEPHONE SYSTEMS DIVISION
PANASONIC COMMUNICATIONS & SYSTEMS COMPANY, DIVISION OF
MATSUSHITA ELECTRIC CORPORATION OF AMERICA
AGREEMENT effective as of 19 by and between
PANASONIC COMMUNICATIONS & SYSTEMS COMPANY, DIVISION OF MATSUSHITA ELECTRIC
CORPORATION OF AMERICA, a Delaware corporation with its principal place of
business at Two Panasonic Way, Secaucus, New Jersey 07094 ('PCSC') and
All Communications
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(Full legal name under which dealer conducts business)
a Corporation
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(corporation partnership sole proprietorship)
with its principal place of business at 7 Lincoln Highway Suite 224, Tower Bld
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(Street Address)
Edison, Middlesex, New Jersey 08820
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(City, County, State, Zip Code)
('DEALER')
WITNESSETH:
WHEREAS, PCSC sells and desires to sell through others in the United States
certain DBS business telephone systems and related products hereinafter set
forth; and
WHEREAS, DEALER desires to sell at retail and to service those certain DBS
business telephone systems and related products of PCSC upon the terms and
conditions set forth herein;
WHEREAS, DEALER desires to sell those certain DBS business telephone
systems and related products of PCSC at retail and to become an Authorized
Dealer thereof, upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein set forth, the parties agree as follows:
1. DEFINITIONS:
As used herein, the following terms shall have the following meanings:
1.1 'Products', as used herein, shall mean only the DBS business telephone
systems and related products therefor which are set forth on Exhibit A
attached hereto and made a part hereof. PCSC shall have the right, at
any time and from time to time, in its sole and absolute discretion, to
make any deletion from, amendment or addition to, or modification
or substitution of, said Exhibit A, upon written notice to DEALER.
1.2 'Territory', as used herein, shall mean only that geographic area set
forth in Exhibit B attached hereto and made a part hereof. PCSC shall
have the right, at any time and from time to time, in its sole
discretion, to make any deletion from, amendment or addition to, or
modification or substitution of, Said Exhibit B, upon written notice to
DEALER.
1.3 'Duly authorized representative', as used herein with respect to PCSC,
shall mean only a General Manager or officer of PCSC, and, as used
herein with respect to DEALER, shall mean any person who holds himself
out or purports to be a duly authorized representative of DEALER, except
if PCSC has actual knowledge to the contrary.
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2. APPOINTMENT AS AN AUTHORIZED DEALER OF THE PRODUCTS:
PCSC hereby appoints DEALER as a non-exclusive retail Authorized Dealer of
the Products in the Territory and authorizes DEALER to sell Products only at
retail (i.e., to end-use customers) to customers with facilities located in the
Territory and only from the sales location(s) set forth in Exhibit C, attached
hereto and made a part hereof, in accordance with the terms, provisions and
conditions of this Agreement. Notwithstanding anything to the contrary herein,
PCSC reserves the unrestricted right to solicit and make direct sales of the
Products to anyone, anywhere, and to appoint additional dealers of the Products
and/or distributors, sales agent or sales representatives for the Products in
the Territory and elsewhere, as in PCSC's best judgment may from time to time be
desirable, without any obligation to DEALER of any kind, including, without
limitation, for any commissions or other charges upon or in respect of any such
sales or sales. PCSC reserves the absolute right in its sole discretion for any
reason whatsoever to increase or decrease the number and locations of Authorized
Dealers at any time without notice to DEALER.
3. ACCEPTANCE OF APPOINTMENT AS AN AUTHORIZED DEALER:
3.1 DEALER hereby accepts appointment as a non-exclusive retail Authorized
Dealer of the Products in the Territory, agrees to sell the Products
only at retail (i.e., to end-use customers) to customers with facilities
located in the Territory and only from the sales location(s) set forth
in Exhibit C in accordance with the terms, provisions and conditions of
this Agreement. DEALER shall not engage in the sale of the Products at
any other sales location or outlet in which DEALER has, or hereafter
acquires, any interest, directly or indirectly, without obtaining PCSC's
prior writeen approval for such location or outlet, in the form of an
amendment to Exhibit C. DEALER shall, upon request by PCSC, provide PCSC
with a current and accurate list of all of its retail selling locations
or outlets. DEALER also agrees and undertakes to use and devote its best
efforts to promote and to maximize the sale at retail of the Products to
all end-use customers and all potential end-use customers thereof in the
Territory, and to develop, promote and maintain the goodwill and
reputation of PCSC and of the Products throughout the Territory.
3.2 In accepting this appointment, DEALER agrees to perform a retail
function only. DEALER shall not sell, assign or transfer any Products to
any person or entity for resale, without PCSC's prior written consent.
4. DEALER'S RIGHT TO PURCHASE THE PRODUCTS:
4.1 As an Authorized Dealer of the Products, DEALER shall have, during the
term hereof, the non-assignable and non-transferable right to purchase
the Products from PCSC upon such terms and conditions, and at such
prices, as may be established or modified by PCSC, in its sole and
absolute discretion, from time to time; provided, however, that in
addition to all of its other rights hereunder, PCSC shall have the
absolute right to limit its sales of the Products hereunder to
quantities which PCSC believes, in its sole and absolute discretion, are
sufficient to satisfy DEALER's retail requirments.
4.2 PCSC agrees that DEALER may submit orders on its purchase order form, if
any; provided, however, that the terms of this Agreement shall solely
govern the sale of the Products, and that any printed terms of DEALER's
purchase order, and any other terms, provisions or conditions in
DEALER's purchase order which vary from, or are inconsistent with,
contrary to, or in addition to, the terms, provisions and conditions of
this Agreement, shall be null and void.
4.3 (a) Any purchase order submitted to PCSC by DEALER shall be subject to
PCSC's confirmation, and, upon confirmation by PCSC, shall be firm
and uncancellable, and shall not be subject to rescheduling by
DEALER, except upon the prior written consent of PCSC. PCSC shall
have the right, in its sole and absolute discretion, to reject any
purchase order of DEALER in whole or in part and to allocate a
limited supply of Products among PCSC's customers, including DEALER.
(b) PCSC does not warrant to DEALER the continued availability of any of
the Products, and DEALER hereby expressly releases PCSC from
liability for any loss or damage to DEALER in any way arising out of
or by virtue of the failure of PCSC to accept or fill any orders.
4.4 PCSC reserves the right to change the design of any of the Products, or
to discontinue the sale thereof, from time to time and at any time. If
any such change in design is made, PCSC shall have no obligation to
modify any of the Products previously delivered to DEALER, or to install
or furnish any other or different parts that were included in any such
Products when delivered to DEALER.
5. MINIMUM PURCHASE QUOTA:
PCSC shall establish Minimum Purchase Quotas for the Products which DEALER
will be expected to purchase from PCSC.
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6. SHIPMENT; DELIVERY; TITLE AND RISK OF LOSS; DEFECTS; RETURNS:
6.1 All deliveries of Products shall be 'F.O.B. Secaucus, New Jersey' which
means that title and risk of loss shall pass to DEALER, or to such
financing institution or party as DEALER may have designated, when the
Products are put into the possession of the carrier, at which time PCSC
shall be deemed to have completed good delivery. PCSC reserves the right
to select the means of shipment, point of shipment and routing. Each
purchase order submitted by DEALER to PCSC for any Products hereunder
shall require delivery to be made only to the sales location(s) set forth
in Exhibit C.
6.2 Delivery dates set forth in any confirmation or acknowledgement of
purchase order shall be deemed to be estimated only, and PCSC shall not be
liable for any losses or damages whatsoever, including, without
limitation, direct, indirect, special, consequential or incidental
damages, that may arise out of the failure to delivery, or the prevention
of, or delay in the delivery of, any shipment or any part of any shipment
with respect to the Products, due to any cause or reason whatsoever. PCSC
will ship any such order or portion thereof subject to availability of the
Products and DEALER will accept shipment of such order of any portion
thereof (in the event that the entire order cannot be filled for any
reason) at the time it is delivered. If DEALER refuses to accept any such
shipment, the shipment, at PCSC's option, may be held for DEALER's account
and DEALER shall be invoiced, and shall promptly pay, for such shipment,
including all freight handling, warehouse and other related costs
associated with DEALER's refusal to accept such shipment.
6.3 DEALER shall, not later than fifteen (15) days following receipt of
delivery of any Products, notify PCSC in writing of any defects in such
Products. If DEALER shall fail to provide such written notice to PCSC
within this period, the Products shall be deemed conclusively to have been
received by DEALER without defects.
6.4 DEALER understands and agrees that no Products may be returned to PCSC,
and will be rejected by PCSC, unless DEALER has prior thereto received a
written Return Merchandise Authorization from PCSC. DEALER shall be solely
responsible for all freight charges in connection with the return of
Products to PCSC (and the rejection thereof by PCSC if no Return
Merchandise Authorization has been obtained).
7. PAYMENT:
7.1 DEALER shall pay each PCSC invoice for Products according to its terms,
without any set-off or claim, except in the amounts of any written credit
memorandum issued by PCSC to DEALER prior to the due date of the
outstanding invoice. Each shipment of Products to DEALER shall constitute
a separate sale, obligating DEALER to pay therefor, whether any such
shipment be in whole or partial fulfillment of any purchase order of
DEALER or confirmation by PCSC issued in connection therewith.
7.2 If DEALER shall fail to pay any invoice for Products within the terms
provided for, or in the event that PCSC, in its sole and absolute
discretion, deems DEALER's financial condition inadequate or
unsatisfactory to PCSC for any reason whatsoever, PCSC shall have the
right, in addition to its other rights hereunder or otherwise, to cancel
any order(s) of DEALER for Products theretofore accepted, or to delay any
further shipments to DEALER, or to require payment for the Products in
cash prior to their delivery to DEALER, without incurring any liability
for loss of damage of any kind occasioned by reason of any such
cancellation or delay. PCSC reserves the right at any time to decrease,
eliminate or otherwise limit the amount or duration of credit extended to
DEALER in general and/or with respect to any specific purchase order.
7.3 Any payments to be made by DEALER to PCSC which are not made according to
the terms and within the time provided for shall be subject to late
payment charges of the lesser of (i) 1-1/2% per month or (ii) the then
maximum legal monthly rate of interest in the state(s) in which DEALER's
authorized sales location(s) is (are) located, which DEALER hereby agrees
to pay.
7.4 In the event that DEALER is entitled, pursuant to PCSC's policies and
procedures, to a credit for any Products that have been properly returned
subsequent to payment therefor, a credit shall be issued to DEALER against
any future payments to be made by DEALER to PCSC for purchases of
Products, or if DEALER is not, at the time such credit arises, an
Authorized Dealer of the Products, DEALER will be reimbursed therefor if
it is not then indebted to PCSC and has no undelivered orders for Products
at the time any such credit arises.
7.5 DEALER represents and warrants that all Products purchased hereunder are
for resale only in the Territory and at retail in the ordinary course of
DEALER's business only from the sales location(s) set for in Exhibit C and
that DEALER has complied and/or will comply with all applicable state and
local laws relating to the collection and/or payment by DEALER of sales,
use and similar taxes applicable to all such resale transactions. DEALER
agrees to indemnify and to save and hold PCSC harmless from all costs
whatsoever, including without limitation, reasonable attorney's fees and
litigation costs, arising out of DEALER's breach of this warranty and/or
failure to collect or pay any of the aforementioned taxes. DEALER will be
charged sales tax by PCSC unless it has on file with PCSC a valid resale
certificate.
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8. DEALER'S SALE AND SERVICE OF PRODUCTS:
8.1 During the term of this Agreement, DEALER agrees to purchase from PCSC,
and to maintain in inventory at all times, a quantity of Products
sufficient for and consistent with the needs of DEALER's customers in the
Territory.
8.2 (a) DEALER agrees to establish and maintain a sales and marketing
organization, with competent personnel of high character who are
expert in the specifications and features of the products,
sufficient to develop to PCSC's satisfaction the marketing potential
for the sale of the Products in the Territory, and facilities and a
distribution organization in the Territory sufficient to make the
Products available for immediate shipment by DEALER, if requested,
on receipt of orders therefor from customers in the Territory.
(b) DEALER hereby agrees that it shall:
1. promote, display and demonstrate the Products in a manner
which is attractive and is consistent with the Products'
reputation for high quality, and which is at least equivalent
to DEALER's promotion, display and demonstration of competing
products;
2. at all times, stock demonstrator equipment which is
representative of the Products, properly maintained and
adequate for the purpose of demonstrating the same to end-use
customers and potential end-use customers thereof and shall
make such demonstrations, by sales staff sufficiently educated
and with such ability, as shall be necessary and appropriate
to promote the sale of the Products; and
3. attractively display and make available to prospective end-use
customers such Product literature as may be provided by PCSC
from time to time.
(c) DEALER shall call upon and service all of its customers with
reasonable frequency. DEALER shall also solicit potential new
customers for the Products in all parts of the Territory and shall
cooperate in such advertising and sales promotion programs for the
Products as PCSC nay provide so as to promote and maximize the sale
of the Products throughout the Territory.
(d) DEALER agrees that its sales and service personnel shall, at
DEALER's expense, attend such product sales and service training
sessions as PCSC may offer from time to time.
(e) DEALER agrees that, in connection with the conduct of its business,
it shall adhere to and comply with all applicable sales and
marketing policies and programs of PCSC.
(f) DEALER shall at all times comply with all applicable present and
future Federal, state and local statutes, laws, rules, regulations
and ordinances.
(g) it is an express condition of this Agreement that at all times
during the term of this Agreement DEALER be fully qualified,
equipped and prepared to provide customers in the Territory with
technical assistance and service with regard to the installation,
use, maintenance and repair of the Products in accordance with any
policies and procedures that may be established by PCSC from time to
time.
9. WARRANTY; DISCLAIMER:
9.1. If any Product furnished hereunder is believed to be initially defective,
i.e., defective at the time of delivery to DEALER, DEALER shall return the
Product to PCSC for replacement. If PCSC, in its sole and absolute
discretion, determines that the returned Product was not initially
defective, it shall be repaired, if necessary, as returned to DEALER each
at DEALER's sole cost and expense, and DEALER shall be invoiced for the
cost of the replacement unit. The foregoing constitutes DEALER's sole
remedy with respect to initially defective Products; DEALER shall have no
right to reject all or any part of any shipment of Products furnished
hereunder because any or all of such Products may be initially defective.
9.2 PCSC warrants to DEALER only that each unit of Products which is sold to
DEALER hereunder shall be free from defects in materials, design or
workmanship for a period of one (1) year from the date of delivery of such
unit to DEALER at the F.O.B. point. In the event that a unit of the
Products shall prove to be defective in materials, design or workmanship
during the aforesaid warranty period, PCSC shall, in its sole discretion,
repair said defective Product unit, replace it or credit DEALER's account
for the cost to DEALER of the same from PCSC and DEALER shall, at PCSC's
option, return the defective Product unit to PCSC or dispose of it at
DEALER's cost and expense. This warranty does not cover damage which
results from a failure to perform recommended normal maintenance,
alteration, accident, misuse or abuse; nor does it cover defects in or
which result from the use of defective accessories, parts or supplies not
sold by PCSC.
9.3 THE WARRANTIES SET FORTH IN THIS PARAGRAPH 9 ARE EXCLUSIVE AND ARE IN LIEU
OF ALL OTHER WARRANTIES, OTHER THAN WARRANTY OF TITLE, WHETHER ORAL OR
WRITTEN, EXPRESS OR
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IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A
PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY WAIVED BY DEALER. The
employees and agents of PCSC are not authorized to make modifications to
such warranties, or additional warranties binding on PCSC; accordingly,
additional statements, whether oral or written, do not constitute
warranties and should not be relied upon by DEALER. PCSC's liability under
such warranties shall be limited solely to the cost of any necessary
repairs to, replacements of or refunds of DEALER's purchase price for, the
Products, and PCSC assumes no risk of, and shall not in any case be liable
for, any other damages, including, without limitation, any special,
incidental, consequential or punitive damages, arising from breach of
warranty or contract, negligence or any other legal theory, including,
without limitation, loss of goodwill, profits or revenue, loss of use of
the Products or any associated equipment, cost of capital, cost of any
substitute equipment, facilities or services, downtime costs, or claims of
any party dealing with DEALER for such damages.
9.4 No suit shall be brought on an alleged breach of PCSC's warranty more than
eighteen (18) months following delivery of the Product to DEALER.
9.5 This warranty allocates the risks of Product failure between PCSC and
DEALER, as authorized by the Uniform Commercial Code and other applicable
law. PCSC's Product pricing reflects this allocation of risk and the
limitations of liability contained in this Agreement.
10. SALES MATERIALS:
10.1 (a) PCSC shall, at PCSC's cost, furnish DEALER with sales, advertising
and promotional material, specification sheets and other collateral
materials relating to the Products, if any, in quantities to be
determined by PCSC, in its sole and absolute discretion. Additional
quantities of such literature and materials may be purchased by
DEALER from PCSC at prices established by PCSC from time to time.
DEALER may not copy or reproduce any such materials without the
prior written consent of PCSC, and such materials shall be used by
DEALER solely in connection with the sale of the Products hereunder.
(b) All sales, advertising, promotional and other material provided to
DEALER by PCSC without charge which are not furnished by DEALER to
its customers shall at all times remain the property of PCSC, and
DEALER agrees to immediately return all such material in the
possession of DEALER whenever requested to do so by PCSC and, in any
event, immediately upon expiration or earlier termination of this
Agreement. DEALER shall be responsible to PCSC for any loss of, or
damage to, such materials.
11. INDEMNITY; INSURANCE:
11.1 PCSC shall maintain products liability insurance on the Products with a
broad form vendors' endorsement. A certificate of insurance shall be
provided to DEALER upon DEALER's written request therefor.
11.2 DEALER agrees to and shall indemnify and hold PCSC harmless against any
and all liability, damage or expense (including costs and attorney's fees
and expenses) by reason of, arising out of, or relating to, any acts,
duties, obligations or omissions of DEALER or of DEALER's employees,
representatives or agents, in connection with DEALER's performance under
this Agreement, and DEALER shall, at the request of PCSC, assume the
defense of any demand, claim, action, suit or proceeding brought against
PCSC by reason thereof and pay any and all damages assessed against, or
that are payable by, PCSC as the result of the disposition of any such
demand, claim, action, suit or proceeding. Notwithstanding the foregoing,
PCSC may be represented in any such action, suit or proceeding at its own
expense and by its own counsel. In addition, DEALER agrees to reimburse
PCSC for any and all costs and attorney's fees and expenses incurred by
PCSC in successfully enforcing the provisions of this paragraph, whether
by prosecution of a lawsuit or otherwise. The provisions of this paragraph
shall survive indefinitely the termination of this Agreement.
11.3 DEALER shall procure and maintain, in full force and effect, a
comprehensive general liability insurance policy or policies with the
standard Insurance Service Office broad form endorsement, deleting
exclusion B1 from the personal injury section, protecting DEALER and PCSC
and their officers and employees against any loss, liability or expense
whatsoever, including, without limitation, any loss, liability or expense
due to personal injury, death or property damage or otherwise arising out
of or occurring in connection with the business of DEALER. PCSC shall be
an additional insured in such policy or policies, which shall be written
by a responsible insurance company or companies licensed to do business in
the states in which DEALER conducts its business and not unacceptable to
PCSC, with a combined single limit of not less than $1,000,000 for bodily
injury or death and for property damage. Such policy or policies shall
provide that they will not be cancelled or altered without at least thirty
(30) days prior written notice to PCSC. Within ten (10) days after
execution of this Agreement, DEALER shall furnish PCSC with a certificate
of such insurance,
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together with satisfactory evidence that the premiums therefor have
been paid. Maintenance of such insurance and the performance by DEALER
of its obligations under this paragraph shall not relieve DEALER of
liability under the indemnity provisions hereinabove set forth in
Paragraph 11.2.
11.4 DEALER shall procure and maintain, in full force and effect, Worker's
Compensation Insurance, within the limits required by applicable
Federal and state statutes. Within ten (10) days after execution of
this Agreement, DEALER shall furnish PCSC with a certificate or
certificates of such insurance, together with satisfactory evidence
that the premiums therefor have been paid.
12. RECORDS; REPORTS:
12.1 DEALER shall at all times keep and maintain at its place of business
herein set forth accurate books, records, correspondence and data of
all transactions pertaining to this Agreement, and shall at all times
make available and permit PCSC or its authorized representatives to
examine or take extracts or copies of the same during normal business
hours. All such books, records, correspondence and data shall be
retained by DEALER during the term of this Agreement and for a period
of one (1) year after the date of termination or expiration of this
Agreement, and thereafter PCSC's rights with respect to the same shall
cease.
12.2 DEALER shall at all times make available to PCSC such of its records as
are necessary for PCSC to fulfill any recall or other obligations PCSC
deems necessary under Federal, state or local statutes, laws, rules or
regulations, and such obligations shall survive and continue
indefinitely after termination or expiration of this Agreement.
12.3 DEALER shall prepare and forward, as required by PCSC, any and all
reports PCSC deems necessary for the carrying on of the mutual business
of DEALER and PCSC.
13. FINANCIAL STATEMENTS; SECURITY INTEREST:
13.1 DEALER agrees to maintain adequate capital to operate its entire
business and carry out its obligations and responsibilities hereunder.
DEALER shall, annually and at any reasonable time upon written request,
furnish PCSC with a current Balance Sheet and Profit and Loss Statement
certified by DEALER's Chief Financial Officer or a certified public
accountant, together with such additional information relating to
DEALER's financial condition as PCSC may reasonably require. If DEALER
is a corporation or partnership, it shall provide PCSC at any time upon
written request with a list of its shareholders and their respective
shareholdings, or of its partners and their respective interests, as
the case may be.
13.2 DEALER has represented to PCSC, as an inducement to PCSC to enter into
this Agreement, that the financial statements of DEALER provided to
PCSC as part of its application for this Agreement are complete and
accurate, and that Dealer is not only solvent, but is in good,
substantial and stable financial condition. DEALER does not possess any
information that would indicate that DEALER will not continue to be in
good substantial financial condition in the future.
13.3 PCSC shall have, and is hereby granted, a security interest in all
inventory of Products sold by PCSC to DEALER pursuant hereto, and in
all proceeds and products therefrom, whether now held or hereafter
acquired, including, without limitation, all accounts receivable, notes
receivable, contract rights and other commercial paper of any kind
arising from the sale by DEALER of the Products covered hereby, to
secure the full and prompt payment and/or performance of all
obligations hereunder and otherwise of DEALER to PCSC. DEALER hereby
expressly agrees to execute such documents as are deemed necessary by
PCSC to effectuate and perfect the security interest granted herein and
further authorizes and irrevocably appoints PCSC as its
attorneys-in-fact to sign and file in DEALER's name Uniform Commercial
Code Financing Statement(s) and such other documents as PCSC may
request, including, with limitation, a security agreement, to implement
the foregoing, without DEALER's signature for the express purposes set
forth herein. It is understood and intended by DEALER that said power
of attorney is coupled with an interest.
14. ASSIGNMENT:
14.1 (a) Neither this Agreement nor any of the rights or interests of DEALER
hereunder may be assigned, transferred or conveyed by operation of
law or otherwise, nor shall this Agreement nor any rights of DEALER
hereunder inure to the benefit of any trustee in bankruptcy,
receiver, creditor, trustee of, or successor to, DEALER's business
or its property, whether by operation of law or otherwise, or to a
purchaser, transferee, assignee of, or successor to, all or any
part, of the capital stock, if any, the business, or the assets, of
DEALER, without the prior written consent of PCSC.
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(b) DEALER agrees to give PCSC immediate notice in writing of (i) any
transaction affecting ownership of more than five percent (5%) of
DEALER's capital stock, if DEALER is a corporation, or (ii) any
change in the representative interests of the partners, if DEALER
is a partnership, or (iii) any transaction affecting the ownership
of any part of the business, if DEALER is a sole proprietorship.
14.2 The relationship created by this Agreement is not an asset or property
of DEALER, or any partner, stockholder, employee, agent, principal or
other individual in any manner associated with DEALER or his or her or
its estate or other legal representative, and cannot be sold.
15. DEALER'S STATUS:
15.1 Except as otherwise provided in Paragraph 13.3 above, the relationship
between PCSC and DEALER is intended to, and shall, be that of buyer and
seller and DEALER and its employees, agents and representatives shall
under no circumstances be considered employees, agents, partners, joint
venturers or representatives of PCSC. DEALER shall not act or attempt
to act, or represent itself, directly or by implication, as agent,
joint venturer, partner or representative of PCSC; nor shall DEALER in
any manner assume or attempt to assume or create any obligation or
liability of any kind, nature or sort, express or implied, on behalf of
or in the name of PCSC.
15.2 The relationship created by this Agreement is not intended by the
parties to constitute the granting of a franchise to DEALER by PCSC,
and no Federal or state franchise statute, law, regulation or rule
is intended by the parties to apply to such relationship; nor shall
any such franchise statute, law, regulation or rule be deemed or
construed to apply to the formation, operation, administration or
termination of this Agreement.
15.3 All personnel employed or otherwise engaged by DEALER to perform the
obligations and duties of DEALER under this Agreement shall be deemed
to be the agents, servants and employees of DEALER only, and PSCS shall
incur no obligations or liabilities of any kind, nature of sort,
express or implied, by virtue of, or with respect to, the conduct of
any such personnel in carrying out their obligations and duties to
DEALER or otherwise. DEALER shall pay all costs and expenses of
whatsoever nature incurred by DEALER in connection with this Agreement,
including, without limitation, any commissions or other compensation
paid to agents, representatives or employees engaged or employed by
DEALER, any expenses for travel, entertainment or offices and any taxes
or other assessments.
16. TRADEMARKS AND OTHER PROPRIETARY MARKS:
16.1 DEALER is authorized, but not required, to refer to and advertise
itself as an Authorized Dealer of the Products in the Territory. Any
use of the name 'PANASONIC' by DEALER in connection with its promotion
or sale of the Products or advertising of the same shall be at DEALER's
sole cost and expense.
16.2 DEALER hereby acknowledges the validity of the trademark 'PANASONIC' as
well as of all other proprietary marks which are affixed to the
Products and agrees that the aforesaid trademark and proprietary marks
are, and shall remain, the property of PCSC's corporate parent, or of
any subsidiary or affiliate thereof. DEALER acknowledges that it
acquires no rights in the name 'PANASONIC' alone or in combination by
virtue of this Agreement or its sale of the Products hereunder or in
the name 'PANASONIC COMMUNICATIONS & SYSTEMS COMPANY' or in any other
trademark, proprietary mark or trade name adopted by PCSC or PCSC's
corporate parent, or by any subsidiary or affiliate thereof, and that
it has not and will not compensate PCSC in any way for the right to use
any of such marks or names. DEALER agrees that it shall not use any of
PCSC's trade names, trademarks, service marks, logo-types or other
proprietary marks belonging to PCSC or PCSC's corporate parent, or to
any subsidiary or affiliate thereof, or any names or marks or related
characteristics which in PCSC's opinion resemble any of the same, as
part of DEALER's corporate or business name or trade style, or in any
manner which PCSC, in its sole discretion and opinion, considers
confusingly similar, misleading, detrimental or otherwise. DEALER may
indicate on stationery, calling cards or other printed material that it
is an Authorized Dealer of the Products in the Territory, and may have
PCSC's name or trade names listed in the classified section of the
telephone directory on a cross-reference basis (for example: 'Panasonic
Business Telephone Systems -- See X Y Z Co., Inc.').
16.3 DEALER shall not do anything to infringe upon, harm, or contest the
validity of the trademark 'PANASONIC' or any trademark, trade name,
service mark, logo-type or other proprietary mark of PCSC or its
corporate parent, or of any subsidiary or affiliate thereof.
16.4 DEALER agrees that it shall not remove or alter the trademark
'PANASONIC' or any other trademark, trade name, service mark, logo-type
or other proprietary mark which is affixed to the Products or the
packaging therefor; nor shall DEALER affix any additional trademarks or
trade designations to any Products or the
7
packaging therefor which bear the trademark 'PANASONIC' or any other
trademark, trade name, service mark, logo-type or other proprietary
mark of PCSC or its corporate parent, or of any subsidiary or affiliate
thereof.
16.5 DEALER agrees that, in the event that PCSC at any time(s) makes a
request therefor in writing, DEALER shall submit to PCSC, of PCSC's
prior written approval, any advertising or other printed material
employing the name 'PANASONIC' or any other trademark, trade name,
service mark, logo-type or other proprietary mark belonging to PCSC or
PCSC's corporate parent, or to any subsidiary or affiliate thereof,
prior to any use thereof by DEALER.
16.6 DEALER shall at no time engage in any unfair trade practices and shall
not make any false or misleading statements or representations with
respect to PCSC or any of the Products covered by this Agreement or
otherwise. DEALER shall make no warranties or representations with
respect to the Products covered by this Agreement, except as may be
previously approved in writing by PCSC.
16.7 Upon termination of this Agreement for any reason, DEALER shall
immediately refrain thereafter from any and all use of the trademark
'PANASONIC' and any other trademark, trade name, service mark,
logo-type or other proprietary mark adopted by PCSC or PCSC's corporate
parent, or by any subsidiary or affiliate thereof, and shall refrain
from the use of any marks confusingly similar thereto in connection
with any products whatsoever, and shall immediately refrain from
referring to itself as a dealer of the Products; provided, however,
that, except as otherwise provided in Paragraph 18 hereof, nothing
herein shall be construed as preventing DEALER from selling such
inventory of the Products as DEALER possesses on the effective date of
termination of this Agreement after said date. DEALER shall remove from
public view any signs, banners, wall charts, certificates, plaques or
ornamentations stating or suggesting that DEALER is authorized by PCSC
to sell, promote or install the Products.
17. TERM; TERMINATION:
17.1 This Agreement shall be deemed effective upon the date of execution by
a duly authorized representative of PCSC and shall continue until
December 31 of the current year. Thereafter, this Agreement shall renew
automatically for successive one-year additional terms unless
terminated by either party in writing no less than thirty (30) days
prior to the expiration date of the then current term. Anything to the
contrary of this Agreement notwithstanding, either PCSC or DEALER may
terminate this Agreement, and the appointment of DEALER as an
Authorized Dealer of the Products, with or without cause, at any time
upon written notice to the other to that effect, and said termination
shall become effective thirty (30) days following the mailing of such
notice, except where a shorter period for termination is provided in
this Agreement.
17.2 During the period between the giving of any notice of non-renewal or of
termination provided for in Paragraph 17.1 above and the effective date
of expiration or of termination set forth in any such notice, delivery
of Products to DEALER may, at the option of PCSC, be conditioned upon
payment by certified check or in cash by DEALER upon or prior to
delivery.
17.3 PCSC may immediately terminate this Agreement upon written notice to
that effect upon the occurrence of any of the following events:
(a) DEALER is in default in any material respect in the performance of
any of its obligations under this Agreement or under any purchase
order submitted by DEALER hereunder, including, without
limitation, DEALER's obligations, under Paragraphs 2 and 3 above,
to perform a retail function only, to sell the Products only to
customers with facilities located in the Territory and to sell
Products only from the sales location(s) set forth on Exhibit C,
and, under Paragraph 7.1 above, to pay each PCSC invoice for
Products according to its terms; or
(b) Bankruptcy or insolvency proceedings are instituted by or against
DEALER, or DEALER, is adjudicated a bankrupt, becomes insolvent,
makes an assignment for the benefit of creditors, or a receiver is
appointed for all, or a substantial part, of DEALER's assets, or
DEALER proposes or makes any arrangements for the liquidation of
its debts, and any such proceedings, assignment or appointment is
not dismissed or vacated within thirty (30) days.
17.4 The expiration or termination of this Agreement at any time shall,
unless otherwise expressly agreed to in writing by PCSC, automatically
operate, as of the effective date thereof, as a cancellation of any
further deliveries or Products to DEALER, and shall be construed as an
automatic cancellation of all purchase orders and releases of DEALER
for Products, whether or not any such orders have theretofore been
accepted by PCSC.
8
17.5 In addition to such other remedies for non-payment as are otherwise
provided herein or by law, in the event DEALER shall default in the payment
of any indebtedness due to PCSC pursuant to the terms of this Agreement
when and as the same become due and payable, then all liabilities and
obligations of DEALER to PCSC pursuant to this Agreement, any other
agreement, or otherwise, whether or not then due, shall become immediately
due and payable, without further notice to DEALER.
17.6 Except as otherwise provided in Paragraph 17.5 above, DEALER shall pay all
monies owed to PCSC at the time of the expiration or termination of this
Agreement within thirty (30) days of the effective date of such expiration
or termination regardless of the terms of payment that may have otherwise
been granted to DEALER by PCSC prior to the effective date of expiration or
termination; provided, however, that if any terms of payment for payment of
any invoice to PCSC by DEALER at the time of such expiration or termination
then provide for payment thereof in less than thirty (30) days, such
invoice shall be payable to the applicable terms of payment.
17.7 Anything herein to the contrary notwithstanding, expiration or termination
of DEALER's appointment as an Authorized Dealer of the products shall in no
way affect any outstanding obligations for payments due and owing from
DEALER to PCSC, whether then due or to become due to PCSC, under this
Agreement or otherwise or any other obligation of DEALER to PCSC pursuant
hereto or otherwise, all of which obligations, if any, existing at the
time of any such expiration or termination, DEALER hereby agrees to fulfill
and perform.
17.8 Neither PCSC nor DEALER shall be liable to the other, or to any other
party, by virtue of the expiration or termination of this Agreement due to
any reason whatsoever, or due to no reason, or by virtue of the
cancellation, pursuant to Paragraph 17.4 above, of any orders for Products
that are undelivered on the effective date of any expiration or
termination of this Agreement, including, without limitation, any
liability for direct, indirect, special consequential or incidental
damages sustained by reason of such expiration or termination, including,
without limitation, any claim for loss or profits or prospective profits
in respect of sales or anticipated sales of Products, or on account of any
expenditures, investments, leases, capital improvements or any other
commitments made by either of the parties in connection with their
respective businesses made in reliance upon or by virtue of DEALER's
appointment as an Authorized Dealer of the Products or otherwise; not shall
PCSC or DEALER have the right to any equitable remedies by reason of the
expiration or termination of this Agreement.
18. OPTION TO REPURCHASE PRODUCTS:
18.1 PCSC shall have the option, in its sole and absolute discretion,
exercisable upon written notice to DEALER mailed within fourteen (14) days
following the mailing of a notice of termination of this Agreement by
either DEALER or PCSC, but shall have no obligation hereunder or otherwise,
to repurchase from DEALER or from DEALER's legal representatives (in the
event of the insolvency or, if DEALER is a sole proprietorship, the death
of DEALER at the time of such repurchase) all or any part of DEALER's
inventory of Products existing on the effective date of any termination of
DEALER's appointment as an Authorized Dealer of the Products.
18.2 Following the mailing of the notice of exercise of the option set forth in
Paragraph 18.1 above, but in no event later than the effective date of
termination of this Agreement, PCSC and DEALER shall take an inventory of
all Products in the possession of DEALER.
18.3 The purchase price for Products which are undamaged and in their original
containers upon such repurchase shall be DEALER's net purchase price
therefor from PCSC or PCSC's price for Products to its Authorized Dealers
of the Products at the time of such repurchase, whichever is lower. If PCSC
elects, in its sole and absolute discretion, to purchase Products which are
not then on PCSC's current price sheet or which are damaged or not in their
original containers, the parties hereto agree to negotiate the price
thereof in good faith.
18.4 In the event PCSC exercises its option to repurchase all or any part of
DEALER's inventory of the Products, DEALER hereby agrees to sell to PCSC
such of its inventory of Products as PCSC elects to purchase, as of the
effective date of termination of DEALER's appointment as an Authorized
Dealer of the Products, and to promptly thereafter deliver the same to
PCSC, at DEALER's sole cost and expense, at such time(s) and to such
place(s) as PCSC shall designate, free and clear of any liens or
encumbrances thereon.
18.5 In the event and to the extent PCSC fails to exercise its option, DEALER
shall thereafter promptly dispose of its remaining inventory of the
Products in the ordinary course of its business pursuant to the terms of
this Agreement.
18.6 PCSC shall pay DEALER for the inventory of Products repurchased within
thirty (30) days after receipt of the repurchased Products by PCSC. PCSC
shall have the right to offset against any monies payable hereunder any
monies that are due and owing from DEALER to PCSC as of the date any such
payment is due.
9
19. EXCUSABLE DELAY:
19.1 PCSC shall not be liable for any direct, indirect, special, incidental or
consequential damages arising out a total or partial failure to perform
hereunder, or delay in such performance, by reason of any event or
occurrence beyond the control of PCSC, including without limitation,
non-performance or delays of a supplier to PCSC, acts of God, wars, acts of
a public enemy, acts of the Governments of any state of political
subdivision or any department or regulatory agency thereof or entity
created thereby (whether or not valid), quotas, embargoes, acts of any
person engaged in subversive activity or sabotage, fires, floods,
explosions, or other catastrophes, epidemics or quarantine restrictions,
strikes, lockouts or other labor stoppages, slowdowns or disputes.
19.2 It is understood and agreed that the provision hereinabove shall have the
effect of permitting delay under this Agreement for such time as is
occasioned by any of the aforesaid conditions, but such delay shall not in
any event be deemed to lessen the full amount of the Products purchased and
sold hereunder, but only as deferring delivery in the event and to the
extent herein provided for.
20. ENTIRE AGREEMENT:
20.1 This Agreement sets forth the entire understanding, and hereby supersedes
any and all prior agreements, oral or written, heretofore made, between the
parties with respect to the subject matter of this Agreement, and there are
no representations, warranties, convenants, agreements or collateral
understandings, oral or otherwise, expressed or implied, affecting this
instrument that are not expressly set forth herein; provided, however, that
nothing herein contained shall be construed as relieving DEALER from any
pre-existing obligation owing to PCSC, including, without limitation,
payment of any monies payable to PCSC.
20.2 No delay on the part of either party in exercising any of its respective
rights hereunder or the failure to exercise the same, nor the acquiescence
in or waiver of a breach of any term, provision or condition of this
Agreement shall be deemed or construed to operate as a waiver of such
rights or acquiescence thereto except in the specific instance for which
given.
20.3 None of the terms, conditions or provisions of this Agreement shall be
deemed to have been waived, modified or altered by any act, course or
conduct or knowledge of either party, its respective agents, servants or
employees, and the terms, provisions and conditions of this Agreement may
not be changed, waived, varied or modified except by a statement in writing
signed by duly authorized representatives of both parties.
21. NOTICES:
Any notice, request, consent, demand or other communication given or
required to be given under this Agreement shall be effective only if in
writing and shall be deemed to have been given when mailed by first-class
registered or certified mail, postage prepaid, return receipt requested,
addressed to the respective addresses of the parties as follows:
To: General Manager, Business Telephone Systems Division
Panasonic Communications & Systems Company
Division of Matsushita Electric Corporation of America
Two Panasonic Way
Secaucus, New Jersey 07094
Copy to: General Counsel
Panasonic Communications & Systems Company
Division of Matsushita Electric Corporation of America
One Panasonic Way
Secaucus, New Jersey 07094
To: DEALER at the address set forth on the first page hereof
or to such other addressee as many hereafter be designated by like notice.
22. APPLICABLE LAW:
This Agreement shall be governed and interpreted under the laws of the State
of New York, without regard to its conflict-of-laws rules.
10
23. SEVERABILITY:
The invalidity or unenforceability of any provision of this Agreement
pursuant to any applicable law shall not affect the validity or enforceability
of the remaining provisions hereof, but this Agreement shall be construed
as if not containing the provision held invalid or unenforceable in the
jurisdiction in which so held, unless, in the reasonable opinion of either
party hereto, such invalid or unenforceable provisions comprise an integral
part of, or are otherwise inseparable from the remainder of, this Agreement,
in which case this Agreement, in such jurisdiction, shall immediately
terminate and be of no further force and effect.
24. EXECUTION:
24.1 This Agreement may be executed in two or more counterparts, each of which
shall be an original, and all of which, taken together, shall constitute
one and the same Agreement.
24.2 PCSC and DEALER each represent and warrant to the other that the person
executing this Agreement on its behalf is its duly authorized
representative.
25. HEADINGS:
Paragraph headings used herein do not form a part of this Agreement, but are
for convenience only and shall not limit or be deemed or construed in any way to
affect or limit the meaning of the language of the paragraphs.
PANASONIC COMMUNICATIONS
& SYSTEMS COMPANY
DIVISION OF MATSUSHITA
Dealer Name All Communications Corp. ELECTRIC CORPORATION OF AMERICA
------------------------
By: /s/ Richard Reiss, Pres. By: /s/ [SIGNATURE]
---------------------------------- ----------------------------
(Name & Title) (Name & Title)
Richard Reiss, President
5/20/92
Date:_________________________________ Date:___________________________
EFFECTIVE DATE:
Panasonic
Note: The effective date of this supersedes
all prior dated Exhibits.
-------------------------------------------------
All Communications Corp.
------------------------
DEALER NAME
7 Lincoln Highway Suite 224
---------------------------
ADDRESS
Edison, New Jersey 08820
------------------------
CITY, STATE, ZIP
EXHIBIT A
---------
PRODUCTS:
- ---------
ALL PANASONIC DBS AND RELATED PRODUCTS.
- --------------------------------------------------------------------------------
AUTHORIZED SIGNATURE: AUTHORIZED SIGNATURE:
/S/ Richard Reiss, Pres. /S/ [SIGNATURE]
- ------------------------- --------------------------------
DEALER Panasonic Communications & Systems Company
Division of Matsushita Electric Corp. of
America
- --------------------------------------------------------------------------------
EFFECTIVE DATE: January 1, 1997
Panasonic
Note: The effective date of this supersedes
all prior dated Exhibits.
-------------------------------------------------
All Communications Inc.
------------------------
DEALER NAME
1450 Route 22 West Suite 103
----------------------------
ADDRESS
Mountainside, NJ 07092
----------------------
CITY, STATE, ZIP
EXHIBIT B
---------
TERRITORY
---------
STATE COUNTY STATE COUNTY
1. NJ Sussex 16. NJ Atlantic
------ --------------------- ----- --------------------
2. NJ Passaic 17. NJ Gloucester
------ --------------------- ----- --------------------
3. NJ Bergen 18. NJ Salem
------ --------------------- ----- --------------------
4. NJ Morris 19. NJ Cumberland
------ --------------------- ----- --------------------
5. NJ Warren 20. NJ Cape May
------ --------------------- ----- --------------------
6. NJ Hunterdon 21. NY Richmond
------ --------------------- ----- --------------------
7. NJ Essex 22. NY Kings
------ --------------------- ----- --------------------
8. NJ Union 23. NY Queens
------ --------------------- ----- --------------------
9. NJ Somerset 24. NY Nassau
------ --------------------- ----- --------------------
10. NJ Middlesex 25. NY Suffolk
------ --------------------- ----- --------------------
11. NJ Mercer 26. NY New York
------ --------------------- ----- --------------------
12. NJ Monmouth 27. NY Bronx
------ --------------------- ----- --------------------
13. NJ Ocean 28. NY Westchester
------ --------------------- ----- --------------------
14. NJ Burlington 29. NY Rockland
------ --------------------- ----- --------------------
15. NJ Camden 30. NY Orange
------ --------------------- ----- --------------------
- --------------------------------------------------------------------------------
AUTHORIZED SIGNATURE: AUTHORIZED SIGNATURE:
/S/ Richard Reiss, Pres. /S/ [SIGNATURE]
- ------------------------- --------------------------------
DEALER Panasonic Communications & Systems Company
Division of Matsushita Electric Corp. of
America
- --------------------------------------------------------------------------------
EFFECTIVE DATE: January 1, 1997
Panasonic
Note: The effective date of this supersedes
all prior dated Exhibits.
-------------------------------------------------
All Communications Inc.
------------------------
DEALER NAME
1450 Route 22 West Ste. 103
----------------------------
ADDRESS
Mountainside, NJ 07092
----------------------
CITY, STATE, ZIP
EXHIBIT B-1
-----------
TERRITORY
---------
In addition to the stated Exhibit B Territories of authorization by county
Panasonic also authorizes All Communications, Inc. to sell the Digital Business
System and related equipment to the following National Accounts and Government
Agencies:
1. HFS INCORPORATED
6 Sylvan Way
Parsippany, NJ 07054
HFS is the parent of the franchisors Century 21, ERA, and Coldwell Banker.
2. Department of Justice
Washington, DC
These National Accounts and Government agencies have offices located throughout
the United States. All Communications, Inc. is authorized to solicit these
individual locations and sell the Panasonic Digital Business System to them
independently.
- --------------------------------------------------------------------------------
AUTHORIZED SIGNATURE: AUTHORIZED SIGNATURE:
/S/ Richard Reiss, Pres. /S/ [SIGNATURE]
- ------------------------- --------------------------------
DEALER Panasonic Communications & Systems Company
Division of Matsushita Electric Corp. of
America
- --------------------------------------------------------------------------------
EFFECTIVE DATE: January 1, 1997
Panasonic
Note: The effective date of this supersedes
all prior dated Exhibits.
-------------------------------------------------
All Communications Inc.
------------------------
DEALER NAME
1450 Route 22 West Ste. 103
----------------------------
ADDRESS
Mountainside, NJ 07092
----------------------
CITY, STATE, ZIP
EXHIBIT C
---------
SALES AND SERVICE LOCATIONS
---------------------------
1. 521 5th Ave. 29th Floor NY, NY 10175
-----------------------------------------------------------------------------
STREET ADDRESS CITY STATE ZIP
2.
-----------------------------------------------------------------------------
STREET ADDRESS CITY STATE ZIP
3.
-----------------------------------------------------------------------------
STREET ADDRESS CITY STATE ZIP
4.
-----------------------------------------------------------------------------
STREET ADDRESS CITY STATE ZIP
5.
-----------------------------------------------------------------------------
STREET ADDRESS CITY STATE ZIP
6.
-----------------------------------------------------------------------------
STREET ADDRESS CITY STATE ZIP
7.
-----------------------------------------------------------------------------
STREET ADDRESS CITY STATE ZIP
8.
-----------------------------------------------------------------------------
STREET ADDRESS CITY STATE ZIP
- --------------------------------------------------------------------------------
AUTHORIZED SIGNATURE: AUTHORIZED SIGNATURE:
/S/ Richard Reiss, Pres. /S/ [SIGNATURE]
- ------------------------- --------------------------------
DEALER Panasonic Communications & Systems Company
Division of Matsushita Electric Corp. of
America
- --------------------------------------------------------------------------------